US Supreme Court hints of possible adverse ruling vs FM rights victims

WASHINGTON – The US Supreme Court raised yesterday the possibility of ruling against human rights victims of martial law in a dispute over who owns $35 million that belonged to the late President Ferdinand Marcos.

“Is it fair to say to the victims, ‘Wait for a ruling in the Philippines?’” asked Chief Justice John Roberts.

Invoking sovereign immunity is an automatic rule for dismissing a case, Charles Rothfeld, representing the Philippine government, told the justices.

Rothfeld said if Philippine courts rule in the government’s favor, it can come into a US court armed with a judgment and all those claiming a stake in the money can present their case.

Arguing for the victims, attorney Robert Swift said the Philippine government is “judge shopping” and “forum shopping” in an effort to get the dispute to come out the way it wants.

The Philippine government does have the right to pick the forum,” Justice Ruth Bader Ginsburg replied.

“We should not be farming out decisions about assets... that have been here for 35 years,” said Swift.

Justice Antonin Scalia suggested the court’s hands may be tied by the sovereign immunity doctrine.

“I am just not terribly persuaded” by arguments that there is “terrible unfairness” in what the victims have had to face, said Scalia. “The whole doctrine of sovereign immunity is unfair; the doctrine always has unfairness.”

A lawyer for a group of more than 9,500 human rights victims and their heirs argued they should get the money as part of a $2-billion judgment in US courts against the Marcos estate.

The Philippine government says the dispute over the tiny fraction of allegedly stolen assets should be settled in Philippine courts, not in the United States, where it has been pending for eight years.

The fight stems from Marcos’s transfer of $2 million in 1972 to Arelma S.A., a Panamanian shell corporation that invested the money with Merrill Lynch, Pierce, Fenner & Smith Inc., in New York.

By 2000, it had grown to $35 million.

A Philippine bank is holding Arelma share certificates in escrow until the courts rule on ownership.

When Merrill Lynch asked US courts to sort out the disagreement, the Philippine government invoked sovereign immunity, the doctrine that bars a legal proceeding against a government without its consent.

Ordinarily, that would have shut down the case in US courts, based on the absent Philippine government being an indispensable party to the case.

But a federal judge in Hawaii decided the matter could continue and ruled in the victims’ favor, as did the 9th US Circuit Court of Appeals in San Francisco, even though the Philippine government was not a participant.

‘GMA blocking US judgment’

Former Akbayan representative Loretta Ann Rosales, a human rights victim, accused President Arroyo yesterday of blocking a US court judgment awarding an initial $35 million to thousands of human rights claimants.

“President Arroyo unconscionably spends $3.5 million of government funds to pay the law firms of Mayer Brown and Platt together with Heller Ehrman to obstruct the awarding of $35 million (to human rights victims),” she said.

“Over and above this, she recently hired a Washington lobbyist in the law firm of Covington and Burling for an annual fee of $500,000 to, among other tasks, lobby against the $35-million award.”

Rosales said the money was awarded to victims of human rights abuses during the Marcos regime by Hawaii district judge Manuel Real in July 2004.

It came from funds of the Marcoses in Merill Lynch amounting to $2 million in 1972 that have grown to an estimated $35 million. Rosales said the award has been affirmed by the US Court of Appeals and that Merill Lynch was willing to give the money to the human rights victims.

“The martial law victims have so far won, while the Arroyo regime has lost in the US courts, but up to now, the victims have not been compensated,” she said.

“The reason for this… is that Gloria prefers to grab this money for herself and her decrepit regime.”

Rosales said Mrs. Arroyo has instructed Solicitor General Agnes Devanadera and Chairman Camilo Sabio of the Presidential Commission on Good Government to go to the US to help the government’s American lawyers fight the case in the US Supreme Court.

“This adds insult to injury, considering the fact that Camilo Sabio has a pending case before the Presidential Anti-Graft Commission for misuse of sequestered funds involving some P10 million through several withdrawals channeled to his personal account. He has no business representing the government and should have been suspended,” she said.

Akbayan would ask its representatives in Congress to call for an investigation of the “exorbitant fees” paid to American lawyers and the “junket” of Sabio, his relatives and other PCGG officials, Rosales said.   – AP, Jess Diaz