By JOSEPH G. LARIOSA

(© 2011 Journal Group Link International)

C HICAGO (jGLi) – The surviving relatives of slain Filipino publicist Salvador “Bubby” Dacer told Judge William Alsup of the United States District Court of Northern California in San Francisco in a case management statement that “process servers in the Philippines are afraid to serve (Sen. Panfilo M.) Lacson with the (civil) complaint and summons for fear of being killed.”

The fearsome revelation was enclosed in a five-page order issued by Judge Alsup Dec. 7, denying the motion for summary judgment filed by Lacson’s former subordinate, jailed former police Superintendent Michael Ray B. Aquino on the US$120-million civil suit filed against, Aquino, Lacson, former Philippine President Joseph Estrada, another Lacson’s subordinate, former police Superintendent Glenn G. Dumlao, former Pagcor big boss Reynaldo “Butch” Tenorio and businessman Dante Tan.

Alsup said, “In this action involving political torture and killings in the Philippines, defendant (Aquino) moves for summary judgment based on a failure to exhaust local remedies. For the following reasons, this motion is denied and the hearing set for December 15 is vacated.”

Judge Alsup set the date of trial of Aquino on Jan. 28, 2013.

Dacer’s survivors – daughters Carina Dacer, Sabina Dacer-Reyes, Amparo Dacer-Henson and Emily Dacer-Hungerford – brought the civil action based on Alien Tort Claims Act (ATCA) (28 U.S.C. 1350) and the Torture Victim Protection Act (TVPA) (28 U.S.C 1350) “against the seven individuals they believed were responsible for the torture and death of their father, Salvador Dacer, in the Philippines.”

The order said, “On Jan. 20, 2001, defendant Estrada resigned the presidency in favor of then Vice-President Gloria Arroyo who was sworn in as the country’s President the following day. President Arroyo directed her Department of Justice to investigate the abduction and murder of Salvador Dacer.

LACSON TOLD AQUINO TO ESCAPE TO UNITED STATES

“In May 2001, Lacson won a seat in the Philippine Senate. Shortly after winning the seat, Lacson learned of the pending murder investigation and told Aquino to escape to the United States. Aquino entered the United States in July 2001 on a tourist visa. Arrest warrants in the Philippines were issued for defendants Lacson and Aquino.

“Lacson succeeded in getting the Philippine Court of Appeals to dismiss the arrest warrant issued against him. According to plaintiffs’ case management statement, process servers in the Philippines are afraid to serve Lacson with the complaint and summons for fear of being killed.”

The order added that in September 2005, Aquino was arrested in the United States for illegal possession of classified government documents. He pled guilty and was sentenced to 76 months in prison.

Subsequently, Aquino was extradited to the Philippines, where he was arrested on June 26, 2011 for the murder of Salvador Dacer. The criminal case against Aquino is pending in the Philippines.

The order said when Aquino moved for summary judgment based on a failure to exhaust remedies in the Philippines, the factual record for Aquino’s motion “is woefully lacking.” Aquino submitted one document with his brief – the opinion in an unrelated case in the Philippines.

AQUINO BEARS BURDEN OF JUSTIFYING EXHAUSTION REQUIREMENT

W hile plaintiffs led by Atty. Rodel Rodis did not submit any declarations or documents with their response, Aquino submitted an additional document with his reply brief – the transcript of a criminal court proceeding against him in Manila.

Judge Alsup said that “summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

He added the court need consider only the cited materials, but it may consider other materials in the record.

“Where extrinsic evidence is still required, and that evidence is either not available to the district court or nonmoving party has not been afforded time for reasonable discovery, the court can deny a motion for summary judgment as premature. “An issue is “genuine” only if there is sufficient evidence for a reasonable fact-finder to find for the non-moving party, and “material” only if the fact may affect the outcome of the case. All reasonable inferences, however, must be drawn in the light most favorable to the non-moving party.”

When claims are brought under the TVPA and ATCA, the defendant (Aquino) bears the burden to plead and justify an exhaustion requirement, including the availability of local remedies.

Although the plaintiff may rebut this showing with a demonstration of the futility of exhaustion, the ultimate burden remains with the defendant.

While exhaustion is a statutory requirement for claims under the TVPA, it is only a prudential requirement for claims under the ATCA, Alsup said. To prevail on a defense of exhaustion for claims under the ACTA, defendant must first show that exhaustion is required. Exhaustion may be required if the action lacks a significant nexus to the United States or does not pertain to an offense of universal concern.

Alsup said the civil case has a nexus to the United States as all the plaintiffs are all residents of the United States. One plaintiff is a U. S. citizen. Defendant Aquino lived in the United States for years and was found guilty of illegally possessing classified government documents. The alleged conduct involves torture and murder for political ends. The gravity of these allegations and the potential violation of international law makes this matter a universal concern.

Aquino only makes conclusory allegations that exhaustion should apply and submits no evidence on this issue. He has not met his burden to show that exhaustion is required for plaintiffs’ claims under the ATCA. Motion for summary judgment on plaintiffs’ claims under the ATCA is denied. # # #

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