pil addl cases.doc

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G.R. No. L-4254 September 26, 1951

BORIS MEJOFF, petitioner,vs.THE DIRECTOR OF PRISONS, respondent.

Ambrosio T. Dollete for petitioner.First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor for respondents.

TUASON, J.:

This is a second petition forhabeas corpus by Boris Mejoff, the first having been denied in a decision of thisCourt of July 30, 1949. The history of the petitioner's detention was thus briefly set forth in that decision, writtenby Mr. Justice Bengzon:

The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country fromShanghai as a secret operative by the Japanese forces during the latter's regime in these Islands.Upon liberation he was arrested as a Japanese spy, by U.S. Army Counter Intelligence Corps. Later hewas handed to theCommonwealth Government for disposition in accordance with Commonwealth ActNo. 682. Thereafter, the People's Court ordered his release. But the deportation Board taking his case

up, found that having no travel documents Mejoff was illegally in this country, and consequentlyreferred the matter to the immigration authorities. After the corresponding investigation, the Board ofcommissioners of Immigration on April 5, 1948, declared that Mejoff had entered the Philippinesillegally in 1944, without inspection and admission by the immigration officials at a designation port ofentry and, therefore, it ordered that he be deported on the first available transportation to Russia. Thepetitioner was then under custody, he having been arrested on March 18, 1948. In May 1948 he wastransferred to the Cebu Provincial Jail together with three other Russians to await the arrival of someRussian vessels. In July and August of that year two boats of Russian nationality called at the CebuPort. But their masters refused to take petitioner and his companions alleging lack of authority to do so.In October 1948 after repeated failures to ship this deportee abroad, the authorities removed him toBilibid Prison at Muntinglupa where he has been confined up to the present time, inasmuch as theCommissioner of Immigration believes it is for the best interests of the country to keep him under

detention while arrangements for his departure are being made.

The Court held the petitioner's detention temporary and said that "temporary detention is a necessary step inthe process of exclusion or expulsion of undesirable aliens and that pending arrangements for his deportation,the Government has the right to hold the undesirable alien under confinement for a reasonable lenght of time."It took note of the fact, manifested by the Solicitor General's representative in the course of the of the oralargumment, that "this Government desires to expel the alien, and does not relish keeping him at the people'sexpense . . . making efforts to carry out the decree of exclusion by the highest officer of the land." No periodwas fixed within which the immigration authorities should carry out the contemplated deportation beyond thestatement that "The meaning of 'reasonable time' depends upon the circumstances, specially the difficulties ofobtaining a passport, the availability of transportation, the diplomatic arrangements with the governmentsconcerned and the efforts displayed to send the deportee away;" but the Court warned that "under established

precedents, too long a detention may justify the issuance of a writ ofhabeas corpus."

Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of this decisiondissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge of the prisoner from custody.Mr. Justice Paras qualified his dissent by stating that he might agree "to further detention of the hereinpetitioner, provided that he be released if after six months, the Government is still unable to deport him." Thiswriter joined in the latter dissent but thought that two months constituted reasonable time.

Over two years having elapsed since the decision aforesaid was promulgated, the Government has not foundway and means of removing the petitioner out of the country, and none are in sight, although it should be saidin justice to the deportation authorities, it was through no fault of theirs that no ship or country would take thepetitioner.


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Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon, Sept. 18, 1946157 F. ed., 289, 290), even if they are "stateless," which the petitioner claims to be. It is no less true however,as impliedly stated in this Court's decision, supra, that foreign nationals, not enemy against whom no chargehas been made other than that their permission to stay has expired, may not indefinitely be kept in detention.The protection against deprivation of liberty without due process of law and except for crimes committedagainst the laws of the land is not limited to Philippine citizens but extends to all residents, except enemyaliens, regardless of nationality. Whether an alien who entered the country in violation of its immigration lawsmay be detained for as long as the Government is unable to deport him, is a point we need not decide. Thepetitioner's entry into the Philippines was not unlawful; he was brought by the armed and belligerent forces of

a de facto government whose decrees were law furing the occupation.

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles ofinternational law as part of the law of Nation." And in a resolution entitled "Universal Declaration of HumanRights" and approved by the General Assembly of the United Nations of which the Philippines is a member, atits plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights asapplied to all human beings were proclaimed. It was there resolved that "All human beings are born free andequal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and freedom set forth in thisDeclaration, without distinction of any kind, such as race, colour, sex, language, religion, political or otheropinion, nationality or social origin, property, birth, or other status" (Art. 2): that "Every one has the right to aneffective remedy by the competent national tribunals for acts violating the fundamental rights granted him bythe Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary arrest, detention or exile" (Art.9); etc.

In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from custody analien who has been detained an unreasonably long period of time by the Department of Justice after it hasbecome apparent that although a warrant for his deportation has been issued, the warrant can not beeffectuated;" that "the theory on which the court is given the power to act is that the warrant of deportation, nothaving been able to be executed, is functus officio and the alien is being held without any authority of law." Thedecision cited several cases which, it said, settled the matter definitely in that jurisdiction, adding that the sameresult had reached in innumerable cases elsewhere. The cases referred to were United States ex relRoss vs. Wallis, 2 Cir. 279 F. 401, 404; Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F. 857; Moraitis vs. DelanyD.C. Md. Aug. 28, 1942, 46 F. Supp. 425.

The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins (1948), 90Fed. Supp., 132, which is nearly foursquare with the case at hand. In that case a stateless person, formerly aPolish national, resident in the United States since 1911 and many times serving as a seaman on Americanvessels both in peace and in war, was ordered excluded from the United States and detained at Ellis Island atthe expense of the steamship company, when he returned from a voyage on which he had shipped from NewYork for one or more European ports and return to the United States. The grounds for his exclusion were thathe had no passport or immigration visa, and that in 1937 had been convicted of perjury because in certaindocuments he presented himself to be an American citizen. Upon his application for release on habeascorpus, the Court released him upon his own recognizance. Judge Leibell, of the United States District Courtfor the Southern District of New York, said in part:

When the return to the writ of habeas corpus came before this court, I suggested that all interestedparties . . . make an effort to arrange to have the petitioner ship out of some country that he wouldreceive him as a resident. He is, a native-born Pole but the Polish Consul has advised him in writingthat he is no longer a Polish subject. This Government does not claim that he is a Polish citizen. Hisattorney says he is a stateless. The Government is willing that he go back to the ship, but if he weresent back aboard a ship and sailed to the Port (Cherbourg, France) from which he last sailed to theUnited States, he would probably be denied permission to land. There is no other country that wouldtake him, without proper documents.

It seems to me that this is a genuine hardship case and that the petitioner should be released fromcustody on proper terms. . . .


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What is to be done with the petitioner? The government has had him in custody almost seven monthsand practically admits it has no place to send him out of this country. The steamship company, whichemployed him as one of a group sent to the ship by the Union, with proper seaman's papers issued bythe United States Coast Guard, is paying $3 a day for petitioner's board at Ellis Island. It is no fault ofthe steamship company that petitioner is an inadmissible alien as the immigration officials describe him. . .

I intend to sustain the writ of habeas corpus and order the release of the petitioner on his ownrecognizance. He will be required to inform the immigration officials at Ellis Island by mail on the 15th ofeach month, stating where he is employed and where he can be reached by mail. If the governmentdoes succeed in arranging for petitioner's deportation to a country that will be ready to receive him as aresident, it may then advise the petitioner to that effect and arrange for his deportation in the mannerprovided by law.

Although not binding upon this Court as a precedent, the case aforecited affords a happy solution to thequandry in which the parties here finds themselves, solution which we think is sensible, sound and compatiblewith law and the Constitution. For this reason, and since the Philippine law on immigration was patterned afteror copied from the American law and practice, we choose to follow and adopt the reasoning and conclusions inthe Staniszewski decision with some modifications which, it is believed, are in consonance with the prevailingconditions of peace and order in the Philippines.

It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the return, that the petitioner wasengaged in subversive activities, and fear was expressed that he might join or aid the disloyal elements ifallowed to be at large. Bearing in mind the Government's allegation in its answer that "the herein petitioner wasbrought to the Philippines by the Japanese forces," and the fact that Japan is no longer at war with the UnitedStates or the Philippines nor identified with the countries allied against these nations, the possibility of thepetitioner's entertaining or committing hostile acts prejudicial to the interest and security of this country seemsremote.

If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly prolongeddetention would be unwarranted by law and the Constitution, if the only purpose of the detention be toeliminate a danger that is by no means actual, present, or uncontrolable. After all, the Government is not

impotent to deal with or prevent any threat by such measure as that just outlined. The thought eloquentlyexpressed by Mr. Justice Jackson of the United States Supreme Court in connection with the appliccation forbail of ten Communists convicted by a lower court of advocacy of violent overthrow of the United StatesGovernment is, in principle, pertinent and may be availed of at this juncture. Said the learned Jurist:

The Governmet's alternative contention is that defendants, by misbehavior after conviction, haveforfeited their claim to bail. Grave public danger is said to result from what they may be expected to do,in addition to what they have done since their conviction. If I assume that defendants are disposed tocommit every opportune disloyal to act helpful to Communist countries, it is still difficult to reconcile withtraditional American law the jailing of persons by the courts because of anticipated but as yetuncommitted crimes. lmprisonment to protect society from predicted but unconsummated offenses is sounprecedented in this country and so fraught with danger of excesses and injustice that I am loath to

resort it, even as a discretionary judicial technique to supplement conviction of such offenses as thoseof which defendants stand convicted.

But the right of every American to equal treatment before the law is wrapped up in the sameconstitutional bundle with those of these Communists. If an anger or disgust with these defendants wethrow out the bundle, we alsocast aside protection for the liberties of more worthy critics who may be inopposition to the government of some future day.

x x x x x x x x x1wphl.nt

If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there is a verypractical aspect of this application which must not be overlooked or underestimated that is the


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disastrous effect on the reputation of American justice if I should now send these men to jail and the fulCourt later decide that their conviction is invalid. All experience with litigation teaches that existence ofa substantial question about a conviction implies a more than negligible risk of reversal. Indeed thisexperience lies back of our rule permitting and practice of allowing bail where such questions exist, toavoid the hazard of unjustifiably imprisoning persons with consequent reproach to our system of justiceIf that is prudent judicial practice in the ordinary case, how much more important to avoid every chanceof handing to the Communist world such an ideological weapon as it would have if this country shouldimprison this handful of Communist leaders on a conviction that our highest Court would confess to beillegal. Risks, of course, are involved in either granting or refusing bail. I am naive enough to

underestimate the troublemaking propensities of the defendants. But, with the Department of Justicealert to the the dangers, the worst they can accomplish in the short time it will take to end the litigationis preferable to the possibility of national embarrassment from a celebrated case of unjustifiedimprisonment of Communist leaders. Under no circumstances must we permit their symbolization of anevil force in the world to be hallowed and glorified by any semblance of martyrdom. The way to avoidthat risk is not to jail these men until it is finally decided that they should stay jailed.

If that case is not comparable with ours on the issues presented, its underlying principle is of universalapplication. In fact, its ratio decidendiapplies with greater force to the present petition, since the right ofaccused to bail pending apppeal of his case, as in the case of the ten Communists, depends upon thediscretion of the court, whereas the right to be enlarged before formal charges are instituted is absolute. Asalready noted, not only are there no charges pending against the petitioner, but the prospects of bringing anyagainst him are slim and remote.

Premises considered, the writ will issue commanding the respondents to release the petitioner from custodyupon these terms: The petitioner shall be placed under the surveillance of the immigration authorities or theiragents in such form and manner as may be deemed adequate to insure that he keep peace and be availablewhen the Government is ready to deport him. The surveillance shall be reasonable and the question ofreasonableness shall be submitted to this Court or to the Court of First Instance of Manila for decision in caseof abuse. He shall also put up a bond for the above purpose in the amount of P5,000 with sufficient surety orsureties, which bond the Commissioner of Immigration is authorized to exact by section 40 of Commonwealth

Act No. 613.

No costs will be charged.

Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.

Separate Opinions

PABLO, M., disidente:

Disiento

En decision disada por este Tribunal en la primera causa de habeas corpus incoada por el solicitante BorisMejoff (G.R. No. L-2855, Mejoffvs. Director of Prisons)*, se declaro que el habia venido a Filipinas procedentede Shanghai como espia japones; en la liberacion, el ejercito americano le arresto por se espia, habiendo sidomas tarde entregado al Gobierno del Commonwealth para ser tratado de acuerdo con la ley No.682; perocomo bajo el Codgo Penal Revisado, antes de su enmienda por la Orden Ejecutiva No. 44, (mayo 31, 1945)no se castiga al extranjero que comete traicion, Mejoff fue puesto en libertad. Despues de una debidainvestigacion, la Junta de Departacion encontra que el solicitante no tenia permiso para entrar en Filipinas; fueentregado a la Junta de Inmigacion, la cual ordeno su deportacion a Rusia por el primer transporte disponiblepor haber vendo aqui ilegalmente; fue enviado a Cebu para que alli se embarcase, pero los dos barcos denacionalidad rusa que llegaron a dicho puerto en julio y agosto de 1948 rehusaron admitirle. Por no encontrar


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transportacion para su departacion, Mejoff fue enviado a la Prison de Muntinglupa, donde esta actualmente detenido mientras el Gobierno no encuenra medio de transportarle a Rusia.

La mayoria contiende que "The Petitioner's entry into the Philippines was not unlawful; he was brought by thearmed and belligerent forces of a de facto government whose decrees were law during the occupation." Es tanilegal la entrada del solicitante como la del ejercito al que sirvio como espia. Ninguno tiene derecho apermanecer aqui. Puesto que fue vencido el ejercito invasor que le trajo, el solicitante no tiene derecho apemanecer aqui ni un minuto mas. Si desea proteccion, debe acudir al Gobierno Japones a cuyo ejercito elsirvio; el hecho de que ya esta aqui no le da titulo para permanecer libre aqui. El que ha venido como espia deenemigo del Pueblo de Filipinas no tiene derecho a pedir igual trato que aquel ha entrado de buena fe. Esque Filipinos tiene la obligacion de acoger a un ciudadano indeseable de Rusia? Desde cuando tiene queallanarse una nacion a ser residencia de una extranjero que entro como enemigo o, peor aun, como espia? UnEstado tiene indiscutible derecho a deportar y expulsar de su territorio a todo extranjero indeseable.

El solicitante sostiene que no tiene estado. Eso no es razon para que tenga derecho a permanecer aqui.Puede ser departado a Rusio o a Shanghai de donde vino. Si todos los rusos que, por alguno que otro motivoo por odio al comunisomo, dejasen su pais y emigrasen aqui reclamando igual derecho, no habria territoriosuficiente para ellos. Se puede decir otro tanto de los chinos que, so pretexto de no querer someterse alregimen comunista, optasen por resider para siempre aqui. Y si los mismos communistas chinos viniesenclandestinamente y despues reclamasen igual proteccion como la concedida a Mejoff, tendreos que darlespor el gusto?

Se invoca la resolucion aprobada por la Asamblea General de las Naciones Unidas, titulada "UniversalDeclaration of Human Rights", en la que se establece, entre otras cosas, que "no one shall be subjected toarbitrary arrest, detention or exile." Yo soy de los que creen firmemente en lo sagrado de esta resolucion; nopuedo permitir que se detenga y se arreste a alguien sin motivo justificado, de una manera arbitraria; pero elsolicitante no esta detenido de esta manera, lo esta de una manera provisional. Tan pronto como haya barcodisponible para su deportacion o tan pronto como pueda embarcarse en algun barco para el extenjero o paracualquier otro punto a donde quiera ir, dejara de ser detenido. Conste que no esta preso como un criminalcondenado por un delito; esta tratado como cualquier otro extranjero sujeto a deportacion. Si el solicitante nohubiera sido espia, si no hubiera venido aqui para ayudar a las hordas japonesas en la subyugacion depueblo filipino, si hubiera venido como visitante, por ejemplo, y, por azares de la fortuna, no pudo salir, yoseria el primero en abogar por su liberacion inmediata.

Se cita el caso de Staniszewski vs. Watkins, (1948 A.M.C. 931, 42 American Journal of International Law, 732)en el cual el recurrente estuvo detenido ya casi siete meses cuando se decreto su libertad en un recursode habeas corpus. En nuestra opinion, dicho caso no tiene simulitud con la causa presente. Staniszewski eraresidente de los Estados desde 1911; estuvo sirviendo como marino en barcos mercantes americanos entiempo de guerra y se ordeno su detencion en Ellis Island cuando volvio a America procedente de un viaje aEuropa por no tener papeles de inmigracion. Staniszewski no habia entrado en los Estados Unidos comoespia, estuvo residiendo en dicho pais por varios aos, era ya habitante de los Estados unidos. La ocupacionde marino es honrosa, la del espia mercenario, detestable. El espia es peor que el enemigo. Este lucha cara acara, y el espia, con disimulo y arte engaosa, escucha lo que a Staniszewski se le haya puesto en libertad.Poner en libertad a un espia es poner en peligro la seguridad del Estado.

En cuanto a la duracion de la detencion provisional del recurrente, no hay regla fija, depende de lacincunstancia de cada caso particular. Es evidente que los medios de comunicacion entre Filipinas y Rusia oShanghai, debico a fala de relciones diplomaticas, son completamente anormales. No es culpa del gobierno eque no encuentre medios de transportacion para el.

La Comision de Inmigracion ha dado pasos para que la International Refugee Organziation of the UnitedNations (IRO0 se hiciera cargo del recurrente para que pueda ser repartriado o enviado a otro pais extranjero,pero el Jefe de dicha organizacion contesto que no estaba en condicines para aceptar dicha recomendacion.

William Martin Jurgans fue arrestado en 9 de enero de 1920, en 20 de mayo se decreto su deportacion por eSub Secretario del Tarabajo por violacion de la Ley de Inmigracion; solicto su libertad bajo el recurso


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de Habeas Corpus, y en 16 de febrero de 1927 se denego su peticion; no se le pudo deportar porque "thenecessary arrangements for his deportation could obviously not be made." (District Court of Minnesota, 17 F.2nd series, 507). Como se vera, la detencion provisional de William Martin Jurgans duro mas de seis aos; lade Mejoff no ha sido mas que de 31 meses, y no porque el gobierno no quiere deportarle, sino porque no haymedio disponible para realizarlo.

En Moraitis vs. Delany, 46 F. Supp., 425, se dijo:

What constitutes a reasonable time for the detention of the petitioner in custody for deportationdepends upon the facts and circumstances of particular cases. This court cannot shut its eyes to thevitally important interests of this country at this time with respect to the bottleneck of shipping, whenevery available ship, domestic and foreign, must be utilized to the utmost without delay consequentupon the lack of avilable seamen. Under these present conditions the court should be liberal indeed inaiding the executive branch of the govenment in the strict enforcement of laws so vitally necessary inthe common defns. There is sound authority for this view in United States ex. rel. Schlimm vs. Howe, DC.N. U Y. 222 F. 96, 97, where Circuit Judge Lacombe refused to release an alien who had come herefrom Germany and was ordered deported in 1915 when, by reason of the then existing war betweenGermany and England, his deportation to Germany was not possible. It was said:

At the present time there is no regular passenger ocean service to German ports, so the authorities are

unable to forward him, and are holding him until some opportunity of returning him to Germany maypresent itself. His continual detention is unfortunate, but certainly is not illegal. His present conditioncan be alleviated only by the action of the executive branch of the government. A federal court wouldnot be justified in discharging him. . . .

If he is not really fit for sea service, it is not probable that he would be forced into it, although he may beable to serve his government in some other capacity. But however that may be, while this country hasno power under existing legislation to impress him into sea service against his will, he has no just causeto be relieved from the strict enforcement of our deportation laws, and to remain at liberty in this countryas a sanctuary contrary to our laws.

No es arbitraria la detencion de Mejoff. Esta jutificada por las circunstancias anormales.

La proposicion de vigilar al recurrente hasta que el gobierno encuentre transporte para su deportacion, suponun gasto innecesario.


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G.R. No. 139465 January 18, 2000

SECRETARY OF JUSTICE, petitioner,vs.HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B.JIMENEZ, respondents.

MELO, J.:

The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming powers ogovernment. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill ofRights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basicdue process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court mustonce again act as the faithful guardian of the fundamental writ.

The petition at our doorstep is cast against the following factual backdrop:

On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribingthe Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decreeis founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of

crime both in the state where it was committed and the state where the criminal may have escaped; theextradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treatieswith other interested countries; and the need for rules to guide the executive department and the courts in theproper implementation of said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of theRepublic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republicof the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-USExtradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification ofsaid treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7thereof (on the admissibility of the documents accompanying an extradition request upon certification by theprincipal diplomatic or consular officer of the requested state resident in the Requesting State).

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. NoteVerbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the UnitedStates. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S.District Court, Southern District of Florida, and other supporting documents for said extradition. Based on thepapers submitted, private respondent appears to be charged in the United States with violation of the followingprovisions of the United States Code (USC):

A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] countsMaximum Penalty 5 years on each count);

B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5 years on each

count);

C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty 5 years oneach count);

D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years on eachcount);

E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty less than one year).


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(p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel ofattorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069

Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and thedocuments in support thereof. The panel found that the "official English translation of some documents inSpanish were not attached to the request and that there are some other matters that needed to be addressed"(p. 15, Rollo).

Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote aletter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from theU.S. Government, as well as all documents and papers submitted therewith; and that he be given ample timeto comment on the request after he shall have received copies of the requested papers. Private respondenalso requested that the proceedings on the matter be held in abeyance in the meantime.

Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the requestof the United States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplifyon his request.

In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but

received by private respondent only on August 4, 1999), denied the foregoing requests for the followingreasons:

1. We find it premature to furnish you with copies of the extradition request and supporting documentsfrom the United States Government, pending evaluation by this Department of the sufficiency of theextradition documents submitted in accordance with the provisions of the extradition treaty and ourextradition law. Article 7 of the Extradition Treaty between the Philippines and the United Statesenumerates the documentary requirements and establishes the procedures under which the documentssubmitted shall be received and admitted as evidence. Evidentiary requirements under our domesticlaw are also set forth in Section 4 of P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor

akin to preliminary investigation of criminal cases. We merely determine whether the procedures andrequirements under the relevant law and treaty have been complied with by the RequestingGovernment. The constitutionally guaranteed rights of the accused in all criminal prosecutions aretherefore not available.

It is only after the filing of the petition for extradition when the person sought to be extradited will befurnished by the court with copies of the petition, request and extradition documents and thisDepartment will not pose any objection to a request for ample time to evaluate said documents.

2. The formal request for extradition of the United States contains grand jury information anddocuments obtained through grand jury process covered by strict secrecy rules under United Stateslaw. The United States had to secure orders from the concerned District Courts authorizing the United

States to disclose certain grand jury information to Philippine government and law enforcementpersonnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said information isnot authorized by the United States District Courts. In this particular extradition request the UnitedStates Government requested the Philippine Government to prevent unauthorized disclosure of thesubject information. This Department's denial of your request is consistent with Article 7 of the RP-USExtradition Treaty which provides that the Philippine Government must represent the interests of theUnited States in any proceedings arising out of a request for extradition. The Department of Justiceunder P.D. No. 1069 is the counsel of the foreign governments in all extradition requests.

3. This Department is not in a position to hold in abeyance proceedings in connection with anextradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party


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provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them ingood faith". Extradition is a tool of criminal law enforcement and to be effective, requests for extraditionor surrender of accused or convicted persons must be processed expeditiously.

(pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court ofthe National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairsand the Director of the National Bureau of Investigation, formandamus (to compel herein petitioner to furnishprivate respondent the extradition documents, to give him access thereto, and to afford him an opportunity tocomment on, or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly andobjectively);certiorari(to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrainpetitioner from considering the extradition request and from filing an extradition petition in court; and to enjointhe Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extraditionof private respondent to the United States), with an application for the issuance of a temporary restrainingorder and a writ of preliminary injunction (pp. 104-105, Rollo).

The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 ofsaid regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion.

After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his ownbehalf, moved that he be given ample time to file a memorandum, but the same was denied.

On August 10, 1999, respondent judge issued an order dated the previous day, disposing:

WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, theSecretary of Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/orrepresentatives to maintain the status quo by refraining from committing the acts complained of; fromconducting further proceedings in connection with the request of the United States Government for theextradition of the petitioner; from filing the corresponding Petition with a Regional Trial court; and fromperforming any act directed to the extradition of the petitioner to the United States, for a period oftwenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997

Rules of Court.

The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by thecounsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. Therespondents are, likewise, ordered to file their written comment and/or opposition to the issuance of aPreliminary Injunction on or before said date.

SO ORDERED.

(pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVEABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THETEMPORARY RESTRAINING ORDER BECAUSE:

I.

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINEDOF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIALEXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT ANOPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN


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PRAYER FOR A WRIT OF MANDAMUSIN THE PETITION FOR MANDAMUS, CERTIORARIANDPROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THEMERITS OF THE MANDAMUS ISSUES;

II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDERTHE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;

III.

THE PETITION FOR (MANDAMUS), CERTIORARIAND PROHIBITION IS, ON ITS FACEFORMALLY AND SUBSTANTIALLY DEFICIENT; AND

IV.

PRIVATE RESPONDENT HAS NO RIGHT IN ESSETHAT NEEDS PROTECTION ANDENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.

(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, wasa temporary restraining order (TRO) providing:

NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You,Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting inyour place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed orderdated August 9, 1999 issued by public respondent in Civil Case No. 99-94684.

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippinesthis 17th day of August 1999.

(pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed theirrespective memoranda.

From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, areview of these issues as well as the extensive arguments of both parties, compel us to delineate the focalpoint raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondententitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarilyrender the proceedings at the trial court, moot and academic (the issues of which are substantially the same asthose before us now), while a negative resolution would call for the immediate lifting of the TRO issued by thisCourt dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of theextradition petition with the proper regional trial court. Corollarily, in the event that private respondent isadjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would thisentitlement constitute a breach of the legal commitments and obligations of the Philippine Government underthe RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflictbetween private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty?

The issues having transcendental importance, the Court has elected to go directly into the substantive meritsof the case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August17, 1999 by the trial court.


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To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which wasexecuted only on November 13, 1994, ushered into force the implementing provisions of Presidential DecreeNo. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removaof an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enablethe requesting state or government to hold him in connection with any criminal investigation directed againsthim or the execution of a penalty imposed on him under the penal or criminal law of the requesting state orgovernment." The portions of the Decree relevant to the instant case which involves a charged and notconvicted individual, are abstracted as follows:

The Extradition Request

The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of ForeignAffairs, and shall be accompanied by:

1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by theauthority of the Requesting State having jurisdiction over the matter, or some other instruments havingequivalent legal force;

2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name andidentity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained

of, and the time and place of the commission of these acts;

3. The text of the applicable law or a statement of the contents of said law, and the designation ordescription of the offense by the law, sufficient for evaluation of the request; and

4. Such other documents or information in support of the request.

(Sec. 4. Presidential Decree No. 1069.)

Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinentlyprovides

. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet therequirements of this law and the relevant treaty or convention, he shall forward the request togetherwith the related documents to the Secretary of Justice, who shall immediately designate and authorizean attorney in his office to take charge of the case.

The above provision shows only too clearly that the executive authority given the task of evaluating thesufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is thecoverage of this task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority mustascertain whether or not the request is supported by:

1. Documents, statements, or other types of information which describe the identity and probablelocation of the person sought;

2. A statement of the facts of the offense and the procedural history of the case;

3. A statement of the provisions of the law describing the essential elements of the offense for whichextradition is requested;

4. A statement of the provisions of law describing the punishment for the offense;


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5. A statement of the provisions of the law describing any time limit on the prosecution or the executionof punishment for the offense;

6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of saidArticle, as applicable.

(Paragraph 2, Article 7, Presidential Decree No. 1069.)

7. Such evidence as, according to the law of the Requested State, would provide probable cause for hisarrest and committal for trial if the offense had been committed there;

8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and

9. A copy of the charging document.

(Paragraph 3, ibid.)

The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documentsreceived in support of the request had been certified by the principal diplomatic or consular officer of theRequested State resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note

No. 951309 from the Department of Foreign Affairs).

In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executiveauthority of the Requested State determines that the request is politically motivated, or that the offense is amilitary offense which is not punishable under non-military penal legislation."

The Extradition Petition

Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supportingdocuments are sufficient and complete in form and substance, he shall deliver the same to the Secretary ofJustice, who shall immediately designate and authorize an attorney in his office to take charge of the case(Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition with the

proper regional trial court of the province or city, with a prayer that the court take the extradition request underconsideration (Paragraph [2], ibid.).

The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon aspracticable, issue an order summoning the prospective extraditee to appear and to answer the petition on theday and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrestand temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.)particularly to prevent the flight of the prospective extraditee.

The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or aspecial proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of theextradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with thesummary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that theattorney having charge of the case may, upon application by the Requesting State, represent the latterthroughout the proceedings.

Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving thereasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediatelyexecutory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the


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Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief(Section 13, ibid.).

The trial court determines whether or not the offense mentioned in the petition is extraditable based on theapplication of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US ExtraditionTreaty. The trial court also determines whether or not the offense for which extradition is requested is a politicaone (Paragraph [1], Article 3, RP-US Extradition Treaty).1wphi1.nt

With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself:What is the nature of the role of the Department of Justice at the evaluation stage of the extraditionproceedings?

A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file theextradition petition after the request and all the supporting papers are forwarded to him by the Secretary ofForeign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure theirsufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request ispolitically motivated, or that the offense is a military offense which is not punishable under non-military penalegislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretaryof Justice has the ministerial duty of filing the extradition papers.

However, looking at the factual milieu of the case before us, it would appear that there was failure to abide bythe provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered tothe Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, theDepartment of Justice received the request, apparently without the Department of Foreign Affairs dischargingits duty of thoroughly evaluating the same and its accompanying documents. The statement of an assistantsecretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a postoffice, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitudeof the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Departmentof Justice took it upon itself to determine the completeness of the documents and to evaluate the same to findout whether they comply with the requirements laid down in the Extradition Law and the RP-US ExtraditionTreaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation toevaluate the extradition documents, the Department also had to go over them so as to be able to prepare an

extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where privaterespondent insisted on the following; (1) the right to be furnished the request and the supporting papers; (2) theright to be heard which consists in having a reasonable period of time to oppose the request, and to presenevidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending thefiling of private respondent's opposition to the request.

The two Departments seem to have misread the scope of their duties and authority, one abdicating its powersand the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through theSolicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying themessage that if it were to evaluate the extradition request, it would not allow private respondent to participatein the process of evaluation.

Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairsthoroughly reviewed the extradition request and supporting documents and that it arrived at a well-foundedjudgment that the request and its annexed documents satisfy the requirements of law. The Secretary ofJustice, eminent as he is in the field of law, could not privately review the papers all by himself. He had toofficially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less thanone day, make the more authoritative determination?

The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sugeneris. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministeriafunctions. At such stage, the executive authority has the power: (a) to make a technical assessment of thecompleteness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and onthe face of the supporting documents the crimes indicated are not extraditable; and (c) to make a


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determination whether or not the request is politically motivated, or that the offense is a military one which isnot punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph[3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative orinquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-

judicial power.

In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (bdetermining facts based upon the evidence presented; and (c) rendering an order or decision supported by thefacts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one or thedeterminative powers of an administrative body which better enables it to exercise its quasi-judicial authority(Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect therecords and premises, and investigate the activities, of persons or entities coming under its jurisdiction ( Ibid., p27), or to require disclosure of information by means or accounts, records, reports, testimony of witnesses,production of documents, or otherwise (De Leon, op. cit., p. 64).

The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid ortool in an administrative agency's performance of its rule-making or quasi-judicial functions. Notablyinvestigation is indispensable to prosecution.

In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of aninvestigatory body with the sole power of investigation. It does not exercise judicial functions and its power islimited to investigating the facts and making findings in respect thereto. The Court laid down the test ofdetermining whether an administrative body is exercising judicial functions or merely investigatory functions:

Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of theparties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it basedon the facts and circumstances presented to it, and if the agency is not authorized to make a finapronouncement affecting the parties, then there is an absence of judicial discretion and judgment.

The above description in Ruperto applies to an administrative body authorized to evaluate extraditiondocuments. The body has no power to adjudicate in regard to the rights and obligations of both the RequestingState and the prospective extraditee. Its only power is to determine whether the papers comply with the

requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Suchfinding is thus merely initial and not final. The body has no power to determine whether or not the extraditionshould be effected. That is the role of the court. The body's power is limited to an initial finding of whether ornot the extradition petition can be filed in court.

It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterizedby certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it mayresult in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at twostages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This isso because the Treaty provides that in case of urgency, a contracting party may request the provisional arrestof the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty),but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidentia

Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged(Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean thatonce a request is forwarded to the Requested State, the prospective extraditee may be continuously detained,or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only bedischarged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flightfrom the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency ofthe extradition petition in court (Section 6, Presidential Decree No. 1069).

Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluationstage. It is not only an imagined threat to his liberty, but a very imminent one.


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Because of these possible consequences, we conclude that the evaluation process is akin to an administrativeagency conducting an investigative proceeding, the consequences of which are essentially criminal since suchtechnical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of aprospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p.78,Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In anumber of cases, we had occasion to make available to a respondent in an administrative case or investigationcertain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out byMr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage thathad been advanced to an earlier stage in the proceedings, such as the right to counsel and the right against

self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).

In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminalprosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as anadministrative investigation of a licensed physician who is charged with immorality, which could result in hisloss of the privilege to practice medicine if found guilty. The Court, citing the earlier case ofCabalvs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical practitioner,is an even greater deprivation than forfeiture of property.

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondentwhich was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since theinvestigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal,and such forfeiture partakes the nature of a penalty. There is also the earlier case ofAlmeda, Sr. vs. Perez(5SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether aproceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented theforfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil inform; and where it must be gathered from the statute that the action is meant to be criminal in its nature, itcannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer forthe offense charged, the proceeding is civil in nature.

The cases mentioned above refer to an impending threat of deprivation of one's property or property right. Noless is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty,which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoysprecedence over property, for while forfeited property can be returned or replaced, the time spent inincarceration is irretrievable and beyond recompense.

By comparison, a favorable action in an extradition request exposes a person to eventual extradition to aforeign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, theevaluation procedure is akin to a preliminary investigation since both procedures may have the same result the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage ofextradition proceedings, a preliminary investigation, which may result in the filing of an information against therespondent, can possibly lead to his arrest, and to the deprivation of his liberty.

Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandumthat the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not well-taken.Wrightis not authority for petitioner's conclusion that his preliminary processing is not akin to apreliminary investigation. The characterization of a treaty in Wrightwas in reference to the applicability of theprohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information,and hearing.

As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by publicauthority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, infurtherance of the general public good, which regards and preserved these principles of liberty and justice,must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due processrequirements cannot be deemed non-compliance with treaty commitments.


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The United States and the Philippines share a mutual concern about the suppression and punishment of crimein their respective jurisdictions. At the same time, both States accord common due process protection to theirrespective citizens.

The due process clauses in the American and Philippine Constitutions are not only worded in exactly identicalanguage and terminology, but more importantly, they are alike in what their respective Supreme Courts haveexpounded as the spirit with which the provisions are informed and impressed, the elasticity in theirinterpretation, their dynamic and resilient character which make them capable of meeting every modernproblem, and their having been designed from earliest time to the present to meet the exigencies of anundefined and expanding future. The requirements of due process are interpreted in both the United Statesand the Philippines as not denying to the law the capacity for progress and improvement. Toward this effectand in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of thedue process clause "gradually ascertained by the process of inclusion and exclusion in the course of thedecisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "theembodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. CityMayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in thevery idea of free government (Holden vs. Hardy, 169 U.S. 366).

Due process is comprised of two components substantive due process which requires the intrinsic validity ofthe law in interfering with the rights of the person to his life, liberty, or property, and procedural due processwhich consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by animpartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).

True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only incriminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights wilinvalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests,and upon notice, they may claim the right to appear therein and present their side and to refute the position ofthe opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).

In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of theRules of Court guarantees the respondent's basic due process rights, granting him the right to be furnished acopy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits

and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have theright to examine all other evidence submitted by the complainant.

These twin rights may, however, be considered dispensable in certain instances, such as:

1. In proceeding where there is an urgent need for immediate action, like the summary abatement of anuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facingadministrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthyrestaurants or theaters showing obscene movies or like establishments which are immediate threats topublic health and decency, and the cancellation of a passport of a person sought for criminaprosecution;

2. Where there is tentativeness of administrative action, that is, where the respondent is not precludedfrom enjoying the right to notice and hearing at a later time without prejudice to the person affectedsuch as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement ofa temporary appointee; and

3. Where the twin rights have previously been offered but the right to exercise them had not beenclaimed.

Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of theextradition proceedings fall under any of the described situations mentioned above?


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Let us take a brief look at the nature of American extradition proceedings which are quite noteworthyconsidering that the subject treaty involves the U.S. Government.

American jurisprudence distinguishes between interstate rendition or extradition which is based on theExtradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition proceedings. Ininterstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to thedemanding state. The Extradition Clause and the implementing statute are given a liberal construction to carryout their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state inwhich they have been charged with crime (31AAm Jur2d 754-755). In order to achieve extradition of analleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or

jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegationthat the person demanded was in the demanding state at the time the offense charged was committed, andthat the person demanded is charged with the commission of the crime or that prosecution has been begun inthe demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are thenfiled with the governor of the asylum state, and must contain such papers and documents prescribed bystatute, which essentially include a copy of the instrument charging the person demanded with a crime, suchas an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said charginginstrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on thegovernment of the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision requiringduplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and otherinstruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorneyis directory. However, the right being such a basic one has been held to be a right mandatory ondemand(Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 andEx parte Tucker, Cr., 324S.W.2d 853).

In international proceedings, extradition treaties generally provide for the presentation to the executiveauthority of the Requested State of a requisition or demand for the return of the alleged offender, and thedesignation of the particular officer having authority to act in behalf of the demanding nation (31AAm Jur2d815).

In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13,1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extraditionprocedures and principles, which are basically governed by a combination of treaties (with special reference tothe RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit:

1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requestsfor the provincial arrest of an individual may be made directly by the Philippine Department of Justice tothe U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request forextradition is transmitted subsequently through the diplomatic channel.

2. The Department of State forwards the incoming Philippine extradition request to the Department ofJustice. Before doing so, the Department of State prepares a declaration confirming that a formarequest has been made, that the treaty is in full force and effect, that under Article 17 thereof the partiesprovide reciprocal legal representation in extradition proceedings, that the offenses are covered as

extraditable offenses under Article 2 thereof, and that the documents have been authenticated inaccordance with the federal statute that ensures admissibility at any subsequent extradition hearing.

3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospectiveextraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold a hearing to consider theevidence offered in support of the extradition request (Ibid.)

4. At the hearing, the court must determine whether the person arrested is extraditable to the foreigncountry. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction toconduct the hearing; (b) the defendant is being sought for offenses for which the applicable treatypermits extradition; and (c) there is probable cause to believe that the defendant is the person soughtand that he committed the offenses charged (Ibid.)


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5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having receiveda "complaint made under oath, charging any person found within his jurisdiction" with having committedany of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In thisregard, it is noted that a long line of American decisions pronounce that international extraditionproceedings partake of the character of a preliminary examination before a committing magistraterather than a trial of the guilt or innocence of the alleged fugitive (31AAm Jur2d 826).]

6. If the court decides that the elements necessary for extradition are present, it incorporates itsdeterminations in factual findings and conclusions of law and certifies the person's extraditability. Thecourt then forwards this certification of extraditability to the Department of State for disposition by theSecretary of State. The ultimate decision whether to surrender an individual rests with the Secretary ofState (18 U.S.C. 3186).

7. The subject of an extradition request may not litigate questions concerning the motives of therequesting government in seeking his extradition. However, a person facing extradition may presentwhatever information he deems relevant to the Secretary of State, who makes the final determinationwhether to surrender an individual to the foreign government concerned.

From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity the Department of State which has the power to evaluate the request and the extradition documents in

the beginning, and, in the person of the Secretary of State, the power to act or not to act on the court'sdetermination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which shouldmake the initial evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition forextradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over therequest to the Department of Justice which has taken over the task of evaluating the request as well asthereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition.

Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to beextradited be given due process rights by the Philippines in the evaluation stage. He emphasizes thatpetitioner's primary concern is the possible delay in the evaluation process.

We agree with private respondent's citation of an American Supreme Court ruling:

The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper stateinterest worthy of cognizance in constitutional adjudication. But the Constitution recognizes highervalues than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and theDue Process Clause, in particular, that they were designed to protect the fragile values of a vulnerablecitizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthygovernment officials no less, and perhaps more, than mediocre ones.

(Stanley vs. Illinois, 404 U.S. 645, 656)

The United States, no doubt, shares the same interest as the Philippine Government that no right that of

liberty secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well,is sacrificed at the altar of expediency.

(pp. 40-41, Private Respondent's Memorandum.)

In the Philippine context, this Court's ruling is invoked:

One of the basic principles of the democratic system is that where the rights of the individual areconcerned, the end does not justify the means. It is not enough that there be a valid objective; it is alsonecessary that the means employed to pursue it be in keeping with the Constitution. Mere expediencywill not excuse constitutional shortcuts. There is no question that not even the strongest mora


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conviction or the most urgent public need, subject only to a few notable exceptions, will excuse thebypassing of an individual's rights. It is no exaggeration to say that a person invoking a rightguaranteed under Article III of the Constitution is a majority of one even as against the rest of the nationwho would deny him that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of

Agrarian Reform, 175 SCRA 343, 375-376 [1989]).

There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To beeffective, requests for extradition or the surrender of accused or convicted persons must be processedexpeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are,however, not always incompatible. They do not always clash in discord. Summary does not mean precipitoushaste. It does not carry a disregard of the basic principles inherent in "ordered liberty."

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditeeyet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor ofthe asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387)since after a close evaluation of the extradition papers, he may hold that federal and statutory requirementswhich are significantly jurisdictional, have not been met (31Am Jur2d 819). Similarly, under an extraditiontreaty, the executive authority of the requested state has the power to deny the behest from the requestingstate. Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairsfinds that the request fails to meet the requirements of the law and the treaty, he shall not forward the requestto the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaidrequirements will not vest our government with jurisdiction to effect the extradition.

In this light, it should be observed that the Department of Justice exerted notable efforts in assuringcompliance with the requirements of the law and the treaty since it even informed the U.S. Government ofcertain problems in the extradition papers (such as those that are in Spanish and without the official Englishtranslation, and those that are not properly authenticated). In fact, petitioner even admits that consultationmeetings are still supposed to take place between the lawyers in his Department and those from the U.S.Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in anabbreviated period of time due to its intricacies, how then can we say that it is a proceeding that urgentlynecessitates immediate and prompt action where notice and hearing can be dispensed with?

Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is privaterespondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him?Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand there is yet noextraditee, but ironically on the other, it results in an administrative if adverse to the person involved, maycause his immediate incarceration. The grant of the request shall lead to the filing of the extradition petition incourt. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, notonly after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue ofthe provisional arrest allowed under the treaty and the implementing law. The prejudice to the "accused" isthus blatant and manifest.

Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with andshelved aside.

Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of ArticleIII which reads:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Accessto official records, and to documents and papers pertaining to official acts, transactions, or decisions, aswell as to government research data used as basis for policy development, shall be afforded the citizensubject to such limitations as may be provided by law.

The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1)the right to information on matters of public concern, and (2) the corollary right of access to official recordsdocuments. The general right guaranteed by said provision is the right to information on matters of public


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concern. In its implementation, the right of access to official records is likewise conferred. These cognate orrelated rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution AReviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical publicopinion which alone can protect the values of democratic government (Ibid.).

Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fallunder the guarantee of the foregoing provision since the matters contained in the documents requested are notof public concern. On the other hand, private respondent argues that the distinction between matters vestedwith public interest and matters which are of purely private interest only becomes material when a third person,who is not directly affected by the matters requested, invokes the right to information. However, if the personinvoking the right is the one directly affected thereby, his right to information becomes absolute.

The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a publicofficer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitutionof the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjectswhich the public may want to know, either because these directly affect their lives or simply because suchmatters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987])Hence, the real party in interest is the people and any citizen has "standing".

When the individual himself is involved in official government action because said action has a direct bearing

on his life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right tobe notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of publicconcern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informedof the nature and cause of the accusation against him.

The right to information is implemented by the right of access to information within the control of thegovernment (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Suchinformation may be contained in official records, and in documents and papers pertaining to official acts,transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to official government action from theU.S. Government. No official action from our country has yet been taken. Moreover, the papers have some

relation to matters of foreign relations with the U.S. Government. Consequently, if a third party invokes thisconstitutional provision, stating that the extradition papers are matters of public concern since they may resultin the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor ofthe interests necessary for the proper functioning of the government. During the evaluation procedure, noofficial governmental action of our own government has as yet been done; hence the invocation of the right ispremature. Later, and in contrast, records of the extradition hearing would already fall under matters of publicconcern, because our government by then shall have already made an official decision to grant the extraditionrequest. The extradition of a fellow Filipino would be forthcoming.

We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would privaterespondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute abreach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer

is in the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution?

First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality ofthe provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limitourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent onforeign relations.

The rule ofpacta sunt servanda, one of the oldest and most fundamental maxims of international law, requiresthe parties to a treaty to keep their agreement therein in good faith. The observance of our country's legalduties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]hePhilippines renounces war as an instrument of national policy, adopts the generally accepted principles ofinternational law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom,


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cooperation and amity with nations." Under the doctrine of incorporation, rules of international law form part ofthe law of the and land no further legislative action is needed to make such rules applicable in the domesticsphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted withsituations in which there appears to be a conflict between a rule of international law and the provisions of theconstitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effectto both since it is to be presumed that municipal law was enacted with proper regard for the generally acceptedprinciples of international law in observance of the observance of the Incorporation Clause in the above-citedconstitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where theconflict is irreconcilable and a choice has to be made between a rule of international law and municipal law

jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for thereason that such courts are organs of municipal law and are accordingly bound by it in all circumstances(Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land doesnot 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 givenequal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex

posterior derogat prioritakes effect a treaty may repeal a statute and a statute may repeal a treaty. In stateswhere the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes andtreaties may be invalidated if they are in conflict with the constitution (Ibid.).

In the case at bar, is there really a conflict between international law and municipal or national law? Encontrario, these two components of the law of the land are not pined against each other. There is no occasionto choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US ExtraditionTreaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of aprospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlieabstracted, after the filing of the extradition petition and during the judicial determination of the propriety ofextradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, priorthereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests thissilence.

Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluationprocedure as an "ex parte technical assessment" of the sufficiency of the extradition request and thesupporting documents.

We disagree.

In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twindue process rights of notice and hearing will not go against the treaty or the implementing law. Neither theTreaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly, American

jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedingsas