Commentary
An absurd decision
By H. Harry L. Roque Jr.
Philippine Daily Inquirer
First Posted 01:01:00 06/18/2008
Filed Under: Crime, Law & Justice
The United States Supreme Court had an inauspicious gift for the Philippines as the nation celebrated its 110th declaration of independence. Ruling en banc, the court on June 12, 2008 dismissed an action for interpleader filed by Merryl Lynch. An interpleader allows a plaintiff to file a lawsuit in order to compel two or more other parties to litigate a dispute. It is resorted to when the plaintiff holds property on behalf of another, but does not know to whom the property should be transferred.
The case arose from a civil suit under the Alien Torts Claims Act (ATCA) filed by the victims of the Ferdinand Marcos dictatorship in the Honolulu District Court. The victims prevailed and they were, as a class, awarded $2 billion in damages for torture and enforced disappearances during martial law. Since efforts to arrive at a negotiated compromise to indemnify the victims failed, Judge Manuel Real issued a worldwide freeze on the Marcos estate and ordered that all Marcos wealth recovered worldwide be used to indemnify the victims.
The ATCA is a jewel of a legislation that allows foreigners to file suit in US courts for damages arising from the commission of torture and war crimes. Passed in the 1700s, it is probably one of the oldest human rights remedy under US law, and one which provides the legal basis for the exercise of universal jurisdiction since the crimes for which the civil suits may be filed need not have been committed on US soil.
Merrill Lynch initiated the case as trustee of an account belonging to Arelma S.A., believed to be a dummy corporation of the late dictator. The claimants in the Hawaii case, together with the Presidential Commission on Good Government and the Philippine government, have been claiming ownership over the assets of Arelma, prompting the company to file the interpleader.
The Philippine government then moved to dismiss the interpleader on the ground that the suit violates the cardinal principle under international law that a state may not be sued without its consent before the courts of another state. The rationale for this principle is that to compel sovereign states to appear before the courts of another would be an affront on the principle of sovereign equality of states. While this principle is of unquestioned correctness, still the US Supreme Court’s ruling in favor of the Philippine government in the context that it was given gives rise to clear anomalies and absurdities:
First, the Honolulu ATCA litigation was also subject to the principle of immunity from jurisdiction since Marcos was accused then of acts committed while he was a sitting sovereign. And yet, the US courts, including its appellate courts, ruled that immunity from suit could not be invoked where the acts committed were plainly actionable under the ATCA statute. This principle has been cited by the UK House of Lords when it ruled in the Pinochet case. There the Law Lords were unequivocal in ruling that immunity can only be invoked for official acts and that the commission of international crimes can never be official or sovereign in character.
Second, the Honolulu ATCA litigation proceeded precisely because the Philippines, then under the administration of President Corazon Aquino, waived the immunity from suit of former President Ferdinand Marcos. While the claim to the Arelma account was litigated under the administration of Gloria Macapagal-Arroyo, still the entity that waived the immunity from suit was the state of the Philippines and not just a dispensation. It behooves both rhyme and reason why an immunity already waived and which enabled the suit to prosper in the first place is now being used to frustrate the recovery of reparations due victims of torture and disappearances during the dark days of martial rule.
Third, policy considerations militate against the invocation of immunity to frustrate the execution of a money judgment under a statute that seeks to promote and protect human rights. ATCA is the crown jewel that it is precisely because it gives victims of the worst violations of human rights recourse for damages in the courts of the United States. This statute has been proven to be an effective remedy for the victims of the Marcos dictatorship. If the policy is to protect human beings from acts of torture and other forms of inhumanity by making such acts expensive in the US, the ruling will surely defeat the very rationale for the existence of the law, and the entire gamut of international law norms that seek to protect the individual from the excesses of states.
Finally, there is the issue of morality. Ms Arroyo’s government has only recently been condemned by no less than the United Nations’ Special Rapporteur on Extrajudicial Killings as lacking the political will to prevent, investigate and punish the perpetrators of extrajudicial killing and disappearances being committed by agents of the state. What moral authority does it have to frustrate the recovery of reparations for violations of human rights when it is itself being loudly criticized as a flagrant violator?
But then again, this may perhaps be the motivation of the Arroyo administration. For in a couple of years, like it or not, she herself may be impleaded for the exact same suit that she has for now effectively defeated.
H. Harry L. Roque Jr. is professor of International Law at the University of the Philippines College of Law and chair of the Center for International Law (CenterLaw).
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