By JOSEPH G. LARIOSA

(© 2011 Journal Group Link International)

C HICAGO (jGLi) – Judge William Alsup of the United States District Court of Northern California in San Francisco has dismissed “without prejudice” the motion to dismiss filed by Michael Ray B. Aquino, who said the plaintiffs should have exhausted remedies first in the Philippines before filing the $120-million civil suit in San Francisco court against him and several others, including former Philippine President Joseph Estrada, Sen. Panfilo M. Lacson, Aquino’s subordinate officer Glenn G. Dumlao, former Pagcor big boss Reynaldo Tenorio and businessman Dante Tan.

At the same time, Judge Alsup ordered Aquino to file an answer to the complaint by Sept. 9 but kept intact the case management conference of the case at 11 a.m. on Sept. 1.

In a three-page order, Alsup said, “Where claims are brought under the Alien Tort Claims Act, the defendant bears the burden to plead and justify an exhaustion requirement, including the availability of local remedies.”

Instead of “pleading exhaustion as an affirmative defense in an answer to the complaint, he (Aquino) raised the issue in a motion to dismiss the complaint. This procedural approach is improper,” Judge Alsup said.

Only after Aquino files an answer to the complaint, raising exhaustion as an affirmative defense and after both sides have an opportunity to develop the evidence needed to prove and rebut the exhaustion defense may then file a motion for summary judgment on that issue, Alsup ruled.

TORTURED AND KILLED

T he $120-million civil suit was filed by the heirs of Salvador “Buddy” Dacer, who was abducted, tortured and killed on Nov. 24, 2000, in the Philippines, before the U.S. court under the Alien Tort Claims Act and the Torture Victims Protection Act against Mr. Aquino and other “individuals they believe are responsible for their father’s torture and death.”

According Judge Alsup’s order, “Dacer’s death was orchestrated by high-ranking members of the Joseph Ejercito Estrada administration, who perceived Dacer as a threat to their political power.”

The plaintiffs are all residents of the U.S. with plaintiff Emily Dacer-Hungerford, a U.S. citizen, while her three other siblings are lawful U.S. permanent residents.

In his opposition to Aquino’s motion to dismiss, Rodel E. Rodis, counsel for the Dacer children, said the plaintiffs filed the “civil action in the federal district court in San Francisco on Sept. 16, 2010, before the 10-year statute of limitations would run out on Nov. 24, 2010.”

Mr. Rodis said he is submitting as first exhibit the Motion for Reconsideration her plaintiffs filed with regard to the dismissal by the Philippine Court of Appeals of the warrant of arrest of Defendant Panfilo Lacson.

He said the exhibit “details the convoluted nonsensical arguments that the Court of Appeals employed to dismiss the warrant of arrest against Lacson and the subsequent refusal of the Office of the Solicitor General (OSG) to pursue the appeal of the CA’s dismissal of the warrant of arrest against Lacson.”

PROOFS DACERS CANNOT OBTAIN JUSTICE IN THE PHILIPPINES

He said he is also submitting the second exhibit submitted by Defendant Aquino on the decision of the “Philippine Supreme Court to dismiss the appeal of the plaintiffs because the Office of the Solicitor General did not join in the appeal and it (OSG) is considered by the Supreme Court to be the 'real party in interest,' not the plaintiffs, whose father was abducted, tortured and executed by these defendants.”

Atty. Rodis said, “The exhibits submitted by Defendant Aquino are in fact proof that the Plaintiffs cannot obtain justice in the Philippines and that their only hope of obtaining justice is in a U.S. federal court.

“Forum non conveniens would not apply (in this civil case) if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all.”

Aside from Salvador Dacer, the other abducted and killed with Dacer was Dacer's driver, Emmanuel Corbito.

A double murder case was the basis of the Philippine government to file an extradition request against Mr. Aquino, who was one of three senior police officers, including Cezar O. Mancao and Glenn G. Dumlao, who fled from the Philippines, and came to the U.S. when a new government was taking over and was likely to prosecute them for the murders.

Aquino was in New Jersey jail when the $120-million civil suit was filed against him and several others.

In opposing the civil suit against him, Aquino told the U.S. District Court that civil action against him should be dismissed because the plaintiffs “did not reserve their right to institute a separate civil action” “before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation,” citing the Rules of Court of the Philippines (Part III Criminal Procedure Rule lll, Section 1).

Aquino said when the Plaintiffs “did not reserve their right to institute a separate civil action, the civil action is deemed instituted along with the criminal action.”

Before he could be deported to the Philippines, Aquino filed a motion to dismiss on May 26, 2011. # # #

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