EN BANC
1069, the Supreme
[G.R. No. 139465. October 17, 2000]
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge,
Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents.
RESOLUTION
PUNO, J.:
On January 18, 2000, by a vote of 9-6, we dismissed the petition at bar and ordered
the petitioner to furnish private respondent copies of the extradition request and
its supporting papers and to grant him a reasonable period within which to file his
comment with supporting evidence.[1]
On February 3, 2000, the petitioner timely filed an Urgent Motion for
Reconsideration. He assails the decision on the following grounds:
"The majority decision failed to appreciate the following facts and points of
substance and of value which, if considered, would alter the result of the case, thus:
I. There is a substantial difference between an evaluation process antecedent to the
filing of an extradition petition in court and a preliminary investigation.
II. Absence of notice and hearing during the evaluation process will not result in a
denial of fundamental fairness.
III. In the evaluation process, instituting a notice and hearing requirement satisfies
no higher objective.
IV. The deliberate omission of the notice and hearing requirement in the Philippine
Extradition Law is intended to prevent flight.
V. There is a need to balance the interest between the discretionary powers of
government and the rights of an individual.
VI. The instances cited in the assailed majority decision when the twin rights of
notice and hearing may be dispensed with in this case results in a non sequitur
conclusion.
VII. Jimenez is not placed in imminent danger of arrest by the Executive Branch
necessitating notice and hearing.
VIII. By instituting a 'proceeding' not contemplated by PD No.
Court has encroached upon the constitutional boundaries separating it from the
other two co-equal branches of government.
IX. Bail is not a matter of right in proceedings leading to extradition or in extradition
proceedings."[2]
On March 28, 2000, a 58-page Comment was filed by the private respondent Mark
B. Jimenez, opposing petitioners Urgent Motion for Reconsideration.
On April 5, 2000, petitioner filed an Urgent Motion to Allow Continuation and
Maintenance of Action and Filing of Reply. Thereafter, petitioner filed on June 7,
2000 a Manifestation with the attached Note 327/00 from the Embassy of Canada
and Note No. 34 from the Security Bureau of the Hongkong SAR Government
Secretariat. On August 15, 2000, private respondent filed a Manifestation and
Motion for Leave to File Rejoinder in the event that petitioner's April 5, 2000
Motion would be granted. Private respondent also filed on August 18, 2000, a
Motion to Expunge from the records petitioner's June 7, 2000 Manifestation with
its attached note verbales. Except for the Motion to Allow Continuation and
Maintenance of Action, the Court denies these pending motions and hereby
resolves petitioner's Urgent Motion for Reconsideration.
The jugular issue is whether or not the private respondent is entitled to the due
process right to notice and hearing during the evaluation stage of the extradition
process.
We now hold that private respondent is bereft of the right to notice and hearing
during the evaluation stage of the extradition process.
First. P.D. No. 1069[3] which implements the RP-US Extradition Treaty provides the
time when an extraditee shall be furnished a copy of the petition for extradition as
well as its supporting papers, i.e., after the filing of the petition for extradition in
the extradition court, viz:
"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of Notices. - (1)
Immediately upon receipt of the petition, the presiding judge of the court shall, as
soon as practicable, summon the accused to appear and to answer the petition on
the day and hour fixed in the order . . . Upon receipt of the answer, or should the
accused after having received the summons fail to answer within the time fixed, the
presiding judge shall hear the case or set another date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the
case."
It is of judicial notice that the summons includes the petition for extradition which
will be answered by the extraditee.
There is no provision in the RP-US Extradition Treaty and in P.D. No. 1069 which
gives an extraditee the right to demand from the petitioner Secretary of Justice
copies of the extradition request from the US government and its supporting
documents and to comment thereon while the request is still undergoing
evaluation. We cannot write a provision in the treaty giving private respondent that
right where there is none. It is well-settled that a "court cannot alter, amend, or add
to a treaty by the insertion of any clause, small or great, or dispense with any of its
conditions and requirements or take away any qualification, or integral part of any
stipulation, upon any motion of equity, or general convenience, or substantial
justice."[4]
Second. All treaties, including the RP-US Extradition Treaty, should be interpreted in
light of their intent. Nothing less than the Vienna Convention on the Law of Treaties
to which the Philippines is a signatory provides that "a treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in light of its object and purpose."[5] (emphasis supplied)
The preambular paragraphs of P.D. No. 1069 define its intent, viz:
"WHEREAS, under the Constitution[,] the Philippines adopts the generally accepted
principles of international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity with all nations;
WHEREAS, the suppression of crime is the concern not only of the state where it is
committed but also of any other state to which the criminal may have escaped,
because it saps the foundation of social life and is an outrage upon humanity at
large, and it is in the interest of civilized communities that crimes should not go
unpunished;
WHEREAS, in recognition of this principle the Philippines recently concluded an
extradition treaty with the Republic of Indonesia, and intends to conclude similar
treaties with other interested countries;
x x x." (emphasis supplied)
It cannot be gainsaid that today, countries like the Philippines forge extradition
treaties to arrest the dramatic rise of international and transnational crimes like
terrorism and drug trafficking. Extradition treaties provide the assurance that the
punishment of these crimes will not be frustrated by the frontiers of territorial
sovereignty. Implicit in the treaties should be the unbending commitment that the
perpetrators of these crimes will not be coddled by any signatory state.
It ought to follow that the RP-US Extradition Treaty calls for an interpretation that
will minimize if not prevent the escape of extraditees from the long arm of the law
and expedite their trial. The submission of the private respondent, that as a
probable extraditee under the RP-US Extradition Treaty he should be furnished a
copy of the US government request for his extradition and its supporting
documents even while they are still under evaluation by petitioner Secretary of
Justice, does not meet this desideratum. The fear of the petitioner Secretary of
Justice that the demanded notice is equivalent to a notice to flee must be deeply
rooted on the experience of the executive branch of our government. As it comes
from the branch of our government in charge of the faithful execution of our laws,
it deserves the careful consideration of this Court. In addition, it cannot be gainsaid
that private respondents demand for advance notice can delay the summary
process of executive evaluation of the extradition request and its accompanying
papers. The foresight of Justice Oliver Wendell Holmes did not miss this danger. In
1911, he held:
"It is common in extradition cases to attempt to bring to bear all the factitious
niceties of a criminal trial at common law. But it is a waste of time . . . if there is
presented, even in somewhat untechnical form according to our ideas, such
reasonable ground to suppose him guilty as to make it proper that he should be
tried, good faith to the demanding government requires his surrender."[6]
(emphasis supplied)
We erode no right of an extraditee when we do not allow time to stand still on his
prosecution. Justice is best served when done without delay.
Third. An equally compelling factor to consider is the understanding of the parties
themselves to the RP-US Extradition Treaty as well as the general interpretation of
the issue in question by other countries with similar treaties with the Philippines.
The rule is recognized that while courts have the power to interpret treaties, the
meaning given them by the departments of government particularly charged with
their negotiation and enforcement is accorded great weight.[7] The reason for the
rule is laid down in Santos III v. Northwest Orient Airlines, et al.,[8] where we
stressed that a treaty is a joint executive-legislative act which enjoys the
presumption that "it was first carefully studied and determined to be constitutional
before it was adopted and given the force of law in the country."
Our executive department of government, thru the Department of Foreign Affairs
(DFA) and the Department of Justice (DOJ), has steadfastly maintained that the RP-
US Extradition Treaty and P.D. No. 1069 do not grant the private respondent a right
to notice and hearing during the evaluation stage of an extradition process.[9] This
understanding of the treaty is shared by the US government, the other party to the
treaty.[10] This interpretation by the two governments cannot be given scant
significance. It will be presumptuous for the Court to assume that both
governments did not understand the terms of the treaty they concluded.
Yet, this is not all. Other countries with similar extradition treaties with the
Philippines have expressed the same interpretation adopted by the Philippine and
US governments. Canadian[11] and Hongkong[12] authorities, thru appropriate
note verbales communicated to our Department of Foreign Affairs, stated in
unequivocal language that it is not an international practice to afford a potential
extraditee with a copy of the extradition papers during the evaluation stage of the
extradition process. We cannot disregard such a convergence of views unless it is
manifestly erroneous.
Fourth. Private respondent, however, peddles the postulate that he must be
afforded the right to notice and hearing as required by our Constitution. He
buttresses his position by likening an extradition proceeding to a criminal
proceeding and the evaluation stage to a preliminary investigation.
We are not persuaded. An extradition proceeding is sui generis. It is not a criminal
proceeding which will call into operation all the rights of an accused as guaranteed
by the Bill of Rights. To begin with, the process of extradition does not involve the
determination of the guilt or innocence of an accused.[13] His guilt or innocence
will be adjudged in the court of the state where he will be extradited. Hence, as a
rule, constitutional rights that are only relevant to determine the guilt or innocence
of an accused cannot be invoked by an extraditee especially by one whose
extradition papers are still undergoing evaluation.[14] As held by the US Supreme
Court in United States v. Galanis:
"An extradition proceeding is not a criminal prosecution, and the constitutional
safeguards that accompany a criminal trial in this country do not shield an accused
from extradition pursuant to a valid treaty."[15]
There are other differences between an extradition proceeding and a criminal
proceeding. An extradition proceeding is summary in nature while criminal
proceedings involve a full-blown trial.[16] In contradistinction to a criminal
proceeding, the rules of evidence in an extradition proceeding allow admission of
evidence under less stringent standards.[17] In terms of the quantum of evidence
to be satisfied, a criminal case requires proof beyond reasonable doubt for
conviction[18] while a fugitive may be ordered extradited "upon showing of the
existence of a prima facie case."[19] Finally, unlike in a criminal case where
judgment becomes executory upon being rendered final, in an extradition
proceeding, our courts may adjudge an individual extraditable but the President has
the final discretion to extradite him.[20] The United States adheres to a similar
practice whereby the Secretary of State exercises wide discretion in balancing the
equities of the case and the demands of the nation's foreign relations before
making the ultimate decision to extradite.[21]
As an extradition proceeding is not criminal in character and the evaluation stage in
an extradition proceeding is not akin to a preliminary investigation, the due process
safeguards in the latter do not necessarily apply to the former. This we hold for the
procedural due process required by a given set of circumstances "must begin with a
determination of the precise nature of the government function involved as well as
the private interest that has been affected by governmental action."[22] The
concept of due process is flexible for "not all situations calling for procedural
safeguards call for the same kind of procedure."[23]
Fifth. Private respondent would also impress upon the Court the urgency of his right
to notice and hearing considering the alleged threat to his liberty "which may be
more priceless than life."[24] The supposed threat to private respondents liberty is
perceived to come from several provisions of the RP-US Extradition Treaty and P.D.
No. 1069 which allow provisional arrest and temporary detention.
We first deal with provisional arrest. The RP-US Extradition Treaty provides as
follows:
"PROVISIONAL ARREST
1. In case of urgency, a Contracting Party may request the provisional arrest of the
person sought pending presentation of the request for extradition. A request for
provisional arrest may be transmitted through the diplomatic channel or directly
between the Philippine Department of Justice and the United States Department of
Justice.
2. The application for provisional arrest shall contain:
a) a description of the person sought;
b) the location of the person sought, if known;
c) a brief statement of the facts of the case, including, if possible, the time and
location of the offense;
d) a description of the laws violated;
e) a statement of the existence of a warrant of arrest or finding of guilt or judgment
of conviction against the person sought; and
f) a statement that a request for extradition for the person sought will follow.
3. The Requesting State shall be notified without delay of the disposition of its
application and the reasons for any denial.
4. A person who is provisionally arrested may be discharged from custody upon the
expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the
executive authority of the Requested State has not received the formal request for
extradition and the supporting documents required in Article 7." (emphasis
supplied)
In relation to the above, Section 20 of P.D. No. 1069 provides:
"Sec. 20. Provisional Arrest.- (a) In case of urgency, the requesting state may,
pursuant to the relevant treaty or convention and while the same remains in force,
request for the provisional arrest of the accused, pending receipt of the request for
extradition made in accordance with Section 4 of this Decree.
(b) A request for provisional arrest shall be sent to the Director of the National
Bureau of Investigation, Manila, either through the diplomatic channels or direct by
post or telegraph.
(c) The Director of the National Bureau of Investigation or any official acting on his
behalf shall upon receipt of the request immediately secure a warrant for the
provisional arrest of the accused from the presiding judge of the Court of First
Instance of the province or city having jurisdiction of the place, who shall issue the
warrant for the provisional arrest of the accused. The Director of the National
Bureau of Investigation through the Secretary of Foreign Affairs shall inform the
requesting state of the result of its request.
(d) If within a period of 20 days after the provisional arrest the Secretary of Foreign
Affairs has not received the request for extradition and the documents mentioned
in Section 4 of this Decree, the accused shall be released from custody." (emphasis
supplied)
Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide that private
respondent may be provisionally arrested only pending receipt of the request for
extradition. Our DFA has long received the extradition request from the United
States and has turned it over to the DOJ. It is undisputed that until today, the
United States has not requested for private respondents provisional arrest.
Therefore, the threat to private respondents liberty has passed. It is more imagined
than real.
Nor can the threat to private respondents liberty come from Section 6 of P.D. No.
1069, which provides:
"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1)
Immediately upon receipt of the petition, the presiding judge of the court shall, as
soon as practicable, summon the accused to appear and to answer the petition on
the day and hour fixed in the order. [H]e may issue a warrant for the immediate
arrest of the accused which may be served anywhere within the Philippines if it
appears to the presiding judge that the immediate arrest and temporary detention
of the accused will best serve the ends of justice. . .
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the
case." (emphasis supplied)
It is evident from the above provision that a warrant of arrest for the temporary
detention of the accused pending the extradition hearing may only be issued by the
presiding judge of the extradition court upon filing of the petition for extradition. As
the extradition process is still in the evaluation stage of pertinent documents and
there is no certainty that a petition for extradition will be filed in the appropriate
extradition court, the threat to private respondents liberty is merely hypothetical.
Sixth. To be sure, private respondents plea for due process deserves serious
consideration involving as it does his primordial right to liberty. His plea to due
process, however, collides with important state interests which cannot also be
ignored for they serve the interest of the greater majority. The clash of rights
demands a delicate balancing of interests approach which is a "fundamental
postulate of constitutional law."[25] The approach requires that we "take conscious
and detailed consideration of the interplay of interests observable in a given
situation or type of situation."[26] These interests usually consist in the exercise by
an individual of his basic freedoms on the one hand, and the governments
promotion of fundamental public interest or policy objectives on the other.[27]
In the case at bar, on one end of the balancing pole is the private respondents claim
to due process predicated on Section 1, Article III of the Constitution, which
provides that "No person shall be deprived of life, liberty, or property without due
process of law . . ." Without a bubble of doubt, procedural due process of law lies at
the foundation of a civilized society which accords paramount importance to justice
and fairness. It has to be accorded the weight it deserves.
This brings us to the other end of the balancing pole. Petitioner avers that the Court
should give more weight to our national commitment under the RP-US Extradition
Treaty to expedite the extradition to the United States of persons charged with
violation of some of its laws. Petitioner also emphasizes the need to defer to the
judgment of the Executive on matters relating to foreign affairs in order not to
weaken if not violate the principle of separation of powers.

Considering that in the case at bar, the extradition proceeding is only at its
evaluation stage, the nature of the right being claimed by the private respondent is
nebulous and the degree of prejudice he will allegedly suffer is weak, we accord
greater weight to the interests espoused by the government thru the petitioner
Secretary of Justice. In Angara v. Electoral Commission, we held that the
"Constitution has blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the
government."[28] Under our constitutional scheme, executive power is vested in
the President of the Philippines.[29] Executive power includes, among others, the
power to contract or guarantee foreign loans and the power to enter into treaties
or international agreements.[30] The task of safeguarding that these treaties are
duly honored devolves upon the executive department which has the competence
and authority to so act in the international arena.[31] It is traditionally held that the
President has power and even supremacy over the countrys foreign relations.[32]
The executive department is aptly accorded deference on matters of foreign
relations considering the Presidents most comprehensive and most confidential
information about the international scene of which he is regularly briefed by our
diplomatic and consular officials. His access to ultra-sensitive military intelligence
data is also unlimited.[33] The deference we give to the executive department is
dictated by the principle of separation of powers. This principle is one of the
cornerstones of our democratic government. It cannot be eroded without
endangering our government.
The Philippines also has a national interest to help in suppressing crimes and one
way to do it is to facilitate the extradition of persons covered by treaties duly
entered by our government. More and more, crimes are becoming the concern of
one world. Laws involving crimes and crime prevention are undergoing
universalization. One manifest purpose of this trend towards globalization is to
deny easy refuge to a criminal whose activities threaten the peace and progress of
civilized countries. It is to the great interest of the Philippines to be part of this
irreversible movement in light of its vulnerability to crimes, especially transnational
crimes.
In tilting the balance in favor of the interests of the State, the Court stresses that it
is not ruling that the private respondent has no right to due process at all
throughout the length and breadth of the extrajudicial proceedings. Procedural due
process requires a determination of what process is due, when it is due, and the
degree of what is due. Stated otherwise, a prior determination should be made as
to whether procedural protections are at all due and when they are due, which in
turn depends on the extent to which an individual will be "condemned to suffer
grievous loss."[34] We have explained why an extraditee has no right to notice and
hearing during the evaluation stage of the extradition process. As aforesaid, P.D.
No. 1069 which implements the RP-US Extradition Treaty affords an extraditee
sufficient opportunity to meet the evidence against him once the petition is filed in
court. The time for the extraditee to know the basis of the request for his
extradition is merely moved to the filing in court of the formal petition for
extradition. The extraditee's right to know is momentarily withheld during the
evaluation stage of the extradition process to accommodate the more compelling
interest of the State to prevent escape of potential extraditees which can be
precipitated by premature information of the basis of the request for his
extradition. No less compelling at that stage of the extradition proceedings is the
need to be more deferential to the judgment of a co-equal branch of the
government, the Executive, which has been endowed by our Constitution with
greater power over matters involving our foreign relations. Needless to state, this
balance of interests is not a static but a moving balance which can be adjusted as
the extradition process moves from the administrative stage to the judicial stage
and to the execution stage depending on factors that will come into play. In sum,
we rule that the temporary hold on private respondent's privilege of notice and
hearing is a soft restraint on his right to due process which will not deprive him of
fundamental fairness should he decide to resist the request for his extradition to
the United States. There is no denial of due process as long as fundamental fairness
is assured a party.
We end where we began. A myopic interpretation of the due process clause would
not suffice to resolve the conflicting rights in the case at bar. With the global village
shrinking at a rapid pace, propelled as it is by technological leaps in transportation
and communication, we need to push further back our horizons and work with the
rest of the civilized nations and move closer to the universal goals of "peace,
equality, justice, freedom, cooperation and amity with all nations."[35] In the end, it
is the individual who will reap the harvest of peace and prosperity from these
efforts.
WHEREFORE, the Urgent Motion for Reconsideration is GRANTED. The Decision in
the case at bar promulgated on January18, 2000 is REVERSED. The assailed Order
issued by the public respondent judge on August 9, 1999 is SET ASIDE. The
temporary restraining order issued by this Court on August 17, 1999 is made
PERMANENT. The Regional Trial Court of Manila, Branch 25 is enjoined from
conducting further proceedings in Civil Case No. 99-94684.
SO ORDERED.
Davide, Jr., C.J., Mendoza, Purisima, Pardo, Gonzaga-Reyes, and De Leon, Jr., JJ.,
concur.
Bellosillo, and Kapunan, JJ., joined the dissent of J. Melo & J. Ynares-Santiago.
Melo, J., see dissent.

Vitug, J., I join in the dissent and reiterate my separate opinion in the original
ponencia.
Quisumbing, J., in the result.
Buena, J., I join the dissent of Justice Consuelo Y-Santiago.
Ynares-Santiago, J., see separate dissent.
[1] Rollo, pp. 442-443; Decision, Secretary of Justice v. Hon. Ralph C. Lantion and
Mark B. Jimenez, G.R. No. 139465, January 18, 2000, pp. 39-40.
[2] Rollo, p. 495; Urgent Motion for Reconsideration, p. 4.
[3] "Prescribing the Procedure for the Extradition of Persons Who Have Committed
Crimes in a Foreign Country" signed into law on January 13, 1977.
[4] Note, The United States v. The Libelants and Claimants of the Schooner Amistad,
10 L. Ed. 826 (1841), citing The Amiable Isabella, 6 Wheat. 1.
[5] Article 31(1), Vienna Convention on the Law of Treaties.
[6] Glucksman v. Henkel, 221 U.S. 508, 511 (1911), citing Grin v. Shine, 187 US 181,
184, 47 L. Ed. 130, 133, 23 S. Ct. Rep. 98, 12 Am. Crim. Rep. 366. See Pierce v.
Creecy, 210 U.S. 387, 405, 52 L. Ed. 1113, 1122, 28 S. Ct. 714.
[7] Kolovrat v. Oregon, 366 US 187, 192 (1961); Factor v. Laubenheimer, 290 U.S.
276, 295 (1933), citing Nielsen v. Johnson, 279 U.S. 52, 73 L. Ed. 610, 49 S. Ct. 223;
Charlton v. Kelly, 229 U.S. 447, 468, 57 L. Ed. 1274,1283, 33 S. Ct. 945, 46 L.R.A.
(N.S.) 397.
[8] 210 SCRA 256, 261 (1992).
[9] Rollo, p. 399.
[10] See Original Records, pp. 467-482, Annex B of petitioner's Urgent Motion for
Reconsideration entitled Observations of the United States In Support of the Urgent
Motion for Reconsideration by the Republic of the Philippines signed by James K.
Robinson, Asst. Attorney General and Bruce C. Swartz, Deputy Asst. Attorney
General, Criminal Division, US Department of Justice and Sara Criscitelli, Asst.
Director, Office of International Affairs, Criminal Division, Washington, D.C.
[11] See Original Records, pp. 506-507, Note 327/00 dated March 10, 2000 from the
Embassy of Canada.
[12] See Original Records, p. 509, Note No. (34) in SBCR 1/27 16/80 Pt. 27 dated
March 22, 2000 from the Security Bureau of the Hongkong SAR Government
Secretariat.
[13] Defensor-Santiago, Procedural Aspects of the Political Offence Doctrine, 51
Philippine Law Journal 238, p. 258 (1976).
[14] Elliot, No Due Process Right to a Speedy Extradition, Martin v. Warden, Atlanta
Pen., 993 F.2d 824 (11th Cir. 1993), 18 Suffolk Transnational Law Review 347, 353
(1995), citing Jhirad v. Ferrandina, 536 F.2d 478, 482 (2d Cir.).1
[15] Wiehl, Extradition Law at the Crossroads: The Trend Toward Extending Greater
Constitutional Procedural Protections To Fugitives Fighting Extradition from the
United States, 19 Michigan Journal of International Law 729, 741 (1998), citing
United States v. Galanis, 429 F. Supp. 1215 (D. Conn. 1977).
[16] Section 9, P.D. No. 1069.
[17] Ibid.
[18] Section 2, Rule 133, Revised Rules of Court.
[19] Section 10, P.D. No. 1069.
[20] See Article III of the RP-US Extradition Treaty.
[21] Note, Executive Discretion in Extradition, 62 Col. Law Rev., pp. 1314-1329.
[22] Morrisey v. Brewer, 408 U.S. 471, 481 (1972), citing Cafeteria & Restaurant
Workers Union v. McElroy, 367 U.S. 886, 895 (1961), 6 L. Ed. 2d 1230, 1236, 81 S.
Ct. 1743 (1961).
[23] Morrisey v. Brewer, supra.
[24] Comment on Petitioners Urgent Motion for Reconsideration, p. 37.
[25] Malayan Insurance Co. v. Smith, Bell & Co. (Phil.) Inc., et al., 101 SCRA 61
(1980), citing Republic v. Purisima, 78 SCRA 470 (1977).
[26] Zaldivar v. Sandiganbayan, 170 SCRA 1, 9 (1989), citing Lagunzad v. Vda. de
Gonzales, 92 SCRA 476 (1979), citing Separate Opinion of the late Chief Justice
Castro in Gonzales v. Commission on Elections, 27 SCRA 855, p. 899 (1960).
[27] Blo Umpar Adiong v. Commission on Elections, 207 SCRA 712, 716 (1992).
[28] 63 Phil. 139, 157 (1936).
[29] Section 1, Article VII, 1987 Constitution.
[30] Id., sections 20-21.
[31] Department of Foreign Affairs v. National Labor Relations Commission, 262
SCRA 39, 48 (1996), citing International Catholic Migration Commission v. Calleja,
190 SCRA 130 (1990).
[32] Marcos v. Manglapus, 177 SCRA 668 (1989). See also Salazar v. Achacoso, 183
SCRA 145 (1990).
[33] U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S. Ct. 216, 81 L. Ed. 255
(1936).
[34] Morrisey v. Brewer, supra note 22, p. 481, citing Joint Anti-Fascist Refugee
Committee v. McGrath, 341 U.S. 123, 168, 95 L. Ed. 817, 852, 71 S. Ct. 624 (1951)
(Frankfurter, J., Concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, 263, 25 L. Ed.
2d 287, 296, 90 S. Ct. 1011 (1970).
[35] Section 2, Article II, 1987 Constitution.
Secretary of Justice vs Lantion and Mark Jimenez (private respondent)
G.R. No. 139465. October 17, 2000
Facts: On January 18, 2000, petitioner was ordered to furnish private respondent
copies of the extradition request and its supporting papers and to grant the latter
reasonable period within which to file his comment with supporting evidence.
Private respondent states that he must be afforded the right to notice and hearing
as required by our Constitution. He likens an extradition proceeding to a criminal
proceeding and the evaluation stage to a preliminary investigation.
Petitioner filed an Urgent Motion for Reconsideration assailing the mentioned
decision.
Issue: Whether or not the private respondent is entitled to the due process right to
notice and hearing during the evaluation stage of the extradition process
Held: No. Private respondent is bereft of the right to notice and hearing during the
evaluation stage of the extradition process.
An extradition proceeding is sui generis. It is not a criminal proceeding which will
call into operation all the rights of an accused as guaranteed by the Bill of Rights.
The process of extradition does not involve the determination of the guilt or
innocence of an accused. His guilt or innocence will be adjudged in the court of the
state where he will be extradited. Hence, as a rule, constitutional rights that are
only relevant to determine the guilt or innocence of an accused cannot be invoked
by an extraditee especially by one whose extradition papers are still undergoing
evaluation. As held by the US Supreme Court in United States v. Galanis:
“An extradition proceeding is not a criminal prosecution, and the constitutional
safeguards that accompany a criminal trial in this country do not shield an accused
from extradition pursuant to a valid treaty.”
As an extradition proceeding is not criminal in character and the evaluation stage in
an extradition proceeding is not akin to a preliminary investigation, the due process
safeguards in the latter do not necessarily apply to the former.
The procedural due process required by a given set of circumstances “must begin
with a determination of the precise nature of the government function involved as
well as the private interest that has been affected by governmental action.” The
concept of due process is flexible for “not all situations calling for procedural
safeguards call for the same kind of procedure.”
In tilting the balance in favor of the interests of the State, the Court stresses that it
is not ruling that the private respondent has no right to due process at all
throughout the length and breadth of the extrajudicial proceedings. Procedural due
process requires a determination of what process is due, when it is due, and the
degree of what is due. Stated otherwise, a prior determination should be made as
to whether procedural protections are at all due and when they are due, which in
turn depends on the extent to which an individual will be “condemned to suffer
grievous loss.”
As aforesaid, P.D. No. 1069 which implements the RP-US Extradition Treaty affords
an extraditee sufficient opportunity to meet the evidence against him once the
petition is filed in court. The time for the extraditee to know the basis of the
request for his extradition is merely moved to the filing in court of the formal
petition for extradition. The extraditee’s right to know is momentarily withheld
during the evaluation stage of the extradition process to accommodate the more
compelling interest of the State to prevent escape of potential extraditees which
can be precipitated by premature information of the basis of the request for his
extradition. No less compelling at that stage of the extradition proceedings is the
need to be more deferential to the judgment of a co-equal branch of the
government, the Executive, which has been endowed by our Constitution with
greater power over matters involving our foreign relations. Needless to state, this
balance of interests is not a static but a moving balance which can be adjusted as
the extradition process moves from the administrative stage to the judicial stage
and to the execution stage depending on factors that will come into play. In sum,
we rule that the temporary hold on private respondent’s privilege of notice and
hearing is a soft restraint on his right to due process which will not deprive him of
fundamental fairness should he decide to resist the request for his extradition to
the United States. There is no denial of due process as long as fundamental fairness
is assured a party.
SECOND DIVISION
[G.R. No. 140520. December 18, 2000]
JUSTICE SERAFIN R. CUEVAS, substituted by ARTEMIO G. TUQUERO in his capacity
as Secretary of Justice, petitioner, vs. JUAN ANTONIO MUOZ, respondent.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari of the Decision[1] of the Court of
Appeals, dated November 9, 1999, directing the immediate release of respondent
Juan Antonio Muoz from the custody of law upon finding the Order[2] of provisional
arrest dated September 20, 1999 issued by Branch 19 of the Regional Trial Court of
Manila to be null and void.
The antecedent facts:
On August 23, 1997, the Hong Kong Magistrates Court at Eastern Magistracy issued
a warrant for the arrest of respondent for seven (7) counts of accepting an
advantage as an agent contrary to Section 9(1)(a) of the Prevention of Bribery
Ordinance, Cap. 201 of Hong Kong, and seven (7) counts of conspiracy to defraud,
contrary to the common law of Hong Kong.[3] Said warrant remains in full force and
effect up to the present time.[4]
On September 13, 1999, the Philippine Department of Justice (hereafter, Philippine
DOJ) received a request for the provisional arrest of the respondent from the
Mutual Legal Assistance Unit, International Law Division of the Hong Kong
Department of Justice (hereafter, Hong Kong DOJ)[5] pursuant to Article 11(1) of
the Agreement Between The Government Of The Republic Of The Philippines And
The Government Of Hong Kong For The Surrender Of Accused And Convicted
Persons (hereafter, RP-Hong Kong Extradition Agreement).[6] The Philippine DOJ
forwarded the request for provisional arrest to the Anti-Graft Division of the
National Bureau of Investigation (NBI).
On September 17, 1999, for and in behalf of the government of Hong Kong, the NBI
filed an application for the provisional arrest of respondent with the Regional Trial
Court (RTC) of Manila.
On September 20, 1999, Branch 19 of the RTC of Manila issued an Order granting
the application for provisional arrest and issuing the corresponding Order of
Arrest.[7]
On September 23, 1999, respondent was arrested pursuant to the said order, and is
currently detained at the NBI detention cell.[8]
On October 14, 1999, respondent filed with the Court of Appeals, a petition for
certiorari, prohibition and mandamus with application for preliminary mandatory
injunction and/or writ of habeas corpus assailing the validity of the Order of Arrest.
The Court of Appeals rendered a decision declaring the Order of Arrest null and void
on the following grounds:
(1) that there was no urgency to warrant the request for provisional arrest under
Article 11(1) of the RP-Hong Kong Extradition Agreement;[9]
(2) that the request for provisional arrest and the accompanying warrant of arrest
and summary of facts were unauthenticated and mere facsimile copies which are
insufficient to form a basis for the issuance of the Order of Arrest;[10]
(3) that the twenty (20) day period for provisional arrest under Section 20(d) of
Presidential Decree No. 1069 otherwise known as the Philippine Extradition Law,
was not amended by Article 11(3) of the RP-Hong Kong Extradition Agreement
which provides for a forty-five (45) day period for provisional arrest;[11]
(4) that the Order of Arrest was issued without the Judge having personally
determined the existence of probable cause;[12] and
(5) that the requirement of dual criminality under Section 3(a) of P.D. No. 1069 has
not been satisfied as the crimes for which respondent is wanted in Hong Kong,
namely accepting an advantage as an agent and conspiracy to commit fraud, are
not punishable by Philippine laws.[13]
Thus, petitioner Justice Serafin R. Cuevas, in his capacity as the Secretary of the
Department of Justice, lost no time in filing the instant petition.[14]
On November 17, 1999, respondent filed an Urgent Motion For Release Pending
Appeal. He primarily contended that, since Section 20(d) of P.D. No. 1069 sets the
maximum period of provisional arrest at twenty (20) days, and he has been
detained beyond the said period, without both a request for extradition having
been received by the Philippine DOJ and the corresponding petition for extradition
having been filed in the proper RTC, he should be released from detention. [15]
On December 16, 1999, petitioner filed a Manifestation with this Court stressing the
fact that as early as November 5, 1999, the Philippine DOJ had already received
from the Hong Kong DOJ, a formal request for the surrender of respondent.
Petitioner also informed this Court that pursuant to the said request for extradition,
the Philippine DOJ, representing the Government of Hong Kong, filed on November
22, 1999, a verified petition for the extradition of respondent docketed as Case No.
99-95733 and currently pending in Branch 10 of the RTC of Manila.[16]
Petitioner submits that the Court of Appeals erred in nullifying the Order of
provisional arrest against respondent.
Petitioner imputes the following errors in the subject Decision of the Court of
Appeals, to wit:
I
The Court of Appeals gravely erred in holding that:
A. there was no urgency for the provisional arrest of respondent;
B. the municipal law (P.D. No. 1069) subordinates an international agreement (RP-
Hongkong Agreement);
C. the supporting documents for a request for provisional arrest have to be
authenticated;
D. there was lack of factual and legal bases in the determination of probable cause;
and
E. the offense of accepting an advantage as an agent is not an offense under the
Anti-Graft and Corrupt Practices Act, as amended.
II
The Court of Appeals seriously erred in declaring as null and void the trial courts
Order of Arrest dated September 20, 1999 despite that (sic) respondent waived the
right to assail the order of arrest by filing in the trial court a motion for release on
recognizance, that (sic) the issue of legality of the order of arrest was being
determined by the trial court, and respondent mocked the established rules of
procedure intended for an orderly administration of justice.[17]
Petitioner takes exception to the finding of the Court of Appeals that the offense of
accepting an advantage as an agent is not punishable under Republic Act (R.A.) No.
3019 otherwise known as the Anti-Graft and Corrupt Practices Act, thus, obviating
the application of P.D. No. 1069[18] that requires the offense to be punishable
under the laws both of the requesting state or government and the Republic of the
Philippines.[19]
However, the issue of whether or not the rule of double criminality applies was not
for the Court of Appeals to decide in the first place. The trial court in which the
petition for extradition is filed is vested with jurisdiction to determine whether or
not the offenses mentioned in the petition are extraditable based on the
application of the dual criminality rule and other conditions mentioned in the
applicable treaty. In this case, the presiding Judge of Branch 10 of the RTC of Manila
has yet to rule on the extraditability of the offenses for which the respondent is
wanted in Hong Kong. Therefore, respondent has prematurely raised this issue
before the Court of Appeals and now, before this Court.
Petitioners other arguments, however, are impressed with merit.
First. There was urgency for the provisional arrest of the respondent.
Section 20(a) of P.D. No. 1069 reads as follows:
Provisional Arrest. - (a) In case of urgency, the requesting state may, pursuant to
the relevant treaty or convention and while the same remains in force, request for
the provisional arrest of the accused, pending receipt of the request for extradition
made in accordance with Section 4 of this Decree;
and Article 11 of the Extradition Agreement between the Philippines and Hong Kong
provides in part that:
(1) In urgent cases, the person sought may, in accordance with the law of the
requested Party, be provisionally arrested on the application of the requesting
Party. x x x.
Nothing in existing treaties or Philippine legislation defines the meaning of urgency
as used in the context of a request for provisional arrest. Using reasonable
standards of interpretation, however, we believe that urgency connotes such
conditions relating to the nature of the offense charged and the personality of the
prospective extraditee which would make him susceptible to the inclination to flee
or escape from the jurisdiction if he were to learn about the impending request for
his extradition and/or likely to destroy the evidence pertinent to the said request or
his eventual prosecution and without which the latter could not proceed.[20]
We find that such conditions exist in respondents case.
First. It should be noted that at the time the request for provisional arrest was
made, respondents pending application for the discharge of a restraint order over
certain assets held in relation to the offenses with which he is being charged, was
set to be heard by the Court of First Instance of Hong Kong on September 17, 1999.
The Hong Kong DOJ was concerned that the pending request for the extradition of
the respondent would be disclosed to the latter during the said proceedings, and
would motivate respondent to flee the Philippines before the request for
extradition could be made.[21]
There is also the fact that respondent is charged with seven (7) counts of accepting
an advantage as an agent and seven (7) counts of conspiracy to defraud, for each
count of which, if found guilty, he may be punished with seven (7) and fourteen (14)
years imprisonment, respectively. Undoubtedly, the gravity of the imposable
penalty upon an accused is a factor to consider in determining the likelihood that
the accused will abscond if allowed provisional liberty. It is, after all, but human to
fear a lengthy, if not a lifetime, incarceration. Furthermore, it has also not escaped
the attention of this Court that respondent appears to be affluent and possessed of
sufficient resources to facilitate an escape from this jurisdiction.[22]
The arguments raised by the respondent in support of his allegation that he is not a
flight risk, are, to wit:
a) He did not flee or hide when the Central Bank and the NBI investigated the
matter alleged in the request for extradition of the Hongkong Government during
the second half of 1994; he has since been cleared by the Central Bank;
b) He did not flee or hide when the Hongkong Governments Independent
Commission Against Corruption (ICAC) issued a warrant for his arrest in August
1997; he has in fact filed a case in Hongkong against the Hongkong Government for
the release of his frozen assets;
c) He never changed his address nor his identity, and has sought vindication of his
rights before the courts in Hongkong and in the Philippines;
d) He has never evaded arrest by any lawful authority, and certainly will never fly
away now that his mother is on her death bed.[23]
do not convince this Court. That respondent did not flee despite the investigation
conducted by the Central Bank and the NBI way back in 1994, nor when the warrant
for his arrest was issued by the Hong Kong ICAC in August 1997, is not a guarantee
that he will not flee now that proceedings for his extradition are well on the way.
Respondent is about to leave the protective sanctuary of his mother state to face
criminal charges in another jurisdiction. It cannot be denied that this is sufficient
impetus for him to flee the country as soon as the opportunity to do so arises.
Respondent also avers that his mothers impending death makes it impossible for
him to leave the country. However, by respondents own admission, his mother
finally expired at the Cardinal Santos Hospital in Mandaluyong City last December 5,
1999.[24]
Second. Twelve (12) days after respondent was provisionally arrested, the
Philippine DOJ received from the Hong Kong DOJ, a request for the surrender or
extradition of respondent.
On one hand, Section 20(d) of P.D. No. 1069 reads as follows:
(d) If within a period of twenty (20) days after the provisional arrest the Secretary of
Foreign Affairs has not received the request for extradition and the documents
mentioned in Section 4 of this Decree, the accused shall be released from custody.
On the other hand, Article 11(3) of the RP-Hong Kong Extradition Agreement
provides that:
(3) The provisional arrest of the person sought shall be terminated upon the
expiration of forty-five days from the date of arrest if the request for surrender has
not been received, unless the requesting Party can justify continued provisional
arrest of the person sought in which case the period of provisional arrest shall be
terminated upon the expiration of a reasonable time not being more than a further
fifteen days. This provision shall not prevent the re-arrest or surrender of the
person sought if the request for the persons surrender is received subsequently.
Petitioner contends that Article 11(3) of the RP-Hong Kong Extradition Agreement
which allows a period of forty-five (45) days for provisional arrest absent a formal
request for extradition has amended Section 20(d) of P.D. No. 1069 which provides
only a twenty (20) day period for the same.[25]
Petitioners argument on this point, however, has been rendered moot and
academic by the fact that as early as November 5, 1999 or twelve (12) days after
respondents arrest on September 23, 1999, the Philippine DOJ already received
from the Hong Kong DOJ, a request for the surrender of respondent. The crucial
event, after all, which tolls the provisional detention period is the transmittal of the
request for the extradition or surrender of the extraditee. Hence, the question as to
whether the period for provisional arrest stands at twenty (20) days, as provided for
in P.D. No. 1069, or has been extended to forty-five (45) days under the Extradition
Agreement between Hong Kong and the Philippines is rendered irrelevant by the
actual request made by the Hong Kong DOJ for the extradition of respondent
twelve (12) days after the request for the latters provisional arrest.
Likewise, respondents contention in his motion for release pending appeal, that his
incarceration cannot continue beyond the twenty (20) day period without a petition
for his extradition having been filed in court, is simply bereft of merit. It is clear
from the above-cited provisions, that for the provisional arrest of an accused to
continue, the formal request for extradition is not required to be filed in court. It
only need be received by the requested state within the periods provided for by
P.D. No. 1069 and the RP-Hong Kong Extradition Agreement. By no stretch of
imagination may we infer from the required receipt of the request for extradition
and its accompanying documents, the additional requisite that the same be filed in
the court within the same periods.
Third. The request for provisional arrest of respondent and its accompanying
documents are valid despite lack of authentication.
Section 20(b) of P.D. No. 1069 reads as follows:
(b) A request for provisional arrest shall be sent to the Director of the National
Bureau of Investigation, Manila, either through the diplomatic channels or direct by
post or telegraph.
and Article 11(1) of the RP-Hong Kong Extradition Agreement provides in part that:
x x x. The application for provisional arrest shall contain an indication of intention to
request the surrender of the person sought and the text of a warrant of arrest or a
judgment of conviction against that person, a statement of the penalty for that
offense, and such further information, if any, as would be necessary to justify the
issue of a warrant of arrest had the offense been committed, or the person
convicted, within the jurisdiction of the requested Party.
The language of the abovequoted provisions is clear. There is no requirement for
the authentication of a request for provisional arrest and its accompanying
documents.
We also note that under Section 20(d) of P.D. No. 1069, viz:
(d) If within a period of 20 days after the request for provisional arrest the Secretary
of Foreign Affairs has not received the request for extradition and the documents
mentioned in Section 4 of this Decree,[26] the accused shall be released from
custody.[27]
the original or authenticated copies of the decision or sentence imposed upon the
accused by the requesting state or the criminal charge and the warrant of arrest
issued by the authority of the requesting state, need not accompany the request for
provisional arrest and may, in fact, be transmitted after the said request has already
been received by the requested state.
Furthermore, the pertinent provision of the RP-Hong Kong Extradition Agreement
enumerates the documents that must accompany the request, as follows: (1) an
indication of the intention to request the surrender of the person sought; (2) the
text of a warrant of arrest or judgment of conviction against that person; (3) a
statement of penalty for that offense; and (4) such further information as would
justify the issue of a warrant of arrest had the offense been committed, or the
person convicted, within the jurisdiction of the requested party.[28] That the
enumeration does not specify that these documents must be authenticated copies,
is not a mere omission of law. This may be gleaned from the fact that while Article
11(1) does not require the accompanying documents of a request for provisional
arrest to be authenticated, Article 9 of the same Extradition Agreement makes
authentication a requisite for admission in evidence of any document
accompanying a request for surrender or extradition.[29] In other words,
authentication is required for the request for surrender or extradition but not for
the request for provisional arrest.
We must also state that the above mentioned provisions of P.D. No. 1069 and the
RP-Hong Kong Extradition Agreement, as they are worded, serve the purpose
sought to be achieved by treaty stipulations for provisional arrest.
The process of preparing a formal request for extradition and its accompanying
documents, and transmitting them through diplomatic channels, is not only time-
consuming but also leakage-prone. There is naturally a great likelihood of flight by
criminals who get an intimation of the pending request for their extradition. To
solve this problem, speedier initial steps in the form of treaty stipulations for
provisional arrest were formulated.[30] Thus, it is an accepted practice for the
requesting state to rush its request in the form of a telex or diplomatic cable, the
practicality of the use of which is conceded.[31] Even our own Extradition Law (P.D.
No. 1069) allows the transmission of a request for provisional arrest via
telegraph.[32] In the advent of modern technology, the telegraph or cable have
been conveniently replaced by the facsimile machine. Therefore, the transmission
by the Hong Kong DOJ of the request for respondents provisional arrest and the
accompanying documents, namely, a copy of the warrant of arrest against
respondent, a summary of the facts of the case against him, particulars of his birth
and address, a statement of the intention to request his provisional arrest and the
reason therefor, by fax machine, more than serves this purpose of expediency.
Respondents reliance on Garvida v. Sales, Jr.[33] is misplaced. The proscription
against the admission of a pleading that has been transmitted by facsimile machine
has no application in the case at bar for obvious reasons. First, the instant case does
not involve a pleading; and second, unlike the COMELEC Rules of Procedure which
do not sanction the filing of a pleading by means of a facsimile machine, P.D. No.
1069 and the RP Hong Kong Extradition Agreement do not prohibit the transmission
of a request for provisional arrest by means of a fax machine.
In a futile attempt to convince this Court, respondent cites our ruling in the recent
case of Secretary of Justice v. Hon. Lantion, et al.[34], where we held that the right
of an extraditee to due process necessarily includes the right to be furnished with
copies of the extradition request and supporting papers, and to file a comment
thereto during the evaluation stage of the extradition proceedings.
Respondent posits that, in the same vein, the admission by the RTC of the request
for provisional arrest and its supporting documents despite lack of authentication is
a violation of the respondents right to due process. This contention fails to impress
us.
Respondents contention is now a non-issue, in view of our Resolution dated
October 17, 2000 in the said case of Secretary of Justice v. Hon. Lantion, et al.
reconsidering and reversing our earlier decision therein. Acting on therein
petitioners Motion for Reconsideration, we held that therein respondent is bereft
of the right to notice and hearing during the evaluation stage of the extradition
process.[35] Worthy to reiterate is the following concluding pronouncement of this
Court in the said case:[36]
In tilting the balance in favor of the interests of the State, the Court stresses that it
is not ruling that the private respondent has no right to due process at all
throughout the length and breath of the extrajudicial proceedings. Procedural due
process requires a determination of what process is due, when it is due and the
degree of what is due. Stated otherwise, a prior determination should be made as
to whether procedural protections are at all due and when they are due, which in
turn depends on the extent to which an individual will be condemned to suffer
grievous loss.[37] We have explained why an extraditee has no right to notice and
hearing during the evaluation stage of the extradition process. As aforesaid, P.D.
1069 xxx affords an extraditee sufficient opportunity to meet the evidence against
him once the petition is filed in court. The time for the extraditee to know the basis
of the request for his extradition is merely moved to the filing in court of the formal
petition for extradition. The extraditees right to know is momentarily withheld
during the evaluation stage of the extradition process to accommodate the more
compelling interest of the State to prevent escape of potential extraditees which
can be precipitated by premature information of the basis of the request for his
extradition. No less compelling at that stage of the extradition proceedings is the
need to be more deferential to the judgment of a co-equal branch of the
government, the Executive, which has been endowed by our Constitution with
greater power over matters involving our foreign relations. Needless to state, this
balance of interests is not a static but a moving balance which can be adjusted as
the extradition process moves from the administrative stage to the judicial stage
and to the execution stage depending on factors that will come into play. In sum,
we rule that the temporary hold on private respondents privilege of notice and
hearing is a soft restraint on his right to due process which will not deprive him of
fundamental fairness should he decide to resist the request for his extradition to
the United States. There is no denial of due process as long as fundamental fairness
is assured a party.
Respondent also contends that the request for his provisional arrest was rendered
defective by the fact that the person who made the request was not a foreign
diplomat as provided for in Section 4 (2) of P.D. No. 1069, to wit:
SEC. 4. Request; By Whom Made; Requirements.-
(1) Any foreign state or government with which the Republic of the Philippines has
entered into extradition treaty or convention, and only when the relevant treaty or
convention, remains in force, may request for the extradition of any accused who is
suspected of being in the territorial jurisdiction of the Philippines.
(2) The request shall be made by the Foreign Diplomat of the requesting state or
government, addressed to the Secretary of Foreign Affairs, x x x.
This contention deserves scant consideration. The foregoing refers to the
requirements for a request for extradition and not for a request for provisional
arrest. The pertinent provisions are Article 11(2) which states:
An application for provisional arrest may be forwarded through the same channels
as a request for surrender or through the International Criminal Police Organization
(INTERPOL);[38]
and Article 8(1) which provides:
Requests for surrender and related documents shall be conveyed through the
appropriate authority as may be notified from time to time by one party to
another.[39]
Hence, there is sufficient compliance with the foregoing if the request for
provisional arrest is made by an official who is authorized by the government of the
requesting state to make such a request and the authorization is communicated to
the requested state.
The request for provisional arrest of respondent was signed by Wayne Walsh,
Senior Government Counsel of the Mutual Legal Assistance Unit, International Law
Division of the Hong Kong DOJ who stated in categorical terms that:
The Department of Justice (Mutual Legal Assistance Unit) of the HKSAR is the
appropriate authority under the Agreement to make requests for provisional arrest
and surrender. I confirm that as a member of the Mutual Legal Assistance Unit, I am
authorized (sic) to make this request for provisional arrest.[40]

Last. There was sufficient factual and legal basis for the determination of probable
cause as a requisite for the issuance of the Order of Arrest.[41]
We have defined probable cause for the issuance of a warrant of arrest as the
existence of such facts and circumstances that would lead a reasonably discreet and
prudent person to believe that an offense has been committed by the person
sought to be arrested.[42] The determination of probable cause is a function of the
Judge. Such is the mandate of our Constitution which provides that a warrant of
arrest shall issue only upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce.[43] In the case of Allado v. Diokno,[44] we stated that
personal determination by the Judge of the existence of probable cause means that
he -
(a) shall personally evaluate the report and the supporting documents submitted by
the fiscal regarding the existence of probable cause and, on the basis thereof, issue
a warrant of arrest; or, (b) if on the basis thereof he finds no probable cause, may
disregard the fiscals report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion on the existence of probable
cause.[45]
The Judge cannot, therefore, merely rely on the certification issued by the
prosecutor. He is, however, not required to personally examine ipso facto the
complainant and his witnesses. He sufficiently complies with the requirement of
personal determination if he reviews the information and the documents attached
thereto, and on the basis thereof forms a belief that the accused is probably guilty
of the crime with which he is being charged.[46] The Judge determines the
existence of probable cause to pass upon whether a warrant of arrest should be
issued against the accused, that is, whether there is a necessity for placing him
under immediate custody in order not to frustrate the ends of justice.[47]
The request for the respondents provisional arrest was accompanied by facsimile
copies of the outstanding warrant of arrest issued by the Hong Kong government, a
summary of the facts of the case against respondent, particulars of his birth and
address, an intention to request his provisional arrest and the reason therefor. The
said documents were appended to the application for respondents provisional
arrest filed in the RTC,[48] and formed the basis of the judges finding of probable
cause for the issuance of the warrant of arrest against respondent.
Respondent alleges the contrary and surmises that all that the trial judge did was to
interview NBI agent Saunar who filed the application for the issuance of the warrant
of provisional arrest, and that her honor did not probably even notice that the
supporting documents were not authenticated.[49] The allegation, baseless and
purely speculative, is one which we cannot countenance in view of the legal
presumption that official duty has been regularly performed.[50]
That the Presiding Judge of RTC Manila, Branch 19, made a personal determination
of the existence of probable cause on the basis of the documents forwarded by the
Hong Kong DOJ is further supported by the Order of Arrest against respondent
which states:
ORDER
This treats of the Application For Provisional Arrest of Juan Antonio Muoz, for the
purpose of extradition from the Republic of the Philippines.
This application was filed in behalf of the Government of Hong Kong Special
Administrative Region for the provisional arrest of Juan Antonio Muoz, pursuant to
Section 20 of Presidential Decree No. 1069, in relation to paragraph 1, Article 11 of
the Agreement for the Surrender of Accused and Convicted Persons between the
Republic of the Philippines and Hong Kong on provisional arrest. The application
alleged that Juan Antonio Muoz is wanted in Hong Kong for seven (7) counts of the
offense of accepting an advantage as an agent, contrary to Section 9(1) (9) of the
Prevention of Bribery Ordinance Cap. 201 of Hong Kong and seven (7) counts of the
offense of conspiracy to defraud, contrary to the Common Law of Hong Kong.
That a warrant of arrest was issued by the Magistrates Court at Eastern Magistracy,
Hong Kong on August 23, 1997, pursuant to the 14 charges filed against him before
the issuing Court. Juan Antonio Muoz is now alleged to be in the Philippines. He was
born on June 24, 1941, a holder of Philippines Passport No. 2K 934808, formerly an
employee of the Central Bank of the Philippines and with address at Phase 3, BF
Homes, No. 26 D C Chuan Street, Metro Manila.
That there is an urgency in the issuance of the provisional arrest warrant for the
reason that the application to discharge the restraint over the funds, subject of the
offenses, in his Citibank Account in Hong Kong was set for hearing on September
17, 1999 and that his lawyer in Hong Kong will be notified of the request of the
Hong Kong Government for his provisional arrest (sic) and Juan Antonio E. Muoz
upon knowledge of the request.
Considering that the Extradition treaty referred to is part of our systems of laws and
recognized by Presidential Decree No. 1069 and the Constitution itself by the
adoption of international laws, treaties and conventions as parts (sic) of the law of
the land, the application for provisional arrest of Juan Antonio Muoz is hereby
GRANTED. Let a warrant for his provisional arrest therefore issue.
SO ORDERED.[51] (Underscoring supplied.)
Finally, petitioner also avers that the respondent has waived his right to assail the Hong Kong Extradition Agreement does not specify that these documents must be
validity of his provisional arrest when he filed a motion for release on recognizance. authenticated copies. This may be gleaned from the fact that while Article 11(1)
Considering that we find petitioners other contentions to be impressed with merit, does not require the accompanying documents of a request for provisional arrest to
there is no need to delve further into this particular issue. be authenticated, Article 9 of the same Extradition Agreement makes
authentication a requisite for admission in evidence of any document
WHEREFORE, the petition is GRANTED, and the assailed Decision of the Court of accompanying a request for surrender or extradition. In other words,
Appeals, dated November 9, 1999, in CA-G.R. SP No. 55343 is hereby REVERSED and authentication is required for the request for surrender or extradition but not for
SET ASIDE. Respondents Urgent Motion For Release Pending Appeal is hereby the request for provisional arrest. The RP-Hong Kong Extradition Agreement, as
DENIED. they are worded, serves the purpose sought to be achieved by treaty stipulations
for provisional arrest. The process of preparing a formal request for extradition and
SO ORDERED. its accompanying documents, and transmitting them through diplomatic channels,
is not only time-consuming but also leakage-prone. There is naturally a great
Bellosillo, Mendoza, Quisumbing, and Buena, JJ., concur. likelihood of flight by criminals who get an intimation of the pending request for
their extradition. To solve this problem, speedier initial steps in the form of treaty
Cuevaz v. Muñoz (G.R. No. 140520; December 18, 2000) stipulations for provisional arrest were formulated. Thus, it is an accepted practice
for the requesting state to rush its request in the form of a telex or diplomatic
Facts: The Hong Kong Magistrate’s Court at Eastern Magistracy issued a warrant for cable. Respondent’s reliance on Garvida v. Sales, Jr. is misplaced. The proscription
the arrest of respondent Juan Antonio Muñoz for seven (7) counts of accepting an against the admission of a pleading that has been transmitted by facsimile machine
advantage as an agent and seven(7) counts of conspiracy to defraud, contrary to has no application in the case at bar for obvious reasons. First, the instant case does
the common law of Hong Kong. The Department of Justice received a request for not involve a pleading; and second, unlike the COMELEC.
the provisional arrest of the respondent from the Mutual Legal Assistance Unit,
International Law Division of the Hong Kong Department of Justice pursuant to
Article 11(1) of the RP-Hong Kong Extradition Agreement. Upon application of the
NBI, RTC of Manila issued an Order granting the application for provisional arrest
and issuing the corresponding Order of Arrest. Consequently, respondent was
arrested pursuant to the said order, and is currently detained at the NBI detention
cell. Respondent filed with the Court of Appeals, a petition for certiorari, prohibition
and mandamus with application for preliminary mandatory injunction and/or writ
of habeas corpus assailing the validity of the Order of Arrest. The Court of Appeals
rendered a decision declaring the Order of Arrest null and void on the grounds,
among others that the request for provisional arrest and the accompanying warrant
of arrest and summary of facts were unauthenticated and mere facsimile copies
which are insufficient to form a basis for the issuance of the Order of Arrest. Thus,
petitioner Justice Serafin R. Cuevas, in his capacity as the Secretary of the
Department of Justice, lost no time in filing the instant petition.

Issue: Whether or not the request for provisional arrest of respondent and its
accompanying documents must be authenticated.

Held: The request for provisional arrest of respondent and its accompanying
documents is valid despite lack of authentication. There is no requirement for the
authentication of a request for provisional arrest and its accompanying documents.
The enumeration in the provision of RP-
EN BANC

Promulgated:

EDUARDO TOLENTINO RODRIGUEZ and IMELDA GENER RODRIGUEZ, February 27, 2006

Petitioners, THE HONORABLE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF MANILA
BRANCH 17, GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by
- versus - the Philippine Department of Justice, and DIRECTOR OF NATIONAL BUREAU OF
INVESTIGATION,
G.R. No. 157977
Respondents.
Present:
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
PANGANIBAN, C.J.,

PUNO, DECISION

QUISUMBING,
QUISUMBING, J.:
YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ, Before us is a special civil action for certiorari and prohibition directed against the
Orders dated May 7, 2003[1] and May 9, 2003[2] of the Regional Trial Court of
CARPIO, Manila, Branch 17 in Case No. 01-190375, which cancelled the bail of petitioners
and denied their motion for reconsideration, respectively.
AUSTRIA-MARTINEZ,
The case stemmed from the petition for extradition filed on March 12, 2001 by the
CORONA, Government of the United States of America (US government) through the
Department of Justice (DOJ) against the petitioners.
CARPIO MORALES,
After their arrest, petitioners applied for bail which the trial court granted on
CALLEJO, SR., September 25, 2001. The bail was set for one million pesos for each. Petitioners
then posted cash bonds. The US government moved for reconsideration of the
AZCUNA, grant of bail, but the motion was denied by the trial court. Unsatisfied, the US
government filed a petition for certiorari with this Court, entitled Government of
TINGA, the United States of America, represented by the Philippine Department of Justice
v. Hon. Rodolfo A. Ponferrada, etc., et al., and docketed as G.R. No. 151456.
CHICO-NAZARIO, and
Thereafter, we directed the trial court to resolve the matter of bail which, according
GARCIA, JJ. to its November 28, 2001 Order,[3] shall be subject to whatever ruling that this
Court may have in the similar case of Mark Jimenez entitled Government of the
United States of America v. Purganan,[4] docketed as G.R No. 148571. In
compliance with our directive, the trial court, without prior notice and hearing,
cancelled the cash bond of the petitioners and ordered the issuance of a warrant of
arrest,[5] to wit:
Accordingly, following the En Banc Decision of the Supreme Court in G.R. No.
148571 dated September 24, 2002 to the effect that extraditees are not entitled to
bail while the extradition proceedings are pending (page 1, En Banc Decision in G.R.
No. 148571), let a warrant of arrest issue against the herein respondents sans any
bail, for implementation by the Sheriff or any member of any law enforcement
agency in line with Section 19 of Presidential Decree No. 1069.
IT IS SO ORDERED.
Petitioners filed a very urgent motion for the reconsideration of the cancellation of
their bail. The motion was heard and denied on May 9, 2003.[6]
Having no alternative remedy, petitioners filed the present petition on the following
grounds:
I extraditee is not a violation of the due process clause. Further, respondents
THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF
DISCRETION TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION IN CANCELLING
THE BAIL OF HEREIN PETITIONERS WITHOUT PRIOR NOTICE AND HEARING OF ITS
CANCELLATION.
II
THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT
CONSIDERING CERTAIN SPECIAL CIRCUMSTANCES ATTENDANT TO THE PRESENT
CASE, AS AN EXCEPTION TO THE GENERAL RULE OF NO-BAIL IN EXTRADITION CASES
WHEN PETITIONERS CASH BAIL WAS UNILATERALLY CANCELLED.
III
THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF
DISCRETION TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE
WARRANT OF ARREST WITHOUT CONSIDERING THE HEREIN PETITIONERS SPECIAL
CIRCUMSTANCE OF VOLUNTARY EXTRADITION PRIOR TO CANCELLING THEIR CASH
BAIL.[7]
Once again we face the controversial matter of bail in extradition cases. We are
asked to resolve twin issues: First, in an extradition case, is prior notice and hearing
required before bail is cancelled? Second, what constitutes a special circumstance
to be exempt from the no-bail rule in extradition cases?
Petitioners assert that their bail cannot be cancelled without due process of law. By
way of analogy, they point to Rule 114, Section 21[8] of the Rules of Court where
the surety or bonding company is required to be notified and allowed to show
cause why the bail bond should not be cancelled. They say that if the rules grant
this opportunity to surety and bonding companies, the more reason then that in an
extradition case the same should be afforded.
Petitioners also contend that this Courts directive in G.R. No. 151456 did not in any
way authorize the respondent court to cancel their bail. Petitioners aver that
respondent court should have first determined the facts to evaluate if petitioners
were entitled to continuance of their bail, e.g. their willingness to go on voluntary
extradition, which respondent court should have considered a special circumstance.
Respondents, for their part, argue that prior notice and hearing are not required to
cancel petitioners bail, and the issuance of a warrant of arrest ex parte against an
maintain that prior notice and hearing would defeat the purpose of the arrest
warrant since it could give warning that respondents would be arrested and even
encourage them to flee.
Besides, even granting that prior notice and hearing are indeed required,
respondents contend that petitioners had been effectively given prior notice and
opportunity to be heard, because the trial courts order clearly stated that the
matter of bail shall be subject to whatever ruling the Supreme Court may render in
the similar extradition case of Government of the United States of America v.
Purganan.[9] Petitioners did not contest the aforementioned order. Respondents
declare that petitioners were likewise notified of this Courts directives to the trial
court to resolve the matter of their bail.
More significantly, petitioners claim that their bail should not have been cancelled
since their situation falls within the exception to the general rule of no-bail. They
allege that their continuous offer for voluntary extradition is a special circumstance
that should be considered in determining that their temporary liberty while on bail
be allowed to continue. They cite that petitioner Eduardo is in fact already in the
United States attending the trial. They also have not taken flight as fugitives.
Besides, according to petitioners, the State is more than assured they would not
flee because their passports were already confiscated and there is an existing hold-
departure order against them. Moreover, petitioners assert, they are not a danger
to the community.

Respondents counter that petitioner Imelda Gener Rodriguez did not show her
good faith by her continued refusal to appear before the respondent court. Further,
the reasons of petitioners do not qualify as compelling or special circumstances.
Moreover, the special circumstance of voluntary surrender of petitioner Eduardo is
separate and distinct from petitioner Imeldas.
Additionally, respondents maintain that the ruling in the case of Atong Ang[10] has
no applicability in the instant case. Angs bail was allowed because the English
translation of a testimony needed to determine probable cause in Angs case would
take time. This special circumstance is not attendant in this case.
The issue of prior notice and hearing in extradition cases is not new. In Secretary of
Justice v. Lantion,[11] by a vote of nine to six, we initially ruled that notice and
hearing should be afforded the extraditee even when a possible extradition is still
being evaluated.[12] The Court, deliberating on a motion for reconsideration also
by a vote of nine to six, qualified and declared that prospective extraditees are
entitled to notice and hearing only when the case is filed in court and not during the
process of evaluation.[13]
In the later case of Purganan, eight justices concurred that a possible extraditee is
not entitled to notice and hearing before the issuance of a warrant of arrest while
six others dissented.
Now, we are confronted with the question of whether a prospective extraditee is
entitled to notice and hearing before the cancellation of his or her bail.
The issue has become moot and academic insofar as petitioner Eduardo Rodriguez
is concerned. He is now in the USA facing the charges against him. But co-petitioner
Imelda Gener Rodriguez is here and stands on a different footing. We agree that her
bail should be restored.
In Purganan, we said that a prospective extraditee is not entitled to notice and
hearing before the issuance of a warrant of arrest,[14] because notifying him before
his arrest only tips him of his pending arrest. But this is for cases pending the
issuance of a warrant of arrest, not in a cancellation of a bail that had been issued
after determination that the extraditee is a no-flight risk. The policy is that a
prospective extraditee is arrested and detained to avoid his flight from justice.[15]
On the extraditee lies the burden of showing that he will not flee once bail is
granted.[16] If after his arrest and if the trial court finds that he is no flight risk, it
grants him bail. The grant of the bail, presupposes that the co-petitioner has
already presented evidence to prove her right to be on bail, that she is no flight risk,
and the trial court had already exercised its sound discretion and had already
determined that under the Constitution and laws in force, co-petitioner is entitled
to provisional release.
Under these premises, and with the trial courts knowledge that in this case, co-
petitioner has offered to go on voluntary extradition; that she and her husband had
posted a cash bond of P1 million each; that her husband had already gone on
voluntary extradition and is presently in the USA undergoing trial; that the passport
of co-petitioner is already in the possession of the authorities; that she never
attempted to flee; that there is an existing hold-departure order against her; and
that she is now in her sixties, sickly and under medical treatment, we believe that
the benefits of continued temporary liberty on bail should not be revoked and their
grant of bail should not be cancelled, without the co-petitioner being given notice
and without her being heard why her temporary liberty should not be discontinued.
We emphasize that bail may be granted to a possible extraditee only upon a clear
and convincing showing (1) that he will not be a flight risk or a danger to the
community, and (2) that there exist special, humanitarian and compelling
circumstances.[17]
The trial courts immediate cancellation of the bail of petitioners is contrary to our
ruling in Purganan, and it had misread and misapplied our directive therein.
Now, was the order to issue warrant of arrest against petitioners and to cancel the
bail of extraditees a grave abuse of discretion of the trial court?
Grave abuse of discretion is capricious or whimsical exercise of judgment that is
patent and gross as to amount to an evasion of positive duty or a virtual refusal to
perform a duty enjoined by law.[18] In our view, the cancellation of co-petitioners
bail, without prior notice and hearing, could be considered a violation of co-
petitioners right to due process tantamount to grave abuse of discretion.
Finally, considering that remanding the case to the court a quo will only delay the
final resolution of the case as in all probability it would only end up with us
again,[19] we will decide if Imeldas bail was validly cancelled.
In Purganan, we held also that the grounds used by the highest court in the
requesting state for the grant of bail may be considered, under the principle of
reciprocity.[20]
Considering that she has not been shown to be a flight risk nor a danger to the
community, she is entitled to notice and hearing before her bail could be cancelled.
Based on the record, we find that, absent prior notice and hearing, the bails
cancellation was in violation of her right to due process.

WHEREFORE, the instant petition is GRANTED IN PART. The Orders dated May 7,
2003 and May 9, 2003 of the Regional Trial Court of Manila, Branch 17 in Case No.
01-190375 are REVERSED and SET ASIDE, as far as petitioner IMELDA GENER
RODRIGUEZ is concerned. We hereby (1) declare IMELDA GENER RODRIGUEZ
entitled to bail, (2) order her cancelled bail restored, and (3) order the warrant for
her arrest revoked.
SO ORDERED.
Rodriguez v. Hon. Presiding Judge of RTC Manila Branch 17
GR. NO. 157977 Feb. 27 2006
QUISUMBING, J
prove her right to be on bail, that she is no flight risk, and the trial court had already
exercised its sound discretion and had already determined that under the
Constitution and laws in force, co-petitioner is entitled to provisional release.
Under these premises, co-petitioner Imelda Gener Rodriguez has offered to go on
voluntary extradition; that she and her husband had posted a cash bond of P1
million each; that her husband had already gone on voluntary extradition and is
presently in the USA undergoing trial; that the passport of co-petitioner is already in
the possession of the authorities; that she never attempted to flee; that there is an
existing hold-departure order against her; and that she is now in her 60’s, sickly and
under medical treatment, we believe that the benefits of continued temporary
liberty on bail should not be revoked and their grant of bail should not be cancelled,
without the co-petitioner being given notice and without her being heard why her
temporary liberty should not be discontinued. Absent prior notice and hearing, the
bail’s cancellation was in violation of her right to due process.

Lessons: Notice and Hearing for Cancellation of Bail in Extradition We emphasize that bail may be granted to a possible extraditee only upon a clear
and
Laws: convincing showing that:
1) he will not be a flight risk or a danger to the community; and
FACTS: 2) there exist special, humanitarian and compelling circumstances

After the arrest of petitioners Eduardo Tolentino Rodriguez and Imelda Gener
Rodriguez,
they applied for bail which the trial court granted on September 25, 2001. They
posted cash bonds for the bail set for P1M for each. The US government moved for
reconsideration of the grant of bail which was denied. The US government filed a
petition for certiorari entitled Gov’t of the USA v. Hon. Ponferrada where the court
directed the trial court to resolve the matter of bail guided by this court’s ruling on
Government of the USA v. Hon. Purganan. The lower court, without prior notice
and hearing, cancelled the cash bond of the petitioners and ordered the issuance of
a warrant of arrest. Petitioners filed a very urgent motion for the reconsideration
of the cancellation of their bail which was denied. Hence, this special civil action for
certiorari and prohibition directed against the order for cancellation of cash bond
and issuance of a warrant of arrest.

ISSUE: Whether or NOT there should be notice and hearing before the cancellation
of bail

HELD: YES. Petition is GRANTED IN PART. SET ASIDE for petitioner IMELDA GENER
RODRIGUEZ.

The grant of the bail, presupposes that the co-petitioner has already presented
evidence to