Thursday, July 25, 2019

NY court hearing on $41M for Marcos victims

Philippine Daily Inquirer/OPINION/by Ma. Ceres P. Doyo

If things go right in the US District Court for the Southern District of New York, the almost 7,000 recognized claimants in the Hawaii class suit against the Marcos estate would again be awarded compensation from recovered funds belonging to the Marcoses. This time, the reparation would be much bigger ($41 million) than the three previous tranches distributed in 2011, 2014 and 2019.
The claimants had been awarded $2 billion in exemplary and statutory damages by a Hawaii court in 1995, but these came in trickles or have not yet been fully satisfied owing to the complexities in tracking down the so-called ill-gotten and hidden wealth of the Marcoses stashed away in different parts of the world. Well, not to mention blocks thrown in the way, among them coming from a competing claimant, the Philippine government. Or from the Marcoses themselves.

On July 15 (shortly after the third tranche was distributed), the US District Court for the District of Columbia issued an order for the “enforcement of Philippine forfeiture judgment against all assets of Arelma, S.A., formerly held at Merrill Lynch, Pierce, Fenner & Smith, Incorporated, including but not limited to, Account Number 165-07312, and all interest, income or benefits accruing or traceable thereto.”
This was on the petition of Jose Duran, a member of the class suit filed by human rights violations victims who had been awarded the $2-billion judgment in Hawaii.

Robert Swift, counsel for the claimants who had suffered under the Marcos dictatorship (1972-1986), said that after three years of inactivity, the case involving the so-called Arelma funds would now be heard in New York. US District Court Judge Richard J. Leon entered a decision on July 15 granting two of Swift’s motions transferring the case from Washington to a federal court in New York. Swift predicts a final decision in a year.
The change of venue would spell the difference because the funds are, in the words of Leon, “in the custody of the State of New York, held pursuant to New York state law…”

A backgrounder: Former US justice of the Supreme Court Anthony Kennedy had given a history of the Arelma funds at issue: “In 1972, Ferdinand Marcos, then President of the Republic of the Philippines, incorporated Arelma, S.A. under Panamanian law. Around the same time, Arelma opened a brokerage account with Merrill Lynch, Pierce, Fenner & Smith in New York, in which it deposited $2 million. As of the year 2000, the account had grown to approximately $35 million. (Approximately $41 million by now.—CPD)
“Alleged crimes and misfeasance by Marcos during his presidency became the subject of worldwide attention and protest … After Marcos fled the Philippines in 1986… the [Presidential Commission on Good Government (PCGG)] asked the Swiss Government for assistance in recovering assets—including shares in Arelma—that Marcos had moved to Switzerland. In compliance, the Swiss Government froze certain assets and, in 1990, that freeze was upheld by the Swiss Federal Supreme Court…
“The Swiss assets were transferred to an escrow account set up by the [PCGG] at the Philippine National Banc (PNB) pending the Sandiganbayan’s decision as to its rightful owner. The Republic [of the Philippines] and the [PCGG] requested that Merrill Lynch follow the same course and transfer the Arelma assets to an escrow account at PNB. Merrill Lynch did not do so. Facing claims from various Marcos creditors… Merrill Lynch instead filed an interpleader action….”
An interpleader action is initiated when a plaintiff that holds property on behalf of another does not know to whom the property should be transferred.
“Poppycock!” Judge Leon said of the Philippine government’s claims, and he states why in his memorandum opinion.

And so, folks, who said there are no hidden, ill-gotten wealth out there that have yet to be retrieved? Who said that the tens of thousands who suffered under the Marcos dictatorship are a mere figment of the imagination?
I hope for a speedy decision so that the victim-survivors, especially those in their twilight years, the next of kin of those who perished during the dark night of martial rule, would again be compensated, partially at least. #

Thursday, July 18, 2019

'Fishy' legal turnaround of fisherfolk

Philippine Daily Inquirer/OPINION/by Ma. Ceres P. Doyo
I begin by quoting the late human rights lawyer and senator Joker Arroyo: “Like a mackerel lying in the moonlight, it shines and it stinks” (a variation of John Randolph of Roanoke’s quote).
On April 16, fisherfolk from Palawan and Zambales filed a petition for a writ of kalikasan and a writ of continuing mandamus asking the Supreme Court to compel the government to perform acts mandated upon it and enforce environmental laws in the Philippines’ territory. The fisherfolk were represented by the Integrated Bar of the Philippines (IBP) and collaborating counsel Jose Manuel “Chel” Diokno.Something strange surprised the counsels. During the oral arguments this month of July, Solicitor General Jose Calida asked for the dismissal of the petition by saying that the fishermen-petitioners were withdrawing and have executed affidavits denying that they authorized the filing of the petition. Huh?!
Counsel Diokno replied and stressed then that the petition was filed with “full knowledge and consent” of the fisherfolk. The petition was filed so that the government would protect the fisherfolk who only want to be able to fish in their country’s own territory and to earn enough for their families.

Over the weekend, I sought out Diokno because I learned that officials from the Philippine Navy visited the fisherfolk, after which the latter changed their minds. What happened was highly suspicious (“kahinahinala”), and was against legal ethics.
I was able to watch Pinky Webb’s interview with lawyer Theodore Te (“The Source” on CNN Philippines) who expressed the same thing. A video clip showed the fisherfolk approaching some lawyer to withdraw their petition. Te said that lawyer should have dismissed the fisherfolk (the legally ethical thing to do) and advised them instead to tell their lawyers that they were being fired.

Something suspicious about that video… Did the fishermen know their action was being recorded?
In a statement, IBP national president Domingo Cayosa vouched for the integrity of the lawyers (Diokno et al.) involved in filing the petition on behalf of the fisherfolk: “The IBP advocates for the enforcement of environmental laws, protection of the rights and welfare of fisherfolk, and securing the territory and patrimony of our country in the West Philippine Sea… the IBP stands firmly with the fishermen, IBP chapters and the lawyers involved in the petition for a writ of kalikasan filed before the Supreme Court.”
To Diokno’s accusation that the government was using underhanded tactics, the spokesperson of President Duterte, Salvador Panelo, responded by saying that Diokno manipulated the fisherfolk into signing the petition.
Diokno hit back by saying it was the government’s lawyer that committed a “breach of legal ethics” when he secretly talked to their clients, the fishermen.
I am getting curiouser and curiouser. The petition for a writ was to protect the environment and the country’s territory. Why is the government averse to that? And why seek out the petitioners in the dead of night, so to speak? Ano meron?

“There was a breach of legal ethics in this case,” someone told me, “… the Navy lawyer bypassed the fisherfolk’s lawyers. The IBP team, and Diokno as collaborating counsel, acted in good faith. They only wanted to help our countrymen, the fishermen, because they have the right to fish in our own territory, free from fear and harassment from certain forces. That was what the petition for a writ of kalikasan was all about.”
By the way, this is not the first time that Diokno represented fisherfolk. In October 2018, he filed a petition before the Supreme Court for continuing mandamus, on behalf of three fishermen from Navotas and Oceana Philippines International, to compel the Department of Agriculture-Bureau of Fisheries and Aquatic Resources to formulate rules on legal, sustainable and proper fishing methods, for the delineation of all municipal waters in the Philippines and many other things besides that would benefit and protect our fishermen. Enforcement of our Fisheries Code, Diokno says, is weak.
This recent petition for a writ of kalikasan and Diokno’s involvement as collaborating counsel is a logical extension of his support for our fisherfolk and the preservation of our marine ecosystem and for our people’s food security.
The petitioners’ turnaround is a big blow to their own selves. Whoever instigated that “midnight visit” that made the petitioners change their mind…. #

Thursday, July 11, 2019

Seized Marcos loot again awarded to ML victims

For the fourth time, thousands of victim-survivors and relatives of those who perished and vanished during the dark night under the Marcos dictatorship have each been handed their compensation checks.
In 2011, 2014 and again this year (2019), more than 6,000 members of a class suit against the Marcos estate received compensation for the sufferings (torture, rape, detention, loss of loved ones, etc.) they endured during the martial law years from 1972 to 1986. A US court in Hawaii had determined the exemplary and compensatory damages amounting to almost $2 billion or P80 billion.

Just to refresh: The 2014 compensation was from a $10-million settlement over an 1899 Monet painting previously owned by Imelda Marcos and fraudulently sold by her secretary Vilma Bautista. This 2019, the $13.7-million compensation comes from the sale of another set of paintings (from which the Philippine government had to get a cut!).
Separately last year, a compensation package amounting to almost P10 billion returned by the Swiss government, and as provided for under Republic Act No. 10368 (passed and signed during the Aquino presidency), was released by the Philippine government to more than 11,000 claimants. Note that the Swiss government returned the Marcos stash on condition that it would go to human rights violations victims. RA No. 10368 is “an act providing for reparation and recognition of victims of human rights violations during the Marcos regime, documentation of said violations, appropriating funds therefor and for other purposes.”
The processing and distribution of compensation for this separate indemnification of victims (RA No. 10368) are over, but the Memorial Museum, as provided in the law, is still in the planning stage. We will be seeing the winning architectural design soon.
I have witnessed all four distributions, and I have noticed that many claimants’ steps are slower this time than when they came for the first distribution in 2011. Many have since passed on to the Gentle Beyond, activists who were claimed by sickness, aging claimant-parents of those who perished in the night long ago.

Personally handing out the checks these past months until this week and feeling the hands of the class suit members is American lawyer Robert Swift, who led thousands of martial law victims-survivors in winning the class suit against the estate of the late dictator Ferdinand Marcos. Last Tuesday morning, he could not give the checks himself because he was at the “Conversations with Robert Swift” event at the University of the Philippines Law Center.
At the event, Swift detailed the long, tedious human rights litigation process that began in 1986 and ended in triumph in 1995 at a Hawaii court, with Judge Manuel Real presiding. To make a long story short, the final judgment set a $2-billion compensation for human rights abuse victims.
How the case began and progressed is a huge story in itself. The case meant getting the testimonies of victims whose wounds were still fresh when it began. But winning the case was not an end in itself. Searching for the Marcos ill-gotten wealth hidden all over the world was an even bigger hurdle. There were many blocks thrown along the way, some even coming from a competing claimant, the Philippine government itself, and the Marcos family, of course.
If you want to know more about Swift and his quest for justice for the martial law victims and his creative use of legal strategies and research on legal doctrine and long-forgotten statutes, a good read would be https://www.superlawyers.com/pennsylvania/article/swift-justice/53ead9e9-b036-4605-951e-f6326bcd8284.html.
By the way, Swift is also representing the victims of the Holocaust and South Koreans who suffered under the Japanese during World War II. But remember this: Winning the class suit against the Marcos estate is a historic legal first in the world, an unprecedented one that cannot be ignored.

I asked Swift if he was intending to write a book on the historic case that he embarked on on behalf of victims, an instructive page-turner for the delectation of both lawyers and nonlawyers. “Not just yet” was an expected answer, considering that the quest for the Marcos hidden wealth and compensation for victims is far from over.
More on him perhaps another time. #