US jurisprudence affects us

YEARLY, THE UNITED STATES SUPREME COURT (USSC) churns out about 80 to 100 judgments that affect not only Americans but, often, also the rest of the world, including the Philippines. Composed of nine justices, the USSC begins its sessions in October and ends them in June. Appeals to the USSC come from the 50 state Supreme Courts and the various circuits of the US Court of Appeals. Only about one percent of these appeals is accepted by the USSC. The rest are deemed rejected. Several recent USSC decisions affect us.

Human rights victims. Of direct relevance to Filipinos is “Republic of the Philippines vs Pimentel” (June 12, 2008) which rejected a bid of Filipino human rights victims to attach the $35 million deposit of Arelma in Merrill Lynch, an investment bank based in New York. Arelma is “a company incorporated by Ferdinand Marcos” while he was president. Arelma’s initial deposit of $2 million in 1972 grew to $35 million by the year 2000.

Here, the USSC reversed an earlier US Court of Appeals (9th circuit) decision that authorized the victims to seize the deposit to satisfy a final judgment (penned by Judge Manuel Real) of the US District Court in Hawaii awarding them $2 billion in damages against Marcos. The USSC held that, being entitled to “sovereign immunity,” the Philippines could not be sued without its consent.

It added that the Philippine claim over the Marcos deposit was “not frivolous” because its petition to declare the deposit “ill-gotten” and to forfeit it in its favor was still pending in the Sandiganbayan. The USSC ruled that “(t)he dignity of a foreign state is not enhanced if other nations bypass its courts without right or good cause. Furthermore, combating public corruption is a significant international policy, manifested in treaties providing for international cooperation in recovering forfeited assets.”

This quote is significant because Justice Anthony Kennedy, the writer of the USSC decision, knows of our judiciary’s independence and integrity. At our invitation, he (and USSC Justice Stephen Breyer) participated via teleconferencing during the International Conference and Showcase on Judicial Reforms held here on Nov. 28-30, 2005, and (together with US Court of Appeals Judge Clifford Wallace) in the Global Forum on Liberty and Prosperity held on Oct. 18-20, 2006.

Temporary triumph. However, this is not a final victory for the Republic because the $35 million remained with Merrill Lynch. Should there be a final Philippine court decision forfeiting the Arelma assets to it, the Republic may have to sue in the US courts to enforce the final Philippine judgment.

The new suit is needed because foreign judgments cannot be automatically enforced in the United States. Once it files suit, the Republic would be waiving its “sovereign immunity.” Thus, the human rights victims may have a fresh opportunity to press their claim against the Arelma account since the “sovereign immunity” defense would no longer block them.

Incidentally, the Marcos deposits in Swiss banks did not have to go through this circuitous US judicial route. At the request of then Chairman Jovito R. Salonga of the Presidential Commission on Good Government, the Swiss government froze these assets. In 1990, the Swiss Federal Supreme Court upheld the freeze.

Then, the $658 million frozen deposits were transferred in escrow to the Philippine National Bank that later turned them over to the Philippine government in compliance with our Supreme Court decision, penned by Justice Renato C. Corona, in “Republic vs. Sandiganbayan and Marcos” (July 15, 2003).

Gunless society. Another US case that is of great interest to us is “District of Columbia vs Heller” (June 26, 2008). In a 5-4 decision, the USSC held that the right to bear firearms is an individual right guaranteed by the US Constitution. This decision settled one of the most contentious topics during the last 217 years of American constitutional history.

The Second Amendment to the US Constitution states: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Who can own a gun under this odd phraseology and punctuation, only members of the militia or anyone?

Speaking for the majority, Justice Antonin Scalia wrote, “Undoubtedly, some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

This decision may be bad news for the Gunless Society in America but not in the Philippines. Our Supreme Court, in “Chavez vs Romulo” (June 9, 2004), ruled that the right to bear arms does not find constitutional basis. Declared our high court through Justice Angelina Sandoval-Gutierrez: “An examination of the historical background of the (Second Amendment) shows that it pertains to the citizens’ collective right to take arms in defense of the State, not to the citizens’ individual right to own and possess arms.”

Because this recent USSC decision contradicted our high court, do pro-gun advocates have a reason to rejoice? Will our Supreme Court reverse itself and ape the USSC? I do not think so. After all, our Constitution does not contain any provision similar to the Second Amendment.

(To be continued)

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