With $353-M contempt order, can Marcos

Jr. travel to US as president?

MANILA, Philippines – Presumptive Philippine president Ferdinand “Bongbong”
Marcos Jr., is bound for Malacañang with a challenge none of his predecessors before
him possessed: a standing contempt judgment issued by a United States court in
connection with a human rights class suit against his late dictator-father.

As head of state and chief diplomat, Marcos Jr. is expected to conduct state visits to
different countries, including the US, the Philippines’ only treaty ally and one of its
oldest partners. But how might this play out? 

Robert Swift, the American lawyer working to recover assets to distribute to Martial
Law victims, earlier said that a visit from Marcos Jr. would put in motion moves to
enforce the judgement, even a request for a subpoena to face the court and explain. 

Records from the United States District Court and Court of Appeals show that Marcos
is being held in contempt for “contumacious conduct causing direct harm to [a class of
human rights victims].” Since the contempt judgement was issued in 1995, the amount
involved for continuous contempt already reached $353 million in 2011. Marcos Jr.
has been evading paying the order. 

Rappler has also obtained the court records which showed that in 2019, a new judge
extended the order to January 25, 2031, well covering the six years Marcos Jr. would
be president of the Philippines. 

If Marcos Jr. is invited for a state visit or may see the need to travel to the US as a
head of state, what would the process be?

Securing court’s permission

There are at least two ways Marcos Jr. can travel to the US once he is officially
president of the Philippines. 

Former Philippine ambassador to the US Raul Rabe said an invitation to the United
Nations (UN) to attend a UN-sponsored event could see Marcos Jr. visit, “but not
beyond a certain perimeter” of New York, where the global body’s headquarters are
located. 

Events like the annual UN General Assembly would fall under this option, which
heads of states usually attend either in person or virtually, as has been the case in
recent years due to the pandemic. 

A second scenario would be when the US government extends an invite to Marcos Jr.
In this case, Rabe said the US State Department would need to secure the permission
of the courts on the basis that Marcos Jr.’s visit is to the national interest of the
country. 
Rabe pointed out, however, that this option would not be isolated from politics. “The
second opinion is full of political implications and may present difficulties for the
Biden administration as well as potential embarrassment for the invitee,” Rabe told
Rappler in an interview. 

For this reason, any invitation would only be extended if there were assurances that
Marcos Jr., as Philippine president, would be able to set foot in the US smoothly. 

“The Biden administration will of course respect the courts because of their co-equal
status, but I don’t think they will extend the invitation without first checking with the
court whether they will allow him to come without embarrassing him,” former
Philippine ambassador to the US Jose Cuisia said.

He added, “They will not extend the invitation if he is going to be arrested there and if
President Biden extends the invitation it is because they are hoping to have the better
relationship between the US and the Philippines.”

Immunity

In an earlier email interview with Rappler, Swift said Marcos Jr. won’t automatically
face an arrest order if and when he travels to the US. What a visit would do is trigger
moves by lawyers like him to move the court to enforce the judgement, including
issuing a subpoena. 

If these are still ignored, they may request an arrest warrant, Swift said. 

But that was the case when Marcos Jr. was still a private citizen. Anna Patricia
Saberon, a faculty member at the Ateneo de Naga University teaching international
relations said at as president, Marcos Jr. will enjoy immunity for being the head of
state, a customary practice under international law. 

Such immunity will allow him to travel to the US as leader of the Philippines, and
“cases against him would fall under his personal capacity,” Saberon said. 

In effect, the standing contempt order against Marcos Jr. would not affect his
functions as president were a state visit to take place. 

“Under customary international law, as long as they are in that official function or
position then he is acting for the benefit of the state, his actions are for the benefit of
the Philippines, not for his individual (interests). So assuming he accepts the invite, he
goes there because he thinks that it will benefit the Philippines as a country,” said
Saberon, who previously worked as assistant director of the United States division at
the Department of Foreign Affairs’ Office of American Affairs. 

In a response to Rappler’s query, the US embassy in Manila said on Saturday, May

14, that it cannot comment on any hypothetical situation involving Marcos Jr.’s case
or travel, but that under US law, heads of foreign governments and their immediate
family can apply for visas for diplomats and foreign government officials.
Determining eligibility can only be done once an application is filed, they added. 
The embassy also confirmed that under international law, sitting heads of state are
granted “comprehensive immunity from foreign jurisdiction.”  

“Therefore, a president will have immunity from US jurisdiction, including when

traveling in the United States,” acting spokesperson John Groch said. 

This will only be the case once Marcos Jr. is officially a sitting head of state. Until
then, there are no changes to his status as a president-elect. 

‘Broader interests’

Any potential visit to the US that Marcos Jr. may conduct is sure to bring controversy,
considering the Marcos family has refused to acknowledge the widespread corruption,
human rights abuses, and poverty under the decades-long Martial Law rule of its
patriarch. 

Marcos Jr. and his family likewise have shared history with the US, which facilitated
their escape to Hawaii, where they lived in exile for five years. As Filipinos took to
the streets to oust Marcos, the late dictator pleaded with Washington and influential
Filipinos for help – to stay in power, or at least the country longer. 

Despite this history, a visit by Marcos Jr. to the US as president, however, would
embody the broader interests of strengthening the Philippine and US’ alliance. After
six years under President Rodrigo Duterte – whose foreign policy saw Manila’s
distancing from traditional allies like the US – Marcos Jr. had described the
Philippines’ relationship with the US as “a very important one.”

In a call with US President Joe Biden, Marcos Jr. likewise said that his government
was prepared to work with the US and strengthen relations. 

“If the court says no, I think Biden will respect the decision of the court. But I’m
pretty sure the court will understand that they have to look at the broader interests of
the US,” Cuisia said.

“I doubt whether there’s going to be any problem with regard to that because even the
court may find ways of saying well this is in view of the larger interests of the US and
the Philippine relationship,” he added.

In this scenario, Saberon said the US would also demonstrate its recognition of
democratic processes in the Philippines and Marcos Jr.’s election. 

“The cases would be suspended in a way that they won’t push it and use to say you
can’t travel here or we won’t invite you for a visit. I think they will be cordial and
they will try to engage the Philippines through our president,” she said.