A LAWYER of the human-rights violation victims of the Marcos administration on Monday said the victims will appeal the $35-million Arelma case after the New York Appellate Court dismissed their petition because of the Philippine government’s failure to take part in the proceedings.

The money was invested with the fallen New York securities firm Merrill Lynch.

“We’ll definitely appeal the case because the decision is not yet final and executory. We feel that the plaintiffs are entitled to the claim,” lawyer Rod Domingo Jr. said.

The Arelma account is a securities trading account in Merrill Lynch set up by former President Ferdinand Marcos with the assistance of Filipino businessman Jose Yao Campos and Swiss banker Jean Luis Sunier in September 1972.

The $2-million initial deposit Marcos posted to create the account was said to have been taken from one of his Swiss dollar accounts.

The account was put in the name of Arelma Inc., a Panamanian company formed by Sunier to hide the real ownership of the account.

In 1987 a New York federal court, ruling in favor of the Philippine government, froze the Arelma account at Merrill Lynch.

The Swiss Federal Supreme Court has twice held that Marcos controlled Arelma.

The decision elated the Presidential Commission on Good Government (PCGG) because it believed the contested Marcos wealth should go to the Philippine government, which has the sole authority to dispose of the money.

Since the PCGG was created in 1986, it has recovered more or less P85 billion that went to the Comprehensive Agrarian Reform Program and still has over 280 Marcos cases that are pending in various courts here and abroad.

“The New York court has thrown out the claim [of the human-rights violation victims] and upheld again the Philippine government’s sovereign immunity,” PCGG Chairman Andres Bautista said.

In its decision, the court said: “Because the foreign sovereign [Philippines] declines to waive its immunity from suit, we are required to dismiss the proceeding based on nonjoinder of an indispensable party.”

“For the reasons discussed below, we reverse and dismiss the petition without prejudice on the ground that the proceeding should not proceed in the absence of the Republic [of the Philippines].

“The Republic should be a party to this proceeding but, by virtue of its sovereign immunity, cannot be made a party without its consent.

“Given that the Republic has to date refused to participate in this proceeding [as is its right], we conclude, as did the United States Supreme Court in an earlier proceeding concerning ownership of the same assets [Republic of the Philippines v Pimentel, 553 US 851 (2008)] that respect for the principles of sovereign immunity and international comity mandates dismissal.”

In addition, the New York court said that, “The Republic’s claim to the Arelma assets is based on its position, taken in proceedings against the Marcos estate in the Philippines, that the Arelma assets are the proceeds of property Marcos acquired corruptly in the Philippines through the misuse of his office. As noted by the Supreme Court in Pimentel, ‘a 1955 Philippine law provid[es] that property derived from the misuse of public office is forfeited to the Republic from the moment of misappropriation.’”

In 2009 New York State Supreme Court Justice Charles Ramos ruled that the human-rights violation victims can make a claim on the Arelma deposit, since the US Supreme Court ruled in 2007 that the Philippine government’s sovereignty immunity and right to claim all confiscated ill-gotten wealth of the Marcoses, was merely “informative” and does not bind the New York State Supreme Court.

(With Z. Solmerin, C. Mocon)