Political Law - New Cases Sandoval 2003

8/3/2019 Political Law - New Cases Sandoval 2003

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SELECTED NEW DECISIONS IN POLITICAL LAW AND PUBLIC INTERNATIONAL LAWAttorney EDWIN REY SANDOVAL, Professor of Law (December 3, 2002 May 28, 2003)

Victorino Dennis M. Socrates v. The Commission on Elections G.R. No. 154512, November 12, 2002En Banc [Carpio]

This case involved Mayor Edward S. Hagedorn of Puerto Princesa City whoran and won in the Special Recall Election held in that City on September 24, 2002. Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998elections and served in full his three consecutive terms as Mayor of Puerto Princesa. Under the Constitution and the Local Government Code, Hagedorn could nolonger run for mayor in the 2001 elections. The Constitution and the Local Government Code disqualified Hagedorn, who had reached the maximum three-term limit,from running for a fourth consecutive term as mayor. In the 2001 elections, heran for Governor of the Province of Palawan and lost. Socrates ran and won asMayor of Puerto Princesa in that election. After Hagedorn ceased to be mayor onJune 30, 2001, he became a private citizen. On July 2, 2002, the Preparatory Recall Assembly (PRA) of Puerto Princesa City adopted a Resolution calling for th

e recall of the incumbent Mayor Socrates. The COMELEC scheduled a special recall election for Mayor on September 24, 2002.

Is Mayor Hagedorn qualified to run again for Mayor of that City considering the circumstances?

Held:

The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution x x x.

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government Code x x x.

These constitutional and statutory provisions have two parts. The firstpart provides that an elective local official cannot serve for more than threeconsecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service orconsecutive terms.

After three consecutive terms, an elective local official cannot seek im

mediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service.

X x x

Clearly, what the Constitution prohibits is an immediate reelection fora fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelecti

on is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term.


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Neither does the Constitution prohibit one barred from seeking immediatereelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. The debates in the Constitutional Commission evidently show that the prohibited electionreferred to by the framers of the Constitution is the immediate reelection afterthe third term, not any other subsequent election.

If the prohibition on elective local officials is applied to any election within the three-year full term following the three-term limit, then Senatorsshould also be prohibited from running in any election within the six-year fullterm following their two-term limit. The constitutional provision on the term limit of Senators is worded exactly like the term limit of elective local officials x x x.

X x x

In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate reelection after his third consecutive term whic

h ended on June 30, 2001. The immediate reelection that the Constitution barredHagedorn from seeking referred to the regular elections in 2001. Hagedorn didnot seek reelection in the 2001 elections.

Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served in full his three consecutive terms as mayor of PuertoPrincesa. Under the Constitution and the Local Government Code, Hagedorn couldno longer run for mayor in the 2001 elections. The Constitution and the Local Government Code disqualified Hagedorn, who had reached the maximum three-term limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did notrun for mayor in the 2001 elections. Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of September 24, 2002

when he won by 3,018 votes over his closest opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002, themayor of Puerto Princesa was Socrates. This period is clearly an interruption in the continuity of Hagedorns service as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorns three consecutive termsended on June 30, 2001. Hagedorns new recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorns previous three-terms with his new recall term to make the recall term a fourth consecutive term because factually it is not. An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive character of Hagedorns service as mayor.

In Lonzanida v. Comelec (311 SCRA 602 [1999]), the Court had occasion toexplain interruption of continuity of service in this manner:

x x x The second sentence of the constitutional provision under scrutiny states,Voluntary renunciation of office for any length of time shall not be consideredas an interruption in the continuity of service for the full term for which he was elected. The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office andat the same time respect the peoples choice and grant their elected official fullservice of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three-term limit

; conversely, involuntary severance from office for any length of time short ofthe full term provided by law amounts to an interruption of continuity of service. x x x.) (Emphasis supplied)


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In Hagedorns case, the nearly 15-month period he was out of office, although short of a full term of three years, constituted an interruption in the continuity of his service as mayor. The Constitution does not require the interruption or hiatus to be a full term of three years. The clear intent is that interruption for any length of time, as long as the cause is involuntary, is sufficient to breakan elective local officials continuity of service.

In the recent case of Adormeo v. Comelec and Talaga (G.R. No. 147927, February 4, 2002), a unanimous Court reiterated the rule that an interruption consisting of a portion of a term of office breaks the continuity of service of an elective local official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive full terms as mayor of Lucena city. In his third bid for election as mayorin 1998, Talaga lost to Bernard G. Tagarao. However, in the recall election ofMay 12, 2000, Talaga won and served the unexpired term of Tagarao from May 12,2000 to June 30, 2001. When Talaga ran again for mayor in the 2001 elections, Raymundo Adormeo, the other candidate for mayor, petitioned for Talagas disqualification on the ground that Talaga had already served three consecutive terms as mayor.

Thus, the issue in Adormeo was whether Talagas recall term was a continuation of his previous two terms so that he was deemed to have already served three consecutive terms as mayor. The Court ruled that Talaga was qualified to runin the 2001 elections, stating that the period from June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted the continuity of his service as mayor. Talagas recall term as mayor was not consecutive to his previous two terms because of this interruption, there having been a break of almost two years during which time Tagarao was the mayor.

We held in Adormeo that the period an elective local official is out ofoffice interrupts the continuity of his service and prevents his recall term from being stitched together as a seamless continuation of his previous two consecu

tive terms. In the instant case, we likewise hold that the nearly 15 months Hagedorn was out of office interrupted his continuity of service and prevents his recall term from being stitched together as a seamless continuation of his previous three consecutive terms. The only difference between Adormeo and the instantcase is the time of the interruption. In Adormeo, the interruption occurred after the first two consecutive terms. In the instant case, the interruption happened after the first three consecutive terms. In both cases, the respondents were seeking election for a fourth term.

In Adormeo, the recall term of Talaga began only from the date he assumed office after winning the recall election. Talagas recall term did not retroactto include the tenure in office of his predecessor. If Talagas recall term wasmade to so retroact, then he would have been disqualified to run in the 2001 elections because he would already have served three consecutive terms prior to the2001 elections. One who wins and serves a recall term does not serve the fullterm of his predecessor but only the unexpired term. The period of time prior to the recall term, when another elective official holds office, constitutes an interruption in continuity of service. Clearly, Adormeo established the rule that the winner in the recall election cannot be charged or credited with the fullterm of three years for purposes of counting the consecutiveness of an electiveofficials terms in office.

In the same manner, Hagedorns recall term does not retroact to include the tenure in office of Socrates. Hagedorn can only be disqualified to run in theSeptember 24, 2002 recall election if the recall term is made to retroact to Ju

ne 30, 2001, for only then can the recall term constitute a fourth consecutive term. But to consider Hagedorns recall term as a full term of three years, retroacting to June 30, 2001, despite the fact that he won his recall term only last S


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eptember 24, 2002, is to ignore reality. This Court cannot declare as consecutive or successive terms of office which historically and factually are not.

Worse, to make Hagedorns term retroact to June 30, 2001 creates a legal fiction that unduly curtails the freedom of the people to choose their leaders through popular elections. The concept of term limits is in derogation of the sovereign will of the people to elect the leaders of their own choosing. Term limi

ts must be construed strictly to give the fullest possible effect to the sovereign will of the people. X x x

A necessary consequence of the interruption of continuity of service isthe start of a new term following the interruption. An official elected in recall election serves the unexpired term of the recalled official. This unexpiredterm is in itself one term for purposes of counting the three-term limit. Thisis clear from the following discussion in the Constitutional Commission x x x.

Although the discussion referred to special elections for Senators and Representatives of the House, the same principle applies to a recall election oflocal officials. Otherwise, an elective local official who serves a recall term

can serve for more than nine consecutive years comprising of the recall term plus the regular three full terms. A local official who serves a recall term should know that the recall term is in itself one term although less than three years. This is the inherent limitation he takes by running and winning in the recall election.

Collateral Issue

Socrates also claims that the PRA members had no authority to adopt theRecall Resolution on July 2, 2002 because a majority of PRA members were seekinga new electoral mandate in the barangay elections scheduled on July 15, 2002.

Held:

This argument deserves scant consideration considering that when the PRA

members adopted the Recall Resolution their terms of office had not yet expired.They were all de jure sangguniang barangay members with no legal disqualificat

ion to participate in the recall assembly under Section 70 of the Local Government Code.

Melanio L. Mendoza and Mario E. Ibarra v. Commission on Elections and Leonardo B. Roman G.R. No. 149736, December 17, 2002En Banc

For resolution is a petition for certiorari filed by petitioners x x x seeking to set aside the resolution of the Commission on Elections x x x and to declare respondent Leonardo B. Romans election as governor of Bataan on May 14, 2001 as null and void for allegedly being contrary to Art. X, Sec. 8 of the Constitution x x x.

After due deliberation, the Court voted 8 to 7 to DISMISS the petition.

VITUG, J., joined by YNARES-SANTIAGO, J., voted to dismiss the petition.He contended that as revealed by the records of the Constitutional Commission,the Constitution envisions a continuous and an uninterrupted service for three full terms before the proscription applies. Therefore, not being a full term, arecall term should not be counted or used as a basis for the disqualification wh

ether served prior (as in this case) or subsequent (as in the Socrates case) tothe nine-year, full three-term limit.


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MENDOZA, J., in whose opinion QUISUMBING, J., joined, voted to dismiss the petition on the ground that, in accordance with the ruling in Borja, Jr. v. COMELEC, 295 SCRA 157 [1998]; Arcos v. COMELEC, G.R. No. 133639, Oct. 6, 1998 (res.); Lonzanida v. COMELEC, 311 SCRA 602 [1999]; and Adormeo v. COMELEC, G.R. No.147927, Feb. 4, 2002, a term during which succession to a local elective officetakes place or a recall election is held should not be counted in determining whether an elective local official has served more than three consecutive terms.

He argued that the Constitution does not prohibit elective local officials fromserving for more than three consecutive terms because, in fact, it excludes fromthe three-term limit interruptions in the continuity of service, so long as such interruptions are not due to the voluntary renunciation of the office by the incumbent. Hence, the period from June 28, 1994 to June 30, 1995, during which respondent Leonardo B. Roman served as governor of Bataan by virtue of a recall election held in 1993, should not be counted. Since on May 14, 2001 respondent had previously served as governor of Bataan for only two consecutive terms (1995-1998 and 1998-2001), his election on that day was actually only his third term for the same position.

PANGANIBAN, J., joined by PUNO, J., also voted to dismiss the petition.

He argued that a recall term should not be considered as one full term, becausea contrary interpretation would in effect cut short the elected officials serviceto less than nine years and shortchange his constituents. The desire to prevent monopoly of political power should be balanced against the need to uphold thevoters obvious preference who, in the present case, is Roman who received 97 percent of the votes cast. He explained that, in Socrates, he also voted to affirmthe clear choice of the electorate, because in a democracy the people should, asmuch as legally possible, be governed by leaders freely chosen by them in credible elections. He concluded that, in election cases, when two conflicting legalpositions are of almost equal weight, the scales of justice should be tilted infavor of the peoples overwhelming choice.

AZCUNA, J., joined by BELLOSILLO, J., also voted to dismiss, arguing that

it is clear from the constitutional provision that the disqualification appliesonly if the terms are consecutive and the service is full and continuous. Hence, service for less than a term, except only in case of voluntary renunciation,should not count to disqualify an elective local official from running for the same position. This case is different from Socrates, where the full three consecutive terms had been continuously served so that disqualification had clearly attached.

On the other hand, SANDOVAL-GUTIERREZ, J., with whom DAVIDE, C.J., and AUSTRIA-MARTINEZ, CORONA, and CALLEJO, SR., JJ., concurred, holds the view that the recall term served by respondent Roman, comprising the period June 28, 1994 toJune 30, 1995, should be considered as one term. Since he thereafter served for two consecutive terms from 1995 to 1998 and from 1998 to 2001, his election onMay 14, 2001 was actually his fourth term and contravenes Art. X, Sec. 8 of theConstitution. For this reason, she voted to grant the petition and to declarerespondents election on May 14, 2002 as null and void.

CARPIO, J., joined by CARPI0-MORALES, J., also dissented and voted to grant the petition. He held that a recall term constitutes one term and that to totally ignore a recall term in determining the three-term limit would allow localofficials to serve for more than nine consecutive years contrary to the manifest intent of the framers of the Constitution. He contended that respondent Romanselection in 2001 cannot exempt him from the three-term limit imposed by the Constitution.

WHEREFORE, THE PETITION FOR CERTIORARI IS DISMISSED.

THE SEPARATE OPINIONS OF THE JUSTICES ARE HERETO ATTACHED AS PART OF THIS


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RESOLUTION.

Separate Opinion, Vitug, J.

Petitioners would seek the disqualification of respondent Leonardo B. Roman on the ground of his having transgressed the three-term limit under Section8, Article X, of the 1987 Constitution and Section 43 of Republic Act No. 7160 (

Local Government Code) x x x.

X x x

The focal issue presented before the Court x x x would revolve on the question of whether or not private respondent Roman exceeded the three-term limitfor elective local officials, expressed in the Constitution and the Local Government Code, when he again ran for the position of Governor in the 14th of May 2001 elections, having occupied and served in that position following the 1993 recall elections, as well as the 1995 and 1998 regular elections, immediately priorto the 2001 elections. In fine, should respondents incumbency to the post of Governor following the recall elections be included in determining the three-consec

utive term limit fixed by law?

In order that the three-consecutive term limit can apply, two conditionsmust concur, i.e., (1) that the elective local official concerned has been elected for three consecutive terms to the same local government position, and (2) that he has served three consecutive full terms, albeit a voluntary renunciationof the office for any length of time shall not be deemed to be an interruption in the continuity of the service for the full term for which he is elected. Theconstitutional provision does not appear to be all that imprecise for and in itsapplication. Section 8, Article X, of the Constitution is explicit that the term of office of elective local officials x x x shall be three years which phrase is forthwith followed by its mandate that no such official shall serve for more than three consecutive terms, and that [v]oluntary renunciation of the office for an

y length of time shall not be considered as an interruption in the continuity ofhis service for the full term for which he [is] elected. The law evidently contemplates a continuous full three-year term before the proscription can apply.

The Constitutional Commission, in its deliberations, referred to a fullnine (9) years of service for each elective local government official in the application of the prohibition, envisioning at the same time a continuous and uninterrupted period of nine years by providing for only one exception, i.e., when anincumbent voluntarily gives up the office.

X x x

A winner who dislodges in a recall election an incumbent elective localofficial merely serves the balance of the latters term of office; it is not a full three-year term. It also goes without saying that an incumbent elective localofficial against whom a recall election is initiated and who nevertheless winsin a recall election must be viewed as being a continuing term of office and notas a break in reckoning his three consecutive terms. X x x

If involuntary severance from the service which results in the incumbentsbeing unable to finish his term of office because of his ouster through valid recall proceedings negates one term for purposes of applying the three-term limit,as so intimated in Lonzanida, it stands to reason that the balance of the term assumed by the newly elected local official in a recall election should not alsobe held to be one term in reckoning the three-term limit. In both situations, n

either the elective local official who is unable to finish his term nor the elected local official who only assumes the balance of the term of the ousted localofficial following the recall election could be considered to have served a full


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three-year term set by the Constitution.

This view is not inconsistent, but indeed in line, with the conclusion ultimately reached in Socrates v. Commission on Elections, where the Court has considered Hagedorn, following his three full terms of nine years, still qualifiedto run in a recall election conducted about a year and a half after the most recent regular local elections. A recall term then, not being a full three-year t

erm, is not to be counted or used as a basis for disqualification whether it isheld prior or subsequent to the nine year full three-term limit.

This same issue has been passed and ruled upon by the Commission on Elections no less than five times. Consistently, it has held that the term of a newcomer in recall elections cannot be counted as a full term and may not thus be included in counting the three-term limit prescribed under the law. The Commission on Elections, with its fact-finding facilities, its familiarity with political realities, and its peculiar expertise in dealing with election controversies,should be in a good vantage point to resolve issues of this nature. Concededly,no ready made formulae are always extant to address occasional complex issues,allowing time and experience to merely evolve and ultimately provide acceptable

solutions. In the administration of election laws, it would be unsound by an excessive zeal to remove from the Commission on Elections the initiative it takeson such questions which, in fact, by legal mandate properly belong to it (See Loong v. COMELEC, 305 SCRA 832, Pangandaman v. COMELEC, 319 SCRA 283).

Nor should it be ignored that the law here involved is a limitation on the right of suffrage not only on the candidate for office but also, and most importantly, on the electorate. Respondent Roman has won the election to the postof Governor of Bataan with a comfortable margin against his closest opponent. Where a candidate appears to be the clear choice of the people, doubts on the candidates eligibility, even only as a practical matter, must be so resolved as to respect and carry out, not defeat, the paramount will of the electorate. While the Constitution would attempt to prevent the monopolization of political power,

indeed a wise rule, the precept of preserving the freedom of choice of the people on who shall rightfully hold the reins of government for them is no less thanfundamental in looking at its overriding intent.

WHEREFORE, I vote to DISMISS the instant petition on the foregoing theses.

Government of the United States of America v. Hon. Guillermo Purganan G.R. No. 148571, September 24, 2002En Banc [Panganiban]

The United States Government requested the Philippine Government for theextradition of Mark Jimenez pursuant to the provisions of the RP-US ExtraditionTreaty to face trial for his alleged criminal offenses in the United States. The Department of Justice (DOJ) filed a Petition for his extradition with the RTCof Manila in accordance with the provisions of PD 1069 (The Philippine Extradition Law) and the RP-US Extradition Treaty.

Issues, Resolution, Principles and Guidelines in Extradition:

A. In extradition proceedings, are prospective extraditees entitled tonotice and hearing before their 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 twonovel questions is No.

X x x


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B. 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 custodial transfer (Bassiouni, International Extradition, 1987 ed., p. 68) of a fugitive from one state to the other.

With the advent of easier and faster means of international travel, theflight 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 inthe suppression of crime. (Bassiouni, supra, p. 21) 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 (Id., p. 67

).

X x x

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 country.

2. The Requesting State Will Accord Due Process to the Accused.

Second, an extradition treaty presupposes that both parties thereto haveexamined, and that both accept and trust, each others legal system and judicial

process (Coquia, On Implementation of the RP-US Extradition Treaty, The Lawyers Review, August 31, 2000, p. 4). More pointedly, our duly authorized representatives signature on an extradition treaty signifies our confidence in the capacity and willingness of the other state to protect the basic rights of the person sought to be extradited (See Bassiouni, p. 546; citing 221 US 508, 512 [1910]). Thatsignature 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 beensigned, 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 (Supra), 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.

X x x

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 (Secretary of Justice v. Lantion, supra.). Such determinatio0n 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 wi

th 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 (Shearer, Extradition in International Law, 1971 ed., p. 157). The ult


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imate 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 (Id., p. 545).

4. Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the E

xtradition 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 (In line with the Philippine policy of cooperation and amity with all nations setforth in Article II, Section 2, Constitution). On the other hand, failure to fulfill our obligations thereunder paints at bad image of our country before theworld community. Such failure would discourage other states from entering intotreaties with us, particularly an extradition treaty that hinges on reciprocity.

Verily, we are bound by pacta sunt servanda to comply in good faith withour obligations under the Treaty (Secretary of Justice v. Lantion, supra.). Thi

s 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 tomake the surrender. (Wright v. Henkel, 190 U.S. 40, 62, March 23, 1903) 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 of the executive bra

nch: nothing short of confinement can ensure that the accused will not flee thejurisdiction of the requested state in order to thwart their extradition to therequesting state.

The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee. Indeed, extradition hearingswould not even begin, if only the accused were willing to submit to trial in therequesting country (Persily, International Extradition and the Right to Bail, 34Stan. J. Intl L. 407 [Summer 1988]). Prior acts of herein respondent (1) leavingthe requesting state right before the conclusion of his indictment proceedingsthere; 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 tostop him, given sufficient opportunity, from fleeing a second time?

C. Is Respondent entitled to Notice and Hearing Before the Issuance ofa Warrant of Arrest (in an Extradition proceeding)?

Both parties cite Section 6 of PD 1069 in support of their arguments. Xx x

Does this provision sanction RTC Judge Purganans act of immediately setti

ng for hearing the issuance of a warrant of arrest? We rule in the negative.

1. On the Basis of the Extradition Law


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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 imme

diate. The law could not have intended the word as a mere superfluity but, on the whole, as a means of impairing 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.

X x x

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. X x x

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 fro

m the Petition itself and its supporting documents. Hence, after having alreadydetermined 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.

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 atthat stage been intended, the law could have easily so provided. It also bearsemphasizing at this point that extradition proceedings are summary (See Sec. 9,PD 1069) in nature. Hence, the silence of the Law and the Treaty leans to themore reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings.

X x x

Verily x x x sending to persons sought to be extradited a notice of therequest 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 Treatynor 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. X x x


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To determine probable cause for the issuance of arrest warrants, the Cons

titution 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 (280 SCRA 365, October 9, 1997) and in all the cases cite

d 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 issuanceof a warrant of arrest. All we required was that the judge must have sufficientsupporting 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 existenceof probable cause.

In Webb v. De Leon (247 SCRA 652, 680, per Puno, J.), the Court categorically stated that a judge was not supposed to conduct a hearing before issuing awarrant of arrest x x x.

At most, in cases of clear insufficiency of evidence on record, judges me

rely further examine complainants and their witnesses (Ibid; citing Allado v. Diokno, 233 SCRA 192, May 5, 1994). 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 ac

tion 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.

X x x

D. Procedure to be Followed Once Extradition Petition is Filed in Court.

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 documentationor may personally examine the affiants and witnesses of the petitioner. If, inspite of this study and examination, no prima facie finding (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.) ispossible, 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 extrad

itee, 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 mustnot inform or notify the potential extraditee of the pendency of the petition,


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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 inextradition cases.

E. Is Respondent Entitled to Bail (in Extradition Proceedings)?

Extradition Different from Ordinary Criminal Proceedings

We agree with petitioner. As suggested by the use of the word conviction, the constitutional provision on bail x x x, as well as Section 4 of Rule 114 ofthe 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 ofinnocence 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, 1

971, per Fernando, Jr. [later CJ]) It follows that the constitutional provisionon bail will not apply to a case like extradition, where the presumption of innocence is not an 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 availableonly 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. (Sec. 18, Article VII, 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 righ

t 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 fo

r 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

X x x

Contrary to his contention, his detention prior to the conclusion of theextradition proceedings does not amount to a violation of his right to due process. We iterate the familiar doctrine that the essence of due process is the opportunity to be heard (Garcia v. NLRC, GR No. 110494, November 18, 1996; Paat v.Court of Appeals, January 10, 1997) but, at the same time, point out that the doctrine does not always call for a prior opportunity to be heard (See Central Bank of the Philippines v. Court of Appeals, 220 SCRA 536, March 20, 1993). Wherethe circumstances such as those present in an extradition case call for it, a subsequent opportunity to be heard is enough (Ibid. See also Busuego v. Court ofAppeals, 304 SCRA 473, March 11, 1999). 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 todue 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


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arrest and detention will not be arbitrary is sufficiently ensured by (1) the DOJs filing in court the Petition with its supporting 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 thathis arrest will best serve the ends of justice before the issuance of a warrantfor his arrest; and (3) his opportunity, once he is under the courts custody, toapply 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 processesprescribed under its laws. His invocation of due process now had thus become hollow. He already had that opportunity in the requesting state; yet, instead oftaking 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 Petit

ion for Extradition? His supposed immediate deprivation of liberty without dueprocess that he had previously shunned pales against the governments interest infulfilling its Extradition Treaty obligations and in cooperating with the worldcommunity in the suppression of crime. Indeed, [c]onstitutional liberties do notexist in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and palpable government interest. (Coquia, On the Implementation of the US-RP Extradition Treaty, supra; citing Kelso v. US Department of State, 13 F Supp. 291 [DDC 1998])

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 torun and hide. Hence, it would not be good policy to increase the risk of violating our treaty obligations if, through overprotection or excessively liberal tre

atment, persons sought to be extradited are able to evade arrest or escape fromour 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.

The denial of bail as a matter of course in extradition cases falls intoplace with and gives life to Article 14 (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.) of theTreaty, 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 placewith the emphasis of the Extradition Law on the summary nature of extradition cases and the need for their speedy disposition.

F. Exceptions to the No Bail Rule

The rule x x x 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 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 per

son. It is dynamic and resilient, adaptable to every situation calling for its application. (I.A. Cruz, Constitutional Law, 1998 ed., p. 98)


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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 aclear and convincing showing (1) that, once granted bail, the applicant will notbe 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 provi

sional 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 extraditionis basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakesof the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of thispower 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 ofthe sporting idea of fair play, it also recognizes the limits of its own prerogatives and the need to fulfill

international obligations.

G. Are There Special Circumstances Compelling Enough for the Court to Grant Jimenezs Request for Provisional Release on Bail?

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 (324 SCRA 689, February 3, 2000, per Ynares-Santiago, J.), the Court has already debunked the disenfranchisement argument x x x.

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 UnitedStates 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 reasonto 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 aresummary in nature. They are resorted to merely to determine whether the extradition petition and its annexes conform to the Extradition Treaty, not to determine his guilt or innocence. Neither is it, as a rule, intended to address issuesrelevant to the constitutional rights available to the accused in a criminal act

ion.

We are not overruling the possibility that petitioner may, in bad faith,


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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 anticipatoryand academic.

However, if the delay is due to maneuverings of respondent, with all themore reason would the grant of bail not be justified. Giving premium to delayby considering it as a special circumstance for the grant of bail would be tanta

mount to giving him the power to grant bail to himself. It would also encouragehim 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 tomean 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. T

hat 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 bythe 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 application for bail, which may be granted in accordance with the guidelines in this Decision.

H. Ten Points to Consider in Extradition Proceedings

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 tohave reposed its trust in the reliability or soundness of the legal and judicialsystem of its treaty partner; as well as in the ability and the willingness ofthe 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 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 giventhe opportunity.

4. Immediately upon receipt of the petition for extradition and its supp

orting documents, the judge shall make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the ExtraditionTreaty and Law, and whether the person sought is extraditable. The magistrate h


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as 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 b

ail. Since the applicants have a history of absconding, they have the burden ofshowing 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 bastionof 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 forthe prerogatives of the other co-equal 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 shouldnot 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 faithwith 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.Resolution of the Motion for Reconsideration G.R. No. 148571, December 17, 2002En Banc

First, private respondent insists that the Extradition Court acted properly in granting bail to him. We have already exhaustively discussed this issuein our Decision and in the Concurring Opinion of Mr. Justice Antonio T. Carpio.Thus, we will not belabor our ruling on this point. Suffice it to say that petitioners repeated invocation of the Extradition Courts grant of bail has not convinced us that he deserves bail under the exception laid down in our Decision x xx.

There has been no clear and convincing showing as to the absence of flight risk and the non-endangerment of the community, or as to the existence of spe


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cial, humanitarian and compelling circumstances justifying grant of bail.

Second, private respondent claims that our Decision did not make an express finding of grave abuse of discretion on the part of the lower court. This is incorrect. X x x

Further, contrary to Jimenezs claims, the Extradition Court did not negat

e the flight risk posed by him. It did not make a finding on flight risk as itconsidered the issue irrelevant, having already determined bail to be a matter of right. X x x

And in any event, in his Memorandum, private respondent submitted factual issues i.e., existence of special circumstances and absence of flight risk forthe consideration of this Court. He even reiterated some of those factual submissions in his Motion for Reconsideration. He is therefore deemed estopped to claim that this Court cannot, on certiorari, address factual issues and review and reverse the factual findings of the Extradition Court.

Third, private respondents arguments (1) that the Extradition Court exerc

ised due discretion in its grant of bail and (2) that ourruling that bail is nota matter of right in extradition cases is contrary to prevailing law and jurisp

rudence are neither novel nor deserving of further rebuttal. Again, they have been extensively taken up in our Decision as well as in Concurring, Separate and Dissenting Opinions.

Fourth, private respondent argues that allegedly our Decision violated his due process rights. Again, we have discussed this matter in our Decision saying that, in its simplest concept, due process is merely the opportunity to be heard which opportunity need not always be a prior one. In point of fact, private respondent has been given more than enough opportunity to be heard in this Court as well as in the Extradition Court. Even his Motion for Reconsideration hasbeen given all the chances to persuade by way of allowing additional arguments in

his Motion x x x and Reply. These latter pleadings are normally not allowed, but precisely because this Court wanted to give him more than enough opportunityto be heard and to argue, we have bent backwards and admitted these additional pleadings.

Finally, private respondent contends that as a member of Congress, he isimmune from arrest arising from offenses punishable by not more than six (6) years imprisonment, saying that he cannot be prevented from performing his legislative duties because his constituents would be disenfranchised. He perorates thata member of Congress may be suspended or removed from office only by two-thirdsvote of the House of Representatives. Citing People v. Jalosjos, our Decision has already debunked the disenfranchisement argument. Furthermore, our Decisiondoes not in any manner suspend or remove him from office. Neither his arrest ordetention arising from the extradition proceeding will constitute his suspension or removal form office. That is clear enough.

While equal protection and reasonable classifications are not directly in issue in this case, we nevertheless stress, paraphrasing Jalosjos, that respondents election to the position of congressman, with the concomitant duty to discharge legislative functions, does not constitute a substantial differentiation which warrants placing him in a classification or category apart from all other persons confined and deprived of their liberty pending resolution of their extradition cases. We reiterate that lawful arrest and temporary confinement of a potential extraditee are germane to the purposes of the law and apply to all those belonging to the same class.

As we have stated, the procedure adopted by the Extradition Court of first notifying and hearing a prospective extraditee before the actual issuance of


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the warrant for his arrest, is tantamount to giving notice to flee and avoid extradition. Whether a candidate for extradition does in fact go into hiding or not is beside the point. In the final analysis, the method adopted by the lower court was completely at loggerheads with the purpose, object and rationale of thelaw, and overlooked the evils to be remedied.

As already suggested in our Decision (p. 32), private respondent can avo

id arrest and detention which are the consequences of the extradition proceedingsimply by applying for bail before the courts trying the criminal cases againsthim in the USA. He himself has repeatedly told us that the indictments againsthim in the United States are bailable. Furthermore, he is capable, financiallyand otherwise, of producing the necessary bail in the US. Why then has he notdone so?

Otherwise stated, Respondent Jimenez has the actual power to lift his arrest and detention arising from his extradition by simply and voluntarily goingto and filing bail in the USA.

AT BOTTOM, private respondents Motion for Reconsideration presents no new

or substantial arguments which have not been presented in his prior pleadings and which have not been taken up in our Decision. His present allegations and asseverations are mere rehashes of arguments previously presented to us or are mere restatements of the Separate and Dissenting Opinions which were already adequately discussed in our Decision. In short, private respondent has not given anycompelling reason to warrant a reversal or modification of our earlier rulings.

Separate Opinion, Vitug, J.

Extradition is an exceptional measure running against the tradition of asylum. International Extradition is a process under which a sovereign state surrenders to another sovereign state a person accused in a case or a fugitive offender in the latter state [1]. The practice has its origins as early as the anci

ent Egyptian, Chinese, Chaldean and Assyro-Babylonian civilizations [2]. The surrender of a person who has been granted the privilege of presence or refuge inthe requested state is deemed to be an exceptional measure running against the tradition of asylum and hospitality of the requesting state, and it has given rise to the speculation that the term extradition evolved from what used to be then known as extra-tradition. [3] The widely accepted explanation for the term still appears to be the Latin original extradere on pacts and treaties. The first recorded extradition treaty in the world dates circa 1280 BC, where Rameses II, Pharaoh of Egypt, and King Hattusili III of the Hittites signed a peace treaty expressly providing for the return of persons sought by each sovereign taking refugein the territory of the other. Since then, however, only the practice of Greeceand Rome on extradition arrangements evidently found their way into European texts of international law [4]. The participants of the process remained the sameover time the two states and the individual sought to be extradited. But while, historically, extradition was for the purpose of obtaining the surrender of political offenders, the trend, starting in the 19th century, has been to refuse the extradition of a person sought for political crimes. This shift can be explained partly to the emergence of humanitarian international law which has given impetus to a new legal status of one of the participants, i.e., the individual, thus placing some limitations on the power of the respective sovereigns that didnot historically exist [5].

Extradition, nevertheless, does not find basis in Customary International Law.

International customary law is, as its name suggests, created by custom.It is one of the two (the other being treaties) primary law-creating processesof international law. Its evolution, according to Schwarzenberger [6], can be


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traced to the early development of a global society when international law consisted primarily of express agreements, which the parties freely accepted as legally binding between or among themselves. Little was taken for granted, and everything that was considered if only remotely relevant had been incorporated into the text of these treaties. Some of the rules were found to be so convenient andgenerally acceptable that their inclusion in the succeeding agreements gradually became non-essential. Time hardened them into customary international law. I

nternational customary law has two constitutive elements: (1) a general practiceof sovereign states and (2) the acceptance of the states of this general practice as law [7]. In the Lotus (1927) and Asylum (1950) cases, the World Court ruled that to prove the existence of a rule in international customary law, it is necessary to establish not only that States act a certain way but that they do sobecause they recognize a legal obligation to this effect, i.e., with or withouta treaty [8].

Despite its ancient roots, extradition, as it is presently exercised bystates, adopts the view represented by Puffendorf who argues that the duty to extradite is only an imperfect obligation which requires an explicit agreement inorder to become fully binding under international law and secure reciprocal righ

ts and duties of the contracting states [9]. The exception would be with respect to international crimes, such as terrorism and genocide, in which extraditionis seen as being a definite legal duty. As D.W. Grieg so bluntly puts it, thereexists no duty to extradite under customary international law [10]. Prevailingpractice among states indeed supports the conclusion that the duty to extraditecan be demanded only by virtue of a treaty, whether bilateral or multilateral [11]; conversely, in its absence, there is no legal right to demand and no corresponding obligation to extradite. Once, however, of course, an extradition treaty is concluded, respect for and compliance with the treaty obligation is, underthe international principle of pacta sunt servanda, expected from the states that enter into the agreement.

Neither can extradition be considered a generally accepted principle of

international law.

Article 38(1)(c) of the Statute of the International Court of Justice refers to the general principles of law recognized by civilized nations as being a source of law which comes after customary law, international conventions and treaties, all of which are based on the consent of nations [12]. Article 38(1)(c) is identified as being a secondary source of international law and therefore, not ranked at par with treaties and customary international law [13]. The phrase isinnately vague, and its exact meaning still eludes any general consensus. The widely preferred opinion, however, appears to be that of Oppenheim which views general principles of law as being inclusive of principles of private or municipal law when these are applicable to international relations [14]. Where, in certaincases, there is no applicable treaty nor a generality of state practice givingrise to customary law, the international court is expected to rely upon certainlegal notions of justice and equity in order to deduce a new rule for application to a novel situation [15]. This reliance or borrowing by the international tribunal from general principles of municipal jurisprudence is explained in many ways by the fact that municipal or private law has s higher level of development compared to international law. Brownlie submits that the term generally-accepted principles of international law could also refer to rules of customary law, to general principles of law, or to logical propositions resulting from judicial reasoning on the basis of existing international law and municipal law analogies [16].

In order to qualify as a product of the subsidiary law-creating process,

a principle of law must fulfill three requirements: (1) it must be a general principle of law as distinct from a legal rule of more limited functional scope, (2) it must be recognized by civilized nations, and (3) it must be shared by a fa


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ir number of states in the community of nations [17]. Examples of these principles, most of which are drawn from Roman law, encompasses rules on prescription,estoppel, res judicata [18], consent and pacta sunt servanda. It can also include generally accepted principles enshrined under the Universal Declaration of Human Rights, such as the basic human right to life and liberty without distinction as to race, color, sex, race language or religion, political or other opinion,nationality, social origin, property, birth or other status [19]. At the momen

t, extradition, at most a process resorted to by states under the policy of cooperation and comity with each other, does not qualify as a generally accepted principle of international law nor as being thereby incorporated and deemed part ofthe law of the land under Section 2, Article II, of the 1987 Philippine Constitution [20].

Clarifying the term generally-accepted principles of international law during the deliberations of the 1987 Constitutional Commission, Commissioner Rodolfo Azcuna points out that [w]hen we talk of generally-accepted principles of international as part of the law of the land, we mean that it is part of the statutory part of laws, not of the Constitution [21].

The remark is shared by Professor Merlin M. Magallona who expresses thatthe phrase as part of the law of the land in the incorporation clause refers to the levels of legal rules below the Constitution such as legislative acts and judicial decisions. Thus, he contends, it is incorrect to so interpret this phraseas including the Constitution itself because it would mean that the generally-accepted principles of international law falls in parity with the Constitution [22]. A treaty being the primary source of the obligation to extradite has given occasion to a lack of cohesive and uniform standards on extradition.

Not finding basis in customary law, and failing to qualify as a generally-accepted principle of international law, the present state of international law on the return of fugitives for trial is hypothesized by Brownlie: With the exception of alleged crimes under international law, surrender of an alleged crimina

l cannot be demanded of right in the absence of treaty. [23] The result has beena failure of consistency in extradition practice among states. Indeed, the reality is that there is to date no uniform standard applicable to all states. D.W. Gregg [24] attributes this lack of universal and cohesive standards in the extradition process to the adoption of a variety of procedures which can be as diverse as the contracting states would want them to be. In formulating their extradition treaties, contracting states insert particular provisions and stipulationsto address specific particularities in their relationships. Thus, extradition under American law is different from that under English law; to illustrate, the English Extradition Act of 1870 requires that the offense, for which a fugitive is to be extradited, be also considered a crime under English law. No such requirement, upon the other hand, exists under the US Extradition Act, which limits extraditable crimes to those enumerated under the treaty, regardless of whether thesame are considered crimes under its laws. While both England and the United States are amenable to extraditing their own nationals, France and Belgium absolutely refuse to do so. This refusal to surrender ones own nationals is likewise adopted by most states in Continental Europe which, under their own municipal laws, are obliged to unconditionally reject any request for the surrender of theirown nationals, preferring to try them under their own laws even though the offense is committed abroad. While Common Law countries require a prima facie showing of guilt before they surrender a fugitive, almost all other legal systems require only that the offense be committed in the jurisdiction of the demanding state [25]. In the United States, extradition is demanded with an opportunity for ajudicial hearing, while in other countries, extradition is exclusively an administrative function [26]. It may also happen that a single estate may have as ma

ny extradition processes as the number of extradition treaties it has with othercountries. Thus, while the general extradition process with England is governed by the Extradition Act of 1870, any extradition it may undertake with member s


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tates of the British Commonwealth is governed by the Fugitive Act of 1967 [27].Fenwick, another recognized authority in international law, concludes --- Sinceextradition is effected as the result of the provisions of treaties entered intoby nations two by two, it is impossible to formulate any general rule of law upon the subject. [28]

The elevated status of a treaty over that of an ordinary statute is taki

ng ground.

The International Tribunal, has consistently held that, in consonance with the Vienna Convention, a state cannot plead provisions of its own laws or deficiencies in that law in an answer to a claim against it for an alleged breach of its obligations under international law [29]. From the standpoint of International Law and of the International Court, municipal laws are merely expressionsof the will and constitute the activities of the states within its boundaries inthe same manner as do ordinary legal decisions or administrative measures [30].But, viewed domestically, reactions have been varied. Differing internal lawsamong the members of the international community has resulted in the divergenceof responses when treaty law clashes with ordinary municipal law.

In the United Kingdom, despite pronouncements that the law of nations isadopted in its full extent by common law and is held to be part of the law of the land, cases decided since 1876 point to the displacement of the doctrine of incorporation by that of transformation, viz.: customary law is part of the law ofEngland only insofar as the rules have been clearly adopted and made part of England by legislation, judicial decision, or established usage [31]. In the United States, there has not been much hesitation in recognizing the priority of legislative enactment when passed not only in contravention of established custom but even of the provisions of a specific treaty [32]. Meeting objection to the validity of a tax on immigrants as a violation of the numerous treaties of the US government with friendly nations, the United States Supreme Court, in the Head Money Cases (112 US 580 [1884]), observed: A treaty, then, is a law of the land as

an act of Congress whenever its provisions prescribe a rule by which the rightsof the private citizen or subject may be determined, and when such rights are ofa nature to be enforced in a court of justice, courts resort to treaties for arule of decision of the case as it would to a statute. Nevertheless, added theCourt, so far as a treaty made by the US with any foreign nation can become subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification or repeal. In France,a treaty has supremacy over an inconsistent prior statute as long as the otherstate party to the agreements accords a similar superiority in its domestic forum. French precedent also exists for treaty supremacy over a subsequent inconsistent statute [33]. The European Court once ruled that the European Economic Community Treaty has precedence over national law, even if the national law were later in time [34].

This ambivalent attitude towards the relationship between internationaland municipal law exemplifies the still on-going debate between two schools of thought monism and dualism. Monists believe that international law and domestic laware part of a single legal order; international law is automatically incorporated into each nations legal system and that international is supreme over domesticlaw [35]. Monism requires that domestic courts give effect to international law,notwithstanding inconsistent domestic law, even constitutional law of a constitutional character. [36] Dualists, however, contend that international law and domestic law are distinct, each nation ascertaining for itself when and to what extent international law is incorporated into its legal system, and that the status of international law in the domestic system is determined by domestic law [37]

. Under this view, when municipal law provides that international law applies inwhole or in part within our jurisdiction, it is but an exercise of the authority of municipal law, an adoption or transformation of the rules of international


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law. [38]

In the Philippines, while specific rules on how to resolve conflicts between a treaty law and an act of Congress, whether made prior or subsequent to its execution, have yet to be succinctly defined, the established pattern, however, would show a leaning towards the dualist model. The Constitution exemplifiedby its incorporation clause (Article II, Section 2), as well as statutes such as

those founding some provisions of the Civil Code and of the Revised Penal Code[39], would exhibit a remarkable textual commitment towards internalizing international law. The Supreme Court itself has recognized that the principles of international law are deemed part of the law of the land as a condition and as a consequence of our admission in the society of nations [40].

The principle being that treaties create rights and duties only for those who are parties thereto pacta tertiis nec nocre nec prodesse possunt it is considered necessary to transform a treaty into a national law in order to make itbinding upon affected state organs, line the courts, and private individuals whocould, otherwise, be seen as non-parties [41]. The US-RP Extradition Treaty inparticular, undoubtedly affects not only state organs but also private individu

als as well. It is said that, in treaties of this nature, it should behoove thestate to undertake or adopt the necessary steps to make the treaty binding uponsaid subjects either by incorporation or transformation [42]. Article II, Section 2 of the 1987 Constitution provides for an adherence to general principles of international law as part of the law of the land. One of these principles isthe basic rule of pacta sunt servanda or the performance in good faith of a states treaty obligations. Pacta sunt servanda is the foundation of all conventionalinternational law, for without it, the superstructure of treaties, both bilateral and multilateral, which comprise a great part of international law, could well be inconsequential. Existing legislation contrary to the provisions of the treaty becomes invalid, but legislation is necessary to put the treaty into effect[43]. The constitutional requirement that the treaty be concurred in by no less than two-thirds of all members of the Senate (Section 21, Article VII) is, for

legal intent and purposes, an equivalent to the required transformation of treaty into municipal law.

In preserving harmony between treaty law and municipal law, it is submitted 1) That treaty law has the effect of amending, or even repealing an inconsistent municipal statute, a later enactment being controlling, 2) but that an inconsistent municipal statute subsequently passed cannot modify treaty law, withoutthe concurrence of the other state party thereto, following the generally accepted principle of pacta sunt servanda. As so observed by Fenwick: Legislation passed, or administrative action taken subsequent to the adoption of the treaty andin violation of its provisions is invalid, but this should be declared so by the appropriate agency of national government. In like manner, in doubtful cases where the national legislation or administrative ruling is open to different interpretations, the courts of the state will give the benefit of the doubt to the provisions of the treaty.

A treaty, nevertheless, cannot override the Constitution; in case of conflict, the Constitution must prevail.

When a controversy calls for a determination of the validity of a treatyin the light of the Constitution, there is no question but that the Constitution is given primary consideration [44]. The deference to the interpretation of the national law by competent organs of a state, was exhibited by the Permanent Court of International Justice in the case of Serbian Loans [45] where it held that the construction given by the Highest Court of France on French law should be

followed. When a state, through its government, concludes a treaty with another state, the government of the latter has no reason and is not entitled to question the constitutionality of the act of the former [46]. But this rule does not


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prevent the government of a state, after having concluded a treaty with anotherstate, from declaring the treaty null and void because it is made in violationof its own constitution [47].

In the United States, treaties are regarded as part of the law of the land but this general rule is qualified by the stipulation that a treaty must notbe violative of the Constitution [48]. The United States government, in carryin

g out its treaty obligations, must conform its conduct to the requirements of the Constitution which override the provisions of a treaty that may be contrary toany specific constitutional right [49]. In Reyes v. Bagatsing [50], this Courthas had the occasion to resolve the see-sawing interests of preserving fundamental freedoms such as free speech and assembly, as espoused by the members of theAnti-Bases Coalition seeking permit to hold a rally in front of the American Embassy and the corresponding international obligation of the state to protect theintegrity and safety of diplomatic missions and premises under the Vienna Convention. While holding that the prohibition against holding rallies within a 500meter radius from any foreign mission is valid, the ponencia sees a possible scenario that in case a treaty or a general principle of international law is foundto be in irreconcilable conflict with Constitutional mandates, the Court would

uphold the latter every time, even to the possible detriment of its obligationsunder international law. This preeminence of the Constitution over any treaty is not hard to explain. The Constitution is the act of the people from whom sovereignty emanates. It reflects the popular will. A treaty, on the other hand, is merely negotiated by the treaty-making authority. Surely a few good men, themselves mere delegates of the sovereign people, cannot be permitted to thwart theintent of the Constitution. An agent could never go beyond the mandate of theagency under whose authority he acts.

The 1987 Constitution has its own standards for the grant of bail.

No country is under any legal obligation to adopt, or blindly be in conformity with, procedures from other jurisdictions. The proposed solution of deve

loping a special circumstances standard in determining whether bail should be granted or not, following what could be considered to be mere pro hac vice pronouncements of some foreign courts, might not be apropos. Indeed, setting up the so-called special circumstances standard would be to ignore our own constitutional mandate on bail.

Section 13, Article III of the 1987 Constitution clearly sets the parameters for the judicial exercise of the grant of bail x x x. Starting with the declaration that the right to bail is available to all persons, the Constitution proceeds to define its exceptions and qualifications --- 1) when a criminal offense is a capital one and the evidence of guilt is strong, and 2) when granted thebail shall not be excessive. The circumstance of high risk of flight upon whichthe main decision anchors its refusal to grant bail is conspicuously absent fromthe recital. The English Amendment of the US Federal Constitution, unlike thePhilippine Constitution, does not categorically provide for bail as a matter ofright. Thus, wrestling with the compatibility of the grant of bail in extradition proceedings with basic constitutional guarantees, which US judges have been faced with, should not be our dilemma.

Extradition proceedings are part of the criminal process.

Verily, an extradition proceeding before the extradition court forms a part of the criminal process. It is predicated on a criminal indictment of an extraditee. Like any criminal proceeding, it ultimately ends in either convictionor acquittal for the potential extraditee. Except for the reality that it invo

lves two sovereign states, at least, extradition proceedings before the extradition court can be likened to the preliminary investigation conduced before an investigating fiscal. Like the investigating fiscal, the judge acting in an extrad


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ition proceeding does not rule on the issue of guilt or innocence of the potential extraditee, his main concern being the determination of whether a prima faciecases exists against the potential extraditee [51]. Stated otherwise, both proceedings are an inquiry into whether a person should stand trial [52]. The right to a preliminary investigation is a component part of due process in the criminal justice system. The initial findings of the investigating fiscal, which mayresult in a dismissal of the case, could spare the respondent from hasty malici

ous prosecution, as well as the resultant prolonged anxiety, aggravation and humiliation, that a protracted trial brings. In the same vein, the extradition process can result

Political Law - New Cases Sandoval 2003

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