Sandoval Notes Supplemental

8/6/2019 Sandoval Notes Supplemental

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JURIS NOTESPoliticalLaw

SUPPLEMENT TO THE 306 QUESTIONSAND ANSWERS IN POLITICAL LAWAND PUBLIC INTERNATIONAL LAW

Attorney EDWIN REY SANDOVALMay 6, 2003

1. Ma. Evelyn S. Abeja was a municipal mayor. She ran for reelection butlost. Before she vacated her office, though, she extended permanentappointments to fourteen new employees of the municipal government. Theincoming mayor, upon assuming office, recalled said appointments contendingthat these were “midnight appointments” and, therefore, prohibited under Sec.15, Art. VII of the 1987 Constitution. Should the act of the new mayor of recallingsaid appointments on the aforestated ground be sustained?

Ans.: In De Rama v. Court of Appeals (353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago]), the SC answered in the negative. It held: “The records reveal thatwhen the petitioner brought the matter of recalling the appointments of the fourteen (14)private respondents before the CSC, the only reason he cited to justify his action was thatthese were “midnight appointments” that are forbidden under Article VII, Section 15 of theConstitution. However, the CSC ruled, and correctly so, that the said prohibition applies onlyto presidential appointments. In truth and in fact, there is no law that prohibits local electiveofficials from making appointments during the last days of his or her tenure. Petitionercertainly did not raise the issue of fraud on the part of the outgoing mayor who made theappointments. Neither did he allege that the said appointments were tainted byirregularities or anomalies that breached laws and regulations governing appointments. Hissolitary reason for recalling these appointments was that they were, to his personal belief,“midnight appointments” which the outgoing mayor had no authority to make.”

2. On May 1, 2001, President Macapagal-Arroyo, faced by an “angry andviolent mob armed with explosives, firearms, bladed weapons, clubs, stones andother deadly weapons” assaulting and attempting to break into Malacanang,issued Proclamation No. 38 declaring that there was a state of rebellion in theNational Capital Region. She likewise issued General Order No. 1 directing theArmed Forces of the Philippines and the Philippine National Police to suppress the

rebellion in the National Capital Region. Warrantless arrests of several allegedleaders and promoters of the “rebellion” were thereafter effected. Hence,several petitions were filed before the SC assailing the declaration of State of Rebellion by President Gloria Macapagal-Arroyo and the warrantless arrestsallegedly effected by virtue thereof.

Held: All the foregoing petitions assail the declaration of state of rebellion byPresident Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtuethereof, as having no basis both in fact and in law. Significantly, on May 6, 2001, PresidentMacapagal-Arroyo ordered the lifting of the declaration of a “state of rebellion” in MetroManila. Accordingly, the instant petitions have been rendered moot and academic. As topetitioners’ claim that the proclamation of a “state of rebellion” is being used by theauthorities to justify warrantless arrests, the Secretary of Justice denies that it has issued a

particular order to arrest specific persons in connection with the “rebellion.” He states thatwhat is extant are general instructions to law enforcement officers and military agencies toimplement Proclamation No. 38. x x x With this declaration, petitioners’ apprehensions asto warrantless arrests should be laid to rest.

Justicis Nemini Neganda EstPOLITICAL LAW

RECOLETOS DE MANILA SCHOOL OF LAW1




In quelling or suppressing the rebellion, the authorities may only resort towarrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113

of the Rules of Court, if the circumstances so warrant. The warrantless arrest feared bypetitioners is, thus, not based on the declaration of a “state of rebellion.” (Lacson v.Perez, 357 SCRA 756, May 10, 2001, En Banc [Melo])

3. Discuss why rates to be charged by public utilities like MERALCO aresubject to State regulation.

Held: In third world countries like the Philippines, equal justice will have a syntheticring unless the economic rights of the people, especially the poor, are protected with thesame resoluteness as their right to liberty. The cases at bar are of utmost significance forthey concern the right of our people to electricity and to be reasonably charged for theirconsumption. In configuring the contours of this economic right to a basic necessity of life,the Court shall define the limits of the power of respondent MERALCO, a giant public utility

and a monopoly, to charge our people for their electric consumption. The question is:should public interest prevail over private profits?

X x x

The regulation of rates to be charged by public utilities is founded upon the policepower of the State and statutes prescribing rules for the control and regulations of publicutilities are a valid exercise thereof. When private property is used for a public purpose andis affected with public interest, it ceases to be juris privati only and becomes subject toregulation. The regulation is to promote the common good. Submission to regulation maybe withdrawn by the owner by discontinuing use; but as long as the use of the property iscontinued, the same is subject to public regulation (Munn v. People of the State of Illinois, 94U.S. 113, 126 [1877]).

In regulating rates charged by public utilities, the State protects the public againstarbitrary and excessive rates while maintaining the efficiency and quality of servicesrendered. However, the power to regulate rates does not give the State the right toprescribe rates which are so low as to deprive the public utility of a reasonable return oninvestment. Thus, the rates prescribed by the State must be one that yields a fairreturn on the public utility upon the value of the property performing the serviceand one that is reasonable to the public for the service rendered (IV A.F. Agbayani,Commentaries and Jurisprudence on the Commercial Laws of the Philippines 500 [1993]).

The fixing of just and reasonable rates involves a balancing of the investor and theconsumer interests (Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591).

In his famous dissenting opinion in the 1923 case of Southwestern Bell Tel. Co. v.Public Service Commission (262 U.S. 290-291, 43 S. Ct. 544, 547 [1923]), Mr. JusticeBrandeis wrote:

“The thing devoted by the investor to the public use is not specific property,tangible and intangible, but capital embarked in an enterprise. Upon the capital soinvested, the Federal Constitution guarantees to the utility the opportunity to earn afair return x x x. The Constitution does not guarantee to the utility the opportunityto earn a return on the value of all items of property used by the utility, or of any of them.

X x x

The investor agrees, by embarking capital in a utility, that its charges to thepublic shall be reasonable. His company is the substitute for the State inthe performance of the public service, thus becoming a public servant. Thecompensation which the Constitution guarantees an opportunity to earn is thereasonable cost of conducting the business.”






(Republic of the Philippines v. Manila Electric Company, G.R. No. 141314, Nov. 15,2002, 3rd Div. [Puno])

4. Discuss the “Void for Vagueness” Doctrine, and why is it repugnant tothe Constitution. Distinguish a “perfectly vague act” from “legislation couched inimprecise language.”

Held: Due process requires that the terms of a penal statute must be sufficientlyexplicit to inform those who are subject to it what conduct on their part will render themliable to its penalties (Connally v. General Construction Co., 269 US 385, 70 L Ed 322 46 S Ct 126 [1926]). A criminal statute that “fails to give a person of ordinary intelligence fair noticethat his contemplated conduct is forbidden by the statute,” or is so indefinite that “itencourages arbitrary and erratic arrests and convictions,” is void for vagueness (Colautti v.Franklin, 439 US 379, 58 L Ed 2d 596, 99 S Ct 675 [1979]). The constitutional vice in avague or indefinite statute is the injustice to the accused in placing him on trial for anoffense, the nature of which he is given no fair warning (American Communications Asso. v.

Douds, 339 US 382, 94 L Ed 925, 70 S Ct 674 [1950])

We reiterated these principles in People v. Nazario (165 SCRA 186 [1988]):

As a rule, a statute or act may be said to be vague when it lackscomprehensible standards that men “of common intelligence must necessarily guessat its meaning and differ as to its application.” It is repugnant to the Constitution intwo respects: (1) it violates due process for failure to accord persons, especially theparties targeted by it, fair notice of the conduct to avoid; and (2) it leaves lawenforcers unbridled discretion in carrying out its provisions and become an arbitraryflexing of the Government muscle.

We added, however, that:

X x x the act must be utterly vague on its face, that is to say, it cannot beclarified by either a saving clause or by construction. Thus, in Coates v. City of Cincinnati, the U.S. Supreme Court struck down an ordinance that had made it illegalfor “three or more persons to assemble on any sidewalk and there conductthemselves in a manner annoying to persons passing by.” Clearly, the ordinanceimposed no standard at all “because one may never know in advance what annoyssome people but does not annoy others.”

Coates highlights what has been referred to as a “perfectly vague” act whoseobscurity is evident on its face. It is to be distinguished, however, from legislationcoached in imprecise language – but which nonetheless specifies a standard thoughdefectively phrased – in which case, it may be “saved” by proper construction. X x x(People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1 st Div. [Kapunan])

5. Does Article 13 (b) of the Labor Code defining “recruitment andplacement” violate the due process clause?

Held: In support of her submission that Article 13 (b) is void for vagueness,appellant invokes People v. Panis (142 SCRA 664 [1986]), where this Court x x x “criticized”the definition of “recruitment and placement” x x x.

Appellant further argues that the acts that constitute “recruitment and placement”suffer from overbreadth since by merely “referring” a person for employment, a person maybe convicted of illegal recruitment.

These contentions cannot be sustained.

Appellant’s reliance on People v. Panis is misplaced. The issue in Panis was whether,under the proviso of Article 13(b), the crime of illegal recruitment could be committed only






“whenever two or more persons are in any manner promised or offered any employment fora fee.” The Court held in the negative x x x.

X x x

X x x The Court, in Panis, merely bemoaned the lack of records that would help shedlight on the meaning of the proviso. The absence of such records notwithstanding, the Courtwas able to arrive at a reasonable interpretation of the proviso by applying principles incriminal law and drawing from the language and intent of the law itself. Section 13(b),therefore, is not a “perfectly vague act” whose obscurity is evident on its face. If at all, theproviso therein is merely couched in imprecise language that was salvaged by properconstruction. It is not void for vagueness.

An act will be declared void and inoperative on the ground of vagueness anduncertainty, only upon a showing that the defect is such that the courts are unable todetermine, with any reasonable degree of certainty, what the legislature intended. x

x x. In this connection we cannot pretermit reference to the rule that “legislationshould not be held invalid on the ground of uncertainty if susceptible of anyreasonable construction that will support and give it effect. An act will not bedeclared inoperative and ineffectual on the ground that it furnished no adequatemeans to secure the purpose to which it was passed, if men of common sense andreason can devise and provide the means, and all the instrumentalities necessary forits execution are within the reach of those intrusted therewith.” (People v. Rosenthaland Osmena, 68 Phil. 328 [1939])

That Section 13(b) encompasses what appellant apparently considers as customaryand harmless acts such as “labor or employment referral” (“referring” an applicant, foremployment to a prospective employer) does not render the law overbroad. Evidently,appellant misapprehends concept of overbreadth.

A statute may be said to be overbroad where it operates to inhibit the exercise of individual freedoms affirmatively guaranteed by the Constitution, such as the freedom of speech or religion. A generally worded statute, when construed to punish conduct whichcannot be constitutionally punished is unconstitutionally vague to the extent that it fails togive adequate warning of the boundary between the constitutionally permissible and theconstitutionally impermissible applications of the statute (Wright v. Georgia, 373 US 284, 10L Ed 2d 349, 83 S Ct 1240 [1963]).

In Blo Umpar Adiong v. Commission on Elections (207 SCRA 712 [1992]), for instance,we struck down as void for overbreadth provisions prohibiting the posting of electionpropaganda in any place – including private vehicles – other than in the common posterareas sanctioned by the COMELEC. We held that the challenged provisions not onlydeprived the owner of the vehicle the use of his property but also deprived the citizen of hisright to free speech and information. The prohibition in Adiong, therefore, was so broad thatit covered even constitutionally guaranteed rights and, hence, void for overbreadth. In thepresent case, however, appellant did not even specify what constitutionally protectedfreedoms are embraced by the definition of “recruitment and placement” that would renderthe same constitutionally overbroad. (People v. Dela Piedra, 350 SCRA 163, Jan. 24,2001, 1st Div. [Kapunan])

6. Appellant, who was charged with Illegal Recruitment in the RTC of Zamboanga City, invokes the equal protection clause in her defense. She pointsout that although the evidence purportedly shows that Jasmine Alejandro handedout application forms and even received Lourdes Modesto’s payment, appellantwas the only one criminally charged. Alejandro, on the other hand, remainedscot-free. From this, appellant concludes that the prosecution discriminatedagainst her on grounds of regional origins. Appellant is a Cebuana whileAlejandro is a Zamboanguena, and the alleged crime took place in ZamboangaCity.






Held: The argument has no merit.

At the outset, it may be stressed that courts are not confined to the language of the

statute under challenge in determining whether that statute has any discriminatory effect.A statute non-discriminatory on its face may be grossly discriminatory in its operation(American Motorists Ins. Co. v. Starnes, 425 US 637, 48 L Ed 2d 263, 96 S Ct 1800 [1976]).

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied andadministered by public authority with an evil eye and unequal hand, so as practically tomake unjust and illegal discriminations between persons in similar circumstances, materialto their rights, the denial of equal justice is still within the prohibition of the Constitution(Yick Wo v. Hopkins, 118 US 356, L Ed 1012, 18 S Ct 583 [1886], cited in Genaro ReyesConstruction, Inc. v. Court of Appeals, 234 SCRA 16 [1994]).

The prosecution of one guilty while others equally guilty are not prosecuted,however, is not, by itself, a denial of the equal protection of the laws (Application of Finn,356 P.2d 685 [1960]). Where the official action purports to be in conformity to the statutory

classification, an erroneous or mistaken performance of the statutory duty, although aviolation of the statute, is not without more a denial of the equal protection of the laws(Snowden v. Hughes, 321 US 1, 88 L Ed 497, 64 S Ct 397 [1943]). The unlawfuladministration by officers of a statute fair on its face, resulting in its unequal application tothose who are entitled to be treated alike, is not a denial of equal protection, unless there isshown to be present in it an element of intentional or purposeful discrimination. This mayappear on the face of the action taken with respect to a particular class or person, or it mayonly be shown by extrinsic evidence showing a discriminatory design over another not to beinferred from the action itself. But a discriminatory purpose is not presumed, there must bea showing of “clear and intentional discrimination.” (Ibid.) Appellant has failed to show that,in charging appellant in court, that there was a “clear and intentional discrimination” on thepart of the prosecuting officials.

The discretion of who to prosecute depends on the prosecution’s sound assessmentwhether the evidence before it can justify a reasonable belief that a person has committedan offense (Tan, Jr. v. Sandiganbayan [Third Division], 292 SCRA 452 [1998]). Thepresumption is that the prosecuting officers regularly performed their duties (Rules of Court,Rule 131, Sec. 5 [m]), and this presumption can be overcome only by proof to the contrary,not by mere speculation. Indeed, appellant has not presented any evidence to overcomethis presumption. The mere allegation that appellant, a Cebuana, was charged with thecommission of a crime, while a Zamboanguena, the guilty party in appellant’s eyes, was not,is insufficient to support a conclusion that the prosecution officers denied appellant equalprotection of the laws.

There is also common sense practicality in sustaining appellant’s prosecution.

While all persons accused of crime are to be treated on a basis of equalitybefore the law, it does not follow that they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a defendant guilty of murder because others have murdered with impunity. The remedy for unequalenforcement of the law in such instances does not lie in the exoneration of the guiltyat the expense of society x x x. Protection of the law will be extended to all personsequally in the pursuit of their lawful occupations, but no person has the right todemand protection of the law in the commission of a crime (People v. Montgomery,117 P.2d 437 [1941]).

Likewise,

[i]f the failure of prosecutors to enforce the criminal laws as to some personsshould be converted into a defense for others charged with crime, the result wouldbe that the trial of the district attorney for nonfeasance would become an issue in thetrial of many persons charged with heinous crimes and the enforcement of law wouldsuffer a complete breakdown (State v. Hicks, 325 P.2d 794 [1958]).

(People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1 st Div. [Kapunan])






7. The question for determination in this case is the liability for libel of acitizen who denounces a barangay official for misconduct in office. The Regional

Trial Court of Manila x x x found petitioner guilty x x x on the ground thatpetitioner failed to prove the truth of the charges and that he was “motivated byvengeance in uttering the defamatory statement.”

Held: The decision appealed from should be reversed.

In denouncing the barangay chairman in this case, petitioner and the other residentsof the Tondo Foreshore Area were not only acting in their self-interest but engaging in theperformance of a civic duty to see to it that public duty is discharged faithfully and well bythose on whom such duty is incumbent. The recognition of this right and duty of everycitizen in a democracy is inconsistent with any requirement placing on him the burden of proving that he acted with good motives and for justifiable ends.

For that matter, even if the defamatory statement is false, no liability can attach if itrelates to official conduct, unless the public official concerned proves that the statement wasmade with actual malice – that is, with knowledge that it was false or with reckless disregardof whether it was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan (376 U.S. 254, 11 L. Ed. 2d [1964]. For a fascinating account of this case,see Anthony Lewis, Make No Law – The Sullivan Case and the First Amendment [1991]),which this Court has cited with approval in several of its own decisions (Lopez v. Court of

Appeals, 145 Phil. 219 [1970], others omitted). This is the rule of “actual malice.” In thiscase, the prosecution failed to prove not only that the charges made by petitioner were falsebut also that petitioner made them with knowledge of their falsity or with reckless disregardof whether they were false or not.

A rule placing on the accused the burden of showing the truth of allegations of official

misconduct and/or good motives and justifiable ends for making such allegations would notonly be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on theconstitutionally guaranteed freedom of expression. Such a rule would deter citizens fromperforming their duties as members of a self-governing community. Without free speechand assembly, discussions of our most abiding concerns as a nation would be stifled. As

Justice Brandies has said, “public discussion is a political duty” and the “greatest menace tofreedom is an inert people.” (Whitney v. California, 247 U.S. 357, 375, 71 L. Ed. 1095, 1105[1927] [concurring]) (Vasquez v. Court of Appeals, 314 SCRA 460, Sept. 15, 1999,En Banc [Mendoza])

8. Discuss why lower court’s should act with extreme caution in admittingin evidence accused’s videotaped media confessions.

Held: Apropos the court a quo’s admission of accused-appellant’s videotapedconfession, we find such admission proper. The interview was recorded on video and itshowed accused-appellant unburdening his guilt willingly, openly and publicly in thepresence of newsmen. Such confession does not form part of custodial investigation as itwas not given to police officers but to media men in an attempt to elicit sympathy andforgiveness from the public. Besides, if he had indeed been forced into confessing, he couldhave easily sought succor from the newsmen who, in all likelihood, would have beensympathetic with him. X x x.

X x x. However, because of the inherent danger in the use of television as a mediumfor admitting one’s guilt, and the recurrence of this phenomenon in several cases (People v.Vizcarra, No. L-38859, 30 July 1982, 115 SCRA 743; others omitted), it is prudent that trialcourts are reminded that extreme caution must be taken in further admitting similarconfessions. For in all probability, the police, with the connivance of unscrupulous mediapractitioners, may attempt to legitimize coerced extrajudicial confessions and place thembeyond the exclusionary rule by having an accused admit an offense on television. Such asituation would be detrimental to the guaranteed rights of the accused and thus imperil ourcriminal justice system.






We do not suggest that videotaped confessions given before media men by anaccused with the knowledge of and in the presence of police officers are impermissible.

Indeed, the line between proper and invalid police techniques and conduct is a difficult oneto draw, particularly in cases such as this where it is essential to make sharp judgments indetermining whether a confession was given under coercive physical or psychologicalatmosphere.

A word of caution then to lower courts: we should never presume that all mediaconfessions described as voluntary have been freely given. This type of confession alwaysremains suspect and therefore should be thoroughly examined and scrutinized. Detection of coerced confessions is admittedly a difficult and arduous task for the courts to make. Itrequires persistence and determination in separating polluted confessions from untaintedones. We have a sworn duty to be vigilant and protective of the rights guaranteed by theConstitution. (People v. Endino, 353 SCRA 307, Feb. 20, 2001, 2nd Div. [Bellosillo])

9. May a successful bidder compel a government agency to formalize acontract with it notwithstanding that its bid exceeds the amount appropriated byCongress for the project?

Held: The case at bar provides us with another occasion to stress that with respectto government contracts, statutes take precedence over the public officers’ freedom tocontract. X x x

Enshrined in the 1987 Philippine Constitution is the mandate that “no money shall bepaid out of the Treasury except in pursuance of an appropriation made by law.” (Sec. 29[1],Article VI of the 1987 Constitution) Thus, in the execution of government contracts, theprecise import of this constitutional restriction is to require the various agencies to limit theirexpenditures within the appropriations made by law for each fiscal year.

Complementary to the foregoing constitutional injunction are pertinent provisions of law and administrative issuances that are designed to effectuate the above mandate in adetailed manner x x x.

It is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are indispensable pre-requisites to or conditionssine qua non for the execution of government contracts. The obvious intent is to imposesuch conditions as a priori requisites to the validity of the proposed contract (Fernandez, ATreatise on Government Contracts Under Philippine Law, 2001, pp. 40-41). Using this as ourpremise, we cannot accede to PHOTOKINA’s contention that there is already a perfectedcontract. While we held in Metropolitan Manila Development Authority v. JancomEnvironmental Corporation (Supra) that “the effect of an unqualified acceptance of the offeror proposal of the bidder is to perfect a contract, upon notice of the award to the bidder,”however, such statement would be inconsequential in a government where the acceptancereferred to is yet to meet certain conditions. To hold otherwise is to allow a public officer toexecute a binding contract that would obligate the government in an amount in excess of the appropriations for the purpose for which the contract was attempted to be made (64 Am

Jur 2d Sec. 11). This is a dangerous precedent.

In the case at bar, there seems to be an oversight of the legal requirements as earlyas the bidding stage. The first step of a Bids and Awards Committee (BAC) is to determinewhether the bids comply with the requirements. The BAC shall rate a bid “passed” only if itcomplies with all the requirements and the submitted price does not exceed the approvedbudget for the contract.” (Implementing Rules and Regulations [IRR] for Executive Order No.262, supra.)

Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA onaccount of its bid in the amount of P6.588 Billion Pesos. However, under Republic Act No.8760 (General Appropriations Act, FY 2000, p. 1018, supra.), the only fund appropriated forthe project was P1 Billion Pesos and under the Certification of Available Funds (CAF) only






P1.2 Billion Pesos was available. Clearly, the amount appropriated is insufficient to coverthe cost of the entire VRIS Project. There is no way that the COMELEC could enter into acontract with PHOTOKINA whose accepted bid was way beyond the amount appropriated by

law for the project. This being the case, the BAC should have rejected the bid for beingexcessive or should have withdrawn the Notice of Award on the ground that in the eyes of the law, the same is null and void.

X x x

Even the draft contract submitted by Commissioner Sadain, that provides for acontract price in the amount of P1.2 Billion Pesos is unacceptable. X x x While the contractprice under the draft contract is only P1.2 Billion and, thus, within the certified availablefunds, the same covers only Phase I of the VRIS Project, i.e., the issuance of identificationcards for only 1,000,000 voters in specified areas (Ibid., p. 382). In effect, theimplementation of the VRIS Project will be “segmented” or “chopped” into several phases.Not only is such arrangement disallowed by our budgetary laws and practices, it is also

disadvantageous to the COMELEC because of the uncertainty that will loom over itsmodernization project for an indefinite period of time. Should Congress fail to appropriatethe amount necessary for the completion of the entire project, what good will theaccomplished Phase I serve? As expected, the project failed “to sell” with the Departmentof Budget and Management. Thus, Secretary Benjamin Diokno, per his letter of December 1,2000, declined the COMELEC’s request for the issuance of the Notice of Cash Availability(NCA) and a multi-year obligatory authority to assume payment of the total VRIS Project forlack of legal basis. Corollarily, under Section 33 of R.A. No. 8760, no agency shall enter intoa multi-year contract without a multi-year obligational authority, thus:

“SECTION 33. Contracting Multi-Year Projects. - In the implementation of multi-year projects, no agency shall enter into a multi-year contract without a multi-year Obligational Authority issued by the Department of Budget and Management for

the purpose. Notwithstanding the issuance of the multi-year Obligational Authority,the obligation to be incurred in any given calendar year, shall in no case exceed theamount programmed for implementation during said calendar year.”

Petitioners are justified in refusing to formalize the contract with PHOTOKINA.Prudence dictated them not to enter into a contract not backed up by sufficientappropriation and available funds. Definitely, to act otherwise would be a futile exercise forthe contract would inevitably suffer the vice of nullity. In Osmena v. Commission on Audit (230 SCRA 585, 589-590 [1994]), this Court held:

“The Auditing Code of the Philippines (P.D. 1445) further provides that nocontract involving the expenditure of public funds shall be entered into unless thereis an appropriation therefore and the proper accounting official of the agencyconcerned shall have certified to the officer entering into the obligation that fundshave been duly appropriated for the purpose and the amount necessary to cover the

proposed contract for the current fiscal year is available for expenditure on account thereof. Any contract entered into contrary to the foregoing requirements shall beVOID.

“Clearly then, the contract entered into by the former Mayor Duterte was voidfrom the very beginning since the agreed cost for the project (P8,368,920.00) wasway beyond the appropriated amount (P5,419,180.00) as certified by the City

Treasurer. Hence, the contract was properly declared void and unenforceable inCOA’s 2nd Indorsement, dated September 4, 1986. The COA declared and we agree,that:

‘The prohibition contained in Sec. 85 of PD 1445 (Government AuditingCode) is explicit and mandatory. Fund availability is, as it has always been, anindispensable prerequisite to the execution of any government contractinvolving the expenditure of public funds by all government agencies at alllevels. Such contracts are not to be considered as final or binding unless such






a certification as to funds availability is issued (Letter of Instruction No. 767, s.1978). Antecedent of advance appropriation is thus essential to governmentliability on contracts (Zobel v. City of Manila, 47 Phil. 169). This contract

being violative of the legal requirements aforequoted, the same contravenesSec. 85 of PD 1445 and is null and void by virtue of Sec. 87.’”

Verily, the contract, as expressly declared by law, is inexistent and void ab initio(Article 1409 of the Civil Code of the Philippines). This is to say that the proposed contract iswithout force and effect from the very beginning or from its incipiency, as if it had neverbeen entered into, and hence, cannot be validated either by lapse of time or ratification(Manila Lodge v. Court of Appeals, 73 SCRA 162 [1976]; See also Tongoy v. Court of

Appeals, 123 SCRA 99 [1983]).

X x x

In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the

COMELEC to formalize the contract. Since PHOTOKINA’s bid is beyond the amountappropriated by Congress for the VRIS Project, the proposed contract is not binding upon theCOMELEC and is considered void x x x. (Commission on Elections v. Judge Ma. LuisaQuijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez])

10. What is the remedy available to a party who contracts with thegovernment contrary to the requirements of the law and, therefore, void abinitio?

Ans.: Of course, we are not saying that the party who contracts with thegovernment has no other recourse in law. The law itself affords him the remedy. Section 48of E.O. No. 292 explicitly provides that any contract entered into contrary to the above-mentioned requirements shall be void, and “the officers entering into the contract shall be

liable to the Government or other contracting party for any consequent damage to the sameas if the transaction had been wholly between private parties.” So when the contractingofficer transcends his lawful and legitimate powers by acting in excess of or beyond thelimits of his contracting authority, the Government is not bound under the contract. It wouldbe as if the contract in such case were a private one, whereupon, he binds himself, and thus,assumes personal liability thereunder. (Fernandez, a Treatise on Government ContractsUnder Philippine Law, 2001, supra., pp. 22-23). Otherwise stated, the proposed contract isunenforceable as to the Government.

While this is not the proceeding to determine where the culpability lies, however, theconstitutional mandate cited above constrains us to remind all public officers that publicoffice is a public trust and all public officers must at all times be accountable to the people.

The authority of public officers to enter into government contracts is circumscribed with aheavy burden of responsibility. In the exercise of their contracting prerogative, they shouldbe the first judges of the legality, propriety and wisdom of the contract they entered into.

They must exercise a high degree of caution so that the Government may not be the victimof ill-advised or improvident action (Rivera v. Maclang, 7 SCRA 57 [1963]). (Commissionon Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002,En Banc [Sandoval-Gutierrez])

11. Mayor Edward S. Hagedorn of Puerto Princesa City was elected forthree consecutive times in the 1992, 1995 and 1998 elections and served in fullhis three consecutive terms as Mayor. In the 2001 elections, he ran for Governorof the Province of Palawan and lost. Socrates ran and won as Mayor of PuertoPrincesa in that election. On July 2, 2002, the Preparatory Recall Assembly (PRA)of Puerto Princesa City adopted a Resolution calling for the recall of incumbentMayor Socrates. The COMELEC scheduled a Special Recall Election for Mayor of that City on September 24, 2002. Is Mayor Hagedorn qualified to run again forMayor in that Special Recall Election considering the circumstances?






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

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

These constitutional and statutory provisions have two parts. The first part providesthat an elective local official cannot serve for more than three consecutive terms. The clearintent is that only consecutive terms count in determining the three-term limit rule. Thesecond part states that voluntary renunciation of office for any length of time does notinterrupt the continuity of service. The clear intent is that involuntary severance from officefor any length of time interrupts continuity of service and prevents the service before andafter the interruption from being joined together to form a continuous service or consecutiveterms.

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

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

X x x

Clearly, what the Constitution prohibits is an immediate reelection for a fourth termfollowing three consecutive terms. The Constitution, however, does not prohibit asubsequent reelection for a fourth term as long as the reelection is not immediately after theend of the third consecutive term. A recall election mid-way in the term following the third

consecutive term is a subsequent election but not an immediate reelection after the thirdterm.

Neither does the Constitution prohibit one barred from seeking immediate reelectionto run in any other subsequent election involving the same term of office. What theConstitution prohibits is a consecutive fourth term. The debates in the ConstitutionalCommission evidently show that the prohibited election referred to by the framers of theConstitution is the immediate reelection after the third term, not any other subsequentelection.

X x x

In the case of Hagedorn, his candidacy in the recall election on September 24, 2002is not an immediate reelection after his third consecutive term which ended on June 30,2001. The immediate reelection that the Constitution barred Hagedorn from seekingreferred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001elections.

X x x

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






X x x In Hagedorn’s case, the nearly 15-month period he was out of office, althoughshort of a full term of three years, constituted an interruption in the continuity of his serviceas mayor. The Constitution does not require the interruption or hiatus to be a full term of

three years. The clear intent is that interruption “for any length of time,” as long as thecause is involuntary, is sufficient to break an elective local official’s continuity of service.(Victorino Dennis M. Socrates v. The Commission on Elections, G.R. No. 154512,Nov. 12, 2002, En Banc [Carpio])

12. The members of the Preparatory Recall Assembly (PRA) of PuertoPrincesa City met and adopted a resolution calling for the recall of incumbentMayor Dennis Victorino M. Socrates on the ground of loss of confidence on July 2,2002. Mayor Socrates argued that they have no authority to adopt said RecallResolution because a majority of PRA members were seeking a new electoralmandate in the barangay elections scheduled on July 15, 2002. Should hiscontention be sustained?

Held: This argument deserves scant consideration considering that when the PRAmembers adopted the Recall Resolution their terms of office had not yet expired. They wereall de jure sangguniang barangay members with no legal disqualification to participate in therecall assembly under Section 70 of the Local Government Code. (Victorino Dennis M.Socrates v. The Commission on Elections, G.R. No. 154512, Nov. 12, 2002, En Banc

[Carpio])

13. Petitioners would seek the disqualification of respondent Leonardo B.Roman on the ground of his having transgressed the three-term limit underSection 8, Article X, of the 1987 Constitution and Section 43 of Republic Act No.7160 (Local Government Code). The focal issue presented before the Court x x xwould revolve on the question of whether or not private respondent Romanexceeded the three-term limit for elective local officials, expressed in the

Constitution and the Local Government Code, when he again ran for the positionof Governor in the 14th of May 2001 elections, having occupied and served in thatposition following the 1993 recall elections, as well as the 1995 and 1998 regularelections, immediately prior to the 2001 elections. In fine, should respondent’sincumbency to the post of Governor following the recall elections be included indetermining the three-consecutive term limit fixed by law?

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

VITUG, J., joined by YNARES-SANTIAGO, J., voted to dismiss the petition. Hecontended that as revealed by the records of the Constitutional Commission, theConstitution envisions a continuous and an uninterrupted service for three full terms beforethe proscription applies. Therefore, not being a full term, a recall term should not becounted or used as a basis for the disqualification whether served prior (as in this case) orsubsequent (as in the Socrates case) to the nine-year, full three-term limit.

MENDOZA, J., in whose opinion QUISUMBING, J., joined, voted to dismiss the petitionon the ground that, in accordance with the ruling in Borja, Jr. v. COMELEC, 295 SCRA 157[1998]; Arcos v. COMELEC, G.R. No. 133639, Oct. 6, 1998 (res.); Lonzanida v. COMELEC, 311SCRA 602 [1999]; and Adormeo v. COMELEC, G.R. No. 147927, Feb. 4, 2002, a term duringwhich succession to a local elective office takes place or a recall election is held should notbe counted in determining whether an elective local official has served more than threeconsecutive terms. He argued that the Constitution does not prohibit elective local officialsfrom serving for more than three consecutive terms because, in fact, it excludes from thethree-term limit interruptions in the continuity of service, so long as such interruptions arenot due to the voluntary renunciation of the office by the incumbent. Hence, the periodfrom June 28, 1994 to June 30, 1995, during which respondent Leonardo B. Roman served asgovernor of Bataan by virtue of a recall election held in 1993, should not be counted. Sinceon May 14, 2001 respondent had previously served as governor of Bataan for only twoconsecutive terms (1995-1998 and 1998-2001), his election on that day was actually onlyhis third term for the same position.






PANGANIBAN, J., joined by PUNO, J., also voted to dismiss the petition. He arguedthat a recall term should not be considered as one full term, because a contrary

interpretation would in effect cut short the elected official’s service to less than nine yearsand shortchange his constituents. The desire to prevent monopoly of political power shouldbe balanced against the need to uphold the voters’ obvious preference who, in the presentcase, is Roman who received 97 percent of the votes cast. He explained that, in Socrates,he also voted to affirm the clear choice of the electorate, because in a democracy thepeople should, as much as legally possible, be governed by leaders freely chosen by them incredible elections. He concluded that, in election cases, when two conflicting legal positionsare of almost equal weight, the scales of justice should be tilted in favor of the people’soverwhelming choice.

AZCUNA, J., joined by BELLOSILLO, J., also voted to dismiss, arguing that it is clearfrom the constitutional provision that the disqualification applies only if the terms areconsecutive and the service is full and continuous. Hence, service for less than a term,

except only in case of voluntary renunciation, should not count to disqualify an elective localofficial from running for the same position. This case is different from Socrates, where thefull three consecutive terms had been continuously served so that disqualification hadclearly attached.

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

CARPIO, J., joined by CARPI0-MORALES, J., also dissented and voted to grant thepetition. He held that a recall term constitutes one term and that to totally ignore a recallterm in determining the three-term limit would allow local officials to serve for more thannine consecutive years contrary to the manifest intent of the framers of the Constitution. Hecontended that respondent Roman’s election in 2001 cannot exempt him from the three-term limit imposed by the Constitution.

WHEREFORE, THE PETITION FOR CERTIORARI IS DISMISSED.

THE SEPARATE OPINIONS OF THE JUSTICES ARE HERETO ATTACHED AS PART OF THISRESOLUTION.

In his Separate Opinion, Justice Vitug voted to dismiss the petition on the followingconsiderations:

In order that the three-consecutive term limit can apply, two conditions must concur,i.e., (1) that the elective local official concerned has been elected for three consecutiveterms to the same local government position, and (2) that he has served three consecutivefull terms, albeit a voluntary renunciation of the office for any length of time shall not bedeemed to be an interruption in the continuity of the service for the full term for which he iselected. The constitutional provision does not appear to be all that imprecise for and in itsapplication. Section 8, Article X, of the Constitution is explicit that the “term of office of elective local officials x x x shall be three years” which phrase is forthwith followed by itsmandate that “no such official shall serve for more than three consecutive terms,” and that“[v]oluntary renunciation of the office for any length of time shall not be considered as aninterruption in the continuity of his service for the full term for which he [is] elected.” Thelaw evidently contemplates a continuous full three-year term before the proscription canapply.

The Constitutional Commission, in its deliberations, referred to a full nine (9) years of service for each elective local government official in the application of the prohibition,






envisioning at the same time a continuous and uninterrupted period of nine years byproviding for only one exception, i.e., when an incumbent voluntarily gives up the office.

X x x

A winner who dislodges in a recall election an incumbent elective local official merelyserves the balance of the latter’s term of office; it is not a full three-year term. It also goeswithout saying that an incumbent elective local official against whom a recall election isinitiated and who nevertheless wins in a recall election must be viewed as being acontinuing term of office and not as a break in reckoning his three consecutive terms. X x x

If involuntary severance from the service which results in the incumbent’s beingunable to finish his term of office because of his ouster through valid recall proceedingsnegates “one term” for purposes of applying the three-term limit, as so intimated inLonzanida, it stands to reason that the balance of the term assumed by the newly electedlocal official in a recall election should not also be held to be one term in reckoning the

three-term limit. In both situations, neither the elective local official who is unable to finishhis term nor the elected local official who only assumes the balance of the term of theousted local official following the recall election could be considered to have served a fullthree-year term set by the Constitution.

This view is not inconsistent, but indeed in line, with the conclusion ultimatelyreached in Socrates v. Commission on Elections, where the Court has consideredHagedorn, following his three full terms of nine years, still qualified to run in a recall electionconducted about a year and a half after the most recent regular local elections. A recallterm then, not being a full three-year term, is not to be counted or used as a basis fordisqualification whether it is held prior or subsequent to the nine year full three-term limit.

This same issue has been passed and ruled upon by the Commission on Elections no

less than five times. Consistently, it has held that the term of a newcomer in recall electionscannot be counted as a full term and may not thus be included in counting the three-termlimit prescribed under the law. The Commission on Elections, with its fact-finding facilities,its familiarity with political realities, and its peculiar expertise in dealing with electioncontroversies, should be in a good vantage point to resolve issues of this nature.Concededly, no ready made formulae are always extant to address occasional complexissues, allowing time and experience to merely evolve and ultimately provide acceptablesolutions. In the administration of election laws, it would be unsound by an excessive zealto remove from the Commission on Elections the initiative it takes on such questions which,in fact, by legal mandate properly belong to it (See Loong v. COMELEC, 305 SCRA 832,Pangandaman v. COMELEC, 319 SCRA 283).

Nor should it be ignored that the law here involved is a limitation on the right of suffrage not only on the candidate for office but also, and most importantly, on theelectorate. Respondent Roman has won the election to the post of Governor of Bataan witha comfortable margin against his closest opponent. Where a candidate appears to be theclear choice of the people, doubts on the candidate’s eligibility, even only as a practicalmatter, must be so resolved as to respect and carry out, not defeat, the paramount will of the electorate. While the Constitution would attempt to prevent the monopolization of political power, indeed a wise rule, the precept of preserving the freedom of choice of thepeople on who shall rightfully hold the reins of government for them is no less thanfundamental in looking at its overriding intent.

WHEREFORE, I vote to DISMISS the instant petition on the foregoing theses.(Melanio L. Mendoza and Mario E. Ibarra v. Commission on Elections and LeonardoB. Roman, G.R. No. 149736, Dec. 17, 2002, En Banc)

14. On May 3, 2001, petitioner filed with the Provincial Election Supervisorin Pagadian City a petition for the disqualification of respondent Sulong, pursuantto Sec. 40[b] of Republic Act No. 7160 (Local Government Code), whichdisqualifies from running for any elective local position “those removed from






office as a result of an administrative case.” It appears that respondent Sulonghad previously won as mayor of Lapuyan on January 18, 1988. In the May 11,1992, and again in the May 8, 1995 elections, he was reelected. In a petition for

disqualification, petitioner alleged that in 1991, during his first term as mayor of Lapuyan, respondent Sulong, along with a municipal councilor of Lapuyan andseveral other individuals, was administratively charged (AC No. 12-91) withvarious offenses, and that, on February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the charges and ordered his removal fromoffice. Petitioner claimed that this decision had become final and executory, andconsequently the then vice-mayor of Lapuyan, Vicente Imbing, took his oath asmayor vice respondent Sulong on March 3, 1992.

Respondent Sulong denied that the decision in AC No. 12-91 had becomefinal and executory. He averred that after receiving a copy of the decision onFebruary 17, 1992, he filed a motion for reconsideration and/or notice of appealthereof on February 18, 1992; that on February 27, 1992, the Sangguniang

Panlalawigan required Jim Lingating, the complainant in AC No. 12-91, tocomment on respondent Sulong’s motion for reconsideration and/or notice of appeal; that the said complainant had not yet complied therewith and his(respondent Sulong’s) motion had consequently remained pending. RespondentSulong denied he had been removed from office by virtue of the decision in ACNo. 12-91.

Held: Petitioner contends that the COMELEC en banc erred in applying the ruling in Aguinaldo v. Commission on Elections (212 SCRA 768 [1992]) in holding that the reelectionof respondent Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of condoningthe misconduct for which he was ordered dismissed by the Sangguniang Panlalawigan of Zamboanga del Sur. Petitioner cites Reyes v. Commission on Elections (254 SCRA 514, 525-526 [1996]) in which we held that an elective local executive officer, who is removed before

the expiration of the term for which he was elected, is disqualified from being a candidatefor a local elective position under Section 40[b] of the Local Government Code.

We stated in Reyes:

Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was heldthat a public official could not be removed for misconduct committed during a priorterm and that his reelection operated as a condonation of the officer’s previousmisconduct to the extent of cutting-off the right to remove him therefore. But thatwas because in that case, before the petition questioning the validity of theadministrative decision removing petitioner could be decided, the term of officeduring which the alleged misconduct was committed expired. Removal cannotextend beyond the term during which the alleged misconduct was committed. If apublic official is not removed before his term of office expires, he can no longer beremoved if he is thereafter reelected [for] another term. This is the rationale for theruling in the two Aguinaldo cases.

The case at bar is the very opposite of those cases. Here, x x x the decision inthe administrative case x x x was served on petitioner and it thereafter became finalon April 3, 1995, because petitioner failed to appeal to the Office of the President.He was thus validly removed from office and, pursuant to Sec. 40[b] of the LocalGovernment Code, he was disqualified from running for reelection.

It is noteworthy that at the time the Aguinaldo cases were decided there wasno provision similar to Sec. 40[b] which disqualified any person from running for anyelective position on the ground that he has been removed as a result of anadministrative case. The Local Government Code of 1991 (R.A. No. 7160) could notbe given retroactive effect.

However, Reyes cannot be applied to this case because it appears that the 1992 decision of the Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty, falsification






and malversation of public funds, has not until now become final. X x x The filing of hismotion for reconsideration prevented the decision of Sangguniang Panlalawigan frombecoming final.

While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion forreconsideration, the same cannot be interpreted as a prohibition against the filing of amotion for reconsideration. x x x.

There is thus no decision finding respondent guilty to speak of. As ProvincialSecretary of Zamboanga del Sur Wilfredo Cimafranca attested, the SangguniangPanlalawigan simply considered the matter as having become moot and academic becauseit was “overtaken by the local elections of May [11], 1992.”

Neither can the succession of the then vice-mayor of Lapuyan x x x and the highestranking municipal councilor of Lapuyan x x x to the offices of mayor and vice-mayor,respectively, be considered proof that the decision in AC No. 12-91 had become final

because it appears to have been made pursuant to Sec. 68 of the Local Government Code,which makes decisions in administrative cases immediately executory.

Indeed, considering the failure of the Sangguniang Panlalawigan to resolverespondent’s motion, it is unfair to the electorate to be told after they have voted forrespondent Sulong that after all he is disqualified, especially since at the time of theelections on May 14, 2001, the decision of the Sangguniang Panlalawigan had beenrendered nearly ten years ago.

X x x

WHEREFORE, the petition for certiorari is DISMISSED and the resolution x x x of theCOMELEC en banc, dismissing petitioner’s petition for disqualification, is AFFIRMED.

(Atty. Miguel M. Lingating v. Commission on Elections and Cesar B. Sulong, G.R.No. 153475, Nov. 13, 2002, En Banc [Mendoza])

15. With the ratification of the Visiting Forces Agreement (VFA), has it nowbecome obligatory and incumbent on our part to be bound by its terms even if itis asserted that said agreement contravenes the Constitution?

Held: With the ratification of the VFA, which is equivalent to final acceptance, andwith the exchange of notes between the Philippines and the United States of America, it nowbecomes obligatory and incumbent on our part, under the principles of international law, tobe bound by the terms of the agreement. Thus, no less than Section 2, Article II of theConstitution, declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality,

justice, freedom, cooperation and amity with all nations.

As a member of the family of nations, the Philippines agrees to be bound by generallyaccepted rules for the conduct of its international relations. While the internationalobligation devolves upon the state and not upon any particular branch, institution, orindividual member of its government, the Philippines is nonetheless responsible forviolations committed by any branch or subdivision of its government or any official thereof.As an integral part of the community of nations, we are responsible to assure that ourgovernment, Constitution and laws will carry out our international obligation (Louis Henkin,Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and Materials, 2nd

Ed., American Casebook Series, p. 136). Hence, we cannot readily plead the Constitution asa convenient excuse for non-compliance with our obligations, duties and responsibilitiesunder international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted bythe International Law Commission in 1949 provides: Every State has the duty to carry out ingood faith its obligations arising from treaties and other sources of international law, and it






may not invoke provisions in its constitution or its laws as an excuse for failure to performthis duty. (Gerhard von Glahn, supra, p. 487)

Equally important is Article 26 of the Convention which provides that “Every treaty inforce is binding upon the parties to it and must be performed by them in good faith.” This isknown as the principle of pacta sunt servanda which preserves the sanctity of treaties andhave been one of the most fundamental principles of positive international law, supportedby the jurisprudence of international tribunals (Harris, p. 634 cited in Coquia, InternationalLaw, supra, p. 512). (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, 342 SCRA 449, 492-493, En Banc

[Buena])

16. Discuss the Indigenous International Movement. Is the Philippines anactive participant in the Indigenous International Movement?

Held: The Indigenous Peoples Rights Act (IPRA) is a recognition of our active

participation in the indigenous international movement.

The indigenous movement can be seen as the heir to a history of anti-imperialismstretching back to prehistoric times. The movement received a massive impetus during the1960’s from two sources. First, the decolonization of Asia and Africa brought into thelimelight the possibility of peoples controlling their own destinies. Second, the right of self-determination was enshrined in the UN Declaration on Human Rights (Andrew Gray, TheIndigenous Movement in Asia, Indigenous Peoples of Asia, ed. by Barnes, Gray and Kingsbury, pub. by Ass’n. for Asian Studies, at 35, 42 [1995]). The rise of the civil rightsmovement and anti-racism brought to the attention of North American Indians, Aborigines inAustralia, and Maori in New Zealand the possibility of fighting for fundamental rights andfreedoms.

In 1974 and 1975, international indigenous organizations were founded (E.g.International Indian Treaty Council, World Council of IPs), and during the 1980’s, indigenousaffairs were on the international agenda. The people of the Philippine Cordillera were thefirst Asians to take part in the international indigenous movement. It was the CordilleraPeople’s Alliance that carried out successful campaigns against the building of the ChicoRiver Dam in 1981-82 and they have since become one of the best-organized indigenousbodies in the world (Gray, The Indigenous Movement in Asia, supra, at 44, citing theInternational Work Group for Indigenous Affairs, 1988).

Presently, there is a growing concern for indigenous rights in the international scene. This came as a result of the increased publicity focused on the continuing disrespect forindigenous human rights and the destruction of the indigenous peoples’ environment,together with the national governments’ inability to deal with the situation (Jose PauloKastrup, The Internationalization of Indigenous Rights from the Environmental and HumanRights Perspective, 32 Texas International Law Journal 97, 102 [1997]). Indigenous rightscame as a result of both human rights and environmental protection, and have become apart of today’s priorities for the international agenda (Benedict Kingsbury, “IndigenousPeoples” in International Law: A Constructive Approach to the Asian Controversy, The

American Journal of International Law, vol. 92: 414, 429 [1998]).

International organizations and bodies have realized the necessity of applyingpolicies, programs and specific rules concerning IPs in some nations. The World Bank, forexample, first adopted a policy on IPs as a result of the dismal experience of projects in LatinAmerica (The World Bank supported the Chico Dam Project. Due to the Kalingas’ opposition,the WB pulled out of the project but the conflict between the Philippine government and thenatives endured long after – Marcus Colchester, Indigenous Peoples’ Rights and SustainableResource Use in South and Southeast Asia, Indigenous Peoples of Asia, supra, pp. 59, 71-72). The World Bank now seeks to apply its current policy on IPs to some of its projects inAsia. This policy has provided an influential model for the projects of the Asian DevelopmentBank (Kingsbury, supra, at 417).






The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs anddeclares as a State policy the promotion of their rights within the framework of nationalunity and development (Section 22, Article II, 1987 Constitution). The IPRA amalgamates

the Philippine category of ICCs with the international category of IPs (Interpellation of Senator Flavier on S.B. No. 1728, Deliberation on Second Reading, November 20, 1996, p.20), and is heavily influenced by both the International Labor Organization (ILO) Convention169 and the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples(Guide to R.A. 8371, Coalition for IPs Rights and Ancestral Domains, the International Labor Organization, and the ILO-Bilance-Asia Dep’t, p. 3 [1999]).

ILO Convention No. 169 is entitled the “Convention Concerning Indigenous and TribalPeoples in Independent Countries” (Also referred to as the “Indigenous and Tribal PeoplesConvention, 1989”) and was adopted on June 27, 1989. It is based on the UniversalDeclaration of Human Rights, the International Covenant on Economic, Social and CulturalRights, the International Covenant on Civil and Political Rights, and many other internationalinstruments on the prevention of discrimination (See Introduction to ILO Convention No.

169, par. 4). ILO Convention No. 169 revised the “Convention Concerning the Protection andIntegration of Indigenous and Other Tribal and Semi-Tribal Populations in IndependentCountries” (ILO No. 107) passed on June 26, 1957. Developments in international law madeit appropriate to adopt new international standards on indigenous peoples “with a view toremoving the assimilationist orientation of the earlier standards,” and “recognizing theaspirations of these peoples to exercise control over their own institutions, ways of life andeconomic development.” (Id., pars. 5 and 6) (Separate Opinion, Puno, J., in Cruz v.Secretary of Environment and Natural Resources, 347 SCRA 128, 238-241, Dec. 6,2000, En Banc)

17. State the occasions when the use of force may be allowed under the UNCharter.

Ans.: There are only two occasions when the use of force is allowed under the UNCharter. The first is when it is authorized in pursuance of the enforcement action that maybe decreed by the Security Council under Art. 42. The second is when it is employed in theexercise of the inherent right of self-defense under conditions prescribed in Art. 51. (JusticeIsagani A. Cruz, in an article entitled “A New World Order” written in his column“Separate Opinion” published in the March 30, 2003 issue of the Philippines Daily Inquirer)

18. Is the United States justified in invading Iraq invoking its right todefend itself against an expected attack by Iraq with the use of its biological andchemical weapons of mass destruction?

Ans.: The United States is invoking its right to defend itself against an expectedattack by Iraq with the use of its biological and chemical weapons of mass destruction.

There is no evidence of such a threat, but Bush is probably invoking the modern view that astate does not have to wait until the potential enemy fires first. The cowboy from Texassays that outdrawing the foe who is about to shoot is an act of self-defense.

Art. 51 says, however, that there must first be an “armed attack” before a state canexercise its inherent right of self-defense, and only until the Security Council, to which theaggression should be reported, shall have taken the necessary measures to maintaininternational peace and security. It was the United States that made the “armed attack”first, thus becoming the aggressor, not Iraq. Iraq is now not only exercising its inherent rightof self-defense as recognized by the UN Charter. (Justice Isagani A. Cruz, in an articleentitled “A New World Order” written in his column “Separate Opinion” published in the March 30, 2003 issue of the Philippines Daily Inquirer)

19. Will the subsequent discovery of weapons of mass destruction in Iraqafter its invasion by the US justify the attack initiated by the latter?






Ans.: Even if Iraq’s hidden arsenal is discovered – or actually used – and the UnitedStates is justified in its suspicions, that circumstance will not validate the procedure takenagainst Iraq. It is like searching a person without warrant and curing the irregularity with

the discovery of prohibited drugs in his possession. The process cannot be reversed. Thewarrant must first be issued before the search and seizure can be made.

The American invasion was made without permission from the Security Council asrequired by the UN Charter. Any subsequent discovery of the prohibited biological andchemical weapons will not retroactively legalize that invasion, which was, legally speaking,null and void ab initio. (Justice Isagani A. Cruz, in an article entitled “A New World Order” written in his column “Separate Opinion” published in the March 30, 2003issue of the Philippines Daily Inquirer)

20.Discuss the Five Postulates of Extradition.

Held:

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

First, extradition treaties are entered into for the purpose of suppressing crime byfacilitating the arrest and custodial transfer (Bassiouni, International Extradition, 1987 ed.,

p. 68) of a fugitive from one state to the other.

With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime andevading prosecution has become more frequent. Accordingly, governments are adjustingtheir methods of dealing with criminals and crimes that transcend international boundaries.

Today, “a majority of nations in the world community have come to look upon

extradition as the major effective instrument of international co-operation in the suppressionof crime.” (Bassiouni, supra, p. 21) It is the only regular system that has been devised toreturn fugitives to the jurisdiction of a court competent to try them in accordance withmunicipal and international law (Id., p. 67).

X x x

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

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

Second, an extradition treaty presupposes that both parties thereto have examined,and that both accept and trust, each other’s legal system and judicial process (Coquia, “OnImplementation of the RP-US Extradition Treaty,” The Lawyers Review, August 31, 2000, p.4). More pointedly, our duly authorized representative’s signature on an extradition treatysignifies our confidence in the capacity and willingness of the other state to protect the basicrights of the person sought to be extradited (See Bassiouni, p. 546; citing 221 US 508, 512[1910]). That signature signifies our full faith that the accused will be given, uponextradition to the requesting state, all relevant and basic rights in the criminal proceedingsthat will take place therein; otherwise, the treaty would not have been signed, or would havebeen directly attacked for its unconstitutionality.

3. The Proceedings Are Sui Generis.

Third , as pointed out in Secretary of Justice v. Lantion (Supra), extraditionproceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis – in a class by itself – they are not.






X x x

Given the foregoing, it is evident that the extradition court is not called upon to

ascertain the guilt or the innocence of the person sought to be extradited (Secretary of Justice v. Lantion, supra.). Such determination during the extradition proceedings will onlyresult in needless duplication and delay. Extradition is merely a measure of international

judicial assistance through which a person charged with or convicted of a crime is restoredto a jurisdiction with the best claim to try that person. It is not part of the function of theassisting authorities to enter into questions that are the prerogative of that jurisdiction(Shearer, Extradition in International Law, 1971 ed., p. 157). 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 (Id., p.545).

4. Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption thatits implementation will serve the national interest.

Fulfilling our obligations under the Extradition Treaty promotes comity (In line withthe Philippine policy of cooperation and amity with all nations set forth in Article II, Section 2,Constitution). On the other hand, failure to fulfill our obligations thereunder paints at badimage of our country before the world community. Such failure would discourage otherstates from entering into treaties with us, particularly an extradition treaty that hinges onreciprocity.

Verily, we are bound by pacta sunt servanda to comply in good faith with ourobligations under the Treaty (Secretary of Justice v. Lantion, supra.). This principle requires

that we deliver the accused to the requesting country if the conditions precedent toextradition, as set forth in the Treaty, are satisfied. In other words, “[t]he demandinggovernment, when it has done all that the treaty and the law require it to do, is entitled tothe delivery of the accused on the issue of the proper warrant, and the other government isunder obligation to make the surrender.” (Wright v. Henkel, 190 U.S. 40, 62, March 23,1903) Accordingly, the Philippines must be ready and in a position to deliver the accused,should it be found proper.

5. There Is an Underlying Risk of Flight.

Fifth, persons to be extradited are presumed to be flight risks. This prima faciepresumption finds reinforcement in the experience of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested statein order to thwart their extradition to the requesting state.






The present extradition case further validates the premise that personssought to be extradited have a propensity to flee. Indeed, extradition hearings

would not even begin, if only the accused were willing to submit to trial in therequesting country (Persily, “International Extradition and the Right to Bail,” 34Stan. J. Int’l L. 407 [Summer 1988]). Prior acts of herein respondent – (1)leaving the requesting state right before the conclusion of his indictmentproceedings there; and (2) remaining in the requested state despite learning thatthe requesting state is seeking his return and that the crimes he is charged withare bailable – eloquently speak of his aversion to the processes in the requestingstate, as well as his predisposition to avoid them at all cost. Thesecircumstances point to an ever-present, underlying high risk of flight. He hasdemonstrated that he has the capacity and the will to flee. Having fled once,what is there to stop him, given sufficient opportunity, from fleeing a secondtime? (Government of the United States of America v. Hon. GuillermoPurganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

21. Is respondent in an Extradition Proceeding entitled to notice andhearing before the issuance of a warrant of arrest?

Held: Both parties cite Section 6 of PD 1069 in support of their arguments. X x x

Does this provision sanction RTC Judge Purganan’s act of immediately setting forhearing the issuance of a warrant of arrest? We rule in the negative.

1. On the Basis of the Extradition Law

It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word“immediate” to qualify the arrest of the accused. This qualification would be renderednugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sendingnotices to the opposing parties, receiving facts and arguments from them, and giving themtime to prepare and present such facts and arguments. Arrest subsequent to a hearing canno longer be considered “immediate.” The law could not have intended the word as a meresuperfluity but, on the whole, as a means of impairing a sense of urgency and swiftness inthe determination of whether a warrant of arrest should be issued.

By using the phrase “if it appears,” the law further conveys that accuracy is not asimportant as speed at such early stage. The trial court is not expected to make anexhaustive determination to ferret out the true and actual situation, immediately upon thefiling of the petition. From the knowledge and the material then available to it, the court isexpected merely to get a good first impression – a prima facie finding – sufficient to make aspeedy initial determination as regards the arrest and detention of the accused.

X x x

We stress that the prima facie existence of probable cause for hearing the petitionand, a priori, for issuing an arrest warrant was already evident from the Petition itself and itssupporting documents. Hence, after having already determined therefrom that a primafacie finding did exist, respondent judge gravely abused his discretion when he set thematter for hearing upon motion of Jimenez.

Moreover, the law specifies that the court sets a hearing upon receipt of the answeror upon failure of the accused to answer after receiving the summons. In connection withthe matter of immediate arrest, however, the word “hearing” is notably absent from theprovision. Evidently, had the holding of a hearing at that stage been intended, the law could






have easily so provided. It also bears emphasizing at this point that extradition proceedingsare summary (See Sec. 9, PD 1069) in nature. Hence, the silence of the Law and the Treatyleans to the more reasonable interpretation that there is no intention to punctuate with a

hearing every little step in the entire proceedings.

X x x

Verily x x x sending to persons sought to be extradited a notice of the request fortheir arrest and setting it for hearing at some future date would give them ampleopportunity to prepare and execute an escape. Neither the Treaty nor the Law could haveintended that consequence, for the very purpose of both would have been defeated by theescape of the accused from the requested state.

2. On the Basis of the Constitution

Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not

require a notice or a hearing before the issuance of a warrant of arrest. X x x

To determine probable cause for the issuance of arrest warrants, the Constitutionitself requires only the examination – under oath or affirmation – of complainants and thewitnesses they may produce. There is no requirement to notify and hear the accused beforethe issuance of warrants of arrest.

In Ho v. People (280 SCRA 365, October 9, 1997) and in all the cases cited therein,never was a judge required to go to the extent of conducting a hearing just for the purposeof personally determining probable cause for the issuance of a warrant of arrest. All werequired was that the “judge must have sufficient supporting documents upon which tomake his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause.”

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

At most, in cases of clear insufficiency of evidence on record, judges merely furtherexamine complainants and their witnesses (Ibid; citing Allado v. Diokno, 233 SCRA 192, May5, 1994). In the present case, validating the act of respondent judge and instituting thepractice of hearing the accused and his witnesses at this early stage would be discordantwith the rationale for the entire system. If the accused were allowed to be heard andnecessarily to present evidence during the prima facie determination for the issuance of awarrant of arrest, what would stop him from presenting his entire plethora of defenses atthis stage – if he so desires – in his effort to negate a prima facie finding? Such a procedurecould convert the determination of a prima facie case into a full-blown trial of the entireproceedings and possibly make trial of the main case superfluous. This scenario is alsoanathema to the summary nature of extraditions.

That the case under consideration is an extradition and not a criminal action is notsufficient to justify the adoption of a set of procedures more protective of the accused. If adifferent procedure were called for at all, a more restrictive one – not the opposite – wouldbe justified in view of respondent’s demonstrated predisposition to flee. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept.24, 2002, En Banc [Panganiban])

22. Is respondent Mark Jimenez entitled to bail during the pendencyof the Extradition Proceeding?

Held: We agree with petitioner. As suggested by the use of the word “conviction,”the constitutional provision on bail x x x, as well as Section 4 of Rule 114 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 donot render judgments of conviction or acquittal.

Moreover, the constitutional right to bail “flows from the presumption of innocence infavor of every accused who should not be subjected to the loss of freedom as thereafter hewould be entitled to acquittal, unless his guilt be proved beyond reasonable doubt.” (De laCamara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, Jr. [later CJ]) It followsthat the constitutional provision on bail will not apply to a case like extradition, where thepresumption of innocence is not an issue.

The provision in the Constitution stating that the right to bail shall not be impairedeven when the privilege of the writ of habeas corpus is suspended” does not detract fromthe rule that the constitutional right to bail is available only in criminal proceedings. It mustbe noted that the suspension of the privilege of the writ of habeas corpus finds application“only to persons judicially charged for rebellion or offenses inherent in or directly connectedwith invasion.” (Sec. 18, Article VII, Constitution) Hence, the second sentence in the

constitutional provision on bail merely emphasizes the right to bail in criminal proceedingsfor the aforementioned offenses. It cannot be taken to mean that the right is available evenin extradition proceedings that are not criminal in nature.

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

23. Will Mark Jimenez’s detention prior to the conclusion of the extraditionproceedings not amount to a violation of his right to due process?

Held: Contrary to his contention, his detention prior to the conclusion of theextradition proceedings does not amount to a violation of his right to due process. Weiterate the familiar doctrine that the essence of due process is the opportunity to be heard(Garcia v. NLRC, GR No. 110494, November 18, 1996; Paat v. Court of Appeals, January 10,1997) but, at the same time, point out that the doctrine does not always call for a prior opportunity to be heard (See Central Bank of the Philippines v. Court of Appeals, 220 SCRA536, March 20, 1993). Where the circumstances – such as those present in an extraditioncase – call for it, a subsequent opportunity to be heard is enough (Ibid. See also Busuego v.Court of Appeals, 304 SCRA 473, March 11, 1999). In the present case, respondent will begiven full opportunity to be heard subsequently, when the extradition court hears thePetition for Extradition. Hence, there is no violation of his right to due process andfundamental fairness.

Contrary to the contention of Jimenez, we find no arbitrariness, either, in theimmediate deprivation of his liberty prior to his being heard. That his arrest and detentionwill not be arbitrary is sufficiently ensured by (1) the DOJ’s filing in court the Petition with itssupporting documents after a determination that the extradition request meets therequirements of the law and the relevant treaty; (2) the extradition judge’s independentprima facie determination that his arrest will best serve the ends of justice before theissuance of a warrant for his arrest; and (3) his opportunity, once he is under the court’scustody, to apply for bail as an exception to the no-initial-bail rule.

It is also worth noting that before the US government requested the extradition of respondent, proceedings had already been conducted in that country. But because he leftthe jurisdiction of the requesting state before those proceedings could be completed, it washindered from continuing with the due processes prescribed under its laws. His invocationof due process now had thus become hollow. He already had that opportunity in therequesting state; yet, instead of taking it, he ran away.

In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations in order to accord Respondent Jimenez his personal liberty in






the span of time that it takes to resolve the Petition for Extradition? His supposedimmediate deprivation of liberty without due process that he had previously shunned palesagainst the government’s interest in fulfilling its Extradition Treaty obligations and in

cooperating with the world community in the suppression of crime. Indeed, “[c]onstitutionalliberties do not exist in a vacuum; the due process rights accorded to individuals must becarefully balanced against exigent and palpable government interest.” (Coquia, “On theImplementation of the US-RP Extradition Treaty,” supra; citing Kelso v. US Department of State, 13 F Supp. 291 [DDC 1998])

Too, we cannot allow our country to be a haven for fugitives, cowards and weaklingswho, instead of facing the consequences of their actions, choose to run and hide. Hence, itwould not be good policy to increase the risk of violating our treaty obligations if, throughoverprotection or excessively liberal treatment, persons sought to be extradited are able toevade arrest or escape from our custody. In the absence of any provision – in theConstitution, the law or the treaty – expressly guaranteeing the right to bail in extraditionproceedings, adopting the practice of not granting them bail, as a general rule, would be a

step towards deterring fugitives from coming to the Philippines to hide from or evade theirprosecutors.

The denial of bail as a matter of course in extradition cases falls into place with andgives life to Article 14 (It states: “If the person sought consents in writing to surrender to theRequesting State, the Requested State may surrender the person as expeditiously aspossible without further proceedings.”) of the Treaty, since this practice would encouragethe accused to voluntarily surrender to the requesting state to cut short their detentionhere. Likewise, their detention pending the resolution of extradition proceedings would fallinto place with the emphasis of the Extradition Law on the summary nature of extraditioncases and the need for their speedy disposition. (Government of the United States of

America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

24. What are the exceptions to the “No Bail” Rule in ExtraditionProceedings?

Held: The rule x x x is that bail is not a matter of right in extradition cases.However, the judiciary has the constitutional duty to curb grave abuse of discretion andtyranny, as well as the power to promulgate rules to protect and enforce constitutionalrights. Furthermore, we believe that the right to due process is broad enough to include thegrant of basic fairness to extraditees. Indeed, the right to due process extends to the “life,liberty or property” of every person. It is “dynamic and resilient, adaptable to everysituation calling for its application.” (I.A. Cruz, Constitutional Law, 1998 ed., p. 98)

Accordingly and to best serve the ends of justice, we believe and so hold that, after apotential extraditee has been arrested or placed under the custody of the law, bail may beapplied 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 amatter of reciprocity, those cited by the highest court in the requesting state when it grantsprovisional liberty in extradition cases therein.

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

The Court realizes that extradition is basically an executive, not a judicial, responsibilityarising from the presidential power to conduct foreign relations. In its barest concept, itpartakes of the nature of police assistance amongst states, which is not normally a judicialprerogative. Hence, any intrusion by the courts into the exercise of this power should becharacterized by caution, so that the vital international and bilateral interests of our countrywill not be unreasonably impeded or compromised. In short, while this Court is everprotective of “the sporting idea of fair play,” it also recognizes the limits of its ownprerogatives and the need to fulfill international obligations. (Government of the United






States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002,En Banc [Panganiban])

25. Are there special circumstances compelling enough for the Court togrant Mark Jimenez’s request for provisional release on bail?

Held: Along this line, Jimenez contends that there are special circumstances thatare compelling enough for the Court to grant his request for provisional release on bail. Wehave carefully examined these circumstances and shall now discuss them.

1. Alleged Disenfranchisement

While his extradition was pending, Respondent Jimenez was elected as a member of the House of Representatives. On that basis, he claims that his detention will disenfranchisehis Manila district of 600,000 residents. We are not persuaded. In People v. Jalosjos (324SCRA 689, February 3, 2000, per Ynares-Santiago, J.), the Court has already debunked the

disenfranchisement argument x x x.

It must be noted that even before private respondent ran for and won acongressional seat in Manila, it was already of public knowledge that the United States wasrequesting his extradition. Hence, his constituents were or should have been prepared forthe consequences of the extradition case against their representative, including hisdetention pending the final resolution of the case. Premises considered and in line with

Jalosjos, we are constrained to rule against his claim that his election to public office is byitself a compelling reason to grant him bail.

2. Anticipated Delay

Respondent Jimenez further contends that because the extradition proceedings are

lengthy, it would be unfair to confine him during the pendency of the case. Again we are notconvinced. We must emphasize that extradition cases are summary in nature. They areresorted to merely to determine whether the extradition petition and its annexes conform tothe Extradition Treaty, not to determine his guilt or innocence. Neither is it, as a rule,intended to address issues relevant to the constitutional rights available to the accused in acriminal action.

We are not overruling the possibility that petitioner may, in bad faith, unduly delaythe proceedings. This is quite another matter that is not at issue here. Thus, any furtherdiscussion of this point would be merely anticipatory and academic.

However, if the delay is due to maneuverings of respondent, with all the more reasonwould the grant of bail not be justified. Giving premium to delay by considering it as aspecial circumstance for the grant of bail would be tantamount to giving him the power togrant bail to himself. It would also encourage him to stretch out and unreasonably delay theextradition proceedings even more. This we cannot allow.

3. Not a Flight Risk?

Jimenez further claims that he is not a flight risk. To support this claim, he stressesthat he learned of the extradition request in June 1999; yet, he has not fled the country.

True, he has not actually fled during the preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee as the process moves forward toits conclusion, as he hears the footsteps of the requesting government inching closer andcloser. That he has not yet fled from the Philippines cannot be taken to mean that he willstand his ground and still be within reach of our government if and when it matters; that is,upon the resolution of the Petition for Extradition.

In any event, it is settled that bail may be applied for and granted by the trial court atanytime after the applicant has been taken into custody and prior to judgment, even afterbail has been previously denied. In the present case, the extradition court may continue






hearing evidence on the application for bail, which may be granted in accordance with theguidelines in this Decision. (Government of the United States of America v. Hon.Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

26. Discuss the Ten Points to consider in Extradition Proceedings?

Held: 1. The ultimate purpose of extradition proceedings is to determine whetherthe request expressed in the petition, supported by its annexes and the evidence that maybe adduced during the hearing of the petition, complies with the Extradition Treaty and Law;and whether the person sought is extraditable. The proceedings are intended merely toassist the requesting state in bringing the accused – or the fugitive who has illegally escaped– back to its territory, so that the criminal process may proceed therein.

2. By entering into an extradition treaty, the Philippines is deemed to have reposedits 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. By nature then, extradition proceedings are not equivalent to a criminal case inwhich guilt or innocence is determined. Consequently, an extradition case is not one inwhich the constitutional rights of the accused are necessarily available. It is more akin, if atall, to a court’s request to police authorities for the arrest of the accused who is at large orhas escaped detention or jumped bail. Having once escaped the jurisdiction of therequesting state, the reasonable prima facie presumption is that the person would escapeagain if given the opportunity.

4. Immediately upon receipt of the petition for extradition and its supportingdocuments, the judge shall make a prima facie finding whether the petition is sufficient inform and substance, whether it complies with the Extradition Treaty and Law, and whether

the person sought is extraditable. The magistrate has discretion to require the petitioner tosubmit further documentation, or to personally examine the affiants or witnesses. If convinced that a prima facie case exists, the judge immediately issues a warrant for thearrest of the potential extraditee and summons him or her to answer and to appear atscheduled hearings on the petition.

5. After being taken into custody, potential extraditees may apply for bail. Since theapplicants have a history of absconding, they have the burden of showing that (a) there isno flight risk and no danger to the community; and (b) there exist special, humanitarian orcompelling circumstances. The grounds used by the highest court in the requesting statefor the grant of bail therein may be considered, under the principle of reciprocity as a specialcircumstance. In extradition cases, bail is not a matter of right; it is subject to judicialdiscretion in the context of the peculiar facts of each case.

6. Potential extraditees are entitled to the rights to due process and to fundamentalfairness. Due process does not always call for a prior opportunity to be heard. Asubsequent opportunity is sufficient due to the flight risk involved. Indeed, available duringthe hearings on the petition and the answer is the full chance to be heard and to enjoyfundamental fairness that is compatible with the summary nature of extradition.

7. This Court will always remain a protector of human rights, a bastion of liberty, abulwark of democracy and the conscience of society. But it is also well aware of thelimitations of its authority and of the need for respect for the prerogatives of the other co-equal and co-independent organs of government.

8. We realize that extradition is essentially an executive, not a judicial, responsibilityarising out of the presidential power to conduct foreign relations and to implement treaties.

Thus, the Executive Department of government has broad discretion in its duty and power of implementation.






9. On the other hand, courts merely perform oversight functions and exercise reviewauthority to prevent or excise grave abuse and tyranny. They should not allow contortions,delays and “over-due process” every little step of the way, lest these summary extradition

proceedings become not only inutile but also sources of international embarrassment d ueto our inability to comply in good faith with a treaty partner’s simple request to return afugitive. Worse, our country should not be converted into a dubious haven where fugitivesand escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat thequest for bilateral justice and international cooperation.

10. At bottom, extradition proceedings should be conducted with all deliberatespeed to determine compliance with the Extradition Treaty and Law; and, whilesafeguarding basic individual rights, to avoid the legalistic contortions, delays andtechnicalities that may negate that purpose. (Government of the United States of

America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])



Documents

Sandoval Notes Supplemental