MANILA, Philippines - It is not that the US Supreme Court decided against compensating Marcos human rights victims for what they had suffered?although I must admit that the practical result of the US Supreme Court decision is that they will have to wait much longer, if they will receive their compensation at all.

Nor is it that the Philippine government is claiming that their rights have not been violated at all, nor that, if indeed their rights were violated, they do not deserve compensation.

The issue all along in this long litigation has been who should compensate them and how they should be compensated. It is perhaps best to simplify the story.

We might begin with 1972 when President Ferdinand Marcos incorporated Arelma, S.A., under Panamanian law. Shortly thereafter Arelma opened a brokerage account with Merrill Lynch in New York in which it deposited $2 million. By 2000 the amount had grown to $35 million.

We are familiar with the many crimes alleged against Marcos. After his fall from power thousands claiming to be victims of human rights violations filed a class suit in Hawaii against Marcos and his estate. The district court rendered a nearly $2-billion judgment in favor of the class. The declared winner in the class suit sought to enforce the judgment by attaching the Arelma assets held by Merrill Lynch.

In response, the Philippine government claimed that the assets did not belong to the Marcos estate but to the Philippine government. The Philippine claim was based on a pre-martial law statute, RA 1379, declaring forfeiture in favor of the state of funds found to be unlawfully acquired by a public officer. Relying on this law, the Presidential Commission on Good Government in 1991 asked the Sandiganbayan to declare the Arelma assets forfeited in favor of the government.

Unfortunately, that litigation is still pending in the Sandiganbayan.

Meanwhile Merrill Lynch was confronted with the problem of having to decide to whom it should surrender the assets?to the human rights victims, to Arelma, or to the Philippine government. Thus Merrill Lynch filed an interpleader action to compel the various claimants to litigate among themselves as to who was or were entitled to the assets.

When the Philippines was named defendant in the interpleader action, the government and the PCGG asserted sovereign immunity from suit under the Foreign Sovereign Immunities Act of 1976, a Federal law. Moreover, arguing that the case could not proceed without them, the Philippines asked for the dismissal of the case.

The long and the short of it, however, is that the Hawaii Court and later the Court of Appeals, while they accepted the immunity claim of the Philippines, proceeded to consider the merits of the case in the absence of the Philippines and eventually granted judgment in favor of the human rights claimants. Hence the Philippines brought the case to the US Supreme Court.

The US Supreme Court addressed a number of key questions. This is not the place for a discussion of all of them; let me just address two. First, were the lower courts correct in rendering judgment on the merits in the absence of the Philippine government? The Supreme Court ruled:

?The Court of Appeals erred in not giving the necessary weight to the absent entities? assertion of sovereign immunity .... Once it was recognized that those claims were not frivolous, it was error for the Court of Appeals to address them on their merits when the required entities had been granted sovereign immunity. The court?s consideration of the merits was itself an infringement on foreign sovereign immunity ...?

A second question, of course, is about the Philippine claim of sovereign immunity from suit. How important is that for world order? Allow me again to let the US court speak even if the doctrine of sovereign immunity is also part of our legal system:

?The doctrine of foreign sovereign immunity has been recognized since early in the history of our Nation. It is premised upon the ?perfect equality and absolute independence of sovereigns, and th[e] common interest impelling them to mutual intercourse.? The Court has observed that the doctrine is designed to ?give foreign states and their instrumentalities some protection from the inconvenience of suit? .... The District Court and the Court of Appeals failed to give full effect to sovereign immunity when they held the action could proceed without the Republic and the Commission.?

And how important is immunity in this case for our dignity as a nation? Again the Court:

?Comity and dignity interests take concrete form in this case. The claims of the Republic and the Commission arise from events of historical and political significance for the Republic and its people. The Republic and the Commission have a unique interest in resolving the ownership of or claims to the Arelma assets and in determining if, and how the assets should be used to compensate those persons who suffered grievous injury under Marcos. There is a comity interest in allowing a foreign state to use its own courts for a dispute if it has a right to do so. The dignity of a foreign state is not enhanced if other nations bypass its courts without right or good cause. Then, too, there is the more specific affront that could result to the Republic and the Commission if property they claim is seized by the decree of a foreign court.?

Pithily the Court concluded that the ?judicial seizure? of the property of a friendly state may be regarded as ?an affront to its dignity and may .... affect our relations with it.?

Briefly, then, the Sandiganbayan should decide the case soonest!