POSTED: 1:30 a.m. HST, Feb 1, 2011
The recent decision to compensate human rights victims of torture and abuse during the martial law regime in the Philippines is a major breakthrough in the long and complicated litigation against the Marcos estate, which started in the early 1990s.
And it becomes more compelling from Hawaii's perspective because it was here that the unprecedented case began in March 1986 after Marcos's overthrow under two sets of circumstances.
Honolulu attorney Sherry Broder filed a case against Marcos and his daughter Imee Marcos Manotoc on March 20, 1986, on behalf of plaintiff Agapita Trajano for the "wrongful death" of her son, Archie, in the hands of Marcos agents.
The young Trajano reportedly insulted and asked embarrassing questions to Imee Manotoc in a Manila youth rally. He was picked up by the military, thrown in jail, tortured and subsequently murdered.
His mother Agapita fled to Honolulu where Broder took her son's case, eventually winning a judgment of $4.4 million, which was upheld by a higher court. The Trajano family, however, never received a single cent from the award.
At about the same time, another lawyer, Robert Swift of Philadelphia, was putting together a class action suit on behalf of other Marcos torture victims. Broder read about Swift's lawsuit in The New York Times and asked if they could consolidate their lawsuits with other human rights cases filed in Los Angeles and San Francisco. Swift agreed and became the lead counsel and Broder co-counsel representing 10,000 Marcos victims as the "Estate of Ferdinand E. Marcos Human Rights Litigation."
Los Angeles Judge Manuel Real traveled to Honolulu to preside over the trial in a U.S. District Court; Swift's law firm advanced the prohibitive expenses required to demon- strate a pattern of abuse and harassment against the victims, illustrating the rape, beatings, torture, murder and disappearances of about 10,000 Marcos opponents.
After a speedy trial, on Sept. 25, 1992, the Marcos estate was found liable for damages to the torture victims. In February 1994, a jury in Honolulu handed down $1.2 billion in exemplary damages, the largest damages award in the U.S. at that time in a personal injury case. Another judgment in January 1995 awarded an additional $766 million.
Eventually the case would escalate into an endless battle between the two camps involving appeals and counter-appeals. More lawsuits were filed and the lawyers tried to collect damages from the Marcos estate, whose assets were already frozen worldwide.
More claimants to the Marcos estate, like the Philippine government itself, surfaced. Some of the plaintiffs could not agree on terms of the award, even questioning contingency fees that the lawyers would receive. The Philippine government insisted it had a "superior lien" on the money since Marcos plundered the Philippine treasury. And the case dragged on for another 10 years.
Failing to collect a single cent from the Marcos estate, Swift and Broder searched for Marcos properties in the U.S. such as bank accounts and real estate that could be proven to have been purchased with Marcos money. They discovered some but not significant amounts. The breakthrough came with the discovery of properties in Texas and Colorado worth more than $10 million. It's from this sum that the first payments to the victims at $1,000 apiece will be made.
Broder has indicated that she and Swift will be contacting the Philippine Commission on Human Rights for distribution of the money to victims. More than 7,000 have filed a claim; some have died. By no means is this case over; in fact, it's just the beginning. But Broder is hopeful that they can collect more to compensate victims.
It is to the credit of Robert Swift and Sherry Broder, both patient, hardworking and relentless lawyers, that this case has succeeded 25 years after the fact. Given the return of "Baby Doc" Duvalier to Haiti and the overthrow of Tunisian President Zine El Abidine Ben Ali, the Marcos judgment could set off a precedent for trials in those countries, which would result in justice for victims of human rights violations that dictatorships routinely perpetrate with impunity. Hopefully, it would not be as long and convoluted as the Philippine case.