CHICAGO – The relatives of slain Filipino publicist Salvador Dacer told Judge William Alsup of the US District Court of Northern California in San Francisco during a case management statement that court servers in the Philippines are afraid to serve the civil complaint and summons on Sen. Panfilo Lacson for fear of being “killed.”
The revelation was enclosed in a five-page order issued by Judge Alsup last Dec. 7, denying the motion for summary judgment filed by Lacson’s former subordinate, jailed former police senior superintendent Michael Ray Aquino, on the $120-million civil suit filed against Lacson, Aquino, former Philippine President Joseph Estrada, another Lacson subordinate former police superintendent Glenn Dumlao, former Pagcor executive Reynaldo Tenorio, and businessman Dante Tan.
Alsup said, “In this action involving political torture and killings in the Philippines, defendant (Aquino) moves for summary judgment based on a failure to exhaust local remedies. For the following reasons, this motion is denied and the hearing set for Dec. 15 is vacated.”
Judge Alsup set the date of trial of Aquino on Jan. 28, 2013.
Dacer’s daughters Carina Dacer, Sabina Dacer-Reyes, Amparo Dacer-Henson and Emily Dacer-Hungerford filed the civil suit based on the Alien Tort Claims Act (ATCA) (28 USC 1350) and the Torture Victim Protection Act (TVPA) (28 USC 1350) “against the seven individuals they believed were responsible for the torture and death of their father in the Philippines.”
The order said, “On Jan. 20, 2001, defendant Estrada resigned the presidency in favor of then Vice President Gloria Macapagal-Arroyo who was sworn in as the country’s president the following day. President Arroyo directed her Department of Justice to investigate the abduction and murder of Dacer.
Lacson told Aquino to escape
Shortly after Lacson won as senator in May 2001, he also learned of the pending murder investigation and told Aquino to escape to the United States.
Aquino entered the US in July 2001 on a tourist visa. Arrest warrants in the Philippines were later issued for Lacson and Aquino.
“Lacson succeeded in getting the Philippine Court of Appeals to dismiss the arrest warrant issued against him. According to plaintiffs’ case management statement, court servers in the Philippines are afraid to serve the complaint and summons to Lacson for fear of being killed.”
The order added that in September 2005, Aquino was arrested in the United States for illegal possession of classified government documents. He made a guilty plea and was sentenced to 76 months in prison.
Aquino was later extradited to the Philippines, where he was arrested on June 26, 2011 for the murder of Dacer.
The criminal case against Aquino is pending in the Philippines.
The order said when Aquino moved for summary judgment based on a failure to exhaust remedies in the Philippines, the factual record for Aquino’s motion “is woefully lacking.”
Aquino submitted one document with his brief – the opinion in an unrelated case in the Philippines.
Aquino submitted an additional document – the transcript of a criminal court proceeding against him in Manila.
Alsup said that “summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
He added that the court needs to consider only the cited materials, but it may consider other materials in the record.
“Where extrinsic evidence is still required, and that evidence is either not available to the district court or non-moving party has not been afforded time for reasonable discovery, the court can deny a motion for summary judgment as premature. An issue is ‘genuine’ only if there is sufficient evidence for a reasonable fact-finder to find for the non-moving party, and ‘material’ only if the fact may affect the outcome of the case. All reasonable inferences, however, must be drawn in the light most favorable to the non-moving party.”
When claims are brought under the TVPA and ATCA, Aquino bears the burden to plead and justify an exhaustion requirement, including the availability of local remedies.