Lumigues v Exevea

282 SCRA 125 (89 SCAD 151)

Law on Public Officers – Right to Due Process – Public Office is Not a Property

Arsenio Lumiqued was the Regional Director of DAR-CAR. He was charged by Jeannette Zamudio, the
Regional Cashier, for dishonesty due to questionable gas expenses under his office. It was alleged that
he was falsifying gas receipts for reimbursements and that he had an unliquidated cash advance worth
P116,000.00. Zamudio also complained that she was unjustly removed by Lumiqued two weeks after she
filed the two complaints. The issue was referred to the DOJ. Committee hearings on the complaints were
conducted on July 3 and 10, 1992, but Lumiqued was not assisted by counsel. On the second hearing
date, he moved for its resetting to July 17, 1992, to enable him to employ the services of counsel. The
committee granted the motion, but neither Lumiqued nor his counsel appeared on the date he himself
had chosen, so the committee deemed the case submitted for resolution. The Investigating Committee
recommended the dismissal  ofLumiqued. DOJ Sec Drilon adopted the recommendation. Fidel Ramos
issued AO 52 dismissing Lumiqued.

Lumiqued appealed averring that his right to due process was violated as well as his right to security of
tenure.

ISSUE: Does the due process clause encompass the right to be assisted by counsel during an
administrative inquiry?

HELD: No. The right to counsel, which cannot be waived unless the waiver is in writing and in the
presence of counsel, is a right afforded a suspect or an accused during custodial investigation. It is not an
absolute right and may, thus, be invoked or rejected in a criminal proceeding and, with more reason, in
an administrative inquiry. In the case at bar, Lumiqued invoked the right of an accused in criminal
proceedings to have competent and independent counsel of his own choice. Lumiqued, however, was
not accused of any crime. The investigation conducted by the committee was for the purpose of
determining if he could be held administratively liable under the law for the complaints filed against
him.   The right to counsel is not indispensable to due process unless required by the Constitution or the
law.

“. . . There is nothing in the Constitution that says that a party in a non-criminal proceeding is entitled to
be represented by counsel and that, without such representation, he shall not be bound by such
proceedings. The assistance of lawyers, while desirable, is not indispensable. The legal profession was
not engrafted in the due process clause such that without the participation of its members, the
safeguard is deemed ignored or violated. The ordinary citizen is not that helpless that he cannot validly
act at all except only with a lawyer at his side.”

In administrative proceedings, the essence of due process is simply the opportunity to explain one’s
side. Whatever irregularity attended the proceedings conducted by the committee was cured by
Lumiqued’s appeal and his subsequent filing of motions for reconsideration.

The Supreme Court also emphasized that the constitutional provision on due process safeguards life,
liberty and property. Public office is a public trust. It is not a property guaranteed of due process. But
when the dispute concerns one’s constitutional right to security of tenure, however, public office is
deemed analogous to property in a limited sense; hence, the right to due process could rightfully be
invoked. Nonetheless, the right to security of tenure is not absolute especially when it was proven, as in
this case, that the public officer (Lumiqued) did not live up to the Constitutional precept i.e., that all
public officers and employees must serve with responsibility, integrity, loyalty and efficiency.

SECRETARY OF JUSTICE v. LANTION

322 SCRA 160

FACTS:         
Secretary Of Justice Franklin Drilon, representing the Government of the Republic of the Philippines,
signed in Manila the “extradition Treaty Between the Government of the Philippines and the
Government of the U.S.A. The Philippine Senate ratified the said Treaty.
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S Note
Verbale No. 0522 containing a request for the extradition of private respondent Mark Jiminez to the
United States.
On the same day petitioner designate and authorizing a panel of attorneys to take charge of and to
handle the case. Pending evaluation of the aforestated extradition documents, Mark Jiminez through
counsel, wrote a letter to Justice Secretary requesting copies of the official extradition request from the
U.S Government and that he be given ample time to comment on the request after he shall have
received copies of the requested papers but the petitioner denied the request for the consistency of
Article 7 of the RP-US Extradition Treaty stated in Article 7 that the Philippine Government must present
the interests of the United States in any proceedings arising out of a request for extradition.

ISSUE: Whether or not to uphold a citizen’s basic due process rights or the governments ironclad duties
under a treaty.

RULING: Petition dismissed.

The human rights of person, whether citizen or alien , and the rights of the accused guaranteed in our
Constitution should take precedence over treaty rights claimed by a contracting state. The duties of the
government to the individual deserve preferential consideration when they collide with its treaty
obligations to the government of another state. This is so although we recognize treaties as a source of
binding obligations under generally accepted principles of international law incorporated in our
Constitution as part of the law of the land.
The doctrine of incorporation is applied whenever municipal tribunals are confronted with situation in
which there appears to be a conflict between a rule of international law and the provision of the
constitution or statute of the local state.

Petitioner (Secretary of Justice) is ordered to furnish Mark Jimenez copies of the extradition request and
its supporting papers, and to grant him (Mark Jimenez) a reasonable period within which to file his
comment with supporting evidence.

“Under the Doctrine of Incorporation, rules of international law form part of the law of the land and no
further legislative action is needed to make such rules applicable in the domestic sphere.

“The doctrine of incorporation is applied whenever municipal tribunals are confronted with situations in
which there appears to be a conflict between a rule of international law and the provisions of the
constitution or statute of the local state.
“Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed
that municipal law was enacted with proper regard for the generally accepted principles of international
law in observance of the incorporation clause in the above cited constitutional provision.

“In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule
of international law and a municipal law, jurisprudence dictates that municipal law should be upheld by
the municipal courts, for the reason that such courts are organs of municipal law and are accordingly
bound by it in all circumstances.

“The fact that international law has been made part of the law of the land does not pertain to or imply
the primacy of international law over national or municipal law in the municipal sphere. The doctrine of
incorporation, as applied in most countries, decrees that rules of international law are given equal
standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex
posterior derogate priori takes effect – a treaty may repeal a statute and a statute may repeal a treaty.
In states where the Constitution is the highest law of the land, such as the Republic of the Philippines,
both statutes and treaties may be invalidated if they are in conflict with the constitution

Government of the USA v. Hon. Purganan

GR. NO. 148571 Sept. 24 2002
PANGANIBAN, J.

FACTS:

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

    Government of the USA filed a petition for Certiorari under Rule 65 of the Rules of Court to set aside
the order for the issuance of a warrant for his arrest and fixing bail for his temporary liberty at P1M in
cash which the court deems best to take cognizance as there is still  no local jurisprudence to guide
lower court.
    
ISSUES: 
i.    Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential
extraditee before issuing an arrest warrant under Section 6 of PD No. 1069
ii.    Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction in granting the prayer for bail
iii.    Whether or NOT there is a violation of due process

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

i.    YES. 

By using the phrase “if it appears,” the law further conveys that accuracy is not as
important as speed at such early stage.  From the knowledge and the material then available to it, the
court is expected merely to get a good first impression or a prima facie finding sufficient to make a
speedy initial determination as regards the arrest and detention of the accused.  The prima facie
existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant was
already evident from the Petition itself and its supporting documents.  Hence, after having already
determined therefrom that a prima facie finding did exist, respondent judge gravely abused his
discretion when he set the matter for hearing upon motion of Jimenez.  The silence of the Law and the
Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a
hearing every little step in the entire proceedings.  It also bears emphasizing at this point that
extradition proceedings are summary in nature.  Sending to persons sought to be extradited a notice of
the request for their arrest and setting it for hearing at some future date would give them ample
opportunity to prepare and execute an escape which neither the Treaty nor the Law could have
intended.

    Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice
or a hearing before the issuance of a warrant of arrest.   To determine probable cause for the issuance
of arrest warrants, the Constitution itself requires only the examination under oath or affirmation of
complainants and the witnesses they may produce.

The Proper Procedure to “Best Serve The Ends Of Justice” In Extradition Cases
    Upon receipt of a petition for extradition and its supporting documents, the judge must study them
and make, as soon as possible, a prima facie finding whether
a)    they are sufficient in form and substance
b)    they show compliance with the Extradition Treaty and Law
c)    the person sought is extraditable

At his discretion, the judge may require the submission of further documentation or may personally
examine the affiants and witnesses of the petitioner.  If, in spite of this study and examination, no prima
facie finding is possible, the petition may be dismissed at the discretion of the judge.  On the other hand,
if the presence of a prima facie case is determined, then the magistrate must immediately issue a
warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and
to appear at scheduled summary hearings.  Prior to the issuance of the warrant, the judge must not
inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the
opportunity to escape and frustrate the proceedings.  

ii.    Yes.

The constitutional provision on bail on Article III, Section 13 of the Constitution, as well
as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and
detained for violation of Philippine criminal laws.  It does not apply to extradition proceedings, because
extradition courts do not render judgments of conviction or acquittal.  Moreover, the constitutional right
to bail “flows from the presumption of innocence in favor of every accused who should not be subjected
to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond
reasonable doubt.  In extradition, the presumption of innocence is not at issue.  The provision in the
Constitution stating that the “right to bail shall not be impaired even when the privilege of the writ of
habeas corpus is suspended” finds application “only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.”   

    That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not
an argument to grant him one in the present case.  Extradition proceedings are separate and distinct
from the trial for the offenses for which he is charged.  He should apply for bail before the courts trying
the criminal cases against him, not before the extradition court.

Exceptions to the “No Bail” Rule

    Bail is not a matter of right in extradition cases.  It is subject to judicial discretion in the context of the
peculiar facts of each case.  Bail may be applied for and granted as an exception, only upon a clear and
convincing showing
1)    that, once granted bail, the applicant will not be a flight risk or a danger to the community; and
2)    that there exist special, humanitarian and compelling circumstances including, as a matter of
reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in
extradition cases therein

    Since this exception has no express or specific statutory basis, and since it is derived essentially from
general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered
requirement with clarity, precision and emphatic forcefulness. 

    It must be noted that even before private respondent ran for and won a congressional seat in Manila,
it was already of public knowledge that the United States was requesting his extradition.  Therefore, his
constituents were or should have been prepared for the consequences of the extradition case.  Thus,
the court ruled against his claim that his election to public office is by itself a compelling reason to grant
him bail.    

    Giving premium to delay by considering it as a special circumstance for the grant of bail would be
tantamount to giving him the power to grant bail to himself.  It would also encourage him to stretch out
and unreasonably delay the extradition proceedings even more.   Extradition proceedings should be
conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and,
while safeguarding basic individual rights, to avoid the legalistic contortions,  delays and technicalities
that may negate that purpose.
    
    That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground
and still be within reach of our government if and when it matters; that is, upon the resolution of the
Petition for Extradition.
    
iii.    NO.

    Potential extraditees are entitled to the rights to due process and to fundamental fairness.  The
doctrine of right to due process and fundamental fairness does not always call for a prior opportunity to
be heard.   A subsequent opportunity to be heard is enough.  He will be given full opportunity to be
heard subsequently, when the extradition court hears the Petition for Extradition.  Indeed, available
during the hearings on the petition and the answer is the full chance to be heard and to enjoy
fundamental fairness that is compatible with the summary nature of extradition.

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

Other Doctrines:

Five Postulates of Extradition

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

In this era of globalization, easier and faster international travel, and an expanding ring of 
international crimes and criminals, we cannot afford to be an isolationist state.  We need to cooperate
with other states in order to improve our chances of suppressing crime in our own country.

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

By entering into an extradition treaty, the Philippines is deemed to have reposed its trust
in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability
and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein.

3)    The Proceedings Are Sui Generis

An extradition proceeding is sui generis:

a)    It is not a criminal proceeding which will call into operation all the rights of an accused as
guaranteed by the Bill of Rights.  It does not involve the determination of the guilt or innocence of an
accused.  His guilt or innocence will be adjudged in the court of the state where he will be extradited.
b)    An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial.
c)    In terms of the quantum of evidence to be satisfied, a criminal case requires proof “beyond
reasonable doubt” for conviction while a fugitive may be ordered extradited “upon showing of the
existence of a prima facie case”
d)    Unlike in a criminal case where judgment becomes executory upon being rendered final, in an
extradition proceeding, our courts may adjudge an individual extraditable but the President has the final
discretion to extradite him.

Extradition is merely a measure of international judicial assistance through which a person charged with
or convicted of a crime is restored to a jurisdiction with the best claim to try that person.  The ultimate
purpose of extradition proceedings in court is only to determine whether the extradition request
complies with the Extradition Treaty, and whether the person sought is extraditable.

4)    Compliance Shall Be in Good Faith.

We are bound by pactasuntservanda to comply in good faith with our obligations

under the Treaty.  Accordingly, the Philippines must be ready and in a position to deliver the
accused, should it be found proper

5)    There Is an Underlying Risk of Flight

Indeed, extradition hearings would not even begin, if only the accused were
willing to submit to trial in the requesting country. Prior acts of herein respondent:
a)    leaving the requesting state right before the conclusion of his indictment proceedings there; and 
b)    remaining in the requested state despite learning that the requesting state is seeking his return and
that the crimes he is charged with are bailable

Extradition is Essentially Executive

Extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power
to conduct foreign relations and to implement treaties.  Thus, the Executive Department of government
has broad discretion in its duty and power of implementation.

PHILIPPINE GUARDIANS BROTHERHOOD, INC. (PGBI) represented by its Secretary General George “FGBF
George” Duldulao, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

[G.R. No. 190529. April 29, 2010]

FACTS:

Respondent delisted petitioner, a party list organization, from the roster of registered national, regional
or sectoral parties, organizations or coalitions under the party-list system through its resolution, denying
also the latter’s motion for reconsideration, in accordance with Section 6(8) of Republic Act No. 7941
(RA 7941), otherwise known as the Party-List System Act, which provides:

Section 6. Removal and/or Cancellation of Registration. – The COMELEC may motuproprio or upon

verified complaint of any interested party, remove or cancel, after due notice and hearing, the
registration of any national, regional or sectoral party, organization or coalition on any of the following
grounds:

x  x  x  x

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum
(2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency
in which it has registered.[Emphasis supplied.]

Petitioner was delisted because it failed to get 2% of the votes cast in 2004 and it did not participate in
the 2007 elections.  Petitioner filed its opposition to the resolution citing among others the
misapplication in the ruling of MINERO v. COMELEC, but was denied for lack of merit. Petitioner
elevated the matter to SC showing the excerpts from the records of Senate Bill No. 1913 before it
became the law in question.

ISSUES:

Political Law

(1)  Whether or not there is legal basis in the delisting of PGBI.

(2)  Whether or not PGBI’s right to due process was violated.

Civil Law (Statutory Construction)

(1)  Whether or not the doctrine of judicial precedent applies in this case.

RULINGS:

Political Law

(1)  No. The MINERO ruling is an erroneous application of Section 6(8) of RA 7941; hence, it cannot
sustain PGBI’s delisting from the roster of registered national, regional or sectoral parties, organizations
or coalitions under the party-list system. First, the law is in the plain, clear and unmistakable language of
the law which provides for two (2) separate reasons for delisting. Second, MINERO is diametrically
opposed to the legislative intent of Section 6(8) of RA 7941, as PGBI’s cited congressional deliberations
clearly show. MINERO therefore simply cannot stand.

(2)  No. On the due process issue, petitioner’s right to due process was not violated for [it] was given an
opportunity to seek, as it did seek, a reconsideration of [COMELEC resolution].  The essence of due
process, consistently held, is simply the opportunity to be heard; as applied to administrative
proceedings, due process is the opportunity to explain one’s side or the opportunity to seek a
reconsideration of the action or ruling complained of.  A formal or trial-type hearing is not at all times
and in all instances essential.  The requirement is satisfied where the parties are afforded fair and
reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is
absolute lack of notice and hearing x  x  x. [It is] obvious [that] under the attendant circumstances that
PGBI was not denied due process.