G.R. No.
L-17169 November 30, 1963 but this official seeing perhaps that the importation did not carry any release
ISIDRO C. ANG-ANGCO, petitioner,
vs.
HON. NATALIO P. CASTILLO, ET AL., respondents.
Juan T. David for petitioner.
Office of the Solicitor General for respondents.
BAUTISTA ANGELO, J.:
On October 8, 1956, the Pepsi-Cola Far East Trade Development Co., Inc.
wrote a letter to the Secretary of Commerce and Industry requesting for
special permit to withdraw certain commodities from the customs house
which were imported without any dollar allocation or remittance of foreign
exchange. Said commodities consisted of 1,188 units of pepsi-cola
concentrates which were not covered by any Central Bank release certificate.
On the same date, the company addressed an identical request to the
Secretary of Finance who was also the Chairman of the Monetary Board of
the Central Bank. Senator Pedro Sabido, in behalf of the company, likewise
wrote said official urging that authority be given to withdraw the
abovementioned concentrates. Not content with this step, he also wrote to
Dr. Andres Castillo, Acting Governor of the Central Bank, urging, the same
matter. Then Secretary Hernandez wrote another letter to Dr. Castillo stating,
"Senator Sabido is taking this to you personally. Unless we have legal
objection, I would like to authorize the withdrawal of the concentrates upon
payment of all charges in pesos. Please expedite action."
Almost at the same time, the Import-Export Committee of the Central Bank,
thru Mr. Gregorio Licaros, submitted to the Monetary Board a memorandum
on the joint petition of the company and Sabido Law Office for authority to
withdraw the concentrates from the customs house stating therein that it
sees no objection to the proposal. The Monetary Board, however, failed to
take up the matter in its meeting of October 12, 1956 for the reason that the
transaction did not involve any dollar allocation or foreign exchange, and of
this decision Mr. Licaros was informed.
Having failed to secure the necessary authority from the Central Bank, on
October 13, 1956, the counsel of the Pepsi-Cola Far East Trade
Development Co., Inc., approached Collector of Customs Isidro Ang-Angco
in an attempt to secure from him the immediate release of the concentrates,
1
certificate from the Central Bank advised the counsel to try to secure the
necessary release certificate from the No-Dollar Import Office that had
jurisdiction over the case. In the morning of the same day, Mr. Aquiles J.
Lopez, of said Office, wrote a letter addressed to the Collector of Customs
stating, among other things, that his office had no objection to the release of
the 1,188 units of concentrates but that it could not take action on the request
as "the same is not within the jurisdiction of the No-Dollar Import Office within
the contemplation of R.A. No. 1410." The counsel already referred to above
showed the letter to Collector of Customs Ang-Angco who upon perusing it
still hesitated to grant the release. Instead he suggested that the letter be
amended in order to remove the ambiguity appearing therein, but Mr. Lopez
refused to amend the letter stating that the same was neither a permit nor a
release. Secretary of Finance Hernandez having been contacted by
telephone, Collector of Customs Ang-Angco read to him the letter after which
the Secretary verbally expressed his approval of the release on the basis of
said certificate. Collector Ang-Angco, while still in doubt as to the propriety of
the action suggested, finally authorized the release of the concentrates upon
payment of the corresponding duties, customs charges, fees and taxes.
When Commissioner of Customs Manuel P. Manahan learned of the release
of the concentrates in question he immediately ordered their seizure but only
a negligible portion thereof remained in the warehouse. Whereupon, he filed
an administrative complaint against Collector of Customs Ang-Angco
charging him with having committed a grave neglect of duty and observed a
conduct prejudicial to the best interest of the customs service. On the
strength of this complaint President Ramon Magsaysay constituted an
investigating committee to investigate Ang-Angco composed of former
Solicitor General Ambrosio Padilla, as Chairman, and Atty. Arturo A. Alafriz
and Lt. Col. Angel A. Salcedo, as members. Together with Collector Ang-
Angco, Mr. Aquiles J. Lopez, was also investigated by the same Committee,
who was also charged in a separate complaint with serious misconduct in
office or conduct prejudicial to the best interest of the State. As a result,
Collector Ang-Angco was suspended from office in the latter part of
December, 1956.
After the investigation, the committee submitted to President Magsaysay its
report recommending that a suspension of 15 days, without pay, be imposed
upon Ang-Angco chargeable against the period of his suspension. On April 1,
1957, Collector Ang-Angco was reinstated to his office by Secretary
Hernandez, but the decision on the administrative case against him remained
pending until the death of President Magsaysay. After around three years
from the termination of the investigation during which period Ang-Angco had
been discharging the duties of his office, Executive Secretary Natalio P.
Castillo, by authority of the President, rendered a decision on the case on
February 12, 1960 finding Ang-Angco "guilty of conduct prejudicial to the best
interest of the service", and considering him resigned effective from the date
of notice, with prejudice to reinstatement in the Bureau of Customs.
Upon learning said decision from the newspapers, Collector Ang-Angco
wrote a letter to President Carlos P. Garcia calling attention to the fact that
the action taken by Secretary Castillo in removing him from office had the
effect of depriving him of his statutory right to have his case originally
decided by the Commissioner of Civil Service, as well as of his right of
appeal to the Civil Service Board of Appeals, whose decision under Republic
Act No. 2260 is final, besides the fact that such decision is in violation of the
guaranty vouchsafed by the Constitution to officers or employees in the civil
service against removal or suspension except for cause in the manner
provided by law.
In a letter dated February 16, 1960, Secretary Castillo, also by authority of
the President, denied the request for reconsideration. Not satisfied with this
resolution, Collector Ang-Angco sent a memorandum to President Garcia
reiterating once more the same grounds on which he predicated his request
for reconsideration. Again Secretary Castillo, also by authority of the
President, in letter dated July 1, 1960, denied the appeal. In this instance,
Secretary Castillo asserted that the President virtue of his power of control
over all executive departments, bureaus and offices, can take direct action
and dispose of the administrative case in question inasmuch as the
provisions of law that would seem to vest final authority in subordinate
officers of the executive branch of the government over administrative
matters falling under their jurisdiction cannot divest the President of his
power of control nor diminish the same.
Hence, after exhausting all the administrative remedies available to him to
secure his reinstatement to the office from which he was removed without
any valid cause or in violation of his right to due process of law, Collector
Ang-Angco filed before this Court the present petition for certiorari,
prohibition and mandamus with a petition for the issuance of a preliminary
mandatory injunction. The Court gave due course to the petition, but denied
the request for injunction.
2
The main theme of petitioner is that respondent Executive Secretary Natalio
P. Castillo in acting on his case by authority of the President in the sense of
considering him as resigned from notice thereof, violated the guaranty
vouchsafed by the Constitution to officers and employees in the classified
service in that he acted in violation of Section 16 (i) of the Civil Service Act of
1959 which vests in the Commissioner of Civil Service the original and
exclusive jurisdiction to decide administrative cases against officers and
employees in the classified service, deprived him of his right of appeal under
Section 18 (b) of the same Act to the Civil Service Board of Appeals whose
decision on the matter is final, and removed him from the service without due
process in violation of Section 32 of the same Act which expressly provides
that the removal or suspension of any officer or employee from the civil
service shall be accomplished only after due process, and of Section 4,
Article XII of our Constitution which provides that "No officer or employee in
the civil service shall be removed except for cause as provided for by law."
Since petitioner is an officer who belongs to the classified civil service and is
not a presidential appointee, but one appointed by the Secretary of Finance
under the Revised Administrative Code, he cannot be removed from the
service by the President in utter disregard of the provisions of the Civil
Service Act of 1959.
Respondents, on their part, do not agree with this theory entertained by
petitioner. They admit that if the theory is to be considered in the light of the
provisions of the Civil Service Act of 1959, the same may be correct, for
indeed the Civil Service Law as it now stands provides that all officers and
employees who belong to the classified service come under the exclusive
jurisdiction of the Commissioner of Civil Service and as such all
administrative cases against them shall be indorsed to said official whose
decision may be appealed to the Civil Service Board of Appeals from whose
decision no further appeal can be taken. They also admit that petitioner
belongs to the classified civil service. But it is their theory that the pertinent
provisions of the Civil Service Law applicable to employees in the classified
service do not apply to the particular case of petitioner since to hold
otherwise would be to deprive the President of his power of control over the
officers and employees of the executive branch of the government. In other
words, respondents contend that, whether the officers or employees
concerned are presidential appointees or belong to the classified service, if
they are all officers and employees in the executive department, they all
come under the control of the President and, therefore, his power of removal
may be exercised over them directly without distinction. Indeed, respondents
contend that, if, as held in the case of Negado v. Castro, 55 O.G., 10534, the
President may modify or set aside a decision of the Civil Service Board of
Appeals at the instance of the office concerned, or the respondent employee,
or may even do so motu propio, there would be in the final analysis no logical
difference between removing petitioner by direct action of the President and
separating him from the service by ultimate action by the President should an
appeal be taken from the decision of the Civil Service Board of Appeals to
him, or if in his discretion he may motu proprio consider it necessary to
review the Board's decision. It is contended that this ruling still holds true in
spite of the new provision wrought into the law by Republic Act 2260 which
eliminated the power of review given to the President because the power of
control given by the Constitution to the President over officers and
employees in the executive department can only be limited by the
Constitution and not by Congress, for to permit Congress to do so would be
to diminish the authority conferred on the President by the Constitution which
is tantamount to amending the Constitution itself (Hebron v. Reyes, L- 9124,
July 28, 1958). Indeed this is the argument invoked by respondent Castillo in
taking direct action against petitioner instead of following the procedure
outlined in the Civil Service Act of 1959 as may be seen from the following
portion of his decision.
In connection with the second ground advanced in support of your petition, it
is contended that in deciding the case directly, instead of transmitting it to the
Commissioner of Civil Service for original decision, his Office deprived the
respondent of his right to appeal to the Civil Service Board of Appeals. This
contention overlooks the principle that the President may modify or set aside
a decision of the Civil Service Board of Appeals at the instance of either the
office concerned or the respondent employee, or may even do so motu
proprio (Negado vs. Castro, 55 O.G, No. 51, p. 10534, Dec. 21, 1959). There
would therefore be no difference in effect between direct action by the
President and ultimate action by him should an appeal be taken from the
decision of the Commissioner of Civil Service or the Civil Service Board of
Appeals. The result is that the President's direct action would be the final
decision that would be reached in case an appeal takes its due course.
Thus, we see that the main issue involved herein is whether the President
has the power to take direct action on the case of petitioner even if he
belongs to the classified service in spite of the provisions now in force in the
Civil Service Act of 1959. Petitioner sustains the negative contending that the
contrary view would deprive him of his office without due process of law while
respondents sustain the affirmative invoking the power of control given to the
3
President by the Constitution over all officers and employees, belonging to
the executive department.
To begin with, we may state that under Section 16 (i) of the Civil Service Act
of 1959 it is the Commissioner of Civil Service who has original and exclusive
jurisdiction to decide administrative cases of all officers and employees in the
classified service for in said section the following is provided: "Except as
otherwise provided by law, (the Commissioner shall) have final authority to
pass upon the removal, separation and suspension of all permanent officers
and employees in the competitive or classified service and upon all matters
relating to the employees." The only limitation to this power is that the
decision of the Commissioner may be appealed to the Civil Service Board of
Appeals, in which case said Board shall decide the appeal within a period of
90 days after the same has been submitted for decision, whose decision in
such case shall be final (Section 18, Republic Act 2260). It should be noted
that the law as it now stands does not provide for any appeal to the
President, nor is he given the power to review the decision motu proprio,
unlike the provision of the previous law, Commonwealth Act No. 598, which
was expressly repealed by the Civil Service Act of 1959 (Rep. Act 2260),
which provides that the decision of the Civil Service Board of Appeals may
be reversed or modified motu proprio by the President. It is, therefore, clear
that under the present provision of the Civil Service Act of 1959, the case of
petitioner comes under the exclusive jurisdiction of the Commissioner of Civil
Service, and having been deprived of the procedure laid down therein in
connection with the investigation and disposition of his case, it may be said
that he has been deprived of due process as guaranteed by said law.
It must, however, be noted that the removal, separation and suspension of
the officers and employees of the classified service are subject to the saving
clause "Except as otherwise provided by law" (Section 16 [i], Republic Act
No. 2260). The question then may be asked: Is the President empowered by
any other law to remove officers and employees in the classified civil
service?
The only law that we can recall on the point is Section 64 (b) of the Revised
Administrative Code, the pertinent portion of which we quote:
(b) To remove officials from office conformably to law and to declare vacant
the offices held by such removed officials. For disloyalty to the (United
States) Republic of the Philippines, the (Governor-General) President of the
Philippines may at any time remove a person from any position of trust or
authority under the Government of the (Philippine Islands) Philippines.
The phrase "conformably to law" is significant. It shows that the President
does not have blanket authority move any officer or employee of the
government but his power must still be subject to the law that passed by the
legislative body particularly with regard the procedure, cause and finality of
the removal of persons who may be the subject of disciplinary action. Here,
as above stated we have such law which governs action to be taken against
officers and employees in classified civil service. This law is binding upon
President.
Another provision that may be mentioned is Section (D) of the Revised
Administrative Code, which provides:
Power to appoint and remove. — The Department Head, the
recommendation of the chief of the Bureau or office concerned, shall appoint
all subordinate officers and employees appointment is not expressly vested
by law in the (Governor-General) President of the Philippines, and may
remove or punish them, except as especially provided otherwise, in
accordance the Civil Service Law.
The phrase "in accordance with the Civil Service is also significant. So we
may say that even granting for administrative purposes, the President of the
Philippines is considered as the Department Head of the Civil Service
Commission, his power to remove is still subject to the Civil Service Act of
1959, and we already know with regard to officers and employees who
belong to classified service the finality of the action is given to the
Commissioner of Civil Service or the Civil Board of Appeals.
Let us now take up the power of control given to President by the
Constitution over all officers and employees in the executive department
which is now in by respondents as justification to override the specific visions
of the Civil Service Act. This power of control couched in general terms for it
does not set in specific manner its extent and scope. Yes, this Court in the
case of Hebron v. Reyes, supra, had already occasion to interpret the extent
of such power to mean "the power of an officer to alter or modify or nullify or
set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for that of the latter,"1 to
distinguish it from the power of general supervision over municipal
government, but the decision does not go to the extent of including the power
4
to remove an officer or employee in the executive department. Apparently,
the power merely applies to the exercise of control over the acts of the
subordinate and not over the actor or agent himself of the act. It only means
that the President may set aside the judgment or action taken by a
subordinate in the performance of his duties.
That meaning is also the meaning given to the word "control" as used in
administrative law. Thus, the Department Head pursuant to Section 79(C) is
given direct control of all bureaus and offices under his department by virtue
of which he may "repeal or modify decisions of the chiefs of said bureaus or
offices", and under Section 74 of the same Code, the President's control over
the executive department only refers to matters of general policy. The term
"policy" means a settled or definite course or method adopted and followed
by a government, body, or individual,2 and it cannot be said that the removal
of an inferior officer comes within the meaning of control over a specific
policy of government.
But the strongest argument against the theory of respondents is that it would
entirely nullify and set at naught the beneficient purpose of the whole civil
service system implanted in this jurisdiction, which is to give stability to the
tenure of office of those who belong to the classified service, in derogation of
the provisions of our Constitution which provides that "No officer or employee
in the civil service shall be removed or suspended except for cause as
provided by law" (Section 4, Article XII, Constitution).Here, we have two
provisions of our Constitution which are apparently in conflict, the power of
control by the President embodied in Section 10 (1), Article VII, and the
protection extended to those who are in the civil service of our government
embodied in Section 4, Article XII. It is our duty to reconcile and harmonize
these conflicting provisions in a manner that may give to both full force and
effect and the only logical, practical and rational way is to interpret them in
the manner we do it in this decision. As this Court has aptly said in the case
of Lacson v. Romero:
... To hold that civil service officials hold their office at the will of the
appointing power subject to removal or forced transfer at any time, would
demoralize and undermine and eventually destroy the whole Civil Service
System and structure. The country would then go back to the days of the old
Jacksonian Spoils System under which a victorious Chief Executive, after the
elections could if so minded, sweep out of office, civil service employees
differing in Political color or affiliation from him, and sweep in his Political
followers and adherents, especially those who have given him help, political
or otherwise. (Lacson v. Romero, 84 Phil. 740, 754)

There is some point in the argument that the Power of control of the
President may extend to the Power to investigate, suspend or remove
officers and employees who belong to the executive department if they are
presidential appointees or do not belong to the classified service for such can
be justified under the principle that the power to remove is inherent in the
power to appoint (Lacson V. Romero, supra), but not with regard to those
officers or employees who belong to the classified service for as to them that
inherent power cannot be exercised. This is in line with the provision of our
Constitution which says that "the Congress may by law vest the appointment
of the inferior officers, in the President alone, in the courts, or in heads of
department" (Article VII, Section 10 [3], Constitution). With regard to these
officers whose appointments are vested on heads of departments, Congress
has provided by law for a procedure for their removal precisely in view of this
constitutional authority. One such law is the Civil Service Act of 1959.

We have no doubt that when Congress, by law, vests the appointment of

inferior officers in the heads of departments it may limit and restrict power of
removal as it seem best for the public interest. The constitutional authority in
Congress to thus vest the appointment implies authority to limit, restrict, and
regulate the removal by such laws as Congress may enact in relation to the
officers so appointed. The head of a department has no constitutional
prerogative of appointment to officers independently of legislation of
Congress, and by such legislation he must be governed, not only in making
appointments but in all that is incident thereto. (U.S. v. Perkins, 116 U.S.
483)
G.R. No. L-42428 March 18, 1983
In resume, we may conclude that the action taken by respondent Executive
Secretary, even with the authority of the President, in taking direct action on BERNARDINO MARCELINO, petitioner,
the administrative case of petitioner, without submitting the same to the vs.
Commissioner of Civil Service, is contrary to law and should be set aside. THE HON. FERNANDO CRUZ, JR., as Presiding Judge of Branch XII of
the Court of First Instance of Rizal, PEOPLE OF THE PHILIPPINES, and
WHEREFORE, it is hereby ordered that petitioner be immediately reinstated THE PROVINCIAL WARDEN OF THE PROVINCIAL JAIL OF RIZAL,
to his office as Collector of Customs for the Port of Manila, without prejudice respondents.
of submitting his case to the Commissioner of Civil Service to be dealt with in
accordance with law. No costs.
ESCOLIN, J.:
Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera, Parades, Dizon,
Regala and Makalintal, JJ., concur.

5
A petition for prohibition and writ of habeas corpus to enjoin respondent
Judge Fernando Cruz, Jr. from promulgating his decision in Criminal Case
No. C-5910, entitled People of the Philippines versus Bernardino Marcelino,
and for release from detention of petitioner, the accused in said case, on the
ground of loss of jurisdiction of respondent trial court over the case for failure
to decide the same within the period of ninety [90] days from submission
thereof.
Petitioner was charged with the crime of rape before the Court of First
Instance of Rizal, Branch XII. Trial was conducted and the same was
concluded when the accused rested his case on August 4, 1975. On the
same date, however, the attorneys for both parties moved for time within
which to submit their respective memoranda. The trial court granted the
motion as follows:
Upon joint motion, the parties are given thirty [30] days to submit their
respective memoranda, simultaneously, and thereafter the case shall be
deemed submitted for decision of the Court.
Counsel for petitioner submitted his memorandum in due time, but no
memorandum was filed by the People.
On November 28, 1975, respondent judge filed with the Deputy Clerk of
Court his decision in said case for promulgation. The decision was also dated
November 28, 1975. 1
A certification dated January 26, 1976 was executed by Postmaster Jesse A.
Santos of the Grace Park Post Office 2 to the effect that registered letters
Nos. 011980 and 011981, addressed to Marietta Ferrer of 9-E Mango Road,
Portero, Malabon, Rizal, the complaining witness, and Atty, Angel P.
Purisima of 414 Shurdut Bldg., Intramuros, Manila, counsel for the accused,
respectively, were posted in said office on December 4, 1975. These notices
were received by the respective addressees on December 8 and 9, 1975. 3
Similar notices were sent to the Provincial Fiscal of Pasig and to the
Provincial Warden of Pasig, Rizal, who both received them on December
2,1975, 4
On the date set for promulgation of the decision, counsel for accused moved
for postponement, raising for the first time the alleged loss of jurisdiction of
the trial court for failure to decide the case within 90 days from submission
6
thereof for decision. Acceding to counsel's request that he be given time to
consider the proper remedial measure to take, the respondent judge reset
the promulgation of the decision to January 19, 1976 at 8:30 A. M.
On January 19, 1976, counsel for petitioner moved anew for the resetting of
the promulgation of decision. Granting the motion, respondent judge
rescheduled the promulgation to January 26, 1976.
Meanwhile, on January 12, 1976, counsel for the accused filed before Us the
present petition. On January 16, 1976, this Court issued an Order temporarily
restraining respondent judge from promulgating the decision in Criminal
Case No, C-5910.
Petitioner espouses the thesis that the three-month period prescribed by
Section 11[l] of Article X of the 1973 Constitution, being a constitutional
directive, is mandatory in character and that non-observance thereof results
in the loss of jurisdiction of the court over the unresolved case.
We disagree. Undisputed is the fact that on November 28, 1975, or eighty-
five [851 days from September 4, 1975 the date the case was deemed
submitted for decision, respondent judge filed with the deputy clerk of court
the decision in Criminal Case No. 5910. He had thus veritably rendered his
decision on said case within the three-month period prescribed by the
Constitution.
In Comia v. Nicolas, 5 Ago v. Court of Appeals 6 and Balquidra v. Court of
First Instance 7 this Court ruled that the rendition of the judgment in trial
courts refers to the filing of the signed decision with the clerk of court. There
is no doubt that the constitutional provision cited by petitioner refers to the
rendition of judgment and not to the promulgation thereof. Thus, it is this date
that should be considered in determining whether or not respondent judge
had resolved the case within the allotted period. Indeed, the date of
promulgation of a decision could not serve as the reckoning date because
the same necessarily comes at at a later date, considering that notices have
to be sent to the accused as well as to the other parties involved, an event
which is beyond the control of the judge. As pointed out in People v. Court of
Appeals 8, the promulgation of a judgment in the trial court does not
necessarily coincide with the date of its delivery by the judge of the clerk of
court.
Section 11 [1], Article X of the New Constitution provides in full, to wit:
SEC. 11 [1]. Upon the effectivity of this Constitution, the maximum period
within which a case or matter shall be decided or resolved from the date of its
submission, shall be eighteen months for the Supreme court, and, unless
reduced by the Supreme Court, twelve months for all inferior collegiate
courts, and three months for all other inferior courts.
To date, no authoritative interpretation of the above-quoted provision has
been rendered by this Court. Thus, in approaching this novel question, We
now tread upon what Mr. Cooley characterizes as "very dangerous ground
when they [referring to the courts] venture to apply rules which distinguish
directory and mandatory statutes to the provisions of a constitution." 9
The established rule is that "constitutional provisions are to be construed as
mandatory, unless by express provision or by necessary implication, a
different intention is manifest." 10 "The difference between a mandatory and
a directory provision is often determined on grounds of expediency, the
reason being that less injury results to the general public by disregarding
than by enforcing the letter of the law." 11
In Trapp v. McCormick, 12 a case calling for the interpretation of a statute
containing a limitation of thirty [30] days within which a decree may be
entered without the consent of counsel, it was held that "the statutory
provisions which may be thus departed from with impunity, without affecting
the validity of statutory proceedings, are usually those which relate to the
mode or time of doing that which is essential to effect the aim and purpose of
the Legislature or some incident of the essential act. " Thus, in said case, the
statute under examination was construed merely to be directory.
On this view, authorities are one in saying that:
Statutes requiring the rendition of judgment forthwith or immediately after the
trial or verdict have been held by some courts to be merely directory so that
non-compliance with them does not invalidate the judgment, on the theory
that if the statute had intended such result it would clearly have indicated it."
[American Tupe Founders Co. v. Justice's Court, 133 Cal. 819, 65 Pac. 742;
Heillen v. Phillips, 88 Cal. 557, 26 Pac. 366; Drake v. Bagley, 69 Mo. App.
39, State v. Davis, 194 Mo. 585, 5 Ann. Cas. 1000, 4 L.R.A. (N.S.) 1023, 92
S.W. 484; Wissman v. Meagher, 115 Mo. App. 82, 91 S.W. 448; Pohle v.
Dickmann, 67 Mo. App. 381; Herwick v. Koken Barber Supply Co., 61 Mo.
App. 454].
7
Such construction applies equally to the constitutional provision under
consideration. In Mikell v. School Dis. of Philadelphia, 13 it was ruled that
"the legal distinction between directory and mandatory laws is applicable to
fundamental as it is to statutory laws."
To Our mind, the phraseology of the provision in question indicates that it
falls within the exception rather than the general rule. By the phrase "unless
reduced by the Supreme Court," it is evident that the period prescribed
therein is subject to modification by this Court in accordance with its
prerogative under Section 5[5] of Article X of the New Constitution to
"promulgate rules concerning pleading, practice and procedure in all
courts ... " And there can be no doubt that said provision, having been
incorporated for reasons of expediency, relates merely to matters of
procedure. Albermarle Oil & Gas Co. v. Morris, 14 declares that constitutional
provisions are directory, and not mandatory, where they refer to matters
merely procedural.
In practice, We have assumed a liberal stand with respect to this provision.
This Court had at various times, upon proper application and for meritorious
reasons, allowed judges of inferior courts additional time beyond the three-
month period within which to decide cases submitted to them. The reason is
that a departure from said provision would result in less injury to the general
public than would its strict application. To hold that non-compliance by the
courts with the aforesaid provision would result in loss of jurisdiction, would
make the courts, through which conflicts are resolved, the very instruments
to foster unresolved causes by reason merely of having failed to render a
decision within the alloted term. Such an absurd situation could not have
been intended by the framers of our fundamental law.
As foreseen by Mr. Henry Campbell Black in his Construction and
Interpretation of the Laws, 15 the constitutional provision in question should
be held merely as directory. "Thus, where the contrary construction) would
lead to absurd, impossible or mischievous consequences, it should not be
followed. "
One last point, Notwithstanding Our conclusion that courts are not divested
of their jurisdiction for failure to decide a case within the ninety-day period,
We here emphasize the rule, for the guidance of the judges manning our
courts, that cases pending before their salas must be decided within the
aforementioned period. Failure to observe said rule constitutes a ground for
administrative sanction against the defaulting judge. In fact a certificate to
this certificate is required before judges are allowed Lo draw their salaries.
WHEREFORE, the petition is hereby dismissed; and the Restraining Order
dated January 16, 1976 issued by this Court is lifted. Since respondent
Judge Fernando Cruz, Jr. is already deceased, his successor is hereby
ordered to decide Criminal Case No. C-5910 on the basis of the record
thereof within ninety [90] days from the time the case is raffled to him.
SO ORDERED.
Makasiar (Chairman), Concepcion Jr., Guerrero and De Castro, JJ., concur.
Aquino, J., is on leave.
Separate Opinions
ABAD SANTOS, J., concurring:
I concur and I wish to add the following observations:
The petitioner sinks release from detention on the ground of loss of
jurisdiction of the trial court allegedly because its judge failed to decide his
case within 90 days from the date of its submission. Section 11(1), Art. X of
the Constitution is invoked.
The main opinion states that the 90-day period was not exceeded in this
case and I agree. But exceeded or not, a decision rendered by an inferior
court outside of the 90-day period is not void for loss of jurisdiction. To hold
otherwise is to make the administration of justice depend heavily on the
frailities of a human judge. A decision rendered beyond the 90-day period, I
submit, is valid and the only consequence is to subject the erring judge to
administrative action. "... failure to comply with the injunction for judges to
decide their cases within 90 days from submission merely deprives them of
their right to collect their salaries or to apply for leave (section 5, Judiciary
Act of 1948; section 129, Revised Administrative Code) but does not deprive
8
them of jurisdiction to act in the causes pending before them." (Dimson vs.
Elepaño, 99 Phil. 733, 737 ,1956].)
The judge who wrote the questioned decision has died. It cannot now be
promulgated. "It is well-settled that, to be binding, a judgment must be duly
signed and promulgated during the incumbency of the judge whose signature
appears thereon." (People vs. So, July 30, 1957, No. L-8732, citing Lino
Luna v. Rodriguez, 37 Phil. 186; Garchitorena v. Crescini, 37 Phil. 675;
Barredo v. The Commission on Elections, 45 Off. Gaz. 4457; People v. Court
of Appeals, G.R. No. L-9111-9113.) For this reason, petitioner's case has to
be declared by another judge.
G.R. No. L-20051 May 30, 1966
ANTIQUE SAWMILLS, INC., petitioner and appellant,
vs.
AQUILES R. ZAYCO, ET AL., respondents and appellees.
C. T. Reyes, D. G. Magno and R. R. Tulod for petitioner and appellant.
Gamboa and Gamboa for respondent and appellee Zayco.
Office of the Solicitor General Arturo A. Alafriz and Solicitor Camilo D.
Quiason for appellee Secretary of Agriculture and Natural Resources.
REGALA, J.:
This is an appeal from the decision of the Court of first Instance of Manila
dismissing the petition for certiorari with preliminary injunction filed by the
Antique Sawmills, Inc. seeking the annulment of the decisions of the
Executive Secretary dated August 27, 1956 and February 25, 1958 in DANR
Case Nos. 1020 and 1020-A (In Re Forestry Notice No. 1598).
The only issue raised in this case is whether the Office of the President still
retains or possesses jurisdiction to review on appeal a decision of the
Secretary of Agriculture and Natural Resources which has become final. The
issue came up by reason of the following incidents:
On September 30, 1954, a public bidding was conducted for the award of a
12680-hectare forest area. Four parties submitted bid applications with the
Bureau of Forestry, namely: the petitioner-appellant, Antique Sawmills, Inc.,
the
respondent-appellee, Aquiles Zayco, Crisencio Milendez and Pedro T. Lo.
On November 29, 1954, the Director of Forestry awarded the bid to the
respondent-appellee, Aquiles R. Zayco. Thereafter, the losing bidders
appealed the above award to the Secretary of Agriculture and Natural
Resources who, on March 23, 1955, however, affirmed the same.
To the above order of March 23, 1955, all the losing bidders filed a motion for
reconsideration with the Secretary of Agricultural and Natural Resources and
acting on this motion, the said Secretary issued an order on July 14, 1955
modifying the original exclusive award to Aquiles R. Zayco. Under this July
14, 1955 order, the forest area in question was awarded in equal portions to
Aquiles R. Zayco and the petitioner-appellant, Antique Sawmills,
Inc.1äwphï1.ñët
Zayco received a copy of the above-mentioned order on July 28, 1955, and
on August 20, 1955, he filed against it a motion for reconsideration. On
September 10, 1955, this motion for reconsideration was denied. Zayco
received a copy of this order on November 27, 1955.
On December 19, 1955, Zayco filed with the Secretary of Agriculture and
Natural Resources a second motion for reconsideration which, on February
15, 1956, was resolved by the latter thus —
It appears that the herein motion which in effect is a second motion for
reconsideration was filed too late, that is, outside the reglementary period of
thirty (30) days prescribed in Section 10 of Forestry Administrative Order No.
6-2. From the time the movant received notice of the order sought to be
reconsidered on July 28, 1955, to the time he filed his first motion for
9
reconsideration on August 20, 1955, twenty-three (23) days had elapsed;
and from his receipt of the order of this Office dated September 10, 1955,
denying the first motion for reconsideration on November 22, 1955, to the
filing of the instant motion on December 19, 1955, twenty-seven (27) days
had elapsed. All in all, fifty (50) days had elapsed from his receipt of the
order sought to be reconsidered to the filing of the herein motion.
Consequently, the said order of this office dated July 14, 1955 had already
become final and executory pursuant to the aforecited regulation.
It appears further that the grounds upon which the instant motion is based
are unmeritorious and undeserving of further consideration. That the
appellant Antique Sawmills, Inc. fraudulently misrepresented the facts of this
case, is a gratuituous assertion belied by the evidence on record and then
further charge that said appellant is a dummy or is acting not on its own
behalf but for another entity, for the present is unfounded and based on the
mere suspicions of the movant. At any rate, another re-examination of the
evidence on record has not only led us to the same conclusion, but also
convinced us more of the justice and wisdom of our disposition in the order of
July 14, 1955.
On February 27, 1956, the respondent-appellee appealed the above order of
February 15, 1956 to the Office of the President. On March 10, 1956, the
herein appellant interposed an opposition to the above-mentioned appeal on
the main ground that the order appealed from had already become final and
executory.
On August 27, 1956, however, the Executive Secretary rendered a decision
sustaining the appeal and reversing the order of the Secretary of Agriculture
and Natural Resources dated July 14, 1955. This order of the Executive
Secretary awarded the entire forest concession in question to the
respondent-appellee, Aquiles B. Zayco. Pertinent portion of the decision
reads:
The first issue to be resolved in this appeal is whether or not this Office can
pass upon the merits of the instant case, it appearing that the appeal was
filed after the lapse of thirty (30) days from appellant's receipt of that
Department's order dated July 14, 1955. It appears, however, in the affidavit
of the appellant and in the records of this case that he was not duly
represented by counsel in the main stages of the proceedings, and that he
was not aware of the reglementary period within which to take the various
steps to protect his rights. Moreover, there was no advertence on notice by
that Department upon the herein appellant that he had to exercise his rights
within certain fixed periods. While it can not be denied that, for the sake of
orderly proceedings, technical rules may be relaxed in the interest of justice
and equity. We are inclined to liberalize the rule in this case to attain an
approximation to substantial justice. An examination of the record shows that
the order modifying that Department's decision dated March 23, 1955, lacks
legal and equitable basis. For this reason, this Office is constrained to pass
upon the substantial merits of the case.
After the denial of his motion for reconsideration on the order of the
Executive Secretary, the petitioner instituted with the Court of First Instance
of Manila the instant proceedings.
The petitioner's theory is simple. It contends that the period provided by the
rules for the perfection of an appeal is not only mandatory but jurisdictional.
Thus, since, the respondent-appellee failed to perfect his appeal on time and
finality had already set in the order of July 14, 1955, the Office of the
President could not have required jurisdiction over the same.
The respondents, on the other hand, maintain that the said period is a mere
procedural technicality which, at least in administrative proceedings, may
liberally be relaxed.
In a long line of cases,1 the Supreme Court has ruled that compliance with
the period provided by law for the perfection of an appeal is not merely
mandatory but also a jurisdictional requirement. Thus, in the case of Miranda
vs. Guanzon, et al., 92 Phil. 168, this Court held:
Section 13 of Rule 41 provides that when the appeal is not perfected within
the reglementary period the appeal shall be dismissed. The requirement
regarding the perfection of an appeal within the reglementary period is not
only mandatory but jurisdictional. Such failure has the effect of rendering final
the judgment of the court, and the certification of the record on appeal
thereafter cannot restore the jurisdiction which has been lost. The dismissal
of the appeal can be effected even after the case has been elevated to the
Court of Appeals (Rule 52, Section 1[a]). Appellee's failure to file a motion for
dismissal of appeal in the court of origin before the transmittal of the record
to the appellate court, does not constitute a waiver on his part to interpose
such objection. (Emphasis supplied)
10
That administrative rules and regulations have the force of law can no longer
be questioned. Only recently, in the case of Valerio vs. Secretary of
Agriculture, et al., G.R. No. L-18587, April 23, 1963, we reaffirmed that —
x x x it cannot be contended, as the court a quo intimated, that an
administrative regulation should not be given the same weight as to rule of
court but should rather be given a more liberal interpretation for, as is well
known, a regulation adopted pursuant to law has the force and effect of law.
In fact it is a wise policy that administrative regulations be given the same
force as rules of court in order to maintain the regularity of administrative
proceedings.
The appellees' view that the period fixed in Administrative Order No. 6-2 of
the Director of Forestry cannot bind the Office of the President since the
latter has supervision and control over the former cannot commend itself to
sound public policy. Even administrative decisions must and sometime, as
fully as public policy demands that finality be written on judicial controversies
(Manila Electric Co. vs. Public Service Commission, 61 Phil. 456).
In other words, public interest requires that proceedings already terminated
should not be altered at every step. The rule of non quieta movere prescribes
that what was already terminated should not be disturbed (Espiritu vs. San
Miguel Brewery, 63 Phil. 615). We do not doubt that even the Office of the
President subscribes to the above rule. As aptly remarked by Justice
Malcolm in Dy Cay vs. Crossfield & O'Brien, 38 Phil. 527:
Public policy and sound practice demand that, at the risk of occasional
errors, judgments of courts should become final at some definite date fixed
by law. The very object for which courts were instituted was to put an end to
controversy. To fulfill this purpose and to do so steadily, certain time limits,
more or less arbitrary, have to be set up to spur on the slothful. ...
Wherefore, the decision appealed from is hereby revoked and set aside. The
award made under the Order of the Secretary of Agriculture and Natural
Resources dated July 14, 1955 is hereby declared valid, effective and
subsisting. Costs against the appellee, Aquiles Zayco.
11

G.R. No. 90336 August 12, 1991
RUPERTO TAULE, petitioner,
vs.
SECRETARY LUIS T. SANTOS and GOVERNOR LEANDRO VERCELES,
respondents.
Balgos & Perez and Bugaring, Tugonon & Associates Law Offices for
petitioner.
Juan G. Atencia for private respondent.
GANCAYCO, J.:
The extent of authority of the Secretary of Local Government over the
katipunan ng mga barangay or the barangay councils is brought to the fore in
this case.
On June 18,1989, the Federation of Associations of Barangay Councils
(FABC) of Catanduanes, composed of eleven (11) members, in their
capacities as Presidents of the Association of Barangay Councils in their
respective municipalities, convened in Virac, Catanduanes with six members
in attendance for the purpose of holding the election of its officers.
Present were petitioner Ruperto Taule of San Miguel, Allan Aquino of Viga,
Vicente Avila of Virac, Fidel Jacob of Panganiban, Leo Sales of Caramoran
and Manuel Torres of Baras. The Board of Election Supervisors/Consultants
was composed of Provincial Government Operation Officer (PGOO) Alberto
P. Molina, Jr. as Chairman with Provincial Treasurer Luis A. Manlapaz, Jr.
and Provincial Election Supervisor Arnold Soquerata as members.
When the group decided to hold the election despite the absence of five (5)
of its members, the Provincial Treasurer and the Provincial Election
Supervisor walked out.
The election nevertheless proceeded with PGOO Alberto P. Molina, Jr. as
presiding officer. Chosen as members of the Board of Directors were Taule,
Aquino, Avila, Jacob and Sales.
12
Thereafter, the following were elected officers of the FABC:
President — Ruperto Taule
Vice-President — Allan Aquino
Secretary — Vicente Avila
Treasurer — Fidel Jacob
Auditor — Leo Sales1
On June 19, 1989, respondent Leandro I. Verceles, Governor of
Catanduanes, sent a letter to respondent Luis T. Santos, the Secretary of
Local Government, * protesting the election of the officers of the FABC and
seeking its nullification in view of several flagrant irregularities in the manner
it was conducted.2
In compliance with the order of respondent Secretary, petitioner Ruperto
Taule as President of the FABC, filed his comment on the letter-protest of
respondent Governor denying the alleged irregularities and denouncing said
respondent Governor for meddling or intervening in the election of FABC
officers which is a purely non-partisan affair and at the same time requesting
for his appointment as a member of the Sangguniang Panlalawigan of the
province being the duly elected President of the FABC in Catanduanes.3
On August 4, 1989, respondent Secretary issued a resolution nullifying the
election of the officers of the FABC in Catanduanes held on June 18, 1989
and ordering a new one to be conducted as early as possible to be presided
by the Regional Director of Region V of the Department of Local
Government.4
Petitioner filed a motion for reconsideration of the resolution of August 4,
1989 but it was denied by respondent Secretary in his resolution of
September 5, 1989.5
In the petition for certiorari before Us, petitioner seeks the reversal of the
resolutions of respondent Secretary dated August 4, 1989 and September 5,
1989 for being null and void.
Petitioner raises the following issues:

1) Whether or not the respondent Secretary has jurisdiction to entertain an
election protest involving the election of the officers of the Federation of
Association of Barangay Councils;
2) Whether or not the respondent Governor has the legal personality to file
an election protest;
3) Assuming that the respondent Secretary has jurisdiction over the election
protest, whether or not he committed grave abuse of discretion amounting to
lack of jurisdiction in nullifying the election;
The Katipunan ng mga Barangay is the organization of all sangguniang
barangays in the following levels: in municipalities to be known as katipunang
bayan; in cities, katipunang panlungsod; in provinces, katipunang
panlalawigan; in regions, katipunang pampook; and on the national level,
katipunan ng mga barangay.6
The Local Government Code provides for the manner in which the katipunan
ng mga barangay at all levels shall be organized:
Sec. 110. Organization. — (1) The katipunan at all levels shall be organized
in the following manner:
(a) The katipunan in each level shall elect a board of directors and a set of
officers. The president of each level shall represent the katipunan concerned
in the next higher level of organization.
(b) The katipunan ng mga barangay shall be composed of the katipunang
pampook, which shall in turn be composed of the presidents of the
katipunang panlalawigan and the katipunang panlungsod. The presidents of
the katipunang bayan in each province shall constitute the katipunang
panlalawigan. The katipunang panlungsod and the katipunang bayan shall
be composed of the punong barangays of cities and municipalities,
respectively.
xxx xxx xxx
The respondent Secretary, acting in accordance with the provision of the
Local Government Code empowering him to "promulgate in detail the
implementing circulars and the rules and regulations to carry out the various
13
administrative actions required for the initial implementation of this Code in
such a manner as will ensure the least disruption of on-going programs and
projects7 issued Department of Local Government Circular No. 89-09 on
April 7, 1989,8 to provide the guidelines for the conduct of the elections of
officers of the Katipunan ng mga Barangay at the municipal, city, provincial,
regional and national levels.
It is now the contention of petitioner that neither the constitution nor the law
grants jurisdiction upon the respondent Secretary over election contests
involving the election of officers of the FABC, the katipunan ng mga
barangay at the provincial level. It is petitioner's theory that under Article IX,
C, Section 2 of the 1987 Constitution, it is the Commission on Elections
which has jurisdiction over all contests involving elective barangay officials.
On the other hand, it is the opinion of the respondent Secretary that any
violation of the guidelines as set forth in said circular would be a ground for
filing a protest and would vest upon the Department jurisdiction to resolve
any protest that may be filed in relation thereto.
Under Article IX, C, Section 2(2) of the 1987 Constitution, the Commission on
Elections shall exercise "exclusive original jurisdiction over all contests
relating to the elections, returns, and qualifications of all elective regional,
provincial, and city officials, and appellate jurisdiction over all contests
involving elective municipal officials decided by trial courts of general
jurisdiction, or involving elective barangay officials decided by trial courts of
limited jurisdiction." The 1987 Constitution expanded the jurisdiction of the
COMELEC by granting it appellate jurisdiction over all contests involving
elective municipal officials decided by trial courts of general jurisdiction or
elective barangay officials decided by trial courts of limited jurisdiction.9
The jurisdiction of the COMELEC over contests involving elective barangay
officials is limited to appellate jurisdiction from decisions of the trial courts.
Under the law,10 the sworn petition contesting the election of a barangay
officer shall be filed with the proper Municipal or Metropolitan Trial Court by
any candidate who has duly filed a certificate of candidacy and has been
voted for the same office within 10 days after the proclamation of the results.
A voter may also contest the election of any barangay officer on the ground
of ineligibility or of disloyalty to the Republic of the Philippines by filing a
sworn petition for quo warranto with the Metropolitan or Municipal Trial Court
within 10 days after the proclamation of the results of the election.11 Only
appeals from decisions of inferior courts on election matters as aforestated
may be decided by the COMELEC.
The Court agrees with the Solicitor General that the jurisdiction of the
COMELEC is over popular elections, the elected officials of which are
determined through the will of the electorate. An election is the embodiment
of the popular will, the expression of the sovereign power of the people.12 It
involves the choice or selection of candidates to public office by popular
vote.13 Specifically, the term "election," in the context of the Constitution,
may refer to the conduct of the polls, including the listing of voters, the
holding of the electoral campaign, and the casting and counting of the
votes14 which do not characterize the election of officers in the Katipunan ng
mga barangay. "Election contests" would refer to adversary proceedings by
which matters involving the title or claim of title to an elective office, made
before or after proclamation of the winner, is settled whether or not the
contestant is claiming the office in dispute15 and in the case of elections of
barangay officials, it is restricted to proceedings after the proclamation of the
winners as no pre-proclamation controversies are allowed.16
The jurisdiction of the COMELEC does not cover protests over the
organizational set-up of the katipunan ng mga barangay composed of
popularly elected punong barangays as prescribed by law whose officers are
voted upon by their respective members. The COMELEC exercises only
appellate jurisdiction over election contests involving elective barangay
officials decided by the Metropolitan or Municipal Trial Courts which likewise
have limited jurisdiction. The authority of the COMELEC over the katipunan
ng mga barangay is limited by law to supervision of the election of the
representative of the katipunan concerned to the sanggunian in a particular
level conducted by their own respective organization.17
However, the Secretary of Local Government is not vested with jurisdiction to
entertain any protest involving the election of officers of the FABC.
There is no question that he is vested with the power to promulgate rules and
regulations as set forth in Section 222 of the Local Government Code.
Likewise, under Book IV, Title XII, Chapter 1, See. 3(2) of the Administrative
Code of 1987, ** the respondent Secretary has the power to "establish and
prescribe rules, regulations and other issuances and implementing laws on
the general supervision of local government units and on the promotion of
local autonomy and monitor compliance thereof by said units."
14
Also, the respondent Secretary's rule making power is provided in See. 7,
Chapter II, Book IV of the Administrative Code, to wit:
(3) Promulgate rules and regulations necessary to carry out department
objectives, policies, functions, plans, programs and projects;
Thus, DLG Circular No. 89-09 was issued by respondent Secretary in
pursuance of his rule-making power conferred by law and which now has the
force and effect of law.18
Now the question that arises is whether or not a violation of said circular
vests jurisdiction upon the respondent Secretary, as claimed by him, to hear
a protest filed in relation thereto and consequently declare an election null
and void.
It is a well-settled principle of administrative law that unless expressly
empowered, administrative agencies are bereft of quasi- judicial powers.19
The jurisdiction of administrative authorities is dependent entirely upon the
provisions of the statutes reposing power in them; they cannot confer it upon
themselves.20 Such jurisdiction is essential to give validity to their
determinations.21
There is neither a statutory nor constitutional provision expressly or even by
necessary implication conferring upon the Secretary of Local Government
the power to assume jurisdiction over an election protect involving officers of
the katipunan ng mga barangay. An understanding of the extent of authority
of the Secretary over local governments is therefore necessary if We are to
resolve the issue at hand.
Presidential power over local governments is limited by the Constitution to
the exercise of general supervision22 "to ensure that local affairs are
administered according to law."23 The general supervision is exercised by
the President through the Secretary of Local Government.24
In administrative law, supervision means overseeing or the power or
authority of an officer to see that the subordinate officers perform their duties.
If the latter fails or neglects to fulfill them the former may take such action or
step as prescribed by law to make them perform their duties. Control, on the
other hand, means the power of an officer to alter or modify or nullify or set
aside what a subordinate officer had done in the performance of his duties
and to substitute the judgment of the former for that of the latter. The
fundamental law permits the Chief Executive to wield no more authority than
that of checking whether said local government or the officers thereof
perform their duties as provided by statutory enactments. Hence, the
President cannot interfere with local governments so long as the same or its
officers act within the scope of their authority.25 Supervisory power, when
contrasted with control, is the power of mere oversight over an inferior body;
it does not include any restraining authority over such body.26
Construing the constitutional limitation on the power of general supervision of
the President over local governments, We hold that respondent Secretary
has no authority to pass upon the validity or regularity of the election of the
officers of the katipunan. To allow respondent Secretary to do so will give
him more power than the law or the Constitution grants. It will in effect give
him control over local government officials for it will permit him to interfere in
a purely democratic and non-partisan activity aimed at strengthening the
barangay as the basic component of local governments so that the ultimate
goal of fullest autonomy may be achieved. In fact, his order that the new
elections to be conducted be presided by the Regional Director is a clear and
direct interference by the Department with the political affairs of the
barangays which is not permitted by the limitation of presidential power to
general supervision over local governments.27
Indeed, it is the policy of the state to ensure the autonomy of local
governments.28 This state policy is echoed in the Local Government Code
wherein it is declared that "the State shall guarantee and promote the
autonomy of local government units to ensure their fullest development as
self-reliant communities and make them more effective partners in the pursuit
of national development and social progress."29 To deny the Secretary of
Local Government the power to review the regularity of the elections of
officers of the katipunan would be to enhance the avowed state policy of
promoting the autonomy of local governments.
Moreover, although the Department is given the power to prescribe rules,
regulations and other issuances, the Administrative Code limits its authority
to merely "monitoring compliance" by local government units of such
issuances.30 To monitor means "to watch, observe or check.31 This is
compatible with the power of supervision of the Secretary over local
governments which as earlier discussed is limited to checking whether the
local government unit concerned or the officers thereof perform their duties
as provided by statutory enactments. Even the Local Government Code
15
which grants the Secretary power to issue implementing circulars, rules and
regulations is silent as to how these issuances should be enforced. Since the
respondent Secretary exercises only supervision and not control over local
governments, it is truly doubtful if he could enforce compliance with the DLG
Circular.32 Any doubt therefore as to the power of the Secretary to interfere
with local affairs should be resolved in favor of the greater autonomy of the
local government.
Thus, the Court holds that in assuming jurisdiction over the election protest
filed by respondent Governor and declaring the election of the officers of the
FABC on June 18, 1989 as null and void, the respondent Secretary acted in
excess of his jurisdiction. The respondent Secretary not having the
jurisdiction to hear an election protest involving officers of the FABC, the
recourse of the parties is to the ordinary courts. The Regional Trial Courts
have the exclusive original jurisdiction to hear the protest.33
The provision in DLG Circular No. 89-15 amending DLG Circular No. 89-09
which states that "whenever the guidelines are not substantially complied
with, the election shall be declared null and void by the Department of Local
Government and an election shall conduct and being invoked by the Solicitor
General cannot be applied. DLG Circular No. 89-15 was issued on July 3,
1989 after the June 18, 1989 elections of the FABC officers and it is the rule
in statutory construction that laws, including circulars and regulations34
cannot be applied retrospectively.35 Moreover, such provision is null and
void for having been issued in excess of the respondent Secretary's
jurisdiction, inasmuch as an administrative authority cannot confer jurisdiction
upon itself.
As regards the second issue raised by petitioner, the Court finds that
respondent Governor has the personality to file the protest. Under Section
205 of the Local Government Code, the membership of the sangguniang
panlalawigan consists of the governor, the vice-governor, elective members
of the said sanggunian and the presidents of the katipunang panlalawigan
and the kabataang barangay provincial federation. The governor acts as the
presiding officer of the sangguniang panlalawigan.36
As presiding officer of the sagguniang panlalawigan, the respondent
governor has an interest in the election of the officers of the FABC since its
elected president becomes a member of the assembly. If the president of the
FABC assumes his presidency under questionable circumstances and is
allowed to sit in the sangguniang panlalawigan the official actions of the
sanggunian may be vulnerable to attacks as to their validity or legality.
Hence, respondent governor is a proper party to question the regularity of the
elections of the officers of the FABC.
As to the third issue raised by petitioner, the Court has already ruled that the
respondent Secretary has no jurisdiction to hear the protest and nullify the
elections.
Nevertheless, the Court holds that the issue of the validity of the elections
should now be resolved in order to prevent any unnecessary delay that may
result from the commencement of an appropriate action by the parties.
The elections were declared null and void primarily for failure to comply with
Section 2.4 of DLG Circular No. 89-09 which provides that "the incumbent
FABC President or the Vice-President shall preside over the reorganizational
meeting, there being a quorum." The rule specifically provides that it is the
incumbent FABC President or Vice-President who shall preside over the
meeting. The word "shall" should be taken in its ordinary signification, i.e., it
must be imperative or mandatory and not merely
permissive,37 as the rule is explicit and requires no other interpretation. If it
had been intended that any other official should preside, the rules would
have provided so, as it did in the elections at the town and city levels38 as
well as the regional level..39
It is admitted that neither the incumbent FABC President nor the Vice-
President presided over the meeting and elections but Alberto P. Molina, Jr.,
the Chairman of the Board of Election Supervisors/Consultants. Thus, there
was a clear violation of the aforesaid mandatory provision. On this ground,
the elections should be nullified.
Under Sec. 2.3.2.7 of the same circular it is provided that a Board of Election
Supervisors/Consultants shall be constituted to oversee and/or witness the
canvassing of votes and proclamation of winners. The rules confine the role
of the Board of Election Supervisors/Consultants to merely overseeing and
witnessing the conduct of elections. This is consistent with the provision in
the Local Government Code limiting the authority of the COMELEC to the
supervision of the election.40
In case at bar, PGOO Molina, the Chairman of the Board, presided over the
elections. There was direct participation by the Chairman of the Board in the
elections contrary to what is dictated by the rules. Worse, there was no
16
Board of Election Supervisors to oversee the elections in view of the walk out
staged by its two other members, the Provincial COMELEC Supervisor and
the Provincial Treasurer. The objective of keeping the election free and
honest was therefore compromised.
The Court therefore finds that the election of officers of the FABC held on
June 18, 1989 is null and void for failure to comply with the provisions of DLG
Circular No. 89-09.
Meanwhile, pending resolution of this petition, petitioner filed a supplemental
petition alleging that public respondent Local Government Secretary, in his
memorandum dated June 7, 1990, designated Augusto Antonio as temporary
representative of the Federation to the sangguniang panlalawigan of
Catanduanes.41 By virtue of this memorandum, respondent governor swore
into said office Augusto Antonio on June 14, 1990.42
The Solicitor General filed his comment on the supplemental petition43 as
required by the resolution of the Court dated September 13,1990.
In his comment, the Solicitor General dismissed the supervening event
alleged by petitioner as something immaterial to the petition. He argues that
Antonio's appointment was merely temporary "until such time that the
provincial FABC president in that province has been elected, appointed and
qualified."44 He stresses that Antonio's appointment was only a remedial
measure designed to cope with the problems brought about by the absence
of a representative of the FABC to the "sanggunian ang panlalawigan."
Sec. 205 (2) of the Local Government Code (B.P. Blg. 337) provides-
(2) The sangguniang panlalawigan shall be composed of the governor, the
vice-governor, elective members of the said sanggunian and the presidents
of the katipunang panlalawigan and the kabataang barangay provincial
federation who shall be appointed by the President of the Philippines.
(Emphasis supplied.)
Batas Pambansa Blg. 51, under Sec. 2 likewise states:
xxx xxx xxx
The sangguniang panlalawigan of each province shall be composed of the
governor as chairman and presiding officer, the vice-governor as presiding
officer pro tempore, the elective sangguniang panlalawigan members, and
the appointive members consisting of the president of the provincial
association of barangay councils, and the president of the provincial
federation of the kabataang barangay. (Emphasis supplied.)
In Ignacio vs. Banate Jr.45 the Court, interpreting similarly worded provisions
of Batas Pambansa Blg. 337 and Batas Pambansa Blg. 51 on the
composition of the sangguniang panlungsod,46 declared as null and void the
appointment of private respondent Leoncio Banate Jr. as member of the
Sangguniang Panlungsod of the City of Roxas representing the katipunang
panlungsod ng mga barangay for he lacked the elegibility and qualification
required by law, not being a barangay captain and for not having been
elected president of the association of barangay councils. The Court held
that an unqualified person cannot be appointed a member of the sanggunian,
even in an acting capacity. In Reyes vs. Ferrer,47 the appointment of
Nemesio L. Rasgo Jr. as representative of the youth sector to the
sangguniang panlungsod of Davao City was declared invalid since he was
never the president of the kabataang barangay city federation as required by
Sec. 173, Batas Pambansa Blg. 337.
In the present controversy involving the sangguniang panlalawigan, the law
is likewise explicit. To be appointed by the President of the Philippines to sit
in the sangguniang panlalawigan is the president of the katipunang
panlalawigan. The appointee must meet the qualifications set by law.48 The
appointing power is bound by law to comply with the requirements as to the
basic qualifications of the appointee to the sangguniang panlalawigan. The
President of the Philippines or his alter ego, the Secretary of Local
Government, has no authority to appoint anyone who does not meet the
minimum qualification to be the president of the federation of barangay
councils.
Augusto Antonio is not the president of the federation. He is a member of the
federation but he was not even present during the elections despite notice.
The argument that Antonio was appointed as a remedial measure in the
exigency of the service cannot be sustained. Since Antonio does not meet
the basic qualification of being president of the federation, his appointment to
the sangguniang panlalawigan is not justified notwithstanding that such
appointment is merely in a temporary capacity. If the intention of the
respondent Secretary was to protect the interest of the federation in the
sanggunian, he should have appointed the incumbent FABC President in a
hold-over capacity. For even under the guidelines, the term of office of
17
officers of the katipunan at all levels shall be from the date of their election
until their successors shall have been duly elected and qualified, without
prejudice to the terms of their appointments as members of the sanggunian
to which they may be correspondingly appointed.49 Since the election is still
under protest such that no successor of the incumbent has as yet qualified,
the respondent Secretary has no choice but to have the incumbent FABC
President sit as member of the sanggunian. He could even have appointed
petitioner since he was elected the president of the federation but not
Antonio. The appointment of Antonio, allegedly the protege of respondent
Governor, gives credence to petitioner's charge of political interference by
respondent Governor in the organization. This should not be allowed. The
barangays should be insulated from any partisan activity or political
intervention if only to give true meaning to local autonomy.
WHEREFORE, the petition is GRANTED in that the resolution of respondent
Secretary dated August 4, 1989 is hereby SET ASIDE for having been
issued in excess of jurisdiction.
The election of the officials of the ABC Federation held on June 18, 1989 is
hereby annulled.1âwphi1 A new election of officers of the federation is
hereby ordered to be conducted immediately in accordance with the
governing rules and regulations.
The Supplemental petition is hereby GRANTED. The appointment of
Augusto Antonio as representative to the Sangguniang Panlalawigan in a
temporary capacity is declared null and void.
No costs.SO ORDERED.
G.R. No. 139465 January 18, 2000
SECRETARY OF JUSTICE, petitioner,
vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of
Manila, Branch 25, and MARK B. JIMENEZ, respondents.
MELO, J.:
The individual citizen is but a speck of particle or molecule vis-à-vis the vast
and overwhelming powers of government. His only guarantee against
oppression and tyranny are his fundamental liberties under the Bill of Rights
which shield him in times of need. The Court is now called to decide whether
to uphold a citizen's basic due process rights, or the government's ironclad
duties under a treaty. The bugle sounds and this Court must once again act
as the faithful guardian of the fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued
Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition
of Persons Who Have Committed Crimes in a Foreign Country". The Decree
is founded on: the doctrine of incorporation under the Constitution; the
mutual concern for the suppression of crime both in the state where it was
committed and the state where the criminal may have escaped; the
extradition treaty with the Republic of Indonesia and the intention of the
Philippines to enter into similar treaties with other interested countries; and
the need for rules to guide the executive department and the courts in the
proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon,
representing the Government of the Republic of the Philippines, signed in
Manila the "Extradition Treaty Between the Government of the Republic of
the Philippines and the Government of the United States of America"
(hereinafter referred to as the RP-US Extradition Treaty). The Senate, by
way of Resolution No. 11, expressed its concurrence in the ratification of said
treaty. It also expressed its concurrence in the Diplomatic Notes correcting
Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents
accompanying an extradition request upon certification by the principal
diplomatic or consular officer of the requested state resident in the
Requesting State).
On June 18, 1999, the Department of Justice received from the Department
of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the
extradition of private respondent Mark Jimenez to the United States.
Attached to the Note Verbale were the Grand Jury Indictment, the warrant of
arrest issued by the U.S. District Court, Southern District of Florida, and other
supporting documents for said extradition. Based on the papers submitted,
private respondent appears to be charged in the United States with violation
of the following provisions of the United States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the United
States; two [2] counts; Maximum Penalty — 5 years on each count);
18
B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum
Penalty — 5 years on each count);
C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts;
Maximum Penalty — 5 years on each count);
D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum
Penalty — 5 years on each count);
E) 2 USC 441f (Election contributions in name of another; thirty-three [33]
counts; Maximum Penalty — less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249 designating
and authorizing a panel of attorneys to take charge of and to handle the case
pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the
panel began with the "technical evaluation and assessment" of the
extradition request and the documents in support thereof. The panel found
that the "official English translation of some documents in Spanish were not
attached to the request and that there are some other matters that needed to
be addressed" (p. 15, Rollo).
Pending evaluation of the aforestated extradition documents, private
respondent, through counsel, wrote a letter dated July 1, 1999 addressed to
petitioner requesting copies of the official extradition request from the U.S.
Government, as well as all documents and papers submitted therewith; and
that he be given ample time to comment on the request after he shall have
received copies of the requested papers. Private respondent also requested
that the proceedings on the matter be held in abeyance in the meantime.
Later, private respondent requested that preliminary, he be given at least a
copy of, or access to, the request of the United States Government, and after
receiving a copy of the Diplomatic Note, a period of time to amplify on his
request.
In response to private respondent's July 1, 1999 letter, petitioner, in a reply-
letter dated July 13, 1999 (but received by private respondent only on August
4, 1999), denied the foregoing requests for the following reasons:
1. We find it premature to furnish you with copies of the extradition request
and supporting documents from the United States Government, pending
evaluation by this Department of the sufficiency of the extradition documents
submitted in accordance with the provisions of the extradition treaty and our
extradition law. Article 7 of the Extradition Treaty between the Philippines
and the United States enumerates the documentary requirements and
establishes the procedures under which the documents submitted shall be
received and admitted as evidence. Evidentiary requirements under our
domestic law are also set forth in Section 4 of P.D. No. 1069.
Evaluation by this Department of the aforementioned documents is not a
preliminary investigation nor akin to preliminary investigation of criminal
cases. We merely determine whether the procedures and requirements
under the relevant law and treaty have been complied with by the Requesting
Government. The constitutionally guaranteed rights of the accused in all
criminal prosecutions are therefore not available.
It is only after the filing of the petition for extradition when the person sought
to be extradited will be furnished by the court with copies of the petition,
request and extradition documents and this Department will not pose any
objection to a request for ample time to evaluate said documents.
2. The formal request for extradition of the United States contains grand jury
information and documents obtained through grand jury process covered by
strict secrecy rules under United States law. The United States had to secure
orders from the concerned District Courts authorizing the United States to
disclose certain grand jury information to Philippine government and law
enforcement personnel for the purpose of extradition of Mr. Jimenez. Any
further disclosure of the said information is not authorized by the United
States District Courts. In this particular extradition request the United States
Government requested the Philippine Government to prevent unauthorized
disclosure of the subject information. This Department's denial of your
request is consistent with Article 7 of the RP-US Extradition Treaty which
provides that the Philippine Government must represent the interests of the
United States in any proceedings arising out of a request for extradition. The
Department of Justice under P.D. No. 1069 is the counsel of the foreign
governments in all extradition requests.
3. This Department is not in a position to hold in abeyance proceedings in
connection with an extradition request. Article 26 of the Vienna Convention
on the Law of Treaties, to which we are a party provides that "[E]very treaty
19
in force is binding upon the parties to it and must be performed by them in
good faith". Extradition is a tool of criminal law enforcement and to be
effective, requests for extradition or surrender of accused or convicted
persons must be processed expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private respondent
filed with the Regional Trial Court of the National Capital Judicial Region a
petition against the Secretary of Justice, the Secretary of Foreign Affairs, and
the Director of the National Bureau of Investigation, for mandamus (to
compel herein petitioner to furnish private respondent the extradition
documents, to give him access thereto, and to afford him an opportunity to
comment on, or oppose, the extradition request, and thereafter to evaluate
the request impartially, fairly and objectively); certiorari (to set aside herein
petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner
from considering the extradition request and from filing an extradition petition
in court; and to enjoin the Secretary of Foreign Affairs and the Director of the
NBI from performing any act directed to the extradition of private respondent
to the United States), with an application for the issuance of a temporary
restraining order and a writ of preliminary injunction (pp. 104-105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and
thereafter raffled to Branch 25 of said regional trial court stationed in Manila
which is presided over by the Honorable Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999.
Petitioner, who appeared in his own behalf, moved that he be given ample
time to file a memorandum, but the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous
day, disposing:
WHEREFORE, this Court hereby Orders the respondents, namely: the
Secretary of Justice, the Secretary of Foreign Affairs and the Director of the
National Bureau of Investigation, their agents and/or representatives to
maintain the status quo by refraining from committing the acts complained of;
from conducting further proceedings in connection with the request of the
United States Government for the extradition of the petitioner; from filing the
corresponding Petition with a Regional Trial court; and from performing any
act directed to the extradition of the petitioner to the United States, for a
period of twenty (20) days from service on respondents of this Order,
pursuant to Section 5, Rule 58 of the 1997 Rules of Court.
The hearing as to whether or not this Court shall issue the preliminary
injunction, as agreed upon by the counsels for the parties herein, is set on
August 17, 1999 at 9:00 o'clock in the morning. The respondents are,
likewise, ordered to file their written comment and/or opposition to the
issuance of a Preliminary Injunction on or before said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY
RESTRAINING ORDER BECAUSE:
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING
THE ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING
PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION
REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE
RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR
OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF
MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND
PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN
ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING
LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE
PHILIPPINE EXTRADITION LAW;
III.
20
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS,
ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS
PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY
IRREPARABLE INJURY.
(pp. 19-20, Rollo.)
On August 17, 1999, the Court required private respondent to file his
comment. Also issued, as prayed for, was a temporary restraining order
(TRO) providing:
NOW, THEREFORE, effective immediately and continuing until further
orders from this Court, You, Respondent Judge Ralph C. Lantion, your
agents, representatives or any person or persons acting in your place or
stead are hereby ORDERED to CEASE and DESIST from enforcing the
assailed order dated August 9, 1999 issued by public respondent in Civil
Case No. 99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme
Court of the Philippines, this 17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after which the
parties, as directed, filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive
issues are patent. However, a review of these issues as well as the extensive
arguments of both parties, compel us to delineate the focal point raised by
the pleadings: During the evaluation stage of the extradition proceedings, is
private respondent entitled to the two basic due process rights of notice and
hearing? An affirmative answer would necessarily render the proceedings at
the trial court, moot and academic (the issues of which are substantially the
same as those before us now), while a negative resolution would call for the
immediate lifting of the TRO issued by this Court dated August 24, 1999,
thus allowing petitioner to fast-track the process leading to the filing of the
extradition petition with the proper regional trial court. Corollarily, in the event
that private respondent is adjudged entitled to basic due process rights at the
evaluation stage of the extradition proceedings, would this entitlement
constitute a breach of the legal commitments and obligations of the
Philippine Government under the RP-US Extradition Treaty? And assuming
that the result would indeed be a breach, is there any conflict between
private respondent's basic due process rights and the provisions of the RP-
US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go
directly into the substantive merits of the case, brushing aside peripheral
procedural matters which concern the proceedings in Civil Case No. 99-
94684, particularly the propriety of the filing of the petition therein, and of the
issuance of the TRO of August 17, 1999 by the trial court.
To be sure, the issues call for a review of the extradition procedure. The RP-
US Extradition Treaty which was executed only on November 13, 1994,
ushered into force the implementing provisions of Presidential Decree No.
1069, also called as the Philippine Extradition Law. Section 2(a) thereof
defines extradition as "the removal of an accused from the Philippines with
the object of placing him at the disposal of foreign authorities to enable the
requesting state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed on
him under the penal or criminal law of the requesting state or government."
The portions of the Decree relevant to the instant case which involves a
charged and not convicted individual, are abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the Requesting State,
addressed to the Secretary of Foreign Affairs, and shall be accompanied by:
1. The original or an authentic copy of the criminal charge and the warrant of
arrest issued by the authority of the Requesting State having jurisdiction over
the matter, or some other instruments having equivalent legal force;
2. A recital of the acts for which extradition is requested, with the fullest
particulars as to the name and identity of the accused, his whereabouts in
the Philippines, if known, the acts or omissions complained of, and the time
and place of the commission of these acts;
21
3. The text of the applicable law or a statement of the contents of said law,
and the designation or description of the offense by the law, sufficient for
evaluation of the request; and
4. Such other documents or information in support of the request.
(Sec. 4. Presidential Decree No. 1069.)
Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary
of Foreign Affairs, pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request
fails to meet the requirements of this law and the relevant treaty or
convention, he shall forward the request together with the related documents
to the Secretary of Justice, who shall immediately designate and authorize
an attorney in his office to take charge of the case.
The above provision shows only too clearly that the executive authority given
the task of evaluating the sufficiency of the request and the supporting
documents is the Secretary of Foreign Affairs. What then is the coverage of
this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition
Treaty, the executive authority must ascertain whether or not the request is
supported by:
1. Documents, statements, or other types of information which describe the
identity and probable location of the person sought;
2. A statement of the facts of the offense and the procedural history of the
case;
3. A statement of the provisions of the law describing the essential elements
of the offense for which extradition is requested;
4. A statement of the provisions of law describing the punishment for the
offense;
5. A statement of the provisions of the law describing any time limit on the
prosecution or the execution of punishment for the offense;
6. Documents, statements, or other types of information specified in
paragraph 3 or paragraph 4 of said Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)
7. Such evidence as, according to the law of the Requested State, would
provide probable cause for his arrest and committal for trial if the offense had
been committed there;
8. A copy of the warrant or order of arrest issued by a judge or other
competent authority; and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that
the accompanying documents received in support of the request had been
certified by the principal diplomatic or consular officer of the Requested State
resident in the Requesting State (Embassy Note No. 052 from U. S.
Embassy; Embassy Note No. 951309 from the Department of Foreign
Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition
shall not be granted if the executive authority of the Requested State
determines that the request is politically motivated, or that the offense is a
military offense which is not punishable under non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the extradition
request and its supporting documents are sufficient and complete in form and
substance, he shall deliver the same to the Secretary of Justice, who shall
immediately designate and authorize an attorney in his office to take charge
of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated
shall then file a written petition with the proper regional trial court of the
province or city, with a prayer that the court take the extradition request
under consideration (Paragraph [2], ibid.).
The presiding judge of the regional trial court, upon receipt of the petition for
extradition, shall, as soon as practicable, issue an order summoning the
22
prospective extraditee to appear and to answer the petition on the day and
hour fixed in the order. The judge may issue a warrant of arrest if it appears
that the immediate arrest and temporary detention of the accused will best
serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to
prevent the flight of the prospective extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition
proceeding is criminal, civil, or a special proceeding. Nevertheless,
Paragraph [1], Section 9 thereof 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. During
the hearing, Section 8 of the Decree provides that the attorney having charge
of the case may, upon application by the Requesting State, represent the
latter throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision granting the
extradition and giving the reasons therefor upon a showing of the existence
of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision
is appealable to the Court of Appeals, whose decision shall be final and
immediately executory (Section 12, ibid.). The provisions of the Rules of
Court governing appeal in criminal cases in the Court of Appeals shall apply
in the aforementioned appeal, except for the required 15-day period to file
brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the
petition is extraditable based on the application of the dual criminality rule
and other conditions mentioned in Article 2 of the RP-US Extradition Treaty.
The trial court also determines whether or not the offense for which
extradition is requested is a political one (Paragraph [1], Article 3, RP-US
Extradition Treaty).1âwphi1.nêt
With the foregoing abstract of the extradition proceedings as backdrop, the
following query presents itself: What is the nature of the role of the
Department of Justice at the evaluation stage of the extradition proceedings?
A strict observance of the Extradition Law indicates that the only duty of the
Secretary of Justice is to file the extradition petition after the request and all
the supporting papers are forwarded to him by the Secretary of Foreign
Affairs. It is the latter official who is authorized to evaluate the extradition
papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the
Treaty, to determine whether or not the request is politically motivated, or
that the offense is a military offense which is not punishable under non-
military penal legislation. Ipso facto, as expressly provided in Paragraph [1],
Section 5 of the Extradition Law, the Secretary of Justice has the ministerial
duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would appear
that there was failure to abide by the provisions of Presidential Decree No.
1069. For while it is true that the extradition request was delivered to the
Department of Foreign Affairs on June 17, 1999, the following day or less
than 24 hours later, the Department of Justice received the request,
apparently without the Department of Foreign Affairs discharging its duty of
thoroughly evaluating the same and its accompanying documents. The
statement of an assistant secretary at the Department of Foreign Affairs that
his Department, in this regard, is merely acting as a post office, for which
reason he simply forwarded the request to the Department of Justice,
indicates the magnitude of the error of the Department of Foreign Affairs in
taking lightly its responsibilities. Thereafter, the Department of Justice took it
upon itself to determine the completeness of the documents and to evaluate
the same to find out whether they comply with the requirements laid down in
the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates
in this connection that although the Department of Justice had no obligation
to evaluate the extradition documents, the Department also had to go over
them so as to be able to prepare an extradition petition (tsn, August 31,
1999, pp. 24-25). Notably, it was also at this stage where private respondent
insisted on the following; (1) the right to be furnished the request and the
supporting papers; (2) the right to be heard which consists in having a
reasonable period of time to oppose the request, and to present evidence in
support of the opposition; and (3) that the evaluation proceedings be held in
abeyance pending the filing of private respondent's opposition to the request.
The two Departments seem to have misread the scope of their duties and
authority, one abdicating its powers and the other enlarging its commission.
The Department of Foreign Affairs, moreover, has, through the Solicitor
General, filed a manifestation that it is adopting the instant petition as its
own, indirectly conveying the message that if it were to evaluate the
extradition request, it would not allow private respondent to participate in the
process of evaluation.
23
Plainly then, the record cannot support the presumption of regularity that the
Department of Foreign Affairs thoroughly reviewed the extradition request
and supporting documents and that it arrived at a well-founded judgment that
the request and its annexed documents satisfy the requirements of law. The
Secretary of Justice, eminent as he is in the field of law, could not privately
review the papers all by himself. He had to officially constitute a panel of
attorneys. How then could the DFA Secretary or his undersecretary, in less
than one day, make the more authoritative determination?
The evaluation process, just like the extradition proceedings proper, belongs
to a class by itself. It is sui generis. It is not a criminal investigation, but it is
also erroneous to say that it is purely an exercise of ministerial functions. At
such stage, the executive authority has the power: (a) to make a technical
assessment of the completeness and sufficiency of the extradition papers;
(b) to outrightly deny the request if on its face and on the face of the
supporting documents the crimes indicated are not extraditable; and (c) to
make a determination whether or not the request is politically motivated, or
that the offense is a military one which is not punishable under non-military
penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph
[3], Article 3, RP-US Extradition Treaty). Hence, said process may be
characterized as an investigative or inquisitorial process in contrast to a
proceeding conducted in the exercise of an administrative body's quasi-
judicial power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and
evaluation of evidence; (b) determining facts based upon the evidence
presented; and (c) rendering an order or decision supported by the facts
proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198,
citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is
also known as examining or investigatory power, is one or the determinative
powers of an administrative body which better enables it to exercise its
quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This
power allows the administrative body to inspect the records and premises,
and investigate the activities, of persons or entities coming under its
jurisdiction (Ibid., p. 27), or to require disclosure of information by means or
accounts, records, reports, testimony of witnesses, production of documents,
or otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and analyzing
evidence, which is a useful aid or tool in an administrative agency's
performance of its rule-making or quasi-judicial functions. Notably,
investigation is indispensable to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had
occasion to rule on the functions of an investigatory body with the sole power
of investigation. It does not exercise judicial functions and its power is limited
to investigating the facts and making findings in respect thereto. The Court
laid down the test of determining whether an administrative body is
exercising judicial functions or merely investigatory functions: Adjudication
signifies the exercise of power and authority to adjudicate upon the rights
and obligations of the parties before it. Hence, if the only purpose for
investigation is to evaluate evidence submitted before it based on the facts
and circumstances presented to it, and if the agency is not authorized to
make a final pronouncement affecting the parties, then there is an absence
of judicial discretion and judgment.
The above description in Ruperto applies to an administrative body
authorized to evaluate extradition documents. The body has no power to
adjudicate in regard to the rights and obligations of both the Requesting
State and the prospective extraditee. Its only power is to determine whether
the papers comply with the requirements of the law and the treaty and,
therefore, sufficient to be the basis of an extradition petition. Such finding is
thus merely initial and not final. The body has no power to determine whether
or not the extradition should be effected. That is the role of the court. The
body's power is limited to an initial finding of whether or not the extradition
petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the
evaluation procedure is characterized by certain peculiarities. Primarily, it
sets into motion the wheels of the extradition process. Ultimately, it may
result in the deprivation of liberty of the prospective extraditee. This
deprivation can be effected at two stages: First, the provisional arrest of the
prospective extraditee pending the submission of the request. This is so
because the Treaty provides that in case of urgency, a contracting party may
request the provisional arrest of the person sought pending presentation of
the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall
be automatically discharged after 60 days if no request is submitted
(Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of
20 days after which the arrested person could be discharged (Section 20[d]).
Logically, although the Extradition Law is silent on this respect, the provisions
only mean that once a request is forwarded to the Requested State, the
24
prospective extraditee may be continuously detained, or if not, subsequently
rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will
only be discharged if no request is submitted. Practically, the purpose of this
detention is to prevent his possible flight from the Requested State. Second,
the temporary arrest of the prospective extraditee during the pendency of the
extradition petition in court (Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee's liberty as
early as during the evaluation stage. It is not only an imagined threat to his
liberty, but a very imminent one.
Because of these possible consequences, we conclude that the evaluation
process is akin to an administrative agency conducting an investigative
proceeding, the consequences of which are essentially criminal since such
technical assessment sets off or commences the procedure for, and
ultimately, the deprivation of liberty of a prospective extraditee. As described
by petitioner himself, this is a "tool" for criminal law enforcement (p. 78,
Rollo). In essence, therefore, the evaluation process partakes of the nature
of a criminal investigation. In a number of cases, we had occasion to make
available to a respondent in an administrative case or investigation certain
constitutional rights that are ordinarily available only in criminal prosecutions.
Further, as pointed out by Mr. Justice Mendoza during the oral arguments,
there are rights formerly available only at the trial stage that had been
advanced to an earlier stage in the proceedings, such as the right to counsel
and the right against self-incrimination (tsn, August 31, 1999, p. 135;
Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335;
Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held
that the right against self-incrimination under Section 17, Article III of the
1987 Constitution which is ordinarily available only in criminal prosecutions,
extends to administrative proceedings which possess a criminal or penal
aspect, such as an administrative investigation of a licensed physician who is
charged with immorality, which could result in his loss of the privilege to
practice medicine if found guilty. The Court, citing the earlier case of Cabal
vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's
license as a medical practitioner, is an even greater deprivation than
forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained
wealth against a respondent which was filed under Republic Act No. 1379, or
the Anti-Graft Law. Again, we therein ruled that since the investigation may
result in forfeiture of property, the administrative proceedings are deemed
criminal or penal, and such forfeiture partakes the nature of a penalty. There
is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where
the Court, citing American jurisprudence, laid down the test to determine
whether a proceeding is civil or criminal: If the proceeding is under a statute
such that if an indictment is presented the forfeiture can be included in the
criminal case, such proceeding is criminal in nature, although it may be civil
in form; and where it must be gathered from the statute that the action is
meant to be criminal in its nature, it cannot be considered as civil. If,
however, the proceeding does not involve the conviction of the wrongdoer for
the offense charged, the proceeding is civil in nature.
The cases mentioned above refer to an impending threat of deprivation of
one's property or property right. No less is this true, but even more so in the
case before us, involving as it does the possible deprivation of liberty, which,
based on the hierarchy of constitutionally protected rights, is placed second
only to life itself and enjoys precedence over property, for while forfeited
property can be returned or replaced, the time spent in incarceration is
irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request exposes a person
to eventual extradition to a foreign country, thus saliently exhibiting the
criminal or penal aspect of the process. In this sense, the evaluation
procedure is akin to a preliminary investigation since both procedures may
have the same result — the arrest and imprisonment of the respondent or the
person charged. Similar to the evaluation stage of extradition proceedings, a
preliminary investigation, which may result in the filing of an information
against the respondent, can possibly lead to his arrest, and to the deprivation
of his liberty.
Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992])
(p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece
of criminal legislation nor a criminal procedural statute is not well-taken.
Wright is not authority for petitioner's conclusion that his preliminary
processing is not akin to a preliminary investigation. The characterization of a
treaty in Wright was in reference to the applicability of the prohibition against
an ex post facto law. It had nothing to do with the denial of the right to notice,
information, and hearing.
25
As early as 1884, the United States Supreme Court ruled that "any legal
proceeding enforced by public authority, whether sanctioned by age or
custom, or newly devised in the discretion of the legislative power, in
furtherance of the general public good, which regards and preserved these
principles of liberty and justice, must be held to be due process of law"
(Hurtado vs. California, 110 U.S. 516). Compliance with due process
requirements cannot be deemed non-compliance with treaty commitments.
The United States and the Philippines share a mutual concern about the
suppression and punishment of crime in their respective jurisdictions. At the
same time, both States accord common due process protection to their
respective citizens.
The due process clauses in the American and Philippine Constitutions are
not only worded in exactly identical language and terminology, but more
importantly, they are alike in what their respective Supreme Courts have
expounded as the spirit with which the provisions are informed and
impressed, the elasticity in their interpretation, their dynamic and resilient
character which make them capable of meeting every modern problem, and
their having been designed from earliest time to the present to meet the
exigencies of an undefined and expanding future. The requirements of due
process are interpreted in both the United States and the Philippines as not
denying to the law the capacity for progress and improvement. Toward this
effect and in order to avoid the confines of a legal straitjacket, the courts
instead prefer to have the meaning of the due process clause "gradually
ascertained by the process of inclusion and exclusion in the course of the
decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78).
Capsulized, it refers to "the embodiment of the sporting idea of fair play"
(Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of
Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of
justice which inhere in the very idea of free government (Holden vs. Hardy,
169 U.S. 366).
Due process is comprised of two components — substantive due process
which requires the intrinsic validity of the law in interfering with the rights of
the person to his life, liberty, or property, and procedural due process which
consists of the two basic rights of notice and hearing, as well as the
guarantee of being heard by an impartial and competent tribunal (Cruz,
Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice and
hearing pervade not only in criminal and civil proceedings, but in
administrative proceedings as well. Non-observance of these rights will
invalidate the proceedings. Individuals are entitled to be notified of any
pending case affecting their interests, and upon notice, they may claim the
right to appear therein and present their side and to refute the position of the
opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative investigatory
proceeding, Section 3, Rule 112 of the Rules of Court guarantees the
respondent's basic due process rights, granting him the right to be furnished
a copy of the complaint, the affidavits, and other supporting documents, and
the right to submit counter-affidavits and other supporting documents within
ten days from receipt thereof. Moreover, the respondent shall have the right
to examine all other evidence submitted by the complainant.
These twin rights may, however, be considered dispensable in certain
instances, such as:
1. In proceeding where there is an urgent need for immediate action, like the
summary abatement of a nuisance per se (Article 704, Civil Code), the
preventive suspension of a public servant facing administrative charges
(Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy
restaurants or theaters showing obscene movies or like establishments
which are immediate threats to public health and decency, and the
cancellation of a passport of a person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the
respondent is not precluded from enjoying the right to notice and hearing at a
later time without prejudice to the person affected, such as the summary
distraint and levy of the property of a delinquent taxpayer, and the
replacement of a temporary appointee; and
3. Where the twin rights have previously been offered but the right to
exercise them had not been claimed.
Applying the above principles to the case at bar, the query may be asked:
Does the evaluation stage of the extradition proceedings fall under any of the
described situations mentioned above?
26
Let us take a brief look at the nature of American extradition proceedings
which are quite noteworthy considering that the subject treaty involves the
U.S. Government.
American jurisprudence distinguishes between interstate rendition or
extradition which is based on the Extradition Clause in the U.S. Constitution
(Art. IV, §2 cl 2), and international extradition proceedings. In interstate
rendition or extradition, the governor of the asylum state has the duty to
deliver the fugitive to the demanding state. The Extradition Clause and the
implementing statute are given a liberal construction to carry out their
manifest purpose, which is to effect the return as swiftly as possible of
persons for trial to the state in which they have been charged with crime (31A
Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the
requisition papers or the demand must be in proper form, and all the
elements or jurisdictional facts essential to the extradition must appear on the
face of the papers, such as the allegation that the person demanded was in
the demanding state at the time the offense charged was committed, and
that the person demanded is charged with the commission of the crime or
that prosecution has been begun in the demanding state before some court
or magistrate (35 C.J.S. 406-407). The extradition documents are then filed
with the governor of the asylum state, and must contain such papers and
documents prescribed by statute, which essentially include a copy of the
instrument charging the person demanded with a crime, such as an
indictment or an affidavit made before a magistrate. Statutory requirements
with respect to said charging instrument or papers are mandatory since said
papers are necessary in order to confer jurisdiction on the government of the
asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision
requiring duplicate copies of the indictment, information, affidavit, or
judgment of conviction or sentence and other instruments accompanying the
demand or requisitions be furnished and delivered to the fugitive or his
attorney is directory. However, the right being such a basic one has been
held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore,
256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d
853).
In international proceedings, extradition treaties generally provide for the
presentation to the executive authority of the Requested State of a requisition
or demand for the return of the alleged offender, and the designation of the
particular officer having authority to act in behalf of the demanding nation
(31A Am Jur 2d 815).
In petitioner's memorandum filed on September 15, 1999, he attached
thereto a letter dated September 13, 1999 from the Criminal Division of the
U.S. Department of Justice, summarizing the U.S. extradition procedures and
principles, which are basically governed by a combination of treaties (with
special reference to the RP-US Extradition Treaty), federal statutes, and
judicial decisions, to wit:
1. All requests for extradition are transmitted through the diplomatic channel.
In urgent cases, requests for the provincial arrest of an individual may be
made directly by the Philippine Department of Justice to the U.S. Department
of Justice, and vice-versa. In the event of a provisional arrest, a formal
request for extradition is transmitted subsequently through the diplomatic
channel.
2. The Department of State forwards the incoming Philippine extradition
request to the Department of Justice. Before doing so, the Department of
State prepares a declaration confirming that a formal request has been
made, that the treaty is in full force and effect, that under Article 17 thereof
the parties provide reciprocal legal representation in extradition proceedings,
that the offenses are covered as extraditable offenses under Article 2 thereof,
and that the documents have been authenticated in accordance with the
federal statute that ensures admissibility at any subsequent extradition
hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the arrest
of the prospective extraditee (18 U.S.C. §3184). Said judge or magistrate is
authorized to hold a hearing to consider the evidence offered in support of
the extradition request (Ibid.)
4. At the hearing, the court must determine whether the person arrested is
extraditable to the foreign country. The court must also determine that (a) it
has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b)
the defendant is being sought for offenses for which the applicable treaty
permits extradition; and (c) there is probable cause to believe that the
defendant is the person sought and that he committed the offenses charged
(Ibid.)
5. The judge or magistrate judge is vested with jurisdiction to certify
extraditability after having received a "complaint made under oath, charging
any person found within his jurisdiction" with having committed any of the
crimes provided for by the governing treaty in the country requesting
27
extradition (Ibid.) [In this regard, it is noted that a long line of American
decisions pronounce that international extradition proceedings partake of the
character of a preliminary examination before a committing magistrate, rather
than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d
826).]
6. If the court decides that the elements necessary for extradition are
present, it incorporates its determinations in factual findings and conclusions
of law and certifies the person's extraditability. The court then forwards this
certification of extraditability to the Department of State for disposition by the
Secretary of State. The ultimate decision whether to surrender an individual
rests with the Secretary of State (18 U.S.C. §3186).
7. The subject of an extradition request may not litigate questions concerning
the motives of the requesting government in seeking his extradition.
However, a person facing extradition may present whatever information he
deems relevant to the Secretary of State, who makes the final determination
whether to surrender an individual to the foreign government concerned.
From the foregoing, it may be observed that in the United States, extradition
begins and ends with one entity — the Department of State — which has the
power to evaluate the request and the extradition documents in the
beginning, and, in the person of the Secretary of State, the power to act or
not to act on the court's determination of extraditability. In the Philippine
setting, it is the Department of Foreign Affairs which should make the initial
evaluation of the request, and having satisfied itself on the points earlier
mentioned (see pp. 10-12), then forwards the request to the Department of
Justice for the preparation and filing of the petition for extradition. Sadly,
however, the Department of Foreign Affairs, in the instant case, perfunctorily
turned over the request to the Department of Justice which has taken over
the task of evaluating the request as well as thereafter, if so warranted,
preparing, filing, and prosecuting the petition for extradition.
Private respondent asks what prejudice will be caused to the U.S.
Government should the person sought to be extradited be given due process
rights by the Philippines in the evaluation stage. He emphasizes that
petitioner's primary concern is the possible delay in the evaluation process.
We agree with private respondent's citation of an American Supreme Court
ruling:
The establishment of prompt efficacious procedures to achieve legitimate
state ends is a proper state interest worthy of cognizance in constitutional
adjudication. But the Constitution recognizes higher values than speed and
efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the
Due Process Clause, in particular, that they were designed to protect the
fragile values of a vulnerable citizenry from the overbearing concern for
efficiency and efficacy that may characterize praiseworthy government
officials no less, and perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the Philippine
Government that no right — that of liberty — secured not only by the Bills of
Rights of the Philippines Constitution but of the United States as well, is
sacrificed at the altar of expediency.
(pp. 40-41, Private Respondent's Memorandum.)
In the Philippine context, this Court's ruling is invoked:
One of the basic principles of the democratic system is that where the rights
of the individual are concerned, the end does not justify the means. It is not
enough that there be a valid objective; it is also necessary that the means
employed to pursue it be in keeping with the Constitution. Mere expediency
will not excuse constitutional shortcuts. There is no question that not even
the strongest moral conviction or the most urgent public need, subject only to
a few notable exceptions, will excuse the bypassing of an individual's rights.
It is no exaggeration to say that a person invoking a right guaranteed under
Article III of the Constitution is a majority of one even as against the rest of
the nation who would deny him that right (Association of Small Landowners
in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343,
375-376 [1989]).
There can be no dispute over petitioner's argument that extradition is a tool
of criminal law enforcement. To be effective, requests for extradition or the
surrender of accused or convicted persons must be processed expeditiously.
Nevertheless, accelerated or fast-tracked proceedings and adherence to fair
procedures are, however, not always incompatible. They do not always clash
in discord. Summary does not mean precipitous haste. It does not carry a
disregard of the basic principles inherent in "ordered liberty."
28
Is there really an urgent need for immediate action at the evaluation stage?
At that point, there is no extraditee yet in the strict sense of the word.
Extradition may or may not occur. In interstate extradition, the governor of
the asylum state may not, in the absence of mandatory statute, be compelled
to act favorably (37 C.J.S. 387) since after a close evaluation of the
extradition papers, he may hold that federal and statutory requirements,
which are significantly jurisdictional, have not been met (31 Am Jur 2d 819).
Similarly, under an extradition treaty, the executive authority of the requested
state has the power to deny the behest from the requesting state.
Accordingly, if after a careful examination of the extradition documents the
Secretary of Foreign Affairs finds that the request fails to meet the
requirements of the law and the treaty, he shall not forward the request to the
Department of Justice for the filing of the extradition petition since non-
compliance with the aforesaid requirements will not vest our government with
jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice exerted
notable efforts in assuring compliance with the requirements of the law and
the treaty since it even informed the U.S. Government of certain problems in
the extradition papers (such as those that are in Spanish and without the
official English translation, and those that are not properly authenticated). In
fact, petitioner even admits that consultation meetings are still supposed to
take place between the lawyers in his Department and those from the U.S.
Justice Department. With the meticulous nature of the evaluation, which
cannot just be completed in an abbreviated period of time due to its
intricacies, how then can we say that it is a proceeding that urgently
necessitates immediate and prompt action where notice and hearing can be
dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of
administrative action. Is private respondent precluded from enjoying the right
to notice and hearing at a later time without prejudice to him? Here lies the
peculiarity and deviant characteristic of the evaluation procedure. On one
hand there is yet no extraditee, but ironically on the other, it results in an
administrative if adverse to the person involved, may cause his immediate
incarceration. The grant of the request shall lead to the filing of the
extradition petition in court. The "accused" (as Section 2[c] of Presidential
Decree No. 1069 calls him), faces the threat of arrest, not only after the
extradition petition is filed in court, but even during the evaluation proceeding
itself by virtue of the provisional arrest allowed under the treaty and the
implementing law. The prejudice to the "accused" is thus blatant and
manifest.
Plainly, the notice and hearing requirements of administrative due process
cannot be dispensed with and shelved aside.
Apart from the due process clause of the Constitution, private respondent
likewise invokes Section 7 of Article III which reads:
Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
The above provision guarantees political rights which are available to citizens
of the Philippines, namely: (1) the right to information on matters of public
concern, and (2) the corollary right of access to official records documents.
The general right guaranteed by said provision is the right to information on
matters of public concern. In its implementation, the right of access to official
records is likewise conferred. These cognate or related rights are "subject to
limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A
Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it
is an informed and critical public opinion which alone can protect the values
of democratic government (Ibid.).
Petitioner argues that the matters covered by private respondent's letter-
request dated July 1, 1999 do not fall under the guarantee of the foregoing
provision since the matters contained in the documents requested are not of
public concern. On the other hand, private respondent argues that the
distinction between matters vested with public interest and matters which are
of purely private interest only becomes material when a third person, who is
not directly affected by the matters requested, invokes the right to
information. However, if the person invoking the right is the one directly
affected thereby, his right to information becomes absolute.
The concept of matters of public concerns escapes exact definition. Strictly
speaking, every act of a public officer in the conduct of the governmental
process is a matter of public concern (Bernas, The 1987 Constitution of the
Republic of the Philippines, 1996 ed., p. 336). This concept embraces a
broad spectrum of subjects which the public may want to know, either
29
because these directly affect their lives or simply because such matters
arouse the interest of an ordinary citizen (Legaspi v. Civil Service
Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the
people and any citizen has "standing".
When the individual himself is involved in official government action because
said action has a direct bearing on his life, and may either cause him some
kind of deprivation or injury, he actually invokes the basic right to be notified
under Section 1 of the Bill of Rights and not exactly the right to information
on matters of public concern. As to an accused in a criminal proceeding, he
invokes Section 14, particularly the right to be informed of the nature and
cause of the accusation against him.
The right to information is implemented by the right of access to information
within the control of the government (Bernas, The 1987 Constitution of the
Republic of the Philippines, 1996 ed., p. 337). Such information may be
contained in official records, and in documents and papers pertaining to
official acts, transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to
official government action from the U.S. Government. No official action from
our country has yet been taken. Moreover, the papers have some relation to
matters of foreign relations with the U.S. Government. Consequently, if a
third party invokes this constitutional provision, stating that the extradition
papers are matters of public concern since they may result in the extradition
of a Filipino, we are afraid that the balance must be tilted, at such particular
time, in favor of the interests necessary for the proper functioning of the
government. During the evaluation procedure, no official governmental action
of our own government has as yet been done; hence the invocation of the
right is premature. Later, and in contrast, records of the extradition hearing
would already fall under matters of public concern, because our government
by then shall have already made an official decision to grant the extradition
request. The extradition of a fellow Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the
instant controversy: Would private respondent's entitlement to notice and
hearing during the evaluation stage of the proceedings constitute a breach of
the legal duties of the Philippine Government under the RP-Extradition
Treaty? Assuming the answer is in the affirmative, is there really a conflict
between the treaty and the due process clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time to
pass upon the constitutionality of the provisions of the RP-US Extradition
Treaty nor the Extradition Law implementing the same. We limit ourselves
only to the effect of the grant of the basic rights of notice and hearing to
private respondent on foreign relations.
The rule of pacta sunt servanda, one of the oldest and most fundamental
maxims of international law, requires the parties to a treaty to keep their
agreement therein in good faith. The observance of our country's legal duties
under a treaty is also compelled by Section 2, Article II of the Constitution
which provides that "[t]he Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of international law
as part of the law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with nations." Under the doctrine of
incorporation, rules of international law form part of the law of the and land
no further legislative action is needed to make such rules applicable in the
domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or
local courts) are confronted with situations in which there appears to be a
conflict between a rule of international law and the provisions of the
constitution or statute of the local state. Efforts should first be exerted to
harmonize them, so as to give effect to both since it is to be presumed that
municipal law was enacted with proper regard for the generally accepted
principles of international law in observance of the observance of the
Incorporation Clause in the above-cited constitutional provision (Cruz,
Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the
conflict is irreconcilable and a choice has to be made between a rule of
international law and municipal law, jurisprudence dictates that municipal law
should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil.
1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2
SCRA 984 [1961]) for the reason that such courts are organs of municipal
law and are accordingly bound by it in all circumstances (Salonga & Yap, op.
cit., p. 13). The fact that international law has been made part of the law of
the land does not pertain to or imply the primacy of international law over
national or municipal law in the municipal sphere. The doctrine of
incorporation, as applied in most countries, decrees that rules of international
law are given equal standing with, but are not superior to, national legislative
enactments. Accordingly, the principle lex posterior derogat priori takes effect
— a treaty may repeal a statute and a statute may repeal a treaty. In states
where the constitution is the highest law of the land, such as the Republic of
30
the Philippines, both statutes and treaties may be invalidated if they are in
conflict with the constitution (Ibid.).
In the case at bar, is there really a conflict between international law and
municipal or national law? En contrario, these two components of the law of
the land are not pined against each other. There is no occasion to choose
which of the two should be upheld. Instead, we see a void in the provisions of
the RP-US Extradition Treaty, as implemented by Presidential Decree No.
1069, as regards the basic due process rights of a prospective extraditee at
the evaluation stage of extradition proceedings. From the procedures earlier
abstracted, after the filing of the extradition petition and during the judicial
determination of the propriety of extradition, the rights of notice and hearing
are clearly granted to the prospective extraditee. However, prior thereto, the
law is silent as to these rights. Reference to the U.S. extradition procedures
also manifests this silence.
Petitioner interprets this silence as unavailability of these rights.
Consequently, he describes the evaluation procedure as an "ex parte
technical assessment" of the sufficiency of the extradition request and the
supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply the rules of fair
play. An application of the basic twin due process rights of notice and hearing
will not go against the treaty or the implementing law. Neither the Treaty nor
the Extradition Law precludes these rights from a prospective extraditee.
Similarly, American jurisprudence and procedures on extradition pose no
proscription. In fact, in interstate extradition proceedings as explained above,
the prospective extraditee may even request for copies of the extradition
documents from the governor of the asylum state, and if he does, his right to
be supplied the same becomes a demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine
Government to prevent unauthorized disclosure of confidential information.
Hence, the secrecy surrounding the action of the Department of Justice
Panel of Attorneys. The confidentiality argument is, however, overturned by
petitioner's revelation that everything it refuses to make available at this
stage would be obtainable during trial. The Department of Justice states that
the U.S. District Court concerned has authorized the disclosure of certain
grand jury information. If the information is truly confidential, the veil of
secrecy cannot be lifted at any stage of the extradition proceedings. Not even
during trial.
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as
well as American jurisprudence and procedures on extradition, for any
prohibition against the conferment of the two basic due process rights of
notice and hearing during the evaluation stage of the extradition proceedings.
We have to consider similar situations in jurisprudence for an application by
analogy.
Earlier, we stated that there are similarities between the evaluation process
and a preliminary investigation since both procedures may result in the arrest
of the respondent or the prospective extraditee. In the evaluation process, a
provisional arrest is even allowed by the Treaty and the Extradition Law
(Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069).
Following petitioner's theory, because there is no provision of its availability,
does this imply that for a period of time, the privilege of the writ of habeas
corpus is suspended, despite Section 15, Article III of the Constitution which
states that "[t]he privilege of the writ or habeas corpus shall not be
suspended except in cases of invasion or rebellion when the public safety
requires it"? Petitioner's theory would also infer that bail is not available
during the arrest of the prospective extraditee when the extradition petition
has already been filed in court since Presidential Decree No. 1069 does not
provide therefor, notwithstanding Section 13, Article III of the Constitution
which provides that "[a]ll 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. .
." Can petitioner validly argue that since these contraventions are by virtue of
a treaty and hence affecting foreign relations, the aforestated guarantees in
the Bill of Rights could thus be subservient thereto?
The basic principles of administrative law instruct us that "the essence of due
process in administrative proceeding is an opportunity to explain one's side
or an opportunity to seek reconsideration of the actions or ruling complained
of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457
[1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276
SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997];
31
Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due
process refers to the method or manner by which the law is enforced
(Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31
[1997]). This Court will not tolerate the least disregard of constitutional
guarantees in the enforcement of a law or treaty. Petitioner's fears that the
Requesting State may have valid objections to the Requested State's non-
performance of its commitments under the Extradition Treaty are
insubstantial and should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit
ourselves to the four corners of Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance
System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National
Police Commission (271 SCRA 447 [1997]) where we ruled that in summary
proceedings under Presidential Decree No. 807 (Providing for the
Organization of the Civil Service Commission in Accordance with Provisions
of the Constitution, Prescribing its Powers and Functions and for Other
Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for
Members of the Integrated National Police who may be charged for Service-
Connected Offenses and Improving the Disciplinary System in the Integrated
National Police, Appropriating Funds Therefor and for other purposes), as
amended by Presidential Decree No. 1707, although summary dismissals
may be effected without the necessity of a formal investigation, the minimum
requirements of due process still operate. As held in GSIS vs. Court of
Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is
that an employee may be removed or dismissed even without formal
investigation, in certain instances. It is equally clear to us that an employee
must be informed of the charges preferred against him, and that the normal
way by which the employee is so informed is by furnishing him with a copy of
the charges against him. This is a basic procedural requirement that a statute
cannot dispense with and still remain consistent with the constitutional
provision on due process. The second minimum requirement is that the
employee charged with some misfeasance or malfeasance must have a
reasonable opportunity to present his side of the matter, that is to say, his
defenses against the charges levelled against him and to present evidence in
support of his defenses. . . .
(at p. 671)

Said summary dismissal proceedings are also non-litigious in nature, yet we
upheld the due process rights of the respondent.
In the case at bar, private respondent does not only face a clear and present
danger of loss of property or employment, but of liberty itself, which may
eventually lead to his forcible banishment to a foreign land. The convergence
of petitioner's favorable action on the extradition request and the deprivation
of private respondent's liberty is easily comprehensible.
We have ruled time and again that this Court's equity jurisdiction, which is
aptly described as "justice outside legality," may be availed of only in the
absence of, and never against, statutory law or judicial pronouncements
(Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-
Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue
in the case at bar does not even call for "justice outside legality," since
private respondent's due process rights, although not guaranteed by statute
or by treaty, are protected by constitutional guarantees. We would not be true
to the organic law of the land if we choose strict construction over guarantees
against the deprivation of liberty. That would not be in keeping with the
principles of democracy on which our Constitution is premised.
Verily, as one traverses treacherous waters of conflicting and opposing
currents of liberty and government authority, he must ever hold the oar of
freedom in the stronger arm, lest an errant and wayward course be laid.
WHEREFORE, in view of the foregoing premises, the instant petition is
hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private
respondent copies of the extradition request and its supporting papers, and
to grant him a reasonable period within which to file his comment with
supporting evidence. The incidents in Civil Case No. 99-94684 having been
rendered moot and academic by this decision, the same is hereby ordered
dismissed.
SO ORDERED.
Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., I join Mr. Justice Puno in his dissent.
Puno, J., please see dissent.
Vitug, J., see separate opinion.
Kapunan, J., see separate concurring opinion.
32
Panganiban, J., please see my dissenting opinion.
Mendoza, J., I join the dissents of Puno and Panganiban, JJ.
Quisumbing, J., with concurring opinion.
Pardo, J., I join J. Puno & J. Panganiban.
Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban.
Ynares-Santiago, J., please see separate concurring opinion.
Separate Opinions
VITUG, J., separate opinion;
The only real issue before the Court, I would take it, is whether or not private
respondent can validly ask for copies of pertinent documents while the
application for extradition against him is still undergoing process by the
Executive Department.
There is, I agree with the majority, a right of access to such extradition
documents conformably with the provisions of Article III, Section 7, of the
Philippine Constitution.1 The constitutional right to free access to information
of public concern is circumscribed only by the fact that the desired
information is not among the species exempted by law from the operation of
the constitutional guaranty and that the exercise of the right conforms with
such reasonable conditions as may be prescribed by law.
There is no hornbook rule to determine whether or not an information is of
public concern. The term "public concern" eludes exactitude, and it can
easily embrace a broad spectrum of matters which the public may want to
know either because the subject thereof can affect their lives or simply
because it arouses concern.2
I am not convinced that there is something so viciously wrong with, as to
deny, the request of private respondent to be furnished with copies of the
extradition documents.
I add. The constitutional right to due process secures to everyone an
opportunity to be heard, presupposing foreknowledge of what he may be up
against, and to submit any evidence that he may wish to proffer in an effort to
clear himself. This right is two-pronged — substantive and procedural due
process — founded, in the first instance, on Constitutional or statutory
provisions, and in the second instance, on accepted rules of procedure.3
Substantive due process looks into the extrinsic and intrinsic validity of the
law that figures to interfere with the right of a person to his life, liberty and
property. Procedural due process — the more litigated of the two — focuses
on the rules that are established in order to ensure meaningful adjudication in
the enforcement and implementation of the law. Like "public concern," the
term due process does not admit of any restrictive definition. Justice
Frankfurter has viewed this flexible concept, aptly I believe, as being ". . .
compounded by history, reason, the past course of decisions, and stout
confidence in the democratic faith."4 The framers of our own Constitution, it
would seem, have deliberately intended, to make it malleable to the ever-
changing milieu of society. Hitherto, it is dynamic and resilient, adaptable to
every situation calling for its application that makes it appropriate to accept
an enlarged concept of the term as and when there is a possibility that the
right of an individual to life, liberty and property might be diffused.5 Verily,
whenever there is an imminent threat to the life, liberty or property of any
person in any proceeding conducted by or under the auspices of the State,
his right to due process of law, when demanded, must not be ignored.
A danger to the liberty of the extraditee, the private respondent, is real.
Article 9 of the Extradition Treaty between the Government of the Republic of
the Philippines and the Government of the United States of America provides
that in case of urgency, a Contracting Party may request the provisional
arrest of the person prior to the presentation of the request for extradition. I
see implicit in this provision that even after the request for extradition is made
and before a petition for extradition is filed with the courts, the possibility of
an arrest being made on the basis of a mere evaluation by the Executive on
the request for extradition by the foreign State cannot totally be discounted.
The conclusion reached by the majority, I hasten to add, does not mean that
the Executive Department should be impeded in its evaluation of the
extradition request. The right of the extraditee to be furnished, upon request,
with a copy of the relevant documents and to file his comment thereon is not
necessarily anathema to the proceedings duly mandated by the treaty to be
made.
I vote to deny the petition.
KAPUNAN, J., separate concurring opinion;
I vote to dismiss the petition, both on technical and substantial grounds.
33
The petition in the case at bar raises one and only issue, which is the validity
of the Temporary Restraining Order (TRO) issued by respondent Judge
Ralph C. Lantion on August 9, 1999 in Civil Case No. 99-94684. The TRO
directed respondents in said case to:
. . . maintain the status quo by refraining from committing the acts
complained of; from conducting further proceedings in connection with the
request of the United States Government for the extradition of the petitioner;
from filing the corresponding Petition with the Regional Trial Court; and from
performing any act directed to the extradition of the petitioner to the United
States, for a period of twenty days from the service on respondents of this
Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.1
(Emphasis ours.)
The petition itself categorically states that "(t)he issue sought to be presented
and litigated here is solely-the validity of the TRO."2
Notably, there is no allegation in the petition that respondent Judge is without
jurisdiction to hear the case below or that he has exceeded his jurisdiction in
hearing the same. Nor is there any other act, ruling, order, or decision, apart
from the TRO already mentioned, of respondent Judge that is being
challenged in the petition before us.
Since, as alleged in the petition, a copy of the TRO was served on
respondents below on August 10, 1999, the TRO ceased to be effective on
August 30, 1999; consequently, the instant petition has become moot and
academic. This Court does not exercise jurisdiction over cases which are
moot and academic or those not ripe for judicial consideration.3
Assuming that the present case has not become moot and academic, still, it
should be dismissed for lack of merit.
The substantive issues raised in this case are: (a) whether a person whose
extradition is sought by a foreign state has due process rights under Section
2, Article III of the 1997 Constitution before the Department of Justice as the
request for extradition is being evaluated, or whether due process rights
maybe invoked only upon the filing of a petition for extradition before a
regional trial court; and (b) whether or not private respondent has a right of
access to extradition documents under Section 7, Article III of the 1997
Constitution.
Petitioner contends that due process rights such as the right to be informed
of the basis of the request for extradition and to have an opportunity to
controvert are not provided in the extradition treaty or in P.D. 1069 and
therefore does not exist in this stage of the proceedings. Further, he argues
that the documents sought to be furnished to private respondent only involve
private concerns, and not matters of public concern to which the people have
a constitutional right to access.
While the evaluation process conducted by the Department of Justice is not
exactly a preliminary investigation of criminal cases, it is akin to a preliminary
investigation because it involves the basic constitutional rights of the person
sought to be extradited. A person ordered extradited is arrested, forcibly
taken from his house, separated from his family and delivered to a foreign
state. His rights of abode, to privacy, liberty and pursuit of happiness are
taken away from him — a fate as harsh and cruel as a conviction of a
criminal offense. For this reason, he is entitled to have access to the
evidence against him and the right to controvert them.
While the extradition treaty and P.D. 1069 do not provide for a preliminary
investigation, neither does either prohibit it. The right to due process is a
universal basic right which is deemed written into our laws and treaties with
foreign countries.
Like a preliminary investigation, the evaluation by the Department of Justice
of the extradition request and its accompanying documents is to establish
probable cause and to secure the innocent against hasty, malicious and
oppressive prosecution.
In this connection, it should be stressed that the evaluation procedure of the
extradition request and its accompanying documents by the Department of
Justice cannot be characterized as a mere "ex-parte technical assessment of
the sufficiency" thereof. The function and responsibilities of the Department
of Justice in evaluating the extradition papers involve the exercise of
judgment. They involve a determination whether the request for extradition
conforms fully to the requirements of the extradition treaty and whether the
offense is extraditable. These include, among others, whether the offense for
which extradition is requested is a political or military offense (Article 3);
whether the documents and other informations required under Article 7(2)
have been provided (Article 7); and whether the extraditable offense is
punishable under the laws of both contracting parties by deprivation of liberty
for a period of more than one year (Article 2). Consequently, to arrive at a
34
correct judgment, the parties involved are entitled to be heard if the
requirements of due process and equal protection are to be observed.
With respect to petitioner's claim that private respondent has no right to
demand access to the documents relating to the request for extradition,
suffice it to say, that any document used in a proceeding that would
jeopardize a person's constitutional rights is matter of public concern. As
Martin Luther King said, "injustice anywhere is a threat to justice
everywhere," so any violation of one's rights guaranteed by the Bill of Rights
is everybody's concern because they, one way or another, directly or
indirectly, affect the rights of life and liberty of all the citizens as a whole.
Due process rights in a preliminary investigation is now an established
principle. The respondent has a right of access to all of the evidence. He has
the right to submit controverting evidence. The prosecuting official who
conducts the preliminary investigation is required to be neutral, objective, and
impartial in resolving the issue of probable cause. I see no reason why the
same rights may not be accorded a person sought to be extradited at the
stage where the Department of Justice evaluates whether a petition for
extradition would be filed before a regional trial court. If denied such rights,
not only denial of due process rights but of equal protection may be raised.
It is suggested that after a petition for extradition is filed with a regional trial
court, the person sought to be extradited may exercise all due process rights.
He may then have access to all the records on the basis of which the request
for extradition has been made. He may controvert that evidence and raise all
defenses he may consider appropriate. That, it is urged, meets the due
process requirement.
But why must he wait until the petition for extradition is filed? As succinctly
expressed, if the right to notice and hearing is to serve its full purpose, then,
it is clear that it must be granted at a time when the deprivation can still be
prevented.4 Like the filing of an information in a criminal case, the mere filing
of a petition for extradition causes immediate impairment of the liberty of the
person sought to be extradited and a substantial curtailment of other rights.
His arrest may be immediately ordered by the regional trial court. He would
be compelled to face an open and public trial. He will be constrained to seek
the assistance of counsel and incur other expenses of litigation. The public
eye would be directed at him with all the concomitant intrusions to his right to
privacy. Where the liberty of a person is at risk, and extradition strikes at the
very core of liberty, invocation of due process rights can never be too early.

QUISUMBING, J., concurring opinion;
As I concur in the result reached by the ponencia of Justice Melo, may I just
add my modest observations.
The human rights of person, whether citizen or alien, and the rights of the
accused guaranteed in our Constitution should take precedence over treaty
rights claimed by a contracting state. Stated otherwise, the constitutionally
mandated duties of our government to the individual deserve preferential
consideration when they collide with its treaty obligations to the government
of another state. This is so although we recognize treaties as a source of
binding obligations under generally accepted principles of international law
incorporated in our Constitution as part of the law of the land.
For this primordial reason, I vote to DENY the petition.
Moreover, considering that the Extradition Treaty between the USA and
Philippines appears mute on the specific issue before us, the Court — in the
exercise of its judicial power to find and state what the law is — has this rare
opportunity of setting a precedent that enhances respect for human rights
and strengthens due process of law.
As both majority and dissenting colleagues in the Court will recognize,
American authorities follow two tracks in extradition proceedings: (1) the
interstate practice where, pursuant to statute, the state Executive upon
demand furnishes the would be extraditee or counsel copies of pertinent
documents as well as the request for extradition; and (2) the international
practice where the Executive department need not initially grant notice and
hearing at all. Rules of reciprocity and comity, however, should not bar us
from applying internationally now what appears the more reasonable and
humane procedure, that is, the interstate practice among Americans
themselves. For in this case the American people should be among the most
interested parties.
Truly, what private respondent is asking our Executive department (notice,
copies of documents, and the opportunity to protect himself at the earliest
time against probable peril) does not, in my view, violate our Extradition
Treaty with the USA. His request if granted augurs well for transparency in
35
interstate or intergovernmental relations rather than secrecy which smacks of
medieval diplomacy and the inquisition discredited long ago.
That private respondent is a Filipino citizen is not decisive of the issue here,
although it is obviously pertinent. Even if he were a resident alien (other than
American perhaps), he is, in my view, entitled to our full protection against
the hazards of extradition (or deportation, similarly) from the very start. More
so because, looking at the facts adduced at the hearing and on the record of
this case, the charges against him involve or are co-mingled with, if not
rooted in, certain offenses of a political nature or motivation such as the ones
involving alleged financial contributions to a major American political party. If
so, long established is the principle that extradition could not be utilized for
political offenses or politically motivated charges.
There may, of course, be other charges against private respondent in the
USA. But then they are, in my view, already tainted there with political color
due to the highly charged partisan campaign atmosphere now prevailing.
That private respondent's cases will be exploited as political fodder there is
not far-fetched, hence the need here for cautious but comprehensive
deliberation on the matter at bar. For, above all, it is not only a Treaty
provision we are construing; it is about constitutional and human rights we
are most concerned.
YNARES-SANTIAGO, J., concurring opinion;
I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive
analysis of a citizen's right to be given what is due to him. I join in his
exposition of this Court's constitutional duty to strike the correct balance
between overwhelming Government power and the protection of individual
rights where only one person is involved.
However, I am constrained to write this short concurrence if only to pose the
question of why there should be any debate at all on a plea for protection of
one's liberty which, if granted, will not result in any meaningful impediment of
thwarting any state policy and objectives.
I see no reason why respondent Mark Jimenez, or other citizens not as
controversial or talked about, should first be exposed to the indignity,
expense, and anxiety of a public denunciation in court before he may be
informed of what the contracting states in an extradition treaty have against
him. There is no question that everything which respondent Jimenez now
requests will be given to him during trial. Mr. Jimenez is only petitioning that,
at this stage, he should be informed why he may be deported from his own
country.
I see no ill effects which would arise if the extradition request and supporting
documents are shown to him now, instead of later.
Petitioner Secretary of Justice states that his action on the extradition
request and its supporting documents will merely determine whether or not
the Philippines is complying with its treaty obligations. He adds that,
therefore, the constitutional rights of an accused in all criminal prosecutions
are not available to the private respondent.
The July 13, 1999 reply-letter from petitioner states the reasons why he is
denying respondent Jimenez's requests. In short, the reasons are:
1. In evaluating the documents, the Department merely determines whether
the procedures and requirements under the relevant law and treaty have
been complied with by the Requesting Government. The constitutional rights
of the accused in all criminal prosecutions are, therefore, not available.
2. The United States Government has requested the Philippine Government
to prevent unauthorized disclosure of certain grand jury information.
3. The petitioner cannot hold in abeyance proceedings in connection with an
extradition request. For extradition to be an effective tool of criminal law
enforcement, requests for surrender of accused or convicted persons must
be processed expeditiously.
I respectfully submit that any apprehensions in the Court arising from a
denial of the petition — "breach of an international obligation, rupture of
states relations, forfeiture of confidence, national embarrassment, and a
plethora of other equally undesirable consequences" — are more illusory
than real. Our country is not denying the extradition of a person who must be
extradited. Not one provision of the extradition treaty is violated. I cannot
imagine the United States taking issue over what, to it, would be a minor
concession, perhaps a slight delay, accorded in the name of human rights.
On the other hand, the issue is fundamental in the Philippines. A citizen is
invoking the protection, in the context of a treaty obligation, of rights
expressly guaranteed by the Philippine Constitution.
36
Until proved to be a valid subject for extradition, a person is presumed
innocent or not covered by the sanctions of either criminal law or
international treaty. At any stage where a still prospective extraditee only
seeks to know so that he can prepare and prove that he should not be
extradited, there should be no conflict over the extension to him of
constitutional protections guaranteed to aliens and citizens alike.
Petitioner cites as a reason for the denial of respondent's requests, Article 7
of the Treaty. Article 7 enumerates the required documents and establishes
the procedures under which the documents shall be submitted and admitted
as evidence. There is no specific provision on how that Secretary of Foreign
Affairs should conduct his evaluation. The Secretary of Justice is not even in
the picture at this stage. Under petitioner's theory, silence in the treaty over a
citizen's rights during the evaluation stage is interpreted as deliberate
exclusion by the contracting states of the right to know. Silence is interpreted
as the exclusion of the right to a preliminary examination or preliminary
investigation provided by the laws of either one of the two states.
The right to be informed of charges which may lead to court proceedings and
result in a deprivation of liberty is ordinarily routine. It is readily available to
one against whom the state's coercive power has already been focused. I fail
to see how silence can be interpreted as exclusion. The treaty is silent
because at this stage, the preliminary procedure is still an internal matter.
And when a law or treaty is silent, it means a right or privilege may be
granted. It is not the other way around.
The second reason alleging the need for secrecy and confidentiality is even
less convincing. The explanation of petitioner is self-contradictory. On one
hand, petitioner asserts that the United States Government requested the
Philippine Government to prevent unauthorized disclosure of certain
information. On the other hand, petitioner declares that the United States has
already secured orders from concerned District Courts authorizing the
disclosure of the same grand jury information to the Philippine Government
and its law enforcement personnel.
Official permission has been given. The United States has no cause to
complain about the disclosure of information furnished to the Philippines.
Moreover, how can grand jury information and documents be considered
confidential if they are going to be introduced as evidence in adversely
proceedings before a trial court? The only issue is whether or not Mr.
Jimenez should be extradited. His innocence or guilt of any crime will be
determined in an American court. It is there where prosecution strategies will
be essential. If the Contracting States believed in a total non-divulging of
information prior to court hearings, they would have so provided in the
extradition treaty. A positive provision making certain rights unavailable
cannot be implied from silence.
I cannot believe that the United States and the Philippines with identical
constitutional provisions on due process and basic rights should sustain such
a myopic view in a situation where the grant of a right would not result in any
serious setbacks to criminal law enforcement.
It is obvious that any prospective extraditee wants to know if his identity as
the person indicated has been established. Considering the penchant of
Asians to adopt American names when in America, the issue of whether or
not the prospective extraditee truly is the person charged in the United States
becomes a valid question. It is not only identity of the person which is
involved. The crimes must also be unmistakably identified and their essential
elements clearly stated.
There are other preliminary matters in which respondent is interested. I see
nothing in our laws or in the Treaty which prohibits the prospective extraditee
from knowing until after the start of trial whether or not the extradition treaty
applies to him.
Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA
241 (1941); and Salonga vs. Hon. Paño, 134 SCRA 438 (1985), the purpose
of a preliminary evaluation is to secure an innocent person against hasty,
faulty and, therefore, oppressive proceedings; to protect him from an open
and extensively publicized accusation of crimes; to spare him the trouble,
expense, and anxiety of a public trial; and also to protect the state from
useless and expensive trails. Even if the purpose is only to determine
whether or not the respondent is a proper subject for extradition, he is
nonetheless entitled to the guarantees of fairness and freedom accorded to
those charged with ordinary crimes in the Philippines.
The third reason given by petitioner is the avoidance of delay. Petitioner
views the request to be informed as part of undesirable delaying tactics. This
is most unfortunate. Any request for extradition must be viewed objectively
37
and impartially without any predisposition to granting it and, therefore,
hastening the extradition process.
In the first place, any assistance which the evaluating official may get from
the participation of respondent may well point out deficiencies and
insufficiencies in the extradition documents. It would incur greater delays if
these are discovered only during court trial. On the other hand, if, from
respondent's participation, the evaluating official discovers a case of
mistaken identity, insufficient pleadings, inadequate complaints, or any
ruinous shortcoming, there would be no delays during trial. An unnecessary
trial with all its complications would be avoided.
The right to be informed is related to the constitutional right to a speedy trial.
The constitutional guarantee extends to the speedy disposition of cases
before all quasi-judicial and administrative bodies (Constitution, Art. III, Sec.
16). Speedy disposition, however, does not mean the deliberate exclusion of
the defendant or respondent from the proceedings. As this Court rules in
Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial,
means one free from vexatious, capricious and oppressive delays, its
salutary objective being to assure that an innocent person may be free from
the anxiety and expense of a court litigation or, if otherwise, of having his
guilt (in this case, his being extradited) determined within the shortest
possible time compatible with the presentation and consideration of
whatsoever legitimate defense he may interpose."
The right to be informed and the right to a preliminary hearing are not merely
for respondent. They also serve the interests of the State.1âwphi1.nêt
In closing, I maintain that the paramount consideration of guaranteeing the
constitutional rights of individual respondent override the concerns of
petitioner. There should be no hurried or indifferent effort to routinely comply
with all requests for extradition. I understand that this is truer in the United
States than in other countries. Proposed extraditees are given every legal
protection available from the American justice system before they are
extradited. We serve under a government of limited powers and inalienable
rights. Hence, this concurrence.
PUNO, J., dissenting opinion;
If the case at bar was strictly a criminal case which involves alone the right of
an accused to due process, I would have co-signed the ponencia of our
esteemed colleague, Mr. Justice Jose A.R. Melo, without taking half a pause.
But the case at bar does not involve the guilt or innocence of an accused but
the interpretation of an extradition treaty where at stake is our government's
international obligation to surrender to a foreign state a citizen of its own so
he can be tried for an alleged offense committed within that jurisdiction. The
issues are of first impression and the majority opinion dangerously takes us
to unknown shoals in constitutional and international laws, hence this
dissenting opinion.
Extradition is a well-defined concept and is more a problem in international
law. It is the "process by which persons charged with or convicted of crime
against the law of a State and found in a foreign State are returned by the
latter to the former for trial or punishment. It applies to those who are merely
charged with an offense but have not been brought to trial; to those who
have been tried and convicted and have subsequently escaped from
custody; and those who have been convicted in absentia. It does not apply to
persons merely suspected of having committed an offense but against who
no charge has been laid or to a person whose presence is desired as a
witness or for obtaining or enforcing a civil judgment."1 The definition covers
the private respondent who is charged with two (2) counts of conspiracy to
commit offense or to defraud the United States, four (4) counts of attempt to
evade or defeat tax, two (2) counts of fraud by wire, radio or television, six (6)
counts of false statements or entries and thirty-three (33) counts of election
contributions in the name of another. There is an outstanding warrant of
arrest against the private respondent issued by the US District Court,
Southern District of Florida.
A brief review of the history of extradition law will illumine our labor. Possibly
the most authoritative commentator on extradition today, M. Cherif Bassiouni,
divides the history of extradition into four (4) periods: "(1) ancient times to
seventeenth century — a period revealing almost exclusive concern for
political and religious offenders; (2) the eighteenth century and half of the
nineteenth century — a period of treaty-making chiefly concerned with
military offenders characterizing the condition of Europe during that period;
(3) from 1833 to 1948 — a period of collective concern in suppressing
common criminality; and (4) post-1948 developments which ushered in a
greater concern for protecting the human rights of persons and revealed an
awareness of the need to have international due process of law regulate
international relations."2
38
It is also rewarding to have a good grip on the changing slopes in the
landscape of extradition during these different periods. Extradition was first
practiced by the Egyptians, Chinese, Chaldeans and Assyro-Babylonians but
their basis for allowing extradition was unclear. Sometimes, it was granted
due to pacts; at other times, due to plain good will.3 The classical
commentators on international law thus focused their early views on the
nature of the duty to surrender an extraditee — whether the duty is legal or
moral in character. Grotius and de Vattel led the school of thought that
international law imposed a legal duty called civitas maxima to extradite
criminals.4 In sharp contrast, Puffendorf and Billot led the school of thought
that the so-called duty was but an "imperfect obligation which could become
enforceable only by a contract or agreement between states.5
Modern nations tilted towards the view of Puffendorf and Billot that under
international law there is no duty to extradite in the absence of treaty,
whether bilateral or multilateral. Thus, the US Supreme Court in US v.
Rauscher,6 held: ". . . . it is only in modern times that the nations of the earth
have imposed upon themselves the obligation of delivering up these fugitives
from justice to the states where their crimes were committed, for trial and
punishment. This has been done generally by treaties . . . Prior to these
treaties, and apart from them there was no well-defined obligation on one
country to deliver up such fugitives to another; and though such delivery was
often made it was upon the principle of comity . . ."
Then came the long and still ongoing debate on what should be the subject
of international law. The 20th century saw the dramatic rise and fall of
different types and hues of authoritarianism — the fascism of Italy's Mussolini
and Germany's Hitler, the militarism of Japan's Hirohito and the communism
of Russia's Stalin, etc. The sinking of these isms led to the elevation of the
rights of the individual against the state. Indeed, some species of human
rights have already been accorded universal recognition.7 Today, the drive to
internationalize rights of women and children is also on high gear.8 The
higher rating given to human rights in the hierarchy of values necessarily led
to the re-examination of rightful place of the individual in international law.
Given the harshest eye is the moss-covered doctrine that international law
deals only with States and that individuals are not its subject. For its
undesirable corrally is the sub-doctrine that an individual's right in
international law is a near cipher. Translated in extradition law, the view that
once commanded a consensus is that since a fugitive is a mere object and
not a subject of international law, he is bereft of rights. An extraditee, so it
was held, is a mere "object transported from one state to the other as an
exercise of the sovereign will of the two states involved."9 The re-
examination consigned this pernicious doctrine to the museum of ideas.10
The new thinkers of international law then gave a significant shape to the role
and rights of the individual in state-concluded treaties and other international
agreements. So it was declared by then US Ambassador Philip C. Jessup in
audible italics: "A very large part of international affairs and, thus, of the
process of international accommodation, concerns the relations between
legal persons known as states. This is necessarily so. But it is no longer
novel for the particular interest of the human being to break through the mass
of interstate relationship."11 The clarion call to re-engineer a new world order
whose dominant interest would transcend the parochial confines of national
states was not unheeded. Among the world class scholars who joined the
search for the elusive ideological underpinnings of a new world order were
Yale Professor Myres McDougal and Mr. Justice Florentino Feliciano. In their
seminal work. Law and Minimum World Public Order, they suggested that the
object of the new world should be "to obtain in particular situations and in the
aggregate flow of situations the outcome of a higher degree of conformity
with the security goals of preservation, deterrence, restoration, rehabilitation
and reconstruction of all societies comprising the world community."12
Needless to stress, all these prescient theses accelerated the move to
recognize certain rights of the individual in international law.
We have yet to see the final and irrevocable place of individual rights,
especially the rights of an extraditee, in the realm of international law. In
careful language, Bassiouni observes that today, "institutionalized conflicts
between states are still rationalized in terms of sovereignty, national interest,
and national security, while human interests continue to have limited, though
growing impact on the decision-making processes which translate national
values and goals into specific national and international policy."13
I belabor the international law aspect of extradition as the majority opinion
hardly gives it a sideglance. It is my humble submission that the first
consideration that should guide us in the case at bar is that a bilateral treaty
— the RP-US Extradition Treaty — is the subject matter of the litigation. In
our constitutional scheme, the making of a treaty belongs to the executive
and legislative departments of our government. Between these two
departments, the executive has a greater say in the making of a treaty.
Under Section 21, Article VII of our Constitution, the President has the sole
power to negotiate treaties and international agreements although to be
effective, they must be concurred in by at least two thirds of all the members
39
of the Senate. Section 20 of the same Article empowers the President to
contract or guarantee foreign loans with the prior concurrence of the
Monetary Board. Section 16 of the same Article gives the President the
power to appoint ambassadors, other public ministers and consuls subject to
confirmation by the Commission on Appointments. In addition, the President
has the power to deport undesirable aliens. The concentration of these
powers in the person of the President is not without a compelling
consideration. The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the nation
especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and
can decide with decisiveness. Beyond debate, the President is the single
most powerful official in our land for Section 1 of Article VII provides that "the
executive power shall be vested in the President of the Philippines," whereas
Section 1 of Article VI states that "the legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of
Representatives . . . except to the extent reserved to the people by the
provision on initiative and referendum," while Section 1 of Article VIII
provides that "judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law." Thus, we can see that
executive power is vested in the President alone whereas legislative and
judicial powers are shared and scattered. It is also the President who
possesses the most comprehensive and the most confidential information
about foreign countries for our diplomatic and consular officials regularly brief
him on meaningful events all over the world. He has also unlimited access to
ultra-sensitive military intelligence data.14 In fine, the presidential role in
foreign affairs is dominant and the President is traditionally accorded a wider
degree of discretion in the conduct of foreign affairs. The regularity, nay,
validity of his actions are adjudged under less stringent standards, lest their
judicial repudiation lead to breach of an international obligation, rupture of
state relations, forfeiture of confidence, national embarrassment and a
plethora of other problems with equally undesirable consequences.
These are some of the dominant policy considerations in international law
that the Court must balance against the claim of the private respondent that
he has a right to be given the extradition documents against him and to
comment thereon even while they are still at the evaluation stage by the
petitioner Secretary of Justice, an alter ego of the President. The delicate
questions of what constitutional rights and to what degree they can be
claimed by an extraditee do not admit of easy answers and have resulted in
discrete approaches the world over.15 On one end of the pole is the more
liberal European approach. The European Court of Human Rights embraces
the view that an extraditee is entitled to the benefit of all relevant provisions
of the European Convention for the Protection of Human Rights and
Fundamental Freedoms. It has held that ". . . in so far as a measure of the
extradition has consequences adversely affecting the enjoyment of a
convention right, it may, assuming that the consequences are not too remote,
attract the obligations of a Contracting State under the relevant convention
guarantee."16 At the other end of the pole is the more cautious approach of
the various Courts of Appeal in the United States. These courts have been
more conservative in light of the principle of separation of powers and their
faith in the presumptive validity of executive decisions. By and large, they
adhere to the rule of non-inquiry under which the extraditing court refuses to
examine the requesting country's criminal justice system or consider
allegations that the extraditee will be mistreated or denied a fair trial in that
country.17
The case at bar, I respectfully submit, does not involve an irreconcilable
conflict between the RP-US Extradition Treaty and our Constitution where we
have to choose one over the other. Rather, it calls for a harmonization
between said treaty and our Constitution. To achieve this desirable objective,
the Court should consider whether the constitutional rights invoked by the
private respondent have truly been violated and even assuming so, whether
he will be denied fundamental fairness. It is only when their violation will
destroy the respondent's right to fundamental fairness that his constitutional
claims should be given primacy.
Given this balancing approach, it is my humble submission that considering
all the facts and facets of the case, the private respondent has not proved
entitlement to the right he is claiming. The majority holds that the
Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit
respondent's claims, hence, it should be allowed. This is too simplistic an
approach. Rights do not necessarily arise from a vacuum. Silence of the law
can even mean an implied denial of a right. Also, constitutional litigations do
not always involve a clear cut choice between right and wrong. Sometimes,
they involve a difficult choice between right against right. In these situations,
there is need to balance the contending rights and primacy is given to the
right that will serve the interest of the nation at that particular time. In such
instances, the less compelling right is subjected to soft restraint but without
smothering its essence. Proceeding from this premise of relativism of rights, I
venture the view that even assuming arguendo respondent's weak claim, still,
the degree of denial of private respondent's rights to due process and to
40
information is too slight to warrant the interposition of judicial power. As
admitted in the ponencia itself, an extradition proceeding is sui generis. It is,
thus, futile to determine what it is. What is certain is that it is not a criminal
proceeding where there is an accused who claim the entire array of rights
guaranteed by the Bill of Rights. Let it be stressed that in an extradition
proceeding, there is no accused and the guilt or innocence of the extraditee
will not be passed upon by our executive officials nor by the extradition
judge. Hence, constitutional rights that are only relevant do determine the
guilt or innocence of an accused cannot be invoked by an extraditee. Indeed,
an extradition proceeding is summary in nature which is untrue of criminal
proceedings.18 Even the rules of evidence are different in an extradition
proceeding. Admission of evidence is less stringent, again because the guilt
of the extraditee is not under litigation.19 It is not only the quality but even
the quantum of evidence in extradition proceeding is different. In a criminal
case, an accused can only be convicted by proof beyond reasonable
doubt.20 In an extradition proceeding, an extraditee can be ordered
extradited "upon showing of the existed of a prima facie case."21 If more
need be said, the nature of an extradition decision is different from a judicial
decision whose finality cannot be changed by executive fiat. Our courts22
may hold an individual extraditable but the ultimate decision to extradite the
individual lies in the hands of the Executive. Section 3, Article 3 of the RP-US
Extradition Treaty specifically provides that "extradition shall not be granted if
the executive authority of the Requested State determined that the request
was politically motivated, or that the offense is a military offense which is not
punishable under non-military penal legislation." In the United States, the
Secretary of State exercises this ultimate power and is conceded
considerable discretion. He balances the equities of the case and the
demands of the nation's foreign relations.23 In sum, he is not straitjacketed
by strict legal considerations like an ordinary court.
The type of issue litigated in extradition proceedings which does not touch on
the guilt or innocence of the extraditee, the limited nature of the extradition
proceeding, the availability of adequate remedies in favor of the extraditee,
and the traditional leeway given to the Executive in the conduct of foreign
affairs have compelled courts to put a high threshold before considering
claims of individuals that enforcement of an extradition treaty will violate their
constitutional rights. Exemplifying such approach is the Supreme Court of
Canada which has adopted a highly deferential standard that emphasizes
international comity and the executive's experience in international
matters.24 It continues to deny Canada's charter protection to extraditees
unless the violation can be considered shocking to the conscience.
In the case, at bar and with due respect, the ponencia inflates with too much
significance the threat to liberty of the private respondent to prop us its thesis
that his constitutional rights to due process and access to information must
immediately be vindicated. Allegedly, respondent Jimenez stands in danger
of provisional arrest, hence, the need for him to be immediately furnished
copies of documents accompanying the request for his extradition.
Respondent's fear of provisional arrest is not real. It is a self-imagined fear
for the realities on the ground show that the United States authorities have
not manifested any desire to request for his arrest. On the contrary, they filed
the extradition request through the regular channel and, even with the
pendency of the case at bar, they have not moved for respondent's arrest on
the ground of probable delay in the proceedings. To be sure, the issue of
whether respondent Jimenez will be provisionally arrested is now moot.
Under Section 1 of Article 9 of the RP-US Extradition Treaty, in relation to
Section 20(a) of PD No. 1069, the general principle is enunciated that a
request for provisional arrest must be made pending receipt of the request
for extradition. By filing the request for extradition, the US authorities have
implicitly decided not to move for respondent's provisional arrest. But more
important, a request for respondent's arrest does not mean he will be the
victim of an arbitrary arrest. He will be given due process before he can be
arrested. Article 9 of the treaty provides:
PROVISIONAL ARREST
1. In case of urgency, a Contracting Party may request the provisional arrest
of the person sought pending presentation of the request for extradition. A
request for provisional arrest may be transmitted through the diplomatic
channel or directly between the Philippine Department of Justice and the
United States Department of Justice.
2. The application for provisional arrest shall contain:
a) a description of the person sought;
b) the location of the person sought, if known;
c) a brief statements of the facts of the case, including, if possible, the time
and location of the offense;
d) a description of the laws violated;
41
e) a statement of the existence of a warrant of a warrant of arrest or finding
of guilt or judgment of conviction against the person sought; and
f) a statement that a request for extradition for the person sought will follow.
3. The Requesting State shall be notified without delay of the disposition of
its application and the reasons for any denial.
4. A person who is provisionally arrested may be discharged from custody
upon the expiration of sixty (60) days from the date of arrest pursuant to this
Treaty if the executive authority of the Requested State has not received the
formal request for extradition and the supporting documents required in
Article 7.
In relation to the above, Section 20 of P.D. No. 1069 provides:
Sec. 20. Provisional Arrest. — (a) In case of urgency, the requesting state
may, pursuant to the relevant treaty or convention and while the same
remains in force, request for the provisional arrest of the accused, pending
receipt of the request for extradition made in accordance with Section 4 of
this Decree.
(b) A request for provisional arrest shall be sent to the Director of the
National Bureau of Investigation, Manila, either through the diplomatic
channels or direct by post or telegraph.
(c) The Director of the National Bureau of Investigation or any official acting
on his behalf shall upon receipt of the request immediately secure a warrant
for the provisional arrest of the accused from the presiding judge of the Court
of First Instance of the province or city having jurisdiction of the place, who
shall issue the warrant for the provisional arrest of the accused. The Director
of the National Bureau of Investigation through the Secretary of Foreign
Affairs shall inform the requesting state of the result of its request.
(d) If within a period of 20 days after the provisional arrest, the Secretary of
Foreign Affairs has not received the request for extradition and the
documents mentioned in Section 4 of this Decree, the accused shall be
released from custody.
The due process protection of the private-respondent against arbitrary arrest
is written in cyrillic letters in these two (2) related provisions. It is self-evident
under these provisions that a request for provisional arrest does not mean it
will be granted ipso facto. The request must comply with certain
requirements. It must be based on an "urgent" factor. This is subject to
verification and evaluation by our executive authorities. The request can be
denied if not based on a real exigency of if the supporting documents are
insufficient. The protection of the respondent against arbitrary provisional
arrest does not stop on the administrative level. For even if the Director of the
National Bureau of Investigation agrees with the request for the provisional
arrest of the respondent, still he has to apply for a judicial warrant from the
"presiding judge of the Court of First Instance (now RTC) of the province of
city having jurisdiction of the place. . . . ." It is a judge who will issue a
warrant for the provisional arrest of the respondent. The judge has comply
with Section 2, Article III of the Constitution which provides that "no . . .
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 . . . persons or things to be seized." The message that leaps to the eye is
that compliance with this requirements precludes any arbitrary arrest.
In light of all these considerations, I respectfully submit that denying
respondent's constitutional claim to be furnished all documents relating to the
request for his extradition by the US authorities during their evaluation stage
will not subvert his right to fundamental fairness. It should be stressed that
this is not a case where the respondent will not be given an opportunity to
know the basis of the request for his extradition. In truth, and contrary to the
impression of the majority, P.D. No. 1069 fixes the specific time when he will
be given the papers constituting the basis for his extradition. The time is
when he is summoned by the extradition court and required to answer the
petition for extradition. Thus, Section 6 of P.D. No. 1069 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. 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 best serve the
ends of justice. Upon receipt of the answer within the time fixed, the
42
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.
Upon receipt of the summons and the petition, respondent is free to foist all
defense available to him. Such an opportunity does not deny him fairness
which is the essence of due process of law.
Thus, with due respect, I submit that the ponencia failed to accord due
importance to the international law aspect of an extradition treaty as it unduly
stressed its constitutional law dimension. This goes against the familiar
learning that in balancing the clashing interests involved in extradition treaty,
national interest is more equal than the others. While lately, humanitarian
considerations are being factored in the equation, still the concept of
extradition as a national act is the guiding idea. Requesting and granting
extradition remains a power and prerogative of the national government of a
State. The process still involves relations between international
personalities.25 Needless to state, a more deferential treatment should be
given to national interest than to individual interest. Our national interest in
extraditing persons who have committed crimes in a foreign country are
succinctly expressed in the whereas clauses of P.D. No. 1069, viz:
WHEREAS, the Constitution of the Philippines adopts the generally accepted
principles of international law as part of law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity with all
nations;
WHEREAS, the suppression of crime is the concern not only of the state
where it is committed but also of any other state to which the criminal may
have escaped, because it saps the foundation of social life and is an outrage
upon humanity at large, and it is in the interest of civilized communities that
crimes should not go unpunished. . . . .
The increasing incidence of international and transnational crimes, the
development of new technologies of death, and the speed and scale of
improvement of communication are factors which have virtually annihilated
time and distance. They make more compelling the vindication of national
interest to insure that the punishment of criminals should not be frustrated by
the frontiers of territorial sovereignty. This overriding national interest must
be upheld as against respondent's weak constitutional claims which in no
way amount to denial of fundamental fairness.
At bottom, this case involves the respect that courts should accord to the
Executive that concluded the RP-US Extradition Treaty in the conduct of our
foreign affairs. As early as 1800, the legendary John Marshall, then a
congressman, has opined that the power to extradite pursuant to a treaty
rests in the executive branch as part of its power to conduct foreign affairs.26
Courts have validated this forward-looking opinion in a catena of unbroken
cases. They defer to the judgment of the Executive on the necessities of our
foreign affairs and on its view of the requirements of international comity. The
deferential attitude is dictated by the robust reality that of the three great
branches of our government, it is the Executive that is most qualified to guide
the ship of the state on the known and unknown continents of foreign
relations. It is also compelled by considerations of the principle of separation
of powers for the Constitution has clearly allocated the power to conduct our
foreign affairs to the Executive. I respectfully submit that the majority decision
has weakened the Executive by allowing nothing less than an
unconstitutional headbutt on the power of the Executive to conduct our
foreign affairs. The majority should be cautions in involving this Court in the
conduct of the nation's foreign relations where the inviolable rule dictated by
necessity is that the nation should speak with one voice. We should not
overlook the reality that courts by their nature, are ill-equipped to fully
comprehend the foreign policy dimension of a treaty, some of which are
hidden in shadows and silhouettes.
I vote to grant the petition.
PANGANIBAN, J., dissenting opinion;
With due respect, I dissent.
The main issue before us is whether Private Respondent Mark B. Jimenez is
entitled to the due process rights of notice and hearing during the preliminary
or evaluation stage of the extradition proceeding against him.
Two Staged in Extradition
43
There are essentially two stages in extradition proceedings: (1) the
preliminary or evaluation stage, whereby the executive authority of the
requested state ascertains whether the extradition request is supported by
the documents and information required under the Extradition Treaty; and (2)
the extradition hearing, whereby the petition for extradition is heard before a
court of justice, which determines whether the accused should be extradited.
The instant petition refers only to the first stage. Private respondent claims
that he has a right to be notified and to be heard at this early stage. However,
even the ponencia admits that neither the RP-US Extradition Treaty nor PD
1069 (the Philippine Extradition Law) expressly requires the Philippine
government, upon receipt of the request for extradition, to give copies thereof
and its supporting documents to the prospective extraditee, much less to give
him an opportunity to be heard prior to the filing of the petition in court.
Notably, international extradition proceedings in the United States do not
include the grant by the executive authority of notice and hearing to the
prospective extraditee at this initial stage. It is the judge or magistrate who is
authorized to issue a warrant of arrest and to hold a hearing to consider the
evidence submitted in support of the extradition request. In contrast, in
interstate rendition, the governor must, upon demand, furnish the fugitive or
his attorney copies of the request and its accompanying documents,
pursuant to statutory provisions.1 In the Philippines, there is no similar
statutory provision.
Evaluation Stage Essentially Ministerial
The evaluation stage simply involves the ascertainment by the foreign affairs
secretary of whether the extradition request is accompanied by the
documents stated in paragraphs 2 and 3, Article 7 of the Treaty, relating to
the identity and the probable location of the fugitive; the facts of the offense
and the procedural history of the case; provisions of the law describing the
essential elements of the offense charged and the punishment therefor; its
prescriptive period; such evidence as would provide probable cause for the
arrest and the committal for trial of the fugitive; and copies of the warrant or
order of arrest and charging document. The foreign affairs secretary also
sees to it that these accompanying documents have been certified by the
principal diplomatic or consular officer of the Philippines in the United States,
and that they are in English language or have English translations. Pursuant
to Article 3 of the Treaty, he also determines whether the request is politically
motivated, and whether the offense charged is a military offense not
punishable under non-military penal legislation.2
Upon a finding of the secretary of foreign affairs that the extradition request
and its supporting documents are sufficient and complete in form and
substance, he shall deliver the same to the justice secretary, who shall
immediately designate and authorize an attorney in his office to take charge
of the case. The lawyer designated shall then file a written petition with the
proper regional trial court, with a prayer that the court take the extradition
request under consideration.3
When the Right to Notice and Hearing Becomes Available
According to private Respondent Jimenez, his right to due process during the
preliminary stage emanates from our Constitution, particularly Section 1,
Article III thereof, which provides:
No person shall be deprived of life, liberty or property without due process of
law.
He claims that this right arises immediately, because of the possibility that he
may be provisionally arrested pursuant to Article 9 of the RP-US Treaty,
which reads:
In case of urgency, a Contracting Party may request the provisional arrest of
the person sought pending presentation of the request for extradition. A
request for provisional arrest may be transmitted through the diplomatic
channel or directly between the Philippine Department of Justice and the
United States Department of Justice.
xxx xxx xxx
Justice Melo's ponencia supports private respondent's contention. It states
that there are two occasions wherein the prospective extraditee may be
deprived of liberty: (1) in case of a provisional arrest pending the submission
of the extradition request and (2) his temporary arrest during the pendency of
the extradition petition in court.4 The second instance is not in issue here,
because no petition has yet been filed in court.
However, the above-quoted Article 9 on provisional arrest is not
automatically operative at all times, and in enforcement does not depend
44
solely on the discretion of the requested state. From the wordings of the
provision itself, there are at least three requisites: (1) there must be an
urgency, and (2) there is a corresponding request (3) which must be made
prior to the presentation of the request for extradition.
In the instant case, there appears to be no urgency characterizing the nature
of the extradition of private respondent. Petitioner does not claim any such
urgency. There is no request from the United States for the provisional arrest
of Mark Jimenez either. And the secretary of justice states during the Oral
Argument that he had no intention of applying for the provisional arrest of
private respondent.5 Finally, the formal request for extradition has already
been made; therefore, provisional arrest is not likely, as it should really come
before the extradition request.6
Mark Jimenez Not in Jeopardy of Arrest
Under the outlined facts of this case, there is no open door for the application
of Article 9, contrary to the apprehension of private respondent. In other
words, there is no actual danger that Jimenez will be provisionally arrested or
deprived of his liberty. There is as yet no threat that his rights would be
trampled upon, pending the filing in court of the petition for his extradition.
Hence, there is no substantial gain to be achieved in requiring the foreign
affairs (or justice) secretary to notify and hear him during the preliminary
stage, which basically involves only the exercise of the ministerial power of
checking the sufficiency of the documents attached to the extradition request.
It must be borne in mind that during the preliminary stage, the foreign affairs
secretary's determination of whether the offense charged is extraditable or
politically motivated is merely preliminary. The same issue will be resolved by
the trial court.7 Moreover, it is also the power and the duty of the court, not
the executive authority, to determine whether there is sufficient evidence to
establish probable cause that the extraditee committed the crimes charged.8
The sufficiency of the evidence of criminality is to be determined based on
the laws of the requested state.9 Private Respondent Jimenez will, therefore,
definitely have his full opportunity before the court, in case an extradition
petition will indeed be filed, to be heard on all issues including the sufficiency
of the documents supporting the extradition request.10
Private respondent insists that the United States may still request his
provisional arrest at any time. That is purely speculative. It is elementary that
this Court does not declare judgments or grant reliefs based on speculations,
surmises or conjectures.
In any event, even granting that the arrest of Jimenez is sought at any time
despite the assurance of the justice secretary that no such measure will be
undertaken, our local laws and rules of procedure respecting the issuance of
a warrant of arrest will govern, there being no specific provision under the
Extradition Treaty by which such warrant should issue. Therefore, Jimenez
will be entitled to all the rights accorded by the Constitution and the laws to
any person whose arrest is being sought.1âwphi1.nêt
In the context of the factual milieu of private respondent, there is really no
threat of any deprivation of his liberty at the present stage of the extradition
process. Hence, the constitutional right to due process — particularly the
right to be heard — finds no application. To grant private respondent's
request for copies of the extradition documents and for an opportunity to
comment thereon will constitute "over-due process" and unnecessarily delay
the proceedings.
WHEREFORE, I vote to grant the Petition.

The right of one state to demand from another the return of an alleged
fugitive from justice and the correlative duty to surrender the fugitive to the
demanding country exist only when created by a treaty between the two
countries. International law does not require the voluntary surrender of a
fugitive to a foreign government, absent any treaty stipulation requiring it.11
When such a treaty does exist, as between the Philippines and the United
States, it must be presumed that the contracting states perform their
obligations under it with uberrimae fidei, treaty obligations being essentially
characterized internationally by comity and mutual respect.

The Need for Respondent Jimenez to Face Charges in the US

One final point. Private respondent also claims that from the time the
secretary of foreign affairs gave due course to the request for his extradition,
incalculable prejudice has been brought upon him. And because of the moral
injury caused, he should be given the opportunity at the earliest possible time
to stop his extradition. I believe that any moral injury suffered by private
respondent had not been caused by the mere processing of the extradition
request. And it will not cease merely by granting him the opportunity to be
heard by the executive authority. The concrete charges that he has allegedly
committed certain offenses already exist. These charges have been filed in
the United States and are part of public and official records there. Assuming
the existence of moral injury, the only means by which he can restore his
good reputation is to prove before the proper judicial authorities in the US
that the charges against him are unfounded. Such restoration cannot be
accomplished by simply contending that the documents supporting the
request for his extradition are insufficient.

Conclusion

45