Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

138570 October 10, 2000

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD, respondents. x-----------------------x G.R. No. 138572 October 10, 2000

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs, respondents. x-----------------------x G.R. No. 138587 October 10, 2000

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G. BIAZON, respondents. x-----------------------x G.R. No. 138680 October 10, 2000

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila Grapilon,petitioners, vs. JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and HON. DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents. x-----------------------x G.R. No. 138698 October 10, 2000

JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-AVENCEA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS 1

FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT (VFA), respondents. DECISION BUENA, J.: Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition are issues relating to, and borne by, an agreement forged in the turn of the last century between the Republic of the Philippines and the United States of America -the Visiting Forces Agreement. The antecedents unfold. On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement which formalized, among others, the use of installations in the Philippine territory by United States military personnel. To further strengthen their defense and security relationship, the Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to respond to any external armed attack on their territory, armed forces, public vessels, and aircraft. 1 In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and the United States negotiated for a possible extension of the military bases agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have extended the presence of US military bases in the Philippines. 2 With the expiration of the RP-US Military Bases Agreement, the periodic military exercises conducted between the two countries were held in abeyance. Notwithstanding, the defense and security relationship between the Philippines and the United States of America continued pursuant to the Mutual Defense Treaty. On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on "the complementing strategic interests of the United States and the Philippines in the Asia-Pacific region." Both sides discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a consolidated draft text, which in turn resulted to a final series of conferences and negotiations 3 that culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on February 10, 1998. On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA.4 On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted to the Senate of the Philippines, 5 the Instrument of Ratification, the letter of the President6 and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint public hearings were held by the two Committees.7 On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 4438 recommending the concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee its implementation. Debates then ensued. On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds (2/3) 2

vote9of its members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No. 18.10 On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent Secretary Siazon and United States Ambassador Hubbard. The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for regulating the circumstances and conditions under which US Armed Forces and defense personnel may be present in the Philippines, and is quoted in its full text, hereunder: "Article I Definitions "As used in this Agreement, United States personnel means United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine Government. "Within this definition: "1. The term military personnel refers to military members of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard. "2. The term civilian personnel refers to individuals who are neither nationals of, nor ordinary residents in the Philippines and who are employed by the United States armed forces or who are accompanying the United States armed forces, such as employees of the American Red Cross and the United Services Organization. "Article II Respect for Law "It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and to abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any political activity in the Philippines. The Government of the United States shall take all measures within its authority to ensure that this is done. "Article III Entry and Departure "1. The Government of the Philippines shall facilitate the admission of United States personnel and their departure from the Philippines in connection with activities covered by this agreement. "2. United States military personnel shall be exempt from passport and visa regulations upon entering and departing the Philippines. "3. The following documents only, which shall be presented on demand, shall be required in respect of United States military personnel who enter the Philippines: "(a) personal identity card issued by the appropriate United States authority showing full name, date of birth, rank or grade and service number (if any), branch of service and photograph; "(b) individual or collective document issued by the appropriate United States authority, authorizing the travel or visit and identifying the individual or group as United States military personnel; and "(c) the commanding officer of a military aircraft or vessel shall present a declaration of health, and when required by the cognizant representative of the Government of the Philippines, shall conduct a quarantine inspection and 3

will certify that the aircraft or vessel is free from quarantinable diseases. Any quarantine inspection of United States aircraft or United States vessels or cargoes thereon shall be conducted by the United States commanding officer in accordance with the international health regulations as promulgated by the World Health Organization, and mutually agreed procedures. "4. United States civilian personnel shall be exempt from visa requirements but shall present, upon demand, valid passports upon entry and departure of the Philippines. "5. If the Government of the Philippines has requested the removal of any United States personnel from its territory, the United States authorities shall be responsible for receiving the person concerned within its own territory or otherwise disposing of said person outside of the Philippines. "Article IV Driving and Vehicle Registration "1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license issued by the appropriate United States authority to United States personnel for the operation of military or official vehicles. "2. Vehicles owned by the Government of the United States need not be registered, but shall have appropriate markings. "Article V Criminal Jurisdiction "1. Subject to the provisions of this article: (a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines. (b) United States military authorities shall have the right to exercise within the Philippines all criminal and disciplinary jurisdiction conferred on them by the military law of the United States over United States personnel in the Philippines. "2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the Philippines, punishable under the laws of the Philippines, but not under the laws of the United States. (b) United States authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the United States, punishable under the laws of the United States, but not under the laws of the Philippines. (c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to security means: (1) treason; (2) sabotage, espionage or violation of any law relating to national defense. "3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:

(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed by United States personnel, except in cases provided for in paragraphs 1(b), 2 (b), and 3 (b) of this Article. (b) United States military authorities shall have the primary right to exercise jurisdiction over United States personnel subject to the military law of the United States in relation to. (1) offenses solely against the property or security of the United States or offenses solely against the property or person of United States personnel; and (2) offenses arising out of any act or omission done in performance of official duty. (c) The authorities of either government may request the authorities of the other government to waive their primary right to exercise jurisdiction in a particular case. (d) Recognizing the responsibility of the United States military authorities to maintain good order and discipline among their forces, Philippine authorities will, upon request by the United States, waive their primary right to exercise jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines determines that the case is of particular importance, it shall communicate such determination to the United States authorities within twenty (20) days after the Philippine authorities receive the United States request. (e) When the United States military commander determines that an offense charged by authorities of the Philippines against United states personnel arises out of an act or omission done in the performance of official duty, the commander will issue a certificate setting forth such determination. This certificate will be transmitted to the appropriate authorities of the Philippines and will constitute sufficient proof of performance of official duty for the purposes of paragraph 3(b)(2) of this Article. In those cases where the Government of the Philippines believes the circumstances of the case require a review of the duty certificate, United States military authorities and Philippine authorities shall consult immediately. Philippine authorities at the highest levels may also present any information bearing on its validity. United States military authorities shall take full account of the Philippine position. Where appropriate, United States military authorities will take disciplinary or other action against offenders in official duty cases, and notify the Government of the Philippines of the actions taken. (f) If the government having the primary right does not exercise jurisdiction, it shall notify the authorities of the other government as soon as possible. (g) The authorities of the Philippines and the United States shall notify each other of the disposition of all cases in which both the authorities of the Philippines and the United States have the right to exercise jurisdiction. "4. Within the scope of their legal competence, the authorities of the Philippines and United States shall assist each other in the arrest of United States personnel in the Philippines and in handling them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article. "5. United States military authorities shall promptly notify Philippine authorities of the arrest or detention of United States personnel who are subject of Philippine primary or exclusive jurisdiction. Philippine authorities shall promptly notify United States military authorities of the arrest or detention of any United States 5

personnel. "6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged in extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one-year period will not include the time necessary to appeal. Also, the one-year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so. "7. Within the scope of their legal authority, United States and Philippine authorities shall assist each other in the carrying out of all necessary investigation into offenses and shall cooperate in providing for the attendance of witnesses and in the collection and production of evidence, including seizure and, in proper cases, the delivery of objects connected with an offense. "8. When United States personnel have been tried in accordance with the provisions of this Article and have been acquitted or have been convicted and are serving, or have served their sentence, or have had their sentence remitted or suspended, or have been pardoned, they may not be tried again for the same offense in the Philippines. Nothing in this paragraph, however, shall prevent United States military authorities from trying United States personnel for any violation of rules of discipline arising from the act or omission which constituted an offense for which they were tried by Philippine authorities. "9. When United States personnel are detained, taken into custody, or prosecuted by Philippine authorities, they shall be accorded all procedural safeguards established by the law of the Philippines. At the minimum, United States personnel shall be entitled: (a) To a prompt and speedy trial; (b) To be informed in advance of trial of the specific charge or charges made against them and to have reasonable time to prepare a defense; (c) To be confronted with witnesses against them and to cross examine such witnesses; (d) To present evidence in their defense and to have compulsory process for obtaining witnesses; (e) To have free and assisted legal representation of their own choice on the same basis as nationals of the Philippines; (f) To have the service of a competent interpreter; and (g) To communicate promptly with and to be visited regularly by United States authorities, and to have such authorities present at all judicial proceedings. These proceedings shall be public unless the court, in accordance with Philippine laws, excludes persons who have no role in the proceedings. "10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities. United States Personnel serving sentences in the Philippines shall have the right to visits and material assistance. "11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction, and 6

shall not be subject to the jurisdiction of Philippine military or religious courts. "Article VI Claims "1. Except for contractual arrangements, including United States foreign military sales letters of offer and acceptance and leases of military equipment, both governments waive any and all claims against each other for damage, loss or destruction to property of each others armed forces or for death or injury to their military and civilian personnel arising from activities to which this agreement applies. "2. For claims against the United States, other than contractual claims and those to which paragraph 1 applies, the United States Government, in accordance with United States law regarding foreign claims, will pay just and reasonable compensation in settlement of meritorious claims for damage, loss, personal injury or death, caused by acts or omissions of United States personnel, or otherwise incident to the non-combat activities of the United States forces. "Article VII Importation and Exportation "1. United States Government equipment, materials, supplies, and other property imported into or acquired in the Philippines by or on behalf of the United States armed forces in connection with activities to which this agreement applies, shall be free of all Philippine duties, taxes and other similar charges. Title to such property shall remain with the United States, which may remove such property from the Philippines at any time, free from export duties, taxes, and other similar charges. The exemptions provided in this paragraph shall also extend to any duty, tax, or other similar charges which would otherwise be assessed upon such property after importation into, or acquisition within, the Philippines. Such property may be removed from the Philippines, or disposed of therein, provided that disposition of such property in the Philippines to persons or entities not entitled to exemption from applicable taxes and duties shall be subject to payment of such taxes, and duties and prior approval of the Philippine Government. "2. Reasonable quantities of personal baggage, personal effects, and other property for the personal use of United States personnel may be imported into and used in the Philippines free of all duties, taxes and other similar charges during the period of their temporary stay in the Philippines. Transfers to persons or entities in the Philippines not entitled to import privileges may only be made upon prior approval of the appropriate Philippine authorities including payment by the recipient of applicable duties and taxes imposed in accordance with the laws of the Philippines. The exportation of such property and of property acquired in the Philippines by United States personnel shall be free of all Philippine duties, taxes, and other similar charges. "Article VIII Movement of Vessels and Aircraft "1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval of the Government of the Philippines in accordance with procedures stipulated in implementing arrangements. "2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of the Government of the Philippines. The movement of vessels shall be in accordance with international custom and practice governing such vessels, and such agreed implementing arrangements as necessary. 7

"3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not be subject to the payment of landing or port fees, navigation or over flight charges, or tolls or other use charges, including light and harbor dues, while in the Philippines. Aircraft operated by or for the United States armed forces shall observe local air traffic control regulations while in the Philippines. Vessels owned or operated by the United States solely on United States Government non-commercial service shall not be subject to compulsory pilotage at Philippine ports. "Article IX Duration and Termination "This agreement shall enter into force on the date on which the parties have notified each other in writing through the diplomatic channel that they have completed their constitutional requirements for entry into force. This agreement shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement." Via these consolidated11 petitions for certiorari and prohibition, petitioners - as legislators, nongovernmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement. We have simplified the issues raised by the petitioners into the following: I Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality of the VFA? II Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the Constitution? III Does the VFA constitute an abdication of Philippine sovereignty? a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US military personnel? b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion perpetua or higher? IV Does the VFA violate: a. the equal protection clause under Section 1, Article III of the Constitution? b. the Prohibition against nuclear weapons under Article II, Section 8? c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for the equipment, materials supplies and other properties imported into or acquired in the Philippines by, or on behalf, of the US Armed Forces? LOCUS STANDI 8

At the outset, respondents challenge petitioners standing to sue, on the ground that the latter have not shown any interest in the case, and that petitioners failed to substantiate that they have sustained, or will sustain direct injury as a result of the operation of the VFA.12 Petitioners, on the other hand, counter that the validity or invalidity of the VFA is a matter of transcendental importance which justifies their standing.13 A party bringing a suit challenging the constitutionality of a law, act, or statute must show "not only that the law is invalid, but also that he has sustained or in is in immediate, or imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way." He must show that he has been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason of the statute complained of.14 In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers, petitioners have not established that the VFA involves the exercise by Congress of its taxing or spending powers.15 On this point, it bears stressing that a taxpayers suit refers to a case where the act complained of directly involves the illegal disbursement of public funds derived from taxation. 16 Thus, in Bugnay Const. & Development Corp. vs. Laron17, we held: "x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by the judgment or entitled to the avails of the suit as a real party in interest. Before he can invoke the power of judicial review, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public." Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of any allegation by petitioners that public funds are being misspent or illegally expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA. Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as petitioners-legislators, do not possess the requisite locus standi to maintain the present suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador Enriquez,18 sustained the legal standing of a member of the Senate and the House of Representatives to question the validity of a presidential veto or a condition imposed on an item in an appropriation bull, we cannot, at this instance, similarly uphold petitioners standing as members of Congress, in the absence of a clear showing of any direct injury to their person or to the institution to which they belong. Beyond this, the allegations of impairment of legislative power, such as the delegation of the power of Congress to grant tax exemptions, are more apparent than real. While it may be true that petitioners pointed to provisions of the VFA which allegedly impair their legislative powers, petitioners failed however to sufficiently show that they have in fact suffered direct injury. In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in the absence of a board resolution from its Board of Governors authorizing its National President to commence the present action.19 Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases,20 where we had occasion to rule: "x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that transcendental importance to the public of these cases demands that they be settled promptly 9

and definitely, brushing aside, if we must, technicalities of procedure. We have since then applied the exception in many other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343)." (Underscoring Supplied) This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,21 Daza vs. Singson,22 andBasco vs. Phil. Amusement and Gaming Corporation,23 where we emphatically held: "Considering however the importance to the public of the case at bar, and in keeping with the Courts duty, under the 1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition. x x x" Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,24 thisCourt ruled that in cases of transcendental importance, the Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review . Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the departments of the government a becoming respect for each others acts,25 this Court nevertheless resolves to take cognizance of the instant petitions. APPLICABLE CONSTITUTIONAL PROVISION One focal point of inquiry in this controversy is the determination of which provision of the Constitution applies, with regard to the exercise by the senate of its constitutional power to concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has for its subject the presence of foreign military troops in the Philippines. Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing arrangement but an agreement which involves merely the temporary visits of United States personnel engaged in joint military exercises. The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads: "No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." Section 25, Article XVIII, provides: "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State." Section 21, Article VII deals with treatise or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays down the general rule on treatise or international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treatise or those economic in nature. All treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective. In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further requires that "foreign military bases, troops, or facilities" may be allowed in the Philippines only by virtue of a treaty duly 10

concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting state. It is our considered view that both constitutional provisions, far from contradicting each other, actually share some common ground. These constitutional provisions both embody phrases in the negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause "No treaty x x x," and Section 25 contains the phrase "shall not be allowed." Additionally, in both instances, the concurrence of the Senate is indispensable to render the treaty or international agreement valid and effective. To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the Senate extended its concurrence under the same provision, is immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional requirements. On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies. Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate, as will be further discussed hereunder. It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one.Lex specialis derogat generali. Thus, where there is in the same statute a particular enactment and also a general one which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language which are not within the provision of the particular enactment.26 In Leveriza vs. Intermediate Appellate Court,27 we enunciated: "x x x that another basic principle of statutory construction mandates that general legislation must give way to a special legislation on the same subject, and generally be so interpreted as to embrace only cases in which the special provisions are not applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where two statutes are of equal theoretical application to a particular case, the one designed therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38)." Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. On this score, the Constitution makes no distinction between "transient and "permanent". Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines. It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not distinguish- Ubi lex non distinguit nec nos distinguire debemos. In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said constitutional provision reveals that the proscription covers "foreign military bases, troops, or facilities." Stated differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being established. The clause does not refer to "foreign military bases, troops, or facilities" collectively but treats them as separate and independent subjects. The use of comma and the disjunctive word " or" clearly 11

signifies disassociation and independence of one thing from the others included in the enumeration, 28 such that, the provision contemplates three different situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it under the coverage of Section 25, Article XVIII. To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986 Constitutional Commission, is consistent with this interpretation: "MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas. This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If the country does enter into such kind of a treaty, must it cover the three-bases, troops or facilities-or could the treaty entered into cover only one or two? FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the requirement will be the same. MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not bases but merely troops? FR. BERNAS. Yes. MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only troops. FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just want to cover everything."29 (Underscoring Supplied) Moreover, military bases established within the territory of another state is no longer viable because of the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without returning to their home country. These military warships are actually used as substitutes for a land-home base not only of military aircraft but also of military personnel and facilities. Besides, vessels are mobile as compared to a land-based military headquarters. At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were complied with when the Senate gave its concurrence to the VFA. Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state. There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the general requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it. As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be "duly concurred in by the Senate." Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is clearly required so that the concurrence contemplated by law may be validly obtained and deemed present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty-the VFA, in the instant 12

case-be "duly concurred in by the Senate," it is very true however that said provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a two -thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section 21, Article, VII. As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA in the instant case. Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24) Senators.30 Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16) members, favorably acting on the proposal is an unquestionable compliance with the requisite number of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three (23) incumbent Senators at the time the voting was made,31 will not alter in any significant way the circumstance that more than two-thirds of the members of the Senate concurred with the proposed VFA, even if the two-thirds vote requirement is based on this figure of actual members (23). In this regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes, suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the subject treaty. Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the United States of America. Petitioners content that the phrase "recognized as a treaty," embodied in section 25, Article XVIII, means that the VFA should have the advice and consent of the United States Senate pursuant to its own constitutional process, and that it should not be considered merely an executive agreement by the United States. In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that the VFA is binding on the United States Government is conclusive, on the point that the VFA is recognized as a treaty by the United States of America. According to respondents, the VFA, to be binding, must only be accepted as a treaty by the United States. This Court is of the firm view that the phrase "recognized as a treaty" means that the other contracting partyaccepts or acknowledges the agreement as a treaty.32 To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution,33 is to accord strict meaning to the phrase. Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use.34 Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.35 To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty. A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation." 36 There are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements included under the general term treaty have little or no legal significance. Certain terms are useful, but they furnish little more than mere description.37 13

Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in the internal law of the State." Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers.38 International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.39 In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading,40 we had occasion to pronounce: "x x x the right of the Executive to enter into binding agreements without the necessity of subsequent congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, mostfavored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts. "x x x x x x x x x "Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics Supplied)" (Emphasis Ours) The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening and highly-instructive: "MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is concerned, that is entirely their concern under their own laws. FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to make it a treaty, then as far as we are concerned, we will accept it as a treaty."41 The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States government has fully committed to living up to the terms of the VFA. 42 For as long as the united States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution. Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should be taken as a clear an unequivocal expression of our nations consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder. Ratification is generally held to be an executive act, undertaken by the head of the state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed.43 A State may provide in its domestic legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation.44 14

In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification.45 With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution,46 declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. While the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation. 47 Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international law. Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty."48 Equally important is Article 26 of the convention which provides that "Every treaty in force is binding upon the parties to it and must be performed by them in good faith." This is known as the principle of pacta sunt servandawhich preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law, supported by the jurisprudence of international tribunals.49 NO GRAVE ABUSE OF DISCRETION In the instant controversy, the President, in effect, is heavily faulted for exercising a power and performing a task conferred upon him by the Constitution-the power to enter into and ratify treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in these consolidated cases impute grave abuse of discretion on the part of the chief Executive in ratifying the VFA, and referring the same to the Senate pursuant to the provisions of Section 21, Article VII of the Constitution. On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law.50 By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country. In many ways, the President is the chief architect of the nations foreign policy; his "dominance in the field of foreign relations is (then) conceded." 51 Wielding vast powers an influence, his conduct in the external affairs of the nation, as Jefferson describes, is "executive altogether."52 As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President, subject only to the concurrence of at least two-thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.53 Consequently, the acts or judgment calls of the President involving the VFA-specifically the acts of ratification and entering into a treaty and those necessary or incidental to the exercise of such principal acts - squarely fall within the sphere of his 15

constitutional powers and thus, may not be validly struck down, much less calibrated by this Court, in the absence of clear showing of grave abuse of power or discretion. It is the Courts considered view that the President, in ratifying the VFA and in submitting the same to the Senate for concurrence, acted within the confines and limits of the powers vested in him by the Constitution. It is of no moment that the President, in the exercise of his wide latitude of discretion and in the honest belief that the VFA falls within the ambit of Section 21, Article VII of the Constitution, referred the VFA to the Senate for concurrence under the aforementioned provision. Certainly, no abuse of discretion, much less a grave, patent and whimsical abuse of judgment, may be imputed to the President in his act of ratifying the VFA and referring the same to the Senate for the purpose of complying with the concurrence requirement embodied in the fundamental law. In doing so, the President merely performed a constitutional task and exercised a prerogative that chiefly pertains to the functions of his office. Even if he erred in submitting the VFA to the Senate for concurrence under the provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution, still, the President may not be faulted or scarred, much less be adjudged guilty of committing an abuse of discretion in some patent, gross, and capricious manner. For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of judicial inquiry into areas normally left to the political departments to decide, such as those relating to national security, it has not altogether done away with political questions such as those which arise in the field of foreign relations.54 The High Tribunals function, as sanctioned by Article VIII, Section 1, "is merely (to) check whether or not the governmental branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing (of) grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective powerIt has no power to look into what it thinks is apparent error."55 As to the power to concur with treaties, the constitution lodges the same with the Senate alone.1wphi1 Thus, once the Senate56 performs that power, or exercises its prerogative within the boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the exercise of its discretion and acting within the limits of such power, may not be similarly faulted for having simply performed a task conferred and sanctioned by no less than the fundamental law. For the role of the Senate in relation to treaties is essentially legislative in character; 57 the Senate, as an independent body possessed of its own erudite mind, has the prerogative to either accept or reject the proposed agreement, and whatever action it takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In this sense, the Senate partakes a principal, yet delicate, role in keeping the principles of separation of powers and of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to their form in a democratic government such as ours. The Constitution thus animates, through this treaty-concurring power of the Senate, a healthy system of checks and balances indispensable toward our nations pursuit of political maturity and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to inquire. In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court- as the final arbiter of legal controversies and staunch sentinel of the rights of the people - is then without power to conduct an incursion and meddle with such affairs purely executive and legislative in character and nature. For the Constitution no less, maps out the distinct boundaries and limits the metes and bounds within which each of the three political branches of government may exercise the powers exclusively and essentially conferred to it by law. WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED. SO ORDERED. Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. Melo, and Vitug, JJ., join the dissent of J. Puno. 16

Puno , J., see dissenting opinion. Mendoza, J., in the result. Panganiban, J., no part due to close personal and former professional relations with a petitioner, Sen. J.R. Salonga.

Footnotes
1

Article V. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measure necessary to restore and maintain international peace and security.
2

Joint Report of the Senate Committee on Foreign Relation and the Committee on National Defense and Security on the Visiting Forces Agreement.
3

Joint Committee Report. Petition, G.R. No. 138698, Annex "B", Rollo, pp. 61-62. "INSTRUMENT OF RATIFICATION TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETINGS: KNOW YE, that whereas, the Agreement between the government of the Republic of the Philippines and the Government of the United States of America Regarding the Treatment of the United States Armed Forces Visiting the Philippines, hereinafter referred to as VFA, was signed in Manila on 10 February 1998; WHEREAS, the VFA is essentially a framework to promote bilateral defense cooperation between the Republic of the Philippines and the United States of America and to give substance to the 1951 RP-US Mutual Defense Treaty (RP-US MDT). To fulfill the objectives of the RP-US MDT, it is necessary that regular joint military exercises are conducted between the Republic of the Philippines and the United States of America; WHEREAS, the VFA seeks to provide a conducive setting for the successful conduct of combined military exercises between the Philippines and the United States armed forces to ensure interoperability of the RP-US MDT; WHEREAS, in particular, the VFA provides the mechanism for regulating the circumstances and conditions under which US armed forces and defense personnel may be present in the Philippines such as the following inter alia: (a) specific requirements to facilitate the admission of United States personnel and their departure from the Philippines in connection with activities covered by the agreement; (b) clear guidelines on the prosecution of offenses committed by any member of the United States armed forces while in the Philippines; (c) precise directive on the importation and exportation of United States Government equipment, materials, supplies and other property imported into or acquired in the Philippines by or on behalf of the United States armed forces in connection with activities covered by the Agreement; and 17

(d) explicit regulations on the entry of United States vessels, aircraft, and vehicles; WHEREAS, Article IX of the Agreement provides that it shall enter into force on the date on which the Parties have notified each other in writing, through diplomatic channels, that they have completed their constitutional requirements for its entry into force. It shall remain in force until the expiration of 180 days from the date on which either Party gives the other Party written notice to terminate the Agreement. NOW, THEREFORE, be it known that I, JOSEPH EJERCITO ESTRADA, President of the Republic of the Philippines, after having seen and considered the aforementioned Agreement between the Government of the United States of America Regarding the Treatment of the United States Armed Forces Visiting the Philippines, do hereby ratify and confirm the same and each and every Article and Clause thereof. IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. GIVEN under my hand at the City of Manila, this 5th day of October, in the year of Our Lord one thousand nine hundred and ninety-eight.
5

Petition, G.R. No. 138587, Annex "C", Rollo, p. 59. The Member Senate Pasay City Honorable of of Senate the the President and Senate Philippines

Gentlemen and Ladies of the Senate: I have the honor to transmit herewith the Instrument of Ratification duly signed by H.E. President Joseph Ejercito Estrada, his message to the Senate and a draft Senate Resolution of Concurrence in connection with the ratification of the AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA REGARDING THE TREATMENT OF THE UNITED STATES ARMED FORCES VISITING THE PHILIPPINES. With best wishes. Very truly yours, RONALDO Executive Secretary
6

B.

ZAMORA

Petition, G.R. No. 138698, Annex "C".

Between January 26 and March 11, 1999, the two Committees jointly held six public hearings-three in Manila and one each in General Santos, Angeles City and Cebu City.
8

Petition , G.R. No. 138570, Annex "C", Rollo, pp. 88-95. "WHEREAS, the VFA is essentially a framework for promoting the common security interest of the two countries; and for strengthening their bilateral defense partnership under the 1951 RP-US Mutual Defense Treaty; 18

"x x x x x x x x x "WHEREAS, the VFA does not give unrestricted access or unhampered movement to US Forces in the Philippines; in fact, it recognizes the Philippine government as the sole authority to approve the conduct of any visit or activity in the country by US Forces, hence the VFA is not a derogation of Philippine sovereignty; "WHEREAS, the VFA is not a basing arrangement; neither does it pave way for the restoration of the American bases and facilities in the Philippines, in contravention of the prohibition against foreign bases and permanent stationing of foreign troops under Article XVIII, Section 25 of the 1987 Constitution-because the agreement envisions only temporary visits of US personnel engaged in joint military exercises or other activities as may be approved by the Philippine Government; "WHEREAS, the VFA gives Philippine courts primary jurisdiction over offenses that may be committed by US personnel within Philippine territory, with the exception of those incurred solely against the security or property of the Us or solely against the person or property of US personnel, and those committed in the performance of official duty; "x x x x x x x x x "WHEREAS, by virtue of Article II of the VFA, the United States commits to respect the laws of the Republic of the Philippines, including the Constitution, which declares in Article II, Section 8 thereof, a policy of freedom from nuclear weapons consistent with the national interest; "WHEREAS, the VFA shall serve as the legal mechanism to promote defense cooperation between two countries-enhancing the preparedness of the Armed Forces of the Philippines against external threats; and enabling the Philippines to bolster the stability of the Pacific area in a shared effort with its neighbor-states; "WHEREAS, the VFA will enhance our political, economic and security partnership and cooperation with the United States-which has helped promote the development of our country and improved the lives of our people; "WHEREAS, in accordance with the powers and functions of Senate as mandated by the Constitution, this Chamber, after holding several public hearings and deliberations, concurs in the Presidents ratification of the VFA, for the following reasons: (1) The Agreement will provide the legal mechanism to promote defense cooperation between the Philippines and the U.S. and thus enhance the tactical, strategic, and technological capabilities of our armed forces; (2) The Agreement will govern the treatment of U.S., military and defense personnel within Philippine territory, while they are engaged in activities covered by the Mutual Defense Treaty and conducted with the prior approval of the Philippine government; and (3) The Agreement will provide the regulatory mechanism for the circumstances and conditions under which U.S. military forces may visit the Philippines; x x x "x x x x x x x x x "WHEREAS, in accordance with Article IX of the VFA, the Philippine government 19

reserves the right to terminate the agreement unilaterally once it no longer redounds to our national interest: Now, therefore, be it "Resolved, that the Senate concur, as it hereby concurs, in the Ratification of the Agreement between the Government of the Republic of the Philippines and the United States of America Regarding the Treatment of United States Armed Forces visiting the Philippines. x x x"
9

The following voted for concurrence: (1) Senate President Marcelo Fernan, (2) Senate President Pro Tempore Blas Ople, (3) Senator Franklin Drilon, (4) Senator Rodolfo Biazon, (5) Senator Francisco Tatad, (6) Senator Renato Cayetano, (7) Senator Teresa AquinoOreta, (8) Senator Robert Barbers, (9) Senator Robert Jaworski, (10) Senator Ramon Magsaysay, Jr., (11) Senator John Osmea, (12) Senator Juan Flavier, (13) Senator Mirriam Defensor-Santiago, (14) Senator Juan Ponce-Enrile, (15) Senator Vicente Sotto III, (16) Senator Ramon Revilla, (17) Senator Anna Dominique Coseteng, and (18) Senator Gregorio Honasan. Only the following voted to reject the ratification of the VFA: (1) Senator Teofisto Guingona, Jr., (2) Senator Raul Roco, (3) Senator Sergio Osmena III, (4) Senator Aquilino Pimentel, Jr., and (5) Senator Loren Legarda-Leviste.
10

See Petition, G.R. No. 138570, Rollo, pp. 105. Minute Resolution dated June 8, 1999. See Consolidated Comment. Reply to Consolidated Comment, G.R. No. 138698; G.R. No. 138587.

11

12

13

14

Valmonte vs. Philippine Charity Sweepstakes Office, (Res.) G.R. No. 78716, September 22, 1987, cited in Telecommunications and Broadcast Attorneys of the Philippines, Inc. vs. COMELEC, 289 SCRA 337, 343 [1998]; Valley Forge College vs. Americans United, 454 US 464, 70 L. Ed. 2d 700 [1982]; Bugnay Const. And Dev. Corp. vs. Laron, 176 SCRA 240, 251252 [1989]; Tatad vs. Garcia, Jr. 243 SCRA 436, 473 [1995].
15

See Article VI, Sections 24, 25 and 29 of the 1987 Constitution.

16

Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]; Maceda vs. Macaraig, 197 SCRA 771 [1991]; Lozada vs. COMELEC, 120 SCRA 337 [1983]; Dumlao vs. COMELEC, 95 SCRA 392 [1980]; Gonzales vs. Marcos, 65 SCRA 624 [1975].
17

176 SCRA 240, 251-252 [1989]. 235 SCRA 506 [1994]. Consolidated Memorandum, p. 11.

18

19

20

Araneta vs. Dinglasan, 84 Phil. 368 [1949]; Iloilo Palay & Corn Planters Association vs. Feliciano, 121 Phil. 358 [1965]; Philippine Constitution Association vs. Gimenez, 122 Phil. 894 [1965].
21

21 SCRA 774 [1967].

22

180 SCRA 496, 502 [1988] cited in Kilosbayan, Inc. vs. Guingona, Jr., 232 SCRA 110 [1994].

20

23

197 SCRA 52, 60 [1991]. 232 SCRA 110 [1994]. J. Santos vs. Northwest Orient Airlines, 210 SCRA 256, 261 [1992]. Manila Railroad Co. vs. Collector of Customs, 52 Phil. 950. 157 SCRA 282 [1988] cited in Republic vs. Sandiganbayan, 173 SCRA 72, 85 [1989]. Castillo-co v. Barbers, 290 SCRA 717, 723 (1998). Records of the Constitutional Commission, September 18, 1986 Deliberation, p. 782.

24

25

26

27

28

29

30

1987 Constitution, Article VI, Section 2. - the Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law.
31

The 24th member (Gloria Macapagal-Arroyo) of the Senate whose term was to expire in 2001 was elected Vice-President in the 1998 national elections.
32

Ballentines Legal Dictionary, 1995.

33

Article 2, Section 2, paragraph 2 of the United States Constitution, speaking of the United States President provides: "He shall have power, by and with the advice and consent of the Senate to make treaties, provided two-thirds of the senators present concur."
34

J.M. Tuason & Co., Inc. vs. Land Tenure Association, 31 SCRA 413 [1970].

35

Altman Co. vs. United States, 224 US 263 [1942], cited in Coquia and Defensor-Santiago, International Law, 1998 Ed. P. 497.
36

Vienna Convention, Article 2.

37

Gerhard von Glahn, Law among Nations, an Introduction to Public International Law, 4th Ed., p. 480.
38

Hackworth, Digest of International Law, Vol. 5, p. 395, cited in USAFE Veterans Association Inc. vs. Treasurer of the Philippines, 105 Phil. 1030, 1037 [1959].
39

Richard J. Erickson, "The Making of Executive Agreements by the United States Department of Defense: An agenda for Progress," 13 Boston U. Intl. L.J. 58 [1995], citing Restatement [third] of Foreign Relations Law pt. III, introductory note [1987] and Paul Reuter, Introduction to the Law of Treaties 22 [Jose Mico & Peter Haggemacher trans., 1989] cited in Consolidated Memorandum, p. 32.
40

3 SCRA 351, 356-357 [1961]. 4 Record of the Constitutional Commission 782 [Session of September 18, 1986]. Letter of Ambassador Hubbard to Senator Miriam Defensor-Santiago: "Dear Senator Santiago: I am happy to respond to your letter of April 29, concerning the way the US Government views the Philippine-US Visiting Forces Agreement in US legal terms. 21

41

42

You raise an important question and I believe this response will help in the Senate deliberations. As a matter of both US and international law, an international agreement like the Visiting Forces Agreement is legally binding on the US Government, In international legal terms, such an agreement is a treaty. However, as a matter of US domestic law, an agreement like the VFA is an executive agreement, because it does not require the advice and consent of the senate under Article II, section 2 of our Constitution. The Presidents power to conclude the VFA with the Philippines, and other status of forces agreements with the other countries, derives from the Presidents responsibilities for the conduct of foreign relations (Art. II, Sec. 1) and his constitutional powers as Commander in Chief of the Armed Forces. Senate advice and consent is not needed, inter alia, because the VFA and similar agreements neither change US domestic nor require congressional appropriation of funds. It is important to note that only about five percent of the international agreement entered into by the US Governments require Senate advice and consent. However, in terms of the US Governments obligation to adhere to the terms of the VFA, there is no difference between a treaty concurred in by our Senate and an executive agreement. Background information on these points can be found in the Restatement 3rd of the Foreign Relations Law of the United States, Sec. 301, et seq. [1986]. I hope you find this answer helpful. As the Presidents representative to the Government of the Philippines, I can assure you that the United States Government is fully committed to living up to the terms of the VFA. Sincerely yours, THOMAS Ambassador"
43

C.

HUBBARD

Gerhard von Glahn, Law Among Nations, An Introduction to Public International Law, 4th Ed., p. 486.
44

Article 14 of the Vienna Convention, cited in Coquia and Defensor-Santiago, Intenational Law, 1998 Ed., pp. 506-507.
45

Cruz, Isagani, "International Law", 1985 Ed., p. 175.

46

Sec. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
47

Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and Materials, 2nd Ed American Casebook Series, p. 136.
48

Gerhard von Glah, supra, p. 487. Harris, p. 634 cited in Coquia, International Law, supra, p. 512.

49

50

Cuison vs. CA, 289 SCRA 159 [1998]. See also Jardine vs. NLRC, G.R. No. 119268, Feb 23, 2000 citing Arroyo vs. De Venecia, 277 SCRA 268 [1997].
51

Cortes, "The Philippine Presidency a study of Executive Power, 2nd Ed.," p. 195. Cruz, Phil. Political Law, 1995 Ed., p. 223. 22

52

53

United States vs. Curtis Wright Corp., 299 U.S. 304 (1934), per Justice Sutherland. Arroyo vs. De Venecia, 277 SCRA 269 [1997].

54

55

Co vs. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 701 (1991); Llamas vs. Orbos, 202 SCRA 849, 857 (1991); Lansang vs. Garcia, 42 SCRA at 480-481 [1971].
56

1987 Constitution, Article VI, Section 1. - The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.
57

See Akehurst, Michael: Modern Introduction to International Law, (London: George Allen and Unwin) 5th ed., p. 45; United States vs. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION PUNO, J.: The cases at bar offer a smorgasbord of issues. As summed up by the Solicitor General, they are: "I DO PETITIONERS HAVE STANDING AS CONCERNED CITIZENS, TAXPAYERS, OR LEGISLATORS? II IS THE VFA CONSISTENT WITH THE GENERAL WELFARE CLAUSE OF THE CONSTITUTION? III IS THE VFA GOVERNED BY THE PROVISIONS OF SECTION 21, ARTICLE VII OR SECTION 25, ARTICLE XVIII OF THE CONSTITUTION? IV DOES THE VFA CONSTITUTE AN ABDICATION OF PHILIPPINE SOVEREIGNTY? (a) DOES THE VFA DEPRIVE PHILIPPINE COURTS OF THEIR JURISDICTION TO HEAR AND TRY OFFENSES COMMITTED BY U.S. MILITARY PERSONNEL? (b) IS THIS COURT DEPRIVED OF ITS JURISDICTION OVER OFFENSES PUNISHABLE BY RECLUSIONPERPETUA OR HIGHER? (c) IS THE GRANT OF TAX EXEMPTIONS UNDER THE VFA UNCONSTITUTIONAL? V DOES THE VFA VIOLATE THE EQUAL PROTECTION CLAUSE UNDER SECTION 1, ARTICLE III OF THE CONSTITUTION? 23

VI IS THE NUCLEAR BAN UNDER SECTION 8, ARTICLE II OF THE CONSITUTION VIOLATED BY THE VFA? VII ARE FILIPINOS DENIED THEIR PERSONAL AND PROPERTY RIGHT TO SUE FOR TORTS AND DAMAGES? VIII WAS THERE UNDUE DELEGATION OF LEGISLATIVE POWER IN THE APPROVAL OF THE VFA? IX DOES THE VFA CONTRAVENE THE POLICY OF NEUTRALITY UNDER SECTION 7, ARTICLE II OF THE CONSTITUTION? X IS THE TERM "ACTIVITIES" UNDER THE COVERAGE OF THE VFA VAGUE, UNQUALIFIED OR UNCERTAIN?" I like to think that the most significant issue is whether the Visiting Forces Agreement (VFA) violates Sec. 25, Art. XVIII of the Constitution. I shall therefore limit my opinion on this jugular issue. The 1987 Constitution provides in Sec. 25, Art. XVIII, viz: "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State." This provision lays down three constitutional requisites that must be complied with before foreign military bases, troops, or facilities can be allowed in Philippine territory, namely: (1) their presence should be allowed by a treaty duly concurred in by the Philippine Senate; (2) when Congress so requires, such treaty should be ratified by a majority of the votes cast by the Filipino people in a national referendum held for that purpose; and (3) such treaty should be recognized as a treaty by the other contracting party. To start with, respondents, with unrelenting resolve, claim that these constitutional requirements are not applicable to the VFA. They contend that the VFA, as its title implies, contemplates merely temporary visits of U.S. military troops in Philippine territory, and thus does not come within the purview of Sec. 25, Art. XVIII of the Constitution. They assert that this constitutional provision applies only to the stationing or permanent presence of foreign military troops on Philippine soil since the word "troops" is mentioned along with "bases" and "facilities" which are permanent in nature.1 This assertion would deserve serious attention if the temporary nature of these visits were indeed borne out by the provisions of the VFA. If we turn, however, a heedful eye on the provisions of the VFA as well as the interpretation accorded to it by the government officials charged with its negotiation and implementation, the temporary nature of the visits would turn out to be a mirage in a desert of vague provisions of the VFA. Neither the VFA nor the Mutual Defense Treaty between the Republic of the Philippines and the United States of America2 to which the VFA refers in its preamble,3 provides the slightest suggestion on the duration of visits of U.S. forces in Philippine territory. The joint public hearings on the VFA conducted by the Senate Committee on Foreign Relations and the Senate Committee on National Defense and Security give us a keyhole to the time frame involved in these visits. 24

Secretary of Foreign Affairs Domingo L. Siazon, the Philippines signatory to the VFA, testified before the said committees that even before the signing of the VFA, Philippine and U.S. troops conducted joint military exercises in Philippine territory for two days to four weeks at the frequency of ten to twelve exercises a year. The "Balikatan", the largest combined military exercise involving about 3,000 troops, lasted at an average of three to four weeks and occurred once every year or one and a half years. 4 He further declared that the VFA contemplates the same time line for visits of U.S. troops, but argued that even if these troops conduct ten to twelve exercises a year with each exercise lasting for two to three weeks, their stay will not be uninterrupted, hence, not permanent.5 Secretary of National Defense Orlando S. Mercado further testified that the VFA will allow joint military exercises between the Philippine and U.S. troops on a larger scale than those we had been undertaking since 1994.6 As the joint military exercises will be conducted on a larger scale, it would be reasonable to project an escalation of the duration as well as frequency of past joint military exercises between Philippine and U.S. troops. These views on the temporary nature of visits of U.S. troops cannot stand for, clearly, the VFA does not provide for a specific and limited period of effectivity. It instead provides an open-ended term in Art. IX, viz: ". . . (t)his agreement shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement." No magic of semantics will blur the truth that theVFA could be in force indefinitely. The following exchange between Senator Aquilino Q. Pimentel, Jr. and Secretary Siazon in the public hearings on the VFA is apropos to the issue: "SEN. PIMENTEL. . . . In other words, this kind of activities are not designed to last only within one year, for example, the various visits, but can cover eternity until the treaty is abrogated? MR. SIAZON. Well, Your Honor, this is an exercise for the protection of our national security, and until conditions are such that there is no longer a possible threat to our national security, then you will have to continue exercising, Your Honor, because we cannot take a chance on it. SEN. PIMENTEL. So, this will be temporarily permanent, or permanently temporary? MR. SIAZON. Permanently temporary, Your Honor."7 The worthiest of wordsmiths cannot always manipulate the meaning of words. Blacks Law Dictionary defines "temporary" as "that which is to last for a limited time only, as distinguished from that which is perpetual or indefinite in its duration"8 and states that "permanent" is "generally opposed to temporary but not always meaning perpetual."9 The definitions of "temporary" and "permanent" in Bouviers Law Dictionary are of similar import: temporary is "that which is to last for a limited time" 10 while permanent "does not always embrace the idea of absolute perpetuity."11 By these definitions, even the contingency that the Philippines may abrogate the VFA when there is no longer any threat to our national security does not make the visits of U.S. troops temporary, nor do short interruptions in or gaps between joint military exercises carve them out from the definition of "permanent" as permanence does not necessarily contemplate absolute perpetuity. It is against this tapestry woven from the realities of the past and a vision of the future joint military exercises that the Court must draw a line between temporary visits and permanent stay of U.S. troops. The absence in the VFA of the slightest suggestion as to the duration of visits of U.S. troops in Philippine territory, coupled with the lack of a limited term of effectivity of the VFA itself justify the interpretation that the VFA allows permanent, not merely temporary, presence of U.S. troops on Philippine soil. Following Secretary Siazons testimony, if the visits of U.S. troops could last for four weeks at the most and at the maximum of twelve times a year for an indefinite number of years, then by no stretch of logic can these visits be characterized as temporary because in fact, the U.S. troops could be in Philippine territory 365 days a year for 50 years -- longer than the duration of the 1947 RP-US Military Bases Agreement12 which expired in 1991 and which, without question, contemplated permanent presence of U.S. bases, facilities, and troops. To be sure, even former Secretary of Justice, Serafin Cuevas, admitted in the same public hearings that the subject matter of the VFA, i.e., the visits and activities of U.S. troops in Philippine territory, partakes of a 25

permanent character. He declared with clarity: "MR. CUEVAS. . . . Why we considered this as a treaty is because the subject therein treated had some character of permanence; and secondly, there is a change insofar as some of our laws are concerned." 13 Thus, regardless of whether Sec. 25, Art. XVIII of the Constitution contemplates permanent presence of foreign military troops alone, or temporary presence as well, the VFA comes within its purview as it allows the permanent presence of U.S. troops on Philippine soil. Contrary to respondents allegation, the determination of the permanent nature of visits of U.S. troops under the VFA is an issue ripe for adjudication since Sec. 25 of Art. XVIII speaks of the manner by which U.S. troops may be allowed to enter Philippine territory. We need not wait and see, therefore, whether the U.S. troops will actually conduct military exercises on Philippine soil on a permanent basis before adjudicating this issue. What is at issue is whether the VFA allows such permanent presence of U.S. troops in Philippine territory. To determine compliance of the VFA with the requirements of Sec. 25, Art. XVIII of the Constitution, it is necessary to ascertain the intent of the framers of the Constitution as well as the will of the Filipino people who ratified the fundamental law. This exercise would inevitably take us back to the period in our history when U.S. military presence was entrenched in Philippine territory with the establishment and operation of U.S. Military Bases in several parts of the archipelago under the 1947 R.P.-U.S. Military Bases Agreement. As articulated by Constitutional Commissioner Blas F. Ople in the 1986 Constitutional Commission deliberations on this provision, the 1947 RP-US Military Bases Agreement was ratified by the Philippine Senate, but not by the United States Senate. In the eyes of Philippine law, therefore, the Military Bases Agreement was a treaty, but by the laws of the United States, it was a mere executive agreement.14 This asymmetry in the legal treatment of the Military Bases Agreement by the two countries was believed to be a slur to our sovereignty. Thus, in the debate among the Constitutional Commissioners, the unmistakable intention of the commission emerged that thisanomalous asymmetry must never be repeated.15 To correct this historical aberration, Sec. 25, Art. XVIII of the Constitution requires that the treaty allowing the presence of foreign military bases, troops, and facilities should also be "recognized as a treaty by the other contracting party." In plain language, recognition of the United States as the other contracting party of the VFA should be by the U.S. President with the advice and consent of the U.S. Senate.16 The following exchanges manifest this intention: "MR. OPLE. Will either of the two gentlemen yield to just one question for clarification? Is there anything in this formulation, whether that of Commissioner Bernas or of Commissioner Romulo, that will prevent the Philippine government from abrogating the existing bases agreement? FR. BERNAS. To my understanding, none. MR. ROMULO. I concur with Commissioner Bernas. MR. OPLE. I was very keen to put this question because I had taken the position from the beginning - and this is embodied in a resolution filed by Commissioners Natividad, Maambong and Regalado - that it is very important that the government of the Republic of the Philippines be in a position to terminate or abrogate the bases agreement as one of the options. . . . we have acknowledged starting at the committee level that the bases agreement was ratified by our Senate; it is a treaty under Philippine law. But as far as the Americans are concerned, the Senate never took cognizance of this and therefore, it is an executive agreement. That creates a wholly unacceptable asymmetry between the two countries. Therefore, in my opinion, the right step to take, if the government of our country will deem it in the national interest to terminate this agreement or even to renegotiate it, is that we must begin with a clean slate; we should not be burdened by the flaws of the 1947 Military Bases Agreement. . . MR. ROMULO. Madam President, I think the two phrases in the Bernas formulation take care of Commissioner Oples concerns. The first says "EXCEPT UNDER THE TERMS OF A TREATY." That means that if it is to be renegotiated, it must be under the terms of a new treaty. The second is the concluding phrase which says: "AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE." 26

xxx MR. SUAREZ. Is the proposal prospective and not retroactive in character? FR. BERNAS. Yes, it is prospective because it does not touch the validity of the present agreement. However, if a decision should be arrived at that the present agreement is invalid, then even prior to 1991, this becomes operative right away. MR. SUAREZ. In other words, we do not impress the previous agreements with a valid character, neither do we say that they are null and void ab initio as claimed by many of us here. FR. BERNAS. The position I hold is that it is not the function of this Commission to pass judgment on the validity or invalidity of the subsisting agreement. MR. SUAREZ. . . . the proposal requires recognition of this treaty by the other contracting nation. How would that recognition be expressed by that other contracting nation? That is in accordance with their constitutional or legislative process, I assume. FR. BERNAS. As Commissioner Romulo indicated, since this certainly would refer only to the United States, because it is only the United States that would have the possibility of being allowed to have treaties here, then we would have to require that the Senate of the United States concur in the treaty because under American constitutional law, there must be concurrence on the part of the Senate of the United States to conclude treaties. xxx FR. BERNAS. When I say that the other contracting state must recognize it as a treaty, by that I mean it must perform all the acts required for the agreement to reach the status of a treaty under their jurisdiction." (emphasis supplied)17 In ascertaining the VFAs compliance with the constitutional requirement that it be "recognized as a treaty by the other contracting state," it is crystal clear from the above exchanges of the Constitutional Commissioners that the yardstick should be U.S. constitutional law . It is therefore apropos to make a more in depth study of the U.S. Presidents power to enter into executive agreements under U.S. constitutional law. Sec. 2, Art. II, Clause 2 of the U.S. Constitution provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The U.S. Constitution does not define "treaties". Nevertheless, the accepted definition of a "treaty" is that of "an agreement between two or more states or international organizations that is intended to be legally binding and is governed by international law."18 Although the United States did not formally ratify the Vienna Convention on the Law of Treaties, its definition of a treaty has been applied by U.S. courts and the State Department has stated that the Vienna Convention represents customary international law. 19 The Vienna Convention defines a treaty as "an international agreement concluded between States in written form and governed by international law."20 It has been observed that this definition is broader than the sense in which "treaty" is used in the U.S. Constitution. In U.S. practice, a "treaty" is only one of four types of international agreements, namely: Article II treaties, executive agreements pursuant to a treaty, congressional-executive agreements, and sole executive agreements.21 The term "executive agreement" is used both colloquially and in scholarly and governmental writings as a convenient catch-all to subsume all international agreements intended to bind the United States and another government, other than those which receive consent of two-thirds of the U.S. Senate.22 The U.S. Constitution does not expressly confer authority to make these executive agreements, hence the authority to make them, their scope, and legal force have been the subject of a long-ongoing debate.23 This, notwithstanding,executive agreements have grown to be a primary instrument of foreign policy in the United States. In 1789-1839, the United States concluded 60 treaties and only 27 executive agreements. In 1930-1939, the United States entered into 142 treaties and 144 executive agreements. In 1940-1949, 27

116 treaties and 919 executive agreements were concluded by the United States. From 1980-1988, the United States entered into 136 treaties and 3,094 executive agreements. In sum, by 1988, there were 12,778 executive agreements as opposed to 1,476 treaties, accounting for about 90% of the international agreements concluded by the United States.24 The upsurge in the use of executive agreements in the post World War II period may be attributed to several factors. President Franklin Roosevelt set a precedent for the more recent presidents by, for instance, completing the Destroyer-for-Bases deal of 1940 with an executive agreement. President Harry S. Truman likewise concluded the Potsdam Agreement by executive agreement. The U.S. Presidents also committed military missions in Honduras and El Salvador in the 1950s; pledged security to Turkey, Iran, and Pakistan; acquired permission from the British to use the island of Diego Garcia for military purposes in the 1960s; and established a military mission in Iran in 1974, all by way of executive agreements.25 U.S. Supreme Court decisions affirming the validity of executive agreements have also contributed to the explosive growth in their usage.26 Another factor that accelerated its use was the foreign policy cooperation between Congress and the executive as expressed in the postwar refrain that "politics must end at the waters edge."27 The fourth factor is the expansion of executive institutions including foreign policy machinery and information.28 The fifth factor is the Cold War which put the United States in a "constant state of emergency" which required expediency in decisions and actions regarding the use of force or diplomacy. Last but not the least, the nuclear weapons race and instantaneous global communication made centralized foreign policy machinery under the U.S. President necessary.29 These executive agreements which have grown to be the primary instrument of U.S. foreign policy may be classified into three types, namely: (1) Treaty-authorized executive agreements, i.e., agreements made by the President pursuant to authority conferred in a prior treaty;30 (2) Congressional-executive agreements, i.e., agreements either (a) negotiated by the President with prior Congressional authorization or enactment or (b) confirmed by both Houses of Congress after the fact of negotiation;31 and (3) Presidential or sole executive agreements, i.e., agreements made by the President based on his exclusive presidential powers, such as the power as commander-in-chief of the armed forces pursuant to which he conducts military operations with U.S. allies, or his power to receive ambassadors and recognize foreign governments.32 This classification is important as the different types of executive agreements bear distinctions in terms of constitutional basis, subject matter, and legal effects in the domestic arena . For instance,treaty-authorized executive agreements do not pose constitutional problems as they are generally accepted to have been pre-approved by the Senate when the Senate consented to the treaty which authorized the executive to enter into executive agreements; another view supporting its acceptance is that the Senate delegated to the President the authority to make the executive agreement. 33 In comparison, the constitutionality of congressional-executive agreements has provoked debate among legal scholars. One view, espoused by interpretivists such as Edwin Borchard, holds that all international agreements must be strictly in accordance with Sec. 2, Art. II of the U.S. Constitution, and thus congressional-executive agreements are constitutionally invalid. According to them, allowing congressionalexecutive agreements would enhance the power of the President as well as of the House of Representatives, in utter violation of the intent of the framers of the U.S. Constitution. 34 The opposite school of thought, led by Myer S. McDougal and Asher Lans, holds that congressional-executive agreements and treaties are interchangeable, thus, such agreements are constitutional. These non-interpretivists buttress their stance by leaning on the constitutional clause that prohibits States, without consent of Congress, from "enter(ing) into any Agreement or Compact with another State, or with a Foreign Power." By making reference to international agreements other than treaties, these scholars argue that the framers of the Constitution intended international agreements, other than treaties, to exist. This school of thought generally opposes the "mechanical, filiopietistic theory, (which) purports to regard the words of the Constitution as timeless absolutes"35 and gives emphasis to the necessity and expediency of congressional-executive agreements in modern foreign affairs.36 Finally, sole executive agreements which account for a relatively small percentage of executive agreements are the most constitutionally problematic since the system of 28

checks and balances is inoperative when the President enters into an executive agreement with neither the Senates or Congress consent. This last type of executive agreement draws authority upon the Presidents enumerated powers under Article II of the U.S. Constitution, such as the Presidents power as Commanderin-Chief of the U.S. army and navy.37 I respectfully submit that, using these three types of executive agreements as bases for classification, the VFA would not fall under the category of an executive agreement made by the president pursuant to authority conferred in a prior treaty because although the VFA makes reference to the Mutual Defense Treaty in its Preamble,38 the Mutual Defense Treaty itself does not confer authority upon the U.S. President to enter into executive agreements in implementation of the Treaty. Issues have occasionally arisen about whether an executive agreement was entered into pursuant to a treaty. These issues, however, involved mere treaty interpretation.39 In Wilson v. Girard, 354 US 524 (1957), the U.S. Supreme Court had occasion to interpret Art. III of the Security Treaty Between the United States of America and Japan which stated that, "(t)he conditions which shall govern the disposition of armed forces of the United States of America in and about Japan shall be determined by administrative agreements between the two Governments." 40 Pursuant to this provision in the treaty, the executive entered into an administrative agreement covering, among other matters, jurisdiction of the United States over offenses committed in Japan by members of the U.S. armed forces. The U.S. Supreme Court recognized the validity of the Administrative Agreement as it was concluded by the President pursuant to the authority conferred upon him by Art. III of the Security Treaty between Japan and the United States to make administrative agreements between the two governments concerning "(t)he conditions which shall govern the disposition of armed forces of the United States of America in and about Japan." Respondents boldly claim that the VFA is authorized by Art. II of the RP-US Mutual Defense Treaty which provides that, "(i)n order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack."41 The alleged authorization is not as direct and unequivocal as Art. III of the Security Treaty Between the U.S. and Japan, hence it would be precarious to assume that the VFA derives authorization from the Mutual Defense Treaty. The precariousness is heightened by the fact that when the U.S. Senate ratified the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces42 which was concluded pursuant to the North Atlantic Treaty (NATO),43 the Senate included in its instrument of ratification statements on matters of jurisdiction over U.S. forces stationed abroad, among which was an admonition that the Agreements provisions on criminal jurisdiction which have similar features as the VFA, do not constitute a precedent for future agreements. We can reasonably gather from the U.S. Senates statements that criminal jurisdiction over U.S. forces stationed abroad is a matter of Senate concern, and thus Senate authorization for the President to enter into agreements touching upon such jurisdictional matters cannot so easily be assumed. Neither does the VFA fall under the category of a Congressional-Executive Agreement as it was not concluded by the U.S. President pursuant to Congressional authorization or enactment nor has it been confirmed by the U.S. Congress. At best, the VFA would be more akin to a sole or presidential executive agreement which would be valid if concluded on the basis of the U.S. Presidents exclusive power under the U.S. Constitution . Respondents argue that except for the Status of Forces Agreement (SOFA) entered into pursuant to the NATO, the United States, by way of executive agreements, has entered into 78 Status of Forces Agreements (SOFA) which extend privileges and immunities to U.S. forces stationed abroad,44 similar to the provisions of the VFA. Respondents have failed, however, to qualify whether these executive agreements are sole executive agreements or were concluded pursuant to Congressional authorization or were authorized by treaty. This detail is important in view of the above discussion on the sense of the Senate on criminal jurisdiction over U.S. forces stationed abroad. It will contribute to the elucidation of the legal status of the VFA under U.S. law if we compare the legal force of sole executive agreements and of treaties. Under international law, treaties and executive agreements equally bind the United States.45 If there is any distinction between treaties and executive agreements, it must be found in U.S. constitutional law.46 The distinctions, if any, between the legal force of treaties and executive agreements on the domestic plane may be treated on three levels, namely, vis-a-vis: (1) state law; (2) acts of Congress and treaties; and (3) the U.S. Constitution. 29

The Supremacy Clause of the U.S. Constitution provides: "This Constitution, and the Law of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."47 It is well-settled that this clause provides the constitutional basis for the superiority of a treaty over state law. Thus, the Warsaw Convention to which the United States is a signatory preempts the California law on airline liability.48 The U.S. Supreme Court has ruled in unmistakable terms that a treaty enjoys supremacy over state law,viz: "Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws, as far as they contravene its operation, the treaty would be ineffective. "To counter-act it by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war." 3 Elliot, Debates, 515. . . . this rule in respect of treaties is established by the express language of cl. 2, Art. 6, of the Constitution. . . ."(emphasis supplied)49 It is also generally conceded that sole executive agreements are supreme over state law and policy. Two cases decided by the U.S. Supreme Court support this view. The first of these two cases, United States v. Belmont,50 involved the Litvinov Assignment, a sole executive agreement executed between the United States and the Soviet Government. In 1918, the Soviet government, by laws and decrees, nationalized, among others, a Russian corporation, and appropriated its assets including a sum of money deposited with Belmont, a private banker doing business in New York. The sum of money remained Russian property until 1933, at which time the Soviet government released and assigned to the United States all amounts due the Soviet government from American nationals, including the deposit account of the Russian corporation with Belmont. The assignment, better known as the Litvinov Assignment, was effected by an exchange of diplomatic correspondence between the Soviet government and the United States to bring about a final settlement of the claims and counter-claims between the Soviet government and the United States. Coincident with the assignment, the U.S. President recognized the Soviet Government and normal diplomatic relations were established between the two governments.51 Upon demand duly made by the United States, the executors of Belmonts will failed and refused to pay the sum of money deposited by the Russian corporation with Belmont. The United States thus filed a suit in a federal district court to recover the sum of money. The court below held that the situs of the bank deposit was within the State of New York and not within Soviet territory. Thus, the nationalization decree, if enforced, would amount to an act of confiscation which was contrary to the controlling public policy of New York. The U.S. Supreme Court, however, held that no state policy could prevail against the Litvinov Assignment.52 It ruled as follows: "The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty making clause of the Constitution (Sec. 2, Art. 2), require the advice and consent of the Senate. A treaty signifies "a compact made between two or more independent nations with a view to the public welfare." B. Altman & Co. v. United States, 224 U.S. 583, 600, 56 L. ed. 894, 910, 32 S. Ct. 593. But an international compact, as this was, is not always a treaty which requires the participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi, a postal convention, and agreements like that now under consideration are illustrations." (emphasis supplied)53 On the supremacy of executive agreements over state law, it ruled as follows: "Plainly, the external powers of the United States are to be exercised without regard to state laws or 30

policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws, as far as they contravene its operation, the treaty would be ineffective. "To counter-act it by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war." 3 Elliot, Debates, 515. . . And while this rule in respect of treaties is established by the express language of cl. 2, Art. 6, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government and is not and cannot be subjected to any curtailment or interference on the part of the several states." (emphasis supplied)54 The other case, United States v. Pink,55 likewise involved the Litvinov Assignment. The U.S. Supreme Court here reiterated its ruling in the Belmont case and held that the Litvinov Assignment was an international compact or agreement having similar dignity as a treaty under the supremacy clause of the U.S. Constitution.56 While adherents of sole executive agreements usually point to these two cases as bearing judicial imprimatur of sole executive agreements, the validity of sole executive agreements seems to have been initially dealt with by the U.S. Supreme Court in 1933 in Monaco v. Mississippi wherein Chief Justice Hughes stated that, "(t)he National Government, by virtue of its control of our foreign relations is entitled to employ the resources of diplomatic negotiations and to effect such an international settlement as may be found to be appropriate, through treaty, agreement of arbitration, or otherwise."57 Subsequent to the Belmont and Pink cases, the U.S. Supreme Court once again upheld the validity of a sole executive agreement in Dames & Moore v. Regan.58 This case involved the Algiers Accord, an executive agreement negotiated and concluded by President Carter and confirmed by President Reagan to resolve the Iran Hostage Crisis in 1981. That agreement provided, among others, that the United States and Iran agreed to cancel certain claims between them and to establish a special tribunal to resolve other claims, including those by U.S. nationals against Iran. The United States also agreed to close its courts to those claims, as well as to suits by U.S. citizens against the government of Iran for recovery of damages arising from the Hostage Crisis. Although the agreement was entered into by the President pursuant to Congressional authorization, the Court found that the Presidents action with regard to claims was not so authorized. Nevertheless, the U.S. Supreme Court, noting the power of presidents in foreign affairs which includes the power to settle claims, as well as Congressional acquiescence to such practice, upheld the validity of the Algiers Accord. Upon the other hand, those opposed to sole executive agreements argue that the pronouncements of the Court in the Belmont and Pink cases mean that sole executive agreements override state legislation only when foundedupon the Presidents constitutional power to recognize foreign governments.59 While treaties and sole executive agreements have the same legal effect on state law, sole executive agreements pale in comparison to treaties when pitted against prior inconsistent acts of Congress . The U.S. Supreme Court has long ago declared that the Constitution mandates that a treaty and an act of legislation are both "supreme law of the land." As such, no supreme efficacy is given to one over the other. If the two relate to the same subject matter and are inconsistent, the one later in date will prevail, provided the treaty is self-executing,60 i.e., "whenever it operates of itself without aid of legislation."61 In The Cherokee Tobacco (Boudinot v. United States),62 the U.S. Supreme Court also held that where there is repugnance between a treaty and an Act of Congress, "(a) treaty may supersede a prior Act of Congress . . . and an Act of Congress may supersede a prior treaty. . . ." 63 Settled is the rule, therefore, that a treaty supersedes an earlier repugnant Act of Congress, and an Act of Congress supersedes an earlier contradictory treaty.64 As a corollary, a treaty, being placed on the same footing as an act of legislation,65 can repeal or modify a prior inconsistent treaty. In the case of sole executive agreements, commentators have been in general agreement that unlike treaties,sole executive agreements cannot prevail over prior inconsistent federal legislation. Even proponents of sole executive agreements admit that while a self-executing treaty can supersede a prior inconsistent statute, it is very doubtful whether a sole executive agreement, in the absence of appropriate legislation, will be given similar effect.66 Wallace McClure, a leading proponent of the interchangeability of treaties and executive agreements, opined that it would be contrary to "the entire tenor of the Constitution" 31

for sole executive agreements to supersede federal law.67 The Restatement (Third) of the Foreign Relations Law of the United States postulates that a sole executive agreement could prevail at least over state law, and (only) possibly federal law without implementing legislation.68 Myer S. McDougal and Asher Lans who are staunch advocates of executive agreements also concede that sole executive agreements will not ordinarily be valid if repugnant to existing legislation.69 In United States v. Guy W. Capps, Inc.,70 a leading lower court decision discussing the issue of supremacy of executive agreements over federal legislation, the Fourth Circuit held that, "the executive agreement was void because it was not authorized by Congress and contravened provisions of a statute dealing with the very matter to which it related..."71 The U.S. Supreme Court itself has "intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an Act of Congress."72 The reason for this is that the U.S. Presidents power to enter into international agreements derives from his position as Chief Executive.By Sec. 7, Art. 1 of the U.S. Constitution, the president does not have power to repeal existing federal laws. Consequently, he cannot make an indirect repeal by means of a sole executive agreement.73 On the other side of the coin, it is argued, that when the U.S. President enters into a sole executive agreement pursuant to his exclusive presidential authority in the field of foreign relations, such agreement may prevail over prior inconsistent federal legislation.74 In this situation, the doctrine of separation of powers may permit the U.S. President to disregard the prior inconsistent Act of Congress as an "unconstitutional invasion of his power."75However, aside from lacking firm legal support, this view has to contend with the problem of determining which powers are exclusively executive and which powers overlap with the powers of Congress.76 Again, although it is doubtful whether sole executive agreements can supersede prior inconsistent federal legislation, proponents of sole executive agreements interpret the Pink case to mean that sole executive agreements are on equal footing with a treaty, having been accorded the status of "law of the land" under the supremacy clause and the Litvinov Assignment having been recognized to have similar dignity as a treaty.77 As such, it is opined that a sole executive agreement may supersede a prior inconsistent treaty. Treaties of the United States have in fact been terminated on several occasions by the President on his own authority.78 President Roosevelt terminated at least two treaties under his independent constitutional powers: the extradition treaty with Greece, in 1933, and the Treaty of Commerce and Navigation with Japan, in 1939.79 That sole executive agreements may repeal or terminate a treaty is impliedly recognized in Charlton v. Kelly80 as follows: "The executive department having thus elected to waive any right to free itself from the obligation [of the treaty], it is the plain duty of the court to recognize the obligation.81 As against the U.S. Constitution, treaties and sole executive agreements are in equal footing as they are subject to the same limitations. As early as 1870, the U.S. Supreme Court declared that, "a treaty cannot change the Constitution or be held valid if it be in violation of that instrument." 82 In Missouri v. Holland,83 it was held that treaties must not violate the Constitution.84 The U.S. Supreme Court also discussed the constitutionally implied limitations on the treaty making power in Reid v. Covert,85 where Justice Black stated that "(n)o agreement with a foreign nation can confer power on the Congress, or any other branch of Government, which is free from the restraints of the Constitution." 86 He concluded that the U.S. Constitution provides limits to the acts of the president, the joint action of the president and the Senate, and consequently limits the treaty making power.87 There is no dispute that the constitutional limitations relating to treaties also apply to sole executive agreements. It is well-settled that the due process clause of the Fifth Amendment and other substantive provisions of the U.S. Constitution constitute limitations on both treaties and executive agreements.88 Numerous decisions have also held that both treaties and sole executive agreements cannot contravene private rights protected by the U.S. Constitution.89 In conclusion, after a macro view of the landscape of U.S. foreign relations vis-a-vis U.S. constitutional law, with special attention on the legal status of sole executive agreements, I respectfully submit that the Court will be standing on unstable ground if it places a sole executive agreement like the VFA on the same constitutional plateau as a treaty. Questions remain and the debate continues on the constitutional basis as well as the legal effects of sole executive agreements under U.S. law . The observation of Louis Henkin, a noted international and U.S. constitutional law scholar, captures the 32

sentiments of the framers of the Philippine Constitution and of the Filipinos in crafting Sec. 25, Art. XVIII of the 1987 Constitution -- "(o)ften the treaty process will be used at the insistence of other parties to an agreement because they believe that a treaty has greater dignity than an executive agreement, because its constitutional effectiveness is beyond doubt, because a treaty will commit the Senate and the people of the United States and make its subsequent abrogation or violation less likely."90 With the cloud of uncertainty still hanging on the exact legal force of sole executive agreements under U.S. constitutional law, this Court must strike a blow for the sovereignty of our country by drawing a bright line between the dignity and status of a treaty in contrast with a sole executive agreement. However we may wish it, the VFA, as a sole executive agreement, cannot climb to the same lofty height that the dignity of a treaty can reach. Consequently, it falls short of the requirement set by Sec. 25, Art. XVIII of the 1987 Constitution that the agreement allowing the presence of foreign military troops on Philippine soil must be "recognized as a treaty by the other contracting state." I vote to grant the petitions.

Footnotes
1

Rollo, pp. 140-141; Consolidated Comment, pp. 20-21. Entered into force on August 27, 1952. The Preamble of the VFA states in relevant part as follows:

The Government of the Republic of the Philippines and the Government of the United States of America, Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951; xxx
4

Transcript of Committee Meeting, Committee on Foreign Relations, January 26, 1999 [hereinafter referred to as Transcript], p. 21.
5

Id., pp. 103-104. Id., p. 34. Id., p. 104. Blacks Law Dictionary (6th ed.), p. 1464. Id., p. 1139. Bouviers Law Dictionary (Third Revision), p. 3254. Id., p. 2568. Entered into force on March 26, 1947. Transcript, p. 139.

10

11

12

13

14

IV Record of the Constitutional Commission (1986) [hereinafter referred to as the Record], p. 780. 33

15

Bernas, Constitution Explicit on VFA, Today, May 5, 1999. Record, p. 781. Record, pp. 780-783.

16

17

18

Henkin, Foreign Affairs and the United States Constitution, 2nd ed., pp. 184-185 (1996), citing Restatement (Third) of the Foreign Relations Law of the United States, sec. 301, adopting Article 1 of the Vienna Convention on the Law of Treaties.
19

Knaupp, Classifying International Agreements Under U.S. Law: The Beijing Platform as a Case Study, Brigham Young University Law Review, vol. 1998 (1), p. 244, citing Carter and Trimble, International Law, p. 110 (1995).
20

Vienna Convention on the Law of Treaties, U.N. Doc. A/C.39/27 (1969), sec. 1, art. II. Knaupp, op cit. supra note 19, citing Carter and Trimble, op. cit. supra note 19 at 165-166.

21

22

McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy: 1, The Yale Law Journal, vol. 54 (2), pp. 197-198 (1945).
23

Henkin, op. cit. supra note 18 at 215.

24

McCormick, American Foreign Policy and Process, 2nd ed., p. 276 (1992), citing Nelson, Congressional Quarterlys Guide to the Presidency (Washington, D.C.: Congressional Quarterly, Inc., 1989), p. 1104.
25

Id., pp. 277-278. Id., p. 278. Id., p. 288. Id., p. 298. Id., p. 300.

26

27

28

29

30

Rotunda, Nowak, and Young, Treatise on Constitutional Law - Substance and Procedure [hereinafter referred to as Treatise], p. 394 (1986), citing Restatement of the Law, 2d, Foreign Relations of the United States, sec. 119 (1965).
31

Id., sec. 120. Id., sec. 121. Randall, The Treaty Power, 51 Ohio St. L.J., p. 6 (1990). Id., p. 7. Id., citing McDougal and Lans, supra note 22 at 212. Randall, op. cit. supra note 33 at 8, citing McDougal and Lans, supra note 22 at 261-306. Randall, op. cit. supra note 33 at 10-11. 34

32

33

34

35

36

37

38

Supra, note 3. Randall, op. cit. supra note 33 at 6. 136 UNTS 216 (1952). Consolidated Memorandum, p. 29. 199 UNTS 67 (1954). 34 UNTS 244 (1949). Consolidated Memorandum, p. 33. Randall, op. cit. supra note 33 at 4. Weston, Falk, DAmato, International Law and World Order, p. 926 (1980). U.S. Const., Art. VI, sec. 2. Maris, International Law, An Introduction (1984), p. 224, citing In re Aircrash in Bali, 1982. United States v. Belmont, 81 L. Ed. 1134 (1937). Ibid. Id., p. 1139. Id., at 1137. See note 51, supra. Id., p. 1140. 315 U.S. 203, 62 S. Ct. 552, 86 L. Ed. 796 (1942). Id., p. 818.

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

McDougal and Lans, op. cit. supra note 22 at 310, citing Monaco v. Mississippi, 292 U.S. 313, 331 (1934) (emphasis supplied).
58

453 U.S. 654 (1981).

59

For criticism of such view, see Mathews, The Constitutional Power of the President to Conclude International Agreements, The Yale Law Journal, vol. 64, p. 376 (1954-1955) and McCormick, American Foreign Policy and Process, 2nd ed., p. 282 (1992), citing Henkin, "Foreign Affairs and the Constitution," Foreign Affairs 66 (Winter 1987/88), p. 185.
60

Henkin, Foreign Affairs and the United States Constitution, 2nd ed., p. 209 (1996), citing Whitney v. Robertson, 124 U.S. 190, 194 (1888).
61

Id., p. 199, quoting Chief Justice Marshall. 11 Wallace 616 (1870). Byrd, Jr., Treaties and Executive Agreements in the United States, Their Separate Roles 35

62

63

and Limitations, p. 82 (1960).

64

Id., p. 83. Supra, note 60, p. 209.

65

66

Mathews, op. cit. supra note 59 at p. 381, citing Lissitzyn, The Legal Status of Executive Agreements on Air Transportation, 17 J. Air L. & Comm. 436, 444 (1950); Corwin, The Presidents Control of Foreign Relations 120 (1917); Hearings before Subcommittee of Senate Committee on the Judiciary on S.J. Res. 1 & S.J. Res. 43, 83d Cong., 1st sess. 224, 247 & n.57 (1953); MacChesney, et al., The Treaty Power and the Constitution: The Case Against Amendment, 40 A.B.A.J. 203, 205 (1954).
67

Paul, The Geopolitical Constitution: Executive Expediency and Executive Agreements, 86(4) California Law Review, Note 287 (1998), citing McClure, International Executive Agreements, p. 343 (1967).
68

Id., p. 729, citing Restatement (Third) of the Foreign Relations Law of the United States, sec. 303 cmt.j.
69

McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy: 1, The Yale Law Journal, vol. 54 (1), p. 317 (1945).
70

204 F.2d 655 (4th Cir. 1953), affirmed on other grounds, 348 U.S. 296, 75 S. Ct. 326, 99 L.Ed. 329 (1955).
71

Treatise, p. 399.

72

Mathews, op. cit. supra note 59 at 381, citing Youngstown & Tube Co. v. Sawyer, 343 U.S. 579, 635-36 n.2 (1952) (concurring opinion of Jackson).
73

Mathews, op. cit. supra note 59 at 381. Treatise, p. 401. See note 69, supra.

74

75

76

See Powell, The Presidents Authority over Foreign Affairs: An Executive Branch Perspective, 67 The George Washington Law Review, p. 550 (1999).
77

Mathews, op. cit. supra note 59 at 381.

78

Note 154, Mathews, op. cit. supra note 59, citing Corwin, The President: Office and Powers 243 (2nd ed. 1941).
79

Id., p. 376, citing Corwin op. cit. supra note 66 at 417. 229 U.S. 447, 474, 476 (1913). Note 154, Mathews, op. cit. supra note 59 at 376.

80

81

82

Byrd, Treaties and Executive Agreements in the United States, Their separate roles and limitations, p. 84 (1960), citing The Cherokee Tobacco (Boudinot v. United States), 11 Wallace 616 at 620 (1870). 36

83

252 U.S. 416 (1920). Maris, International Law, An Introduction, p. 224 (1984). 354 U.S. at 16, 77 S.Ct. at 1230.

84

85

86

Treatise, p. 387. See also, Geofrey v. Riggs, 133 U.S. 258, 267, 10 S.Ct. 295, 297, 33 L. Ed. 642 (1890); Holden v. Joy, 84 U.S. (17 Wall.) 211, 242-43, 21 L. Ed. 523 (1872); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620-21, 20 L. Ed. 227 (1870); Doe v. Braden, 57 U.S. (16 How.) 635, 657, 14 L. Ed. 1090 (1853); New Orleans v. United States, 35 U.S. (10 Pet.) 662, 736, 9 L. Ed. 573 (1836).
87

Ibid. McDougal and Lans, op. cit. supra note 69 at 315.

88

89

Mathews, op. cit. supra note 59, p. 377, citing Missouri v. Holland, 252 U.S. 416, 433 (1920) (dictum); Geoffrey v. Riggs, 133 U.S. 258, 267 (1890) (same); The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 620-21 (1870) (same). See also Henkin, op. cit. supra note 60 at 185.
90

Henkin, Foreign Affairs and the United States Constitution, 2nd ed., p. 224 (1996).

The Lawphil Project - Arellano Law Foundation

37

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-14279 October 31, 1961

THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners, vs. EASTERN SEA TRADING, respondent. Office of the Solicitor General for petitioners. Valentin Gutierrez for respondent. CONCEPCION, J.: Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the Commissioner of Customs. Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic which arrived at the Port of Manila from August 25 to September 7, 1954. Some shipments came from Japan and others from Hong Kong. In as much as none of the shipments had the certificate required by Central Bank Circulars Nos. 44 and 45 for the release thereof, the goods thus imported were seized and subjected to forfeiture proceedings for alleged violations of section 1363(f) of the Revised Administrative Code, in relation to the aforementioned circulars of the Central Bank. In due course, the Collector of Customs of Manila rendered a decision on September 4, 1956, declaring said goods forfeited to the Government and the goods having been, in the meantime, released to the consignees on surety bonds, filed by the same, as principal, and the Alto Surety & Insurance Co., Inc., as surety, in compliance with orders of the Court of First Instance of Manila, in Civil Cases Nos. 23942 and 23852 thereof directing that the amounts of said bonds be paid, by said principal and surety, jointly and severally, to the Bureau of Customs, within thirty (30) days from notice. On appeal taken by the consignee, said decision was affirmed by the Commissioner of Customs on December 27, 1956. Subsequently, the consignee sought a review of the decision of said two (2) officers by the Court of Tax Appeals, which reversed the decision of the Commissioner of Customs and ordered that the aforementioned bonds be cancelled and withdrawn. Hence, the present petition of the Commissioner of Customs for review of the decision of the Court of Tax Appeals. The latter is based upon the following premises, namely: that the Central Bank has no authority to regulate transactions not involving foreign exchange; that the shipments in question are in the nature of "no-dollar" imports; that, as such, the aforementioned shipments do not involve foreign exchange; that, insofar as a Central Bank license and a certificate authorizing the importation or release of the goods under consideration are required by Central Bank Circulars Nos. 44 and 45, the latter are null and void; and that the seizure and forfeiture of the goods imported from Japan cannot be justified under Executive Order No. 328, 1 not only because the same seeks to implement an executive agreement2 extending the effectivity of our3 Trades and Financial Agreements4 with Japan which (executive agreement), it believed, is of dubious validity, but, also, because there is no governmental agency authorized to issue the import license required by the aforementioned executive order. The authority of the Central Bank to regulate no-dollar imports and the validity of the aforementioned Circulars Nos. 44, and 45 have already been passed upon and repeatedly upheld by this Court (Pascual vs. Commissioner of Customs, L-10979 [June 30, 1959]; Acting Commissioner of Customs vs. Leuterio, L-9142 [October 17, 1959] Commissioner of Customs vs. Pascual, L-9836 [November 18, 1959]; Commissioner of Customs vs. Serree Investment Co., L-12007 [May 16, 1960]; Commissioner of Customs vs. Serree Investment Co., L-14274 [November 29, 1960]), for the reason that the broad powers of the Central Bank, 38

under its charter, to maintain our monetary stability and to preserve the international value of our currency, under section 2 of Republic Act No. 265, in relation to section 14 of said Act authorizing the bank to issue such rules and regulations as it may consider necessary for the effective discharge of the responsibilities and the exercise of the powers assigned to the Monetary Board and to the Central Bank connote the authority to regulate no-dollar imports, owing to the influence and effect that the same may and do have upon the stability of our peso and its international value. The Court of Tax Appeals entertained doubts on the legality of the executive agreement sought to be implemented by Executive Order No. 328, owing to the fact that our Senate had not concurred in the making of said executive agreement. The concurrence of said House of Congress is required by our fundamental law in the making of "treaties" (Constitution of the Philippines, Article VII, Section 10[7]), which are, however, distinct and different from "executive agreements," which may be validly entered into without such concurrence. Treaties are formal documents which require ratification with the approval of two thirds of the Senate. Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress. xxx xxx xxx

. . . the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts. xxx xxx xxx

Agreements with respect to the registration of trade-marks have been concluded by the Executive with various countries under the Act of Congress of March 3, 1881 (21 Stat. 502). Postal conventions regulating the reciprocal treatment of mail matters, money orders, parcel post, etc., have been concluded by the Postmaster General with various countries under authorization by Congress beginning with the Act of February 20, 1792 (1 Stat. 232, 239). Ten executive agreements were concluded by the President pursuant to the McKinley Tariff Act of 1890 (26 Stat. 567, 612), and nine such agreements were entered into under the Dingley Tariff Act 1897 (30 Stat. 151, 203, 214). A very much larger number of agreements, along the lines of the one with Rumania previously referred to, providing for most-favored-nation treatment in customs and related matters have been entered into since the passage of the Tariff Act of 1922, not by direction of the Act but in harmony with it. xxx xxx xxx

International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements. xxx xxx xxx

Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis-Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S., 188 F. 2d. 288; Yale Law Journal, Vol. 15, pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [Revised Edition], Vol. 39

2, pp. 1405, 1416-1418; Willoughby on the U.S. Constitutional Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Emphasis supplied.) In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in his work on "The Constitutionality of Trade Agreement Acts": Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated "agreements" time or "protocols". The point where ordinary correspondence between this and other governments ends and agreements whether denominated executive agreements or exchanges of notes or otherwise begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreements act, have been negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that the trade agreements under the act of 1934 are not anomalous in character, that they are not treaties, and that they have abundant precedent in our history, to refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate. They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etcetera. Some of them were concluded not by specific congressional authorization but in conformity with policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still others, particularly those with respect of the settlement of claims against foreign governments, were concluded independently of any legislation." (39 Columbia Law Review, pp. 651, 755.) The validity of the executive agreement in question is thus patent. In fact, the so-called Parity Rights provided for in the Ordinance Appended to our Constitution were, prior thereto, the subject of an executive agreement, madewithout the concurrence of two-thirds (2/3) of the Senate of the United States. Lastly, the lower court held that it would be unreasonable to require from respondent-appellee an import license when the Import Control Commission was no longer in existence and, hence, there was, said court believed, no agency authorized to issue the aforementioned license. This conclusion is untenable, for the authority to issue the aforementioned licenses was not vested exclusively upon the Import Control Commission or Administration. Executive Order No. 328 provided for export or import licenses "from the Central Bank of the Philippines or the Import Control Administration" or Commission. Indeed, the latter was created only to perform the task of implementing certain objectives of the Monetary Board and the Central Bank, which otherwise had to be undertaken by these two (2) agencies. Upon the abolition of said Commission, the duty to provide means and ways for the accomplishment of said objectives had merely to be discharged directly by the Monetary Board and the Central Bank, even if the aforementioned Executive Order had been silent thereon. WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered affirming that of the Commissioner of Customs, with cost against respondents defendant-appellee, Eastern Sea Trading. It is so ordered. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Paredes, Dizon and De Leon, JJ., concur. Barrera, J., took no part.

Footnotes
1

Dated June 22, 1950. It provides, inter alia, that from and after said date, no commodity may 40

be exported to or imported from Occupied Japan without an export or import license from the Central Bank of the Philippines or the Import Control Administration, and that the annual exports and imports to the Philippines and from Occupied Japan, as contained in the Trade Plan shall be allocated and the licenses therefor shall be issued only to bona fide Philippine exporters and importers, subject to the provisions of section 9 of said Executive Order and to such rules and regulations as may be prescribed by the Import Control Administration and the Central Bank of the Philippines.
2

According to a communication dated April 24, 1957 of the then Acting Secretary of Foreign Affairs (Exhibit F), Japan was subrogated into the rights, obligations and interests of the SCAP and Japan on March 19, 1952, and since then the agreements have been extended mutatis mutandis 18 times, the current one to expire at the end of April, 1957.
3

The Trade Agreement, dated May 18, 1950, provides, inter alia, for the adoption of a trade plan, on an annual basis, between the Philippines and Occupied Japan; that, subject to exceptions, all trade shall be conducted in accordance with the Financial Agreement between the two countries, and through specified channels; that subject to exchange, import and export control restrictions, both countries would permit the importation from and exportation to each other of the commodities specified in the trade plan, within specified limits; that consultations would be held for necessary modifications of the trade plan; that a machinery would be established to ensure accurate and up-to-date information regarding the operation of the agreement and to insure the implementation of the trade plan; and that the parties would do everything feasible to ensure compliance with the export-import control, exchange control and such other controls pertaining to international trade as may be in force in their respective territories from time to time. The agreement, likewise, specifies the method of revision or cancellation thereof, the procedure for the review of the trading position between the parties and the time of its effectivity (upon "exchange of formal ratification", pending which, "it shall take effect upon signature by authorized representatives as modus vivendi between the parties").
4

The Financial Agreement, dated May 18, 1950, provides, inter alia, that all transactions covered by the Trade Agreement shall be invoiced in U.S.A. dollars and shall be entered into the account of each party to be maintained in the books of the principal financial agent banks designated by each party; that debits and credits shall be offset against each other in said accounts and payments shall be made on the net balance only; that the Agreement may be revised in the manner therein stated; that the representatives of both parties may negotiate and conclude of the agreement; and that the same shall be effective upon exchange of formal ratification, pending which it shall take effect upon signature of the agreement as a modus vivendibetween the parties.

The Lawphil Project - Arellano Law Foundation

41

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 127105 June 25, 1999 COMMISSIONER OF INTERNAL REVENUE, petitioner, vs. S.C. JOHNSON AND SON, INC., and COURT OF APPEALS, respondents.

GONZAGA-REYES, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to set aside the decision of the Court of Appeals dated November 7, 1996 in CA-GR SP No. 40802 affirming the decision of the Court of Tax Appeals in CTA Case No. 5136. The antecedent facts as found by the Court of Tax Appeals are not disputed, to wit: [Respondent], a domestic corporation organized and operating under the Philippine laws, entered into a license agreement with SC Johnson and Son, United States of America (USA), a non-resident foreign corporation based in the U.S.A. pursuant to which the [respondent] was granted the right to use the trademark, patents and technology owned by the latter including the right to manufacture, package and distribute the products covered by the Agreement and secure assistance in management, marketing and production from SC Johnson and Son, U. S. A. The said License Agreement was duly registered with the Technology Transfer Board of the Bureau of Patents, Trade Marks and Technology Transfer under Certificate of Registration No. 8064 (Exh. "A"). For the use of the trademark or technology, [respondent] was obliged to pay SC Johnson and Son, USA royalties based on a percentage of net sales and subjected the same to 25% withholding tax on royalty payments which [respondent] paid for the period covering July 1992 to May 1993 in the total amount of P1,603,443.00 (Exhs. "B" to "L" and submarkings). On October 29, 1993, [respondent] filed with the International Tax Affairs Division (ITAD) of the BIR a claim for refund of overpaid withholding tax on royalties arguing that, "the antecedent facts attending [respondent's] case fall squarely within the same circumstances under which said MacGeorge and Gillete rulings were issued. Since the agreement was approved by the Technology Transfer Board, the preferential tax rate of 10% should apply to the [respondent]. We therefore submit that royalties paid by the [respondent] to SC Johnson and Son, USA is only subject to 10% withholding tax pursuant to the most-favored nation clause of the RP-US Tax Treaty [Article 13 Paragraph 2 (b) (iii)] in relation to the RP-West Germany Tax Treaty [Article 12 (2) (b)]" (Petition for Review [filed with the Court of Appeals], par. 12). [Respondent's] claim for there fund of P963,266.00 was computed as follows: Gross 25% 10% 42

Month/ Royalty Withholding Withholding Year Fee Tax Paid Tax Balance July 1992 559,878 139,970 55,988 83,982 August 567,935 141,984 56,794 85,190 September 595,956 148,989 59,596 89,393 October 634,405 158,601 63,441 95,161 November 620,885 155,221 62,089 93,133 December 383,276 95,819 36,328 57,491 Jan 1993 602,451 170,630 68,245 102,368 February 565,845 141,461 56,585 84,877 March 547,253 136,813 54,725 82,088 April 660,810 165,203 66,081 99,122 May 603,076 150,769 60,308 90,461 P6,421,770 P1,605,443 P642,177 P963,266 1 ======== ======== ======== ======== The Commissioner did not act on said claim for refund. Private respondent S.C. Johnson & Son, Inc. (S.C. Johnson) then filed a petition for review before the Court of Tax Appeals (CTA) where the case was docketed as CTA Case No. 5136, to claim a refund of the overpaid withholding tax on royalty payments from July 1992 to May 1993. On May 7, 1996, the Court of Tax Appeals rendered its decision in favor of S.C. Johnson and ordered the Commissioner of Internal Revenue to issue a tax credit certificate in the amount of P963,266.00 representing overpaid withholding tax on royalty payments, beginning July, 1992 to May, 1993. 2 The Commissioner of Internal Revenue thus filed a petition for review with the Court of Appeals which rendered the decision subject of this appeal on November 7, 1996 finding no merit in the petition and affirming in toto the CTA ruling. 3 This petition for review was filed by the Commissioner of Internal Revenue raising the following issue: THE COURT OF APPEALS ERRED IN RULING THAT SC JOHNSON AND SON, USA IS ENTITLED TO THE "MOST FAVORED NATION" TAX RATE OF 10% ON ROYALTIES AS PROVIDED IN THE RP-US TAX TREATY IN RELATION TO THE RPWEST GERMANY TAX TREATY. Petitioner contends that under Article 13(2) (b) (iii) of the RP-US Tax Treaty, which is known as the "most favored nation" clause, the lowest rate of the Philippine tax at 10% may be imposed on royalties derived by a 43

resident of the United States from sources within the Philippines only if the circumstances of the resident of the United States are similar to those of the resident of West Germany. Since the RP-US Tax Treaty contains no "matching credit" provision as that provided under Article 24 of the RP-West Germany Tax Treaty, the tax on royalties under the RP-US Tax Treaty is not paid under similar circumstances as those obtaining in the RPWest Germany Tax Treaty. Even assuming that the phrase "paid under similar circumstances" refers to the payment of royalties, and not taxes, as held by the Court of Appeals, still, the "most favored nation" clause cannot be invoked for the reason that when a tax treaty contemplates circumstances attendant to the payment of a tax, or royalty remittances for that matter, these must necessarily refer to circumstances that are taxrelated. Finally, petitioner argues that since S.C. Johnson's invocation of the "most favored nation" clause is in the nature of a claim for exemption from the application of the regular tax rate of 25% for royalties, the provisions of the treaty must be construed strictly against it. In its Comment, private respondent S.C. Johnson avers that the instant petition should be denied (1) because it contains a defective certification against forum shopping as required under SC Circular No. 28-91, that is, the certification was not executed by the petitioner herself but by her counsel; and (2) that the "most favored nation" clause under the RP-US Tax Treaty refers to royalties paid under similar circumstances as those royalties subject to tax in other treaties; that the phrase "paid under similar circumstances" does not refer to payment of the tax but to the subject matter of the tax, that is, royalties, because the "most favored nation" clause is intended to allow the taxpayer in one state to avail of more liberal provisions contained in another tax treaty wherein the country of residence of such taxpayer is also a party thereto, subject to the basic condition that the subject matter of taxation in that other tax treaty is the same as that in the original tax treaty under which the taxpayer is liable; thus, the RP-US Tax Treaty speaks of "royalties of the same kind paid under similar circumstances". S.C. Johnson also contends that the Commissioner is estopped from insisting on her interpretation that the phrase "paid under similar circumstances" refers to the manner in which the tax is paid, for the reason that said interpretation is embodied in Revenue Memorandum Circular ("RMC") 39-92 which was already abandoned by the Commissioner's predecessor in 1993; and was expressly revoked in BIR Ruling No. 052-95 which stated that royalties paid to an American licensor are subject only to 10% withholding tax pursuant to Art 13(2)(b)(iii) of the RP-US Tax Treaty in relation to the RP-West Germany Tax Treaty. Said ruling should be given retroactive effect except if such is prejudicial to the taxpayer pursuant to Section 246 of the National Internal Revenue Code. Petitioner filed Reply alleging that the fact that the certification against forum shopping was signed by petitioner's counsel is not a fatal defect as to warrant the dismissal of this petition since Circular No. 28-91 applies only to original actions and not to appeals, as in the instant case. Moreover, the requirement that the certification should be signed by petitioner and not by counsel does not apply to petitioner who has only the Office of the Solicitor General as statutory counsel. Petitioner reiterates that even if the phrase "paid under similar circumstances" embodied in the most favored nation clause of the RP-US Tax Treaty refers to the payment of royalties and not taxes, still the presence or absence of a "matching credit" provision in the said RPUS Tax Treaty would constitute a material circumstance to such payment and would be determinative of the said clause's application.1wphi1.nt We address first the objection raised by private respondent that the certification against forum shopping was not executed by the petitioner herself but by her counsel, the Office of the Solicitor General (O.S.G.) through one of its Solicitors, Atty. Tomas M. Navarro. SC Circular No. 28-91 provides: SUBJECT: ADDITIONAL REQUISITES FOR PETITIONS FILED WITH THE SUPREME COURT AND THE COURT OF APPEALS TO PREVENT FORUM SHOPPING OR MULTIPLE FILING OF PETITIONS AND COMPLAINTS TO: xxx xxx xxx The attention of the Court has been called to the filing of multiple petitions and complaints 44

involving the same issues in the Supreme Court, the Court of Appeals or other tribunals or agencies, with the result that said courts, tribunals or agencies have to resolve the same issues. (1) To avoid the foregoing, in every petition filed with the Supreme Court or the Court of Appeals, the petitioner aside from complying with pertinent provisions of the Rules of Court and existing circulars, must certify under oath to all of the following facts or undertakings: (a) he has not theretofore commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any tribunal or agency; . . . (2) Any violation of this revised Circular will entail the following sanctions: (a) it shall be a cause for the summary dismissal of the multiple petitions or complaints; . . . The circular expressly requires that a certificate of non-forum shopping should be attached to petitions filed before this Court and the Court of Appeals. Petitioner's allegation that Circular No. 28-91 applies only to original actions and not to appeals as in the instant case is not supported by the text nor by the obvious intent of the Circular which is to prevent multiple petitions that will result in the same issue being resolved by different courts. Anent the requirement that the party, not counsel, must certify under oath that he has not commenced any other action involving the same issues in this Court or the Court of Appeals or any other tribunal or agency, we are inclined to accept petitioner's submission that since the OSG is the only lawyer for the petitioner, which is a government agency mandated under Section 35, Chapter 12, title III, Book IV of the 1987 Administrative Code 4 to be represented only by the Solicitor General, the certification executed by the OSG in this case constitutes substantial compliance with Circular No. 28-91. With respect to the merits of this petition, the main point of contention in this appeal is the interpretation of Article 13 (2) (b) (iii) of the RP-US Tax Treaty regarding the rate of tax to be imposed by the Philippines upon royalties received by a non-resident foreign corporation. The provision states insofar as pertinent that 1) Royalties derived by a resident of one of the Contracting States from sources within the other Contracting State may be taxed by both Contracting States. 2) However, the tax imposed by that Contracting State shall not exceed. a) In the case of the United States, 15 percent of the gross amount of the royalties, and b) In the case of the Philippines, the least of: (i) 25 percent of the gross amount of the royalties; (ii) 15 percent of the gross amount of the royalties, where the royalties are paid by a corporation registered with the Philippine Board of Investments and engaged in preferred areas of activities; and (iii) the lowest rate of Philippine tax that may be imposed on royalties of the same kind paid under similar circumstances to a resident of a third State. xxx xxx xxx 45

(emphasis supplied) Respondent S. C. Johnson and Son, Inc. claims that on the basis of the quoted provision, it is entitled to the concessional tax rate of 10 percent on royalties based on Article 12 (2) (b) of the RP-Germany Tax Treaty which provides: (2) However, such royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed: xxx xxx xxx b) 10 percent of the gross amount of royalties arising from the use of, or the right to use, any patent, trademark, design or model, plan, secret formula or process, or from the use of or the right to use, industrial, commercial, or scientific equipment, or for information concerning industrial, commercial or scientific experience. For as long as the transfer of technology, under Philippine law, is subject to approval, the limitation of the tax rate mentioned under b) shall, in the case of royalties arising in the Republic of the Philippines, only apply if the contract giving rise to such royalties has been approved by the Philippine competent authorities. Unlike the RP-US Tax Treaty, the RP-Germany Tax Treaty allows a tax credit of 20 percent of the gross amount of such royalties against German income and corporation tax for the taxes payable in the Philippines on such royalties where the tax rate is reduced to 10 or 15 percent under such treaty. Article 24 of the RP-Germany Tax Treaty states 1) Tax shall be determined in the case of a resident of the Federal Republic of Germany as follows: xxx xxx xxx b) Subject to the provisions of German tax law regarding credit for foreign tax, there shall be allowed as a credit against German income and corporation tax payable in respect of the following items of income arising in the Republic of the Philippines, the tax paid under the laws of the Philippines in accordance with this Agreement on: xxx xxx xxx dd) royalties, as defined in paragraph 3 of Article 12; xxx xxx xxx c) For the purpose of the credit referred in subparagraph; b) the Philippine tax shall be deemed to be xxx xxx xxx cc) in the case of royalties for which the tax is reduced to 10 or 15 per cent according to paragraph 2 of Article 12, 20 percent of the gross amount of such royalties. 46

xxx xxx xxx According to petitioner, the taxes upon royalties under the RP-US Tax Treaty are not paid under circumstances similar to those in the RP-West Germany Tax Treaty since there is no provision for a 20 percent matching credit in the former convention and private respondent cannot invoke the concessional tax rate on the strength of the most favored nation clause in the RP-US Tax Treaty. Petitioner's position is explained thus: Under the foregoing provision of the RP-West Germany Tax Treaty, the Philippine tax paid on income from sources within the Philippines is allowed as a credit against German income and corporation tax on the same income. In the case of royalties for which the tax is reduced to 10 or 15 percent according to paragraph 2 of Article 12 of the RP-West Germany Tax Treaty, the credit shall be 20% of the gross amount of such royalty. To illustrate, the royalty income of a German resident from sources within the Philippines arising from the use of, or the right to use, any patent, trade mark, design or model, plan, secret formula or process, is taxed at 10% of the gross amount of said royalty under certain conditions. The rate of 10% is imposed if credit against the German income and corporation tax on said royalty is allowed in favor of the German resident. That means the rate of 10% is granted to the German taxpayer if he is similarly granted a credit against the income and corporation tax of West Germany. The clear intent of the "matching credit" is to soften the impact of double taxation by different jurisdictions. The RP-US Tax Treaty contains no similar "matching credit" as that provided under the RP-West Germany Tax Treaty. Hence, the tax on royalties under the RP-US Tax Treaty is not paid under similar circumstances as those obtaining in the RP-West Germany Tax Treaty. Therefore, the "most favored nation" clause in the RP-West Germany Tax Treaty cannot be availed of in interpreting the provisions of the RP-US Tax Treaty. 5 The petition is meritorious. We are unable to sustain the position of the Court of Tax Appeals, which was upheld by the Court of Appeals, that the phrase "paid under similar circumstances in Article 13 (2) (b), (iii) of the RP-US Tax Treaty should be interpreted to refer to payment of royalty, and not to the payment of the tax, for the reason that the phrase "paid under similar circumstances" is followed by the phrase "to a resident of a third state". The respondent court held that "Words are to be understood in the context in which they are used", and since what is paid to a resident of a third state is not a tax but a royalty "logic instructs" that the treaty provision in question should refer to royalties of the same kind paid under similar circumstances. The above construction is based principally on syntax or sentence structure but fails to take into account the purpose animating the treaty provisions in point. To begin with, we are not aware of any law or rule pertinent to the payment of royalties, and none has been brought to our attention, which provides for the payment of royalties under dissimilar circumstances. The tax rates on royalties and the circumstances of payment thereof are the same for all the recipients of such royalties and there is no disparity based on nationality in the circumstances of such payment. 6 On the other hand, a cursory reading of the various tax treaties will show that there is no similarity in the provisions on relief from or avoidance of double taxation 7 as this is a matter of negotiation between the contracting parties. 8 As will be shown later, this dissimilarity is true particularly in the treaties between the Philippines and the United States and between the Philippines and West Germany. The RP-US Tax Treaty is just one of a number of bilateral treaties which the Philippines has entered into for the avoidance of double taxation. 9 The purpose of these international agreements is to reconcile the national fiscal legislations of the contracting parties in order to help the taxpayer avoid simultaneous taxation in two different jurisdictions. 10 More precisely, the tax conventions are drafted with a view towards the elimination of international juridical double taxation, which is defined as the imposition of comparable taxes in two or more states on the same taxpayer in respect of the same subject matter and for identical periods. 11 The apparent rationale for doing away with double taxation is of encourage the free flow of goods and services and the movement of capital, technology and persons between countries, conditions deemed vital in creating robust and dynamic economies. 12 Foreign investments will only thrive in a fairly predictable and reasonable international investment climate and the protection against double taxation is crucial in creating such a climate. 13 47

Double taxation usually takes place when a person is resident of a contracting state and derives income from, or owns capital in, the other contracting state and both states impose tax on that income or capital. In order to eliminate double taxation, a tax treaty resorts to several methods. First, it sets out the respective rights to tax of the state of source or situs and of the state of residence with regard to certain classes of income or capital. In some cases, an exclusive right to tax is conferred on one of the contracting states; however, for other items of income or capital, both states are given the right to tax, although the amount of tax that may be imposed by the state of source is limited. 14 The second method for the elimination of double taxation applies whenever the state of source is given a full or limited right to tax together with the state of residence. In this case, the treaties make it incumbent upon the state of residence to allow relief in order to avoid double taxation. There are two methods of relief the exemption method and the credit method. In the exemption method, the income or capital which is taxable in the state of source or situs is exempted in the state of residence, although in some instances it may be taken into account in determining the rate of tax applicable to the taxpayer's remaining income or capital. On the other hand, in the credit method, although the income or capital which is taxed in the state of source is still taxable in the state of residence, the tax paid in the former is credited against the tax levied in the latter. The basic difference between the two methods is that in the exemption method, the focus is on the income or capital itself, whereas the credit method focuses upon the tax. 15 In negotiating tax treaties, the underlying rationale for reducing the tax rate is that the Philippines will give up a part of the tax in the expectation that the tax given up for this particular investment is not taxed by the other country. 16 Thus the petitioner correctly opined that the phrase "royalties paid under similar circumstances" in the most favored nation clause of the US-RP Tax Treaty necessarily contemplated "circumstances that are taxrelated". In the case at bar, the state of source is the Philippines because the royalties are paid for the right to use property or rights, i.e. trademarks, patents and technology, located within the Philippines. 17 The United States is the state of residence since the taxpayer, S. C. Johnson and Son, U. S. A., is based there. Under the RP-US Tax Treaty, the state of residence and the state of source are both permitted to tax the royalties, with a restraint on the tax that may be collected by the state of source. 18 Furthermore, the method employed to give relief from double taxation is the allowance of a tax credit to citizens or residents of the United States (in an appropriate amount based upon the taxes paid or accrued to the Philippines) against the United States tax, but such amount shall not exceed the limitations provided by United States law for the taxable year. 19 Under Article 13 thereof, the Philippines may impose one of three rates 25 percent of the gross amount of the royalties; 15 percent when the royalties are paid by a corporation registered with the Philippine Board of Investments and engaged in preferred areas of activities; or the lowest rate of Philippine tax that may be imposed on royalties of the same kind paid under similar circumstances to a resident of a third state. Given the purpose underlying tax treaties and the rationale for the most favored nation clause, the concessional tax rate of 10 percent provided for in the RP-Germany Tax Treaty should apply only if the taxes imposed upon royalties in the RP-US Tax Treaty and in the RP-Germany Tax Treaty are paid under similar circumstances. This would mean that private respondent must prove that the RP-US Tax Treaty grants similar tax reliefs to residents of the United States in respect of the taxes imposable upon royalties earned from sources within the Philippines as those allowed to their German counterparts under the RP-Germany Tax Treaty. The RP-US and the RP-West Germany Tax Treaties do not contain similar provisions on tax crediting. Article 24 of the RP-Germany Tax Treaty, supra, expressly allows crediting against German income and corporation tax of 20% of the gross amount of royalties paid under the law of the Philippines. On the other hand, Article 23 of the RP-US Tax Treaty, which is the counterpart provision with respect to relief for double taxation, does not provide for similar crediting of 20% of the gross amount of royalties paid. Said Article 23 reads: Article 23 Relief from double taxation Double taxation of income shall be avoided in the following manner: 48

1) In accordance with the provisions and subject to the limitations of the law of the United States (as it may be amended from time to time without changing the general principle thereof), the United States shall allow to a citizen or resident of the United States as a credit against the United States tax the appropriate amount of taxes paid or accrued to the Philippines and, in the case of a United States corporation owning at least 10 percent of the voting stock of a Philippine corporation from which it receives dividends in any taxable year, shall allow credit for the appropriate amount of taxes paid or accrued to the Philippines by the Philippine corporation paying such dividends with respect to the profits out of which such dividends are paid. Such appropriate amount shall be based upon the amount of tax paid or accrued to the Philippines, but the credit shall not exceed the limitations (for the purpose of limiting the credit to the United States tax on income from sources within the Philippines or on income from sources outside the United States) provided by United States law for the taxable year. . . . The reason for construing the phrase "paid under similar circumstances" as used in Article 13 (2) (b) (iii) of the RP-US Tax Treaty as referring to taxes is anchored upon a logical reading of the text in the light of the fundamental purpose of such treaty which is to grant an incentive to the foreign investor by lowering the tax and at the same time crediting against the domestic tax abroad a figure higher than what was collected in the Philippines. In one case, the Supreme Court pointed out that laws are not just mere compositions, but have ends to be achieved and that the general purpose is a more important aid to the meaning of a law than any rule which grammar may lay down. 20 It is the duty of the courts to look to the object to be accomplished, the evils to be remedied, or the purpose to be subserved, and should give the law a reasonable or liberal construction which will best effectuate its purpose. 21 The Vienna Convention on the Law of Treaties states that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and 22 purpose. As stated earlier, the ultimate reason for avoiding double taxation is to encourage foreign investors to invest in the Philippines a crucial economic goal for developing countries. 23 The goal of double taxation conventions would be thwarted if such treaties did not provide for effective measures to minimize, if not completely eliminate, the tax burden laid upon the income or capital of the investor. Thus, if the rates of tax are lowered by the state of source, in this case, by the Philippines, there should be a concomitant commitment on the part of the state of residence to grant some form of tax relief, whether this be in the form of a tax credit or exemption. 24 Otherwise, the tax which could have been collected by the Philippine government will simply be collected by another state, defeating the object of the tax treaty since the tax burden imposed upon the investor would remain unrelieved. If the state of residence does not grant some form of tax relief to the investor, no benefit would redound to the Philippines, i.e., increased investment resulting from a favorable tax regime, should it impose a lower tax rate on the royalty earnings of the investor, and it would be better to impose the regular rate rather than lose muchneeded revenues to another country. At the same time, the intention behind the adoption of the provision on "relief from double taxation" in the two tax treaties in question should be considered in light of the purpose behind the most favored nation clause. The purpose of a most favored nation clause is to grant to the contracting party treatment not less favorable than that which has been or may be granted to the "most favored" among other countries. 25 The most favored nation clause is intended to establish the principle of equality of international treatment by providing that the citizens or subjects of the contracting nations may enjoy the privileges accorded by either party to those of the most favored nation. 26 The essence of the principle is to allow the taxpayer in one state to avail of more liberal provisions granted in another tax treaty to which the country of residence of such taxpayer is also a party provided that the subject matter of taxation, in this case royalty income, is the same as that in the tax treaty under which the taxpayer is liable. Both Article 13 of the RP-US Tax Treaty and Article 12 (2) (b) of the RP-West Germany Tax Treaty, above-quoted, speaks of tax on royalties for the use of trademark, patent, and technology. The entitlement of the 10% rate by U.S. firms despite the absence of a matching credit (20% for royalties) would 49

derogate from the design behind the most grant equality of international treatment since the tax burden laid upon the income of the investor is not the same in the two countries. The similarity in the circumstances of payment of taxes is a condition for the enjoyment of most favored nation treatment precisely to underscore the need for equality of treatment. We accordingly agree with petitioner that since the RP-US Tax Treaty does not give a matching tax credit of 20 percent for the taxes paid to the Philippines on royalties as allowed under the RP-West Germany Tax Treaty, private respondent cannot be deemed entitled to the 10 percent rate granted under the latter treaty for the reason that there is no payment of taxes on royalties under similar circumstances. It bears stress that tax refunds are in the nature of tax exemptions. As such they are regarded as in derogation of sovereign authority and to be construed strictissimi juris against the person or entity claiming the exemption. 27The burden of proof is upon him who claims the exemption in his favor and he must be able to justify his claim by the clearest grant of organic or statute law. 28 Private respondent is claiming for a refund of the alleged overpayment of tax on royalties; however, there is nothing on record to support a claim that the tax on royalties under the RP-US Tax Treaty is paid under similar circumstances as the tax on royalties under the RP-West Germany Tax Treaty. WHEREFORE, for all the foregoing, the instant petition is GRANTED. The decision dated May 7, 1996 of the Court of Tax Appeals and the decision dated November 7, 1996 of the Court of Appeals are hereby SET ASIDE. SO ORDERED. Vitug, Panganiban and Purisima, JJ., concur. Romero, J., abroad, on official business leave. Footnotes 1 Petition, pp. 3-5; Rollo, pp. 10-12. 2 Rollo, p. 67. 3 Penned by Justice Hilarion L. Aquino, concurred in by Justices Jainal D. Rasul, Chairman, and Hector L. Hofilea. 4 Reiterated under Memorandum Circular No. 152 dated May 17, 1992. 5 Petition, pp. 10-11; Rollo, pp. 17-18. 6 See E. A. E. Ortuoste, Tax Treaty Rates: A Summary, Phil. Revenue Journal, vol. 34, No.2 March-April 1997. 7 Art. 24 RP-Australia, Article 23 RP-Belgium, Article 23 RP-Brazil, Article 22 RP-Canada, Article 23 RP-Denmark, Article 22, RP-Finland, Article 23 RP-France, Article 24, RP-Germany, Article 24, RP-India, Section 31 RP-Indonesia, Article 22 RP-Italy, Article 23 RP-Japan, Article 23 RPSouth Korea, Article 22 RP-Malaysia, Article 22 RP Netherlands, Article 23 RP-New Zealand, Article 23 RP-Pakistan, Section 29 RP-Singapore, Article 23 RP-Spain, Article 18 RP-Sweden, Article 23 RP-Thailand, Article 21 RP-United Kingdom, Article 23 RP-US. 8 See Toledo, International Aspects of Taxation, Proceedings of the Eleventh Annual Institute on Tax Law (1976) @ p. 19. 9 As of June 29, 1997, the following countries have entered into tax treaties with the Philippines for the avoidance of double taxation: Denmark, Singapore, Canada, France, United Kingdom, Pakistan, Australia, Japan, Belgium, New Zealand, Finland, Indonesia, Austria, United States of 50

America, Thailand, Germany, Malaysia, Korea, Sweden, Italy, Netherlands, Brazil, Spain, India, and Israel. 10 P. Baker, Double Taxation Conventions and International Tax Law (1994), 6. 11 Ibid., 11, citing the Committee on Fiscal Affairs of the Organization for Economic Co-operation and Development (OECD). 12 Ibid. 13 Ibid. 14 Ibid., 70. 15 Ibid., 70-72. 16 T. Toledo, Ibid., @ p. 18-19. Take the case of a hundred pesos dividend to be remitted to, let us say a stockholder of United States of America. The hundred peso dividend, if you apply the withholding tax assuming that there is no sparing credit, we taxed 35%. So, out of P100.00, you are taxed P35.00. The Philippines under this law is willing to tax him only at P15.00 so his net dividends is P85.00. If the United States will tax the full P85.00, there is no reason why we should reduce our tax. If we collected from him P35.00 tax out of the P100.00 dividend, then his net dividend is only P65.00. So, instead of transferring the collections from the Philippines Treasury to the U.S. Treasury, we might just as well retainer tax because we need these revenues. This is always true when it comes to a developing country such as ours entering into a treaty with developed country like U. S, what do we do in tax treaties? One or two things. First, we give consideration to investments especially where the investor controls either 10% of the voting shares of the company in the Philippines or 25% of its capital. When the investment exceeds this proportion I've just mentioned, we reduce the rate of tax from 15 to 10% on condition that on the tax credit provision in the same treaty we asked the developed country to credit this investor with the tax actually at a higher rate and was paid in the Philippines. In other words, there would be some incentives on the part of the foreigners to invest in the Philippines because the rates of tax are lowered and at the same time they are credited against the domestic tax abroad a figure higher than what was collected in the Philippines. . . . 17 Under Article 4 (3) of the RP-US Tax Treaty, royalties for the use of, or the right to use, property or rights shall be treated as income from sources within a Contracting State only to the extent that such royalties are for the use of, or the right use, such property or rights within that Contracting State.1wphi1.nt 18 RP-US Tax Treaty, Article 13. 19 Id, Article 23. 20 Litex Employees Association vs. Eduvala, 79 SCRA 88, September 22, 1977. 21 Paras, vs. Commission on Elections, G. R. No. 123169, November 4, 1996; San Miguel Corporation Employees Union-PTGWO vs. Confesor, G. R. No. 111262, September 19, 1996; Agujitas vs. Court of Appeals, G. R. No. 106560, August 23, 1996; Sajonas vs. Court of Appeals, G. R. No. 102377, July 5, 1996; Escribano vs. Avila, 85 SCRA 245, September 12, 1978; Homes Ins. Co. vs. Eastern Shipping Lines, 123 SCRA 424, July 20, 1983. 22 Vienna Convention on the Law of Treaties, Article 31. 51

23 Toledo, supra, at p. 17. 24 Ibid., 19. 25 Salonga, Yap, Public International Law, 255. 26 Black's Law Dictionary 5th ed., 913. 27 Commissioner of Internal Revenue vs. Tokyo Shipping Co., Ltd., 244 SCRA 332; Province of Tarlac vs. Alcantara, 216 SCRA 790; Magsaysay Lines, Inc. vs. Court of Appeals, 260 SCRA 513. 28 Wonder Mechanical Engineering Corporation vs. CTA, 64 SCRA 555.

The Lawphil Project - Arellano Law Foundation

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PHILIPPINE JURISPRUDENCE - FULL TEXT The Lawphil Project - Arellano Law Foundation G.R. No. 101538 June 23, 1992 AUGUSTO BENEDICTO SANTOS III vs. NORTHWEST ORIENT AIRLINES

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 101538 June 23, 1992 AUGUSTO BENEDICTO SANTOS III, represented by his father and legal guardian, Augusto Benedicto Santos, petitioner, vs. NORTHWEST ORIENT AIRLINES and COURT OF APPEALS, respondents.

CRUZ, J.: This case involves the Proper interpretation of Article 28(1) of the Warsaw Convention, reading as follows: Art. 28. (1) An action for damage must be brought at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination. The petitioner is a minor and a resident of the Philippines. Private respondent Northwest Orient Airlines (NOA) is a foreign corporation with principal office in Minnesota, U.S.A. and licensed to do business and maintain a branch office in the Philippines. On October 21, 1986, the petitioner purchased from NOA a round-trip ticket in San Francisco. U.S.A., for his flight from San Francisco to Manila via Tokyo and back. The scheduled departure date from Tokyo was December 20, 1986. No date was specified for his return to San Francisco. 1 On December 19, 1986, the petitioner checked in at the NOA counter in the San Francisco airport for his scheduled departure to Manila. Despite a previous confirmation and re-confirmation, he was informed that he had no reservation for his flight from Tokyo to Manila. He therefore had to be wait-listed. On March 12, 1987, the petitioner sued NOA for damages in the Regional Trial Court of Makati. On April 13, 1987, NOA moved to dismiss the complaint on the ground of lack of jurisdiction. Citing the abovequoted article, it contended that the complaint could be instituted only in the territory of one of the High Contracting Parties, before: 1. the court of the domicile of the carrier; 2. the court of its principal place of business; 3. the court where it has a place of business through which the contract had been made; 53

4. the court of the place of destination. The private respondent contended that the Philippines was not its domicile nor was this its principal place of business. Neither was the petitioner's ticket issued in this country nor was his destination Manila but San Francisco in the United States. On February 1, 1988, the lower court granted the motion and dismissed the case. 2 The petitioner appealed to the Court of Appeals, which affirmed the decision of the lower court. 3 On June 26, 1991, the petitioner filed a motion for reconsideration, but the same was denied. 4 The petitioner then came to this Court, raising substantially the same issues it submitted in the Court of Appeals. The assignment of errors may be grouped into two major issues, viz: (1) the constitutionality of Article 28(1) of the Warsaw Convention; and (2) the jurisdiction of Philippine courts over the case. The petitioner also invokes Article 24 of the Civil Code on the protection of minors. I THE ISSUE OF CONSTITUTIONALITY A. The petitioner claims that the lower court erred in not ruling that Article 28(1) of the Warsaw Convention violates the constitutional guarantees of due process and equal protection. The Republic of the Philippines is a party to the Convention for the Unification of Certain Rules Relating to International Transportation by Air, otherwise known as the Warsaw Convention. It took effect on February 13, 1933. The Convention was concurred in by the Senate, through its Resolution No. 19, on May 16, 1950. The Philippine instrument of accession was signed by President Elpidio Quirino on October 13, 1950, and was deposited with the Polish government on November 9, 1950. The Convention became applicable to the Philippines on February 9, 1951. On September 23, 1955, President Ramon Magsaysay issued Proclamation No. 201, declaring our formal adherence thereto. "to the end that the same and every article and clause thereof may be observed and fulfilled in good faith by the Republic of the Philippines and the citizens thereof." 5 The Convention is thus a treaty commitment voluntarily assumed by the Philippine government and, as such, has the force and effect of law in this country. The petitioner contends that Article 28(1) cannot be applied in the present case because it is unconstitutional. He argues that there is no substantial distinction between a person who purchases a ticket in Manila and a person who purchases his ticket in San Francisco. The classification of the places in which actions for damages may be brought is arbitrary and irrational and thus violates the due process and equal protection clauses. It is well-settled that courts will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination; the constitutional question must have been opportunely raised by the proper party; and the resolution of the question is unavoidably necessary to the decision of the case itself. 6 Courts generally avoid having to decide a constitutional question. This attitude is based on the doctrine of separation of powers, which enjoins upon the departments of the government a becoming respect for each other's acts.

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The treaty which is the subject matter of this petition was a joint legislative-executive act. The presumption is that it was first carefully studied and determined to be constitutional before it was adopted and given the force of law in this country. The petitioner's allegations are not convincing enough to overcome this presumption. Apparently, the Convention considered the four places designated in Article 28 the most convenient forums for the litigation of any claim that may arise between the airline and its passenger, as distinguished from all other places. At any rate, we agree with the respondent court that this case can be decided on other grounds without the necessity of resolving the constitutional issue. B. The petitioner claims that the lower court erred in not ruling that Art. 28(1) of the Warsaw Convention is inapplicable because of a fundamental change in the circumstances that served as its basis. The petitioner goes at great lengths to show that the provisions in the Convention were intended to protect airline companies under "the conditions prevailing then and which have long ceased to exist." He argues that in view of the significant developments in the airline industry through the years, the treaty has become irrelevant. Hence, to the extent that it has lost its basis for approval, it has become unconstitutional. The petitioner is invoking the doctrine of rebus sic stantibus. According to Jessup, "this doctrine constitutes an attempt to formulate a legal principle which would justify non-performance of a treaty obligation if the conditions with relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable." 7 The key element of this doctrine is the vital change in the condition of the contracting parties that they could not have foreseen at the time the treaty was concluded. The Court notes in this connection the following observation made in Day v. Trans World Airlines, Inc.: 8 The Warsaw drafters wished to create a system of liability rules that would cover all the hazards of air travel . . . The Warsaw delegates knew that, in the years to come, civil aviation would change in ways that they could not foresee. They wished to design a system of air law that would be both durable and flexible enough to keep pace with these changes . . . The ever-changing needs of the system of civil aviation can be served within the framework they created. It is true that at the time the Warsaw Convention was drafted, the airline industry was still in its infancy. However, that circumstance alone is not sufficient justification for the rejection of the treaty at this time. The changes recited by the petitioner were, realistically, not entirely unforeseen although they were expected in a general sense only. In fact, the Convention itself, anticipating such developments, contains the following significant provision: Article 41. Any High Contracting Party shall be entitled not earlier than two years after the coming into force of this convention to call for the assembling of a new international conference in order to consider any improvements which may be made in this convention. To this end, it will communicate with the Government of the French Republic which will take the necessary measures to make preparations for such conference. But the more important consideration is that the treaty has not been rejected by the Philippine government. The doctrine of rebus sic stantibus does not operate automatically to render the treaty inoperative. There is a necessity for a formal act of rejection, usually made by the head of State, with a statement of the reasons why compliance with the treaty is no longer required. In lieu thereof, the treaty may be denounced even without an expressed justification for this action. Such denunciation is authorized under its Article 39, viz:

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Article 39. (1) Any one of the High Contracting Parties may denounce this convention by a notification addressed to the Government of the Republic of Poland, which shall at once inform the Government of each of the High Contracting Parties. (2) Denunciation shall take effect six months after the notification of denunciation, and shall operate only as regards the party which shall have proceeded to denunciation. Obviously. rejection of the treaty, whether on the ground of rebus sic stantibus or pursuant to Article 39, is not a function of the courts but of the other branches of government. This is a political act. The conclusion and renunciation of treaties is the prerogative of the political departments and may not be usurped by the judiciary. The courts are concerned only with the interpretation and application of laws and treaties in force and not with their wisdom or efficacy. C. The petitioner claims that the lower court erred in ruling that the plaintiff must sue in the United States, because this would deny him the right to access to our courts. The petitioner alleges that the expenses and difficulties he will incur in filing a suit in the United States would constitute a constructive denial of his right to access to our courts for the protection of his rights. He would consequently be deprived of this vital guaranty as embodied in the Bill of Rights. Obviously, the constitutional guaranty of access to courts refers only to courts with appropriate jurisdiction as defined by law. It does not mean that a person can go to any court for redress of his grievances regardless of the nature or value of his claim. If the petitioner is barred from filing his complaint before our courts, it is because they are not vested with the appropriate jurisdiction under the Warsaw Convention, which is part of the law of our land. II THE ISSUE OF JURISDICTION. A. The petitioner claims that the lower court erred in not ruling that Article 28(1) of the Warsaw Convention is a rule merely of venue and was waived by defendant when it did not move to dismiss on the ground of improper venue. By its own terms, the Convention applies to all international transportation of persons performed by aircraft for hire. International transportation is defined in paragraph (2) of Article 1 as follows: (2) For the purposes of this convention, the expression "international transportation" shall mean any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated [either] within the territories of two High Contracting Parties . . . Whether the transportation is "international" is determined by the contract of the parties, which in the case of passengers is the ticket. When the contract of carriage provides for the transportation of the passenger between certain designated terminals "within the territories of two High Contracting Parties," the provisions of the Convention automatically apply and exclusively govern the rights and liabilities of the airline and its passenger. Since the flight involved in the case at bar is international, the same being from the United States to the Philippines and back to the United States, it is subject to the provisions of the Warsaw Convention, including Article 28(1), which enumerates the four places where an action for damages may be brought. Whether Article 28(1) refers to jurisdiction or only to venue is a question over which authorities are sharply divided. While the petitioner cites several cases holding that Article 28(1) refers to venue rather 56

than jurisdiction, 9 there are later cases cited by the private respondent supporting the conclusion that the provision is jurisdictional. 10 Venue and jurisdiction are entirely distinct matters. Jurisdiction may not be conferred by consent or waiver upon d court which otherwise would have no jurisdiction over the subject-matter of an action; but the venue of an action as fixed by statute may be changed by the consent of the parties and an objection that the plaintiff brought his suit in the wrong county may be waived by the failure of the defendant to make a timely objection. In either case, the court may render a valid judgment. Rules as to jurisdiction can never be left to the consent or agreement of the parties, whether or not a prohibition exists against their alteration. 11 A number of reasons tends to support the characterization of Article 28(1) as a jurisdiction and not a venue provision. First, the wording of Article 32, which indicates the places where the action for damages "must" be brought, underscores the mandatory nature of Article 28(1). Second, this characterization is consistent with one of the objectives of the Convention, which is to "regulate in a uniform manner the conditions of international transportation by air." Third, the Convention does not contain any provision prescribing rules of jurisdiction other than Article 28(1), which means that the phrase "rules as to jurisdiction" used in Article 32 must refer only to Article 28(1). In fact, the last sentence of Article 32 specifically deals with the exclusive enumeration in Article 28(1) as "jurisdictions," which, as such, cannot be left to the will of the parties regardless of the time when the damage occurred. This issue was analyzed in the leading case of Smith v. Canadian Pacific Airways, Ltd., 12 where it was held: . . . Of more, but still incomplete, assistance is the wording of Article 28(2), especially when considered in the light of Article 32. Article 28(2) provides that "questions of procedure shall be governed by the law of the court to which the case is submitted" (Emphasis supplied). Section (2) thus may be read to leave for domestic decision questions regarding the suitability and location of a particular Warsaw Convention case. In other words, where the matter is governed by the Warsaw Convention, jurisdiction takes on a dual concept. Jurisdiction in the international sense must be established in accordance with Article 28(1) of the Warsaw Convention, following which the jurisdiction of a particular court must be established pursuant to the applicable domestic law. Only after the question of which court has jurisdiction is determined will the issue of venue be taken up. This second question shall be governed by the law of the court to which the case is submitted. The petitioner submits that since Article 32 states that the parties are precluded "before the damages occurred" from amending the rules of Article 28(1) as to the place where the action may be brought, it would follow that the Warsaw Convention was not intended to preclude them from doing so "after the damages occurred." Article 32 provides: Art. 32. Any clause contained in the contract and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this convention, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless for the transportation of goods, arbitration clauses shall be allowed, subject to this convention, if the arbitration is to take place within one of the jurisdictions referred to in the first paragraph of Article 28. His point is that since the requirements of Article 28(1) can be waived "after the damages (shall have) occurred," the article should be regarded as possessing the character of a "venue" and not of a "jurisdiction" provision. Hence, in moving to dismiss on the ground of lack of jurisdiction, the private respondent has waived improper venue as a ground to dismiss.

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The foregoing examination of Article 28(1) in relation to Article 32 does not support this conclusion. In any event, we agree that even granting arguendo that Article 28(1) is a venue and not a jurisdictional provision, dismissal of the case was still in order. The respondent court was correct in affirming the ruling of the trial court on this matter, thus: Santos' claim that NOA waived venue as a ground of its motion to dismiss is not correct. True it is that NOA averred in its MOTION TO DISMISS that the ground thereof is "the Court has no subject matter jurisdiction to entertain the Complaint" which SANTOS considers as equivalent to "lack of jurisdiction over the subject matter . . ." However, the gist of NOA's argument in its motion is that the Philippines is not the proper place where SANTOS could file the action meaning that the venue of the action is improperly laid. Even assuming then that the specified ground of the motion is erroneous, the fact is the proper ground of the motion improper venue has been discussed therein. Waiver cannot be lightly inferred. In case of doubt, it must be resolved in favor of non-waiver if there are special circumstances justifying this conclusion, as in the petition at bar. As we observed in Javier vs. Intermediate Court of Appeals: 13 Legally, of course, the lack of proper venue was deemed waived by the petitioners when they failed to invoke it in their original motion to dismiss. Even so, the motivation of the private respondent should have been taken into account by both the trial judge and the respondent court in arriving at their decisions. The petitioner also invokes KLM Royal Dutch Airlines v. RTC, 14 a decision of our Court of Appeals, where it was held that Article 28(1) is a venue provision. However, the private respondent avers that this was in effect reversed by the case of Aranas v. United Airlines, 15 where the same court held that Article 28(1) is a jurisdictional provision. Neither of these cases is binding on this Court, of course, nor was either of them appealed to us. Nevertheless, we here express our own preference for the later case of Aranas insofar as its pronouncements on jurisdiction conform to the judgment we now make in this petition. B. The petitioner claims that the lower court erred in not ruling that under Article 28(1) of the Warsaw Convention, this case was properly filed in the Philippines, because Manila was the destination of the plaintiff. The Petitioner contends that the facts of this case are analogous to those in Aanestad v. Air Canada. 16 In that case, Mrs. Silverberg purchased a round-trip ticket from Montreal to Los Angeles and back to Montreal. The date and time of departure were specified but not of the return flight. The plane crashed while on route from Montreal to Los Angeles, killing Mrs. Silverberg. Her administratrix filed an action for damages against Air Canada in the U.S. District Court of California. The defendant moved to dismiss for lack of jurisdiction but the motion was denied thus: . . . It is evident that the contract entered into between Air Canada and Mrs. Silverberg as evidenced by the ticket booklets and the Flight Coupon No. 1, was a contract for Air Canada to carry Mrs. Silverberg to Los Angeles on a certain flight, a certain time and a certain class, but that the time for her to return remained completely in her power. Coupon No. 2 was only a continuing offer by Air Canada to give her a ticket to return to Montreal between certain dates. . . . The only conclusion that can be reached then, is that "the place of destination" as used in the Warsaw Convention is considered by both the Canadian C.T.C. and the United States C.A.B. to describe at least two "places of destination," viz., the "place of destination" of a particular flight either an "outward destination" from the "point of origin" or from the "outward point of destination" to any place in Canada. Thus the place of destination under Art. 28 and Art. 1 of the Warsaw Convention of the flight on which Mrs. Silverberg was killed, was Los Angeles according to the ticket, which 58

was the contract between the parties and the suit is properly filed in this Court which has jurisdiction. The Petitioner avers that the present case falls squarely under the above ruling because the date and time of his return flight to San Francisco were, as in the Aanestad case, also left open. Consequently, Manila and not San Francisco should be considered the petitioner's destination. The private respondent for its part invokes the ruling in Butz v. British Airways, 17 where the United States District Court (Eastern District of Pennsylvania) said: . . . Although the authorities which addressed this precise issue are not extensive, both the cases and the commentators are almost unanimous in concluding that the "place of destination" referred to in the Warsaw Convention "in a trip consisting of several parts . . . is the ultimate destination that is accorded treaty jurisdiction." . . . But apart from that distinguishing feature, I cannot agree with the Court's analysis in Aanestad; whether the return portion of the ticket is characterized as an option or a contract, the carrier was legally bound to transport the passenger back to the place of origin within the prescribed time and. the passenger for her part agreed to pay the fare and, in fact, did pay the fare. Thus there was mutuality of obligation and a binding contract of carriage, The fact that the passenger could forego her rights under the contract does not make it any less a binding contract. Certainly, if the parties did not contemplate the return leg of the journey, the passenger would not have paid for it and the carrier would not have issued a round trip ticket. We agree with the latter case. The place of destination, within the meaning of the Warsaw Convention, is determined by the terms of the contract of carriage or, specifically in this case, the ticket between the passenger and the carrier. Examination of the petitioner's ticket shows that his ultimate destination is San Francisco. Although the date of the return flight was left open, the contract of carriage between the parties indicates that NOA was bound to transport the petitioner to San Francisco from Manila. Manila should therefore be considered merely an agreed stopping place and not the destination. The petitioner submits that the Butz case could not have overruled the Aanestad case because these decisions are from different jurisdictions. But that is neither here nor there. In fact, neither of these cases is controlling on this Court. If we have preferred the Butz case, it is because, exercising our own freedom of choice, we have decided that it represents the better, and correct, interpretation of Article 28(1). Article 1(2) also draws a distinction between a "destination" and an "agreed stopping place." It is the "destination" and not an "agreed stopping place" that controls for purposes of ascertaining jurisdiction under the Convention. The contract is a single undivided operation, beginning with the place of departure and ending with the ultimate destination. The use of the singular in this expression indicates the understanding of the parties to the Convention that every contract of carriage has one place of departure and one place of destination. An intermediate place where the carriage may be broken is not regarded as a "place of destination." C. The petitioner claims that the lower court erred in not ruling that under Art. 28(1) of the Warsaw Convention, this case was properly filed in the Philippines because the defendant has its domicile in the Philippines. The petitioner argues that the Warsaw Convention was originally written in French and that in interpreting its provisions, American courts have taken the broad view that the French legal meaning must govern. 18 In French, he says, the "domicile" of the carrier means every place where it has a branch office.

59

The private respondent notes, however, that in Compagnie Nationale Air France vs. Giliberto, 19 it was held: The plaintiffs' first contention is that Air France is domiciled in the United States. They say that the domicile of a corporation includes any country where the airline carries on its business on "a regular and substantial basis," and that the United States qualifies under such definition. The meaning of domicile cannot, however, be so extended. The domicile of a corporation is customarily regarded as the place where it is incorporated, and the courts have given the meaning to the term as it is used in article 28(1) of the Convention. (See Smith v. Canadian Pacific Airways, Ltd. (2d Cir. 1971), 452 F2d 798, 802; Nudo v. Societe Anonyme Belge d' Exploitation de la Navigation Aerienne Sabena Belgian World Airlines (E.D. pa. 1962). 207 F. Supp, 191; Karfunkel v. Compagnie Nationale Air France (S.D.N.Y. 1977), 427 F. Suppl. 971, 974). Moreover, the structure of article 28(1), viewed as a whole, is also incompatible with the plaintiffs' claim. The article, in stating that places of business are among the bases of the jurisdiction, sets out two places where an action for damages may be brought; the country where the carrier's principal place of business is located, and the country in which it has a place of business through which the particular contract in question was made, that is, where the ticket was bought, Adopting the plaintiffs' theory would at a minimum blur these carefully drawn distinctions by creating a third intermediate category. It would obviously introduce uncertainty into litigation under the article because of the necessity of having to determine, and without standards or criteria, whether the amount of business done by a carrier in a particular country was "regular" and "substantial." The plaintiff's request to adopt this basis of jurisdiction is in effect a request to create a new jurisdictional standard for the Convention. Furthermore, it was argued in another case 20 that: . . . In arriving at an interpretation of a treaty whose sole official language is French, are we bound to apply French law? . . . We think this question and the underlying choice of law issue warrant some discussion . . . We do not think this statement can be regarded as a conclusion that internal French law is to be "applied" in the choice of law sense, to determine the meaning and scope of the Convention's terms. Of course, French legal usage must be considered in arriving at an accurate English translation of the French. But when an accurate English translation is made and agreed upon, as here, the inquiry into meaning does not then revert to a quest for a past or present French law to be "applied" for revelation of the proper scope of the terms. It does not follow from the fact that the treaty is written in French that in interpreting it, we are forever chained to French law, either as it existed when the treaty was written or in its present state of development. There is no suggestion in the treaty that French law was intended to govern the meaning of Warsaw's terms, nor have we found any indication to this effect in its legislative history or from our study of its application and interpretation by other courts. Indeed, analysis of the cases indicates that the courts, in interpreting and applying the Warsaw Convention, have, not considered themselves bound to apply French law simply because the Convention is written in French. . . . We agree with these rulings. Notably, the domicile of the carrier is only one of the places where the complaint is allowed to be filed under Article 28(1). By specifying the three other places, to wit, the principal place of business of the carrier, its place of business where the contract was made, and the place of destination, the article clearly meant that these three other places were not comprehended in the term "domicile." D. The petitioner claims that the lower court erred in not ruling that Art. 28(1) of the Warsaw Convention does not apply to actions based on tort.

60

The petitioner alleges that the gravamen of the complaint is that private respondent acted arbitrarily and in bad faith, discriminated against the petitioner, and committed a willful misconduct because it canceled his confirmed reservation and gave his reserved seat to someone who had no better right to it. In short. the private respondent committed a tort. Such allegation, he submits, removes the present case from the coverage of the Warsaw Convention. He argues that in at least two American cases, 21 it was held that Article 28(1) of the Warsaw Convention does not apply if the action is based on tort. This position is negated by Husserl v. Swiss Air Transport Company, 22 where the article in question was interpreted thus: . . . Assuming for the present that plaintiff's claim is "covered" by Article 17, Article 24 clearly excludes any relief not provided for in the Convention as modified by the Montreal Agreement. It does not, however, limit the kind of cause of action on which the relief may be founded; rather it provides that any action based on the injuries specified in Article 17 "however founded," i.e., regardless of the type of action on which relief is founded, can only be brought subject to the conditions and limitations established by the Warsaw System. Presumably, the reason for the use of the phrase "however founded," in two-fold: to accommodate all of the multifarious bases on which a claim might be founded in different countries, whether under code law or common law, whether under contract or tort, etc.; and to include all bases on which a claim seeking relief for an injury might be founded in any one country. In other words, if the injury occurs as described in Article 17, any relief available is subject to the conditions and limitations established by the Warsaw System, regardless of the particular cause of action which forms the basis on which a plaintiff could seek relief . . . The private respondent correctly contends that the allegation of willful misconduct resulting in a tort is insufficient to exclude the case from the comprehension of the Warsaw Convention. The petitioner has apparently misconstrued the import of Article 25(l) of the Convention, which reads as follows: Art. 25 (1). The carrier shall not be entitled to avail himself of the provisions of this Convention which exclude or limit his liability. if the damage is caused by his willful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to willful misconduct. It is understood under this article that the court called upon to determine the applicability of the limitation provision must first be vested with the appropriate jurisdiction. Article 28(1) is the provision in the Convention which defines that jurisdiction. Article 22 23 merely fixes the monetary ceiling for the liability of the carrier in cases covered by the Convention. If the carrier is indeed guilty of willful misconduct, it can avail itself of the limitations set forth in this article. But this can be done only if the action has first been commenced properly under the rules on jurisdiction set forth in Article 28(1). III THE ISSUE OF PROTECTION TO MINORS The petitioner calls our attention to Article 24 of the Civil Code, which states: Art. 24. In all contractual property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection. Application of this article to the present case is misplaced. The above provision assumes that the court is vested with jurisdiction to rule in favor of the disadvantaged minor, As already explained, such jurisdiction is absent in the case at bar. 61

CONCLUSION A number of countries have signified their concern over the problem of citizens being denied access to their own courts because of the restrictive provision of Article 28(1) of the Warsaw Convention. Among these is the United States, which has proposed an amendment that would enable the passenger to sue in his own domicile if the carrier does business in that jurisdiction. The reason for this proposal is explained thus: In the event a US citizen temporarily residing abroad purchases a Rome to New York to Rome ticket on a foreign air carrier which is generally subject to the jurisdiction of the US, Article 28 would prevent that person from suing the carrier in the US in a "Warsaw Case" even though such a suit could be brought in the absence of the Convention. The proposal was incorporated in the Guatemala Protocol amending the Warsaw Convention, which was adopted at Guatemala City on March 8, 1971. 24 But it is still ineffective because it has not yet been ratified by the required minimum number of contracting parties. Pending such ratification, the petitioner will still have to file his complaint only in any of the four places designated by Article 28(1) of the Warsaw Convention. The proposed amendment bolsters the ruling of this Court that a citizen does not necessarily have the right to sue in his own courts simply because the defendant airline has a place of business in his country. The Court can only sympathize with the petitioner, who must prosecute his claims in the United States rather than in his own country at least inconvenience. But we are unable to grant him the relief he seeks because we are limited by the provisions of the Warsaw Convention which continues to bind us. It may not be amiss to observe at this point that the mere fact that he will have to litigate in the American courts does not necessarily mean he will litigate in vain. The judicial system of that country in known for its sense of fairness and, generally, its strict adherence to the rule of law. WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered. Narvasa, C.J., Gutierrez, Jr., Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

Footnotes 1 Annex "A," Orig. Records, pp. 4-5. 2 Ibid., pp. 205-207; penned by Judge Pedro N. Laggui. 3 Rollo, p. 60; penned by Buena, J., with Gonzaga-Reyes and Abad Santos, Jr., JJ., concurring. 4 Ibid., p. 79. 5 51 O.G. 4933-4934. 6 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA 343; Dumlao v. Comelec, 95 SCRA 392. 7 A Modern Law of Nations (1950), p. 150. 8 528 F. 2d 31. 62

9 Berner v. United Airlines, Inc., 149 NYS 2d, 335, 343, 1956; Doering v. Scandinavian Airlines System, 329 F Supp 1081, 1082, 1971; Spencer v. Northwest Orient Airlines, 201 F. Supp. 504, 506, 1962. 10 Smith v. Canadian Pacific Airways Ltd., 452 F. 2d 798 1971; Campagnie Nationale Air France v. Giliberto, 1838 N.E., 2d 977, 1978; MacCarthy v. East African Airways Corp., 13 Av 17, 385, Records, p. 113, 1974; Sabharwal v. Kuwait Airways Corp., 18 Av 8, 380; Records, p. 115, 1984: Duff v. Varig Airlines, Inc., S.A., 22 Avi, Rollo, p. 186, 1989. 11 Francisco, Rules of Court, Vol. I, 1973, p. 331. 12 452 F. 2d 798. 13 171 SCRA 605. 14 CA G.R.-SP No. 09259, January 22, 1987. 15 CA G.R.-CV No. 19974, April 8, 1991. 16 390 F. Supp. 1165, 1975. 17 421 F. Suppl. 127. 18 Block v. Compagnie, 386 F. 2d 232. 19 838 N.E. 2d 977, 1978. 20 Rosman v. TWA, 1974; 34 NY 2d 385; 358 NYS 2d 97; 314 N.E. 2d 848; 72 A.L.R. 3d 1282. 21 Eck v. United Arab, S.A.A., 241 F. Supp. 804-807; Spencer v. Northwest Orient Airlines, 201 F. Supp. 504-507. 22 Rollo, pp. 189-199; 388 F. Supp. 1238. 23 Article 22. (1) In the transportation of passengers, the liability of the carrier for each passenger shall be limited to the sum of 125,000 francs. Where in accordance with the law of the court to which the case is submitted, damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 125,000 francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability. (2) In the transportation of checked baggage and of goods, the liability of the carrier shall be limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value of delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that the sum is greater than the actual value to the consignor at delivery. (3) As regards objects of which the passenger takes charge himself, the liability of the carrier shall be limited to 5,000 francs per passenger. (4) The sums mentioned above shall be deemed to refer to the French franc consisting of 65-1/2 milligrams of gold at the standard of fineness of nine hundred thousandths. These sums may be converted into any national currency in round figures. 63

24 Varkonyi v. S.A. Impress De Viacao Airea Rio Grandense (Varig) 1972; 336 NYS 2d 1973. The Lawphil Project - Arellano Law Foundation

64

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner, vs. RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of Commerce and Industry, and SALVADOR MARINO, Secretary of Justice, respondents. Ramon A. Gonzales in his own behalf as petitioner. Office of the Solicitor General and Estanislao Fernandez for respondents. CONCEPCION, J.: This is an original action for prohibition with preliminary injunction. It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the importation of 67,000 tons of foreign rice to be purchased from private sources, and created a rice procurement committee composed of the other respondents herein1 for the implementation of said proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A. Gonzales a rice planter, and president of the Iloilo Palay and Corn Planters Association, whose members are, likewise, engaged in the production of rice and corn filed the petition herein, averring that, in making or attempting to make said importation of foreign rice, the aforementioned respondents "are acting without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452 which allegedly repeals or amends Republic Act No. 220 explicitly prohibits the importation of rice and corn "the Rice and Corn Administration or any other government agency;" that petitioner has no other plain, speedy and adequate remedy in the ordinary course of law; and that a preliminary injunction is necessary for the preservation of the rights of the parties during the pendency this case and to prevent the judgment therein from coming ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a writ of preliminary injunction be forthwith issued restraining respondent their agents or representatives from implementing the decision of the Executive Secretary to import the aforementioned foreign rice; and that, after due hearing, judgment be rendered making said injunction permanent. Forthwith, respondents were required to file their answer to the petition which they did, and petitioner's pray for a writ of preliminary injunction was set for hearing at which both parties appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter, by the respondents. Considering, later on, that the resolution said incident may require some pronouncements that would be more appropriate in a decision on the merits of the case, the same was set for hearing on the merits thereafter. The parties, however, waived the right to argue orally, although counsel for respondents filed their memoranda. I. Sufficiency of petitioner's interest. Respondents maintain that the status of petitioner as a rice planter does not give him sufficient interest to file the petition herein and secure the relief therein prayed for. We find no merit in this pretense. Apart from prohibiting the importation of rice and corn "by the Rice and Corn Administration or any other government agency". Republic Act No. 3452 declares, in Section 1 thereof, that "the policy of the Government" is to "engage in the purchase of these basic foods directly from those tenants, farmers, growers, producers and landowners in the Philippines who wish to dispose of their products at a price that will afford them a fair and just return for their labor and capital investment. ... ." Pursuant to this provision, petitioner, as a planter with a rice land of substantial proportion,2 is entitled to a chance to sell to the Government the rice it now seeks to buy abroad. Moreover, since the purchase of said commodity will have to be effected with public funds mainly 65

raised by taxation, and as a rice producer and landowner petitioner must necessarily be a taxpayer, it follows that he has sufficient personality and interest to seek judicial assistance with a view to restraining what he believes to be an attempt to unlawfully disburse said funds. II. Exhaustion of administrative remedies. Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all administrative remedies available to him before coming to court". We have already held, however, that the principle requiring the previous exhaustion of administrative remedies is not applicable where the question in dispute is purely a legal one",3 or where the controverted act is "patently illegal" or was performed without jurisdiction or in excess of jurisdiction,4 or where the respondent is a department secretary, whose acts as an alter-ego of the President bear the implied or assumed approval of the latter,5 unless actually disapproved by him,6 or where there are circumstances indicating the urgency of judicial intervention.7 The case at bar fails under each one of the foregoing exceptions to the general rule. Respondents' contention is, therefore, untenable. III. Merits of petitioner's cause of action. Respondents question the sufficiency of petitioner's cause of action upon the theory that the proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was authorized by the President as Commander-in-Chief "for military stock pile purposes" in the exercise of his alleged authority under Section 2 of Commonwealth Act No. 1;8 that in cases of necessity, the President "or his subordinates may take such preventive measure for the restoration of good order and maintenance of peace"; and that, as Commander-in-Chief of our armed forces, "the President ... is duty-bound to prepare for the challenge of threats of war or emergency withoutwaiting for any special authority". Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by petitioner herein - on which our view need not be expressed we are unanimously of the opinion - assuming that said Republic Act No. 2207 is still in force that the two Acts are applicable to the proposed importation in question because the language of said laws is such as to include within the purview thereof all importations of rice and corn into the Philippines". Pursuant to Republic Act No. 2207, "it shall be unlawful for any person, association, corporation orgovernment agency to import rice and corn into any point in the Philippines", although, by way of exception, it adds, that "the President of the Philippines may authorize the importation of these commodities through any government agency that he may designate", is the conditions prescribed in Section 2 of said Act are present. Similarly, Republic Act No. 3452 explicitly enjoins "the Rice and Corn Administration or any government agency" from importing rice and corn. Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452, prohibiting the importation of rice and corn by any "government agency", do not apply to importations "made by the Government itself", because the latter is not a "government agency". This theory is devoid of merit. The Department of National Defense and the Armed Forces of the Philippines, as well as respondents herein, and each and every officer and employee of our Government, our government agencies and/or agents. The applicability of said laws even to importations by the Government as such, becomes more apparent when we consider that: 1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of the Philippines" and, hence, by or on behalf of the Government of the Philippines; 2. Immediately after enjoining the Rice and Corn administration and any other government agency from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the importation of rice and corn is left to private parties upon payment of the corresponding taxes", thus indicating that only "private parties" may import rice under its provisions; and 3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than five (5) years for those who shall violate any provision of Republic Act No. 3452 or any rule and regulation promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is a public official and/or employees", he shall be subject to the additional penalty specified therein. A public official is an officer of the Government itself, as distinguished from officers or employees of instrumentalities of the Government. Hence, the duly authorized 66

acts of the former are those of the Government, unlike those of a government instrumentality which may have a personality of its own, distinct and separate from that of the Government, as such. The provisions of Republic Act No. 2207 are, in this respect, even more explicit. Section 3 thereof provides a similar additional penalty for any "officer or employee of the Government" who "violates, abets or tolerates the violation of any provision" of said Act. Hence, the intent to apply the same to transactions made by the very government is patent. Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the preference in the purchase of articles for the Government." Pursuant to Section 1 thereof: The Purchase and Equipment Division of the Government of the Philippines and other officers and employees of the municipal and provincial governments and the Government of the Philippines and of chartered cities, boards, commissions, bureaus, departments, offices, agencies, branches, and bodies of any description, including government-owned companies, authorized to requisition, purchase, or contract or make disbursements for articles, materials, and supplies for public use, public buildings, or public works shall give preference to materials ... produced ... in the Philippines or in the United States, and to domestic entities, subject to the conditions hereinbelow specified. (Emphasis supplied.) Under this provision, in all purchases by the Government, including those made by and/or for the armed forces,preference shall be given to materials produced in the Philippines. The importation involved in the case at bar violates this general policy of our Government, aside from the provisions of Republic Acts Nos. 2207 and 3452. The attempt to justify the proposed importation by invoking reasons of national security predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension created by the Malaysia problem" - and the alleged powers of the President as Commander-in-Chief of all armed forces in the Philippines, under Section 2 of the National Defense Act (Commonwealth Act No. 1), overlooks the fact that the protection of local planters of rice and corn in a manner that would foster and accelerate self-sufficiency in the local production of said commodities constitutes a factor that is vital to our ability to meet possible national emergency. Even if the intent in importing goods in anticipation of such emergency were to bolster up that ability, the latter would, instead, be impaired if the importation were so made as to discourage our farmers from engaging in the production of rice. Besides, the stockpiling of rice and corn for purpose of national security and/or national emergency is within the purview of Republic Act No. 3452. Section 3 thereof expressly authorizes the Rice and Corn Administration "to accumulate stocks as a national reserve in such quantities as it may deem proper and necessary to meet any contingencies". Moreover, it ordains that "the buffer stocks held as a national reserve ... be deposited by the administration throughout the country under the proper dispersal plans ... and may be released only upon the occurrence of calamities or emergencies ...". (Emphasis applied.) Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so much, are not self-executory. They merely outline the general objectives of said legislation. The means for the attainment of those objectives are subject to congressional legislation. Thus, the conditions under which the services of citizens, as indicated in said Section 2, may be availed of, are provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly, Section 5 thereof specifies the manner in which resources necessary for our national defense may be secured by the Government of the Philippines, but only "during a national mobilization",9which does not exist. Inferentially, therefore, in the absence of a national mobilization, said resources shall be produced in such manner as Congress may by other laws provide from time to time. Insofar as rice and corn are concerned, Republic Acts Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws. Respondents cite Corwin in support of their pretense, but in vain. An examination of the work cited10 shows that Corwin referred to the powers of the President during "war time" 11 or when he has placed the country or a part thereof under "martial law".12 Since neither condition obtains in the case at bar, said work merely proves that respondents' theory, if accepted, would, in effect, place the Philippines under martial law, without a declaration of the Executive to that effect. What is worse, it would keep us perpetually under martial law. 67

It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and 3452, it should, nevertheless, be permitted because "it redounds to the benefit of the people". Salus populi est suprema lex, it is said. If there were a local shortage of rice, the argument might have some value. But the respondents, as officials of this Government, have expressly affirmed again and again that there is no rice shortage. And the importation is avowedly for stockpile of the Army not the civilian population. But let us follow the respondents' trend of thought. It has a more serious implication that appears on the surface. It implies that if an executive officer believes that compliance with a certain statute will not benefit the people, he is at liberty to disregard it. That idea must be rejected - we still live under a rule of law. And then, "the people" are either producers or consumers. Now as respondents explicitly admit Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of producers and consumers, i.e., the people, it must follow that the welfare of the people lies precisely in the compliance with said Acts. It is not for respondent executive officers now to set their own opinions against that of the Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws permit importation but under certain conditions, which have not been, and should be complied with. IV. The contracts with Vietnam and Burma It is lastly contended that the Government of the Philippines has already entered into two (2) contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the Government of Burma; that these contracts constitute valid executive agreements under international law; that such agreements became binding effective upon the signing thereof by representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and 3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail, because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved under the American jurisprudence in favor of the one which is latest in point of time; that petitioner herein assails the validity of acts of the Executive relative to foreign relations in the conduct of which the Supreme Court cannot interfere; and the aforementioned contracts have already been consummated, the Government of the Philippines having already paid the price of the rice involved therein through irrevocable letters of credit in favor of the sell of the said commodity. We find no merit in this pretense. The Court is not satisfied that the status of said tracts as alleged executive agreements has been sufficiently established. The parties to said contracts do not pear to have regarded the same as executive agreements. But, even assuming that said contracts may properly considered as executive agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although the President may, under the American constitutional system enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws. The American theory to the effect that, in the event of conflict between a treaty and a statute, the one which is latest in point of time shall prevail, is not applicable to the case at bar, for respondents not only admit, but, alsoinsist that the contracts adverted to are not treaties. Said theory may be justified upon the ground that treaties to which the United States is signatory require the advice and consent of its Senate, and, hence, of a branch of the legislative department. No such justification can be given as regards executive agreements not authorized by previous legislation, without completely upsetting the principle of separation of powers and the system of checks and balances which are fundamental in our constitutional set up and that of the United States. As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of 68

Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question". In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress. The alleged consummation of the aforementioned contracts with Vietnam and Burma does not render this case academic, Republic Act No. 2207 enjoins our Government not from entering into contracts for the purchase of rice, but from importing rice, except under the conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2) main features, namely: (a) it requires the Government to purchase rice and corn directly from our local planters, growers or landowners; and (b) it prohibits importations of rice by the Government, and leaves such importations to private parties. The pivotal issue in this case is whether the proposed importation which has not been consummated as yet is legally feasible. Lastly, a judicial declaration of illegality of the proposed importation would not compel our Government to default in the performance of such obligations as it may have contracted with the sellers of the rice in question, because, aside from the fact that said obligations may be complied with without importing the commodity into the Philippines, the proposed importation may still be legalized by complying with the provisions of the aforementioned laws. V. The writ of preliminary injunction. The members of the Court have divergent opinions on the question whether or not respondents herein should be enjoined from implementing the aforementioned proposed importation. However, the majority favors the negative view, for which reason the injunction prayed for cannot be granted. WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had and has no power to authorize the importation in question; that he exceeded his jurisdiction in granting said authority; said importation is not sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly denied. It is so ordered. Bengzon, CJ, Padilla, Labrador, Reyes, Paredes and Regala, JJ., concur in the result. J.B.L., Dizon and Makalintal, JJ., concur.

Separate Opinions BAUTISTA ANGELO, J., concurring: Under Republic Act No. 2207, which took effect on May 15, 1959, it is unlawful for any person, association, corporation or government agency to import rice and corn into any point in the Philippines. The exception is if there is an existing or imminent shortage of such commodity of much gravity as to constitute national emergency in which case an importation may be authorized by the President when so certified by the National Economic Council. However, on June 14, 1962, Republic Act 3452 was enacted providing that the importation of rice and corn canonly be made by private parties thereby prohibiting from doing so the Rice and Corn Administration or any other government agency. Republic Act 3452 does not expressly repeal Republic Act 2207, but only repeals or modified those parts thereof that are inconsistent with its provisions. The question that now arises is: Has the enactment of Republic Act 3452 the effect of prohibiting completely the government from importing rice and corn into the Philippines? My answer is in the negative. Since this Act does not in any manner provide for the importation of rice and corn in case of national emergency, the provision of the former law on that matter should stand, for that is not inconsistent with any provision embodied in Republic Act 3452. The Rice and Corn Administration, or any other 69

government agency, may therefore still import rice and corn into the Philippines as provided in Republic Act 2207 if there is a declared national emergency. The next question that arises is: Can the government authorize the importation of rice and corn regardless of Republic Act 2207 if that is authorized by the President as Commander-in-Chief of the Philippine Army as a military precautionary measure for military stockpile? Respondents answer this question in the affirmative. They advance the argument that it is the President's duty to see to it that the Armed Forces of the Philippines are geared to the defenses of the country as well as to the fulfillment of our international commitments in Southeast Asia in the event the peace and security of the area are in danger. The stockpiling of rice, they aver, is an essential requirement of defense preparation in view of the limited local supply and the probable disruption of trade and commerce with outside countries in the event of armed hostilities, and this military precautionary measure is necessary because of the unsettled conditions in the Southeast Asia bordering on actual threats of armed conflicts as evaluated by the Intelligence Service of the Military Department of our Government. This advocacy, they contend, finds support in the national defense policy embodied in Section 2 of our National Defense Act (Commonwealth Act No. 1), which provides: (a) The preservation of the State is the obligation of every citizen. The security of the Philippines and the freedom, independence and perpetual neutrality of the Philippine Republic shall be guaranteed by the employment of all citizens, without distinction of sex or age, and all resources. (b) The employment of the nation's citizens and resources for national defense shall be effected by a national mobilization. (c) The national mobilization shall include the execution of all measures necessary to pass from a peace to a war footing. (d) The civil authority shall always be supreme. The President of the Philippines as the Commander-in-Chief of all military forces, shall be responsible that mobilization measures are prepared at all times.(Emphasis supplied) Indeed, I find in that declaration of policy that the security of the Philippines and its freedom constitutes the core of the preservation of our State which is the basic duty of every citizen and that to secure which it is enjoined that the President employ all the resources at his command. But over and above all that power and duty, fundamental as they may seem, there is the injunction that the civil authority shall always be supreme. This injunction can only mean that while all precautions should be taken to insure the security and preservation of the State and to this effect the employment of all resources may be resorted to, the action must always be taken within the framework of the civil authority. Military authority should be harmonized and coordinated with civil authority, the only exception being when the law clearly ordains otherwise. Neither Republic Act 2207, nor Republic Act 3452, contains any exception in favor of military action concerning importation of rice and corn. An exception must be strictly construed. A distinction is made between the government and government agency in an attempt to take the former out of the operation of Republic Act 2207. I disagree. The Government of the Republic of the Philippines under the Revised Administrative Code refers to that entity through which the functions of government are exercised, including the various arms through which political authority is made effective whether they be provincial, municipal or other form of local government, whereas a government instrumentality refers to corporations owned or controlled by the government to promote certain aspects of the economic life of our people. A government agency, therefore, must necessarily refer to the government itself of the Republic, as distinguished from any government instrumentality which has a personality distinct and separate from it (Section 2). The important point to determine, however, is whether we should enjoin respondents from carrying out the importation of the rice which according to the record has been authorized to be imported on government to government level, it appearing that the arrangement to this effect has already been concluded, the only thing lacking being its implementation. This is evident from the manifestation submitted by the Solicitor General wherein it appears that the contract for the purchase of 47,000 tons of rice from had been sign on October 5, 70

1963, and for the purchase of 20,000 tons from Burma on October 8, 1963, by the authorized representatives of both our government and the governments of Vietnam and Burma, respectively. If it is true that, our government has already made a formal commitment with the selling countries there arises the question as to whether the act can still be impeded at this stage of the negotiations. Though on this score there is a divergence of opinion, it is gratifying to note that the majority has expressed itself against it. This is a plausible attitude for, had the writ been issued, our government would have been placed in a predicament where, as a necessary consequence, it would have to repudiate a duly formalized agreement to its great embarrassment and loss of face. This was avoided by the judicial statesmanship evinced by the Court.

BARRERA, J., concurring: Because of possible complications that might be aggravated by misrepresentation of the true nature and scope of the case before this Court, it is well to restate as clearly as possible, the real and only issue presented by the respondents representing the government. From the answer filed by the Solicitor General, in behalf of respondents, we quote: The importation of the rice in question by the Armed Forces of the Philippines is for military stockpilingauthorized by the President pursuant to his inherent power as commander-in-chief and as a military precautionary measure in view the worsening situation in Laos and Vietnam and, it may added, the recent, tension created by the Malaysia problem (Answer, p. 2; emphasis supplied.) During the oral argument, Senator Fernandez, appealing in behalf of the respondents, likewise reiterated the imported rice was for military stockpiling, and which he admitted that some of it went to the Rice and Corn Administration, he emphasized again and again that rice was not intended for the RCA for distribution to people, as there was no shortage of rice for that purpose but it was only exchanged for palay because this could better preserved. From the memorandum filed thereafter by the Solicits General, again the claim was made: We respectfully reiterate the arguments in our answer dated October 4, 1963 that the importation of rice sought be enjoined in this petition is in the exercise of the authority vested in the President of the Philippines as Commander-in-Chief of the Armed Forces, as a measure of military preparedness demanded by a real and actual threat of emergency in the South East Asian countries. (p. 1, Emphasis supplied.) xxx xxx xxx

It (the stressing of the unsettled conditions in Southeast Asia) is merely our intention to show the necessity for the stockpiling of rice for army purposes, which is the very reason for the importation. xxx xxx xxx

As it is, the importation in question is being made by the Republic of the Philippines for its own use, and the rice is not supposed to be poured into the open market as to affect the price to be paid by the public. (p. 4, Emphasis supplied.) xxx xxx xxx

What we do contend is that the law, for want of express and clear provision to that effect, does not include in its prohibition importation by the Government of rice for its own use and not for the consuming public, regardless of whether there is or there is no emergency. (p. 5, Emphasis supplied.) 71

From the above, it not only appears but is evident that the respondents were not concerned with the present rice situation confronting the consuming public, but were solely and exclusively after the stockpiling of rice for thefuture use of the army. The issue, therefore, in which the Government was interested is not whether rice is imported to give the people a bigger or greater supply to maintain the price at P.80 per ganta for, to quote again their contention: "the rice is not supposed to be poured into the open market to affect the price to be paid by the public, as it is not for the consuming public, regardless of whether there is or there is no emergency", but whether rice can legally be imported by the Armed Forces of the Philippines avowedly for its future use, notwithstanding the prohibitory provisions of Republic Acts Nos. 2207 and 3452. The majority opinion ably sets forth the reasons why this Court can not accept the contention of the respondents that this importation is beyond and outside the operation of these statutes. I can only emphasize that I see in the theory advanced by the Solicitor General a dangerous trend that because the policies enunciated in the cited laws are for the protection of the producers and the consumers, the army is removed from their application. To adopt this theory is to proclaim the existence in the Philippines of three economic groups or classes: the producers, the consumers, and the Armed Forces of the Philippines. What is more portentous is the effect to equate the army with the Government itself. Then again, the importation of this rice for military stockpiling is sought to be justified by the alleged threat of emergency in the Southeast Asian countries. But the existence of this supposed threat was unilaterally determined by the Department of National Defense alone. We recall that there exists a body called the National Security Council in which are represented the Executive as well as the Legislative department. In it sit not only members of the party in power but of the opposition as well. To our knowledge, this is the highest consultative body which deliberates precisely in times of emergency threatening to affect the security of the state. The democratic composition of this council is to guarantee that its deliberations would be non-partisan and only the best interests of the nation will be considered. Being a deliberative body, it insures against precipitate action. This is as it should be. Otherwise, in these days of ever present cold war, any change or development in the political climate in any region of the world is apt to be taken as an excuse for the military to conjure up a crisis or emergency and thereupon attempt to override our laws and legal processes, and imperceptibly institute some kind of martial law on the pretext of precautionary mobilization measure avowedly in the interest of the security of the state. One need not, be too imaginative to perceive a hint of this in the present case. The Supreme Court, in arriving at the conclusion unanimously reached, is fully aware of the difficult and delicate task it had to discharge. Its position is liable to be exploited by some for their own purposes by claiming and making it appear that the Court is unmindful of the plight of our people during these days of hardship; that it preferred to give substance to the "niceties of the law than heed the needs of the people. Our answer is that the Court was left no alternative. It had, in compliance with its duty, to decide the case upon the facts presented to it. The respondents, representing the administration, steadfastly maintained and insisted that there is no rice shortage; that the imported rice is not for the consuming public and is not supposed to be placed in the open market to affect the price to be paid by the public; that it is solely for stockpiling of the army for future use as a measure of mobilization in the face of what the Department of National Defense unilaterally deemed a threatened armed conflict in Southeast Asia. Confronted with these facts upon, which the Government has built and rested its case, we have searched in vain for legal authority or cogent reasons to justify this importation made admittedly contrary to the provisions of Republic Acts Nos. 2207 and 3452. I say admittedly, because respondents never as much as pretended that the importation fulfills the conditions specified in these laws, but limited themselves to the contention, which is their sole defense that this importation does not fall within the scope of said laws. In our view, however, the laws are clear. The laws are comprehensive and their application does not admit of any exception. The laws are adequate. Compliance therewith is not difficult, much less impossible. The avowed emergency, if at all, is not urgently immediate. In this connection, it is pertinent to bear in mind that the Supreme Court has a duty to perform under the Constitution. It has to decide, when called upon to do so in an appropriate proceeding, all cases in which the constitutionality or validity of any treaty, law, ordinance, executive order or regulation is in question. We can not elude this duty. To do so would be culpable dereliction on our part. While we sympathize with the public that might be adversely affected as a result of this decision yet our sympathy does not authorize us to sanction an act contrary to applicable laws. The fault lies with those who stubbornly contended and represented before this Court that there is no rice shortage, that the imported rice is not intended for the consuming public, but for stockpiling of the army. And, if as now claimed before the public, contrary to the Government's stand in this case, that there is need for imported rice to stave off hunger, our legislature has provided for such a situation. As already stated, the laws are adequate. The importation of rice under the conditions set forth in the laws may 72

be authorized not only where there is an existing shortage, but also when the shortage is imminent. In other words, lawful remedy to solve the situation is available, if only those who have the duty to execute the laws perform their duty. If there is really need for the importation of rice, who adopt some dubious means which necessitates resort to doubtful exercise of the power of the President as Commander-in-Chief of the Army? Why not comply with the mandate of the law? Ours is supposed to be a regime under the rule of law. Adoption as a government policy of the theory of the end justifies the means brushing aside constitutional and legal restraints, must be rejected, lest we end up with the end of freedom. For these reasons, I concur in the decision of the Court.

Separate Opinions Footnotes

1

The Secretary of National Defense, the Auditor General, the Secretary of Commerce and Industry, and the Secretary Justice.
2

275 hectares. Tapales vs. The President and the Board of Regents of the U.P., L-17523, March 30, 1963.

Mangubat vs. Osmea, L-12837, April 30, 1959; Baguio vs. Hon. Jose Rodriguez, L-11078, May 27, 1959; Pascual Provincial Board, L-11959, October 31, 1959.
5

Marinduque Iron Mines Agents, Inc. vs. Secretary of Public Works, L-15982, May 31, 1963.

In the present case, respondents allege in their answer that "the importation ... in question ... is authorized by the President.
7

Alzate vs. Aldaba, L-14407, February 29, 1960; Demaisip vs. Court of Appeals, L-13000, September 25, 1959.
8

Which provides that the national defense policy of the Philippines shall be follows: (a) The preservation of the state is the obligation of every citizen. The security of the Philippines and the freedom, independence and perpetual neutrality of the Philippine Republic shall be guaranteed by the employment of all citizens, without distinction of sex or age, and all resources. (b) The employment of the nation's citizens and resources for national defense shall be effected by a national mobilization. (c) The national mobilization shall include the execution of all measures necessary to pass from a peace to a war footing. (d) The civil authority shall always be supreme. The President of the Philippines as the Commander-in-Chief of all military forces, shall be responsible that mobilization measures are prepared at all times.

xxx
9

xxx

xxx

In line with the provisions of paragraphs b), c), e), and f) of section 2 of said Act. The Constitution and What It Means Today, pp. 95-96. 73

10

11

The Power of the President as Commander-in-Chief is primarily that of military command in wartime, and as such includes, as against the persons and property of enemies of the United States encountered within the theater of military operations, all the powers allowed a military commander in such cases by the Law of Nations. President Lincoln's famous Proclamation of Emancipation rested upon this ground. It was effective within the theater of military operations while the war lasted, but no longer. (p. 93, Emphasis supplied.)
12

From an early date the Commander-in-Chief power came to be merged with the President's duty to take care that the laws be faithfully executed. So, while in using military force against unlawful combinations too strong to be dealt with through the ordinary processes of law the President acts by authorization of statute, his powers are still those of Commander-in-Chief. ... Under "preventive martial law", so-called because it authorizes "preventive" arrests and detentions, the military acts as an adjunct of the civil authorities but not necessarily subject to their orders. It may be established whenever the executive organ, State or national, deems it to be necessary for the restoration of good order. The concept, being of judicial origin, is of course for judicial application, and ultimately for application by the Supreme Court, in enforcement of the due process clauses. (See, also, Section III of this Article, and Article IV, Section IV.) (Pp. 95-96, Emphasis supplied.)

The Lawphil Project - Arellano Law Foundation

74

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-35131 November 29, 1972 THE WORLD HEALTH ORGANIZATION and DR. LEONCE VERSTUYFT, petitioners, vs. HON. BENJAMIN H. AQUINO, as Presiding Judge of Branch VIII, Court of First Instance of Rizal, MAJOR WILFREDO CRUZ, MAJOR ANTONIO G. RELLEVE, and CAPTAIN PEDRO S. NAVARRO of the Constabulary Offshore Action Center (COSAC), respondents. Sycip, Salazar, Luna, Manalo and Feliciano for petitioners. Emilio L. Baldia for respondents.

TEEHANKEE, J.:p An original action for certiorari and prohibition to set aside respondent judge's refusal to quash a search warrant issued by him at the instance of respondents COSAC (Constabulary Offshore Action Center) officers for the search and seizure of the personal effects of petitioner official of the WHO (World Health Organization) notwithstanding his being entitled to diplomatic immunity, as duly recognized by the executive branch of the Philippine Government and to prohibit respondent judge from further proceedings in the matter. Upon filing of the petition, the Court issued on June 6, 1972 a restraining order enjoining respondents from executing the search warrant in question. Respondents COSAC officers filed their answer joining issue against petitioners and seeking to justify their act of applying for and securing from respondent judge the warrant for the search and seizure of ten crates consigned to petitioner Verstuyft and stored at the Eternit Corporation warehouse on the ground that they "contain large quantities of highly dutiable goods" beyond the official needs of said petitioner "and the only lawful way to reach these articles and effects for purposes of taxation is through a search warrant." 1 The Court thereafter called for the parties' memoranda in lieu of oral argument, which were filed on August 3, 1972 by respondents and on August 21, 1972 by petitioners, and the case was thereafter deemed submitted for decision. It is undisputed in the record that petitioner Dr. Leonce Verstuyft, who was assigned on December 6, 1971 by the WHO from his last station in Taipei to the Regional Office in Manila as Acting Assistant Director of Health Services, is entitled to diplomatic immunity, pursuant to the Host Agreement executed on July 22, 1951 between the Philippine Government and the World Health Organization. Such diplomatic immunity carries with it, among other diplomatic privileges and immunities, personal inviolability, inviolability of the official's properties, exemption from local jurisdiction, and exemption from taxation and customs duties. When petitioner Verstuyft's personal effects contained in twelve (12) crates entered the Philippines as unaccompanied baggage on January 10, 1972, they were accordingly allowed free entry from duties and taxes. The crates were directly stored at the Eternit Corporation's warehouse at Mandaluyong, Rizal, 75

"pending his relocation into permanent quarters upon the offer of Mr. Berg, Vice President of Eternit who was once a patient of Dr. Verstuyft in the Congo." 2 Nevertheless, as above stated, respondent judge issued on March 3, 1972 upon application on the same date of respondents COSAC officers search warrant No. 72-138 for alleged violation of Republic Act 4712 amending section 3601 of the Tariff and Customs Code 3 directing the search and seizure of the dutiable items in said crates. Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional Director for the Western Pacific with station in Manila, Secretary of Foreign Affairs Carlos P. Romulo, personally wired on the same date respondent Judge advising that "Dr. Verstuyft is entitled to immunity from search in respect of his personal baggage as accorded to members of diplomatic missions" pursuant to the Host Agreement and requesting suspension of the search warrant order "pending clarification of the matter from the ASAC." Respondent judge set the Foreign Secretary's request for hearing and heard the same on March 16, 1972, but notwithstanding the official plea of diplomatic immunity interposed by a duly authorized representative of the Department of Foreign Affairs who furnished the respondent judge with a list of the articles brought in by petitioner Verstuyft, respondent judge issued his order of the same date maintaining the effectivity of the search warrant issued by him, unless restrained by a higher court. 4 Petitioner Verstuyft's special appearance on March 24, 1972 for the limited purpose of pleading his diplomatic immunity and motion to quash search warrant of April 12, 1972 failed to move respondent judge. At the hearing thereof held on May 8, 1972, the Office of the Solicitor General appeared and filed an extended comment stating the official position of the executive branch of the Philippine Government that petitioner Verstuyft is entitled to diplomatic immunity, he did not abuse his diplomatic immunity, 5 and that court proceedings in the receiving or host State are not the proper remedy in the case of abuse of diplomatic immunity. 6 The Solicitor General accordingly joined petitioner Verstuyft's prayer for the quashal of the search warrant. Respondent judge nevertheless summarily denied quashal of the search warrant per his order of May 9, 1972 "for the same reasons already stated in (his) aforesaid order of March 16, 1972" disregarding Foreign Secretary Romulo's plea of diplomatic immunity on behalf of Dr. Verstuyft. Hence, the petition at bar. Petitioner Verstuyft has in this Court been joined by the World Health Organization (WHO) itself in full assertion of petitioner Verstuyft's being entitled "to all privileges and immunities, exemptions and facilities accorded to diplomatic envoys in accordance with international law" under section 24 of the Host Agreement. The writs of certiorari and prohibition should issue as prayed for. 1. The executive branch of the Philippine Government has expressly recognized that petitioner Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the Host Agreement. The Department of Foreign Affairs formally advised respondent judge of the Philippine Government's official position that accordingly "Dr. Verstuyft cannot be the subject of a Philippine court summons without violating an obligation in international law of the Philippine Government" and asked for the quashal of the search warrant, since his personal effects and baggages after having been allowed free entry from all customs duties and taxes, may not be baselessly claimed to have been "unlawfully imported" in violation of the tariff and customs code as claimed by respondents COSAC officers. The Solicitor-General, as principal law officer of the Government, 7 likewise expressly affirmed said petitioner's right to diplomatic immunity and asked for the quashal of the search warrant. It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, 8 and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor 76

General in this case, or other officer acting under his direction. 9 Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that "in such cases the judicial department of (this) government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction." 10 2. The unfortunate fact that respondent judge chose to rely on the suspicion of respondents COSAC officers "that the other remaining crates unopened contain contraband items" 11 rather than on the categorical assurance of the Solicitor-General that petitioner Verstuyft did not abuse his diplomatic immunity, 12 which was based in turn on the official positions taken by the highest executive officials with competence and authority to act on the matter, namely, the Secretaries of Foreign Affairs and of Finance, could not justify respondent judge's denial of the quashal of the search warrant. As already stated above, and brought to respondent court's attention, 13 the Philippine Government is bound by the procedure laid down in Article VII of the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations 14 for consultations between the Host State and the United Nations agency concerned to determine, in the first instance the fact of occurrence of the abuse alleged, and if so, to ensure that no repetition occurs and for other recourses. This is a treaty commitment voluntarily assumed by the Philippine Government and as such, has the force and effect of law. Hence, even assuming arguendo as against the categorical assurance of the executive branch of government that respondent judge had some ground to prefer respondents COSAC officers' suspicion that there had been an abuse of diplomatic immunity, the continuation of the search warrant proceedings before him was not the proper remedy. He should, nevertheless, in deference to the exclusive competence and jurisdiction of the executive branch of government to act on the matter, have acceded to the quashal of the search warrant, and forwarded his findings or grounds to believe that there had been such abuse of diplomatic immunity to the Department of Foreign Affairs for it to deal with, in accordance with the aforementioned Convention, if so warranted. 3. Finally, the Court has noted with concern the apparent lack of coordination between the various departments involved in the subject-matter of the case at bar, which made it possible for a small unit, the COSAC, to which respondents officers belong, seemingly to disregard and go against the authoritative determination and pronouncements of both the Secretaries of Foreign Affairs and of Finance that petitioner Verstuyft is entitled to diplomatic immunity, as confirmed by the Solicitor-General as the principal law officer of the Government. Such executive determination properly implemented should have normally constrained respondents officers themselves to obtain the quashal of the search warrant secured by them rather than oppose such quashal up to this Court, to the embarrassment of said department heads, if not of the Philippine Government itself vis a vis the petitioners. 15 The seriousness of the matter is underscored when the provisions of Republic Act 75 enacted since October 21, 1946 to safeguard the jurisdictional immunity of diplomatic officials in the Philippines are taken into account. Said Act declares as null and void writs or processes sued out or prosecuted whereby inter alia the person of an ambassador or public minister is arrested or imprisoned or his goods or chattels are seized or attached and makes it a penal offense for "every person by whom the same is obtained or prosecuted, whether as party or as attorney, and every officer concerned in executing it" to obtain or enforce such writ or process. 16 The Court, therefore, holds that respondent judge acted without jurisdiction and with grave abuse of discretion in not ordering the quashal of the search warrant issued by him in disregard of the diplomatic immunity of petitioner Verstuyft. ACCORDINGLY, the writs of certiorari and prohibition prayed for are hereby granted, and the temporary restraining order heretofore issued against execution or enforcement of the questioned search warrant, which is hereby declared null and void, is hereby made permanent. The respondent court is hereby commanded to desist from further proceedings in the matter. No costs, none having been prayed for. The clerk of court is hereby directed to furnish a copy of this decision to the Secretary of Justice for such 77

action as he may find appropriate with regard to the matters mentioned in paragraph 3 hereof. So ordered. Concepcion, C.J., Makalintal, Zaldivar, Fernando, Barredo, Makasiar, Antonio and Esguerra, JJ., concur. Castro, J., reserves his vote.

Footnotes 1 Respondents' Answer, Rollo, p. 138. 2 Citygram of March 6, 1972 of Secretary of Foreign Affairs Carlos P. Romulo to respondent judge, Annex D, petition. 3 This penal provision of the tariff & customs code imposes a penalty of a fine of not less than P600.00 nor more than P5000.00 and imprisonment for not less than 6 months nor more than two years for unlawful importation and illegal possession of goods imported contrary to law, upon "Any person who shall fraudulently import or bring into the Philippines, or assist in so doing, any article, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such article after importation, knowing the same to have been imported contrary to law," and states that "(W)hen, upon trial for a violation of this section, the defendant is shown to have or to have had possession of the article in question, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the court...." 4 Respondent judge's justification in his said order reads in part as follows: "... From the reply submitted by Captains Pedro S. Navarro and Antonio G. Relleve of the COSAC, it appears that the articles contained in the two baggages allegedly belonging to Dr. Verstuyft so far opened by them, are 120 bottles of assorted foreign wine and 15 tins of PX goods which are said to be dutiable under the Customs and Tariff Code of the Philippines. The two COSAC officers further manifested that they positively believe that there are more contraband items in the nine other huge crates which are still unopened.... The articles so far found in the two crates opened by Capt. Navarro and Relleve are not mentioned in the list of articles brought in by Dr. Verstuyft and are highly dutiable under the Customs and Tariff Code and according to said officers they have strong reasons to believe that the other remaining crates unopened contain contraband items. The Court is certain that the World Health Organization would not tolerate violations of local laws by its officials and/or representatives under a claim of immunity granted to them by the host agreement. Since the right of immunity invoked by the Department of Foreign Affairs is admittedly relative and not absolute, and there are strong and positive indications of violation of local laws, the Court declines to suspend the effectivity of the search warrant issued in the case at bar...." 5 Aside from the Foreign Affairs Department's certification that the importation of 120 bottles of wine is "ordinary in diplomatic practice," the Solicitor General took pains to inform the lower court that the packing of Dr. Verstuyft's baggages and personal effects was done "by a packing company in Taipei ... (and) Dr. Verstuyft had no hand in the preparation of the packing list of his personal effects which has been assailed by ASAC agents. Also implicit from the foregoing is the fact that Dr. Verstuyft had no intention to violate Philippine laws by selling the 120 bottles of foreign wine and 15 tins of PX goods in the Philippines. Otherwise, he need not have stored the same at the Eternit Corporation where they may be subject to the probing eyes of government agents." 6 The Solicitor General cites that the Convention on the Privileges and Immunities of 78

the Specialized Agencies of the U.N. adopted on Nov. 21, 1947, and made applicable by ratification to the WHO contains Article VII on abuse of privilege, calling for consultations between the Host State and the U.S. agency concerned and in case no satisfactory result is reached for submittal to the International Court of Justice for determination whether "such an abuse has occurred," and providing for the customary procedure of requiring the offending official's departure in certain instances. 7 Section 1661, Rev. Administrative Code. 8 See Trost vs. Tompkins, 44A, 2b 226. 9 See Ins. Co., 24 N.E. 2d 81, 281 N.Y. 362, reversing 5 N.Y.S. 2d 295, 254 App. Div. 511, reargument denied 26 N.E. 2d 808, 282 N.Y. 676, motion denied 29 N.E. 2d 939, 284 N.Y. 633 (27-5th D-1127). 10 See, United States v. Lee, 106 U. S. 196, 209, 1 S. Ct. 240, 27 L. Ed. 171; Ex parte Republic of Peru, 318 U.S. 578, 63 S. CT. 793, 87 L. Ed. 1014; Republic of Mexico v. Hoffman, 324, U. S. 30, 35, 65 S. Ct. 530, 89 L. Ed. 729; Welleman vs. Chase Manhattan Bank 192 N.Y.S. 2d 469. 11 Supra. fn. 4. 12 Supra, fn. 5. 13 Supra, fn. 6. 14 This Convention was adopted by the U. N. General Assembly on Nov. 21, 1947; it was concurred in by the Philippine Senate under Sen. Resolution No. 21, May 17, 1949; and the Philippine Instrument of Ratification was signed by the President of the Republic on Feb. 21, 1959 applying the Convention to the WHO. See 45 0. G. 3187 (1949) and Vol. I, Phil. Treaty series, p. 621. 15 In their answer to petition, respondents COSAC officers insist on their "belief and contention" that the 120 bottles of foreign wine found by them "are far in excess, considered by any reasonable standard of taste and elegance in the diplomatic world of the official mission and needs of a diplomat, much more of the status of (petitioner), hence, they should be taxed" and on their "conviction that the articles and effects ... are not in fact and in truth personal effects so as to be comprehended within the privileges and immunities accorded representatives of (WHO)." Rollo, pp. 138-139. 16 The pertinent section of Rep. Act 75, entitled "An act to penalize acts which would impair the proper observance by the Republic and inhabitants of the Philippines of the immunities, rights and privileges of duly accredited foreign diplomatic and consular agents in the Philippines," reads: "Any writ or process sued out or prosecuted by any person in any court of the Republic of the Philippines, or by any judge or justice, whereby the person of any ambassador or public minister of any foreign State, authorized and received as such by the President, or any domestic or domestic servant of any such ambassador or minister is arrested or imprisoned, or his goods or chattels are distrained, seized, or attacked, shall be deemed void, and every person by whom the same is obtained or prosecuted, whether as party or as attorney, and every officer concerned in executing it, shall upon conviction, be punished by imprisonment for not more than three years and a fine of not exceeding two hundred pesos in the discretion of the court." (Section 4, emphasis supplied) As to whether this Act may be invoked on behalf of petitioner (who does not pertain to the foreign diplomatic corps),quaere.

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The Lawphil Project - Arellano Law Foundation

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Republic of the Philippines SUPREME COURT EN BANC G.R. No. 158088 July 6, 2005 SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE COALITION FOR THE ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF THE PHILIPPINES, FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCES, BIANCA HACINTHA R. ROQUE, HARRISON JACOB R. ROQUE, AHMED PAGLINAWAN, RON P. SALO, * LEAVIDES G. DOMINGO, EDGARDO CARLO VISTAN, NOEL VILLAROMAN, CELESTE CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL LLASOS, CRISTINA ATENDIDO, ISRAFEL FAGELA, and ROMEL BAGARES, Petitioners, vs. OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN AFFAIRS, represented by HON. BLAS OPLE, Respondents. DECISION PUNO J.: This is a petition for mandamus filed by petitioners to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution. The Rome Statute established the International Criminal Court which "shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions."1 Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute. 2 The Statute was opened for signature by all states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through Charge d AffairsEnrique A. Manalo of the Philippine Mission to the United Nations.3 Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states.4 Petitioners filed the instant petition to compel the respondents the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed text of the treaty to the Senate of the Philippines for ratification. It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.5 The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence. A petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully 81

neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station.6 We have held that to be given due course, a petition for mandamus must have been instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right. The petitioner in every case must therefore be an aggrieved party in the sense that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be performed.7 The Court will exercise its power of judicial review only if the case is brought before it by a party who has the legal standing to raise the constitutional or legal question. "Legal standing" means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the government act that is being challenged. The term "interest" is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.8 The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of Representatives and Chairperson of its Committee on Human Rights; the Philippine Coalition for the Establishment of the International Criminal Court which is composed of individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of promoting the cause of human rights and human rights victims in the country; the Families of Victims of Involuntary Disappearances, a juridical entity duly organized and existing pursuant to Philippine Laws with the avowed purpose of promoting the cause of families and victims of human rights violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time of filing of the instant petition, and suing under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran, Jr.;9 and a group of fifth year working law students from the University of the Philippines College of Law who are suing as taxpayers. The question in standing is whether a party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.10 We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit. The other petitioners maintain their standing as advocates and defenders of human rights, and as citizens of the country. They have not shown, however, that they have sustained or will sustain a direct injury from the nontransmittal of the signed text of the Rome Statute to the Senate. Their contention that they will be deprived of their remedies for the protection and enforcement of their rights does not persuade. The Rome Statute is intended to complement national criminal laws and courts. Sufficient remedies are available under our national laws to protect our citizens against human rights violations and petitioners can always seek redress for any abuse in our domestic courts. As regards Senator Pimentel, it has been held that "to the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution."11 Thus, legislators have the standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim infringes their prerogatives as legislators. The petition at bar invokes the power of the Senate to grant or withhold its concurrence to a treaty entered into by the executive branch, in this case, the Rome Statute. The petition seeks to order the executive branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority. Senator Pimentel, as member of the institution, certainly has the legal standing to assert such authority of the Senate. We now go to the substantive issue. The core issue in this petition for mandamus is whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President. We rule in the negative. In our system of government, the President, being the head of state, is regarded as the sole organ and 82

authority in external relations and is the countrys sole representative with foreign nations. 12 As the chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.13 In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that "no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." The 1935 and the 1973 Constitution also required the concurrence by the legislature to the treaties entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided: Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members of the Senate, to make treaties xxx. Section 14 (1) Article VIII of the 1973 Constitution stated: Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless concurred in by a majority of all the Members of the Batasang Pambansa. The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations.14 By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nations pursuit of political maturity and growth.15 In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the power to ratify treaties belongs to the Senate. We disagree. Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise: The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties. Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even "collapse" in case the parties are unable to come to an agreement on the points under consideration. If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should 83

they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them. xxx The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.16 [emphasis supplied] Petitioners arguments equate the signing of the treaty by the Philippine representative with ratification. It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the states authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an executive act, undertaken by the head of the state or of the government. 17 Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international agreements and its ratification. It mandates that after the treaty has been signed by the Philippine representative, the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty to render it effective. Section 7 of Executive Order No. 459 reads: Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. The domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall be as follows: A. Executive Agreements. i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing for the preparation of the ratification papers. The transmittal shall include the highlights of the agreements and the benefits which will accrue to the Philippines arising from them. ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall transmit the agreements to the President of the Philippines for his ratification. The original signed instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate action. B. Treaties. i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties, in such numbers as may be required by the Senate, together with a certified true copy of the ratification instrument, shall accompany the submission of the treaties to the Senate. ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the provision of the treaties in effecting their entry into force. Petitioners submission that the Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by 84

the provisions of such treaty. After the treaty is signed by the states representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries.18 There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense.19 It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification.20 Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. 21 Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly,22 such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ ofmandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.23 The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to the Senate. IN VIEW WHEREOF, the petition is DISMISSED. SO ORDERED. REYNATO S. PUNO Associate Justice WE CONCUR: HILARIO G. DAVIDE, JR. Chief Justice ARTEMIO V. PANGANIBAN LEONARDO A. QUISUMBING Associate Justice Associate Justice (on official leave) CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ Associate Justice Associate Justice (on official leave) ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ Associate Justice Associate Justice (on official leave) RENATO C. CORONA CONCHITA CARPIO MORALES 85

Associate Justice Associate Justice ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA Associate Justice Associate Justice DANTE O. TINGA MINITA V. CHICO-NAZARIO Associate Justice Associate Justice CANCIO C. GARCIA Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. HILARIO G. DAVIDE, JR. Chief Justice

Footnotes
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On official leave. Article 1, Rome Statute. Article 5, Rome Statute. Annex "B" of Petition, Rollo, p. 101. Article 25, Rome Statute. Article 18, Vienna Convention on the Law of Treaties reads: Article 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.
6

Section 3, Rule 65, 1997 Rules of Civil Procedure. Legaspi vs. Civil Service Commission, 150 SCRA 530 (1987). 86

Joya vs. Presidential Commission on Good Government, 225 SCRA 568 (1993). 224 SCRA 792 (1993). Gonzales vs. Narvasa, 337 SCRA 733 (2000). Del Mar vs. Philippine Amusement and Gaming Corporation, 346 SCRA 485 (2000). Cortes, The Philippine Presidency: A Study of Executive Power (1966), p. 187. Cruz, Philippine Political Law (1996 Ed.), p. 223. Cortes, supra note 12, p. 189. Bayan vs. Zamora, 342 SCRA 449 (2000). Cruz, International Law (1998 Ed.), pp. 172-174. Bayan vs. Zamora, supra note 15. Salonga and Yap, Public International Law (5th Edition), p. 138. Cruz, International Law, supra note 16, p.174. Bayan vs. Zamora, supra note 15. Cruz, International Law, supra note 16, p.174. Salonga and Yap, supra note 18. See Severino vs. Governor-General, 16 Phil. 366 (1910).

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The Lawphil Project - Arellano Law Foundation

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 139465 January 18, 2000

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents. MELO, J.: The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming powers of government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ. The petition at our doorstep is cast against the following factual backdrop: On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of crime both in the state where it was committed and the state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the executive department and the courts in the proper implementation of said treaties. On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in the Requesting State). On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private respondent appears to be charged in the United States with violation of the following provisions of the United States Code (USC): A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty 5 years on each count); B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5 years on each count); C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty 5 years on 88

each count); D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years on each count); E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty less than one year). (p. 14, Rollo.) On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed" (p. 15, Rollo). Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.S. Government, as well as all documents and papers submitted therewith; and that he be given ample time to comment on the request after he shall have received copies of the requested papers. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime. Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the request of the United States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify on his request. In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests for the following reasons: 1. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government, pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and establishes the procedures under which the documents submitted shall be received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in Section 4 of P.D. No. 1069. Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available. It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition, request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents. 2. The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by strict secrecy rules under United States law. The United States had to secure orders from the concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United States District Courts. In this particular extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. This Department's denial of your request is consistent with Article 7 of the RP-US 89

Extradition Treaty which provides that the Philippine Government must represent the interests of the United States in any proceedings arising out of a request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition requests. 3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of accused or convicted persons must be processed expeditiously. (pp. 77-78, Rollo.) Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private respondent the extradition documents, to give him access thereto, and to afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and objectively);certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States), with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo). The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion. After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved that he be given ample time to file a memorandum, but the same was denied. On August 10, 1999, respondent judge issued an order dated the previous day, disposing: WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with a Regional Trial court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court. The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date. SO ORDERED. (pp. 110-111, Rollo.) Forthwith, petitioner initiated the instant proceedings, arguing that: PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE: I. 90

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUSIN THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES; II. PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW; III. THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND IV. PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY. (pp. 19-20, Rollo.) On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a temporary restraining order (TRO) providing: NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case No. 99-94684. GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th day of August 1999. (pp. 120-121, Rollo.) The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective memoranda. From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and academic (the issues of which are substantially the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict between private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty? The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 91 PROTECTION AND

99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court. To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual, are abstracted as follows: The Extradition Request The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and shall be accompanied by: 1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal force; 2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts; 3. The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and 4. Such other documents or information in support of the request. (Sec. 4. Presidential Decree No. 1069.) Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides . . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention, he shall forward the request together with the related documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case. The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this task? In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain whether or not the request is supported by: 1. Documents, statements, or other types of information which describe the identity and probable location of the person sought; 2. A statement of the facts of the offense and the procedural history of the case; 3. A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested; 4. A statement of the provisions of law describing the punishment for the offense; 92

5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense; 6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as applicable. (Paragraph 2, Article 7, Presidential Decree No. 1069.) 7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal for trial if the offense had been committed there; 8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and 9. A copy of the charging document. (Paragraph 3, ibid.) The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs). In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the Requested State determines that the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." The Extradition Petition Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer that the court take the extradition request under consideration (Paragraph [2], ibid.). The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective extraditee. The Extradition Hearing The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the case may, upon application by the Requesting State, represent the latter throughout the proceedings. Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.). 93

The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).1wphi1.nt With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings? A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers. However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following; (1) the right to be furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable period of time to oppose the request, and to present evidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request. The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation. Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination? The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-judicial power. 94

In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one or the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or accounts, records, reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64). The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial functions. Notably, investigation is indispensable to prosecution. In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and making findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment. The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court. It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069). Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one. Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78,Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such 95

as the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436). In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against selfincrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical practitioner, is an even greater deprivation than forfeiture of property. Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature. The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense. By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty. Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not welltaken.Wright is not authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. The characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information, and hearing. As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserved these principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance with treaty commitments. The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens. The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an 96

undefined and expanding future. The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366). Due process is comprised of two components substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106). True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64). In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counteraffidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant. These twin rights may, however, be considered dispensable in certain instances, such as: 1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution; 2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and 3. Where the twin rights have previously been offered but the right to exercise them had not been claimed. Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described situations mentioned above? Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U.S. Government. American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation 97

that the person demanded was in the demanding state at the time the offense charged was committed, and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers and documents prescribed by statute, which essentially include a copy of the instrument charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the government of the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 andEx parte Tucker, Cr., 324, S.W.2d 853). In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand for the return of the alleged offender, and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815). In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and principles, which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit: 1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is transmitted subsequently through the diplomatic channel. 2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing. 3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid.) 4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid.) 5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath, charging any person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).] 6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual findings and conclusions of law and certifies the person's extraditability. The court then forwards this certification of extraditability to the Department of State for disposition by the 98

Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. 3186). 7. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. However, a person facing extradition may present whatever information he deems relevant to the Secretary of State, who makes the final determination whether to surrender an individual to the foreign government concerned. From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity the Department of State which has the power to evaluate the request and the extradition documents in the beginning, and, in the person of the Secretary of State, the power to act or not to act on the court's determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial evaluation of the request, and having satisfied itself on the points earlier mentioned ( see pp. 10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of Justice which has taken over the task of evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition. Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process. We agree with private respondent's citation of an American Supreme Court ruling: The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones. (Stanley vs. Illinois, 404 U.S. 645, 656) The United States, no doubt, shares the same interest as the Philippine Government that no right that of liberty secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed at the altar of expediency. (pp. 40-41, Private Respondent's Memorandum.) In the Philippine context, this Court's ruling is invoked: One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]). There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be effective, requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are, however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered liberty." 99

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he may hold that federal and statutory requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the requested state has the power to deny the behest from the requesting state. Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the extradition. In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements of the law and the treaty since it even informed the U.S. Government of certain problems in the extradition papers (such as those that are in Spanish and without the official English translation, and those that are not properly authenticated). In fact, petitioner even admits that consultation meetings are still supposed to take place between the lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in an abbreviated period of time due to its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can be dispensed with? Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand there is yet no extraditee, but ironically on the other, it results in an administrative if adverse to the person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus blatant and manifest. Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside. Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III which reads: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to information on matters of public concern, and (2) the corollary right of access to official records documents. The general right guaranteed by said provision is the right to information on matters of public concern. In its implementation, the right of access to official records is likewise conferred. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can protect the values of democratic government (Ibid.). Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. On the other hand, private respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only becomes material when a third person, who is not directly affected by the matters requested, invokes the right to information. However, if the person invoking the right is the one directly affected thereby, his right to information becomes absolute. The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public 100

officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has "standing". When the individual himself is involved in official government action because said action has a direct bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause of the accusation against him. The right to information is implemented by the right of access to information within the control of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be contained in official records, and in documents and papers pertaining to official acts, transactions, or decisions. In the case at bar, the papers requested by private respondent pertain to official government action from the U.S. Government. No official action from our country has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if a third party invokes this constitutional provision, stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no official governmental action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would already fall under matters of public concern, because our government by then shall have already made an official decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming. We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution? First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations. The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with nations." Under the doctrine of incorporation, rules of international law form part of the law of the and land no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12). The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 101

[1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.). In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these two components of the law of the land are not pined against each other. There is no occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of extradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence. Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents. We disagree. In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right (35 C.J.S. 410). Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioner's revelation that everything it refuses to make available at this stage would be obtainable during trial. The Department of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial. A libertarian approach is thus called for under the premises. One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to consider similar situations in jurisprudence for an application by analogy. Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RPUS Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's theory, because there is no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is not available during the arrest of the prospective 102

extraditee when the extradition petition has already been filed in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto? The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration. How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 1069? Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary dismissals may be effected without the necessity of a formal investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals: . . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred against him, and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses against the charges levelled against him and to present evidence in support of his defenses. . . . (at p. 671) Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent. In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's liberty is easily comprehensible. We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of 103

Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised. Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid. WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to grant him a reasonable period within which to file his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed. SO ORDERED. Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur. Davide, Jr., C.J., I join Mr. Justice Puno in his dissent. Puno, J., please see dissent. Vitug, J., see separate opinion. Kapunan, J., see separate concurring opinion. Panganiban, J., please see my dissenting opinion. Mendoza, J., I join the dissents of Puno and Panganiban, JJ. Quisumbing, J., with concurring opinion. Pardo, J., I join J. Puno & J. Panganiban. Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban. Ynares-Santiago, J., please see separate concurring opinion.

Separate Opinions VITUG, J., separate opinion; The only real issue before the Court, I would take it, is whether or not private respondent can validly ask for copies of pertinent documents while the application for extradition against him is still undergoing process by the Executive Department. There is, I agree with the majority, a right of access to such extradition documents conformably with the provisions of Article III, Section 7, of the Philippine Constitution.1 The constitutional right to free access to information of public concern is circumscribed only by the fact that the desired information is not among the species exempted by law from the operation of the constitutional guaranty and that the exercise of the right conforms with such reasonable conditions as may be prescribed by law. There is no hornbook rule to determine whether or not an information is of public concern. The term "public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters which the public may want to know either because the subject thereof can affect their lives or simply because it arouses concern. 2 I am not convinced that there is something so viciously wrong with, as to deny, the request of private respondent to be furnished with copies of the extradition documents. I add. The constitutional right to due process secures to everyone an opportunity to be heard, presupposing foreknowledge of what he may be up against, and to submit any evidence that he may wish to proffer in an effort to clear himself. This right is two-pronged substantive and procedural due process founded, in the first instance, on Constitutional or statutory provisions, and in the second instance, on accepted rules of 104

procedure.3Substantive due process looks into the extrinsic and intrinsic validity of the law that figures to interfere with the right of a person to his life, liberty and property. Procedural due process the more litigated of the two focuses on the rules that are established in order to ensure meaningful adjudication in the enforcement and implementation of the law. Like "public concern," the term due process does not admit of any restrictive definition. Justice Frankfurter has viewed this flexible concept, aptly I believe, as being ". . . compounded by history, reason, the past course of decisions, and stout confidence in the democratic faith."4 The framers of our own Constitution, it would seem, have deliberately intended, to make it malleable to the ever-changing milieu of society. Hitherto, it is dynamic and resilient, adaptable to every situation calling for its application that makes it appropriate to accept an enlarged concept of the term as and when there is a possibility that the right of an individual to life, liberty and property might be diffused. 5 Verily, whenever there is an imminent threat to the life, liberty or property of any person in any proceeding conducted by or under the auspices of the State, his right to due process of law, when demanded, must not be ignored. A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the Extradition Treaty between the Government of the Republic of the Philippines and the Government of the United States of America provides that in case of urgency, a Contracting Party may request the provisional arrest of the person prior to the presentation of the request for extradition. I see implicit in this provision that even after the request for extradition is made and before a petition for extradition is filed with the courts, the possibility of an arrest being made on the basis of a mere evaluation by the Executive on the request for extradition by the foreign State cannot totally be discounted. The conclusion reached by the majority, I hasten to add, does not mean that the Executive Department should be impeded in its evaluation of the extradition request. The right of the extraditee to be furnished, upon request, with a copy of the relevant documents and to file his comment thereon is not necessarily anathema to the proceedings duly mandated by the treaty to be made. I vote to deny the petition.

KAPUNAN, J., separate concurring opinion; I vote to dismiss the petition, both on technical and substantial grounds. The petition in the case at bar raises one and only issue, which is the validity of the Temporary Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in Civil Case No. 99-94684. The TRO directed respondents in said case to: . . . maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with the Regional Trial Court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty days from the service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.1 (Emphasis ours.) The petition itself categorically states that "(t)he issue sought to be presented and litigated here is solely-the validity of the TRO."2 Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear the case below or that he has exceeded his jurisdiction in hearing the same. Nor is there any other act, ruling, order, or decision, apart from the TRO already mentioned, of respondent Judge that is being challenged in the petition before us. Since, as alleged in the petition, a copy of the TRO was served on respondents below on August 10, 1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition has become moot and academic. This Court does not exercise jurisdiction over cases which are moot and academic or those not ripe for judicial consideration.3 105

Assuming that the present case has not become moot and academic, still, it should be dismissed for lack of merit. The substantive issues raised in this case are: (a) whether a person whose extradition is sought by a foreign state has due process rights under Section 2, Article III of the 1997 Constitution before the Department of Justice as the request for extradition is being evaluated, or whether due process rights maybe invoked only upon the filing of a petition for extradition before a regional trial court; and (b) whether or not private respondent has a right of access to extradition documents under Section 7, Article III of the 1997 Constitution. Petitioner contends that due process rights such as the right to be informed of the basis of the request for extradition and to have an opportunity to controvert are not provided in the extradition treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings. Further, he argues that the documents sought to be furnished to private respondent only involve private concerns, and not matters of public concern to which the people have a constitutional right to access. While the evaluation process conducted by the Department of Justice is not exactly a preliminary investigation of criminal cases, it is akin to a preliminary investigation because it involves the basic constitutional rights of the person sought to be extradited. A person ordered extradited is arrested, forcibly taken from his house, separated from his family and delivered to a foreign state. His rights of abode, to privacy, liberty and pursuit of happiness are taken away from him a fate as harsh and cruel as a conviction of a criminal offense. For this reason, he is entitled to have access to the evidence against him and the right to controvert them. While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither does either prohibit it. The right to due process is a universal basic right which is deemed written into our laws and treaties with foreign countries. Like a preliminary investigation, the evaluation by the Department of Justice of the extradition request and its accompanying documents is to establish probable cause and to secure the innocent against hasty, malicious and oppressive prosecution. In this connection, it should be stressed that the evaluation procedure of the extradition request and its accompanying documents by the Department of Justice cannot be characterized as a mere "exparte technical assessment of the sufficiency" thereof. The function and responsibilities of the Department of Justice in evaluating the extradition papers involve the exercise of judgment. They involve a determination whether the request for extradition conforms fully to the requirements of the extradition treaty and whether the offense is extraditable. These include, among others, whether the offense for which extradition is requested is a political or military offense (Article 3); whether the documents and other informations required under Article 7(2) have been provided (Article 7); and whether the extraditable offense is punishable under the laws of both contracting parties by deprivation of liberty for a period of more than one year (Article 2). Consequently, to arrive at a correct judgment, the parties involved are entitled to be heard if the requirements of due process and equal protection are to be observed. With respect to petitioner's claim that private respondent has no right to demand access to the documents relating to the request for extradition, suffice it to say, that any document used in a proceeding that would jeopardize a person's constitutional rights is matter of public concern. As Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation of one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole. Due process rights in a preliminary investigation is now an established principle. The respondent has a right of access to all of the evidence. He has the right to submit controverting evidence. The prosecuting official who conducts the preliminary investigation is required to be neutral, objective, and impartial in resolving the issue of probable cause. I see no reason why the same rights may not be accorded a person sought to be extradited at the stage where the Department of Justice evaluates whether a petition for extradition would be filed before a regional trial court. If denied such rights, not only denial of due process rights but of equal protection may be raised. 106

It is suggested that after a petition for extradition is filed with a regional trial court, the person sought to be extradited may exercise all due process rights. He may then have access to all the records on the basis of which the request for extradition has been made. He may controvert that evidence and raise all defenses he may consider appropriate. That, it is urged, meets the due process requirement. But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right to notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.4 Like the filing of an information in a criminal case, the mere filing of a petition for extradition causes immediate impairment of the liberty of the person sought to be extradited and a substantial curtailment of other rights. His arrest may be immediately ordered by the regional trial court. He would be compelled to face an open and public trial. He will be constrained to seek the assistance of counsel and incur other expenses of litigation. The public eye would be directed at him with all the concomitant intrusions to his right to privacy. Where the liberty of a person is at risk, and extradition strikes at the very core of liberty, invocation of due process rights can never be too early.

QUISUMBING, J., concurring opinion; As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest observations. The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting state. Stated otherwise, the constitutionally mandated duties of our government to the individual deserve preferential consideration when they collide with its treaty obligations to the government of another state. This is so although we recognize treaties as a source of binding obligations under generally accepted principles of international law incorporated in our Constitution as part of the law of the land. For this primordial reason, I vote to DENY the petition. Moreover, considering that the Extradition Treaty between the USA and Philippines appears mute on the specific issue before us, the Court in the exercise of its judicial power to find and state what the law is has this rare opportunity of setting a precedent that enhances respect for human rights and strengthens due process of law. As both majority and dissenting colleagues in the Court will recognize, American authorities follow two tracks in extradition proceedings: (1) the interstate practice where, pursuant to statute, the state Executive upon demand furnishes the would be extraditee or counsel copies of pertinent documents as well as the request for extradition; and (2) the international practice where the Executive department need not initially grant notice and hearing at all. Rules of reciprocity and comity, however, should not bar us from applying internationally now what appears the more reasonable and humane procedure, that is, the interstate practice among Americans themselves. For in this case the American people should be among the most interested parties. Truly, what private respondent is asking our Executive department (notice, copies of documents, and the opportunity to protect himself at the earliest time against probable peril) does not, in my view, violate our Extradition Treaty with the USA. His request if granted augurs well for transparency in interstate or intergovernmental relations rather than secrecy which smacks of medieval diplomacy and the inquisition discredited long ago. That private respondent is a Filipino citizen is not decisive of the issue here, although it is obviously pertinent. Even if he were a resident alien (other than American perhaps), he is, in my view, entitled to our full protection against the hazards of extradition (or deportation, similarly) from the very start. More so because, looking at the facts adduced at the hearing and on the record of this case, the charges against him involve or are comingled with, if not rooted in, certain offenses of a political nature or motivation such as the ones involving alleged financial contributions to a major American political party. If so, long established is the principle that extradition could not be utilized for political offenses or politically motivated charges. 107

There may, of course, be other charges against private respondent in the USA. But then they are, in my view, already tainted there with political color due to the highly charged partisan campaign atmosphere now prevailing. That private respondent's cases will be exploited as political fodder there is not far-fetched, hence the need here for cautious but comprehensive deliberation on the matter at bar. For, above all, it is not only a Treaty provision we are construing; it is about constitutional and human rights we are most concerned.

YNARES-SANTIAGO, J., concurring opinion; I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's right to be given what is due to him. I join in his exposition of this Court's constitutional duty to strike the correct balance between overwhelming Government power and the protection of individual rights where only one person is involved. However, I am constrained to write this short concurrence if only to pose the question of why there should be any debate at all on a plea for protection of one's liberty which, if granted, will not result in any meaningful impediment of thwarting any state policy and objectives. I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked about, should first be exposed to the indignity, expense, and anxiety of a public denunciation in court before he may be informed of what the contracting states in an extradition treaty have against him. There is no question that everything which respondent Jimenez now requests will be given to him during trial. Mr. Jimenez is only petitioning that, at this stage, he should be informed why he may be deported from his own country. I see no ill effects which would arise if the extradition request and supporting documents are shown to him now, instead of later. Petitioner Secretary of Justice states that his action on the extradition request and its supporting documents will merely determine whether or not the Philippines is complying with its treaty obligations. He adds that, therefore, the constitutional rights of an accused in all criminal prosecutions are not available to the private respondent. The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent Jimenez's requests. In short, the reasons are: 1. In evaluating the documents, the Department merely determines whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutional rights of the accused in all criminal prosecutions are, therefore, not available. 2. The United States Government has requested the Philippine Government to prevent unauthorized disclosure of certain grand jury information. 3. The petitioner cannot hold in abeyance proceedings in connection with an extradition request. For extradition to be an effective tool of criminal law enforcement, requests for surrender of accused or convicted persons must be processed expeditiously. I respectfully submit that any apprehensions in the Court arising from a denial of the petition "breach of an international obligation, rupture of states relations, forfeiture of confidence, national embarrassment, and a plethora of other equally undesirable consequences" are more illusory than real. Our country is not denying the extradition of a person who must be extradited. Not one provision of the extradition treaty is violated. I cannot imagine the United States taking issue over what, to it, would be a minor concession, perhaps a slight delay, accorded in the name of human rights. On the other hand, the issue is fundamental in the Philippines. A citizen is invoking the protection, in the context of a treaty obligation, of rights expressly guaranteed by the Philippine Constitution. 108

Until proved to be a valid subject for extradition, a person is presumed innocent or not covered by the sanctions of either criminal law or international treaty. At any stage where a still prospective extraditee only seeks to know so that he can prepare and prove that he should not be extradited, there should be no conflict over the extension to him of constitutional protections guaranteed to aliens and citizens alike. Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article 7 enumerates the required documents and establishes the procedures under which the documents shall be submitted and admitted as evidence. There is no specific provision on how that Secretary of Foreign Affairs should conduct his evaluation. The Secretary of Justice is not even in the picture at this stage. Under petitioner's theory, silence in the treaty over a citizen's rights during the evaluation stage is interpreted as deliberate exclusion by the contracting states of the right to know. Silence is interpreted as the exclusion of the right to a preliminary examination or preliminary investigation provided by the laws of either one of the two states. The right to be informed of charges which may lead to court proceedings and result in a deprivation of liberty is ordinarily routine. It is readily available to one against whom the state's coercive power has already been focused. I fail to see how silence can be interpreted as exclusion. The treaty is silent because at this stage, the preliminary procedure is still an internal matter. And when a law or treaty is silent, it means a right or privilege may be granted. It is not the other way around. The second reason alleging the need for secrecy and confidentiality is even less convincing. The explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United States Government requested the Philippine Government to prevent unauthorized disclosure of certain information. On the other hand, petitioner declares that the United States has already secured orders from concerned District Courts authorizing the disclosure of the same grand jury information to the Philippine Government and its law enforcement personnel. Official permission has been given. The United States has no cause to complain about the disclosure of information furnished to the Philippines. Moreover, how can grand jury information and documents be considered confidential if they are going to be introduced as evidence in adversely proceedings before a trial court? The only issue is whether or not Mr. Jimenez should be extradited. His innocence or guilt of any crime will be determined in an American court. It is there where prosecution strategies will be essential. If the Contracting States believed in a total nondivulging of information prior to court hearings, they would have so provided in the extradition treaty. A positive provision making certain rights unavailable cannot be implied from silence. I cannot believe that the United States and the Philippines with identical constitutional provisions on due process and basic rights should sustain such a myopic view in a situation where the grant of a right would not result in any serious setbacks to criminal law enforcement. It is obvious that any prospective extraditee wants to know if his identity as the person indicated has been established. Considering the penchant of Asians to adopt American names when in America, the issue of whether or not the prospective extraditee truly is the person charged in the United States becomes a valid question. It is not only identity of the person which is involved. The crimes must also be unmistakably identified and their essential elements clearly stated. There are other preliminary matters in which respondent is interested. I see nothing in our laws or in the Treaty which prohibits the prospective extraditee from knowing until after the start of trial whether or not the extradition treaty applies to him. Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941); and Salonga vs. Hon. Pao, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to protect him from an open and extensively publicized accusation of crimes; to spare him the trouble, expense, and anxiety of a public trial; and also to protect the state from useless and expensive trails. Even if the purpose is only to determine whether or not the respondent is a proper subject for extradition, he is nonetheless entitled to the guarantees of fairness and 109

freedom accorded to those charged with ordinary crimes in the Philippines. The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be informed as part of undesirable delaying tactics. This is most unfortunate. Any request for extradition must be viewed objectively and impartially without any predisposition to granting it and, therefore, hastening the extradition process. In the first place, any assistance which the evaluating official may get from the participation of respondent may well point out deficiencies and insufficiencies in the extradition documents. It would incur greater delays if these are discovered only during court trial. On the other hand, if, from respondent's participation, the evaluating official discovers a case of mistaken identity, insufficient pleadings, inadequate complaints, or any ruinous shortcoming, there would be no delays during trial. An unnecessary trial with all its complications would be avoided. The right to be informed is related to the constitutional right to a speedy trial. The constitutional guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the deliberate exclusion of the defendant or respondent from the proceedings. As this Court rules in Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from vexatious, capricious and oppressive delays, its salutary objective being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt (in this case, his being extradited) determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose." The right to be informed and the right to a preliminary hearing are not merely for respondent. They also serve the interests of the State.1wphi1.nt In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights of individual respondent override the concerns of petitioner. There should be no hurried or indifferent effort to routinely comply with all requests for extradition. I understand that this is truer in the United States than in other countries. Proposed extraditees are given every legal protection available from the American justice system before they are extradited. We serve under a government of limited powers and inalienable rights. Hence, this concurrence.

PUNO, J., dissenting opinion; If the case at bar was strictly a criminal case which involves alone the right of an accused to due process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R. Melo, without taking half a pause.But the case at bar does not involve the guilt or innocence of an accused but the interpretation of an extradition treaty where at stake is our government's international obligation to surrender to a foreign state a citizen of its own so he can be tried for an alleged offense committed within that jurisdiction. The issues are of first impression and the majority opinion dangerously takes us to unknown shoals in constitutional and international laws, hence this dissenting opinion. Extradition is a well-defined concept and is more a problem in international law. It is the "process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and those who have been convicted in absentia. It does not apply to persons merely suspected of having committed an offense but against who no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment." 1 The definition covers the private respondent who is charged with two (2) counts of conspiracy to commit offense or to defraud the United States, four (4) counts of attempt to evade or defeat tax, two (2) counts of fraud by wire, radio or television, six (6) counts of false statements or entries and thirty-three (33) counts of election contributions in the name of another. There is an outstanding warrant of arrest against the private respondent issued by the US District Court, Southern District of Florida. 110

A brief review of the history of extradition law will illumine our labor. Possibly the most authoritative commentator on extradition today, M. Cherif Bassiouni, divides the history of extradition into four (4) periods: "(1) ancient times to seventeenth century a period revealing almost exclusive concern for political and religious offenders; (2) the eighteenth century and half of the nineteenth century a period of treaty-making chiefly concerned with military offenders characterizing the condition of Europe during that period; (3) from 1833 to 1948 a period of collective concern in suppressing common criminality; and (4) post-1948 developments which ushered in a greater concern for protecting the human rights of persons and revealed an awareness of the need to have international due process of law regulate international relations."2 It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during these different periods. Extradition was first practiced by the Egyptians, Chinese, Chaldeans and AssyroBabylonians but their basis for allowing extradition was unclear. Sometimes, it was granted due to pacts; at other times, due to plain good will.3 The classical commentators on international law thus focused their early views on the nature of the dutyto surrender an extraditee whether the duty is legal or moral in character. Grotius and de Vattel led the school of thought that international law imposed a legal duty called civitas maxima to extradite criminals.4 In sharp contrast, Puffendorf and Billot led the school of thought that the socalled duty was but an "imperfect obligationwhich could become enforceable only by a contract or agreement between states.5 Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme Court in US v.Rauscher,6 held: ". . . . it is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and punishment. This has been done generally by treaties . . . Prior to these treaties, and apart from them there was no well-defined obligation on one country to deliver up such fugitives to another; and though such delivery was often made it was upon the principle of comity . . ." Then came the long and still ongoing debate on what should be the subject of international law. The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism the fascism of Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the communism of Russia's Stalin, etc. The sinking of these isms led to the elevation of the rights of the individual against the state. Indeed, some species of human rights have already been accorded universal recognition.7 Today, the drive to internationalize rights of women and children is also on high gear.8 The higher rating given to human rights in the hierarchy of values necessarily led to the re-examination of rightful place of the individual in international law. Given the harshest eye is the moss-covered doctrine that international law deals only with States and that individuals are not its subject. For its undesirable corrally is the sub-doctrine that an individual's right in international law is a near cipher. Translated in extradition law, the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of international law, he is bereft of rights. An extraditee, so it was held, is a mere "object transported from one state to the other as an exercise of the sovereign will of the two states involved."9 The re-examination consigned this pernicious doctrine to the museum of ideas.10 The new thinkers of international law then gave a significant shape to the role and rights of the individual in state-concluded treaties and other international agreements. So it was declared by then US Ambassador Philip C. Jessup in audible italics: "A very large part of international affairs and, thus, of the process of international accommodation, concerns the relations between legal persons known as states. This is necessarily so. But it is no longer novel for the particular interest of the human being to break through the mass of interstate relationship."11 The clarion call to re-engineer a new world order whose dominant interest would transcend the parochial confines of national states was not unheeded. Among the world class scholars who joined the search for the elusive ideological underpinnings of a new world order were Yale Professor Myres McDougal and Mr. Justice Florentino Feliciano. In their seminal work. Law and Minimum World Public Order, they suggested that the object of the new world should be "to obtain in particular situations and in the aggregate flow of situations the outcome of a higher degree of conformity with the security goals of preservation, deterrence, restoration, rehabilitation and reconstruction of all societies comprising the world community."12 Needless to stress, all these prescient theses accelerated the move to recognize certain rights of the individual in international law. We have yet to see the final and irrevocable place of individual rights, especially the rights of an extraditee, in the realm of international law. In careful language, Bassiouni observes that today, "institutionalized conflicts between states are still rationalized in terms of sovereignty, national interest, and national security, while 111

human interests continue to have limited, though growing impact on the decision-making processes which translate national values and goals into specific national and international policy."13 I belabor the international law aspect of extradition as the majority opinion hardly gives it a sideglance. It is my humble submission that the first consideration that should guide us in the case at bar is that a bilateral treaty the RP-US Extradition Treaty is the subject matter of the litigation. In our constitutional scheme, the making of a treaty belongs to the executive and legislative departments of our government. Between these two departments,the executive has a greater say in the making of a treaty. Under Section 21, Article VII of our Constitution, thePresident has the sole power to negotiate treaties and international agreements although to be effective, they must be concurred in by at least two thirds of all the members of the Senate. Section 20 of the same Article empowers the President to contract or guarantee foreign loans with the prior concurrence of the Monetary Board. Section 16 of the same Article gives the President the power to appoint ambassadors, other public ministers and consuls subject to confirmation by the Commission on Appointments. In addition, the President has the power to deport undesirable aliens. The concentration of these powers in the person of the President is not without a compelling consideration . The conduct of foreign relations is full of complexities and consequences, sometimes with life and death significance to the nation especially in times of war. It can only be entrusted to that department of government which can act on the basis of the best available information and can decide with decisiveness. Beyond debate, the President is the single most powerful official in our land for Section 1 of Article VII provides that "the executive power shall be vested in the President of the Philippines," whereas Section 1 of Article VI states that "the legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives . . . except to the extent reserved to the people by the provision on initiative and referendum," while Section 1 of Article VIII provides that "judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law." Thus, we can see that executive power is vested in the President alone whereas legislative and judicial powers are shared and scattered. It is also the President who possesses the most comprehensive and the most confidential information about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military intelligence data.14 In fine, the presidential role in foreign affairs is dominant andthe President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to breach of an international obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other problems with equally undesirable consequences. These are some of the dominant policy considerations in international law that the Court must balance against the claim of the private respondent that he has a right to be given the extradition documents against him and to comment thereon even while they are still at the evaluation stage by the petitioner Secretary of Justice, an alter ego of the President. The delicate questions of what constitutional rights and to what degree they can be claimed by an extraditee do not admit of easy answers and have resulted in discrete approaches the world over.15 On one end of the pole is the more liberal European approach. The European Court of Human Rights embraces the view that an extraditee is entitled to the benefit of all relevant provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It has held that ". . . in so far as a measure of the extradition has consequences adversely affecting the enjoyment of a convention right, it may, assuming that the consequences are not too remote, attract the obligations of a Contracting State under the relevant convention guarantee."16 At the other end of the pole is the more cautious approach of the various Courts of Appeal in the United States. These courts have been more conservative in light of the principle of separation of powers and their faith in the presumptive validity of executive decisions. By and large, they adhere to the rule of non-inquiry under which theextraditing court refuses to examine the requesting country's criminal justice system or consider allegations that the extraditee will be mistreated or denied a fair trial in that country.17 The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-US Extradition Treaty and our Constitution where we have to choose one over the other. Rather, it calls for a harmonizationbetween said treaty and our Constitution. To achieve this desirable objective, the Court should consider whether the constitutional rights invoked by the private respondent have truly been violated and even assuming so, whether he will be denied fundamental fairness. It is only when their violation will destroy the respondent's right to fundamental fairness that his constitutional claims should be given primacy. 112

Given this balancing approach, it is my humble submission that considering all the facts and facets of the case, the private respondent has not proved entitlement to the right he is claiming. The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit respondent's claims, hence, it should be allowed. This is too simplistic an approach. Rights do not necessarily arise from a vacuum. Silence of the law can even mean an implied denial of a right. Also, constitutional litigations do not always involve a clear cut choice between right and wrong. Sometimes, they involve a difficult choice between right against right. In these situations, there is need to balance the contending rights and primacy is given to the right that will serve the interest of the nation at that particular time. In such instances, the less compelling right is subjected to soft restraint but without smothering its essence. Proceeding from this premise of relativism of rights, I venture the view that even assuming arguendorespondent's weak claim, still, the degree of denial of private respondent's rights to due process and to information is too slight to warrant the interposition of judicial power. As admitted in the ponencia itself, an extradition proceeding is sui generis. It is, thus, futile to determine what it is. What is certain is that it is not a criminal proceeding where there is an accused who claim the entire array of rights guaranteed by the Bill of Rights. Let it be stressed that in an extradition proceeding, there is no accused and the guilt or innocence of the extraditee will not be passed upon by our executive officials nor by the extradition judge. Hence, constitutional rights that are only relevant do determine the guilt or innocence of an accused cannot be invoked by an extraditee. Indeed, an extradition proceeding is summary in nature which is untrue of criminal proceedings.18 Even the rules of evidence are different in an extradition proceeding. Admission of evidence is less stringent, again because the guilt of the extraditee is not under litigation. 19 It is not only the quality but even the quantum of evidence in extradition proceeding is different. In a criminal case, an accused can only be convicted by proof beyond reasonable doubt.20In an extradition proceeding, an extraditee can be ordered extradited "upon showing of the existed of a prima faciecase."21 If more need be said, the nature of an extradition decision is different from a judicial decision whose finality cannot be changed by executive fiat. Our courts22 may hold an individual extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive. Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall not be granted if the executive authority of the Requested State determined that the request was politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." In the United States, the Secretary of State exercises this ultimate power and is conceded considerable discretion. He balances the equities of the case and the demands of the nation's foreign relations.23 In sum, he is not straitjacketed by strict legal considerations like an ordinary court. The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence of the extraditee, the limited nature of the extradition proceeding, the availability of adequate remedies in favor of the extraditee, and the traditional leeway given to the Executive in the conduct of foreign affairs have compelled courts to put a high threshold before considering claims of individuals that enforcement of an extradition treaty will violate their constitutional rights. Exemplifying such approach is the Supreme Court of Canada which has adopted ahighly deferential standard that emphasizes international comity and the executive's experience in international matters.24 It continues to deny Canada's charter protection to extraditees unless the violation can be considered shocking to the conscience. In the case, at bar and with due respect, the ponencia inflates with too much significance the threat to liberty of the private respondent to prop us its thesis that his constitutional rights to due process and access to information must immediately be vindicated. Allegedly, respondent Jimenez stands in danger of provisional arrest, hence, the need for him to be immediately furnished copies of documents accompanying the request for his extradition.Respondent's fear of provisional arrest is not real. It is a self-imagined fear for the realities on the ground show that the United States authorities have not manifested any desire to request for his arrest. On the contrary, they filed the extradition request through the regular channel and, even with the pendency of the case at bar, they have not moved for respondent's arrest on the ground of probable delay in the proceedings. To be sure, the issue of whether respondent Jimenez will be provisionally arrested is now moot. Under Section 1 of Article 9 of the RP-US Extradition Treaty, in relation to Section 20(a) of PD No. 1069, the general principle is enunciated that a request for provisional arrest must be made pending receipt of the request for extradition. By filing the request for extradition, the US authorities have implicitly decided not to move for respondent's provisional arrest. But more important, a request for respondent's arrest does not mean he will be the victim of an arbitrary arrest . He will be given due process before he can be arrested. Article 9 of the treaty provides: PROVISIONAL ARREST 113

1. In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice. 2. The application for provisional arrest shall contain: a) a description of the person sought; b) the location of the person sought, if known; c) a brief statements of the facts of the case, including, if possible, the time and location of the offense; d) a description of the laws violated; e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and f) a statement that a request for extradition for the person sought will follow. 3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial. 4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 7. In relation to the above, Section 20 of P.D. No. 1069 provides: Sec. 20. Provisional Arrest. (a) In case of urgency, the requesting state may, pursuant to the relevant treaty or convention and while the same remains in force, request for the provisional arrest of the accused, pending receipt of the request for extradition made in accordance with Section 4 of this Decree. (b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, Manila, either through the diplomatic channels or direct by post or telegraph. (c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt of the request immediately secure a warrant for the provisional arrest of the accused from the presiding judge of the Court of First Instance of the province or city having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the accused. The Director of the National Bureau of Investigation through the Secretary of Foreign Affairs shall inform the requesting state of the result of its request. (d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be released from custody. The due process protection of the private-respondent against arbitrary arrest is written in cyrillic letters in these two (2) related provisions. It is self-evident under these provisions that a request for provisional arrest does not mean it will be granted ipso facto. The request must comply with certain requirements. It must be based on an "urgent" factor. This is subject to verification and evaluation by our executive authorities. The request can be denied if not based on a real exigency of if the supporting documents are insufficient. The protection of the respondent against arbitrary provisional arrest does not stop on the administrative level. For even if the Director of the National Bureau of Investigation agrees with the request for the provisional arrest of 114

the respondent, still he has to apply for a judicial warrant from the "presiding judge of the Court of First Instance (now RTC) of the province of city having jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the provisional arrest of the respondent. The judge has comply with Section 2, Article III of the Constitution which provides that "no . . . warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the . . . persons or things to be seized." The message that leaps to the eye is that compliance with this requirements precludes any arbitrary arrest. In light of all these considerations, I respectfully submit that denying respondent's constitutional claim to be furnished all documents relating to the request for his extradition by the US authorities during their evaluation stage will not subvert his right to fundamental fairness. It should be stressed that this is not a case where the respondent will not be given an opportunity to know the basis of the request for his extradition. In truth, and contrary to the impression of the majority, P.D. No. 1069 fixes the specific time when he will be given the papers constituting the basis for his extradition. The time is when he is summoned by the extradition court and required to answer the petition for extradition. Thus, Section 6 of P.D. No. 1069 provides: Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. He may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case. Upon receipt of the summons and the petition, respondent is free to foist all defense available to him. Such an opportunity does not deny him fairness which is the essence of due process of law. Thus, with due respect, I submit that the ponencia failed to accord due importance to the international law aspect of an extradition treaty as it unduly stressed its constitutional law dimension . This goes against the familiar learning that in balancing the clashing interests involved in extradition treaty, national interest is more equal than the others. While lately, humanitarian considerations are being factored in the equation, still the concept of extradition as a national act is the guiding idea. Requesting and granting extradition remains a power and prerogative of the national government of a State. The process still involves relations between international personalities.25Needless to state, a more deferential treatment should be given to national interest than to individual interest. Our national interest in extraditing persons who have committed crimes in a foreign country are succinctly expressed in the whereas clauses of P.D. No. 1069, viz: WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of international law as part of law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations; WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of any other state to which the criminal may have escaped, because it saps the foundation of social life and is an outrage upon humanity at large, and it is in the interest of civilized communities that crimes should not go unpunished. . . . . The increasing incidence of international and transnational crimes, the development of new technologies of death,and the speed and scale of improvement of communication are factors which have virtually annihilated time and distance. They make more compelling the vindication of national interest to insure that the punishment of criminals should not be frustrated by the frontiers of territorial sovereignty. This overriding national interest must be upheld as against respondent's weak constitutional claims which in no way amount to denial of fundamental fairness. At bottom, this case involves the respect that courts should accord to the Executive that concluded the RP115

US Extradition Treaty in the conduct of our foreign affairs. As early as 1800, the legendary John Marshall, then a congressman, has opined that the power to extradite pursuant to a treaty rests in the executive branch as part of its power to conduct foreign affairs.26 Courts have validated this forward-looking opinion in a catena of unbroken cases. They defer to the judgment of the Executive on the necessities of our foreign affairs and on its view of the requirements of international comity. The deferential attitude is dictated by the robust reality that of the three great branches of our government, it is the Executive that is most qualified to guide the ship of the state on the known and unknown continents of foreign relations. It is also compelled by considerations of the principle of separation of powers for the Constitution has clearly allocated the power to conduct our foreign affairs to the Executive. I respectfully submit that the majority decision has weakened the Executive by allowing nothing less than an unconstitutional headbutt on the power of the Executive to conduct our foreign affairs. The majority should be cautions in involving this Court in the conduct of the nation's foreign relations where the inviolable rule dictated by necessity is that the nation should speak with one voice. We should not overlook the reality that courts by their nature, are ill-equipped to fully comprehend the foreign policy dimension of a treaty, some of which are hidden in shadows and silhouettes. I vote to grant the petition.

PANGANIBAN, J., dissenting opinion; With due respect, I dissent. The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due process rights of notice and hearing during the preliminary or evaluation stage of the extradition proceeding against him. Two Staged in Extradition There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation stage, whereby the executive authority of the requested state ascertains whether the extradition request is supported by the documents and information required under the Extradition Treaty; and (2) the extradition hearing, whereby the petition for extradition is heard before a court of justice, which determines whether the accused should be extradited. The instant petition refers only to the first stage. Private respondent claims that he has a right to be notified and to be heard at this early stage. However, even the ponencia admits that neither the RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the Philippine government, upon receipt of the request for extradition, to give copies thereof and its supporting documents to the prospective extraditee, much less to give him an opportunity to be heard prior to the filing of the petition in court. Notably, international extradition proceedings in the United States do not include the grant by the executive authority of notice and hearing to the prospective extraditee at this initial stage. It is the judge or magistrate who is authorized to issue a warrant of arrest and to hold a hearing to consider the evidence submitted in support of the extradition request. In contrast, in interstate rendition, the governor must, upon demand, furnish the fugitive or his attorney copies of the request and its accompanying documents, pursuant to statutory provisions.1 In the Philippines, there is no similar statutory provision. Evaluation Stage Essentially Ministerial The evaluation stage simply involves the ascertainment by the foreign affairs secretary of whether the extradition request is accompanied by the documents stated in paragraphs 2 and 3, Article 7 of the Treaty, relating to the identity and the probable location of the fugitive; the facts of the offense and the procedural history of the case; provisions of the law describing the essential elements of the offense charged and the punishment therefor; its prescriptive period; such evidence as would provide probable cause for the arrest and the committal for trial of the fugitive; and copies of the warrant or order of arrest and charging document. The foreign affairs secretary also sees to it that these accompanying documents have been certified by the 116

principal diplomatic or consular officer of the Philippines in the United States, and that they are in English language or have English translations. Pursuant to Article 3 of the Treaty, he also determines whether the request is politically motivated, and whether the offense charged is a military offense not punishable under non-military penal legislation.2 Upon a finding of the secretary of foreign affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the justice secretary, who shall immediately designate and authorize an attorney in his office to take charge of the case. The lawyer designated shall then file a written petition with the proper regional trial court, with a prayer that the court take the extradition request under consideration.3 When the Right to Notice and Hearing Becomes Available According to private Respondent Jimenez, his right to due process during the preliminary stage emanates from our Constitution, particularly Section 1, Article III thereof, which provides: No person shall be deprived of life, liberty or property without due process of law. He claims that this right arises immediately, because of the possibility that he may be provisionally arrested pursuant to Article 9 of the RP-US Treaty, which reads: In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice. xxx xxx xxx

Justice Melo's ponencia supports private respondent's contention. It states that there are two occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional arrest pending the submission of the extradition request and (2) his temporary arrest during the pendency of the extradition petition in court.4 The second instance is not in issue here, because no petition has yet been filed in court. However, the above-quoted Article 9 on provisional arrest is not automatically operative at all times, and in enforcement does not depend solely on the discretion of the requested state. From the wordings of the provision itself, there are at least three requisites: (1) there must be an urgency, and (2) there is a corresponding request (3) which must be made prior to the presentation of the request for extradition. In the instant case, there appears to be no urgency characterizing the nature of the extradition of private respondent. Petitioner does not claim any such urgency. There is no request from the United States for the provisional arrest of Mark Jimenez either. And the secretary of justice states during the Oral Argument that he had no intention of applying for the provisional arrest of private respondent.5 Finally, the formal request for extradition has already been made; therefore, provisional arrest is not likely, as it should really come before the extradition request.6 Mark Jimenez Not in Jeopardy of Arrest Under the outlined facts of this case, there is no open door for the application of Article 9, contrary to the apprehension of private respondent. In other words, there is no actual danger that Jimenez will be provisionally arrested or deprived of his liberty. There is as yet no threat that his rights would be trampled upon, pending the filing in court of the petition for his extradition. Hence, there is no substantial gain to be achieved in requiring the foreign affairs (or justice) secretary to notify and hear him during the preliminary stage, which basically involves only the exercise of the ministerial power of checking the sufficiency of the documents attached to the extradition request. It must be borne in mind that during the preliminary stage, the foreign affairs secretary's determination of whether the offense charged is extraditable or politically motivated is merely preliminary. The same issue will 117

be resolved by the trial court.7 Moreover, it is also the power and the duty of the court, not the executive authority, to determine whether there is sufficient evidence to establish probable cause that the extraditee committed the crimes charged.8 The sufficiency of the evidence of criminality is to be determined based on the laws of the requested state.9 Private Respondent Jimenez will, therefore, definitely have his full opportunity before the court, in case an extradition petition will indeed be filed, to be heard on all issues including the sufficiency of the documents supporting the extradition request.10 Private respondent insists that the United States may still request his provisional arrest at any time. That is purely speculative. It is elementary that this Court does not declare judgments or grant reliefs based on speculations, surmises or conjectures. In any event, even granting that the arrest of Jimenez is sought at any time despite the assurance of the justice secretary that no such measure will be undertaken, our local laws and rules of procedure respecting the issuance of a warrant of arrest will govern, there being no specific provision under the Extradition Treaty by which such warrant should issue. Therefore, Jimenez will be entitled to all the rights accorded by the Constitution and the laws to any person whose arrest is being sought.1wphi1.nt The right of one state to demand from another the return of an alleged fugitive from justice and the correlative duty to surrender the fugitive to the demanding country exist only when created by a treaty between the two countries. International law does not require the voluntary surrender of a fugitive to a foreign government, absent any treaty stipulation requiring it.11 When such a treaty does exist, as between the Philippines and the United States, it must be presumed that the contracting states perform their obligations under it with uberrimae fidei, treaty obligations being essentially characterized internationally by comity and mutual respect. The Need for Respondent Jimenez to Face Charges in the US One final point. Private respondent also claims that from the time the secretary of foreign affairs gave due course to the request for his extradition, incalculable prejudice has been brought upon him. And because of the moral injury caused, he should be given the opportunity at the earliest possible time to stop his extradition. I believe that any moral injury suffered by private respondent had not been caused by the mere processing of the extradition request. And it will not cease merely by granting him the opportunity to be heard by the executive authority. The concrete charges that he has allegedly committed certain offenses already exist. These charges have been filed in the United States and are part of public and official records there. Assuming the existence of moral injury, the only means by which he can restore his good reputation is to prove before the proper judicial authorities in the US that the charges against him are unfounded. Such restoration cannot be accomplished by simply contending that the documents supporting the request for his extradition are insufficient. Conclusion In the context of the factual milieu of private respondent, there is really no threat of any deprivation of his liberty at the present stage of the extradition process. Hence, the constitutional right to due process particularly the right to be heard finds no application. To grant private respondent's request for copies of the extradition documents and for an opportunity to comment thereon will constitute "over-due process" and unnecessarily delay the proceedings. WHEREFORE, I vote to grant the Petition.

Footnotes VITUG, J., separate opinion;

1

Sec. 7. The right of the people to information of public concern shall be recognized. Access to official records, and to documents, and papers a pertaining to official acts, transactions, or decisions, as well 118

as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
2

Legaspi vs. Civil Service Commission, 150 SCRA 530; Valmonte vs. Belmonte, Jr., 170 SCRA 256.

Aniag, Jr. vs. Commission on Elections, 237 SCRA 424; Tupas vs. Court of Appeals, 193 SCRA 597.
4

Abraham, Henry J., Some Basic Guidelines of "Due Process of Law." The Lawyers Review, Vol. IX, 30 April 1995, p. 1.
5

Cruz, Isagani A. Constitutional Law. 1995 Ed. pp. 94-95.

KAPUNAN, J., separate concurring opinion;

1

Annex "L," petition. Petition, p. 4. Edillon vs. Fernandos, 114 SCRA 153 (1982); Pangilinan vs. Zapata, 69 SCRA 334 (1976). Stanley v. Illinois, 1405 U.S. 645, 647.

PUNO, J., dissenting opinion;

1

Weston, Falk, D'Amato, International Law and World Order, 2nd ed., p. 630 (1990). International Extradition, United States Law and Practice, 2nd ed., p. 7 (1987).

The Practice of Extradition from Antiquity to Modern France and the United States: A Brief History, 4 B.C. Int'l. & Comp. L. Rev. 39 (1981).
4

They were supported by scholars like Heineccuis, Burlamaqui, Rutherford, Schmelzing and Kent. SeeSheareer, Extradition in Internal Law, p. 24 (1971).
5

They were supported by scholars like Voet, Martons, Kuber, Leyser, Lint, Seafied, Schmaltz, Mittermaier and Heffter. See Shearer, supra, p. 24.
6

119 US 407, 411, 7 S. Ct. 234, 236, 30 L. ed. 425 (1886).

See Universal Declaration of Human Rights (1948), The International Covenant on Economic, Social and Cultural Rights (1966) and The International Covenant on Civil and Political Rights (1966).
8

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) otherwise known as "Bill of Rights for Women" was adopted by the UN General Assembly in December 1979. As of November 1999, one hundred sixty seven (167) states including the Philippines have ratified or acceded to it. See Statement of Angela King, Special Adviser to the Secretary General of the UN on Gender Issues and Advancement of Women, Judicial Colloquium on the Application of International Human Rights Law at the Domestic Level, Vienna, Austria, October 27, 1999.
9

Blakesley and Lagodny, Finding armony Amidst Disagreement Over Extradition, Jurisdiction, The 119

Role of Human Rights and Issues of Extraterritoriality Under International Criminal Law, Vanderbilt Journal of Transnational Law, Vol. 24, No. 1, pp. 44 (1991).
10

See generally Kelsen, Principles of International Law, 2nd ed., (1966); Korowicz, The Problem of the International Personality of Individuals, 50 Am. J., Int'l. Law 553 (1966).
11

The Conquering March of an Idea, Speech before the 72nd Annual Meeting of the American Bar Association, St. Louis, Mo., September 6, 1949.
12

See also R. Falk and S. Mendlovitz, Strategy of World Order, etc. (1996); G. Clark and L. Sohn, World Peace Through World Law (1966); Bassiouni, International Extradition in American Practice and World Public Order, 36 Tenn. L. Rev. 1 (1968).
13

Bassiouni, supra, p. 625. US v. Curtiss-Wright Expert Corp., 299 US 304, 57 S Ct. 216, 81 L. ed. 255 (1936).

14

15

Spencer, The Role of the Charter in Extradition Cases, University of Toronto L. Rev., vol. 51, pp. 62-63, (Winter, 1993).
16

Spencer, op cit., citing the decision in Soering, 11 E.H.R.R. 439 (1989).

17

Semmelman, Federal Courts, The Constitution and the Rule of Non-Inquiry in International Extradition Proceedings, Cornell Law Rev., vol. 76, No. 5, p. 1198 (July 1991).
18

Sec. 9, P.D. No. 1069. Ibid. Sec. 2, Rule 133, Revised Rules of Court. Sec. 10, P.D. No. 1069.

19

20

21

22

Referring to the Regional Trial Courts and the Court of Appeals whose decisions are deemed final and executory. See Section 12, P.D. No. 1069.
23

Note, Executive Discretion in Extradition, 62 Col. Law Rev., pp. 1314-1329. Spencer, op cit., citing decided cases. Weston, Falk and Amato, International Law and World Order, 2nd ed., p. 630 (1990). Semmelman. op cit., p. 1206.

24

25

26

PANGANIBAN, J., dissenting opinion;

1

35 CJS 14(1) Extradition 410. See also ponencia, p. 25. See ponencia, pp. 11-12. Ibid., Section 5, pars. (1) & (2), PD 1069. Ponencia, p. 18. 120

TSN, p. 76. See also TSN, p. 30. 5 (2) & (3) in rel. to 10, PD 1069. See also last par., p. 13 of ponencia. 18 USCS 3184, n 58 Criminal Procedure 456; 31A Am Jur 2d 109 Extradition 828. 18 USCS 3184, n 64 Criminal Procedure 458. See Wright v. Court of Appeals, 235 SCRA 341, August 15, 1994. 31A Am Jur 2d Extradition 14.

10

11

The Lawphil Project - Arellano Law Foundation

121

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 113213 August 15, 1994 PAUL JOSEPH WRIGHT, petitioner, vs. HON. COURT OF APPEALS, HON. JUDGE JOSE DE LA RAMA, RTC, BRANCH 139, MAKATI, M.M. and HON. FRANK DRILON, SECRETARY OF JUSTICE, respondents. Rodrigo E. Mallari for petitioner. Aurora Salva Bautista collaborating for petitioner.

KAPUNAN, J.: A paramount principle of the law of extradition provides that a State may not surrender any individual for any offense not included in a treaty of extradition. This principle arises from the reality of extradition as a derogation of sovereignty. Extradition is an intrusion into the territorial integrity of the host State and a delimitation of the sovereign power of the State within its own territory. 1 The act of extraditing amounts to a "delivery by the State of a person accused or convicted of a crime, to another State within whose territorial jurisdiction, actual or constructive, it was committed and which asks for his surrender with a view to execute justice." 2 As it is an act of "surrender" of an individual found in a sovereign State to another State which demands his surrender 3, an act of extradition, even with a treaty rendered executory upon ratification by appropriate authorities, does not imposed an obligation to extradite on the requested State until the latter has made its own determination of the validity of the requesting State's demand, in accordance with the requested State's own interests. The principles of international law recognize no right of extradition apart from that arising from treaty. 4 Pursuant to these principles, States enter into treaties of extradition principally for the purpose of bringing fugitives of justice within the ambit of their laws, under conventions recognizing the right of nations to mutually agree to surrender individuals within their jurisdiction and control, and for the purpose of enforcing their respective municipal laws. Since punishment of fugitive criminals is dependent mainly on the willingness of host State to apprehend them and revert them to the State where their offenses were committed, 5 jurisdiction over such fugitives and subsequent enforcement of penal laws can be effectively accomplished only by agreement between States through treaties of extradition. Desiring to make more effective cooperation between Australia and the Government of the Philippines in the suppression of crime, 6 the two countries entered into a Treaty of Extradition on the 7th of March 1988. The said treaty was ratified in accordance with the provisions of Section 21, Article VII of the 1987 Constitution in a Resolution adopted by the Senate on September 10, 1990 and became effective thirty (30) days after both States notified each other in writing that the respective requirements for the entry into force of the Treaty have been complied with. 7 The Treaty adopts a "non-list, double criminality approach" which provides for broader coverage of extraditable offenses between the two countries and (which) embraces crimes punishable by imprisonment for at least one (1) year. Additionally, the Treaty allows extradition for crimes committed prior to the treaty's 122

date of effectivity, provided that these crimes were in the statute books of the requesting State at the time of their commission. Under the Treaty, each contracting State agrees to extradite. . . "persons . . . wanted for prosecution of the imposition or enforcement of a sentence in the Requesting State for an extraditable offense." 8 A request for extradition requires, if the person is accused of an offense, the furnishing by the requesting State of either a warrant for the arrest or a copy of the warrant of arrest of the person, or, where appropriate, a copy of the relevant charge against the person sought to be extradited. 9 In defining the extraditable offenses, the Treaty includes all offenses "punishable under the Laws of both Contracting States by imprisonment for a period of at least one (1) year, or by a more severe penalty." 10 For the purpose of the definition, the Treaty states that: (a) an offense shall be an extraditable offense whether or not the laws of the Contracting States place the offense within the same category or denominate the offense by the same terminology; (b) the totality of the acts or omissions alleged against the person whose extradition is requested shall be taken into account in determining the constituent elements of the offense. 11 Petitioner, an Australian Citizen, was sought by Australian authorities for indictable crimes in his country. Extradition proceedings were filed before the Regional Trial Court of Makati, which rendered a decision ordering the deportation of petitioner. Said decision was sustained by the Court of Appeals; hence, petitioner came to this Court by way of review on certiorari, to set aside the order of deportation. Petitioner contends that the provision of the Treaty giving retroactive effect to the extradition treaty amounts to an ex post facto law which violates Section 21 of Article VI of the Constitution. He assails the trial court's decision ordering his extradition, arguing that the evidence adduced in the court below failed to show that he is wanted for prosecution in his country. Capsulized, all the principal issues raised by the petitioner before this Court strike at the validity of the extradition proceedings instituted by the government against him. The facts, as found by the Court of Appeals, 12 are undisputed: On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the Department of Foreign Affairs indorsed to the Department of Justice Diplomatic Note No. 080/93 dated February 19, 1993 from the Government of Australia to the Department of Justice through Attorney General Michael Duffy. Said Diplomatic Note was a formal request for the extradition of Petitioner Paul Joseph Wright who is wanted for the following indictable crimes: 1. Wright/Orr Matter one count of Obtaining Property by Deception contrary to Section 81(1) of the Victorian Crimes Act of 1958; and 2. Wright/Cracker Matter Thirteen (13) counts of Obtaining Properties by Deception contrary to Section 81(1) of the Victorian Crimes Act of 1958; one count of attempting to Obtain Property by Deception contrary to Section 321(m) of Victorian Crimes Act of 1958; and one count of Perjury contrary to Section 314 of Victorian Crimes Act of 1958, which crimes were allegedly committed in the following manner: The one (1) count of Obtaining Property by Deception contrary to Section 81 (1) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright's and co-offender, Herbert Lance Orr's, dishonesty in obtaining $315,250 from Mulcahy, Mendelson and Round Solicitors (MM7R), secured by a mortgage on the property in Bangholme, Victoria owned by Ruven Nominees Pty. Ltd., a company controlled by a Rodney and a Mitchell, by falsely representing that all the relevant legal documents relating to the mortgage had been signed by Rodney and Janine 123

Mitchell. The thirteen (13) counts of Obtaining Property by Deception contrary to Section 81(1) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright's and co-offender Mr. John Carson Craker's receiving a total of approximately 11.2 in commission (including $367,044 in bonus commission) via Amazon Bond Pty. Ltd., depending on the volume of business written, by submitting two hundred fifteen (215) life insurance proposals, and paying premiums thereon (to the acceptance of the policies and payment of commissions) to the Australian Mutual Provident (AMP) Society through the Office of Melbourne Mutual Insurance, of which respondent is an insurance agent, out of which life proposals none are in existence and approximately 200 of which are alleged to have been false, in one or more of the following ways: ( i ) some policy-holders signed up only because they were told the policies were free (usually for 2 years) and no payments were required. (ii) some policy-holders were offered cash inducements ($50 or $100) to sign and had to supply a bank account no longer used (at which a direct debit request for payment of premiums would apply). These policy-holders were also told no payments by them were required. (iii) some policy-holders were introduced through the "Daily Personnel Agency", and again were told the policies were free for 2 years as long as an unused bank account was applied. (iv) some policy-holders were found not to exist. The one count of Attempting to Obtain Property by Deception contrary to Section 321(m) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright's and Mr. Craker's attempting to cause the payment of $2,870.68 commission to a bank account in the name of Amazon Bond Pty. Ltd. by submitting one proposal for Life Insurance to the AMP Society, the policy-holder of which does not exist with the end in view of paying the premiums thereon to insure acceptance of the policy and commission payments. The one count of Perjury contrary to Section 314 of Victorian Crimes Act of 1958 constitutes in Mr. Wright's and Mr. Craker's signing and swearing before a Solicitor holding a current practicing certificate pursuant to the Legal Profession Practice Act (1958), a Statutory Declaration attesting to the validity of 29 of the most recent Life Insurance proposals of AMP Society and containing three (3) false statements. Pursuant to Section 5 of PD No. 1069, in relation to the Extradition Treaty concluded between the Republic of the Philippines and Australia on September 10, 1990, extradition proceedings were initiated on April 6, 1993 by the State Counsels of the Department of Justice before the respondent court. In its Order dated April 13, 1993, the respondent court directed the petitioner to appear before it on April 30, 1993 and to file his answer within ten days. In the same order, the respondent Judge ordered the NBI to serve summons and cause the arrest of the petitioner. The respondent court received return of the warrant of arrest and summons signed by 124

NBI Senior Agent Manuel Almendras with the information that the petitioner was arrested on April 26, 1993 at Taguig, Metro Manila and was subsequently detained at the NBI detention cell where petitioner, to date, continue to be held. Thereafter, the petitioner filed his answer. In the course of the trial, the petitioner testified that he was jobless, married to a Filipina, Judith David, with whom he begot a child; that he has no case in Australia; that he is not a fugitive from justice and is not aware of the offenses charged against him; that he arrived in the Philippines on February 25, 1990 returned to Australia on March 1, 1990, then back to the Philippines on April 11, 1990, left the Philippines again on April 24, 1990 for Australia and returned to the Philippines on May 24, 1990, again left for Australia on May 29, 1990 passing by Singapore and then returned to the Philippines on June 25, 1990 and from that time on, has not left the Philippines; and that his tourist visa has been extended but he could not produce the same in court as it was misplaced, has neither produced any certification thereof, nor any temporary working visa. The trial court, in its decision dated 14 June 1993, granting the petition for extradition requested by the Government of Australia, concluding that the documents submitted by the Australian Government meet the requirements of Article 7 of the Treaty of Extradition and that the offenses for which the petitioner were sought in his country are extraditable offenses under Article 2 of the said Treaty. The trial court, moreover, held that under the provisions of the same Article, extradition could be granted irrespective of when the offense in relation to the extradition was committed, provided that the offense happened to be an offense in the requesting State at the time the acts or omissions constituting the same were committed. 13 Petitioner challenged the decision of the Regional Trial Court before the Court of Appeals assigning the following errors: I. THAT THE HONORABLE RESPONDENT JUDGE GRAVELY ERRED IN GIVING RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY DESPITE THE FACT THAT THE EVIDENCE ADDUCED BY THE RESPONDENT SHOW THAT THE ALLEGED OFFENSES FOR WHICH PETITIONER IS SOUGHT TO BE EXTRADITED TOOK PLACE IN 1988-1989 AT THE TIME THERE WAS NO EXTRADITION TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA. II. THAT THE ACT OF THE HONORABLE RESPONDENT JUDGE IN GIVING RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA AMOUNTS TO AN " EX POST FACTO LAW" AND VIOLATES SECTION 21, ARTICLE VII OF THE 1987 CONSTITUTION. III. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING THE EXTRADITION OF PETITIONER DESPITE THE FACT THAT THE EVIDENCE ADDUCED DO NOT SHOW THAT PETITIONER IS WANTED FOR PROSECUTION IN AUSTRALIA. IV. THAT THE HON. RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN MISINTERPRETING THE EXTENDED STAY OF PETITIONER AS EVIDENCE OF PETITIONER'S DESIGN TO HIDE AND EVADE PROSECUTION IN AUSTRALIA. V. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING THE EXTRADITION OF PETITIONER WITHOUT SPECIFYING IN HIS ORDER OR DECISION THE SPECIFIC CHARGES FOR WHICH PETITIONER IS TO STAND TRIAL IN AUSTRALIA. 125

The Court of Appeals affirmed the trial court's decision on September 14, 1993 and denied petitioner's Motion for Reconsideration on December 16, 1993. 14 Reiterating substantially the same assignments of error which he interposed in the Court of Appeals, petitioner challenges in this petition the validity of the extradition order issued by the trial court as affirmed by the Court of Appeals under the Treaty. Petitioner vigorously argues that the trial court order violates the Constitutional prohibition against ex post facto laws. He avers that for the extradition order to be valid, the Australian government should show that he "has a criminal case pending before a competent court" in that country "which can legally pass judgement or acquittal or conviction upon him." Clearly, a close reading of the provisions of the Treaty previously cited, which are relevant to our determination of the validity of the extradition order, reveals that the trial court committed no error in ordering the petitioner's extradition. Conformably with Article 2, Section 2 of the said Treaty, the crimes for which the petitioner was charged and for which warrants for his arrest were issued in Australia were undeniably offenses in the Requesting State at the time they were alleged to have been committed. From its examination of the charges against the petitioner, the trial court correctly determined that the corresponding offenses under our penal laws are Articles 315(2) and 183 of the Revised Penal Code on swindling/estafa and false testimony/perjury, respectively. 15 The provisions of Article 6 of the said Treaty pertaining to the documents required for extradition are sufficiently clear and require no interpretation. The warrant for the arrest of an individual or a copy thereof, a statement of each and every offense and a statement of the acts and omissions which were alleged against the person in respect of each offense are sufficient to show that a person is wanted for prosecution under the said article. All of these documentary requirements were dully submitted to the trial court in its proceedings a quo. For purposes of the compliance with the provisions of the Treaty, the signature and official seal of the Attorney-General of Australia were sufficient to authenticate all the documents annexed to the Statement of the Acts and Omissions, including the statement itself. 16 In conformity with the provisions of Article 7 of the Treaty, the appropriate documents and annexes were signed by "an officer in or of the Requesting State" 17 "sealed with . . . (a) public seal of the Requesting State or of a Minister of State, or of a Department or officer of the Government of the Requesting State," 18 and "certified by a diplomatic or consular officer of the Requesting State accredited to the Requested State." 19 The last requirement was accomplished by the certification made by the Philippine Consular Officer in Canberra, Australia. The petitioner's contention that a person sought to be extradited should have a "criminal case pending before a competent court in the Requesting State which can legally pass judgement of acquittal or conviction" 20 stretches the meaning of the phrase "wanted for prosecution" beyond the intended by the treaty provisions because the relevant provisions merely require "a warrant for the arrest or a copy of the warrant for the arrest of the person sought to be extradited." 21 Furthermore, the 'Charge and Warrant of Arrest Sheets' attest to the fact that petitioner is not only wanted for prosecution but has, in fact, absconded to evade arrest and criminal prosecution. Since a charge or information under the Treaty is required only when appropriate, i.e., in cases where an individual charged before a competent court in the Requesting State thereafter absconds to the Requested State, a charge or a copy thereof is not required if the offender has in fact already absconded before a criminal complaint could be filed. As the Court of Appeals correctly noted, limiting the phrase "wanted for prosecution" to person charged with an information or a criminal complaint renders the Treaty ineffective over individuals who abscond for the purpose of evading arrest and prosecution. 22 This brings us to another point raised by the petitioner both in the trial court and in the Court of Appeals. May the extradition of the petitioner who is wanted for prosecution by the government of Australia be granted in spite of the fact that the offenses for which the petitioner is sought in his country were allegedly committed prior to the date of effectivity of the Treaty. Petitioner takes the position that under Article 18 of the Treaty its enforcement cannot be given retroactive effect. Article 18 states: ENTRY INTO FORCE AND TERMINATION This Treaty shall enter into force thirty (30) days after the date on which the 126

Contracting States have notified each other in writing that their respective requirements for the entry into force of this Treaty have been complied with. Either contracting State may terminate this Treaty by notice in writing at any time and it shall cease to be in force on the one hundred and eightieth day after the day on which notice is given. We fail to see how the petitioner can infer a prohibition against retroactive enforcement from this provision. The first paragraph of Article 18 refers to the Treaty's date of effectivity; the second paragraph pertains to its termination. Absolutely nothing in the said provision relates to, much less, prohibits retroactive enforcement of the Treaty. On the other hand, Article 2(4) of the Treaty unequivocally provides that: 4. Extradition may be granted pursuant to provisions of this Treaty irrespective of when the offense in relation to which extradition is requested was committed, provided that: (a) it was an offense in the Requesting State at the time of the acts or omissions constituting the offense; and (b) the acts or omissions alleged would, if they had taken place in the Territory of the Requested State at the time of the making of the request for extradition, have constituted an offense against the laws in force in that state. Thus, the offenses for which petitioner is sought by his government are clearly extraditable under Article 2 of the Treaty. They were offenses in the Requesting State at the time they were committed, and, irrespective of the time they were committed, they fall under the panoply of the Extradition Treaty's provisions, specifically, Article 2 paragraph 4, quoted above. Does the Treaty's retroactive application violate the Constitutional prohibition against ex post facto laws? Early commentators understood ex post facto laws to include all laws of retrospective application, whether civil or criminal. 23 However, Chief Justice Salmon P. Chase, citing Blackstone, The Federalist and other early U.S. state constitutions in Calder vs. Bull 24 concluded that the concept was limited only to penal and criminal statutes. As conceived under our Constitution, ex post facto laws are 1) statutes that make an act punishable as a crime when such act was not an offense when committed; 2) laws which, while not creating new offenses, aggravate the seriousness of a crime; 3) statutes which prescribes greater punishment for a crime already committed; or, 4) laws which alter the rules of evidence so as to make it substantially easier to convict a defendant. 25 "Applying the constitutional principle, the (Court) has held that the prohibition applies only to criminal legislation which affects the substantial rights of the accused." 26 This being so, there is no absolutely no merit in petitioner's contention that the ruling of the lower court sustaining the Treaty's retroactive application with respect to offenses committed prior to the Treaty's coming into force and effect, violates the Constitutional prohibition against ex post facto laws. As the Court of Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor a criminal procedural statute. "It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified." 27 In signing the Treaty, the government of the Philippines has determined that it is within its interests to enter into agreement with the government of Australia regarding the repatriation of persons wanted for criminal offenses in either country. The said Treaty was concurred and ratified by the Senate in a Resolution dated September 10, 1990. Having been ratified in accordance with the provision of the 1987 Constitution, the Treaty took effect thirty days after the requirements for entry into force were complied with by both governments. WHEREFORE, finding no reversible error in the decision of respondent Court of Appeals, we hereby AFFIRM the same and DENY the instant petition for lack of merit. 127

SO ORDERED. Davide, Jr., Bellosillo and Quiason, JJ., concur. Cruz, J., is on leave.

#Footnotes

1 OPPENHEIM, INTERNATIONAL LAW: A TREATISE 362-369 (1912) 2 Cited in BISHOP, INTERNATIONAL LAW 471 (1962). 3 Terlindan v. Arnes, 184 U.S. 270, 289 (1902). 4 Factor v. Laubenheimer, 270 U.S. 276 (1933). 5 FENWICK, CASES OF INTERNATIONAL LAW 448 (1951). 6 See, TREATY OF EXTRADITION BETWEEN AUSTRALIA AND THE REPUBLIC OF THE PHILIPPINES, cited Treaty. 7 See, Treaty, art. 18. 8 Id., art. 1. Emphasis supplied. 9 Id., art. 6. 10 Id., art. 2. 11 Id. 12 C.A. Decision, pp. 1-5, Rollo, pp. 33-37 13 Id. 14 Rollo, pp. 45-49. 15 Commission of fraud by means of false pretenses or fraudulent acts executed prior to or simultaneous with the commission of fraud (Art. 315[2]): (a) By using fictitious name or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. (b) By altering the quality, fineness or weight of anything pertaining to his art or business. (c) By pretending to have bribed any Government employee without prejudice to the action for calumny, which the offended party may deem proper to bring against the offender. In this case, the offender shall be punished by the maximum period of the penalty. (d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not 128

sufficient to cover the amount of the check. The failure of the drawer to the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act. (As amended by Rep. Act NO. 4885, approved June 17, 1967). Art. 183. False testimony in other cases and perjury in solemn affirmation. . . .(I)mposed upon any person who, knowingly making untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon any material mater before a competent person authorized to administer an oath in cases in which the law so requires. Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section, shall suffer the respective penalties provided therein. 16 See, Art. 6. 17 Art. 7 (a). 18 Art. 7 (b). 19 Art. 7 (c). 20 Rollo, pp. 21. 21 Art. 6, sec. 2. 22 C.A. Decision, pp. 41, Rollo, pp. 41. 23 2 STORY, COMMENTARIES, Sec. 1345. 24 3 Dall. 3 U.S. 386 (1798). 25 Id. See Mekin v. Wolfe, 2 Phil. 74, 77-78 (1903). See also, In re Kay Villegas Kami where the following two elements were added: 5) assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; 6) deprives a person accused of a crime some lawful protection to which he has become entitled, such as the protection of the former conviction or acquittal, or a proclamation of amnesty. 26 1 BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES 489 (1987), citingMekin, Id. 27 Rollo, pp. 39., C.A. DECISION, pp. 7.

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SECOND DIVISION G.R. No. 140520 December 18, 2000

JUSTICE SERAFIN R. CUEVAS, substituted by ARTEMIO G. TUQUERO in his capacity as Secretary of Justice, Petitoner, vs. JUAN ANTONIO MUOZ, Respondent. DECISION DE LEON, JR., J.: Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals, dated November 9, 1999, directing the immediate release of respondent Juan Antonio Muoz from the custody of law upon finding the Order2 of provisional arrest dated September 20, 1999 issued by Branch 19 of the Regional Trial Court of Manila to be null and void. The antecedent facts: On August 23, 1997, the Hong Kong Magistrates Court at Eastern Magistracy issued a warrant for the arrest of respondent for seven (7) counts of accepting an advantage as an agent contrary to Section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong, and seven (7) counts of conspiracy to defraud, contrary to the common law of Hong Kong.3 Said warrant remains in full force and effect up to the present time.4 On September 13, 1999, the Philippine Department of Justice (hereafter, "Philippine DOJ") received a request for the provisional arrest of the respondent from the Mutual Legal Assistance Unit, International Law Division of the Hong Kong Department of Justice (hereafter, "Hong Kong DOJ") 5 pursuant to Article 11(1) of the "Agreement Between The Government Of The Republic Of The Philippines And The Government Of Hong Kong For The Surrender Of Accused And Convicted Persons" (hereafter, "RP-Hong Kong Extradition Agreement").6 The Philippine DOJ forwarded the request for provisional arrest to the Anti-Graft Division of the National Bureau of Investigation (NBI). On September 17, 1999, for and in behalf of the government of Hong Kong, the NBI filed an application for the provisional arrest of respondent with the Regional Trial Court (RTC) of Manila. On September 20, 1999, Branch 19 of the RTC of Manila issued an Order granting the application for provisional arrest and issuing the corresponding Order of Arrest.7 On September 23, 1999, respondent was arrested pursuant to the said order, and is currently detained at the NBI detention cell.8 On October 14, 1999, respondent filed with the Court of Appeals, a petition for certiorari, prohibition and mandamus with application for preliminary mandatory injunction and/or writ of habeas corpus assailing the validity of the Order of Arrest. The Court of Appeals rendered a decision declaring the Order of Arrest null and void on the following grounds: (1) that there was no urgency to warrant the request for provisional arrest under Article 11(1) of the RP-Hong Kong Extradition Agreement;9 (2) that the request for provisional arrest and the accompanying warrant of arrest and summary of facts were unauthenticated and mere facsimile copies which are insufficient to form a basis for the issuance of the Order of Arrest;10 130

(3) that the twenty (20) day period for provisional arrest under Section 20(d) of Presidential Decree No. 1069 otherwise known as the Philippine Extradition Law, was not amended by Article 11(3) of the RP-Hong Kong Extradition Agreement which provides for a forty-five (45) day period for provisional arrest;11 (4) that the Order of Arrest was issued without the Judge having personally determined the existence of probable cause;12 and (5) that the requirement of dual criminality under Section 3(a) of P.D. No. 1069 has not been satisfied as the crimes for which respondent is wanted in Hong Kong, namely accepting an advantage as an agent and conspiracy to commit fraud, are not punishable by Philippine laws.13 Thus, petitioner Justice Serafin R. Cuevas, in his capacity as the Secretary of the Department of Justice, lost no time in filing the instant petition.14 On November 17, 1999, respondent filed an Urgent Motion For Release Pending Appeal. He primarily contended that, since Section 20(d) of P.D. No. 1069 sets the maximum period of provisional arrest at twenty (20) days, and he has been detained beyond the said period, without both a request for extradition having been received by the Philippine DOJ and the corresponding petition for extradition having been filed in the proper RTC, he should be released from detention. 15 On December 16, 1999, petitioner filed a Manifestation with this Court stressing the fact that as early as November 5, 1999, the Philippine DOJ had already received from the Hong Kong DOJ, a formal request for the surrender of respondent. Petitioner also informed this Court that pursuant to the said request for extradition, the Philippine DOJ, representing the Government of Hong Kong, filed on November 22, 1999, a verified petition for the extradition of respondent docketed as Case No. 99-95733 and currently pending in Branch 10 of the RTC of Manila.16 Petitioner submits that the Court of Appeals erred in nullifying the Order of provisional arrest against respondent. Petitioner imputes the following errors in the subject Decision of the Court of Appeals, to wit: I The Court of Appeals gravely erred in holding that: A. there was no urgency for the provisional arrest of respondent; B. the municipal law (P.D. No. 1069) subordinates an international agreement (RP-Hongkong Agreement); C. the supporting documents for a request for provisional arrest have to be authenticated; D. there was lack of factual and legal bases in the determination of probable cause; and E. the offense of accepting an advantage as an agent is not an offense under the Anti-Graft and Corrupt Practices Act, as amended. II The Court of Appeals seriously erred in declaring as null and void the trial courts Order of Arrest dated September 20, 1999 despite that (sic) respondent waived the right to assail the order of arrest by filing in the trial court a motion for release on recognizance, that (sic) the issue of legality of the order of arrest was being determined by the trial court, and respondent mocked the established rules of procedure intended for an orderly administration of justice.17 131

Petitioner takes exception to the finding of the Court of Appeals that the offense of accepting an advantage as an agent is not punishable under Republic Act (R.A.) No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act, thus, obviating the application of P.D. No. 106918 that requires the offense to be punishable under the laws both of the requesting state or government and the Republic of the Philippines. 19 However, the issue of whether or not the rule of double criminality applies was not for the Court of Appeals to decide in the first place. The trial court in which the petition for extradition is filed is vested with jurisdiction to determine whether or not the offenses mentioned in the petition are extraditable based on the application of the dual criminality rule and other conditions mentioned in the applicable treaty. In this case, the presiding Judge of Branch 10 of the RTC of Manila has yet to rule on the extraditability of the offenses for which the respondent is wanted in Hong Kong. Therefore, respondent has prematurely raised this issue before the Court of Appeals and now, before this Court. Petitioners other arguments, however, are impressed with merit. First. There was urgency for the provisional arrest of the respondent. Section 20(a) of P.D. No. 1069 reads as follows: Provisional Arrest. - (a) In case of urgency, the requesting state may, pursuant to the relevant treaty or convention and while the same remains in force, request for the provisional arrest of the accused, pending receipt of the request for extradition made in accordance with Section 4 of this Decree; and Article 11 of the Extradition Agreement between the Philippines and Hong Kong provides in part that: (1) In urgent cases, the person sought may, in accordance with the law of the requested Party, be provisionally arrested on the application of the requesting Party. x x x. Nothing in existing treaties or Philippine legislation defines the meaning of "urgency" as used in the context of a request for provisional arrest. Using reasonable standards of interpretation, however, we believe that "urgency" connotes such conditions relating to the nature of the offense charged and the personality of the prospective extraditee which would make him susceptible to the inclination to flee or escape from the jurisdiction if he were to learn about the impending request for his extradition and/or likely to destroy the evidence pertinent to the said request or his eventual prosecution and without which the latter could not proceed.20 We find that such conditions exist in respondents case. First. It should be noted that at the time the request for provisional arrest was made, respondents pending application for the discharge of a restraint order over certain assets held in relation to the offenses with which he is being charged, was set to be heard by the Court of First Instance of Hong Kong on September 17, 1999. The Hong Kong DOJ was concerned that the pending request for the extradition of the respondent would be disclosed to the latter during the said proceedings, and would motivate respondent to flee the Philippines before the request for extradition could be made.21 There is also the fact that respondent is charged with seven (7) counts of accepting an advantage as an agent and seven (7) counts of conspiracy to defraud, for each count of which, if found guilty, he may be punished with seven (7) and fourteen (14) years imprisonment, respectively. Undoubtedly, the gravity of the imposable penalty upon an accused is a factor to consider in determining the likelihood that the accused will abscond if allowed provisional liberty. It is, after all, but human to fear a lengthy, if not a lifetime, incarceration. Furthermore, it has also not escaped the attention of this Court that respondent appears to be affluent and possessed of sufficient resources to facilitate an escape from this jurisdiction.22 The arguments raised by the respondent in support of his allegation that he is not a flight risk, are, to wit: a) He did not flee or hide when the Central Bank and the NBI investigated the matter alleged in the request for extradition of the Hongkong Government during the second half of 1994; he has since 132

been cleared by the Central Bank; b) He did not flee or hide when the Hongkong Governments Independent Commission Against Corruption (ICAC) issued a warrant for his arrest in August 1997; he has in fact filed a case in Hongkong against the Hongkong Government for the release of his frozen assets; c) He never changed his address nor his identity, and has sought vindication of his rights before the courts in Hongkong and in the Philippines; d) He has never evaded arrest by any lawful authority, and certainly will never fly away now that his mother is on her death bed.23 do not convince this Court. That respondent did not flee despite the investigation conducted by the Central Bank and the NBI way back in 1994, nor when the warrant for his arrest was issued by the Hong Kong ICAC in August 1997, is not a guarantee that he will not flee now that proceedings for his extradition are well on the way. Respondent is about to leave the protective sanctuary of his mother state to face criminal charges in another jurisdiction. It cannot be denied that this is sufficient impetus for him to flee the country as soon as the opportunity to do so arises. Respondent also avers that his mothers impending death makes it impossible for him to leave the country. However, by respondents own admission, his mother finally expired at the Cardinal Santos Hospital in Mandaluyong City last December 5, 1999.24 Second. Twelve (12) days after respondent was provisionally arrested, the Philippine DOJ received from the Hong Kong DOJ, a request for the surrender or extradition of respondent. On one hand, Section 20(d) of P.D. No. 1069 reads as follows: (d) If within a period of twenty (20) days after the provisional arrest the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be released from custody. On the other hand, Article 11(3) of the RP-Hong Kong Extradition Agreement provides that: (3) The provisional arrest of the person sought shall be terminated upon the expiration of forty-five days from the date of arrest if the request for surrender has not been received, unless the requesting Party can justify continued provisional arrest of the person sought in which case the period of provisional arrest shall be terminated upon the expiration of a reasonable time not being more than a further fifteen days. This provision shall not prevent the re-arrest or surrender of the person sought if the request for the persons surrender is received subsequently. Petitioner contends that Article 11(3) of the RP-Hong Kong Extradition Agreement which allows a period of forty-five (45) days for provisional arrest absent a formal request for extradition has amended Section 20(d) of P.D. No. 1069 which provides only a twenty (20) day period for the same.25 Petitioners argument on this point, however, has been rendered moot and academic by the fact that as early as November 5, 1999 or twelve (12) days after respondents arrest on September 23, 1999, the Philippine DOJ already received from the Hong Kong DOJ, a request for the surrender of respondent. The crucial event, after all, which tolls the provisional detention period is the transmittal of the request for the extradition or surrender of the extraditee. Hence, the question as to whether the period for provisional arrest stands at twenty (20) days, as provided for in P.D. No. 1069, or has been extended to forty-five (45) days under the Extradition Agreement between Hong Kong and the Philippines is rendered irrelevant by the actual request made by the Hong Kong DOJ for the extradition of respondent twelve (12) days after the request for the latters provisional arrest. Likewise, respondents contention in his motion for release pending appeal, that his incarceration cann ot continue beyond the twenty (20) day period without a petition for his extradition having been filed in 133

court, is simply bereft of merit. It is clear from the above-cited provisions, that for the provisional arrest of an accused to continue, the formal request for extradition is not required to be filed in court. It only need be received by the requested state within the periods provided for by P.D. No. 1069 and the RP-Hong Kong Extradition Agreement. By no stretch of imagination may we infer from the required receipt of the request for extradition and its accompanying documents, the additional requisite that the same be filed in the court within the same periods. Third. The request for provisional arrest of respondent and its accompanying documents are valid despite lack of authentication. Section 20(b) of P.D. No. 1069 reads as follows: (b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, Manila, either through the diplomatic channels or direct by post or telegraph. and Article 11(1) of the RP-Hong Kong Extradition Agreement provides in part that: x x x. The application for provisional arrest shall contain an indication of intention to request the surrender of the person sought and the text of a warrant of arrest or a judgment of conviction against that person, a statement of the penalty for that offense, and such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offense been committed, or the person convicted, within the jurisdiction of the requested Party. The language of the abovequoted provisions is clear. There is no requirement for the authentication of a request for provisional arrest and its accompanying documents. We also note that under Section 20(d) of P.D. No. 1069, viz: (d) If within a period of 20 days after the request for provisional arrest the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree,26 the accused shall be released from custody.27 the original or authenticated copies of the decision or sentence imposed upon the accused by the requesting state or the criminal charge and the warrant of arrest issued by the authority of the requesting state, need not accompany the request for provisional arrest and may, in fact, be transmitted after the said request has already been received by the requested state. Furthermore, the pertinent provision of the RP-Hong Kong Extradition Agreement enumerates the documents that must accompany the request, as follows: (1) an indication of the intention to request the surrender of the person sought; (2) the text of a warrant of arrest or judgment of conviction against that person; (3) a statement of penalty for that offense; and (4) such further information as would justify the issue of a warrant of arrest had the offense been committed, or the person convicted, within the jurisdiction of the requested party.28 That the enumeration does not specify that these documents must be authenticated copies, is not a mere omission of law. This may be gleaned from the fact that while Article 11(1) does not require the accompanying documents of a request for provisional arrest to be authenticated, Article 9 of the same Extradition Agreement makes authentication a requisite for admission in evidence of any document accompanying a request for surrender or extradition.29In other words, authentication is required for the request for surrender or extradition but not for the request for provisional arrest. We must also state that the above mentioned provisions of P.D. No. 1069 and the RP-Hong Kong Extradition Agreement, as they are worded, serve the purpose sought to be achieved by treaty stipulations for provisional arrest. The process of preparing a formal request for extradition and its accompanying documents, and transmitting them through diplomatic channels, is not only time-consuming but also leakage-prone. There is naturally a great likelihood of flight by criminals who get an intimation of the pending request for their extradition. To solve this problem, speedier initial steps in the form of treaty stipulations for provisional arrest were 134

formulated.30 Thus, it is an accepted practice for the requesting state to rush its request in the form of a telex or diplomatic cable, the practicality of the use of which is conceded.31 Even our own Extradition Law (P.D. No. 1069) allows the transmission of a request for provisional arrest via telegraph.32 In the advent of modern technology, the telegraph or cable have been conveniently replaced by the facsimile machine. Therefore, the transmission by the Hong Kong DOJ of the request for respondents provisional arrest and the accompanying documents, namely, a copy of the warrant of arrest against respondent, a summary of the facts of the case against him, particulars of his birth and address, a statement of the intention to request his provisional arrest and the reason therefor, by fax machine, more than serves this purpose of expediency. Respondents reliance on Garvida v. Sales, Jr.33 is misplaced. The proscription against the admission of a pleading that has been transmitted by facsimile machine has no application in the case at bar for obvious reasons. First, the instant case does not involve a pleading; and second, unlike the COMELEC Rules of Procedure which do not sanction the filing of a pleading by means of a facsimile machine, P.D. No. 1069 and the RP Hong Kong Extradition Agreement do not prohibit the transmission of a request for provisional arrest by means of a fax machine. In a futile attempt to convince this Court, respondent cites our ruling in the recent case of Secretary of Justice v. Hon. Lantion, et al.34, where we held that the right of an extraditee to due process necessarily includes the right to be furnished with copies of the extradition request and supporting papers, and to file a comment thereto during the evaluation stage of the extradition proceedings. Respondent posits that, in the same vein, the admission by the RTC of the request for provisional arrest and its supporting documents despite lack of authentication is a violation of the respondents right to due process. This contention fails to impress us. Respondents contention is now a non-issue, in view of our Resolution dated October 17, 2000 in the said case ofSecretary of Justice v. Hon. Lantion, et al. reconsidering and reversing our earlier decision therein. Acting on therein petitioners Motion for Reconsideration, we held that therein respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition process. 35 Worthy to reiterate is the following concluding pronouncement of this Court in the said case:36 In tilting the balance in favor of the interests of the State, the Court stresses that it is not ruling that the private respondent has no right to due process at all throughout the length and breath of the extrajudicial proceedings. Procedural due process requires a determination of what process is due, when it is due and the degree of what is due. Stated otherwise, a prior determination should be made as to whether procedural protections are at all due and when they are due, which in turn depends on the extent to which an individual will be condemned to suffer grievous loss.37 We have explained why an extraditee has no right to notice and hearing during the evaluation stage of the extradition process. As aforesaid, P.D. 1069 xxx affords an extraditee sufficient opportunity to meet the evidence against him once the petition is filed in court. The time for the extraditee to know the basis of the request for his extradition is merely moved to the filing in court of the formal petition for extradition. The extraditees right to know is momentarily withheld during the evaluation stage of the extradition process to accommodate the more compelling interest of the State to prevent escape of potential extraditees which can be precipitated by premature information of the basis of the request for his extradition. No less compelling at that stage of the extradition proceedings is the need to be more deferential to the judgment of a co-equal branch of the government, the Executive, which has been endowed by our Constitution with greater power over matters involving our foreign relations. Needless to state, this balance of interests is not a static but a moving balance which can be adjusted as the extradition process moves from the administrative stage to the judicial stage and to the execution stage depending on factors that will come into play. In sum, we rule that the temporary hold on private respondents privilege of notice and hearing is a soft restraint on his right to due process which will not deprive him of fundamental fairness should he decide to resist the request for his extradition to the United States. There is no denial of due process as long as fundamental fairness is assured a party. Respondent also contends that the request for his provisional arrest was rendered defective by the fact that the person who made the request was not a foreign diplomat as provided for in Section 4 (2) of P.D. No. 1069, to wit:

135

SEC. 4. Request; By Whom Made; Requirements.(1) Any foreign state or government with which the Republic of the Philippines has entered into extradition treaty or convention, and only when the relevant treaty or convention, remains in force, may request for the extradition of any accused who is suspected of being in the territorial jurisdiction of the Philippines. (2) The request shall be made by the Foreign Diplomat of the requesting state or government, addressed to the Secretary of Foreign Affairs, x x x. This contention deserves scant consideration. The foregoing refers to the requirements for a request for extradition and not for a request for provisional arrest. The pertinent provisions are Article 11(2) which states: An application for provisional arrest may be forwarded through the same channels as a request for surrender or through the International Criminal Police Organization (INTERPOL);38 and Article 8(1) which provides: Requests for surrender and related documents shall be conveyed through the appropriate authority as may be notified from time to time by one party to another.39 Hence, there is sufficient compliance with the foregoing if the request for provisional arrest is made by an official who is authorized by the government of the requesting state to make such a request and the authorization is communicated to the requested state. The request for provisional arrest of respondent was signed by Wayne Walsh, Senior Government Counsel of the Mutual Legal Assistance Unit, International Law Division of the Hong Kong DOJ who stated in categorical terms that: The Department of Justice (Mutual Legal Assistance Unit) of the HKSAR is the appropriate authority under the Agreement to make requests for provisional arrest and surrender. I confirm that as a member of the Mutual Legal Assistance Unit, I am authorized (sic) to make this request for provisional arrest. 40 Last. There was sufficient factual and legal basis for the determination of probable cause as a requisite for the issuance of the Order of Arrest.41 We have defined probable cause for the issuance of a warrant of arrest as "the existence of such facts and circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested."42 The determination of probable cause is a function of the Judge. Such is the mandate of our Constitution which provides that a warrant of arrest shall issue only upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.43 In the case of Allado v. Diokno,44 we stated that personal determination by the Judge of the existence of probable cause means that he (a) shall personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or, (b) if on the basis thereof he finds no probable cause, may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion on the existence of probable cause. 45 The Judge cannot, therefore, merely rely on the certification issued by the prosecutor. He is, however, not required to personally examine ipso facto the complainant and his witnesses. He sufficiently complies with the requirement of personal determination if he reviews the information and the documents attached thereto, and on the basis thereof forms a belief that the accused is probably guilty of the crime with which he is being charged.46The Judge determines the existence of probable cause to pass upon whether a warrant of arrest should be issued against the accused, that is, whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice.47 136

The request for the respondents provisional arrest was accompanied by facsimile copies of the outstanding warrant of arrest issued by the Hong Kong government, a summary of the facts of the case against respondent, particulars of his birth and address, an intention to request his provisional arrest and the reason therefor. The said documents were appended to the application for respondents provisional arrest filed in the RTC,48 and formed the basis of the judges finding of probable cause for the issuance of the warrant of arrest against respondent. Respondent alleges the contrary and surmises that all that the trial judge did was to interview NBI agent Saunar who filed the application for the issuance of the warrant of provisional arrest, and that "her honor did not probably even notice that the supporting documents were not authenticated."49 The allegation, baseless and purely speculative, is one which we cannot countenance in view of the legal presumption that official duty has been regularly performed.50 That the Presiding Judge of RTC Manila, Branch 19, made a personal determination of the existence of probable cause on the basis of the documents forwarded by the Hong Kong DOJ is further supported by the Order of Arrest against respondent which states: ORDER This treats of the Application For Provisional Arrest of Juan Antonio Muoz, for the purpose of extradition from the Republic of the Philippines. This application was filed in behalf of the Government of Hong Kong Special Administrative Region for the provisional arrest of Juan Antonio Muoz, pursuant to Section 20 of Presidential Decree No. 1069, in relation to paragraph 1, Article 11 of the Agreement for the Surrender of Accused and Convicted Persons between the Republic of the Philippines and Hong Kong on provisional arrest. The application alleged that Juan Antonio Muoz is wanted in Hong Kong for seven (7) counts of the offense of "accepting an advantage as an agent", contrary to Section 9(1) (9) of the Prevention of Bribery Ordinance Cap. 201 of Hong Kong and seven (7) counts of the offense of "conspiracy to defraud", contrary to the Common Law of Hong Kong. That a warrant of arrest was issued by the Magistrates Court at Eastern Magistracy, Hong Kong on August 23, 1997, pursuant to the 14 charges filed against him before the issuing Court. Juan Antonio Muoz is now alleged to be in the Philippines. He was born on June 24, 1941, a holder of Philippines Passport No. 2K 934808, formerly an employee of the Central Bank of the Philippines and with address at Phase 3, BF Homes, No. 26 D C Chuan Street, Metro Manila. That there is an urgency in the issuance of the provisional arrest warrant for the reason that the application to discharge the restraint over the funds, subject of the offenses, in his Citibank Account in Hong Kong was set for hearing on September 17, 1999 and that his lawyer in Hong Kong will be notified of the request of the Hong Kong Government for his provisional arrest (sic) and Juan Antonio E. Muoz upon knowledge of the request. Considering that the Extradition treaty referred to is part of our systems of laws and recognized by Presidential Decree No. 1069 and the Constitution itself by the adoption of international laws, treaties and conventions as parts (sic) of the law of the land, the application for provisional arrest of Juan Antonio Muoz is hereby GRANTED. Let a warrant for his provisional arrest therefore issue. SO ORDERED.51 (Underscoring supplied.) Finally, petitioner also avers that the respondent has waived his right to assail the validity of his provisional arrest when he filed a motion for release on recognizance. Considering that we find petitioners other contentions to be impressed with merit, there is no need to delve further into this particular issue. WHEREFORE, the petition is GRANTED, and the assailed Decision of the Court of Appeals, dated November 9, 1999, in CA-G.R. SP No. 55343 is hereby REVERSED and SET ASIDE. Respondents "Urgent Motion For Release Pending Appeal" is hereby DENIED. 137

SO ORDERED. Bellosillo, Mendoza, Quisumbing, and Buena, JJ., concur.

Footnotes
1

Penned by Associate Justice Bernardo Ll. Salas and concurred in by Associate Justices Cancio C. Garcia and Candido V. Rivera, Third Division, in CA-G.R. SP No. 55343, Rollo, pp. 32-51.
2

Penned by Judge Zenaida R. Daguna in Case No. 99-176691, Id., pp.80-81. Rollo, p. 55. Id., p. 54. Id.,p. 8. Id., p. 72. See Note No. 3, supra at p. 9. Ibid. Rollo, p. 38. Id., p. 42. Id., p. 41. Id., p. 48. Id., p. 49. See Note No. 3, supra at p. 4. Respondents Urgent Motion For Release Pending Appeal, Rollo, p. 94. Petitioners Manifestation dated December 15, 1999, Rollo, p.110. See Note No. 3, supra at p. 13. See Note No. 3, supra at p. 22. Section 3(a), P.D. No. 1069 provides, viz.:

10

11

12

13

14

15

16

17

18

19

"A criminal investigation instituted by authorities of the requesting state or government charging the accused with an offense punishable under the laws both of the requesting state or government and the Republic of the Philippines by imprisonment or other form of deprivation of liberty for a period stipulated in the relevant extradition treaty or convention."
20

Bassiouni, International Extradition United States Law and Practice, Vol. II, 1987 ed., p. 526. See Note No. 1, supra at p. 52. 138

21

22

People v. Berg, 79 Phil. 842 (1947). See Note No. 13, supra at pp. 96-97. Respondents Urgent Manifestation/Motion dated December 6, 1999, Rollo, p. 108. See Note No. 3, supra at pp. 16-17. SEC. 4. Request; By Whom Made; Requirements.(1) Any foreign state or government with which the Republic of the Philippines has entered into extradition treaty or convention, and only when the relevant treaty or convention, remains in force, may request for the extradition of any accused who is or suspected of being in the territorial jurisdiction of the Philippines. (2) The request shall be made by the Foreign Diplomat of the requesting state or government, addressed to the Secretary of Foreign Affairs, and shall be accompanied by: (a) The original or authentic copy of either(1) the decision or sentence imposed upon the accused by the court of the requesting state or government; or (2) the criminal charge and the warrant of arrest issued by the authority of the requesting state or government or having jurisdiction of the matter or some other instruments having the equivalent legal force. (b) A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts; (c) The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and (d) Such other documents or information in support of the request. (Underscoring supplied.)

23

24

25

26

27

Underscoring supplied. Article 11(1) of the RP-Hong Kong Extradition Agreement. Article 9(1) of the RP-Hong Kong Extradition Agreement provides, viz.:

28

29

"Any document that, in accordance with Article 8 of this Agreement, accompanies a request for surrender shall be admitted in evidence, if authenticated, in any proceedings in the jurisdiction of the requested party."
30

Shearer, Extradition in International Law, 1971 Ed., p. 200. See Note No. 19, supra at p. 526. Section 20(b) of P.D. No. 1069 provides, viz.:

31

32

"A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, 139

Manila, either through the diplomatic channels or direct by post or telegraph."

33

271 SCRA 767 (1997). Decision, G.R. No. 139465, January 18, 2000. Resolution, G.R. No. 139465, October 17, 2000. Id., at pp. 14-15.

34

35

36

37

Morrisey v. Brewer, 408 U.S. 471, 481 (1972), citing Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 95 L. Ed. 817, 852, 71 S. Ct. 624 (1951) (Frankfurter, J., Concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, 263, 25 L. Ed. 2d 287, 296, 90 S. Ct. 1011 (1970).
38

Underscoring supplied. Underscoring supplied. See Note No. 4, supra at p. 73. See Note No. 3, supra at p. 21. Allado v. Diokno, 232 SCRA 192, 199-200 (1994); Ho v. People, 280 SCRA 365, 377 (1997). Section 2, Article III of the 1987 Philippine Constitution. Supra. Id., p. 205. Ho v. People, supra at p. 381. Id., p. 380. See Note No. 3, supra at p. 21. Respondents Comment, p. 23.

39

40

41

42

43

44

45

46

47

48

49

50

Factoran v. Court of Appeals, G.R. No. 93540, December 13, 1999, p. 12, citing Beautifont Inc., v. Court of Appeals, et. al., 157 SCRA 481, 493 (1988).
51

Rollo, pp. 80-81.

The Lawphil Project - Arellano Law Foundation

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 153675 April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine Department of Justice, Petitioner, vs. HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee. The facts are: On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997. On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong Kong Special Administrative Region. Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge. On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent. On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same day, the NBI agents arrested and detained him. On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition andmandamus with application for preliminary mandatory injunction and/or writ of habeas 141

corpus questioning the validity of the Order of Arrest. On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void. On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed. On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001. Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,- a petition for bail which was opposed by petitioner. After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk." On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge. On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application for bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private respondent to post bail, thus: In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The petition for bail is granted subject to the following conditions: 1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the government; 2. Accused must surrender his valid passport to this Court; 3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order before this Court even in extradition proceeding; and 4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest office, at any time and day of the week; and if they further desire, manifest before this Court to require that all the assets of accused, real and personal, be filed with this Court soonest, with the condition that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that the corresponding lien/annotation be noted therein accordingly. SO ORDERED. On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent judge in his Order dated April 10, 2002. Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings. In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill 142

of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of ones liberty. Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this Court has an occasion to resolve the question of whether a prospective extraditee may be granted bail. In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus: x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpusfinds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. At first glance, the above ruling applies squarely to private respondents case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law. On a more positive note, also after World War II, both international organizations and states gave 143

recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail to a prospective deportee, held that under the Constitution,3 the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process. The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of this Courts ruling in Purganan is in order. First, we note that the exercise of the States power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine,4 have likewise been detained. Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights. The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure to secure the necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation proceedings. In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that foreign nationals against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainees right to bail. If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired. Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as 144

"the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition. 10 It is sui generis, tracing its existence wholly to treaty obligations between different nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is it a full-blown civil action, but one that is merely administrative in character.13 Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment. 14 But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the " provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently." Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable. Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for over two (2) years without having been convicted of any crime. By any standard, such an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail. While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganancorrectly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice. 15 Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail. The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditees rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can 145

neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court. In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence." WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch. SO ORDERED. ANGELINA Associate Justice WE CONCUR: REYNATO Chief Justice S. PUNO SANDOVAL-GUTIERREZ

LEONARDO A. Associate Justice

QUISUMBING

CONSUELO Asscociate Justice

YNARES-SANTIAGO

ANTONIO Associate Justice

T.

CARPIO

MA. ALICIA Asscociate Justice

AUSTRIA-MARTINEZ

RENATO Associate Justice

C.

CORONA

CONCHITA CARPIO Asscociate Justice

MORALES

ROMEO J. Associate Justice

CALLEJO,

SR.

ADOLFO S. Asscociate Justice

AZCUNA

MINITA V. Associate Justice

CHICO-NAZARIO

DANTE Asscociate Justice

O.

TINGA

CANCIO

C.

GARCIA

PRESBITERO

J.

VELASCO,

JR.

146

Associate Justice

Asscociate Justice

ANTONIO Associate Justice CERTIFICATION

EDUARDO

B.

NACHURA

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO Chief Justice S. PUNO

Footnotes
1

G.R. No. 148571, September 24, 2002, 389 SCRA 623, 664. 90 Phil. 70 (1951).

Sec. 2, Art. II states "The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations."
4

In cases involving quarantine to prevent the spread of communicable diseases, bail is not available. SeeState v. Hutchinson, 18 So.2d. 723, 246 Ala. 48; Varholy v. Sweat, 15 So.2d. 267, 153 Fla. 571, Baker v. Strautz, 54 NE2d. 441, 386 lll. 360.
5

12 Phil. 490 (1909). Supra, footnote 2. 90 Phil. 256 (1951).

Factor v. Laubenheimer, 290 US 276, 78 L. Ed. 315, 54 S. Ct. 101; Terlindon v. Ames, 184 US 270, 46 L.Ed. 534, 22 S.Ct. 484; Fong Yue Ting v. US, 149 US 698, 37 L.Ed. 905, 13 S.Ct. 1016; Fitzpatrick v. Williams, 46 F2d. 40; US v. Godwin, 97 F. Supp. 252, affd. 191 F2d. 932; Dominguez v. State, 234 SW 701, 90 Tex. Crim. 92.
9

Secretary of Justice v. Lantion, G.R. No. 139465, October 17, 2000, 343 SCRA 377. US ex rel Oppenheim v. Hecht, 16 F2d. 955, cert den. 273 US 969, 71 L. Ed. 883, 47 S. Ct. 572. State v. Chase, 107 So. 541, 91 Fla. 413; State v. Quigg, 108 So. 409, 91 Fla. 197.

10

11

12

Benson v. McMahon, 127 US 457, 32 L. Ed. 234, 8 S. Ct. 1240; Jimenez v. Aristequieta, 311 F2d. 547, stay den. 314 F2d. 649.
13

Spatola v. US, 741 F. Supp. 362, Affd. 925 F2d. 615. Re Henderson, 145 NW 574, 27 ND 155; State ex rel Tresoder v. Remann, 4 P2d. 866, 165 147

14

Wash. 92.
15

Beaulieu v. Hartigan, 554 F.2d 1.

148

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 148571 September 24, 2002

GOVERNMENT OF THE UNITED STATES OF AMERICA, Represented by the Philippine Department of Justice, petitioner, vs. HON. GUILLERMO PURGANAN, Presiding Judge Regional Trial Court of Manila and MARC JIMENEZ a.k.a. MARCIO BATACAN CRESPO, respondent Davide Jr., CJ, Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Morales and Callejo, Sr. DECISION PANGANIBAN, J.: In extradition proceedings, are prospective extraditees entitled to notice and hearing before warrants for their arrest can be issued? Equally important, are they entitled to the right to bail and provisional liberty while the extradition proceedings are pending? In general, the answer to these two novel questions is "No." The explanation of and the reasons for, as well as the exceptions to, this rule are laid out in this Decision.

The Case Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void and set aside the Orders dated May 23, 2001 1 and July 3, 2001 2 issued by the Regional Trial Court (RTC) of Manila, Branch 42. 3The first assailed Order set for hearing petitioners application for the issuance of a warrant for the arrest of Respondent Mark B. Jimenez. The second challenged Order, on the other hand, directed the issuance of a warrant, but at the same time granted bail to Jimenez. The dispositive portion of the Order reads as follows: WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against respondent Mark Jimenez. Accordingly let a Warrant for the arrest of the respondent be issued. Consequently and taking into consideration Section 9, Rule 114 of the Revised Rules of Criminal Procedure, this Court fixes the reasonable amount of bail for respondents temporary liberty at ONE MILLION PESOS (Php 1,000,000.00), the same to be paid in cash. Furthermore respondent is directed to immediately surrender to this Court his passport and the Bureau of Immigration and Deportation is likewise directed to include the name of the respondent in its Hold Departure List." 4 Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the taking of Jimenez into legal custody. 149

The Facts This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C. Lantion. 5 Pursuant to the existing RP-US Extradition Treaty, 6 the United States Government, through diplomatic channels, sent to the Philippine Government Note Verbale No. 0522 dated June 16, 1999, supplemented by Note Nos. 0597, 0720 and 0809 and accompanied by duly authenticated documents requesting the extradition of Mark B. Jimenez, also known as Mario Batacan Crespo. Upon receipt of the Notes and documents, the secretary of foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action, pursuant to Section 5 of Presidential Decree (PD) No. 1069, also known as the Extradition Law. Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary Restraining Order (TRO) by the RTC of Manila, Branch 25. 7 The TRO prohibited the Department of Justice (DOJ) from filing with the RTC a petition for his extradition. The validity of the TRO was, however, assailed by the SOJ in a Petition before this Court in the said GR No. 139465. Initially, the Court -- by a vote of 9-6 -- dismissed the Petition. The SOJ was ordered to furnish private respondent copies of the extradition request and its supporting papers and to grant the latter a reasonable period within which to file a comment and supporting evidence. 8 Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, 2000 Resolution. 9 By an identical vote of 9-6 -- after three justices changed their votes -- it reconsidered and reversed its earlier Decision. It held that private respondent was bereft of the right to notice and hearing during the evaluation stage of the extradition process. This Resolution has become final and executory. Finding no more legal obstacle, the Government of the United States of America, represented by the Philippine DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Extradition which was docketed as Extradition Case No. 01192061. The Petition alleged, inter alia, that Jimenez was the subject of an arrest warrant issued by the United States District Court for the Southern District of Florida on April 15, 1999. The warrant had been issued in connection with the following charges in Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to defraud the United States and to commit certain offenses in violation of Title 18 US Code Section 371; (2) tax evasion, in violation of Title 26 US Code Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections 1343 and 2; (4) false statements, in violation of Title 18 US Code Sections 1001 and 2; and (5) illegal campaign contributions, in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title 18 US Code Section 2. In order to prevent the flight of Jimenez, the Petition prayed for the issuance of an order for his "immediate arrest" pursuant to Section 6 of PD No. 1069. Before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent Manifestation/Ex-Parte Motion," 10 which prayed that petitioners application for an arrest warrant be set for hearing. In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on June 5, 2001. In that hearing, petitioner manifested its reservations on the procedure adopted by the trial court allowing the accused in an extradition case to be heard prior to the issuance of a warrant of arrest. After the hearing, the court a quo required the parties to submit their respective memoranda. In his Memorandum, Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post bail in the amount of P100,000. The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court below issued its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and fixing bail for his temporary liberty at one million pesos in cash. 11 After he had surrendered his passport and posted the required cash bond, Jimenez was granted provisional liberty via the challenged Order dated July 4, 2001. 12 150

Hence, this Petition. 13 Issues Petitioner presents the following issues for the consideration of this Court: I. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an arrest warrant under Section 6 of PD No. 1069. II. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go on provisional liberty because: 1. An extradition court has no power to authorize bail, in the absence of any law that provides for such power. 2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and Section 4, Rule 114 (Bail) of the Rules of Court, as amended, which [were] relied upon, cannot be used as bases for allowing bail in extradition proceedings. 3. The presumption is against bail in extradition proceedings or proceedings leading to extradition. 4. On the assumption that bail is available in extradition proceedings or proceedings leading to extradition, bail is not a matter of right but only of discretion upon clear showing by the applicant of the existence of special circumstances. 5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent received no evidence of special circumstances which may justify release on bail. 6. The risk that Jimenez will flee is high, and no special circumstance exists that will engender a well-founded belief that he will not flee. 7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the Philippines with its obligations under the RP-US Extradition Treaty. 8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case entitled Eduardo T. Rodriguez et al. vs. The Hon. Presiding Judge, RTC, Branch 17, Manila, CA-G.R. SP No. 64589, relied upon by the public respondent in granting bail, had been recalled before the issuance of the subject bail orders." 14 In sum, the substantive questions that this Court will address are: (1) whether Jimenez is entitled to notice and hearing before a warrant for his arrest can be issued, and (2) whether he is entitled to bail and to provisional liberty while the extradition proceedings are pending. Preliminarily, we shall take up the alleged prematurity of the Petition for Certiorari arising from petitioners failure to file a Motion for Reconsideration in the RTC and to seek relief in the Court of Appeals (CA), instead of in this 151

Court. 15 We shall also preliminarily discuss five extradition postulates that will guide us in disposing of the substantive issues. The Courts Ruling The Petition is meritorious. Preliminary Matters Alleged Prematurity of Present Petition Petitioner submits the following justifications for not filing a Motion for Reconsideration in the Extradition Court: "(1) the issues were fully considered by such court after requiring the parties to submit their respective memoranda and position papers on the matter and thus, the filing of a reconsideration motion would serve no useful purpose; (2) the assailed orders are a patent nullity, absent factual and legal basis therefor; and (3) the need for relief is extremely urgent, as the passage of sufficient time would give Jimenez ample opportunity to escape and avoid extradition; and (4) the issues raised are purely of law." 16 For resorting directly to this Court instead of the CA, petitioner submits the following reasons: "(1) even if the petition is lodged with the Court of Appeals and such appellate court takes cognizance of the issues and decides them, the parties would still bring the matter to this Honorable Court to have the issues resolved once and for all [and] to have a binding precedent that all lower courts ought to follow; (2) the Honorable Court of Appeals had in one case 17 ruled on the issue by disallowing bail but the court below refused to recognize the decision as a judicial guide and all other courts might likewise adopt the same attitude of refusal; and (3) there are pending issues on bail both in the extradition courts and the Court of Appeals, which, unless guided by the decision that this Honorable Court will render in this case, would resolve to grant bail in favor of the potential extraditees and would give them opportunity to flee and thus, cause adverse effect on the ability of the Philippines to comply with its obligations under existing extradition treaties." 18 As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior court has been given, through a motion for reconsideration, a chance to correct the errors imputed to it. This rule, though, has certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved, or (3) in case of urgency. 19 As a fourth exception, the Court has also ruled that the filing of a motion for reconsideration before availment of the remedy of certiorari is not a sine qua non, when the questions raised are the same as those that have already been squarely argued and exhaustively passed upon by the lower court. 20 Aside from being of this nature, the issues in the present case also involve pure questions of law that are of public interest. Hence, a motion for reconsideration may be dispensed with. Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of certiorari when there are special and important reasons therefor. 21 In Fortich v. Corona 22 we stated: [T]he Supreme Court has the full discretionary power to take cognizance of the petition filed directly [before] it if compelling reasons, or the nature and importance of the issues raised, warrant. This has been the judicial policy to be observed and which has been reiterated in subsequent cases, namely: Uy vs. Contreras, et. al., Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs. Legaspi, et. al. As we have further stated in Cuaresma: x x x. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. x x x. Pursuant to said judicial policy, we resolve to take primary jurisdiction over the 152

present petition in the interest of speedy justice and to avoid future litigations so as to promptly put an end to the present controversy which, as correctly observed by petitioners, has sparked national interest because of the magnitude of the problem created by the issuance of the assailed resolution. Moreover, x x x requiring the petitioners to file their petition first with the Court of Appeals would only result in a waste of time and money. That the Court has the power to set aside its own rules in the higher interests of justice is wellentrenched in our jurisprudence. We reiterate what we said in Piczon vs. Court of Appeals: 23 Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. In the instant petition, we forego a lengthy disquisition of the proper procedure that should have been taken by the parties involved and proceed directly to the merits of the case. In a number of other exceptional cases, 24 we held as follows: This Court has original jurisdiction, concurrent with that of Regional Trial Courts and the Court of Appeals, over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus, and we entertain direct resort to us in cases where special and important reasons or exceptional and compelling circumstances justify the same." In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts. Five Postulates of Extradition The substantive issues raised in this case require an interpretation or construction of the treaty and the law on extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its intent. 25Since PD 1069 is intended as a guide for the implementation of extradition treaties to which the Philippines is a signatory, 26 understanding certain postulates of extradition will aid us in properly deciding the issues raised here. 1. Extradition Is a Major Instrument for the Suppression of Crime. First, extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest and the custodial transfer 28 of a fugitive 29 from one state to the other.
27

With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. Today, "a majority of nations in the world community have come to look upon extradition as the major effective instrument of international co-operation in the suppression of crime." 30 It is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law. 31 An important practical effect x x x of the recognition of the principle that criminals should be restored to a jurisdiction competent to try and punish them is 153

that the number of criminals seeking refuge abroad will be reduced. For to the extent that efficient means of detection and the threat of punishment play a significant role in the deterrence of crime within the territorial limits of a State, so the existence of effective extradition arrangements and the consequent certainty of return to the locus delicti commissi play a corresponding role in the deterrence of flight abroad in order to escape the consequence of crime. x x x. From an absence of extradition arrangements flight abroad by the ingenious criminal receives direct encouragement and thus indirectly does the commission of crime itself." 32 In Secretary v. Lantion 33 we explained: The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate the extradition of persons covered by treaties duly entered [into] by our government. More and more, crimes are becoming the concern of one world. Laws involving crimes and crime prevention are undergoing universalization. One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal whose activities threaten the peace and progress of civilized countries. It is to the great interest of the Philippines to be part of this irreversible movement in light of its vulnerability to crimes, especially transnational crimes." Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in order to improve our chances of suppressing crime in our own country. 2. The Requesting State Will Accord Due Process to the Accused Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each others legal system and judicial process. 34 More pointedly, our duly authorized representatives signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited. 35 That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality. 3. The Proceedings Are Sui Generis Third, as pointed out in Secretary of Justice v. Lantion, 36 extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis -- in a class by itself -- they are not. An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x. xxxxxxxxx There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited 154

upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nations foreign relations before making the ultimate decision to extradite." Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited. 37 Such determination during the extradition proceedings will only result in needless duplication and delay. Extradition is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction. 38 The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable. 39 4. Compliance Shall Be in Good Faith. Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national interest. Fulfilling our obligations under the Extradition Treaty promotes comity 40 with the requesting state. On the other hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity. 41 Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty.42 This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. In other words, "[t]he demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender." 43 Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be found proper. 5. There Is an Underlying Risk of Flight Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in the experience 44 of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee. Indeed, extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting country. 45 Prior acts of herein respondent -- (1) leaving the requesting state right before the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable -- eloquently speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances point to an ever-present, underlying high risk of flight. He has demonstrated that he has the capacity and the will to flee. Having fled once, what is there to stop him, given sufficient opportunity, from fleeing a second time? First Substantive Issue: 155

Is Respondent Entitled Before the Issuance of a Warrant of Arrest?

to

Notice

and

Hearing

Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice, that an Extradition Petition has been filed against him, and that petitioner is seeking his arrest -- gives him notice to escape and to avoid extradition. Moreover, petitioner pleads that such procedure may set a dangerous precedent, in that those sought to be extradited -- including terrorists, mass murderers and war criminals -- may invoke it in future extradition cases. On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily deprived of his constitutional right to liberty without due process. He further asserts that there is as yet no specific law or rule setting forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has been filed in court; ergo, the formulation of that procedure is within the discretion of the presiding judge. Both parties cite Section 6 of PD 1069 in support of their arguments. It states: SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.(1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of the accused which may be served any where within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case." (Emphasis ours) Does this provision sanction RTC Judge Purganans act of immediately setting for hearing the issuance of a warrant of arrest? We rule in the negative. 1. On the Basis of the Extradition Law It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word "immediate" to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, 46 receiving facts and arguments 47 from them, 48 and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can no longer be considered "immediate." The law could not have intended the word as a mere superfluity but, on the whole, as a means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should be issued. By using the phrase "if it appears," the law further conveys that accuracy is not as important as speed at such early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual situation, immediately upon the filing of the petition. From the knowledge and the material then available to it, the court is expected merely to get a good first impression -- a prima facie finding -- sufficient to make a speedy initial determination as regards the arrest and detention of the accused. Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial attorney in the Campaign Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex BB, the Exhibit I "Appendix of Witness 156

[excerpts] Statements Referenced in the Affidavit of Angela Byers" and enclosed Statements in two volumes; (4) Annex GG, the Exhibit J "Table of Contents for Supplemental Evidentiary Appendix" with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L "Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward" and enclosed Statements in two volumes. 49 It is evident that respondent judge could have already gotten an impression from these records adequate for him to make an initial determination of whether the accused was someone who should immediately be arrested in order to "best serve the ends of justice." He could have determined whether such facts and circumstances existed as would lead a reasonably discreet and prudent person to believe that the extradition request was prima facie meritorious. In point of fact, he actually concluded from these supporting documents that "probable cause" did exist. In the second questioned Order, he stated: In the instant petition, the documents sent by the US Government in support of [its] request for extradition of herein respondent are enough to convince the Court of the existence of probable cause to proceed with the hearing against the extraditee." 50

We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez. 51 Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the accused to answer after receiving the summons. In connection with the matter of immediate arrest, however, the word "hearing" is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary 52 in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings. It is taken for granted that the contracting parties intend something reasonable and something not inconsistent with generally recognized principles of International Law, nor with previous treaty obligations towards third States. If, therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to be preferred to the unreasonable, the more reasonable to the less reasonable x x x ." 53 Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law could have intended that consequence, for the very purpose of both would have been defeated by the escape of the accused from the requested state. 2. On the Basis of the Constitution Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest. It provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." 157

To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination -- under oath or affirmation -- of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused before the issuance of warrants of arrest. In Ho v. People 54 and in all the cases cited therein, never was a judge required to go to the extent of conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. All we required was that the "judge must have sufficient supporting documents upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause." 55 In Webb v. De Leon, 56 the Court categorically stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest: Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence." At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses. 57 In the present case, validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of extraditions. That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a more restrictive one -- not the opposite -- would be justified in view of respondents demonstrated predisposition to flee. Since this is a matter of first impression, we deem it wise to restate the proper procedure: Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they show compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding 58 is possible, the petition may be dismissed at the discretion of the judge. On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings. In our opinion, the foregoing procedure will "best serve the ends of justice" in extradition cases. Second Substantive Issue: 158

Is Respondent Entitled to Bail? Article III, Section 13 of the Constitution, is worded as follows: Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required." Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of all persons, including those sought to be extradited. Supposedly, the only exceptions are the ones charged with offenses punishable with reclusion perpetua, when evidence of guilt is strong. He also alleges the relevance to the present case of Section 4 59 of Rule 114 of the Rules of Court which, insofar as practicable and consistent with the summary nature of extradition proceedings, shall also apply according to Section 9 of PD 1069. On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the right to bail to a person who is the subject of an extradition request and arrest warrant. Extradition Different from Ordinary Criminal Proceedings We agree with petitioner. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt." 60 It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion." 61 Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. No Violation of Due Process Respondent Jimenez cites the foreign case Paretti 62 in arguing that, constitutionally, "[n]o one shall be deprived of x x x liberty x x x without due process of law." Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not amount to a violation of his right to due process. We iterate the familiar doctrine that the 159

essence of due process is the opportunity to be heard 63 but, at the same time, point out that the doctrine does not always call for a prior opportunity to be heard. 64 Where the circumstances -- such as those present in an extradition case -- call for it, a subsequent opportunity to be heard is enough. 65 In the present case, respondent will be given full opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there is no violation of his right to due process and fundamental fairness. Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of his liberty prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently ensured by (1) the DOJs filing in court the Petition with its support ing documents after a determination that the extradition request meets the requirements of the law and the relevant treaty; (2) the extradition judges independent prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest; and (3) his opportunity, once he is under the courts custody, to apply for bail as an exception to the no-initial-bail rule. It is also worth noting that before the US government requested the extradition of respondent, proceedings had already been conducted in that country. But because he left the jurisdiction of the requesting state before those proceedings could be completed, it was hindered from continuing with the due processes prescribed under its laws. His invocation of due process now has thus become hollow. He already had that opportunity in the requesting state; yet, instead of taking it, he ran away. In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations in order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve the Petition for Extradition? His supposed immediate deprivation of liberty without the due process that he had previously shunned pales against the governments interest in fulfilling its Extradition Treaty obligations and in cooperating with the world community in the suppression of crime. Indeed, "[c]onstitutional liberties do not exist in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and palpable government interests." 66 Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase the risk of violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to be extradited are able to evade arrest or escape from our custody. In the absence of any provision -- in the Constitution, the law or the treaty -- expressly guaranteeing the right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors.1wphi1.nt The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14 67of the Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to cut short their detention here. Likewise, their detention pending the resolution of extradition proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases and the need for their speedy disposition. Exceptions to the No Bail Rule The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave abuse of discretion 68 and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights. 69 Furthermore, we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the "life, liberty or property" of every person. It is "dynamic and resilient, adaptable to every situation calling for its application." 70 Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, 160

humanitarian and compelling circumstances 71 including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above twotiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. In short, while this Court is ever protective of "the sporting idea of fair play," it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. Along this line, Jimenez contends that there are special circumstances that are compelling enough for the Court to grant his request for provisional release on bail. We have carefully examined these circumstances and shall now discuss them. 1. Alleged Disenfranchisement While his extradition was pending, Respondent Jimenez was elected as a member of the House of Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000 residents. We are not persuaded. In People v. Jalosjos, 72 the Court has already debunked the disenfranchisement argument when it ruled thus: When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office. In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection. The Constitution guarantees: x x x nor shall any person be denied the equal protection of laws. This simply means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed. The organs of government may not show any undue favoritism or hostility to any person. Neither partiality nor prejudice shall be displayed. Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law? The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly [from] prison. The duties imposed by the mandate of the people are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with 161

a particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals. The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded. We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class." 73 It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was already of public knowledge that the United States was requesting his extradition. Hence, his constituents were or should have been prepared for the consequences of the extradition case against their representative, including his detention pending the final resolution of the case. Premises considered and in line with Jalosjos, we are constrained to rule against his claim that his election to public office is by itself a compelling reason to grant him bail. 2. Anticipated Delay Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be unfair to confine him during the pendency of the case. Again we are not convinced. We must emphasize that extradition cases are summary in nature. They are resorted to merely to determine whether the extradition petition and its annexes conform to the Extradition Treaty, not to determine guilt or innocence. Neither is it, as a rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal action. We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is quite another matter that is not at issue here. Thus, any further discussion of this point would be merely anticipatory and academic. However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail not be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail would be tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more. This we cannot allow. 3. Not a Flight Risk? Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of the extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled during the preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee as the process moves forward to its conclusion, as he hears the footsteps of the requesting government inching closer and closer. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be within reach of our government if and when it matters; that is, upon the resolution of the Petition for Extradition. In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the applicant has been taken into custody and prior to judgment, even after bail has been previously denied. In the present case, the extradition court may continue hearing evidence on the 162

application for bail, which may be granted in accordance with the guidelines in this Decision. Brief Refutation of Dissents The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact, it is a cop-out. The parties -- in particular, Respondent Jimenez -- have been given more than sufficient opportunity both by the trial court and this Court to discuss fully and exhaustively private respondents claim to bail. As already stated, the RTC set for hearing not only petitioners application for an arrest warrant, but also private respondents prayer for temporary liberty. Thereafter required by the RTC were memoranda on the arrest, then position papers on the application for bail, both of which were separately filed by the parties. This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy Memoranda and the Position Papers of both parties. Additionally, it has patiently heard them in Oral Arguments, a procedure not normally observed in the great majority of cases in this Tribunal. Moreover, after the Memos had been submitted, the parties -- particularly the potential extraditee -- have bombarded this Court with additional pleadings -- entitled "Manifestations" by both parties and "Counter-Manifestation" by private respondent -- in which the main topic was Mr. Jimenezs plea for bail. A remand would mean that this long, tedious process would be repeated in its entirety. The trial court would again hear factual and evidentiary matters. Be it noted, however, that, in all his voluminous pleadings and verbal propositions, private respondent has not asked for a remand. Evidently, even he realizes that there is absolutely no need to rehear factual matters. Indeed, the inadequacy lies not in the factual presentation of Mr. Jimenez. Rather, it lies in his legal arguments. Remanding the case will not solve this utter lack of persuasion and strength in his legal reasoning. In short, this Court -- as shown by this Decision and the spirited Concurring, Separate and Dissenting Opinions written by the learned justices themselves -- has exhaustively deliberated and carefully passed upon all relevant questions in this case. Thus, a remand will not serve any useful purpose; it will only further delay these already very delayed proceedings, 74 which our Extradition Law requires to be summary in character. What we need now is prudent and deliberate speed, not unnecessary and convoluted delay. What is needed is a firm decision on the merits, not a circuitous cop-out. Then, there is also the suggestion that this Court is allegedly "disregarding basic freedoms when a case is one of extradition." We believe that this charge is not only baseless, but also unfair. Suffice it to say that, in its length and breath, this Decision has taken special cognizance of the rights to due process and fundamental fairness of potential extraditees. Summation As we draw to a close, it is now time to summarize and stress these ten points: 1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes and the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused -- or the fugitive who has illegally escaped -- back to its territory, so that the criminal process may proceed therein. 2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein. 3. By nature then, extradition proceedings are not equivalent to a criminal case in 163

which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a courts request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity. 4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition. 5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community; and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case. 6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. 7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and the conscience of society. But it is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other coequal and co-independent organs of government. 8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of government has broad discretion in its duty and power of implementation. 9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or excise grave abuse and tyranny. They should not allow contortions, delays and "over-due process" every little step of the way, lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partners simple request to return a fugitive. Worse, our country should not be converted into a dubious haven where fugitives and escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and international cooperation. 10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose. WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby 164

declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail bond posted by private respondent is CANCELLED. The Regional Trial Court of Manila is directed to conduct the extradition proceedings before it, with all deliberate speed pursuant to the spirit and the letter of our Extradition Treaty with the United States as well as our Extradition Law. No costs.

SO ORDERED.

ARTEMIO V. PANGANIBAN Associate Justice

WE CONCUR:

(signed) HILARIO G. DAVIDE, JR. Chief Justice JOSUE N. BELLOSILLO Associate Justice JOSE C. VITUG Associate Justice LEONARDO A. QUISUMBING Associate Justice ANGELINA SANDOVAL-GUTIERREZ Associate Justice MA. ALICIA AUSTRIA-MARTINEZ Associate Justice CONCHITA CARPIO-MORALES Associate Justice REYNATO S. PUNO Associate Justice VICENTE V. MENDOZA Associate Justice CONSUELO YNARES-SANTIAGO Associate Justice ANTONIO T. CARPIO Associate Justice RENATO C. CORONA Associate Justice ROMEO CALLEJO, SR. Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. HILARIO G. DAVIDE, JR. Chief Justice Footnotes 165

Rollo, p. 74. Id., pp. 122-125. Presided by Judge Guillermo G. Purganan. Order dated July 3, 2001, p. 4; rollo, p. 125. 322 SCRA 160, January 18, 2000; and 343 SCRA 377, October 17, 2000.

Signed on November 13, 1994, and concurred in by the Philippine Senate on November 29, 1995.
7

In Civil Case No. 99-94684.

The 40-page Decision (322 SCRA 160, January 18, 2000) was penned by Justice Jose A. R. Melo with the concurrence of Justices Josue N. Bellosillo, Jose C. Vitug, Santiago M. Kapunan, Leonardo A. Quisumbing, Fidel P. Purisima, Arturo B. Buena, Consuelo Ynares-Santiago and Sabino R. de Leon Jr. Dissenting were Chief Justice Hilario Davide Jr.; and Justices Reynato S. Puno, Vicente V. Mendoza, Artemio V. Panganiban, Bernardo P. Pardo and Minerva P. Reyes, with Justices Puno and Panganiban writing separate Dissents.
9

Penned by Justice Puno and concurred in by Chief Justice Davide; and Justices Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Reyes and De Leon Jr. Dissenting were Justices Bellosillo, Melo, Vitug, Kapunan, Buena and Santiago, with Justices Melo and Santiago writing separate Dissents (343 SCRA 377, October 17, 2000).
10

Annex E of the Petition. Annex M of the Petition. Annex O (certified true xerox copy) of the Petition.

11

12

13

The case was deemed submitted for resolution on July 3, 2002, upon receipt by this Court of respondents Counter-Manifestation. Earlier, on September 3, 2001, this Court received petitioners Memorandum signed by Undersecretary Ma. Merceditas N. Gutierrez and State Counsel Claro B. Flores. Filed on August 23, 2001 was private respondents Memorandum signed by Attys. Mario Luza Bautista, Nick Emmanuel C. Villaluz and Brigette M. da Costa of Poblador Bautista and Reyes.
14

Petition, pp. 9-10; rollo, pp. 10-11.

15

During the Oral Argument on August 14, 2001, the Court asked the parties to discuss three issues: 1) the propriety of the filing of the Petition in this case before this Court; 2) whether Mr. Mark Jimenez is entitled to notice and hearing before the issuance of a warrant for his arrest; and 3) whether the procedure followed by respondent judge in issuing the warrant of arrest and granting bail was correct.
16

Petition, p. 3; rollo, p. 4.

17

Government of the United States of America, represented by the Philippine Department of Justice v. The Regional Trial Court of Manila, Branch 47, and Nelson Marquez, CA-GR SP No. 61079, promulgated on May 7, 2001.
18

Petition, pp. 3-4; rollo, pp. 4-5. 166

19

Phil. Air Lines Employees Association v. Phil. Air Lines, Inc., 111 SCRA 215, 219, January 30, 1982; citing Central Bank v. Cloribel, 44 SCRA 307 April 11, 1972.
20

Progressive Development Corporation, Inc. v. Court of Appeals, 301 SCRA 637, January 22, 1999.
21

Malonzo v. Zamora, GR No. 137718, July 27, 1999, citing cases. 289 SCRA 624, April 24, 1998, per Martinez, J. 190 SCRA 31, 38, September 24, 1990, per Fernan, CJ.

22

23

24

Philippine National Bank v. Sayo Jr, 292 SCRA 202, 232, July 9, 1999, per Davide, CJ, citing People v. Cuaresma, 172 SCRA 415, April 18, 1999; Defensor-Santiago v. Vasquez, 217 SCRA 633, January 27, 1993; Manalo v. Gloria, 236 SCRA 130, September 1, 1994. See also Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, December 6, 2000; Buklod ng Kawaning EIIB v. Zamora, GR No. 142801-802, July 10, 2001.
25

Agpalo, Statutory Construction, 1995 ed., p. 37, citing Macondray & Co. v. Eustaquio, 64 Phil. 446, July 16, 1937; Roldan v. Villaroman, 69 Phil. 12, October 18, 1939; Torres v. Limjap, 56 Phil. 141, September 21, 1931; Manila Lodge No. 761 v. Court of Appeals, 73 SCRA 162, September 30, 1976; People v. Concepcion, 44 Phil. 126, November 29, 1922; Tanada v. Cuenco, 103 Phil. 1051, February 28, 1957; Salaysay v. Castro, 98 Phil. 364, January 31, 1956.
26

Last "Whereas" clause of PD 1069. See "Whereas" clause of PD 1069 and preamble of the RP-US Extradition Treaty. Bassiouni, International Extradition, 1987 ed., p.68.

27

28

29

In Rodriguez v. Comelec (259 SCRA 296, July 24, 1996), the Court defined fugitive from justice as one who flees after conviction to avoid punishment or who, after being charged, flees to avoid prosecution.
30

Bassiouni, supra, p. 21. Id., p. 67. Shearer, Extradition in International Law, 1971 ed., pp. 19-20. Supra, p. 392, October 17, 2000, per Puno, J.

31

32

33

34

Coquia, "On Implementation of the US-RP Extradition Treaty," The Lawyers Review, August 31, 2000, p. 4.
35

See Bassiouni, supra, p. 546; citing 221 U.S. 508, 512 (1910). Supra. Secretary of Justice v. Lantion, supra. Shearer, Extradition in International Law, 1971 ed., p. 157. Id., p. 545. 167

36

37

38

39

40

In line with the Philippine policy of cooperation and amity with all nations set forth in Article II, Section 2, Constitution.
41

The United States District Court, District of Nevada, Las Vegas, Nevada: "In the Matter of the Extradition of Charlie Atong Ang, a fugitive from the country of the Philippines," [the court] has denied Mr. Angs motion for bail, per petitioners Manifestation dated June 5, 2002.
42

Secretary of Justice v. Lantion, supra. Wright v. Henkel, 190 U.S. 40, 62, March 23, 1903.

43

44

See footnote no. 41, Petition for Certiorari, p. 18; rollo p. 19; Manifestation dated June 5, 2002.
45

Persily, "International Extradition and the Right to Bail," 34 Stan. J. Intl L. 407 (Summer, 1998).
46

Ibid.

47

39 CJS 875, citing People v. Blair, 33 NYS 2d 183, 190, 191; Amerada Petroleum Corporation v. Hester, 109 P. 2d 820, 821, 188 Okl. 394.
48

Id., citing Independent Life Ins. Co. v. Rodgers, 55 S.W. 2d 767, 165 Tenn. 447. Petition for Extradition, pp. 2-3; rollo pp. 49-50. Order dated July 3, 2001, p. 3; rollo, 124.

49

50

51

In the questioned July 3, 2001 Order (p. 4; rollo, p. 125), respondent judge admitted that the Annexes of the Petition for Extradition had been received by the court a quo on May 25, 2001; yet, in its Order dated May 23, 2001 ( rollo, p. 74), it already set for hearing the issuance of the warrant of arrest.
52

See 9, PD 1069.

53

Bassiouni, International Extradition, supra, p. 87; citing 1 L. Oppenheim, International Law, (8th ed., 1955), pp. 952-53.
54

280 SCRA 365, October 9, 1997. Id., p. 381, per Panganiban, J. 247 SCRA 652, 680, per Puno, J. Ibid.; citing Allado v. Diokno, 233 SCRA 192, May 5, 1994.

55

56

57

58

Prima facie finding, not probable cause, is the more precise terminology because an extradition case is not a criminal proceeding in which the latter phrase is commonly used.
59

SEC. 4. Bail, a matter of right; exception. All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable 168

by death, reclusion perpetua, or life imprisonment."

60

De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J. (later CJ).
61

18, Art. VII, Constitution. Paretti v. United States of America, 122 F. 3d. 758, May 6, 1997.

62

63

Garcia v. NLRC, GR No. 110494, November 18, 1996; Paat v. Court of Appeals, January 10, 1997.
64

See Central Bank of the Philippines v. Court of Appeals, 220 SCRA 536, March 20, 1993.
65

Ibid. See also Busuego v. Court of Appeals, 304 SCRA 473, March 11, 1999.

66

Coquia, "On the Implementation of the US-RP Extradition Treaty," supra; citing Kelso v. US Department of State, 13 F Supp. 291 [DDC 1998].
67

It states: "If the person sought consents in writing to surrender to the Requesting State, the Requested State may surrender the person as expeditiously as possible without further proceedings."
68

1, Art. VIII, Constitution. 5, Art. VIII, Constitution. I.A. Cruz, Constitutional Law, 1998 ed., p. 98.

69

70

71

Private respondent argues that the following cases -- In re Michell, 171 F. Rep. 289, June 30, 1909; United States v. Kirby, Brennan and Artt, 106 F. 3d. 855, February 27, 1997 and 158 F. 3d. 462, October 9, 1998. Beaulieu v. Hartigan, 460 F. Supp. 915, March 14, 1977; and 554 F. 2d 1, April 6, 1977 -- should be treated as examples of special circumstances. In our view, however, they are not applicable to this case due to factual differences. Hence we refrain from ruling on this argument of Jimenez.
72

324 SCRA 689, February 3, 2000, per Ynares-Santiago, J. Id., pp. 700-702.

73

74

The US request for extradition was dated June 16, 1999; and yet, to date, more than three years later, the Petition for Extradition is still languishing in the trial court.

Separate Opinion BELLOSILLO, J.: While I do not absolutely disagree with the well-reasoned ponencia of Mr. Justice Panganiban, I prefer nevertheless to surf with the reflections of Mr. Justice Puno expressed in his Separate Opinion which, in essence, espouse the balancing of the duty of the State to faithfully comply with its commitments under a treaty on one hand, and its responsibility to protect the fundamental rights of its citizens on the other. 169

I wish to express some concerns however, particularly the crucial issue of whether a potential extraditee may apply for and be released on bail during the pendency of the extradition proceedings. This to me should not be ignored. In Northern PR Co. v. North Dakota, 1 Mr. Justice Frankfurter intoned: "The cardinal article of faith of our civilization is the inviolable character of the individual." Thus, fundamental rights and civil liberties, although not unlimited, occupy a place inferior to none in the hierarchy of constitutional values. These are among the most cherished privileges enjoyed by free men, of which it is the sacred duty of the State to maintain and protect against the erosion of possible encroachments, whether minute or extensive, foreign or domestic. It is lamentable however that the position taken by the Government in the instant case amounts to an unpardonable abdication of the duty of protection which it owes to all within its territory under the expediency of a treaty. The Government maintains that an extradition court has no power to authorize bail in the absence of any law conferring such power; and that the 1987 Constitution, as well as the Rules of Court, as amended, applies only to persons arrested and detained for violation of Philippine Laws, but not to extradition proceedings in which courts do not render judgments of conviction or acquittal. The argument is as ingenious as it is fallacious. It is settled that the power to admit to bail exists in extradition proceedings, although as a matter of policy it may only be granted under "exceptional circumstances." This, quintessentially, has been the doctrine advocated in a cavalcade of American cases starting with Wright v. Henkel, 190 US 40 (1902); and worth mentioning, of course, are Paretti v. United States, 112 F.3d 1363 (1977), Bealieu v. Hartigan, 430 F. Supp. 915 (1977), and In re Kirby, et al., 106 F.3d 855(1996); which are also discussed extensively by Mr. Justice Puno. Apart from these cases, there is likewise a considerable number of authorities which support the general view that the power to admit to bail is a necessary incident of the power to hear and determine cases. 2 In other words, one of the inherent powers of the judiciary with regard to proceedings before it has been the admission of a prisoner to bail where, in the exercise of his discretion, the judge deems it advisable. A fortiori, even in the absence of express statutory grant of authority to courts, judicial power to admit to bail parties properly within their jurisdiction must be deemed to exist. It must be mentioned, however, that this authority is not absolute for the Constitution, statutes and the Rules of Court render it readily subject to limitations. Significantly, both the extradition treaty between the United States and the Philippines, and the Philippine Extradition Law (PD 1069) contain no provision expressly withholding from the courts the power to grant bail. Had the intention of the parties to the treaty been to totally nullify the pre-existing power of the extradition court on the matter of bail, they could have easily provided for it in the treaty. But since they had not done so, it would be reasonable to presume that they had not so intended. Indeed, the treaty fails to even remotely suggest such judicial limitation insisted upon by the Government. Truly, there is neither logic nor persuasion to the suggestion that bail should only be allowed in criminal cases, or that class of cases where courts must "render judgments of conviction or acquittal." Bail as a remedy is available where there is deprivation of liberty prior or during trial. In the 1909 case of United States v. Go Siaco, 3akin to the situation confronting us, but involving a deportation proceeding, this Court allowed the potential deportee to post bail although a deportation proceeding is not criminal in nature and there was then no law providing for bail in deportation cases x x x x we see no reason why bail should not be allowed in this class of cases. As is said by the Supreme Court, the defendant has committed no crime. In this particular case the defendant was born in this country, has lived here for more than 35 years and is now living here with his mother, a native of the Islands. There is no reason to think that his being at large will be any menace to the people in the locality where he resides, nor is there any reason to believe that his attendance at court abide the 170

judgment which may be entered against him cannot be secured by the giving of bail as in ordinary cases. To refuse him bail is to treat him as a person is treated who has committed the most serious crime known to the law, and while we do not intend to say that this is a criminal proceeding, we do say that some of the machinery used for making the investigation required by Act No. 702 is the machinery of the criminal law, and to it are applicable those provisions of General Orders No. 58, relating to bail. Were we to adopt the view pressed upon us by the Government, it would restrict the reciprocal operation of the treaty, and create a striking lack of symmetry between the rights of Filipinos subject of extradition and that of American extraditees. Filipino citizens sought to be extradited by the United States government will be absolutely denied of the chance at provisional liberty during the pendency of the extradition proceedings against them; while American fugitives from justice sought to be extradited by the Philippine government could always exercise the right to petition for bail, and consequently, enjoy better chances of avoiding the inconvenience of incarceration during the pendency of the extradition proceedings. Certainly, there is no warrant for the discrimination. The Philippines and the United States dealt with each other as equals. Their extradition treaty discloses the intention that they shall stand on the same footing. The governing principles should always be reciprocity and equality. We cannot curtail a citizen's right to freedom on speculations and fears where there exist reasonable mechanisms appropriate to address them. To my mind, the risk of flight does not ipso facto call for denying his right to bail. Trial judges must henceforth weigh carefully and judiciously other methods to assure the presence of the accused during the proceedings and right after, when he ought to be deported already. Bail may be set at huge amounts or passports cancelled and hold-departure orders issued or border patrols heightened, in order that the extraditee may not flee from our jurisdiction. In this regard, while I agree that it is the extraditee's burden to prove the least likelihood of flight, the extradition court is also entitled to presume that the executive branch has done all it can to forestall his sudden disappearance. The executive branch cannot plead its helplessness and inutility to defeat the grant of bail to the extraditee. In any event, all things being equal, the personal circumstances of respondent Jimenez would negate any idea of flight risk. He is a popular, even notorious, fellow whose face is more frequently than others plastered in the tri-media. His stature as representative for a congressional district in Manila makes escape from Philippine jurisdiction not only embarrassing for him but also constitutive of the offense of abandonment of duty. His family and business interests are said to be strategically placed in this country. Indeed, where respondent Jimenez has more to lose from flight, the possibility thereof appears remote and speculative. Equity especially tilts in favor of respondent Jimenez in light of our ruling in Montano v. Ocampo 4 where we allowed bail to an elected senator of the country who was charged with the capital offenses of murder and frustrated murder. In resolving to grant bail in favor of Senator Montano, this Court took special notice of the accused's official and social standing as senator from which we concluded that flight was remote if not nil despite the capital crimes he had to face. In the same breath, respondent Jimenez is a duly elected Congressman with personal circumstances that will not risk the ignominy of flight, considering further the crimes he is charged with are far less severe and ignoble, since most of them had something to do with election campaign contributions than the seemingly serious indictment for murder and frustrated murder against Senator Montano. If we grant for the sake of argument that the possibility of flight exists, still respondent Jimenez' detention would be unwarranted by law and the Constitution if the only purpose of the confinement is to eliminate a rare odd of danger that is by no means actual, present and uncontrollable. After all the Government is not powerless to deal with or prevent any threat by measures it has the ways and means to implement. The thought eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in connection with the application for bail of ten (10) communists convicted by a lower court for advocacy of a violent overthrow of the United States Government is pertinent and elucidating in principle The Government's alternative contention is that defendants, by misbehavior after conviction, have forfeited their claim to bail. Grave public danger is said to result from what they may be expected to do, in addition to what they have done since their conviction. If I assume that defendants are 171

disposed to commit every opportune disloyal act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted x x x x If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there is a very practical aspect of this application which must not be overlooked or underestimated - that is the disastrous effect on the reputation of American justice if I should now send these men to jail and the full Court later decide that their conviction is invalid. All experience with litigation teaches that existence of a substantial question about a conviction implies a more than negligible risk of reversal. Indeed this experience lies hack of our rule permitting and practice of allowing bail where such questions exist, to avoid the hazard of unjustifiably imprisoning persons with consequent reproach to our system of justice x x x x Risks, of course, are involved in either granting or refusing bail. I am not naive enough to underestimate the troublemaking propensities of the defendants. But, with the Department of Justice alert to the dangers, the worst they can accomplish in the short time it will take to end the litigation is preferable to the possibility of national embarrassment from a celebrated case of unjustified imprisonment of Communist leaders. Under no circumstances must we permit their symbolization of an evil force in the world to be hallowed and glorified by any semblance of martyrdom. The way to avoid that risk is not to jail these men until it is finally decided that they should stay jailed. If the commentary is not comparable with ours on the issues presented, its underlying principle is of universal application. If only to preserve our regime of civil liberties and stem a precedent where bail is unscrupulously disallowed, respondent Jimennez may be placed under the surveillance of the authorities or their agents in such form and manner as may be deemed adequate to insure that he will be available anytime when the Government is ready to extradite him, although the surveillance should be reasonable and the question of reasonableness should be submitted to the court a quo for remedial measures in case of abuse. He may also be required to put up a bond with sufficient surety or sureties to ensure that his extradition is not thwarted. In our society - and even in the United States, I am sure - freedom from bodily restraint has always been at the core of the civil liberties protected by the Constitution. To unduly sacrifice the civil liberties of an individual by reason of an unfounded fear of being unable to fulfill treaty obligations, would be to render impotent the ideals of the dignity of the human person, thereby destroying something of what is noble in our way of life. Certainly, if civil liberties may be safely respected without imminently or actually impairing faithful compliance with treaty obligations, as in this case, then there is no valid reason for disregarding them. I wish to emphasize, however, lest the best of my intentions be misconstrued, that it is not my purpose here to encourage, much less foment, dishonor of the treaty duly entered into by our Government. By all means we have to fulfill all our international commitments, for they are not mere moral obligations to be enforced at the whims and caprices of the State. They create legally binding obligations founded on the generally accepted principle in international law of pacta sunt servanda which has been adopted as part of the law of our land. But, in so doing, we must be ever conscious of the need to balance in one equation our commitments under the treaty, and the equally important right of the individual to freedom from unnecessary restraint. As the vast powers and enormous resources of both the United States of America and the Republic of the Philippines are marshalled against a puny individual that is respondent Jimenez, he is certainly entitled to some measure of protection to ensure that no unwarranted intrusions or undue curtailment of his liberty is committed. I vote to REMAND the petition to the court a quo to ensure that proper safeguards are afforded respondent in the course of the extradition proceedings.

172

JOSUE N. BELOSILLO

Footnotes
1

236 U.S. 585.

United States v. Evans, 6 Cir., 1880, 2F. 147; In re Gannon, D.C. Pa. 1928, 27 F.2d 362; In re Chow Goo Pooi, 9 Cir., 25 F. 77; In re Ah Kee, 9 Cir., 1884, 21 F. 701; Whitfield v. Hanges, 8 Cir., 222 F. 745; Ewing v. United States, 6 Cir., 1917, 240 F. 241.
3

12 Phil. 490. L-6352, Reso. dated 29 January 1953, 49 O.G. 1855.

Separate Opinion PUNO, J: This is a case of first impression involving not only the states interest to comply with its extradition treaty with the United States but also its equally imperative duty to protect the constitutional rights of its citizens to liberty and to due process. Our decision will affect important rights of all our citizens facing extradition in foreign countries. Personalities should not therefore bend our decision one way or the other for the protection of the Bill of Rights extends indifferently to all alike. We begin with the unfudged facts. The records reveal that when the private respondent learned of the filing of the petition for extradition against him and before the extradition court could issue any summons, he filed a motion to be furnished a copy of the petition and to set for hearing petitioners request for the issuance of warrant of arrest. Alternatively, he prayed that he be allowed to post bail for his temporary liberty. Respondent judge granted private respondents motion. After hearing, he issued a warrant for the arrest of private respondent but allowed him to post bail. Petitioner assails the orders of the respondent judge and submits the following issues for resolution by this Court: I. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an arrest warrant under Section 6 of P.D. No. 1069. II. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go on provisional liberty because: 1. An extradition court has no power to authorize bail in the absence of any law that provides for such power. 2. Section 13, Article III (right to bail clause) of the 1987 Constitution and 173

section 4, Rule 114 (Bail) of the Rules of Court, as amended, which were relied upon, cannot be used as bases for allowing bail in extradition proceedings. 3. The presumption is against bail in extradition proceedings or proceedings leading to extradition. 4. On the assumption that bail is available in extradition proceedings or proceedings leading to extradition, bail is not a matter of right but only of discretion upon clear showing by the applicant of the existence of special circumstances. 5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent received no evidence of special circumstances which may justify release on bail. 6. The risk that Jimenez will flee is high, and no special circumstance exists that will engender a well-founded belief that he will not flee. 7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the Philippines with its obligations under the RP-US Extradition Treaty. 8. The Court of Appeals resolution promulgated on May 10, 2001 in the case entitled Eduardo T. Rodriguez, et al. vs. Hon. Presiding Judge, RTC, Branch 17 Manila, CA- G.R. SP No. 64589, relied upon by the public respondent in granting bail, had been recalled before the issuance of the subject bail orders." The substantive issues are shortlisted as follows: (1) whether or not the private respondent is entitled to notice and hearing before a warrant for his arrest can be issued; and (2) whether or not he is entitled to post bail for his provisional liberty while the extradition proceedings are pending. With due respect, I offer the following views on the issues as hewn above, viz: I. The right to notice and hearing of private respondent as an extraditee. The first issue demands a two-tiered analysis based on the following questions: (1) Can the private respondent, as potential extraditee, demand as a matter of right, that he be furnished a copy of the petition for extradition before the summons and/or the warrant of arrest are issued by the extraditing court? (2) Can he demand a hearing for the purpose of determining the necessity and propriety of the issuance of a warrant for his arrest? The majority opinion submits that neither P.D. No. 1069 nor the Constitution authorize respondent judge to give the private respondent a copy of the petition for extradition and immediately set for hearing the request for a warrant of arrest against the latter. I beg to disagree. There can be no disagreement that P.D. No. 1069 deserves an interpretation that would blend with the purpose of the RP-US Extradition Treaty, i.e., the minimization of flight risk and the facilitation of an extraditees surrender to the requesting state. But this stance should not be taken to mean that this Court can cast a blind eye to the private respondents constitutional rights to life, liberty and to due process. While this Court is obliged to accord due respect to the states interests to comply with its treaty obligations, it cannot also shirk from its duty to protect the fundamental rights of its citizens. Thus, a full and careful weighing of these warring interests is imperative as we did in its 174

predecessor case Secretary of Justice vs. Lantion. 1 With due respect, it is my humble submission that the majority failed to allocate the proper weight due to the constitutional rights of the private respondent to life, liberty and to due process. These rights are now conceded in the civilized world as universal in character and it was never the intent of the RP-US Extradition Treaty to trivialize their significance. It bears emphasis that this Courts ruling in Secretary of Justice vs. Lantion did not per se negate the constitutional rights of a potential extraditee to liberty and due process. If we rejected private respondents invocation of these rights in said case, it was only because (1) the threat to his liberty by provisional arrest has already passed; 2 and (2) the threat to his liberty upon the filing of the petition for extradition was merely hypothetical. 3 At that time, the government of the United States has not requested for the provisional arrest of the private respondent. Likewise, the petition for extradition has not yet been filed before the extradition court. Thus, after carefully balancing the conflicting interests of the parties at the evaluation stage of the extradition proceedings, we upheld the states interests under its extradition treaty with the United States, viz: To be sure, private respondents plea for due process deserves serious consideration, involving as it does his primordial right to liberty. His plea to due process, however, collides with important state interests which cannot also be ignored for they serve the interest of the greater majority. The clash of rights demands a delicate balancing of interests approach which is a fundamental postulate of constitutional law. The approach requires that we take conscious and detailed consideration of t he interplay of interests observable in a given type of situation. These interests usually consist in the exercise of the individual of his basic freedoms on the one hand, and the governments promotion of fundamental public interests or policy objectives on the other. In the case at bar, on one end of the balancing pole is the private respondents claim to due process predicated on Section 1, Article III of the Constitution, which provides that No person shall be deprived of life, liberty, or property without due process of law Without a bubble of doubt, procedural due process of law lies at the foundation of a civilized society which accords paramount importance to justice and fairness. It has to be accorded the weight it deserves. This brings us to the other end of the balancing pole. Petitioner avers that the Court should give more weight to our national commitment under the RP-US Extradition Treaty to expedite the extradition of its laws. Petitioner also emphasized the need to defer to the judgment of the Executive on matters relating to foreign affairs in order not to weaken if not violate the principle of separation of powers. Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of the right being claimed by private respondent is nebulous and the degree of prejudice he will allegedly suffer is weak, we accord greater weight to the interests espoused by the government thru the petitioner Secretary of Justice." 4 We stressed that the denial of the private respondents privilege of notice and hearing during the evaluation stage of the extradition proceeding is merely a soft restraint on his right to due process, viz: In tilting the balance in favor of the interests of the State, we stress that it is not ruling that the private respondent has no right to due process at all throughout the length and breadth of the extrajudicial proceedings. Procedural due process requires a determination of what process is due, when it is due, and the degree of what is due. Stated otherwise, a prior determination should be made as to whether procedural protections are not at all due and when they are due, which in turn depends on the extent to which an individual will be condemned to suffer grievous loss." 5 The extradition process against the private respondent has, however, moved away from the stage of evaluation of documents by the executive officials of the Philippine government. A formal petition for the extradition of the private respondent has now been filed with our court of justice. With this development, the competing interests of our government and of the private respondent have developed new dimensions and they need to be rebalanced. In re-adjusting the balance, I respectfully submit the following propositions, viz. 175

(a) A potential extraditee has the right to be notified of the filing of the petition for extradition. It is my humble submission that from the moment the petition for extradition is filed before the extradition court, a potential extraditee has the right to demand that he be furnished a copy of the petition. This right inheres from the duty imposed by P.D. No. 1069 to the extradition judge to summon a potential extraditee to appear and answer the petition "as soon as practicable." It is a mandatory duty that should be carried out by the extradition judge; the law does not give him any discretion. This submission is in accord with our ruling in Secretary of Justice vs. Lantion, 6 where we held that: "P.D. No. 1069 which implements the RP-US Extradition Treaty provides the time when an extraditee shall be furnished a copy of the petition for extradition as well as the supporting papers, i.e., after the filing of the extradition in the extradition court." (b) The need for a hearing to determine whether a warrant of arrest should be issued against an extraditee is addressed to the sound discretion of the extraditing judge. The majority opinion holds that the private respondent extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest. It relies on section 6 of P.D. No. 1069, which provides: Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of Notices.- (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will serve the ends of justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear the case or set another date for hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the accused." (emphasis supplied) The majority interprets this provision as follows: It is significant to note that section 6 of PD 1069, our Extradition Law, uses the word immediate to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, receiving facts and arguments from them, and giving them time to prepare and present such facts and arguments. Arrest subsequent to hearing can no longer be considered immediate. The law could have intended the word as a mere superfluity but, on the whole, as means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should issue." Clearly, the opinion leans heavily on the use of the word "immediate" which qualified the arrest of an extraditee. It holds that "the qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant." Again, I beg to disagree. I submit that the decision whether to send notice to an extraditee and hear him before ordering his arrest should be left to the sound discretion of the extraditing judge. This is crystal clear from section 6 of P.D. No. 1069 which provides: x x x He may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will serve the ends of justice." (Italics supplied) Under this provision, the issuance of a warrant of arrest is dependent on a big "if," or to an all important condition - - - if it will serve the ends of justice. The determination of whether a warrant of arrest against an extraditee will serve the ends of justice is certainly not a cut and dried duty. It involves 176

the appreciation of highly contentious facts, both objective and subjective in nature. Their appreciation requires a judicial mind honed in the law of evidence. The history of extradition will reveal that, initially, the task of determining whether an extraditee should be immediately arrested was given to the executive authorities of the extraditing state. The matter, in other words, was treated purely as an executive function but unfortunately, the practice was given to abuses. Recognizing that certain human rights are universal in nature and beyond violation, the task of adjudging whether a potential extraditee should be immediately arrested pending his extradition proceeding was transferred to judges. The office of the judge was called upon to insure that fundamental fairness is not denied to a potential extraditee. The extraditing judge is not to act as a stamp pad but has to exercise his sound discretion on whether to issue the warrant. Under our law on extradition, P.D. No. 1069, section 6, the discretion of the extradition judge on whether to order the arrest of the extraditee is guided by the following consideration - - - whether the arrest will serve the ends of justice. The grant of this judicial discretion will be rendered naught if we subject the action of the extraditing judge to unnecessary fetters. With due respect, the view that the extraditing judge has no discretion to determine whether to notify and hear a potential extraditee before ordering his arrest cuts too much on the freedom of action of the extraditing judge. I submit that we should give the extraditing judge more discretion on the matter. If the extraditing judge feels that the notice and hearing will allow an extraditee to flee, I have no doubt, he will immediately order his arrest. If, however, he believes that notice and hearing will not pose such danger and that he needs to hear the parties to make a better determination on whether the immediate arrest of an extraditee will serve the ends of justice, let us not deny him the discretion to do so. The essence of discretion is freedom of action and we negate that essence when we impose needless limits on the judges freedom of action. Prescinding from these premises, I cannot also subscribe to the submission of the majority that the phrase "if it appears" in section 6 of P.D. No. 1069 conveys the message that accuracy is not as important as speed in issuing a warrant of arrest against a potential extraditee. We are concerned here with the priceless right to life and liberty, with the right to due process before ones liberty is tak en away. We are not dealing with chattels. We should not lay down the doctrine that speed should be preferred to accuracy for speed breeds recklessness and we cannot be reckless with our right to life and liberty. I agree that the trial court should not be expected to make an exhaustive determination of the facts of the case before issuing a warrant of arrest. To be sure, that is not expected of any judge, not even from a judge of a criminal case. In the case at bar, however, the extraditing judge ordered the hearing only to have a better basis for determining whether the immediate arrest of the private respondent will best serve the ends of justice. A careful look at the petition for extradition will show that it does not provide enough basis for the extraditing judge to determine whether the immediate issuance of warrant of arrest will serve the ends of justice. I quote the opinion on the documents attached to the petition for extradition, viz: Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage trial attorney in the Campaign Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex BB, the Exhibit I Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers and enclosed Statements in two volumes; (4) Annex GG, the Exhibit J Table of Contents for Supplemental Evidentiary Appendix with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward and enclosed Statements in two volumes." Even a cursory reading of these documents will not sustain the thesis that "it is evident that the respondent could have already gotten an impression from these records adequate for him to make an initial determination of whether the accused was someone who should immediately be arrested in order to best serve the ends of justice. The documents are evidence tending to prove the guilt of the private respondent in regard to the cases filed against him in the United States. They are not evidence, however, to prove that the private respondent will flee the Philippine jurisdiction while his extradition petition is being heard. In other 177

words, the petition for extradition may be in due form but it does not establish sufficient factual basis to justify the immediate issuance of warrant of arrest against the private respondent. The probability of his flight from our jurisdiction is central to the question of whether he should be arrested. In the absence of evidence establishing that private respondent will flee, I cannot join the ruling that the respondent extraditing judge gravely abused his discretion in calling for a hearing so that the parties can adduce evidence on the issue. Likewise, it is postulated: Moreover, the law specifies the courts setting a hearing upon receipt of the answer or upon failure of the accused to answer after receiving the summons. In connection with the matter of immediate arrest, however, the word hearing is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings." Once more, I beg to disagree from this reading of our law on extradition. The law, it is true, did not provide that the extraditing judge must hold a hearing before he issues a warrant of arrest. The call for a hearing is not mandatory but neither is it prohibited. Ergo, the matter of whether there ought to be a hearing before issuance of warrant of arrest is addressed to the discretion of the extraditing judge. The exercise of this discretion depends on the configuration of the facts of each case. II. The right to bail of a potential extraditee during the pendency of the petition for extradition. I respectfully submit that a potential extraditee can hinge his right to bail in our Constitution. The mere silence of our extradition treaty with the Unites States and our extradition law (P.D. No. 1069) does not negate the right to bail of a potential extraditee. Our adherence to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, as well as international norms, customs and practices support an extraditees right to bail. But while an extraditee may apply for bail, its grant depends on presentation of clear and convincing evidence that the extraditee will not frustrate the ends of justice by fleeing from our jurisdiction. Again, I proffer the following propositions: First. The right to bail inheres from the rights to life, liberty and to due process. Our Constitution jealously guards every persons right to life and liberty against unwarranted state intrusion; indeed, no state action is permitted to invade this forbidden zone except upon observance of due process of law. 7Like the privilege of the writ of habeas corpus, the right to bail gives flesh to the guarantee to liberty, without which, the right to liberty can prove meaningless, and due process will only be an empty slogan. However, unlike the privilege of habeas corpus which is principally a remedy against illegal restraint on liberty, 8 the right to bail is available even when the reason for the detention is lawful. The purpose of bail is to relieve a person the rigors of prolonged imprisonment until the main case against him is resolved, and at the same time, insure his attendance when required by the authorities. 9 It is the prospect of prolonged detention, not the detention itself, which offends the constitutional right to due process. In Teehankee vs. Rovira, 10 this Court rejected the view which limits the right to bail to persons charged with criminal offenses. We ruled that the constitutional right to bail applies to all persons, viz: "This constitutional mandate refers to all persons, not only to persons against whom a complaint or information has already been filed; it lays down the rule that all persons shall before conviction be bailable except those charged with capital offense and the evidence of his guilt is strong. Of course, only those persons who have either been arrested, detained or otherwise deprived of their liberty may 178

have the occasion to seek the benefit of said provision. But in order that a person can invoke this constitutional precept, it is not necessary that he should wait until a formal complaint or information is filed against him. From the moment he is placed under arrest, detention or restraint by officers of the law, he can claim this guarantee of Bill of Rights, and this right he retains unless and until he is charged with a capital offense and the evidence against him is strong. Indeed, if, as admitted on all sides, the precept protects those already charged under a formal complaint or information, there seems to be no legal or just reason for denying its benefit to one against whom the proper authorities may yet conclude that there exists no sufficient evidence of guilt. To place the former in a more favored position than the latter would be, to say the least, anomalous and absurd. If there is presumption of innocence in favor of one already formally charged with a criminal offense, a fortiori this presumption should be induced in favor of one yet so charged although arrested or detained." (emphasis supplied) In United States vs. Go-Siaco, 11 this Court held that while deportation proceedings are not criminal in nature, an alien deportee may avail of the constitutional right to bail, viz: The order of deportation is not a punishment for a crime. It is not a banishment, in the sense which that word is often applied to the expulsion of citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the Government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property without due process of law; and the provisions of the Constitution securing the right of trial by jury and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application. It will be seen that this declaration is not inconsistent with the view that while the proceeding is not a trial or sentence of a crime or offense, it may in so far use the machinery of the criminal law as to admit of application the provisions in such law relating to bail x x x. x x x We see no reason why bail should not be allowed in this class of cases. As is said by the Supreme Court, the defendant has committed no crime x x x To refuse him bail is to treat him as a person who has committed the most serious crime known to the law, and while we do not intend to say that this is a criminal proceeding, we do say that some of the machinery used for making the investigation required by Act No. 702 is the machinery of the criminal law x x x." This ruling is reiterated in United States vs. Benito 12 and in Pagado vs. Aldanese. 13 The case of Ong Hee Sang, et al. vs. Commissioner of Immigration and Portugal 14 is not a departure from our previous rulings on the right to bail of a deportee. In said case, the Court ruled that the grant or denial of an aliens application for bail lies within the discr etion of the Commissioner of Immigration and Deportation pursuant to section 37 (9) (e) of the Philippine Immigration Act of 1940, which states: "Any alien under arrest in a deportation proceeding may be released under a bond or under such other conditions as may be imposed by the Commissioner of Immigration." 15 The Court ratiocinated as follows: The right to bail guaranteed by the Constitution may not be invoked in favor of petitionersappellees considering that deportation proceedings do not constitute a criminal action and the order of deportation is not a punishment for a crime, it being merely for the return to his country of an alien who has broken the conditions upon which he could continue to reside with our borders." The Court explained the difference of the Go Siaco case as follows: The case of U.S. vs. Go Siaco is not in point because said case was a proceeding brought under the provisions of Act No. 702 which falls, by provision of said law, under the jurisdiction of the courts of justice. The case at bar is deportation proceeding under the Philippine Immigration Act of 1940, which expressly vests in the Commissioner of Immigration the exclusive and full discretion to determine whether an alien subject to deportation should or should not be granted." 179

It is apparent, therefore, that the ruling in the Ong Hee Sang does not negate the right to bail. It merely meant that the standard for granting or denying bail under the Constitution is different in deportation proceedings. It is different because there is a specific law which provides for such standard in deportation proceedings, i.e., Commonwealth Act No. 613 or the Philippine Immigration Act of 1940. Neither did the case preclude the grant of bail on due process grounds as in the case Mejoff vs. Director of Prisons, 16 where this Court held that while "temporary detention is a necessary step in the process of exclusion and expulsion of undesirable aliens and that pending arrangements for his deportation, the Government has a right to hold the undesirable alien under confinement for a reasonable length of time, too long a detention may justify the issuance of a writ of habeas corpus" 17 and entitle an alien to be released on bail, viz: The protection against deprivation of liberty without due process of law and except for crimes committed against the laws of the land is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality x x x Moreover, by its Constitution (Art. II, sec. 3), the Philippines adopts the generally accepted principles of international law as part of the law of the Nation. And in a resolution entitled Universal Declaration of Human Rights and approved by the General Assembly of the United Nations of which the Philippines is a member at its plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed. It was there resolved that All human beings are born free and equal in degree and rights (Art. 1); that Everyone is equal and is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status (Art. 2); that Every one has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law (Art. 8); that No one shall be subjected to arbitrary arrest, detention or exile (Art. 9, etc.)" 18 It must be noted that the Mejoff case was decided when C.A. No. 613 was already in effect. Similarly, in Chirskoff vs. Commission of Immigration 19 the Court released the alien deportee on bail because his prolonged detention violates his right to liberty, viz: "[F]oreign nationals, not enemy, against whom no criminal charges have been formally made or judicial order issued, may not be indefinitely kept in detention; that in the Universal Declaration of Human Rights approved by the General Assembly of the United Nations of which the Philippines is a member, the right to life and liberty and all other fundamental rights as applied to human beings were proclaimed; that the theory on which the court is given power to act is that the warrant of deportation, not having been executed, is functus officio and the alien is being held without any authority of law; and that the possibility that the petitioner might join or aid disloyal elements if turned out at large does not justify prolonged detention, the remedy in that case being to impose conditions in the order of release and exact bail in reasonable amount with sufficient sureties." In the case of Lao Gi vs. Court of Appeals, 20 this Court again held that although a deportation proceeding does not partake of a criminal action, the constitutional right of a person to due process should be protected therein, viz: Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional right of such person to due process shall not be denied. Thus, the provisions of the Rules of Court of the Philippines particularly on criminal procedure are applicable to deportation proceedings. xxx xxx xxx

Before any charge should be filed in the CID a preliminary investigation must be conducted to determine if there is sufficient cause to charge respondent for deportation. The issuance of warrants of arrest, arrests without a warrant and service of warrant should be in accordance likewise with Rule 113 of the 1985 Rules of Criminal Procedure; search warrants issued by the CID shall be governed by Rule 180

126 of the 1985 Rules of Criminal Procedure; and so the matter of bail, motion to quash, trial, among others." 21 (emphasis supplied). There is no reason why an extraditee should be denied the right to apply for bail. While an extradition proceeding is not criminal in nature, it is a harsh and extraordinary process. It may involve a restraint of liberty that under some circumstances can be greater than in an ordinary criminal case. 22 For in extradition proceedings, the extraditee will be transported and tried to another jurisdiction of which laws he may be unfamiliar. 23 Second. The right of an extraditee to apply for bail should be treated in light of our other treaty obligations, especially those concerning the promotion and protection of human rights. 24 Under the Vienna Convention on the Law of Treaties, to which the Philippines is a party, a treaty shall be interpreted "in their context and in the light of its object and purpose," 25 taking into account the "relevant rules of international law applicable in the relations between the parties." 26 As members of the family of nations, the Philippines and the United States have the responsibility to uphold fundamental human rights, and the dignity and worth of the human person. They are mandated to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. 27 Being signatories to the Universal Declaration of Human Rights 28 and the International Covenant on Civil and Political Rights, 29 both countries are committed to protect and promote the right of every person to liberty and to due process, ensuring that those detained or arrested can take proceedings before a court, in order that such court may decide without delay on the lawfulness of his detention, and order his release if the detention is not lawful. 30 Although the right to liberty is a relative right and may be suspended or derogated in exceptional circumstances, 31 it is a generally accepted principle in international law that the presumption lies in favor of the existence of the right, and the burden lies with the authorities to justify the lawfulness of the arrest or detention. This presumption creates an obligation on state authorities to make effective remedies available to every person under detention for the enjoyment of his fundamental right to liberty. Third. There is no customary rule of international law prohibiting bail in extradition cases. At present, there is no customary norm prohibiting bail in extradition cases. On the contrary, most countries, including Canada, Australia, the United Kingdom, South Africa and Pakistan, among others, allow a potential extraditee to be released on bail. Members of the European Union have recently ratified the European Convention on Extradition, which also provides a procedure for bail. Fourth. Even the United States grants bail to an extraditee, albeit in exceptional circumstances. In the United States, the ruling case law upholds the right of a potential extraditee to apply for bail. The US Supreme Court in the landmark case of Wright vs. Henckel, 32 recognized the authority of the circuit courts to receive application for and grant bail in certain exceptional case, thus: We are unwilling to hold that the circuit courts possess no power in respect of admitting to bail other than as specifically vested by statutes, or that, while bail should not be ordinarily granted in cases of foreign extradition, those courts may not in any case, and whatever the special circumstances, extend that relief." This dictum planted the seeds of the current federal common law on bail in international extradition proceedings. 33 It recognized the existence of the right to bail based on "exceptional circumstances" 34 which the extraditee must prove. The following are some of the instances which were considered "special circumstances" to warrant the grant of bail: (a) age, background of defendant, and lack of any suitable facility to hold him;
35

181

(b) parity with other defendant on similar charge, granting bail would promote harmony among factions in x x x dispute, likelihood of delay, and pending constitutional challenge to the extradition statute; 36 (c) need to participate in litigation in which entire fortune depended; 37 likelihood of delay and bailable offense in seeking extradition;
38

and
39

provisional arrest justifies grant of bail and disparity of treatment of persons on same charge.

The trend in recent years is for courts to liberalize the bail standard as they place primary emphasis on the accuseds risk of flight. 40 The rationale of this trend was succinctly laid down in Beaulieu vs. Hartigan, 41 to wit: "In none of the cases dealing with the issue of bail in an extradition setting was a district judge who granted bail subsequently reversed by a reviewing court. Analysis of these cases leads me to the conclusion that the special circumstances doctrine of Wright, though still viable, must be viewed, in the light of modern concepts of fundamental fairness, as providing a district judge with flexibility and discretion in considering whether bail should be granted in these extradition cases. The standard scrutiny and concern exercised by a district judge should be greater than in the typical bail situation, given the delicate nature of international relations. But one of the basic questions facing a district judge in either situation is whether, under all circumstances, the petitioner is likely to return to court when directed to do so. Fundamentally, it is a judgment call by the district court based on the totality of circumstances, including extremely important consideration of the countrys treaty agreements with other nations; a district judge should approach the bail situation in an extradition case with an added degree of caution, given the additional factor of an international treaty." Fifth. While an extraditee may apply for bail, its grant is discretionary depending on whether it will frustrate the ends of justice. In extradition cases, the extradition court does not inquire into the guilt or innocence of the accused. Neither does the court measure the injury caused to the community, as the offense was not committed within its jurisdiction. The court, therefore, cannot base its decision to grant or deny bail on the gravity of the offense, as it could in criminal cases. Rather, it should base its decision on whether it will frustrate the ends of justice. The risk of flight of an extraditee is an important factor to consider in determining whether his bail will frustrate justice. Whether or not a potential extraditee is a flight risk is determined by two factors: (1) capacity to flee; and (2) intent to flee. The combination of these two factors determines the degree of risk that the trial court must assess and weigh. While there is no mathematical formula to guide the court in gauging the precise risk posed by a particular combination of these two factors, it is commonsensical to assume that one without the other would not result to any risk at all. For while one has the capacity to flee, if he does not intend to flee, the fear of flight would be for naught, and vice versa. Sixth. The burden of proof to justify the arrest and detention of the potential extraditee initially rests on the petitioning executive authorities. Under our extradition treaty and law, a potential extraditee may be arrested and detained under any of the following circumstances: (a) upon the receipt of the request for the arrest of the potential extraditee and even before the filing of the request for extradition; (b) upon the filing of the petition for extradition before the extradition court; or (c) during the hearing of the petition for extradition. In all the above circumstances, the issuance of a warrant of arrest depends on a showing that it will serve the ends of justice. Initially, it is the burden of the petitioning executive authorities to prove that the warrant against the extraditee will serve the ends of justice. Seventh. After the warrant of arrest is issued, the burden of proof on the right to be admitted to 182

bail shifts on the potential extraditee. In criminal cases, the presumption lies in favor of granting bail. This is so because of the constitutional presumption of innocence, which is not overturned by the finding of probable cause upon which the warrant of arrest against the accused was issued. However, the presumption of innocence, from which the ordinary presumption in favor of granting bail emanates, is inoperative in extradition cases. The issuance of the warrant of arrest in extradition cases is not based on the finding that the accused is probably guilty of the offense for which he was charged in the requesting State. The warrant is predicated on the finding that it will serve the ends of justice. Once issued, it raises a presumption of the continuing presence of the circumstances upon which the issuance of the warrant was based. More often than not, this circumstance is the probability that the extraditee will flee from the jurisdiction of the extraditing court. The burden of proving admittance to bail is thus shifted to the extraditee. It should be underscored that due process, which is the basis of bail in extradition proceeding, merely grants the potential extraditee the opportunity to avail of the remedy of bail; it does not give him the right to demand that he be released on bail under any circumstance. What the right to due process prohibits is the outright denial of the remedy of bail; it does not prohibit a reasonable denial of the application for bail after carefully weighing all the circumstances at hand. III. There is need to remand the case at bar to the extradition court in fairness to the parties. I respectfully submit that in fairness to both parties, the case should be remanded to the extradition court so that the proper procedure and standard to determine the right to bail can be complied with. I put no blame on the extradition court nor to the parties in this regard for we are still developing our jurisprudence on extradition. There is need for remand for the following reasons, viz: First. As aforediscussed, the petitioner has the burden of proof to show that the issuance of a warrant of arrest against the private respondent will serve the ends of justice. This burden of proof can not be satisfied by the petitioner in the case at bar by merely relying on the petition for extradition and its annexes. The petition and its annexes do not prove that the private respondent is a flight risk. They only show that he has been indicted in the court of the United States. Second. On the issue of whether the private respondent is entitled to bail, the petitioner cannot rely on the presumption against bail in extradition proceedings. The presumption against bail in extradition proceedings is founded on the assumption that the extraditee is a fugitive from justice. Thus, it was explained in Beaulieu vs. Hartigan, 42 viz: "The vast majority of fugitives from justice in foreign countries fled from those countries knowing that charges have been, or were likely to be, brought against them. Thus the typical subject of an extradition request has a demonstrated propensity to flee rather than face charges and in general is likely to continue his flight if released pending extradition." 43

The presumption against bail therefore arises only when the extraditee is a "fugitive from justice." To avail of this presumption, it is a condition sine qua non that competent evidence be proffered that the extraditee is a fugitive from justice.

In Marquez, Jr. vs. COMELEC, 44 we ruled that the term fugitive from justice "includes not only 183

those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution." 45In Rodriguez vs. COMELEC, 46 we clarified that this definition indicates that "the intent to evade is the compelling factor that animates ones flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction." 47 From the records, it appears that the claim of the petitioner that the private respondent is a fugitive from justice is based on the following allegations: (a) that an investigation for the charges against him was then on going; and (b) that upon learning that he was about to be charged, he fled from the United States. Thus, petitioner alleged: Learning that an investigation involving his violations of United States federal laws was about to be terminated and that he was about to be charged, Jimenez fled the United States jurisdiction. Under United States law, he is therefore a fugitive from justice. A "fugitive from justice" is a person who commits a crime within a state and withdraws himself from such jurisdiction (Ex Parte Montoya, 135 P.2d 281, 282, 170 Or. 499). Because he has fled once, there is a greater likelihood that he will flee to another jurisdiction once more and frustrate extradition. Thus, he poses a serious risk flight. The interest of justice will be best served if he is arrested and detained pending extradition proceedings, which after all, is summary in nature." 48 It is clear, however, that the warrant of arrest in connection with Indictment No. 99-00281-CRSEITZ against the private respondent was issued on April 15, 1999. 49 Private respondent claims that he was already in the Philippines when the indictment against him was filed and the warrant for his arrest was issued. During the oral argument of the case at bar, the following exchange between the counsels of the parties took place, viz: USec Gutierrez: It may be mentioned that the proposed extraditee stands charge (sic) of several charges from the United States of America and a warrant of arrest was issued against him and he fled the jurisdiction of the United States of America to evade prosecution and there would again be another risk of plight (sic) and to ensure the proposed extraditee will be present during the extradition proceeding, therefore this request on the part of the petitioner for the issuance of warrant of arrest.50 xxx xxx xxx

Atty. Bautista: The Honorable Counsel has declared gratuitously that Mr. Mark Jimenez is a fugitive from the United States, left the United States because of the indictment against him. That is totally false. The petition itself says that a warrant for the arrest of Mr. Jimenez was issued in the United States in April 1999. Mr. Jimenez was here in the Philippines on May 1998 and he has not left the country since then. So he left the United States long before, a year before the warrant of arrest was issued, so how can we say that he is a fugitive from justice?" 51 That private respondent arrived in the country on May 10, 1998 is evidenced by the records and is not contradicted by the petitioner. 52 On the other hand, petitioners claim that private respondent knew of the ongoing investigation as well as of the existence of the charges against him when he fled from the United States is devoid of evidence. Therefore, it would be fatal for the petitioner to rely alone on the presumption against bail in extradition cases to justify the denial of bail of the private respondent. In Rodriguez, petitioner arrived in the Philippines on June 25, 1985 and the complaint in Los Angeles was filed on November 2, 1985. We ruled that "it was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant - much less conviction- to speak of yet at such time." We rejected the contention that Rodriguez would have known the on-going investigation, viz: It is acknowledged that there was an attempt by the private respondent to show Rodriguez intent to evade the law. This was done by offering for admission a voluminous copy of an investigation report on the alleged crimes committed which led to the filing of the charges against petitioner. It was offered for the sole purpose of establishing the fact that it was impossible for the petitioner not to have known of said investigation due to its magnitude. Unfortunately, such conclusion misleads because investigations 184

of this nature, no matter how extensive or prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest of those who would be charged." 53 Furthermore, we held that "the circumstantial fact that it was seventeen (17) days after Rodriguez departure that charges against him were filed cannot overturn the pre sumption of good faith in his favor. The same suggests nothing more than the sequence of events, which transpired. A subjective fact as that of petitioners purpose cannot be inferred from the objective data at hand in absence of further proof to substantiate that claim." Third. In granting bail to the private respondent, the standard used by the extraditing court is not clear. An extradition proceeding is sui generis, hence, neither the standard of proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases can apply. Thus, in Lantion, 54 we explained: We are not persuaded. An extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation. As held by the US Supreme Court in United States v. Galanis: An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty. There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while a criminal proceeding involve a full blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nations foreign relations before making the ultimate decision to extradite." With humility, I submit that the Court should fashion out a higher standard to govern the grant of bail to a possible extraditee. The higher standard is demanded by the fact that our extradition treaty obligates us to assure that an extraditee will not abscond from our jurisdiction. Failure to comply with this obligation will expose our country to international embarrassment. It will defeat the purpose of extradition treaties, i.e., the suppression of crimes, especially transnational crimes to which the Philippines is very vulnerable. The standard, I propose, is the standard of clear and convincing evidence which is higher than mere preponderance of evidence but lower than proof beyond reasonable doubt. If this new and stricter standard would be adopted, it ought to follow that the parties should be given a chance to offer evidence to meet the same. Contrary to the claim, the voluminous pleadings already filed by the parties are insufficient to resolve the issue of whether the private respondent is entitled to bail. These pleadings proffer legal arguments but not proof of facts. The remand of the case at bar is therefore not a cop-out but is proper and it will not delay the proceedings. The extradition court can be ordered to finish the hearing on the limited issue of bail within one (1) week. After all, extradition proceedings are summary in nature. CONCLUSION In conclusion, I offer the following views: 185

First. The filing of a petition for extradition does not per se justify the issuance of a warrant of arrest against an extraditee. The petition, in some instances, may not contain sufficient allegations and proof on the issue of whether the possible extraditee will escape from the jurisdiction of the extraditing court. Second. When the petition for extradition does not provide sufficient basis for the arrest of the possible extraditee or the grant of bail as in the case at bar, it is discretionary for the extradition court to call for a hearing to determine the issue. Third. An extraditee has the right to apply for bail. The right is rooted in the due process clause of the Constitution. It cannot be denied simply because of the silence of our extradition treaty and law on the matter. The availability of the right to bail is buttressed by our other treaties recognizing civil and political rights and by international norms, customs and practices. Fourth. The extraditee may apply for bail but its grant depends on the discretion of the extraditing court. The court must satisfy itself that the bail will not frustrate the ends of justice. Fifth. In deciding whether to grant bail or not to a possible extraditee, the extraditing court must follow a higher and stricter standard. The extraditee must prove by clear and convincing evidence that he will not flee from the jurisdiction of the extraditing court and will respect all its processes. In fine, that he will not frustrate the ends of justice. As emphasized, the case at bar has entered a new stage and the competing interests of the state and the rights of the private respondent as an extraditee need to be rebalanced on the scale of justice. These competing rights and interests have to be rebalanced for they have developed new dimensions and some facts may have to be accorded greater or lesser weights to meet the more paramount interest of our people. This paramount interest is always in motion as it is affected by the inexorable changes wrought in time both by man and machine. In rebalancing these conflicting interests, we should take care not to diminish to a disturbing degree an extraditees fundamental rights to life, liberty and due process. These rights have evolved as universal rights and extradition treaties for all their utility were never meant to disparage, let alone, derogate them to inutility. Likewise, in rebalancing these interests, we should not weaken the role of courts in tempering the harshness of extradition proceedings. We should not therefore dilute the discretionary power of courts to determine whether a hearing should be called before ordering the immediate arrest of a possible extraditee. In counter-balance, we should not be soft where we have extradition treaties. While rights internationalized. We should not allow our country but deny the rights of others. Thus, there is need grant bail to potential extraditees. on extraditees who are facing charges in countries are being universalized, so too are crimes being to be the sanctuary of criminals who demand rights to impose a higher and stricter standard before we

We are in the difficult step by step process of developing our jurisprudence in extradition. In Lantion, our first extradition case, we held that an extraditee has no right to demand examination of the documents of extradition while the request for extradition is just being processed and evaluated by the Departments of Foreign Affairs and Justice. In the case at bar, our second extradition case, we have the opportunity to impose a higher and stricter standard that will govern a plea for bail of an extraditee. I urge the Court to seize the rare opportunity for this can well be our humble contribution to mans relentless search for elusive peace. Prescinding from all these premises, I vote to remand the case at bar to the extradition court so that it can follow the proper procedure and higher standard in determining the right to bail of the private respondent. 186

REYNATO S. PUNO

Footnotes
1

343 SCRA 377 (2000).

Id., p. 389. "Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide that private respondent may be provisionally arrested only pending receipt of the request for extradition. Our DFA has long received the extradition request from the United States and has turned it over to the DOJ. It is undisputed that until today, the United States has not requested for private respondents provisional arrest. Therefore, the threat to private respondents liberty has passed. It is more imagined than real."
3

Id., p. 390. "It is evident from the above provision that a warrant of arrest for the temporary detention of the accused pending the extradition hearing may only be issued by the presiding judge of the extradition court upon filing of the petition for extradition. As the extradition is still in the evaluation stage of pertinent documents and there is no certainty that a petition for extradition will be filed in the appropriate extradition court, the threat to private respondents liberty is merely hypothetical."
4

Id., pp. 390-391. Id., pp. 392-393. Supra note 1.

1987 Constitution, Article III, section 1. "No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws."
8

The writ of habeas corpus is an order issued by a court directed to a person detaining another, commanding him to produce the body of the person whose liberty is being restrained at a designated time and place, and asking him to show sufficient cause for the continued custody of the person so detained. See Rule 102, Revised Rules of Court.
9

Paderanga vs. Court of Appeals, 247 SCRA 741 (1995), citing Almeda vs. Villaluz, 66 SCRA 38 (1975).
10

75 Phil. 634 (1945). 12 Phil. 490 (1909). 37 Phil. 53 (1917). 42 Phil. 415 (1921). 114 Phil. 368 (1962). Tiu Chuan Hai, et al., vs. Deportation Board, 104 Phil. 949 (1958). 90 Phil. 70 (1951). 187

11

12

13

14

15

16

17

Id., p. 72. Id., pp. 73-74. 90 Phil. 257 (1951). 180 SCRA 756 (1989). Id., pp. 762-763.

18

19

20

21

22

A Recommended Approach to Bail in International Extradition Cases," 86 Mich. L. Rev. 599, 607 (1987).
23

Michigan v. Doran, 439 U.S. 282, 296 (1978). The US Supreme Court opined: "The extradition process involves an extended restraint of liberty following arrest even more severe than that accompanying detention with a single State. Extradition involves, at a minimum, administrative processing in both the asylum State and the demanding State, and forced transportation in between. It surely is a significant restraint on liberty."
24

In Europe for instance, a State Party to an extradition treaty may refuse extradition on the ground that the basic human rights of the fugitives will be violated by the requesting state if he is extradited. The primacy of human rights norms over extradition treaties arises from the notion of jus cogens--- or those peremptory norms which the Vienna Convention on the Law of Treaties acknowledges to be superior than any treaty obligation because they form part of the ordre public of the international community or of a particular region. See Article 53 of Vienna Convention on the Law of Treaties. See also, J. Dugard and C. Wyngaert, "Reconciling Extradition with Human Rights," 92 AJIL 187-212 (1998).
25

Article 31(1), Vienna Convention on the Law of Treaties. Id., Art. 31 (3) (b).

26

27

Preamble, United Nations Charter. Concern for human rights is also embodied in Article 13, par. 1 (b), Article 55 (c) and Article 62(2) of the U.N. Charter.
28

The Universal Declaration of Human Rights (hereinafter cited as UDHR) was adopted by the United Nations General Assembly on December 10, 1948. Although not a treaty, the principles of freedom contained in the UDHR have been generally regarded as customary, hence, binding among the members of the international community. See Mejoff vs. Director of Prisons, supra.
29

The UN General Assembly adopted the International Covenant on Civil and Political Rights (hereinafter cited as ICCPR) on December 16, 1966. The Philippines signed the convention on December 19, 1966 but ratified it only on October 23, 1986. On the other hand, the United States signed the convention on October 5, 1977 but ratified it only on June 8, 1992.
30

The UDHR provides that: "Article 1. All human beings are born free and equal in degree and rights; Article 2. Everyone is entitled to all the rights and freedom set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status; 188

xxx

xxx

xxx

Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law; Article 9. No one shall be subjected to arbitrary arrest, detention or exile" Similarly, Article 9 of the ICCPR provides: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him; 3. Anyone arrested or detained in a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within reasonable time or to release. 4. Anyone who was deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that such court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation.
31

Absolute rights are those which may not be suspended or derogated in any circumstance. Examples of absolute or non-derogable rights are freedom from torture and arbitrary killing. On the other hand, relative or derogable rights are those which may be suspended or derogated under circumstances such as the occurrence of public emergency or commission of an offense.
32

190 US 40 (1902).

33

Persily, International Extradition and the Right to Bail, 34 Stan. J. Intl. L 407, 408 (1998).
34

The ordinary presumption in favor of granting bail is modified when a person faces a warrant of extradition. 18 U.S.C.A. 3146, 3184.
35

Hu Yau-Leung vs. Soscia, 649 F. 2d 914 (1981). In re Kirby, et al., 106 F. 3d 855 (1996). In re Mitchell, 171 F. 289 (1909). In re Gannon, supra. Hall, Bail in International Extradition, supra at 604. Ibid. 189

36

37

38

39

40

41

430 F. Supp. 915 (1977). 554 F. 2d 1 (1977).

42

43

Persily, supra, p. 429, citing Reform of the Extradition Laws of the United States: Hearings on H.R. 2643 Before the Subcommittee On Crime of the House Committee On Judiciary, 98th Cong. 42-43 (1983).
44

243 SCRA 538 (1995).

45

Id., p. 542, citing Philippine Law Dictionary, Third Edition, p. 300 by F. B. Moreno; Blacks Law Dictionary, Sixth Edition, p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs. PFlanz, 138 F. 980; Tobin vs. Casaus, 275 P. 2d 792.
46

259 SCRA 296 (1996). Id., p. 307. Petitioners Memorandum Re: Prayer for Jimenez Arrest, Rollo, p. 87. Petition for Extradition, pp. 7-8; Rollo, pp. 54-55. TSN June 5, 2001, pp. 11- 15; Rollo, pp. 267-271. Id., pp. 24-25; Id., pp. 280-281. Sworn Statement, Rollo, p. 195. Supra note 1, p. 308. Ibid.

47

48

49

50

51

52

53

54

Separate Opinion VITUG, J.: "The State values the dignity of every human person and guarantees full respect for human rights." 1 The proposal to curtail the right of an individual to seek bail from the courts of law, acting in extradition cases, as well as his right to notice and hearing before being arrested, brings to mind the not so distant past of the Spanish Inquisition and an uneasy realization that we have yet to totally free ourselves from the grip of a dark page in history. My reservation on the draft ponencia is premised on the following theses first, it would ignore constitutional safeguards to which all government action is defined, and second, it would overstep constitutional restraints on judicial power. Treaty laws, particularly those which are self-executing, have equal stature as national statutes and, like all other municipal laws, are subject to the parameters set forth in the Constitution. The Constitution, being both a grant and a circumscription of government authority by the sovereign people, presents the ultimate yardstick of power and its limitation upon which an act of government is justly measured. This instrument contains a rule for all agencies of the government and any act in opposition thereto can only be struck down as being invalid and without effect. 2 When the great Charter gives a 190

mandate, the government can do no less than to accept it; its rejection would be an act of betrayal. The edict in its Bill of Rights granting to all persons, without distinction, the fundamental right to bail, is clear. No statute or treaty can abrogate or discard its language and its intent. The draft ponencia would assume that the Constitution confines the grant of provisional liberty to criminal cases, and that it has no application to extradition proceedings. This assumption would have reason for being if it were solely in criminal cases that a person could face an imminent threat of deprivation of his right to life or liberty, for indeed, it is this threat, rather than case nomenclature, that must be the focus and it would be superficial to think otherwise. While defying a neat definition, extradition has all the earmarks of a criminal process --- an extraditee would suffer deprivations, be denied his freedom and restricted in his movements, not much unlike a criminal indictee. Extradition proceedings involve an extended restraint of liberty following arrest, peculiar to an accused in a criminal case, which can even be more severe than an accompanying detention in a single state, for, at a minimum, it can mean protracted proceedings in both the asylum state and the demanding state and a forced transportation in between. 3 In Herras Teehankee vs. Rovira, 4 the Court observed that bail is constitutionally available to all persons, even those against whom no formal charges are filed. "Indeed, if, as admitted on all sides, the precept protects those already charged under a formal complaint or information, there seems no legal and just reason for denying its benefits to one against whom the proper authorities may not even yet conclude that there exists no sufficient evidence of guilt. To place the former in a more favored position than the latter would be, to say the least, anomalous and absurd. If there is a presumption of innocence in favor of one already formally charged with criminal offenses ... a fortiori, this presumption should be indulged in favor of one not yet so charged although arrested and detained." xxxxxxxxx "We reiterate now that under the Constitution, all persons, without distinction, whether formally charged or not yet so charged with any criminal offense, 'shall before conviction be bailable,' the only exception being when charge is for a capital offense and the court finds that the evidence of guilt is strong." Notably, our extradition law (P.D. 1069, paragraph. 1, Section 9 thereof), expressly provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. In this regard, Section 3, Rule 114, of our Rules of Criminal Procedure is unequivocal --"All persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with capital offenses or an offense which, under the law at the time of its commission and the time of the application for bail, is punished by reclusion perpetua, when evidence of guilt is strong." Nowhere in the Extradition Treaty with the United States is the grant of bail mentioned but so also it is not prohibited. This obscurity must not be held to negate the right to bail; on the contrary, it should be viewed as allowing, at the very least, the evident intendment and spirit of the fundamental law to prevail. A Constitution does not deal with details, but only enunciates general tenets that are intended to apply to all facts that may come about and be brought within its directions. 5 Behind its conciseness is its encompassing inclusiveness. It is not skin-deep; beneath that surface is what gives it real life and meaning. It can truly be said that the real essence of justice does not emanate from quibbling over patchwork but proceeds from its gut consciousness and dynamic role as a brick in the ultimate development of the edifice. 6 Resort to overly rigid procedures is being justified as a need to keep in line with our treaty obligations. Verily, comity in our relations with sovereign states is important, but there are innate rights of individuals which no government can negotiate or, let alone, bargain away. 191

Analogy between extradition process and proceedings where the right to bail is said to be unavailing, i.e., deportation proceedings and proceedings before a military tribunal, would not at all be apropos. Deportation proceedings are no more than inquiries and just involve the simple fact of whether or not an alien has an authorized entry within a named country or, if authorized, whether or not he has complied with the conditions for a continued stay thereat. A subject found to be illegally staying in a country is merely transported back to his place of origin. Most importantly, such a person is not considered to be under judicial custody. Proceedings before a military tribunal, upon the other hand, are confined to members of the military organization who give consent to its jurisdiction. The stringent proceedings before such tribunals place emphasis on summary procedures, a speedy resolution of the case being vital in maintaining discipline, obedience and fitness among the ranks 7 that cannot obviously be compromised in any sound military establishment. The draft ponencia would rely heavily on foreign jurisprudence, notably American cases, to belabor the point that the right to bail is extraneous to extradition proceedings. The citation, particularly of the jurisprudence obtaining in the United States, could be predicated on the Eighth Amendment of the US Federal Constitution. This amendment however, recognizes merely by implication the right to bail by simply disallowing excessive bail; it does not expressly provide for the grant of bail. 8 Individual states have incorporated into their own state constitutions various versions -- some give it as a matter of right and some do not a fact which partially explains the lack of uniformity in state jurisprudence on the matter. Where some states provide for a constitutional right to bail, the same is almost invariably viewed as affording a greater right than that provided in the federal charter. 9 In contrast, the Philippine Constitution strongly and clearly mandates that, except for those charged with offenses punishable by reclusion perpetua, when evidence of guilt is strong, bail is an undeniable right of every person --"All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required." 10 Thus, grappling in this jurisdiction with the compatibility of the grant of bail in extradition proceedings with basic constitutional guarantees has not been and should not be a predicament. Absent any standard, except for the constitutional limitation that the same be not excessive, the grant of bail in the United States largely rests on judicial discretion under the umbrella of judicial power. And so it has been so regarded in Wright v. Henkel, 11 the primary case governing access to bail in United States extradition proceedings, where the Court has held: "We are unwilling to hold that the Circuit Courts possess no power in respect of admitting bail other than as specifically vested by statute or that, while bail should not ordinarily be granted in cases of foreign extradition, those courts may not, in any case, and whatever the special circumstances, extend that relief." Henkel, decided by the US Supreme Court in 1903, has been criticized to have imposed an amorphous standard and has resulted in an incoherent and inconsistent approach to bail. 12 While the clamor for its re-examination appears to be getting persistent by the day, 13 it has nevertheless become the forerunner in the judicially-prescribed "special circumstances" standard in deciding whether the bail should be granted or denied. 14These "special circumstances" vary from reasons of ill-health to material prejudice depending on the peculiarities of the case. In In re Mitchel, 15 to cite an example, the court there caused the release of an extraditee who was charged with larceny by the requesting state based on the assertion that his continued detention rendered him incapable of consulting with his counsel. The court was careful to emphasize that it had become imperative for him to obtain advice of counsel because his entire fortune depended upon his doing so. The court then added that while he had knowledge for a long time of the extradition, he had 192

made no attempt to flee. 16 But Philippine courts need not really bother borrowing from dicta in foreign jurisdictions. The absoluteness of the constitutional grant under Section 13, Article, III of the Constitution precludes any need for further standards than those explicitly expressed by it. Judicial discretion is confined to the issue of whether or not the offense charged is a capital crime and a determination of whether or not the evidence of guilt is strong. The rule may appear to be too simplistic but it is the correct approach. At all events, I would not be comfortable in developing a "special circumstances" standard on the basis of mere pro hac vice pronouncements from elsewhere. In Herras Teehankee vs. Director of Prisons 17 , this Court has expressed unqualified acquiescence to the deeply ingrained policy of restraint against unwarranted judicial adventurism that can otherwise easily get out of hand. 1wphi1.nt Given the foregoing, the trial court did not err, let alone commit a grave abuse of discretion, in the grant of bail to the extraditee. WHEREFORE, I vote to DENY the Petition.

JOSE C. VITUG

Footnotes
1

Section II, Article II, 1987 Constitution. Bernas, 1987 Constitution, 1st Edition, Bk. 2, p. 1.

Jeffrey A. Hall, "A Recommended Approach to Bail in International Extradition Cases," Michigan Law Review, December 1987.
4

66 SCRA 38, 43. 16th AmJur 2d. See the writers opinion in G.R. No. 146710-15. Reid vs. Covert, 354 U.S. 683, 694 (1969), cited in Bernas, Ibid. p. 370.

U.S. ex. re. Keating vs. Bensinger, D.C. Ill. 1971, 322 F. Supp. 784, Mastrian vs. Hedman, C.A. Minn. 1964, 326 F2d 708, certiorari denied 84 S.Ct. 1128,376 U.S. 965, 11 L. Ed. 2d 982. The eighth Amendment of the U.S. Federal Constitution merely provides "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted."
9

Ray vs. State, 679 N.E. 2d 1364 (Ind. Ct. App. 1997). Section 13, Article III, 1987 Philippine Constitution. 190 U.S. 40 (1903). Jeffrey Hall, Ibid. 193

10

11

12

13

Ibid.

14

M. Cherif Bassiouni, "International Extradition United States Law and Practice," Vol. II, November 1987, Oceana Publications, Inc., p. 535.
15

171 F, 289 (S.D. N.Y 1909), cited in Bassiouni, Ibid., at p. 535. Ibid. 76 Phil 756, 769.

16

17

Dissenting Opinion YNARES-SANTIAGO, J.: With all due respect, I am disturbed by the majority opinions disregard of basic freedoms when a case is one of extradition. The majority opinion is too sweeping and dogmatic for a case of first impression. I find the views on the indiscriminate denial of fundamental rights too open-ended and heedless of entrenched jurisprudence on Bill of Rights protections. The sheer novelty of the worlds only superpower asking that a Filipino be brought before it to face criminal prosecution seems to mesmerize policy makers and this Court alike into depriving that citizen of constitutional protections. The issue before the respondent court is a fairly innocuous one whether or not the petition for extradition is meritorious. We are not concerned with the guilt or innocence of the respondent. He is presumed innocent of the crimes charged until he is convicted by a foreign court. He is likewise presumed innocent of the demands found in the request for his extradition. But the majority opinion has chosen to adopt a presumption of guilt. It presumes that the petition calling for the forcible separation of the respondent from his homeland, family, occupation, and friends is correct even before the merits are ascertained. It presumes that he will flee. A person convicted of a crime, except for the most serious offenses, is allowed bail while an appeal is pending. Respondent Jimenez has not been convicted of any crime. His guilt or innocence is not in issue before the respondent court. The only legal affront he has committed is his refusal to leave the pleasures of life in his country and go to a place where he fears the reception to him would be disagreeable and much less pleasant. Eventually after trial in the respondent court, respondent may be compelled to undergo what he fears. But until that decision is rendered and becomes executory, he must be presumed innocent of any crime or any affront to law or treaty. There can be no deprivation of basic rights and freedoms merely because the case is one of extradition. I submit that we must consider the implications of a ruling that in criminal proceedings, the constitutional rights of the accused must be protected, but in a case neither criminal nor civil, one which we call "sui generis," basic freedoms become irrelevant and non-available. A non-criminal proceeding, less onerous and repulsive to society than prosecution for crime, and where the penalty is only to be brought for trial before the court with jurisdiction, is stripped of guarantees and protections given to hard-boiled recidivists pending arrest and trial. We have denied a prospective extraditee the right to be informed before trial of the nature and cause of the charges against him. 1 Due process is essential in all court proceedings criminal, civil, investigatory, administrative, or even sui generis, a class the Court uses as an excuse to justify deprivation of that most elemental of rights, the right of notice. 2 The Court has ruled that respondent Mark Jimenez or any other person sought to be extradited must first be exposed to the indignity, expense, and anxiety of a public denunciation in court before he may be informed of what the requesting State has against him. The right to notice before trial is denied. The majority opinion states that a prospective extraditee is not entitled to notice and hearing 194

before a warrant of arrest can be issued against him. Worse, he is denied the right to bail and provisional liberty while the extradition proceedings are pending. All the jurisprudence explaining the parameters of the unreasonable searches and seizures provision of the Constitution 3 becomes inapplicable. The petition for extradition and its attachments take the place of probable cause. The right against unreasonable search and seizure is available to all persons including those not charged with any crime. 4 But now, we create an unusual exception. It is not available to one who may be seized against his will for possible extradition to a country where his innocence or guilt will first be determined. Arrest and imprisonment will become virtually certain in extradition proceedings. The only thing required of the Court is to go over the request for extradition and its supporting documents. Arrest is virtually assured because of the absence of notice and hearing. It is inconceivable that the officials of a requesting State would be so dense or careless as to fail to include in the request for extradition a prima facie showing that the respondent deserves to be seized and forcibly brought to the foreign country for trial. According to the majority opinion, from the forwarded documents, we expect the trial court to "merely xxx xxx xxx get a good first impression sufficient to make a speedy initial determination as regards the arrest and detention of the accused." This novel doctrine justifying the near certainty of automatic arrest and detention goes against this Courts decisions, too numerous to mention, protecting citizens and aliens alike from unreasonable arrests or seizures. Can we expect anything other than a "good first impression" to arise from the mere reading of a request for extradition? In criminal prosecutions, the judge must personally determine probable cause for the arrest. Facts and circumstances must first be presented which would lead a reasonably discreet and prudent man to believe that an offense has been committed and the accused is probably guilty of the offense. 5 In the majority opinion, the request for extradition by the foreign country takes the place of a hearing for probable cause. After trial, it is possible that the petition for extradition may be denied. Under the majority opinion, the possibility of a judgment of denial does not influence the immediate arrest and indefinite detention of the respondent since notice and hearing before arrest are not required. He must be jailed while the grant or denial of the petition is being considered. The majority opinion gives five (5) postulates of extradition. With all due respect, I fail to see how compliance with these postulates should result in a disregard for constitutional liberties. I agree with the first postulate. It is a general proposition that extradition is a major instrument for the suppression of crime and the Philippines should cooperate in facilitating the arrest and custodial transfer of a fugitive from one State to another. However, I cannot see how compliance with the requirements for notice and hearing and the ascertainment of reasonable cause would hamper the suppression of crime. If they do, why should they appear in our laws and in the decisions of this Court? Does obedience to the dictates of due process and the prohibition against unreasonable seizures mean any lesser determination to eradicate crime? Effective extradition arrangements and deterrence of flight abroad by felons are not incompatible with fundamental liberties. The act of according due process and reasonable seizures does not make the Philippines an isolationist state. The employment of beneficial objectives to justify the repression of far more worthy values is pejorative in nature, one in which the Court should not engage. The second postulate is based on the apriorism that the two parties to an extradition treaty accept and trust each others legal system and judicial processes. We trust the fairness of the American system of justice. However, why should we assume that it is a breach of trust which the requesting country will look upon with disfavor if we accord notice and hearing to the respondent before a warrant of arrest is issued? If bail is allowed while the extradition petition is pending before the trial court, does this signify a lack of confidence on our part in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited? The Constitution of the United States provides that "(t)he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue, but on probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized." 6 The offenses upon which the request for extradition is premised are relatively light. Undoubtedly, bail will be given by the 195

American courts on the basis of a presumption of innocence and the lack of gravity of the offenses. If the alleged offenses themselves are bailable both here and in the United States, I see no connection between the grant of the right against unreasonable seizures or the right of bail and the gratuitous assertion of the majority opinion that this is an absence of trust and confidence in the American legal system and judicial process. The guarantees of the Philippine Bill of Rights are derived from American sources. Why should we withhold them out of a misplaced fear that their grant may be interpreted as a lack of faith in the American judicial system? The third postulate states that extradition proceedings are sui generis. It is a dogma pernicious in its consequences to declare that a classification of sui generis lifts a court proceeding beyond constitutional protections. The trial before the respondent court is not criminal in nature. It is less onerous than a criminal prosecution. Yet, the majority opinion confers upon one accused of grave crimes far greater rights than an extraditee whose guilt of lesser offenses is not even in issue. Classifying a proceeding as sui generis does not mean that procedural guarantees available in criminal prosecutions, civil trials, or administrative proceedings are thereby waived or become irrelevant. The classification should not mean exemption from notice or hearing for the issuance of a warrant of arrest. It cannot result in non-entitlement to bail. The process of extradition does not involve the determination of the guilt of an accused. The majority opinion states that extradition is merely a measure of international judicial assistance to restore a person charged with crime to the jurisdiction with the best claim to try him. If so why should the person sought to be extradited be imprisoned without bail while the grant of assistance is pending? With more reason should constitutional protections be given to him. The correctness of a decision to forcibly remove a person from his homeland, family, and friends should not be taken lightly. In determining whether the extradition request complies with the extradition treaty, the trial court should not be encouraged by a postulate to act in a cavalier manner or treat the proceedings as inconsequential in nature. The majority opinion states as its fourth postulate that compliance with treaties shall be in good faith. If the respondent court grants bail to the respondent in extradition proceedings, does this constitute a failure to fulfill our obligations under the extradition treaty? I am not aware of any treaty which requires the incarceration of a respondent while the court determines whether or not he falls under the treaty provisions. Why should the furnishing of notice and the holding of a hearing for an arrest warrant paint a bad picture of our country before the world community? There should be a contrary impression of adherence to fairness and justice. We cannot fault the trial court for adopting procedural safeguards which help insure the correctness of its decision. If compliance in good faith with the treaty requires that the respondent be immediately seized and confined in the national penitentiary, why should an extradition trial still be held? We might as well give full faith and credence to the request for extradition and without any trial or hearing, place the respondent in the next airplane leaving for the requesting country. The discussion in the majority opinion of the postulates of extradition implies that the implementation of an extradition treaty rarely or never results in a refusal to allow extradition and that the court proceedings do not amount to anything more than a formality. Otherwise, why should he languish in the penitentiary while his extradition case is pending? The fifth and last postulate uses the underlying risk of flight. To say that all persons sought to be extradited have a propensity to flee is too sweeping a statement to be adopted as an axiom. In every criminal prosecution, the prosecution can, with greater reason, argue that the accused will escape and go into hiding. But never has the possibility of flight sufficed to always require incarceration while court proceedings are going on. The opposite practice is the one we have adopted. The right to bail has been elevated into a constitutional guarantee. Only for the most serious of offenses when evidence of guilt is strong may an accused be denied freedom upon the posting of bail prior to his conviction. 7 In fact, the Revised Rules of Criminal Procedure, as amended, provide that any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held. 8 The respondent is not charged of any crime before our courts. The five postulates of extradition outlined in the majority opinion are motherhood statements over 196

which there can be no quarrel. However, these postulates should be interpreted in a manner that preserves procedural safeguards instead of being used to support the petitioner's intent to cut corners. Compliance with treaty obligations does not mean unquestioning obedience to everything stated in a petition for extradition. The allegations will still be proved, refuted, and determined. Much less does it result in instant seizure without notice and hearing or incarceration without any recourse to legal methods of gaining provisional liberty. Is the respondent entitled to notice and hearing before the issuance of a warrant of arrest? The majority opinion agrees with the Department of Justice that the Regional Trial Court committed grave abuse of discretion when it informed the respondent that an extradition petition had been filed against him and that petitioner was seeking his arrest. The opinion states that the exercise of discretion by the judge is a notice to escape and to avoid extradition. The truth is that long before January 18, 2000 when G.R. No. 139465 was decided, 9 respondent was fully aware of the information which this Court now declares should not have been given to him. Respondent could have fled but he did not do so. Instead, he made himself more visible; he ran for Congress and engaged in various civic activities always in the public eye. Paraphrasing the ruling in G.R. No. 139465 on the motion for reconsideration, the threat of private respondent's flight from the Philippines has passed. It is more imagined than real at this time. 10 Petitioner states that the procedure requiring notice and hearing will set a dangerous precedent. The Court agrees that those sought to be extradited including terrorists, mass murderers and war criminals may invoke it in future extradition cases. To lump up respondent Jimenez and all persons in extradition proceedings with terrorists, mass murderers, and war criminals is contrary to all rules of reasonable and valid classification. Respondent is charged before the district court of Florida with conspiracy to defraud, attempted tax evasion, fraud through the use of radio television, false statements, and unlawful election contributions. There is absolutely no indication of terrorism, mass murder, or war crimes against him. He is definitely not a candidate for confinement in the Guantanamo Prison Compound. The fear of terrorists is not reason to deprive all subjects of extradition proceedings any and all constitutional protections. Methods of dealing with terrorists should not be used against suspected tax evaders or violators of election laws. The fact that terrorists are denied bail is not reason to deny this constitutional guarantee to persons being tried for offenses where no individual is a victim. It is error to expect that all persons against whom charges have been filed would voluntarily and cheerfully submit to trial. There are procedural safeguards such as preliminary investigation intended to secure a person presumed innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense, and anxiety of a public trial and also to protect the state from useless and expensive trials. 11 For both the State and the accused, there could be sound reasons to oppose or avoid prosecution. If there is reason in some cases for the State not to prosecute, there is greater reason for a prospective accused to take all steps that would prevent his having to go before a criminal court. We may assume that any fears of oppressive prosecution in the mind of the private respondent are unfounded and imagined. This should not lead the Court to conclude that a natural aversion to criminal prosecution is always based on ignoble or indefensible reasons. Neither should a natural desire to avoid unpleasant situations be used to deny basic rights and privileges. I submit that it is a dangerous precedent for this Court to rule that the prima facie existence of probable cause for a warrant of arrest can be derived from a mere reading of the petition for extradition and its supporting documents. The determination of probable cause is effectively taken away from the judge and transferred to the Department of Justice. Worse, the determination could come directly from an office not equipped to make it, namely the Department of Foreign Affairs. In either case, the Constitution is infringed. 197

The majority opinion is overly influenced by the fear that a person sought to be extradited would be tempted to flee. Of course, it is natural for any person facing court litigation of any kind to try to avoid it. An accused already being tried in court or an appellant who appeals a judgment of conviction has greater reason to flee if possible. Yet, this is not cause to deny him notice of proceedings or the right of provisional liberty while his case is pending. If bail is going to be denied respondent Jimenez, it should be after a full hearing and with the application of all constitutional guarantees. The majority opinion states that under the Constitution only the complainants and the witnesses he may produce are required to be examined. 12 It overlooks that in this case no complainant and no witness has been examined. A warrant of arrest is ordered issued on the sole basis of documents. There may be no requirement to notify and hear the accused before a warrant of arrest is issued. But neither is there any prohibition against the judge hearing an accused before a warrant is issued; more so if he is already in court and strongly opposes his being arrested pending trial. In his search for the truth, the judge should not be restrained in the exercise of sound discretion. In this case, the petition has already been filed. The respondent has submitted himself to the jurisdiction of the trial court. The motion to have him arrested and detained is an incident of the pending case. There is no need to take him into custody in order to make him forthcoming for trial. 13 Mr. Jimenez appears to be more than willing and, in fact, is already answering the request for extradition. He is not before the court to answer for any crime. But he is there. Strangely, the court would deny him provisional liberty in a case not criminal in nature but which could make him answer for alleged offenses in another country if the court should decide against him. What cannot be denied to him in the criminal prosecution is denied in a case which may or may not lead to such prosecution. The absence of logic behind the majority opinions denial of basic rights becomes clearer when it comes to the issue on the right to bail. The reason given for the denial of the right to bail is not merely deceptive; it has dangerous implications. It states that the constitutional provision on bail applies only when a person has been arrested and detained for violation of Philippine Criminal Law. The reasoning states, that ergo, the right to bail does not exist in non-criminal prosecutions. The absence of a constitutional provision on the right to bail of a person subject to extradition is simply based on the fact that the idea of incarcerating a person for something other than crime never occurred to the framers of the Constitution. There can be no forcible detention in non-criminal situations. Incarceration for something not related to crime would be arbitrary detention or illegal detention. It could even be slavery or involuntary servitude. In all these cases, the issue of bail does not arise. If we insist on classifying extradition as a proceeding not covered by the protections given to accused persons, we should rule that bail is not provided because the respondent is not supposed to be imprisoned. There is no need for bail because the detention is illegal in cases not related to crime. Extradition cases may not be criminal in nature. But they assist and precede criminal prosecutions. The petitioner twists the right to bail out of context when it argues that the right available during criminal prosecutions is irrelevant and should be disregarded when the court action is non-criminal in nature and, therefore, it is not available in civil, administrative, regulatory, and extradition proceedings. The fallacy of the argument is readily apparent. I cannot go along with the proposition that a person who tries to avoid criminal prosecution is always a criminal, coward, or weakling who prefers to run and hide. There are many reasons why people will fear trial in criminal cases. It is not overprotection or excessively liberal treatment to enforce constitutional guarantees in extradition cases. It is fairness and adherence to the rule of law. The judge has discretion on whether or not he should allow bail. He should have a sound basis for the probability or likelihood of flight. The majority opinion starts by asking two questions. (1) Are prospective extraditees entitled to notice and hearing before warrants for their arrest are issued? and (2) Are they entitled to bail and provisional liberty while extradition proceedings are pending? The answer is a curt "No". By the brevity and terse nature of the answer, it seems absolute and inflexible. Towards the end of the majority opinion,
14

however, two exceptions are allowed. First, the 198

applicant is not a flight risk. Second, there exist special and compelling circumstances. To my mind, the issues in this case should be framed differently. On the first question, the present provisions of law and decisions of this Court on arrests and seizures should be assumed and followed. On the second question, the Court should apply the same principles on the right to bail found in the Constitution to persons facing trial for extradition. Thus, all persons, except those where the probability of flight is clear and present or the crimes for which extradition is sought are heinous, shall before judgment in the extradition proceedings, be bailable by sufficient sureties or be released on recognizance as may be provided by law. The right to bail shall not be impaired even where the requesting country is one with which the Philippines maintains strong ties. Excessive bail shall not be required. 15 The majority opinion cites my ponencia in People v. Jalosjos. 16 Jalosjos was already convicted and his appeal was pending when he was re-elected. The crime of statutory rape where a minor is involved is particularly heinous. The evidence of guilt was not merely strong; it was beyond reasonable doubt as found in our decision. Disenfranchisement of constituents is not reason for his release. The case of Congressman Jimenez is an entirely different one. Respondent has not even faced trial as yet. There can be no proof of strong evidence against him. All we have are still accusations. Respondent is not charged with heinous crimes. The alleged tax evasion is at the stage of attempt. The defraudation is part of a conspiracy. Perjury and illegal election contributions are relatively not so serious offenses as to support denial of the right to bail. The respondents being a Congressman should be viewed from the aspect of possibilit y of flight. Why should a person run for Congress, campaign all over his district, and expose himself regularly to newspaper media and television if he intends to flee the country? There is a hold-order against him found in all ports of exit and entry. When his constituents voted Jimenez to Congress knowing fully well that an extradition case was or could be filed against him, it was an expression of confidence that he would not run away. Their faith may be misplaced or proved wrong later, but today, it must be taken at face value as against mere suppositions, fears, and apprehensions. The rules on denial of bail where possibility of flight is established must be followed. The request for extradition comes from the United States. In the course of the most perilous period in the life of that nation, the American Supreme Court stated that "the constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. xxx xxx xxx no doctrine involving more pernicious consequences was ever invented by the next of man than that its provisions can be suspended during any of the great exigencies of government." 17 The extradition of respondent is not an exigency of government. The provisions of the Bill of Rights of the two States which entered into the treaty are fully applicable in extradition. If a person is to be arrested and detained, current laws and procedures for arrests and detentions should be employed. The novelty of extradition cases in the Philippines cannot result in any suspension or disregard of basic liberties whether here or in the United States. The mantle of constitutional protections should cover persons covered by extradition requests. I vote to dismiss the petition.

CONSUELO YNARES-SANTIAGO

Footnotes 199

Secretary of Justice v. Lantion, 343 SCRA 377 (2000). Constitution, Art. III, Sec. 1 and Sec. 14(2); People v. Mencias, 46 SCRA 88 [1972]. Constitution, Art. III, Sec. 2. Moncado v. Peoples Court, 80 Phil. 1.

People v. Syjuco, 64 Phil. 667 (1937); Alvarez v. Court of First Instance, 64 Phil. 33 (1937); U.S. v. Addison, 28 Phil. 566 (1914); Burgos v. Chief of Staff, 133 SCRA 800 (1984).
6

American Bill of Rights, Amendment No. IV of the U.S. Constitution. Constitution, Art. III, Sec. 13. Revised Rules of Criminal Procedure, Rule 114, Sec. 17 (c). 328 SCRA 160 (2000). 343 SCRA 377, 389 (2000). Salonga v. Hon. Pano et al., 134 SCRA 438 (1985). Constitution, Art. III, Sec. 2.

10

11

12

13

Rule 113, Section 1 of the Revised Rules of Criminal Procedure defines arrest as "the taking of a person into custody in order that he may be bound to answer for the commission of an offense."
14

Decision, p. 34. See Constitution, Art. III, Sec. 13. 324 SCRA 689 (2000). Ex parte Milligan, 4 Wallace 2 (1866); 71 U.S. 2; 18 L. Ed. 281.

15

16

17

Concurring Opinion Carpio, J: I concur with the well-written ponencia of Justice Panganiban. I write this concurring opinion to afford extraditees in this country the right to bail, in carefully limited exceptions, under the equity and rule making power of the Court. It is the constitutional duty and power of the Court to protect and enforce the fundamental rights 1 of all persons in this country. This should include, to the extent that the Court can grant under its power, the right of extraditees in this country to avail of the same or similar remedies that courts in the countries of our treaty partners have accorded to their own extraditees. The right to bail is a constitutional right available to an accused in domestic criminal proceedings except in offenses punishable by reclusion perpetua or higher when evidence of guilt is strong. 2 An extraditee, however, cannot invoke this constitutional right in international extradition because extradition proceedings are not criminal proceedings. Extradition proceedings are like deportation and court martial proceedings where there is no constitutional right to bail. 200

Thus, in the leading case of Ong See Hang v. Commissioner of Immigration, 3 the Court held that: The right to bail guaranteed by the Constitution may not be invoked in favor of petitionersappellees, considering that deportation proceedings do not constitute a criminal action (Lao Tang Bun v. Fabre, 81 Phil. 682; U. S. ex rel. Zapp, et al. v. District Director of Immigration and Naturalization, supra) and the order of deportation is not a punishment for a crime (U. S. v. Go-Siaco, 12 Phil. 490; Mahler v. Eby, 264 U. S. 32), it being merely for the return to his country of an alien who has broken the conditions upon which he could continue to reside within our borders (U. S. v. De los Santos, 33 Phil. 397, Lao Tang Bun v. Fabre, supra)." This was reiterated in several cases, the most recent being In RE Andrew Harvey v. Santiago, 4 decided under the 1987 Constitution. Here, the Court ruled that: The denial by respondent Commissioner of petitioners' release on bail, also challenged by them, was in order because in deportation proceedings, the right to bail is not a matter of right but a matter of discretion on the part of the Commissioner of Immigration and Deportation. Thus, Section 37(e) of the Philippine Immigration Act of 1940 provides that "any alien under arrest in a deportation proceeding may be released under bond or under such other conditions as may be imposed by the Commissioner of Immigration." The use of the word "may" in said provision indicates that the grant of bail is merely permissive and not mandatory on the part of the Commissioner. The exercise of the power is wholly discretionary (Ong Hee Sang vs. Commissioner of Immigration, L-9700, February 28, 1962, 4 SCRA 442). "Neither the Constitution nor Section 69 of the Revised Administrative Code guarantees the right of aliens facing deportation to provisional liberty on bail." (Tiu Chun Hai, et al vs. Deportation Board, 104 Phil. 949 [1958]). As deportation proceedings do not partake of the nature of a criminal action, the constitutional guarantee to bail may not be invoked by aliens in said proceedings (Ong Hee Sang vs. Commissioner of Immigration, supra)." In Commendador v. de Villa, 5 involving the court martial of military putschists against the Aquino Government, the Court held that: We find that the right to bail invoked by the private respondents in G.R. No(s). 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that `the right to a speedy trial is given more emphasis in the military where the right to bail does not exist." The justification for this exception was well explained by the Solicitor General as follows: `The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system. National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on "provisional" bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But 201

they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians." Finally, in Secretary of Justice v. Lantion, 6 the Court, speaking through Justice Reynato S. Puno, declared that: We are not persuaded. An extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation. As held by the US Supreme Court in United States v. Galanis: `An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty. There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited `upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nation's foreign relations before making the ultimate decision to extradite. As an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not necessarily apply to the former. This we hold for the procedural due process required by a given set of circumstances "must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action." The concept of due process is flexible for "not all situations calling for procedural safeguards call for the same kind of procedure." Clearly, in this jurisdiction there is no constitutional or statutory right to bail in non-criminal proceedings like in extradition. This doctrine is so well-entrenched in this jurisdiction that there is no need to belabor this point. Courts in the countries of our treaty partners, however, have allowed bail to extraditees in their own countries even in the absence of a constitutional 7 or statutory 8 right to bail. This places our own citizens who face extradition proceedings in this country at a disadvantage in terms of available remedies. The United States, for example, allows bail to extraditees when "special circumstances" 9 are present. Canada also allows bail under a similar rule.10 This situation calls for equality in treatment by extending, in carefully limited exceptions, the right to bail to those facing extradition proceedings in this country. Nevertheless, we must insure that we do not cripple the ability of our Executive Department to comply in good faith with our treaty obligations under international law. This requires a calibrated balancing, on the one hand, of the States interest in cooperating with our treaty partners in international criminal law enforcement, and on the other hand, of the need to give our own citizens no lesser right and protection than what our treaty partners so zealously provide to their own citizens. Thus, following the emerging trend in the United States, 11 and guided by our own experience in combating transnational crimes including international terrorism, the Court should rule that our extradition courts may, after the arrest of the extraditee, grant the extraditee bail if he establishes that 202

he does not pose a flight risk or a danger to the community, and there is no other special circumstance that would warrant denial of bail. The burden of proving he is entitled to bail rests on the extraditee because by resisting the extradition to face a fair trial abroad, the extraditee is presumed to be a flight risk. This is why courts have consistently held that the presumption is against bail in extradition cases. 12 The development of extradition law is still in its infancy in this country. We are fortunate that the present Constitution has empowered the Court to adopt rules to protect and enforce the fundamental rights of the people. In the United States, the grant of bail to extraditees is still largely governed by the 1903 case of Wright v. Henkel, with only the cryptic "special circumstances" as the standard prescribed by the U.S. Supreme Court for extradition courts in the U.S. to follow. 13 The instant case provides the opportunity for this Court to lay down a clear-cut guideline for our own extradition courts to follow. This will insure that our Executive Department can comply promptly with extradition requests as required by the nature of our treaty obligations while at the same time protecting the fundamental rights of our citizens. In essence, extradition is police assistance extended by a state to arrest a person charged with a crime in another state and surrender him to the authorities of that state. The power to arrest by the assisting state is legitimized by a treaty, which has the force of a statute 14 and forms part of municipal law. 15 The benefit of extradition is the mutual assistance between states in criminal law enforcement across national boundaries. The assisting state acts as an arresting agent and in some jurisdictions the extradition process is mainly an executive function. Even under our extradition treaties, the final decision whether to extradite or not rests with the President of the Philippines, not with the courts. 16 Thus, ordinarily an assisting state does not grant bail to the extraditee whose recourse is to apply for bail before the court of the state where he is charged with a crime. The assisting state, however, for equity considerations may choose to accord bail to the extraditee. One equity consideration is to put extraditees in one country in equal footing with extraditees in the country of the treaty partner. Another equity consideration is to grant the right to bail, in carefully limited exceptions, to preserve and enforce fundamental rights. This rule will not change the situation for extraditee Mark B. Jimenez in the instant case because Jimenez has failed to establish that he is not a flight risk. Having fled the United States just as he was about to be indicted for several serious crimes, Jimenez is presumed to be a flight risk for extradition purposes in this country. Jimenez has not successfully rebutted this presumption before the extradition court. Jimenez has also refused to honor his agreement with the U.S. Department of Justice, made in August 1998 through his U.S. counsel, to return to the United States 17 where he faces a maximum prison term of not less than 100 years if convicted on all counts. 18Given his resources, and the gravity of the charges against him, Jimenez remains a serious flight risk. The special circumstances" that Jimenez has alleged do not inspire confidence that he will not likely flee. Jimenez claims that he has been admitted to the Witness Protection Program which shows his lack of intent to flee. The Department of Justice, however, has disowned issuing to Jimenez a Certificate of Admission to the Witness Protection Program. The Department of Justice should know who have been admitted to the Witness Protection Program because the Department itself administers the Program. Under the Witness Protection, Security and Benefit Act, the issuance of the Certificate of Admission is the operative act that establishes admission to the Program. 19 Unless he can present a Certificate of Admission, Jimenezs claim should be rejected, and even taken as an act of misrepresentation to the extradition court, in view of the statement by the Department of Justice that there is no record of Jimenezs admission to the Program. 2 20 For the same reason, Jimenezs claim that he is a state witness in the plunder case against exPresident Joseph Estrada, and that "his flight would strip him of (the) immunity he is entitled to," 2 21 cannot be given credence. Under the Witness Protection, Security and Benefits Act, the Certificate of Admission is essential to the discharge of the accused and his utilization as a state witness. 2 22 Without the Certificate of Admission, Jimenez is not entitled to immunity under the Program. 2 23 The Department of Justice will issue the Certificate of Admission only if it is satisfied with the proposed testimony of the witness as disclosed in his sworn statement. Since until now the Department of Justice has not issued a Certificate of Admission to Jimenez, it could mean that the Department is either not 203

satisfied with what Jimenez is bargaining to testify against ex-President Joseph Estrada, or that Jimenez may not be the least guilty. 2 24 Unless Jimenez presents to the extradition court the Certificate of Admission, and this he has not done, Jimenezs claim of being a state witness against ex-President Estrada is baseless and self-serving. Jimenez claims that the Department of Justice knows his whereabouts because he is under 24hour PNP protection. Jimenez asserts in his Sworn Statement 2 25 that the Department of Justice has provided him police protection because he "was admitted into the Witness Protection Program of the DOJ on 2 March 2001." This is patently false. The Department of Justice states that there is no record of Jimenezs admission to the Witness Protection Program. Jimenez has not presented a Certificate of Admission to the Program which under the Witness Protection, Security and Benefits Act would entitle him to the benefits, protection and immunities of the Program. That Jimenez enjoys the privilege of a 24-hour PNP security detail does not establish that he is a state witness under the Witness Protection Program. As a member of the House of Representatives, Jimenez may have requested the PNP to provide him a security detail for his own benefit and protection. In such a case, the PNP security detail takes instructions from Jimenez and not from the Department of Justice. The 24-hour PNP security detail would hardly be effective in preventing Jimenez from fleeing the country. The other special circumstances" alleged by Jimenez, like his seven children residing in the Philippines, and his lack of visas to travel to other countries, deserve scant consideration. Considering his age, Jimenezs seven children are all probably of age by now, and even if they are all still minors, they would hardly become public charges if left behind in the Philippines. The lack of visas has never deterred the flight of fugitives from any country. Besides, any Filipino can travel to any of our nine ASEAN neighbors without need of a visa. Accordingly, I vote to grant the petition.

ANTONIO T. CARPIO

Footnotes
1

Section 5 (5), Article VIII of the Constitution provides as follows: "The Supreme Court shall have the following powers: (1) x x x (5) Promulgate rules concerning the protection and enforcement of constitutional rights, x x x."
2

Section 13, Article III of the Constitution. 4 SCRA 442 (1962). 162 SCRA 840 (1988). 200 SCRA 80 (1991). 343 SCRA 377 (2000).

The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required." The excessive bail clause did not establish a constitutional right to bail. In United States v. Salerno, 481 U.S. 739 (1987), attached as Annex "7", Memorandum for Private Respondent, the U.S. Supreme Court declared: "The Eighth Amendment addresses pretrial release by providing merely that `[e]xcessive bail shall not be 204

required. This Clause, of course, says nothing about whether bail shall be available at all."
8

The U.S. Bail Reform Act of 1984 does not grant the right to bail in extradition cases.

Wright v. Henkel, 190 U.S. 40 (1903), attached as Annex "2", Memorandum for Private Respondent.
10

Canada v. Pitman, 1986 WL602917 (Ont. H.C.), Supreme Court of Ontario.

11

Parretti v. United States, 122 F.3d 758 (9th Cir. 1997), attached as Annex "5", Memorandum for Private Respondent.
12

United States v. Lui Kin-Hong, 83 F.3d 523 (1st Cir. 1996), attached as Annex "8", Memorandum for Private Respondent.
13

U.S. lower courts have differed in their interpretation of the "special circumstances" standard. See A Recommended Approach to Bail in International Extradition Cases, Jeffrey A. Hall, Michigan Law Review, December, 1987.
14

La Chemise Lacoste v. Fernandez, 129 SCRA 373 (1984); Ram Singh v. Insular Collector of Customs, 38 Phil. 862. In Secretary of Justice v. Lantion, 322 SCRA 160 (2000), the Court stated: "Accordingly, the principle lex posterior derogat priori takes effect - a treaty may repeal a statute and a statute may repeal a treaty."
15

Guerreros Transport Services, Inc. v. Blaylock Trans. Services Employees Association-Kilusan, 71 SCRA 621 (1976).
16

Paragraph 2, Article 2 of the RP-US Extradition Treaty.

17

Letter dated August 23, 2001 written by Mr. John E. Harris, Director, Office of the International Affairs, U.S. Department of Justice, addressed to Undersecretary Merceditas Gutierrez of the Philippine Department of Justice, attached to Petitioners Memorandum.
18

Page 17, Petition for Certiorari.

19

Section 11 of R.A. No. 6981 provides as follows: " x x x If after said examination of said person, his sworn statement and other relevant facts, the Department is satisfied that the requirement of this Act and its implementing rules are complied with, it may admit such person into the Program and issue the corresponding certificate."
20

Pages 28-29, Petitioners Memorandum. Page 46, Memorandum for Private Respondent.

21

22

Section 12 of R.A. No. 6981 provides as follows: "The certificate of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is not required to include the Witness in the criminal complaint or information and if included therein, to petition the court for his discharge in order that he can be utilized as a state Witness. x x x."
23

Section 12 of R.A. No. 6981 provides that "[a]dmission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used x x x."

205

24

Section 10, R.A. No. 6981. Annex "A-1" of Private Respondents Comment.

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The Lawphil Project - Arellano Law Foundation

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Bayan vs Zamora G. R. No. 138570 October 10, 2000 Bayan vs Zamora Facts: The United States panel met with the Philippine panel to discussed, among others, the possible elements of the Visiting Forces Agreement (VFA). This resulted to a series of conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard. Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate approved it by (2/3) votes.

Cause of Action: Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not Section 21, Article VII. Following the argument of the petitioner, under they provision cited, the foreign military bases, troops, or facilities may be allowed in the Philippines unless the following conditions are sufficiently met: a) it must be a treaty, b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by congress, and c) recognized as such by the other contracting state. Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of the senate. ISSUE: Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution? HELD: Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the senate.

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The Constitution, makes no distinction between transient and permanent. We find nothing in section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines. It is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.

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Commissioner of Customs & Collector of Customs vs Eastern Sea Trading on October 29, 2011 Constitutional Law Treaties vs Executive Agreements EST was a shipping company charged in the importation from Japan of onion and garlic into the Philippines. In 1956, the Commissioner of Customs ordered the seizure and forfeiture of the import goods because EST was not able to comply with Central Bank Circulars 44 and 45. The said circulars were pursuant to EO 328 w/c sought to regulate the importation of such non-dollar goods from Japan (as there was a Trade and Financial Agreement b/n the Philippines and Japan then). EST questioned the validity of the said EO averring that the said EO was never concurred upon by the Senate. The issue was elevated to the Court of Tax Appeals and the latter ruled in favor of EST. The Commissioner appealed. ISSUE: Whether or not the EO is subject to the concurrence of at least 2/3 of the Senate. HELD: No, executive Agreements are not like treaties which are subject to the concurrence of at least 2/3 of the members of the Senate. Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated agreements or protocols. The point where ordinary correspondence between this and other governments ends and agreements whether denominated executive agreements or exchanges of notes or otherwise begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade- agreements act, have been negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that the trade agreements under the act of 1934 are not anomalous in character, that they are not treaties, and that they have abundant precedent in our history, to refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate. They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trade-marks and copyrights, etc. Some of them were concluded not by specific congressional authorization but in conformity with policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still others, particularly those with respect to the settlement of claims against foreign governments, were concluded independently of any legislation.

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Case Digest_The Commissioner of Customs and The Collector of Customs v Eastern Sea Trading

Facts: Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic which arrived at the Port of Manila. Some of the shipments came which had no certificate which is a requirement by Central Bank Circulars Nos. 44 and 45 for the release, thus, the goods imported were seized and subjected to forfeiture proceedings for alleged violations of section 1363(f) of the Revised Administrative Code. The Collector of Customs of Manila rendered a decision declaring said goods forfeited to the Government, and the goods released to the consignees on surety bonds, to be paid within 30 days from notice.

The CTA reversed the decision of the Commissioner of Customs and ordered that the bonds be cancelled and withdrawn. Hence, this petition.

Issue: WON the Central Bank has no authority to regulate transactions not involving foreign exchange

Held: The decision appealed from is reversed and another one shall be entered affirming that of the Commissioner of Customs.

The Central Bank, under its charter, has the power to maintain our monetary stability and to preserve the international value of our currency. The CTA entertained doubts on the legality of the executive agreement sought to be implemented by Executive Order No. 328, owing to the fact that our Senate had not concurred in the making of said executive agreement. The concurrence of said House of Congress is required by our fundamental law in the making of treaties, which are, however, distinct and different from executive agreements, which may be validly entered into without such concurrence.

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G.R. No. 127105. June 25, 1999] COMMISSIONER OF INTERNAL REVENUE, petitioner, vs. S.C. JOHNSON AND SON, INC., and COURT OF APPEALS, respondents. Facts: SC JOHNSON AND SON, USA a domestic corporation organized and operating under the Philippine laws, entered into a license agreement with SC Johnson and Son, United States of America (USA), a non-resident foreign corporation based in the U.S.A. pursuant to which the [respondent] was granted the right to use the trademark, patents and technology owned by the latter including the right to manufacture, package and distribute the products covered by the Agreement and secure assistance in management, marketing and production from SC Johnson and Son, U. S. A. The said License Agreement was duly registered with the Technology Transfer Board of the Bureau of Patents, Trade Marks and Technology Transfer under Certificate of Registration No. 8064 . For the use of the trademark or technology, SC JOHNSON AND SON, USA was obliged to pay SC Johnson and Son, USA royalties based on a percentage of net sales and subjected the same to 25% withholding tax on royalty payments which respondent paid for the period covering July 1992 to May 1993.00 On October 29, 1993, SC JOHNSON AND SON, USA filed with the International Tax Affairs Division (ITAD) of the BIR a claim for refund of overpaid withholding tax on royalties arguing that, since the agreement was approved by the Technology Transfer Board, the preferential tax rate of 10% should apply to the respondent. We therefore submit that royalties paid by the [respondent] to SC Johnson and Son, USA is only subject to 10% withholding tax pursuant to the most-favored nation clause of the RP-US Tax Treaty in relation to the RP-West Germany Tax Treaty Issue: WHETHER OR NOT SC JOHNSON AND SON,USA IS ENTITLED TO THE MOST FAVORED NATION TAX RATE OF 10% ON ROYALTIES AS PROVIDED IN THE RP-US TAX TREATY IN RELATION TO THE RP-WEST GERMANY TAX TREATY. Ruling : In the case at bar, the state of source is the Philippines because the royalties are paid for the right to use property or rights, i.e. trademarks, patents and technology, located within the Philippines. The United States is the state of residence since the taxpayer, S. C. Johnson and Son, U. S. A., is based there. Under the RP-US Tax Treaty, the state of residence and the state of source are both permitted to tax the royalties, with a restraint on the tax that may be collected by the state of source. Furthermore, the method employed to give relief from double taxation is the allowance of a tax credit to citizens or residents of the United States against the United States tax, but such amount shall not exceed the limitations provided by United States law for the taxable year. The Philippines may impose one of three rates- 25 percent of the gross amount of the royalties; 15 percent when the royalties are paid by a corporation registered with the Philippine Board of Investments and engaged in preferred areas of activities; or the lowest rate of Philippine tax that may be imposed on royalties of the same kind paid under similar circumstances to a resident of a third state. Given the purpose underlying tax treaties and the rationale for the most favored nation clause, the concessional tax rate of 10 percent provided for in the RP-Germany Tax Treaty should apply only if the taxes imposed upon royalties in the RP-US Tax Treaty and in the RP-Germany Tax Treaty are paid under similar circumstances. This would mean that private respondent must prove that the RP-US Tax Treaty grants similar tax reliefs to residents of the United States in respect of the taxes imposable upon royalties earned from sources within the Philippines as those allowed to their German counterparts under the RP-Germany Tax Treaty. The RP-US and the RP-West Germany Tax Treaties do not contain similar provisions on tax crediting. Article 24 of the RP-Germany Tax Treaty, expressly allows crediting against German income and corporation tax of 20% of the gross amount of royalties paid under the law of the Philippines. On the other hand, Article 23 of the RP-US Tax Treaty, which is the counterpart provision with respect to relief for double taxation, does not provide for similar crediting of 20% of the gross amount of royalties paid At the same time, the intention behind the adoption of the provision on relief from double taxation in the two tax treaties in question should be considered in light of the purpose behind the most favored nation clause. The purpose of a most favored nation clause is to grant to the contracting party treatment not less favorable than that which has been or may be granted to the most favored among other countries. The most favored nation clause is intended to establish the principle of equality of international treatment by providing that the citizens or subjects of the contracting nations may enjoy the privileges accorded by 211

either party to those of the most favored nation. The essence of the principle is to allow the taxpayer in one state to avail of more liberal provisions granted in another tax treaty to which the country of residence of such taxpayer is also a party provided that the subject matter of taxation, in this case royalty income, is the same as that in the tax treaty under which the taxpayer is liable. The similarity in the circumstances of payment of taxes is a condition for the enjoyment of most favored nation treatment precisely to underscore the need for equality of treatment. The RP-US Tax Treaty does not give a matching tax credit of 20 percent for the taxes paid to the Philippines on royalties as allowed under the RP-West Germany Tax Treaty, private respondent cannot be deemed entitled to the 10 percent rate granted under the latter treaty for the reason that there is no payment of taxes on royalties under similar circumstances. It bears stress that tax refunds are in the nature of tax exemptions. As such they are regarded as in derogation of sovereign authority and to be construed strictissimi juris against the person or entity claiming the exemption. The burden of proof is upon him who claims the exemption in his favor and he must be able to justify his claim by the clearest grant of organic or statute law. Private respondent is claiming for a refund of the alleged overpayment of tax on royalties; however, there is nothing on record to support a claim that the tax on royalties under the RP-US Tax Treaty is paid under similar circumstances as the tax on royalties under the RP-West Germany Tax Treaty.

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CIR v. SC Johnson & Son (Tax Treaties) Facts: S. C. Johnson and Son, Inc. entered into a license agreement with SC Johnson and Son, United States of America (USA) For the use of the trademark or technology, S. C. Johnson and Son, Inc. was obliged to pay SC Johnson and Son, USA royalties based on a percentage of net sales and subjected the same to 25% withholding tax on royalty payments S. C. Johnson and Son, Inc. filed with the International Tax Affairs Division (ITAD) of the BIR a claim for refund of overpaid withholding tax on royalties arguing that the preferential tax rate of 10% should apply to them Issue Whether or not SC Johnson and Son, USA is entitled to the "most favored nation" tax rate of 10% on royalties as provided in the RP-US Tax Treaty in relation to the RP-West Germany Tax Treaty. Held/Ratio NO. Under Article 13 of the RP-US Tax Treaty, the Philippines may impose one of three rates 25 percent of the gross amount of the royalties; 15 percent when the royalties are paid by a corporation registered with the Philippine Board of Investments and engaged in preferred areas of activities; or the lowest rate of Philippine tax that may be imposed on royalties of the same kind paid under similar circumstances to a resident of a third state. The RP-US and the RP-West Germany Tax Treaties do not contain similar provisions on tax crediting. Since the RP-US Tax Treaty does not give a matching tax credit of 20 percent for the taxes paid to the Philippines on royalties as allowed under the RP-West Germany Tax Treaty, private respondent cannot be deemed entitled to the 10 percent rate granted under the latter treaty for the reason that there is no payment of taxes on royalties under similar circumstances.

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Augusto Benedicto Santos III vs. Northwest Orient AirlinesG.R. No. 101538 June 23, 1992Facts The petitioner, a minor and a resident of the Philippines, purchased from private respondent Northwest Orient Airlines (NOA), a foreign corporation with principal office in Minnesota, U.S.A. andl i c e n s e d t o d o b u s i n e s s a n d m a i n t a i n a b r a n c h o f f i c e i n t h e P h i l i p p i n e s , a r o u n d - t r i p t i c k e t i n S a n Francisco. U.S.A., for his flight from San Francisco to Manila via Tokyo and back. The scheduleddeparture date from Tokyo was December 20, 1986 and no date was specified for his return to SanFrancisco.Petitioner checked in at the NOA counter in the San Francisco airport for his scheduled departureto Manila. However, despite a previous confirmation and re-confirmation, he was informed that he had noreservation for his flight from Tokyo to Manila. He therefore had to be wait-listed.Petitioner then sued NOA for damages in the Regional Trial Court of Makati. NOA moved todismiss the complaint on the ground of lack of jurisdiction invoking Article 28 (1) of the Warsaw Convention. Art. 28. (1) An action for damage must be brought at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination. Respondent contended that the Philippines was not its domicile nor was this its principal place of business. Neither was the petitioner's ticket issued in this country nor was his destination Manila but SanFrancisco in the United States.The lower court granted the motion and dismissed the case. However, the petitioner appealed tothe Court of Appeals, which affirmed the decision of the lower court. Petitioner filed a mot ion for reconsideration, but the same was denied. Petitioner then came to Supreme Court, raising the same issuesit submitted in the Court of Appeals. Issue Whether or not Article 28 (1) of the Warsaw Convention is constitutional? Held Yes, Article 28 (1) of the Warsaw Convention is constitutionalT h e W a r s a w C o n v e n t i o n i s a t r e a t y c o m m i t m e n t v o l u n t a r i l y a s s u m e d b y t h e P h i l i p p i n e government and, as such, has the force and effect of law in this country.According to the Supreme Court, The treaty which is the sub ject matter of this petition was a jointlegislative-executive act. The presumption is that it was first carefully studied and determined to be constitutional before it was adopted and given the force of law in this country. The petitioner's allegations are not convincing enough to overcome this presumption. Apparently,the Convention considered the four places designated in Article 28 the most convenient forums for thelitigation of any claim that may arise between the airline and its passenger, as distinguished from all other places. At any rate, we agree with the respondent court that this case can be decided on othergrounds without the necessity of resolving the constitutional issue. More over, It is well-settled that courts will assume jurisdiction over a constitutional questiononly if it is shown that the essential requisites of a judicial inquiry into such a question are first satisfied.Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination; the constitutional question must have been opportunely raised by the proper party;and the resolution of the question is unavoidably necessary to the decision of the case itself. Courts generally avoid having to decide a constitutional question. This attitude is based onthe doctrine of separation of powers, which enjoins upon the departments of the government a becoming respect for each other's acts.

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Gonzales vs Hechanova on October 29, 2011 Constitutional Law Treaty vs Executive Agreements Statutes Can Repeal Executive Agreements Then President Diosdado Macapagal entered into two executive agreements with Vietnam and Burma for the importation of rice without complying with the requisite of securing a certification from the Natl Economic Council showing that there is a shortage in cereals. Hence, Hechanova authorized the importation of 67000 tons of rice from abroad to the detriment of our local planters. Gonzales, then president of the Iloilo Palay and Corn Planters Association assailed the executive agreements. Gonzales averred that Hechanova is without jurisdiction or in excess of jurisdiction, because RA 3452 prohibits the importation of rice and corn by the Rice and Corn Administration or any other government agency. ISSUE: Whether or not RA 3452 prevails over the 2 executive agreements entered into by Macapagal. HELD: Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of laws, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws. In the event of conflict between a treaty and a statute, the one which is latest in point of time shall prevail, is not applicable to the case at bar, Hechanova not only admits, but, also, insists that the contracts adverted to are not treaties. No such justification can be given as regards executive agreements not authorized by previous legislation, without completely upsetting the principle of separation of powers and the system of checks and balances which are fundamental in our constitutional set up. As regards the question whether an executive or an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing that the SC may not be deprived of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error, as the law or the rules of court may provide, final judgments and decrees of inferior courts in All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question. In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

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Gonzales vs. Hechanova 9 SCRA 230

FACTS: Respondent Executive Secretary authorized the importation of 67,000 tons of foreign rice to be purchased from private sources. Thereupon, herein petitioner, Ramon A. Gonzales, a rice planter, and president of the Iloilo Palay and Corn Planters Association, filed the petition herein, averring that, in making or attempting to make said importation of foreign rice, the aforementioned respondents are acting without jurisdiction or in excess of jurisdiction, because Republic Act No. 2207, explicitly, prohibits the importation of rice and corn by the Rice and Corn Administration or any other government agency.

ISSUE: Whether an international agreement may be invalidated by our courts. HELD: The Constitution of the Philippines has clearly settled in the affirmative by providing in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in all cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order, or regulation is in question. In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but also, when it runs counter to an act of Congress. The alleged consummation of the aforementioned contracts with Vietnam and Burma does not render this case academic. Republic Act No. 2207 enjoins our government not from entering into contracts for the purchase of rice, but from entering rice, except under the conditions prescribed in said Act.

A judicial declaration of illegality of the proposed importation would not compel our Government to default in the performance of such obligations as it may have contracted with the sellers of rice in question because aside from the fact that said obligations may be complied without importing the said commodity into the Philippines, the proposed importation may still be legalized by complying with the provisions of the aforementioned laws.

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World Health Organization v. Aquino 48 SCRA 243

Facts:

Herein petitioner, in behalf of Dr. Verstuyft, was allegedly suspected by the Constabulary Offshore Action Center (COSAC) officers of carrying dutiable goods under the Customs and Tariff Code of the Philippines. Respondent Judge then issued a search warrant at the instance of the COSAC officers for the search and seizure of the personla effects of Dr. Verstuyft notwithstanding his being entitled to diplomatic immunity, as duly recognized by the Executive branch of the government.

The Secretary of Foreign Affairs Carlos P. Romulo advised the respondent judge that Dr. Verstuyft is entitled to immunity from search in respect for his personal baggage as accorded to members of diplomatic missions pursuant to the Host Agreement and further requested for the suspension of the search warrant. The Solicitor General accordingly joined the petitioner for the quashal of the search warrant but respondent judge nevertheless summarily denied the quashal.

Issue:

Whether or not personal effect of WHO Officer Dr. Verstuyft can be exempted from search and seizure under the diplomatic immunity.

Ruling:

The executive branch of the Phils has expressly recognized that Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the Host Agreement. The DFA formally advised respondent judge of the Philippine Government's official position. The Solicitor General, as principal law officer of the gorvernment, likewise expressly affirmed said petitioner's right to diplomatic immunity and asked for the quashal of the search warrant.

It recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of government, and where the plea of diplomatic immunity is recognized by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General in this case, or other officer acting under his discretion. Courts may not so exercise 217

their jurisdiction by seizure and detention of property, as to embarass the executive arm of the government in conducting foreign relations.

The Court, therefore, holds the respondent judge acted without jurisdiction and with grave abuse of discretion in not ordering the quashal of the search warrant issued by him in disregard of the diplomatic immunity of petitioner Verstuyft.

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Pimentel v. Executive Secretary Digest G.R. No. 158088 July 6, 2005

Facts:

1. The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippinesfor its concurrence pursuant to Sec. 21, Art VII of the 1987 Constitution.

2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the most serious crimes as genocide, crimes against humanity, war crimes and crimes of aggression as defined by the Statute. The Philippines through the Chargie du Affairs in UN. The provisions of the Statute however require that it be subject to ratification, acceptance or approval of the signatory state.

3. Petitioners contend that ratification of a treaty, under both domestic and international law, is a function of the Senate, hence it is the duty of the Executive Department to transmit the signed copy to the senate to allow it to exercise its discretion.

Issue: Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine mission to the U.N. even without the signature of the President.

The Supreme Court held NO.

1. The President as the head of state is the sole organ and authorized in the external relations and he is also the country's sole representative with foreign nations, He is the mouthpiece with respect to the country's foreign affairs.

2. In treaty-making, the President has the sole authority to negotiate with other states and enter into treaties but this power is limited by the Constitution with the 2/3 required vote of all the members of the Senate for the treaty to be valid. (Sec. 21, Art VII).

3. The legislative branch part is essential to provide a check on the executive in the field of foreign relations, to ensure the nation's pursuit of political maturity and growth.

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Secretary of Justice vs. Judge Lantion GR 139465 Facts: On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs of the United States requesting for the extradition of Mark Jimenez for various crimes in violation of US laws. In compliance with the related municipal law, specifically Presidential Decree No. 1069 Prescribing the Procedure for Extradition of Persons Who Have committed Crimes in a Foreign Country and the established Extradition Treaty Between the Government of the Philippines and the Government of the United States of America, the department proceeded with proceeded with the designation of a panel of attorneys to conduct a technical evaluation and assessment as provided for in the presidential decree and the treaty. The respondent requested for a copy of the official extradition request as well as the documents and papers submitted therein. The petitioner denied the request as it alleges that such information is confidential in nature and that it is premature to provide such document as the process is not a preliminary investigation but a mere evaluation. Therefore, the constitutional rights of the accused are not yet available. Issue: 1.Whether or not private respondent, Mark B. Jimenez, be granted access to the official extradition request and documents with an opportunity to file a comment on or opposition thereto 2.Whether or not private respondents entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-US Extradition Treaty Ruling: The Supreme Court ruled that the private respondent be furnished a copy of the extradition request and its supporting papers and to give him a reasonable period of time within which to file his comment with supporting evidence. In this case, there exists a clear conflict between the obligation of the Philippine Government to comply with the provisions of the treaty and its equally significant role of protection of its citizens of its right of due process. The processes outlined in the treaty and in the presidential decree already pose an impending threat to a prospective extraditees liberty as early as the evaluation stage. It is not an imagined threat to his liberty, but a very imminent one. On the other hand, granting due process to the extradition case causes delay in the process.The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The doctrine of incorporation is applied whenever municipal tribunals are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of a local state. Efforts should be done to harmonize them. In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts. The doctrine of incorporation decrees that rules of international law are given equal standing, but are not superior to, national legislative enactments.In this case, there is no conflict between international law and municipal law. The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens. In fact, neither the Treaty nor the Extradition Law precludes the rights of due process from a prospective extradite.

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PAUL JOSEPH WRIGHT vs. CA, G.R. No. 113213 August 15, 1994 FACTS: Australia and the Government of the Philippines in the suppression of crime, entered into a Treaty of Extradition on the 7th of March 1988. The said treaty was ratified in accordance with the provisions of Section 21, Article VII of the 1987 Constitution in a Resolution adopted by the Senate on September 10, 1990 and became effective 30 days after both States notified each other in writing that the respective requirements for the entry into force of the Treaty have been complied with. Petitioner contends that the provision of the Treaty giving retroactive effect to the extradition treaty amounts to an ex post facto law which ISSUE: violates Can Section an 21 extradition of Article treaty VI be of the Constitution. retroactively?

applied

HELD: Applying the constitutional principle, the Court has held that the prohibition applies only to criminal legislation which affects the substantial rights of the accused. This being so, there is no absolutely no merit in petitioner's contention that the ruling of the lower court sustaining the Treaty's retroactive application with respect to offenses committed prior to the Treaty's coming into force and effect, violates the Constitutional prohibition against ex post facto laws. As the Court of Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor a criminal procedural statute. It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified.

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Cuevaz v. Muoz (G.R. No. 140520; December 18, 2000) Facts: The Hong Kong Magistrates Court at Eastern Magistracy issued a warrant for the arrest of respondent Juan Antonio Muoz for seven (7) counts of accepting an advantage as an agent and seven (7) counts of conspiracy to defraud, contrary to the common law of Hong Kong The Department of Justice received a request for the provisional arrest of the respondent from the Mutual Legal Assistance Unit, International Law Division of the Hong Kong Department of Justice pursuant to Article 11(1) of the RP-Hong Kong Extradition Agreement. Upon application of the NBI, RTC of Manila issued an Order granting the application for provisional arrest and issuing the corresponding Order of Arrest. Consequently, respondent was arrested pursuant to the said order, and is currently detained at the NBI detention cell. Respondent filed with the Court of Appeals, a petition for certiorari, prohibition and mandamus with application for preliminary mandatory injunction and/or writ of habeas corpus assailing the validity of the Order of Arrest. The Court of Appeals rendered a decision declaring the Order of Arrest null and void on the grounds, among others that the request for provisional arrest and the accompanying warrant of arrest and summary of facts were unauthenticated and mere facsimile copies which are insufficient to form a basis for the issuance of the Order of Arrest. Thus, petitioner Justice Serafin R. Cuevas, in his capacity as the Secretary of the Department of Justice, lost no time in filing the instant petition. Issue: Whether or not the request for provisional arrest of respondent and its accompanying documents must be authenticated. Held: The request for provisional arrest of respondent and its accompanying documents is valid despite lack of authentication. There is no requirement for the authentication of a request for provisional arrest and its accompanying documents. The enumeration in the provision of RP-Hong Kong Extradition Agreement does not specify that these documents must be authenticated copies. This may be gleaned from the fact that while Article 11(1) does not require the accompanying documents of a request for provisional arrest to be authenticated, Article 9 of the same Extradition Agreement makes authentication a requisite for admission in evidence of any document accompanying a request for surrender or extradition. In other words, authentication is required for the request for surrender or extradition but not for the request for provisional arrest. The RP-Hong Kong Extradition Agreement, as they are worded, serves the purpose sought to be achieved by treaty stipulations for provisional arrest. The process of preparing a formal request for extradition and its accompanying documents, and transmitting them through diplomatic channels, is not only time-consuming but also leakage-prone. There is naturally a great likelihood of flight by criminals who get an intimation of the pending request for their extradition. To solve this problem, speedier initial steps in the form of treaty stipulations for provisional arrest were formulated. Thus, it is an accepted practice for the requesting state to rush its request in the form of a telex or diplomatic cable. Respondents reliance on Garvida v. Sales, Jr. is misplaced. The proscription against the admission of a pleading that has been transmitted by facsimile machine has no application in the case at bar for obvious reasons. First, the instant case does not involve a pleading; and second, unlike the COMELEC Rules of Procedure which do not sanction the filing of a pleading by means of a facsimile machine, P.D. No. 1069 and the RP Hong Kong Extradition Agreement do not prohibit the transmission of a request for provisional arrest by means of a fax machine.

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Govt of Hong Kong vs. Olalia, G.R. No. 153675, April 19, 2007 This case discusses whether the right to bail guaranteed under the Bill of Rights extends to a prospective extradite in an extradition1 proceeding. On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997. The Petitioner is the Government of Hong Kong Special Administrative Region, represented by the Philippine Department of Justice The Respondents are Judge Felix Olalia and Juan Antonio Muoz Facts: Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong Kong. Warrants of arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge. On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent. The RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same day, the NBI agents arrested and detained him. Private respondent filed a petition for bail which was opposed by petitioner. After hearing, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk." Judge Bernardo, Jr. inhibited himself from further hearing the case, it was then raffled off to Branch 8 presided by respondent judge. Private respondent filed a motion for reconsideration of the Order denying his application for bail and this was granted by respondent judge. Petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent judge. Hence, the instant petition. Issue: Whether or not respondent judge acted with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee. Held: No. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice. Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail. Ratio: The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. Clearly, the right of
1

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the removal of

an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government."

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a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired. Extradition is not a trial to determine the guilt or innocence of the potential extraditee. Nor is it a full-blown civil action, but one that is merely administrative in character. Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment. It does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditees ri ghts to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. In his Separate Opinion in Purganan, then Associate Justice Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court. In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence." WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch.

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Govt. of the USA vs. Purganan, G.R. No. 148571, Sept. 24, 2002 FACTS: Pursuant to the existing RP-US Extradition Treaty, the US Government requested the extradition of Mark Jimenez. A hearing was held to determine whether a warrant of arrest should be issued. Afterwards, such warrant was issued but the trial court allowed Jimenez to post bail for his provisional liberty. ISSUE:

Whether or not extraditee is entitled to notice and hearing before issuance of warrant of arrest Whether or not the right to bail is available in extradition proceedings

RULING: Five Postulates of Extradition 1. Extradition Is a Major Instrument for the Suppression of Crime. First, extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest and the custodial transfer of a fugitive from one state to the other. With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. Today, a majority of nations in the world community have come to look upon extradition as the major effective instrument of international co-operation in the suppression of crime.[30] It is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law. xxx Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in order to improve our chances of suppressing crime in our own country. 2. The Requesting State Will Accord Due Process to the Accused Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each others legal system and judicial process. More pointedly, our duly authorized representatives signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited. That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality. 3. The Proceedings Are Sui Generis

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Third, as pointed out in Secretary of Justice v. Lantion, extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis -- in a class by itself -- they are not. An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x. xxxxxxxxx There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nations foreign relations before making the ultimate decision to extradite. Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited. Such determination during the extradition proceedings will only result in needless duplication and delay. Extradition is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction. The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable. 4. Compliance Shall Be in Good Faith. Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national interest. Fulfilling our obligations under the Extradition Treaty promotes comity with the requesting state. On the other hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity. Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty. This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. In other words, [t]he demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender. Accordingly, the Philippines must be ready and in a position to deliver the accused, 226

should it be found proper. 5. There Is an Underlying Risk of Flight Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in the experience of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee. Indeed, extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting country. Prior acts of herein respondent -- (1) leaving the requesting state right before the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable -- eloquently speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances point to an ever-present, underlying high risk of flight. He has demonstrated that he has the capacity and the will to flee. Having fled once, what is there to stop him, given sufficient opportunity, from fleeing a second time? Due Process Is an extraditee entitled to notice and hearing before the issuance of a warrant of arrest? It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word immediate to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, receiving facts and arguments from them, and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can no longer be considered immediate. The law could not have intended the word as a mere superfluity but, on the whole, as a means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should be issued. By using the phrase if it appears, the law further conveys that accuracy is not as important as speed at such early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual situation, immediately upon the filing of the petition. From the knowledge and the material then available to it, the court is expected merely to get a good first impression -- a prima facie finding -- sufficient to make a speedy initial determination as regards the arrest and detention of the accused. xxx Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest. It provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination -- under oath or affirmation -- of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused before the issuance of warrants of arrest. 227

xxx At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses. In the present case, validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of extraditions. That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a more restrictive one -- not the opposite -- would be justified in view of respondents demonstrated predisposition to flee. Right to Bail Extradition Different from Ordinary Criminal Proceedings We agree with petitioner. As suggested by the use of the word conviction, the constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. Exceptions to the No Bail Rule The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave abuse of discretion and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights. Furthermore, we believe that the right to due process is 228

broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the life, liberty or property of every person. It is dynamic and resilient, adaptable to every situation calling for its application. Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. In short, while this Court is ever protective of the sporting idea of fair play, it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. Bail is a Matter of Discretion on the part of Appellate Court

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US GOVERNMENT VS. JUDGE PURUNGAN [389 SCRA 623; G.R. NO. 148571, 24 SEPT 2002] Monday, February 02, 2009 Posted by Coffeeholic Writes Labels: Case Digests, Political Law

Facts: The United States of America, pursuant to the existing RP-US extradition treaty, requested the extradition of Mark B. Jimenez. Upon receipt of the request, the secretary of foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action. In such event, the RTC held that Jimenez shell be deprived of the right to notice and hearing during the evaluation stage of the extradition process. Thereafter the US government, through DOJ, filed Petition for Extradition and Jimenezs immediate arrest, to avoid flight. Before the RTC could render its decision, Jimenez filed an "UrgentManifestation/Ex-Parte Motion," praying that his application for an arrest warrant be set for hearing, which was granted. During which, the lower court issued its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and fixing bail for his temporary liberty at one million pesos in cash. After Jimenez had surrendered his passport and posted the required cash bond, he was grantedprovisional liberty via the challenged Order dated July 4, 2001. Thus, Petition prays for the lifting of the bail Order, the cancellation of the bond, and the taking of Jimenez into legal custody.

Issues:

(1) Whether or not Jimenez is entitled to notice and hearing before a warrant for his arrest can be issued.

(2) Whether or not he is entitled to bail and to provisional liberty while the extradition proceedings are pending.

Held: By nature, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity. Hence, if the judge is convinced that a prima facie case exists, he immediately Issue a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition. Potential extraditees are entitled to the rights to due processand to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during the hearingson the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. 230

After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community; and (b) there exist special, humanitarian or compelling circumstances. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case.

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