Wednesday, December 29, 2004
Philippines Cannot Appeal Marcos Settlement, Ninth Circuit Says
By KENNETH OFGANG, Staff Writer/Appellate Courts
The government of the Philippines cannot appeal orders approving and implementing a settlement between the estate of dictator Ferdinand Marcos and victims of human rights abuses by his regime, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Judge Susan Graber, writing for the panel, said the Philippines lacks standing because it is not a party to the underlying litigation and does not hold estate assets subject to distribution under the post-settlement order entered by U.S. District Judge Manuel Real.
Real, the senior active member of the U.S. District Court for the Central District of California, has heard all Marcos-related federal litigation since 1991 by appointment of the federal Panel on Multidistrict Litigation.
The plaintiff class of nearly 10,000 persons won a $1.964 billion judgment in 1995 for human rights violations attributed to Marcos, including torture, summary executions, and kidnappings.
A 1999 settlement, under which $150 million would have been transferred from the estate’s reported $590 million in Swiss bank accounts as full satisfaction of the judgment, was vacated by Real after the Swiss courts deferred to a ruling of the Sandiganbanyan, a special court in the Philippines, requiring that the money be placed in escrow with the Philippine National Bank.
Last year, however, following a ruling by the Supreme Court of the Philippines declaring assets of the estate forfeited to the government, Real reinstated the 1999 settlement and adopted an Order Directing Compliance, barring banks in Switzerland and Singapore—where some assets were transferred from Switzerland—from distributing assets to anyone other than the plaintiffs.
In its appeal, the government of the Philippines argued that the orders violate prior Ninth Circuit rulings, the Foreign Sovereign Immunities Act, and the act-of-state doctrine.
But Graber, in her opinion yesterday, said the Philippines had not shown that it fits within the narrow rule allowing non-parties to appeal under exceptional circumstances.
Ninth Circuit precedent, the judge explained, permits an appeal by a nonparty only if the appellant participated in the underlying litigation in some way, and if the balance of equities favors allowing the appeal.
The government’s appeal of the order reinstating the settlement is “perplexing,” Graber wrote, because it has insisted all along that it is not bound by the agreement. The Philippines can hardly argue that equity requires allowing it to appeal an order that imposes no burden on it and that it insists it is not bound by, the judge said.
Graber also rejected the Philippines’ contention that it should be allowed to appeal the compliance order because it potentially could be held in contempt of the part of the order barring transfer of estate assets by “[a]ny and all persons and banking institutions.” Since the Philippines is neither a person nor a banking institution, it cannot be held in contempt, the appellate jurist wrote.
The case is Hilao v. Estate of Marcos, 03-16934.
Copyright 2004, Metropolitan News Company