Maximo Hilao et al versus Estate of Ferdinand E Marcos, 910 F Supp 1460 (D Haw 1995) (No 86-0390)
This is a class suit civil case for damages for torture, summary execution, disappearances and illegal detention of over 9,539 Filipino complainants, filed before the United States courts in April 1986. It was anchored upon the Alien Tort Claims Act (ATCA) of 1789 which statute allowed damage suits against foreign entities who have taken refuge in US soil for crimes committed elsewhere. As the Marcos family had fled to Hawaii upon the victory of the EDSA Revolution, the Federal District Court of Hawaii assumed jurisdiction over their persons. Upon the death of Marcos in 1989, his estate was substituted as defendant.
Jose Maria Sison and Jaime Piopongco also filed separate suits for recovery of damages based on their arrest and torture by Marcos. Their case was dismissed on the basis of the “act of State doctrine” in US district courts but was later reversed in the case of Trajano versus Marcos, 878 F.2d 1439 (9th Cir.1989). Their case was consolidated with the Hilao versus Estate of Marcos class suit at the Hawaii District Court.
In February 1994, a trial on exemplary damages was held; the only additional evidence presented was on the Estate’s assets. The jury returned a verdict of USD 1.2 billion against the Estate; the district court ruled that this was an aggregate award to be divided pro rata among all the plaintiffs, both class and direct.
In January 1995, trials on compensatory damages were held. The class and direct plaintiffs’ claims were tried separately.The jury awarded over USD 750 million in damages to the class plaintiffs, who numbered nearly 10,000. In the compensatory- damage trial for the direct plaintiffs, the district court refused to allow Sison’s claim to go to the jury; the court denied Sison’s motion to reopen to reintroduce his previous testimony and later denied his motion for a new trial. The jury returned a verdict awarding compensatory damages for pain and suffering to all 21 of the direct plaintiffs whose cases were submitted to it. Piopongco was awarded USD 175,000. (http://www1.umn.edu/humanrts/research/Philippines/Hilao%20v%20Marcos,%20%2095-16779.pdf)
The district court instructed the jury that it can find the Estate liable if it found either that (1) Marcos directed, ordered, conspired with, or aided the military in torture, summary execution, and “disappearance” or (2) if Marcos knew of such conduct by the military and failed to use his power to prevent it. The Estate challenges the latter basis for liability, arguing that liability is not imposed under such conditions in analogous U.S. law claims, that “no international law decision has ever imposed liability upon a foreign official” on those grounds, and that the district court essentially made the Estate liable on a respondent superior theory that is inapplicable in intentional torts.
The principle of “command responsibility” that holds a superior responsible for the actions of subordinates appears to be well accepted in U.S. and international law in connection with acts committed in wartime, as the Supreme Court’s opinion in In Re Yamashita indicates:
“The gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of the members of his command by ‘permitting them to commit’ the extensive and widespread atrocities specified. The law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates. Provisions [of international law] plainly imposed on petitioner, who at the time specified was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own military tribunals.
The United States has moved toward recognizing similar “command responsibility” for torture that occurs in peacetime, perhaps because the goal of international law regarding the treatment of noncombatants in wartime – “to protect civilian populations and prisoners from brutality” -is similar to the goal of international human rights law. (http://www1.umn.edu/humanrts/research/Philippines/Hilao%20v%20Marcos,%20%2095-15779.pdf)
Judge Manuel Real made a further finding that beginning as early as 1968, “Ferdinand E. Marcos and Imelda R. Marcos established secret bank accounts under alias names and the use of Liechtenstein foundations in various countries with banking secrecy laws, including Switzerland. Ferdinand and Imelda Marcos engaged in a sophisticated pattern and practice of secreting their assets, periodically laundering those assets in various countries, and re-depositing the monies in Swiss bank accounts in the names of multiple Liechtenstein foundations.”
The verdict restrains the Philippine government and its agents from “directly or indirectly transferring, conveying, encumbering, dissipating, converting, concealing, or otherwise disposing of in any manner any funds, assets, claims of other property or assets owned actually, equitably or beneficially by, or in the possession or custody of or held by or in any way on behalf of or for the benefit of the Estate of Ferdinand E. Marcos.”
The Marcoses appealed but the US Ninth Court of Appeals affirmed its judgment. A final appeal to the Supreme Court lapsed on 18 March 1997, making the ruling final despite Imelda Marcos’ last minute appeal.