SECOND DIVISION

[Adm. Matter No. RTJ-96-1335. March 5, 1997.]

INOCENCIO BASCO, complainant, vs. JUDGE LEO H.
RAPATALO, Regional Trial Court, Branch 32, Agoo, La Union,
respondent.
Rogelio A. Ajes for complainant.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; DEFINED. "Bail" is the
security required by the court and given by the accused to ensure that the accused appears
before the proper court at the scheduled time and place to answer the charges brought
against him or her.
2. ID.; ID.; ID.; FUNCTION THEREOF. In theory, the only function of bail is to
ensure the appearance of the defendant at the time set for trial. The sole purpose of
confining the accused in jail before conviction, it has been observed, is to assure his
presence at the trial. In other words, if the denial of bail is authorized in capital offenses,
it is only in theory that the proof being strong, the defendant would flee, if he has the
opportunity, rather than face the verdict of the court. Hence the exception to the
fundamental right to be bailed should be applied in direct ratio to the extent of probability
of evasion of the prosecution. In practice, bail has also been used to prevent the release of
an accused who might otherwise be dangerous to society or whom the judges might not
want to release." It is in view of the abovementioned practical function of bail that it is
not a matter of right in cases where the person is charged with a capital offense
punishable by death, reclusion perpetua or life imprisonment. Rule 114, Section 7 of the
Rules of Court, as amended, states, "No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life imprisonment when the evidence of guilt
is strong, shall be admitted to bail regardless of the stage of the criminal action."
3. ID.; ID.; ID.; WHEN THE GRANT IS DISCRETIONARY; REQUIREMENT FOR
THE PROPER EXERCISE THEREOF. When the grant of bail is discretionary, the
prosecution has the burden of showing that the evidence of guilt against the accused is
strong. However, the determination of whether or not the evidence of guilt is strong,
being a matter of judicial discretion, remains with the judge. "This discretion by the very
nature of things, may rightly be exercised only after the evidence is submitted to the court
at the hearing. Since the discretion is directed to the weight of the evidence and since

evidence cannot properly be weighed if not duly exhibited or produced before the court,
it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt
be submitted to the court, the petitioner having the right of cross-examination and to
introduce his own evidence in rebuttal." To be sure, the discretion of the trial court, "is
not absolute nor beyond control. It must be sound, and exercised within reasonable
bounds. Judicial discretion, by its very nature involves the exercise of the judge's
individual opinion and the law has wisely provided that its exercise be guided by wellknown rules which, while allowing the judge's rational latitude for the operation of his
own individual views, prevent them from getting out of control. An uncontrolled or
uncontrollable discretion on the part of a judge is a misnomer. It is a fallacy. Lord
Mansfield, speaking of the discretion to be exercised in granting or denying bail said:
"But discretion when applied to a court of justice, means sound discretion guided by law.
It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful;
but legal and regular."
4. ID.; ID.; ID.; ID.; HEARING REQUIRED; RATIONALE. In the application for
bail of a person charged with a capital offense punishable by death, reclusion perpetua or
life imprisonment, a hearing, whether summary or otherwise in the discretion of the
court, must actually be conducted to determine whether or not the evidence of guilt
against the accused is strong. Since the determination of whether or not the evidence of
guilt against the accused is strong is a matter of judicial discretion, the judge is mandated
to conduct a hearing even in cases where the prosecution chooses to just file a comment
or leave the application for bail to the discretion of the court. Corollarily, another reason
why hearing of a petition for bail is required, as can be gleaned from the abovecited case,
is for the court to take into consideration the guidelines set forth in Section 6, Rule 114 of
the Rules of Court in fixing the amount of bail. This Court, in a number of cases held that
even if the prosecution fails to adduce evidence in opposition to an application for bail of
an accused, the court may still require that it answer questions in order to ascertain not
only the strength of the state's evidence but also the adequacy of the amount of bail. After
hearing, the court's order granting or refusing bail must contain a summary of the
evidence for the prosecution. On the basis thereof, the judge should then formulate his
own conclusion, as to whether the evidence so presented is strong enough as to indicate
the guilt of the accused. Otherwise, the order granting or denying the application for bail
may be invalidated because the summary of evidence for the prosecution which contains
the judge's evaluation of the evidence may be considered as an aspect of procedural due
process for both the prosecution and the defense.
5. ID.; ID.; ID.; ID.; ID.; SUMMARY HEARING, CONSTRUED. "A summary
hearing means such brief and speedy method of receiving and considering the evidence
of guilt as is practicable and consistent with the purpose of hearing which is merely to
determine the weight of evidence for the purposes of bail. On such hearing, the court
does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to
be allowed to the evidence for or against the accused, nor will it speculate on the outcome

of the trial or on what further evidence may be therein offered and admitted. The course
of inquiry may be left to the discretion of the court which may confine itself to receiving
such evidence as has reference to substantial matters, avoiding unnecessary thoroughness
in the examination and cross-examination." If a party is denied the opportunity to be
heard, there would be a violation of procedural due process.
6. ID.; ID.; ID.; ENUMERATION OF PROCEDURES TO BE FOLLOWED BY THE
TRIAL JUDGE IN CASE OF BAIL APPLICATION. In the light of the applicable
rules on bail and the jurisprudential principles just enunciated, this Court reiterates the
duties of the trial judge in case an application for bail is filed: (1) Notify the prosecutor of
the hearing of the application for bail or require him to submit his recommendation
(Section 18, Rule 114 of the Rules of Court, as amended); (2) Conduct a hearing of the
application for bail regardless of whether or not the prosecution refuses to present
evidence to show that the guilt of the accused is strong for the purpose of enabling the
court to exercise its sound discretion (Sections 7 and 8, supra); (3) Decide whether the
evidence of guilt of the accused is strong based on the summary of evidence of the
prosecution (Baylon v. Sison, 243 SCRA 284 [1995]); (4) If the guilt of the accused is
not strong, discharge the accused upon the approval of the bailbond. (Section 19, supra).
Otherwise, petition should be denied. The above-enumerated procedure should now leave
no room for doubt as to the duties of the trial judge in cases of bail applications. So basic
and fundamental is it to conduct a hearing in connection with the grant of bail in the
proper cases that it would amount to judicial apostasy for any member of the judiciary to
disclaim knowledge or awareness thereof.
7. ADMINISTRATIVE LAW; PUBLIC OFFICERS; JUDGES; REQUIRED TO KNOW
MORE THAN JUST A CURSORY ACQUAINTANCE WITH STATUTE AND
PROCEDURAL RULES. A judge owes it to the public and the administration of
justice to know the law he is supposed to apply to a given controversy. He is called upon
to exhibit more than just a cursory acquaintance with the statutes and procedural rules.
There will be faith in the administration of justice only if there be a belief on the part of
litigants that the occupants of the bench cannot justly be accused of a deficiency in their
grasp of legal principles.

RESOLUTION

ROMERO, J :
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In a sworn letter-complaint dated August 14, 1995, complainant Inocencio Basco charged
respondent Judge Leo M. Rapatalo of RTC, Branch 32, Agoo, La Union with gross
ignorance or willful disregard of established rule of law for granting bail to an accused in

a murder case (Criminal Case No. 2927) without receiving evidence and conducting a
hearing.
Complainant, who is the father of the victim, alleged that an information for murder was
filed against a certain Roger Morente, one of three accused. The accused Morente filed a
petition for bail. The hearing for said petition was set for May 31, 1995 by petitioner but
was not heard since the respondent Judge was then on leave. It was reset to June 8, 1995
but on said date, respondent Judge reset it to June 22, 1995. The hearing for June 22,
1995, however, did not materialize. Instead, the accused was arraigned and trial was set.
Again, the petition for bail was not heard on said date as the prosecution's witnesses in
connection with said petition were not notified. Another attempt was made to reset the
hearing to July 17, 1995.
In the meantime, complainant allegedly saw the accused in Rosario, La Union on July 3,
1995. He later learned that the accused was out on bail despite the fact that the petition
had not been heard at all. Upon investigation, complainant discovered that bail had been
granted and a release order dated June 29, 1995 1 was issued on the basis of a marginal
note 2 dated June 22, 1995, at the bottom of the bail petition by Assistant Prosecutor
Manuel Oliva which stated: "No objection: P80,000.00," signed and approved by the
assistant prosecutor and eventually by respondent Judge. Note that there was already a
release order dated June 29, 1995 on the basis of the marginal note of the Assistant
Prosecutor dated June 22, 1995 (when the hearing of the petition for bail was aborted and
instead arraignment took place) when another hearing was scheduled for July 17, 1995.

In his comment dated October 16, 1995, respondent Judge alleged that he granted the
petition based on the prosecutor's option not to oppose the petition as well as the latter's
recommendation setting the bailbond in the amount of P80,000.00. He averred that when
the prosecution chose not to oppose the petition for bail, he had the discretion on whether
to approve it or not. He further declared that when he approved the petition, he had a
right to presume that the prosecutor knew what he was doing since he was more familiar
with the case, having conducted the preliminary investigation. Furthermore, the private
prosecutor was not around at the time the public prosecutor recommended bail.
Respondent Judge stated that in any case, the bailbond posted by accused was cancelled
and a warrant for his arrest was issued on account of complainant's motion for
reconsideration. The Assistant Provincial Prosecutor apparently conformed to and
approved the motion for reconsideration. 3 To date, accused is confined at the La Union
Provincial Jail.
A better understanding of bail as an aspect of criminal procedure entails appreciating its
nature and purposes. "Bail" is the security required by the court and given by the accused

to ensure that the accused appears before the proper court at the scheduled time and place
to answer the charges brought against him or her. In theory, the only function of bail is to
ensure the appearance of the defendant at the time set for trial. The sole purpose of
confining the accused in jail before conviction, it has been observed, is to assure his
presence at the trial. 4 In other words, if the denial of bail is authorized in capital
offenses, it is only in theory that the proof being strong, the defendant would flee, if he
has the opportunity, rather than face the verdict of the court. Hence the exception to the
fundamental right to be bailed should be applied in direct ratio to the extent of probability
of evasion of the prosecution. 5 In practice, bail has also been used to prevent the release
of an accused who might otherwise be dangerous to society or whom the judges might
not want to release." 6
It is in view of the abovementioned practical function of bail t hat it is not a matter of right
in cases where the person is charged with a capital offense punishable by death, reclusion
perpetua or life imprisonment. Article 114, section 7 of the Rules of Court, as amended,
states, "No person charged with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to
bail regardless of the stage of the criminal action."
When the grant of bail is discretionary, the prosecution has the burden of showing that
the evidence of guilt against the accused is strong. However, the determination of
whether or not the evidence of guilt is strong, being a matter of judicial discretion,
remains with the judge. "This discretion by the very nature of things, may rightly be
exercised only after the evidence is submitted to the court at the hearing. Since the
discretion is directed to the weight of the evidence and since evidence cannot properly be
weighed if not duly exhibited or produced before the court, 7 it is obvious that a proper
exercise of judicial discretion requires that the evidence of guilt be submitted to the court,
the petitioner having the right of cross examination and to introduce his own evidence in
rebuttal." 8
To be sure, the discretion of the trial court, "is not absolute nor beyond control. It must be
sound, and exercised within reasonable bounds. Judicial discretion, by its very nature
involves the exercise of the judge's individual opinion and the law has wisely provided
that its exercise be guided by well-known rules which, while allowing the judge rational
latitude for the operation of his own individual views, prevent them from getting out of
control. An uncontrolled or uncontrollable discretion on the part of a judge is a
misnomer. It is a fallacy. Lord Mansfield, speaking of the discretion to be exercised in
granting or denying bail said: "But discretion when applied to a court of justice, means
sound discretion guided by law. It must be governed by rule, not by humour; it must not
be arbitrary, vague and fanciful; but legal and regular." 9
Consequently, in the application for bail of a person charged with a capital offense
punishable by death, reclusion perpetua or life imprisonment, a hearing, whether

summary or otherwise in the discretion of the court, must actually be conducted to

determine whether or not the evidence of guilt against the accused is strong. "A summary
hearing means such brief and speedy method of receiving and considering the evidence
of guilt as is practicable and consistent with the purpose of hearing which is merely to
determine the weight of evidence for the purposes of bail. On such hearing, the court
does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to
be allowed to the evidence for or against the accused, nor will it speculate on the outcome
of the trial or on what further evidence may be therein offered and admitted. The course
of inquiry may be left to the discretion of the court which may confine itself to receiving
such evidence as has reference to substantial matters, avoiding unnecessary thoroughness
in the examination and cross examination. " 10 If a party is denied the opportunity to be
heard, there would be a violation of procedural due process.
That it is mandatory for the judge to require a hearing in a petition for bail is emphasized
in the following cases:
(1) People v. Sola decided in 1981. 11 In this case seven separate informations
for murder were filed against the accused Sola and 18 other persons. After
preliminary investigation, the municipal trial court issued warrants for their
arrest. However without giving the prosecution the opportunity to prove that the
evidence of guilt against the accused is strong, the court granted them the right
to post bail for their temporary release. Citing People v. San Diego, 12 we held:
"We are of the considered opinion that whether the motion for bail of a
defendant who is in custody for a capital offense be resolved in a summary
proceeding or in the course of a regular trial, the prosecution must be given an
opportunity to present, within a reasonable time, all the evidence that it may
desire to introduce before the court should resolve the motion for bail. If, as in
the criminal case involved in the instant special civil action, the prosecution
should be denied such an opportunity, there would be a violation of procedural
due process, and the order of the court granting bail should be considered void
on that ground."
(2) People v. Dacudao decided in 1989. 13 In this case, an information was
filed against the accused for murder, a non-bailable offense. The judge, without
conducting any hearing, granted bail on the ground that there was not enough
evidence to warrant a case for murder because only affidavits of the
prosecution witnesses who were allegedly not eyewitnesses to the crime were
filed. We held: "Whatever the court possessed at the time it issued the
questioned ruling was intended only for prima facie determining whether or not
there is sufficient ground to engender a well founded belief that the crime was
committed and pinpointing the persons who probably committed it. Whether or
not the evidence of guilt is strong for each individual accused still has to
established unless the prosecution submits the issue on whatever it has already
presented. To appreciate the strength or weakness of the evidence of guilt, the
prosecution must be consulted or held. It is equally entitled to due process."

(3) People v. Calo decided in 1990. 14 In this case, the prosecution was
scheduled to present nine witnesses at the hearings held to determine whether
the evidence against the private respondents was strong. After hearing the fifth
witness, the respondent judge insisted on terminating the proceedings. We held:
"The prosecution in the instant case was not given adequate opportunity to
prove that there is strong evidence of guilt and to present within a reasonable
time all the evidence it desired to present."
(4) Libarios v. Dabalo decided in 1991 15 which involved an administrative
complaint against the respondent judge for ignorance of the law and grave abuse
of discretion. In this case, the respondent judge, without conducting any prior
hearing, directed the issuance of a warrant of arrest against the accused
charged with murder, fixing at the same time the bail at P50,000.00 each on the
ground that the evidence against them was merely circumstantial. We held:
"Where a person is accused of a capital offense, the trial court must conduct a
hearing in a summary proceeding to allow the prosecution to present, within a
reasonable time, all evidence it may desire to produce to prove that the evidence
of guilt against the accused is strong before resolving the issue of bail for the
temporary release of the accused. Failure to conduct a hearing before fixing bail
in the instant case amounted to a violation of due process." The respondent
judge was ordered to pay a fine of P20,000.00 and warned to exercise more care
in the performance of his duties.
(5) People v. Nano decided in 1992. 16 In this case, the judge issued an order
admitting the accused in a kidnapping and murder case to bail without any
hearing. We held: "The prosecution must first be given an opportunity to
present evidence because by the very nature of deciding applications for bail, it
is on the basis of such evidence that judicial discretion is weighed against in
determining whether the guilt of the accused is strong."
cdas ia

(6) Pico v. Combong, Jr. decided in 1992. 17 In this administrative case, the
respondent judge granted bail to an accused charged with an offense
punishable by reclusion perpetua, without notice and hearing and even before
the accused had been arrested or detained. We held: "It is well settled that an
application for bail from a person charged with a capital offense (now an
offense punishable by reclusion perpetua) must be set for hearing at which both
the defense and the prosecution must be given reasonable opportunity to prove
(in case of the prosecution) that the evidence of guilt of the applicant is strong,
or (in the case of the defense) that such evidence of guilt was not strong." The
respondent judge was ordered to pay a fine of P20,000.00 and warned to
exercise greater care and diligence in the performance of his duties.

(7) De Guia v. Maglalang decided in 1993, 18 the respondent judge issued a

warrant of arrest and also fixed the bail of an accused charged with the non

bailable offense of statutory rape without allowing the prosecution an

opportunity to show that the evidence of guilt against the accused is strong.
Respondent judge alleged that the only evidence on record the sworn
statements of the complaining witness and her guardian were not sufficient to
justify the denial of bail. We held: "It is an established principle that in cases
where a person is accused of a capital offense, the trial court must conduct a
hearing in a summary proceeding, to allow the prosecution an opportunity to
present, within a reasonable time, all evidence it may desire to produce to prove
that the evidence of guilt against the accused is strong, before resolving the
issue of bail for the temporary release of the accused. Failure to conduct a
hearing before fixing bail amounts to a violation of due process." It was noted
that the warrant of arrest was returned unserved and that after the case was reraffled to the complainant judge's sala, the warrant was set aside and cancelled.
There was no evidence on record showing whether the approved bail was
revoked by the complainant judge, whether the accused was apprehended or
whether the accused filed an application for bail. Hence, the respondent judge
was ordered to pay a fine of P5,000.00 instead of the usual P20,000.00 that the
court imposes on judges who grant the application of bail without notice and
hearing.
(8) Borinaga v. Tamin decided in 1993. 19 In this case, a complaint for murder
was filed against five persons. While the preliminary investigation was pending
in the Municipal Circuit Trial Court, a petition for bail was filed by one of the
accused before the respondent judge in the Regional Trial Court. The
respondent judge ordered the prosecutor to appear at the hearing to present
evidence that the guilt of the accused is strong. At the scheduled hearing, the
public prosecutor failed to appear prompting the respondent to grant the
application for bail. We held: "Whether the motion for bail of an accused who
is in custody for a capital offense be resolved in a summary proceeding or in the
course of a regular trial, the prosecution must be given an opportunity to present
within a reasonable time all evidence it may desire to introduce before the court
may resolve the motion for bail." The respondent judge was fined P20,000.00
and was warned that the commission of a similar offense in the future will be
dealt with more severely.
(9) Aurillo v. Francisco decided in 1994. 20 In this administrative case, the
respondent judge issued two separate warrants of arrest against two persons
charged with murder and parricide, but fixed the amount of bail for each
accused without notifying the prosecution of any motion to fix bail nor of any
order granting the same. Citing People v. Dacudao, 21 we held: "A hearing is
absolutely indispensable before a judge can properly determine whether the
prosecution's evidence is weak or strong. Hence, a denial of the prosecution's
request to adduce evidence, deprives it of procedural due process, a right to
which it is equally entitled as the defense. A hearing is required to afford the
judge a basis for determining the existence of those factors set forth under Rule
114, Sec 6." The respondent judge was ordered to pay a fine of P20,000 with a

warning that the commission of the same or similar acts in the future will be
dealt with more severely.
(10) Estoya v. Abraham-Singson decided in 1994 22 In this case, an
administrative complaint was filed against the respondent judge, alleging,
among others, that she granted an application for bail filed by the accused
charged with murder. The grant was made over the objection of the prosecution
which insisted that the evidence of guilt was strong and without allowing the
prosecution to present evidence in this regard. We held: "In immediately
granting bail and fixing it at only P20,000.00 for each of the accused without
allowing the prosecution to present its evidence, the respondent denied the
prosecution due process. This Court had said so in many cases and had imposed
sanctions on judges who granted applications for bail in capital offenses and in
offenses punishable by reclusion perpetua without giving the prosecution the
opportunity to prove that the evidence of guilt is strong." The respondent judge
was dismissed from service because the erroneous granting of bail was just one
of the offenses found to have been committed by her in the aforesaid complaint.
(11) Aguirre v. Belmonte decided in 1994. 23 In this administrative case the
respondent judge issued warrants of arrest and, at the same time and on his
own motion. authorized the provisional release on bail of the accused in two
criminal cases for murder. The accused were still at large at the time the order
granting bail was issued. We held: "A hearing is mandatory before bail can be
granted to an accused who is charged with a capital offense." The judge was
ordered to pay a fine of P25,000.00 with a warning that a repetition of the same
or similar acts in the future will be dealt with more severely. He was meted a
fine in a higher amount than the usual P20,000.00 because it involved two
criminal cases wherein the respondent judge, "was not only the grantor of bail
but likewise the applicant therefor."
(12) Lardizabal v. Reyes decided in 1994. 24 In this administrative case, the
respondent judge issued an order directing the arrest of the accused charged
with rape and, motu proprio, fixed the bail of the accused in the amount of
P80,000.00 without application on the part of the accused to be admitted to
bail. When the accused filed a motion to reduce bailbond, the respondent judge
again, without any prior notice and hearing, reduced the bail to P40,000.00.
We held: "The rule is explicit that when an accused is charged with a serious
offense punishable by reclusion perpetua, such as rape, bail may be granted
only after a motion for that purpose has been filed by the accused and a hearing
thereon conducted by a judge to determine whether or not the prosecution's
evidence of guilt is strong." The respondent judge was ordered to pay a fine of
P20,000.00 with a warning that a repetition of similar or the same offense will
be dealt with more severely.
(13) Guillermo v. Reyes decided in 1995 25 involving an administrative
complaint against the respondent judge for granting bail to the two accused

charged with serious illegal detention. When the two accused first filed a joint
application for bail, the petition for bail was duly heard and the evidence
offered by the accused and the prosecution in opposition thereto were properly
taken into account. However, the respondent judge denied the application for
bail on the ground that it was premature since the accused were not yet in
custody of the law. In a subsequent order, the respondent judge, without
conducting any hearing on the aforestated application and thereby denying the
prosecution an opportunity to oppose the same, granted said petition upon the
voluntary appearance in court of the two accused. Respondent judge insisted
that there was a hearing but the proceeding he adverted to was that which was
conducted when the motion for bail was first considered and then denied for
being premature. We held: "The error of the respondent judge lies in the fact
that in his subsequent consideration of the application for bail, he acted
affirmatively thereon without conducting another hearing and what is worse, his
order concededly lacked the requisite summary or resume of the evidence
presented by the parties and necessary to support the grant of bail." The
respondent judge was reprimanded because despite the irregularity in the
procedure adopted in the proceeding, the prosecution was undeniably afforded
the benefit of notice and hearing. No erroneous appreciation of the evidence was
alleged nor did the prosecution indicate its desire to introduce additional
evidence in an appropriate challenge to the aforestated grant of bail by the
respondent.
(14) Santos v. Ofilada decided in 1995. 26 In this case, an administrative
complaint was filed against the respondent judge, who, without notice and
hearing to the prosecution, granted bail to an accused charged with murder and
illegal possession of firearm. We held: "Where admission to bail is a matter of
discretion, a hearing is mandatory before an accused can be granted bail. At the
hearing, both the prosecution and the defense must be given reasonable
opportunity to prove, in case of the prosecution, that the evidence of guilt of the
applicant is strong, and in the case of the defense, that evidence of such guilt is
not strong." The respondent judge was ordered to pay a fine of P20,000.00 with
a warning that a repetition of similar acts will warrant a more severe sanction.
(15) Sule v. Biteng decided in 1995. 27 In this administrative case, the
respondent judge, without affording the prosecution the opportunity to be
heard, granted with indecent haste the petition for bail filed by the accused
charged with murder because the accused ". . . voluntarily surrendered to the
authorities as soon as he was informed that he was one of the suspect (sic) . . ."
We held: "With his open admission that he granted bail to the accused without
giving the prosecution any opportunity to be heard, the respondent deliberately
disregarded decisions of this court holding that such act amounts to a denial of
due process, and made himself administratively liable for gross ignorance of the
law for which appropriate sanctions may be imposed." The respondent judge
was ordered to pay a fine of P20,000.00 and warned that commission of the
same or similar acts in the future will be dealt with more severely.

(16) Reymualdo Buzon, Jr. v. Judge Tirso Velasco decided in 1996. 28 In this
administrative case, the respondent judge, without hearing nor comment from
the prosecution, granted bail to an accused charged with murder. Notably, no
bail was recommended in the warrant of arrest. We held: "When bail is a matter
of discretion, the judge is required to conduct a hearing and to give notice of
such hearing to the fiscal or require him to submit his recommendation. . . .
Truly, a judge would not be in a position to determine whether the prosecution's
evidence is weak or strong unless a hearing is first conducted." A fine of
P20,000.00 was imposed on the respondent judge with the stern warning that a
repetition of the same or similar acts in the future will be dealt with more
severely.

The aforecited cases are all to the effect that when bail is discretionary, a hearing,
whether summary or otherwise in the discretion of the court, should first be conducted to
determine the existence of strong evidence, or lack of it, against the accused to enable the
judge to make an intelligent assessment of the evidence presented by the parties.
Since the determination of whether or not the evidence of guilt against the accused is
strong is a matter of judicial discretion, the judge is mandated to conduct a hearing even
in cases where the prosecution chooses to just file a comment or leave the application for
bail to the discretion of the court. Hence:
(1) In the case of Gimeno v. Arcueno, Sr., 29 an administrative complaint was filed
against the respondent judge for granting bail to one of the accused in a robbery with
homicide case without affording the prosecution a chance to be heard. The respondent
judge explained that he issued an order for the motion to fix bail but the public prosecutor
filed a comment instead which respondent judge thought was adequate compliance with
law. Respondent added that the evidence of guilt of the accused, as disclosed by the
records, was not so strong as to deny the application for bail. In fact, the accused who
filed for bail, together with three others, were later dropped by the Office of the
Provincial Prosecutor from the information for failure of the witnesses to positively
identify them. We held: "The grant of bail is a matter of right except in cases involving
capital offenses when the matter is left to the sound discretion of the court. That
discretion lies, not in the determination whether or not a hearing should be held but in the
appreciation and evaluation of the prosecution's evidence of guilt against the accused. . . .
A hearing is plainly indispensable before a judge can aptly be said to be in a position to
determine whether the evidence for the prosecution is weak or strong." Although the
respondent judge's explanation was not enough to completely exculpate him, the
circumstances, coupled with his sincere belief in the propriety of his order warranted a
mitigation of the usual sanction the Court imposes in cases of this nature. The respondent
judge was ordered to pay a fine of P5,000.00 and warned that a repetition of the same or
similar act in the future will be dealt with more severely.

(2) In the case of Concerned Citizens v. Elma, 30 an administrative complaint was filed
against the respondent judge for granting bail to a person charged with illegal recruitment
in large scale and estafa in five separate information. The accused filed a motion to fix
bail and the respondent judge instead of setting the application for hearing, directed the
prosecution to file its comment or opposition. The prosecution submitted its comment
leaving the application for bail to the discretion of the court. The respondent judge, in
granting the bail of the accused rationalized that in ordering the prosecution to comment
on the accused's motion to fix bail, he has substantially complied with the requirement of
a formal hearing. He further claimed that he required the prosecution to adduce evidence
but the latter refused and left the determination of the motion to his discretion. This Court
held, "It is true that the weight of the evidence adduced is addressed to the sound
discretion of the court. However, such discretion may only be exercised after the hearing
called to ascertain the degree of guilt of the accused for the purpose of determining
whether or not he should be granted liberty. . . In the case at bar, however, no formal
hearing was conducted by the respondent judge. He could not have assessed the weight of
evidence against the accused Gatus before granting the latter's application for bail." The
respondent judge was dismissed from service because he was previously fined for a
similar offense and was sternly warned that a repetition of the same or similar offense
would be dealt with more severely.
(3) In the case of Baylon v. Sison, 31 an administrative complaint was filed against the
respondent judge for granting bail to several accused in a double murder case. The
respondent judge claimed that he granted the application for bail because the assistant
prosecutor who was present at the hearing did not interpose an objection thereto and that
the prosecution never requested that it be allowed to show that the evidence of guilt is
strong but instead, submitted the incident for resolution. The respondent judge further
claimed that the motion for reconsideration of the order granting bail was denied only
after due consideration of the pertinent affidavits. We held: "The discretion of the court,
in cases involving capital offenses may be exercised only after there has been a hearing
called to ascertain the weight of the evidence against the accused. Peremptorily, the
discretion lies, not in determining whether or not there will be a hearing, but in
appreciating and evaluating the weight of the evidence of guilt against the accused." The
respondent judge was ordered to pay a fine of P20,000.00 with a stern warning that the
commission of the same or similar offense in the future would be dealt with more
severely.
A hearing is likewise required if the prosecution refuses to adduce evidence in opposition
to the application to grant and fix bail. "The importance of a hearing has been
emphasized in not a few cases wherein the court ruled that even if the prosecution refuses
to adduce evidence or fails to interpose an objection to the motion for bail, it is still
mandatory for the court to conduct a hearing or ask searching questions from which it
may infer the strength of the evidence of guilt, or the lack of it, against the accused." 32

In the recent case of Tucay v. Domagas, 33 an administrative complaint was filed against
the respondent judge for granting bail to an accused charged with murder. The
application for bail contained the annotation "No objection" of the provincial prosecutor
and the respondent judge, without holding a hearing to determine whether the evidence of
the prosecution was strong, granted bail and ordered the release of the accused from
detention with instructions to the bondsman to register the bond with the Register of
Deeds within ten days. It was later found out that the assessed value of the property given
was short of the amount fixed for the release of the accused. We held: "Although the
provincial prosecutor had interposed no objection to the grant of bail to the accused,
respondent judge should have nevertheless have set the petition for bail for hearing and
diligently ascertained from the prosecution whether the latter was not really contesting
the bail application . . . Only after satisfying himself that the prosecution did not wish to
oppose the petition for bail for justifiable cause (e.g., for tactical reasons) and taking into
account the factors enumerated in Rule 114, Sec. 6 for fixing bail should respondent
judge have ordered the petition for bail and ordered the release of the accused."
Respondent judge herein was ordered to pay a fine of P20,000.00 and was given a stern
warning that the commission of a similar offense in the future would be dealt with more
severely.
Corollarily, another reason why hearing of a petition for bail is required, as can be
gleaned from the abovecited case, is for the court to take into consideration the guidelines
set forth in Section 6, Rule 114 of the Rules of Court in fixing the amount of bail. 34 This
Court, in a number of cases 35 held that even if the prosecution fails to adduce evidence
in opposition to an application for bail of an accused, the court may still require that it
answer questions in order to ascertain not only the strength of the state's evidence but also
the adequacy of the amount of bail.
After hearing, the court's order granting or refusing bail must contain a summary of the
evidence for the prosecution. 36 On the basis thereof, the judge should then formulate his
own conclusion as to whether the evidence so presented is strong enough as to indicate
the guilt of the accused. Otherwise, the order granting or denying the application for bail
may be invalidated because the summary of evidence for the prosecution which contains
the judge's evaluation of the evidence may be considered as an aspect of procedural due
process for both the prosecution and the defense.
This court in the case of Carpio v. Maglalang 37 invalidated the order of respondent
judge granting bail to the accused because "Without summarizing the factual basis of its
order granting bail, the court merely stated the number of prosecution witnesses but not
their respective testimonies, and concluded that the evidence presented by the prosecution
was not "sufficiently strong" to deny bail to Escano."

With the mounting precedents, this Court sees no reason why it has to repeatedly remind
trial court judges to perform their mandatory duty of conducting the required hearing in
bail applications where the accused stands charged with a capital offense.
An evaluation of the records in the case at bar reveals that respondent Judge granted bail
to the accused without first conducting a hearing to prove that the guilt of the accused is
strong despite his knowledge that the offense charged is a capital offense in disregard of
the procedure laid down in Section 8, Rule 114 of the Rules of Court as amended by
Administrative Circular No. 12-94.
cda

Respondent judge admittedly granted the petition for bail based on the prosecution's
declaration not to oppose the petition. Respondent's assertion, however, that he has a
right to presume that the prosecutor knows what he is doing on account of the latter's
familiarity with the case due to his having conducted the preliminary investigation is
faulty. Said reasoning is tantamount to ceding to the prosecutor the duty of exercising
judicial discretion to determine whether the guilt of the accused is strong. Judicial
discretion is the domain of the judge before whom the petition for provisional liberty will
be decided. The mandated duty to exercise discretion has never been reposed upon the
prosecutor.

In the case of Montalbo v. Santamaria, 38 this Court held that the respondent judge is
duty bound to exercise judicial discretion conferred upon him by law to determine
whether in the case at bar, the proof is evident or the presumption of guilt is strong
against the defendant and to grant or deny the petition for provisional liberty. It also held
that a writ of mandamus will lie in order to compel the respondent judge to perform a
duty imposed upon him by law.
The absence of objection from the prosecution is never a basis for granting bail to the
accused. It is the court's determination after a hearing that the guilt of the accused is not
strong that forms the basis for granting bail. Respondent Judge should not have relied
solely on the recommendation made by the prosecutor but should have ascertained
personally whether the evidence of guilt is strong. After all, the judge is not bound by the
prosecutor's recommendation. Moreover, there will be a violation of due process if the
respondent Judge grants the application for bail without hearing since Section 8 of Rule
114 provides that whatever evidence presented for or against the accused's provisional
release will be determined at the hearing.
The practice by trial court judges of granting bail to the accused when the prosecutor
refuses or fails to present evidence to prove that the evidence of guilt of the accused is
strong can be traced to the case of Herras Teehankee v. Director of Prisons 39 where this
Court gave the following "instructions" to the People's Court, 40 thus:

"1) In capital cases like the present when the prosecutor does not oppose the
petition for release on bail, the court should, as a general rule, in the proper
exercise of its discretion, grant the release after the approval of the bail which it
should fix for the purpose;
2) But if the court has reasons to believe that the special prosecutor's attitude is
not justified, it may ask him questions to ascertain the strength of the state's
evidence or to judge the adequacy of the amount of bail;
3) When, however, the special prosecutor refuses to answer any particular
question on the ground that the answer may involve a disclosure imperiling the
success of the prosecution or jeopardizing the public interest, the court may not
compel him to do so, if and when he exhibits a statement to that effect of the
Solicitor General, who, as head of the Office of Special Prosecutors, is vested
with the direction and control of the prosecution, and may not, even at the trial,
be ordered by the court to present evidence which he does not want to introduce
provided, of course, that such refusal shall not prejudice the rights of the
defendant or detainee." 41

The rationale for the first instruction was stated by this Court, as follows:
"If, for any reason, any party should abstain from introducing evidence in the
case for any definite purpose, no law nor rule exists by which he may be so
compelled and the court before which the case is pending has to act without that
evidence and, in so doing, it clearly would not be failing in its duties. If the
Constitution or the law plots a certain course of action to be taken by the court
when certain evidence is found by it to exist, and the opposite course if that
evidence is wanting, and said evidence is not voluntarily adduced by the proper
party, the court's clear duty would be to adopt that course which has been
provided for in case of absence of such evidence. Applying the principle to the
case at bar, it was no more within the power nor discretion of the court to
coerce the prosecution into presenting its evidence than to force the prisoner
into adducing hers. And when both elected not to do so, as they had a perfect
right to elect, the only thing remaining for the court to do was to grant the
application for bail."

As for the second instruction, this Court stated that:

"The prosecutor might not oppose the application for bail and might refuse to
satisfy his burden of proof, but where the court has reasons to believe that the
prosecutor's attitude is not justified, as when he is evidently committing a gross
error or a dereliction of duty, the court must possess a reasonable degree of
control over him in the paramount interest of justice. Under such circumstance,
the court is authorized by our second instruction to inquire from the prosecutor
as to the nature of his evidence to determine whether or not it is strong, it being

possible for the prosecutor to have erred in considering it weak and, therefore,
recommending bail."

As for the third instruction, this Court declared:

"It must be observed that the court is made to rely upon the official statement of
the Solicitor General on the question of whether or not the revelation of
evidence may endanger the success of the prosecution and jeopardize the public
interest. This is so, for there is no way for the court to determine that question
without having the evidence disclosed in the presence of the applicant,
disclosure which is sought to be avoided to protect the interests of the
prosecution before the trial."

It is to be recalled that Herras Teehankee was decided fully half a century ago under a
completely different factual milieu. Haydee Herras Teehankee was indicted under a law
dealing with treason cases and collaboration with the enemy. The said "instructions"
given in the said case under the 1940 Rules of Court no longer apply due to the
amendments introduced in the 1985 Rules of Court.
In the 1940 Rules of Court of the Philippines, the applicable provisions on "Bail"
provides, as follows:
"Sec. 5. Capital offenses defined. A capital offense, as the term is used in this
rule, is an offense which, under the law existing at the time of its commission,
and at the time of the application to be admitted to bail, may be punished by
death.
Sec. 6. Capital offenses not bailable. No person in custody for the
commission of a capital offense shall be admitted to bail if the evidence of his
guilt is strong.
Sec. 7. Capital offense Burden of proof . On the hearing of an application
for admission to bail made by any person who is in custody for the commission
of a capital offense, the burden of showing that the evidence of guilt is strong is
on the prosecution."

The above-cited provisions have not been adopted in toto in the 1985 Rules of Court, as
amended by Administrative Circular No. 12-94, since some phrases and lines have been
intercalated, as shown by the underscored phrases and statements below:
"Sec. 6. Capital offense, defined. A capital offense, as the term is used in
these rules, is an offense which, under the law existing at the time of its
commission and at the time of the application to be admitted to bail, may be
punished with death.

Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life

imprisonment, not bailable. No person charged with a capital offense, of an
offense punishable by reclusion perpetua or life imprisonment, when evidence
of guilt is strong, shall be admitted to bail regardless of the stage of the criminal
prosecution.
Sec. 8. Burden of proof in bail application. At the hearing of an application
for admission to bail filed by any person who is in custody for the commission
of an offense punishable by death, reclusion perpetua or life imprisonment, the
prosecution has the burden of showing that evidence of guilt is strong. The
evidence presented during the bail hearings shall be considered automatically
reproduced at the trial, but upon motion of either party, the court may recall
any witness for additional examination unless the witness is dead, outside of the
Philippines or otherwise unable to testify."

It should be noted that there has been added in Section 8 a crucial sentence not found in
the counterpart provision, Section 7, Rule 110 of the 1940 Rules of Court. The aboveunderscored sentence in Section 8, Rule 114 of the 1985 Rules of Court, as amended, was
added to address a situation where in case the prosecution does not choose to present
evidence to oppose the application for bail, the judge may feel duty-bound to grant the
bail application. In such a case, the judge may well lose control of the proceedings. In a
sense, this undermines the authority of a judge since all that the prosecution has to do to
"force" the judge to grant the bail application is to refrain from presenting evidence
opposing the same. In effect, this situation makes Sections 6 and 7 of the 1940 Rules of
Court on "Bail" meaningless since whether or not the evidence of guilt of a person
charged with a capital offense is strong cannot be determined if the prosecution chooses
not to present evidence or oppose the bail application in a hearing precisely to be
conducted by the trial judge for that purpose, as called for in the two sections. In the
event that the prosecution fails or refuses to adduce evidence in the scheduled hearing,
then a hearing as in a regular trial should be scheduled. In this regard, a hearing in the
application for bail necessarily means presentation of evidence, and the filing of a
comment or a written opposition to the bail application by the prosecution will not
suffice.
The prosecution under the revised provision is duty bound to present evidence in the bail
hearing to prove whether the evidence of guilt of the accused is strong and not merely to
oppose the grant of bail to the accused. "This also prevents the practice in the past
wherein a petition for bail was used as a means to force the prosecution into a premature
revelation of its evidence and, if it refused to do so, the accused would claim the grant of
bail on the ground that the evidence of guilt was not strong." 42
It should be stressed at this point, however, that the nature of the hearing in an application
for bail must be equated with its purpose i.e., to determine the bailability of the accused.
If the prosecution were permitted to conduct a hearing for bail as if it were a full-dress

trial on the merits, the purpose of the proceeding, which is to secure provisional liberty of
the accused to enable him to prepare for his defense, could be defeated. At any rate, in
case of a summary hearing, the prosecution witnesses could always be recalled at the trial
on the merits. 43

In the light of the applicable rules on bail and the jurisprudential principles just
enunciated, this Court reiterates the duties of the trial judge in case an application for bail
is filed:
(1) Notify the prosecutor of the hearing of the application for bail or require him
to submit his recommendation (Section 18, Rule 114 of the Rules of Court as
amended);
(2) Conduct a hearing of the application for bail regardless of whether or not the
prosecution refuses to present evidence to show that the guilt of the accused is
strong for the purpose of enabling the court to exercise its sound discretion
(Sections 7 and 8, supra);
(3) Decide whether the evidence of guilt of the accused is strong based on the
summary of evidence of the prosecution (Baylon v. Sison, supra);
(4) If the guilt of the accused is not strong, discharge the accused upon the
approval of the bailbond. (Section 19, supra). Otherwise, petition should be
denied.

The above-enumerated procedure should now leave no room for doubt as to the duties of
the trial judge in cases of bail applications. So basic and fundamental is it to conduct a
hearing in connection with the grant of bail in the proper cases that it would amount to
judicial apostasy for any member of the judiciary to disclaim knowledge or awareness
thereof. 44 A judge owes it to the public and the administration of justice to know the law
he is supposed to apply to a given controversy. He is called upon to exhibit more than just
a cursory acquaintance with the statutes and procedural rules. There will be faith in the
administration of justice only if there be a belief on the part of litigants that the occupants
of the bench cannot justly be accused of a deficiency in their grasp of legal principles. 45
Respondent judge herein insists that he could exercise his discretion in granting bail to
the accused since the Assistant Prosecutor signified in writing that he had no objection to
the grant of bail and recommended, instead, the bailbond in the sum of P80,000.00. It is
to be emphasized that although the court may have the discretion to grant the application
for bail, in cases of capital offenses, the determination as to whether or not the evidence
of guilt is strong can only be reached after due hearing which, in this particular instance
has not been substantially complied with by the respondent Judge.

While it may be true that the respondent judge set the application for bail for hearing
three times, thus showing lack of malice or bad faith in granting bail to the accused,
nonetheless, this does not completely exculpate him because the fact remains that a
hearing has not actually been conducted in violation of his duty to determine whether or
not the evidence against the accused is strong for purposes of bail. Normally, the Court
imposes a penalty of P20,000.00 fine in cases where the judge grants t he application for
bail without notice and hearing. In view however of the circumstances of this case, a
reprimand instead of the P20,000.00 would suffice.
cdta i

WHEREFORE, in view of the foregoing, respondent Judge Leo M. Rapatalo, RTC,

Branch 32, Agoo, La Union, is hereby REPRIMANDED with the WARNING that a
repetition of the same or similar acts in the future will be dealt with more severely.
SO ORDERED.
Regalado, Puno, Mendoza, and Torres, Jr., JJ., concur.
(Basco v. Rapatalo, Adm. Matter No. RTJ-96-1335 (Resolution), [March 5, 1997], 336
PHIL 214-239)
|||

EN BANC
[G.R. No. 79269. June 5, 1991.]
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PROCORO J.
DONATO, in his official capacity as Presiding Judge, Regional Trial
Court, Branch XII, Manila; RODOLFO C. SALAS, alias
Commander Bilog, respondents.
The Solicitor General for petitioner.
Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for
Brotherhood, Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas.
SYLLABUS
1. CONSTITUTIONAL LAW; RIGHT OF ACCUSED TO BAIL; GOVERNED BY
THE LAW AT THE TIME THE COURT RESOLVED THE PETITION FOR BAIL.
At the time the original and the amended Informations for rebellion and the application
for bail were filed before the court below the penalty imposable for the offense for which
the private respondent was charged was reclusion perpetua to death. During the
pendency of the application for bail Executive Order No. 187 was issued by the
President, by virtue of which the penalty for rebellion as originally provided for in Article
135 of the Revised Penal Code was restored. The restored law was the governing law at
the time the respondent court resolved the petition for bail.
2. ID.; ID.; ABSOLUTE WHEN THE OFFENSE CHARGED IS PUNISHABLE BY
ANY PENALTY LOWER THAN RECLUSION PERPETUA. We agree with the
respondent court that bail cannot be denied to the private respondent for he is charged
with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which
is attached the penalty of prision mayor and a fine not exceeding P20,000.00. It is,
therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution and
provides thus: Section 3, Rule 114 of the Rules of Court, as amended. Therefore, before
conviction bail is either a matter of right or of discretion. It is a matter of right when the
offense charged is punishable by any penalty lower than reclusion perpetua. To that
extent the right is absolute.
3. ID.; ID.; ID.; CANNOT BE DENIED EVEN IF THE SECURITY OF THE STATE
SO REQUIRES; PEOPLE VS. HERNANDEZ, ET AL. (99 PHIL. 515) CITED. And
so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil 515, despite the
fact that the accused was already convicted, although erroneously, by the trial court for

the complex crime of rebellion with multiple murders, arsons and robberies, and
sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the
pendency of his appeal from such conviction. To the vigorous stand of the People that
We must deny bail to the accused because the security of the State so requires, and
because the judgment of conviction appealed from indicates that the evidence of guilt of
Hernandez is strong, We held: . . . Furthermore, individual freedom is too basic, too
transcendental and vital in a republican state, like ours, to be derived upon mere general
principles and abstract consideration of public safety. Indeed, the preservation of liberty
is such a major preoccupation of our political system that, not satisfied with guaranteeing
its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of
our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15),
(16), (17), (18), and (21) of said section (1) to the protection of several aspects of
freedom."
4. ID.; ID.; ID.; SHALL NOT BE IMPAIRED EVEN WHEN THE PRIVILEGE OF
THE WRIT OF HABEAS CORPUS IS SUSPENDED. The 1987 Constitution
strengthens further the right to bail by explicitly providing that it shall not be impaired
even when the privilege of the writ of habeas corpus is suspended. This overturns the
Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit: "The suspension of the
privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the
right to bail, if the government's campaign to suppress the rebellion is to be enhanced and
rendered effective. If the right to bail may be demanded during the continuance of the
rebellion, and those arrested, captured and detained in the course thereof will be released,
they would, without the least doubt, rejoin their comrades in the field thereby
jeopardizing the success of government efforts to bring to an end the invasion, rebellion
or insurrection."
5. ID.; ID.; SUBJECT TO THE SOUND DISCRETION OF THE COURT IF THE
OFFENSE CHARGED IS PUNISHABLE BY RECLUSION PERPETUA. If the
offense charged is punishable by reclusion perpetua bail becomes a matter of discretion.
It shall be denied if the evidence of guilt is strong. The court's discretion is limited to
determining whether or not evidence of guilt is strong. (Teehankee vs. Director of Prisons
[76 Phil. 756, 770] But once it is determined that the evidence of guilt is not strong, bail
also becomes a matter of right. In the same case, We held: "The provision on bail in our
Constitution is patterned after similar provisions contained in the Constitution of the
United States and that of many states of the Union. And it is said that: ' The Constitution
of the United States and the constitution of the many states provide that all persons shall
be bailable by sufficient sureties, except for capital offenses, where the proof is evident or
the presumption of guilt is great, and, under such provisions, bail is a matter of right
which no court or judge can properly refuse, in all cases not embraced in the exceptions.
Under such provisions bail is a matter of right even in cases of capital offenses, unless
the proof of guilt is evident or the presumption thereof is great!"

6. ID.; ID.; RIGHT OF PROSECUTION TO PRESENT EVIDENCE TO DENY

THEREOF; WHEN AVAILABLE. The prosecution does not have the right to present
evidence for the denial of bail in the instances where bail is a matter of right. However, in
the cases where the grant of bail is discretionary, due process requires that the
prosecution must be given an opportunity to present, within a reasonable time, all the
evidence that it may desire to introduce before the court should resolve the motion for
bail.
7. ID.; ID. ; GUIDELINES IN FIXING BAILBOND. We agree with petitioner that it
was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00
without hearing the prosecution. The guidelines for the fixing of the amount of bail
provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely
to the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA,
489, 495: "Certain guidelines in the fixing of a bailbond call for the presentation of
evidence and reasonable opportunity for the prosecution to refute it. Among them are the
nature and circumstances of the crime, character and reputation of the accused, the
weight of the evidence against him, the probability of the accused appearing at the trial,
whether or not the accused is a fugitive from justice, and whether or not the accused is
under bond in other case. . . ."
8. ID.; ID.; SUBJECT TO THE LIMITATION THAT PERSON APPLYING FOR
ADMISSION TO BAIL SHOULD BE IN THE CUSTODY OF THE LAW;
APPLICABLE IN CASE AT BAR. He further admits that, in the light of Section 1 of
Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail
is subject to the limitation that the person applying for admission to bail should be in the
custody of the law or otherwise deprived of his liberty. " When the parties in G. R. No.
76009 stipulated that: "b. Petitioner Rodolfo Salas will remain in legal custody and face
trial before the court having custody over his person." they simply meant that Rodolfo
Salas, herein respondent, will remain in actual physical custody of the court, or in actual
confinement or detention, as distinguished from the stipulation concerning his copetitioners, who were to be released in view of the recall of the warrants of arrest against
them; they agreed, however, "to submit themselves to the court having jurisdiction over
their persons." Note should be made of the deliberate care of the parties in making a fine
distinction between legal custody and court having custody over the person in respect to
Rodolfo Salas and court having jurisdiction over the persons of his co-accused. Such a
fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas
will not be released, but should remain in custody. Had the parties intended otherwise, or
had this been unclear to private respondent and his counsel, they should have insisted on
the use of a clearer language. It must be remembered that at the time the parties orally
manifested before this Court on 14 October 1986 the terms and conditions of their
agreement and prepared and signed the Joint Manifestation and Motion, a warrant of
arrest had already been issued by the trial court against private respondent and his coaccused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo

Concepcion shall be recalled and that only they shall be released, further confirmed the
agreement that herein petitioner shall remain in custody of the law, or detention or
confinement.
9. ID.; ID.; MAY BE WAIVED BY THE ACCUSED. It is "competent for a person to
waive a right guaranteed by the Constitution, and to consent to action which would be
invalid if taken against his will." This Court has recognized waivers of constitutional
rights such as, for example, the right against unreasonable searches and seizures; the right
to counsel and to remain silent; and the right to be heard. Even the 1987 Constitution
expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(1) of
Article III thereof on the right to remain silent and to have a competent and independent
counsel, preferably of his own choice states : ". . . These rights cannot be waived except
in writing and in the presence of counsel." This provision merely particularizes the form
and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be
waived in some other form or manner provided such waiver will not offend Article 6 of
the Civil Code. We hereby rule that the right to bail is another of the Constitutional rights
which can be waived. It is a right which is personal to the accused and whose waiver
would not be contrary to law, public order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized by law.

10. CRIMINAL LAW; REBELLION; IMPOSABLE PENALTY AS AMENDED BY R.

A. NO. 6968. It must be stressed that under the present state of the law, rebellion is no
longer punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No.
6968 approved on 24 October 1990 and which took effect after publication in at least two
newspapers of general circulation, amended, among others, Article 135 of the Revised
Penal Code by increasing the penalty for rebellion such that, as amended, it now reads:
"Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person who
promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of
reclusion perpetua. Any person merely participating or executing the commands of
others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua."
11. ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. Republic Act No. 6968
cannot apply to the private respondent for acts allegedly committed prior to its effectivity.
It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor
the person guilty of a felony, who is not a habitual criminal, as this term is defined in
Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a
final sentence has been pronounced and the convict is serving the same."
12. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; DEFINED AND PURPOSE.
In defining bail as: ". . . the security given for the release of a person in custody of the
law, . . ." Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or

interpretation for the term "in custody of the law" than that as above indicated. The
purpose of bail is to relieve an accused from imprisonment until his conviction and yet
secure his appearance at the trial. It presupposes that the person applying for it should be
in the custody of the law or otherwise deprived of liberty.
13. CIVIL LAW; WAIVER OF RIGHT; CONSTRUED. Waiver is defined as "a
voluntary and intentional relinquishment or abandonment of a known existing legal right,
advantage, benefit, claim or privilege, which except for such waiver the party would have
enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known
by him to exist, with the intent that such right shall be surrendered and such person
forever deprived of its benefit; or such conduct as warrants an inference of the
relinquishment of such right; or the intentional doing of an act inconsistent with claiming
it."
14. ID.; ID.; RULE. As to what rights and privileges may be waived, the authority is
settled: ". . . the doctrine of waiver extends to rights and privileges of any character, and,
since the word 'waiver' covers every conceivable right, it is the general rule that a person
may waive any matter which affects his property, and any alienable right or privilege of
which he is the owner or which belongs to him or to which he is legally entitled, whether
secured by contract, conferred with statute, or guaranteed by constitution, provided such
rights and privileges rest in the individual, are intended for his sole benefit, do not
infringe on the rights of others, and further provided the waiver of the right or privilege is
not forbidden by law, and does not contravene public policy; and the principle is
recognized that everyone has a right to waive, and agree to waive, the advantage of a law
or rule made solely for the benefit and protection of the individual in his private capacity,
if it can be dispensed with and relinquished without infringing on any public right, and
without detriment to the community at large. . . . Although the general rule is that any
right or privilege conferred by statute or guaranteed by constitution may be waived, a
waiver in derogation of a statutory right is not favored, and a waiver will be inoperative
and void if it infringes on the rights of others, or would be against public policy or morals
and the public interest may be waived. While it has been stated generally that all personal
rights conferred by statute and guaranteed by constitution may be waived, it has also
been said that constitutional provisions intended to protect property may be waived, and
even some of the constitutional rights created to secure personal liberty are subjects of
waiver."

DECISION

DAVIDE, JR., J :
p

The People of the Philippines, through the Chief State Prosecutor of the Department of
Justice, the City Fiscal of Manila and the Judge a Advocate General, filed the instant
petition for certiorari and prohibition, with a prayer for restraining order/ preliminary
injunction, to set aside the order of respondent Judge dated July 7, 1987 granting bail to
the accused Rodolfo Salas alias "Commander Bilog" in Criminal Case No. 86-48926 for
Rebellion, 1 and the subsequent Order dated July 30, 1987 granting the motion for
reconsideration of 16 July 1987 by increasing the bail bond from P30,000.00 to
P50,000.00 but denying petitioner's supplemental motion for reconsideration of July 17,
1987 which asked the court to allow petitioner to present evidence in support of its prayer
for a reconsideration of the order of 7 July 1987.
The pivotal issues presented before Us are whether the right to bail may, under certain
circumstances, be denied to a person who is charged with an otherwise bailable offense,
and whether such right may be waived.
The following are the antecedents of this petition:
In the original Information 2 filed on 2 October 1986 in Criminal Case No. 86-48926 of
the Regional Trial Court of Manila, later amended in an Amended Information 3 which
was filed on 24 October 1986, private respondent Rodolfo Salas, alias "Commander
Bilog", and his co-accused were charged for the crime of rebellion under Article 134, in
relation to Article 135, of the Revised Penal Code allegedly committed as follows:
"That in or about 1968 and for some time before said year and continuously
thereafter until the present time, in the City of Manila and elsewhere in the
Philippines, the Communist Party of the Philippines, its military arm, the New
People's Army, its mass infiltration network, the National Democratic Front
with its other subordinate organizations and fronts, have, under the direction and
control of said organizations' leaders, among whom are the aforenamed accused,
and with the aid, participation or support of members and followers whose
whereabouts and identities are still unknown, risen publicly and taken arms
throughout the country against the Government of the Republic of the
Philippines for the purpose of overthrowing the present Government, the seat of
which is in the City of Manila, or of removing from the allegiance to that
government and its laws, the country's territory or part of it;
That from 1970 to the present, the above- named accused in their capacities as
leaders of the aforenamed organizations, in conspiracy with, and in support of
the cause of, the organizations aforementioned, engaged themselves in war
against the forces of the government, destroying property or committing serious
violence, and other acts in the pursuit of their unlawful purpose, such as . . . ."
(then follows the enumeration of specific acts committed before and after
February 1986).

At the time the Information was filed the private respondent and his co-accused were in
military custody following their arrest on 29 September 1986 at the Philippine General
Hospital, Taft Ave., Manila; he had earlier escaped from military detention and a cash
reward of P250,000.00 was offered for his capture. 4
A day after the filing of the original information, or on 3 October 1986, a petition for
habeas corpus for private respondent and his co-accused was filed with this Court 5
which, as shall hereafter be discussed in detail, was dismissed in Our resolution of 16
October 1986 on the basis of the agreement of the parties under which herein private
respondent "will remain in legal custody and will face trial before the court having
custody over his person" and the warrants for the arrest of his co-accused are deemed
recalled and they shall be immediately released but shall submit themselves to the court
having jurisdiction over their person.
On November 7, 1986, private respondent filed with the court below a Motion to Quash
the Information alleging that: (a) the facts alleged do not constitute an offense; (b) the
Court has no jurisdiction over the offense charged; (c) the Court has no jurisdiction over
the persons of the defendants; and (d) the criminal action or liability has been
extinguished, 6 to which petitioner filed an Opposition 7 citing, among other grounds, the
fact that in the Joint Manifestation and Motion dated October 14, 1986, in G.R. No.
76009, private respondent categorically conceded that:
xxx xxx xxx
"Par. 2 (b) Petitioner Rodolfo Salas will remain in legal custody and face
trial before the court having custody over his person."

In his Order of March 6, 1987, 8 respondent Judge denied the motion to quash.
Instead of asking for a reconsideration of said Order, private respondent filed on 9 May
1987 a petition for bail, 9 which herein petitioner opposed in an Opposition filed on 27
May 1987 10 on the ground that since rebellion became a capital offense under the
provisions of P.D. Nos. 1996, 942 and 1834, which amended Article 135 of the Revised
Penal Code, by imposing the penalty of reclusion perpetua to death on those who
promote, maintain, or head a rebellion, the accused is no longer entitled to bail as
evidence of his guilt is strong.
On 5 June 1987 the President issued Executive Order No. 187 repealing, among others,
P.D. Nos. 1996, 942 and 1834 and restoring to full force and effect Article 135 of the
Revised Penal Code as it existed before the amendatory decrees. Thus, the original
penalty for rebellion, prision mayor and a fine not to exceed P20,000.00, was restored.

Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue
(Vol. 83, No. 24) which was officially released for circulation on June 26, 1987.
In his Order of 7 July 1987 11 respondent Judge, taking into consideration Executive
Order No. 187, granted private respondent's petition for bail, fixed the bail bond at
P30,000.00 and imposed upon private respondent the additional condition that he shall
report to the court once every two (2) months within the first ten (10) days of every
period thereof. In granting the petition respondent Judge stated:
". . . There is no more debate that with the effectivity of Executive Order No.
187, the offense of rebellion, for which accused Rodolfo Salas is herein
charged, is now punishable with the penalty of prision mayor and a fine not
exceeding P20,000.00, which makes it now bailable pursuant to Section 13,
Article III, 1986 Constitution and Section 3, Rule 114, 1985 Rules of Criminal
Procedure. Unlike the old rule, bail is now a matter of right in non-capital
offenses before final judgment. This is very evident upon a reading of Section 3,
Rule 114, aforementioned, in relation to Section 21, same rule. In view,
therefore, of the present circumstances in this case, said accused-applicant is
now entitled to bail as a matter of right inasmuch as the crime of rebellion
ceased to be a capital offense."

As to the contention of herein petitioner that it would be dangerous to grant bail to private
respondent considering his stature in the CPP-NPA hierarchy, whose ultimate and
overriding goal is to wipe out all vestiges of our democracy and to replace it with their
ideology, and that his release would allow his return to his organization to direct its
armed struggle to topple the government before whose courts he invokes his
constitutional right to bail, respondent Judge replied:
"True, there now appears a clash between the accused's constitutional right to
bail in a non-capital offense, which right is guaranteed in the Bill of Rights and,
to quote again the prosecution, 'the existence of the government that bestows the
right, the paramount interest of the state.' Suffice to state that the Bill of Rights,
one of which is the right to bail, is a 'declaration of the rights of the individual,
civil, political and social and economic, guaranteed by the Constitution against
impairment or intrusion by any form of governmental action. Emphasis is
placed on the dignity of man and the worth of individual. There is recognition of
certain inherent and inalienable rights of the individual, which the government
is prohibited from violating' (Quisumbing-Fernando, Philippine Constitutional
Law, 1984 Edition, p. 77). To this Court, in case of such conflict as now
pictured by the prosecution, the same should be resolved in favor of the
individual who, in the eyes of the law, is alone in the assertion of his rights
under the Bill of Rights as against the State. Anyway, the government is that
powerful and strong, having the resources, manpower and the wherewithals to
fight those 'who oppose, threaten (sic) and destroy a just and orderly society and
its existing civil and political institutions.' The prosecution's fear may or may

not be founded that the accused may later on jump bail and rejoin his comrades
in the field to sow further disorders and anarchy against the duly constituted
authorities. But, then, such a fear can not be a reason to deny him bail. For the
law is very explicit that when it comes to bailable offenses an accused is entitled
as a matter of right to bail. Dura est lex sed lex."

In a motion to reconsider 12 the above order filed on 16 July 1987, petitioner asked the
court to increase the bail from P30,000.00 to P100,000.00 alleging therein that per
Department of Justice Circular No. 10 dated 3 July 1987, the bail for the provisional
release of an accused should be in an amount computed at P10,000.00 per year of
imprisonment based on the medium penalty imposable for the offense and explaining that
it is recommending P100,000.00 because the private respondent "had in the past escaped
from the custody of the military authorities and the offense for which he is charged is not
an ordinary crime, like murder, homicide or robbery, where after the commission, the
perpetrator has achieved his end" and that "the rebellious acts are not consummated until
the well-organized plan to overthrow the government through armed struggle and replace
it with an alien system based on a foreign ideology is attained. "
On 17 July 1987, petitioner filed a supplemental motion for reconsideration 13 indirectly
asking the court to deny bail to the private respondent and to allow it to present evidence
in support thereof considering the "inevitable probability that the accused will not comply
with this main condition of his bail to appear in court for trial," a conclusion it claims
to be buttressed "by the following facts which are widely known by the People of the
Philippines and which this Honorable Court may have judicial notice of:
1. The accused has evaded the authorities for thirteen years and was an escapee
from detention when arrested;
2. He was not arrested at his residence as he had no known address;
3. He was using the false name "Manuel Mercado Castro" at the time of his
arrest and presented a Driver's License to substantiate his false identity;
4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false
address;
5. He and his companions were on board a private vehicle with a declared
owner whose identity and address were also found to be false;
6. Pursuant to Ministry Order No. 1-A dated 11 January 1982,a reward of
P250,000.00 was offered and paid for his arrest,"

which "clearly indicate that the accused does not entertain the slightest intention to
appear in court for trial, if released." Petitioner further argues that the accused, who is
the Chairman of the Communist Party of the Philippines and head of its military arm,

the NPA, together with his followers, are now engaged in an open warfare and
rebellion against this government and threatens the existence of this very Court from
which he now seeks provisional release," and that while he is entitled to bail as a
matter of right in view of Executive Order No. 187 which restored the original penalty
for rebellion under Article 135 of the Revised Penal Code, yet, when the interest of
the State conflicts with that of an individual, that of the former prevails for "the right
of the State of self-preservation is paramount to any of the rights of an individual
enshrined in the Bill of Rights of the Constitution." Petitioner further invokes
precedents in the United States of America holding "that there is no absolute
constitutional barrier to detention of potentially dangerous resident aliens pending
deportation proceedings, 14 and that an arrestee may be incarcerated until trial as he
presents a risk of flight; 15 and sustaining a detention prior to trial of arrestee charged
with serious felonies who are found after an adversary hearing to pose threat to the
safety of individuals and to the community which no condition of release can dispel."
16
On 30 July 1987 respondent Judge handed down the Orders 17 adverted to in the
introductory portion of this decision the dispositive portion of which reads:
"WHEREFORE, in the light of the foregoing considerations, the Court finds the
'supplemental' motion for reconsideration to be without merit and hereby denies
it but finds the first motion for reconsideration to be meritorious only insofar as
the amount of bail is concerned and hereby reconsiders its Order of July 7, 1987
only to increase the amount of bail from P30,000.00 to P50,000.00, subject to
the approval of this Court, and with the additional condition that accused
Rodolfo Salas shall report to the court once every two (2) months within the
first ten (10) days of every period thereof (Almendras vs. Villaluz, et al., L31665, August 6, 1975, 66 SCRA 58)."

In denying the supplemental motion for reconsideration the respondent Judge took into
account the "sudden turn-about" on the part of the petitioner in that a day earlier it filed a
motion for reconsideration wherein it conceded the right of the private respondent to bail
but merely asked to increase the amount of bail; observed that it is only a reiteration of
arguments in its opposition to the petition for bail of 25 May 1987; asserted that the
American precedents are not applicable since the cases involved deportation of aliens
and, moreover, the U.S. Federal Constitution does not contain a proviso on the right of an
accused to bail in bailable offenses, but only an injunction against excessive bail; and
quoted the concurring opinion of the late Justice Pedro Tuason in the cases of Nava, et al.
vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108,
October 11, 1951, 90 Phil. 172.
Unable to agree with said Order, petitioner commenced this petition submitting therein
the following issues:

"THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO

ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS
JURISDICTION, AND IN TOTAL DISREGARD OF THE PREVAILING
REALITIES, WHEN HE DENIED PETITIONER'S SUPPLEMENTAL
MOTION FOR RECONSIDERATION WITH PRAYER TO BE GIVEN THE
OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS
OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENT
RODOLFO SALAS.
THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO
ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS
JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT
RODOLFO SALAS."

in support of which petitioner argues that private respondent is stopped from invoking
his right to bail, having expressly waived it in G.R. No. 76009 when he agreed to
"remain in legal custody and face trial before the court having custody of his person"
in consideration of the recall of the warrant of arrest for his co-petitioners Josefina
Cruz and Jose Concepcion; and the right to bail, even in non-capital offenses, is not
absolute when there is prima facie evidence that the accused is a serious threat to the
very existence of the State, in which case the prosecution must be allowed to present
evidence for the denial of bail. Consequently, respondent Judge acted with grave
abuse of discretion when he did not allow petitioner to present all the evidence it may
desire to support its prayer for the denial of bail and when he declared that the State
has forfeited its right to do so since during all the time that the petition for bail was
pending, it never manifested, much less hinted, its intention to adduce such evidence.
And that even if release on bail may be allowed, respondent judge, in fixing the
amount of bail at P50,000.00 (originally P30,000.00 only), failed to take into account
the lengthy record of private respondents' criminal background, the gravity of the
pending charge, and the likelihood of flight. 18

In Our resolution of 11 August 1987 19 We required the respondents to comment on the

petition and issued a Temporary Restraining Order ordering respondent Judge to cease
and desist from implementing his order of 30 July 1987 granting bail to private
respondent in the amount of P50,000.00.
In his Comment filed on 27 August 1987, 20 private respondent asks for the outright
dismissal of the petition and immediate lifting of the temporary restraining order on the
following grounds:
I

RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER

IS HE ESTOPPED FROM ASSERTING SAID RIGHT. ON THE
CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM RAISING
THE SAID ISSUE FOR THE FIRST TIME ON APPEAL.
II
RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL
RIGHT TO BE PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL.
III
RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE
(RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS
MANDATED BY THE CONSTITUTION.
IV
THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY
TO PRESENT EVIDENCE IS CORRECT. PETITIONER'S ALLEGED
RIGHT TO PRESENT EVIDENCE IS NONEXISTENT AND/OR HAD BEEN
WAIVED.
V
THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS
CASE VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL
BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS.

We required the petitioner to reply to the comment of private respondent. 21 The reply
was filed on 18 September 1987. 22
In Our resolution of 15 October 1987 23 We gave due course to the petition and required
the parties to file simultaneously their memoranda within twenty days from notice.
In their respective manifestations and motions dated 5 November 24 and 23 November
1987 25 petitioner and private respondents asked to be excused from filing their
Memoranda and that the petition and reply be considered as the Memorandum for
petitioner and the Comment as the Memorandum for private respondent, which We
granted in Our resolutions of 19 November 1987 26 and 1 December 1987, 27
respectively.
In Our resolution of 14 September 1989 We required the Solicitor General to express his
stand on the issues raised in this petition, 28 which he complied with by filing his
Manifestation on 30 May 1990 29 wherein he manifests that he supports the petition and

submits that the Order of respondent Judge of July 7, July 17 and July 30, 1987 should be
annulled and set aside asserting that private respondent had waived the right to bail in
view of the agreement in G.R. No. 76009; that granting bail to him is accepting wideeyed his undertaking which he is sure to break; in determining bail, the primary
consideration is to insure the attendance of the accused at the trial of the case against him,
which would be frustrated by the "almost certainty that respondent Salas will jump bail of
whatever amount"; and application of the guidelines provided for in Section 10 of Rule
114, 1985 Rules on Criminal Procedure on the amount of bail dictates denial of bail to
private respondent. The Solicitor General likewise maintains that the right of the
petitioner to hearing on the application of private respondent for bail cannot be denied by
respondent Judge.
And now on the issues presented in this case.
I.
Unquestionably, at the time the original and the amended Informations for rebellion and
the application for bail were filed before the court below the penalty imposable for the
offense for which the private respondent was charged was reclusion perpetua to death.
During the pendency of the application for bail Executive Order No. 187 was issued by
the President, by virtue of which the penalty for rebellion as originally provided for in
Article 135 of the Revised Penal Code was restored. The restored law was the governing
law at the time the respondent court resolved the petition for bail.
We agree with the respondent court that bail cannot be denied to the private respondent
for he is charged with the crime of rebellion as defined in Article 134 of the Revised
Penal Code to which is attached the penalty of prision mayor and a fine not exceeding
P20,000.00. 30 It is, therefore, a bailable offense under Section 13 of Article III of the
1987 Constitution which provides thus:
"Sec. 13. All persons, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall, before conviction, be
bailable by sufficient sureties, or be released on recognizance as may be
prescribed by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not be
required."

Section 3, Rule 114 of the Rules of Court, as amended, also provides:

"Bail, a matter of right: exception. All persons in custody shall, before final
conviction, be entitled to bail as a matter of right, except those charged with a
capital offense or an offense which, under the law at the time of its commission
and at the time of the application for bail, is punishable by reclusion perpetua,
when evidence of guilt is strong."

Therefore, before conviction bail is either a matter of right or of discretion. It is a matter

of right when the offense charged is punishable by any penalty lower than reclusion
perpetua. 31 To that extent the right is absolute. 32
And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite
the fact that the accused was already convicted, although erroneously, by the trial court
for the complex crime of rebellion with multiple murders, arsons and robberies, and
sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the
pendency of his appeal from such conviction. To the vigorous stand of the People that
We must deny bail to the accused because the security of the State so requires, and
because the judgment of conviction appealed from indicates that the evidence of guilt of
Hernandez is strong, We held:
". . . Furthermore, individual freedom is too basic, too transcendental and vital
in a republican state, like ours, to be derived upon mere general principles and
abstract consideration of public safety. Indeed, the preservation of liberty is
such a major preoccupation of our political system that, not satisfied with
guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill
of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6),
(7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1)
to the protection of several aspects of freedom."

The 1987 Constitution strengthens further the right to bail by explicitly providing that it
shall not be impaired even when the privilege of the writ of habeas corpus is suspended.
This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit:
LexLib

"The suspension of the privilege of the writ of habeas corpus must, indeed,
carry with it the suspension of the right to bail, if the government's campaign to
suppress the rebellion is to be enhanced and rendered effective. If the right to
bail may be demanded during the continuance of the rebellion, and those
arrested, captured and detained in the course thereof will be released, they
would, without the least doubt, rejoin their comrades in the field thereby
jeopardizing the success of government efforts to bring to an end the invasion,
rebellion or insurrection."

Upon the other hand, if the offense charged is punishable by reclusion perpetua bail
becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The
court's discretion is limited to determining whether or not evidence of guilt is strong. 33
But once it is determined that the evidence of guilt is not strong, bail also becomes a
matter of right. In Teehankee vs. Director of Prisons, supra., We held:
"The provision on bail in our Constitution is patterned after similar provisions
contained in the Constitution of the United States and that of many states of the
Union. And it is said that:

'The Constitution of the United States and the constitution of the

many states provide that all persons shall be bailable by sufficient
sureties, except for capital offenses, where the proof is evident or the
presumption of guilt is great, and, under such provisions, bail is a matter
of right which no court or judge can properly refuse, in all cases not
embraced in the exceptions. Under such provisions bail is a matter of
right even in cases of capital offenses, unless the proof of guilt is evident
or the presumption thereof is great!" 34

Accordingly, the prosecution does not have the right to present evidence for the denial of
bail in the instances where bail is a matter of right. However, in the cases where the grant
of bail is discretionary, due process requires that the prosecution must be given an
opportunity to present, within a reasonable time, all the evidence that it may desire to
introduce before the court should resolve the motion for bail. 35
We agree, however, with petitioner that it was error for the respondent court to fix the
bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The
guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of
the Rules of Court are not matters left entirely to the discretion of the court. As We stated
in People vs. Dacudao, et al., 170 SCRA, 489, 495:
"Certain guidelines in the fixing of a bailbond call for the presentation of
evidence and reasonable opportunity for the prosecution to refute it. Among
them are the nature and circumstances of the crime, character and reputation of
the accused, the weight of the evidence against him, the probability of the
accused appearing at the trial, whether or not the accused is a fugitive from
justice, and whether or not the accused is under bond in other case . . . ."

In the instant case petitioner has sufficiently made out allegations which necessitate a
grant of an opportunity to be heard for the purpose of determining the amount of bail, but
not for the denial thereof because aforesaid Section 10 of Rule 114 does not authorize
any court to deny bail.

II.
It must, however, be stressed that under the present state of the law, rebellion is no longer
punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968
approved on 24 October 1990 and which took effect after publication in at least two
newspapers of general circulation, amended, among others, Article 135 of the Revised
Penal Code by increasing the penalty for rebellion such that, as amended, it now reads:

"Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person
who promotes, maintains, or heads a rebellion or insurrection shall suffer the
penalty of reclusion perpetua.
"Any person merely participating or executing the commands of others in a
rebellion or insurrection shall suffer the penalty of reclusion perpetua."
xxx xxx xxx

This amendatory law cannot apply to the private respondent for acts allegedly committed
prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive
effect insofar as they favor the person guilty of a felony, who is not a habitual criminal,
as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced and the convict is serving
the same. " 36
III.
We agree with Petitioner that private respondent has, however, waived his right to bail in
G.R. No. 76009.
LLpr

On 3 October 1986, or the day following the filing of the original information in Criminal
Case No. 86-48926 with the trial court, a petition for habeas corpus for herein private
respondent, and his co-accused Josefina Cruz and Jose Concepcion, was filed with this
Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas against Juan Ponce
Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao, and
Col. Saldajeno praying, among others, that the petition be given due course and a writ of
habeas corpus be issued requiring respondents to produce the bodies of herein private
respondent and his co-accused before the Court and explain by what authority they
arrested and detained them. The following proceedings took place thereafter in said case:
1. In a resolution of 7 October 1986 We issued a writ of habeas corpus, required
respondents to make a return of the writ on or before the close of office hours
on 13 October and set the petition for hearing on 14 October 1986 at 10:00
o'clock in the morning.
2. On 13 October 1986 respondents, through the Office of the Solicitor General,
filed a Return To The Writ of Habeas Corpus alleging therein that private
respondent and Josefina Cruz alias "Mrs. Mercado", and Jose Milo Concepcion
alias "Eugene Zamora" were apprehended by the military on September 29,
1986 in the evening at the Philippine General Hospital Compound at Taft Ave.,
Manila, being leaders or members of the Communist Party of the Philippines,
New People's Army and National Democratic Front, organizations dedicated to
the overthrow of the Government through violent means, and having actually
committed acts of rebellion under Article 134 of the Revised Penal Code, as

amended. After their arrest they were forthwith charged with rebellion before
Branch XII of the Regional Trial Court, National Capital Region in Criminal
Case No. 86-48926 and on 3 October warrants for their arrest were issued and
respondents continue to detain them because of the warrants of arrest and the
pendency of the criminal cases against them. Respondents further allege that,
contrary to the allegation in the petition, herein private respondent was not a
member of the NDF panel involved in peace negotiations with the Government;
neither is he and his companions Cruz and Concepcion covered by any safe
conduct pass issued by competent authorities.
3. At the hearing on 14 October 1986 the parties informed the Court of certain
agreements reached between them. We issued a resolution reading as follows:
"When this case was called for hearing this morning, Attorneys Romeo
Capulong, Arno V. Sanidad, Efren H. Mercado, Edgardo Pamin-tuan,
Casiano Sabile, Ramon Cura, and William Chua appeared for the
petitioners with Atty. Capulong arguing for the petitioners. Solicitor
General Sedfrey Ordoez, Assistant Solicitor General Romeo C. de la
Cruz and Trial Attorney Josue E. Villanueva appeared for the
respondents, with Solicitor General Ordoez arguing for the
respondents.
Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court
that in conformity with the agreement reached with the government, the
petition for habeas corpus will be withdrawn with detainee Rodolfo
Salas to remain under custody, whereas his co-detainees Josefina Cruz
and Jose Milo Concepcion will be released immediately.
Solicitor General Sedfrey Ordoez, also in open Court, confirmed the
foregoing statement made by petitioners' counsel regarding the
withdrawal of the petition for habeas corpus, declaring that no objection
will be interposed to the immediate release of detainees Josefina Cruz
and Jose Milo Concepcion, and that no bond will be required of them,
but they will continue to face trial with their co-accused, Rodolfo Salas;
further, that they will not be rearrested on the basis of the warrants
issued by the trial court provided that they manifest in open Court their
willingness to subject themselves to the jurisdiction of the Court and to
appear in court when their presence is required.
In addition, he stated that he is willing to confer with petitioners' counsel
today relative to the compromise agreement that they have previously
undertaken to submit.
prcd

Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that

on his oath as member of the Bar, the detainees Josefina Cruz and Jose

Milo Concepcion have agreed to subject themselves to the jurisdiction of

the trial court, the Court ordered their immediate release.
Thereafter, the Court approved the foregoing manifestations and
statements and required both parties to SUBMIT to the Court their
compromise agreement by 4:00 o'clock this afternoon. Teehankee, C.J.,
is on official leave."
4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a
Joint Manifestation and Motion duly signed by Atty. Romeo Capulong, counsel
for petitioners, and Solicitor General Sedfrey Ordoez, Assistant Solicitor
General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva, counsel
for respondents, which reads as follows:
"COME NOW petitioners and the respondents, assisted by their
respective counsel, and to this Honorable Tribunal respectfully manifest:
1. That in the discussion between Romeo Capulong, petitioners' counsel,
and Solicitor General Sedfrey A. Ordoez on October 13, 1986
exploratory talks were conducted to find out how the majesty of the law
may be preserved and human considerations may be called into play.
2. That in the conference both counsel agreed to the following terms of
agreement:
a. The petition for habeas corpus will be withdrawn by petitioners and Josefina
Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial
of the criminal case for rebellion (People v. Rodolfo Salas, et al., Criminal Case No. 4886
[should be 86-48926], Regional Trial Court, National Capital Judicial Region) filed
against them under their personal recognizance.
b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the
court having custody over his person.
c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo
Concepcion is hereby deemed recalled in view of formal manifestation before the
Supreme Court that they will submit themselves to the court having jurisdiction over their
person.
3. That on October 14, the Solicitor General was able to obtain the
conformity of the Government to the foregoing terms which were
likewise accepted by petitioner (sic) and their counsel of record.
4. That the two counsel submitted their oral manifestation during the
hearing on October 14 and the present manifestation in compliance with
the resolution announced in court this morning.

WHEREFORE, it is prayed that the petition for habeas corpus be dismissed."

5. On 16 October 1986 We issued the following resolution:
"G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of
Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, et al. v. Hon.
Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de Villa,
Brig. Gen. Ramon Montao and Col. Virgilio Saldajeno] Considering
the Joint Manifestation and Motion dated October 14, 1986 filed by
Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and
Ricardo Fernandez, Jr. as counsel for petitioners and Solicitor General
Sedfrey A. Ordoez and Assistant Solicitor General Romeo C. de la
Cruz and Trial Attorney Josue S. Villanueva as counsel for respondents
which states that they have entered into an agreement whereby: [a] the
petition for habeas corpus will be withdrawn by petitioners, and Josefina
Cruz and Jose Milo Concepcion will be immediately released but shall
appear at the trial of the criminal case for rebellion [People vs. Rodolfo
Salas, et al., Criminal Case No. 4886, Regional Trial Court, National
Capital Judicial Region, Branch XII, Manila], filed against them, on
their personal recognizance; [b] petitioner Rodolfo Salas will remain in
legal custody and face trial before the court having custody over his
person; and [c] the warrant of arrest for the person of Josefina Cruz and
Jose Milo Concepcion is hereby deemed recalled in view of the formal
manifestation before this Court that they will submit themselves to the
court having jurisdiction over their person and in view of the said
agreement, the petition for habeas corpus be dismissed, the Court
Resolved to DISMISS the petition for habeas corpus but subject to the
condition that petitioners' lead counsel, Atty. Capulong, upon his oath as
member of the Bar, shall abide by his commitment to ensure the
appearance of Josefina Cruz and Jose Milo Concepcion at the trial of the
criminal case for rebellion filed against them. Teehankee, C.J., is on
official leave."

It is the stand of the petitioner that private respondent, "in agreeing to remain in legal
custody even during the pendency of the trial of his criminal case, [he] has expressly
waived his right to bail." 37 Upon the other hand, private respondent asserts that this
claim is totally devoid of factual and legal basis, for in their petition for habeas corpus
they precisely questioned the legality of the arrest and the continued detention of Rodolfo
Salas, Josefina Cruz and Jose Milo Concepcion, which was not resolved by this Court or
by the compromise agreement of the parties but left open for further determination in
another proceeding. Moreover, the matter of the right to bail was neither raised by either
party nor resolved by this Court, and the legal steps promptly taken by private respondent
after the agreement was reached, like the filing of the motion to quash on 7 November

1986 and the petition for bail on 14 May 1987, were clear and positive assertions of his
statutory and constitutional rights to be granted not only provisional but final and
permanent liberty. Finally, private respondent maintains that the term "legal custody" as
used in the Joint Manifestation and Motion simply means that private respondent agreed
to continue to be in the custody of the law or in custodia legis and nothing else; it is not
to be interpreted as waiver.
Interestingly, private respondent admits that:
"'Custody' has been held to mean nothing less than actual imprisonment. It is
also defined as the detainer of a person by virtue of a lawful authority, or the
'care and possession of a thing or person.' (Bouviers Law Dictionary, Third Ed,
Vol. I, pp. 741-742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa.
306)"

He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and
settled jurisprudence, the "constitutional right to bail is subject to the limitation that the
person applying for admission to bail should be in the custody of the law or other wise
deprived of his liberty." 38
When the parties in G.R. No. 76009 stipulated that:
"b. Petitioner Rodolfo Salas will remain in legal custody and face trial before
the court having custody over his person."

they simply meant that Rodolfo Salas, herein respondent, will remain in actual
physical custody of the court, or in actual confinement or detention, as distinguished
from the stipulation concerning his co-petitioners, who were to be released in view of
the recall of the warrants of arrest against them; they agreed, however, "to submit
themselves to the court having jurisdiction over their persons." Note should be made
of the deliberate care of the parties in making a fine distinction between legal custody
and court having custody over the person in respect to Rodolfo Salas and court having
jurisdiction over the persons of his co-accused. Such a fine distinction was precisely
intended to emphasize the agreement that Rodolfo Salas will not be released, but
should remain in custody. Had the parties intended otherwise, or had this been unclear
to private respondent and his counsel, they should have insisted on the use of a clearer
language. It must be remembered that at the time the parties orally manifested before
this Court on 14 October 1986 the terms and conditions of their agreement and
prepared and signed the Joint Manifestation and Motion, a warrant of arrest had
already been issued by the trial court against private respondent and his co-accused.
The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo
Concepcion shall be recalled and that only they shall be released, further confirmed
the agreement that herein petitioner shall remain in custody of the law, or detention or
confinement.
cdrep

In defining bail as:

". . . the security given for the release of a person in custody of the law, . . ."

Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or
interpretation for the term "in custody of the law" than that as above indicated. The
purpose of bail is to relieve an accused from imprisonment until his conviction and
yet secure his appearance at the trial. 39 It presupposes that the person applying for it
should be in the custody of the law or otherwise deprived of liberty. 40
Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private
respondent had unequivocably waived his right to bail.
But, is such waiver valid?
Article 6 of the Civil Code expressly provides:
"Art. 6. Rights may be waived, unless the waiver is contrary to law, public
order, public policy, morals, or good customs, or prejudicial to a third person
with a right recognized by law."

Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a

known existing legal right, advantage, benefit, claim or privilege, which except for such
waiver the party would have enjoyed; the voluntary abandonment or surrender, by a
capable person, of a right known by him to exist, with the intent that such right shall be
surrendered and such person forever deprived of its benefit; or such conduct as warrants
an inference of the relinquishment of such right; or the intentional doing of an act
inconsistent with claiming it." 41
As to what rights and privileges may be waived, the authority is settled:
". . . the doctrine of waiver extends to rights and privileges of any character,
and, since the word 'waiver' covers every conceivable right, it is the general rule
that a person may waive any matter which affects his property, and any
alienable right or privilege of which he is the owner or which belongs to him or
to which he is legally entitled, whether secured by contract, conferred with
statute, or guaranteed by constitution, provided such rights and privileges rest in
the individual, are intended for his sole benefit, do not infringe on the rights of
others, and further provided the waiver of the right or privilege is not forbidden
by law, and does not contravene public policy; and the principle is recognized
that everyone has a right to waive, and agree to waive, the advantage of a law or
role made solely for the benefit and protection of the individual in his private
capacity, if it can be dispensed with and relinquished without infringing on any
public right, and without detriment to the community at large. . . . .

Although the general rule is that any right or privilege conferred by statute or
guaranteed by constitution may be waived, a waiver in derogation of a statutory
right is not favored, and a waiver will be inoperative and void if it infringes on
the rights of others, or would be against public policy or morals and the public
interest may be waived.
prcd

While it has been stated generally that all personal rights conferred by statute
and guaranteed by constitution may be waived, it has also been said that
constitutional provisions intended to protect property may be waived, and even
some of the constitutional rights created to secure personal liberty are subjects
of waiver." 42

In Commonwealth vs. Petrillo, 43 it was held:

"Rights guaranteed to one accused of a crime fall naturally into two classes: (a)
those in which the state, as well as the accused, is interested; and (b) those
which are personal to the accused, which are in the nature of personal
privileges. Those of the first class cannot be waived; those of the second may
be."

It is "competent for a person to waive a right guaranteed by the Constitution, and to

consent to action which would be invalid if taken against his will." 44
This Court has recognized waivers of constitutional rights such as, for example, the right
against unreasonable searches and seizures; 45 the right to counsel and to remain silent;
46 and the right to be heard. 47
Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill
of Rights. Section 12(1) of Article III thereof on the right to remain silent and to have a
competent and independent counsel, preferably of his own choice states:
". . . These rights cannot be waived except in writing and in the presence of
counsel."

This provision merely particularizes the form and manner of the waiver; it, nevertheless,
clearly suggests that the other rights may be waived in some other form or manner
provided such waiver will not offend Article 6 of the Civil Code.
We hereby rule that the right to bail is another of the constitutional rights which can be
waived. It is a right which is personal to the accused and whose waiver would not be
contrary to law, public order, public policy, morals, or good customs, or prejudicial to a
third person with a right recognized by law.
prLL

The respondent Judge then clearly acted with grave abuse of discretion in granting bail to
the private respondent.

WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in
Criminal Case No. 86-48926 entitled People of the Philippines vs. Rodolfo C. Salas alias
Commander Bilog/Henry, Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion
alias Eugene Zamora, for Rebellion, are hereby NULLIFIED and SET ASIDE.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Sarmiento, J., took no part.
|||

(People v. Donato, G.R. No. 79269, [June 5, 1991], 275 PHIL 146-175)

THIRD DIVISION
[G.R. No. 90643. June 25, 1993.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGUSTIN
FORTES Y G ARRA, accused-appellant.
[G.R. No. 91155. June 25, 1993.]
AG USTIN G. FORTES, plaintiff-appellee, vs. THE HONORABLE
PRESIDING JUDGE EUGENIO C. GUAN, JR. of the Regional Trial
Court, Branch 55, Irosin, Sorsogon, and PEOPLE OF THE
PHILIPPINES, accused-appellant.
The Solicitor General for plaintiff-appellee.
Gavino L. Barlin for accused-appellant.
SYLLABUS
1. CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; RIGHT TO BAIL;
RULES THEREON. It is clear from Section 13, Article III of the 1987 Constitution
and Section 3, Rule 114 of the Revised Rules of Court, as amended, that: ". . . before
conviction bail is either a matter of right or of discretion. It is a matter of right when the
offense charged is punishable by any penalty lower than reclusion perpetua. To that
extent the right is absolute. Upon the other hand, if the offense charged is punishable by
reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence
of guilt is strong. The court's discretion is limited to determining whether or not evidence
of guilt is strong. But once it is determined that the evidence of guilt is not strong, bail
also becomes a matter of right. . . ."
2. ID.; ID.; ID.; CONVICTED ACCUSED NOT ENTITLED THERETO WHEN
CHARGED WITH A CAPITAL OFFENSE OR AN OFFENSE PUNISHABLE BY
RECLUSION PERPETUA. Construing Section 3, Rule 114 of the 1985 Rules on
Criminal Procedure, as amended, this Court, in the en banc Resolution of 15 October
1991 in People vs. Ricardo Cortez, ruled that: "Pursuant to the aforecited provision, an
accused who is charged with a capital offense or an offense punishable by reclusion
perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the case
to this court since his conviction clearly imports that the evidence of his guilt of the
offense charged is strong."

3. ID.; ID.; ID.; ID.; CASE AT BAR. In the instant case, the rape for which the
accused was indicted is punishable by reclusion perpetua pursuant to Article 335 of the
Revised Penal Code; he was convicted therefor and subsequently sentenced to serve that
penalty. It is thus evident that the trial court correctly denied his application for bail
during the pendency of the appeal.
4. CRIMINAL LAW; RAPE; NOT DISPROVED BY ABSENCE OF SPERMATOZOA.
It is settled that the absence of spermatozoa does not disprove the consummation of
rape. The important consideration is not the emission of semen, but the penetration by the
male organ.
5. REMEDIAL LAW; PRESIDENTIAL DECREE 1508; REFERRAL TO BARANGAY
LUPON; RAPE, EXEMPTED THEREFROM. Under P.D. No. 1508, the governing
law then, rape was not among the crimes which required referral to the Barangay Lupon
for the purpose of seeking an amicable settlement. As a matter of fact, it was among those
excepted from such a referral considering that the penalty imposable is more than thirty
(30) days imprisonment.
6. ID.; EVIDENCE; CREDIBILITY; ALIBI; UNAVAILING WHERE IT WAS
POSSIBLE FOR THE ACCUSED TO BE AT THE SCENE OF THE CRIME DURING
ITS COMMISSION. The appellant's contention that the trial court erroneously
characterized his defense as one of alibi, is without any basis. The trial court actually
characterized the appellant's defense as one of "alibi and absolute denial." Besides, the
"alibi" aspect thereof is not entirely inaccurate for in fact, as shown by his own story, the
appellant went back to the ricefield to retrieve his bottle of drinking water before
returning to the nipa hut at around 12:00 o'clock noon. In effect, he suggested that he was
not at the scene of the crime at the time the sexual assault was committed.
7. ID.; ID.; ID.; WHEN A WOMAN ADMITS THAT SHE HAS BEEN RAPED, SHE
SAYS IN EFFECT ALL THAT IS NECESSARY TO SHOW THAT RAPE HAD BEEN
COMMITTED. When a woman admits that she has been raped, she says in effect all
that is necessary to show that rape had been committed. A complainant would not make
public the offense, undergo the troubles and humiliation of public trial and endure the
ordeal of testifying to all the gory details if she had not in fact been raped, for no decent
Filipina would publicly admit that she has been raped unless it is the truth.
8. ID.; ID.; ID.; BOLSTERED BY ABSENCE OF IMPROPER MOTIVE ON THE
PART OF PROSECUTION WITNESSES TO TESTIFY FALSELY AGAINST
ACCUSED. When there is no evidence to show any improper motive on the part of
the prosecution witnesses to testify falsely against an accused, the logical conclusion is
that no such improper motive existed, and their testimonies are worthy of full faith and
credit. Indeed, if an accused had really nothing to do with the crime, it is against the

natural order of events and of human nature and against the presumption of good faith
that the prosecution witness would falsely testify against the former.
9. CIVIL LAW; DAMAGES; INDEMNITY FOR RAPE RAISED TO P40,000.00.
We thus affirm the decision appealed from except as to the matter of the indemnity,
which is hereby increased from P20,000.00 to P40,000.00 pursuant to the current policy
of the Court.

DECISION

DAVIDE, JR., J :
p

The conviction of Agustin Fortes y Garra for the rape of a young girl described the trial
court as "a guileless lass of only 13 [a] sixth grade pupil, bred in a barangay of rural
atmosphere," and the denial by the trial court of his application for bail pending his
appeal from the judgment of conviction are questioned in these consolidated cases.
LexLib

In G.R. No. 90643, the accused appeals from the decision of Branch 55 of the Regional
Trial Court (RTC) at Irosin, Sorsogon, in Criminal Case No. 219. The court a quo, in its
Decision dated 18 November 1988 but promulgated on 25 January 1989, found the
accused guilty beyond reasonable doubt of rape and sentenced him to suffer the penalty
of reclusion perpetua and pay the victim the sum of P20,000.00 to answer for damages
and costs. 1
In G.R. No. 91155, the accused seeks to annul and set aside two (2) related orders of the
said trial court denying his application for bail, filed after his conviction, to secure his
provisional liberty pending the resolution of his appeal.
The records disclose these antecedents:
On 26 November 1983, Agripino Gine of Barangay Naburacan, Municipality of Matnog,
Province of Sorsogon, accompanied his 13-year old daughter, Merelyn, to the police
station of the said municipality to report a rape committed against the latter by the
accused at around 11:00 o'clock in the morning of that day. Following this, the accused
was forthwith apprehended.
Thereupon, on 5 December 1983, Agripino Gine filed on behalf of Merelyn a complaint 2
for rape against the accused before the Municipal Circuit Trial Court (MCTC) of
Matnog-Sta. Magdalena in Matnog, Sorsogon. 3 The accusatory portion thereof reads as
follows:

"That on or about 11:00 in the morning of November 26, 1983, at Barangay

Naburacan, Municipality of Matnog, Province of Sorsogon, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused with
deliberate intent and without the consent of the victim MERELYN GINE, and
by means of force and intimidation did then and there wilfully, unlawfully and
feloniously (sic) armed with a bolo threatened (sic) and dragged (sic) the victim
MERELYN GINE, and there the said accused committed the acts of rape inside
the nipa hut owned by Leobehildo (sic) Garra, to the damage and prejudice of
the undersigned offended party.
Act contrary to law." 4

Finding probable cause to exist after a preliminary examination was conducted, the
MCTC issued on 9 December 1983 an order for the arrest of the accused. 5 The bond for
the latter's temporary liberty was initially fixed at P30,000.00 but was later reduced to
P25,000.00 6 upon motion of the accused. The latter then put up the required bond; upon
its approval, the court ordered his release on 15 December 1983. 7
When the case was finally called for preliminary investigation on 5 December 1984, the
accused, through his counsel de oficio, informed the court that he was waiving his right
thereto. The court then ordered the transmittal of the records of the case to the Office of
the Provincial Fiscal of Sorsogon. 8
On 25 January 1985, the Office of the Provincial Fiscal, through 1st Assistant Provincial
Fiscal Manuel C. Genova, filed with Branch 55 of the RTC at Irosin, Sorsogon a
complaint for rape against the accused, the accusatory portion of which reads:
"That on or about the 26th day of November, 1983, in the Municipality of
Matnog, Province of Sorsogon, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused by means of force and intimidation
and with lewd design (sic), and armed with a bolo and (sic) threatened her with
harm and dragged to a hut the victim and there have (sic) carnal knowledge with
one Merelyn Gine against her will and consent, to her damage and prejudice.
CONTRARY TO LAW." 9

The case was docketed as Criminal Case No. 219.

Accused pleaded not guilty upon his arraignment on 28 February 1985. 10 The protracted
trial began on 26 June 1985 and ended nearly three (3) years later when the case was
finally submitted for decision on 22 February 1988. 11 The witnesses presented by the
prosecution were Merelyn Gine, her father Agripino and Dr. Eddie Dorotan. The
witnesses for the defense, on the other hand, were the accused himself, Leovegildo Garra
and Celso Gardon, the Barangay Captain of Naburacan, Matnog, Sorsogon.

On 25 January 1989, the trial court promulgated its decision convicting the accused of the
crime charged. 12 The dispositive portion thereof reads:
"WHEREFORE, this Court finds the accused guilty beyond reasonable doubt of
the crime of Rape and sentences him to suffer the penalty of Reclusion Perpetua
and to indemnify Merelyn Gine the sum of P20,000.00 as damages and to pay
the costs. The accused is ordered committed to the Sorsogon Provincial Jail
through the Provincial Warden or through any of his provincial guards and
eventually committed to the National Penitentiary in accordance with law.

SO ORDERED." 13

On the same day, the accused filed his notice of appeal 14 wherein he
requested that the amount of the appeal bond be fixed by the trial court. The following
day, 26 January 1989, the trial court gave due course to the appeal 15 but did not
resolve the request to fix the amount of bail. Thus, on 11 April 1989, the accused filed
an "Application for Bail on Appeal" 16 reiterating his earlier request that the bail
bond for his provisional liberty pending appeal be set. This was subsequently denied
by the trial court in its Order of 19 June 1989 on the ground that ". . . the accused has
already been found guilty beyond reasonable doubt of the offense of rape and
sentenced to Reclusion Perpetua and his appeal from the decision already approved by
the Court . . ." 17 Thereupon, on 10 August 1989, the trial court issued a Commitment
of Final Sentence turning over the person of the accused to the Director of Prisons in
Muntinglupa, Metro Manila. 18
On 25 August 1989, the accused filed a motion to reconsider the RTC's 19 June 1989
Order denying his application for bail pending appeal, 19 but the same was denied in the
Order of 6 September 1989. 20
In the meantime, the trial court, on 12 September 1989, transmitted to this Court the
records of Criminal Case No. 219. We received the same on 16 November 1989 and
docketed the appeal as G.R. No. 90643.
On 9 December 1989, the accused filed with this Court a special civil action for
certiorari to set aside the aforementioned orders of the trial court denying his application
for bail and his motion to reconsider the said denial. The petition was docketed as G.R.
No. 91155. In the Resolution of 20 December 1989, 21 this Court required the
respondents to comment on the petition. Then, on 18 June 1990, the said case was
ordered consolidated with G.R. No. 90643. 22 The records of G.R. No. 91155 do not
disclose if the respondents had actually filed the required comment.
G.R. No. 91155

We shall first resolve G.R. No. 91155. Accused assails the trial court's refusal to grant his
application for bail pending appeal on the ground that the same amounted to an undue
denial of his constitutional right to bail. He contends that before his conviction by final
judgment, he enjoys the constitutional presumption of innocence, and is therefore entitled
to bail as a matter of right.
There is no merit in the said petition.
It is clear from Section 13, Article III of the 1987 Constitution 23 and Section 3, Rule
114 of the Revised Rules of Court, as amended, 24 that:
". . . before conviction bail is either a matter of right or of discretion. It is a
matter of right when the offense charged is punishable by any penalty lower
than reclusion perpetua. To that extent the right is absolute.
xxx xxx xxx
Upon the other hand, if the offense charged is punishable by reclusion perpetua
bail becomes a matter of discretion. It shall be denied if the evidence of guilt is
strong. The court's discretion is limited to determining whether or not evidence
of guilt is strong. But once it is determined that the evidence of guilt is not
strong, bail also becomes a matter of right. . . ." 25

The clear implication, therefore, is that if an accused who is charged with a crime
punishable by reclusion perpetua is convicted by the trial court and sentenced to suffer
such a penalty, bail is neither a matter of right on the part of the accused nor of discretion
on the part of the court. In such a situation, the court would not have only determined that
the evidence of guilt is strong which would have been sufficient to deny bail even
before conviction it would have likewise ruled that the accused's guilt has been proven
beyond reasonable doubt. Bail must not then be granted to the accused during the
pendency of his appeal from the judgment of conviction. Construing Section 3, Rule 114
of the 1985 Rules on Criminal Procedure, as amended, this Court, in the en banc
Resolution of 15 October 1991 in People vs. Ricardo Cortez, 26 ruled that:
"Pursuant to the aforecited provision, an accused who is charged with a capital
offense or an offense punishable by reclusion perpetua, shall no longer be
entitled to bail as a matter of right even if he appeals the case to this Court since
his conviction clearly imports that the evidence of his guilt of the offense
charged is strong."

In the instant case, the rape for which the accused was indicted is punishable by reclusion
perpetua pursuant to Article 335 of the Revised Penal Code; he was convicted therefor
and subsequently sentenced to serve that penalty. It is thus evident that the trial court
correctly denied his application for bail during the pendency of the appeal.

G.R. No. 90643

We now turn to the accused's appeal from the judgment of conviction.
The inculpatory facts, proven by the prosecution and upon which the trial court based its
judgment of conviction, are summarized by the trial court in its decision. Finding the
same to be fully supported by the evidence adduced, We hereby adopt the said summary
as follows:
xxx xxx xxx
"(3) The evidence for the prosecution shows that in the morning of 26
November 1983, Merelyn Gine accompanied her father Agripino Gine to
Barangay Naburacan, Matnog, Sorsogon, where he was going to work in the
farm of Patrolman Nonito Galeria. Her father left her in the nipa hut of one
Leovegildo Garra so she can cook his meal for lunch. She was alone in the hut.
(4) While she was preparing to cook the meal, accused appeared from nowhere
and inserted his T-shirt inside her mouth. Accused also held her hands and tore
her pedal pant (sic). She tried to kick him but to no avail. After he was able to
remove her pedal, she was threatened with a bolo and was warned that he will
kill her if she shouted. The bolo which was presented in evidence as Exhibit C
(sic) was 23 1/2 inches long including the handle. The sharp end of the bolo was
pointed by the accused to her throat. Accused laid her down and it was in this
position when (sic) the accused had sexually abused her by inserting his penis
through her (sic) panty she was wearing which was torn and stained with her
blood (Exhibits B, B1 and B2). She suffered extreme pain and her vagina started
bleeding. She cried and wished that her father were around so that she could ask
him to kill the accused.
(5) Just as the accused consummated the rape, her father returned from the farm
to inquire whether his meal was cooked already. He called for his daughter but
she did not answer during the first call and on the second call he heard her
answer 'po' (meaning yes). Suddenly, the accused jumped out of the window
with his short pants on but leaving behind in his hurry to escape, the T-shirt
which he inserted inside the mouth of the victim and the bolo he used to
threaten her. Her father gave chase but was not able to catch up with the
accused.
(6) When her father went inside the hut, he found her in a state of shock and
(sic) was trying to get up but was swaying for she could hardly stand. It was at
this instance when his daughter narrated to him the dastardly act perpetrated
upon her by the accused.

(7) On the same day, she and her father reported the incident to the police
authorities in Matnog, Sorsogon, and an investigation was made. On that same
day, the accused was apprehended.
(8) From the police, she went to the Irosin District Hospital for medical
examination. Thereat, she was subjected to a medical examination by a certain
Dr. Tito Garrido but he did not issue her a medical certificate. So she had
another medical examination by Dr. Eddie Dorotan of the same hospital who
issued her a medical certificate which was introduced in evidence as Exhibit E
and E1.
(9) At the time she was sexually abused, Merelyn Gine was only 13 years old
(Exhibit D). She demonstrated to the Court the position in which she was raped
by the accused. She felt so ashamed after the rape and underwent so much
suffering and pain like her father, which could not be compensated with money
alone and wants justice done." 27

On the other hand, the accused capsulated his version of the incident in this manner:
"On November 26, 1983 at about 8:30 in the morning, accused Fortes on his
way to the Nipa Hut which he used as a rest house met Agripino Gine, father of
Complainant Merelyn Gine in the ricefield at Bgy. Naburacan, Matnog,
Sorsogon where they both work and cultivate their respective ricelands. In that
meeting Agripino asked permission from accused if her (sic) daughter, Merelyn,
could cook their lunch at the Nipa Hut ('Payag' in local dialect), owned by the
grandfather of accused Leovegeldo (sic) Garra. Accused who is a neighbor and
family friend of Agripino (sic) in Bgy. Camachilis where they both reside gave
his permission. Accused proceeded to the Nipa Hut owned by his grandfather
for the purpose of preparing his own lunch. When accused arrived in the Nipa
Hut, he saw Merelyn preparing their lunch.
Accused waited for his turn while Merelyn was preparing their lunch. Accused
spent his waiting time in repairing the plow (araro) which he used in the
cultivation of the riceland. At this point in time his grandfather Leovegeldo (sic)
Garra arrived. Merelyn Gine and accused who are known to each other being
neighbors and family friends exchanged pleasanties (sic) and jokes. In the
process, accused accidentally dropped the fish which he was about to cook for
lunch outside the window. Accused passed through the window which is about
half (1/2) meter from the ground to pick- up the fish.
At this juncture, Agripino (sic) arrived from the ricefield at about 11:00 in the
morning and called his daughter, Merelyn, to inquire if lunch was ready.
Merelyn answered in the negative, Agripino got angry and scolded his daughter,
Merelyn for failing to cook the lunch on time.

In the meantime, accused-appellant returned to the ricefield to pick- up his bottle

of drinking water. He returned back to the Nipa Hut at about 12:00 noon and he
saw inside the nipa hut, the following people: Agripino Gine, Joel, Mondoy,
sons of Agripino and Dick Galeria son of the owner of the riceland being
cultivated by Agripino Gine eating their lunch." 28

To bolster his defense, the accused presented two (2) other witnesses, namely Leovegildo
Garra, his grandfather, and Celso Gardon, the Barangay Captain of Naburacan, Matnog.
The trial court accorded full faith and credit to the prosecution's version; it was convinced
beyond reasonable doubt that Merelyn fell victim to a sexual assault on the morning of 26
November 1983 which was perpetrated through force and intimidation. On t hat same day,
both she and her father immediately reported the incident to the police authorities. She
then submitted to a medical examination.
There seems to be no logical reason for her or her father to concoct the charge of rape
against the accused. During her testimony, Merelyn "showed an unmistakable
determination to exact justice, from the man who had forcibly violated her and caused her
early loss of virginity." She "has no motive other than to bring to justice the culprit who
had grievously wronged her." 29
In his Brief, the accused, hereinafter referred to as the Appellant, urges this Court to
reverse his conviction and acquit him on the ground that the trial court erred in:
"I . . . GIVING UNDUE WEIGHT TO THE UNCORROBORATED
TESTIMONY OF PRIVATE COMPLAINANT.
II . . . NOT GIVING DUE WEIGHT TO THE MEDICAL CERTIFICATE
SHOWING THAT PRIVATE COMPLAINANT WAS NOT SEXUALLY
ABUSED ON NOVEMBER 26, 1983.
III . . . NOT GIVING DUE WEIGHT TO THE TESTIMONY OF THE BGY.
CAPTAIN WHERE THE ALLEGED CRIME WAS COMMITTED.
IV . . . NOT ACQUITTING THE ACCUSED-APPELLANT BECAUSE HIS
GUILT HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT." 30

For his first assigned error, the appellant contends that the rape for which he was charged
and subsequently convicted was not established by clear, positive and convincing
evidence. He claims that the complainant's statement that she had her panty on while she
was being raped is incredible, as "[E]experience will show that it is physically
[I]impossible to perform and execute the act of sexual intercourse to a woman with her
panty on." 31

In support of the second assigned error, he asserts that the medical examination
conducted by Dr. Eddie Dorotan, a government physician assigned to the Irosin District
Hospital, which revealed that "there was no bleeding" and "no spermatozoa" 32 present,
conclusively proved that the accused did not commit the crime of rape. The latter further
contends that the trial court erred in believing the complainant's declaration that her panty
was stained with her blood because, as he points out, there was no "corroborated (sic)
evidence to prove that indeed the alleged blood stain is indeed the blood coming from the
vagina of complainant." 33
As to his third ascribed error, the appellant faults the trial court for not giving due weight
to the testimony of the Barangay Captain of the locality wherein the rape was committed.
He further contends that since Barangay Captain Celso Gardon testified that he (Gardon)
passed by the nipa hut and saw the complainant and her father Agripino together with
other persons at around lunch time the time of the commission of the alleged rape
Agripino should have immediately reported the sexual assault to him as he is the
barangay captain.
LL jur

The appellant additionally assails the credibility of Agripino Gine, claiming that the latter
failed to corroborate his daughter's story that there was blood on the spot where she was
purportedly raped and that her panty and pants were torn by the appellant. Moreover, it is
averred that Agripino did not even describe to the court his daughter's attire when he
found her in the nipa hut. Appellant then faults the trial court for concluding that he had
presented the defense of alibi when the records reveal that no such defense was offered
by him.
LLpr

Appellant's last assigned error is but a summation of the previous three (3) errors; he
concludes that the totality of the prosecution's evidence creates sufficient doubt as to his
guilt. Hence, he concludes that he is entitled to an acquittal.
Our careful review of the records and painstaking evaluation of the evidence adduced by
the parties yield nothing to support the assigned errors, and lead Us to the inevitable
conclusion that the culpability of the appellant has been proven beyond reasonable doubt.
This appeal must therefore be dismissed for palpable lack of merit.
The victim narrated her ordeal in a simple, yet candid and straightforward manner as
evidenced by the transcripts of her testimony, the pertinent portions of which read:
"FISCAL GENOVA
What happened while you were getting the kettle preparatory to cooking
your meal?
A Suddenly, this Agustin Fortes appeared from nowhere and tried to embrace
me.

Q In what part of your body?

A He tried to insert his T-shirt in my mouth.
xxx xxx xxx
Q What happened after you were held and a piece of T-shirt put (sic) inside
your mouth?
A He had sexual intercourse with me.
Q Before he had sexual intercourse with you, what did he do?
A He torn (sic) my panty and my pedal.
Q Do you mean to tell this Court that you were dressed during that time?
A Yes, sir.
Q And how did Agustin Fortes tried (sic) to torn (sic) your pedal and panty?
A When he was trying to hold my hands, he was pulling my panty at the same
time tearing my pedal and I was kicking him.
Q I am showing to you clothes from the Police Station labeled 'Criminal Case
No. 3226' which I presumed is the criminal case number connection to
what you just stated. This is from the Police Station of Matnog.
A This is the pedal I was wearing at the time.
Q When you were wearing this, was it already torn?
A Not yet.
Q How about this panty of yours, is this already in this kind (sic)?
A No, sir.
Q What is this dark stain here . . . which you could see?
A That is blood.
Q Whose blood?
A Mine.

Q How was this torn? The pedal . . . no the panty?

A He was the one who torn (sic) my panty.
Q And in the process this was removed from your body?
A Yes sir.
Q What happened now after this pedal also was removed?
A I was able to shout but he warned me that he is going to kill me.
Q When he stated that he was going to kill you, what was in his possession?
A A bolo.
Q I am showing to you a bolo wrapped in a coupon bond, 23 1/2 inches labelled
'People of the Philippines versus Agustin Fortes November 26, 1983.'
What is the relation of this bolo to the bolo that was used?
A This is the bolo that was used.
xxx xxx xxx
Q Now, how was this bolo being used in your body?
A He was trying to thrust it below my neck.
Q With what hand was the accused using this?
A Left.
Q When you say it was being poked in your body, which part of the bolo?
A The sharp end.
Q On what part of your body was it being poked?
A On my neck.
xxx xxx xxx
Q Now, you said you were sexually abused by Agustin Fortes, how was this
sexual abuse made in (sic) your body?

A By holding my hands and laying me down on the floor and he lied (sic) down
on top of me . . . and then he performed the sexual intercourse.
Q When you said 'ikiti' (sexual intercourse), my question is, did the penis of the
accused penetrate your vagina?
A Yes sir.
Q And while he was on that act of sexual intercourse with his penis inside your
vagina, what happened then?
A I felt pain. And my vagina started bleeding.
Q And what happened next?
A And then I cried and I remembered that if only my father is there I will ask
him to kill the accused.
Q Did your father arrive?
A Yes sir and Agustin Fortes jumped out of the window." 34

The jumping of the appellant out of the window was witnessed by Merelyn's father
whose testimony thereon was further bolstered during cross-examination:
"ATTY. ZULUETA:
xxx xxx xxx
Q When you returned to the hut of Leovegildo Garra, what happened?
A When I was about in a distance of (sic) three meters from the house of
Leovegildo (sic) Garra, I called for my daughter. My first call, there was
no answer, and on my second call, there was an answer 'po', then,
suddenly, somebody jumped out of the window in the person of Agustin
Fortes.
Q When you saw the alleged accused in this case jumped (sic) out of the
window of the hut of Leovegildo Garra, what did you do?
A Instead of trying to run after Agustin Fortes, I felt apprehensive, and so, I
went to the succor of my daughter which (sic) was speechless.
xxx xxx xxx
Q After you went to the house of Leovegildo Garra, what happened there?

A That (sic) my daughter was raped.

Q How come that you knew that your daughter was raped?
A Because my daughter herself told me." 35

Agripino's daughter was in a sitting position and could hardly stand when he saw her. 36
He thus decided to report the incident to the police authorities immediately. Thus, both he
and Merelyn proceeded to the police station where they were consequently interrogated.
Thereafter, the appellant was apprehended. 37
From Merelyn's testimony, it is evident that the appellant had carnal knowledge of her
through force and intimidation. He gagged her first with a t-shirt and then forced her into
the sexual act by threatening to kill her with his bolo. Her testimony on this point was
even further strengthened and enhanced when, during cross-examination, counsel for the
appellant gambled on the fate of the latter by asking Merelyn to show how the rape was
committed. Merelyn then demonstrated how the appellant gripped her hands and pointed
the bolt to her neck. 38

As to the alleged impossibility of the commission of the sexual act because of the fact
that Merelyn's panty was not actually removed, the appellant seems to have forgotten that
it was he, through the cross-examination of his lawyer, who elicited from Merelyn the
declaration that his penis was inserted through a hole in the said panty. Thus:
"ATTY. ZULUETA:
xxx xxx xxx
Q You have said that the accused had forcefully made sexual intercourse with
you. How come that (sic) the penis penetrated your vagina?
A When his right hand was holding my hands he unzipped his pants and put out
his penis and inserted his penis to (sic) my vagina.
Q When the accused conducted sexual intercourse with you, do (sic) you have
your panty?
A Yes sir. There is a hole in my panty where he inserted his penis to (sic) my
vagina.
Q While the accused was having sexual intercourse with you, what happened
next?

A My vagina was bleeding because it was very painful." 39

Neither may the medical certificate (Exhibit "E") issued by Dr. Eddie Dorotan be of any
help to the appellant. The said certificate does not, contrary to the latter's claim, prove
that Merelyn did not have sexual intercourse because of the findings therein reported that
there was no bleeding, the vagina admitted two (2) fingers and the vaginal fluid contained
no spermatozoa. Again, the appellant conveniently forgot that Dr. Dorotan examined
Merelyn only on 28 November 1983 at 9:45 o'clock in the morning, 40 or two (2) days
after the incident. By that time, the bleeding, which had taken place earlier, may no
longer have been noticeable and the spermatozoa may no longer have been present. It is
settled that the absence of spermatozoa does not disprove the consummation of rape. The
important consideration is not the emission of semen, but the penetration by the male
organ. 41 It must likewise be emphasized that Dr. Tito Garrido of the District Hospital of
Irosin, the physician who examined Merelyn in the afternoon of 26 November 1983, did
not issue a medical certificate, although he promised to deliver one to Matnog. It has
been shown that Dr. Garrido reneged on this pledge. Furthermore, during trial,
complainant's father claimed that he had later learned that Dr. Garrido is related to the
appellant. 42 This assertion was not even rebutted by the defense.
Moving on, this Court is not persuaded by the appellant's contention that if Merelyn had
in fact been raped, then either she or her father should have first informed the barangay
captain about the incident. Suffice it to say, reporting the commission of a crime to a
barangay captain is not a prerequisite for the formal institution of criminal charges. Even
under P.D. No. 1508, the governing law then, rape was not among the crimes which
required referral to the Barangay Lupon for the purpose of seeking an amicable
settlement. As a matter of fact, it was among those excepted from such a referral
considering that the penalty impossible is more than thirty (30) days imprisonment. 43 If
the complainant and her father seemed to have "by-passed" the barangay captain and
instead reported the incident directly to the police, it is quite obvious that they wanted
immediate action to ensure the appellant's arrest and forestall any possible escape on his
part.
LexL ib

Finally, the appellant's contention that the trial court erroneously characterized his
defense as one of alibi, is without any basis. The trial court actually characterized the
appellant's defense as one of "alibi and absolute denial. " 44 Besides, the "alibi" aspect
thereof is not entirely inaccurate for in fact, as shown by his own story, the appellant
went back to the ricefield to retrieve his bottle of drinking water before returning to the
nipa hut at around 12:00 o'clock noon. In effect, he suggested that he was not at the scene
of the crime at the time the sexual assault was committed.
All told, We have in this case a 13-year old barrio lass who: immediately
revealed the commission of the heinous crime to her father just as the appellant
consummated the act and jumped out of the window to escape; forthwith reported it to

the police authorities who, after having heard her story, apprehended the appellant;
thereafter, in the afternoon of the same day, voluntarily submitted to a medical
examination of her private parts; submitted again to a second medical examination of
her private parts on 28 November 1983; underwent the ordeal of a public trial; and,
upon demand by the appellant's counsel, even demonstrated as part of the crossexamination how she was raped. We need no further evidence to convince Us that
indeed, the complainant was raped by the appellant. We have repeatedly held that
when a woman admits that she has been raped, she says in effect all that is necessary
to show that rape had been committed. A complainant would not make public the
offense, undergo the troubles and humiliation of public trial and endure the ordeal of
testifying to all the glory details if she had not in fact been raped, for no decent
Filipina would publicly admit that she has been raped unless it is the truth. 45
Moreover, the appellant has not shown that the complainant and her father were
actuated by any ulterior motives which could have induced them to falsely implicate
him in the commission of the crime. It is settled that when there is no evidence to
show any improper motive on the part of the prosecution witnesses to testify falsely
against an accused, the logical conclusion is that no such improper motive existed,
and their testimonies are worthy of full faith and credit. 46 Indeed, if an accused had
really nothing to do with the crime, it is against the natural order of events and of
human nature and against the presumption of good faith that the prosecution witness
would falsely testify against the former. 47
We thus affirm the decision appealed from except as to the matter of the indemnity,
which is hereby increased from P20,000.00 to P40,000.00 pursuant to the current policy
of the Court.
WHEREFORE, judgment is hereby rendered:
1) In G.R. No. 90643, AFFIRMING the appealed Decision in Criminal Case
No. 219 of Branch 55 of the Regional Trial Court, Fifth Judicial Region, at
Irosin, Sorsogon, with the modification of the indemnity which is increased
from P20,000.00 to P40,000.00; and
2) In G.R. No. 91155, DENYING, for lack of merit, the petition.

Costs against appellant Agustin Fortes y Garra in both cases.

SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ ., concur.
|||

(People v. Fortes y Garra, G.R. No. 90643, 91155, [June 25, 1993])

EN BANC
[G.R. No. 93177. August 2, 1991.]
BGEN. JOSE COMENDADOR, BGEN. MARIELO BLANDO,
CAPT. DANILO PIZARRO, CAPT. MANUEL ISON, COL.
LUISITO SANCHEZ, LTC. ROMELINO GOJO, LTC. ARSENIO
TECSON, LTC. RAFAEL G ALVEZ, LTC. TIBURCIO
FUSILLERO, LTC. ERICSON AURELIO, LTC. JACINTO LIGOT,
LTC. FRANKLIN BRAWNER, MAJ. ALFREDO OLIVEROS,
MAJ. CESAR DE LA PEA, MAJ. LEUVINO VALENCIA, CAPT.
FLORENCIO FLORES, CAPT. JAIME JUNIO, CAPT. DANILO
LIM, CAPT. ELMER AMON, CAPT. VERGEL NACINO, and LT.
JOEY SARROZA, petitioners, vs. GEN. RENATO S. DE VILLA,
CHIEF OF STAFF, AFP, THE PTI INVESTIG ATING PANEL
COMPOSED OF: COL. MANUEL S. MENDIOLA, COL. VIRTUD
NORBERTO L. DAG ZA, MAJ. FELIX V. BALDONADO and MAJ.
ESTELITO L. PORNEA, and G ENERAL COURT-MARTIAL NO.
14 COMPOSED OF: BGEN. DEMETRIO CAMUA, COL.
HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL.
ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A.
VENTURA and CAPT. FRANCISCO T. MALLILLIN, respondents.
[G.R. No. 95020. August 2, 1991.]
BGEN. DEMETRIO CAMUA, COL. HERMINIO A. MENDOZA,
COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY
FLORENDO, COL. DIONY A. VENTURA, and CAPT.
FRANCISCO T. MALLILLIN, petitioners, vs. HON. MAXIMIANO
C. ASUNCION, Presiding Judge, Branch 104, REGIONAL TRIAL
COURT, Q.C., LTC. JACINTO LIGOT, PA., respondents.
[G.R. No. 96948. August 2, 1991.]
BGEN. JOSE COMENDADOR, BGEN. MARCELO BLANDO,
CAPT. DANILO PIZARRO PN, CAPT. MANUEL ISON PN, LTC.
ROMELINO GOJO PN (M), LTC. ARSENIO TECSON PA, LTC.
RAFAEL G ALVEZ PA, LTC. TIBURCIO FUSILLERO PA, LTC.
ERICSON AURELIO PA, LTC. JACINTO LIGOT, PA, LTC.
FRANKLIN BRAWNER PA, MAJ. ALFREDO OLIVEROS PA,
MAJ. CESAR DE LA PEA PN (M): MAJ. LEUVINO VALENCIA

PA, CAPT. FLORENCIO FLORES PA, CAPT. JAIME JUNIO PA,

CAPT. DANILO LIM PA CAPT. ELMER AMON PAF, CAPT.
VERGEL NACINO, and LT. JOEY SARROZA, petitioners, vs.
BGEN. DEMETRIO CAMUA, COL. HERMINIO A. MENDOZA,
COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY
FLORENDO, COL. DIONY A. VENTURA, and CAPT.
FRANCISCO T. MALLILLIN, PRESIDENT AND MEMBERS OF
GENERAL COURT-MARTIAL NO. 14, respondents.
[G.R. No. 97454. August 2, 1991.]
AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY
CHIEF OF STAFF MAJOR GEN. ALEXANDER AG UIRRE, PNP
DIRECTOR GENERAL MAJOR GEN. CESAR NAZARENO and
LT. COL. ALBERTO OLARIO, Commanding Officer of the
PNP/INP Detention Center/Jail, petitioners, vs. HON. ANTONIO P.
SOLANO, Presiding Judge, Regional Trial Court, Quezon City,
Branch 86, CAPTAIN REYNALDO S. RAFAEL. 1LT. SERVANDO
A. BAOANAN PN(M), 1LT. WILFREDO JIMENEZ PAF, 1LT.
ATANACIO T. MACALAN, JR PM(M), 2LT. ELISEO T. RASCO
PC, 2LT. JONAS CALLEJA PC, 2LT. JAIRUS JS. GELVEZON III
PM M), 2LT. JOSELITO CABREROS PM(M), 2LT. MEMEL
ROJAS PN(M) and 2LT. HERMINIO L. CANTACO PC,
respondents.
Armando M. Marcelo and Rainier L. Madrid for petitioners Luisito Sanchez, Tiburcio
Fusillero, Ericson Aurelio, Levino Valencia, Danilo Amon, Vergel Nacino, Florencio
Flores, Benigno Junio and Joey Sarroza.
Manuel Q. Malvar for Rafael Galvez and Danny Lim.
Manuel E. Valenzuela for Arsenio Tecson.
Mariano R. Santiago for Alfredo Oliveros.
Ricardo J.M. Rivera for Manuel Ison.
Castillo, Laman, Tan and Pantaleon for Danilo Pizarro.
Alfredo Lazaro for Romelino Gojo.
Manuel A. Barcelona, Jr. for Jose Comendador.

Jonathan B.S. Rebong and Efren C. Carag for Marcelo Blando.

Pablito V. Sanidad for Franklin Brawner and Ericson Aurelio.
Efren C. Moncupa for A.L. Tecson.
M.M. Lazaro & Associates for respondents Ligot and Ison.
Baldomero S.P. Gatbonton, Jr. for Jacinto Ligot.
Salvador B. Britanico for Cesar de la Pea.
Gilbert R.T. Reyes for Danilo Pizarro.
Ponce Enrile, Cayetano, Reyes & Manalastas for petitioners in G.R. No. 93177.
The Solicitor General for respondents.

DECISION

CRUZ, J :
p

These four cases have been consolidated because they involve practically the same
parties and related issues arising from the same incident.
The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos.
95020 and 97454 are officers of the Armed Forces of the Philippines facing prosecution
for their alleged participation in the failed coup d'etat that took place on December 1 to 9,
1989.
The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96
(Conduct Unbecoming an Officer and a Gentleman) and AW 94 (Various Crimes) in
relation to Article 248 of the Revised Penal Code (Murder).
In G.R. No. 93177, which is a petition for certiorari, prohibition and mandamus, they are
questioning the conduct of the Pre-Trial Investigation (PTI) Panel constituted to
investigate the charges against them and the creation of the General Court Martial (GCM)
convened to try them.

In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14, seek
certiorari against its ruling denying them the right to peremptory challenge as granted by
Article 18 of Com. Act No. 408.
In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of
Quezon City are assailed on certiorari on the ground that he has no jurisdiction over
GCM No. 14 and no authority either to set aside its ruling denying bail to the private
respondents.
In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial
Court of Quezon City in a petition for habeas corpus directing the release of the private
respondents. Jurisdictional objections are likewise raised as i n G.R. No. 95020.
I
Before the charges were referred to GCM No. 14, a Pre-Trial Investigation (PTI) Panel
had been constituted pursuant to Office Order No. 16 dated January 14, 1990, to
investigate the petitioners in G.R. Nos. 93177 and 96948.
The PTI Panel issued a uniform subpoena dated January 30, 1990, individually addressed
to the petitioners, to wit:
You are hereby directed to appear in person before the undersigned Pre- Trial
Investigating Officers on 12 Feb 90 9:00 a.m. at Kiangan Hall, Camp Crame
Quezon City, then and there to submit your counter-affidavit and the affidavits
of your witnesses, if any, in the pre-trial investigation of the charge/charges
against you for viol of AWs ________. DO NOT SUBMIT A MOTION TO
DISMISS.
Failure to submit the aforementioned counter-affidavits on the date above
specified shall be deemed a waiver of your right to submit controverting
evidence.

On the same date, the petitioners acknowledged receipt of a copy of the charge sheet,
sworn statements of witnesses, and death and medical certificates of victims of the
rebellion.
At the first scheduled hearing, the petitioners challenged the proceedings on various
grounds, prompting the PTI Panel to grant them 10 days within which to file their
objections in writing. This was done through a Motion for Summary Dismissal dated
February 21, 1990.

In a resolution dated February 27, 1990, the PTI Panel denied the motion and gave the
petitioners 5 days from notice to submit their respective counter-affidavits and the
affidavits of their witnesses.
On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing
denial and the PTI Panel gave them 7 days within which to reduce their motion to
writing. This was done on March 14, 1990.
The petitioners now claim that there was no pre-trial investigation of the charges as
mandated by Article of War 71, which provides:
ARTICLE 71. Charges; Action upon. Charges and specifications must be
signed by a person subject to military law, and under the oath either that he has
personal knowledge of, or has investigated, the matters set forth therein and that
the same are true in fact, to the best of his knowledge and belief.
No charge will be referred to a general court-martial for trial until after a
thorough and impartial investigation thereof shall have been made. This
investigation will include inquiries as to the truth of the matter set forth in said
charges, form of charges, and what disposition of the case should be made in
the interest of justice and discipline. At such investigation full opportunity shall
be given to the accused to cross-examine witnesses against him if they are
available and to present anything he may desire in his own behalf either in
defense or mitigation, and the investigating officer shall examine available
witnesses requested by the accused. If the charges are forwarded after such
investigation, they shall be accompanied by a statement of the substance of the
testimony taken on both sides. (Emphasis supplied.)

They also allege that the initial hearing of the charges consisted merely of a roll call and
that no prosecution witnesses were presented to reaffirm their affidavits. While the
motion for summary dismissal was denied, the motion for reconsideration remains
unresolved to date and they have not been able to submit their counter-affidavits.
At the hearing of May 15, 1990, the petitioners in G.R. No. 96948 manifested that they
were exercising their right to raise peremptory challenges against the president and
members of GCM No. 14. They invoked Article 18 of Com. Act No. 408 for this
purpose. GCM No. 14 ruled, however, that peremptory challenges had been discontinued
under P.D. No. 39.
In G.R. No. 95020, Ltc. Jacinto Ligot applied for bail on June 5, 1990, but the application
was denied by GCM No. 14. He thereupon filed with the Regional Trial Court of Quezon
City a petition for certiorari and mandamus with prayer for provisional liberty and a writ
of preliminary injunction. After considering the petition and the answer thereto filed by

the president and members of GCM No. 14, Judge Maximiano C. Asuncion issued an
order granting provisional liberty to Ligot.
On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his
release and to declare in contempt the commanding officer of the PC/INP Jail for
disobeying the said order. He later also complained that Generals De Villa and Aguirre
had refused to release him "pending final resolution of the appeal to be taken" to this
Court.
After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as
well as of intervenors Ltc. Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo
Oliveros, and later of additional intervenors Ltc. Romelino Gojo and Capt. Manuel Ison.

On August 22, 1990, the trial court rendered judgment inter alia.
(a) Declaring, that Section 13, Article III of the Constitution granting the right
to bail to all persons with the defined exception is applicable and covers all
military men facing court- martial proceedings. Accordingly, the assailed orders
of General Court-Martial No. 14 denying bail to petitioner and intervenors on
the mistaken assumption that bail does not apply to military men facing courtmartial proceedings on the ground that there is no precedent, are hereby set
aside and declared null and void. Respondent General Court-Martial No. 14 is
hereby directed to conduct proceedings on the applications of bail of the
petitioner, intervenors and which may as well include other persons facing
charges before General Court-Martial No. 14
Pending the proceedings on the applications for bail before General CourtMartial No. 14, this Court reiterates its orders of release on the provisional
liberty of petitioner Jacinto Ligot as well as intervenors Franklin Brawner and
Arsenio Tecson.

On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a
petition for habeas corpus on the ground that they were being detained in Camp Crame
without charges. The petition was referred to the Regional Trial Court of Quezon City,
where it was raffled to respondent Judge Antonio P. Solano. Finding after hearing that no
formal charges had been filed against the petitioners after more than a year after their
arrest, the trial court ordered their release.
II
The Court has examined the records of this case and rules as follows.

It appears that the petitioners in G.R. Nos. 93177 and 96948 were given several
opportunities to present their side at the pre-trial investigation, first at the scheduled
hearing of February 12, 1990, and then again after the denial of their motion of February
21, 1990, when they were given until March 7, 1990, to submit their counter-affidavits.
On that date, they filed instead a verbal motion for reconsideration which they were again
asked to submit in writing. This they did on March 13, 1990. The motion was in effect
denied when the PTI Panel resolved to recommend that the charges be referred to the
General Court Martial for trial.
The said petitioners cannot now claim they have been denied due process because the
investigation was resolved against them owing to their own failure to submit their
counter-affidavits. They had been expressly warned in the subpoena sent them that
"failure to submit the aforementioned counter-affidavits on the date above specified shall
be deemed a waiver of (their) right to submit controverting evidence." They chose not to
heed the warning. As their motions appeared to be dilatory, the PTI Panel was justified in
referring the charges to GCM No. 14 without waiting for the petitioners to submit their
defense.
Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is
not availed of, it is deemed waived or forfeited without violation of the Bill of Rights.
There was in our view substantial compliance with Article of War 71 by the PTI Panel.
Moreover, it is now settled that "even a failure to conduct a pre-trial investigation does
not deprive a general court-martial of jurisdiction." We so held in Arula v. Espino, 1 thus:
xxx xxx xxx
But even a failure to conduct a pre-trial investigation does not deprive a general
court- martial of jurisdiction.
The better accepted concept of pre-trial investigation is that it is directory, not
mandatory, and in no way affects the jurisdiction of a court- martial. In
Humphrey v. Smith, 336 U.S. 695, 93 L ed 986 (1949), the Court said:
"We do not think that the pre-trial investigation procedure by Article 70
(The Philippine counterpart is article of war 71, Commonwealth Act
408) can properly be construed as an indispensable pre-requisite to the
exercise of Army general court martial jurisdiction. The Article does
serve important functions in the administration of court- martial
procedures and does provide safeguards to an accused. Its language is
clearly such that a defendant could object to trial in the absence of the
required investigation. In that event the court- martial could itself
postpone trial pending the investigation. And the military reviewing
authorities could consider the same contention, reversing a court- martial
conviction where failure to comply with Article 70 has substantially

injured an accused. But we are not persuaded that Congress intended to

make otherwise valid court- martial judgments wholly void because pretrial investigations fall short of the standards prescribed by Article 70.
That Congress has not required analogous pre-trial procedure for Navy
court- martial is an indication that the investigatory plan was not
intended to be exalted to the jurisdictional level.
xxx xxx xxx
Shortly after enactment of Article 70 in 1920 the Judge Advocate
General of the Army did hold that where there had been no pre-trial
investigation, court-martial proceedings were void ab initio. But this
holding has been expressly repudiated in later holdings of the Judge
Advocate General. This later interpretation has been that the pre-trial
requirements of Article 70 are directory, not mandatory, and in no way
effect the jurisdiction of a court- martial. The War Department's
interpretation was pointedly called to the attention of Congress in 1947
after which Congress amended Article 70 but left unchanged the
language here under consideration."
A trial before a general court- martial convened without any pretrial
investigation under article of war 71 would of course be altogether irregular; but
the court- martial might nevertheless have jurisdiction. Significantly, this rule is
similar to the one obtaining in criminal procedure in the civil courts to the effect
that absence of preliminary investigation does not go into the jurisdiction of the
court but merely to the regularity of the proceedings.

As to what law should govern the conduct of the preliminary investigation, that issue was
resolved more than two years ago in Kapunan v. De Villa, 2 where we declared:
The Court finds that, contrary to the contention of petitioners, there was
substantial compliance with the requirements of law as provided in the Articles
of War and P.D. No. 77, as amended by P.D. No. 911. The amended charge
sheets, charging petitioners and their co-respondents with mutiny and conduct
unbecoming an officer, were signed by Maj. Antonio Ruiz, a person subject to
military law, after he had investigated the matter through an evaluation of the
pertinent records, including the reports of respondent AFP Board of Officers,
and was convinced of the truth of the testimonies on record. The charge sheets
were sworn to by Maj. Ruiz, the "accuser," in accordance with and in the
manner provided under Art. 71 of the Articles of War. Considering that P.D.
No. 77, as amended by P.D. No. 911, is only of suppletory application, the fact
that the charge sheets were not certified in the manner provided under said
decrees, i.e., that the officer administering the oath has personally examined the
affiant and that he is satisfied that they voluntarily executed and understood his
affidavit, does not invalidate said charge sheets. Thereafter, a "pretrial
investigation" was conducted by respondent Maj. Baldonado, wherein, pursuant

to P.D. No. 77, as amended by P.D. No. 911, petitioners were subpoenaed and
required to file their counter-affidavit. However, instead of doing so, they filed
an untitled pleading seeking the dismissal of the charges against them. That
petitioners were not able to confront the witnesses against them was their own
doing, for they never even asked Maj. Baldonado to subpoena said witnesses so
that they may be made to answer clarificatory questions in accordance with P.D.
No. 77, as amended by P.D. No. 911.

The petitioners also allege that GCM No. 14 has not been constituted in accordance with
Article 8 of the Articles of War because General Order No. M-6, which supposedly
convened the body, was not signed by Gen. Renato de Villa as Chief of Staff.
Article of War No. 8 reads:
ARTICLE 8. General Courts-Martial. The President of the Philippines, the
Chief of Staff of the Armed Forces of the Philippines, the Chief of Constabulary
and, when empowered by the President, the commanding officer of a major
command or task force, the commanding officer of a division, the commanding
officer of a military area, the superintendent of the Military Academy, the
commanding officer of a separate brigade or body of troops may appoint
general courts- martial; but when any such commander is the accuser or the
prosecutor of the person or persons to be tried, the court shall be appointed by
superior competent authority . . .

While it is true that General Order No. M-6 was not signed by Gen. De Villa, there is no
doubt that he authorized it because the order itself said it was issued "By Command of
General De Villa" and it has not been shown to be spurious. As observed by the Solicitor
General, the Summary Disposition Form showed that Gen. De Villa, as Chief of Staff,
AFP, actually constituted GCM No. 14 and appointed its president and members. It is
significant that General De Villa has not disauthorized or revoked or in any way
disowned the said order, as he would certainly have done if his authority had been
improperly invoked. On the contrary, as the principal respondent in G.R. No. 93177, he
sustained General Order No. M-6 in the Comment filed for him and the other respondents
by the Solicitor General.
Coming now to the right to peremptory challenge, we note that this was originally
provided for under Article 18 of Com. Act No. 408 (Articles of War), as amended by
Rep. Act No. 242, on June 12, 1948, to wit:
ARTICLE 18. Challenges. Members of general or special courts- martial may
be challenged by the accused or the trial judge advocate for cause stated to the
court. The court shall determine the relevancy and validity thereof, and shall not
receive a challenge to more than one member at a time. Challenges by the trial
judge advocate shall ordinarily be presented and decided before those by the

accused are offered. Each side shall be entitled to the peremptory challenge, but
the law member of the court shall not be challenged except for cause.

The history of peremptory challenge was traced in Martelino v. Alejandro, 3 thus:

In the early formative years of the infant Philippine Army, after the passage in
1935 of Commonwealth Act No. 1 (otherwise known as the National Defense
Act), except for a handful of Philippine Scout officers and graduates of the
United States military and naval academies who were on duty with the
Philippine Army, there was a complete dearth of officers learned in military
law, this aside from the fact that the officer corps of the developing army was
numerically inadequate for the demands of the strictly military aspects of the
national defense program. Because of these considerations it was then felt that
peremptory challenges should not in the meanwhile be permitted and that only
challenges for cause, in any number, would be allowed. Thus Article 18 of the
Articles of War (Commonwealth Act No. 408), as worded on September 14,
1938, the date of the approval of the Act, made no mention or reference to any
peremptory challenge by either the trial judge advocate of a court-martial or by
the accused. After December 17, 1958, when the Manual for Courts-Martial of
the Philippine Army became effective, the Judge Advocate General's Service of
the Philippine Army conducted a continuing and intensive program of training
and education in military law, encompassing the length and breadth of the
Philippines. This program was pursued until the outbreak of World War II in the
Pacific on December 7, 1941. After the formal surrender of Japan to the allies in
1945, the officer corps of the Armed Forces of the Philippines had expanded to
a very large number, and a great many of the officers had been indoctrinated in
military law. It was in these environmental circumstances that Article of War 18
was amended on June 12, 1948 to entitle "each side" to one peremptory
challenge, with the sole proviso that "the law member of court shall not be
challenged except for cause."

On September 27, 1972, President Marcos issued General Order No. 8, empowering the
Chief of Staff of the Armed Forces to create military tribunals "to try and decide cases of
military personnel and such other cases as may be referred to them."
On November 7, 1972, he promulgated P.D. No. 39 (Governing the Creation,
Composition, Jurisdiction, Procedure, and other matters relevant to Military Tribunals).
This decree disallowed the peremptory challenge, thus:
No peremptory challenge shall be allowed. Challenges for cause may be
entertained to insure impartiality and good faith. Challenges shall immediately
be heard and determined by a majority of the members excluding the challenged
member. A tie vote does not disqualify the challenged member. A successfully
challenged member shall be immediately replaced.

On June 11, 1978, President Marcos promulgated P.D. No. 1498, or the National Security
Code, which was a compilation and codification of decrees, general orders, LOI and
policies intended "to meet the continuing threats to the existence, security and stability of
the State." The modified rule on challenges under P.D. No. 39 was embodied in this
decree.
On January 17, 1981, President Marcos issued Proc. No. 2045 proclaiming the
termination of the state of martial law throughout the Philippines. The proclamation
revoked General Order No. 8 and declared the dissolution of the military tribunals created
pursuant thereto upon final determination of the cases pending therein.
P.D. No. 39 was issued to implement General Order No. 8 and the other general orders
mentioned therein. With the termination of martial law and the dissolution of the military
tribunals created thereunder, the reason for the existence of P.D. No. 39 ceased
automatically.
It is a basic canon of statutory construction that when the reason of the law ceases, the
law itself ceases. Cessante ratione legis, cessat ipsa lex. This principle is also expressed
in the maxim ratio legis est anima: the reason of law is its soul.
Applying these rules, we hold that the withdrawal of the right to peremptory challenge in
P.D. No. 39 became ineffective when the apparatus of martial law was dismantled with
the issuance of Proclamation No. 2045. As a result, the old rule embodied in Article 18 of
Com. Act No. 408 was automatically revived and now again allows the right to
peremptory challenge.
We do not agree with the respondents in G.R. No. 96948 that the right to peremptory
challenge remains withdrawn under P.D. No. 39. To repeat for emphasis, this decree was
itself withdrawn when martial law was lifted on January 17, 1981. Indeed, even if not so
withdrawn, it could still be considered no longer operative, having been cast out under
the new dispensation as, in the words of the Freedom Constitution, one of the "iniquitous
vestiges of the previous regime."
The military tribunal was one of the most oppressive instruments of martial law. It is
curious that the present government should invoke the rules of that discredited body to
justify its action against the accused officers.
The Court realizes that the recognition of the right to peremptory challenge may be
exploited by a respondent in a court-martial trial to delay the proceedings and defer his
deserved punishment. It is hoped that the accused officers in the cases at bar will not be
so motivated. At any rate, the wisdom of Com. Act No. 408, in the light of present
circumstances, is a matter addressed to the law-makers and not to this Court. The

judiciary can only interpret and apply the laws without regard to its own misgivings on
their adverse effects. This is a problem only the political departments can resolve.
The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for
certiorari and mandamus and the petition for habeas corpus filed by the private
respondents with the Regional Trial Courts of Quezon City. It is argued that since the
private respondents are officers of the Armed Forces accused of violations of the Articles
of War, the respondent courts have no authority to order their release and otherwise
interfere with the court-martial proceedings.
The petitioners further contend that under Sec. 9(3) of BP 129, the Court of Appeals is
vested with "exclusive appellate jurisdiction over all final judgments, decisions,
resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies,
instrumentalities, boards or commissions." Rather irrelevantly, the petitioners also cite
the case of Yang v. Court of Appeals, 4 where this Court held that "appeals from the
Professional Regulation Commission are now exclusively cognizable by the Court of
Appeals."
It should be noted that the aforecited provision and the case cited refer to ordinary
appeals and not to the remedies employed by the accused officers before the respondent
courts.
In Martelino, we observed as follows:
It is true that civil courts as a rule exercise no supervision or correcting power
over the proceedings of courts- martial, and that mere errors in their proceedings
are not open to consideration. The single inquiry, the test, is jurisdiction. But it
is equally true that in the exercise of their undoubted discretion, courts-martial
may commit such an abuse of discretion what in the language of Rule 65 is
referred to as "grave abuse of discretion" as to give rise to a defect in their
jurisdiction. This is precisely the point at issue in this action suggested by its
nature as one for certiorari and prohibition . . .

The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the
Supreme Court over petitions for certiorari, prohibition or mandamus against inferior
courts and other bodies and on petitions for habeas corpus and quo warranto. 5 In the
absence of a law providing that the decisions, orders and ruling of a court-martial or the
Office of the Chief of Staff can be questioned only before the Court of Appeals and the
Supreme Court, we hold that the Regional Trial Court can exercise similar jurisdiction.
We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has
traditionally not been recognized and is not available in the military, as an exception to
the general rule embodied in the Bill of Rights. This much was suggested in Arula, where

we observed that "the right to a speedy trial is given more emphasis in the military where
the right to bail does not exist."
The justification for this exception was well explained by the Solicitor General as
follows:
The unique structure of the military should be enough reason to exempt military
men from the constitutional coverage on the right to bail.
Aside from structural peculiarity, it is vital to note that mutinous soldiers
operate within the framework of democratic system, are allowed the fiduciary
use of firearms by the government for the discharge of their duties and
responsibilities and are paid out of revenues collected from the people. All other
insurgent elements carry out their activities outside of and against the existing
political system.
xxx xxx xxx
National security considerations should also impress upon this Honorable Court
that release on bail of respondents constitutes a damaging precedent. Imagine a
scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or
if the assailed July 25, 1990 Order were sustained, on 'provisional' bail. The
sheer number alone is already discomforting. But, the truly disquieting thought
is that they could freely resume their heinous activity which could very well
result in the overthrow of duly constituted authorities, including this Honorable
Court, and replace the same with a system consonant with their own concept of
government and justice.

The argument that denial from the military of the right to bail would violate the equal
protection clause is not acceptable. This guaranty requires equal treatment only of
persons or things similarly situated and does not apply where the subject of the treatment
is substantially different from others. The accused officers can complain if they are
denied bail and other members of the military are not. But they cannot say they have been
discriminated against because they are not allowed the same right that is extended to
civilians.

On the contention of the private respondents in G.R. No. 97454 that they had not been
charged after more than one year from their arrest, our finding is that there was
substantial compliance with the requirements of due process and the right to a speedy
trial.
The petition for habeas corpus was directly filed with this Court on February 18, 1991,
and was referred to the Regional Trial Court of Quezon City for raffle, hearing and

decision. It was heard on February 26, 1991, by the respondent court, where the
petitioners submitted the charge memorandum and specifications against the private
respondents dated January 30, 1991. On February 12, 1991, pursuant to Office Order No.
31-91, the PTI panel was created and initial investigation was scheduled on March 12,
1991 at 2:00 p.m. On March 20, 1991, the private respondents received the copies of the
charges, charge sheets and specifications and were required to submit their counteraffidavits on or before April 11, 1991. There was indeed a delay of more than one year in
the investigation and preparation of the charges against the private respondents.
However, this was explained by the Solicitor General thus:
. . . The AFP Special Investigating Committee was able to complete its precharge investigation only after one (1) year because hundreds of officers and
thousands of enlisted men were involved in the failed coup. All of them, as well
as other witnesses, had to be interviewed or investigated, and these inevitably
took months to finish. The pre-charge investigation was rendered doubly
difficult by the fact that those involved were dispersed and scattered throughout
the Philippines. In some cases, command units, such as the Scout Rangers, have
already been disbanded. After the charges were completed, the same still had to
pass review and approval by the AFP Chief of Staff.

While accepting this explanation, the Court nevertheless must reiterate the following
admonition:
This Court as protector of the rights of the people, must stress the point that if
the participation of petitioner in several coup attempts for which he is confined
on orders of Adjutant General Jorge Agcaoili cannot be established and no
charges can be filed against him or the existence of a prima facie case
warranting trial before a military commission is wanting, it behooves
respondent then Major General Rodolfo Biazon (now General) to release
petitioner. Respondents must also be reminded that even if a military officer is
arrested pursuant to Article 70 of then Articles of War, indefinite confinement is
not sanctioned, as Article 71 thereof mandates that immediate steps must be
taken to try the person accused or to dismiss the charge and release him. Any
officer who is responsible for unnecessary delay in investigating or carrying the
case to a final conclusion may even be punished as a court martial may direct. 6

It should be noted, finally, that after the decision was rendered by Judge Solano on
February 26, 1991, the government filed a notice of appeal ad cautelam and a motion for
reconsideration, the latter was ultimately denied, after hearing, on March 4, 1991. The
48-hour period for appeal under Rule 41, Section 18, of the Rules of Court did not run
until after notice of such denial was received by the petitioners on March 12, 1991.
Contrary to the private respondents' contention, therefore, the decision had not yet
become final and executory when the special civil action in G.R. No. 97454 was filed
with this Court on March 12, 1991.

III
Regarding the propriety of the petitions at bar, it is well to reiterate the following
observations of the Court in Arula:
The referral of charges to a court-martial involves the exercise of judgment and
discretion (AW 71). A petition for certiorari, in order to prosper, must be based
on jurisdictional grounds because, as long as the respondent acted with
jurisdiction, any error committed by him or it in the exercise thereof will
amount to nothing more than an error of judgment which may be reviewed or
corrected only by appeal. Even an abuse of discretion is not sufficient by itself
to justify the issuance of a writ of certiorari.

As in that case, we find that the respondents in G.R. No. 93177 have not acted with grave
abuse of discretion or without or in excess of jurisdiction to justify the intervention of the
Court and the reversal of the acts complained of by the petitioners. Such action is
indicated, however, in G.R. No. 96948, where we find that the right to peremptory
challenge should not have been denied, and in G.R. Nos. 95020 and 97454, where the
private respondents should not have been ordered released.
ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack of merit. In
G.R. No. 96948, the petition is GRANTED, and the respondents are DIRECTED to allow
the petitioners to exercise the right of peremptory challenge under Article 18 of the
Articles of War. In G.R. Nos. 95020 and 97454, the petitions are also GRANTED, and
the orders of the respondent courts for the release of the private respondents are hereby
REVERSED and SET ASIDE. No costs.
SO ORDERED.
Fernan, C .J ., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco,
Padilla, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ ., concur.

Separate Opinions
SARMIENTO, J ., concurring and dissenting:
I concur with the ponencia of my esteemed colleague, Mr. Justice Cruz, but I dissent
insofar as he would deny bail to accused military personnel.
The Constitution explicitly grants the right to bail to "all persons" before conviction, with
the only exception of "those charged with offenses punishable by reclusion perpetua
when evidence of guilt is strong." 1 The Charter also states that "[T]he right to bail shall
not be impaired even if the writ of habeas corpus is suspended." 2 To deny the military

officers here concerned of the right to bail is to circumscribe the inclusive meaning of "all
persons" the coverage of the right.
I believe that military officers fall within "persons"
The picture conjured up by the Solicitor General of "a scenario of say 1,000 putschists
roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were
sustained, on 'provisional' bail . . . [t]he sheer number alone is already discomforting . . .
[b]ut, the truly disquieting thought is that they could freely resume their heinous activity
which could very well result in the overthrow of duly constituted authorities, including
this Honorable Court, and replace the same with a system consonant with their own
concept of government and justice." 3 But would a scenario of 1,000 murderers or drug
pushers roaming the streets of the metropolis justify a denial of the right to bail? Would
not that dark picture painted by the Solicitor General be reproduced by 1,000 "equally
dangerous" elements of society?
We gave bail Senator Enrile and General Brawner. I find no reason why the petitioners
should not be granted the same right.
The majority would point to tradition, supposed to be firmly settled, as an argument to
deny bail. I submit, however, that tradition is no argument. First, the Constitution does
not say it. Second, we are a government of laws, not tradition.
If there are precedents that attest to the contrary, I submit that a reexamination
(Comendador v. De Villa, G.R. No. 93177, 95020, 96948, 97454, [August 2, 1991], 277
PHIL 93-123)
|||

EN BANC
[A.M. No. 92-7-360-0. April 6, 1995.]
RE: FIRST INDORSEMENT DATED JULY 21, 1992 OF HON.
FERNANDO DE LEON, CHIEF STATE PROSECUTOR,
DEPARTMENT OF JUSTICE. ALICIA A. BAYLON, City
Prosecutor of Dagupan City, complainant, vs. JUDG E DEODORO J.
SISON, Regional Trial Court, Branch 40, Dagupan City, respondent.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; MOTIONS; RULE ON NOTICE;
VIOLATED IN PETITION FOR BAIL FILED IN CASE AT BAR. Complainant
alleges that the prosecution was not given notice of the petition for bail at least three (3)
days prior to the scheduled hearing thereof. It bears emphasis that the petition for bail
was filed in court and a copy thereof served on the prosecution on December 21, 1991, a
Saturday, and was craftily set for hearing on December 23, 1991, thereby giving the
prosecution only one day, a Sunday at that, to prepare its opposition thereto. The
stratagem employed by the defense which virtually deprived the prosecution of an
opportunity to adequately counter the representations in its petition is too obvious to be
ignored. Yet respondent judge condoned the same and aggravated the situation by the
unusual and precipitate haste with which the petition was granted by respondent judge.
On top of that, he exacerbated his disregard of settled rules of procedure by justifying his
non-observance of the three-day notice rule under Section 4, Rule 15 of the Rules of
Court on the theory that the petition for bail is an urgent motion and may therefore be
heard on shorter notice. Such ratiocination, which espouses and reveals a distorted notion
as to the true nature and conditions of the right to bail, does violence to the wellestablished rule of law that bail is not a matter of right and requires a hearing where the
accused is charged with an offense which is punishable by death, reclusion perpetua or
life imprisonment. Given this contingency, respondent judge should have carefully
scrutinized the validity of the petition for bail and the veracity of its allegations, rather
than cavalierly considering it outright as an urgent motion.
2. ID.; ID.; ID.; ID.; ID. We reject the first tenuous proposition that time was of the
essence, since the ambient circumstances obtaining prior to the grant of bail could not but
have cautioned respondent judge to be more circumspect in entertaining and resolving the
petition therefore. First, the accused were charged with double murder, each of which is
punishable by reclusion perpetua to death, hence bail is not a matter of right. Second, no
bail was recommended in the information which was filed on the bases of the sworn
statements of several eyewitnesses to the incident, thus constituting clear and strong
evidence of the guilt of all the accused. Third, at the time of the application for bail, there

was still pending a reinvestigation of the case being conducted by the Office of the City
Prosecutor. It must be noted that the reinvestigation was at the instance of the accused
themselves, hence any resultant delay caused by the conduct thereof is naturally and
logically attributable to them. And, finally, the guileful setting of the hearing of the
petition for bail on December 23, 1991, when the same was filed only on December 21,
1991 which was a Saturday, readily casts doubt on the good faith in and the regularity of
the procedure adopted by the defense. On the basis of the foregoing considerations alone,
we find no cogent reason whatsoever to justify respondents alacrity in ordering the
immediate release of the accused despite their somewhat extended confinement and,
much less, could respondents pretensions validly support a grant of bail.
3. JUDICIAL ETHICS; JUDGES; DISCHARGE OF DUTIES; RULE. While the
Court does not require perfection and infallibility, it reasonably expects a faithful and
intelligent discharge of duty by those who are selected to fill the position of
administrators of justice. Moreover, the Code of Judicial Conduct requires judges to act
with competence, integrity and independence and should so behave at all times as to
promote public confidence in the integrity and impartiality of the judiciary. It is true that,
generally, a judge cannot be held liable to account or answer criminally, civilly or
administratively, for an erroneous judgment or decision rendered by him in good faith.
However, good faith may be negated by the circumstances on record, as we have
hereinbefore demonstrated.
phil

4. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; ADMISSION TO BAIL;

DISCRETION OF COURT MUST BE GUIDED BY APPLICABLE LEGAL
PRINCIPLES. While the determination of whether or not the evidence of guilt is
strong is a matter of judicial discretion, this discretion, by the nature of things, may
rightly be exercised only after the evidence is submitted to the court at such hearing.
Whether the motion for bail of an accused who is in custody for a capital offense be
resolved in a summary proceeding or in the course of a regular trial, the prosecution must
be given an opportunity to present, within a reasonable time, all the evidence that it may
desire to introduce before the court may resolve the motion for bail. If the prosecution
should be denied such an opportunity, there would be a violation of procedural due
process, and the order of the court granting bail should be considered void on that
ground. "(Borinaga vs. Tamin, etc., A.M. No. RTJ-93-936, September 10, 1993, 226
SCRA 206). Quintessentially, and as a matter of law, the discretion of the court, in cases
involving capital offenses may be exercised only after there has been a hearing called to
ascertain the weight of the evidence against the accused. Peremptorily, the discretion lies,
not in determining whether or not there will be a hearing, but in appreciating and
evaluating the weight of the evidence of guilt against the accused. It follows that any
order issued in the absence thereof is not a product of sound judicial discretion but of
whim and caprice and outright arbitrariness.

5. ID.; ID.; ID.; RULE WHEN ACCUSED IS CHARGED WITH A SERIOUS

OFFENSE PUNISHABLE WITH RECLUSION PERPETUA TO DEATH; HEARING, A
REQUISITE; NOT PRESENT IN CASE AT BAR. The rule is explicit that when an
accused is charged with a serious offense punishable with reclusion perpetua to death,
such as murder, bail may be granted only after a motion for that purpose has been filed by
the accused and a hearing thereon conducted by a judge to determine whether or not the
prosecutions evidence of guilt is strong. Whether the motion for bail of an accused who
is in custody for a capital offense be resolved in a summary proceeding or in the course
of a regular trial, the prosecution must be given an opportunity to present, within a
reasonable time, all the evidence that it may wish to introduce on the probable guilt of the
accused, before the court resolves the motion for bail. It is accordingly settled that an
order granting or refusing bail must contain a summary of the evidence offered by the
prosecution. On the basis thereof, the judge should then formulate his own conclusion as
to whether the evidence so presented is strong enough as to indicate the guilt of the
accused. In fact, such a summary with his evaluation of the evidence may be considered
as an aspect of procedural due process for both the prosecution and the defense. The
importance of a hearing has been emphasized in not a few cases wherein this Court has
ruled that even if the prosecution refuses to adduce evidence or fails to interpose an
objection to the motion for bail, it is still mandatory for the court to conduct a hearing or
ask searching and clarificatory questions from which it may infer the strength of the
evidence of guilt, or the lack of it, against the accused.

DECISION

REG ALADO, J :
p

The present administrative matter was initiated by a sworn letter-request1 of

Alicia A. Baylon, City Prosecutor of Dagupan City, dated June 18, 1992, charging
Judge Deodoro J. Sison, presiding judge of Branch 40, Regional Trial Court, Dagupan
City, with utter disregard of judicial decorum by excessive display of interest in
handling a case assigned to and then pending in his branch. The said letter was sent to
Chief State Prosecutor Fernando P. de Leon of the Department of Justice who, in turn,
indorsed the same to this Court for appropriate action as requested therein.
The records of this case show that on October 24, 1991, the Office of the City
Prosecutor in Dagupan City filed an information for double murder against several
accused which was docketed as Criminal Case No. D-10678, entitled "People of the
Philippines vs. Manolo Salcedo, et al.," and thereafter raffled to respondent judge.
Subsequently, the accused filed on November 8, 1991 a petition for
reinvestigation which was granted by the trial court in an order dated November 20,
1991, and the Office of the City Prosecutor was given until December 23, 1991 to

resolve the same. The reinvestigation was finally concluded by the said prosecutor on
March 31, 1992. A petition for review interposed therefrom by the accused was later
dismissed by the Department of Justice in a resolution dated May 8, 1992.
During the pendency of the reinvestigation, however, the accused filed a
petition for bail on December 21, 1991, a Saturday, and requested that it be set for
hearing on December 23, 1991, the immediately following Monday. On this latter
date, according to an order handed down by respondent judge on June 8, 1992 2 the
prosecution filed an opposition to the petition for bail signed by Third Assistant City
Prosecutor Chita Estrella D.N. Bonifacio and noted by First Assistant City Prosecutor
Silverio Q. Castillo, alleging inter alia, that the information was filed on the bases of
the sworn statements of several eyewitnesses to the incident which constitutes clear
and strong evidence of the guilt of all the accused; that to grant the petition for bail
would preempt the outcome of the reinvestigation which was then being conducted by
the Office of the City Prosecutor at the instance of the accused, and also necessarily
defeat the purpose of said reinvestigation; and that the accused should at least wait for
the outcome of the reinvestigation, which they themselves sought, before any motion
of the same import could be filed.
Nevertheless, on the very day and time specified by t he accused, December 23,
1991 at 1:30 P.M., a hearing on the petition was purportedly held by the trial court.
Then, reportedly on the basis of a joint counter-affidavit of the accused, an affidavit of
one Oscar Villaga, a certification of entry in the police blotter, and the position paper
submitted by the accused, and allegedly because there was no objection on the part of
the prosecution which was supposedly represented by Third Assistant Prosecutor
Rosita Castro, the court forthwith granted bail for the provisional liberty of each
accused in the amount of P40,000.00.
A motion for reconsideration of said order of December 23, 1991 was duly
filed by the prosecution but the same was denied by respondent judge on January 10,
1992. In his aforecited order of June 8, 1992 reiterating his denial of a motion for his
inhibition, he maintained that he had granted bail ostensibly "after due hearing and
after a careful and deliberate consideration of the pertinent affidavits and counteraffidavit, position papers and arguments advanced by the parties." Respondent judge
further stated therein that the prosecution did not ask for an opportunity to show that
the evidence of guilt against the accused was strong.
Significantly, the aforestated orders of respondent judge of December 23, 1991
granting bail, and that dated January 10, 1992 denying reconsideration thereof,
became the subject of a petition for certiorari filed by the prosecution and were
subsequently annulled and set aside by the Court of Appeals in its judgment handed
down in CA-G.R. SP No. 28384 on January 19, 1993.
In the meantime, immediately after the court had issued its order granting bail,
Roberto Untalan, the private complainant in Criminal Case No. D-10678, filed with

the assistance of counsel on March 11, 1992 a motion for respondent judge to inhibit
himself from the case,3 contending that such act of respondent judge "had invited our
serious doubt and less expectation of (an) impartial disposition of this case," and "that
the instant case had plunged (sic) into (a) network of intrigue and distrust creating
thereby an animosity between us (litigants-complainants) and the judicial system
represented by the Honorable Court and in the last analysis, our grievance of justice is
in grave peril."
In an order dated March 25, 1991 (sic, should be 1992), respondent judge
denied the motion to inhibit on the ground that during the hearing on the petition for
bail, the prosecution was represented by Assistant City Prosecutor Rosita Castro who
supposedly "interposed no objection to the granting of bail in the amount of
P40,000.00 which she considered reasonable." He also argued therein that time was of
the essence considering that all of the accused, except for one Joel Doe, had been
under detention since October 21, 1991 and that the City Prosecutor had not yet
terminated the reinvestigation as of December 23, 1991, hence "without determining
whether the proper charge could be double homicide," he granted said bail for the
provisional liberty of the accused. 4
Private complainant moved for the reconsideration of said order contending
that, aside from the courts non-observance of the three-day notice rule before the
hearing, Assistant City Prosecutor Rosita Castro who happened to be present during
said hearing in Branch 40 was not duly authorized to appear for and in behalf of the
prosecution in Criminal Case No. D-10678 or to comment on the proceedings for bail,
since she actually was sent by her office to Branch 42 to move for the postponement
of another case therein.5 Attached thereto was an affidavit to that effect by said
assistant prosecutor. 6
On June 8, 1992, in an order of respondent judge denying the motion for
reconsideration and which has been earlier adverted to, he insisted that in its
opposition to the petition for bail and its motion for reconsideration of the order
granting bail, the prosecution never asked for an opportunity to show that the
evidence of guilt against the accused was strong; that during the hearing on the
petition for bail, the assistant prosecutor did not raise any objection and instead left
the matter to the sound discretion of the court; that the alleged lack of due process had
been cured by the filing of the motion for reconsideration and the motion to inhibit;
that the motion to inhibit constituted forum shopping; and that from the narration of
facts and events, the prosecution failed to convince the court that the evidence of guilt
of the accused was strong.
Respondent Judge Deodoro J. Sison stands charged with the now familiar
malfeasance of granting bail in a non-bailable offense without benefit of notice and
hearing. Specifically, it is averred that the prosecution was not given notice of at least
three days before the scheduled hearing on the petition for bail, in violation of the
mandate under Section 4, Rule 15 of the Rules of Court and, worse, with two nonworking days between the filing and the hearing of the petition. It is like wise

contended that during the controverted hearing on December 23, 1991, the
prosecution, which was not even duly represented, was not given the opportunity to
prove that the evidence of guilt of the accused was strong.
Required to comment thereon, respondent judge tried to justify his assailed
orders by claiming that he honestly believes that he did not commit a serious and
grave abuse of discretion; that he granted the petition for bail because the assistant
prosecutor present at the hearing did not interpose any objection thereto; that the
prosecution never requested, either in its opposition to the petition for bail or in its
motion for reconsideration of his adverse order, that it be allowed to show that the
evidence of guilt against the accused was strong but, instead, submitted the incident
for resolution; that the motion for reconsideration of the order granting bail was
denied only after due hearing and after a careful and judicious consideration of the
pertinent affidavits, counter-affidavit, position papers and arguments submitted by the
parties; that the lack of previous notice was cured by the filing of the motion for
reconsideration since, in the application of due process, what is sought to be
safeguarded is not the lack of previous notice but the denial of the opportunity to be
heard; that the claim of Assistant City Prosecutor Rosita Castro that there was no
hearing held on December 23, 1991 is negated by the testimonies given in A.M. No.
RTJ-92-822 by defense counsel Atty. Constante Rueca, Officer-in-Charge Gloria
Beltran, Court Stenographer Tripina Tigno, and herein respondent; that a judge cannot
be held administratively liable for an erroneous decision rendered in good faith; and
that the filing of the complaint is pure and simple harassment. 7
In a resolution8 dated May 4, 1993, this Court referred the administrative
matter at bar to the Office of the Court Administrator for evaluation, report and
recommendation within sixty (60) days from receipt of the records of this case.
However, it was only two (2) years thereafter, or on February 10, 1995 when, after
repeated inquiries, the said office submitted its report and recommendation with the
explanation that it had to verify whether the issue raised in the instant case is pertinent
to another pending administrative case involving the same parties. It made no
manifestation or submission in the interim.
The Court views with displeasure and chagrin the chronology of events which,
even if true, caused the supervenience of a grossly unreasonable delay in the
resolution of this simple administrative matter, to the inevitable prejudice and
frustration of the offended parties and the prosecution in the criminal case involved.
This is a situation which this Court has assiduously tried to avoid and obviate, since it
tarnishes the judicial image, fuels suspicions and speculations, and creates an unfair
climate of misperception and distrust. We shall not clutter this decision with the
pointless mea culpae of the parties responsible, but this Court is not beyond
expressing its profound regrets for this distressing episode and shall redouble its
efforts to prevent any repetition thereof.
Nonetheless, prescinding from the regrettably lackadaisical manner with which
this case was handled by the Office of the Court Administrator, we are constrained to

agree with its finding that respondent judge is indeed guilty as charged, as well as its
recommendation for a much belated administrative sanction to be imposed on him.
Complainant alleges that the prosecution was not given notice of the petition
for bail at least three (3) days prior to the scheduled hearing thereof. It bears emphasis
that the petition for bail was filed in court and a copy thereof served on the
prosecution on December 21, 1991, a Saturday, and was craftily set for hearing on
December 23, 1991, thereby giving the prosecution only one day, a Sunday at that, to
prepare its opposition thereto. The stratagem employed by the defense which virtually
deprived the prosecution of an opportunity to adequately counter the representations
in its petition is too obvious to be ignored. Yet respondent judge condoned the same
and aggravated the situation by the unusual and precipitate haste with which the
petition was granted by respondent judge.
On top of that, he exacerbated his disregard of settled rules of procedure by
justifying his non-observance of the three-day notice rule under Section 4, Rule 15 of
the Rules of Court on the theory that the petition for bail is an urgent motion and may
therefore be heard on shorter notice. Such ratiocination, which espouses and reveals a
distorted notion as to the true nature and conditions of the right to bail, does violence
to the well-established rule of law that bail is not a matter of right and requires a
hearing where the accused is charged with an offense which is punishable by death,
reclusion perpetua or life imprisonment. 9 Given this contingency, respondent judge
should have carefully scrutinized the validity of the petition for bail and the veracity
of its allegations, rather than cavalierly considering it outright as an urgent motion.
There are two main arguments invoked and relied on by respondent judge to
support and justify his grant of bail to the accused, namely, that time was of the
essence, considering that the accused had been detained since October 21, 1991; and
that the prosecution failed to interpose an objection to the granting of bail and to ask
for an opportunity to prove the strength of the evidence of guilt against the accused.
We reject the first tenuous proposition that time was of the essence, since the
ambient circumstances obtaining prior to the grant of bail could not but have
cautioned respondent judge to be more circumspect in entertaining and resolving the
petition therefore. First, the accused were charged with double murder, each of which
is punishable by reclusion perpetua to death, hence bail is not a matter of right.
Second, no bail was recommended in the information which was filed on the bases of
the sworn statements of several eyewitnesses to the incident, thus constituting clear
and strong evidence of the guilt of all the accused. 10 Third, at the time of the
application for bail, there was still a pending reinvestigation of the case being
conducted by the Office of the City Prosecutor. It must be noted that the
reinvestigation was at the instance of the accused themselves, hence any resultant
delay caused by the conduct thereof is naturally and logically attributable to them.
And, finally, the guileful setting of the hearing of the petition for bail on December

23, 1991, when the same was filed only on December 21, 1991 which was a Saturday,
readily casts doubt on the good faith in and the regularity of the procedure adopted by
the defense.
On the basis of the foregoing considerations alone, and even without the
further elaboration correctly advanced by complainant in representation of her office,
we find no cogent reason whatsoever to justify respondents alacrity in ordering the
immediate release of the accused despite their somewhat extended confinement and,
much less, could respondents pretensions validly support a grant of bail.
Respondent judge asseverates that he honestly believes that he did not commit
a serious and grave abuse of discretion. He hastens to add the handy and oft-invoked
defense that he cannot be held administratively liable for an erroneous decision
rendered in good faith.
Respondent should not hide behind that axiom so often resorted to, it may be
now be said, to the point of abuse. While the Court does not require perfection and
infallibility, it reasonably expects a faithful and intelligent discharge of duty by those
who are selected to fill the position of administrators of justice. Moreover, the Code
of Judicial Conduct requires judges to act with competence, integrity and
independence and should so behave at all times as to promote public confidence in the
integrity and impartiality of the judiciary. 11 It is true that, generally, a judge cannot
be held liable to account or answer criminally, civilly or administratively, for an
erroneous judgment or decision rendered by him in good faith. However, good faith
may be negated by the circumstances on record, 12 as we have hereinbefore
demonstrated.
L Lphil

We agree that bail in this case, not being a matter of right, must be addressed to
the sound discretion of respondent judge. But this does not mean, however, a
lubricious and untrammeled exercise of such discretion. We have held that admission
to bail as a matter of discretion presupposes the exercise thereof in accordance with
law and guided by the applicable legal principles, to wit:
". . . The prosecution must first be accorded an opportunity to present evidence
because by the very nature of deciding applications for bail, it is on the basis of
such evidence that judicial discretion is weighed against in determining whether
the guilt of the accused is strong. In other words, discretion must be exercised
regularly, legally and within the confines of procedural due process, that is, after
evaluation of the evidence submitted by the prosecution. Any order issued in the
absence thereof is not a product of sound judicial discretion but of whim and
caprice and outright arbitrariness.
"Accordingly, while the determination of whether or not the evidence of guilt is
strong is a matter of judicial discretion, this discretion, by the nature of things,
may rightly be exercised only after the evidence is submitted to the court at such
hearing. Whether the motion for bail of an accused who is in custody for a
capital offense be resolved in a summary proceeding or in the course of a

regular trial, the prosecution must be given an opportunity to present, within a

reasonable time, all the evidence that it may desire to introduce before the court
may resolve the motion for bail. If the prosecution should be denied such an
opportunity, there would be a violation of procedural due process, and the order
of the court granting bail should be considered void on that ground."13

Quintessentially, and as a matter of law, the discretion of the court, in cases

involving capital offenses may be exercised only after there has been a hearing called
to ascertain the weight of the evidence against the accused. Peremptorily, the
discretion lies, not in determining whether or not there will be a hearing, but in
appreciating and evaluating the weight of the evidence of guilt against the accused. It
follows that any order issued in the absence thereof is not a product of sound judicial
discretion but of whim and caprice and outright arbitrariness. 14
This brings us to the second and main contention of respondent judge. He
would want to impress upon this Court that it was incumbent upon the prosecution to
seek permission from the trial court to prove that the evidence of guilt against the
accused is strong, and that when it failed to do so in any of its pleadings filed with the
court, respondent judge was left with no other recourse but to gr ant the application for
bail. He likewise asserts that the prosecution failed to interpose an objection during
the hearing on the petition for bail. Such arguments are deplorably specious and
lamentably absurd.
The rule is explicit that when an accused is charged with a serious offense
punishable with reclusion perpetua to death, such as murder, bail may be granted only
after a motion for that purpose has been filed by the accused and a hearing thereon
conducted by a judge to determine whether or not the prosecutions evidence of guilt
is strong. Whether the motion for bail of an accused who is in custody for a capital
offense be resolved in a summary proceeding or in the course of a regular trial, the
prosecution must be given an opportunity to present, within a reasonable time, all the
evidence that it may wish to introduce on the probable guilt of the accused, before the
court resolves the motion for bail. 15
It is accordingly settled that an order granting or refusing bail must contain a
summary of the evidence offered by the prosecution. On the basis thereof, the judge
should then formulate his own conclusion as to whether the evidence so presented is
strong enough as to indicate the guilt of the accused. 16 In fact, such a summary with
his evaluation of the evidence may be considered as an aspect of procedural due
process for both the prosecution and the defense.
The importance of a hearing has been emphasized in not a few cases wherein
this Court has ruled that even if the prosecution refuses to adduce evidence or fails to
interpose an objection to the motion for bail, it is still mandatory for the court to
conduct a hearing or ask searching and clarificatory questions from which it may infer
the strength of the evidence of guilt, or the lack of it, against the accused.

Thus, in the aforecited case of Borinaga vs. Tamin, etc., 17 it was there held
that even where the prosecutor refuses to adduce evidence in opposition to the
application to grant and fix bail, the court may ask the prosecution such questions as
would ascertain the strength of the Peoples evidence or judge the adequacy vel non of
the amount of bail. This was reiterated in the recent case of Aguirre, et al., vs.
Belmonte, etc. 18 where we said that the error committed by the therein respondent
judge in granting bail cannot be corrected by the mere failure of the prosecution to file
a motion for cancellation thereof or a clarification of his order.
In Libarios vs. Dabalos, 19 we emphasized that irrespective of respondent
judges opinion that the evidence of guilt against the accused is not strong, the law
and settled jurisprudence demands that a hearing be conducted before bail can be
fixed for the temporary release of the accused, if bail is at all justified.
L Lpr

Where the prosecutor does not oppose the application for bail and refuses to
satisfy his burden of proof, but the court has reasons to believe that the prosecutors
attitude is not justified, as when he is evidently committing a gross error or a
dereliction of duty, it has been ruled in the early case of Herras Teehankee vs.
Director of Prisons, et al. 20 that, in the paramount interest of justice, the court must
inquire from the prosecutor as to the nature of his evidence to determine whether or
not it is strong, it being possible for the prosecutor to have erred in considering it
weak and, therefore, in recommending bail.
Finally, in the most recent case of Tucay vs. Domagas 21 it was categorically
stressed that although the provincial prosecutor had interposed no objection to the
grant of bail to the accused, the respondent judge therein should nevertheless have set
the petition for bail for hearing and diligently ascertained from the prosecution
whether the latter was not really contesting the bail application. Additionally, it must
be borne in mind that a hearing is also necessary for the court to take into
consideration the guidelines set forth in Section 6, Rule 114 of the Rules of Court in
fixing the amount of bail. Only after respondent judge has satisfied himself that these
requirements have been met can he then proceed to rule on whether or not to grant
bail.
The obstinate persistence of respondent judge in posturing that he did conduct
a hearing on December 23, 1991 is belied by the fact that the order granting bail, the
contents of which could merely be deduced after a careful perusal of the records of
the case and the other orders issued by him in view of the parties failure to present
the same, leaves much to be desired. For one, it does not contain the requisite
summary of the evidence presented by the parties and necessary to support the grant
of bail. What appears from the records is that the petition for bail was granted on the
basis merely of the joint counter-affidavit of the accused, and possibly of a witness,
and the position paper of the accused. The prosecution was not even given the chance
to cross-examine the accused on their counter-affidavit. Mere affidavits or recitals of

their contents are not sufficient since they are mere hearsay evidence, hence they
cannot legally form the basis of an order granting bail. 22
As a final note, we take judicial cognizance of the decision of the Court of
Appeals in CA-G.R. SP No. 28384, promulgated on January 19, 1993, which annulled
and set aside the orders dated December 23, 1991 and January 10, 1992 issued by
herein respondent judge. The disquisitions therein of said appellate court serve to
further strengthen the merits of our findings and the necessity for the present
administrative disciplinary proceeding.
WHEREFORE, respondent Judge Deodoro J. Sison is hereby found guilty of
gross ignorance of the law and grave abuse of discretion. He is hereby ORDERED to
pay a FINE of P20,000.00 with a STERN WARNING that the commission of the
same or similar offense in the future will definitely be dealt with more severely. Let a
copy of this decision be attached to the personal records of respondent Judge Deodoro
J. Sison.
cdl l

Considering that the offense involved in this administrative matter was

committed way back on December 23, 1991, this judgment is immediately final and
executory.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Davide, Jr., Romero, Bellosillo, Melo, Quiason,
Puno, Kapunan, Mendoza and Francisco, JJ., concur.
Vitug, J ., concurs but votes for a reduced fine of P10,000.
|||

(Baylon v. Sison, A.M. No. 92-7-360-0, [April 6, 1995], 313 PHIL 99-119)

EN BANC
[G.R. No. L-62100. May 30, 1986.]
RICARDO L. MANOTOC, JR., petitioner, vs. THE COURT OF
APPEALS, HONS. SERAFIN E. CAMILON and RICARDO L.
PRONOVE, JR., as Judges of the Court of First Instance of Rizal,
Pasig branches, THE PEOPLE OF THE PHILIPPINES, the
SECURITIES & EXCHANGE COMMISSION, HON. EDMUNDO
M. REYES, as Commissioner of Immigration, and the Chief of the
Aviation Security Command (AVSECOM), respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; PROHIBITION AGAINST
LEAVING THE PHILIPPINES, A NECESSARY CONSEQUENCE THEREOF. A
court has the power to prohibit a person admitted to bail from leaving the Philippines.
This is a necessary consequence of the nature and function of a bail bond. The condition
imposed upon petitioner to make himself available at all times whenever the court
requires his presence operates as a valid restriction on his right to travel. As we have held
in People v. Uy Tuising, 61 Phil. 404 (1935). ". . . the result of the obligation assumed by
appellee (surety) to hold the accused amenable at all times to the orders and processes of
the lower court, was to prohibit said accused from leaving the jurisdiction of the
Philippines, because, otherwise, said orders and processes will be nugatory, and
inasmuch as the jurisdiction of the courts from which they issued does not extend beyond
that of the Philippines they would have no binding force outside of said jurisdiction."
Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he
may be placed beyond the reach of the courts.
2. ID.; ID.; ID.; DEFINED. Rule 114, Section 1 of the Rules of Court defines bail as
the security required and given for the release of a person who is in the custody of the
law, that he will appear before any court in which his appearance may be required as
stipulated in the bail bond or recognizance.
3. ID.; ID.; ID.; OBJECT. Its object is to relieve the accused of imprisonment and the
state of the burden of keeping him, pending the trial, and at the same time, to put the
accused as much under the power of the court as if he were in custody of proper officer,
and to secure the appearance of the accused so as to answer the call of the court and do
what the law may require of him.
4. ID.; ID.; ID.; EFFECT. The effect of a recognizance or bail bond, when fully
executed or filed of record, and the prisoner released thereunder, is to transfer the custody

of the accused from the public officials who have him in their charge to keepers of his
own selection. Such custody has been regarded merely as a continuation of the original
imprisonment. The sureties become invested with full authority over the person of the
principal and have the right to prevent the principal from leaving the state. If the sureties
have the right to prevent the principal from leaving the state, more so then has the court
from which the sureties merely derive such right, and whose jurisdiction over the person
of the principal remains unaffected despite the grant of bail to the latter. In fact, this
inherent right of the court is recognized by petitioner himself, notwithstanding his
allegation that he is at total liberty to leave the country, for he would not have filed the
motion for permission to leave the country in the first place, if it were otherwise.
5. ID.; ID.; ID.; SHEPHERD CASE (C.A.-G.R. No. 23505-R, February 13, 1980)
DIFFERENTIATED FROM CASE AT BAR. To support his contention, petitioner
places reliance upon the then Court of Appeals' ruling in People vs. Shepherd (C.A.-G.R.
No. 23505-R, February 13, 1980) particularly citing the following passage: ". . . The law
obliges the bondsmen to produce the person of the appellants at the pleasure of the Court.
. . . The law does not limit such undertaking of the bondsmen as demandable only when
the appellants are in the territorial confines of the Philippines and not demandable if the
appellants are out of the country. Liberty, the most important consequence of bail, albeit
provisional, is indivisible. If granted at all, liberty operates as fully within as without the
boundaries of the granting state. This principle perhaps accounts for the absence of any
law or jurisprudence expressly declaring that liberty under bail does not transcend the
territorial boundaries of the country." The faith reposed by petitioner on the above-quoted
opinion of the appellate court is misplaced. The rather broad and generalized statement
suffers from a serious fallacy; for while there is, indeed, neither law nor jurisprudence
expressly declaring that liberty under bail does not transcend the territorial boundaries of
the country, it is not for the reason suggested by the appellate court. Also, petitioner's
case is not on all fours with the Shepherd case. In the latter case, the accused was able to
show the urgent necessity for her travel abroad, the duration thereof and the conforme of
her sureties to the proposed travel thereby satisfying the court that she would comply
with the conditions of her bail bond. In contrast, petitioner in this case has not
satisfactorily shown any of the above.
6. ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; LACK OF GRAVE ABUSE OF
DISCRETION WHERE DENIAL OF MOTION FOR PERMISSION TO LEAVE THE
COUNTRY WAS PREMISED ON THE FAILURE OF PETITIONER TO SATISFY
THE TRIAL COURT OF THE URGENCY OF HIS TRAVEL. As petitioner has
failed to satisfy the trial courts and the appellate court of the urgency of his travel, the
duration thereof, as well as the consent of his surety to the proposed travel, We find no
abuse of judicial discretion in their having denied petitioner's motion for permission to
leave the country, in much the same way, albeit with contrary results, that We found no
reversible error to have been committed by the appellate court in allowing Shepherd to

leave the country after it had satisfied itself that she would comply with the conditions of
her bail bond.
7. CONSTITUTIONAL LAW; BILL OF RIGHTS; LIBERTY OF ABODE AND
TRAVEL; IMPAIRED BY ORDER OF THE TRIAL COURT RELEASING
PETITIONER ON BAIL. The constitutional right to travel being invoked by
petitioner is not an absolute right. Section 5, Article IV of the 1973 Constitution states:
"The liberty of abode and of travel shall not be impaired except upon lawful order of the
court, or when necessary in the interest of national security, public safety or public
health." To our mind, the order of the trial court releasing petitioner on bail constitutes
such lawful order as contemplated by the above-quoted constitutional provision.

DECISION

FERNAN, J :
p

The issue posed for resolution in this petition for review may be stated thus: Does a
person facing a criminal indictment and provisionally released on bail have an
unrestricted right to travel?
Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of TransInsular Management, Inc. and the Manotoc Securities, Inc., a stock brokerage house.
Having transferred the management of the latter into the hands of professional men, he
holds no officer-position in said business, but acts as president of the former corporation.
LexLib

Following the "run" on stock brokerages caused by stock broker Santamaria's flight from
this jurisdiction, petitioner, who was then in the United States, came home, and together
with his co-stockholders, filed a petition with the Securities and Exchange Commission
for the appointment of a management committee, not only for Manotoc Securities, Inc.,
but likewise for Trans-Insular Management, Inc. The petition relative to the Manotoc
Securities, Inc., docketed as SEC Case No. 001826, entitled, "In the Matter of the
Appointment of a Management Committee for Manotoc Securities, Inc., Teodoro Kalaw,
Jr., Ricardo Manotoc, Jr., Petitioners", was granted and a management committee was
organized and appointed.
Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission
requested the then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner
for departure and a memorandum to this effect was issued by the Commissioner on
February 4, 1980 to the Chief of the Immigration Regulation Division.

When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was
suspected to be a fake, six of its clients filed six separate criminal complaints against
petitioner and one Raul Leveriza, Jr., as president and vice-president, respectively, of
Manotoc Securities, Inc. In due course, corresponding criminal charges for estafa were
filed by the investigating fiscal before the then Court of First Instance of Rizal, docketed
as Criminal Cases Nos. 45399 and 45400, assigned to respondent Judge Camilon, and
Criminal Cases Nos. 45542 to 45545, raffled off to Judge Pronove. In all cases, petitioner
has been admitted to bail in the total amount of P105,000.00, with FGU Insurance
Corporation as surety.
On March 1, 1982, petitioner filed before each of the trial courts a motion entitled,
"motion for permission to leave the country", stating as ground therefor his desire to go to
the United States, "relative to his business transactions and opportunities." 1 The
prosecution opposed said motion and after due hearing, both trial judges denied the same.
The order of Judge Camilon dated March 9, 1982, reads:
"Accused Ricardo Manotoc Jr. desires to leave for the United States on the all
embracing ground that his trip is '. . . relative to his business transactions and
opportunities.'
"The Court sees no urgency from this statement. No matter of any magnitude is
discerned to warrant judicial imprimatur on the proposed trip.
"In view thereof, permission to leave the country is denied Ricardo Manotoc, Jr.
now or in the future until these two (2) cases are terminated." 2

On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part:
"6. Finally, there is also merit in the prosecution's contention that if the Court
would allow the accused to leave the Philippines the surety companies that filed
the bail bonds in his behalf might claim that they could no longer be held liable
in their undertakings because it was the Court which allowed the accused to go
outside the territorial jurisdiction of the Philippine Court, should the accused
fail or decide not to return.

"WHEREFORE, the motion of the accused is DENIED." 3

It appears that petitioner likewise wrote the Immigration Commissioner a letter

requesting the recall or withdrawal of the latter's memorandum dated February 4, 1980,
but said request was also denied in a letter dated May 27, 1982.

Petitioner thus filed a petition for certiorari and mandamus before the then Court of
Appeals 4 seeking to annul the orders dated March 9 and 26, 1982, of Judges Camilon
and Pronove, respectively, as well as the communication-request of the Securities and
Exchange Commission, denying his leave to travel abroad. He likewise prayed for the
issuance of the appropriate writ commanding the Immigration Commissioner and the
Chief of the Aviation Security Command (AVSECOM) to clear him for departure.
On October 5,1982, the appellate court rendered a decision 5 dismissing the petition for
lack of merit.
Dissatisfied with the appellate court's ruling, petitioner filed the instant petition for
review on certiorari. Pending resolution of the petition to which we gave due course on
April 14, 1983 6 petitioner filed on August 15, 1984 a motion for leave to go abroad
pendente lite. 7 In his motion, petitioner stated that his presence in Louisiana, U.S.A. is
needed in connection "with the obtention of foreign investment in Manotoc Securities,
Inc. " 8 He attached the letter dated August 9, 1984 of the chief executive officer of the
Exploration Company of Louisiana, Inc., Mr. Marsden W. Miller 9 requesting his
presence in the United States to "meet the people and companies who would be involved
in its investments." Petitioner, likewise manifested that on August 1, 1984, Criminal
Cases Nos. 4933 to 4936 of the Regional Trial Court of Makati (formerly Nos. 4554245545) had been dismissed as to him "on motion of the prosecution on the ground that
after verification of the records of the Securities and Exchange Commission . . . (he) was
not in any way connected with the Manotoc Securities, Inc. as of the date of the
commission of the offenses imputed to him. " 10 Criminal Cases Nos. 45399 and 45400
of the Regional Trial Court of Makati, however, remained pending as Judge Camilon,
when notified of the dismissal of the other cases against petitioner, instead of dismissing
the cases before him, ordered merely the informations amended so as to delete the
allegation that petitioner was president and to substitute that he was "controlling/majority
stockholder," 11 of Manotoc Securities, Inc.
prLL

On September 20, 1984, the Court in a resolution en banc denied petitioner's motion for
leave to go abroad pendente lite. 12
Petitioner contends that having been admitted to bail as a matter of right, neither the
courts which granted him bail nor the Securities and Exchange Commission which has no
jurisdiction over his liberty, could prevent him from exercising his constitutional right to
travel.
Petitioner's contention is untenable.
A court has the power to prohibit a person admitted to bail from leaving the Philippines.
This is a necessary consequence of the nature and function of a bail bond.

Rule 114, Section 1 of the Rules of Court defines bail as the security required and given
for the release of a person who is in the custody of the law, that he will appear before any
court in which his appearance may be required as stipulated in the bail bond or
recognizance.
"Its object is to relieve the accused of imprisonment and the state of the burden of
keeping him, pending the trial, and at the same time, to put the accused as much under the
power of the court as if he were in custody of the proper officer, and to secure the
appearance of the accused so as to answer the call of the court and do what the law may
require of him." 13
The condition imposed upon petitioner to make himself available at all times whenever
the court requires his presence operates as a valid restriction on his right to travel. As we
have held in People v. Uy Tuising, 61 Phil. 404 (1935).
". . . the result of the obligation assumed by appellee (surety) to hold the
accused amenable at all times to the orders and processes of the lower court,
was to prohibit said accused from leaving the jurisdiction of the Philippines,
because, otherwise, said orders and processes will be nugatory, and inasmuch as
the jurisdiction of the courts from which they issued does not extend beyond
that of the Philippines they would have no binding force outside of said
jurisdiction."

Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he
may be placed beyond the reach of the courts.
"The effect of a recognizance or bail bond, when fully executed or filed of record, and the
prisoner released thereunder, is to transfer the custody of the accused from the public
officials who have him in their charge to keepers of his own selection. Such custody has
been regarded merely as a continuation of the original imprisonment. The sureties
become invested with full authority over the person of the principal and have the right to
prevent the principal from leaving the state." 14
If the sureties have the right to prevent the principal from leaving the state, more so then
has the court from which the sureties merely derive such right, and whose jurisdiction
over the person of the principal remains unaffected despite the grant of bail to the latter.
In fact, this inherent right of the court is recognized by petitioner himself,
notwithstanding his allegation that he is at total liberty to leave the country, for he would
not have filed the motion for permission to leave the country in the first place, if it were
otherwise.
To support his contention, petitioner places reliance upon the then Court of Appeals'
ruling in People vs. Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly
citing the following passage:

". . . The law obliges the bondsmen to produce the person of the appellants at
the pleasure of the Court. . . . The law does not limit such undertaking of the
bondsmen as demandable only when the appellants are in the territorial confines
of the Philippines and not demandable if the appellants are out of the country.
Liberty, the most important consequence of bail, albeit provisional is
indivisible. If granted at all, liberty operates as fully within as without the
boundaries of the granting state. This principle perhaps accounts for the absence
of any law or jurisprudence expressly declaring that liberty under bail does not
transcend the territorial boundaries of the country."

The faith reposed by petitioner on the above-quoted opinion of the appellate court is
misplaced. The rather broad and generalized statement suffers from a serious fallacy; for
while there is, indeed, neither law nor jurisprudence expressly declaring that liberty under
bail does not transcend the territorial boundaries of the country, it is not for the reason
suggested by the appellate court.
Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the
accused was able to show the urgent necessity for her travel abroad, the duration thereof
and the conforme of her sureties to the proposed travel thereby satisfying the court that
she would comply with the conditions of her bail bond. In contrast, petitioner in this case
has not satisfactorily shown any of the above. As aptly observed by the Solicitor General
in his comment:
"A perusal of petitioner's 'Motion for Permission to Leave the Country' will
show that it is solely predicated on petitioner's wish to travel to the United
States where he will, allegedly attend to some business transactions and search
for business opportunities. From the tenor and import of petitioner's motion, no
urgent or compelling reason can be discerned to justify the grant of judicial
imprimatur thereto. Petitioner has not sufficiently shown that there is absolute
necessity for him to travel abroad. Petitioner's motion bears no indication that
the alleged business transactions could not be undertaken by any other person in
his behalf. Neither is there any hint that petitioner's absence from the United
States would absolutely preclude him from taking advantage of business
opportunities therein, nor is there any showing that petitioner's non-presence in
the United States would cause him irreparable damage or prejudice." 15

Petitioner has not specified the duration of the proposed travel or shown that his surety
has agreed to it. Petitioner merely alleges that his surety has agreed to his plans as he had
posted cash indemnities. The court cannot allow the accused to leave the country without
the assent of the surety because in accepting a bail bond or recognizance, the government
impliedly agrees "that it will not take any proceedings with the principal that will
increase the risks of the sureties or affect their remedies against him. Under this rule, the
surety on a bail bond or recognizance may be discharged by a stipulation inconsistent
with the conditions thereof, which is made without his assent. This result has been
reached as to a stipulation or agreement to postpone the trial until after the final

disposition of other cases, or to permit the principal to leave the state or country." 16
Thus, although the order of March 26, 1982 issued by Judge Pronove has been rendered
moot and academic by the dismissal as to petitioner of the criminal cases pending before
said judge, We see the rationale behind said order.
As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of
his travel, the duration thereof, as well as the consent of his surety to the proposed travel,
We find no abuse of judicial discretion in their having denied petitioner's motion for
permission to leave the country, in much the same way, albeit with contrary results, that
We found no reversible error to have been committed by the appellate court in allowing
Shepherd to leave the country after it had satisfied itself that she would comply with the
conditions of her bail bond.

The constitutional right to travel being invoked by petitioner is not an absolute right.
Section 5, Article IV of the 1973 Constitution states:
"The liberty of abode and of travel shall not be impaired except upon lawful
order of the court, or when necessary in the interest of national security, public
safety or public health."

To our mind, the order of the trial court releasing petitioner on bail constitutes such
lawful order as contemplated by the above-quoted constitutional provision.
Finding the decision of the appellate court to be in accordance with law and
jurisprudence, the Court finds that no gainful purpose will be served in discussing the
other issues raised by petitioner.
WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner.
SO ORDERED.
Teehankee, C.J., Abad Santos, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr.,
Cruz and Paras, JJ., concur.
Feria, J., no part.
|||

(Manotoc, Jr. v. Court of Appeals, G.R. No. L-62100, [May 30, 1986], 226 PHIL 75-85)

EN BANC
[G.R. No. 148571. September 24, 2002.]
GOVERNMENT OF THE UNITED STATES OF AMERICA,
represented by the Philippine Department of Justice, petitioner, vs.
Hon. GUILLERMO G. PURG ANAN, Presiding Judge, Regional
Trial Court of Manila, Branch 42; and MARK B. JIMENEZ a.k.a.
MARIO BATACAN CRESPO, respondents.
Mario Luza Bautista for Mark Jimenez.
SYNOPSIS
Petitioner US government filed this Petition for Certiorari under Rule 65 assailing the
procedure adopted by the trial court of first hearing a potential extraditee, Mark Jimenez,
before issuing a warrant for his arrest under Section 6 of PD No. 1069. Petitioner
contended that the procedure gives Jimenez notice to escape and to avoid extradition.
Petitioner also assailed the trial court's granting of Jimenez's prayer for bail, which allows
him to go on provisional liberty while extradition proceedings are pending.
Petitioner no longer filed a Motion for Reconsideration in the Extradition Court, but
resorted directly to the Supreme Court instead of the Court of Appeals to obtain relief.
The Supreme Court allowed a direct invocation of its original jurisdiction to issue writs
of certiorari to settle once and for all the issue of bail in extradition proceedings,
In granting the petition, the Supreme Court held that the present extradition case validates
the premise that persons sought to be extradited have a propensity to flee. Prior acts of
respondent eloquently speak of his aversion to the processes in the requesting state, as
well as his predisposition to avoid them at all costs.
Thus, it was grave abuse of discretion on the part of the RTC judge to set the hearing for
the issuance of the warrant of arrest when it was already evident from the Petition for
Extradition itself and its supporting documents that a prima facie finding did exist and he
may issue a warrant for the immediate arrest of the accused; that there is no requirement
to notify and to hear the accused before the issuance of a warrant of arrest under the
Constitution which requires only an examination under oath or affirmation of
complainants and the witnesses they may produce; and that since accused were allowed
to be heard and to present evidence at this early stage, the procedure could convert the

determination of a prima facie case into a full-blown trial, which is discordant with the
rationale for the entire system and anathema to the summary nature of extraditions.
The Court also held that extraditee's immediate detention prior to his being heard does
not violate the due process clause; that the right to bail applies only in ordinary criminal
proceedings; but that in extradition proceedings, after a potential extraditee has been
arrested, bail may be applied for and granted as an exception.
DScT aC

SYLLABUS
1. REMEDIAL LAW; APPEALS; PETITION FOR CERTIORARI; SUPREME COURT
MAY ALLOW A DIRECT INVOCATION OF ITS ORIGINAL JURISDICTION TO
ISSUE WRITS OF CERTIORARI WHEN THERE ARE SPECIAL AND IMPORTANT
REASONS THEREFOR; CASE AT BAR. [T]his Court has allowed a direct
invocation of its original jurisdiction to issue writs of certiorari when there are special
and important reasons therefor. In the interest of justice and to settle once and for all the
important issue of bail in extradition proceedings, we deem it best to take cognizance of
the present case. Such proceedings constitute a matter of first impression over which
there is, as yet, no local jurisprudence to guide lower courts.
2. POLITICAL LAW; INTERNATIONAL LAW; EXTRADITION TREATY;
PERSONS TO BE EXTRADITED ARE PRESUMED TO BE FLIGHT RISKS; CASE
AT BAR. Persons to be extradited are presumed to be flight risks. This prima facie
presumption 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
state in order to thwart their extradition to the requesting state. The present extradition
case further validates the premise that persons sought 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 the requesting country. Prior acts of herein respondent (1)
leaving the requesting state right before the conclusion of his indictment proceedings
there; and (2) remaining in the requested state despite learning that the requesting state is
seeking his return and that the crimes he is charged with are bailable eloquently speak
of his aversion to the processes in the requesting state, as well as his predisposition to
avoid them at all cost: These circumstances point to an ever-present, underlying high risk
of flight. He has demonstrated 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 second time?
3. ID.; ID.; ID.; NEITHER TREATY NOR THE EXTRADITION LAW REQUIRE A
HEARING BEFORE ISSUING A WARRANT OF ARREST OF PROBABLE
EXTRADITEE; REASONS; CASE AT BAR. 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 rendered nugatory by setting for hearing the

issuance of the arrest warrant. Hearing entails sending notices to the opposing parties,
receiving facts and arguments from them, and giving them time to prepare and present
such facts and arguments. Arrest subsequent to a hearing can no longer be considered
"immediate." The law could not have intended the word as a mere superfluity but, on the
whole, as a means of imparting a sense of urgency and swiftness in the 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 as important as speed at such early stage. The trial
court is not expected to make an exhaustive determination to ferret out the true and actual
situation, immediately upon the filing of the petition. From the knowledge and the
material then available to it, the court is expected merely to get a good first impression
a prima facie finding sufficient to make a speedy initial determination as regards the
arrest and detention of the accused. Moreover, the law specifies that the court sets a
hearing upon receipt of the answer or upon failure of the accused to answer after
receiving the summons. In connection with the matter of immediate arrest, however, the
word "hearing" is notably absent from the provision. 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 proceedings are summary in nature. Hence, the
silence of the Law and the Treaty leans to the more reasonable interpretation that there is
no intention to punctuate with a hearing every little step in the entire proceedings.
aE CTcA

4. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; GRAVE ABUSE

OF DISCRETION; SETTING FOR HEARING A REQUEST FOR THE ARREST OF
AN EXTRADITEE AFTER HAVING ALREADY DETERMINED FROM
SUPPORTING DOCUMENTS THAT A PRIMA FACIE FINDINGS EXISTS, A CASE
OF; CASE AT BAR. 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 was someone 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 a reasonably discreet and prudent person to believe
that the extradition request was prima facie meritorious. In point of fact, he actually
concluded from these supporting documents that "probable cause" did exist. We stress
that the prima facie existence of probable cause for hearing the petition and, a priori, for
issuing an arrest warrant was already evident from the Petition itself and its supporting
documents. Hence, after having already determined therefrom that a prima facie finding
did exist, respondent judge gravely abused his discretion when he set the matter for
hearing upon motion of Jimenez.
5. POLITICAL LAW; CONSTITUTIONAL LAW; RIGHTS OF AN ACCUSED;
NOTICE AND HEARING NOT REQUIRED BEFORE ISSUANCE OF WARRANT
OF ARREST. Even Section 2 of Article III of our Constitution,which is invoked by
Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest.
To determine probable cause for the issuance of arrest warrants, the Constitution itself
requires only the examination under oath or affirmation of complainants and the

witnesses they may produce. There is no requirement to notify and hear the accused
before the issuance of warrants of arrest.
6. ID.; INTERNATIONAL LAW; EXTRADITION TREATY; PROPER PROCEDURE
TO BE FOLLOWED BY THE JUDGE UPON RECEIPT OF A PETITION FOR
EXTRADITION. Since this is a matter of first impression, we deem it wise to restate
the proper procedure: Upon receipt of a petition for extradition and its supporting
documents, the judge must study them and make, as soon as possible, a prima facie
finding whether (a) they are sufficient in form and substance, (b) they show compliance
with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his
discretion, the judge may require the submission of further documentation or may
personally examine the affiants and witnesses of the petitioner. If, in spite of this study
and examination, no prima facie finding is possible, the petition may be dismissed at the
discretion of the judge. On the other hand, if the presence of a prima facie case is
determined, then the magistrate must immediately issue a warrant for the arrest of the
extraditee, who is at the same time summoned to answer the petition and to appear at
scheduled summary hearings. Prior to the issuance of the warrant, the judge must not
inform or notify the potential extraditee of the pendency of the petition, lest the latter be
given the opportunity to escape and frustrate the proceedings. In our opinion, the
foregoing procedure will "best serve the ends of justice" in extradition cases.

7. ID.; CONSTITUTIONAL LAW; RIGHTS OF AN ACCUSED; RIGHT TO BAIL;

APPLIES ONLY TO ORDINARY CRIMINAL CASES AND NOT TO EXTRADITION
PROCEEDINGS. As suggested by the use of the word "conviction," the constitutional
provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court,
applies only when a person has been arrested and detained for violation of Philippine
criminal laws. It does not apply to extradition proceedings, because extradition courts do
not render judgments of conviction or acquittal. Moreover, the constitutional right to bail
"flows from the presumption of innocence in favor of every accused who should not be
subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his
guilt be proved beyond reasonable doubt." It follows that the constitutional provision on
bail will not apply to a case like extradition, where the presumption of innocence is not at
issue.
IaSAHC

8. ID.; ID.; ID.; ID.; EXCEPTION. The rule, we repeat, 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 and tyranny, as well as 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 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 every situation calling for its application." 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 be applied for and granted as an
exception, only upon a clear and convincing showing (1) that, once granted bail, the
applicant will not be a flight risk or a danger to the community; and (2) that there exist
special, humanitarian and compelling circumstances including, as a matter of reciprocity,
those cited by the highest court in the requesting state when it grants provisional liberty
in extradition cases therein.
9. ID.; ID.; ID.; RIGHT TO DUE PROCESS; SUFFICIENCY OF A SUBSEQUENT
OPPORTUNITY TO BE HEARD ONCE EXTRADITEE IS PLACED UNDER THE
EXTRADITION COURT'S CUSTODY, EXPLAINED; CASE AT BAR. Contrary to
the contention, of Jimenez his detention prior to the conclusion of the extradition
proceedings does not amount to a violation of his right to due process. We reiterate the
familiar doctrine that the essence of due process is the opportunity to be heard but, at the
same time, point out that the doctrine does not always call for a prior opportunity to be
heard. Where the circumstances such as those present in an extradition case call for
it, a subsequent opportunity to be heard is enough. In the present case, respondent will be
given full opportunity to be heard subsequently, when the extradition court hears the
Petition for Extradition. Hence, there is no violation of his right to due process and
fundamental fairness. Contrary to his contention, we find no arbitrariness, either, in the
immediate deprivation of his liberty prior to his being heard. That his arrest and detention
will not be arbitrary is sufficiently ensured by (1) the DOJ's filing in court the Petition
with its supporting documents after a determination that the extradition request meets the
requirements of the law and the relevant treaty; (2) the extradition judge's independent
prima facie determination that his arrest will best serve the ends of justice before the
issuance of a warrant for his arrest; and (3) his opportunity, once he is under the court's
custody, to apply for bail as an exception to the no-initial-bail rule.
BELLOSILLO, J., separate opinion:
1. CONSTITUTIONAL LAW; RIGHTS OF AN ACCUSED; RIGHT TO BAIL;
POWER TO ADMIT BAIL EXISTS IN EXTRADITION PROCEEDINGS UNDER
"EXCEPTIONAL CIRCUMSTANCES." The government maintains that an
extradition court has no power to authorize bail in the absence of any law conferring such
power; and that the 1987 Constitution, as well as the Rules of Court, as amended, applies
only to persons arrested and detained for violation of Philippine Laws, but not to
extradition proceedings in which courts do not render judgments of conviction or
acquittal. The argument is as ingenious as it is fallacious. It is settled that the power to
admit to bail exists in extradition proceedings, although as a matter of policy it may only
be granted under "exceptional circumstances." This, quintessentially, has been the
doctrine advocated in a cavalcade of American cases starting with Wright v. Henkel, 190
US 40 (1902); and worth mentioning, of course, are Paretti Y. United States, 112 F. 3d
1363 (1977), Bealieu v. Hartigan, 430 F. Supp. 915 (1977), and In re Kirby, et al., 106 F.

3d 855 (1996); which are also discussed extensively by Mr. Justice Puno. . . . Truly, there
is neither logic nor persuasion to the suggestion that bail should only be allowed in
criminal cases, or that class of cases where courts must "render judgments of conviction
or acquittal." Bail as a remedy is available where there is deprivation of liberty prior or
during trial. In the 1909 case of United States v. Go Siaco, akin to the situation
confronting us, but involving a deportation proceeding, this Court allowed the potential
deportee to post bail although a deportation proceeding is not criminal in nature and there
was then no law providing for bail in deportation cases.
2. ID.; ID.; ID.; RISK OF FLIGHT DOES NOT IPSO FACTO CALL FOR DENIAL OF
BAIL; CASE AT BAR. We cannot curtail a citizen's right to freedom on speculations
and fears where there exist reasonable mechanisms appropriate to address them. To my
mind, the risk of flight does not ipso facto call for denying his right to bail. Trial judges
must henceforth weigh carefully and judiciously other methods to assure the presence of
the accused during the proceedings and right after, when he ought to be deported already.
Bail may be set at huge amounts or passports cancelled and hold-departure orders issued
or border patrols heightened, in order that the extraditee may not flee from our
jurisdiction. In this regard, while I agree that it is the extraditee's burden to prove the least
likelihood of flight, the extradition court is also entitled to presume that the executive
branch has done all it can to forestall his sudden disappearance. The executive branch
cannot plead its helplessness and inutility to defeat the grant of bail to the extraditee. In
any event, all things being equal, the personal circumstances of respondent Jimenez
would negate any idea of flight risk. He is a popular, even notorious, fellow whose face is
more frequently than others plastered in the tri-media. His stature as representative for a
congressional district in Manila makes escape from Philippine jurisdiction not only
embarrassing for him but also constitutive of the offense of abandonment of duty. His
family and business interests are said to be strategically placed in this country. Indeed,
where respondent Jimenez has more to lose from flight, the possibility thereof appears
remote and speculative.
CIaHDc

PUNO, J., separate opinion:

1. POLITICAL LAW; INTERNATIONAL LAW; EXTRADITION TREATY;
EXTRADITING JUDGE HAS THE DISCRETION TO DETERMINE WHETHER TO
NOTIFY AND HEAR A POTENTIAL EXTRADITEE 'BEFORE ORDERING HIS
ARREST. I submit that the decision whether to send notice to an extraditee and hear
him before ordering his arrest should be left to the sound discretion of the extraditing
judge. This is crystal clear from section 6 of P.D. No. 1069. . . . Under this provision, the
issuance of a warrant of arrest is dependent on a big "if" or to an all important condition .
. . if it will serve the ends of justice. The determination of whether a warrant of arrest
against an extraditee will serve the ends of justice is certainly not a cut and dried duty. It
involves the appreciation of highly contentious facts, both objective and subjective in
nature. Their appreciation requires a judicial mind honed in the law of evidence. The

history of extradition will reveal that, initially, the task of determining whether an
extraditee should be immediately arrested was given to the executive authorities of the
extraditing state. The matter, in other words, was treated purely as an executive function
but unfortunately, the practice was given to abuses. Recognizing that certain human
rights are universal in nature and beyond violation, the task of adjudging whether a
potential extraditee should be immediately arrested pending his extradition proceeding
was transferred to judges. The office of the judge was called upon to insure that
fundamental fairness is not denied to a potential extraditee. The extraditing judge is not to
act as a stamp pad but has to exercise his sound discretion on whether to issue the
warrant. Under our law on extradition, P.D. No. 1069, Section 6, the discretion of the
extradition judge on whether to order the arrest of the extraditee is guided by the
following consideration . . . whether the arrest will serve the ends of justice. The grant of
this judicial discretion will be rendered naught if we subject the action of the extraditing
judge to unnecessary fetters.
2. ID.; ID.; ID.; MERE SILENCE OF OUR EXTRADITION TREATY WITH THE
UNITED STATES AND OUR EXTRADITION LAW (P.D. NO. 1069) DOES NOT
NEGATE THE RIGHT TO BAIL OF A POTENTIAL EXTRADITEE. The mere
silence of our extradition treaty with the United States and our extradition law (P.D. No.
1069) does not negate the right to bail of a potential extraditee. Our adherence to the
Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights, as well as international norms, customs and practices support an
extraditee's right to bail. But while an extraditee may apply for bail, its grant depends on
presentation of clear and convincing evidence that the extraditee will not frustrate the
ends of justice by fleeing from our jurisdiction.

VITUG, J., separate opinion:

1. POLITICAL LAW; INTERNATIONAL LAW; TREATIES; TREATY LAWS, LIKE
ALL OTHER MUNICIPAL LAWS, ARE SUBJECT TO THE PARAMETERS SET
FORTH IN THE CONSTITUTION. Treaty laws, particularly those which are selfexecuting, have equal stature as national statutes and, like all other municipal laws, are
subject to the parameters set forth in the Constitution. The Constitution, being both a
grant and a circumscription of government authority by the sovereign people, presents the
ultimate yardstick of power and its limitation upon which an act of government is justly
measured. This instrument contains a rule for all agencies of the government and any act
in opposition thereto can only be struck down as being invalid and without effect. When
the great Charter gives a mandate, the government can do no less than to accept it; its
rejection would be an act of betrayal. The edict in its Bill of Rights granting to all
persons, without distinction, the fundamental right to bail, is clear. No statute or treaty
can abrogate or discard its language and its intent. . . . Nowhere in the Extradition Treaty

with the United States is the grant of bail mentioned but so also it is not prohibited. This
obscurity must not be held to negate the right to bail; on the contrary, it should be viewed
as allowing, at the very least, the evident intendment and spirit of the fundamental law to
prevail.
aSD CIE

2. CONSTITUTIONAL LAW; RIGHTS OF AN ACCUSED; RIGHT TO BAIL; MUST

APPLY TO EXTRADITION PROCEEDINGS WHICH HAS ALL THE EARMARKS
OF A CRIMINAL PROCESS. The draft ponencia would assume that the Constitution
confines the grant of provisional liberty to criminal cases, and that it has no application to
extradition proceedings. This assumption would have reason for being if it were solely in
criminal cases that a person could face an imminent threat of deprivation of his right to
life or liberty, for indeed, it is this threat, rather than the case nomenclature, that must be
the focus, and it would be superficial to think otherwise. While defying a neat definition,
extradition has all the earmarks of a criminal process an extraditee would suffer
deprivations, be denied his freedom and restricted in his movements, not much unlike a
criminal indictee. Extradition proceedings involve an extended restraint of liberty
following arrest, peculiar to an accused in a criminal case, which can even be more
severe than an accompanying detention in a single state, for, at a minimum, it can mean
protracted proceedings in both the asylum state and the demanding state and a forced
transportation in between. In Herras Teehankee vs. Rovira, the Court observed that bail is
constitutionally available to all persons, even those against whom no formal charges are
filed.
CARPIO, J., concurring opinion:
1. CONSTITUTIONAL LAW; RIGHTS OF AN ACCUSED; RIGHT TO BAIL; RIGHT
AVAILABLE TO AN ACCUSED IN DOMESTIC CRIMINAL PROCEEDINGS;
EXTRADITEE CANNOT INVOKE RIGHT TO BAIL IN INTERNATIONAL
EXTRADITION. The right to bail is a constitutional right available to an accused in
domestic criminal proceedings except in offenses punishable by reclusion perpetua or
higher when evidence of guilt is strong. An extraditee, however, cannot invoke this
constitutional right in international extradition because extradition proceedings are not
criminal proceedings. Extradition proceedings are like deportation and court martial
proceedings where there is no constitutional right to bail.
2. POLITICAL LAW; INTERNATIONAL LAW; EXTRADITION; ESSENCE
THEREOF; CASE AT BAR. In essence, extradition is police assistance extended by a
state to arrest a person charged with a crime in another state and surrender him to the
authorities of that state. The power to arrest by the assisting state is legitimized by a
treaty, which has the force of a statute and forms part of municipal law. The benefit of
extradition is the mutual assistance between states in criminal law enforcement across
national boundaries. The assisting state acts as an arresting agent and in some
jurisdictions the extradition process is mainly an executive function. Even under our

extradition treaties, the final decision whether to extradite or not rests with the President
of the Philippines, not with the courts. Thus ordinarily an assisting state does not grant
bail to the extraditee whose recourse is to apply for bail before the court of the state
where he is charged with a crime. The assisting state, however, for equity considerations
may choose to accord bail to the extraditee. One equity consideration is to put extraditees
in one country in equal footing with extraditees in the country of the treaty partner.
Another equity consideration is to grant the right to bail, in carefully limited exceptions,
to preserve and enforce fundamental rights. This rule will not change the situation for
extraditee Mark B. Jimenez in the instant case because Jimenez has failed to establish
that he is not a flight risk. Having fled the United States just as he was about to be
indicted for several serious crimes, Jimenez is presumed to be a flight risk for extradition
purposes in this country. Jimenez has not successfully rebutted this presumption before
the extradition court. Jimenez has also refused to honor his agreement with the U.S.
Department of Justice, made in August 1998 through his U.S. counsel, to return to the
United States where he faces a maximum prison term of not less than 100 years if
convicted on all counts, Given his resources, and the gravity of the charges against him,
Jimenez remains a serious flight risk.
YNAREZ-SANTIAGO, J., dissenting opinion:
1. CONSTITUTIONAL LAW; RIGHTS OF AN ACCUSED; RIGHT TO DUE
PROCESS; DUE PROCESS IS ESSENTIAL IN ALL COURT PROCEEDINGS
CRIMINAL, CIVIL, INVESTIGATORY, ADMINISTRATIVE OR SUI GENERIS;
CASE AT BAR. I submit that we must consider the implications of a ruling that in
criminal proceedings, the constitutional rights of the accused must be protected, but in
case neither criminal nor civil, one which we call "sui generis," basic freedoms become
irrelevant and non-available. A non-criminal proceeding, less onerous and repulsive to
society than prosecution for crime, and where the penalty is only to be brought for trial
before the court with jurisdiction, is stripped of guarantees and protections given to hardboiled recidivists pending arrest and trial. We have denied a prospective extraditee the
right to be informed before trial of the nature and cause of the charges against him. Due
process is essential in all court proceedings criminal civil, investigatory,
administrative, or even sui generis, a class the Court uses as an excuse to justify
deprivation of that most elemental of rights, the right of notice. The Court has ruled that
respondent Mark Jimenez or any other person sought to be extradited must first be
exposed to the indignity, expense, and anxiety of a public denunciation in court before he
may be informed of what the requesting State has against him. The right to notice before
trial is denied. The majority opinion states that a prospective extraditee is not entitled to
notice and hearing before a warrant of arrest can be issued against him. Worse, he is
denied the right to bail and provisional liberty while the extradition proceedings are
pending. All the jurisprudence explaining the parameters of the unreasonable searches
and seizures provision of the Constitution becomes inapplicable. The petition for
extradition and its attachments take the place of probable cause. The right against

unreasonable search and seizure is available to all persons including those not charged
with any crime. But now, we create an unusual exception. It is not available to one who
may be seized against his will for possible extradition to a country where his innocence
or guilt will first be determined. Arrest and imprisonment will become virtually certain in
extradition proceedings. The only thing required of the Court is to go over the request for
extradition and its supporting documents. Arrest is virtually assured because of the
absence of notice and hearing. It is inconceivable that the officials of a requesting State
would be so dense or careless as to fail to include in the request for extradition a prima
facie showing that the respondent deserves to be seized and forcibly brought to the
foreign country for trial. According to the majority opinion, from the forwarded
documents, we expect the trial court to "merely . . . get a good first impression sufficient
to make a speedy initial determination as regards the arrest and detention of the accused."
This novel doctrine justifying the near certainty of automatic arrest and detention goes
against this Court's decision, too numerous to mention, protecting citizens and aliens
alike from unreasonable arrests or seizures. Can we expect anything other than a "good
first impression" to arise from the mere reading of a request for extradition?
IcDCa T

2. ID.; ID.; RIGHT TO BAIL; SHOULD APPLY TO PERSONS FACING TRIAL FOR
EXTRADITION. The Court should apply the same principles on the right to bail
found in the Constitution to persons facing trial for extradition. Thus, all persons; except
those where the probability of flight is clear and present or the crimes for which
extradition is sought are heinous, shall before judgment in the extradition proceedings, be
bailable by sufficient sureties or be released on recognizance as may be provided by law.
The right to bail shall not be impaired even where the requesting country is one with
which the Philippines maintains strong ties. Excessive bail shall not be required.

DECISION

PANG ANIBAN, J. :
p

In extradition proceedings, are prospective extraditees entitled to notice and hearing

before warrants for their arrest can be issued? Equally important, are they entitled to the
right to bail and provisional liberty while the extradition proceedings are pending? In
general, the answer to these two novel questions is "No." The explanation of and the
reasons for, as well as the exceptions to, this rule are laid out in this Decision.

The Case

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void
and set aside the Orders dated May 23, 2001 1 and July 3, 2001 2 issued by the Regional
Trial Court (RTC) of Manila, Branch 42. 3 The first assailed Order set for hearing
petitioner's application for the issuance of a warrant for the arrest of Respondent Mark B.
Jimenez.
The second challenged Order, on the other hand, directed the issuance of a warrant, but at
the same time granted bail to Jimenez. The dispositive portion of the Order reads as
follows:
"WHEREFORE, in the light of the foregoing, the [Court] finds probable cause
against respondent Mark Jimenez. Accordingly let a Warrant for the arrest of
the respondent be issued. Consequently and taking into consideration Section 9,
Rule 114 of the Revised Rules of Criminal Procedure, this Court fixes the
reasonable amount of bail for respondent's temporary liberty at ONE MILLION
PESOS (Php 1,000,000.00), the same to be paid in cash.
"Furthermore respondent is directed to immediately surrender to this Court his
passport and the Bureau of Immigration and Deportation is likewise directed to
include the name of the respondent in its Hold Departure List." 4

Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the
bond, and the taking of Jimenez into legal custody.
The Facts
This Petition is really a sequel to G.R. No. 139465 entitled Secretary of Justice v. Ralph
C. Lantion. 5
Pursuant to the existing RP-US Extradition Treaty, 6 the United States Government,
through diplomatic channels, sent to the Philippine Government Note Verbale No. 0522
dated June 16, 1999, supplemented by Note Nos. 0597, 0720 and 0809 and accompanied
by duly authenticated documents requesting the extradition of Mark B. Jimenez, also
known as Mario Batacan Crespo. Upon receipt of the Notes and documents, the secretary
of foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate
action, pursuant to Section 5 of Presidential Decree (PD) No. 1069, also known as the
Extradition Law.
Upon learning of the request for his extradition, Jimenez sought and was granted a
Temporary Restraining Order (TRO) by the RTC of Manila, Branch 25. 7 The TRO
prohibited the Department of Justice (DOJ) from filing with the RTC a petition for his
extradition. The validity of the TRO was, however, assailed by the SOJ in a Petition
before this Court in the said GR No. 139465. Initially, the Court by a vote of 9-6
dismissed the Petition. The SOJ was ordered to furnish private respondent copies of the

extradition request and its supporting papers and to grant the latter a reasonable period
within which to file a comment and supporting evidence. 8
Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October
17, 2000 Resolution. 9 By an identical vote of 9-6 after three justices changed their
votes it reconsidered and reversed its earlier Decision. It held that private respondent
was bereft of the right to notice and hearing during the evaluation stage of the extradition
process. This Resolution has become final and executory.
Finding no more legal obstacle, the Government of the United States of America,
represented by the Philippine DOJ, filed with the RTC on May 18, 2001, the appropriate
Petition for Extradition which was docketed as Extradition Case No. 01192061. The
Petition alleged, inter alia, that Jimenez was the subject of an arrest warrant issued by the
United States District Court for the Southern District of Florida on April 15, 1999. The
warrant had been issued in connection with the following charges in Indictment No. 9900281 CR-SEITZ: (1) conspiracy to defraud the United States and to commit certain
offenses in violation of Title 18 US Code Section 371; (2) tax evasion, in violation of
Title 26 US Code Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections
1343 and 2; (4) false statements, in violation of Title 18 US Code Sections 1001 and 2;
and (5) illegal campaign contributions, in violation of Title 2 US Code Sections 441b,
441f and 437g(d) and Title 18 US Code Section 2. In order to prevent the flight of
Jimenez, the Petition prayed for the issuance of an order for his "immediate arrest"
pursuant to Section 6 of PD No. 1069.
Before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent
Manifestation/Ex-Parte Motion," 10 which prayed that petitioner's application for an
arrest warrant be set for hearing.
In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the
case for hearing on June 5, 2001. In that hearing, petitioner manifested its reservations on
the procedure adopted by the trial court allowing the accused in an extradition case to be
heard prior to the issuance of a warrant of arrest.
After the hearing, the court a quo required the parties to submit their respective
memoranda. In his Memorandum, Jimenez sought an alternative prayer: that in case a
warrant should issue, he be allowed to post bail in the amount of P100,000.
The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter,
the court below issued its questioned July 3, 2001 Order, directing the issuance of a
warrant for his arrest and fixing bail for his temporary liberty at one million pesos in
cash. 11 After he had surrendered his passport and posted the required cash bond,
Jimenez was granted provisional liberty via the challenged Order dated July 4, 2001. 12

Hence, this Petition. 13

Issues
Petitioner presents the following issues for the consideration of this Court:
I.
"The public respondent acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction in adopting a
procedure of first hearing a potential extraditee before issuing an arrest warrant
under Section 6 of PD No. 1069.
II.
"The public respondent acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction in granting the
prayer for bail and in allowing Jimenez to go on provisional liberty because:
'1. An extradition court has no power to authorize bail, in the absence of any
law that provides for such power.
'2. Section 13, Article III (right to bail clause) of the 1987 Philippine
Constitution and Section 4, Rule 114 (Bail) of the Rules of Court, as amended,
which [were] relied upon, cannot be used as bases for allowing bail in
extradition proceedings.
'3. The presumption is against bail in extradition proceedings or proceedings
leading to extradition.
'4. On the assumption that bail is available in extradition proceedings or
proceedings leading to extradition, bail is not a matter of right but only of
discretion upon clear showing by the applicant of the existence of special
circumstances.
'5. Assuming that bail is a matter of discretion in extradition proceedings, the
public respondent received no evidence of 'special circumstances' which may
justify release on bail.
'6. The risk that Jimenez will flee is high, and no special circumstance exists
that will engender a well- founded belief that he will not flee.
'7. The conditions attached to the grant of bail are ineffectual and do not ensure
compliance by the Philippines with its obligations under the RP-US Extradition
Treaty.

'8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case
entitled 'Eduardo T. Rodriguez et al. vs. The Hon. Presiding Judge, RTC,
Branch 17, Manila,' CA- G.R. SP No. 64589, relied upon by the public
respondent in granting bail, had been recalled before the issuance of the subject
bail orders."' 14

In sum, the substantive questions that this Court will address are: (1) whether Jimenez is
entitled to notice and hearing before a warrant for his arrest can be issued, and (2)
whether he is entitled to bail and to provisional liberty while the extradition proceedings
are pending. Preliminarily, we shall take up the alleged prematurity of the Petition for
Certiorari arising from petitioner's failure to file a Motion for Reconsideration in the
RTC and to seek relief in the Court of Appeals (CA), instead of in this Court. 15 We shall
also preliminarily discuss five extradition postulates that will guide us in disposing of the
substantive issues.
SDIa CT

The Court's Ruling

The Petition is meritorious.
Preliminary Matters
Alleged Prematurity
of Present Petition
Petitioner submits the following justifications for not filing a Motion for
Reconsideration in the Extradition Court: "(1) the issues were fully considered by
such court after requiring the parties to submit their respective memoranda and
position papers on the matter and thus, the filing of a reconsideration motion would
serve no useful purpose; (2) the assailed orders are a patent nullity, absent factual and
legal basis therefor; and (3) the need for relief is extremely urgent, as the passage of
sufficient time would give Jimenez ample opportunity to escape and avoid
extradition; and (4) the issues raised are purely of law." 16
For resorting directly to this Court instead of the CA, petitioner submits the following
reasons: "(1) even if the petition is lodged with the Court of Appeals and such appellate
court takes cognizance of the issues and decides them, the parties would still bring the
matter to this Honorable Court to have the issues resolved once and for all [and] to have a
binding precedent that all lower courts ought to follow; (2) the Honorable Court of
Appeals had in one case 17 ruled on the issue by disallowing bail but, the court below
refused to recognize the decision as a judicial guide and all other courts might likewise
adopt the same attitude of refusal; and (3) there are pending issues on bail both in the
extradition courts and the Court of Appeals, which, unless guided by the decision that this
Honorable Court will render in this case, would resolve to grant bail in favor of the
potential extraditees and would give them opportunity to flee and, thus, cause adverse

effect on the ability of the Philippines to comply with its obligations under existing
extradition treaties." 18

As a general rule, a petition for certiorari before a higher court will not prosper unless
the inferior court has been given, through a motion for reconsideration, a chance to
correct the errors imputed to it. This rule, though, has certain exceptions: (1) when the
issue raised is purely of law, (2) when public interest is involved, or (3) in case of
urgency. 19 As a fourth exception, the Court has also ruled that the filing of a motion for
reconsideration before availment of the remedy of certiorari is not a sine qua non, when
the questions raised are the same as those that have already been squarely argued and
exhaustively passed upon by the lower court. 20 Aside from being of this nature, the
issues in the present case also involve pure questions of law that are of public interest.
Hence, a motion for reconsideration may be dispensed with.
Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue
writs of certiorari when there are special and important reasons therefor. 21 In Fortich v.
Corona 22 we stated:
"[T]he Supreme Court has the full discretionary power to take cognizance of the
petition filed directly [before] it if compelling reasons, or the nature and
importance of the issues raised, warrant. This has been the judicial policy to be
observed and which has been reiterated in subsequent cases, namely: Uy vs.
Contreras, et al., Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs.
Legaspi, et al. As we have further stated in Cuaresma:
'. . . . A direct invocation of the Supreme Court's original jurisdiction to
issue these writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in the
petition. This is established policy. . . . .'
"Pursuant to said judicial policy, we resolve to take primary jurisdiction over
the present petition in the interest of speedy justice and to avoid future
litigations so as to promptly put an end to the present controversy which, as
correctly observed by petitioners, has sparked national interest because of the
magnitude of the problem created by the issuance of the assailed resolution.
Moreover, . . . requiring the petitioners to file their petition first with the Court
of Appeals would only result in a waste of time and money.
"That the Court has the power to set aside its own rules in the higher interests of
justice is well-entrenched in our jurisprudence. We reiterate what we said in
Piczon vs. Court of Appeals: 23

'Be it remembered that rules of procedure are but mere tools designed to
facilitate the attainment of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate rather than
promote substantial justice, must always be avoided. Time and again,
this Court has suspended its own rules and excepted a particular case
from their operation whenever the higher interests of justice so require.
In the instant petition, we forego a lengthy disquisition of the proper
procedure that should have been taken by the parties involved and
proceed directly to the merits of the case.'

In a number of other exceptional cases, 24 we held as follows:

"This Court has original jurisdiction, concurrent with that of Regional Trial
Courts and the Court of Appeals, over petitions for certiorari, prohibition,
mandamus, quo warranto and habeas corpus, and we entertain direct resort to
us in cases where special and important reasons or exceptional and compelling
circumstances justify the same."

In the interest of justice and to settle once and for all the important issue of bail in
extradition proceedings, we deem it best to take cognizance of the present case. Such
proceedings constitute a matter of first impression over which there is, as yet, no local
jurisprudence to guide lower courts.
Five Postulates
of Extradition
The substantive issues raised in this case require an interpretation or construction of the
treaty and the law on extradition. A cardinal rule in the interpretation of a treaty or a law
is to ascertain and give effect to its intent. 25 Since PD 1069 is intended as a guide for the
implementation of extradition treaties to which the Philippines is a signatory, 26
understanding certain postulates of extradition will aid us in properly deciding the issues
raised here.
1 . Extradition Is a Major Instrument for the Suppression of Crime.
First, extradition treaties are entered into for the purpose of suppressing crime 27 by
facilitating the arrest and the custodial transfer 28 of a fugitive 29 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 and evading
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 upon
extradition as the major effective instrument of international co-operation in the
suppression of crime." 30 It is the only regular system that has been devised to return
fugitives to the jurisdiction of a court competent to try them in accordance with municipal
and international law. 31
"An important practical effect . . . of the recognition of the principle that
criminals should be restored to a jurisdiction competent to try and punish them
is that the number of criminals seeking refuge abroad will be reduced. For to the
extent that efficient means of detection and the threat of punishment play a
significant role in the deterrence of crime within the territorial limits of a State,
so the existence of effective extradition arrangements and the consequent
certainty of return to the locus delicti commissi play a corresponding role in the
deterrence of flight abroad in order to escape the consequence of crime. . . . .
From an absence of extradition arrangements flight abroad by the ingenious
criminal receives direct encouragement and thus indirectly does the commission
of crime itself." 32

In Secretary v. Lantion 33 we explained:

"The Philippines also has a national interest to help in suppressing crimes and
one way to do it is to facilitate the extradition of persons covered by treaties
duly entered [into] by our government. More and more, crimes are becoming
the concern of one world. Laws involving crimes and crime prevention are
undergoing universalization. One manifest purpose of this trend towards
globalization is to deny easy refuge to a criminal whose activities threaten the
peace and progress of civilized countries. It is to the great interest of the
Philippines to be part of this irreversible movement in light of its vulnerability
to crimes, especially transnational crimes."

Indeed, in this era of globalization, easier and faster international travel, and an
expanding ring of international crimes and criminals, we cannot afford to be an
isolationist state. We need to cooperate with other states in order to improve our chances
of suppressing crime in our own country.
2 . The Requesting State Will Accord Due Process to the Accused
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. 34 More
pointedly, our duly authorized representative's signature on an extradition treaty signifies
our confidence in the capacity and the willingness of the other state to protect the basic
rights of the person sought to be extradited. 35 That signature signifies our full faith that
the accused will be given, upon extradition to the requesting state, all relevant and basic
rights in the criminal proceedings that 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, 36 extradition proceedings 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.
"An extradition [proceeding] is sui generis. It is not a criminal proceeding
which will call into operation all the rights of an accused as guaranteed by the
Bill of Rights. To begin with, the process of extradition does not involve the
determination of the guilt or innocence of an accused. His guilt or innocence
will be adjudged in the court of the state where he will be extradited. Hence, as
a rule, constitutional rights that are only relevant to determine the guilt or
innocence of an accused cannot be invoked by an extraditee . . . .
xxx xxx xxx
"There are other differences between an extradition proceeding and a criminal
proceeding. An extradition proceeding is summary in nature while criminal
proceedings involve a full-blown trial. In contradistinction to a criminal
proceeding, the rules of evidence in an extradition proceeding allow admission
of evidence under less stringent standards. In terms of the quantum of evidence
to be satisfied, a criminal case requires proof beyond reasonable doubt for
conviction while a fugitive may be ordered extradited 'upon showing of the
existence of a prima facie case.' Finally, unlike in a criminal case where
judgment becomes executory upon being rendered final, in an extradition
proceeding, our courts may adjudge an individual extraditable but the President
has the final discretion to extradite him. The United States adheres to a similar
practice whereby the Secretary of State exercises wide discretion in balancing
the equities of the case and the demands of the nation's foreign relations before
making the ultimate decision to extradite."

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. 37 Such determination
during the extradition proceedings will only result 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 restored to a jurisdiction with the best
claim to try that person. It is not part of the function of the assisting authorities to enter
into questions that are the prerogative of that jurisdiction. 38 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. 39

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
that its implementation will serve the national interest.
Fulfilling our obligations under the Extradition Treaty promotes comity 40 with the
requesting state. On the other hand, failure to fulfill our obligations thereunder paints a
bad image of our country before the world community. Such failure would discourage
other states from entering into treaties with us, particularly an extradition treaty that
hinges on reciprocity. 41
Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations
under the Treaty. 42 This principle requires that we deliver the accused to the requesting
country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied.
In other words, "[t]he demanding government, where it has done all that the treaty and
the law require it to do, is entitled to the delivery of the accused on the issue of the proper
warrant, and the other government is under obligation to make the surrender." 43
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 facie
presumption finds reinforcement in the experience 44 of the executive branch: nothing
short of confinement can ensure that the accused will not flee the jurisdiction of the
requested state in order to thwart their extradition to the requesting state.
The present extradition case further validates the premise that persons sought 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 the requesting country. 45 Prior acts of
herein respondent (1) leaving the requesting state right before the conclusion of his
indictment proceedings there; and (2) remaining in the requested state despite learning
that the requesting state is seeking his return and that the crimes he is charged with are
bailable eloquently speak of his aversion to the processes in the requesting state, as
well as his predisposition to avoid them at all cost. These circumstances point to an everpresent, underlying high risk of flight. He has demonstrated 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 second time?
First Substantive Issue:
Is Respondent Entitled to Notice and Hearing
Before the Issuance of a Warrant of Arrest?

Petitioner contends that the procedure adopted by the RTC informing the accused, a
fugitive from justice, that an Extradition Petition has been filed against him, and that
petitioner is seeking his arrest gives him notice to escape and to avoid extradition.
Moreover, petitioner pleads that such procedure may set a dangerous precedent, in that
those sought to be extradited including terrorists, mass murderers and war criminals
may invoke it in future extradition cases.
On the other hand, Respondent Jimenez argues that he should not be hurriedly and
arbitrarily deprived of his constitutional right to liberty without due process. He further
asserts that there is as yet no specific law or rule setting forth the procedure prior to the
issuance of a warrant of arrest, after the petition for extradition has been filed in court;
ergo, the formulation of that procedure is within the discretion of the presiding judge.
Both parties cite Section 6 of PD 1069 in support of their arguments. It states:
"SEC. 6. Issuance of Summons; Temporary Arrest, Hearing, Service of Notices.
(1) Immediately upon receipt of the petition, the presiding judge of the court
shall, as soon as practicable, summon the accused to appear and to answer the
petition on the day and hour fixed in the order. [H]e may issue a warrant for the
immediate arrest of the accused which may be served any where within the
Philippines if it appears to the presiding judge that the immediate arrest and
temporary detention of the accused will best serve the ends of justice. Upon
receipt of the answer, or should the accused after having received the summons
fail to answer within the time fixed, the presiding judge shall hear the case or
set another date for the hearing thereof.
"(2) The order and notice as well as a copy of the warrant of arrest, if issued,
shall be promptly served each upon the accused and the attorney having charge
of the case." (Emphasis ours)

Does this provision sanction RTC Judge Purganan's act of immediately setting for
hearing 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 rendered
nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending
notices to the opposing parties, 46 receiving facts and arguments 47 from them, 48 and
giving them time to prepare and present such facts and arguments. Arrest subsequent to a
hearing can no longer be considered "immediate." The law could not have intended the
word as a mere superfluity but, on the whole, as a means of imparting a sense of urgency
and swiftness in the 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 as
important as speed at such early stage. The trial court is not expected to make an
exhaustive determination to ferret out the true and actual situation, immediately upon the
filing of the petition. From the knowledge and the material then available to it, the court
is expected merely to get a good first impression a prima facie finding sufficient to
make a speedy initial determination as regards the arrest and detention of the accused.
Attached to the Petition for Extradition, with a Certificate of Authentication among
others, were the following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr.
Michael E. Savage trial attorney in the Campaign Financing Task Force of the
Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary
Appendices of various exhibits that constituted evidence of the crimes charged in the
Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence
of the crimes charged in the Indictment); (3) Annex BB, the Exhibit I "Appendix of
Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers" and enclosed
Statements in two volumes; (4) Annex GG, the Exhibit J "Table of Contents for
Supplemental Evidentiary Appendix" with enclosed Exhibits 121 to 132; and (5) Annex
MM, the Exhibit L "Appendix of Witness [excerpts] Statements Referenced in the
Affidavit of Betty Steward" and enclosed Statements in two volumes. 49
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 was
someone 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 a
reasonably discreet and prudent person to believe that the extradition request was prima
facie meritorious. In point of fact, he actually concluded from these supporting
documents that "probable cause" did exist. In the second questioned Order, he stated:
"In the instant petition, the documents sent by the US Government in support of
[its] request for extradition of herein respondent are enough to convince the
Court of the existence of probable cause to proceed with the hearing against the
extraditee." 50

We stress that the prima facie existence of probable cause for hearing the petition and, a
priori, for issuing an arrest warrant was already evident from the Petition itself and its
supporting documents. Hence, after having already determined therefrom that a prima
facie finding did exist, respondent judge gravely abused his discretion when he set the
matter for hearing upon motion of Jimenez. 51
Moreover, the law specifies that the court sets a hearing upon receipt of the answer or
upon failure of the accused to answer after receiving the summons. In connection with
the matter of immediate arrest, however, the word "hearing" is notably absent from the
provision. 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
proceedings are summary 52 in nature. Hence, the silence of the Law and the Treaty
leans to the more reasonable interpretation that there is no intention to punctuate with a
hearing every little step in the entire proceedings.
"It is taken for granted that the contracting parties intend something reasonable
and something not inconsistent with generally recognized principles of
International Law, nor with previous treaty obligations towards third States. If,
therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to be
preferred to the unreasonable, the more reasonable to the less reasonable . . . ."
53

Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the

request for their arrest and setting it for hearing at some future date would give them
ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law
could have intended that consequence, for the very purpose of both would have been
defeated by the escape 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. It provides:

"Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized."

To determine probable cause for the issuance of arrest warrants, the Constitution itself
requires only the examination under oath or affirmation of complainants and the
witnesses they may produce. There is no requirement to notify and hear the accused
before the issuance of warrants of arrest.
In Ho v. People 54 and in all the cases cited therein, never was a judge required to go to
the extent of conducting a hearing just for the purpose of personally determining probable
cause for the issuance of a warrant of arrest. All we required was that the "judge must
have sufficient supporting documents upon which to make his independent judgment, or
at the very least, upon which to verify the findings of the prosecutor as to the existence of
probable cause." 55

In Webb v. De Leon, 56 the Court categorically stated that a judge was not supposed to
conduct a hearing before issuing a warrant of arrest:
"Again, we stress that before issuing warrants of arrest, judges merely
determine personally the probability, not the certainty of guilt of an accused. In
doing so, judges do not conduct a de novo hearing to determine the existence of
probable cause. They just personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported by substantial
evidence."

At most, in cases of clear insufficiency of evidence on record, judges merely further

examine complainants and their witnesses. 57 In the present case, validating the act of
respondent judge and instituting the practice of hearing the accused and his witnesses at
this early stage would be discordant with the rationale for the entire system. If the
accused were allowed to be heard and necessarily to present evidence during the prima
facie determination for the issuance of a warrant of arrest, what would stop him from
presenting his entire plethora of defenses at this stage if he so desires in his effort
to negate a prima facie finding? Such a procedure could convert the determination of a
prima facie case into a full-blown trial of the entire proceedings 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 not
sufficient to justify the adoption of a set of procedures more protective of the accused. If
a different procedure were called for at all, a more restrictive one not the opposite
would be justified in view of respondent's demonstrated predisposition to flee.
aDHCAE

Since this is a matter of first impression, we deem it wise to restate the proper procedure:
Upon receipt of a petition for extradition and its supporting documents, the judge must
study them and make, as soon as possible, a prima facie finding whether (a) they are
sufficient in form and substance, (b) they show compliance with the Extradition Treaty
and Law, and (c) the person sought is extraditable. At his discretion, the judge may
require the submission of further documentation or may personally examine the affiants
and witnesses of the petitioner. If, in spite of this study and examination, no prima facie
finding 58 is possible, the petition may be dismissed at the discretion of the judge.
On the other hand, if the presence of a prima facie case is determined, then the magistrate
must immediately issue a warrant for the arrest of the extraditee, who is at the s ame time
summoned to answer the petition and to appear at scheduled summary hearings. Prior to
the issuance of the warrant, the judge must not inform or notify the potential extraditee of
the pendency of the petition, lest the latter be given the opportunity to escape and
frustrate the proceedings. In our opinion, the foregoing procedure will "best serve the
ends of justice" in extradition cases.

Second Substantive Issue:

Is Respondent Entitled to Bail?
Article III, Section 13 of the Constitution, is worded as follows:
"Art. III, Sec. 13. All persons, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall, before conviction, be
bailable by sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when the privilege
of the writ of habeas corpus is suspended. Excessive bail shall not be required."

Respondent Mark B. Jimenez maintains that this constitutional provision secures the right
to bail of all persons, including those sought to be extradited. Supposedly, the only
exceptions are the ones charged with offenses punishable with reclusion perpetua, when
evidence of guilt is strong. He also alleges the relevance to the present case of Section 4
59 of Rule 114 of the Rules of Court which, insofar as practicable and consistent with the
summary nature of extradition proceedings, shall also apply according to Section 9 of PD
1069.
On the other hand, petitioner claims that there is no provision in the Philippine
Constitution granting the right to bail to a person who is the subject of an extradition
request and arrest warrant.
Extradition Different from
Ordinary Criminal Proceedings
We agree with petitioner. As suggested by the use of the word "conviction, " the
constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the
Rules of Court, applies only when a person has been arrested and detained for violation
of Philippine criminal laws. It does not apply to extradition proceedings, because
extradition courts do not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of innocence in
favor of every accused who should not be subjected to the loss of freedom as thereafter
he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt." 60
It follows that the constitutional provision on bail will not apply to a case like extradition,
where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended" does not detract from the
rule that the constitutional right to bail is available only in criminal proceedings. It must
be 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 connected with invasion." 61 Hence, the second sentence in the constitutional

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 even in
extradition proceedings that are not criminal in nature.
That the offenses for which Jimenez is sought to be extradited are bailable in the United
States is not an argument to grant him one in the present case. To stress, extradition
proceedings are separate and distinct from the trial for the offenses for which he is
charged. He should apply for bail before the courts trying the criminal cases against him,
not before the extradition court.
No Violation
of Due Process
Respondent Jimenez cites the foreign case Paretti 62 in arguing that, constitutionally,
"[n]o one shall be deprived of . . . liberty . . . without due process of law."
Contrary to his contention, his detention prior to the conclusion of the extradition
proceedings does not amount to a violation of his right to due process. We iterate the
familiar doctrine that the essence of due process is the opportunity to be heard 63 but, at
the same time, point out that the doctrine does not always call for a prior opportunity to
be heard. 64 Where the circumstances such as those present in an extradition case
call for it, a subsequent opportunity to be heard is enough. 65 In the present case,
respondent will be given full opportunity to be heard subsequently, when the extradition
court hears the Petition for Extradition. Hence, there is no violation of his right to due
process and fundamental fairness.
Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate
deprivation of his liberty prior to his being heard. That his arrest and detention will not be
arbitrary is sufficiently ensured by (1) the DOJ's filing in court the Petition with its
supporting documents after a determination that the extradition request meets the
requirements of the law and the relevant treaty; (2) the extradition judge's independent
prima facie determination that his arrest will best serve the ends of justice before the
issuance of a warrant for his arrest; and (3) his opportunity, once he is under the court's
custody, 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 left
the 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
invocation of due process now has thus become hollow. He already had that opportunity
in the requesting 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 supposed
immediate deprivation of liberty without the due process that he had previously shunned
pales against the government's interest in fulfilling its Extradition Treaty obligations and
in cooperating with the world community in the suppression of crime. Indeed,
"[c]onstitutional liberties do not exist in a vacuum; the due process rights accorded to
individuals must be carefully balanced against exigent and palpable government
interests." 66

Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings
who, instead of facing the consequences of their actions, choose to run and hide. Hence,
it would not be good policy to increase the risk of violating our treaty obligations if,
through overprotection or excessively liberal treatment, persons sought to be extradited
are able to evade 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
extradition proceedings, 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 their prosecutors.
The denial of bail as a matter of course in extradition cases falls into place with and gives
life to Article 14 67 of the Treaty, since this practice would encourage the accused to
voluntarily surrender to the requesting state to cut short their detention here. Likewise,
their detention pending the resolution of extradition proceedings would fall into place
with the emphasis of the Extradition Law on the summary nature of extradition cases and
the need for their speedy disposition.
Exceptions to the
"No Bail" Rule
The rule, we repeat, 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 68 and tyranny, as
well as the power to promulgate rules to protect and enforce constitutional rights. 69
Furthermore, we believe that the right to due process is broad enough to include the grant
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 every
situation calling for its application." 70
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 be
applied for and granted as an exception, only upon a clear and convincing showing (1)

that, once granted bail, the applicant will not be a flight risk or a danger to the
community; and (2) that there exist special, humanitarian and compelling circumstances
71 including, as a matter of reciprocity, those cited by the highest court in the requesting
state when it grants provisional liberty in extradition cases therein.
Since this exception has no express or specific statutory basis, and since it is derived
essentially from general principles of justice and fairness, the applicant bears the burden
of proving the above two-tiered requirement with clarity, precision and emphatic
forcefulness. The Court realizes that extradition is basically an executive, not a judicial,
responsibility arising from the presidential power to conduct foreign relations. In its
barest concept, it partakes 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 be characterized by caution, so that the vital international and bilateral
interests of our country will not be unreasonably impeded or compromised. In short,
while this Court is ever protective of "the sporting idea of fair play," it also recognizes
the limits of its own prerogatives and the need to fulfill international obligations.
Along this line, Jimenez contends that there are special circumstances that are compelling
enough for the Court to grant his request for provisional release on bail. We have
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 disenfranchise
his Manila district of 600,000 residents. We are not persuaded. In People v. Jalosjos, 72
the Court has already debunked the disenfranchisement argument when it ruled thus:
"When the voters of his district elected the accused-appellant to Congress, they
did so with full awareness of the limitations on his freedom of action. They did
so with the knowledge that he could achieve only such legislative results which
he could accomplish within the confines of prison. To give a more drastic
illustration, if voters elect a person with full knowledge that he is suffering from
a terminal illness, they do so knowing that at any time, he may no longer serve
his full term in office.
"In the ultimate analysis, the issue before us boils down to a question of
constitutional equal protection.
"The Constitution guarantees: '. . . nor shall any person be denied the equal
protection of laws.' This simply means that all persons similarly situated shall
be treated alike both in rights enjoyed and responsibilities imposed. The organs
of government may not show any undue favoritism or hostility to any person.
Neither partiality nor prejudice shall be displayed.

"Does being an elective official result in a substantial distinction that allows

different treatment? Is being a Congressman a substantial differentiation which
removes the accused-appellant as a prisoner from the same class as all persons
validly confined under law?
"The performance of legitimate and even essential duties by public officers has
never been an excuse to free a person validly [from] prison. The duties imposed
by the 'mandate of the people' are multifarious. The accused-appellant asserts
that the duty to legislate ranks highest in the hierarchy of government. The
accused-appellant is only one of 250 members of the House of Representatives,
not to mention the 24 members of the Senate, charged with the duties of
legislation. Congress continues to function well in the physical absence of one
or a few of its members. Depending on the exigency of Government that has to
be addressed, the President or the Supreme Court can also be deemed the
highest for that particular duty. The importance of a function depends on the
need for its exercise. The duty of a mother to nurse her infant is most
compelling under the law of nature. A doctor with unique skills has the duty to
save the lives of those with a particular affliction. An elective governor has to
serve provincial constituents. A police officer must maintain peace and order.
Never has the call of a particular duty lifted a prisoner into a different
classification from those others who are validly restrained by law.
"A strict scrutiny of classifications is essential lest[,] wittingly or otherwise,
insidious discriminations are made in favor of or against groups or types of
individuals.
"The Court cannot validate badges of inequality. The necessities imposed by
public welfare may justify exercise of government authority to regulate even if
thereby certain groups may plausibly assert that their interests are disregarded.
"We, therefore, find that election to the position of Congressman is not a
reasonable classification in criminal law enforcement. The functions and duties
of the office are not substantial distinctions which lift him from the class of
prisoners interrupted in their freedom and restricted in liberty of movement.
Lawful arrest and confinement are germane to the purposes of the law and apply
to all those belonging to the same class." 73

It must be noted that even before private respondent ran for and won a congressional seat
in Manila, it was already of public knowledge that the United States was requesting his
extradition. Hence, his constituents were or should have been prepared for the
consequences of the extradition case against their representative, including his detention
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 by itself 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
not convinced. We must emphasize that extradition cases are summary in nature. They
are resorted to merely to determine whether the extradition petition and its annexes
conform to the Extradition Treaty, not to determine guilt or innocence. Neither is it, as a
rule, intended to address issues relevant to the constitutional rights available to the
accused in a criminal action.
We are not overruling the possibility that petitioner may, in bad faith, unduly delay the
proceedings. This is quite another matter that is not at issue here. Thus, any further
discussion of this point would be merely anticipatory and academic.
However, if the delay is due to maneuverings of respondent, with all the more reason
would the grant of bail not be justified. Giving premium to delay by considering it as a
special circumstance for the grant of bail would be tantamount to giving him the power to
grant bail to himself. It would also encourage him to stretch out and unreasonably delay
the extradition proceedings even more. This we cannot allow.
3 . Not a Flight Risk?
Jimenez further claims that he is not a flight risk. To support this claim, he stresses that
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
to its conclusion, as he hears the footsteps of the requesting government inching closer
and closer. That he has not yet fled from the Philippines cannot be taken to mean that he
will stand his ground and still be within reach of our government if and when it matters;
that is, upon the resolution of the Petition for Extradition.
In any event, it is settled that bail may be applied for and granted by the trial court at
anytime after the applicant has been taken into custody and prior to judgment, even after
bail 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
the guidelines in this Decision.

Brief Refutation of Dissents

The proposal to remand this case to the extradition court, we believe, is totally
unnecessary; in fact, it is a cop-out. The parties in particular, Respondent Jimenez
have been given more than sufficient opportunity both by the trial court and this Court to
discuss fully and exhaustively private respondent's claim to bail. As already stated, the

RTC set for hearing not only petitioner's application for an arrest warrant, but also private
respondent's prayer for temporary liberty. Thereafter required by the RTC were
memoranda on the arrest, then position papers on the application for bail, both of which
were separately filed by the parties.
This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy
Memoranda and the Position Papers of both parties. Additionally, it has patiently heard
their in Oral Arguments, a procedure not normally observed in the great majority of cases
in this Tribunal. Moreover, after the Memos had been submitted, the parties
particularly the potential extraditee have bombarded this Court with additional
pleadings entitled "Manifestations" by both parties and "Counter-Manifestation" by
private respondent in which the main topic was Mr. Jimenez's plea for bail.
A remand would mean that this long, tedious process would be repeated in its entirety.
The trial court would again hear factual and evidentiary matters. Be it noted, however,
that, in all his voluminous pleadings and verbal propositions, private respondent has not
asked for a remand. Evidently, even he realizes that there is absolutely no need to rehear
factual matters. Indeed, the inadequacy lies not in the factual presentation of Mr.
Jimenez. Rather, it lies in his legal arguments. Remanding the case will not solve this
utter lack of persuasion and strength in his legal reasoning.
In short, this Court as shown by this Decision and the spirited Concurring, Separate
and Dissenting Opinions written by the learned justices themselves has exhaustively
deliberated and carefully passed upon all relevant questions in this case. Thus, a remand
will not serve any useful purpose; it will only further delay these already very delayed
proceedings, 74 which our Extradition Law requires to be summary in character. What we
need now is prudent and deliberate speed, not unnecessary and convoluted delay. What is
needed is a firm decision on the merits, not a circuitous cop-out.
Then, there is also the suggestion that this Court is allegedly "disregarding basic
freedoms when a case is one of extradition. " We believe that this charge is not only
baseless, but also unfair. Suffice it to say that, in its length and breath, this Decision has
taken special cognizance of the rights to due process and fundamental fairness of
potential extraditees.
Summation
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 the request
expressed in the petition, supported by its annexes and the evidence that may be 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 to assist

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 reposed its
trust in the reliability or soundness of the legal and judicial system of its treaty partner, as
well as in the ability and the willingness of the latter to grant basic rights to the accused
in the pending criminal case therein.
3. By nature then, extradition proceedings are not equivalent to a criminal case in which
guilt or innocence is determined. Consequently, an extradition case is not one in which
the constitutional rights of the accused are necessarily available. It is more akin, if at all,
to a court's request to police authorities for the arrest of the accused who is at large or has
escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting
state, the reasonable prima facie presumption is that the person would escape again if
given the opportunity.
4. Immediately upon receipt of the petition for extradition and its supporting documents,
the judge shall make a prima facie finding whether the petition is sufficient in form 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 to
submit 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 the
arrest of the potential extraditee and summons him or her to answer and to appear at
scheduled hearings on the petition.
5. After being taken into custody, potential extraditees may apply for bail. Since the
applicants have a history of absconding, they have the burden of showing that (a) there is
no flight risk and no danger to the community; and (b) there exist special, humanitarian
or compelling circumstances. The grounds used by the highest court in the requesting
state for the grant of bail therein may be considered, under the principle of reciprocity as
a special circumstance. In extradition cases, bail is not a matter of right; it is subject to
judicial discretion in the context of the peculiar facts of each case.
6. Potential extraditees are entitled to the rights to due process and to fundamental
fairness. Due process does not always call for a prior opportunity to be heard. A
subsequent opportunity is sufficient due to the flight risk involved. Indeed, available
during the hearings on the petition and the answer is the full chance to be heard and to
enjoy fundamental fairness that is compatible with the summary nature of extradition.
7. This Court will always remain a protector of human rights, a bastion of liberty, a
bulwark of democracy and the conscience of society. But it is also well aware of the
limitations of its authority and of the need for respect for the prerogatives of the other coequal and co-independent organs of government.

8. We realize that extradition is essentially an executive, not a judicial, responsibility

arising out of the presidential power to conduct foreign relations and to implement
treaties. Thus, the Executive Department of government has broad discretion in its duty
and power of implementation.
9. On the other hand, courts merely perform oversight functions and exercise review
authority 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 due to our inability to comply in good faith with a treaty
partner's simple request to return a fugitive. Worse, our country should not be converted
into a dubious haven where fugitives and escapees can unreasonably delay, mummify,
mock, frustrate, checkmate and defeat the quest for bilateral justice and international
cooperation.
10. At bottom, extradition proceedings should be conducted with all deliberate speed to
determine compliance with the Extradition Treaty and Law; and, while safeguarding
basic individual rights, to avoid the legalistic contortions, delays and technicalities that
may negate that purpose.
WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001
is hereby declared NULL and VOID, while the challenged Order dated July 3, 2001 is
SET ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail bond posted
by private respondent is CANCELLED. The Regional Trial Court of Manila is directed to
conduct the extradition proceedings before it, with all deliberate speed pursuant to the
spirit and the letter of our Extradition Treaty with the United States as well as our
Extradition Law. No costs.
SO ORDERED.
Austria-Martinez, Corona and Carpio-Morales, JJ., concur.
Davide, Jr., C.J., Mendoza and Callejo, Sr., JJ., joins in the concurring opinion of Justice
Carpio.
Bellosillo, J., see Separate Opinion.
Puno, J., see Separate Opinion.
Vitug, J., see Dissenting Opinion.
Quisumbing, J., concur in the separate opinion of Justice Puno.
Ynares-Santiago, J., see Dissenting Opinion.

Sandoval-Gutierrez, J., join in the Separate Opinion of Justice Ynares-Santiago.

Carpio, J., see concurring Opinion.

Separate Opinions
BELLOSILLO, J.:
While I do not absolutely disagree with the well-reasoned ponencia of Mr. Justice
Panganiban, I prefer nevertheless to surf with the reflections of Mr. Justice Puno
expressed in his Separate Opinion which, in essence, espouse the balancing of the duty of
the State to faithfully comply with its commitments under a treaty on one hand, and its
responsibility to protect the fundamental rights of its citizens on the other.
I wish to express some concerns however, particularly the crucial issue of whether a
potential extraditee may apply for and be released on bail during the pendency of the
extradition proceedings. This to me should not be ignored.
In Northern PR Co. v. North Dakota, 1 Mr. Justice Frankfurter intoned: "The cardinal
article of faith of our civilization is the inviolable character of the individual." Thus,
fundamental rights and civil liberties, although not unlimited, occupy a place inferior to
none in the hierarchy of constitutional values. These are among the most cherished
privileges enjoyed by free men, of which it is the sacred duty of the State to maintain and
protect against the erosion of possible encroachments, whether minute or extensive,
foreign or domestic.
It is lamentable however that the position taken by the Government in the instant case
amounts to an unpardonable abdication of the duty of protection which it owes to all
within its territory under the expediency of a treaty.

The Government maintains that an extradition court has no power to authorize bail in the
absence of any law conferring such power; and that the 1987 Constitution, as well as the
Rules of Court, as amended, applies only to persons arrested and detained for violation of
Philippine Laws, but not to extradition proceedings in which courts do not render
judgments of conviction or acquittal.
The argument is as ingenious as it is fallacious. It is settled that the power to admit to bail
exists in extradition proceedings, although as a matter of policy it may only be granted
under "exceptional circumstances." This, quintessentially, has been the doctrine
advocated in a cavalcade of American cases starting with Wright v. Henkel, 190 US 40

(1902); and worth mentioning, of course, are Paretti v. United States, 112 F.3d 1363
(1977), Bealieu v. Hartigan, 430 F. Supp. 915 (1977), and In re Kirby, et al., 106 F.3d
855(1996); which are also discussed extensively by Mr. Justice Puno.
Apart from these cases, there is likewise a considerable number of authorities which
support the general view that the power to admit to bail is a necessary incident of the
power to hear and determine cases. 2 In other words, one of the inherent powers of the
judiciary with regard to proceedings before it has been the admission of a prisoner to bail
where, in the exercise of his discretion, the judge deems it advisable. A fortiori, even in
the absence of express statutory grant of authority to courts, judicial power to admit to
bail parties properly within their jurisdiction must be deemed to exist. It must be
mentioned, however, that this authority is not absolute for the Constitution, statutes and
the Rules of Court render it readily subject to limitations.
Significantly, both the extradition treaty between the United States and the Philippines,
and the Philippine Extradition Law (PD 1069) contain no provision expressly
withholding from the courts the power to grant bail. Had the intention of the parties to the
treaty been to totally nullify the pre-existing power of the extradition court on the matter
of bail, they could have easily provided for it in the treaty. But since they had not done
so, it would be reasonable to presume that they had not so intended. Indeed, the treaty
fails to even remotely suggest such judicial limitation insisted upon by the Government.
Truly, there is neither logic nor persuasion to the suggestion that bail should only be
allowed in criminal cases, or that class of cases where courts must "render judgments of
conviction or acquittal." Bail as a remedy is available where there is deprivation of liberty
prior or during trial. In the 1909 case of United States v. Go Siaco, 3 akin to the situation
confronting us, but involving a deportation proceeding, this Court allowed the potential
deportee to post bail although a deportation proceeding is not criminal in nature and there
was then no law providing for bail in deportation cases
. . . . we see no reason why bail should not be allowed in this class of cases. As
is said by the Supreme Court, the defendant has committed no crime. In this
particular case the defendant was born in this country, has lived here for more
than 35 years and is now living here with his mother, a native of the Islands.
There is no reason to think that his being at large will be any menace to the
people in the locality where he resides, nor is there any reason to believe that his
attendance at court abide the judgment which may be entered against him
cannot be secured by the giving of bail as in ordinary cases. To refuse him bail
is to treat him as a person is treated who has committed the most serious crime
known to the law, and while we do not intend to say that this is a criminal
proceeding, we do say that some of the machinery used for making the
investigation required by Act No. 702 is the machinery of the criminal law, and
to it are applicable those provisions of General Orders No. 58, relating to bail.

Were we to adopt the view pressed upon us by the Government, it would restrict the
reciprocal operation of the treaty, and create a striking lack of symmetry between the
rights of Filipinos subject of extradition and that of American extraditees. Filipino
citizens sought to be extradited by the United States government will be absolutely
denied of the chance at provisional liberty during the pendency of the extradition
proceedings against them; while American fugitives from justice sought to be extradited
by the Philippine government could always exercise the right to petition for bail, and
consequently, enjoy better chances of avoiding the inconvenience of incarceration during
the pendency of the extradition proceedings. Certainly, there is no warrant for the
discrimination. The Philippines and the United States dealt with each other as equals.
Their extradition treaty discloses the intention that they shall stand on the same footing.
The governing principles should always be reciprocity and equality.
We cannot curtail a citizen's right to freedom on speculations and fears where there exist
reasonable mechanisms appropriate to address them. To my mind, the risk of flight does
not ipso facto call for denying his right to bail. Trial judges must henceforth weigh
carefully and judiciously other methods to assure the presence of the accused during the
proceedings and right after, when he ought to be deported already. Bail may be set at
huge amounts or passports cancelled and hold-departure orders issued or border patrols
heightened, in order that the extraditee may not flee from our jurisdiction. In this regard,
while I agree that it is the extraditee's burden to prove the least likelihood of flight, the
extradition court is also entitled to presume that the executive branch has done all it can
to forestall his sudden disappearance. The executive branch cannot plead its helplessness
and inutility to defeat the grant of bail to the extraditee.
In any event, all things being equal, the personal circumstances of respondent Jimenez
would negate any idea of flight risk. He is a popular, even notorious, fellow whose face is
more frequently than others plastered in the tri-media. His stature as representative for a
congressional district in Manila makes escape from Philippine jurisdiction not only
embarrassing for him but also constitutive of the offense of abandonment of duty. His
family and business interests are said to be strategically placed in this country. Indeed,
where respondent Jimenez has more to lose from flight, the possibility thereof appears
remote and speculative.
Equity especially tilts in favor of respondent Jimenez in light of our ruling in Montano v.
Ocampo 4 where we allowed bail to an elected senator of the country who was charged
with the capital offenses of murder and frustrated murder. In resolving to grant bail in
favor of Senator Montano, this Court took special notice of the accused's official and
social standing as senator from which we concluded that flight was remote if not nil
despite the capital crimes he had to face. In the same breath, respondent Jimenez is a duly
elected Congressman with personal circumstances that will not risk the ignominy of
flight, considering further the crimes he is charged with are far less severe and ignoble,

since most of them had something to do with election campaign contributions than the
seemingly serious indictment for murder and frustrated murder against Senator Montano.
If we grant for the sake of argument that the possibility of flight exists, still respondent
Jimenez' detention would be unwarranted by law and the Constitution if the only purpose
of the confinement is to eliminate a rare odd of danger that is by no means actual, present
and uncontrollable. After all the Government is not powerless to deal with or prevent any
threat by measures it has the ways and means to implement. The thought eloquently
expressed by Mr. Justice Jackson of the United States Supreme Court in connection with
the application for bail of ten (10) communists convicted by a lower court for advocacy
of a violent overthrow of the United States Government is pertinent and elucidating in
principle
The Government's alternative contention is that defendants, by misbehavior
after conviction, have forfeited their claim to bail. Grave public danger is said to
result from what they may be expected to do, in addition to what they have done
since their conviction. If I assume that defendants are disposed to commit every
opportune disloyal act helpful to Communist countries, it is still difficult to
reconcile with traditional American law the jailing of persons by the courts
because of anticipated but as yet uncommitted crimes. Imprisonment to protect
society from predicted but unconsummated offenses is so unprecedented in this
country and so fraught with danger of excesses and injustice that I am loath to
resort to it, even as a discretionary judicial technique to supplement conviction
of such offenses as those of which defendants stand convicted . . . . If, however,
I were to be wrong on all of these abstract or theoretical matters of principle,
there is a very practical aspect of this application which must not be overlooked
or underestimated that is the disastrous effect on the reputation of American
justice if I should now send these men to jail and the full Court later decide that
their conviction is invalid. All experience with litigation teaches that existence
of a substantial question about a conviction implies a more than negligible risk
of reversal. Indeed this experience lies hack of our rule permitting and practice
of allowing bail where such questions exist, to avoid the hazard of unjustifiably
imprisoning persons with consequent reproach to our system of justice . . . .
Risks, of course, are involved in either granting or refusing bail. I am not naive
enough to underestimate the troublemaking propensities of the defendants. But,
with the Department of Justice alert to the dangers, the worst they can
accomplish in the short time it will take to end the litigation is preferable to the
possibility of national embarrassment from a celebrated case of unjustified
imprisonment of Communist leaders. Under no circumstances must we permit
their symbolization of an evil force in the world to be hallowed and glorified by
any semblance of martyrdom. The way to avoid that risk is not to jail these men
until it is finally decided that they should stay jailed.

If the commentary is not comparable with ours on the issues presented, its underlying
principle is of universal application. If only to preserve our regime of civil liberties and
stem a precedent where bail is unscrupulously disallowed, respondent Jimenez may be
placed under the surveillance of the authorities or their agents in such form and manner
as may be deemed adequate to insure that he will be available anytime when the
Government is ready to extradite him, although the surveillance should be reasonable and
the question of reasonableness should be submitted to the court a quo for remedial
measures in case of abuse. He may also be required to put up a bond with sufficient
surety or sureties to ensure that his extradition is not thwarted.
In our society and even in the United States, I am sure freedom from bodily
restraint has always been at the core of the civil liberties protected by the Constitution. To
unduly sacrifice the civil liberties of an individual by reason of an unfounded fear of
being unable to fulfill treaty obligations, would be to render impotent the ideals of the
dignity of the human person, thereby destroying something of what is noble in our way of
life. Certainly, if civil liberties may be safely respected without imminently or actually
impairing faithful compliance with treaty obligations, as in this case, then there is no
valid reason for disregarding them.
I wish to emphasize, however, lest the best of my intentions be misconstrued, that it is not
my purpose here to encourage, much less foment, dishonor of the treaty duly entered into
by our Government. By all means we have to fulfill all our international commitments,
for they are not mere moral obligations to be enforced at the whims and caprices of the
State. They create legally binding obligations founded on the generally accepted principle
in international law of pacta sunt servanda which has been adopted as part of the law of
our land. But, in so doing, we must be ever conscious of the need to balance in one
equation our commitments under the treaty, and the equally important right of the
individual to freedom from unnecessary restraint.
As the vast powers and enormous resources of both the United States of America and the
Republic of the Philippines are marshalled against a puny individual that is respondent
Jimenez, he is certainly entitled to some measure of protection to ensure that no
unwarranted intrusions or undue curtailment of his liberty is committed.
I vote to REMAND the petition to the court a quo to ensure that proper safeguards are
afforded respondent in the course of the extradition proceedings.
SAaTHc

PUNO, J.:
This is a case of first impression involving not only the state's interest to comply with its
extradition treaty with the United States but also its equally imperative duty to protect the
constitutional rights of its citizens to liberty and to due process. Our decision will affect
important rights of all our citizens facing extradition in foreign countries. Personalities

should not therefore bend our decision one way or the other for the protection of the Bill
of Rights extends indifferently to all alike.
We begin with the unfudged facts. The records reveal that when the private respondent
learned of the filing of the petition for extradition against him and before the extradition
court could issue any summons, he filed a motion to be furnished a copy of the petition
and to set for hearing petitioner's request for the issuance of warrant of arrest.
Alternatively, he prayed that he be allowed to post bail for his temporary liberty.
Respondent judge granted private respondent's motion. After hearing, he issued a warrant
for the arrest of private respondent but allowed him to post bail.
Petitioner assails the orders of the respondent judge and submits the following issues for
resolution by this Court:
"I.
The public respondent acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction in adopting a
procedure of first hearing a potential extraditee before issuing an arrest warrant
under Section 6 of P.D. No. 1069.
II.
The public respondent acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction in granting the
prayer for bail and in allowing Jimenez to go on provisional liberty because:
1. An extradition court has no power to authorize bail in the absence of any law
that provides for such power.
2. Section 13, Article III (right to bail clause) of the 1987 Constitution and
Section 4, Rule 114 (Bail) of the Rules of Court, as amended, which were relied
upon, cannot be used as bases for allowing bail in extradition proceedings.
3. The presumption is against bail in extradition proceedings or proceedings
leading to extradition.
4. On the assumption that bail is available in extradition proceedings or
proceedings leading to extradition, bail is not a matter of right but only of
discretion upon clear showing by the applicant of the existence of special
circumstances.
5. Assuming that bail is a matter of discretion in extradition proceedings, the
public respondent received no evidence of 'special circumstances' which may
justify release on bail.

6. The risk that Jimenez will flee is high, and no special circumstance exists that
will engender a well- founded belief that he will not flee.
7. The conditions attached to the grant of bail are ineffectual and do not ensure
compliance by the Philippines with its obligations under the RP-US Extradition
Treaty.
8. The Court of Appeals resolution promulgated on May 10, 2001 in the case
entitled 'Eduardo T. Rodriguez, et al. vs. Hon. Presiding Judge, RTC, Branch 17
Manila,' CA-G.R. SP No. 64589, relied upon by the public respondent in
granting bail, had been recalled before the issuance of the subject bail orders."

The substantive issues are shortlisted in the majority opinion as follows: (1) whether or
not the private respondent is entitled to notice and hearing before a warrant for his arrest
can be issued; and (2) whether or not he is entitled to post bail for his provisional liberty
while the extradition proceedings are pending.
With due respect, I offer the following views on the issues as hewn in the majority
opinion, viz:
I.
The right to notice and hearing of
private respondent as an extraditee.
The first issue demands a two-tiered analysis based on the following questions:
(1) Can the private respondent, as potential extraditee, demand as a matter
of right, that he be furnished a copy of the petition for extradition
before the summons and/or the warrant of arrest are issued by the
extraditing court?
(2) Can he demand a hearing for the purpose of determining the necessity
and propriety of the issuance of a warrant for his arrest?
The majority opinion submits that neither P.D. No. 1069 nor the Constitution authorize
respondent judge to give the private respondent a copy of the petition for extradition and
immediately set for hearing the request for a warrant of arrest against the latter.
I beg to disagree. There can be no disagreement that P.D. No. 1069 deserves an
interpretation that would blend with the purpose of the RP-US Extradition Treaty, i.e., the
minimization of flight risk and the facilitation of an extraditee's surrender to the
requesting state. But this stance should not be taken to mean that this Court can cast a
blind eye to the private respondent's constitutional rights to life, liberty and to due
process. While this Court is obliged to accord due respect to the state's interests to

comply with its treaty obligations, it cannot also shirk from its duty to protect the
fundamental rights of its citizens. Thus, a full and careful weighing of these warring
interests is imperative as we did in its predecessor case Secretary of Justice vs. Lantion. 1
With due respect, it is my humble submission that the majority failed to allocate the
proper weight due to the constitutional rights of the private respondent to life, liberty and
to due process. These rights are now conceded in the civilized world as universal in
character and it was never the intent of the RP-US Extradition Treaty to trivialize their
significance.
It bears emphasis that this Court's ruling in Secretary of Justice vs. Lantion did not per se
negate the constitutional rights of a potential extraditee to liberty and due process. If we
rejected private respondent's invocation of these rights i n said case, it was only because
(1) the threat to his liberty by provisional arrest has already passed; 2 and (2) the threat to
his liberty upon the filing of the petition for extradition was merely hypothetical. 3 At
that time, the government of the United States has not requested for the provisional arrest
of the private respondent. Likewise, the petition for extradition has not yet been filed
before the extradition court. Thus, after carefully balancing the conflicting interests of the
parties at the evaluation stage of the extradition proceedings, we upheld the state's
interests under its extradition treaty with the United States, viz;
"To be sure, private respondent's plea for due process deserves serious
consideration, involving as it does his primordial right to liberty. His plea to due
process, however, collides with important state interests which cannot also be
ignored for they serve the interest of the greater majority. The clash of rights
demands a delicate balancing of interests approach which is a 'fundamental
postulate of constitutional law.' The approach requires that we 'take conscious
and detailed consideration of the interplay of interests observable in a given
type of situation.' These interests usually consist in the exercise of the individual
of his basic freedoms on the one hand, and the government's promotion of
fundamental public interests or policy objectives on the other.
In the case at bar, on one end of the balancing pole is the private respondent's
claim to due process predicated on Section 1, Article III of the Constitution,
which provides that 'No person shall be deprived of life, liberty, or property
without due process of law. . .' Without a bubble of doubt, procedural due
process of law lies at the foundation of a civilized society which accords
paramount importance to justice and fairness. It has to be accorded the weight it
deserves.

This brings us to the other end of the balancing pole. Petitioner avers that the
Court should give more weight to our national commitment under the RP-US
Extradition Treaty to expedite the extradition of its laws. Petitioner also
emphasized the need to defer to the judgment of the Executive on matters

relating to foreign affairs in order not to weaken if not violate the principle of
separation of powers.
Considering that in the case at bar, the extradition proceeding is only at its
evaluation stage, the nature of the right being claimed by private respondent is
nebulous and the degree of prejudice he will allegedly suffer is weak, we accord
greater weight to the interests espoused by the government thru the petitioner
Secretary of Justice." 4

We stressed that the denial of the private respondent's privilege of notice and hearing
during the evaluation stage of the extradition proceeding is merely a soft restraint on his
right to due process, viz:
"In tilting the balance in favor of the interests of the State, we stress that it is not
ruling that the private respondent has no right to due process at all throughout
the length and breadth of the extrajudicial proceedings. Procedural due process
requires a determination of what process is due, when it is due, and the degree
of what is due. Stated otherwise, a prior determination should be made as to
whether procedural protections are not at all due and when they are due, which
in turn depends on the extent to which an individual will be condemned to suffer
grievous loss." 5

The extradition process against the private respondent has, however, moved away from
the stage of evaluation of documents by the executive officials of the Philippine
government. A formal petition for the extradition of the private respondent has now been
filed with our court of justice. With this development, the competing interests of our
government and of the private respondent have developed new dimensions and they need
to be rebalanced. I respectfully submit the following propositions, viz.
(a) A potential extraditee has the right to be notified of the filing of the petition
for extradition.
It is my humble submission that from the moment the petition for extradition is filed
before the extradition court, a potential extraditee has the right to demand that he be
furnished a copy of the petition. This right inheres from the duty imposed by P.D. No.
1069 to the extradition judge to summon a potential extraditee to appear and answer the
petition "as soon as practicable." It is a mandatory duty that should be carried out by the
extradition judge; the law does not give him any discretion.
This submission is in accord with our ruling in Secretary of Justice vs. Lantion, 6 where
we held that: "P.D. No. 1069 which implements the RP-US Extradition Treaty provides
the time when an extraditee shall be furnished a copy of the petition for extradition as
well as the supporting papers, i.e., after the filing of the extradition in the extradition
court."

(b) The need for a hearing to determine whether a warrant of arrest should be
issued against an extraditee is addressed to the sound discretion of the
extraditing judge.
The majority opinion holds that the private respondent extraditee is not entitled to notice
and hearing before the issuance of a warrant of arrest. It relies on Section 6 of P.D. No.
1069, which provides:
"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of Notices.
(1) Immediately upon receipt of the petition, the presiding judge of the court
shall, as soon as practicable, summon the accused to appear and to answer the
petition on the day and hour fixed in the order. [H]e may issue a warrant for the
immediate arrest of the accused which may be served anywhere within the
Philippines if it appears to the presiding judge that the immediate arrest and
temporary detention of the accused will serve the ends of justice. Upon receipt
of the answer, or should the accused after having received the summons fail to
answer within the time fixed, the presiding judge shall hear the case or set
another date for hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if issued,
shall be promptly served each upon the accused and the attorney having charge
of the accused." (italics supplied)

The majority interprets this provision as follows:

"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 rendered nugatory by setting for hearing the issuance of the arrest
warrant. Hearing entails sending notices to the opposing parties, receiving facts
and arguments from them, and giving them time to prepare and present such
facts and arguments. Arrest subsequent to hearing can no longer be considered
'immediate.' The law could have intended the word as a mere superfluity but, on
the whole, as means of imparting a sense of urgency and swiftness in the
determination of whether a warrant of arrest should issue."

Clearly, the majority leans heavily on the use of the word "immediate" which
qualified the arrest of an extraditee. It holds that "the qualification would be rendered
nugatory by setting for hearing the issuance of the arrest warrant."
Again, I beg to disagree. I submit that the decision whether to send notice to an extraditee
and hear him before ordering his arrest should be left to the sound discretion of the
extraditing judge. This is crystal clear from Section 6 of P.D. No. 1069 which provides:
" . . . He may issue a warrant for the immediate arrest of the accused which may
be served anywhere within the Philippines if it appears to the presiding judge

that the immediate arrest and temporary detention of the accused will serve the
ends of justice." (Italics supplied)

Under this provision, the issuance of a warrant of arrest is dependent on a big "if," or
to an all important condition if it will serve the ends of justice. The determination
of whether a warrant of arrest against an extraditee will serve the ends of justice is
certainly not a cut and dried duty. It involves the appreciation of highly contentious
facts, both objective and subjective in nature. Their appreciation requires a judicial
mind honed in the law of evidence. The history of extradition will reveal that,
initially, the task of determining whether an extraditee should be immediately arrested
was given to the executive authorities of the extraditing state. The matter, in other
words, was treated purely as an executive function but unfortunately, the practice was
given to abuses. Recognizing that certain human rights are universal in nature and
beyond violation, the task of adjudging whether a potential extraditee should be
immediately arrested pending his extradition proceeding was transferred to judges.
The office of the judge was called upon to insure that fundamental fairness is not
denied to a potential extraditee. The extraditing judge is not to act as a stamp pad but
has to exercise his sound discretion on whether to issue the warrant. Under our law on
extradition, P.D. No. 1069, Section 6, the discretion of the extradition judge on
whether to order the arrest of the extraditee is guided by the following consideration
whether the arrest will serve the ends of justice. The grant of this judicial
discretion will be rendered naught if we subject the action of the extraditing judge to
unnecessary fetters. With due respect, the view that the extraditing judge has no
discretion to determine whether to notify and hear a potential extraditee before
ordering his arrest cuts too much on the freedom of action of the extraditing judge . I
submit that we should give the extraditing judge more discretion on the matter. If the
extraditing judge feels that the notice and hearing will allow an extraditee to flee, I
have no doubt, he will immediately order his arrest. If, however, he believes that
notice and hearing will not pose such danger and that he needs to hear the parties to
make a better determination on whether the immediate arrest of an extraditee will
serve the ends of justice, let us not deny him the discretion to do so. The essence of
discretion is freedom of action and we negate that essence when we impose needless
limits on the judge's freedom of action.
Prescinding from these premises, I cannot also subscribe to the submission of the
majority that the phrase "if it appears" in section 6 of P.D. No. 1069 conveys the message
that accuracy is not as important as speed in issuing a warrant of arrest against a potential
extraditee. We are concerned here with the priceless right to life and liberty, with the
right to due process before one's liberty is taken away. We are not dealing with chattels.
We should not lay down the doctrine that speed should be preferred to accuracy for
speed breeds recklessness and we cannot be reckless with our right to life and liberty.
cTDECH

I agree with the majority that the trial court should not be expected to make an exhaustive
determination of the facts of the case before issuing a warrant of arrest. To be sure, that is
not expected of any judge, not even from a judge of a criminal case. In the case at bar,
however, the extraditing judge ordered the hearing only to have a better basis for
determining whether the immediate arrest of the private respondent will best serve the
ends of justice. A careful look at the petition for extradition will show that it does not
provide enough basis for the extraditing judge to determine whether the immediate
issuance of warrant of arrest will serve the ends of justice. I quote the majority opinion
on the documents attached to the petition for extradition, viz:
"Attached to the Petition for Extradition, with a Certificate of Authentication
among others, were the following: (1) Annex H, the Affidavit executed on May
26, 1999 by Mr. Michael E. Savage trial attorney in the Campaign Financing
Task Force of the Criminal Division of the US Department of Justice; (2)
Annexes H to G, evidentiary Appendices of various exhibits that constituted
evidence of the crimes charged in the Indictment, with Exhibits 1 to 120 (duly
authenticated exhibits that constituted evidence of the crimes charged in the
Indictment); (3) Annex BB, the Exhibit I 'Appendix of Witness [excerpts]
Statements Referenced in the Affidavit of Angela Byers' and enclosed
Statements in two volumes; (4) Annex GG, the Exhibit J 'Table of Contents for
Supplemental Evidentiary Appendix' with enclosed Exhibits 121 to 132; and (5)
Annex MM, the Exhibit L 'Appendix of Witness [excerpts] Statements
Referenced in the Affidavit of Betty Steward' and enclosed Statements in two
volumes."

Even a cursory reading of these documents will not sustain the thesis of the majority that
"it is evident that the respondent could have already gotten an impression from these
records adequate for him to make an initial determination of whether the accused was
someone who should immediately be arrested in order to best serve the ends of justice."
The documents are evidence tending to prove the guilt of the private respondent in regard
to the cases filed against him in the United States. They are not evidence, however, to
prove that the private respondent will flee the Philippine jurisdiction while his extradition
petition is being heard. In other words, the petition for extradition may be in due form but
it does not establish sufficient factual basis to justify the immediate issuance of warrant
of arrest against the private respondent. The probability of his flight from our jurisdiction
is central to the question of whether he should be arrested. In the absence of evidence
establishing that private respondent will flee, I cannot join the majority in holding that the
respondent extraditing judge gravely abused his discretion in calling for a hearing so that
the parties can adduce evidence on the issue.
Likewise, the majority holds:

"Moreover, the law specifies the court's setting a hearing upon receipt of the
answer or upon failure of the accused to answer after receiving the summons. In
connection with the matter of immediate arrest, however, the word 'hearing' is
notably absent from the provision. 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 proceedings are summary in nature.
Hence, the silence of the Law and the Treaty leans to the more reasonable
interpretation that there is no intention to punctuate with a hearing every little
step in the entire proceedings."

Once more, I beg to disagree from the reading of our law on extradition by the majority.
The law, it is true, did not provide that the extraditing judge must hold a hearing before
he issues a warrant of arrest. The call for a hearing is not mandatory but neither is it
prohibited. Ergo, the matter of whether there ought to be a hearing before issuance of
warrant of arrest is addressed to the discretion of the extraditing judge. The exercise of
this discretion depends on the configuration of the facts of each case.
II.
The right to bail of a potential extraditee during the
pendency of the petition for extradition.
I respectfully submit that a potential extraditee can hinge his right to bail in our
Constitution. The mere silence of our extradition treaty with the Unites States and our
extradition law (P.D. No. 1069) does not negate the right to bail of a potential extraditee.
Our adherence to the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights, as well as international norms, customs and
practices support an extraditee's right to bail. But while an extraditee may apply for bail,
its grant depends on presentation of clear and convincing evidence that the extraditee
will not frustrate the ends of justice by fleeing from our jurisdiction. Again, I proffer the
following propositions:
First. The right to bail inheres from the rights to life, liberty and to due process.
Our Constitution jealously guards every person's right to life and liberty against
unwarranted state intrusion; indeed, no state action is permitted to invade this forbidden
zone except upon observance of due process of law. 7 Like the privilege of the writ of
habeas corpus, the right to bail gives flesh to the guarantee to liberty, without which, the
right to liberty can prove meaningless, and due process will only be an empty slogan.
However, unlike the privilege of habeas corpus which is principally a remedy against
illegal restraint on liberty, 8 the right to bail is available even when the reason for the
detention is lawful. The purpose of bail is to relieve a person the rigors of prolonged
imprisonment until the main case against him is resolved, and at the same time, insure his

attendance when required by the authorities. 9 It is the prospect of prolonged detention,

not the detention itself, which offends the constitutional right to due process.
In Teehankee vs. Rovira, 10 this Court rejected the view which limits the right to bail to
persons charged with criminal offenses. We ruled that the constitutional right to bail
applies to all persons, viz:
"This constitutional mandate refers to all persons, not only to persons against
whom a complaint or information has already been filed; it lays down the rule
that all persons shall before conviction be bailable except those charged with
capital offense and the evidence of his guilt is strong. Of course, only those
persons who have either been arrested, detained or otherwise deprived of their
liberty may have the occasion to seek the benefit of said provision. But in order
that a person can invoke this constitutional precept, it is not necessary that he
should wait until a formal complaint or information is filed against him. From
the moment he is placed under arrest, detention or restraint by officers of the
law, he can claim this guarantee of Bill of Rights, and this right he retains unless
and until he is charged with a capital offense and the evidence against him is
strong. Indeed, if, as admitted on all sides, the precept protects those already
charged under a formal complaint or information, there seems to be no legal or
just reason for denying its benefit to one against whom the proper authorities
may yet conclude that there exists no sufficient evidence of guilt. To place the
former in a more favored position than the latter would be, to say the least,
anomalous and absurd. If there is presumption of innocence in favor of one
already formally charged with a criminal offense, a fortiori this presumption
should be induced in favor of one yet so charged although arrested or
detained." (italics supplied)

In United States. vs. Go-Siaco, 11 this Court held that while deportation proceedings are
not criminal in nature, an alien deportee may avail of the constitutional right to bail, viz:
"The order of deportation is not a punishment for a crime. It is not a
banishment, in the sense which that word is often applied to the expulsion of
citizen from his country by way of punishment. It is but a method of enforcing
the return to his own country of an alien who has not complied with the
conditions upon the performance of which the Government of the nation, acting
within its constitutional authority and through the proper departments, has
determined that his continuing to reside here shall depend. He has not, therefore,
been deprived of life, liberty, or property without due process of law; and the
provisions of the Constitution securing the right of trial by jury and prohibiting
unreasonable searches and seizures, and cruel and unusual punishments, have
no application.
It will be seen that this declaration is not inconsistent with the view that while
the proceeding is not a trial or sentence of a crime or offense, it may in so far

use the machinery of the criminal law as to admit of application the provisions
in such law relating to bail . . . .
. . . We see no reason why bail should not be allowed in this class of cases. As is
said by the Supreme Court, the defendant has committed no crime . . . To refuse
him bail is to treat him as a person who has committed the most serious crime
known to the law, and while we do not intend to say that this is a criminal
proceeding, we do say that some of the machinery used for making the
investigation required by Act No. 702 is the machinery of the criminal law . . .
."

This ruling is reiterated in United States vs. Benito 12 and in Pagado vs. Aldanese. 13
The case of Ong Hee Sang, et al. vs. Commissioner of Immigration and Portugal 14 is
not a departure from our previous rulings on the right to bail of a deportee. In said case,
the Court ruled that the grant or denial of an alien's application for bail lies within the
discretion of the Commissioner of Immigration and Deportation pursuant to Section 37
(9) (e) of the Philippine Immigration Act of 1940, which states: "Any alien under arrest
in a deportation proceeding may be released under a bond or under such other conditions
as may be imposed by the Commissioner of Immigration." 15 The Court ratiocinated as
follows:
"The right to bail guaranteed by the Constitution may not be invoked in favor of
petitioners-appellees considering that deportation proceedings do not constitute
a criminal action and the order of deportation is not a punishment for a crime, it
being merely for the return to his country of an alien who has broken the
conditions upon which he could continue to reside with our borders."

The Court explained the difference of the Go Siaco case as follows:

"The case of U.S. vs. Go Siaco is not in point because said case was a
proceeding brought under the provisions of Act No. 702 which falls, by
provision of said law, under the jurisdiction of the courts of justice. The case at
bar is deportation proceeding under the Philippine Immigration Act of 1940,
which expressly vests in the Commissioner of Immigration the exclusive and full
discretion to determine whether an alien subject to deportation should or should
not be granted."

It is apparent, therefore, that the ruling in the Ong Hee Sang does not negate the right to
bail. It merely meant that the standard for granting or denying bail under the Constitution
is different in deportation proceedings. It is different because there is a specific law
which provides for such standard in deportation proceedings, i.e., Commonwealth Act
No. 613 or the Philippine Immigration Act of 1940. Neither did the case preclude the
grant of bail on due process grounds as in the case Mejoff vs. Director of Prisons, 16
where this Court held that while "temporary detention is a necessary step in the process

of exclusion and expulsion of undesirable aliens and that pending arrangements for his
deportation, the Government has a right to hold the undesirable alien under confinement
for a reasonable length of time, too long a detention may justify the issuance of a writ of
habeas corpus" 17 and entitle an alien to be released on bail, viz:

"The protection against deprivation of liberty without due process of law and
except for crimes committed against the laws of the land is not limited to
Philippine citizens but extends to all residents, except enemy aliens, regardless
of nationality . . .
Moreover, by its Constitution (Art. 11, Sec. 3), the Philippines 'adopts the
generally accepted principles of international law as part of the law of the
Nation.' And in a resolution entitled 'Universal Declaration of Human Rights'
and approved by the General Assembly of the United Nations of which the
Philippines is a member at its plenary meeting on December 10, 1948, the right
to life and liberty and all other fundamental rights as applied to all human
beings were proclaimed. It was there resolved that 'All human beings are born
free and equal in degree and rights' (Art. 1); that 'Everyone is equal and is
entitled to all the rights and freedom set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or
other opinion, nationality or social origin, property, birth, or other status' (Art.
2); that 'Every one has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted him by the
Constitution or by law' (Art. 8); that 'No one shall be subjected to arbitrary
arrest, detention or exile' (Art. 9, etc.)" 18

It must be noted that the Mejoff case was decided when C.A. No. 613 was already in
effect. Similarly, in Chirskoff vs. Commission of Immigration 19 the Court released the
alien deportee on bail because his prolonged detention violates his right to liberty, viz:
"[F]oreign nationals, not enemy, against whom no criminal charges have been
formally made or judicial order issued, may not be indefinitely kept in
detention; that in the 'Universal Declaration of Human Rights' approved by the
General Assembly of the United Nations of which the Philippines is a member,
the right to life and liberty and all other fundamental rights as applied to human
beings were proclaimed; that the theory on which the court is given power to act
is that the warrant of deportation, not having been executed, is functus officio
and the alien is being held without any authority of law; and that the possibility
that the petitioner might join or aid disloyal elements if turned out at large does
not justify prolonged detention, the remedy in that case being to impose
conditions in the order of release and exact bail in reasonable amount with
sufficient sureties."

In the case of Lao Gi vs. Court of Appeals, 20 this Court again held that although a
deportation proceeding does not partake of a criminal action, the constitutional right of a
person to due process should be protected therein, viz:
"Although a deportation proceeding does not partake of the nature of a criminal
action, however, considering that it is a harsh and extraordinary administrative
proceeding affecting the freedom and liberty of a person, the constitutional
right of such person to due process shall not be denied. Thus, the provisions of
the Rules of Court of the Philippines particularly on criminal procedure are
applicable to deportation proceedings.
xxx xxx xxx
Before any charge should be filed in the CID a preliminary investigation must
be conducted to determine if there is sufficient cause to charge respondent for
deportation. The issuance of warrants of arrest, arrests without a warrant and
service of warrant should be in accordance likewise with Rule 113 of the 1985
Rules of Criminal Procedure; search warrants issued by the CID shall be
governed by Rule 126 of the 1985 Rules of Criminal Procedure; and so the
matter of bail, motion to quash, trial, among others." 21 (italics supplied).
DEIC aA

There is no reason why an extraditee should be denied the right to apply for bail. While
an extradition proceeding is not criminal in nature, it is a harsh and extraordinary
process. It may involve a restraint of liberty that under some circumstances can be
greater than in an ordinary criminal case. 22 For in extradition proceedings, the
extraditee will be transported and tried to another jurisdiction of which laws he may be
unfamiliar. 23
Second. The right of an extraditee to apply for bail should be treated in light of our other
treaty obligations, especially those concerning the promotion and protection of human
rights. 24
Under the Vienna Convention on the Law of Treaties, to which the Philippines is a party,
a treaty shall be interpreted "in their context and in the light of its object and purpose," 25
taking into account the "relevant rules of international law applicable in the relations
between the parties." 26
As members of the family of nations, the Philippines and the United States have the
responsibility to uphold fundamental human rights, and the dignity and worth of the
human person. They are mandated to establish conditions under which justice and respect
for the obligations arising from treaties and other sources of international law can be
maintained. 27

Being signatories to the Universal Declaration of Human Rights 28 and the International
Covenant on Civil and Political Rights, 29 both countries are committed to protect and
promote the right of every person to liberty and to due process, ensuring that those
detained or arrested can take proceedings before a court, in order that such court may
decide without delay on the lawfulness of his detention, and order his release if the
detention is not lawful. 30
Although the right to liberty is a relative right and may be suspended or derogated in
exceptional circumstances, 31 it is a generally accepted principle in international law
that the presumption lies in favor of the existence of the right, and the burden lies with
the authorities to justify the lawfulness of the arrest or detention. This presumption
creates an obligation on state authorities to make effective remedies available to every
person under detention for the enjoyment of his fundamental right to liberty.
Third. There is no customary rule of international law prohibiting bail in extradition
cases.
At present, there is no customary norm prohibiting bail in extradition cases. On the
contrary, most countries, including Canada, Australia, the United Kingdom, South Africa
and Pakistan, among others, allow a potential extraditee to be released on bail. Members
of the European Union have recently ratified the European Convention on Extradition,
which also provides a procedure for bail.
Fourth. Even the United States grants bail to an extraditee, albeit in exceptional
circumstances.
In the United States, the ruling case law upholds the right of a potential extraditee to
apply for bail. The US Supreme Court in the landmark case of Wright vs. Henckel, 32
recognized the authority of the circuit courts to receive application for and grant bail in
certain exceptional case, thus:
"We are unwilling to hold that the circuit courts possess no power in respect of
admitting to bail other than as specifically vested by statutes, or that, while bail
should not be ordinarily granted in cases of foreign extradition, those courts
may not in any case, and whatever the special circumstances, extend that relief."

This dictum planted the seeds of the current federal common law on bail in international
extradition proceedings. 33 It recognized the existence of the right to bail based on
"exceptional circumstances" 34 which the extraditee must prove. The following are some
of the instances which were considered "special circumstances" to warrant the grant of
bail:
(a) age, background of defendant, and lack of any suitable facility to hold
him; 35

(b) parity with other defendant on similar charge; granting bail would
promote harmony among factions in . . . dispute, likelihood of
delay, and pending constitutional challenge to the extradition
statute; 36
(c) need to participate in litigation in which entire fortune depended; 37
(d) likelihood of delay and bailable offense in seeking extradition; 38 and
(e) provisional arrest justifies grant of bail and disparity of treatment of
persons on same charge. 39
The trend in recent years is for courts to liberalize the bail standard as they place primary
emphasis on the accused's risk of flight. 40 The rationale of this trend was succinctly laid
down in Beaulieu vs. Hartigan, 41 to wit:
"In none of the cases dealing with the issue of bail in an extradition setting was
a district judge who granted bail subsequently reversed by a reviewing court.
Analysis of these cases leads me to the conclusion that the 'special
circumstances' doctrine of Wright, though still viable, must be viewed, in the
light of modern concepts of fundamental fairness, as providing a district judge
with flexibility and discretion in considering whether bail should be granted in
these extradition cases. The standard scrutiny and concern exercised by a
district judge should be greater than in the typical bail situation, given the
delicate nature of international relations. But one of the basic questions facing a
district judge in either situation is whether, under all circumstances, the
petitioner is likely to return to court when directed to do so. Fundamentally, it is
a judgment call by the district court based on the totality of circumstances,
including extremely important consideration of the country's treaty agreements
with other nations; a district judge should approach the bail situation in an
extradition case with an added degree of caution, given the additional factor of
an international treaty."

Fifth. While an extraditee may apply for bail, its grant is discretionary depending on
whether it will frustrate the ends of justice.
In extradition cases, the extradition court does not inquire into the guilt or innocence of
the accused. Neither does the court measure the injury caused to the community, as the
offense was not committed within its jurisdiction. The court, therefore, cannot base its
decision to grant or deny bail on the gravity of the offense, as it could in criminal cases.
Rather, it should base its decision on whether it will frustrate the ends of justice. The risk
of flight of an extraditee is an important factor to consider in determining whether his bail
will frustrate justice.

Whether or not a potential extraditee is a flight risk is determined by two factors: (1)
capacity to flee; and (2) intent to flee. The combination of these two factors determines
the degree of risk that the trial court must assess and weigh. While there is no
mathematical formula to guide the court in gauging the precise risk posed by a particular
combination of these two factors, it is commonsensical to assume that one without the
other would not result to any risk at all. For while one has the capacity to flee, if he does
not intend to flee, the fear of flight would be for naught, and vice versa.
Sixth. The burden of proof to justify the arrest and detention of the potential extraditee
initially rests on the petitioning executive authorities.
Under our extradition treaty and law, a potential extraditee may be arrested and detained
under any of the following circumstances: (a) upon the receipt of the request for the arrest
of the potential extraditee and even before the filing of the request for extradition; (b)
upon the filing of the petition for extradition before the extradition court; or (c) during the
hearing of the petition for extradition.
In all the above circumstances, the issuance of a warrant of arrest depends on a showing
that it will serve the ends of justice. Initially, it is the burden of the petitioning executive
authorities to prove that the warrant against the extraditee will serve the ends of justice.
Seventh. After the warrant of arrest is issued, the burden of proof on the right to be
admitted to bail shifts on the potential extraditee.
In criminal cases, the presumption lies in favor of granting bail. This is so because of the
constitutional presumption of innocence, which is not overturned by the finding of
probable cause upon which the warrant of arrest against the accused was issued.
However, the presumption of innocence, from which the ordinary presumption in favor of
granting bail emanates, is inoperative in extradition cases. The issuance of the warrant of
arrest in extradition cases is not based on the finding that the accused is probably guilty
of the offense for which he was charged in the requesting State. The warrant is predicated
on the finding that it will serve the ends of justice. Once issued, it raises a presumption of
the continuing presence of the circumstances upon which the issuance of the warrant was
based. More often than not, this circumstance is the probability that the extraditee will
flee from the jurisdiction of the extraditing court. The burden of proving admittance to
bail is thus shifted to the extraditee.
It should be underscored that due process, which is the basis of bail in extradition
proceeding, merely grants the potential extraditee the opportunity to avail of the remedy
of bail; it does not give him the right to demand that he be released on bail under any
circumstance. What the right to due process prohibits is the outright denial of the remedy

of bail; it does not prohibit a reasonable denial of the application for bail after carefully
weighing all the circumstances at hand.
III.
There is need to remand the case at bar to the extradition court
in fairness to the parties.
I respectfully submit that in fairness to both parties, the case should be remanded to the
extradition court so that the proper procedure and standard to determine the right to bail
can be complied with. I put no blame on the extradition court nor to the parties in this
regard for we are still developing our jurisprudence on extradition. There is need for
remand for the following reasons, viz:
First. As aforediscussed, the petitioner has the burden of proof to show that the issuance
of a warrant of arrest against the private respondent will serve the ends of justice. This
burden of proof can not be satisfied by the petitioner in the case at bar by merely relying
on the petition for extradition and its annexes. The petition and its annexes do not prove
that the private respondent is a flight risk. They only show that he has been indicted in the
court of the United States.
Second. On the issue of whether the private respondent is entitled to bail, the petitioner
cannot rely on the presumption against bail in extradition proceedings. The presumption
against bail in extradition proceedings is founded on the assumption that the extraditee is
a fugitive from justice. Thus, it was explained in Beaulieu vs. Hartigan, 42 viz:
"The vast majority of fugitives from justice in foreign countries fled from those
countries knowing that charges have been, or were likely to be, brought against
them. Thus the typical subject of an extradition request has a demonstrated
propensity to flee rather than face charges and in general is likely to continue
his flight if released pending extradition." 43

The presumption against bail therefore arises only when the extraditee is a "fugitive from
justice." To avail of this presumption, it is a condition sine qua non that competent
evidence be proffered that the extraditee is a fugitive from justice.
In Marquez, Jr. vs. COMELEC, 44 we ruled that the term fugitive from justice "includes
not only those who flee after conviction to avoid punishment but likewise those who,
after being charged, flee to avoid prosecution." 45 In Rodriguez vs. COMELEC, 46 we
clarified that this definition indicates that "the intent to evade is the compelling factor that
animates one's flight from a particular jurisdiction. And obviously, there can only be an
intent to evade prosecution or punishment when there is knowledge by the fleeing subject
of an already instituted indictment, or of a promulgated judgment of conviction." 47

From the records, it appears that the claim of the petitioner that the private respondent is
a fugitive from justice is based on the following allegations: (a) that an investigation for
the charges against him was then on going; and (b) that upon learning that he was about
to be charged, he fled from the United States. Thus, petitioner alleged:
"Learning that an investigation involving his violations of United States federal
laws was about to be terminated and that he was about to be charged, Jimenez
fled the United States jurisdiction. Under United States law, he is therefore a
fugitive from justice. A "fugitive from justice" is a person who commits a crime
within a state and withdraws himself from such jurisdiction (Ex Parte Montoya,
135 P. 2d 281, 282, 170 Or. 499). Because he has fled once, there is a greater
likelihood that he will flee to another jurisdiction once more and frustrate
extradition. Thus, he poses a serious risk flight. The interest of justice will be
best served if he is arrested and detained pending extradition proceedings,
which after all, is summary in nature." 48

It is clear, however, that the warrant of arrest in connection with Indictment No. 9900281-CR-SEITZ against the private respondent was issued on April 15, 1999. 49
Private respondent claims that he was already in the Philippines when the indictment
against him was filed and the warrant for his arrest was issued. During the oral argument
of the case at bar, the following exchange between the counsels of the parties took place,
viz:
"USec Gutierrez: It may be mentioned that the proposed extraditee stands
charge (sic) of several charges from the United States of
America and a warrant of arrest was issued against him and
he fled the jurisdiction of the United States of America to
evade prosecution and there would again be another risk of
plight (sic) and to ensure the proposed extraditee will be
present during the extradition proceeding, therefore this
request on the part of the petitioner for the issuance of
warrant of arrest. 50
xxx xxx xxx
Atty. Bautista: The Honorable Counsel has declared gratuitously that Mr. Mark
Jimenez is a fugitive from the United States, left the United
States because of the indictment against him. That is totally
false. The petition itself says that a warrant for the arrest of
Mr. Jimenez was issued in the United States in April 1999.
Mr. Jimenez was here in the Philippines on May 1998 and
he has not left the country since then. So he left the United
States long before, a year before the warrant of arrest was
issued, so how can we say that he is a fugitive from
justice?" 51

That private respondent arrived in the country on May 10, 1998 is evidenced by the
records and is not contradicted by the petitioner. 52 On the other hand, petitioner's claim
that private respondent knew of the ongoing investigation as well as of the existence of
the charges against him when he fled from the United States is devoid of evidence.
Therefore, it would be fatal for the petitioner to rely alone on the presumption against
bail in extradition cases to justify the denial of bail of the private respondent.
In Rodriguez, petitioner arrived in the Philippines on June 25, 1985 and the complaint in
Los Angeles was filed on November 2, 1985. We ruled that "it was clearly impossible for
Rodriguez to have known about such felony complaint and arrest warrant much less
conviction to speak of yet at such time." We rejected the contention t hat Rodriguez
would have known the on-going investigation, viz:
"It is acknowledged that there was an attempt by the private respondent to show
Rodriguez' intent to evade the law. This was done by offering for admission a
voluminous copy of an investigation report on the alleged crimes committed
which led to the filing of the charges against petitioner. It was offered for the
sole purpose of establishing the fact that it was impossible for the petitioner not
to have known of said investigation due to its magnitude. Unfortunately, such
conclusion misleads because investigations of this nature, no matter how
extensive or prolonged, are shrouded with utmost secrecy to afford law
enforcers the advantage of surprise and effect the arrest of those who would be
charged." 53

Furthermore, we held that "the circumstantial fact that it was seventeen (17) days after
Rodriguez' departure that charges against him were filed cannot overturn the presumption
of good faith in his favor. The same suggests nothing more than the sequence of events,
which transpired. A subjective fact as that of petitioner's purpose cannot be inferred from
the objective data at hand in absence of further proof to substantiate that claim."

Third. In granting bail to the private respondent, the standard used by the extraditing
court is not clear. An extradition proceeding is sui generis, hence, neither the standard of
proof beyond reasonable doubt in criminal cases nor the standard of proof of
preponderance of evidence in civil cases can apply. Thus, in Lantion, 54 we explained:
"We are not persuaded. An extradition proceeding is sui generis. It is not a
criminal proceeding which will call into operation all the rights of an accused as
guaranteed by the Bill of Rights. To begin with, the process of extradition does
not involve the determination of the guilt or innocence of an accused. His guilt
or innocence will be adjudged in the court of the state where he will be
extradited. Hence, as a rule, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked by an

extraditee especially by one whose extradition papers are still undergoing

evaluation. As held by the US Supreme Court in United States v. Galanis:
'An extradition proceeding is not a criminal prosecution, and the
constitutional safeguards that accompany a criminal trial in this country
do not shield an accused from extradition pursuant to a valid treaty.'
There are other differences between an extradition proceeding and a criminal
proceeding. An extradition proceeding is summary in nature while a criminal
proceeding involve a full blown trial. In contradistinction to a criminal
proceeding, the rules of evidence in an extradition proceeding allow admission
of evidence under less stringent standards. In terms of the quantum of evidence
to be satisfied, a criminal case requires proof beyond reasonable doubt for
conviction while a fugitive may be ordered extradited 'upon showing of the
existence of a prima facie case.' Finally, unlike in a criminal case where
judgment becomes executory upon being rendered final, in an extradition
proceeding, our courts may adjudge an individual extraditable but the President
has the final discretion to extradite him. The United States adheres to a similar
practice whereby the Secretary of State exercises wide discretion in balancing
the equities of the case and the demands of the nation's foreign relations before
making the ultimate decision to extradite."

With humility, I submit that the Court should fashion out a higher standard to govern the
grant of bail to a possible extraditee. The higher standard is demanded by the fact that our
extradition treaty obligates us to assure that an extraditee will not abscond from our
jurisdiction. Failure to comply with this obligation will expose our country to
international embarrassment. It will defeat the purpose of extradition treaties, i.e., the
suppression of crimes, especially transnational crimes to which the Philippines is very
vulnerable. The standard, I propose, is the standard of clear and convincing evidence
which is higher than mere preponderance of evidence but lower than proof beyond
reasonable doubt. If this new and stricter standard would be adopted, it ought to follow
that the parties should be given a chance to offer evidence to meet the same. Contrary the
claim of the majority, the voluminous pleadings already filed by the parties are
insufficient to resolve the issue of whether the private respondent is entitled to bail. These
pleadings proffer legal arguments but not proof of facts. The remand of the case at bar is
therefore not a cop-out but is proper and it will not delay the proceedings. The
extradition court can be ordered to finish the hearing on the limited issue of bail within
one (1) week. After all, extradition proceedings are summary in nature.
CONCLUSION
In conclusion, I offer the following views:
First. The filing of a petition for extradition does not per se justify the
issuance of a warrant of arrest against an extraditee. The petition,

in some instances, may not contain sufficient allegations and proof

on the issue of whether the possible extraditee will escape from the
jurisdiction of the extraditing court.
Second. When the petition for extradition does not provide sufficient basis
for the arrest of the possible extraditee or the grant of bail as in the
case at bar, it is discretionary for the extradition court to call for a
hearing to determine the issue.
Third. An extraditee has the right to apply for bail. The right is rooted in
the due process clause of the Constitution. It cannot be denied
simply because of the silence of our extradition treaty and law on
the matter. The availability of the right to bail is buttressed by our
other treaties recognizing civil and political rights and by
international norms, customs and practices.
Fourth. The extraditee may apply for bail but its grant depends on the
discretion of the extraditing court. The court must satisfy itself that
the bail will not frustrate the ends of justice.
Fifth. In deciding whether to grant bail or not to a possible extraditee, the
extraditing court must follow a higher and stricter standard. The
extraditee must prove by clear and convincing evidence that he
will not flee from the jurisdiction of the extraditing court and will
respect all its processes. In fine, that he will not frustrate the ends
of justice.
As emphasized, the case at bar has entered a new stage and the competing interests of the
state and the rights of the private respondent as an extraditee need to be rebalanced on
the scale of justice. These competing rights and interests have to be rebalanced for they
have developed new dimensions and some facts may have to be accorded greater or lesser
weights to meet the more paramount interest of our people. This paramount interest is
always in motion as it is affected by the inexorable changes wrought in time both by man
and machine.
In rebalancing these conflicting interests, we should take care not to diminish to a
disturbing degree an extraditee's fundamental rights to life, liberty and due process. These
rights have evolved as universal rights and extradition treaties for all their utility were
never meant to disparage, let alone, derogate them to inutility.
Likewise, in rebalancing these interests, we should not weaken the role of courts in
tempering the harshness of extradition proceedings. We should not therefore dilute the

discretionary power of courts to determine whether a hearing should be called before

ordering the immediate arrest of a possible extraditee.
In counter-balance, we should not be soft on extraditees who are facing charges in
countries where we have extradition treaties. While rights are being universalized, so too
are crimes being internationalized. We should not allow our country to be the sanctuary
of criminals who demand rights but deny the rights of others. Thus, there is need to
impose a higher and stricter standard before we grant bail to potential extraditees.
We are in the difficult step by step process of developing our jurisprudence in extradition.
In Lantion, our first extradition case, we held that an extraditee has no right to demand
examination of the documents of extradition while the request for extradition is just being
processed and evaluated by the Departments of Foreign Affairs and Justice. In the case at
bar, our second extradition case, we have the opportunity to impose a higher and stricter
standard that will govern a plea for bail of an extraditee. I urge the Court to seize the rare
opportunity for this can well be our humble contribution to man's relentless search for
elusive peace.
Prescinding from all these premises, I vote to remand the case at bar to the extradition
court so that it can follow the proper procedure and higher standard in determining the
right to bail of the private respondent.
ST CDaI

VITUG, J.:
"The State values the dignity of every human person and guarantees full respect
for human rights." 1

The proposal to curtail the right of an individual to seek bail from the courts of law,
acting in extradition cases, as well as his right to notice and hearing before being arrested,
brings to mind the not so distant past of the Spanish Inquisition and uneasy realization
that we have yet to totally free ourselves from the grip of a dark page in history.
My reservation on the draft ponencia is premised on the following theses first, it
would ignore constitutional right safeguards to which all government action is defined,
and second, it would overstep constitutional restraints on judicial power.
Treaty laws, particularly those which are self-executing, have equal stature as national
statutes and, like all other municipal laws, are subject to the parameters set forth in the
Constitution. The Constitution, being both a grant and a circumscription of government
authority by the sovereign people, presents the ultimate yardstick of power and its
limitation upon which an act of government is justly measured. This instrument contains
a rule for all agencies of the government and any act in opposition thereto can only be
struck down as being invalid and without effect. 2 When the great Charter gives a
mandate, the government can do no less than to accept it; its rejection would be an act of

betrayal. The edict in its Bill of Rights granting to all persons, without distinction, the
fundamental right to bail, is clear. No statute or treaty can abrogate or discard its
language and its intent.
The draft ponencia would assume that the Constitution confines the grant of provisional
liberty to criminal cases, and that it has no application to extradition proceedings. This
assumption would have reason for being if it were solely in criminal cases that a person
could face an imminent threat of deprivation of his right to life or liberty, for indeed, it is
this threat, rather than case nomenclature, that must be the focus and it would be
superficial to think otherwise. While defying a neat definition, extradition has all the
earmarks of a criminal process an extraditee would suffer deprivations, be denied his
freedom and restricted in his movements, not much unlike a criminal indictee. Extradition
proceedings involve an extended restraint of liberty following arrest, peculiar to an
accused in a criminal case, which can even be more severe than an accompanying
detention in a single state, for, at a minimum, it can mean protracted proceedings in both
the asylum state and the demanding state and a forced transportation in between. 3 In
Herras Teehankee vs. Rovira, 4 the Court observed that bail is constitutionally available
to all persons, even those against whom no formal charges are filed.

"Indeed, if, as admitted on all sides, the precept protects those already charged
under a formal complaint or information, there seems no legal and just reason
for denying its benefits to one against whom the proper authorities may not even
yet conclude that there exists no sufficient evidence of guilt. To place the
former in a more favored position than the latter would be, to say the least,
anomalous and absurd. If there is a presumption of innocence in favor of one
already formally charged with criminal offenses . . . a fortiori, this presumption
should be indulged in favor of one not yet so charged although arrested and
detained."
xxx xxx xxx
"We reiterate now that under the Constitution, all persons, without distinction,
whether formally charged or not yet so charged with any criminal offense, 'shall
before conviction be bailable,' the only exception being when charge is for a
capital offense and the court finds that the evidence of guilt is strong."

Notably, our extradition law (P.D. 1069, paragraph. 1, Section 9 thereof), expressly
provides that in the hearing of the extradition petition, the provisions of the Rules of
Court, insofar as practicable and not inconsistent with the summary nature of the
proceedings, shall apply. In this regard, Section 3, Rule 114, of our Rules of Criminal
Procedure is unequivocal

"All persons in custody shall, before final conviction, be entitled to bail as a

matter of right, except those charged with capital offenses or an offense which,
under the law at the time of its commission and the time of the application for
bail, is punished by reclusion perpetua, when evidence of guilt is strong."

Nowhere in the Extradition Treaty with the United States is the grant of bail
mentioned but so also it is not prohibited. This obscurity must not be held to negate
the right to bail; on the contrary, it should be viewed as allowing, at the very least, the
evident intendment and spirit of the fundamental law to prevail.
A Constitution does not deal with details, but only enunciates general tenets that are
intended to apply to all facts that may come about and be brought within its directions. 5
Behind its conciseness is its encompassing inclusiveness. It is not skin-deep; beneath that
surface is what gives it real life and meaning. It can truly be said that the real essence of
justice does not emanate from quibbling over patchwork but proceeds from its gut
consciousness and dynamic role as a brick in the ultimate development of the edifice. 6
Resort to overly rigid procedures is being justified as a need to keep in line with our
treaty obligations. Verily, comity in our relations with sovereign states is important, but
there are innate rights of individuals which no government can negotiate or, let alone,
bargain away.
Analogy between extradition process and proceedings where the right to bail is said to be
unavailing, i.e., deportation proceedings and proceedings before a military tribunal,
would not at all be apropos. Deportation proceedings are no more than inquiries and just
involve the simple fact of whether or not an alien has an authorized entry within a named
country or, if authorized, whether or not he has complied with the conditions for a
continued stay thereat. A subject found to be illegally staying in a country is merely
transported back to his place of origin. Most importantly, such a person is not considered
to be under judicial custody. Proceedings before a military tribunal, upon the other hand,
are confined to members of the military organization who give consent to its jurisdiction.
The stringent proceedings before such tribunals place emphasis on summary procedures,
a speedy resolution of the case being vital in maintaining discipline, obedience and
fitness among the ranks 7 that cannot obviously be compromised in any sound military
establishment.
The draft ponencia would rely heavily on foreign jurisprudence, notably American cases,
to belabor the point that the right to bail is extraneous to extradition proceedings. The
citation, particularly of the jurisprudence obtaining in the United States, could be
predicated on the Eighth Amendment of the US Federal Constitution. This amendment
however, recognizes merely by implication the right to bail by simply disallowing
excessive bail; it does not expressly provide for the grant of bail. 8 Individual states have
incorporated into their own state constitutions various versions some give it as a

matter of right and some do not a fact which partially explains the lack of uniformity
in state jurisprudence on the matter. Where some states provide for a constitutional right
to bail, the same is almost invariably viewed as affording a greater right than that
provided in the federal charter. 9
In contrast, the Philippine Constitution strongly and clearly mandates that, except for
those charged with offenses punishable by reclusion perpetua, when evidence of guilt is
strong, bail is an undeniable right of every person
"All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable
by sufficient sureties, or be released on recognizance as may be provided by
law. The right to bail shall not be impaired even when the privilege of the writ
of habeas corpus is suspended. Excessive bail shall not be required." 10

Thus, grappling in this jurisdiction with the compatibility of the grant of bail in
extradition proceedings with basic constitutional guarantees has not been and should
not be a predicament. Absent any standard, except for the constitutional limitation that
the same be not excessive, the grant of bail in the United States largely rests on
judicial discretion under the umbrella of judicial power. And so it has been so
regarded in Wright v. Henkel, 11 the primary case governing access to bail in United
States extradition proceedings, where the Court has held:
"We are unwilling to hold that the Circuit Courts possess no power in respect of
admitting bail other than as specifically vested by statute or that, while bail
should not ordinarily be granted in cases of foreign extradition, those courts
may not, in any case, and whatever the special circumstances, extend that
relief."

Henkel, decided by the US Supreme Court in 1903, has been criticized to have
imposed an amorphous standard and has resulted in an incoherent and inconsistent
approach to bail. 12 While the clamor for its re-examination appears to be getting
persistent by the day, 13 it has nevertheless become the forerunner in the judiciallyprescribed "special circumstances" standard in deciding whether the bail should be
granted or denied. 14 These "special circumstances" vary from reasons of ill-health
to material prejudice depending on the peculiarities of the case.
In In re Mitchel, 15 to cite an example, the court there caused the release of an extraditee
who was charged with larceny by the requesting state based on the assertion that his
continued detention rendered him incapable of consulting with his counsel. The court was
careful to emphasize that it had become imperative for him to obtain advice of counsel
because his entire fortune depended upon his doing so. The court then added that while
he had knowledge for a long time of the extradition, he had made no attempt to flee. 16

But Philippine courts need not really bother borrowing from dicta in foreign jurisdictions.
The absoluteness of the constitutional grant under Section 13, Article III of the
Constitution precludes any need for further standards than those explicitly expressed by
it. Judicial discretion is confined to the issue of whether or not the offense charged is a
capital crime and a determination of whether or not the evidence of guilt is strong. The
rule may appear to be too simplistic but it is the correct approach. At all events, I would
not be comfortable in developing a "special circumstances" standard on the basis of mere
pro hac vice pronouncements from elsewhere. In Herras Teehankee vs. Director of
Prisons, 17 this Court has expressed unqualified acquiescence to the deeply ingrained
policy of restraint against unwarranted judicial adventurism that can otherwise easily get
out of hand.
Given the foregoing, the trial court did not err, let alone commit a grave abuse of
discretion, in the grant of bail to the extraditee.
WHEREFORE, I vote to DENY the Petition.
CARPIO, J., concurring:
I concur with the well-written ponencia of Justice Panganiban. I write this concurring
opinion to afford extraditees in this country the right to bail, in carefully limited
exceptions, under the equity and rule making power of the Court. It is the constitutional
duty and power of the Court to protect and enforce the fundamental rights 1 of all persons
in this country. This should include, to the extent that the Court can grant under its
power, the right of extraditees in this country to avail of the same or similar remedies that
courts in the countries of our treaty partners have accorded to their own extraditees.
The right to bail is a constitutional right available to an accused in domestic criminal
proceedings except in offenses punishable by reclusion perpetua or higher when
evidence of guilt is strong. 2 An extraditee, however, cannot invoke this constitutional
right in international extradition because extradition proceedings are not criminal
proceedings. Extradition proceedings are like deportation and court martial proceedings
where there is no constitutional right to bail.
Thus, in the leading case of Ong See Hang v. Commissioner of Immigration, 3 the Court
held that:
"The right to bail guaranteed by the Constitution may not be invoked in favor of
petitioners-appellees, considering that deportation proceedings do not constitute
a criminal action (Lao Tang Bun v. Fabre, 81 Phil. 682; U. S. ex rel. Zapp, et al.
v. District Director of Immigration and Naturalization, supra) and the order of
deportation is not a punishment for a crime (U. S. v. Go-Siaco, 12 Phil. 490;
Mahler v. Eby, 264 U. S. 32), it being merely for the return to his country of an
alien who has broken the conditions upon which he could continue to reside

within our borders (U. S. v. De los Santos, 33 Phil. 397, Lao Tang Bun v. Fabre,
supra)."

This was reiterated in several cases, the most recent being In RE Andrew Harvey v.
Santiago, 4 decided under the 1987 Constitution. Here, the Court ruled that:
"The denial by respondent Commissioner of petitioners' release on bail, also
challenged by them, was in order because in deportation proceedings, the right
to bail is not a matter of right but a matter of discretion on the part of the
Commissioner of Immigration and Deportation. Thus, Section 37 (e) of the
Philippine Immigration Act of 1940 provides that "any alien under arrest in a
deportation proceeding may be released under bond or under such other
conditions as may be imposed by the Commissioner of Immigration." The use
of the word "may" in said provision indicates that the grant of bail is merely
permissive and not mandatory on the part of the Commissioner. The exercise of
the power is wholly discretionary (Ong Hee Sang vs. Commissioner of
Immigration, L-9700, February 28, 1962, 4 SCRA 442). "Neither the
Constitution nor Section 69 of the Revised Administrative Code guarantees the
right of aliens facing deportation to provisional liberty on bail." (Tiu Chun Hai,
et al vs. Deportation Board, 104 Phil. 949 [1958]). As deportation proceedings
do not partake of the nature of a criminal action, the constitutional guarantee to
bail may not be invoked by aliens in said proceedings (Ong Hee Sang vs.
Commissioner of Immigration, supra)."

In Commendador v. de Villa, 5 involving the court martial of military putschists against

the Aquino Government, the Court held that:
"We find that the right to bail invoked by the private respondents in G.R. No(s).
95020 has traditionally not been recognized and is not available in the military,
as an exception to the general rule embodied in the Bill of Rights. This much
was suggested in Arula, where we observed that 'the right to a speedy trial is
given more emphasis in the military where the right to bail does not exist'."
The justification for this exception was well explained by the Solicitor General
as follows:
'The unique structure of the military should be enough reason to exempt
military men from the constitutional coverage on the right to bail.
Aside from structural peculiarity, it is vital to note that mutinous soldiers
operate within the framework of democratic system, are allowed the
fiduciary use of firearms by the government for the discharge of their
duties and responsibilities and are paid out of revenues collected from

the people. All other insurgent elements carry out their activities outside
of and against the existing political system.
xxx xxx xxx
National security considerations should also impress upon this
Honorable Court that release on bail of respondents constitutes a
damaging precedent. Imagine a scenario of say 1,000 putschists roaming
the streets of the Metropolis on bail, or if the assailed July 25, 1990
Order were sustained, on "provisional" bail. The sheer number alone is
already discomforting. But, the truly disquieting thought is that they
could freely resume their heinous activity which could very well result
in the overthrow of duly constituted authorities, including this
Honorable Court, and replace the same with a system consonant with
their own concept of government and justice.'
The argument that denial from the military of the right to bail would violate the
equal protection clause is not acceptable. This guaranty requires equal treatment
only of persons or things similarly situated and does not apply where the subject
of the treatment is substantially different from others. The accused officers can
complain if they are denied bail and other members of the military are not. But
they cannot say they have been discriminated against because they are not
allowed the same right that is extended to civilians."

Finally, in Secretary of Justice v. Lantion, 6 the Court, speaking through Justice Reynato
S. Puno, declared that:
"We are not persuaded. An extradition proceeding is sui generis. It is not a
criminal proceeding which will call into operation all the rights of an accused as
guaranteed by the Bill of Rights. To begin with, the process of extradition does
not involve the determination of the guilt or innocence of an accused. His guilt
or innocence will be adjudged in the court of the state where he will be
extradited. Hence, as a rule, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked by an
extraditee especially by one whose extradition papers are still undergoing
evaluation. As held by the US Supreme Court in United States v. Galanis:
'An extradition proceeding is not a criminal prosecution, and the
constitutional safeguards that accompany a criminal trial in this country
do not shield an accused from extradition pursuant to a valid treaty.'
There are other differences between an extradition proceeding and a criminal
proceeding. An extradition proceeding is summary in nature while criminal
proceedings involve a full-blown trial. In contradistinction to a criminal
proceeding, the rules of evidence in an extradition proceeding allow admission
of evidence under less stringent standards. In terms of the quantum of evidence

to be satisfied, a criminal case requires proof beyond reasonable doubt for

conviction while a fugitive may be ordered extradited 'upon showing of the
existence of a prima facie case.' Finally, unlike in a criminal case where
judgment becomes executory upon being rendered final, in an extradition
proceeding, our courts may adjudge an individual extraditable but the President
has the final discretion to extradite him. The United States adheres to a similar
practice whereby the Secretary of State exercises wide discretion in balancing
the equities of the case and the demands of the nation's foreign relations before
making the ultimate decision to extradite.
As an extradition proceeding is not criminal in character and the evaluation
stage in an extradition proceeding is not akin to a preliminary investigation, the
due process safeguards in the latter do not necessarily apply to the former. This
we hold for the procedural due process required by a given set of circumstances
"must begin with a determination of the precise nature of the government
function involved as well as the private interest that has been affected by
governmental action." The concept of due process is flexible for "not all
situations calling for procedural safeguards call for the same kind of procedure."

Clearly, in this jurisdiction there is no constitutional or statutory right to bail in noncriminal proceedings like in extradition. This doctrine is so well-entrenched in this
jurisdiction that there is no need to belabor this point. Courts in the countries of our treaty
partners, however, have allowed bail to extraditees in their own countries even in the
absence of a constitutional 7 or statutory 8 right to bail. This places our own citizens who
face extradition proceedings in this country at a disadvantage in terms of available
remedies. The United States, for example, allows bail to extraditees when "special
circumstances" 9 are present. Canada also allows bail under a similar rule. 10
This situation calls for equality in treatment by extending, in carefully limited exceptions,
the right to bail to those facing extradition proceedings in this country. Nevertheless, we
must insure that we do not cripple the ability of our Executive Department to comply in
good faith with our treaty obligations under international law. This requires a calibrated
balancing, on the one hand, of the State's interest in cooperating with our treaty partners
in international criminal law enforcement, and on the other hand, of the need to give our
own citizens no lesser right and protection than what our treaty partners so zealously
provide to their own citizens.
Thus, following the emerging trend in the United States, 11 and guided by our own
experience in combating transnational crimes including international terrorism, the Court
should rule that our extradition courts may, after the arrest of the extraditee, grant the
extraditee bail if he establishes that he does not pose a flight risk or a danger to the
community, and there is no other special circumstance that would warrant denial of bail.
The burden of proving he is entitled to bail rests on the extraditee because by resisting the
extradition to face a fair trial abroad, the extraditee is presumed to be a flight risk. This is

why courts have consistently held that the presumption is against bail in extradition cases.
12

The development of extradition law is still in its infancy in this country. We are fortunate
that the present Constitution has empowered the Court to adopt rules to protect and
enforce the fundamental rights of the people. In the United States, the grant of bail to
extraditees is still largely governed by the 1903 case of Wright v. Henkel, with only the
cryptic "special circumstances" as the standard prescribed by the U.S. Supreme Court for
extradition courts in the U.S. to follow. 13 The instant case provides the opportunity for
this Court to lay down a clear-cut guideline for our own extradition courts to follow. This
will insure that our Executive Department can comply promptly with extradition requests
as required by the nature of our treaty obligations while at the same time protecting the
fundamental rights of our citizens.
In essence, extradition is police assistance extended by a state to arrest a person charged
with a crime in another state and surrender him to the authorities of that state. The power
to arrest by the assisting state is legitimized by a treaty, which has the force of a statute
14 and forms part of municipal law. 15 The benefit of extradition is the mutual assistance
between states in criminal law enforcement across national boundaries. The assisting
state acts as an arresting agent and in some jurisdictions the extradition process is mainly
an executive function. Even under our extradition treaties, the final decision whether to
extradite or not rests with the President of the Philippines, not with the courts. 16 Thus,
ordinarily an assisting state does not grant bail to the extraditee whose recourse is to
apply for bail before the court of the state where he is charged with a crime. The assisting
state, however, for equity considerations may choose to accord bail to the extraditee. One
equity consideration is to put extraditees in one country in equal footing with extraditees
in the country of the treaty partner. Another equity consideration is to grant the right to
bail, in carefully limited exceptions, to preserve and enforce fundamental rights.

This rule will not change the situation for extraditee Mark B. Jimenez in the instant case
because Jimenez has failed to establish that he is not a flight risk. Having fled the United
States just as he was about to be indicted for several serious crimes, Jimenez is presumed
to be a flight risk for extradition purposes in this country. Jimenez has not successfully
rebutted this presumption before the extradition court. Jimenez has also refused to honor
his agreement with the U.S. Department of Justice, made in August 1998 through his
U.S. counsel, to return to the United States 17 where he faces a maximum prison term of
not less than 100 years if convicted on all counts. 18 Given his resources, and the gravity
of the charges against him, Jimenez remains a serious flight risk.
The "special circumstances" that Jimenez has alleged do not inspire confidence that he
will not likely flee. Jimenez claims that he has been admitted to the Witness Protection

Program which shows his lack of intent to flee. The Department of Justice, however, has
disowned issuing to Jimenez a Certificate of Admission to the Witness Protection
Program. The Department of Justice should know who have been admitted to the Witness
Protection Program because the Department itself administers the Program. Under the
Witness Protection, Security and Benefit Act, the issuance of the Certificate of
Admission is the operative act that establishes admission to the Program. 19 Unless he
can present a Certificate of Admission, Jimenez's claim should be rejected, and even
taken as an act of misrepresentation to the extradition court, in view of the statement by
the Department of Justice that there is no record of Jimenez's admission to the Program.
20

For the same reason, Jimenez's claim that he is a state witness in the plunder case against
ex-President Joseph Estrada, and that "his flight would strip him of (the) immunity he is
entitled to," 21 cannot be given credence. Under the Witness Protection, Security and
Benefits Act, the Certificate of Admission is essential to the discharge of the accused and
his utilization as a state witness. 22 Without the Certificate of Admission, Jimenez is not
entitled to immunity under the Program. 23 The Department of Justice will issue the
Certificate of Admission only if it is satisfied with the proposed testimony of the witness
as disclosed in his sworn statement. Since until now t he Department of Justice has not
issued a Certificate of Admission to Jimenez, it could mean that the Department is either
not satisfied with what Jimenez is bargaining to testify against ex-President Joseph
Estrada, or that Jimenez may not be the least guilty. 24 Unless Jimenez presents to the
extradition court the Certificate of Admission, and this he has not done, Jimenez's claim
of being a state witness against ex-President Estrada is baseless and self-serving.
Jimenez claims that the Department of Justice knows his whereabouts because he is
under 24-hour PNP protection. Jimenez asserts in his Sworn Statement 25 that the
Department of Justice has provided him police protection because he "was admitted into
the Witness Protection Program of the DOJ on 2 March 2001." This is patently false. The
Department of Justice states that there is no record of Jimenez's admission to the Witness
Protection Program. Jimenez has not presented a Certificate of Admission to the Program
which under the Witness Protection, Security and Benefits Act would entitle him to the
benefits, protection and immunities of the Program.
That Jimenez enjoys the privilege of a 24-hour PNP security detail does not establish that
he is a state witness under the Witness Protection Program. As a member of the House of
Representatives, Jimenez may have requested the PNP to provide him a security detail for
his own benefit and protection. In such a case, the PNP security detail takes instructions
from Jimenez and not from the Department of Justice. The 24-hour PNP security detail
would hardly be effective in preventing Jimenez from fleeing the country.
The other "special circumstances" alleged by Jimenez, like his seven children residing in
the Philippines, and his lack of visas to travel to other countries, deserve scant

consideration. Considering his age, Jimenez's seven children are all probably of age by
now, and even if they are all still minors, they would hardly become public charges if left
behind in the Philippines. The lack of visas has never deterred the flight of fugitives from
any country. Besides, any Filipino can travel to any of our nine ASEAN neighbors
without need of a visa.
c aADIC

Accordingly, I vote to grant the petition.

YNARES-SANTIAG O, J., dissenting:
With all due respect, I am disturbed by the majority opinion's disregard of basic freedoms
when a case is one of extradition. The majority opinion is too sweeping and dogmatic for
a case of first impression. I find the views on the indiscriminate denial of fundamental
rights too open-ended and heedless of entrenched jurisprudence on Bill of Rights
protections.
The sheer novelty of the world's only superpower asking that a Filipino be brought before
it to face criminal prosecution seems to mesmerize policy makers and this Court alike
into depriving that citizen of constitutional protections. The issue before the respondent
court is a fairly innocuous one whether or not the petition for extradition is
meritorious. We are not concerned with the guilt or innocence of the respondent. He is
presumed innocent of the crimes charged until he is convicted by a foreign court. He is
likewise presumed innocent of the demands found in the request for his extradition. But
the majority opinion has chosen to adopt a presumption of guilt. It presumes that the
petition calling for the forcible separation of the respondent from his homeland, family,
occupation, and friends is correct even before the merits are ascertained. It presumes that
he will flee.
A person convicted of a crime, except for the most serious offenses, is allowed bail while
an appeal is pending. Respondent Jimenez has not been convicted of any crime. His guilt
or innocence is not in issue before the respondent court. The only legal affront he has
committed is his refusal to leave the pleasures of life in his country and go to a place
where he fears the reception to him would be disagreeable and much less pleasant.
Eventually after trial in the respondent court, respondent may be compelled to undergo
what he fears. But until that decision is rendered and becomes executory, he must be
presumed innocent of any crime or any affront to law or treaty. There can be no
deprivation of basic rights and freedoms merely because the case is one of extradition.
I submit that we must consider the implications of a ruling that in criminal proceedings,
the constitutional rights of the accused must be protected, but i n a case neither criminal
nor civil, one which we call "sui generis," basic freedoms become irrelevant and nonavailable. A non-criminal proceeding, less onerous and repulsive to society than
prosecution for crime, and where the penalty is only to be brought for trial before the

court with jurisdiction, is stripped of guarantees and protections given to hard-boiled

recidivists pending arrest and trial.
We have denied a prospective extraditee the right to be informed before trial of the nature
and cause of the charges against him. 1 Due process is essential in all court proceedings
criminal, civil, investigatory, administrative, or even sui generis, a class the Court uses
as an excuse to justify deprivation of that most elemental of rights, the right of notice. 2
The Court has ruled that respondent Mark Jimenez or any other person sought to be
extradited must first be exposed to the indignity, expense, and anxiety of a public
denunciation in court before he may be informed of what the requesting State has against
him. The right to notice before trial is denied.
The majority opinion states that a prospective extraditee is not entitled to notice and
hearing before a warrant of arrest can be issued against him. Worse, he is denied the right
to bail and provisional liberty while the extradition proceedings are pending.
All the jurisprudence explaining the parameters of the unreasonable searches and seizures
provision of the Constitution 3 becomes inapplicable. The petition for extradition and its
attachments take the place of probable cause. The right against unreasonable search and
seizure is available to all persons including those not charged with any crime. 4 But now,
we create an unusual exception. It is not available to one who may be seized against his
will for possible extradition to a country where his innocence or guilt will first be
determined. Arrest and imprisonment will become virtually certain in extradition
proceedings. The only thing required of the Court is to go over the request for extradition
and its supporting documents. Arrest is virtually assured because of the absence of notice
and hearing. It is inconceivable that the officials of a requesting State would be so dense
or careless as to fail to include in the request for extradition a prima facie showing that
the respondent deserves to be seized and forcibly brought to the foreign country for trial.
According to the majority opinion, from the forwarded documents, we expect the trial
court to "merely . . . get a good first impression sufficient to make a speedy initial
determination as regards the arrest and detention of the accused." This novel doctrine
justifying the near certainty of automatic arrest and detention goes against this Court's
decisions, too numerous to mention, protecting citizens and aliens alike from
unreasonable arrests or seizures. Can we expect anything other than a "good first
impression" to arise from the mere reading of a request for extradition?
In criminal prosecutions, the judge must personally determine probable cause for the
arrest. Facts and circumstances must first be presented which would lead a reasonably
discreet and prudent man to believe that an offense has been committed and the accused
is probably guilty of the offense. 5 In the majority opinion, the request for extradition by
the foreign country takes the place of a hearing for probable cause. After trial, it is
possible that the petition for extradition may be denied. Under the majority opinion, the
possibility of a judgment of denial does not influence the immediate arrest and indefinite

detention of the respondent since notice and hearing before arrest are not required. He
must be jailed while the grant or denial of the petition is being considered.

The majority opinion gives five (5) postulates of extradition. With all due respect, I fail to
see how compliance with these postulates should result in a disregard for constitutional
liberties.
I agree with the first postulate. It is a general proposition that extradition is a major
instrument for the suppression of crime and the Philippines should cooperate in
facilitating the arrest and custodial transfer of a fugitive from one State to another.
However, I cannot see how compliance with the requirements for notice and hearing and
the ascertainment of reasonable cause would hamper the suppression of crime. If they do,
why should they appear in our laws and in the decisions of this Court? Does obedience to
the dictates of due process and the prohibition against unreasonable seizures mean any
lesser determination to eradicate crime? Effective extradition arrangements and
deterrence of flight abroad by felons are not incompatible with fundamental liberties. The
act of according due process and reasonable seizures does not make the Philippines an
isolationist state. The employment of beneficial objectives to justify the repression of far
more worthy values is pejorative in nature, one in which the Court should not engage.
The second postulate is based on the apriorism that the two parties to an extradition treaty
accept and trust each other's legal system and judicial processes. We trust the fairness of
the American system of justice. However, why should we assume that it is a breach of
trust which the requesting country will look upon with disfavor if we accord notice and
hearing to the respondent before a warrant of arrest is issued? If bail is allowed while the
extradition petition is pending before the trial court, does this signify a lack of confidence
on our part in the capacity and the willingness of the other state to protect the basic rights
of the person sought to be extradited?
The Constitution of the United States provides that "(t)he right of the people to be secure
in their persons, houses, papers, and effects against unreasonable searches and seizures
shall not be violated and no warrants shall issue, but on probable cause, supported by
oath or affirmation and particularly describing the place to be searched and the persons or
things to be seized." 6 The offenses upon which the request for extradition is premised
are relatively light. Undoubtedly, bail will be given by the American courts on the basis
of a presumption of innocence and the lack of gravity of the offenses. If the alleged
offenses themselves are bailable both here and in the United States, I see no connection
between the grant of the right against unreasonable seizures or the right of bail and the
gratuitous assertion of the majority opinion that this is an absence of trust and confidence
in the American legal system and judicial process.

The guarantees of the Philippine Bill of Rights are derived from American sources. Why
should we withhold them out of a misplaced fear that their grant may be interpreted as a
lack of faith in the American judicial system?
The third postulate states that extradition proceedings are sui generis. It is a dogma
pernicious in its consequences to declare that a classification of sui generis lifts a court
proceeding beyond constitutional protections. The trial before the respondent court is not
criminal in nature. It is less onerous than a criminal prosecution. Yet, the majority
opinion confers upon one accused of grave crimes far greater rights than an extraditee
whose guilt of lesser offenses is not even in issue. Classifying a proceeding as sui generis
does not mean that procedural guarantees available in criminal prosecutions, civil trials,
or administrative proceedings are thereby waived or become irrelevant. The classification
should not mean exemption from notice or hearing for the issuance of a warrant of arrest.
It cannot result in non-entitlement to bail.
The process of extradition does not involve the determination of the guilt of an accused.
The majority opinion states that extradition is merely a measure of international judicial
assistance to restore a person charged with crime to the jurisdiction with the best claim to
try him. If so why should the person sought to be extradited be imprisoned without bail
while the grant of assistance is pending? With more reason should constitutional
protections be given to him. The correctness of a decision to forcibly remove a person
from his homeland, family, and friends should not be taken lightly. In determining
whether the extradition request complies with the extradition treaty, the trial court should
not be encouraged by a postulate to act in a cavalier manner or treat the proceedings as
inconsequential in nature.
The majority opinion states as its fourth postulate that compliance with treaties shall be in
good faith. If the respondent court grants bail to the respondent in extradition
proceedings, does this constitute a failure to fulfill our obligations under the extradition
treaty? I am not aware of any treaty which requires the incarceration of a respondent
while the court determines whether or not he falls under the treaty provisions. Why
should the furnishing of notice and the holding of a hearing for an arrest warrant paint a
bad picture of our country before the world community? There should be a contrary
impression of adherence to fairness and justice. We cannot fault the trial court for
adopting procedural safeguards which help insure the correctness of its decision. If
compliance in good faith with the treaty requires that the respondent be immediately
seized and confined in the national penitentiary, why should an extradition trial still be
held? We might as well give full faith and credence to the request for extradition and
without any trial or hearing, place the respondent in the next airplane leaving for the
requesting country. The discussion in the majority opinion of the postulates of extradition
implies that the implementation of an extradition treaty rarely or never results in a refusal
to allow extradition and that the court proceedings do not amount to anything more than a

formality. Otherwise, why should he languish in the penitentiary while his extradition
case is pending?
The fifth and last postulate uses the underlying risk of flight. To say that all persons
sought to be extradited have a propensity to flee is too sweeping a statement to be
adopted as an axiom. In every criminal prosecution, the prosecution can, with greater
reason, argue that the accused will escape and go into hiding. But never has the
possibility of flight sufficed to always require incarceration while court proceedings are
going on. The opposite practice is the one we have adopted. The right to bail has been
elevated into a constitutional guarantee. Only for the most serious of offenses when
evidence of guilt is strong may an accused be denied freedom upon the posting of bail
prior to his conviction. 7 In fact, the Revised Rules of Criminal Procedure, as amended,
provide that any person in custody who is not yet charged in court may apply for bail
with any court in the province, city, or municipality where he is held. 8 The respondent is
not charged of any crime before our courts.
The five postulates of extradition outlined in the majority opinion are motherhood
statements over which there can be no quarrel. However, these postulates should be
interpreted in a manner that preserves procedural safeguards instead of being used to
support the petitioner's intent to cut corners. Compliance with treaty obligations does not
mean unquestioning obedience to everything stated in a petition for extradition. The
allegations will still be proved, refuted, and determined. Much less does it result in
instant seizure without notice and hearing or incarceration without any recourse to legal
methods of gaining provisional liberty.
cEHSIC

Is the respondent entitled to notice and hearing before the issuance of a warrant of arrest?
The majority opinion agrees with the Department of Justice that the Regional Trial Court
committed grave abuse of discretion when it informed the respondent that an extradition
petition had been filed against him and that petitioner was seeking his arrest. The opinion
states that the exercise of discretion by the judge is a notice to escape and to avoid
extradition.
The truth is that long before January 18, 2000 when G.R. No. 139465 was decided, 9
respondent was fully aware of the information which this Court now declares should not
have been given to him. Respondent could have fled but he did not do so. Instead, he
made himself more visible; he ran for Congress and engaged in various civic activities
always in the public eye.
Paraphrasing the ruling in G.R. No. 139465 on the motion for reconsideration, the threat
of private respondent's flight from the Philippines has passed. It is more imagined t han
real at this time. 10

Petitioner states that the procedure requiring notice and hearing will set a dangerous
precedent. The Court agrees that those sought to be extradited including terrorists,
mass murderers and war criminals may invoke it in future extradition cases.
To lump up respondent Jimenez and all persons in extradition proceedings with terrorists,
mass murderers, and war criminals is contrary to all rules of reasonable and valid
classification. Respondent is charged before the district court of Florida with conspiracy
to defraud, attempted tax evasion, fraud through the use of radio television, false
statements, and unlawful election contributions. There is absolutely no indication of
terrorism, mass murder, or war crimes against him. He is definitely not a candidate for
confinement in the Guantanamo Prison Compound. The fear of terrorists is not reason to
deprive all subjects of extradition proceedings any and all constitutional protections.
Methods of dealing with terrorists should not be used against suspected tax evaders or
violators of election laws. The fact that terrorists are denied bail is not reason to deny this
constitutional guarantee to persons being tried for offenses where no individual is a
victim.

It is error to expect that all persons against whom charges have been filed would
voluntarily and cheerfully submit to trial. There are procedural safeguards such as
preliminary investigation intended to secure a person presumed innocent against hasty,
malicious and oppressive prosecution, and to protect him from an open and public
accusation of crime, from the trouble, expense, and anxiety of a public trial and also to
protect the state from useless and expensive trials. 11 For both the State and the accused,
there could be sound reasons to oppose or avoid prosecution.
If there is reason in some cases for the State not to prosecute, there is greater reason for a
prospective accused to take all steps that would prevent his having to go before a criminal
court. We may assume that any fears of oppressive prosecution in the mind of the private
respondent are unfounded and imagined. This should not lead the Court to conclude that
a natural aversion to criminal prosecution is always based on ignoble or indefensible
reasons. Neither should a natural desire to avoid unpleasant situations be used to deny
basic rights and privileges.
I submit that it is a dangerous precedent for this Court to rule that the prima facie
existence of probable cause for a warrant of arrest can be derived from a mere reading of
the petition for extradition and its supporting documents. The determination of probable
cause is effectively taken away from the judge and transferred to the Department of
Justice. Worse, the determination could come directly from an office not equipped to
make it, namely the Department of Foreign Affairs. In either case, the Constitution is
infringed.

The majority opinion is overly influenced by the fear that a person sought to be extradited
would be tempted to flee. Of course, it is natural for any person facing court litigation of
any kind to try to avoid it. An accused already being tried in court or an appellant who
appeals a judgment of conviction has greater reason to flee if possible. Yet, this is not
cause to deny him notice of proceedings or the right of provisional liberty while his case
is pending. If bail is going to be denied respondent Jimenez, it should be after a full
hearing and with the application of all constitutional guarantees.
The majority opinion states that under the Constitution only the complainants and the
witnesses he may produce are required to be examined. 12 It overlooks that in this case
no complainant and no witness has been examined. A warrant of arrest is ordered issued
on the sole basis of documents. There may be no requirement to notify and hear the
accused before a warrant of arrest is issued. But neither is there any prohibition against
the judge hearing an accused before a warrant is issued; more so if he is already in court
and strongly opposes his being arrested pending trial. In his search for the truth, the judge
should not be restrained in the exercise of sound discretion.
In this case, the petition has already been filed. The respondent has submitted himself to
the jurisdiction of the trial court. The motion to have him arrested and detained is an
incident of the pending case. There is no need to take him into custody in order to make
him forthcoming for trial. 13 Mr. Jimenez appears to be more than willing and, in fact, is
already answering the request for extradition. He is not before the court to answer for any
crime. But he is there. Strangely, the court would deny him provisional liberty in a case
not criminal in nature but which could make him answer for alleged offenses in another
country if the court should decide against him. What cannot be denied to him in the
criminal prosecution is denied in a case which may or may not lead to such prosecution.
The absence of logic behind the majority opinion's denial of basic rights becomes clearer
when it comes to the issue on the right to bail. The reason given for the denial of the right
to bail is not merely deceptive; it has dangerous implications. It states that the
constitutional provision on bail applies only when a person has been arrested and
detained for violation of Philippine Criminal Law. The reasoning states, that ergo, the
right to bail does not exist in non-criminal prosecutions. The absence of a constitutional
provision on the right to bail of a person subject to extradition is simply based on the fact
that the idea of incarcerating a person for something other than crime never occurred to
the framers of the Constitution. There can be no forcible detention in non-criminal
situations. Incarceration for something not related to crime would be arbitrary detention
or illegal detention. It could even be slavery or involuntary servitude. In all these cases,
the issue of bail does not arise. If we insist on classifying extradition as a proceeding not
covered by the protections given to accused persons, we should rule that bail is not
provided because the respondent is not supposed to be imprisoned. There is no need for
bail because the detention is illegal in cases not related to crime. Extradition cases may
not be criminal in nature. But they assist and precede criminal prosecutions.

The petitioner twists the right to bail out of context when it argues that the right available
during criminal prosecutions is irrelevant and should be disregarded when the court
action is non-criminal in nature and, therefore, it is not available in civil, administrative,
regulatory, and extradition proceedings. The fallacy of the argument is readily apparent.
I cannot go along with the proposition that a person who tries to avoid criminal
prosecution is always a criminal, coward, or weakling who prefers to run and hide. There
are many reasons why people will fear trial in criminal cases. It is not overprotection or
excessively liberal treatment to enforce constitutional guarantees in extradition cases. It is
fairness and adherence to the rule of law. The judge has discretion on whether or not he
should allow bail. He should have a sound basis for the probability or likelihood of flight.
The majority opinion starts by asking two questions. (1) Are prospective extraditees
entitled to notice and hearing before warrants for their arrest are issued? and (2) Are they
entitled to bail and provisional liberty while extradition proceedings are pending? The
answer is a curt "No." By the brevity and terse nature of the answer, it seems absolute and
inflexible.
Towards the end of the majority opinion, 14 however, two exceptions are allowed. First,
the applicant is not a flight risk. Second, there exist special and compelling
circumstances.
To my mind, the issues in this case should be framed differently. On the first question,
the present provisions of law and decisions of this Court on arrests and seizures should be
assumed and followed. On the second question, the Court should apply the same
principles on the right to bail found in the Constitution to persons facing trial for
extradition. Thus, all persons, except those where the probability of flight is clear and
present or the crimes for which extradition is sought are heinous, shall before judgment in
the extradition proceedings, be bailable by sufficient sureties or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even
where the requesting country is one with which the Philippines maintains strong ties.
Excessive bail shall not be required. 15
The majority opinion cites my ponencia in People v. Jalosjos. 16 Jalosjos was already
convicted and his appeal was pending when he was reelected. The crime of statutory rape
where a minor is involved is particularly heinous. The evidence of guilt was not merely
strong; it was beyond reasonable doubt as found in our decision. Disenfranchisement of
constituents is not reason for his release.
The case of Congressman Jimenez is an entirely different one. Respondent has not even
faced trial as yet. There can be no proof of strong evidence against him. All we have are
still accusations.

Respondent is not charged with heinous crimes. The alleged tax evasion is at the stage of
attempt. The defraudation is part of a conspiracy. Perjury and illegal election
contributions are relatively not so serious offenses as to support denial of the right to bail.
The respondent's being a Congressman should be viewed from the aspect of possibility of
flight. Why should a person run for Congress, campaign all over his district, and expose
himself regularly to newspaper media and television if he intends to flee the country?
There is a hold-order against him found in all ports of exit and entry. When his
constituents voted Jimenez to Congress knowing fully well that an extradition case was
or could be filed against him, it was an expression of confidence that he would not run
away. Their faith may be misplaced or proved wrong later, but today, it must be taken at
face value as against mere suppositions, fears, and apprehensions. The rules on denial of
bail where possibility of flight is established must be followed.
The request for extradition comes from the United States. In the course of the most
perilous period in the life of that nation, the American Supreme Court stated that "the
constitution is a law for rulers and people, equally in war and in peace, and covers with
the shield of its protection all classes of men, at all times and under all circumstances. . .
. no doctrine involving more pernicious consequences was ever invented by the next of
man than that its provisions can be suspended during any of the great exigencies of
government." 17
The extradition of respondent is not an exigency of government. The provisions of the
Bill of Rights of the two States which entered into the treaty are fully applicable in
extradition. If a person is to be arrested and detained, current laws and procedures for
arrests and detentions should be employed. The novelty of extradition cases in the
Philippines cannot result in any suspension or disregard of basic liberties whether here or
in the United States. The mantle of constitutional protections should cover persons
covered by extradition requests.

I vote to dismiss the petition.

(Government of the United States of America v. Purganan, G.R. No. 148571,
[September 24, 2002], 438 PHIL 417-530)
|||

EN BANC
[G.R. No. 148571. December 17, 2002.]
GOVERNMENT OF THE UNITED STATES OF AMERICA,
represented by the Philippines Department of Justice, petitioners, vs.
HON. GUILLERMO G. PURG ANAN, Presiding Judge, Regional
Trial Court of Manila, Branch 42, and MARK JIMENEZ a.k.a.
MARIO BATACAN CRESPO, respondents.

RESOLUTION

Before the Court are private respondent's Motion for Reconsideration dated 10 October
2002, petitioner's Comment thereon dated 05 November 2002, private respondent's
Motion for Leave of Court to File and to Admit Additional Arguments in Support of
Motion for Reconsideration dated November 6, 2002, and Reply (to petitioner's
Comment) dated November 26, 2002.
First, private respondent insists that the Extradition Court acted properly in granting bail
to him. We have already exhaustively discussed this issue in our Decision and in the
Concurring Opinion of Mr. Justice Antonio T. Carpio. Thus, we will not belabor our
ruling on this point. Suffice it to say that petitioner's repeated invocation of the
Extradition Court's grant of bail has not convinced us that he deserves bail under the
exception laid down in our Decision, namely, "(1) that, once granted bail, the applicant
will not be a flight risk or a danger to the community; and (2) that there exists special,
humanitarian and compelling circumstances including, as matter of reciprocity, those
cited by the highest court in the requesting state when it grants provisional liberty in
extradition cases therein."
There has been no clear and convincing showing as to the absence of flight risk and the
non-endangerment of the community, or as to the existence of special, humanitarian and
compelling circumstances justifying grant of bail.
Second, private respondent claims that our Decision did not make an express finding of
grave abuse of discretion on the part of the lower court. This is incorrect. On page 24 of
our Decision, we plainly stated: "Hence, after having already determined therefrom that a
prima facie finding did exist, respondent judge gravely abused his discretion when he set
the matter for hearing upon motion of Jimenez." Such grave abuse continued to
characterize the subsequent actions of Judge Purganan in illegally granting bail to private
respondent. Again, we will not repeat here why respondent does not deserve temporary

liberty. This point has been already exhaustively taken up in our Decision and in the
Opinions individually written by the members of the Court.
Further, contrary to Jimenez's claims, the Extradition Court did not negate the flight risk
posed by him. It did not make a finding on flight risk as it considered the issue irrelevant,
having already determined bail to be a matter of right. Without making any finding on
flight risk, it found the capacity to flee subservient to "the benefits that respondent may
be able to deliver to his constituents" despite the absence from the records of evidence
showing the existence of such benefits.
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
of this Court. He even reiterated some of those factual submissions in his Motion for
Reconsideration. He is therefore deemed estopped to claim that this Court cannot, on
certiorari, address factual issues and review and reverse the factual findings of the
Extradition Court.
Third, private respondent's arguments (1) that the Extradition Court exercised due
discretion in its grant of bail and (2) that our "ruling that bail is not a matter of right in
extradition cases is contrary to prevailing law and jurisprudence" are neither novel nor
deserving of further rebuttal. Again, they have been extensively taken up in Decision as
well as in Concurring, Separate and Dissenting Opinions.
Fourth, private respondent argues that allegedly our Decision violates his due process
rights. Again, we have discussed this matter in our Decision saying that, in its simplest
concept, due process is merely the opportunity to be heard which opportunity need not
always be a prior one. In point of fact, private respondent has been given more than
enough opportunity to be heard in this Court as well as in the Extradition Court. Even his
Motion for Reconsideration has been given all the chances to persuade by way of
allowing "additional arguments" in his Motion dated November 6, 2002 and Reply. These
latter pleadings are normally not allowed, but precisely because this Court wanted to give
him more than enough opportunity to be heard and to argue, we have bent backwards and
admitted these additional pleadings.
Finally, private respondent contends that as a member of Congress, he is immune from
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 his
constituents would be disenfranchised. He perorates that a member of Congress may be
suspended or removed from office only by two thirds vote of the House of
Representatives.
TaEIAS

Citing People v. Jalosjos, our Decision (pp. 38-40) has already debunked the
disenfranchisement argument. Furthermore, our Decision does not in any manner suspend

or remove him from office. Neither his arrest or detention arising from the extradition
proceeding will constitute his suspension or removal from office. That is clear enough.
While equal protection and reasonable classifications are not directly in issue in this case,
we nevertheless stress, paraphrasing Jalosjos, that respondent's election to the position of
congressman, with the concomitant duty to discharge legislative functions, does not
constitute a substantial differentiation which warrants placing him in a classification or
category apart from all other persons confined and deprived of their liberty pending
resolution of their extradition cases. We reiterate that lawful arrest and temporary
confinement of a potential extraditee are germane to the purposes of the law and apply to
all those belonging to the same class.
As we have stated, the procedure adopted by the Extradition Court of first notifying and
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 for
extradition does in fact go into hiding or not is beside the point. In the final analysis, the
method adopted by the lower court was completely at loggerheads with the purpose,
object and rationale of the law, and overlooked the evils to be remedied.
As already suggested in our Decision (p. 32), private respondent can avoid arrest and
detention 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
has repeatedly 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
the US. Why then has he not done so?
Otherwise stated, Respondent Jimenez has the actual power to lift his arrest and detention
arising from his extradition by simply and voluntarily going to and filing bail in the USA.
AT BOTTOM, private respondent's Motion for Reconsideration presents no new or
substantial arguments which have not been presented in his prior pleadings and which
have not been taken up in our Decision. His present allegations and asseverations are
mere rehashes 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 or modification of our earlier rulings.
WHEREFORE, the Motion for Reconsideration is hereby DENIED with finality.
SO ORDERED.
Davide, Jr., C .J ., Mendoza, Panganiban, Carpio, Austria-Martinez, Corona, CarpioMorales, Callejo, Sr., and Azcuna, JJ ., concur.

Bellosillo and Puno JJ ., the latter joined by Quisumbing, J ., reiterate their Separate
Opinions.
Vitug and Ynares-Santiago, JJ ., both joined by Sandoval-Gutierrez, J ., filed their
Dissenting Opinions.

Separate Opinions
VITUG, J :
p

I vote to grant the motion for reconsideration and maintain my dissent.

Extradition is an exceptional
measure running against the
tradition of asylum
International Extradition is a process under which a sovereign state surrenders to another
sovereign state a person accused in a case or a fugitive offender in the latter state. 1 The
practice has its origins as early as the ancient Egyptian, Chinese, Chal dean and AssyroBabylonian civilizations. 2 The surrender of a person who has been granted the privilege
of presence or refuge in the requested state is deemed to be an exceptional measure
running against the tradition of asylum and hospitality of the requesting state, and it has
given rise to the speculation that the term "extradition" evolved from what used to be
then known as "extra-tradition." 3 The widely accepted explanation for the term still
appears to be the Latin original extradere on pacts and treaties. The first recorded
extradition treaty in the world dates circa 1280 BC, where Rameses II, Pharaoh of Egypt,
and King Hattusili III of the Hittites signed a peace treaty expressly providing for the
return of persons sought by each sovereign taking refuge in the territory of the other.
Since then, however, only the practice of Greece and Rome on extradition arrangements
evidently found their way into European texts of international law. 4 The participants of
the process remained the same over 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 political crimes. This shift can be explained partly
to the emergence of humanitarian international law whic h has given impetus to a new
legal status of one of the participants, i.e., the individual, thus placing some limitations on
the power of the respective sovereigns that did not historically exist. 5

Extradition, nevertheless, does

not find basis in Customary
International Law
International customary law is, as its name suggests, created by custom. It is one of the
two (the other being treaties) primary law-creating processes of international law. Its
evolution, according to Schwarzenberger, 6 can be traced to the early development of a
global society when international law consisted primarily of express agreements, which
the parties freely accepted as legally binding between or among themselves. Little was
taken for granted, and everything that was considered if only remotely relevant had been
incorporated into the text of these treaties. Some of the rules were found to be so
convenient and generally acceptable that their inclusion in the succeeding agreements
gradually became non-essential. Time hardened them into international customary law.
International customary law has two constitutive elements: (1) a general practice of
sovereign states and (2) the acceptance by the states of this general practice as law. 7 In
the Lotus (1927) and Asylum (1950) cases, the World Court ruled that to prove the
existence of a rule in international customary law, it is necessary to establish not only
that States act a certain 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, adopts the view
represented by Puffendorf who argues that the duty to extradite is only an imperfect
obligation which requires an explicit agreement in order to become fully binding under
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 and genocide,
in which extradition is seen as being a definite legal duty. As D.W. Grieg so bluntly 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 extradite can 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 obligation to extradite.
Once, of course, an extradition treaty is concluded, respect for and compliance with the
treaty obligation is, under the international principle of pacta sunt servanda, expected
from the states that enter into the agreement.
Neither can extradition be
considered a generally accepted
principle of international law
Article 38 (1) (c) of the Statute of the International Court of Justice refers to the "general
principles of law" recognized by civilized nations as being a source of law which comes
after customary law, international conventions and treaties, all of which are based on the
consent of nations. 12 Article 38 (1) (c) is identified as being a "secondary source" of
international law and, therefore, not ranked at par with treaties and customary

international law. 13 The phrase is innately vague; and its exact meaning still eludes any
general consensus. The widely preferred opinion, however, appears to be that of
Oppenheim which views "general principles of law" as being inclusive of principles of
private or municipal law when these are applicable to international relations. 14 Where, in
certain cases, there is no applicable treaty nor a generality of state practice giving rise to
customary law, the international court is expected to rely upon certain legal notions of
justice and equity in order to deduce a new rule for application to a novel situation. 15
This reliance or "borrowing" by the international tribunal from general principles of
municipal jurisprudence is explained in many ways by the fact that municipal or private
law has a higher level of development compared to international law. Brownlie submits
that the term "generally-accepted principles of international law" could also refer to rules
of customary law, to general principles of law, or to logical propositions resulting from
judicial reasoning on the basis of existing international law and municipal law analogies.
16

In order to qualify as a product of the subsidiary law-creating process, a principle of law

must fulfill three requirements: (1) it must be a general principle of law as distinct from a
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
rules on prescription, estoppel, res judicata, 18 consent and pacta sunt servanda. It can
also include generally accepted principles enshrined under the Universal Declaration of
Human Rights, such as the basic human right to life and liberty without distinction as to
race, color, 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 by states 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 and deemed part of the law of the land under Section 11, Article II, of the
1987 Philippine Constitution. 20
Clarifying the term "generally-accepted principles of international law" during the
deliberations of the 1987 Constitutional Commission, Commissioner Adolfo S. Azcuna
points out that "(w)hen we talk of generally-accepted principles of international law as
part of the law of 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 the phrase
"as part of the law of the land" in the incorporation clause refers to the levels of legal
rules below the Constitution such as legislative acts and judicial decisions. Thus, he
contends, 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
in parity with the Constitution. 22

A treaty being the primary source

of the obligation to extradite 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-accepted
principles of international law, the present state of international law on the return of
fugitives for trial is hypothesized by Brownlie: "With the exception of alleged crimes
under international law, surrender of an alleged criminal cannot be demanded of right in
the absence of treaty." 23 The result has been a failure of consistency in extradition
practice among states. Indeed, the reality is that there is to date no uniform standard
applicable to all states. D.W. Gregg 24 attributes this lack of "universal" and cohesive
standards in the extradition process to the adoption of a variety of procedures which can
be as diverse as the contracting states would want them to be. In formulating their
extradition treaties, contracting states insert particular provisions and stipulations to
address specific particularities in their relationships. Thus, extradition under American
law is different from that under English law; to illustrate, the English Extradition Act of
1870 requires that the offense, for which a fugitive is to be extradited, be also considered
a crime under English law. No such requirement, upon the other hand, exists under the
US Extradition Act, which limits "extraditable crimes" to those enumerated under the
treaty, regardless of whether the same are considered crimes under its laws. While both
England and the United States are amenable to extraditing their own nationals, France
and Belgium absolutely refuse to do so. This refusal to surrender one's own nationals is
likewise adopted by most states in Continental Europe which, under their own municipal
laws, are obliged to unconditionally reject any request for the surrender of their own
nationals, preferring to try them under their own laws even though the offense is
committed abroad. While Common Law countries require a prima facie showing of guilt
before they surrender a fugitive, almost all other legal systems require only that the
offense be committed in the jurisdiction of the demanding state. 25 In the United States,
extradition is demanded with an opportunity for a judicial hearing, while in other
countries, extradition is exclusively an administrative function. 26 It may also happen that
a single state may have as many extradition processes as the number of extradition
treaties it has with other countries. Thus, while the general extradition process with
England is governed by the Extradition Act of 1870, any extradition it may undertake
with member states of the British Commonwealth is governed by the Fugitive Act of
1967. 27 Fenwick, another recognized authority in international law, concludes "Since
extradition is effected as the result of the provisions of treaties entered into by the nations
two by two, it is impossible to formulate any general rule of law upon the subject." 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 Vienna
Convention, a state cannot plead provisions of its own laws or deficiencies in that law in
an answer 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 are merely expressions of the will and constitute the activities of the
states within its boundaries 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 responses when treaty law clashes with ordinary municipal law.

In the United Kingdom, despite pronouncements that the law of nations is "adopted in its
full extent by common law and is held to be part of the law of the land," cases decided
since 1876 point to the displacement of the doctrine of incorporation by that of
transformation, viz.: customary law is part of the law of England only insofar as the rules
have been clearly adopted and made part of England by legislation, judicial decision, or
established usage. 31 In the United States there has not been much hesitation in
recognizing the priority of legislative enactment when passed not only in contravention of
established custom but even of the provisions of a specific treaty. 32 Meeting objection to
the validity of a tax on immigrants as a violation of the "numerous treaties of the US
government 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 of
Congress whenever its provisions prescribe a rule by which the rights of the private
citizen or subject may be determined, and when such rights are of a nature to be enforced
in a court of justice, courts resort to treaties for a rule of decision of the case as it would
to a statute. Nevertheless, added the Court, "so far as a treaty made by the US with any
foreign nation can become subject of judicial cognizance in the courts of this country, it
is subject to such acts as Congress may pass for its enforcement, modification or repeal."
In France, a treaty has supremacy over an inconsistent prior statute as long as the other
state party to the agreement accords a similar superiority in its domestic forum. French
precedent also exists for treaty supremacy over a subsequent inconsistent statute. 33 The
European Court once ruled that the European Economic Community Treaty has
precedence over national law, even if the national law were later in time. 34
This ambivalent attitude towards the relationship between international and municipal
law exemplifies the still on-going debate between two schools of thought "monism"
and "dualism". Monists believe that international law and domestic law are part of a
single legal order; international law is automatically incorporated into each nation's legal
system and that international law is supreme over domestic law. 35 Monism requires that
domestic courts "give effect to international law, notwithstanding inconsistent domestic
law, even constitutional law of a constitutional character." 36 Dualists, however, contend
that international law and domestic law are distinct, each nation ascertaining for itself and
to what extent international law is incorporated into its legal system, and that the status of

international law in the domestic system is determined by domestic law. 37 Under this
view, "when municipal law provides that international law applies in whole or in part
within our jurisdiction, it is but an exercise of the authority of municipal law, an adoption
or transformation of the rules of international law. 38
In the Philippines, while specific rules on how to resolve conflicts between a treaty law
and an act of Congress, whether made prior or subsequent to its execution, have yet to be
succinctly defined, the established pattern, however, would show a leaning towards the
dualist model. The Constitution exemplified by its incorporation clause (Article II,
Section 2), as well as statutes such as those found in some provisions of the Civil Code
and of the Revised Penal Code, 39 would exhibit a remarkable textual commitment
towards "internalizing" international law. The Supreme Court itself has recognized that
"the principle of international law" are deemed part of the law of the land as a condition
and as a consequence of our admission in the society of nations. 40
The principle being that treaties create rights and duties only for those who are parties
thereto pacta tertiis nec nocre nec prodesse possunt it is considered necessary to
transform a treaty into a national law in order to make it binding upon affected state
organs, like the courts, and private individuals who could, otherwise, be seen as nonparties. 41 The US-RP Extradition Treaty in particular, undoubtedly affects not only state
organs but also private individuals as well. It is said that, in treaties of this nature, it
should behoove the state to undertake or adopt the necessary steps to make the treaty
binding upon said subjects either by incorporation or transformation. 42 Article 2, Section
2, of the 1987 Philippine Constitution provides for an adherence to general principles of
international law as part of the law of the land. One of these principles is the basic rule of
pacta sunt servanda or the performance in good faith of a state's treaty obligations.
Pacta sunt servanda is the foundation 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 well be inconsequential. Existing legislation contrary to
the provisions of the treaty becomes invalid, but legislation is necessary to put the treaty
into effect. 43 The constitutional requirement that the treaty be concurred in by no less
than two-thirds of all members of the Senate (Article 21, Article VII) is, for legal intent
and purposes, an equivalent to the required transformation of treaty l aw 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 municipal
statute, a later enactment being controlling, 2) but that an inconsistent municipal statute
subsequently passed cannot modify treaty law, without the concurrence of the other state
party thereto, following the generally accepted principle of pacta sunt servanda . As so
observed by Fenwick: "Legislation passed, or administrative action taken subsequent to
the adoption of the treaty and in violation of its provisions is invalid, but this should be
declared so by the appropriate agency of national government. In like manner, in doubtful

cases where 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, the Constitution must
prevail
When a controversy calls for a determination of the validity of a treaty in the light of the
Constitution, there is no question but that the Constitution is given primary
consideration. 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
case of Serbian Loans 45 where it held that the construction given by the Highest Court of
France on French law should be followed. When a state, through its government,
concludes a treaty with another state, the government of the latter has no reason and is
not entitled to question the constitutionality of the act of the former. 46 But this rule does
not prevent the government of a state, after having concluded a treaty with another state,
from declaring 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 this general
rule is qualified by the stipulation that a treaty must not be violative of the Constitution.
48 The United States government, in carrying out its treaty obligations, must conform its
conduct to the requirements of the Constitution which override the provisions of a treaty
that may be contrary to any specific constitutional right. 49 In Reyes vs. Bagatsing 50 this
Court has had the occasion to resolve the see-sawing interests of preserving fundamental
freedoms such as free speech and assembly, as espoused by the members of the AntiBases Coalition seeking permit to hold a rally in front of the American Embassy and the
corresponding international obligation of the state to protect the integrity and safety of
diplomatic mission and premises under the Vienna Convention. While holding that the
prohibition against holding rallies within a 500 meter radius from any foreign mission is
valid, the ponencia sees a possible scenario that in case a treaty or a general principle
of international law is found to be in irreconcilable conflict with Constitutional mandates,
the Court would uphold the latter every time, even to the possible detriment of its
obligations under international law. This preeminence of the Constitution over any treaty
is not hard to explain. The Constitution is the act of the people from whom sovereignty
emanates. It reflects the popular will. A treaty, on the other end, is merely negotiated by
the treaty-making authority. Surely a few good men, themselves mere delegates of the
sovereign people, cannot be permitted to thwart the intent of the Constitution. An agent
could never go beyond the mandate of the agency under whose authority he acts.

The 1987 Philippine Constitution

has its own standards for the
grant of bail
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 "special
circumstances standard" in determining whether bail should be granted or not, following
what could be considered to be mere pro hac vice pronouncements of some foreign
courts, might not be apropos. Indeed, setting up the so-called "special circumstances
standard" would be to ignore our own constitutional mandate on bail.
Section 13, Article III, of the 1987 Constitution clearly sets the parameters for the judicial
exercise of the grant of bail
"All persons, except those charged with offenses punishable by reclusion
perpetua, when evidence of guilt is strong, shall, before conviction, be bailable
by sufficient sureties, or be released on recognizance as may be provided by
law. The right to bail shall not be impaired even when the privilege of the writ
of habeas corpus is suspended. Excessive bail shall not be required."

Starting with the declaration that the right to bail is available to all persons, the
Constitution proceeds to define its exceptions and qualifications 1) when a
criminal offense is a capital one and the evidence of guilt is strong, and 2) when
granted the bail shall not be excessive. The circumstance of "high risk of flight" upon
which the main decision anchors its refusal to grant bail is conspicuously absent from
the recital. The Eighth Amendment of the US Federal Constitution,unlike the
Philippine 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 our dilemma.
T aCEHA

Extradition proceedings are

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

against the potential extraditee. 51 Stated otherwise, both proceedings are an inquiry into
whether a person should stand trial. 52 The right to a preliminary investigation is a
component part of due process in the criminal justice system. The initial findings of the
investigating fiscal, which may result in a dismissal of the case, could spare the
respondent from hasty malicious prosecution, as well as the resultant prolonged anxiety,
aggravation and humiliation, that a protracted trial brings. In the same vein, the
extradition process can result in an extended restraint of liberty following arrest that can
even be more severe than the accompanying detention within a single state. 53 Extradition
involves, at minimum, administrative processings in both the asylum state and the
demanding state and a forced transportation in between. 54 Thus, the rules governing the
extradition process should not be viewed as existing in a vacuum, totally divergent and
isolated from the entire criminal process of which it, in fact, forms part. Indubitably, bail
is available in this country even in the preliminary investigation stage. The eligibility for
bail exists once the person is placed under legal custody regardless of whether a
complaint or information has been filed or yet to 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, nor is it a generally accepted principle of
international law, the commitment to extradite being dependent, by
and large, on an extradition treaty between two sovereign states.
b) There is an absence of a "universal" or "uniform" extradition practice
applicable to all states. This lack of a "standard" extradition
procedure should mean that the Philippines is not obligated to
follow extradition practices from other jurisdictions, particularly
when its own Constitution itself has provided for such standards.
c) A treaty, entered into by the delegated authority although occupying an
elevated status in the hierarchy of laws predicated on the principle
of pacta servanda, cannot override the Constitution, the latter
being the ultimate expression of the will of the People from whom
all sovereignty emanates. In case conflict, the of Constitution must
prevail.
WHEREFORE, I vote to grant the motion for reconsideration.
YNARES-SANTIAG O, J ., dissenting:
I maintain my stand regarding the issues raised in the main decision of this case, as laid
out in my original dissent. However, the ponente raised several points which compel
further comment and discussion on my part.

If the majority's overriding concern is upholding "the government's interest in fulfilling

its Extradition Treaty obligations and in cooperating with the world community in the
suppression of crime," 1 then I submit that this policy is adequately served by the denial
to a potential extraditee of any notice or hearing during the evaluation stage of the
extradition process. 2 This procedure is peculiar to the extradition process and must be
implemented with goals of extradition in mind. However, once the extradition petition is
filed with the extradition court, the threat of deprivation of liberty becomes imminent,
and it is submitted that the Constitutional rights of the accused including the right to
bail begin to attach similarly to the extraditee.
SCD aHc

The draft resolution has reasserted its position that admission to bail in extradition cases
is reserved to certain exceptions; it is not the general rule. 3 It has effectively reiterated its
formalistic stand that the constitutional provision on bail will not apply to a case of
extradition, where the presumption of innocence is not at issue. 4 It is interesting to note
that, in making such a stand, the ponente cited former Chief Justice Enrique Fernando.
The eminent jurist spoke thus:
[The right to bail] flows from the presumption of innocence in favor of every
accused who should not be subjected to the loss of freedom as thereafter he
would be entitled to acquittal, unless his guilt be proved beyond reasonable
doubt. 5 (emphasis supplied)

True, the determination of guilt or innocence is not in issue in extradition proceedings.

However, the loss of precious freedom of the accused most certainly is. Mr. Justice
Vitug, in his separate opinion, made the following apt observations:
The draft ponencia would assume that the Constitution confines the grant of
provisional liberty to criminal cases, and that it has no application to extradition
proceedings. This assumption would have reason for being if it was solely in
criminal cases that a person could face an imminent threat of deprivation of his
right to life or liberty, for indeed, it is this threat, rather than case nomenclature,
that must be the focus and it would be superficial to think otherwise. While
defying a neat definition, extradition has all the earmarks of a criminal process
an extraditee would suffer deprivations, be denied his freedom and restricted
in his movements, not much unlike a criminal indictee. Extradition proceedings
involve an extended restraint of liberty following arrest, peculiar to an accused
in a criminal case, which can even be more severe than an accompanying
detention in a single state, for at a minimum, it can mean protracted proceedings
in both the asylum state and the demanding state and a forced transportation in
between. In Herras Teehankee vs. Rovira, the Court observed that bail is
constitutionally available to all persons, even those against whom no formal
charges are filed. 6

It should be borne in mind that the private respondent has most definitely been indicted, 7
and the threat to the loss of his freedom is very real. If the purpose of bail is to relieve an

accused from the rigors of imprisonment until his conviction and yet secure his
appearance at trial, 8 then by analogy, an extraditee, who may or may not yet have been
charged, and who is threatened with temporary imprisonment in both the requested and
requesting states, should also benefit from the right to bail. Due to the striking similarity
in their circumstances, there is therefore no sufficient basis for distinguishing between an
accused person and a potential extraditee in terms of their entitlement to bail. This
occasion calls for the adherence to the well-entrenched principle ubi lex non distinguit
nec nos distinguere debemos. 9 The Constitutional grant of bail should, as a matter of
right, be made available to the accused and the extraditee alike.
The main decision seems to have brushed away the facts entirely, content in making
distinctions where they are not warranted. The majority sought to draw a distinction by
characterizing its stand as one that is consistent with and in implementation of the
Philippines' obligations under the RP-U.S. Extradition treaty. It further reads thus:
In the absence of any provision in the Constitution, the law or the treaty
expressly guaranteeing the right to bail in extradition proceedings, 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 their
prosecutors. 10 (emphasis supplied)

In answer to this sweeping policy statement, I submit that it is our Constitution itself that
governs the right to bail in extradition eases. As the majority has conceded, the RP-U.S.
Extradition Treaty and P.D. 1069 are silent with regard to the question of bail. In case of
omissions such as these, Article 31, paragraph 3 of the Vienna Convention on the Law of
Treaties authorizes reference to secondary sources as aids to interpretation. One of these
devices is subsequent practice of a state party in interpreting said treaty, 11 and the U.S.
has resorted to this device on several occasions. 12 The grant of bail by the U.S. District
Court of Las Vegas, Nevada to Mr. Charlie "Atong" Ang, a fugitive whose extradition
from the United States is sought by the Philippine government, 13 can therefore aid in the
interpretation of the RP-U.S. Extradition Treaty, being an example of subsequent state
practice. In our jurisdiction, no case has been decided which fills this gap in the RP-U.S.
Extradition Treaty. This area should then be considered outside the coverage of the treaty
and, therefore, covered by municipal law. In our jurisdiction, the supreme law governing
the question of bail is the Constitution, and its hallowed provisions dictate the general
rule that bail is granted as a matter of right, with its denial reserved to very few and very
specific instances. Being the subject of an extradition request is not one of these
exceptions.
C acHES

The draft resolution cites once more my ponencia in People v. Jalosjos 14 as the basis for
countering private respondent's concern that the constituents of his district will be
effectively disenfranchised by his forced absence from office. I must once again reiterate

that said case is not on all fours with the case before us. Simply put, a convicted rapist
awaiting final judgment and a man accused of several non-capital crimes, whose
extradition is sought by the state that has made the accusations, involve two very
different sets of circumstances, meriting different treatments. Furthermore, the question
of disenfranchisement should be considered in light of the U.S. Federal Rules of Criminal
Procedure, which grant a judicial officer wide latitude in imposing conditions for the
grant of bail, including limitations on the right to travel. 15 A member of the House of
Representatives of the Republic of the Philippines who is indicted in the U.S. and
admitted to bail therein may not be returning to his district and his constituents any time
soon.
It is unfortunate that the draft resolution proposes to summarily deny petitioner's Motion
for Reconsideration. This case could have provided this Court with the opportunity to
pass upon a novel issue and, in the process, uphold the supremacy of Constitutional
rights. Instead, the right to bail has been reduced to a hollow promise and has lost its
efficacy as a fundamental right of the individual.
I vote to GRANT the motion for reconsideration.
(Government of the United States of America v. Purganan, G.R. No. 148571, [December
17, 2002])
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