Government of Hong Kong Special Admnistrative Regions vs Olalia, Jr.

& Muñoz
GR No. 153675 April 19, 2007

Facts:
 Juan Antonio Muñoz was charged before the Hong Kong Court with three counts of
the offense of "accepting an advantage as agent” and seven counts of the offense of
“conspiracy to defraud”.

 An Order of Arrest was issued by the Regional Trial Court (RTC) Manila against Muñoz
in lieu of the request received by the Department of Justice (DOJ) from the Hong
Kong Department of Justice for his provisional arrest. On the same day of the
issuance of the warrant, the National Bureau of Investigation (NBI) arrested and
detained him.

 Upon petition of Muñoz, the Court of Appeals (CA) declared the Order of Arrest void.
The Supreme Court (SC), however, sustained the validity of the Order of Arrest
against Muñoz. This became final and executory on April 10, 2001.

Procedural History:
RTC Manila
 November 22, 1999: Hong Kong Special Administrative Region (HK-SAR) filed with the
RTC Manila a petition for the extradition of Muñoz. In response, Muñoz filed a
petition for bail. The same was denied for the reason that there is no Philippine law
granting bail in extradition cases and that Muñoz is a high “flight risk”.

 Muñoz filed a motion for reconsideration which the court granted(December 20,
2001).

 The Hong Kong Special Administrative Region, in turn, filed an urgent motion to
vacate the said order granting bail but it was denied(April 10, 2002).

Issue:
WON the granting of bail is valid.

Whether or not respondent judge acted with grave abuse of discretion amounting to
lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a
potential extraditee.

WON the potential extraditee has a right to bail under the Constitution or statutory
law, the right being limited solely to criminal proceedings.

Petitioner’s contention:
Hong Kong-SAR alleged that the RTC committed grave abuse of discretion in
admitting Muñoz to bail, that there is nothing in the Constitution or statutory law providing
that a potential extraditee has a right to bail, the right being limited solely to criminal
proceedings.

Respondent’s contention:
Muñoz on the other hand contends that the right to bail guaranteed under the Bill of
Rights extends to a prospective extraditee and that extradition is a harsh process resulting
in a prolonged deprivation of one’s liberty.

Ruling:
Yes, the potential extraditee has a right to bail under the Constitution or statutory
law.

In the case of Government of United States of America v. Hon. Guillermo G. Purganan,

the Court limited the exercise of the right to bail to criminal proceedings. However, various
international treaties are now giving recognition and protection to human rights,
particularly the right to life and liberty.
In this case, the right of a prospective extraditee to apply for bail in this jurisdiction
must be viewed in the light of the various treaty obligations of the Philippines concerning
respect for the promotion and protection of human rights. Under these treaties, the
presumption lies in favor of human liberty. Thus, the Philippines should see to it that the
right to liberty of every individual is not impaired.

Furthermore, the Court ruled that if bail can be granted in deportation cases, there is
no justification why it should not also be allowed in extradition cases. Likewise, considering
that the Universal Declaration of Human Rights applies to deportation cases, there is no
reason why it cannot be invoked in extradition cases. After all, both are administrative
proceedings where the innocence or guilt of the person detained is not in issue.

Notes:
 Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law)
defines "extradition" as "the removal of an accused from the Philippines with the
object of placing him at the disposal of foreign authorities to enable the requesting
state or government to hold him in connection with any criminal investigation
directed against him or the execution of a penalty imposed on him under the penal or
criminal law of the requesting state or government."

 It is not a criminal proceeding.(Secretary of Justice v. Lantion, G.R. No. 139465, October

17, 2000, 343 SCRA 377)

 Even if the potential extraditee is a criminal, an extradition proceeding is not by its

nature criminal, for it is not punishment for a crime, even though such punishment
may follow extradition.(US ex rel Oppenheim v. Hecht, 16 F2d. 955, cert den. 273 US
969, 71 L. Ed. 883, 47 S. Ct. 572)

 It is sui generis, tracing its existence wholly to treaty obligations between different
nations.(State v. Chase, 107 So. 541, 91 Fla. 413; State v. Quigg, 108 So. 409, 91 Fla. 197)
 It is not a trial to determine the guilt or innocence of the potential extraditee.(Benson
v. McMahon, 127 US 457, 32 L. Ed. 234, 8 S. Ct. 1240; Jimenez v. Aristequieta, 311 F2d. 547,
stay den. 314 F2d. 649)

 Nor is it a full-blown civil action, but one that is merely administrative in

character.(Spatola v. US, 741 F. Supp. 362, Affd. 925 F2d. 615)

 Its object is to prevent the escape of a person accused or convicted of a crime and to
secure his return to the state from which he fled, for the purpose of trial or
punishment.(Re Henderson, 145 NW 574, 27 ND 155; State ex relTresoder v. Remann, 4
P2d. 866, 165 Wash. 92)

 But while extradition is not a criminal proceeding, it is characterized by the following:

(a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the
means employed to attain the purpose of extradition is also "the machinery of
criminal law."
Stonehill vs Diokno GR No. L-19550 June 19, 1967
Facts:
 Several judges issued 42 search warrants against Stonehill and other petitioners to
seize “books of accounts, financial records, vouchers, correspondence, receipts,
ledgers, journals, portfolios, credit journals, typewriters, and other documents and/or
papers showing all business transactions including disbursements receipts, balance
sheets and profit and loss statements and Bobbins (cigarette wrappers),” claiming
violations of “Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code)
and Revised Penal Code.” The documents were seized from two locations: (1) their
corporate offices and (2) the personal residences of the petitioners.

 Petitioners filed an original action for certiorari, prohibition, mandamus and

injunction.

 SC issued the writ of preliminary injunction prayed for in the petition. However, by
resolution, the writ was partially lifted or dissolved, insofar as the papers, documents
and things seized from the offices of the corporations above mentioned are
concerned; but, the injunction was maintained as regards the papers, documents and
things found and seized in the residences of petitioners herein.

 Thus, the documents, papers, and things seized under the alleged authority of the
warrants in question may be split into two (2) major groups, namely:
(a) those found and seized in the offices of the aforementioned corporations,
and
(b) those found and seized in the residences of petitioners herein.

Issue:
I. Whether or not the search warrants in question, and the searches and seizures
made under the authority thereof, are valid.

II. If the answer to the preceding question is in the negative, whether or not said
documents, papers and things may be used in evidence against petitioners herein.

Petitioner’s contention:
Petitioners alleged that the aforementioned search warrants are null and void, as
contravening the Constitution and the Rules of Court — because, inter alia:
(1) they do not describe with particularity the documents, books and things to
be seized;
(2) cash money, not mentioned in the warrants, were actually seized;
(3) the warrants were issued to fish evidence against the aforementioned
petitioners in deportation cases filed against them;
(4) the searches and seizures were made in an illegal manner; and (5) the
documents, papers and cash money seized were not delivered to the courts
that issued the warrants, to be disposed of in accordance with law.

Respondent’s contention:
 The respondent-judges claim that the warrants were valid, alleging:
(1) that the contested search warrants are valid and have been issued in
accordance with law;
(2) that the defects of said warrants, if any, were cured by petitioners' consent;
and
(3) that, in any event, the effects seized are admissible in evidence against
herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures and any possible defects are cured by Stonehill’s
consent.

Ruling:
I.
No, the search warrants (with regards to seizures made in the residences of
petitioners) in question, and the searches and seizures made under the authority thereof,
are not valid.

Note: As regards the warrants issued to the corporations, SC held that petitioners herein
have no cause of action to assail the legality of the contested warrants and of the seizures
made in pursuance thereof, for the simple reason that said corporations have their
respective personalities, separate and distinct from the personality of herein petitioners,
regardless of the amount of shares of stock or of the interest of each of them in said
corporations, and whatever the offices they hold therein may be.

Indeed, it is well settled that the legality of a seizure can be contested only by the
party whose rights have been impaired thereby, and that the objection to an unlawful
search and seizure is purely personal and cannot be availed of by third parties.

(Digester’s Note: In the warrants issued regarding the seizures in the corporate offices, the
court cannot decide whether it is valid or not because the petitioners cannot assail the validity
of said warrants. Reason stated above.)

Section 1, paragraph 3, of Article III of the 1935 Constitution provides: “The right of
the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable
cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized.” Furthermore, two points must be
stressed in connection with this constitutional mandate, namely: (1) that no warrant shall
issue but upon probable cause, to be determined by the judge in the manner set forth in
said provision; and (2) that the warrant shall particularly describe the things to be seized.

In this case, to uphold the validity of the warrants in question would be to wipe out
completely one of the most fundamental rights guaranteed in the Constitution, for it would
place the sanctity of the domicile and the privacy of communication and correspondence at
the mercy of the whims caprice or passion of peace officers. This is precisely the evil sought
to be remedied by the constitutional provision above quoted — to outlaw the so-called
general warrants. It is not difficult to imagine what would happen, in times of keen political
strife, when the party in power feels that the minority is likely to wrest it, even though by
legal means.

II.
No, said documents, papers and things may not be used in evidence against
petitioners herein.

In the language of Judge Learned Hand: “As we understand it, the reason for the
exclusion of evidence competent as such, which has been unlawfully acquired, is that
exclusion is the only practical way of enforcing the constitutional privilege.” (Pugliese (1945)
133 F. 2d. 497)

In this case, the non-exclusionary rule is contrary, not only to the letter, but also, to
the spirit of the constitutional injunction against unreasonable searches and seizures. To be
sure, if the applicant for a search warrant has competent evidence to establish probable
cause of the commission of a given crime by the party against whom the warrant is
intended, then there is no reason why the applicant should not comply with the
requirements of the fundamental law. Upon the other hand, if he has no such competent
evidence, then it is not possible for the Judge to find that there is probable cause, and,
hence, no justification for the issuance of the warrant. The only possible explanation (not
justification) for its issuance is the necessity of fishing evidence of the commission of a
crime. But, then, this fishing expedition is indicative of the absence of evidence to establish
a probable cause.

Notes:

 In fact, over thirty (30) years before, the Federal Supreme Court had already
declared:
If letters and private documents can thus be seized and held and used in
evidence against a citizen accused of an offense, the protection of the 4th
Amendment, declaring his rights to be secure against such searches and seizures, is
of no value, and, so far as those thus placed are concerned, might as well be stricken
from the Constitution. The efforts of the courts and their officials to bring the guilty to
punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great
principles established by years of endeavor and suffering which have resulted in their
embodiment in the fundamental law of the land.(Weeks vs. United States (1914) 232 U.S.
383, 58 L. ed. 652, 34 S. Ct. 341; emphasis supplied)

Concurring and Dissenting opinions:

Pestaño v. GRP-Human Rights Committee

Facts:
 Phillip Pestaño was an Officer of the Philippine Navy serving as cargo officer of the
ship “BRP Bacolod City” during its Mindanao voyage in September 1995.

 Sept. 25, 1995: Ship commander allows loading of 14k board feet of logs without
proper papers or authorization.

 Sept. 26: Phillip discloses to his father that unauthorized cargo includes 20 sacks of
shabu

 Sept. 27: 4 am, Phillip Pestaño boards BRP Bacolod City; 11 am: parents asked to
proceed to Navy HQ, since Phillip had an accident. Navy alleges their son committed
suicide

 PNP-CID (Criminal Investigation Division) and NBI affirms Navy's findings

 Radio operator of BRP Bacolod City (a friend of Phillip Pestano) drowns under highly
suspicious circumstances

 Another member of the Navy (perceived as an ally of Pestano) who was also aboard
BRP Bacolod City during Pestano's death mysteriously disappears

 Several Navy Flag Officers ask Felipe Pestano, the victim's father, to refrain from
pursuing their son's case against the Navy. The elder Pestano was offered a hundred
million peso contract together with a waiver of his action against the Navy. Pestano
refuses and subsequently, four ships being repaired by his company sinks
mysteriously, and their offices are ransacked and looted. His nephew, the company's
property custodian was also shot dead.

 Leaked copy of an armed forces intelligence report states the Phillip was killed to
prevent him from revealing criminal activities aboard the ship

 Another member of the Philippine Navy mysteriously died in a military hospital, after
a strange and quick deterioration of his condition. This person was suspected of
involvement in the “shabu operation” in the BRP Bacolod City, as well as in the death
of Phillip, and had engaged in discreet talks with Spouses Pestaño before their’s son’s
death. He was believed to be ready to reveal important information before he died.

 Four persons are killed in connection with the September 1995 voyage of the BRP
Bacolod City. The four killings remain uninvestigated, and unaccounted for.

 Spouses Pestaño filed complaints against the Commanding Officer and certain crew
members of the BRP Bacolod City:
(1) in September 1995 with the Philippine Navy;
(2) in September 1995 with the Philippine National Police and the National Bureau
of Investigation of the Department of Justice. Both proceedings led to the
conclusion that Phillip had committed suicide;
 (3) in January 1998 with the Philippine Senate (Committees on Justice-Human
Rights and Defense-National Security);
(4) in March 2000 with Ombudsman Aniano Desierto;
(5) and in October 2005 with a new Ombudsman (Simeon Marcelo), who was
replaced thereafter. No action was taken on the case by the new Ombudsman,
Merceditas Gutierrez, since she took office in December 2005.

 After eight Committee hearings, a visual inspection of the stateroom of the authors’
son in the ship, and relying, inter alia, on expert evidence and witness testimonies,
two Senate Committees issued a Joint report on the Pestaño case, which contained
the following findings:
(i) The authors’ son did not kill himself on the BRP Bacolod City on 27 September
1995;
(ii) he was shot in one place in the vessel different from the one where his body was
found;
(iii) after his death, his body was moved and laid on the bed where it was found;
(iv) he must have been shot on board the BRP Bacolod City before the vessel reached
the Navy Headquarters on 27 September 1995;
(v) there was a deliberate attempt to make it appear that the authors’ son killed
himself inside his stateroom; and
(vi) such an attempt was so deliberate and elaborate that one person could not have
accomplished it by himself.

 The Senate Committees also recommended, inter alia, that an independent

investigation be conducted on the circumstances surrounding the murder of the
authors’ son, so as to bring the perpetrators to justice, and identify the other
individuals who participated in the deliberate attempt to portray a suicide.

 The Ombudsman (Fact-finding and Intelligence Bureau) in charge of the file dismissed
the case without prejudice, concluding in its evaluation report that “the conduct of
further investigation in order to find out the identity of the perpetrator and his
accomplices, if any, will only be a waste of time, considering that the physical
evidence has already been tampered with, not to mention the lapse of time”.

 Upon the retirement of the Ombudsman, and the appointment of his successor,
whose reputation for integrity was unassailable, the authors filed a new complaint
with the Office of the Ombudsman on 27 October 2005.

 In December 2005, the Ombudsman found merit in the authors’ petition, reopened
the case, and requested from the Commanding Officer of the BRP Bacolod City in
September 1995, and from eight senior and junior officers and enlisted personnel to
submit counter-affidavits as respondents within ten days. Only one week after
reopening the authors’ case, the Ombudsman stepped down, and was replaced.
Since then, the case was left uninvestigated in the Office of the Ombudsman for
military affairs.

 Thus, this petition.

The complaint:
1. The authors submit that the State party violated their son’s rights under article 2,
paragraph 3; article 6; article 9, paragraph 1, and article 17, paragraph 1, of the
Covenant.

2. They recall the Senate Committee’s findings of 1998, which they believe conclusively
established that their son did not commit suicide, but was murdered. They add that
there was a deliberate and elaborate conspiracy to cover-up his death, including
through fabrication destruction or tampering of evidence, as well as
misrepresentation and distortion of facts, all of which constituted an obstruction of
justice, and an unlawful attack against the authors’ son honour.

3. The authors add that the entire State party’s apparatus, including its criminal
investigation law enforcement and judicial organs, jointly and severally participated
in such conspiracy, with the exception of the Senate. By so doing, the State party
deprived the authors’ son of his right to redress for the violation of his human rights,
and thereby denied him justice for twelve years.

State’s arguments:
 State challenges admissibility of the communication per exhaustion of administrative
remedies, as the case is still pending with the Ombudsman.

 The State party further notes that the death of the authors’ son is an “ordinary
criminal case”, with no evidence of State participation or acquiescence. This is
confirmed by the fact that the Office of the Ombudsman reopened the action. Since
the case is being actively heard by the latter instance, the authors have not
exhausted domestic remedies within the meaning of article 2 of the Optional
Protocol.

 On the merits, and regarding the authors’ allegation of a violation of their son’s right
to life, the State party contends that this claim is ill-founded, as nothing in the
authors’ allegations or in the evidence available is capable of establishing the
participation of the State party in the alleged violation. The fact that two Senators
filed a resolution on the case, which paved the way for the investigation and the very
same report, of which the authors avail themselves for the present complaint, is in
itself an indication that the State party cannot be accused of conspiracy to deprive
the authors’ son of his right to life and his right to an effective remedy.

Author’s comments:
 On the question of exhaustion of domestic remedies, they draw the Committee’s
attention to the Ombudsman’s Order which enjoined respondents in the case to file
counter-affidavits, after he found merit in the authors’ complaint. This Order was
issued for the counts of murder and grave misconduct, and thus covered both the
criminal and administrative parts of the action. The request for an extension, which
they sought, only concerned the administrative part of the proceedings.

 The authors add that as per the Ombudsman’s Order, the deadline for the submission
of affidavits by respondents was ten days from receipt of the Order, and has
therefore long elapsed. The Order expressly stated that the absence of submission of
 a defense by the respondents should be considered as a waiver of their right to
produce rebuttal evidence. Accordingly, the case should have been considered on
the basis of available evidence, without further notice. The authors had submitted all
required documents for the criminal and administrative proceedings, and the case
should have already have been considered a long time ago.

 This delay demonstrates that the Ombudsman, as an instrument of the State party, is
responsible for delaying the judicial process, which in turn demonstrates that the
authors do not have effective remedies at their disposal within the State party’s
instances. According to them, the deliberate delay of thirteen years in the
proceedings is tantamount to a denial of justice.

 The authors also dispute the State party’s contention on the merits. They argue that
its direct and continuous participation in the violation of the right to life of their son is
manifest. In their action filed with the Ombudsman, all respondents were members
of the State party’s Navy, an institution of the State party. Respondents were
represented by the Office of the Naval Judge Advocate, i.e. an agent of the State
party.

Issue:
Whether or not the communication is admissible under the Optional Protocol to the
Covenant.

State’s contention:
The State party has argued that the communication is inadmissible for failure to
exhaust domestic remedies.

Authors’ contention:
The authors claim that the procedure within the Office of the Ombudsman is an
ineffective remedy, since this body failed to initiate a timely and effective investigation into
the alleged murder of their son since it was seized of the case in 2000. The authors affirm
that despite the fact that the case was reopened in October 2005, no meaningful action has
been taken by the incumbent Ombudsman since she took office in December 2005.

Ruling:
Consideration of admissibility
 The Committee recalls that it is precluded from considering any communication
unless it has been ascertained that all available domestic remedies have been
exhausted. For the purposes of article 5, paragraph 2 (b), of the Optional Protocol,
however, domestic remedies must both be effective and available, and must not be
unduly prolonged.

In the circumstances of this case, the Committee notes that the State party has
failed to show that any investigation has been initiated since the date of the alleged
offence, with the final aim of ensuring the effective prosecution and punishment of
the perpetrator/s of the alleged murder. Under these circumstances, and considering
that almost 15 years elapsed since the date of the alleged offence, the Committee
considers that domestic remedies have been unreasonably prolonged. The
Committee accordingly finds that article 5, paragraph 2 (b) of the Optional Protocol
does not preclude it from considering the complaint.
  Concerning the alleged violation of article 9, paragraph 1 of the Covenant, the
authors claim that they received an anonymous call, informing them that their son’s
life was in danger, the day before he was found dead. However, there is no evidence
that the authors reported these threats against their son to the State au0thorities,
and if so, that the State party failed to take appropriate action for this protection.
Nor is there any conclusive evidence that the State party was itself involved in
threatening the authors’ son.

In the absence of any further arguments put forward by the authors on this
issue, the Committee considers that these claims are not sufficiently substantiated
for the purposes of admissibility and concludes that they are inadmissible under
article 2 of the Optional Protocol.

 The Committee notes that the authors’ claim under article 17 paragraph 1, to the
effect that the State party’s attempt to make it appear that the victim committed
suicide, is to be construed as an unlawful attack against his honour. It considers that
this claim has not been sufficiently substantiated for the purposes of admissibility,
and is inadmissible under article 2 of the Optional Protocol.

 The Committee considers that the authors’ claims under article 6, read in conjunction
with article 2, paragraph 3, have been sufficiently substantiated, for the purposes of
admissibility, and proceeds to their examination on the merits.

Consideration of the merits:

 With regard to the authors’ contention that article 6 was violated, the Committee
recalls that the right to life is the supreme right, from which no derogation is
permitted.

 It further recalls that States parties have a positive obligation to ensure the
protection of individuals against violations of Covenant rights, which may be
committed not only by its agents, but also by private persons or entities.

 The Committee also refers to its jurisprudence, according to which both a criminal
investigation and consequential prosecution are necessary remedies for violations of
human rights such as those protected by article 6. A violation of the Covenant may
therefore arise as a result of a State party’s failure to take appropriate measures to
punish, investigate or redress such a violation.

 Despite the initial findings of the State party’s National Police and Department of
Justice, which both concluded in October 1995 that the victim had committed suicide,
it now appears undisputed that the death of the authors’ son was a violent one,
resulting from a homicide.

 The State party’s submissions of 18 January and 8 May 2008, contending that the
author’s case was “an ordinary criminal case”, at least concede this fact.

 The Committee took note of the conclusions of the substantial Senate, which
established that the victim was shot on board the BRP Bacolod City on 27 September
 1995, that there had been a deliberate attempt to make it appear that the authors’
son killed himself, and which recommended that an independent investigation be
conducted. The Committee further noted that an administrative and criminal action
filed by the authors is currently pending against members of the State party’s Navy,
i.e. of an organ of the State party.

 The Committee takes note of the authors’ assertions:

(1)the deaths of two other members who were close to the victim and the death of
the possible informant of the authors;
(2) having been threatened by a Vice-Admiral of the State party’s Navy to lose their
business with the Navy should they persist in their complaint;
(3) authors lost their business, and their nephew, the company’s property custodian,
was killed.

 In the absence of rebuttal statements, or any comments from the State party on
these facts, the Committee gives due weight to the authors’ contentions, which raise
a strong presumption of direct participation of the State party in the violation of their
son’s right to life.

 The Committee considers that the killing of the authors’ son on board a ship of the
State party’s Navy warranted a speedy, independent investigation on the possible
involvement of the Navy in the crime.

 The Committee recalls that the deprivation of life by the authorities of the State is a
matter of utmost gravity, and that the authorities have the duty to investigate in
good faith all allegations of violations of the Covenant made against it and its
authorities. To simply state that there was no direct participation of the State party in
the violation of the victim’s right to life falls short of fulfilling such positive obligation
under the Covenant.

 While close to fifteen years elapsed since the death of the victim, the authors are still
ignorant of the circumstances surrounding their son’s death, and the State party’s
authorities have yet to initiate an independent investigation.

 The Committee has given due consideration to the authors’ claim under article 6 that
the death of their son is directly attributable to the State party. When a person dies in
circumstances that might involve a violation of the right to life, the State party is
bound to conduct an investigation and ensure that there is no impunity. The State
party must accordingly be held to be in breach of its obligation, under article 6, read
in conjunction with article 2, paragraph 3, to properly investigate the death of the
authors’ son, prosecute the perpetrators, and ensure redress.

 Under article 2, paragraph 3(a), of the Covenant, the State party is under an
obligation to provide the authors with an effective remedy in the form, inter alia, of
an impartial, effective and timely investigation into the circumstances of their son’s
death, prosecution of perpetrators, and adequate compensation. The State party is
also under an obligation to prevent similar violations in the future.