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Home Community Civil Rights Erap Estrada, Ping Lacson and Co-Respondents Have 21 Days to Respond
Erap Estrada, Ping Lacson and Co-Respondents Have 21 Days to Respond PDF Print E-mail
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Communities - Civil Rights
Sunday, 19 September 2010 12:38

 

By JOSEPH G. LARIOSA

(Journal Group Link International)

  

Ex-President Estrada, Senator Lacson and Co-Respondents Have 21 Days to Respond

 

C HICAGO (jGLi) – Former Philippine President Joseph “Erap” Estrada, Sen. Panfilo “Ping” Lacson and other defendants in the $120-million civil suit were given 21 days to respond after receiving the summons to the lawsuit filed before the United States District Court in Northern California in San Francisco.

 

The summons issued by the Clerk of Court said failure to respond will mean “judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.”

 

United States Magistrate Judge Joseph C. Spero, who was assigned to preside over the case, set for Dec. 17, 2010, the “last day to meet and confer initial disclosures, early settlement, Alternative Dispute Resolution (ADR) and discovery plan.”

 

Spero also set for Dec. 31, 2010, the last day to file “report, complete initial disclosures or objection, report and file Case Management Statement,” and calendar for Jan. 7, 2011 the initial case-management conference of the case courtroom A, 15th Floor, SF at 1:30 p.m.”

 

Last Sept. 16, lawyers for the surviving children of publicist Salvador “Bubby” Dacer filed a 22-page action for compensatory and punitive damages for cruel, inhuman and degrading treatment, torture and extrajudicial killing of Mr. Dacer. They demanded at least $20-million compensatory damages and $100-million punitive damages plus attorney’s fees and costs.

 

Carina Dacer, Sabina Dacer-Reyes, Amparo Dacer-Henson and Emily Dacer-Hungerford named in the damage suit demanding jury trial the following: Messrs. Estrada and Lacson, Reynaldo “Butch” Tenorio, Dante Tan, Michael Ray Aquino, Vicente  Arnado, Glenn Dumlao, individually and in their official capacity, and Does 1-100, inclusive, as defendants.

 

The lawsuit was based on the Alien Tort Claims Act (ACTA) and the Torture Victim Protection Act (TVPA) adopted from an obscure United States Judiciary Act of 1789 that vests “district courts” original jurisdiction on any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

 

UN CAT

 

It is also based on the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, an international human rights instrument, under the review of the United Nations, that aims to prevent torture around the world. This convention was ratified by the Philippines on June 18, 1986, and by the United States on Oct. 21, 1994.


While these laws were used in other countries, they have also been used against the
United States.


Among these was the Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980), a landmark case in United States and international law. It set the precedent for United States federal courts to punish non-American citizens for tortious acts committed outside the United States that were in violation of public international law (the law of nations) or any treaties to which the United States is a party. It thus extends the jurisdiction of
United States courts to tortious acts committed around the world. The case was decided by a panel of judges from the United States Court of Appeals for the Second Circuit consisting of Judges Feinberg, Kaufman and Kearse.


The Filártiga family contended that on
March 29, 1976, their seventeen-year-old son Joelito Filártiga was kidnapped and tortured to death by Américo Norberto Peña Irala. All parties were living in Paraguay at the time, and Peña was the Inspector General of Police in Asunción. Later that same day, police brought Dolly Filártiga (Joelito's sister) to see the body, which evidenced marks of severe torture. The Filártigas claimed that Joelito was tortured in retaliation for the political activities and beliefs of his father, Dr. Joel Filártiga.
 
CASE WENT NOWHERE
 
Dr. Filártiga brought murder charges against Peña and the police in
Paraguay, but the case went nowhere. Subsequently, the Filártigas' attorney was arrested, imprisoned, and threatened with death. He was later allegedly disbarred without just cause.


In 1978, Dolly Filártiga and (separately) Américo Peña came to the
United States. Dolly applied for political asylum, while Peña stayed under a visitor's visa. Dolly learned of Peña's presence and reported it to the Immigration and Naturalization Service, who arrested and deported Peña for staying well past the expiration of his visa.

 

CASE OF WRONGFUL DEATH

 

W hen Peña was taken to the Brooklyn Navy Yard pending deportation, Dolly lodged a civil complaint in U.S. courts, brought forth by the Center for Constitutional Rights, for Joelito's wrongful death by torture, asking for damages in the amount of US$10-million. After an initial district court dismissal citing precedents that limited the function of international law to relations between states, on appeal, the circuit ruled that freedom from torture was guaranteed under customary international law.


The appellants argued that Peña's actions had violated wrongful death statutes, the United Nations Charter, the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, and other customary international law. Petitioner claimed the U.S. courts had jurisdiction to hear the case under the Alien Tort Statute, which grants district courts original jurisdiction to hear tort claims brought by an alien that have been "committed in violation of the law of nations or a treaty of the United States." This case interpreted that statute to grant jurisdiction over claims for torts committed both within the
United States and abroad.

 

JUDGMENT

 

T he U.S. courts eventually ruled in favor of the Filártigas, awarding them roughly $10.4 million. Torture was clearly a violation of the law of nations, and the U.S. did have jurisdiction over the case since the claim was lodged when both parties were inside the United States. Additionally, Peña had sought to dismiss the case based on forum non conveniens (saying that Paraguay was a more convenient location for the trial), but did not succeed.


Another case cited by Dacer children’s lawyer Rodel Rodis were the Wiwa v. Royal Dutch Petroleum, Wiwa v. Anderson, and Wiwa v. Shell Petroleum Development Company brought against the Royal Dutch Petroleum Company and Shell Transport and Trading Company (Royal Dutch/Shell), the head of its Nigerian operation, and Royal Dutch/Shell's Nigerian subsidiary, charging them with complicity in human rights abuses against the Ogoni people in Nigeria.

 

On June 8, 2009, on the eve of trial, the parties in Wiwa v. Shell agreed to a settlement for all three of the lawsuits. The settlement, whose terms are public, provided a total of $15.5 million to compensate the plaintiffs, establish a trust for the benefit of the Ogoni people, and cover some of the legal costs and fees associated with the case

 

STATUS

 

A nother case cited by Atty. Rodis was the Chavez v. Carranza (W.D. Tenn. 2005), where both citizens and non-citizens of the United States may file under the TVPA.

 

On November 18, 2005, a Memphis jury held Colonel Nicolas Carranza—the former Vice-Minister of Defense for El Salvador—liable for crimes against humanity, torture and extrajudicial killing. Carranza was ordered to pay $6 million in damages. The verdict represents the first time that a U.S. jury in a contested case has found a commander liable for crimes against humanity.

Carranza appealed the verdict to the Sixth Circuit Court of Appeals. On
March 17, 2009 the Sixth Circuit upheld the jury verdict. In May 2009, Carranza petitioned for certiorari with the U.S. Supreme Court.  His petition was denied.

 

The TVPA has also been used by victims of torture by agents of the United States. In Meshal v. Higgenbotham, a natural born American citizen alleges U.S. officials repeatedly threatened him with torture, forced disappearance, and other serious harm.

 

Meshal v. Higgenbotham is a U.S. federal lawsuit filed by the American Civil Liberties Union on behalf of Amir Meshal, a natural born citizen of the United States, charging two agents of the Federal Bureau of Investigation (FBI), Chris Higgenbotham and Steve Hersem, and two other unknown U.S. government officials for their roles in subverting Mr. Meshal’s rights under the United States Constitution and the Torture Victim Protection Act of 1991.

 

ALLEGATIONS

 

In January 2007, while fleeing to Kenya after the fighting broke out in the War in Somalia (2006–2009) in December 2006, Meshal was captured by forces of the Combined Joint Task Force - Horn of Africa. In the lawsuit, Meshal alleges he was "interrogated more than thirty times by U.S. officials who failed to adhere to the most elementary requirements of the Fourth and Fifth Amendments and the Torture Victim Protection Act of 1991" and "U.S. officials repeatedly threatened Mr. Meshal with torture, forced disappearance, and other serious harm.” # # #

 

Editor’s Note: To contact the author, please e-mail him at:  (lariosa_jos@sbcglobal.net)

 



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