Arsenio Lumiqued vs Apolonio Exevea

282 SCRA 125 (89 SCAD 151) – Political Law – Constitutional Law – Due Process; Administrative
Bodies – Assistance by Counsel
Law on Public Officers – Right to Due Process – Public Office is Not a Property
Arsenio Lumiqued was the Regional Director of DAR-CAR. He was charged by Jeannette
Zamudio, the Regional Cashier, for dishonesty due to questionable gas expenses under his
office. It was alleged that he was falsifying gas receipts for reimbursements and that he had an
unliquidated cash advance worth P116,000.00. Zamudio also complained that she was unjustly
removed by Lumiqued two weeks after she filed the two complaints. The issue was referred to
the DOJ. Committee hearings on the complaints were conducted on July 3 and 10, 1992, but
Lumiqued was not assisted by counsel. On the second hearing date, he moved for its resetting
to July 17, 1992, to enable him to employ the services of counsel. The committee granted the
motion, but neither Lumiqued nor his counsel appeared on the date he himself had chosen, so
the committee deemed the case submitted for resolution. The Investigating Committee
recommended the dismissal of Lumiqued. DOJ Sec Drilon adopted the recommendation. Fidel
Ramos issued AO 52 dismissing Lumiqued.
Lumiqued appealed averring that his right to due process was violated as well as his right to
security of tenure.
ISSUE: Does the due process clause encompass the right to be assisted by counsel during an
administrative inquiry?
HELD: No. The right to counsel, which cannot be waived unless the waiver is in writing and in the
presence of counsel, is a right afforded a suspect or an accused during custodial investigation. It
is not an absolute right and may, thus, be invoked or rejected in a criminal proceeding and, with
more reason, in an administrative inquiry. In the case at bar, Lumiqued invoked the right of an
accused in criminal proceedings to have competent and independent counsel of his own
choice. Lumiqued, however, was not accused of any crime. The investigation conducted by the
committee was for the purpose of determining if he could be held administratively liable under
the law for the complaints filed against him. The right to counsel is not indispensable to due
process unless required by the Constitution or the law.
“. . . There is nothing in the Constitution that says that a party in a non-criminal proceeding is
entitled to be represented by counsel and that, without such representation, he shall not be
bound by such proceedings. The assistance of lawyers, while desirable, is not indispensable. The
legal profession was not engrafted in the due process clause such that without the participation
of its members, the safeguard is deemed ignored or violated. The ordinary citizen is not that
helpless that he cannot validly act at all except only with a lawyer at his side.”
In administrative proceedings, the essence of due process is simply the opportunity to explain
one’s side. Whatever irregularity attended the proceedings conducted by the committee was
cured by Lumiqued’s appeal and his subsequent filing of motions for reconsideration.
The Supreme Court also emphasized that the constitutional provision on due process safeguards
life, liberty and property. Public office is a public trust. It is not a property guaranteed of due
process. But when the dispute concerns one’s constitutional right to security of tenure, however,
public office is deemed analogous to property in a limited sense; hence, the right to due
process could rightfully be invoked. Nonetheless, the right to security of tenure is not absolute
especially when it was proven, as in this case, that the public officer (Lumiqued) did not live up
to the Constitutional precept i.e., that all public officers and employees must serve with
responsibility, integrity, loyalty and efficiency.
Secretary of Justice vs Judge Lantion
GR 139465 Jan 18 2000

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 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-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 extraditee’s 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.
 Government Of The USA V. Hon. Purganan (2002)
GR. NO. 148571 Sept. 24 2002

Lessons: Extradition Process, Bail on Extradition, Right of Due Process and Fundamental Fairness in Extradition

Laws: Bill of Rights, PD 1069, US-Phil Extradition Treaty

FACTS:

Petition is a sequel to the case “Sec. of Justice v. Hon. Lantion”. The Secretary was ordered to furnish Mr.
Jimenez 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. But, on motion for reconsideration by the Sec. of
Justice, it reversed its decision but held that the Mr. Jimenez was bereft of the right to notice and hearing during
the evaluation stage of the extradition process. On May 18, 2001, the Government of the USA, represented by
the Philippine Department of Justice, filed with the RTC, the Petition for Extradition praying for the issuance of an
order for his “immediate arrest” pursuant to Sec. 6 of PD 1069 in order to prevent the flight of Jimenez. Before the
RTC could act on the petition, Mr. Jimenez filed before it an “Urgent Manifestation/Ex-Parte Motion” praying for
his application for an arrest warrant be set for hearing. After the hearing, as required by the court, Mr. Jimenez
submitted his Memorandum. Therein seeking an alternative prayer that in case a warrant should issue, he be
allowed to post bail in the amount of P100,000. The court ordered the issuance of a warrant for his arrest and
fixing bail for his temporary liberty at P1M in cash. After he had surrendered his passport and posted the required
cash bond, Jimenez was granted provisional liberty.

Government of the USA filed a petition for Certiorari under Rule 65 of the Rules of Court to set aside the order
for the issuance of a warrant for his arrest and fixing bail for his temporary liberty at P1M in cash which the court
deems best to take cognizance as there is still no local jurisprudence to guide lower court.

ISSUES:
i. Whether or NOT Hon. Purganan 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. Whether or NOT Hon. Purganan 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
iii. Whether or NOT there is a violation of due process

HELD: Petition is GRANTED. Bail bond posted is CANCELLED. Regional Trial Court of
Manila is directed to conduct the extradition proceedings before it.

i. YES.

By using the phrase “if it appears,” the law further conveys that accuracy is not as
important as speed at such early stage. From the knowledge and the material then available to it, the court is
expected merely to get a good first impression or a prima facie finding sufficient to make a speedy initial
determination as regards the arrest and detention of the accused. 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. 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 also bears emphasizing at this point that
extradition proceedings are summary in nature. 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 which neither the Treaty nor the Law could have intended.

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. 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.

The Proper Procedure to “Best Serve The Ends Of Justice” In Extradition Cases
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
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 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.

ii. Yes.

The constitutional provision on bail on Article III, Section 13 of the Constitution, 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. In extradition,
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” finds application “only to
persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.”

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. 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

Bail is not a matter of right in extradition cases. It is subject to judicial discretion in the context of the peculiar
facts of each case. 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.

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. Therefore, his constituents
were or should have been prepared for the consequences of the extradition case. Thus, the court ruled against
his claim that his election to public office is by itself a compelling reason to grant him bail.

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. 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.

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.

iii. NO.

Potential extraditees are entitled to the rights to due process and to fundamental fairness. The doctrine of right
to due process and fundamental fairness does not always call for a prior opportunity to be heard. A subsequent
opportunity to be heard is enough. He will be given full opportunity to be heard subsequently, when the
extradition court hears the Petition for Extradition. 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.

It is also worth noting that before the US government requested the extradition of respondent, proceedings had
already been conducted in that country. He already had that opportunity in the requesting state; yet, instead of
taking it, he ran away.

Other Doctrines:

Five Postulates of Extradition

1) Extradition Is a Major Instrument for the Suppression of Crime

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

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) The Proceedings Are Sui Generis

An extradition proceeding is sui generis:

a) It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the
Bill of Rights. It 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.
b) An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial.
c) 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”
d) 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.

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. 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.

We are bound by pacta sunt servanda to comply in good faith with our obligations
under the Treaty. 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

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:
a) leaving the requesting state right before the conclusion of his indictment proceedings there; and
b) 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
Extradition is Essentially Executive
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.
 PGBI v. COMELEC
G.R. No.190529 : April 29, 2010

PHILIPPINE GUARDIANS BROTHERHOOD, INC. (PGBI), represented by its Secretary-General GEORGE FGBF GEORGE
DULDULAO, Petitioner, v.COMMISSION ON ELECTIONS, Respondent.

FACTS:

For the upcoming May 2010 elections, the COMELECen banc issued on October 13, 2009 Resolution No. 8679
deleting several party-list groups or organizations from the list of registered national, regional or sectoral parties,
organizations or coalitions.Among the party-list organizations affected was PGBI; it was delisted because it failed
to get 2% of the votes cast in 2004 and it did not participate in the 2007 elections.PGBI filed its Opposition to
Resolution No. 8679, but likewise sought, through its pleading, the admission ad cautelam of its petition for
accreditation as a party-list organization under the Party-List System Act. The COMELEC denied PGBIs
motion/opposition for lack of merit.

ISSUE: Whether or not there is legal basis for delisting PGBI.

HELD: COMELEC's decision is annulled.

POLITICAL LAW: delisting of any national, regional or sectoral party

The law is clear the COMELEC may motu proprio or upon verified complaint of any interested party, remove or
cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or
coalition if it: (a)fails to participate in the last two (2) preceding elections;or(b)fails to obtain at least two per
centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in
which it has registered. The word or is a disjunctive term signifying disassociation and independence of one thing
from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies,as a
disjunctive word. Thus, the plain, clear and unmistakable language of the law provides for two (2) separate
reasons for delisting.

To reiterate, (a) Section 6(8) of RA 7941 provides for two separate grounds for delisting; these grounds cannot be
mixed or combined to support delisting; and (b) the disqualification for failure to garner 2% party-list votes in two
preceding elections should now be understood to mean failure to qualify for a party-list seat in two preceding
elections for the constituency in which it has registered.This is how Section 6(8) of RA 7941 should be understood
and applied.

PGBIs situation a party list group or organization that failed to garner 2% in a prior election and immediately
thereafter did not participate in the preceding election is something that is not covered by Section 6(8) of RA
7941.From this perspective, it may be an unintended gap in the law and as such is a matter for Congress to
address.The Court cannot and do not address matters over which full discretionary authority is given by the
Constitution to the legislature; to do so will offend the principle of separation of powers.If a gap indeed exists,
then the present case should bring this concern to the legislatures notice.

On the due process issue, PGBI's right to due process was not violated for PGBI was given an opportunity to seek,
as it did seek, a reconsideration of Resolution No. 8679.The essence of due process is simply the opportunity to be
heard; as applied to administrative proceedings, due process is the opportunity to explain ones side or the
opportunity to seek a reconsideration of the action or ruling complained of.A formal or trial-type hearing is not at
all times and in all instances essential.The requirement is satisfied where the parties are afforded fair and
reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is absolute lack of
notice and hearing. PGBI was not denied due process.In any case, given the result of this Resolution, PGBI has no
longer any cause for complaint on due process grounds.