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JURIS NOTESPolitical Law

SELECTED NEW DECISIONS INPOLITICAL LAW AND PUBLIC

INTERNATIONAL LAW

Attorney EDWIN REY SANDOVAL

Professor of Law(December 3, 2002 May 28, 2003)

Victorino Dennis M. Socrates v. The Commission on Elections

G.R. No. 154512, November 12, 2002En Banc [Carpio]

This case involved Mayor Edward S. Hagedorn of Puerto Princesa City who ran andwon in the Special Recall Election held in that City on September 24, 2002. Hagedorn waselected for three consecutive terms in the 1992, 1995 and 1998 elections and served in fullhis three consecutive terms as Mayor of Puerto Princesa. Under the Constitution and theLocal Government Code, Hagedorn could no longer run for mayor in the 2001 elections. TheConstitution and the Local Government Code disqualified Hagedorn, who had reached themaximum three-term limit, from running for a fourth consecutive term as mayor. In the2001 elections, he ran for Governor of the Province of Palawan and lost. Socrates ran andwon as Mayor of Puerto Princesa in that election. After Hagedorn ceased to be mayor on

June 30, 2001, he became a private citizen. On July 2, 2002, the Preparatory RecallAssembly (PRA) of Puerto Princesa City adopted a Resolution calling for the recall of theincumbent Mayor Socrates. The COMELEC scheduled a special recall election for Mayor onSeptember 24, 2002.

Is Mayor Hagedorn qualified to run again for Mayor of that City considering thecircumstances?

Held:

The three-term limit rule for elective local officials is found in Section 8, Article X ofthe 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 immediatereelection 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, a

Justicis Nemini Neganda EstPOLTICAL LAW

RECOLETOS DE MANILA SCHOOL OF LAW1


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subsequent 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 thirdconsecutive 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 Constitutional

Commission 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.

If the prohibition on elective local officials is applied to any election within the three-year full term following the three-term limit, then Senators should also be prohibited fromrunning in any election within the six-year full term following their two-term limit. Theconstitutional provision on the term limit of Senators is worded exactly like the term limit ofelective local officials x x x.

X x x

In the case of Hagedorn, his candidacy in the recall election on September 24, 2002

is 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.

Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998elections and served in full his three consecutive terms as mayor of Puerto Princesa. Underthe Constitution and the Local Government Code, Hagedorn could no longer run for mayor inthe 2001 elections. The Constitution and the Local Government Code disqualified Hagedorn,who had reached the maximum three-term limit, from running for a fourth consecutive termas mayor. Thus, Hagedorn did not run for mayor in the 2001 elections. Socrates ran andwon as mayor of Puerto Princesa in the 2001 elections. After Hagedorn ceased to be mayoron June 30, 2001, he became a private citizen until the recall election of September 24,2002 when he won by 3,018 votes over his closest opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002, the mayor ofPuerto Princesa was Socrates. This period is clearly an interruption in the continuity ofHagedorns service as mayor, not because of his voluntary renunciation, but because of alegal prohibition. Hagedorns three consecutive terms ended on June 30, 2001. Hagedornsnew recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation ofhis previous three consecutive terms as mayor. One cannot stitch together Hagedornsprevious 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 Hagedornsservice as mayor.

In Lonzanida v. Comelec (311 SCRA 602 [1999]), the Court had occasion to explaininterruption of continuity of service in this manner:

x x x The second sentence of the constitutional provision under scrutiny states,Voluntary renunciation of office for any length of time shall not be considered as an




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interruption in the continuity of service for the full term for which he was elected.The clear intent of the framers of the constitution to bar any attempt to circumventthe three-term limit by a voluntary renunciation of office and at the same time

respect the peoples choice and grant their elected official full service of a term isevident in this provision. Voluntary renunciation of a term does not cancel therenounced term in the computation of the three-term limit; conversely, involuntaryseverance from office for any length of time short of the full term provided by lawamounts to an interruption of continuity of service. x x x.) (Emphasis supplied)

In Hagedorns case, the nearly 15-month period he was out of office, although short of a fullterm of three years, constituted an interruption in the continuity of his service as 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 the cause isinvoluntary, is sufficient to break an elective local officials continuity of service.

In the recent case ofAdormeo v. Comelec and Talaga (G.R. No. 147927, February 4,

2002), a unanimous Court reiterated the rule that an interruption consisting of a portion of aterm of office breaks the continuity of service of an elective local official. InAdormeo,Ramon Y. Talaga, Jr. had served two consecutive full terms as mayor of Lucena city. In histhird bid for election as mayor in 1998, Talaga lost to Bernard G. Tagarao. However, in therecall election of May 12, 2000, Talaga won and served the unexpired term of Tagarao fromMay 12, 2000 to June 30, 2001. When Talaga ran again for mayor in the 2001 elections,Raymundo Adormeo, the other candidate for mayor, petitioned for Talagas disqualificationon the ground that Talaga had already served three consecutive terms as mayor.

Thus, the issue inAdormeo was whether Talagas recall term was a continuation ofhis previous two terms so that he was deemed to have already served three consecutiveterms as mayor. The Court ruled that Talaga was qualified to run in the 2001 elections,stating that the period from June 30, 1998 to May 12, 2000 when Talaga was out of office

interrupted the continuity of his service as mayor. Talagas recall term as mayor was notconsecutive to his previous two terms because of this interruption, there having been abreak of almost two years during which time Tagarao was the mayor.

We held inAdormeo that the period an elective local official is out of office interruptsthe continuity of his service and prevents his recall term from being stitched together as aseamless continuation of his previous two consecutive terms. In the instant case, welikewise hold that the nearly 15 months Hagedorn was out of office interrupted his continuityof service and prevents his recall term from being stitched together as a seamlesscontinuation of his previous three consecutive terms. The only difference betweenAdormeoand the instant case is the time of the interruption. InAdormeo, the interruption occurredafter the first two consecutive terms. In the instant case, the interruption happened afterthe first three consecutive terms. In both cases, the respondents were seeking election for afourth term.

In Adormeo, the recall term of Talaga began only from the date he assumed officeafter winning the recall election. Talagas recall term did not retroact to include the tenurein office of his predecessor. If Talagas recall term was made to so retroact, then he wouldhave been disqualified to run in the 2001 elections because he would already have servedthree consecutive terms prior to the 2001 elections. One who wins and serves a recall termdoes not serve the full term of his predecessor but only the unexpired term. The period oftime prior to the recall term, when another elective official holds office, constitutes aninterruption in continuity of service. Clearly, Adormeo established the rule that the winnerin the recall election cannot be charged or credited with the full term of three years for

purposes of counting the consecutiveness of an elective officials terms in office.

In the same manner, Hagedorns recall term does not retroact to include the tenurein office of Socrates. Hagedorn can only be disqualified to run in the September 24, 2002recall election if the recall term is made to retroact to June 30, 2001, for only then can therecall term constitute a fourth consecutive term. But to consider Hagedorns recall term asa full term of three years, retroacting to June 30, 2001, despite the fact that he won his




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recall term only last September 24, 2002, is to ignore reality. This Court cannot declare asconsecutive or successive terms of office which historically and factually are not.

Worse, to make Hagedorns term retroact to June 30, 2001 creates a legal fiction thatunduly curtails the freedom of the people to choose their leaders through popular elections.

The concept of term limits is in derogation of the sovereign will of the people to elect theleaders of their own choosing. Term limits must be construed strictly to give the fullestpossible effect to the sovereign will of the people. X x x

A necessary consequence of the interruption of continuity of service is the start of anew term following the interruption. An official elected in recall election serves theunexpired term of the recalled official. This unexpired term is in itselfone term for purposesof counting the three-term limit. This is clear from the following discussion in theConstitutional Commission x x x.

Although the discussion referred to special elections for Senators and

Representatives of the House, the same principle applies to a recall election of local officials.Otherwise, an elective local official who serves a recall term can serve for more than nineconsecutive years comprising of the recall term plus the regular three full terms. A localofficial who serves a recall term should know that the recall term is in itselfone termalthough less than three years. This is the inherent limitation he takes by running andwinning in the recall election.

Collateral Issue

Socrates also claims that the PRA members had no authority to adopt the RecallResolution on July 2, 2002 because a majority of PRA members were seeking a new electoralmandate in the barangay elections scheduled on July 15, 2002.

Held:

This argument deserves scant consideration considering that when the PRA membersadopted the Recall Resolution their terms of office had not yet expired. They were all de

jure sangguniang barangay members with no legal disqualification to participate in the recallassembly under Section 70 of the Local Government Code.

Melanio L. Mendoza and Mario E. Ibarra v. Commission on Elections andLeonardo B. RomanG.R. No. 149736, December 17, 2002En Banc

For resolution is a petition for certiorari filed by petitioners x x x seeking to set asidethe resolution of the Commission on Elections x x x and to declare respondent Leonardo B.Romans election as governor of Bataan on May 14, 2001 as null and void for allegedly beingcontrary to Art. X, Sec. 8 of the Constitution x x x.

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) or

subsequent (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




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[1998];Arcos v. COMELEC, G.R. No. 133639, Oct. 6, 1998 (res.); Lonzanida v. COMELEC, 311SCRA 602 [1999]; andAdormeo 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 not

be 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 officials 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 peoplesoverwhelming 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 respondents 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 Romans 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.

Separate Opinion, Vitug, J.




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Petitioners would seek the disqualification of respondent Leonardo B. Roman on theground of his having transgressed the three-term limit under Section 8, Article X, of the1987 Constitution and Section 43 of Republic Act No. 7160 (Local Government Code) x x x.

X x x

The focal issue presented before the Court x x x would revolve on the question ofwhether or not private respondent Roman exceeded the three-term limit for elective localofficials, expressed in the Constitution and the Local Government Code, when he again ranfor the position of Governor in the 14th of May 2001 elections, having occupied and served inthat position following the 1993 recall elections, as well as the 1995 and 1998 regularelections, immediately prior to the 2001 elections. In fine, should respondents incumbencyto the post of Governor following the recall elections be included in determining the three-consecutive term limit fixed by law?

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, albeita 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 ofelective 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 ofservice 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 latters 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 incumbents 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 thethree-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.




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This same issue has been passed and ruled upon by the Commission on Elections noless 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-term

limit 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 ofsuffrage 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 with

a comfortable margin against his closest opponent. Where a candidate appears to be theclear choice of the people, doubts on the candidates eligibility, even only as a practicalmatter, must be so resolved as to respect and carry out, not defeat, the paramount will ofthe electorate. While the Constitution would attempt to prevent the monopolization ofpolitical 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.

Government of the United States of America v. Hon. Guillermo Purganan

G.R. No. 148571, September 24, 2002En Banc [Panganiban]

The United States Government requested the Philippine Government for theextradition of Mark Jimenez pursuant to the provisions of the RP-US Extradition Treaty toface trial for his alleged criminal offenses in the United States. The Department of Justice(DOJ) filed a Petition for his extradition with the RTC of Manila in accordance with theprovisions of PD 1069 (The Philippine Extradition Law) and the RP-US Extradition Treaty.

Issues, Resolution, Principles and Guidelines in Extradition:

A. In extradition proceedings, are prospective extraditees entitled to

notice and hearing before their warrants for their arrest can be issued? Equallyimportant, are they entitled to the right to bail and provisional liberty while theextradition proceedings are pending? In general, the answer to these two novelquestions is No.

X x x

B. Five Postulates of Extradition

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.




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With the advent of easier and faster means of international travel, the flight ofaffluent criminals from one country to another for the purpose of committing crime andevading prosecution has become more frequent. Accordingly, governments are adjusting

their methods of dealing with criminals and crimes that transcend international boundaries.

Today, a majority of nations in the world community have come to look uponextradition 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 others 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 representatives 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 have

been 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 ofthe 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 toascertain the guilt or the innocence of the person sought to be extradited (Secretary of

Justice v. Lantion, supra.). Such determinatio0n 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 ofextradition proceedings in court is only to determine whether the extradition requestcomplies 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 ExtraditionTreaty, 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 bad




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X x x

It is evident that respondent judge could have already gotten an impression from

these records adequate for him to make an initial determination of whether the accused wassomeone who should immediately be arrested in order to best serve the ends of justice.He could have determined whether such facts and circumstances existed as would lead areasonably discreet and prudent person to believe that the extradition request was primafacie meritorious. In point of fact, he actually concluded from these supporting documentsthat probable cause did exist. 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 couldhave 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 ahearing 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 ample

opportunity 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 notrequire 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 ofcomplainants 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 ofthe 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 theirwitnesses (Ibid; citingAllado 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 at




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this stage if he so desires in his effort to negate aprima 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 also

anathema 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 respondents demonstrated predisposition to flee.

X x x

D. Procedure to be Followed Once Extradition Petition is Filed in Court.

Since this is a matter of first impression, we deem it wise to restate the properprocedure.

Upon receipt of a petition for extradition and its supporting documents, the judgemust study them and make, as soon as possible, aprima facie finding whether (a) they aresufficient in form and substance, (b) they show compliance with the Extradition Treaty andLaw, and (c) the person sought is extraditable. At his discretion, the judge may require thesubmission of further documentation or may personally examine the affiants and witnessesof the petitioner. If, in spite of this study and examination, no prima facie finding (Primafacie finding, not probable cause, is the more precise terminology because an extraditioncase is not a criminal proceeding in which the latter phrase is commonly used.) is possible,the petition may be dismissed at the discretion of the judge.

On the other hand, if the presence of a prima facie case is determined, then themagistrate must immediately issue a warrant for the arrest of the extraditee, who is at the

same time summoned to answer the petition and to appear at scheduled summary hearings.Prior to the issuance of the warrant, the judge must not inform or notify the potentialextraditee of the pendency of the petition, lest the latter be given the opportunity to escapeand frustrate the proceedings. In our opinion, the foregoing procedure will best serve theends of justice in extradition cases.

E. Is Respondent Entitled to Bail (in Extradition Proceedings)?

Extradition Different from Ordinary Criminal Proceedings

We agree with petitioner. As suggested by the use of the word conviction, theconstitutional 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 Philippinecriminal 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




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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 theconstitutional provision on bail merely emphasizes the right to bail in criminal proceedings

for 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.

No Violation of Due Process

X x x

Contrary to his contention, his detention prior to the conclusion of the extraditionproceedings does not amount to a violation of his right to due process. We iterate thefamiliar 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 aprioropportunity tobe heard (See Central Bank of the Philippines v. Court of Appeals, 220 SCRA 536, March 20,1993). Where the circumstances such as those present in an extradition case call for it, asubsequentopportunity 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 be given fullopportunity to be heard subsequently, when the extradition court hears the Petition forExtradition. Hence, there is no violation of his right to due process and fundamentalfairness.

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 DOJs 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 judges 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 courtscustody, 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 ofrespondent, proceedings had already been conducted in that country. But because he leftthe jurisdiction of the requesting state before those proceedings could be completed, it was

hindered 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 ofviolating its treaty obligations in order to accord Respondent Jimenez his personal liberty inthe 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 governments interest in fulfilling its Extradition Treaty obligations and incooperating 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, it




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would 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 the

Constitution, 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 astep 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.

F. Exceptions to the No Bail Rule

The rule x x x is that bail is not a matter of right in extradition cases. However, thejudiciary has the constitutional duty to curb grave abuse of discretion and tyranny, as wellas the power to promulgate rules to protect and enforce constitutional rights. Furthermore,we believe that the right to due process is broad enough to include the grant of basicfairness to extraditees. Indeed, the right to due process extends to the life, liberty orproperty ofeveryperson. It is dynamic and resilient, adaptable to every situation callingfor 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 a

potential 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 ofproving 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 judicial

prerogative. 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.

G. Are There Special Circumstances Compelling Enough for the Court toGrant Jimenezs Request for Provisional Release on Bail?

Along this line, Jimenez contends that there are special circumstances that arecompelling 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 ofthe House of Representatives. On that basis, he claims that his detention will disenfranchise




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his 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 thedisenfranchisement 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 arelengthy, it would be unfair to confine him during the pendency of the case. Again we are not

convinced. 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 to

grant 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 continuehearing evidence on the application for bail, which may be granted in accordance with theguidelines in this Decision.

H. Ten Points to Consider in Extradition Proceedings

As we draw to a close, it is now time to summarize and stress these ten points:

1. The ultimate purpose of extradition proceedings is to determine whether therequest expressed in the petition, supported by its annexes and the evidence that may beadduced 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.




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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 courts 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. Ifconvinced 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. Asubsequentopportunity 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 ofimplementation.

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 summaryextraditionproceedings become not only inutile but also sources of international embarrassment due toour inability to comply in good faith with a treaty partners 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.




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Resolution of the Motion for ReconsiderationG.R. No. 148571, December 17, 2002

En Banc

First, private respondent insists that the Extradition Court acted properly in grantingbail to him. We have already exhaustively discussed this issue in our Decision and in theConcurring Opinion of Mr. Justice Antonio T. Carpio. Thus, we will not belabor our ruling onthis point. Suffice it to say that petitioners repeated invocation of the Extradition Courtsgrant of bail has not convinced us that he deserves bail under the exception laid down in ourDecision x x x.

There has been no clear and convincing showing as to the absence of flight risk andthe non-endangerment of the community, or as to the existence of special, humanitarianand compelling circumstances justifying grant of bail.

Second, private respondent claims that our Decision did not make an express findingof grave abuse of discretion on the part of the lower court. This is incorrect. X x x

Further, contrary to Jimenezs claims, the Extradition Court did not negate the flightrisk posed by him. It did not make a finding on flight risk as it considered the issueirrelevant, having already determined bail to be a matter of right. X x x

And in any event, in his Memorandum, private respondent submitted factual issues i.e., existence of special circumstances and absence of flight risk for the consideration ofthis Court. He even reiterated some of those factual submissions in his Motion forReconsideration. He is therefore deemed estopped to claim that this Court cannot, oncertiorari, address factual issues and review and reverse the factual findings of theExtradition Court.

Third, private respondents arguments (1) that the Extradition Court exercised duediscretion in its grant of bail and (2) that our ruling that bail is not a matter of right inextradition cases is contrary to prevailing law and jurisprudence are neither novel nordeserving of further rebuttal. Again, they have been extensively taken up in our Decision aswell as in Concurring, Separate and Dissenting Opinions.

Fourth, private respondent argues that allegedly our Decision violated his dueprocess rights. Again, we have discussed this matter in our Decision saying that, in itssimplest concept, due process is merely the opportunity to be heard which opportunityneed not always be a prior one. In point of fact, private respondent has been given morethan enough opportunity to be heard in this Court as well as in the Extradition Court. Evenhis Motion for Reconsideration has been given all the chances to persuade by way of

allowing additional arguments in his Motion x x x and Reply. These latter pleadings arenormally not allowed, but precisely because this Court wanted to give him more thanenough opportunity to be heard and to argue, we have bent backwards and admitted theseadditional pleadings.

Finally, private respondent contends that as a member of Congress, he is immunefrom arrest arising from offenses punishable by not more than six (6) years imprisonment,saying that he cannot be prevented from performing his legislative duties because hisconstituents would be disenfranchised. He perorates that a member of Congress may besuspended or removed from office only by two-thirds vote of the House of Representatives.Citing People v. Jalosjos, our Decision has already debunked the disenfranchisementargument. Furthermore, our Decision does not in any manner suspend or remove him fromoffice. Neither his arrest or detention arising from the extradition proceeding will constitutehis suspension or removal form office. That is clear enough.

While equal protection and reasonable classifications are not directly in issue in thiscase, we nevertheless stress, paraphrasing Jalosjos, that respondents election to the




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position of congressman, with the concomitant duty to discharge legislative functions, doesnot constitute a substantial differentiation which warrants placing him in a classification orcategory apart from all other persons confined and deprived of their liberty pending

resolution of their extradition cases. We reiterate that lawful arrest and temporaryconfinement of a potential extraditee are germane to the purposes of the law and apply toall those belonging to the same class.

As we have stated, the procedure adopted by the Extradition Court of first notifyingand hearing a prospective extraditee before the actual issuance of the warrant for his arrest,is tantamount to giving notice to flee and avoid extradition. Whether a candidate forextradition does in fact go into hiding or not is beside the point. In the final analysis, themethod adopted by the lower court was completely at loggerheads with the purpose, objectand rationale of the law, and overlooked the evils to be remedied.

As already suggested in our Decision (p. 32), private respondent can avoid arrest anddetention which are the consequences of the extradition proceeding simply by applying for

bail before the courts trying the criminal cases against him in the USA. He himself hasrepeatedly told us that the indictments against him in the United States are bailable.Furthermore, he is capable, financially and otherwise, of producing the necessary bail in theUS. Why then has he not done so?

Otherwise stated, Respondent Jimenez has the actual power to lift his arrest anddetention arising from his extradition by simply and voluntarily going to and filing bail in theUSA.

AT BOTTOM, private respondents Motion for Reconsideration presents no new orsubstantial arguments which have not been presented in his prior pleadings and which havenot been taken up in our Decision. His present allegations and asseverations are mererehashes of arguments previously presented to us or are mere restatements of the Separate

and Dissenting Opinions which were already adequately discussed in our Decision. In short,private respondent has not given any compelling reason to warrant a reversal ormodification of our earlier rulings.

Separate Opinion, Vitug,J.

Extradition is an exceptional measure running against the tradition of asylum.International Extradition is a process under which a sovereign state surrenders to anothersovereign state a person accused in a case or a fugitive offender in the latter state [1]. Thepractice has its origins as early as the ancient Egyptian, Chinese, Chaldean and Assyro-Babylonian civilizations [2]. The surrender of a person who has been granted the privilegeof presence or refuge in the requested state is deemed to be an exceptional measurerunning against the tradition of asylum and hospitality of the requesting state, and it hasgiven rise to the speculation that the term extradition evolved from what used to be thenknown as extra-tradition. [3] The widely accepted explanation for the term still appears tobe the Latin original extradere on pacts and treaties. The first recorded extradition treaty inthe world dates circa 1280 BC, where Rameses II, Pharaoh of Egypt, and King Hattusili III ofthe Hittites signed a peace treaty expressly providing for the return of persons sought byeach sovereign taking refuge in the territory of the other. Since then, however, only thepractice of Greece and Rome on extradition arrangements evidently found their way intoEuropean texts of international law [4]. The participants of the process remained the sameover time the two states and the individual sought to be extradited. But while, historically,extradition was for the purpose of obtaining the surrender of political offenders, the trend,starting in the 19th century, has been to refuse the extradition of a person sought for politicalcrimes. This shift can be explained partly to the emergence of humanitarian internationallaw which has given impetus to a new legal status of one of the participants, i.e., theindividual, thus placing some limitations on the power of the respective sovereigns that didnot historically exist [5].

Extradition, nevertheless, does not find basis in Customary International Law.




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International customary law is, as its name suggests, created by custom. It is one ofthe two (the other being treaties) primary law-creating processes of international law. Itsevolution, according to Schwarzenberger [6], can be traced to the early development of a

global society when international law consisted primarily of express agreements, which theparties freely accepted as legally binding between or among themselves. Little was takenfor granted, and everything that was considered if only remotely relevant had beenincorporated into the text of these treaties. Some of the rules were found to be soconvenient and generally acceptable that their inclusion in the succeeding agreementsgradually became non-essential. Time hardened them into customary international law.International customary law has two constitutive elements: (1) a general practice ofsovereign states and (2) the acceptance of the states of this general practice as law [7]. Inthe Lotus (1927) and Asylum (1950) cases, the World Court ruled that to prove the existenceof a rule in international customary law, it is necessary to establish not only that States act acertain way but that they do so because they recognize a legal obligation to this effect, i.e.,with or without a treaty [8].

Despite its ancient roots, extradition, as it is presently exercised by states, adoptsthe view represented by Puffendorf who argues that the duty to extradite is only animperfect obligation which requires an explicit agreement in order to become fully bindingunder international law and secure reciprocal rights and duties of the contracting states [9].

The exception would be with respect to international crimes, such as terrorism andgenocide, in which extradition is seen as being a definite legal duty. As D.W. Grieg sobluntly puts it, there exists no duty to extradite under customary international law [10].Prevailing practice among states indeed supports the conclusion that the duty to extraditecan be demanded only by virtue of a treaty, whether bilateral or multilateral [11];conversely, in its absence, there is no legal right to demand and no corresponding obligationto extradite. Once, however, of course, an extradition treaty is concluded, respect for andcompliance with the treaty obligation is, under the international principle ofpacta suntservanda, expected from the states that enter into the agreement.

Neither can extradition be considered a generally accepted principle of internationallaw.

Article 38(1)(c) of the Statute of the International Court of Justice refers to thegeneral principles of law recognized by civilized nations as being a source of law whichcomes after customary law, international conventions and treaties, all of which are based onthe consent of nations [12]. Article 38(1)(c) is identified as being a secondary source ofinternational law and therefore, not ranked at par with treaties and customary internationallaw [13]. The phrase is innately vague, and its exact meaning still eludes any generalconsensus. The widely preferred opinion, however, appears to be that of Oppenheim whichviews general principles of law as being inclusive of principles of private or municipal lawwhen these are applicable to international relations [14]. Where, in certain cases, there isno applicable treaty nor a generality of state practice giving rise to customary law, theinternational court is expected to rely upon certain legal notions of justice and equity inorder to deduce a new rule for application to a novel situation [15]. This reliance orborrowing by the international tribunal from general principles of municipal jurisprudenceis explained in many ways by the fact that municipal or private law has s higher level ofdevelopment compared to international law. Brownlie submits that the term generally-accepted principles of international law could also refer to rules of customary law, togeneral principles of law, or to logical propositions resulting from judicial reasoning on thebasis of existing international law and municipal law analogies [16].

In order to qualify as a product of the subsidiary law-creating process, a principle oflaw must fulfill three requirements: (1) it must be a general principle of law as distinct froma legal rule of more limited functional scope, (2) it must be recognized by civilized nations,and (3) it must be shared by a fair number of states in the community of nations [17].Examples of these principles, most of which are drawn from Roman law, encompasses ruleson prescription, estoppel, res judicata [18], consent and pacta sunt servanda. It can alsoinclude generally accepted principles enshrined under the Universal Declaration of HumanRights, such as the basic human right to life and liberty without distinction as to race, color,




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sex, race language or religion, political or other opinion, nationality, social origin, property,birth or other status [19]. At the moment, extradition, at most a process resorted to bystates under the policy of cooperation and comity with each other, does not qualify as a

generally accepted principle of international law nor as being thereby incorporated anddeemed part of the law of the land under Section 2, Article II, of the 1987 PhilippineConstitution [20].

Clarifying the term generally-accepted principles of international law during thedeliberations of the 1987 Constitutional Commission, Commissioner Rodolfo Azcuna pointsout that [w]hen we talk of generally-accepted principles of international as part of the lawof the land, we mean that it is part of the statutory part of laws, not of the Constitution [21].

The remark is shared by Professor Merlin M. Magallona who expresses that thephrase as part of the law of the land in the incorporation clause refers to the levels of legalrules below the Constitution such as legislative acts and judicial decisions. Thus, hecontends, it is incorrect to so interpret this phrase as including the Constitution itself

because it would mean that the generally-accepted principles of international law falls inparity with the Constitution [22]. A treaty being the primary source of the obligation toextradite has given occasion to a lack of cohesive and uniform standards on extradition.

Not finding basis in customary law, and failing to qualify as a generally-acceptedprinciple of international law, the present state of international law on the return of fugitivesfor trial is hypothesized by Brownlie: With the exception of alleged crimes underinternational law, surrender of an alleged criminal cannot be demanded of right in theabsence of treaty. [23] The result has been a failure of consistency in extradition practiceamong states. Indeed, the reality is that there is to date no uniform standard applicable toall states. D.W. Gregg [24] attributes this lack of universal and cohesive standards in theextradition process to the adoption of a variety of procedures which can be as diverse as thecontracting states would want them to be. In formulating their extradition treaties,

contracting states insert particular provisions and stipulations to address specificparticularities in their relationships. Thus, extradition under American law is different fromthat under English law; to illustrate, the English Extradition Act of 1870 requires that theoffense, for which a fugitive is to be extradited, be also considered a crime under Englishlaw. No such requirement, upon the other hand, exists under the US Extradition Act, whichlimits extraditable crimes to those enumerated under the treaty, regardless of whether thesame are considered crimes under its laws. While both England and the United States areamenable to extraditing their own nationals, France and Belgium absolutely refuse to do so.

This refusal to surrender ones own nationals is likewise adopted by most states inContinental Europe which, under their own municipal laws, are obliged to unconditionallyreject any request for the surrender of their own nationals, preferring to try them under theirown laws even though the offense is committed abroad. While Common Law countriesrequire aprima facie showing of guilt before they surrender a fugitive, almost all other legalsystems require only that the offense be committed in the jurisdiction of the demandingstate [25]. In the United States, extradition is demanded with an opportunity for a judicialhearing, while in other countries, extradition is exclusively an administrative function [26].It may also happen that a single estate may have as many extradition processes as thenumber of extradition treaties it has with other countries. Thus, while the generalextradition process with England is governed by the Extradition Act of 1870, any extraditionit may undertake with member states of the British Commonwealth is governed by theFugitive Act of 1967 [27]. Fenwick, another recognized authority in international law,concludes --- Since extradition is effected as the result of the provisions of treaties enteredinto by nations two by two, it is impossible to formulate any general rule of law upon thesubject. [28]

The elevated status of a treaty over that of an ordinary statute is taking ground.

The International Tribunal, has consistently held that, in consonance with the ViennaConvention, a state cannot plead provisions of its own laws or deficiencies in that law in ananswer to a claim against it for an alleged breach of its obligations under international law[29]. From the standpoint of International Law and of the International Court, municipal laws




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are merely expressions of the will and constitute the activities of the states within itsboundaries in the same manner as do ordinary legal decisions or administrative measures[30]. But, viewed domestically, reactions have been varied. Differing internal laws among

the members of the international community has resulted in the divergence of responseswhen treaty law clashes with ordinary municipal law.

In the United Kingdom, despite pronouncements that the law of nations is adoptedin its full extent by common law and is held to be part of the law of the land, cases decidedsince 1876 point to the displacement of the doctrine of incorporation by that oftransformation, viz.: customary law is part of the law of England only insofar as the ruleshave been clearly adopted and made part of England by legislation, judicial decision, orestablished usage [31]. In the United States, there has not been much hesitation inrecognizing the priority of legislative enactment when passed not only in contravention ofestablished custom but even of the provisions of a specific treaty [32]. Meeting objection tothe validity of a tax on immigrants as a violation of the numerous treaties of the USgovernment with friendly nations, the United States Supreme Court, in the Head Money

Cases (112 US 580 [1884]), observed: A treaty, then, is a law of the land as an act ofCongress whenever its provisions prescribe a rule by which the rights of the private citizenor subject may be determined, and when such rights are of a nature to be enforced in acourt of justice, courts resort to treaties for a rule of decision of the case as it would to astatute. Nevertheless, added the Court, so far as a treaty made by the US with any foreignnation can become subject of judicial cognizance in the courts of this country, it is subject tosuch acts as Congress may pass for its enforcement, modification or repeal. In France, atreaty has supremacy over an inconsistent prior statute as long as the other state party tothe agreements accords a similar superiority in its domestic forum. French precedent alsoexists for treaty supremacy over a subsequent inconsistent statute [33]. The EuropeanCourt once ruled that the European Economic Community Treaty has precedence overnational law, even if the national law were later in time [34].

This ambivalent attitude towards the relationship between international andmunicipal law exemplifies the still on-going debate between two schools of thought monism and dualism. Monists believe that international law and domestic law are partof a single legal order; international law is automatically incorporated into each nationslegal system and that international is supreme over domestic law [35]. Monism requiresthat domestic courts give effect to international law, notwithstanding inconsistent domesticlaw, even constitutional law of a constitutional character. [36] Dualists, however, contendthat international law and domestic law are distinct, each nation ascertaining for itself whenand to what extent international law is incorporated into its legal system, and that the statusof international law in the domestic system is determined by domestic law [37]. Under thisview, when municipal law provides that international law applies in whole or in part withinour jurisdiction, it is but an exercise of the authority of municipal law, an adoption ortransformation of the rules of international law. [38]

In the Philippines, while specific rules on how to resolve conflicts between a treatylaw and an act of Congress, whether made prior or subsequent to its execution, have yet tobe succinctly defined, the established pattern, however, would show a leaning towards thedualist model. The Constitution exemplified by its incorporation clause (Article II, Section 2),as well as statutes such as those founding some provisions of the Civil Code and of theRevised Penal Code [39], would exhibit a remarkable textual commitment towardsinternalizing international law. The Supreme Court itself has recognized that theprinciples of international law are deemed part of the law of the land as a condition and asa consequence of our admission in the society of nations [40].

The principle being that treaties create rights and duties only for those who areparties thereto pacta tertiis nec nocre nec prodesse possunt it is considered necessary totransform a treaty into a national law in order to make it binding upon affected state organs,line the courts, and private individuals who could, otherwise, be seen as non-parties [41].

The US-RP Extradition Treaty in particular, undoubtedly affects not only state organs butalso private individuals as well. It is said that, in treaties of this nature, it should behoovethe state to undertake or adopt the necessary steps to make the treaty binding upon said




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subjects either by incorporation or transformation [42]. Article II, Section 2 of the 1987Constitution provides for an adherence to general principles of international law as part ofthe law of the land. One of these principles is the basic rule ofpacta sunt servanda or the

performance in good faith of a states treaty obligations. Pacta sunt servanda is thefoundation of all conventional international law, for without it, the superstructure of treaties,both bilateral and multilateral, which comprise a great part of international law, could wellbe inconsequential. Existing legislation contrary to the provisions of the treaty becomesinvalid, but legislation is necessary to put the treaty into effect [43]. The constitutionalrequirement that the treaty be concurred in by no less than two-thirds of all members of theSenate (Section 21, Article VII) is, for legal intent and purposes, an equivalent to therequired transformation of treaty into municipal law.

In preserving harmony between treaty law and municipal law, it is submitted 1)That treaty law has the effect of amending, or even repealing an inconsistent municipalstatute, a later enactment being controlling, 2) but that an inconsistent municipal statutesubsequently passed cannot modify treaty law, without the concurrence of the other state

party thereto, following the generally accepted principle ofpacta sunt servanda. As soobserved by Fenwick: Legislation passed, or administrative action taken subsequent to theadoption of the treaty and in violation of its provisions is invalid, but this should be declaredso by the appropriate agency of national government. In like manner, in doubtful caseswhere the national legislation or administrative ruling is open to different interpretations,the courts of the state will give the benefit of the doubt to the provisions of the treaty.

A treaty, nevertheless, cannot override the Constitution; in case of conflict, theConstitution must prevail.

When a controversy calls for a determination of the validity of a treaty in the light ofthe Constitution, there is no question but that the Constitution is given primaryconsideration [44]. The deference to the interpretation of the national law by competent

organs of a state, was exhibited by the Permanent Court of International Justice in the caseof Serbian Loans [45] where it held that the construction given by the Highest Court ofFrance on French law should be followed. When a state, through its government, concludesa treaty with another state, the government of the latter has no reason and is not entitled toquestion the constitutionality of the act of the former [46]. But this rule does not preventthe government of a state, after having concluded a treaty with another state, fromdeclaring the treaty null and void because it is made in violation of its own constitution [47].

In the United States, treaties are regarded as part of the law of the land but thisgeneral rule is qualified by the stipulation that a treaty must not be violative of theConstitution [48]. The United States government, in carrying out its treaty obligations, mustconform its conduct to the requirements of the Constitution which override the provisions ofa treaty that may be contrary to any specific constitutional right [49]. In Reyes v. Bagatsing[50], this Court has had the occasion to resolve the see-sawing interests of preservingfundamental freedoms such as free speech and assembly, as espoused by the members ofthe Anti-Bases Coalition seeking permit to hold a rally in front of the American Embassy andthe corresponding international obligation of the state to protect the integrity and safety ofdiplomatic missions and premises under the Vienna Convention. While holding that theprohibition against holding rallies within a 500 meter radius from any foreign mission isvalid, theponencia sees a possible scenario that in case a treaty or a general principle ofinternational law is found to be in irreconcilable conflict with Constitutional mandates, theCourt would uphold the latter every time, even to the possible detriment of its obligationsunder international law. This preeminence of the Constitution over any treaty is not hard toexplain. The Constitution is the act of the people from whom sovereignty emanates. Itreflects the popular will. A treaty, on the other hand, is merely negotiated by the treaty-making authority. Surely a few good men, themselves mere delegates of the sovereignpeople, cannot be permitted to thwart the intent of the Constitution. An agent could nevergo beyond the mandate of the agency under whose authority he acts.

The 1987 Constitution has its own standards for the grant of bail.




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No country is under any legal obligation to adopt, or blindly be in conformity with,procedures from other jurisdictions. The proposed solution of developing a specialcircumstances standard in determining whether bail should be granted or not, following

what could be considered to be merepro hac vice pronouncements of some foreign courts,might not be apropos. Indeed, setting up the so-called special circumstances standardwould be to ignore our own constitutional mandate on bail.

Section 13, Article III of the 1987 Constitution clearly sets the parameters for thejudicial exercise of the grant of bail x x x. Starting with the declaration that the right to bailis available to all persons, the Constitution proceeds to define its exceptions andqualifications --- 1) when a criminal offense is a capital one and the evidence of guilt isstrong, and 2) when granted the bail shall not be excessive. The circumstance of high riskof flight upon which the main decision anchors its refusal to grant bail is conspicuouslyabsent from the recital. The English Amendment of the US Federal Constitution, unlike thePhilippine Constitution, does not categorically provide for bail as a matter of right. Thus,wrestling with the compatibility of the grant of bail in extradition proceedings with basic

constitutional guarantees, which US judges have been faced with, should not be ourdilemma.

Extradition proceedings are part of the criminal process.

Verily, an extradition proceeding before the extradition court forms a part of thecriminal process. It is predicated on a criminal indictment of an extraditee. Like anycriminal proceeding, it ultimately ends in either conviction or acquittal for the potentialextraditee. Except for the reality that it involves two sovereign states, at least, extraditionproceedings before the extradition court can be likened to the preliminary investigationconduced before an investigating fiscal. Like the investigating fiscal, the judge acting in anextradition proceeding does not rule on the issue of guilt or innocence of the potentialextraditee, his main concern being the determination of whether a prima facie cases exists

against the potential extraditee [51]. Stated otherwise, both proceedings are an inquiry intowhether a person should stand trial [52]. The right to a preliminary investigation is acomponent part of due process in the criminal justice system. The initial findings of theinvestigating fiscal, which may result in a dismissal of the case, could spare the respondentfrom hasty malicious prosecution, as well as the resultant prolonged anxiety, aggravationand humiliation, that a protracted trial brings. In the same vein, the extradition process canresult in an extended restraint of liberty following arrest that can even be more severe thanthe accompanying detention within a single state [53]. Extradition involves, at minimum,administrative proceedings in both the asylum state and the demanding state and a forcedtransportation in between [54]. Thus, the rules governing the extradition process should notbe viewed as existing in a vacuum, totally divergent and isolated from the entire criminalprocess of which it, in fact, forms part. Indubitably, bail is available in this country even inthe preliminary investigation stage. The eligibility for bail exists once the person is placedunder legal custody regardless of whether a complaint or information has been filed or yetto be filed in court against him [55].

In sum, I yield to the following submissions:

a) The obligation to extradite does not find basis in customary international law, noris it a generally accepted principle of international law, the commitment to extradite beingdependent, by and large, on an extradition treaty between two sovereign states.

b) There is an absence of a universal or uniform extradition practice applicable toall states. This lack of a standard extradition procedure should mean that the Philippinesis not obligated to follow extradition practices from other jurisdictions, particularly when itsown Constitution itself has provided for such standards.

c) A treaty, entered into by the delegated authority, although occupying an elevatedstatus in the hierarchy of laws predicated on the principle ofpacta sunt servanda, cannotoverride the Constitution, the latter being the ultimate expression of the will of the People,from whom all sovereignty emanates. In case of conflict, the Constitution must prevail.




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WHEREFORE, I vote to grant the motion for reconsideration.

Republic of the Philippines v. Manila Electric CompanyG.R. No. 141314, November 15, 20023rd Div. [Puno]

In third world countries like the Philippines, equal justice will have a synthetic ringunless the economic rights of the people, especially the poor, are protected with the sameresoluteness as their right to liberty. The cases at bar are of utmost significance for theyconcern 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 utilityand a monopoly, to charge our people for their electric consumption. The question is:should public interest prevail over private profits?

X x x

We grant the petition.

The regula

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