Articles: Law, Truth and Justice

Law, Truth and Justice

By: Leon L. Asa



Do not equate the law which is but the tool, with justice that is the ultimate goal.

Justice J.B.L. Reyes

Law and Justice are inseparable.

Senior Justice Isagani A. Cruz

Law, truth, and justice are inseparable. In litigation, the facts are established from the evidence adduced by the parties; the pertinent provision of the law is applied or interpreted; and after judicious consideration of the facts and the law, judgment is rendered.

The judgment represents the justice in the case. If the judgment is in consonance with the law and established facts, there is justice; if it is in derogation of the law and established facts, there is injustice.

Law defined

Law “in its specific and concrete sense is a rule of conduct, just, obligatory, formulated by legitimate power for common observance and benefit” (Lapitan vs. Philippine Charity Sweepstakes Office, 60 O.G. 6841).

St. Thomas Aquinas in his Summa Theologica said law is “a certain rule of reason for the purpose of the common good, laid down by him who is entrusted with the welfare of the community and promulgated.”

Cicero, the great Roman jurist-writer-philosopher, said: “Law is the highest reason implanted in nature, which commands what ought to be done and forbids the opposite” (De Legibus, I, vi).
Mr. Justice Oliver Wendell Holmes said: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” (Path of the Law, 10 Harvard Law Review, 457, 460 [1897]).

In this article, law is that which is enacted by the legislature, applied or interpreted by the courts, and enforced by the executive.

Publication of the law;
ignorance of the law

Article 2 of the New Civil Code provides that “laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided.”
Article 2 of the same Code provides that “ignorance of the law excuses no one from compliance therewith.”

The publication of mandatory and prohibitory laws is essential for the citizens to know their rights, duties, and obligations under the law. Without its publication, the citizens can rightfully plead ignorance of the law.

The maxim Ignorantia legis neminem excusat (ignorance of the law excuses no one) cannot be invoked by the citizen affected by the law after such law has been duly published and has taken effect. With its publication and effectivity, the citizens are presumed to know the law.

Nobody can escape its effects by alleging that he does not know its provisions. John Selden wrote: Ignorance of the law excuses no man: not that all men know the law, but because ‘its an excuse every man will plead, and no man can tell how to confute him. (Oxford Concise Dictionary of PRO-VERBS, Second Edition, p. 135.)

Truth

Truth or veritas is conformity to reality. It is the antithesis of falsity or error.
Truth is essential to justice for without truth there can be no justice. Truth is the foundation of justice; it is justice in action.

Mr. Justice Benjamin N. Cardozo said:
The half truths of one generation tend at times to perpetuate themselves in the law as the whole truths of another, when constant repetition brings it about that qualifications, taken once for granted, are disregarded or forgotten.

Lord Coke stated, “truth is the mother of justice.” Francis Bacon immortalized Pilate’s question to Christ when he wrote, “What is truth? said jesting Pilate; and would not stay for an answer.”
In this article, truth is synony-mous to established facts.

In his book Fountain of Justice (A Study in the Natural Law), Chief Justice John C. H. Wu carefully observed: The first requisite of a just judgment is that it must be based upon the facts. In fact, the popular notion of justice is inseparably bound up with truth.

Our imagination is excited and our hearts cheered up, whenever we observe that the truth is found out in a puzzling case. Solomon was called a wise man and a just judge mainly because of his ability to find the real facts. Nothing is so agonizing as to see an innocent person condemned; it is only a little less agonizing to see a murderer go free.

For justice is owed not only to the accused, but also to the victim of another’s crime. (Wu, Fountain of Justice, p. 241.) (Emphasis supplied.)

The wisdom of King Solomon and his ability to seek out the truth was clearly demonstrated in the famous case of two women who both claimed to be the mother of the living child.

The Holy Bible narrates: two women who were harlots came to the king, and stood before him.
And one woman said, “O my lord, this woman and I dwell in the same house; and I gave birth while she was in the house. “Then it happened, the third day after I had given birth, that this woman also gave birth. And we were together; there was no one with us in the house, except the two of us in the house. “And this woman’s son died in the night, because she lay on him.

“So she arose in the middle of the night and took my son from my side, while your maidservant slept, and laid him in her bosom, and laid her dead child in my bosom. “And when I rose in the morning to nurse my son, there he was, dead. But when I had examined him in the morning, indeed, he was not my son whom I had borne.” Then the other woman said, “No! But the living one is my son, and the dead one is your son.” And the first woman said, “No! But your son is the dead one, and my son is the living one.”

Then the king said, “Bring me a sword.” So they brought a sword before the king. And the king said, “Divide the living child in two, and give half to one, and half to the other.” Then the woman whose son was living spoke to the king, for she yearned with compassion for her son; and she said, “O my lord, give her the living child, and by no means kill him!” But the other said, “Let him be neither mine nor yours, but divide him.”

So the king answered and said, “Give the first woman the living child, and by no means kill him; she is his mother.”

And all Israel heard of the judgment which the king had rendered; and they feared the king, for they saw that the wisdom of God was in him to administer justice. (The New King James Version, 1 Kings 3:16-27.)

Trial of a case is not a
gladiatorial combat

Judge Horace Stern said:

I have never thought that the trial of a case should be in the nature of a gladiatorial combat, but rather that it should consist of a scientific investigation for the determination of the truth conducted as though in a laboratory, the judge being the general director of that investigation and the lawyers his helpful assistants. Under such circumstances suppres-sion of the truth is quite as reprehensible as an actual misstatement of facts.

Truth is the most difficult to ascertain because judges cannot fathom the recesses of the conscience of witnesses and cannot divine which of the conflicting testimonies is the truth. Furthermore, there are facts which are incredible but true. In the search for truth judges can only apply the rules of evidence, logic and human experience which, though useful, are not infallible guides.

Justice

“Justice is the constant and perpetual will to allot to every man his due” (ULPIAN, Digest [Justinian] i, I, 10).

According to Daniel Webster, “justice is the greatest interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. . . .” (Funeral Oration on Mr. Justice Story, 12 September 1845.)

Justice is symbolized by blindfolded Lady Justice holding a scale with one hand and a sword with the other. The blindfold represents the impartiality with which justice must conduct itself in all controversies – regardless of the parties involved therein. The sword indicates the sanction or punish-ment that may be meted out to the guilty party.

The administration of justice should not be undertaken with mechanical rigidity but must carefully consider and weigh the conditions or equities obtaining in each case.

Since justice must be tempered with mercy, the woman emphasizes the necessity of understanding and kindness. The scale or balance which she holds suggests that justice undertakes to maintain equilibrium or fairness of judgment.
The paramount aim of the law is to establish justice.

Law is but the tool and justice is the ultimate goal, according to Mr. Justice J.B.L. Reyes.
Don Vicente J. Francisco stated that justice is an indispensable element of law in its whole-some state or condition, in the same manner that reason and conscience and free will are essential parts of the normal nature of man.

Law stripped of the element of justice is nothing more than the com-mand of the sovereign, fitting the definition of it by Tolstoy as ‘Rules established by men who have control of organized power and which are enforced by the lash, prison, and even murder.’ Rule of law and rule of sheer might cannot by any means be equated with each other. (The Rule of Law and the Judiciary in the Philippines, a Paper submitted by Don Vicente J. Francisco as Philippine Delegate to the International Congress of Jurists, Committee No. 4-Judiciary, in New Delhi, India on 07 January 1959.)


Our courts apply or interpret the law. If the law is clear, courts simply apply the law.
The first and fundamental duty of the court is the appli-cation of the law according to its express terms, inter-pretation being called for only when such literal application is impossible. (Gonzaga vs. Court of Appeals, 51 SCRA 381.)

If the law is ambiguous and its literal application would result in clear injustice, the courts will look into the spirit of the law to serve the ends of justice. In this instance, courts adopt a liberal and reasonable interpretation of the law to avoid injustice or absurdity.

Mr. Justice George A. Malcolm underscores the spirit of the law over its letter:
If we must choose between a strict and literal interpretation of the law and a liberal and reasonable interpretation of the law, if we must choose between the letter of the law which killeth and the spirit of the law which giveth life, can any one doubt what our decision will be? (Ysip vs. Municipal Council of Cabiao, 43 Phil. 251.)

It is well settled that our courts are “courts of law and equity.” A court of equity is sometimes called a “court of conscience” (Zamboanga General Utilities Inc. vs. Tore, CV-69963, 30 July 1985 cited in Moreno, Philippine Law Dictionary, Third Edition, p. 224).
The Philippine Law Dictionary defines equity as follows:

EQUITY – As a complement of legal jurisdiction, that which seeks to reach and do complete justice where courts of law, through the inflexibility of their rules and want of power to adapt their judgments to the special circumstances of cases, are incompetent so to do.

Equity regards the spirit and not the letter, the intent and not the form, the substance rather than the circumstance, as it is variously expressed by different courts. (Air Manila Inc. v. Court of Industrial Relations, L-39742, 09 June 1978; 83 SCRA 589.) (Emphasis supplied.)

In the celebrated case of Aytona vs. Castillo (4 SCRA 1, 11), the Supreme Court, in considering the equity of the case, said: “Needless to say, there are instances wherein not only strict legality, but also fairness, justice and righteousness should be taken into account.”

Equity is resorted to in order to temper the harshness of the law.

Chief Justice Lord Mansfield aptly observed: If courts of law will adhere to the mere letter of law, the great men who preside in Chancery will ever devise new ways to creep out of the lines of the law, and temper with equity. (Doe d. Perrin v. Blake, 1 Coll. Jurid. 283, 321.)
In the leading case of Alonzo vs. Intermediate Court of Appeals, (150 SCRA 259, 28 May 1987), Senior Justice Isagani A. Cruz who penned the decision aptly said that the law should never be interpreted in such a way as to cause injustice but to reflect the will of the legislature so that justice may be done. He declared:

But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker.

Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never be within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice.

Thus, we interpret and apply the law not independently but in consonance with justice. Law and justice are insepa-rable, and we must keep them so.

To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar cir-cumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. “Courts are apt to err by sticking too closely to the words of a law,” so we are warned, by Justice Holmes again, “where these words import a policy that goes beyond them.” While we admittedly may not legislate, we nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature.

While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to “the letter that killeth” but to “the spirit that vivifieth,” to give effect to the lawmaker’s will.

In case of conflict between the letter and spirit of the law, the latter prevails in order to serve the ends of justice – that no man should profit from his own iniquity. The following famous case is a clear illustration of this principle of justice.

Chief Justice John C. H. Wu wrote:

One of the greatest decisions in American jurispru-dence was rendered by the New York Court of Appeals in 1889 (Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188). It was an ugly case, but a beautiful decision. Palmer had made a will bequeathing his estate to his grandson.

Some time later, the testator manifested some intention to revoke it. In order to prevent him from revoking the bequest, and to obtain speedy enjoyment and immediate possession of his property, the grandson, then a boy 16 years of age, murdered him by poisoning.

He was found guilty of murder and sent to jail. But the question in the instant case was, could he inherit the property bequested to him? His argument is that the testator is dead, that his will was made in due form, and has been admitted to probate, and that therefore it must have effect according to the letter of the law.

Judge Earl, speaking for the Court, conceded that the case did fall within the letter of the law, and that “It was the intention of the lawmakers that the donees in a will should have the property given to them.” “But,” he continued, “it could never have been their intention that a donee who murdered the testator to make the will operative should have any benefit under it.”

I am happy to find that Mr. Justice Cardozo, whom many have come to regard as the greatest judge of this century, had the highest admiration for the decision of Riggs v. Palmer. Commenting upon it, he said, “Conflicting principles were there in competition for mastery. One of them prevailed, and vanquished all the others.

There was the principle of the binding effect of a will disposing of the estate of a testator in conformity with law. The principle pushed to the limit of its logic, seemed to uphold the title of the murderer.

There was the principle that civil courts may not add to the pains and penalties of crimes. That, pushed to the limit of its logic, seemed again to uphold his title. But over against these was another principle, of greater generality, its roots deeply fastened in universal sentiments of justice, the principle that no man should profit from his own inequity or take advantage of his own wrong.

The logic of this principle prevailed over the logic of others. . . . The judicial process is there in microcosm. (Wu, Fountain of Justice, pp. 176 and 177.) (Emphasis supplied.)

Truth and justice should prevail over technicalities The rules of procedure and evidence are but tools to ascertain the truth which is the basis of justice. Technicalities should never be resorted to suppress or hide the truth. Suppression of the truth is deplorable because it leads to injustice.
In the memorable words of Justice Moreland in the famous case of Alonso vs. Villamor (16 Phil. 315, 321-322), a litigation is defined as follows: . . . a contest in which each contending party fully and fairly lays before the court the facts in issue and then, brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done upon the merits.

Lawsuits, unlike duels, are not to be won by a rapier’s thrust. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts. There should be no vested rights in technicalities. (Emphasis supplied.)

In Berkenkotter vs. Court of Appeals (53 SCRA 228), the Supreme Court held the following:
Although there is no vested right in technicalities, in meritorious cases, a liberal (not literal) interpretation of the rules becomes imperative and technicalities should not be resorted to in derogation of the intent and purpose of the rules – the proper and just determination of a litigation.

Conclusion

Courts are tasked to apply or interpret the law, to establish the truth, and to render justice. Learning and dedication are required of the judge to attain substantial justice.

It is true, indeed, that on account of the imperfections incident to human nature perfect truth may not always be attained, and it is well understood that exact justice cannot, because of the inability of courts to obtain truth in entire fullness, be always administered. We are often compelled to accept approxi-mate justice as the best that courts can do in the admi-nistration of the law. But, while the law is satisfied with approximate justice where exact justice cannot be attained, the courts should recognize no rules which stop at the first when the second is in reach. (Beck, J., Schroeder v C., R.I. & P.R. Co., 47 Iowa 375, 379 [1877].)

Daniel Webster, the great American advocate and orator, said: Justice, Sir, is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. Wherever her temple stands, and so long as it is duly honored, there is a foundation for social security, general happiness and the improvement and progress of our race. And whoever labors on this edifice with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself, in name and fame and character, with that which is and must be as durable as the frame of human society. (Funeral Oration on Mr. Justice Story, 12 September 1845 cited in M. Frances McNamara, 2,000 Famous Legal Quotations,

Articles: Filipino Human Rights Victims

Filipino Human Rights Victims:

U.S. Court of Appeals Applies
“Equity and Good Conscience”
Against the Philippine Government

by
Manuel J. Laserna Jr. *



Introduction

In the very recent decision of the US 9th Circuit Court of Appeals promul-gated on May 4, 2006 involving the multi-billion peso money claim of the human rights victims of the infamous martial-law regime of the late Philippine Pres. Ferdinand Marcos, entitled of “MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC. vs. ENC CORPORATION, et. al.”, with companion cases, docketed as Case Nos. 04-16401, etc. (consolidated), the US 9th Circuit Court of Appeals affirmed the judgment of the federal district court of Hawaii awarding US $35 Million to the Class of Human Rights Victims of the regime of Pres. Marcos.

The amount represented the value of shares of stock in Arelma S.A., a shell Panamian corporation owned by Marcos.

The Philippine National Bank “held in escrow” the shares of Arelma under separate decisions of the Supreme Courts of Switzerland and the Philippines.

Merill Lynch Pierce Fenner and Smith, Inc. (Merill Lynch) was “the custodian of the assets of Arelma”.

The decision of the US 9th Circuit Court of Appeals also held that the Republic of the Philippines and the Presidential Commission on Good Government (PCGG), which likewise claimed the aforementioned amount, were “not indispensable parties under Rule 19 (b) of the US Federal Rules of Civil Procedure”.

Parties and Proceedings

Interpleader was begun on September 21, 2000 by Merrill Lynch, the custodian of the assets of Arelma, S.A. (Arelma), now amounting to approximately $35 million. The Merrill Lynch account was found by the district court to have been established in 1992 by a deposit of $2 million by Pres. Marcos.

The Republic was made a defendant in the interpleader and successfully asserted its sovereign immunity. (In re Republic of the Philippines, 309 F.3d 1143, 1149-52, 9th Cir., 2002).
The Republic now maintains that it is an indispensable party inasmuch as “the Arelma assets were acquired by Marcos illegally and never lawfully belonged to him but from the beginning of his acquisition belonged to the Republic”. (cf. R.A. No. 1379, s. 1955, “An Act Declaring Forfeiture in Favor of the State of Any Property Found to Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the Proceeding Therefor”).

In the 2002 appeal to the US 9th Circuit Court of Appeals, it ruled that “the Republic was a necessary party but declined to rule that the Republic was indispensable”. (Republic of the Philippines, 309 F.3d at 1153).

Mariano Pimentel was the representative of 9,539 persons who brought suit against Pres. Marcos after his fall from power. In 1996 the class of human rights victims won a judgment against the estate of Pres. Marcos of nearly $2 Billion. (In re Estate of Ferdinand E. Marcos Human Rights Litigation, 103 F.3d 767 [9th Cir. 1996]).

The US 9th Circuit Court of Appeals stated: “This class, composed of victims of a rough and rapacious ruler (Pres. Marcos), who often exercised arbitrary power, is a group whose sufferings naturally evoke sympathy”.

The district court awarded all the Arelma assets to them.
Both Arelma and the Philippine National Bank, the escrow holder of its stock, contended that “Arelma was an indispensable party and that the district court lacked jurisdiction over Arelma”.

The Estate of Roger Roxas and the Golden Buddha Corp. also claimed the Arelma assets.
According to the US 9th Circuit Court of Appeals: “The Yamashita Treasure was discovered by Roxas and was stolen from Roxas by Marcos’s men. Roxas was tortured and imprisoned, giving rise to human rights claims valued at $6 million. Roxas formed a corporation to which he assigned his rights in the treasure. The Estate of Roger Roxas and the Corporation won an initial judgment against Imelda Marcos and the Estate of Ferdinand Marcos”. (Roxas v. Marcos, 969 P.2d 1209 [Haw. 1998]).

The Hawaii Supreme Court had “allowed Roxas’ judgment against Imelda Marcos to stand, while holding that the Estate of Ferdinand Marcos could not be bound by that judgment”. (Id. At 1244).

Roxas claimed the Arelma assets “both as a creditor of Marcos and on the basis
that the $2 million used by Marcos to set up the Merrill Lynch account were most probably derived from the Yamashita Treasure and can be traced to the property stolen from Roxas”, the US 9th Circuit Court of Appeals stated.

Analysis by the US 9th Circuit Court of Appeals

[1] The case is governed by Fed. R. Civ. P. 19, according to the Court of Appeals. The first section of the rule speaks of “persons needed for just adjudication.”

The Republic falls within this section because, as the rule puts the matter, the Republic “claims an interest relating to the subject of the action and is so situated that the disposition of the action in [its] absence may (i) as a practical matter impair or impede [its] ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of [its] claimed interest.”

Such a party should be joined to the action. [Rule 19(a)]. The rule goes on to prescribe what a court should do “whenever joinder is not feasible.” In such a case, “the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable.

The factors to be considered by the court include: “first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.” [Rule 19(b)].

[2] The US 9th Circuit Court of Appeals stated that “the Republic is a necessary party in this procee-ding”. That determination meant that “for a just disposition of the assets it is necessary that the Republic participate”.

In ordinary speech, “a necessary party would be an indispensable party”. Rule 19 (b), however, “distinguishes between necessary and indispensable parties”. Rule 19 (b) indicates that “indispensability must meet a higher standard than necessity”.

Indispensability “can only be determined in the context of particular litigation.” [Provident Bank v. Patterson, 390 U.S. 102, 118 (1968)].

In determining indispensability, the US 9th Circuit Court of Appeals applied the criteria supplied by Rule 19 (b) itself: “equity and good conscience”. (Id. at 109). “Only if equity and good conscience require it is a necessary party also indispensable”, the Court of Appeals stated.

The phrase “equity and good conscience” in our judicial usage is coterminous with the first opinions of the United States Supreme Court, according to the US 9th Circuit Court of Appeals, citing Hollingsworth v. Ogle, 1 U.S. 257 (1788). It added: “Undoubtedly in its earlier usage


equity brought to mind a fairness sought by the chancery courts that transcended statutory law and “good conscience” referred to an interior moral arbiter regarded as the voice of God”. [See also: Montana v. Crow Tribe of Indians, 523 U.S. 696, 707 (1998)].

According to the US 9th Circuit Court of Appeals, Rule 19 of the Federal Rules of Civil Procedure emphasizes “the flexibility that a judge may find necessary in order to achieve fairness and the moral weighing that should attend the judge’s choice of solutions, a choice to be marked by “mercy and practicality.” [Hecht v. Bowles, 321 U.S. 321, 329 (1944)].

[3] Applying “equity and good conscience”, the US 9th Circuit Court of Appeals first explained that “the general rule is that a sovereign need not forfeit its immunity to protect its assertion of indispen-sability”. It stated that that “in the usual case of interpleader, the sovereign is immune and indispen-sable and so can cause dismissal of the action”, citing US cases involving Indian tribes entitled to sovereign immunity.

In Makah Indian Tribe v. Verity, 910 F.2d 555 (9th Cir. 1990), the same Court of Appeals held that “where the Makah Indian Tribe sought a reallocation of fishing rights beyond the three-mile limit, any reallocation would affect the rights of 23 other Indian tribes whose sovereign immunity prevented them being made parties”.

In the said case, “prejudice to these tribes was inevitable; no relief could be shaped and no adequate remedy could be given that would remove the prejudice”. US 9th Circuit Court of Appeals continued: “In equity and good conscience, the case had to be dismissed for want of indis-pensable parties”.

The US 9th Circuit Court of Appeals continued: “A fortiori, when the sovereign is a foreign state, prejudice to it is a powerful consi-deration. However, under the guidance of equity and good conscience, it is not the sole consideration”.

[4] The Republic’s right in the United States to reclaim the spoils of office from Marcos has been unquestioned since Republic of the Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988) (en banc). The Republic had set up the PCGG to effect this end. However, according to the US 9th Circuit Court of Appeals, “despite the lapse of 18 years, the Republic has not obtained a judgment” that the ill-gotten wealth of Pres. Marcos belongs to it.

According to the Court, any judgment entered in the action would not bind the Republic because it was not a party to the action, consequently, if the Court would act in the case, “the Republic would remain free to sue for the Arelma assets in a forum of its choice”.

But even if the Republic would pursue its action against Merill Lynch in New York, it would “be confronted with the New York statute of limitations of six years for its underlying claim”. In practical effect, “a judgment in this action will deprive the Republic of the Arelma assets”.
The US 9th Circuit Court of Appeals stated: “It is now eighteen years since the 1988 decision and four years since we stayed this action.


The shares of Arelma have been since 1995 in escrow at the Philippine National Bank. In all this time, the Republic has not obtained a judgment that the assets in dispute belong to it. We do not hold the Republic guilty of laches, but we do note as an equitable conside-ration that its failure to secure a judgment affecting these assets is a factor to be taken into account. Any judgment entered in this action cannot bind the Republic because it is not a party to the action. See Idaho ex rel. Evans v. Oregon, 444 U.S. 380, 386 (1980). Consequently, if we act here, the Republic would remain free to sue for the Arelma assets in a forum of its choice.”

It added: “True, unless it acts with alacrity, the assets may be distributed after judgment here and be beyond recapture. After the assets are distributed, the Republic might seek the equivalent of the assets from their holder, Merrill Lynch, in New York where they were invested. But it would be confronted with the New York statute of limitations of six years for its underlying claim. See Stafford v. International Harvester Co., 668 F.2d 142, 147 (2d Cir. 1981); NY CPLR § 213 (misappropriation of public property).”

It further stated: “Tolling by Marcos’ time in office would not help it. The generous provision for recapture of the assets provided by the new constitution of the Philippines would not trump New York law. In practical effect, a judgment in this action will deprive the Republic of the Arelma assets.”

[5] The US 9th Circuit Court of Appeals noted the presence in the action of “victims of the former president of the Republic”. The class represented by Pimentel had “secured a judgment against Marcos of almost $2 billion, which the assets in dispute will scarcely satisfy”. Nonetheless, according to the Court, “the symbolic significance of some tangible recovery is not to be disregarded, and if the recovery is distributed pro rata among the individuals, it will have monetary meaning for the poor among them”.

The Court rejected the argument that the victims were Filipino citizens and should seek redress from the Philippine Government. It stated: “The counter consideration, that most of the victims are citizens of the Philippines and should find redress from their own government, is outweighed by the fact that the Republic has not taken steps to compensate these persons who suffered outrage from the extra-legal acts of a man who was the president of the Republic.

In good conscience, can we deny some small measure of relief to the class whose members have been found to have been grievously injured and who have the final judgment of a court assessing their wrongs and fixing their remedy?”

As to the late Roger Roxas, the Court held that he “was a victim, too”. His injury “was suffered before the date used to determine the class”. He, too, “has a judgment against Marcos, which resulted in an award of damages that has been affirmed on appeal”. [Roxas v. Marcos, 109 Hawaii 83 (2005)].

The question was: “Should Roxas, an early victim of Marcos, recover more in this action than the victims comprising the class?” (Note: Roxas’s claim that the assets could be traced to the Merrill Lynch account was not accepted by the district court, according to the US 9th Circuit Court of Appeals).

The Court held that “equity could assign him no more than the pro rata share due any class member; it is fair to treat him as entitled to this much and no more”.

[6] As a final consideration, the Court noted that “the res is in the United States”. As such, it could not be finally disposed of “except by the judgment of a court in the United States”.
Guided by existing US Supreme Court doctrines on “how a lawsuit involving assets in dispute would play out in the light of the decision made on interpleader” (Provident Bank, 390 U.S. 102 at 112-117), the US 9th Circuit Court of Appeals studied certain scenarios:
Scenario one: “We dismiss this action. Roxas sues Merrill Lynch in New York for the assets asserting conversion. The Republic inter-venes, asserting its claim.

The New York court holds the Republic barred by the six year statute of limitations. The court rejects the Republic’s appeal to toll the statute when Marcos was in office, because Marcos left in 1986; the court also finds that the post-Marcos consti-tution of the Republic does not affect the New York limitation on actions. Roxas takes the assets to the extent of his judgment”.
Scenario two: “The same, except the successful plaintiff in New York is Pimentel”.

Scenario three: “The plaintiff is the Republic. The Republic is time-barred. Pimental and Roxas inter-vene and obtain their proportionate share of the assets. Realistically, we cannot envisage a lawsuit in which the Republic will prevail”.

[7] The US 9th Circuit Court of Appeals stated: “In terms of the four factors set out by Rule 19(b) as included among those ‘to be considered,’ the Republic will not be prejudiced because it has no practical likelihood of obtaining the Arelma assets and so there is no need of lessening prejudice to it; judgment rendered in its absence will be adequate; if we dismiss the action for nonjoinder of the Republic, Pimentel and Roxas will be required to sue again in New York, a needless repetition that will not benefit the Republic. No injustice is done it if it now loses what it can never effectually possess.”

In fine, the US 9th Circuit Court of Appeals accordingly AFFIRMED the questioned judgment of the federal district court of Hawaii, modified to allot to Roxas a share of the assets no greater than that of any class member.