CHICAGO (FAXX/jGLi) – The surviving relatives of Salvador “Bubby” Dacer must have found a reason to cheer following the massacre of 13 people in Atimonan, Quezon in the Philippines during a “rumbush” (rubout/ambush) last Jan. 6 when one of the defendants in the US$120-million civil suit they filed before the United States District Court of Northern California in San Francisco had cropped up as one of the leaders of the botched case operational plan (Coplan) “Armado” — former police Superintendent Glenn G. Dumlao.
Carina Dacer, Sabina Dacer Reyes, Amparo Dacer Henson and Emily Dacer Hungerford have been struggling to serve summons on Dumlao but they have nowhere to send the summon since Dumlao was discharged from the double murder case of their father, Bubby Dacer, and Dacer’s driver Emmanuel Corbito.
They were only able to serve summons on Dumlao’s former superior officer and co-accused Michael Ray Aquino, who is in custody of the National Bureau of Investigation.
As a result, only Mr. Aquino will be tried before U.S. District Judge William Alsup of the Northern District of California on Jan. 28.
During the Christmas season, there was a news report that the double murder case against Aquino was dismissed by a Manila regional trial court after the court granted the request of Aquino for demurrer of evidence.
But Justice Secretary Leila de Lima announced the filing of motion of reconsideration for the dismissal of the charges against Aquino before the Court of Appeals.
Dacer’s lawyer U.S.-based lawyer Rodel Rodis told this reporter in an email that if Aquino does not show up during the trial next Monday, “the trial proceeds without him.”
Aquino’s co-accused in the case former President and Manila Mayoral Candidate Joseph Ejercito Estrada, Sen. Panfilo M. Lacson, former head of the Philippine Amusement and Gaming Corp. (Pagcor) Reynaldo “Butch” Tenorio, former Best World Resources CEO Dante Ang and Aquino’s subordinate, Vicente Arnado, could not be served summons. This prompted Judge Alsup to dismiss the civil case against them “without prejudice for lack of service,” meaning the case can be revived against them in the future.
This left Aquino and Dumlao as the only defendants in the case based on Alien Tort Claims Act (ATCA) (28 U.S.C. 1350) and the Torture Victim Protection Act (TVPA) (28 U.S.C 1350). They are “believed responsible for the torture and death of their father, Salvador Dacer, in the Philippines.”
Process servers were scared to serve summons on former President Estrada and Senator Lacson for fear of being killed.
There is, however, a likelihood that summons can be served on Colonel Dumlao, who will be investigated by the NBI for his role in the murders of 13 people believed to be either victims of “rubout” or “ambush” (rumbush). Dumlao was reported to be the case supervisor of Coplan Armado.
INVOLVES POLITICAL TORTURE & KILLINGS
In a previous ruling, Judge 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.”
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.
“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
While plaintiffs led by lawyer 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 ATCA, 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.