001 - 008 Pil Cases Batch 1 Pandi

Public International Law CASES Batch 1

Table of Contents
Philip Morris v CA 0
G.R. No. 91332, July 16, 1993 0
PHILIP MORRIS, INC., BENSON & HEDGES (CANADA), INC., AND FABRIQUES OF TABAC REUNIES, S.A., PETITIONERS, VS. THE COURT OF
APPEALS AND FORTUNE TOBACCO CORPORATION, RESPONDENTS. 0
SOJ v Lantion 17
G.R. No. 139465, January 18, 2000 17
SECRETARY OF JUSTICE, PETITIONER, VS. HON. RALPH C. LANTION, PRESIDING JUDGE, REGIONAL TRIAL COURT OF MANILA, BRANCH 25,
AND MARK B. JIMENEZ, RESPONDENTS. 17
USA v Purganan 42
G.R. No. 148571, September 24, 2002 42
GOVERNMENT OF THE UNITED STATES OF AMERICA, REPRESENTED BY THE PHILIPPINE DEPARTMENT OF JUSTICE, PETITIONER, VS.
HON. GUILLERMO G. PURGANAN, MORALES, AND PRESIDING JUDGE, REGIONAL TRIAL COURT OF MANILA, BRANCH 42; AND MARK B.
JIMENEZ A.K.A. MARIO BATACAN CRESPO, RESPONDENTS. 42
Govt of Hongkong v Olalia, Jr. 70

G.R. NO. 153675, April 19, 2007 70
GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, REPRESENTED BY THE PHILIPPINE DEPARTMENT OF JUSTICE,
PETITIONER, VS. HON. FELIXBERTO T. OLALIA, JR. AND JUAN ANTONIO MUÑOZ, RESPONDENTS. 70
Gonzales v Hechanova 74
G.R. No. L-21897, October 22, 1963 74
RAMON A. GONZALES, PETITIONER VS. RUFINO G. HECHANOVA, ETC., ET AL., RESPONDENTS. 74
Cathay Pacific Airways v CA 80

G.R. No. 60501, March 05, 1993 80
CATHAY PACIFIC AIRWAYS, LTD, PETITIONER, VS. COURT OF APPEALS AND TOMAS L. ALCANTARA, RESPONDENTS. 80
Ichong v Hernandez 83
G.R. No. L-7995, May 31, 1957 83
LAO H. ICHONG, IN HIS OWN BEHALF AND IN BEHALF OF OTHER ALIEN RESIDENTS, CORPORATIONS AND PARTNERSHIPS ADVERSELY
AFFECTED BY REPUBLIC ACT NO. 1180, PETITIONER, VS. JAIME HERNANDEZ, SECRETARY OF FINANCE, AND MARCELINO SARMIENTO,
CITY TREASURER OF MANILA, RESPONDENTS. 83
The Paquete Habana, 175 U.S. 677 (1900) 95
Philip Morris v CA
SPECIAL THIRD DIVISION
G.R. No. 91332, July 16, 1993

PHILIP MORRIS, INC., BENSON & HEDGES (CANADA), INC., AND FABRIQUES OF TABAC REUNIES,
S.A., PETITIONERS, VS. THE COURT OF APPEALS AND FORTUNE TOBACCO CORPORATION,
RESPONDENTS.
DECISION
MELO, J.:
In the petition before us, petitioners Philip Morris, Inc., Benson and Hedges (Canada), Inc., and Fabriques of Tabac Reunies, S.A., are ascribing
whimsical exercise of the faculty conferred upon magistrates by Section 6, Rule 58 of the Revised Rules of Court when respondent Court of
Appeals lifted the writ of preliminary injunction it earlier had issued against Fortune Tobacco Corporation, herein private respondent, from
manufacturing and selling "MARK" cigarettes in the local market.
Banking on the thesis that petitioners' respective symbols "MARK VII", "MARK TEN", and "LARK", also for cigarettes, must be protected
against unauthorized appropriation, petitioners twice solicited the ancillary writ in the course of the main suit for infringement but the court
of origin was unpersuaded.
Before we proceed to the generative facts of the case at bar, it must be emphasized that resolution of the issue on the propriety of lifting the
writ of preliminary injunction should not be construed as a prejudgment of the suit below. Aware of the fact that the discussion we are about
to enter into involves mere interlocutory order, a discourse on the aspect of infringement must thus be avoided. With these caveat, we shall
now shift our attention to the events which spawned the controversy.

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As averred in the initial pleading, Philip Morris, Incorporated is a corporation organized under the laws of the State of Virginia, United States
of America, and does business at 100 Park Avenue, New York, New York, United States of America. The two other plaintiff foreign
corporations, which are wholly-owned subsidiaries of Philip Morris, Inc., are similarly not doing business in the Philippines but are suing on
an isolated transaction. As registered owners of "MARK VII", "MARK TEN", and "LARK" per certi icates of registration issued by the
Philippine Patent Of ice on April 26, 1973, May 28, 1964, and March 25, 1964, plaintiffs-petitioners asserted that defendant Fortune Tobacco
Corporation has no right to manufacture and sell cigarettes bearing the allegedly identical or confusingly similar trademark "MARK" in
contravention of Section 22 of the Trademark Law, and should, therefore, be precluded during the pendency of the case from performing the
acts complained of via a preliminary injunction (p. 75, Court of Appeals Rollo in AC-G.R. SP No. 13132).
For its part, Fortune Tobacco Corporation admitted petitioners' certi icates of registration with the Philippine Patent Of ice subject to the
af irmative and special defense on misjoinder of party plaintiffs. Private respondent alleged further that it has been authorized by the Bureau
of Internal Revenue to manufacture and sell cigarettes bearing the trademark "MARK", and that "MARK" is a common word which cannot be
exclusively appropriated (p. 158, Court of Appeals Rollo in AC-G.R. SP No. 13132).
On March 28, 1983, petitioners' prayer for preliminary injunction was denied by the Presiding Judge of Branch 166 of the Regional Trial
Court of the National Capital Judicial Region stationed at Pasig, premised upon the following propositions:
Plaintiffs admit in paragraph 2 of the complaint that "xxx they are not doing business in the Philippines and are suing on an isolated
transaction xxx". This simply means that they are not engaged in the sale, manufacture, importation, expor[t]ation and advertisement of their
cigarette products in the Philippines. With this admission, defendant asks: "xxx how could defendant's "MARK" cigarettes cause the former
"irreparable damage" within the territorial limits of the Philippines?" Plaintiffs maintain that since their trademarks are entitled to
protection by treaty obligation under Article 2 of the Paris Convention of which the Philippines is a member and rati ied by Resolution No. 69
of the Senate of the Philippines and as such, have the force and effect of law under Section 12, Article XVII of our Constitution and since this is
an action for a violation or infringement of a trademark or trade name by defendant, such mere allegation is suf icient even in the absence of
proof to support it. To the mind of the Court, precisely, this is the issue in the main case to determine whether or not there has been an
invasion of plaintiffs' right of property to such trademark or trade name. This claim of plaintiffs is disputed by defendant in paragraphs 6 and
7 of the Answer; hence, this cannot be made a basis for the issuance of a writ of preliminary injunction.
There is no dispute that the First Plaintiff is the registered owner of trademar[k] "MARK VII" with Certi icate of Registration No. 18723, dated
April 26, 1973 while the Second Plaintiff is likewise the registered owner of trademark "MARK TEN" under Certi icate of Registration No.
11147, dated May 28, 1963 and the Third Plaintiff is a registrant of trademark "LARK" as shown by Certi icate of Registration No. 10953
dated March 23, 1964, in addition to a pending application for registration of trademark "MARK VII" iled on November 21, 1980 under
Application Serial No. 43243, all in the Philippine Patent Of ice. In the same manner, defendant has a pending application for registration of
the trademark "LARK" cigarettes with the Philippine Patent Of ice under Application Serial No. 44008. Defendant contends that since
plaintiffs are "not doing business in the Philippines" coupled by the fact that the Director of Patents has not denied their pending application
for registration of its trademark "MARK", the grant of a writ of preliminary injunction is premature. Plaintiffs contend that this act(s) of
defendant is but a subterfuge to give semblance of good faith intended to deceive the public and patronizers into buying the products and
create the impression that defendant's goods are identical with or come from the same source as plaintiffs' products or that the defendant is
a licensee of plaintiffs when in truth and in fact the former is not. But the fact remains that with its pending application, defendant has
embarked in the manufacturing, selling, distributing and advertising of "MARK" cigarettes. The question of good faith or bad faith on the part
of defendant are matters which are evidentiary in character which have to be proven during the hearing on the merits; hence, until and
unless the Director of Patents has denied defendant's application, the Court is of the opinion and so holds that issuance of a writ of
preliminary injunction would not lie.
There is no question that defendant has been authorized by the Bureau of Internal Revenue to manufacture cigarettes bearing the trademark
"MARK" (Letter of Ruben B. Ancheta, Acting Commissioner addressed to Fortune Tobacco Corporation dated April 3, 1981, marked as
Annex "A", defendant's "OPPOSITION, etc." dated September 24, 1982). However, this authority is quali ied "xxx that the said brands have
been accepted and registered by the Patent Of ice not later than six (6) months after you have been manufacturing the cigarettes and placed
the same in the market." However, this grant "xxx does not give you protection against any person or entity whose rights may be prejudiced
by infringement or unfair competition in relation to your indicated trademarks/brands". As aforestated, the registration of defendant's
application is still pending in the Philippine Patent Of ice.
It has been repeatedly held in this jurisdiction as well as in the United States that the right or title of the applicant for injunction remedy must
be clear and free from doubt. Because of the disastrous and painful effects of an injunction, Courts should be extremely careful, cautious and
conscionable in the exercise of its discretion consistent with justice, equity and fair play.
"There is no power the exercise of which is more delicate which requires greater caution, deliberation, and sound discretion, or (which is)
more dangerous in a doubtful case than the issuing of an injunction; it is the strong arm of equity that never ought to be extended unless to
cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury
impending or threatened, so as to be averted only by the protecting preventive process of injunction." (Bonaparte v. Camden, etc. N. Co., 3 F.
Cas. No. 1, 617, Baldw. 205, 217.)
"Courts of equity constantly decline to lay down any rule which injunction shall be granted or withheld. There is wisdom in this course, for it
is impossible to foresee all exigencies of society which may require their aid to protect rights and restrain wrongs." (Merced M. Go v.
Freemont, 7 Gal. 317, 321; 68 Am. Dec. 262.)

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"It is the strong arm of the court; and to render its operation benign and useful, it must be exercised with great discretion, and when
necessary requires it." (Attorney-General v. Utica Inc. Co., P. John Ch. (N.Y.) 371.)
Having taken a panoramic view of the position[s] of both parties as viewed from their pleadings, the picture reduced to its minimum size
would be this: At the crossroads are the two (2) contending parties, plaintiffs vigorously asserting the rights granted by law, treaty and
jurisprudence to restrain defendant in its activities of manufacturing, selling, distributing and advertising its "MARK" cigarettes and now
comes defendant who countered and refused to be restrained claiming that it has been authorized temporarily by the Bureau of Internal
Revenue under certain conditions to do so as aforestated coupled by its pending application for registration of trademark "MARK" in the
Philippine Patent Of ice. This circumstance in itself has created a dispute between the parties which to the mind of the Court does not
warrant the issuance of a writ of preliminary injunction.
"It is well-settled principle that courts of equity will refuse an application for the injunctive remedy where the principle of law on which the
right to preliminary injunction rests is disputed and will admit of doubt, without a decision of the court of law establishing such principle
although satis ied as to what is a correct conclusion of law upon the facts. The fact, however, that there is no such dispute or con lict does not
in itself constitute a justi iable ground for the court to refuse an application for the injunctive relief." (Hackensack Impr. Commn. v. New
Jersey Midland P. Co., 22 N.J. Eg. 94.)
Hence, the status quo existing between the parties prior to the iling of this case should be maintained. For after all, an injunction, without
reference to the parties, should not be violent, vicious nor even vindictive. (pp. 338-341, Rollo in G.R. No. 91332.)
In the process of denying petitioners' subsequent motion for reconsideration of the order denying issuance of the requested writ, the court of
origin took cognizance of the certi ication executed on January 30, 1984 by the Philippine Patent Of ice attesting to the fact that private
respondent's application for registration is still pending appropriate action. Apart from this communication, what prompted the trial court
judge to entertain the idea of prematurity and untimeliness of petitioners' application for a writ of preliminary injunction was the letter from
the Bureau of Internal Revenue dated February 2, 1984 which reads:
MRS. TERESITA GANDIONGCO OLEDAN
Legal Counsel
Fortune Tobacco Corporation
Madam:
In connection with your letter dated January 25, 1984, reiterating your query as to whether your label approval
automatically expires or becomes null and void after six (6) months if the brand is not accepted and by the patent of ice,
please be informed that no provision in the Tax Code or revenue regulation that requires an applicant to comply with the
aforementioned condition in order that his label approved will remain valid and existing.
Based on the document you presented, it shows that registration of this particular label is still pending resolution by
the Patent Of ice. These being so, you may therefore continue with the production of said brand of cigarette until this Of ice
is of icially noti ied that the question of ownership of "MARK" brand is inally resolved.
Very truly yours,
TEODORO D. PARENO
Chief, Manufactured
Tobacco Tax Division
TAN-P6531-D2830-A-6
(p. 348, Rollo.)
It appears from the testimony of Atty. Enrique Madarang, Chief of the Trademark Division of the then Philippine Patent Of ice that Fortune's
application for its trademark is still pending before said of ice (p. 311, Rollo).
Petitioners thereafter cited supervening events which supposedly transpired since March 28, 1983, when the trial court irst declined issuing
a writ of preliminary injunction, that could alter the results of the case in that Fortune's application had been rejected, nay, barred by the
Philippine Patent Of ice, and that the application had been forfeited by abandonment, but the trial court nonetheless denied the second
motion for issuance of the injunctive writ on April 22, 1987, thus:
For all the prolixity of their pleadings and testimonial evidence, the plaintiffs-movants have fallen far short of the legal requisites that would
justify the grant of the writ of preliminary injunction prayed for. For one, they did not even bother to establish by competent evidence that
the products supposedly affected adversely by defendant's trademark now subject of an application for registration with the Philippine
Patents Of ice, are in actual use in the Philippines. For another, they concentrated their ire on the alleged abandonment and forfeiture by
defendant of said application for registration.
The Court cannot help but take note of the fact that in their complaint plaintiffs included a prayer for issuance of a writ of preliminary
injunction. The petition was duly heard, and thereafter the matter was assiduously discussed lengthily and resolved against plaintiffs in a
15-page Order issued by the undersigned's predecessor on March 28, 1983. Plaintiffs' motion for reconsideration was denied in another
well-argued 8 page Order issued on April 5, 1984, and the matter was made to rest.
However, on the strength of supposed changes in the material facts of this case, plaintiffs came up with the present motion citing therein the
said changes which are: that defendant's application had been rejected and barred by the Philippine Patents Of ice, and that said application
has been deemed abandoned and forfeited. But defendant has re iled the same.
Plaintiffs' arguments in support of the present motion appear to be a mere rehash of their stand in the irst above-mentioned petition which

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has already been ruled upon adversely against them. Granting that the alleged changes in the material facts are suf icient grounds for a
motion seeking a favorable grant of what has already been denied, this motion just the same cannot prosper.
In the irst place there is no proof whatsoever that any of plaintiffs' products which they seek to protect from any adverse effect of the
trademark applied for by defendant, is in actual use and available for commercial purposes anywhere in the Philippines. Secondly, as shown
by plaintiffs' own evidence furnished by no less than the chief of Trademarks Division of the Philippine Patent Of ice, Atty. Enrique Madarang,
the abandonment of an application is of no moment, for the same can always be re iled. He said there is no speci ic provision in the rules
prohibiting such re iling (TSN, November 21, 1986, pp. 60 & 64, Raviera). In fact, according to Madarang, the re iled application of defendant
is now pending before the Patents Of ice. Hence, it appears that the motion has no leg to stand on. (pp. 350-351, Rollo in G.R. No. 91332.)
Confronted with this rebuff, petitioners iled a previous petition for certiorari before the Court, docketed as G.R. No. 78141, but the petition
was referred to the Court of Appeals.
The Court of Appeals initially issued a resolution which set aside the court of origin's order dated April 22, 1987, and granted the issuance of
a writ of preliminary injunction enjoining Fortune, its agents, employees, and representatives, from manufacturing, selling, and advertising
"MARK" cigarettes. The late Justice Cacdac, speaking for the First Division of the Court of Appeals in CA-G.R. SP No. 13132, remarked:
There is no dispute that petitioners are the registered owners of the trademarks for cigarettes "MARK VII", "MARK TEN", and "LARK".
(Annexes B, C and D, petition). As found and reiterated by the Philippine Patent Of ice in two (2) of icial communications dated April 6, 1983
and January 24, 1984, the trademark "MARK" is "confusingly similar" to the trademarks of petitioners, hence, registration was barred under
Sec. 4(d) of Rep. Act No. 166, as amended (pp. 106, 139, SCA rollo). In a third of icial communication dated April 8, 1986, the trademark
application of private respondent for the mark "MARK" under Serial No. 44008 iled on February 13, 1981 which was declared abandoned as
of February 16, 1986, is now deemed forfeited, there being no revival made pursuant to Rule 98 of the Revised Rules of Practioners in
Trademark Cases." (p. 107, CA rollo). The foregoing documents or communications mentioned by petitioners as "the changes in material facts
which occurred after March 28, 1983", are not also questioned by respondents.
Pitted against the petitioners' documentary evidence, respondents pointed to (1) the letter dated January 30, 1979 (p. 137, CA rollo) of
Conrado P. Diaz, then Acting Commissioner of Internal Revenue, temporarily granting the request of private respondent for a permit to
manufacture two (2) new brands of cigarettes one of which is brand "MARK" ilter-type blend, and (2) the certi ication dated September 26,
1986 of Cesar G. Sandico, Director of Patents (p. 138, CA rollo) issued upon the written request of private respondents' counsel dated
September 17, 1986 attesting that the records of his of ice would show that the "trademark MARK" for cigarettes is now the subject of a
pending application under Serial No. 59872 iled on September 16, 1986.
Private respondent's documentary evidence provides the reasons neutralizing or weakening their probative values. The penultimate
paragraph of Commissioner Diaz' letter of authority reads:
"Please be informed further that the authority herein granted does not give you protection against any person or entity whose rights may be
prejudiced by infringement or unfair competition in relation to your above-named brands/trademarks."
while Director Sandico's certi ication contained similar conditions as follows:
"This Certi ication, however, does not give protection as against any person or entity whose right may be prejudiced by infringement or
unfair competition in relation to the aforesaid trademark nor the right to register if contrary to the provisions of the Trademark Law, Rep. Act
No. 166 as amended and the Revised Rules of Practice in Trademark Cases."
The temporary permit to manufacture under the trademark "MARK" for cigarettes and the acceptance of the second application iled by
private respondent in the height of their dispute in the main case were evidently made subject to the outcome of the said main case or Civil
Case No. 47374 of the respondent Court. Thus, the Court has not missed to note the absence of a mention in the Sandico letter of September
26, 1986 of any reference to the pendency of the instant action iled on August 18, 1982. We believe and hold that petitioners have shown a
prima facie case for the issuance of the writ of prohibitory injunction for the purposes stated in their complaint and subsequent motions for
the issuance of the prohibitory writ. (Buayan Cattle Co. vs. Quintillan, 125 SCRA 276)
The requisites for the granting of preliminary injunction are the existence of the right protected and the facts against which the injunction is
to be directed as violative of said right. (Buayan Cattle Co. vs. Quintillan, supra; Ortigas & Co. vs. Ruiz, 148 SCRA 326). It is a writ framed
according to the circumstances of the case commanding an act which the Court regards as essential to justice and restraining an act it deems
contrary to equity and good conscience (Rosauro vs. Cuneta, 151 SCRA 570). If it is not issued, the defendant may, before inal judgment, do
or continue the doing of the act which the plaintiff asks the court to restrain, and thus make ineffectual the inal judgment rendered
afterwards granting the relief sought by the plaintiff (Calo vs. Roldan, 76 Phil. 445). Generally, its grant or denial rests upon the sound
discretion of the Court except on a clear case of abuse (Belish Investment & Finance Co. vs. State House, 151 SCRA 636). Petitioners' right of
exclusivity to their registered trademarks being clear and beyond question, the respondent court's denial of the prohibitive writ constituted
excess of jurisdiction and grave abuse of discretion. If the lower court does not grant preliminary injunction, the appellate court may grant
the same. (Service Specialists, Inc. vs. Sheriff of Manila, 145 SCRA 139). (pp. 165-167, Rollo in G.R. No. 91332.)
After private respondent Fortune's motion for reconsideration was rejected, a motion to dissolve the disputed writ of preliminary injunction
with offer to post a counterbond was submitted which was favorably acted upon by the Court of Appeals, premised on the iling of a suf icient
counterbond to answer for whatever perjuicio petitioners may suffer as a result thereof, to wit:
The private respondent seeks to dissolve the preliminary injunction previously granted by this Court with an offer to ile a counterbond. It
was pointed out in its supplemental motion that lots of workers employed will be laid off as a consequence of the injunction and that the
government will stand to lose the amount of speci ic taxes being paid by the private respondent. The speci ic taxes being paid is the sum total

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of P120,120,295.98 from January to July 1989.

The petitioners argued in their comment that the damages caused by the infringement of their trademark as well as the goodwill it generates
are incapable of pecuniary estimation and monetary evaluation and not even the counterbond could adequately compensate for the damages
it will incur as a result of the dissolution of the bond. In addition, the petitioner further argued that doing business in the Philippines is not
relevant as the injunction pertains to an infringement of a trademark right.
After a thorough re-examination of the issues involved and the arguments advanced by both parties in the offer to ile a counterbond and the
opposition thereto, WE believe that there are sound and cogent reasons for Us to grant the dissolution of the writ of preliminary injunction
by the offer of the private respondent to put up a counterbond to answer for whatever damages the petitioner may suffer as a consequence of
the dissolution of the preliminary injunction.
The petitioner will not be prejudiced nor stand to suffer irreparably as a consequence of the lifting of the preliminary injunction considering
that they are not actually engaged in the manufacture of the cigarettes with the trademark in question and the iling of the counterbond will
amply answer for such damages.
While the rule is that an offer of a counterbond does not operate to dissolve an injunction previously granted, nevertheless, it is equally true
that an injunction could be dissolved only upon good and valid grounds subject to the sound discretion of the court. As WE have maintained
the view that there are sound and good reasons to lift the preliminary injunction, the motion to ile a counterbond is granted. (pp. 53-54,
Rollo in G.R. No. 91332.)
Petitioners, in turn, iled their own motion for re-examination geared towards reimposition of the writ of preliminary injunction but to no
avail (p. 55, Rollo in G.R. No. 91332).
Hence, the instant petition casting three aspersions that respondent court gravely abused its discretion tantamount to excess of jurisdiction
when:
I. ... it required, contrary to law and jurisprudence, that in order that petitioners may suffer irreparable injury due to the
lifting of the injunction, petitioners should be using actually their registered trademarks in commerce in the
Philippines;
II. ... it lifted the injunction in violation of section 6 of Rule 58 of the Rules of Court; and
III. ... after having found that the trial court had committed grave abuse of discretion and exceeded its jurisdiction for
having refused to issue the writ of injunction to restrain private respondent's acts that are contrary to equity and good
conscience, it made a complete about face for legally insuf icient grounds and authorized the private respondent to
continue performing the very same acts that it had considered contrary to equity and good conscience, thereby ignoring
not only the mandates of the Trademark Law, the international commitments of the Philippines, the judicial admission
of private respondent that it will have no more right to use the trademark "MARK" after the Director of Patents shall
have rejected the application to register it, and the admonitions of the Supreme Court. (pp. 24-25, Petition; pp. 25-26,
Rollo.)
To sustain a successful prosecution of their suit for infringement, petitioners, as foreign corporations not engaged in local commerce, rely on
Section 21-A of the Trademark Law reading as follows:
SECTION 21-A. Any foreign corporation or juristic person to which a mark or trade-name has been registered or assigned under this act may
bring an action hereunder for infringement, for unfair competition, or false designation of origin and false description, whether or not it has
been licensed to do business in the Philippines under Act Numbered Fourteen hundred and ifty-nine, as amended, otherwise known as the
Corporation Law, at the time it brings complaint: Provided, That the country of which the said foreign corporation or juristic person is a
citizen or in which it is domiciled, by treaty, convention or law, grants a similar privilege to corporate or juristic persons of the Philippines.
(As inserted by Sec. 7 of Republic Act No. 638.)
to drive home the point that they are not precluded from initiating a cause of action in the Philippines on account of the principal perception
that another entity is pirating their symbol without any lawful authority to do so. Judging from a perusal of the aforequoted Section 21-A, the
conclusion reached by petitioners is certainly correct for the proposition in support thereof is embedded in Philippine legal jurisprudence.
Indeed, it was stressed in General Garments Corporation vs. Director of Patents (41 SCRA 50 [1971]) by then Justice (later Chief
Justice) Makalintal that:
Parenthetically, it may be stated that the ruling in the Mentholatum case was subsequently derogated when Congress, purposely to
"counteract the effects" of said case, enacted Republic Act No. 638, inserting Section 21-A in the Trademark Law, which allows a foreign
corporation or juristic person to bring an action in Philippine courts for infringement of a mark or tradename, for unfair competition, or false
designation of origin and false description, "whether or not it has been licensed to do business in the Philippines under Act Numbered
Fourteen hundred and ifty-nine, as amended, otherwise known as the Corporation Law, at the time it brings complaint."
Petitioner argues that Section 21-A militates against respondent's capacity to maintain a suit for cancellation, since it requires, before a
foreign corporation may bring an action, that its trademark or tradename has been registered under the Trademark Law. The argument
misses the essential point in the said provision, which is that the foreign corporation is allowed thereunder to sue "whether or not it has
been licensed to do business in the Philippines" pursuant to the Corporation Law (precisely to counteract the effects of the decision in the
Mentholatum case). (at p. 57.)
However, on May 21, 1984, Section 21-A, the provision under consideration, was quali ied by this Court in La Chemise Lacoste S.A. vs.
Fernandez (129 SCRA 373 [1984]), to the effect that a foreign corporation not doing business in the Philippines may have the right to sue

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before Philippine Courts, but existing adjective axioms require that qualifying circumstances necessary for the assertion of such right should
irst be af irmatively pleaded (2 Agbayani, Commercial Laws of the Philippines, 1991 Ed., p. 598; 4 Martin, Philippine Commercial Laws, Rev.
Ed., 1986, p. 381). Indeed, it is not suf icient for a foreign corporation suing under Section 21-A to simply allege its alien origin. Rather, it
must additionally allege its personality to sue. Relative to this condition precedent, it may be observed that petitioners were not remiss in
averring their personality to lodge a complaint for infringement (p. 75, Rollo in AC-G.R. SP No. 13132) especially so when they asserted that
the main action for infringement is anchored on an isolated transaction (p. 75, Rollo in AC-G.R. SP No. 13132; Atlantic Mutual Ins. Co. vs. Cebu
Stevedoring Co., Inc., 17 SCRA 1037 (1966), 1 Regalado, Remedial Law Compendium, Fifth Rev. Ed., 1988, p. 103).
Another point which petitioners considered to be of signi icant interest, and which they desire to impress upon us is the protection they
enjoy under the Paris Convention of 1965 to which the Philippines is a signatory. Yet, insofar as this discourse is concerned, there is no
necessity to treat the matter with an extensive response because adherence of the Philippines to the 1965 international covenant due to pact
sunt servanda had been acknowledged in La Chemise (supra at page 390).
Given these con luence of existing laws amidst the cases involving trademarks, there can be no disagreement to the guiding principle in
commercial law that foreign corporations not engaged in business in the Philippines may maintain a cause of action for infringement
primarily because of Section 21-A of the Trademark Law when the legal standing to sue is alleged, which petitioners have done in the case at
hand.
In assailing the justi ication arrived at by respondent court when it recalled the writ of preliminary injunction, petitioners are of the
impression that actual use of their trademarks in Philippine commercial dealings is not an indispensable element under Article 2 of the Paris
Convention in that:
(2) ... no condition as to the possession of a domicile or establishment in the country where protection is claimed may
be required of persons entitled to the bene its of the Union for the enjoyment of any industrial property rights. (p. 28,
Petition; p. 29, Rollo in G.R. No. 91332.)
Yet petitioners' perception along this line is nonetheless resolved by Sections 2 and 2-A of the Trademark Law which speak loudly about the
necessity of actual commercial use of the trademark in the local forum:
SEC. 2. What are registrable. -‑ Trademarks, tradenames and service marks owned by persons, corporations, partnerships or associations
domiciled in the Philippines and by persons, corporations, partnerships or associations domiciled in any foreign country may be registered
in accordance with the provisions of this Act; Provided, That said trademarks, tradenames, or service marks are actually in use in commerce
and services not less than two months in the Philippines before the time the applications for registration are iled; And provided, further,
That the country of which the applicant for registration is a citizen grants by law substantially similar privileges to citizens of the Philippines,
and such fact is of icially certi ied, with a certi ied true copy of the foreign law translated into the English language, by the government of the
foreign country to the Government of the Republic of the Philippines. (As amended by R.A. No. 865).
SEC. 2-A. Ownership of trademarks, tradenames and service marks; how acquired.--Anyone who lawfully produces or deals in
merchandise of any kind or who engages in any lawful business, or who renders any lawful service in commerce, by actual use thereof in
manufacture or trade, in business, and in the service rendered, may appropriate to his exclusive use a trademark, a tradename, or a service
mark not so appropriated by another, to distinguish his merchandise, business or service from the merchandise, business or service of
others. The ownership or possession of a trademark, tradename, service mark, heretofore or hereafter appropriated, as in this section
provided, shall be recognized and protected in the same manner and to the same extent as are other property rights known to the law. (As
amended by R.A. No. 638). (Kabushi Kaisha Isetan vs. Intermediate Appellate Court, 203 SCRA 583 [1991], at pp. 589-590; underscoring
ours.)
Following universal acquiescence and comity, our municipal law on trademarks regarding the requirement of actual use in the Philippines
must subordinate an international agreement inasmuch as the apparent clash is being decided by a municipal tribunal (Mortensen vs. Peters,
Great Britain, High Court of Judiciary of Scotland, 1906, 8 Sessions 93; Paras, International Law and World Organization, 1971 Ed., p. 20).
Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international
law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law
are given a standing equal, not superior, to national legislative enactments (Salonga and Yap, Public International Law, Fourth ed., 1974, p.
16).
The aforequoted basic provisions of our Trademark Law, according to Justice Gutierrez, Jr., in Kabushi Kaisha Isetan vs. Intermediate
Appellate Court (203 SCRA 583 [1991]), have been construed in this manner:
A fundamental principle of Philippine Trademark Law is that actual use in commerce in the Philippines is a pre-requisite to the acquisition of
ownership over a trademark or a tradename.
x x xx x xx x x
These provisions have been interpreted in Sterling Products International, Inc. v. Farbenfabriken Bayer Actiengesellschaft (27 SCRA 1214
[1969]) in this way:
"A rule widely accepted and irmly entrenched because it has come down through the years is that actual use in commerce or business is a
prerequisite to the acquisition of the right of ownership over a trademark.
xxx xxx xxx
"xxx Adoption alone of a trademark would not give exclusive right thereto. Such right grows out of their actual use. Adoption is not use. One
may make advertisements, issue circulars, give out price lists on certain goods; but these alone would not give exclusive right of use. For

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trademark is a creation of use. The underlying reason for all these is that purchasers have come to understand the mark as indicating the
origin of the wares. Flowing from this is the trader's right to protection in the trade he has built up and the goodwill he has accumulated from
use of the trademark. x x x."
In fact, a prior registrant cannot claim exclusive use of the trademark unless it uses it in commerce.
We rule[d] in Pagasa Industrial Corporation v. Court of Appeals (118 SCRA 526 [1982]):
"3. The Trademark law is very clear. It requires actual commercial use of the mark prior to its registration. There is no dispute that respondent
corporation was the irst registrant, yet it failed to fully substantiate its claim that it used in trade or business in the Philippines the subject
mark; it did not present proof to invest it with exclusive, continuous adoption of the trademark which should consist among others, of
considerable sales since its irst use. The invoices (Exhibits 7, 7-a, and 8-b) submitted by respondent which were dated way back in 1957
show that the zippers sent to the Philippines were to be used as 'samples' and 'of no commercial value'. The evidence for respondent must be
clear, de inite and free from inconsistencies. (Sy Ching v. Gaw Lui, 44 SCRA 148-149) 'Samples' are not for sale and therefore, the fact of
exporting them; to the Philippines cannot be considered to be equivalent to the 'use' contemplated by the law. Respondent did not expect
income from such 'samples'. There were no receipts to establish sale, and no proof were presented to show that they were subsequently sold
in the Philippines." (Pagasa Industrial Corp. v. Court of Appeals, 118 SCRA 526 [1982]; Emphasis Supplied)
The records show that the petitioner has never conducted any business in the Philippines. It has never promoted its tradename or trademark
in the Philippines. It is unknown to Filipinos except the very few who may have noticed it while traveling abroad. It has never paid a single
centavo of tax to the Philippine government. Under the law, it has no right to the remedy it seeks. (at pp. 589-591.)
In other words, petitioners may have the capacity to sue for infringement irrespective of lack of business activity in the Philippines on
account of Section 21-A of the Trademark Law but the question of whether they have an exclusive right over their symbol as to justify
issuance of the controversial writ will depend on actual use of their trademarks in the Philippines in line with Sections 2 and 2-A of the same
law. It is thus incongruous for petitioners to claim that when a foreign corporation not licensed to do business in the Philippines iles a
complaint for infringement, the entity need not be actually using its trademark in commerce in the Philippines. Such a foreign corporation
may have the personality to ile a suit for infringement but it may not necessarily be entitled to protection due to absence of actual use of the
emblem in the local market.
Going back to the irst assigned error, we can not help but notice the manner the ascription was framed which carries with it the implied but
unwarranted assumption of the existence of petitioners' right to relief. It must be emphasized that this aspect of exclusive dominion to the
trademarks, together with the corollary allegation of irreparable injury, has yet to be established by petitioners by the requisite quantum of
evidence in civil cases. It cannot be denied that our reluctance to issue a writ of preliminary injunction is due to judicial deference to the
lower courts, involved as there is a mere interlocutory order (Villarosa vs. Teodoro, Sr., 100 Phil. 25 [1956]). In point of adjective law, the
petition has its roots on a remedial measure which is but ancillary to the main action for infringement still pending factual determination
before the court of origin. It is virtually needless to stress the obvious reality that critical facts in an infringement case are not before us more
so when even Justice Feliciano's opinion observes that "the evidence is scanty" and that petitioners "have yet to submit actual copies or
photographs of their registered marks as used in cigarettes" while private respondent has not, for its part, "submitted the actual labels or
packaging materials used in selling its 'Mark' cigarettes." Petitioners, therefore, may not be permitted to presume a given state of facts on
their so-called right to the trademarks which could be subjected to irreparable injury and in the process, suggest the fact of infringement.
Such a ploy would practically place the cart ahead of the horse. To our mind, what appears to be the insurmountable barrier to petitioners'
portrayal of whimsical exercise of discretion by the Court of Appeals is the well-taken remark of said court that:
The petitioner[s] will not be prejudiced nor stand to suffer irreparably as a consequence of the lifting of the preliminary injunction
considering that they are not actually engaged in the manufacture of the cigarettes with the trademark in question and the iling of the
counterbond will amply answer for such damages. (p. 54, Rollo in G.R. No. 91332.)
More telling are the allegations of petitioners in their complaint (p. 319, Rollo in G.R. No. 91332) as well as in the very petition iled with this
Court (p. 2, Rollo in G.R. No. 91332) indicating that they are not doing business in the Philippines, for these frank representations are
inconsistent and incongruent with any pretense of a right which can be breached (Article 1431, New Civil Code; Section 4, Rule 129; Section
3, Rule 58, Revised Rules of Court). Indeed, to be entitled to an injunctive writ, petitioner must show that there exists a right to be protected
and that the facts against which injunction is directed are violative of said right (Searth Commodities Corporation vs. Court of Appeals, 207
SCRA 622 [1992]). It may be added in this connection that albeit petitioners are holders of certi icate of registration in the Philippines of
their symbols as admitted by private respondent, the fact of exclusive ownership cannot be made to rest solely on these documents since
dominion over trademarks is not acquired by the mere fact of registration alone and does not perfect a trademark right (Unno Commercial
Enterprises, Inc. vs. General Milling Corporation, 120 SCRA 804 [1983]).
Even if we disregard the candid statements of petitioners anent the absence of business activity here and rely on the remaining statements of
the complaint below, still, when these averments are juxtaposed with the denials and propositions of the answer submitted by private
respondent, the supposed right of petitioners to the symbol have thereby been controverted. This is not to say, however, that the manner the
complaint was traversed by the answer is suf icient to tilt the scales of justice in favor of private respondent. Far from it. What we are simply
conveying is another basic tenet in remedial law that before injunctive relief may properly issue, complainant's right or title must be
undisputed and demonstrated on the strength of one's own title to such a degree as to unquestionably exclude dark clouds of doubt, rather
than on the weakness of the adversary's evidence, inasmuch as the possibility of irreparable damage, without prior proof of transgression of
an actual existing right, is no ground for injunction being mere damnum absque injuria (Talisay-Silay Milling Co., Inc. vs. CFI of Negros

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Occidental, 42 SCRA 577 [1971]; Francisco, Rules of Court, Second ed., 1985, p. 225; 3 Martin, Rules of Court, 1986 ed., p. 82).
On the economic repercussion of this case, we are extremely bothered by the thought of having to participate in throwing into the streets
Filipino workers engaged in the manufacture and sale of private respondent's "MARK" cigarettes who might be retrenched and forced to join
the ranks of the many unemployed and unproductive as a result of the issuance of a simple writ of preliminary injunction and this, during the
pendency of the case before the trial court, not to mention the diminution of tax revenues represented to be close to a quarter million pesos
annually. On the other hand, if the status quo is maintained, there will be no damage that would be suffered by petitioners inasmuch as they
are not doing business in the Philippines.
With reference to the second and third issues raised by petitioners on the lifting of the writ of preliminary injunction, it cannot be gainsaid
that respondent court acted well within its prerogatives under Section 6, Rule 58 of the Revised Rules of Court:
Section 6. Grounds for objection to, or for motion of dissolution of injunction.-- The injunction may be refused or, if granted ex parte, may
be dissolved, upon the insuf iciency of the complaint as shown by the complaint itself, with or without notice to the adverse party. It may also
be refused or dissolved on other grounds upon af idavits on the part of the defendants which may be opposed by the plaintiff also by
af idavits. It may further be refused or, if granted, may be dissolved, if it appears after hearing that although the plaintiff is entitled to the
injunction, the issuance or continuance thereof, as the case may be, would cause great damage to the defendant while the plaintiff can be
fully compensated for such damages as he may suffer, and the defendant iles a bond in an amount ixed by the judge conditioned that he will
pay all damages which the plaintiff may suffer by the refusal or the dissolution of the injunction. If it appears that the extent of the
preliminary injunction granted is too great, it must be modi ied.
Under the foregoing rule, injunction may be refused, or, if granted, may be dissolved, on the following instances:
(1) If there is insuf iciency of the complaint as shown by the allegations therein. Refusal or dissolution may be granted in this case with or
without notice to the adverse party.
(2) If it appears after hearing that although the plaintiff is entitled to the injunction, the issuance or continuance thereof would cause great
damage to the defendant, while the plaintiff can be fully compensated for such damages as he may suffer. The defendant, in this case, must
ile a bond in an amount ixed by the judge conditioned that he will pay all damages which the plaintiff may suffer by the refusal or the
dissolution of the injunction.
(3) On other grounds upon af idavits on the part of the defendant which may be opposed by the plaintiff also by af idavits.
Modi ication of the injunction may also be ordered by the court if it appears that the extent of the preliminary injunction granted is too great.
(3 Martin, Rules of Court, 1986 ed., p. 99; Francisco, supra, at p. 268.)
In view of the explicit representation of petitioners in the complaint that they are not engaged in business in the Philippines, it inevitably
follows that no conceivable damage can be suffered by them not to mention the foremost consideration heretofore discussed on the absence
of their "right" to be protected. At any rate, and assuming in gratia argumenti that respondent court erroneously lifted the writ it previously
issued, the same may be cured by appeal and not in the form of a petition for certiorari (Clark vs. Philippine Ready Mix Concrete Co. 88 Phil.
460 [1951]). Verily, and mindful of the rule that a writ of preliminary injunction is an interlocutory order which is always under the control of
the court before inal judgment, petitioners' criticism must fall lat on the ground, so to speak, more so when extinction of the previously
issued writ can even be made without previous notice to the adverse party and without a hearing (Caluya vs. Ramos, 79 Phil. 640 [1947]; 3
Moran, Rules of Court, 1970 ed., p. 81).
WHEREFORE, the petition is hereby DISMISSED and the Resolutions of the Court of Appeals dated September 14, 1989 and November 29,
1989 are hereby AFFIRMED.
SO ORDERED.
Bidin, J., concur.
Feliciano, J., (Chairman), see dissenting opinion.
Davide, Jr., J., in the result.
Romero, J., no part.
Supreme Court of the Philippines

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DISSENTING OPINION
FELICIANO, J.:
I ind myself unable to join in the opinion prepared by my distinguished brother, Melo, J.
It seems to me that the issues involved in this case are rather more complex than what has been assumed to be the case by the majority
opinion. For this and related reasons, there is set out below a statement of the relevant facts (as I see them) that is more extensive than what
is ordinarily found in dissenting opinions.
Petitioner Philip Morris, Inc. is a corporation organized and existing under the law of Virginia, U.S.A. Petitioners Benson & Hedges (Canada),
Inc. and Fabriques de Tabac Reunies, S.A., both wholly owned subsidiaries of Philip Morris, Inc., are organized and existing under the law of
Canada and Switzerland, respectively.
Philip Morris, Inc. is registered owner of the trademark "MARK VII" for cigarettes. Its ownership thereof is evidenced by Philippine Patent
Of ice Trademark Certi icate of Registration No. 18723, dated 26 April 1973. The statement attached to the Certi icate of Registration states
that the trademark "MARK VII" had been registered in the United States Patent Of ice, on the Principal Register, under Certi icate of
Registration No. 888,931 issued on 7 April 1970. The statement also requested that that trademark be registered in the Philippine Patent
Of ice on the Principal Register in accordance with Section 37 of R.A. No. 166, as amended.
Benson & Hedges (Canada), Inc. is the registered owner of the trademark "MARK TEN" also for cigarettes, as evidenced by Philippine Patent
Of ice Trademark Certi icate of Registration No. 11147, dated 28 May 1964, on the Principal Register. This Trademark Certi icate of
Registration was originally issued in the name of Canadian Tabaco ina Ltd. and later assigned to Benson & Hedges (Canada), Inc. Petitioners
alleged that the name Canadian Tabaco ina Ltd. was later changed to Benson & Hedges (Canada) Ltd. This Trademark Certi icate of
Registration was renewed on 28 May 1984. The statement attached thereto stated that the "date of irst use of the trademark 'MARK TEN' in
trade in or with the Philippines is April 15, 1963," and that that trademark had "been in actual use in commerce over the Philippines
continuously for two months."
Fabriques de Tabac Reunies, S.A. is registered owner of the trademark "LARK" also for cigarettes, as evidenced by Philippine Patent Of ice
Trademark Certi icate of Registration No. 10953, dated 25 March 1964. This Trademark Certi icate of Registration was originally issued in
the name of Liggett and Myres Tobacco Company and later assigned to Fabriques de Tabac Reunies, S.A. Petitioners alleged that the name of
Liggett and Myres Tobacco Company was changed later to Fabriques de Tabac Reunies, S.A. The statement attached to this Certi icate of
Registration states that the trademark "LARK" was irst used by Liggett and Myres Tobacco Company on 31 May 1920, and irst used by it "in
commerce in or with the Philippines on February 6, 1963" and has been continuously used by it "in trade in or with the Philippines since
February 6, 1963."
Sometime before 17 October 1981, private respondent Fortune Tobacco Corporation ("Fortune") commenced manufacturing and selling in
the Philippines cigarettes under the brandname "MARK." Fortune also iled on 13 February 1981 with the Philippine Patent Of ice an
application for registration of "MARK" as a trademark for cigarettes.
By a letter dated 17 October 1981, petitioners through their lawyers wrote to Fortune stating that the manufacturing, selling and advertising
of "MARK" cigarettes by Fortune constituted an "infringement or an act of unfair competition with" petitioners' "well-known international
trademarks used on cigarettes and tobacco products which were registered worldwide and with the Philippine Patent Of ice." Petitioners
listed their Philippine Certi icates of Registration for the trademarks "MARK VII," "MARK TEN," and "LARK." Petitioners then asked Fortune
"to cease and desist from further manufacturing, selling or advertising 'MARK’ cigarettes," otherwise appropriate court actions would be iled
without further notice.
On 18 August 1982, petitioners commenced action before the Court of First Instance of Pasig, Metro Manila (Civil Case No. 47374). In their
complaint, petitioners alleged that they were not doing business in the Philippines but had nonetheless the right and the capacity to bring
the instant suit; that they were owners of Philippine Patent Of ice Trademark Certi icates of Registration which were in full force and effect,
covering "MARK VII," "MARK TEN," and "LARK," all for cigarettes (except the last which also covered chewing and smoking tobacco); that
they had registered those trademarks in their respective countries of origin and in other countries of the world and that by virtue of their
"long and extensive use [had] gained international fame and acceptance;" that they had their respective real and effective industrial or
commercial establishments in the United States, Canada and Switzerland, which countries were, like the Philippines, members of the
Convention of Paris for the Protection of Industrial Property; that under that Convention each member-country undertakes to prohibit the
use of a trademark which constitutes a reproduction, imitation or translation of a mark already belonging to a person entitled to the bene its
of the Convention and use for identical or similar goods; that petitioner Fabriques de Tabac Reunies, S.A. had long been using the trademark
"LARK" throughout the world, including the Philippines where its products bearing the trademark "LARK" had been sold in the duty-free
market, and advertised and marketted in the Philippines at least since 1964 and have continued to be so to the present; that Fortune had
without previous consent, authority or license from petitioners, with knowledge of the popularity of petitioners' marks and their Philippine
registrations, manufactured, advertised and sold cigarettes bearing the identical or confusingly similar trademark "MARK" which
unauthorized use constituted an act of infringement under Section 22 of R.A. No. 166, as amended; that thereby the public and the
patronizers of petitioners’ products were being deceived into buying Fortune's cigarettes under the impression and mistaken belief that
Fortune's cigarettes were identical with, or came from the same source as, petitioners' products or that Fortune was licensee of petitioners,
which it was not; that the infringement by Fortune of petitioners' trademarks have in licted damages upon petitioners; that the continued
unauthorized and unlicensed manufacture and sale by Fortune of its infringing products during the litigation would work injustice and cause
irreparable injury to petitioners in violation of their property rights and moreover tend to render the judgment which the court might render

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ineffectual. Petitioners accordingly asked for a writ of preliminary injunction to restrain Fortune from manufacturing or selling "MARK"
cigarettes, and after trial, to make such preliminary injunction permanent and to order Fortune's infringing materials to be destroyed, and for
damages.
Fortune iled an Opposition to petitioners' prayer for preliminary injunction. On 28 March 1983, the trial court[1] issued an Order denying
petitioners' motion for preliminary injunction. In rendering that order, the trial court, while noting that petitioners were holders of
Philippine Certi icates of Trademark Registration, relied heavily on three (3) factors:
Firstly, that petitioners were foreign corporations not doing business in the Philippines;Secondly, that Fortune's application for a registration
as trademark of the word "MARK" for cigarettes was then pending before the Philippine Patent Of ice; andThirdly, that Fortune was the "only
party authorized" by the Bureau of Internal Revenue ("BIR") to manufacture cigarettes bearing the mark "MARK" in the Philippines.
In respect of the irst point, the trial court was obviously heavily in luenced by Fortune's argument that because petitioners were not doing
business in the Philippines, which meant that "they [were] not engaged in the sale, manufacture, importation, exportation and advertisement
of their cigarettes products in the Philippines," Fortune's manufacture and sale of its "MARK" cigarettes could not be said to be causing
petitioners "irreparable damage" within the Philippines. In respect of the second point, the trial judge felt that because the Director of
Patents had not, at that point, denied Fortune's pending application for registration of its trademark "MARK," the grant of a preliminary
injunction was premature. With regard to the third point, the judge noted a letter dated 30 January 1979[2] of the then Acting Commissioner of
Internal Revenue Mr. Conrado P. Diaz, temporarily granting the request of Fortune for a permit to manufacture two (2) new brands of
cigarettes, one of which was "MARK." The trial judge also noted that the BIR letter contained the following paragraph:
"Please be informed further that this authority herein granted does not give you protection against any person or entity whose rights may be
prejudiced by infringement or unfair competition in relation to your above named brands/trademarks.”[3]
The trial judge, however, apparently gave no weight at all to this caveat.
Petitioners sought, on 15 April 1983, reconsideration of Judge Reyes' Order denying preliminary injunction. After Fortune had iled an
Opposition to petitioners' Motion for Reconsideration, and petitioners had iled their Reply and Fortune a Rejoinder, and after an offer of
exhibits by the parties respectively, Judge Reyes issued on 5 April 1984 another Order denying the Motion for Reconsideration. In his second
order, the trial judge laid great stress on the fact that Fortune's application for registration of its trademark "MARK" for cigarettes remained
pending before the Philippine Patent Of ice and that the BIR's approval of Fortune's application to manufacture and sell its "MARK" cigarettes
remained subsisting. On that basis, Judge Reyes denied petitioners' motion for reconsideration.
More than two (2) years later, petitioners iled a "Second Motion for Issuance of Preliminary Injunction" dated 1 September 1986. In their
Second Motion, petitioners invited attention to Paper No. 3, dated 6 April 1983, relating to Fortune's application for registration of its
brandname "MARK." This Paper No. 3 reproduced a letter to Fortune's counsel by Bienvenido A. Palisoc, Senior Trademark Examiner, and
Wilfredo T. Jaramillo, Trademark Examiner, stating that:
"This application [for registration of 'Mark'] has been examined.Caption mark of the application must tally with the
drawing on ile.Subject mark is confusingly similar with the following marks on ile:
a. 'Mark' with Reg. No. SR-2659 for cigarettes.
b. 'Mark VII' with Reg. No. 18723 for cigarettes.
c. 'Mark Ten' with Reg. No. 11147 for cigarettes.
d. 'Lark' with Reg. No. 10953 for cigarettes.
Hence, registration is barred under Sec. 4 (d) of Rep. Act No. 166 as amended.Subject mark has no trademark signi icance and can not serve
its purpose as to indicate the source and origin of goods.Furthermore, the word 'Mark' is generic and therefore incapable of exclusive
appropriation.Makati, Metro Manila, April 6, 1983."[4] (Underscoring supplied)
Petitioners also invited attention to a certi ication dated 8 August 1986 issued by Mr. Luis M. Daca, Jr., Assistant Director, Philippine Patent
Of ice, to the effect that Fortune's application for the mark "MARK" for cigarettes was declared abandoned as of 16 February 1986 and was
now deemed forfeited. In addition, petitioners explained in some detail how Fortune's use of its mark "MARK" was "destructive of
[petitioners'] property right to [their] registered trademarks.”[5] Further, petitioners assailed Fortune's argument that issuance of preliminary
injunction would cause "loss of revenue and taxes to the Government" and that more damages would be sustained by Fortune than by
petitioners since the petitioners do not market their cigarettes in the Philippines.
After Fortune had iled an Opposition to petitioners' Second Motion, the trial court, this time presided over by Judge Nicolas Galing, issued an
Order dated 22 April 1987 denying once more the motion for issuance of a writ of preliminary injunction. In this order, Judge Galing relied on
two (2) points: irstly, according to the trial judge, petitioners had not shown that the products they sought to Protect from Fortune's "MARK"
cigarettes were "in actual use and available for commercial purposes anywhere in the Philippines;" and secondly, it appeared that while
Fortune's original application had been abandoned, it could be re- iled and was in fact re- iled. Thus, Judge Galing in effect reiterated Judge
Reyes’s position that until the Director of Patents had de initively acted upon Fortune's application for registration of "MARK," petitioners'
prayer for preliminary injunction could not be granted.
Petitioners then iled a Petition for Review with the Supreme Court, which Petition was docketed as G.R. No. 78141. The Court ordered
respondents to ile their Comments on the Petition and on 30 September 1987, the Court referred the Petition to the Court of Appeals.
In due course of time, the Court of Appeals, through Cacdac, Jr., J.,[6] rendered a decision on 5 May 1989 setting aside the 22 April 1987 order
of the trial court and ordering issuance of a writ of preliminary injunction upon iling of a bond by petitioners in the sum of P200,000.00 to
be approved by the appellate court, "enjoining the private respondents, its agents, employees and representatives from manufacturing,

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selling and/or advertising 'MARK' cigarettes until further orders." The Court of Appeals said in pertinent part:
"There is no dispute that petitioners are the registered owners of the trademarks for cigarettes 'MARK VII,' 'MARK TEN,' and 'LARK'.
(Annexes B, C and D, Petition). As found and reiterated by the Philippine Patent Of ice in two (2) of icial communications dated April 6, 1983
and January 24, 1984, the trademark 'MARK' is 'confusingly similar' to the trademarks of petitioners, hence, registration was barred under
Sec. 4(d) of Rep. Act No. 166, as amended (pp. 106, 139 SCA rollo). In a third of icial communication dated April 8, 1986, the trademark
application of private respondent for the mark 'MARK' under Serial No. 44008 iled on February 13, 1981 which was declared abandoned as
of February 16, 1986, is now deemed forfeited, there being no revival made pursuant to Rule 98 of the Revised Rules of Practitioners in
Trademark Cases.' (p. 107, CA rollo). The foregoing documents or communications mentioned by petitioners as 'the changes in material facts
which occurred after March 28, 1983', are not also questioned by respondents.”[7] (Underscoring supplied)
The Court of Appeals also noted the BIR letter of 30 January 1979 temporarily granting Fortune’s request for a permit to manufacture two
(2) new brands of cigarettes, including one branded "MARK," and the caveat (earlier noted)[8] that the BIR's authorization would not give
Fortune any protection against any person or entity whose rights may be prejudiced by infringement or unfair competition on the part
Fortune. The Court of appeals also referred to the certi icate dated 26 September 1986 of Mr. Cesar G. Sandico, then Director of Patents,
issued upon request of Fortune's counsel stating that there was a pending application for registration of the trademark "MARK" for cigarettes
under Serial No. 59872, iled on 16 September 1986, noting at the same time, that Director Sandico's certi ication contained the following
caveat or quali ication:
"This certi ication, however, does not give protection as against any person or entity whose right may be prejudiced by infringement or unfair
competition in relation to the aforesaid trademark nor the right to register as contrary to the provisions of the Trademark Law, Republic Act
No. 166 as amended and the Revised Rules of Practice in Trademark Cases." (Underscoring supplied)
The Court of Appeals then went on to say that:
"[We] believe and hold that petitioners have shown a prima facie case for the issuance of the writ of prohibitory injunction for the purposes
stated in their complaint and subsequent motions for the issuance of the prohibitory writ. (Buayan Cattle Co. v. Quintillan, 125 SCRA
276).The requisites for the granting of preliminary injunction are the existence of the right protected and the facts against which the
injunction is to be directed as violative of said right. (Buayan Cattle Co. v. Quintillan, supra; Ortigas & Co. vs. Ruiz, 148 SCRA 326). It is a writ
framed according to the circumstances of the case commanding an act which the Court regards as essential to justice and restraining an act it
deems contrary to equity and good conscience (Rosauro vs. Cuneta, 151 SCRA 570). If it is not issued, the defendant may, before inal
judgment, do or continue the doing of the act which the plaintiff asks the court to restrain, and thus make ineffectual the inal judgment
rendered afterwards granting the relief sought by the plaintiff (Calo vs. Roldan, 76 Phil. 445). Generally, its grant or denial rests upon the
sound discretion of the Court except on a clear case of abuse (Belish Investment & Finance Co. vs. Statement House, 151 SCRA 636).
Petitioners' right of exclusivity to their registered trademarks being clear and beyond question, the respondent court's denial of the
prohibitive writ constituted excess of jurisdiction and grave abuse of discretion. If the lower court does not grant preliminary injunction, the
appellate court may grant the same (Service Specialists, Inc. v. Sheriff of Manila, 145 SCRA 139).”[9] (Underscoring supplied)
Fortune moved for reconsideration of the Decision of the Court of Appeals insisting that petitioners must irst prove their "clear,
unmistakable and unquestioned right to the writ, coupled with the possible damages it would suffer;" that petitioners had not suffered any
"great and irreparable injury to speak of" because "petitioners have never done business in this country in the past nor in the future;" that,
on the other hand, Fortune had been authorized by the BIR to manufacture "MARK" cigarettes, "thereby generating much needed funds for
the Government;" that Fortune's application for registration of its brandname "MARK" with the Philippine Patent Of ice "still pending" and
not " inally rejected" by the Director of Patents. On 12 July 1989, the Court of Appeals issued a Minute Resolution stating that the issues and
arguments in Fortune's motion for reconsideration had been "fully discussed" in the Decision sought to be reconsidered, that no new
arguments were raised, and accordingly denied the Motion for Reconsideration.
Fortune then iled a "Motion to Dissolve Writ of Preliminary Injunction with Offer to File Counterbond" dated 25 July 1989, where it
reiterated the basic arguments it previously made.
A "Supplemental Motion to Lift Writ of Preliminary Injunction with Offer of Counterbond" dated 17 August 1989 was next iled by Fortune. In
this "Supplemental Motion," Fortune averred that it had paid to the BIR for 1988 the amount of P181,940,177.38 for speci ic taxes; while for
January to July 1989, it had paid the amount of P120,120,735.28. Fortune also referred to its employees assigned to the manufacture of
"MARK" cigarettes who were apparently apprehensive that their services would eventually be terminated and that they would join the ranks
of the unemployed.
Petitioners iled an Opposition to the "Motion to Dissolve" and a Comment on the "Supplemental Motion" of Fortune.
On 14 September 1989, the Court of Appeals once more through Cacdac, Jr., J. issued a Resolution lifting the preliminary injunction it had
earlier granted upon the iling of counterbond by private respondent in the amount of P400,000.00 to answer for any damages petitioners
may suffer as a consequence of such lifting. In its Resolution, the Court of Appeals referred to the "lots of workers employed [who] will be
laid off as a consequence of the injunction" and that Government "will stand to lose the amount of speci ic taxes being paid by" Fortune. It
then went on to say:
"After a thorough re-examination of the issues involved and the arguments advanced by both parties in the offer to ile a counterbond and the
opposition thereto, WE believe that there are sound and cogent reasons for Us to grant the dissolution of the writ of preliminary injunction
by the offer of the private respondent to put up a counterbond to answer for whatever damages the petitioner may suffer as a consequence of
the dissolution of the preliminary injunction.The petitioner will not be prejudiced nor stand to suffer irreparably as a consequence of the

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lifting of the preliminary injunction considering that they are not actually engaged in the manufacture of the cigarettes with the trademarks
in question and the iling of the counterbond will amply answer for such damages.While the rule is that an offer of a counterbond does not
operate to dissolve an injunction previously granted, nevertheless, it is equally true that an injunction could be dissolved only upon good and
valid grounds subject to the sound discretion of the court. As WE have maintained the view that there are sound and good reasons to lift the
preliminary injunction, the motion to ile a counterbond is granted.”[10] (Emphases supplied)
Petitioners iled a Motion for Reconsideration, without success.
In the instant Petition, petitioners make the following basic submissions:
"1. that the Court of Appeals gravely abused its discretion amounting to excess of jurisdiction when it required, contrary to law and
jurisprudence that in order that petitioners may suffer irreparable injury due to the lifting of the injunction, petitioners should be using
actually their registered trademarks in commerce in the Philippines;2. that the Court of Appeals gravely abused its discretion amounting to
excess of jurisdiction when it lifted the injunction in violation of Section 6 of Rule 58 of the rules of Court;3. that the Court of Appeals gravely
abused its discretion amounting to excess of jurisdiction when, after having found that the trial court had committed grave abuse of
discretion and exceeded its jurisdiction for having refused to issue the writ of injunction to restrain respondent's acts that are contrary to
equity and good conscience, it made a complete about face for legally insuf icient grounds and authorized private respondent to continue
performing the very same acts that it had considered contrary to equity and good conscience, thereby ignoring not only the mandates of the
trademark law, the international commitments of the Philippines, the judicial admission of private respondent that it will have no more right
to use the trademark "MARK" after the Director of Patents shall have rejected the application to register it, and the
The Court required private respondent to ile a comment. The comment reiterated the basic arguments made by private respondent before
the Court of Appeals:
a. that petitioners are not suffering any irreparable damage by the lifting of the preliminary injunction by the Court of appeals. Whatever
damages they might suffer are "based purely on speculation, since by judicial admission, petitioners are not doing business in the
Philippines. Private respondent stressed that petitioners "are not manufacturing, importing or selling ‘MARK TEN,' 'MARK VII' or 'LARK' in
this country," notwithstanding "false allegation" that petitioners have been "using" the said trademarks "in commerce and trade" in the
Philippines since 1963 up to the present.b. that whatever damage petitioners may be suffering is negligible when compared to the taxes that
would have to be foregone by the Government considering that private respondent "paid an annual speci ic tax of P240 Million only on the
manufacture and sale of "MARK cigarettes." Private respondent claims that, in contrast, petitioners which are foreign corporations "based in
three different countries" have not contributed anything to Government tax revenues.c. that the Court of Appeals lifted the writ of
preliminary injunction it had earlier issued upon the submission of a counter bond in double the amount of the bond submitted by
petitioners, under Section 6, Rule 58 of the Rules of Court, which act was within the sound discretion of the Court of Appeals. Private
respondent also stressed that the right of petitioners to the injunction was still being litigated before the trial court.
Reformulating the issues raised by the petitioners here, we think the principal issues may be reduced to the following: irstly, is there a clear
legal right to the relief asked by petitioners in the form of a preliminary injunction to restrain private respondent from manufacturing, selling
and distributing cigarettes under the trademark "MARK"? The second question is: are private respondent's acts complained of by petitioners
causing irreparable injury to petitioners' rights in the premises? These two (2) basic issues are obviously related and need to be addressed
together.
The irst point that needs to be stressed is that petitioners have Philippine Certi icates of Registration for their trademarks "MARK TEN",
"MARK VII, and "LARK" in the Principal Register.
Upon the other hand, private respondent's trademark “MARK" is not registered in the Principal Register in the Of ice of the Director of
Patents; private respondent is simply an applicant for registration of a mark, the status of which application may be noted later.
It is important to stress the legal effects of registration of a trademark in the Principal Register in the Of ice of the Director of Patents. Section
20 of R.A. No. 166, as amended, sets out the principal legal effects of such registration:
"Sec. 20. Certi icate of registration prima facie evidence of validity. -- A certi icate of registration of a mark or trade name shall be prima facie
evidence of the validity of the registration, the registrant's ownership of the mark or trade name, and of the registrant's exclusive right to use
the same in connection with the goods, business or services speci ied in the certi icate, subject to any conditions and limitations stated
therein." (Emphases supplied).
In Lorenzana v. Macagba,12 the Court distinguished between the effects of registration in the Principal Register and registration in the
Supplemental Register in the following manner:
"(1) Registration in the Principal Register gives rise to a presumption of the validity of the registration, the registrant's ownership of the
mark, and his right to the exclusive use thereof. There is no such presumption in registrations in the Supplemental Register.(2) Registration
in the Principal Register is limited to the actual owner of the trademark (Unno Commercial Enterprises v. Gen. Milling Corp., 120 SCRA 804
[1983]) and proceedings therein pass on the issue of ownership, which may be contested through opposition or interference proceedings, or
after registration, in a petition for cancellation.Registration in the Principal Register is constructive notice of the registrant's claims of
ownership, while registration in the Supplemental Register is merely proof of actual use of the trademark and notice that the registrant has
used or appropriated it. (Le Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 373 [1984]: 'Registration in the Supplemental Register x x x serves

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as notice that the registrant is using or has appropriated the trademark.') It is not subject to opposition although it may be cancelled after its
issuance. Corollarily, registration in the Principal Register is a basis for an action for infringement, while registration in the Supplemental
Register is not.(3) In application for registration in the Principal Register, publication of the application is necessary. This is not so in
applications for registration in the Supplemental Register. Certi icates of registration under both Registers are also different from each
other.(4) Proof of registration in the Principal Register may be iled with the Bureau of Customs to exclude foreign goods bearing infringing
marks while it does not hold true for registrations in the Supplemental Register."13 (Underscoring supplied)
When taken with the companion presumption of regularity of performance of of icial duty, it will be seen that issuance of a Certi icate of
Registration of a trademark in the Principal Register also gives rise to the presumption that all requirements of Philippine law necessary for a
valid registration (including prior use in commerce in the Philippines for at least two [2] months) were complied with and satis ied.
In contrast, private respondent iled an application for registration of its mark "MARK" for cigarettes with the Director of Patents soon after it
commenced manufacturing and selling cigarettes trademarked with "MARK." This application was abandoned or "forfeited",14 for failure of
private respondent to ile a necessary Paper with the Director of Patent. It also appears, however, that private respondent later re- iled or
reinstated its application for registration of "MARK"15 and that, so far as the record here before us is concerned, this application remains
merely an application and has not been granted and a Certi icate of Registration in the Principal Register issued.16 While inal action does not
appear as yet to have been taken by the Director of Patents on private respondent's application, there was at least a preliminary
determination of the trademark examiners that the trademark "MARK" was "confusingly similar" with petitioners' marks "MARK VII," "MARK
TEN" and "LARK" and that accordingly, registration was barred under Section 4 (d) of R.A. No. 166, as amended.17
In the trial court, both Judge Reyes and Judge Galing took the position that until the Director of Patents shall have inally acted on private
respondent's application for registration of "MARK," petitioners cannot be granted the relief of preliminary injunction. It is respectfully
submitted that this position is both erroneous and unfortunate. In reliance upon that position, private respondent has kept its application for
registration alive and pending. The Director of Patents in turn may well have refrained from taking inal action on that application, even in
the absence of a restraining order from the courts out of deference to the courts. The pendency of the application before the Director of
Patents is not in itself a reason for denying preliminary injunction. Our courts have jurisdiction and authority to determine whether or not
"MARK" is an infringement on petitioners' registered trademarks. Under our case law, the issuance of a Certi icate of Registration of a
trademark in the Principal Register by the Director of Patents would not prevent a court from ruling on whether or not the trademark so
granted registration is confusingly similar with a previously registered trademark, where such issue is essential for resolution of a case
properly before the court. A fortiori, a mere application for registration cannot be a suf icient reason for denying injunctive relief, whether
preliminary or de initive. In the case at bar, petitioners' suit for injunction and for damages for infringement, and their application for a
preliminary injunction against private respondent, cannot be resolved without resolving the issue of claimed confusing similarity.
In the case at bar, the evidence of record is scanty. Petitioners have not submitted actual copies or photographs of their registered marks as
used in cigarettes. Private respondent has not, for its part, submitted the actual labels or packaging material used in selling its "MARK"
cigarettes. Petitioners have appended to their Petition a photocopy of an advertisement of "MARK" cigarettes. Private respondent has not
included in the record a copy of its application for registration of "MARK" for cigarettes, which would include a facsimile of the trademark
being applied for. It should be noted that "MARK" and "LARK," when read or pronounced orally, constitute idem sonans in striking degree.
Further, "MARK" has taken over the dominant word in "MARK VII" and "MARK TEN." These circumstances, coupled with private respondent's
failure to explain how or why it chose, out of all the words in the English language, the word "mark" to refer to its cigarettes, lead me to the
submission that there is a prima facie basis for holding, as the Patent Of ice has held and as the Court of Appeals did hold originally, that
private respondent's "MARK" infringes upon petitioners' registered trademarks.
II
There is thus no question as to the legal rights of petitioners as holders of trademarks registered in the Philippines. Private respondent,
however, resists and assails petitioners’ effort to enforce their legal rights by heavily underscoring the fact that petitioners are not registered
to do business in the Philippines and are not in fact doing business in the Philippines. It is thus necessary to determine what consequences, if
any, low from this circumstance so far as enforcement of petitioners' rights as holders of registered Philippine trademarks is concerned.
It should be stressed at the outset that that circumstance has no legal impact upon the right of petitioners to own and register their
trademarks in the Philippines. Section 2 of R.A. No. 166 as amended expressly recognizes as registrable, under this statute, marks which are
owned by corporations domiciled in any foreign country:
"Sec. 2. What are registrable. -- Trademarks, trade names and service marks owned by persons, corporations, partnerships or associations
domiciled in the Philippines and by persons, corporations, partnerships or associations domiciled in an foreign country may be registered in
accordance with the provisions of this Act; Provided, That said trade marks, trade names or service marks are actually in use in commerce
and services not less than two months in the Philippines before the time the applications for registration are iled: And provided further, That
the country of which the applicant for registration is a citizen grants by law substantially similar privileges to citizens of the Philippines, and
such fact is of icially certi ied, with a certi ied true copy of the foreign law translated into the English language, by the government of the
foreign country to the Government of the Republic of the Philippines." (Emphases in the original)
It is also entirely clear that foreign corporations and corporations domiciled in a foreign country are not disabled from bringing suit in
Philippine courts to protect their rights as holders of trademarks registered in the Philippines. Under Section 21-A of R.A. No. 166, as

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amended, any foreign corporation which is a holder of a trademark registered under Philippine law may bring an action for infringement of
such mark or for unfair competition or for false designation of origin and false description "whether or not it has been licensed to do
business in the Philippines under the [Corporation Law] at the time it brings complaint, subject to the proviso that:
"x x x that the country of which the said foreign corporation or juristic person is a citizen or in which it is domiciled by treaty, convention or
law, grants similar privilege to corporate or juristic persons of the Philippines." (Emphases supplied)
The rule thus embodied in Section 21-A of R.A. No. 166 as amended is also set out in Article 2 of the Paris Convention for the Protection of
Industrial Property ("Paris Convention"), to which the Philippines, the United States, Canada and Switzerland are all parties.18 Article 2 of the
Paris Convention provides in relevant part:
"Article 2
(1) Nationals of any country of the Union shall, as regards the protection of industrial property, enjoy in all the other countries of the Union
the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially
provided for by this Convention. Consequently, they shall have the same protection as the latter, and the same legal remedy against any
infringement of their rights, provided that the conditions and formalities imposed upon nationals are complied with.
(2) However, no requirement as to domicile or establishment in the country where protection is claimed may be imposed upon nationals of
countries of the Union for the enjoyment of any industrial property rights.
xxx xxx x x x.”(Underscoring supplied)
Article 2, paragraph 1 of the Paris Convention embodies the Principle of "national treatment" or "assimilation with nationals," one of the
basic rules of the Convention.19 Under Article 2, paragraph 1 of the Paris Convention, nationals of Canada, Switzerland and the United States
who are all countries of the Paris Union are entitled to enjoy in the Philippines, also a country of the Union, the advantages and protections
which Philippine law grants to Philippine nationals. Article 2 paragraph 2 of the Paris Convention restrains the Philippines from imposing a
requirement of local incorporation or establishment of a local domicile as a pre-requisite for granting to foreign nationals the protection
which nationals of the Philippines are entitled to under Philippine law in respect of their industrial property rights. It should be noted that
Article 2, paragraph 2 also constitutes proof of compliance with the requirement of reciprocity between, on the one hand, the Philippines
and, on the other hand, Canada, Switzerland and the United States required under Section 21-A of R.A. No. 166 as amended.
The net effect of the statutory and treaty provisions above referred to is that a corporate national of a member country of the Paris Union is
entitled to bring in Philippine courts an action for infringement of trademarks, or for unfair competition, without necessity for obtaining
registration or a license to do business in the Philippines, and without necessity of actually doing business in the Philippines. Article 2 as
quoted above is in effect with respect to all four (4) countries.
Such has been the rule in our jurisdiction even before the enactment of R.A. No. 166 and before the Philippines became a party to the Paris
Convention. In Western Equipment and Supplies Company, et al. v. Reyes, etc., et al.,20 petitioner Western Electrical Company, a U.S.
manufacturer of electrical and telephone equipment and supplies not doing business in the Philippines, commenced action in a Philippine
court to protect its corporate name from unauthorized use thereof by certain Philippine residents. The Philippine residents sought to
organize a Philippine corporation to be known as "Western Electrical Company" for the purpose of manufacturing and selling electrical and
telephone equipment in the Philippines. The local residents resisted the suit by contending, inter alia, that the petitioner Western Electrical
Company had never transacted business in the Philippines and that registration of private respondent's articles of incorporation could not in
any way injure petitioner. The Supreme Court, in rejecting this argument, stated that:
"x x x a foreign corporation which has never done business in the Philippines --- but is widely and favorably known in the Philippines through
the use therein of its products bearing its corporate name and tradename has a legal right to maintain an action in the [Philippines]. The
purpose of such a suit is to protect its reputation, corporate name and goodwill which has been established through the natural development
of its trade for a long period of years in the doing of which it does not seek to enforce any legal or contract rights arising from or closing out
of any business which it has transacted in the Philippines. x x x"21 (Underscoring supplied)
Similarly, in Asari Yoko v. Kee Boc,22 a Japanese corporation, also not engaged in any business in the Philippines, successfully opposed an
application for registration of its trademark "Race Brand" on shirts and undershirts by a local businessman, even though the Japanese
company had not previously registered its own mark "Race Brand" in the Philippines.
Again, in General Garments Corporation v. Director of Patents and Puritan Sportswear Corporation,23 Puritan Sportswear Corporation, an
entity organized in Pennsylvania, U.S.A. and not doing business in the Philippines, iled a petition for cancellation of the mark "Puritan"
which was registered in the name of petitioner General Garments Corporation for assorted men's wear, undershirts, briefs, shirts, sweaters
and jackets. Puritan Sportswear alleged ownership and prior use of the trademark "Puritan" in the Philippines. Petitioner General Garments,
on the other hand, contended that Puritan Sportswear, being a foreign corporation not licensed to do, and not doing, business in the
Philippines, could not maintain an action for cancellation of a trademark. The Court, in upholding the Director of Patents' cancellation of the
registration of the mark "Puritan" in the name of General Garments, said:
"...such mark should not have been registered in the irst place (and consequently may be cancelled if so required) if it consists of or
comprises a mark or tradename which so resembles a mark or tradename…. previously used in the Philippines by another and not
abandoned, as to be likely, when applied to or used in connection with goods, business or services of the applicant, to cause confusion or
mistake or to deceive purchasers."24 (Emphases supplied)
In Converse Rubber Corporation v. Universal Rubber Products, Inc.,25 petitioner Converse Rubber Corporation was an American
manufacturer of rubber shoes, not doing business on its own in the Philippines and not licensed to do business in the Philippines, opposed

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the application for registration of the trademark "Universal Converse and Device" to be used also in rubber shoes and rubber slippers by
private respondent Universal Rubber Products, Inc. ("Universal"). In reversing the Director of Patents and holding that Universal's
application must be rejected, the Supreme Court said:
"The sales of 12 to 20 pairs a month of petitioner's rubber shoes cannot be considered insigni icant, considering that they appear to be of
high expensive quality, which not too many basketball players can afford to buy. Any sale made by a legitimate trader from his store is a
commercial act establishing trademark rights since such sales are made in due course of business to the general public, not only to limited
individuals. It is a matter of public knowledge that all brands of goods ilter into the market, indiscriminately sold by jobbers, dealers and
merchants not necessarily with the knowledge or consent of the manufacturer. Such actual sale of goods in the local market establishes
trademark use which serves as the basis for any action aimed at trademark pre-emption. It is a corollary logical deduction that while
Converse Rubber Corporation is not licensed to do business in the country and is not actually doing business here, it does not mean that its
goods are not being sold here or that it has not earned a reputation or goodwill as regards its products. The Director of Patents was,
therefore, remiss in ruling that the proofs of sales presented’ was made by a single witness who had never dealt with nor had never known
opposer [petitioner] x x x without Opposer having a direct or indirect hand in the transaction to be the basis of trademark pre-emption."26
(Emphases supplied)
Three (3) other cases may be noted. The irst is La Chemise Lacoste, S.A. v. Fernandez27 La Chemise Lacoste, S.A. although a foreign
corporation not engaged in and not licensed to do business in the Philippines, was accorded protection for its trademarks "Lacoste",
"Chemise Lacoste," and "Crocodile Device" for clothing and sporting apparel. The Court recognized that those marks were "world famous
trademarks which the Philippines, as a party to the Paris Union, is bound to protect." Similarly, in Del Monte Corporation, et al. v. Court of
Appeals, et al.,28 petitioner Del Monte Corporation was a company organized under the laws of the United States and not engaged in business
in the Philippines. Because both the Philippines and the United States are signatories to the Convention of Paris, which grants to nationals of
the parties the rights and advantages which their own nationals enjoy for the repression of acts of infringement and unfair competition, the
Court, having found that private respondent's label was an infringement of Del Monte's trademark, held Del Monte entitled to recover
damages.
In Puma Sportschuhfabriken Rudolf Dassler, K.G. v. Intermediate Appellate Court, et al,29 petitioner Puma was a foreign corporation existing
under the laws of the Federal Republic of Germany not registered to do business and not doing business in the Philippines, iled a complaint
for infringement of trademark and for issuance of a writ of preliminary injunction against a local manufacturing company. Reversing the
Court of Appeals, this Court held that Puma had legal capacity to bring the suit in the Philippines under Section 21-A of R.A. No. 166 as
amended and under the provisions of the Paris Convention to which both the Philippines and the Federal Republic of Germany are parties.
The Court also noted that "Puma" is an internationally known brandname.
The relevancy of the doctrines set out in the cases above cited are conceded by my distinguished brother Melo, J. in the majority opinion. The
majority opinion, however, goes on to say:
"In other words, petitioners may have the capacity to sue for infringement irrespective of lack of business activity in the Philippines on
account of Section 21-A of the Trademark Law but the question of whether they have an exclusive right over their symbol as to justify
issuance of the controversial writ will depend on actual use of their trademarks in the Philippines in line with Sections 2 and 2-A of the same
law. It is thus incongruous for petitioners to claim that when a foreign corporation not licensed to do business in the Philippines iles a
complaint for infringement, the entity need not be actually using its trademark in commerce in the Philippines. Such a foreign corporation
may have the personality to ile a suit for infringement but it may not necessarily be entitled to protection due to absence of actual use of the
emblem in the local market."
With great respect, certain essential quali ications must be made respecting the above paragraph. Firstly, of the petitioners' three (3) marks
here involved, two (2) of them -- i.e., "MARK TEN" and "LARK" -- were registered in the Philippines on the basis of actual use in the
Philippines, precisely in accordance with the requirements of Section 2-A and Section 5 (A) of R.A. No. 166 as amended. The pre-registration
use in commerce and trade in the Philippines for at least two (2) months as required by the statute, is explicitly stated in the Certi icates of
Registration. The very fact that the appropriate Philippine Government of ice issued the Certi icates of Registration necessarily gave rise to
the presumption that such pre-registration use had in fact been shown to the satisfaction of the Philippines Patent Of ice (now the Bureau of
Patents, Trademarks and Technology Transfer [“BPTTT"]). It is important to note that respondent Fortune has not purported to attack the
validity of the trademarks "Mark Ten" and "Lark" by pretending that no pre-registration use in commerce in the Philippines had been
shown.30
The third mark of petitioners -- "MARK VII" -- was registered in the Philippines on the basis of Section 37 of R.A. No. 166 as amended, i.e., on
the basis of registration in the country of origin and under the Paris Convention. In such a registration, by the express provisions of Section
37 (B) of R.A. No. 166 as amended, prior (pre-registration) use in commerce in the Philippines need not be alleged.
Whether the Philippine trademark was based on actual use in the Philippine (under Section 2-A) or on registration in a foreign country of
origin (under Section 37), the statute appears to require that trademarks (at least trademarks not shown to be internationally "well-known")
must continue to be used in trade and commerce in the Philippines. It is, however, essential to point out that such continued use, as a
requirement for the continued right to the exclusive use of the registered trademark, is presumed so long as the Certi icate of Registration
remains outstanding and so long as the registered trademark owner complies with the requirements of Section 12 of R.A. No. 166 as
amended of iling af idavits with the BPTTT on the 5th, 10th and 15th anniversaries of the date of issuance of the Certi icate of Registration,
showing that the trademark is still in use or showing that its non-use is not due to any intention to abandon the same. In the case at bar,

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again, respondent Fortune has not explicitly pretended that the petitioners' trademarks have been abandoned by non-use in trade and
commerce in the Philippines although it appears to insinuate such non-use and abandonment by stressing that petitioners are not doing
business in the Philippines.
That petitioners are not doing business and are not licensed to do business in the Philippines, does not by any means mean either that
petitioners have not complied with the requirements of Section 12 of R.A. No. 166 relating to af idavits of continued use, or that petitioners'
trademarks are not in fact used in trade and commerce in the Philippines. In the Converse case, as earlier noted, the Court held that the
circumstance that the foreign owner of a Philippine trademark is not licensed to do business and is not doing business in the Philippines,
does not mean that petitioner's goods (that is, goods bearing petitioner's trademark) are not sold in the Philippines. For cigarettes bearing
petitioners' trademarks may in fact be imported into and be available for sale in the Philippines through the acts of importers or distributors.
Petitioners have stated that their "Mark VII," "Mark Ten" and "Lark" cigarettes are in fact brought into the country and available for sale here
in, e.g., duty-free shops, though not imported into or sold in the Philippines by petitioners themselves. There is no legal requirement that the
foreign registrant itself manufacture and sell its products here. All the statute requires is the use in trade and commerce in the Philippines,
and that can be carried out by third party manufacturers operating under license granted by the foreign registrant or by the importation and
distribution of inished products by independent importers or traders. The "use" of the trademark in such instances by the independent third
parties constitutes use of the foreign registrant's trademarks to the bene it of the foreign registrant.31
III
We turn to petitioners' claim that they are suffering irreparable damage by reason of the manufacture and sale of cigarettes under the
trademark "MARK." Here again, a basic argument of private respondent was that petitioners had not shown any damages because they are
not doing business in the Philippines. I respectfully maintain that this argument is specious and without merit.
That petitioners are not doing business and are not licensed to do business in the Philippines, does not necessarily mean that petitioners are
not in a position to sustain, and do not in fact sustain, damage through trademark infringement on the part of a local enterprise.32 Such
trademark infringement by a local company may, for one thing, affect the volume of importation into the Philippines of cigarettes bearing
petitioners' trademarks by independent or third party traders.
The damage which petitioners claim they are sustaining by reason of the acts of private respondents, are not limited to impact upon the
volume of actual imports into the Philippines of petitioners' cigarettes. Petitioners urge that private respondent's use of its confusingly
similar trademark "MARK" is invasive and destructive of petitioners' property right in their registered trademarks because
"a) Plaintiffs' undeniable right to the exclusive use of their registered trademarks is effectively effaced by defendant's use of a confusingly
similar trademark;b) Plaintiffs would lose control of the reputation of their products as their reputation will depend on defendant's
commercial activities and the quality of defendant's products;c) The market in the Philippines for plaintiffs' products will be
pre-empted;d) Purchasers will think that defendant's goods are approved or sponsored by plaintiffs’e) Defendant will be allowed to
bene it from the reputation of plaintiffs' goods and trademarks;f) Defendant will be effectively authorized to continually invade plaintiffs'
property rights, for which invasion no fair and reasonable redress can be had in a court of law; andg) Plaintiffs will lose their goodwill and
trade and the value of their registered trademarks will be irreparably diluted and the damages to be suffered by plaintiffs cannot be
redressed fairly in terms of money.”33
Modern authorities on trademark law view trademarks as symbols which perform three (3) distinct functions: irst, they indicate origin or
ownership of the articles to which they are attached; second, they guarantee that those articles come up to a certain standard of quality;
third, they advertise the articles they symbolize.34
The irst two (2) functions have long been recognized in trademark law which characterizes the goodwill or business reputation symbolized
by a trademark as a property right protected by law. Thus, the owner of a trademark is held entitled to exclude others from the use of the
same, or of a confusingly similar, mark where confusion results in diversion of trade or inancial injury. At the same time, trademarks warn
against the imitation or faking of products and prevent the imposition of fraud upon the public. The irst two (2) functions of trademarks
were aptly stressed in, e.g., the La Chemise Lacoste case where the objectives of trademark protection were described in the following terms:
“. . . to stem the tide of fake and counterfeit consumer items looding the Philippine market or exported abroad from our country. The greater
victim is not so much the manufacturer whose product is being faked but the Filipino consuming public and in the case of exportations, our
image abroad……. We buy a kitchen appliance, a household tool, perfume, face powder, other toilet articles, watches, brandy or whisky, and
items of clothing like jeans, T-shirts, neckties, etc.- the list is quite lengthy- and pay good money relying on the brand name as guarantee of its
quality and genuine nature only to explode in bitter frustration and helpless anger because the purchased item turns out to be a shoddy
imitation, albeit a clever looking counterfeit, of the quality product….”35
The third or advertisement function of trademark has become of especial importance given the modern technology of communication and
transportation and the growth of international trade.36 Through advertisement in the broadcast and print media, the owner of the trademark
is able to establish a nexus between its trademarked products and the public in regions where the owner does not itself manufacture or sell
its own products.37 Through advertisement, a well-established and well-earned reputation may be gained in countries where the trademark
owner has itself no established business connection.38 Goodwill may thus be seen to be much less closely con ined territorially than, say, a
hundred or ifty years ago.39 It is no longer true that "a trademark of itself cannot travel to markets where there is no article to wear the
badge and no trader to offer the article.”40 Advertisement of trademarks is geared towards the promotion of use of the marked article and the

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attraction of potential buyers and users;41 by ixing the identity of the marked article in the public mind, it prepares the way for growth in
such commerce whether the commerce be handled by the trademark owner itself or by its licensees or independent traders.
That a registered trademark has value in itself apart from the trade physically accompanying its use, has been recognized by our Court. In
Ang v. Teodoro,42 the Court was called upon to determine whether there was infringement in the use of the same trademark on articles which
do not belong to the same class of goods which the lawful trademark owner manufactures and sells. In holding that there was infringing use
in such case, the Court said:
".... such unfair trading can cause injury or damage to the irst user of a given trade-mark, irst, by prevention of the natural expansion of his
business and, second, by having his business reputation confused with and put at the mercy of the second user. When noncompetitive
products are sold under the same mark, the gradual whittling away or dispersion of the identity and hold upon the public mind of the mark
created by its irst user, inevitably result. The original owner is entitled to the preservation of the valuable link between him and the public
that has been created by his ingenuity and the merit of his wares or services. Experience has demonstrated that when a well-known
trade-mark is adopted by another even for a totally different class of goods, it is done to get the bene it of the reputation and advertisements
of the originator of said mark, to convey to the public a false impression of some supposed connection between the manufacturer of the
article sold under the original mark and the new articles being tendered to the public under the same or similar mark...The owner of a
trademark or tradename has a property right in which he is entitled to protection, since there is damage to him in the form of confusion of
reputation or goodwill in the mind of the public as well as from confusion of goods." (Emphases supplied)
In Sta. Ana v. Maliwat,43 the Court, through J.B.L. Reyes, J., in holding that the use of the name "Flormen" with respect to shoes was
infringement of the mark "Flormann" used in men's wear such as shirts, polo shirts and pants, said:
"Modern law recognizes that the protection to which the owner of a trade-mark is entitled is not limited to guarding his goods or business
from actual market competition with identical or similar products of the parties, but extends to all cases in which the use by a junior
appropriator of a trade-mark or trade-name is likely to lead to a confusing of source, as where prospective purchasers would be misled into
thinking that the complaining party has extended his business into the ield (see 148 ALR 56 et seq; 52 Am. Jur. 576) or is in any way
connected with the activities of the infringer; or when it forestalls the normal potential expansion of his business (v. 148 ALR, 77, 84; 52 Am.
Jur. 576, 577). x x x."44 (Underscoring supplied)
Petitioners did not try to put a peso igure on their claimed damage arising from the erosion and possible eventual destruction of the
symbolic value of their trademark. Such damage, while not easily quanti iable, is nonetheless real and effective. I submit, with respect, that
such continuing damage falls clearly within the concept of irreparable damage or injury described in Social Security Commission v. Bayona45
in the following terms:
"Damages are irreparable within the meaning of the rule relative to the issuance of injunction where there is no standard by which their
amount can be measured with reasonable accuracy (Crouc v. Central Labor Council, 83 ALR, 193). 'An irreparable injury which a court of
equity will enjoin includes that degree of wrong of a repeated and continuing kind which produce hurt, inconvenience, or damage that can be
estimated only by conjecture, and not by any accurate standard of measurement' (Phipps v. Rogue River Valley Canal Co., 7 ALR, 741). An
irreparable injury to authorize an injunction consists of ‘a serious charge of, or is destructive to, the property it affects, either physically or in
the character in which it has been held and enjoined, or when the property has some peculiar quality or use, so that its pecuniary value will
not fairly recompense the owner of the loss thereof' (Dunker v. Field and Tub Club, 92 P., 502).Respondent corporations made a lengthy
discourse on the matter of irreparable injury they may suffer if the injunction were not issued, but the array of igures they have laid out
merely succeeded in proving that the damage, if any they may suffer, is susceptible of mathematical computation. It is not then irreparable.
As already stated, this term has a de inite meaning in law. It does not have reference to the amount of damages that may be caused but rather
to the dif iculty of measuring the damages in licted. If full compensation can be obtained by way of damages, equity will not apply the remedy
of injunction (28 Am. Jur., 244; 43 C.J.S., 427, 446)."46
I next turn to private respondent's claim that issuance of an injunction would impose heavy damage upon itself and upon the Government. As
noted, private respondent stated that it had paid many millions of pesos as ad valorem and VAT taxes to the the Government in 1988 and
1989 in connection with its "MARK" cigarettes.47 Presumably, the total volume of its business associated with the manufacture and sale of
cigarettes trademarked "MARK" would be even larger. In addition, private respondent suggests, albeit indirectly only, that hundreds if not
thousands of its employees would ind themselves unemployed if it were restrained from the manufacture and sale of "MARK" cigarettes.
Private respondent's claims concerning alleged damages both to itself and to the Government, which obviously loomed very large in the mind
of the majority here, and of the Court of Appeals when it lifted the injunction it had issued, appear to me to be extravagant indeed. Petitioners
cannot claim to be entitled to an injunction which would restrain private respondent from manufacturing and selling cigarettes completely;
petitioner do not pretend to be so entitled to such a comprehensive injunction. Petitioners seek only the reinstatement of the original
injunction issued by the Court of Appeals, i.e., one that restrains private respondent from using the trademark "MARK" on its cigarettes.
There is nothing to prevent private respondent from continuing to manufacture and sell cigarettes under any of its already existing and
registered trademarks, of which it has several, or under some new and specially created trademark(s). Realistically, private respondent, if
enjoined, would lose only the value of the cigarettes already branded with "MARK," the value of the packaging material imprinted with the
same trademark (which cigarettes and material may well be amenable to re-cycling) and the cost of past advertisements of "MARK" in media,
if any. Thus, the apprehension on the part of the majority which private respondent tried diligently to foment -- that the Government would
lose many millions of pesos in tax revenues and that many employees would lose their jobs, if an injunction is issued -- is more apparent than
real. The damages private respondent would sustain from reinstatement of the preliminary injunction are clearly quanti iable in pesos.

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Besides, as pointed out by petitioners to pay heed to private respondent's creative economic argument would ultimately mean that the
greater the volume of sales and the pro its of the infringer, the greater would be the infringer's claim to be entitled to continue infringement.
I respectfully submit that the law should not countenance such a cynical result.
My conclusion is that private respondent's claims concerning damage which it would sustain if the petitioners were granted the injunction
they seek, did not constitute a suf icient basis for overturning the original decision of the Court of Appeals. The Resolution of the Court of
Appeals granting private respondent's Motion to Dissolve, in effect disregarded everything that that Court had set out in its original Decision.
The mere offer and iling of a counterbond does not, by itself, provide a suf icient basis for lifting the preliminary injunction earlier granted.
For all the elements which supported the original issuance of a preliminary injunction continued to exist. Private respondent's hyperbolic
claims concerning the damages that it and the Government would sustain by reason of an injunction, had been made earlier both before the
trial court and the Court of Appeals. Finally, it is not enough to say as private respondent says, that the Court of Appeals in granting its Motion
to Dissolve the preliminary injunction was merely exercising its discretion; for the Court of Appeals obviously was also exercising its
discretion when it rendered its original Decision granting the preliminary injunction.
I vote to grant due course to the Petition for Certiorari, to set aside the Resolution of the respondent Court of Appeals dated 14 September
1989 in C.A.-G.R. SP No. 13132 and to reinstate the Decision of that same Court dated 5 May 1989.
SOJ v Lantion
379 Phil. 165
EN BANC
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.
DECISION
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
rati ication 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 certi ication by the principal diplomatic or consular of icer 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

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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);
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 "of icial 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 of icial 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 preliminarily, 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 ind 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 suf iciency 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 iling 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 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 iled with the Regional Trial Court of the National Capital Judicial

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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 iling 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 raf led 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 ile 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 iling 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 ile 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.
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 ile 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

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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, iled 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 af irmative 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 iling 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 con lict 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 iling 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 de ines 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;
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,
suf icient for evaluation of the request; and
4. Such other documents or information in support of the request.

(Section 4, Presidential Decree No. 1069.)
Section 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 of ice to take charge of the case.The above provision shows only too clearly that the executive authority
given the task of evaluating the suf iciency 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;

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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 speci ied 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 certi ied by the principal diplomatic or consular of icer 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 inding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are suf icient 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 of ice to take charge of the case (Paragraph [1], Section 5, P. D. No. 1069). The lawyer designated shall then ile 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 prospective extraditee to appear and to answer the petition on the day and hour ixed 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 light of the prospective extraditee.
The Extradition Hearing
The Extradition Law does not speci ically 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 inal 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 ile 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).

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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 ile 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 of icial who is authorized to
evaluate the extradition papers, to assure their suf iciency, 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 iling 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 of ice, 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 ind 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 iling 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, iled 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.
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 ield of law, could not privately review the papers all by
himself. He had to of icially 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 suf iciency 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 of 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 of 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 indings in

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respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely
investigatory functions: Adjudication signi ies 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 inal 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, suf icient to be the basis of an extradition
petition. Such inding is thus merely initial and not inal. 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 inding of whether or not the extradition petition can be iled 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 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 light 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 iled 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.

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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 iling 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.
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 preserves
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 unde ined 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 con ines 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 noti ied
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 af idavits, and other supporting
documents, and the right to submit counter-af idavits 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 proceedings 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 ilthy 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.

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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?
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 iled 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 af idavit 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 governor of the asylum state to effect the
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 of icer having authority to act in behalf of
the demanding nation (31A Am Jur 2d 815).
In petitioner’s memorandum iled 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 provisional 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 con irming 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 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 indings and
conclusions of law and certi ies the person’s extraditability. The court then forwards this certi ication 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

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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 inal 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 satis ied itself on the points earlier mentioned (see pp. 10-12), then
forwards the request to the Department of Justice for the preparation and iling 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, iling, 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 ef icacious 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 ef iciency. 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 ef iciency and ef icacy that may characterize praiseworthy government of icials 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 sacri iced 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."
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 signi icantly 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 inds 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 iling 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 of icial 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?

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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 determination which,
if adverse to the person involved, may cause his immediate incarceration. The grant of the request shall lead to the iling 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 iled 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 of icial records, and to documents
and papers pertaining to of icial 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 of icial records and 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 of icial 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 concern escapes exact de inition. Strictly speaking, every act of a public of icer 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 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 of icial 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 noti ied 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 of icial records, and in documents
and papers pertaining to of icial acts, transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to of icial government action from the U. S. Government. No of icial
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 of icial 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 of icial decision to
grant the extradition request. The extradition of a fellow Filipino would be forthcoming.
We now pass upon the inal 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 af irmative, is there really a con lict 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

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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 all nations." Under the doctrine of incorporation, rules of international law form part of the law of the land and 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 con lict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should
irst 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 Incorporation Clause in the above-cited constitutional
provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the con lict 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 the Philippines, both statutes and treaties may be invalidated if they are in con lict with the
constitution (Ibid.).
In the case at bar, is there really a con lict between international law and municipal or national law? En contrario, these two components of
the law of the land are not pitted 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 iling 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 suf iciency 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 con idential
information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The con identiality 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 con idential, 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

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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 of 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 iled 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 suf icient 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 proceedings 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]; 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 con licting 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

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private respondent copies of the extradition request and its supporting papers, and to grant him a reasonable period within which to ile 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.
Davide, Jr., C.J., joins Mr. Justice Puno in his dissent.
Bellosillo, Purisima, Buena, and De Leon, Jr., JJ., concur.
Puno, J., please see dissent.
Vitug, J., see separate opinion.
Kapunan, and Ynares-Santiago, JJ., see separate concurring opinion.
Mendoza, Pardo, and Gonzaga-Reyes, JJ., join dissenting opinion of J. Puno and J. Panganiban.
Panganiban, J., please see dissenting opinion.
Quisumbing, J., with concurring opinion.
DISSENTING OPINION
PUNO, J.:
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 irst impression and the majority opinion dangerously takes us to unknown shoals in constitutional and international laws,
hence this dissenting opinion.
Extradition is well-de ined 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 whom no charges 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 chie ly 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]
It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during these different periods. Extradition was
irst practiced by the Egyptians, Chinese, Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear. Sometimes,

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[3]
it was granted due to pacts; at other times, due to plain good will. 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-de ined 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 the 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 corollary is the sub-doctrine that an
individual’s right in international law is 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 signi icant 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 con ines 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 order should be "to obtain in particular
situations and in the aggregate low 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 inal 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 con licts 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 speci ic 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 irst 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 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 con irmation 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
signi icance 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
of icial 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 x x x 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.

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It is also the president who possesses the most comprehensive and the most con idential information about foreign countries for our
diplomatic and consular of icials regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive
military intelligence data.[14] In ine, the presidential role in a 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 con idence,
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 bene it of all relevant provisions of the European Convention for the Protection of Human rights and
Fundamental Freedoms. It has held that "x x x 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 treaty and P.D. No.
1069 do not prohibit respondent’s claim, 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 dif icult 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 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 can 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 to 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 existence of a prima facie case."[21] If more need be said, the nature of an extradition decision is
different from a judicial decision whose inality cannot be changed by executive iat. Our courts[22] 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
speci ically provides that "extradition shall not be granted if the executive authority of the Requested State determines 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

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[24]
international matters. 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 in lates with too much signi icance 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 iled 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 iling 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 statement of the facts of the case, including, if possible, the time and location of the offense;
"d) a description of the laws violated;
"e) a statement of the existence of a warrant of arrest or inding 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 noti ied 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 veri ication and evaluation by our executive authorities. The request
can be denied if not based on a real exigency or if the supporting documents are insuf icient. 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

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the Court of First Instance (now RTC) of the province or city having jurisdiction of the place. x x x." It is a judge who will issue a warrant for
the provisional arrest of the respondent. The judge has to comply with Section 2, Article Iii of the Constitution which provides that "no x x x
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or
af irmation of the complainant and the witnesses he may produce, and particularly describing the xxx persons or things to be seized." The
message that leaps to the eye is that compliance with this requirement 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 ixed 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 ixed, the presiding judge shall hear the case or set another date for the hearing thereof.
"(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the
attorney having charge of the case."Upon receipt of the summons and the petition, respondent is free to foist all defenses 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 interests 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 causes of
P.D. No. 1069, viz:
"WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of international law as part of the law of the land,
and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations;
"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. x x x."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 our 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 it 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 cautious 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 dimensions of a treaty, some of which are hidden in shadows and
silhouettes.
I vote to grant the petition.

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SEPARATE OPINION
VITUG, J.:
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 irst instance, on Constitutional or statutory provisions, and in the second instance, on accepted
rules of procedures.[3] Substantive due process looks into the extrinsic and intrinsic validity of the law that igures 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 de inition. Justice Frankfurter has viewed this lexible concept, aptly I believe, as being "…
compounded by history, reason, the past course of decisions, and stout con idence 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 applications 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 iled with the court, 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 ile his
comment thereon is not necessarily anathema to the proceedings duly mandated by the treaty to be made.
I vote to deny the petition.
SEPARATE CONCURRING OPINION
KAPUNAN, J.:
I vote to dismiss the petition, both technical and substantial grounds.

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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 respondent in said case to:
xxx 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 iling 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] (Underscoring 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 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 iling 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 suf iciency" 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 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, suf ice 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.

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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 of icial 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 iled 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 iled 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 until the petition for extradition is iled? 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 iling of an information in a criminal
case, the mere iling 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.
CONCURRING OPINION
YNARES-SANTIAGO, J.:
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 irst 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 state relations, forfeiture of con idence, 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

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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.
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 con lict 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 speci ic provision on how
the 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 con identiality 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.
Of icial 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 con idential if they are going to be introduced as evidence in
adversary 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 identi ied 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 Hashim 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 trials. 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 and impartially without any predisposition to
granting it and, therefore, hastening the extradition process.
In the irst place, any assistance which the evaluating of icial may get from the participation of respondent may well point out de iciencies

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and insuf iciencies 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 of icial discovers a case of mistaken identity, insuf icient 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 ruled 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.
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.
DISSENTING OPINION
PANGANIBAN, J.:
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 Stages in
Extradition
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 irst stage. Private respondent claims that he has a right to be noti ied 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 iling 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

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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 the charging document. The foreign affairs secretary also sees to it that these
accompanying documents have been certi ied by the principal diplomatic or consular of icer of the Philippines in the United States, and that
they are in the 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 inding of the secretary of foreign affairs that the extradition request and its supporting documents are suf icient 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 of ice
to take charge of the case. The lawyer designated shall then ile 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.
x x x x x x x x x"
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 iled in
court.
However, the above-quoted Article 9 on provisional arrest is not automatically operative at all times, and its enforcement does not depend
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 stated 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 suf icient evidence to establish probable cause that the
extraditee committed the crimes charged.[8] The suf iciency of the evidence of criminality is to be determined based on the laws of the
requested state.[9] Private Respondent Jimenez will, therefore, de initely have his full opportunity before the court, in case an extradition
petition will indeed be iled, to be heard on all issues including the suf iciency 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

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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
speci ic 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.
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 inal 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 iled in the United
States and are part of public and of icial 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 insuf icient.
Conclusion
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.
CONCURRING OPINION
QUISUMBING, J.:
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 speci ic issue before us, the Court —
in the exercise of its judicial power to ind 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)

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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 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
inancial 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.
USA v Purganan
438 Phil. 417
EN BANC
G.R. No. 148571, September 24, 2002

GOVERNMENT OF THE UNITED STATES OF AMERICA, REPRESENTED BY THE PHILIPPINE
DEPARTMENT OF JUSTICE, PETITIONER, VS. HON. GUILLERMO G. PURGANAN, MORALES, AND
PRESIDING JUDGE, REGIONAL TRIAL COURT OF MANILA, BRANCH 42; AND MARK B. JIMENEZ
A.K.A. MARIO BATACAN CRESPO, RESPONDENTS.
DECISION
PANGANIBAN, J.:
In extradition proceedings, are prospective extraditees entitled to notice and hearing before warrants for their arrest can be issued? Equally
important, are they entitled to the right to bail and provisional liberty while the extradition proceedings are pending? In general, the answer
to these two novel questions is “No.” The explanation of and the reasons for, as well as the exceptions to, this rule are laid out in this Decision.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void and set aside the Orders dated May 23, 2001[1] and
July 3, 2001[2] issued by the Regional Trial Court (RTC) of Manila, Branch 42.[3] The irst assailed Order set for hearing petitioner’s application
for the issuance of a warrant for the arrest of Respondent Mark B. Jimenez.
The second challenged Order, on the other hand, directed the issuance of a warrant, but at the same time granted bail to Jimenez. The
dispositive portion of the Order reads as follows:
“WHEREFORE, in the light of the foregoing, the [Court] inds probable cause against respondent Mark Jimenez. Accordingly let a Warrant for
the arrest of the respondent be issued. Consequently and taking into consideration Section 9, Rule 114 of the Revised Rules of Criminal
Procedure, this Court ixes the reasonable amount of bail for respondent’s temporary liberty at ONE MILLION PESOS (Php 1,000,000.00), the
same to be paid in cash.
“Furthermore respondent is directed to immediately surrender to this Court his passport and the Bureau of Immigration and Deportation is
likewise directed to include the name of the respondent in its Hold Departure List.”[4]
Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the taking of Jimenez into legal custody.

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The Facts
This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C. Lantion.[5]
Pursuant to the existing RP-US Extradition Treaty,[6] the United States Government, through diplomatic channels, sent to the Philippine
Government Note Verbale No. 0522 dated June 16, 1999, supplemented by Note Nos. 0597, 0720 and 0809 and accompanied by duly
authenticated documents requesting the extradition of Mark B. Jimenez, also known as Mario Batacan Crespo. Upon receipt of the Notes and
documents, the secretary of foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action, pursuant to Section
5 of Presidential Decree (PD) No. 1069, also known as the Extradition Law.
Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary Restraining Order (TRO) by the RTC of Manila,
Branch 25.[7] The TRO prohibited the Department of Justice (DOJ) from iling with the RTC a petition for his extradition. The validity of the
TRO was, however, assailed by the SOJ in a Petition before this Court in the said GR No. 139465. Initially, the Court -- by a vote of 9-6 --
dismissed the Petition. The SOJ was ordered to furnish private respondent copies of the extradition request and its supporting papers and to
grant the latter a reasonable period within which to ile a comment and supporting evidence.[8]
Acting on the Motion for Reconsideration iled by the SOJ, this Court issued its October 17, 2000 Resolution.[9] By an identical vote of 9-6 --
after three justices changed their votes -- it reconsidered and reversed its earlier Decision. It held that private respondent was bereft of the
right to notice and hearing during the evaluation stage of the extradition process. This Resolution has become inal and executory.
Finding no more legal obstacle, the Government of the United States of America, represented by the Philippine DOJ, iled with the RTC on May
18, 2001, the appropriate Petition for Extradition which was docketed as Extradition Case No. 01192061. The Petition alleged, inter alia, that
Jimenez was the subject of an arrest warrant issued by the United States District Court for the Southern District of Florida on April 15, 1999.
The warrant had been issued in connection with the following charges in Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to defraud the
United States and to commit certain offenses in violation of Title 18 US Code Section 371; (2) tax evasion, in violation of Title 26 US Code
Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections 1343 and 2; (4) false statements, in violation of Title 18 US Code
Sections 1001 and 2; and (5) illegal campaign contributions, in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title 18 US
Code Section 2. In order to prevent the light of Jimenez, the Petition prayed for the issuance of an order for his “immediate arrest” pursuant
to Section 6 of PD No. 1069.
Before the RTC could act on the Petition, Respondent Jimenez iled before it an “Urgent Manifestation/Ex-Parte Motion,”[10] which prayed that
petitioner’s application for an arrest warrant be set for hearing.
In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on June 5, 2001. In that hearing,
petitioner manifested its reservations on the procedure adopted by the trial court allowing the accused in an extradition case to be heard
prior to the issuance of a warrant of arrest.
After the hearing, the court a quo required the parties to submit their respective memoranda. In his Memorandum, Jimenez sought an
alternative prayer: that in case a warrant should issue, he be allowed to post bail in the amount of P100,000.
The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court below issued its questioned July 3, 2001
Order, directing the issuance of a warrant for his arrest and ixing bail for his temporary liberty at one million pesos in cash.[11] After he had
surrendered his passport and posted the required cash bond, Jimenez was granted provisional liberty via the challenged Order dated July 4,
2001.[12]
Hence, this Petition.[13]
Issues
Petitioner presents the following issues for the consideration of this Court:
I.
“The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction
in adopting a procedure of irst hearing a potential extraditee before issuing an arrest warrant under Section 6 of PD No. 1069.
II.
“The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction
in granting the prayer for bail and in allowing Jimenez to go on provisional liberty because:
‘1. An extradition court has no power to authorize bail, in the absence of any law that provides for such power.
‘2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and Section 4, Rule 114 (Bail) of the Rules of Court, as
amended, which [were] relied upon, cannot be used as bases for allowing bail in extradition proceedings.
‘3. The presumption is against bail in extradition proceedings or proceedings leading to extradition.
‘4. On the assumption that bail is available in extradition proceedings or proceedings leading to extradition, bail is not a matter of right but
only of discretion upon clear showing by the applicant of the existence of special circumstances.
‘5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent received no evidence of ‘special
circumstances’ which may justify release on bail.
‘6. The risk that Jimenez will lee is high, and no special circumstance exists that will engender a well-founded belief that he will not lee.
‘7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the Philippines with its obligations under the
RP-US Extradition Treaty.
‘8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case entitled ‘Eduardo T. Rodriguez et al. vs. The Hon. Presiding
Judge, RTC, Branch 17, Manila,’ CA-G.R. SP No. 64589, relied upon by the public respondent in granting bail, had been recalled before the

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[14]
issuance of the subject bail orders.’”
In sum, the substantive questions that this Court will address are: (1) whether Jimenez is entitled to notice and hearing before a warrant for
his arrest can be issued, and (2) whether he is entitled to bail and to provisional liberty while the extradition proceedings are pending.
Preliminarily, we shall take up the alleged prematurity of the Petition for Certiorari arising from petitioner’s failure to ile a Motion for
Reconsideration in the RTC and to seek relief in the Court of Appeals (CA), instead of in this Court.[15] We shall also preliminarily discuss ive
extradition postulates that will guide us in disposing of the substantive issues.
The Court’s Ruling
The Petition is meritorious.
Preliminary Matters
Alleged Prematurity of Present Petition
Petitioner submits the following justi ications for not iling a Motion for Reconsideration in the Extradition Court: “(1) the issues were fully
considered by such court after requiring the parties to submit their respective memoranda and position papers on the matter and thus, the
iling of a reconsideration motion would serve no useful purpose; (2) the assailed orders are a patent nullity, absent factual and legal basis
therefor; and (3) the need for relief is extremely urgent, as the passage of suf icient time would give Jimenez ample opportunity to escape
and avoid extradition; and (4) the issues raised are purely of law.”[16]
For resorting directly to this Court instead of the CA, petitioner submits the following reasons: “(1) even if the petition is lodged with the
Court of Appeals and such appellate court takes cognizance of the issues and decides them, the parties would still bring the matter to this
Honorable Court to have the issues resolved once and for all [and] to have a binding precedent that all lower courts ought to follow; (2) the
Honorable Court of Appeals had in one case[17] ruled on the issue by disallowing bail but the court below refused to recognize the decision as
a judicial guide and all other courts might likewise adopt the same attitude of refusal; and (3) there are pending issues on bail both in the
extradition courts and the Court of Appeals, which, unless guided by the decision that this Honorable Court will render in this case, would
resolve to grant bail in favor of the potential extraditees and would give them opportunity to lee and thus, cause adverse effect on the ability
of the Philippines to comply with its obligations under existing extradition treaties.”[18]
As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior court has been given, through a motion for
reconsideration, a chance to correct the errors imputed to it. This rule, though, has certain exceptions: (1) when the issue raised is purely of
law, (2) when public interest is involved, or (3) in case of urgency.[19] As a fourth exception, the Court has also ruled that the iling of a motion
for reconsideration before availment of the remedy of certiorari is not a sine qua non, when the questions raised are the same as those that
have already been squarely argued and exhaustively passed upon by the lower court.[20] Aside from being of this nature, the issues in the
present case also involve pure questions of law that are of public interest. Hence, a motion for reconsideration may be dispensed with.
Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of certiorari when there are special and
important reasons therefor.[21] In Fortich v. Corona[22] we stated:
“[T]he Supreme Court has the full discretionary power to take cognizance of the petition iled directly [before] it if compelling reasons, or the
nature and importance of the issues raised, warrant. This has been the judicial policy to be observed and which has been reiterated in
subsequent cases, namely: Uy vs. Contreras, et. al., Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs. Legaspi, et. al. As we have
further stated in Cuaresma:
‘x x x. A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and
important reasons therefor, clearly and speci ically set out in the petition. This is established policy. x x x.’
“Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the interest of speedy justice and to
avoid future litigations so as to promptly put an end to the present controversy which, as correctly observed by petitioners, has sparked
national interest because of the magnitude of the problem created by the issuance of the assailed resolution. Moreover, x x x requiring the
petitioners to ile their petition irst with the Court of Appeals would only result in a waste of time and money.
“That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in our jurisprudence. We
reiterate what we said in Piczon vs. Court of Appeals:[23]
‘Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. Time and again,
this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so
require. In the instant petition, we forego a lengthy disquisition of the proper procedure that should have been taken by the parties involved
and proceed directly to the merits of the case.’
In a number of other exceptional cases,[24] we held as follows:
“This Court has original jurisdiction, concurrent with that of Regional Trial Courts and the Court of Appeals, over petitions for certiorari,
prohibition, mandamus, quo warranto and habeas corpus, and we entertain direct resort to us in cases where special and important reasons
or exceptional and compelling circumstances justify the same.”
In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we deem it best to take
cognizance of the present case. Such proceedings constitute a matter of irst impression over which there is, as yet, no local jurisprudence to
guide lower courts.
Five Postulates of Extradition

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The substantive issues raised in this case require an interpretation or construction of the treaty and the law on extradition. A cardinal rule in
the interpretation of a treaty or a law is to ascertain and give effect to its intent.[25] Since PD 1069 is intended as a guide for the
implementation of extradition treaties to which the Philippines is a signatory,[26] understanding certain postulates of extradition will aid us in
properly deciding the issues raised here.
1. Extradition Is a Major Instrument for the Suppression of Crime.
First, extradition treaties are entered into for the purpose of suppressing crime[27] by facilitating the arrest and the custodial transfer[28] of a
fugitive[29] from one state to the other.
With the advent of easier and faster means of international travel, the light of af luent criminals from one country to another for the purpose
of committing crime and evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing
with criminals and crimes that transcend international boundaries.
Today, “a majority of nations in the world community have come to look upon extradition as the major effective instrument of international
co-operation in the suppression of crime.”[30] It is the only regular system that has been devised to return fugitives to the jurisdiction of a
court competent to try them in accordance with municipal and international law.[31]
“An important practical effect x x x of the recognition of the principle that criminals should be restored to a jurisdiction competent to try and
punish them is that the number of criminals seeking refuge abroad will be reduced. For to the extent that ef icient means of detection and the
threat of punishment play a signi icant role in the deterrence of crime within the territorial limits of a State, so the existence of effective
extradition arrangements and the consequent certainty of return to the locus delicti commissi play a corresponding role in the deterrence of
light abroad in order to escape the consequence of crime. x x x. From an absence of extradition arrangements light abroad by the ingenious
criminal receives direct encouragement and thus indirectly does the commission of crime itself.”[32]
In Secretary v. Lantion[33] we explained:
“The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate the extradition of persons
covered by treaties duly entered [into] by our government. More and more, crimes are becoming the concern of one world. Laws involving
crimes and crime prevention are undergoing universalization. One manifest purpose of this trend towards globalization is to deny easy
refuge to a criminal whose activities threaten the peace and progress of civilized countries. It is to the great interest of the Philippines to be
part of this irreversible movement in light of its vulnerability to crimes, especially transnational crimes.”
Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international crimes and criminals, we
cannot afford to be an isolationist state. We need to cooperate with other states in order to improve our chances of suppressing crime in our
own country.
2. The Requesting State Will Accord Due Process to the Accused
Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each other’s legal system
and judicial process.[34] More pointedly, our duly authorized representative’s signature on an extradition treaty signi ies our con idence in the
capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited.[35] That signature signi ies our
full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that
will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality.
3. The Proceedings Are Sui Generis
Third, as pointed out in Secretary of Justice v. Lantion,[36] extradition proceedings are not criminal in nature. In criminal proceedings, the
constitutional rights of the accused are at fore; in extradition which is sui generis -- in a class by itself -- they are not.
“An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as
guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an
accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights
that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x.
xxx xxx xxx
“There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature
while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition
proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satis ied, a criminal case
requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited ‘upon showing of the existence of a prima
facie case.’ Finally, unlike in a criminal case where judgment becomes executory upon being rendered inal, in an extradition proceeding, our
courts may adjudge an individual extraditable but the President has the inal discretion to extradite him. The United States adheres to a
similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nation’s
foreign relations before making the ultimate decision to extradite.”
Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be
extradited.[37] Such determination during the extradition proceedings will only result in needless duplication and delay. Extradition is merely
a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with
the best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of
that jurisdiction.[38] The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies
with the Extradition Treaty, and whether the person sought is extraditable.[39]
4. Compliance Shall Be in Good Faith.

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Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch rati ied it. Hence, the
Treaty carries the presumption that its implementation will serve the national interest.
Ful illing our obligations under the Extradition Treaty promotes comity[40] with the requesting state. On the other hand, failure to ful ill our
obligations thereunder paints a bad image of our country before the world community. Such failure would discourage other states from
entering into treaties with us, particularly an extradition treaty that hinges on reciprocity.[41]
Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty.[42] This principle requires that we
deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satis ied. In other
words, “[t]he demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the
accused on the issue of the proper warrant, and the other government is under obligation to make the surrender.”[43] Accordingly, the
Philippines must be ready and in a position to deliver the accused, should it be found proper.
5. There Is an Underlying Risk of Flight
Fifth, persons to be extradited are presumed to be light risks. This prima facie presumption inds reinforcement in the experience[44] of the
executive branch: nothing short of con inement can ensure that the accused will not lee the jurisdiction of the requested state in order to
thwart their extradition to the requesting state.
The present extradition case further validates the premise that persons sought to be extradited have a propensity to lee. Indeed, extradition
hearings would not even begin, if only the accused were willing to submit to trial in the requesting country.[45] Prior acts of herein respondent
-- (1) leaving the requesting state right before the conclusion of his indictment proceedings there; and (2) remaining in the requested state
despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable -- eloquently speak of his
aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances point to an
ever-present, underlying high risk of light. He has demonstrated that he has the capacity and the will to lee. Having led once, what is there
to stop him, given suf icient opportunity, from leeing a second time?
First Substantive Issue:
Is Respondent Entitled to Notice and Hearing
Before the Issuance of a Warrant of Arrest?
Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice, that an Extradition Petition has
been iled against him, and that petitioner is seeking his arrest -- gives him notice to escape and to avoid extradition. Moreover, petitioner
pleads that such procedure may set a dangerous precedent, in that those sought to be extradited -- including terrorists, mass murderers and
war criminals -- may invoke it in future extradition cases.
On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily deprived of his constitutional right to liberty
without due process. He further asserts that there is as yet no speci ic law or rule setting forth the procedure prior to the issuance of a
warrant of arrest, after the petition for extradition has been iled in court; ergo, the formulation of that procedure is within the discretion of
the presiding judge.
Both parties cite Section 6 of PD 1069 in support of their arguments. It states:
“SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt of the petition, the presiding
judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour ixed in the
order. [H]e may issue a warrant for the immediate arrest of the accused which may be served any where within the Philippines if it
appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of
justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time ixed, the
presiding judge shall hear the case or set another date for the hearing thereof.
“(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the
attorney having charge of the case.” (Emphasis ours)
Does this provision sanction RTC Judge Purganan’s act of immediately setting for hearing the issuance of a warrant of arrest? We rule in the
negative.
1. On the Basis of the Extradition Law
It is signi icant to note that Section 6 of PD 1069, our Extradition Law, uses the word “immediate” to qualify the arrest of the accused. This
quali ication would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the
opposing parties,[46] receiving facts and arguments[47] from them,[48] and giving them time to prepare and present such facts and arguments.
Arrest subsequent to a hearing can no longer be considered “immediate.” The law could not have intended the word as a mere super luity
but, on the whole, as a means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should be
issued.
By using the phrase “if it appears,” the law further conveys that accuracy is not as important as speed at such early stage. The trial court is not
expected to make an exhaustive determination to ferret out the true and actual situation, immediately upon the iling of the petition. From
the knowledge and the material then available to it, the court is expected merely to get a good irst impression -- a prima facie inding --
suf icient to make a speedy initial determination as regards the arrest and detention of the accused.
Attached to the Petition for Extradition, with a Certi icate of Authentication among others, were the following: (1) Annex H, the Af idavit
executed on May 26, 1999 by Mr. Michael E. Savage -- trial attorney in the Campaign Financing Task Force of the Criminal Division of the US
Department of Justice; (2) Annexes H to G, evidentiary Appendices of various exhibits that constituted evidence of the crimes charged in the

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Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex
BB, the Exhibit I “Appendix of Witness [excerpts] Statements Referenced in the Af idavit of Angela Byers” and enclosed Statements in two
volumes; (4) Annex GG, the Exhibit J “Table of Contents for Supplemental Evidentiary Appendix” with enclosed Exhibits 121 to 132; and (5)
Annex MM, the Exhibit L “Appendix of Witness [excerpts] Statements Referenced in the Af idavit of Betty Steward” and enclosed Statements
in two volumes.[49]
It is evident that respondent judge could have already gotten an impression from these records adequate for him to make an initial
determination of whether the accused was someone who should immediately be arrested in order to “best serve the ends of justice.” He
could have determined whether such facts and circumstances existed as would lead a reasonably discreet and prudent person to believe that
the extradition request was prima facie meritorious. In point of fact, he actually concluded from these supporting documents that “probable
cause” did exist. In the second questioned Order, he stated:
“In the instant petition, the documents sent by the US Government in support of [its] request for extradition of herein respondent are enough
to convince the Court of the existence of probable cause to proceed with the hearing against the extraditee.”[50]
We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already
evident from the Petition itself and its supporting documents. Hence, after having already determined therefrom that a prima facie inding
did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez.[51]
Moreover, the law speci ies that the court sets a hearing upon receipt of the answer or upon failure of the accused to answer after receiving
the summons. In connection with the matter of immediate arrest, however, the word “hearing” is notably absent from the provision.
Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this
point that extradition proceedings are summary[52] in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable
interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings.
“It is taken for granted that the contracting parties intend something reasonable and something not inconsistent with generally recognized
principles of International Law, nor with previous treaty obligations towards third States. If, therefore, the meaning of a treaty is ambiguous,
the reasonable meaning is to be preferred to the unreasonable, the more reasonable to the less reasonable x x x .”[53]
Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at
some future date would give them ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law could have intended
that consequence, for the very purpose of both would have been defeated by the escape of the accused from the requested state.
2. On the Basis of the Constitution
Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a
warrant of arrest. It provides:
“Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or af irmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized.”
To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination -- under oath or
af irmation -- of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused before the
issuance of warrants of arrest.
In Ho v. People[54] and in all the cases cited therein, never was a judge required to go to the extent of conducting a hearing just for the purpose
of personally determining probable cause for the issuance of a warrant of arrest. All we required was that the “judge must have suf icient
supporting documents upon which to make his independent judgment, or at the very least, upon which to verify the indings of the
prosecutor as to the existence of probable cause.”[55]
In Webb v. De Leon,[56] the Court categorically stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest:
“Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an
accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the
initial determination of the prosecutor inding a probable cause to see if it is supported by substantial evidence.”
At most, in cases of clear insuf iciency of evidence on record, judges merely further examine complainants and their witnesses.[57] In the
present case, validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage
would be discordant with the rationale for the entire system. If the accused were allowed to be heard and necessarily to present evidence
during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of
defenses at this stage -- if he so desires -- in his effort to negate a prima facie finding? Such a procedure could convert the determination of a
prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case super luous. This scenario is also
anathema to the summary nature of extraditions.
That the case under consideration is an extradition and not a criminal action is not suf icient to justify the adoption of a set of procedures
more protective of the accused. If a different procedure were called for at all, a more restrictive one -- not the opposite -- would be justi ied in
view of respondent’s demonstrated predisposition to lee.
Since this is a matter of irst impression, we deem it wise to restate the proper procedure:
Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima
facie inding whether (a) they are suf icient in form and substance, (b) they show compliance with the Extradition Treaty and Law, and (c)

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the person sought is extraditable. At his discretion, the judge may require the submission of further documentation or may personally
examine the af iants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie inding[58] is possible, the
petition may be dismissed at the discretion of the judge.
On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of
the extraditee, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings. Prior to the
issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given
the opportunity to escape and frustrate the proceedings. In our opinion, the foregoing procedure will “best serve the ends of justice” in
extradition cases.
Second Substantive Issue:
Is Respondent Entitled to Bail?
Article III, Section 13 of the Constitution, is worded as follows:
“Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by suf icient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.”
Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of all persons, including those sought to be
extradited. Supposedly, the only exceptions are the ones charged with offenses punishable with reclusion perpetua, when evidence of guilt is
strong. He also alleges the relevance to the present case of Section 4[59] of Rule 114 of the Rules of Court which, insofar as practicable and
consistent with the summary nature of extradition proceedings, shall also apply according to Section 9 of PD 1069.
On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the right to bail to a person who is the
subject of an extradition request and arrest warrant.
Extradition Different from Ordinary Criminal Proceedings
We agree with petitioner. As suggested by the use of the word “conviction,” the constitutional provision on bail quoted above, as well as
Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal
laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail “ lows from the presumption of innocence in favor of every accused who should not be subjected to
the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt.”[60] It follows that the
constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue.
The provision in the Constitution stating that the “right to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended” does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that
the suspension of the privilege of the writ of habeas corpus inds application “only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.”[61] Hence, the second sentence in the constitutional provision on bail merely emphasizes the
right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition
proceedings that are not criminal in nature.
That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the
present case. To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. He should
apply for bail before the courts trying the criminal cases against him, not before the extradition court.
No Violation of Due Process
Respondent Jimenez cites the foreign case Paretti[62] in arguing that, constitutionally, “[n]o one shall be deprived of x x x liberty x x x without
due process of law.”
Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not amount to a violation of his right to
due process. We iterate the familiar doctrine that the essence of due process is the opportunity to be heard[63] but, at the same time, point out
that the doctrine does not always call for a prior opportunity to be heard.[64] Where the circumstances -- such as those present in an
extradition case -- call for it, a subsequent opportunity to be heard is enough.[65] In the present case, respondent will be given full opportunity
to be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there is no violation of his right to due process
and fundamental fairness.
Contrary to the contention of Jimenez, we ind no arbitrariness, either, in the immediate deprivation of his liberty prior to his being heard.
That his arrest and detention will not be arbitrary is suf iciently ensured by (1) the DOJ’s iling in court the Petition with its supporting
documents after a determination that the extradition request meets the requirements of the law and the relevant treaty; (2) the extradition
judge’s independent prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his
arrest; and (3) his opportunity, once he is under the court’s custody, to apply for bail as an exception to the no-initial-bail rule.
It is also worth noting that before the US government requested the extradition of respondent, proceedings had already been conducted in
that country. But because he left the jurisdiction of the requesting state before those proceedings could be completed, it was hindered from
continuing with the due processes prescribed under its laws. His invocation of due process now has thus become hollow. He already had that
opportunity in the requesting state; yet, instead of taking it, he ran away.
In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations in order to accord
Respondent Jimenez his personal liberty in the span of time that it takes to resolve the Petition for Extradition? His supposed immediate
deprivation of liberty without the due process that he had previously shunned pales against the government’s interest in ful illing its

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Extradition Treaty obligations and in cooperating with the world community in the suppression of crime. Indeed, “[c]onstitutional liberties
do not exist in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and palpable government
interests.”[66]
Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the consequences of their actions,
choose to run and hide. Hence, it would not be good policy to increase the risk of violating our treaty obligations if, through overprotection or
excessively liberal treatment, persons sought to be extradited are able to evade arrest or escape from our custody. In the absence of any
provision -- in the Constitution, the law or the treaty -- expressly guaranteeing the right to bail in extradition proceedings, adopting the
practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming to the Philippines to hide from
or evade their prosecutors.
The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14[67] of the Treaty, since this practice
would encourage the accused to voluntarily surrender to the requesting state to cut short their detention here. Likewise, their detention
pending the resolution of extradition proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of
extradition cases and the need for their speedy disposition.
Exceptions to the “No Bail” Rule
The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave
abuse of discretion[68] and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights.[69] Furthermore, we
believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process
extends to the “life, liberty or property” of every person. It is “dynamic and resilient, adaptable to every situation calling for its
application.”[70]
Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under
the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted
bail, the applicant will not be a light risk or a danger to the community; and (2) that there exist special, humanitarian and compelling
circumstances[71] including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional
liberty in extradition cases therein.
Since this exception has no express or speci ic statutory basis, and since it is derived essentially from general principles of justice and
fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. The
Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign
relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative.
Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and
bilateral interests of our country will not be unreasonably impeded or compromised. In short, while this Court is ever protective of “the
sporting idea of fair play,” it also recognizes the limits of its own prerogatives and the need to ful ill international obligations.
Along this line, Jimenez contends that there are special circumstances that are compelling enough for the Court to grant his request for
provisional release on bail. We have carefully examined these circumstances and shall now discuss them.
1. Alleged Disenfranchisement
While his extradition was pending, Respondent Jimenez was elected as a member of the House of Representatives. On that basis, he claims
that his detention will disenfranchise his Manila district of 600,000 residents. We are not persuaded. In People v. Jalosjos,[72] the Court has
already debunked the disenfranchisement argument when it ruled thus:
“When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of
action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the con ines of
prison. To give a more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so
knowing that at any time, he may no longer serve his full term in of ice.
“In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.
“The Constitution guarantees: ‘x x x nor shall any person be denied the equal protection of laws.’ This simply means that all persons similarly
situated shall be treated alike both in rights enjoyed and responsibilities imposed. The organs of government may not show any undue
favoritism or hostility to any person. Neither partiality nor prejudice shall be displayed.
“Does being an elective of icial result in a substantial distinction that allows different treatment? Is being a Congressman a substantial
differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly con ined under law?
“The performance of legitimate and even essential duties by public of icers has never been an excuse to free a person validly [from] prison.
The duties imposed by the ‘mandate of the people’ are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in
the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24
members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of
its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the
highest for that particular duty. The importance of a function depends on the need for its exercise. The duty of a mother to nurse her infant is
most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular af liction. An
elective governor has to serve provincial constituents. A police of icer must maintain peace and order. Never has the call of a particular duty
lifted a prisoner into a different classi ication from those others who are validly restrained by law.
“A strict scrutiny of classi ications is essential lest[,] wittingly or otherwise, insidious discriminations are made in favor of or against groups

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or types of individuals.
“The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to
regulate even if thereby certain groups may plausibly assert that their interests are disregarded.
“We, therefore, ind that election to the position of Congressman is not a reasonable classi ication in criminal law enforcement. The functions
and duties of the of ice are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted
in liberty of movement. Lawful arrest and con inement are germane to the purposes of the law and apply to all those belonging to the same
class.”[73]
It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was already of public knowledge that
the United States was requesting his extradition. Hence, his constituents were or should have been prepared for the consequences of the
extradition case against their representative, including his detention pending the inal resolution of the case. Premises considered and in line
with Jalosjos, we are constrained to rule against his claim that his election to public of ice is by itself a compelling reason to grant him bail.
2. Anticipated Delay
Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be unfair to con ine him during the
pendency of the case. Again we are not convinced. We must emphasize that extradition cases are summary in nature. They are resorted to
merely to determine whether the extradition petition and its annexes conform to the Extradition Treaty, not to determine guilt or innocence.
Neither is it, as a rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal action.
We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is quite another matter that is not at
issue here. Thus, any further discussion of this point would be merely anticipatory and academic.
However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail not be justi ied. Giving premium
to delay by considering it as a special circumstance for the grant of bail would be tantamount to giving him the power to grant bail to himself.
It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more. This we cannot allow.
3. Not a Flight Risk?
Jimenez further claims that he is not a light risk. To support this claim, he stresses that he learned of the extradition request in June 1999;
yet, he has not led the country. True, he has not actually led during the preliminary stages of the request for his extradition. Yet, this fact
cannot be taken to mean that he will not lee as the process moves forward to its conclusion, as he hears the footsteps of the requesting
government inching closer and closer. That he has not yet led from the Philippines cannot be taken to mean that he will stand his ground and
still be within reach of our government if and when it matters; that is, upon the resolution of the Petition for Extradition.
In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the applicant has been taken into custody
and prior to judgment, even after bail has been previously denied. In the present case, the extradition court may continue hearing evidence
on the application for bail, which may be granted in accordance with the guidelines in this Decision.
Brief Refutation of Dissents
The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact, it is a cop-out. The parties -- in particular,
Respondent Jimenez -- have been given more than suf icient opportunity both by the trial court and this Court to discuss fully and
exhaustively private respondent’s claim to bail. As already stated, the RTC set for hearing not only petitioner’s application for an arrest
warrant, but also private respondent’s prayer for temporary liberty. Thereafter required by the RTC were memoranda on the arrest, then
position papers on the application for bail, both of which were separately iled by the parties.
This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy Memoranda and the Position Papers of both parties.
Additionally, it has patiently heard them in Oral Arguments, a procedure not normally observed in the great majority of cases in this Tribunal.
Moreover, after the Memos had been submitted, the parties -- particularly the potential extraditee -- have bombarded this Court with
additional pleadings -- entitled “Manifestations” by both parties and “Counter-Manifestation” by private respondent -- in which the main
topic was Mr. Jimenez’s plea for bail.
A remand would mean that this long, tedious process would be repeated in its entirety. The trial court would again hear factual and
evidentiary matters. Be it noted, however, that, in all his voluminous pleadings and verbal propositions, private respondent has not asked for
a remand. Evidently, even he realizes that there is absolutely no need to rehear factual matters. Indeed, the inadequacy lies not in the factual
presentation of Mr. Jimenez. Rather, it lies in his legal arguments. Remanding the case will not solve this utter lack of persuasion and strength
in his legal reasoning.
In short, this Court -- as shown by this Decision and the spirited Concurring, Separate and Dissenting Opinions written by the learned justices
themselves -- has exhaustively deliberated and carefully passed upon all relevant questions in this case. Thus, a remand will not serve any
useful purpose; it will only further delay these already very delayed proceedings,[74] which our Extradition Law requires to be summary in
character. What we need now is prudent and deliberate speed, not unnecessary and convoluted delay. What is needed is a irm decision on
the merits, not a circuitous cop-out.
Then, there is also the suggestion that this Court is allegedly “disregarding basic freedoms when a case is one of extradition.” We believe that
this charge is not only baseless, but also unfair. Suf ice it to say that, in its length and breath, this Decision has taken special cognizance of the
rights to due process and fundamental fairness of potential extraditees.
Summation
As we draw to a close, it is now time to summarize and stress these ten points:
1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes

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and the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; and whether the
person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused -- or the fugitive
who has illegally escaped -- back to its territory, so that the criminal process may proceed therein.
2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and
judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending
criminal case therein.
3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an
extradition case is not one in which the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a court’s
request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the
jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity.
4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a prima facie inding whether
the petition is suf icient in form and substance, whether it complies with the Extradition Treaty and Law, and whether the person sought is
extraditable. The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the af iants
or witnesses. If convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee and
summons him or her to answer and to appear at scheduled hearings on the petition.
5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the
burden of showing that (a) there is no light risk and no danger to the community; and (b) there exist special, humanitarian or compelling
circumstances. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the
principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the
context of the peculiar facts of each case.
6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does not always call for a prior
opportunity to be heard. A subsequent opportunity is suf icient due to the light risk involved. Indeed, available during the hearings on the
petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of
extradition.
7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and the conscience of society. But it
is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-equal and co-independent
organs of government.
8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign
relations and to implement treaties. Thus, the Executive Department of government has broad discretion in its duty and power of
implementation.
9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or excise grave abuse and tyranny.
They should not allow contortions, delays and “over-due process” every little step of the way, lest these summary extradition proceedings
become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partner’s
simple request to return a fugitive. Worse, our country should not be converted into a dubious haven where fugitives and escapees can
unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and international cooperation.
10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance with the
Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic contortions, delays and
technicalities that may negate that purpose.
WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby declared NULL and VOID, while the challenged
Order dated July 3, 2001 is SET ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail bond posted by private respondent is
CANCELLED. The Regional Trial Court of Manila is directed to conduct the extradition proceedings before it, with all deliberate speed
pursuant to the spirit and the letter of our Extradition Treaty with the United States as well as our Extradition Law. No costs.
SO ORDERED.
Austria-Martinez, Corona, and Carpio-Morales, JJ., concur.
Davide, Jr., C.J., Mendoza, and Callejo, Sr., joins in the concurring opinion of Justice Carpio.
Bellosillo, J., see Separate Opinion.
Puno, J., see Separate Opinion.
Vitug, J., see Dissenting Opinion.
Quisumbing, J., concur in the separate opinion of Justice Puno.
Ynares-Santiago, J., see Dissenting Opinion.
Sandoval-Gutierrez, J., join in the Separate Opinion of Justice Ynares-Santiago.
Carpio, J., see concurring Opinion.
SEPARATE OPINION
BELLOSILLO, J.:

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While I do not absolutely disagree with the well-reasoned ponencia of Mr. Justice Panganiban, I prefer nevertheless to surf with the
re lections of Mr. Justice Puno expressed in his Separate Opinion which, in essence, espouse the balancing of the duty of the State to faithfully
comply with its commitments under a treaty on one hand, and its responsibility to protect the fundamental rights of its citizens on the other.
I wish to express some concerns however, particularly the crucial issue of whether a potential extraditee may apply for and be released on
bail during the pendency of the extradition proceedings. This to me should not be ignored.
In Northern PR Co. v. North Dakota,[1] Mr. Justice Frankfurter intoned: "The cardinal article of faith of our civilization is the inviolable
character of the individual." Thus, fundamental rights and civil liberties, although not unlimited, occupy a place inferior to none in the
hierarchy of constitutional values. These are among the most cherished privileges enjoyed by free men, of which it is the sacred duty of the
State to maintain and protect against the erosion of possible encroachments, whether minute or extensive, foreign or domestic.
It is lamentable however that the position taken by the Government in the instant case amounts to an unpardonable abdication of the duty of
protection which it owes to all within its territory under the expediency of a treaty.
The Government maintains that an extradition court has no power to authorize bail in the absence of any law conferring such power; and
that the 1987 Constitution, as well as the Rules of Court, as amended, applies only to persons arrested and detained for violation of
Philippine Laws, but not to extradition proceedings in which courts do not render judgments of conviction or acquittal.
The argument is as ingenious as it is fallacious. It is settled that the power to admit to bail exists in extradition proceedings, although as a
matter of policy it may only be granted under "exceptional circumstances." This, quintessentially, has been the doctrine advocated in a
cavalcade of American cases starting with Wright v. Henkel, 190 US 40 (1902); and worth mentioning, of course, are Paretti v. United States,
112 F.3d 1363 (1977), Bealieu v. Hartigan, 430 F. Supp. 915 (1977), and In re Kirby, et al., 106 F.3d 855(1996); which are also discussed
extensively by Mr. Justice Puno.
Apart from these cases, there is likewise a considerable number of authorities which support the general view that the power to admit to bail
is a necessary incident of the power to hear and determine cases.[2] In other words, one of the inherent powers of the judiciary with regard to
proceedings before it has been the admission of a prisoner to bail where, in the exercise of his discretion, the judge deems it advisable. A
fortiori, even in the absence of express statutory grant of authority to courts, judicial power to admit to bail parties properly within their
jurisdiction must be deemed to exist. It must be mentioned, however, that this authority is not absolute for the Constitution, statutes and the
Rules of Court render it readily subject to limitations.
Signi icantly, both the extradition treaty between the United States and the Philippines, and the Philippine Extradition Law (PD 1069)
contain no provision expressly withholding from the courts the power to grant bail. Had the intention of the parties to the treaty been to
totally nullify the pre-existing power of the extradition court on the matter of bail, they could have easily provided for it in the treaty. But
since they had not done so, it would be reasonable to presume that they had not so intended. Indeed, the treaty fails to even remotely suggest
such judicial limitation insisted upon by the Government.
Truly, there is neither logic nor persuasion to the suggestion that bail should only be allowed in criminal cases, or that class of cases where
courts must "render judgments of conviction or acquittal." Bail as a remedy is available where there is deprivation of liberty prior or during
trial. In the 1909 case of United States v. Go Siaco,[3] akin to the situation confronting us, but involving a deportation proceeding, this Court
allowed the potential deportee to post bail although a deportation proceeding is not criminal in nature and there was then no law providing
for bail in deportation cases -
x x x x we see no reason why bail should not be allowed in this class of cases. As is said by the Supreme Court, the defendant has committed
no crime. In this particular case the defendant was born in this country, has lived here for more than 35 years and is now living here with his
mother, a native of the Islands. There is no reason to think that his being at large will be any menace to the people in the locality where he
resides, nor is there any reason to believe that his attendance at court abide the judgment which may be entered against him cannot be
secured by the giving of bail as in ordinary cases. To refuse him bail is to treat him as a person is treated who has committed the most serious
crime known to the law, and while we do not intend to say that this is a criminal proceeding, we do say that some of the machinery used for
making the investigation required by Act No. 702 is the machinery of the criminal law, and to it are applicable those provisions of General
Orders No. 58, relating to bail.
Were we to adopt the view pressed upon us by the Government, it would restrict the reciprocal operation of the treaty, and create a striking
lack of symmetry between the rights of Filipinos subject of extradition and that of American extraditees. Filipino citizens sought to be
extradited by the United States government will be absolutely denied of the chance at provisional liberty during the pendency of the
extradition proceedings against them; while American fugitives from justice sought to be extradited by the Philippine government could
always exercise the right to petition for bail, and consequently, enjoy better chances of avoiding the inconvenience of incarceration during the
pendency of the extradition proceedings. Certainly, there is no warrant for the discrimination. The Philippines and the United States dealt
with each other as equals. Their extradition treaty discloses the intention that they shall stand on the same footing. The governing principles
should always be reciprocity and equality.
We cannot curtail a citizen's right to freedom on speculations and fears where there exist reasonable mechanisms appropriate to address
them. To my mind, the risk of light does not ipso facto call for denying his right to bail. Trial judges must henceforth weigh carefully and
judiciously other methods to assure the presence of the accused during the proceedings and right after, when he ought to be deported
already. Bail may be set at huge amounts or passports cancelled and hold-departure orders issued or border patrols heightened, in order that
the extraditee may not lee from our jurisdiction. In this regard, while I agree that it is the extraditee's burden to prove the least likelihood of
light, the extradition court is also entitled to presume that the executive branch has done all it can to forestall his sudden disappearance. The

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executive branch cannot plead its helplessness and inutility to defeat the grant of bail to the extraditee.
In any event, all things being equal, the personal circumstances of respondent Jimenez would negate any idea of light risk. He is a popular,
even notorious, fellow whose face is more frequently than others plastered in the tri-media. His stature as representative for a congressional
district in Manila makes escape from Philippine jurisdiction not only embarrassing for him but also constitutive of the offense of
abandonment of duty. His family and business interests are said to be strategically placed in this country. Indeed, where respondent Jimenez
has more to lose from light, the possibility thereof appears remote and speculative.
Equity especially tilts in favor of respondent Jimenez in light of our ruling in Montano v. Ocampo[4] where we allowed bail to an elected
senator of the country who was charged with the capital offenses of murder and frustrated murder. In resolving to grant bail in favor of
Senator Montano, this Court took special notice of the accused's of icial and social standing as senator from which we concluded that light
was remote if not nil despite the capital crimes he had to face. In the same breath, respondent Jimenez is a duly elected Congressman with
personal circumstances that will not risk the ignominy of light, considering further the crimes he is charged with are far less severe and
ignoble, since most of them had something to do with election campaign contributions than the seemingly serious indictment for murder and
frustrated murder against Senator Montano.
If we grant for the sake of argument that the possibility of light exists, still respondent Jimenez' detention would be unwarranted by law and
the Constitution if the only purpose of the con inement is to eliminate a rare odd of danger that is by no means actual, present and
uncontrollable. After all the Government is not powerless to deal with or prevent any threat by measures it has the ways and means to
implement. The thought eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in connection with the application
for bail of ten (10) communists convicted by a lower court for advocacy of a violent overthrow of the United States Government is pertinent
and elucidating in principle -
The Government's alternative contention is that defendants, by misbehavior after conviction, have forfeited their claim to bail. Grave public
danger is said to result from what they may be expected to do, in addition to what they have done since their conviction. If I assume that
defendants are disposed to commit every opportune disloyal act helpful to Communist countries, it is still dif icult to reconcile with
traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect
society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice
that I am loath to resort to it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which
defendants stand convicted x x x x If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there is a very
practical aspect of this application which must not be overlooked or underestimated - that is the disastrous effect on the reputation of
American justice if I should now send these men to jail and the full Court later decide that their conviction is invalid. All experience with
litigation teaches that existence of a substantial question about a conviction implies a more than negligible risk of reversal. Indeed this
experience lies hack of our rule permitting and practice of allowing bail where such questions exist, to avoid the hazard of unjusti iably
imprisoning persons with consequent reproach to our system of justice
x x x x Risks, of course, are involved in either granting or refusing bail. I am not naive enough to underestimate the troublemaking
propensities of the defendants. But, with the Department of Justice alert to the dangers, the worst they can accomplish in the short time it
will take to end the litigation is preferable to the possibility of national embarrassment from a celebrated case of unjusti ied imprisonment of
Communist leaders. Under no circumstances must we permit their symbolization of an evil force in the world to be hallowed and glori ied by
any semblance of martyrdom. The way to avoid that risk is not to jail these men until it is inally decided that they should stay jailed. If the
commentary is not comparable with ours on the issues presented, its underlying principle is of universal application. If only to preserve our
regime of civil liberties and stem a precedent where bail is unscrupulously disallowed, respondent Jimennez may be placed under the
surveillance of the authorities or their agents in such form and manner as may be deemed adequate to insure that he will be available
anytime when the Government is ready to extradite him, although the surveillance should be reasonable and the question of reasonableness
should be submitted to the court a quo for remedial measures in case of abuse. He may also be required to put up a bond with suf icient
surety or sureties to ensure that his extradition is not thwarted.
In our society - and even in the United States, I am sure - freedom from bodily restraint has always been at the core of the civil liberties
protected by the Constitution. To unduly sacri ice the civil liberties of an individual by reason of an unfounded fear of being unable to ful ill
treaty obligations, would be to render impotent the ideals of the dignity of the human person, thereby destroying something of what is noble
in our way of life. Certainly, if civil liberties may be safely respected without imminently or actually impairing faithful compliance with treaty
obligations, as in this case, then there is no valid reason for disregarding them.
I wish to emphasize, however, lest the best of my intentions be misconstrued, that it is not my purpose here to encourage, much less foment,
dishonor of the treaty duly entered into by our Government. By all means we have to ful ill all our international commitments, for they are
not mere moral obligations to be enforced at the whims and caprices of the State. They create legally binding obligations founded on the
generally accepted principle in international law of pacta sunt servanda which has been adopted as part of the law of our land. But, in so
doing, we must be ever conscious of the need to balance in one equation our commitments under the treaty, and the equally important right
of the individual to freedom from unnecessary restraint.
As the vast powers and enormous resources of both the United States of America and the Republic of the Philippines are marshalled against a
puny individual that is respondent Jimenez, he is certainly entitled to some measure of protection to ensure that no unwarranted intrusions
or undue curtailment of his liberty is committed.
I vote to REMAND the petition to the court a quo to ensure that proper safeguards are afforded respondent in the course of the extradition

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proceedings.
[1]
236 U.S. 585.
[2]
United States v. Evans, 6 Cir., 1880, 2F. 147; In re Gannon, D.C. Pa. 1928, 27 F.2d 362; In re Chow Goo Pooi, 9 Cir., 25 F. 77; In re Ah Kee, 9
Cir., 1884, 21 F. 701; Whit ield v. Hanges, 8 Cir., 222 F. 745; Ewing v. United States, 6 Cir., 1917, 240 F. 241.
[3]
12 Phil. 490.
[4]
L-6352, Reso. dated 29 January 1953, 49 O.G. 1855.
Concurring Opinion
Carpio, J:
I concur with the well-written ponencia of Justice Panganiban. I write this concurring opinion to afford extraditees in this country the right to
bail, in carefully limited exceptions, under the equity and rule making power of the Court. It is the constitutional duty and power of the Court
to protect and enforce the fundamental rights[1] of all persons in this country. This should include, to the extent that the Court can grant
under its power, the right of extraditees in this country to avail of the same or similar remedies that courts in the countries of our treaty
partners have accorded to their own extraditees.
The right to bail is a constitutional right available to an accused in domestic criminal proceedings except in offenses punishable by reclusion
perpetua or higher when evidence of guilt is strong.[2] An extraditee, however, cannot invoke this constitutional right in international
extradition because extradition proceedings are not criminal proceedings. Extradition proceedings are like deportation and court martial
proceedings where there is no constitutional right to bail.
Thus, in the leading case of Ong See Hang v. Commissioner of Immigration,[3] the Court held that:
“The right to bail guaranteed by the Constitution may not be invoked in favor of petitioners-appellees, considering that deportation
proceedings do not constitute a criminal action (Lao Tang Bun v. Fabre, 81 Phil. 682; U. S. ex rel. Zapp, et al. v. District Director of Immigration
and Naturalization, supra) and the order of deportation is not a punishment for a crime (U. S. v. Go-Siaco, 12 Phil. 490; Mahler v. Eby, 264 U. S.
32), it being merely for the return to his country of an alien who has broken the conditions upon which he could continue to reside within
our borders (U. S. v. De los Santos, 33 Phil. 397, Lao Tang Bun v. Fabre, supra).”
This was reiterated in several cases, the most recent being In RE Andrew Harvey v. Santiago,[4] decided under the 1987 Constitution. Here, the
Court ruled that:
“The denial by respondent Commissioner of petitioners' release on bail, also challenged by them, was in order because in deportation
proceedings, the right to bail is not a matter of right but a matter of discretion on the part of the Commissioner of Immigration and
Deportation. Thus, Section 37(e) of the Philippine Immigration Act of 1940 provides that "any alien under arrest in a deportation proceeding
may be released under bond or under such other conditions as may be imposed by the Commissioner of Immigration." The use of the word
"may" in said provision indicates that the grant of bail is merely permissive and not mandatory on the part of the Commissioner. The exercise
of the power is wholly discretionary (Ong Hee Sang vs. Commissioner of Immigration, L-9700, February 28, 1962, 4 SCRA 442). "Neither the
Constitution nor Section 69 of the Revised Administrative Code guarantees the right of aliens facing deportation to provisional liberty on
[1958]
bail." (Tiu Chun Hai, et al vs. Deportation Board, 104 Phil. 949 ). As deportation proceedings do not partake of the nature of a criminal
action, the constitutional guarantee to bail may not be invoked by aliens in said proceedings (Ong Hee Sang vs. Commissioner of Immigration,
supra).”
In Commendador v. de Villa,[5] involving the court martial of military putschists against the Aquino Government, the Court held that:
“We ind that the right to bail invoked by the private respondents in G.R. No(s). 95020 has traditionally not been recognized and is not
available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we
observed that `the right to a speedy trial is given more emphasis in the military where the right to bail does not exist’.”
The justi ication for this exception was well explained by the Solicitor General as follows:
`The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail.
Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed
the iduciary use of irearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected
from the people. All other insurgent elements carry out their activities outside of and against the existing political system.
xxx
National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging
precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order
were sustained, on “provisional” bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could

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freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable
Court, and replace the same with a system consonant with their own concept of government and justice.’
The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty
requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially
different from others. The accused of icers can complain if they are denied bail and other members of the military are not. But they cannot
say they have been discriminated against because they are not allowed the same right that is extended to civilians.”
Finally, in Secretary of Justice v. Lantion,[6] the Court, speaking through Justice Reynato S. Puno, declared that:
“We are not persuaded. An extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of
an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or
innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule,
constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by
one whose extradition papers are still undergoing evaluation. As held by the US Supreme Court in United States v. Galanis:
`An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do
not shield an accused from extradition pursuant to a valid treaty.’
There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature
while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition
requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited `upon showing of the existence of a prima
similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nation's
foreign relations before making the ultimate decision to extradite.
As an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary
investigation, the due process safeguards in the latter do not necessarily apply to the former. This we hold for the procedural due process
required by a given set of circumstances "must begin with a determination of the precise nature of the government function involved as well
as the private interest that has been affected by governmental action." The concept of due process is flexible for "not all situations calling for
procedural safeguards call for the same kind of procedure."
Clearly, in this jurisdiction there is no constitutional or statutory right to bail in non-criminal proceedings like in extradition. This doctrine is
so well-entrenched in this jurisdiction that there is no need to belabor this point. Courts in the countries of our treaty partners, however,
have allowed bail to extraditees in their own countries even in the absence of a constitutional[7] or statutory[8] right to bail. This places our
own citizens who face extradition proceedings in this country at a disadvantage in terms of available remedies. The United States, for
example, allows bail to extraditees when “special circumstances”[9] are present. Canada also allows bail under a similar rule.[10]
This situation calls for equality in treatment by extending, in carefully limited exceptions, the right to bail to those facing extradition
proceedings in this country. Nevertheless, we must insure that we do not cripple the ability of our Executive Department to comply in good
faith with our treaty obligations under international law. This requires a calibrated balancing, on the one hand, of the State’s interest in
cooperating with our treaty partners in international criminal law enforcement, and on the other hand, of the need to give our own citizens
no lesser right and protection than what our treaty partners so zealously provide to their own citizens.
Thus, following the emerging trend in the United States,[11] and guided by our own experience in combating transnational crimes including
international terrorism, the Court should rule that our extradition courts may, after the arrest of the extraditee, grant the extraditee bail if he
establishes that he does not pose a flight risk or a danger to the community, and there is no other special circumstance that would
warrant denial of bail. The burden of proving he is entitled to bail rests on the extraditee because by resisting the extradition to face a fair
trial abroad, the extraditee is presumed to be a light risk. This is why courts have consistently held that the presumption is against bail in
extradition cases.[12]
The development of extradition law is still in its infancy in this country. We are fortunate that the present Constitution has empowered the
Court to adopt rules to protect and enforce the fundamental rights of the people. In the United States, the grant of bail to extraditees is still
largely governed by the 1903 case of Wright v. Henkel, with only the cryptic “special circumstances” as the standard prescribed by the U.S.
Supreme Court for extradition courts in the U.S. to follow.[13] The instant case provides the opportunity for this Court to lay down a clear-cut
guideline for our own extradition courts to follow. This will insure that our Executive Department can comply promptly with extradition
requests as required by the nature of our treaty obligations while at the same time protecting the fundamental rights of our citizens.
In essence, extradition is police assistance extended by a state to arrest a person charged with a crime in another state and surrender him to
the authorities of that state. The power to arrest by the assisting state is legitimized by a treaty, which has the force of a statute[14] and forms
part of municipal law.[15] The bene it of extradition is the mutual assistance between states in criminal law enforcement across national
boundaries. The assisting state acts as an arresting agent and in some jurisdictions the extradition process is mainly an executive function.
Even under our extradition treaties, the inal decision whether to extradite or not rests with the President of the Philippines, not with the
courts.[16] Thus, ordinarily an assisting state does not grant bail to the extraditee whose recourse is to apply for bail before the court of the
state where he is charged with a crime. The assisting state, however, for equity considerations may choose to accord bail to the extraditee.
One equity consideration is to put extraditees in one country in equal footing with extraditees in the country of the treaty partner. Another

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equity consideration is to grant the right to bail, in carefully limited exceptions, to preserve and enforce fundamental rights.
This rule will not change the situation for extraditee Mark B. Jimenez in the instant case because Jimenez has failed to establish that he is not
a light risk. Having led the United States just as he was about to be indicted for several serious crimes, Jimenez is presumed to be a light
risk for extradition purposes in this country. Jimenez has not successfully rebutted this presumption before the extradition court. Jimenez
has also refused to honor his agreement with the U.S. Department of Justice, made in August 1998 through his U.S. counsel, to return to the
United States[17] where he faces a maximum prison term of not less than 100 years if convicted on all counts.[18] Given his resources, and the
gravity of the charges against him, Jimenez remains a serious light risk.
The “special circumstances” that Jimenez has alleged do not inspire con idence that he will not likely lee. Jimenez claims that he has been
admitted to the Witness Protection Program which shows his lack of intent to lee. The Department of Justice, however, has disowned issuing
to Jimenez a Certi icate of Admission to the Witness Protection Program. The Department of Justice should know who have been admitted to
the Witness Protection Program because the Department itself administers the Program. Under the Witness Protection, Security and Bene it
Act, the issuance of the Certi icate of Admission is the operative act that establishes admission to the Program.[19] Unless he can present a
Certi icate of Admission, Jimenez’s claim should be rejected, and even taken as an act of misrepresentation to the extradition court, in view of
the statement by the Department of Justice that there is no record of Jimenez’s admission to the Program.[20]
For the same reason, Jimenez’s claim that he is a state witness in the plunder case against ex-President Joseph Estrada, and that “his light
would strip him of (the) immunity he is entitled to,”[21] cannot be given credence. Under the Witness Protection, Security and Bene its Act, the
Certi icate of Admission is essential to the discharge of the accused and his utilization as a state witness.[22] Without the Certi icate of
Admission, Jimenez is not entitled to immunity under the Program.[23] The Department of Justice will issue the Certi icate of Admission only if
it is satis ied with the proposed testimony of the witness as disclosed in his sworn statement. Since until now the Department of Justice has
not issued a Certi icate of Admission to Jimenez, it could mean that the Department is either not satis ied with what Jimenez is bargaining to
testify against ex-President Joseph Estrada, or that Jimenez may not be the least guilty.[24] Unless Jimenez presents to the extradition court the
Certi icate of Admission, and this he has not done, Jimenez’s claim of being a state witness against ex-President Estrada is baseless and
self-serving.
Jimenez claims that the Department of Justice knows his whereabouts because he is under 24-hour PNP protection. Jimenez asserts in his
Sworn Statement[25] that the Department of Justice has provided him police protection because he “was admitted into the Witness Protection
Program of the DOJ on 2 March 2001.” This is patently false. The Department of Justice states that there is no record of Jimenez’s admission
to the Witness Protection Program. Jimenez has not presented a Certi icate of Admission to the Program which under the Witness Protection,
Security and Bene its Act would entitle him to the bene its, protection and immunities of the Program.
That Jimenez enjoys the privilege of a 24-hour PNP security detail does not establish that he is a state witness under the Witness Protection
Program. As a member of the House of Representatives, Jimenez may have requested the PNP to provide him a security detail for his own
bene it and protection. In such a case, the PNP security detail takes instructions from Jimenez and not from the Department of Justice. The
24-hour PNP security detail would hardly be effective in preventing Jimenez from leeing the country.
The other “special circumstances” alleged by Jimenez, like his seven children residing in the Philippines, and his lack of visas to travel to
other countries, deserve scant consideration. Considering his age, Jimenez’s seven children are all probably of age by now, and even if they
are all still minors, they would hardly become public charges if left behind in the Philippines. The lack of visas has never deterred the light of
fugitives from any country. Besides, any Filipino can travel to any of our nine ASEAN neighbors without need of a visa.
Accordingly, I vote to grant the petition.
SEPARATE OPINION
PUNO, J:
This is a case of irst impression involving not only the state’s interest to comply with its extradition treaty with the United States but also its
equally imperative duty to protect the constitutional rights of its citizens to liberty and to due process. Our decision will affect important
rights of all our citizens facing extradition in foreign countries. Personalities should not therefore bend our decision one way or the other for
the protection of the Bill of Rights extends indifferently to all alike.
We begin with the unfudged facts. The records reveal that when the private respondent learned of the iling of the petition for extradition
against him and before the extradition court could issue any summons, he iled a motion to be furnished a copy of the petition and to set for
hearing petitioner’s request for the issuance of warrant of arrest. Alternatively, he prayed that he be allowed to post bail for his temporary
liberty. Respondent judge granted private respondent’s motion. After hearing, he issued a warrant for the arrest of private respondent but
allowed him to post bail.
Petitioner assails the orders of the respondent judge and submits the following issues for resolution by this Court:
“I.
The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction
in adopting a procedure of irst hearing a potential extraditee before issuing an arrest warrant under Section 6 of P.D. No. 1069.
II.
The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction

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in granting the prayer for bail and in allowing Jimenez to go on provisional liberty because:
1. An extradition court has no power to authorize bail in the absence of any law that provides for such power.
2. Section 13, Article III (right to bail clause) of the 1987 Constitution and section 4, Rule 114 (Bail) of the Rules of Court, as amended, which
were relied upon, cannot be used as bases for allowing bail in extradition proceedings.
3. The presumption is against bail in extradition proceedings or proceedings leading to extradition.
4. On the assumption that bail is available in extradition proceedings or proceedings leading to extradition, bail is not a matter of right but
only of discretion upon clear showing by the applicant of the existence of special circumstances.
5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent received no evidence of ‘special
circumstances’ which may justify release on bail.
6. The risk that Jimenez will lee is high, and no special circumstance exists that will engender a well-founded belief that he will not lee.
7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the Philippines with its obligations under the
RP-US Extradition Treaty.
8. The Court of Appeals resolution promulgated on May 10, 2001 in the case entitled ‘Eduardo T. Rodriguez, et al. vs. Hon. Presiding Judge,
RTC, Branch 17 Manila,’ CA- G.R. SP No. 64589, relied upon by the public respondent in granting bail, had been recalled before the issuance of
the subject bail orders.”
The substantive issues are shortlisted in the majority opinion as follows: (1) whether or not the private respondent is entitled to notice and
hearing before a warrant for his arrest can be issued; and (2) whether or not he is entitled to post bail for his provisional liberty while the
extradition proceedings are pending.
With due respect, I offer the following views on the issues as hewn in the majority opinion, viz:
I.
The right to notice and hearing of private respondent as an extraditee.
The irst issue demands a two-tiered analysis based on the following questions:
(1) Can the private respondent, as potential extraditee, demand as a matter of right, that he be furnished a copy of the petition for extradition
before the summons and/or the warrant of arrest are issued by the extraditing court?
(2) Can he demand a hearing for the purpose of determining the necessity and propriety of the issuance of a warrant for his arrest?
The majority opinion submits that neither P.D. No. 1069 nor the Constitution authorize respondent judge to give the private respondent a
copy of the petition for extradition and immediately set for hearing the request for a warrant of arrest against the latter.
I beg to disagree. There can be no disagreement that P.D. No. 1069 deserves an interpretation that would blend with the purpose of the RP-US
Extradition Treaty, i.e., the minimization of light risk and the facilitation of an extraditee’s surrender to the requesting state. But this stance
should not be taken to mean that this Court can cast a blind eye to the private respondent’s constitutional rights to life, liberty and to due
process. While this Court is obliged to accord due respect to the state’s interests to comply with its treaty obligations, it cannot also shirk
from its duty to protect the fundamental rights of its citizens. Thus, a full and careful weighing of these warring interests is imperative as we
did in its predecessor case Secretary of Justice vs. Lantion.[1] With due respect, it is my humble submission that the majority failed to allocate
the proper weight due to the constitutional rights of the private respondent to life, liberty and to due process. These rights are now
conceded in the civilized world as universal in character and it was never the intent of the RP-US Extradition Treaty to trivialize their
signi icance.
It bears emphasis that this Court’s ruling in Secretary of Justice vs. Lantion did not per se negate the constitutional rights of a potential
extraditee to liberty and due process. If we rejected private respondent’s invocation of these rights in said case, it was only because (1) the
threat to his liberty by provisional arrest has already passed;[2] and (2) the threat to his liberty upon the iling of the petition for extradition
was merely hypothetical.[3] At that time, the government of the United States has not requested for the provisional arrest of the private
respondent. Likewise, the petition for extradition has not yet been iled before the extradition court. Thus, after carefully balancing the
con licting interests of the parties at the evaluation stage of the extradition proceedings, we upheld the state’s interests under its extradition
treaty with the United States, viz:
“To be sure, private respondent’s plea for due process deserves serious consideration, involving as it does his primordial right to liberty. His
plea to due process, however, collides with important state interests which cannot also be ignored for they serve the interest of the greater
majority. The clash of rights demands a delicate balancing of interests approach which is a ‘fundamental postulate of constitutional law.’ The
approach requires that we ‘take conscious and detailed consideration of the interplay of interests observable in a given type of situation.’
These interests usually consist in the exercise of the individual of his basic freedoms on the one hand, and the government’s promotion of
fundamental public interests or policy objectives on the other.
In the case at bar, on one end of the balancing pole is the private respondent’s claim to due process predicated on Section 1, Article III of the
Constitution, which provides that ‘No person shall be deprived of life, liberty, or property without due process of law…’ Without a bubble of
doubt, procedural due process of law lies at the foundation of a civilized society which accords paramount importance to justice and fairness.
It has to be accorded the weight it deserves.
This brings us to the other end of the balancing pole. Petitioner avers that the Court should give more weight to our national commitment
under the RP-US Extradition Treaty to expedite the extradition of its laws. Petitioner also emphasized the need to defer to the judgment of
the Executive on matters relating to foreign affairs in order not to weaken if not violate the principle of separation of powers.
Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of the right being claimed by private

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respondent is nebulous and the degree of prejudice he will allegedly suffer is weak, we accord greater weight to the interests espoused by the
government thru the petitioner Secretary of Justice.”[4]
We stressed that the denial of the private respondent’s privilege of notice and hearing during the evaluation stage of the extradition
proceeding is merely a soft restraint on his right to due process, viz:
“In tilting the balance in favor of the interests of the State, we stress that it is not ruling that the private respondent has no right to due
process at all throughout the length and breadth of the extrajudicial proceedings. Procedural due process requires a determination of
what process is due, when it is due, and the degree of what is due. Stated otherwise, a prior determination should be made as to
whether procedural protections are not at all due and when they are due, which in turn depends on the extent to which an
individual will be condemned to suffer grievous loss.”[5]
The extradition process against the private respondent has, however, moved away from the stage of evaluation of documents by the
executive officials of the Philippine government. A formal petition for the extradition of the private respondent has now been iled with our
court of justice. With this development, the competing interests of our government and of the private respondent have developed
new dimensions and they need to be rebalanced. I respectfully submit the following propositions, viz.
(a) A potential extraditee has the right to be noti ied of the iling of the petition for extradition.
It is my humble submission that from the moment the petition for extradition is iled before the extradition court, a potential extraditee has
the right to demand that he be furnished a copy of the petition. This right inheres from the duty imposed by P.D. No. 1069 to the extradition
judge to summon a potential extraditee to appear and answer the petition “as soon as practicable.” It is a mandatory duty that should be
carried out by the extradition judge; the law does not give him any discretion.
This submission is in accord with our ruling in Secretary of Justice vs. Lantion,[6] where we held that: “P.D. No. 1069 which implements the
RP-US Extradition Treaty provides the time when an extraditee shall be furnished a copy of the petition for extradition as well as the
supporting papers, i.e., after the iling of the extradition in the extradition court.”
(b) The need for a hearing to determine whether a warrant of arrest should be issued against an extraditee is addressed to the
sound discretion of the extraditing judge.
The majority opinion holds that the private respondent extraditee is not entitled to notice and hearing before the issuance of a warrant of
arrest. It relies on section 6 of P.D. No. 1069, which provides:
“Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of Notices.- (1) Immediately upon receipt of the petition, the presiding
judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed
in the order. [H]e may issue a warrant for the immediate arrest of the accused which may be served anywhere within the
Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will serve the
ends of justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time ixed,
the presiding judge shall hear the case or set another date for hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the
attorney having charge of the accused.” (emphasis supplied)
The majority interprets this provision as follows:
“It is signi icant to note that section 6 of PD 1069, our Extradition Law, uses the word ‘immediate’ to qualify the arrest of the accused. This
quali ication would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the
opposing parties, receiving facts and arguments from them, and giving them time to prepare and present such facts and arguments. Arrest
subsequent to hearing can no longer be considered ‘immediate.’ The law could have intended the word as a mere super luity but, on the
whole, as means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should issue.”
Clearly, the majority leans heavily on the use of the word “immediate” which quali ied the arrest of an extraditee. It holds that “the
quali ication would be rendered nugatory by setting for hearing the issuance of the arrest warrant.”
Again, I beg to disagree. I submit that the decision whether to send notice to an extraditee and hear him before ordering his arrest
should be left to the sound discretion of the extraditing judge. This is crystal clear from section 6 of P.D. No. 1069 which provides:
“x x x He may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the
presiding judge that the immediate arrest and temporary detention of the accused will serve the ends of justice.” (Italics supplied)
Under this provision, the issuance of a warrant of arrest is dependent on a big “if,” or to an all important condition - - - if it will serve the
ends of justice. The determination of whether a warrant of arrest against an extraditee will serve the ends of justice is certainly not a cut
and dried duty. It involves the appreciation of highly contentious facts, both objective and subjective in nature. Their appreciation requires a
judicial mind honed in the law of evidence. The history of extradition will reveal that, initially, the task of determining whether an extraditee
should be immediately arrested was given to the executive authorities of the extraditing state. The matter, in other words, was treated purely
as an executive function but unfortunately, the practice was given to abuses. Recognizing that certain human rights are universal in nature
and beyond violation, the task of adjudging whether a potential extraditee should be immediately arrested pending his extradition
proceeding was transferred to judges. The of ice of the judge was called upon to insure that fundamental fairness is not denied to a potential
extraditee. The extraditing judge is not to act as a stamp pad but has to exercise his sound discretion on whether to issue the warrant. Under
our law on extradition, P.D. No. 1069, section 6, the discretion of the extradition judge on whether to order the arrest of the extraditee is
guided by the following consideration - - - whether the arrest will serve the ends of justice. The grant of this judicial discretion will be
rendered naught if we subject the action of the extraditing judge to unnecessary fetters. With due respect, the view that the extraditing

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judge has no discretion to determine whether to notify and hear a potential extraditee before ordering his arrest cuts too much on
the freedom of action of the extraditing judge. I submit that we should give the extraditing judge more discretion on the matter. If the
extraditing judge feels that the notice and hearing will allow an extraditee to lee, I have no doubt, he will immediately order his arrest. If,
however, he believes that notice and hearing will not pose such danger and that he needs to hear the parties to make a better determination
on whether the immediate arrest of an extraditee will serve the ends of justice, let us not deny him the discretion to do so. The essence of
discretion is freedom of action and we negate that essence when we impose needless limits on the judge’s freedom of action.
Prescinding from these premises, I cannot also subscribe to the submission of the majority that the phrase “if it appears” in section 6 of P.D.
No. 1069 conveys the message that accuracy is not as important as speed in issuing a warrant of arrest against a potential extraditee. We are
concerned here with the priceless right to life and liberty, with the right to due process before one’s liberty is taken away. We are not dealing
with chattels. We should not lay down the doctrine that speed should be preferred to accuracy for speed breeds recklessness and
we cannot be reckless with our right to life and liberty.
I agree with the majority that the trial court should not be expected to make an exhaustive determination of the facts of the case before
issuing a warrant of arrest. To be sure, that is not expected of any judge, not even from a judge of a criminal case. In the case at bar, however,
the extraditing judge ordered the hearing only to have a better basis for determining whether the immediate arrest of the private respondent
will best serve the ends of justice. A careful look at the petition for extradition will show that it does not provide enough basis for the
extraditing judge to determine whether the immediate issuance of warrant of arrest will serve the ends of justice. I quote the
majority opinion on the documents attached to the petition for extradition, viz:
“Attached to the Petition for Extradition, with a Certi icate of Authentication among others, were the following: (1) Annex H, the Af idavit
executed on May 26, 1999 by Mr. Michael E. Savage – trial attorney in the Campaign Financing Task Force of the Criminal Division of the US
Department of Justice; (2) Annexes H to G, evidentiary Appendices of various exhibits that constituted evidence of the crimes charged in the
Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex
BB, the Exhibit I ‘Appendix of Witness [excerpts] Statements Referenced in the Af idavit of Angela Byers’ and enclosed Statements in two
volumes; (4) Annex GG, the Exhibit J ‘Table of Contents for Supplemental Evidentiary Appendix’ with enclosed Exhibits 121 to 132; and (5)
Annex MM, the Exhibit L ‘Appendix of Witness [excerpts] Statements Referenced in the Af idavit of Betty Steward’ and enclosed Statements in
two volumes.”
Even a cursory reading of these documents will not sustain the thesis of the majority that “it is evident that the respondent could have
already gotten an impression from these records adequate for him to make an initial determination of whether the accused was someone
who should immediately be arrested in order to best serve the ends of justice.” The documents are evidence tending to prove the guilt of the
private respondent in regard to the cases iled against him in the United States. They are not evidence, however, to prove that the private
respondent will lee the Philippine jurisdiction while his extradition petition is being heard. In other words, the petition for extradition may
be in due form but it does not establish suf icient factual basis to justify the immediate issuance of warrant of arrest against the private
respondent. The probability of his light from our jurisdiction is central to the question of whether he should be arrested. In the absence of
evidence establishing that private respondent will lee, I cannot join the majority in holding that the respondent extraditing judge gravely
abused his discretion in calling for a hearing so that the parties can adduce evidence on the issue.
Likewise, the majority holds:
“Moreover, the law speci ies the court’s setting a hearing upon receipt of the answer or upon failure of the accused to answer after receiving
the summons. In connection with the matter of immediate arrest, however, the word ‘hearing’ is notably absent from the provision. Evidently,
had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this point that
extradition proceedings are summary in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that
there is no intention to punctuate with a hearing every little step in the entire proceedings.”
Once more, I beg to disagree from the reading of our law on extradition by the majority. The law, it is true, did not provide that the extraditing
judge must hold a hearing before he issues a warrant of arrest. The call for a hearing is not mandatory but neither is it prohibited. Ergo, the
matter of whether there ought to be a hearing before issuance of warrant of arrest is addressed to the discretion of the extraditing judge. The
exercise of this discretion depends on the con iguration of the facts of each case.
II.
The right to bail of a potential extraditee during the pendency of the petition for extradition.
I respectfully submit that a potential extraditee can hinge his right to bail in our Constitution. The mere silence of our extradition treaty with
the Unites States and our extradition law (P.D. No. 1069) does not negate the right to bail of a potential extraditee. Our adherence to the
Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, as well as international norms, customs
and practices support an extraditee’s right to bail. But while an extraditee may apply for bail, its grant depends on presentation of
clear and convincing evidence that the extraditee will not frustrate the ends of justice by leeing from our jurisdiction. Again, I proffer the
following propositions:
First. The right to bail inheres from the rights to life, liberty and to due process.
Our Constitution jealously guards every person’s right to life and liberty against unwarranted state intrusion; indeed, no state action is
permitted to invade this forbidden zone except upon observance of due process of law.[7] Like the privilege of the writ of habeas corpus, the
right to bail gives lesh to the guarantee to liberty, without which, the right to liberty can prove meaningless, and due process will only be an
empty slogan.

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[8]
However, unlike the privilege of habeas corpus which is principally a remedy against illegal restraint on liberty, the right to bail is
available even when the reason for the detention is lawful. The purpose of bail is to relieve a person the rigors of prolonged
imprisonment until the main case against him is resolved, and at the same time, insure his attendance when required by the authorities.[9] It
is the prospect of prolonged detention, not the detention itself, which offends the constitutional right to due process.
In Teehankee vs. Rovira,[10] this Court rejected the view which limits the right to bail to persons charged with criminal offenses. We ruled
that the constitutional right to bail applies to all persons, viz:
“This constitutional mandate refers to all persons, not only to persons against whom a complaint or information has already been
filed; it lays down the rule that all persons shall before conviction be bailable except those charged with capital offense and the evidence of
his guilt is strong. Of course, only those persons who have either been arrested, detained or otherwise deprived of their liberty may have the
occasion to seek the bene it of said provision. But in order that a person can invoke this constitutional precept, it is not necessary that he
should wait until a formal complaint or information is iled against him. From the moment he is placed under arrest, detention or
restraint by officers of the law, he can claim this guarantee of Bill of Rights, and this right he retains unless and until he is charged with
a capital offense and the evidence against him is strong. Indeed, if, as admitted on all sides, the precept protects those already charged under
a formal complaint or information, there seems to be no legal or just reason for denying its benefit to one against whom the proper
authorities may yet conclude that there exists no sufficient evidence of guilt. To place the former in a more favored position than the
latter would be, to say the least, anomalous and absurd. If there is presumption of innocence in favor of one already formally charged
with a criminal offense, a fortiori this presumption should be induced in favor of one yet so charged although arrested or
detained.” (emphasis supplied)
In United States vs. Go-Siaco,[11] this Court held that while deportation proceedings are not criminal in nature, an alien deportee may avail
of the constitutional right to bail, viz:
“The order of deportation is not a punishment for a crime. It is not a banishment, in the sense which that word is often applied to the
expulsion of citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has
not complied with the conditions upon the performance of which the Government of the nation, acting within its constitutional authority and
through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life,
liberty, or property without due process of law; and the provisions of the Constitution securing the right of trial by jury and prohibiting
unreasonable searches and seizures, and cruel and unusual punishments, have no application.
It will be seen that this declaration is not inconsistent with the view that while the proceeding is not a trial or sentence of a crime or offense,
it may in so far use the machinery of the criminal law as to admit of application the provisions in such law relating to bail x x x.
x x x We see no reason why bail should not be allowed in this class of cases. As is said by the Supreme Court, the defendant has
committed no crime x x x To refuse him bail is to treat him as a person who has committed the most serious crime known to the
law, and while we do not intend to say that this is a criminal proceeding, we do say that some of the machinery used for making the
investigation required by Act No. 702 is the machinery of the criminal law x x x.”
This ruling is reiterated in United States vs. Benito[12] and in Pagado vs. Aldanese.[13]
The case of Ong Hee Sang, et al. vs. Commissioner of Immigration and Portugal[14] is not a departure from our previous rulings on the
right to bail of a deportee. In said case, the Court ruled that the grant or denial of an alien’s application for bail lies within the discretion of
the Commissioner of Immigration and Deportation pursuant to section 37 (9) (e) of the Philippine Immigration Act of 1940, which states:
“Any alien under arrest in a deportation proceeding may be released under a bond or under such other conditions as may be imposed by the
Commissioner of Immigration.”[15] The Court ratiocinated as follows:
“The right to bail guaranteed by the Constitution may not be invoked in favor of petitioners-appellees considering that deportation
proceedings do not constitute a criminal action and the order of deportation is not a punishment for a crime, it being merely for the return to
his country of an alien who has broken the conditions upon which he could continue to reside with our borders.”
The Court explained the difference of the Go Siaco case as follows:
“The case of U.S. vs. Go Siaco is not in point because said case was a proceeding brought under the provisions of Act No. 702 which falls, by
provision of said law, under the jurisdiction of the courts of justice. The case at bar is deportation proceeding under the Philippine
Immigration Act of 1940, which expressly vests in the Commissioner of Immigration the exclusive and full discretion to determine
whether an alien subject to deportation should or should not be granted.”
It is apparent, therefore, that the ruling in the Ong Hee Sang does not negate the right to bail. It merely meant that the standard for granting
or denying bail under the Constitution is different in deportation proceedings. It is different because there is a speci ic law which provides for
such standard in deportation proceedings, i.e., Commonwealth Act No. 613 or the Philippine Immigration Act of 1940. Neither did the case
preclude the grant of bail on due process grounds as in the case Mejoff vs. Director of Prisons,[16] where this Court held that while
“temporary detention is a necessary step in the process of exclusion and expulsion of undesirable aliens and that pending arrangements for
his deportation, the Government has a right to hold the undesirable alien under con inement for a reasonable length of time, too long a
detention may justify the issuance of a writ of habeas corpus”[17] and entitle an alien to be released on bail, viz:
“The protection against deprivation of liberty without due process of law and except for crimes committed against the laws of the land is not
limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality x x x
Moreover, by its Constitution (Art. II, sec. 3), the Philippines ‘adopts the generally accepted principles of international law as part of the law
of the Nation.’ And in a resolution entitled ‘Universal Declaration of Human Rights’ and approved by the General Assembly of the United

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Nations of which the Philippines is a member at its plenary meeting on December 10, 1948, the right to life and liberty and all other
fundamental rights as applied to all human beings were proclaimed. It was there resolved that ‘All human beings are born free and equal in
degree and rights’ (Art. 1); that ‘Everyone is equal and is entitled to all the rights and freedom set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or
other status’ (Art. 2); that ‘Every one has the right to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the Constitution or by law’ (Art. 8); that ‘No one shall be subjected to arbitrary arrest, detention or exile’
(Art. 9, etc.)”[18]
It must be noted that the Mejoff case was decided when C.A. No. 613 was already in effect. Similarly, in Chirskoff vs. Commission of
Immigration[19] the Court released the alien deportee on bail because his prolonged detention violates his right to liberty, viz:
“[F]oreign nationals, not enemy, against whom no criminal charges have been formally made or judicial order issued, may not be inde initely
kept in detention; that in the ‘Universal Declaration of Human Rights’ approved by the General Assembly of the United Nations of which the
Philippines is a member, the right to life and liberty and all other fundamental rights as applied to human beings were proclaimed; that the
theory on which the court is given power to act is that the warrant of deportation, not having been executed, is functus of icio and the alien is
being held without any authority of law; and that the possibility that the petitioner might join or aid disloyal elements if turned out at large
does not justify prolonged detention, the remedy in that case being to impose conditions in the order of release and exact bail in reasonable
amount with suf icient sureties.”
In the case of Lao Gi vs. Court of Appeals,[20] this Court again held that although a deportation proceeding does not partake of a criminal
action, the constitutional right of a person to due process should be protected therein, viz:
“Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is a harsh and
extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional right of such person to
due process shall not be denied. Thus, the provisions of the Rules of Court of the Philippines particularly on criminal procedure are
applicable to deportation proceedings.
xxx xxx xxx
Before any charge should be iled in the CID a preliminary investigation must be conducted to determine if there is suf icient cause to charge
respondent for deportation. The issuance of warrants of arrest, arrests without a warrant and service of warrant should be in accordance
likewise with Rule 113 of the 1985 Rules of Criminal Procedure; search warrants issued by the CID shall be governed by Rule 126 of the 1985
Rules of Criminal Procedure; and so the matter of bail, motion to quash, trial, among others.”[21] (emphasis supplied).
There is no reason why an extraditee should be denied the right to apply for bail. While an extradition proceeding is not criminal
in nature, it is a harsh and extraordinary process. It may involve a restraint of liberty that under some circumstances can be
greater than in an ordinary criminal case.[22] For in extradition proceedings, the extraditee will be transported and tried to another
jurisdiction of which laws he may be unfamiliar.[23]
Second. The right of an extraditee to apply for bail should be treated in light of our other treaty obligations, especially those
concerning the promotion and protection of human rights.[24]
Under the Vienna Convention on the Law of Treaties, to which the Philippines is a party, a treaty shall be interpreted “in their context and
in the light of its object and purpose,”[25] taking into account the “relevant rules of international law applicable in the relations between the
parties.”[26]
As members of the family of nations, the Philippines and the United States have the responsibility to uphold fundamental human rights, and
the dignity and worth of the human person. They are mandated to establish conditions under which justice and respect for the obligations
arising from treaties and other sources of international law can be maintained.[27]
Being signatories to the Universal Declaration of Human Rights[28] and the International Covenant on Civil and Political Rights,[29] both
countries are committed to protect and promote the right of every person to liberty and to due process, ensuring that those detained or
arrested can take proceedings before a court, in order that such court may decide without delay on the lawfulness of his detention, and order
his release if the detention is not lawful.[30]
Although the right to liberty is a relative right and may be suspended or derogated in exceptional circumstances,[31] it is a generally
accepted principle in international law that the presumption lies in favor of the existence of the right, and the burden lies with the
authorities to justify the lawfulness of the arrest or detention. This presumption creates an obligation on state authorities to make
effective remedies available to every person under detention for the enjoyment of his fundamental right to liberty.
Third. There is no customary rule of international law prohibiting bail in extradition cases.
At present, there is no customary norm prohibiting bail in extradition cases. On the contrary, most countries, including Canada,
Australia, the United Kingdom, South Africa and Pakistan, among others, allow a potential extraditee to be released on bail. Members of the
European Union have recently ratified the European Convention on Extradition, which also provides a procedure for bail.
Fourth. Even the United States grants bail to an extraditee, albeit in exceptional circumstances.
In the United States, the ruling case law upholds the right of a potential extraditee to apply for bail. The US Supreme Court in the landmark
case of Wright vs. Henckel,[32] recognized the authority of the circuit courts to receive application for and grant bail in certain exceptional
case, thus:
“We are unwilling to hold that the circuit courts possess no power in respect of admitting to bail other than as speci ically vested by statutes,
or that, while bail should not be ordinarily granted in cases of foreign extradition, those courts may not in any case, and whatever the special

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circumstances, extend that relief.”

This dictum planted the seeds of the current federal common law on bail in international extradition proceedings.[33] It recognized the
existence of the right to bail based on “exceptional circumstances”[34] which the extraditee must prove. The following are some of the
instances which were considered “special circumstances” to warrant the grant of bail:
(a) age, background of defendant, and lack of any suitable facility to hold him;[35]
(b) parity with other defendant on similar charge, granting bail would promote harmony among factions in x x x dispute, likelihood of delay,
and pending constitutional challenge to the extradition statute;[36]
(c) need to participate in litigation in which entire fortune depended;[37]
(d) likelihood of delay and bailable offense in seeking extradition;[38] and
(e) provisional arrest justi ies grant of bail and disparity of treatment of persons on same charge.[39]
The trend in recent years is for courts to liberalize the bail standard as they place primary emphasis on the accused’s risk of light.[40] The
rationale of this trend was succinctly laid down in Beaulieu vs. Hartigan,[41] to wit:
“In none of the cases dealing with the issue of bail in an extradition setting was a district judge who granted bail subsequently reversed by a
reviewing court. Analysis of these cases leads me to the conclusion that the ‘special circumstances’ doctrine of Wright, though still viable,
must be viewed, in the light of modern concepts of fundamental fairness, as providing a district judge with lexibility and discretion in
considering whether bail should be granted in these extradition cases. The standard scrutiny and concern exercised by a district judge should
be greater than in the typical bail situation, given the delicate nature of international relations. But one of the basic questions facing a district
judge in either situation is whether, under all circumstances, the petitioner is likely to return to court when directed to do so. Fundamentally,
it is a judgment call by the district court based on the totality of circumstances, including extremely important consideration of the country’s
treaty agreements with other nations; a district judge should approach the bail situation in an extradition case with an added degree of
caution, given the additional factor of an international treaty.”
Fifth. While an extraditee may apply for bail, its grant is discretionary depending on whether it will frustrate the ends of justice.
In extradition cases, the extradition court does not inquire into the guilt or innocence of the accused. Neither does the court measure the
injury caused to the community, as the offense was not committed within its jurisdiction. The court, therefore, cannot base its decision to
grant or deny bail on the gravity of the offense, as it could in criminal cases. Rather, it should base its decision on whether it will
frustrate the ends of justice. The risk of light of an extraditee is an important factor to consider in determining whether his bail will
frustrate justice.
Whether or not a potential extraditee is a light risk is determined by two factors: (1) capacity to lee; and (2) intent to lee. The combination
of these two factors determines the degree of risk that the trial court must assess and weigh. While there is no mathematical formula to guide
the court in gauging the precise risk posed by a particular combination of these two factors, it is commonsensical to assume that one without
the other would not result to any risk at all. For while one has the capacity to lee, if he does not intend to lee, the fear of light would be for
naught, and vice versa.
Sixth. The burden of proof to justify the arrest and detention of the potential extraditee initially rests on the petitioning executive
authorities.
Under our extradition treaty and law, a potential extraditee may be arrested and detained under any of the following circumstances: (a) upon
the receipt of the request for the arrest of the potential extraditee and even before the iling of the request for extradition; (b) upon the iling
of the petition for extradition before the extradition court; or (c) during the hearing of the petition for extradition.
In all the above circumstances, the issuance of a warrant of arrest depends on a showing that it will serve the ends of justice. Initially, it is
the burden of the petitioning executive authorities to prove that the warrant against the extraditee will serve the ends of justice.
Seventh. After the warrant of arrest is issued, the burden of proof on the right to be admitted to bail shifts on the potential
extraditee.
In criminal cases, the presumption lies in favor of granting bail. This is so because of the constitutional presumption of innocence, which is
not overturned by the inding of probable cause upon which the warrant of arrest against the accused was issued.
However, the presumption of innocence, from which the ordinary presumption in favor of granting bail emanates, is inoperative in
extradition cases. The issuance of the warrant of arrest in extradition cases is not based on the inding that the accused is probably guilty of
the offense for which he was charged in the requesting State. The warrant is predicated on the inding that it will serve the ends of justice.
Once issued, it raises a presumption of the continuing presence of the circumstances upon which the issuance of the warrant was based.
More often than not, this circumstance is the probability that the extraditee will lee from the jurisdiction of the extraditing court. The
burden of proving admittance to bail is thus shifted to the extraditee.
It should be underscored that due process, which is the basis of bail in extradition proceeding, merely grants the potential extraditee the
opportunity to avail of the remedy of bail; it does not give him the right to demand that he be released on bail under any circumstance. What
the right to due process prohibits is the outright denial of the remedy of bail; it does not prohibit a reasonable denial of the application for
bail after carefully weighing all the circumstances at hand.
III.
There is need to remand the case at bar to the extradition court in fairness to the parties.
I respectfully submit that in fairness to both parties, the case should be remanded to the extradition court so that the proper procedure
and standard to determine the right to bail can be complied with. I put no blame on the extradition court nor to the parties in this regard for

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we are still developing our jurisprudence on extradition. There is need for remand for the following reasons, viz:
First. As aforediscussed, the petitioner has the burden of proof to show that the issuance of a warrant of arrest against the private
respondent will serve the ends of justice. This burden of proof can not be satisfied by the petitioner in the case at bar by merely relying on
the petition for extradition and its annexes. The petition and its annexes do not prove that the private respondent is a light risk. They only
show that he has been indicted in the court of the United States.
Second. On the issue of whether the private respondent is entitled to bail, the petitioner cannot rely on the presumption against bail in
extradition proceedings. The presumption against bail in extradition proceedings is founded on the assumption that the extraditee is a
fugitive from justice. Thus, it was explained in Beaulieu vs. Hartigan,[42] viz:
“The vast majority of fugitives from justice in foreign countries led from those countries knowing that charges have been, or were likely to
be, brought against them. Thus the typical subject of an extradition request has a demonstrated propensity to lee rather than face charges
and in general is likely to continue his light if released pending extradition.”[43]
The presumption against bail therefore arises only when the extraditee is a “fugitive from justice.” To avail of this presumption, it is a
condition sine qua non that competent evidence be proffered that the extraditee is a fugitive from justice.
In Marquez, Jr. vs. COMELEC,[44] we ruled that the term fugitive from justice “includes not only those who lee after conviction to avoid
punishment but likewise those who, after being charged, lee to avoid prosecution.”[45] In Rodriguez vs. COMELEC,[46] we clari ied that this
de inition indicates that “the intent to evade is the compelling factor that animates one’s light from a particular jurisdiction. And obviously,
there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already
instituted indictment, or of a promulgated judgment of conviction.”[47]
From the records, it appears that the claim of the petitioner that the private respondent is a fugitive from justice is based on the
following allegations: (a) that an investigation for the charges against him was then on going; and (b) that upon learning that he was about
to be charged, he led from the United States. Thus, petitioner alleged:
“Learning that an investigation involving his violations of United States federal laws was about to be terminated and that he was about to be
charged, Jimenez led the United States jurisdiction. Under United States law, he is therefore a fugitive from justice. A “fugitive from justice” is
a person who commits a crime within a state and withdraws himself from such jurisdiction (Ex Parte Montoya, 135 P.2d 281, 282, 170 Or.
499). Because he has led once, there is a greater likelihood that he will lee to another jurisdiction once more and frustrate extradition. Thus,
he poses a serious risk light. The interest of justice will be best served if he is arrested and detained pending extradition proceedings, which
after all, is summary in nature.”[48]
It is clear, however, that the warrant of arrest in connection with Indictment No. 99-00281-CR-SEITZ against the private respondent was
issued on April 15, 1999.[49] Private respondent claims that he was already in the Philippines when the indictment against him was
filed and the warrant for his arrest was issued. During the oral argument of the case at bar, the following exchange between the counsels
of the parties took place, viz:
“USec Gutierrez: It may be mentioned that the proposed extraditee stands charge (sic) of several charges from the United States of America
and a warrant of arrest was issued against him and he led the jurisdiction of the United States of America to evade prosecution and there
would again be another risk of plight (sic) and to ensure the proposed extraditee will be present during the extradition proceeding, therefore
this request on the part of the petitioner for the issuance of warrant of arrest.[50]
xxx xxx xxx
Atty. Bautista: The Honorable Counsel has declared gratuitously that Mr. Mark Jimenez is a fugitive from the United States, left the United
States because of the indictment against him. That is totally false. The petition itself says that a warrant for the arrest of Mr. Jimenez was
issued in the United States in April 1999. Mr. Jimenez was here in the Philippines on May 1998 and he has not left the country since then. So
he left the United States long before, a year before the warrant of arrest was issued, so how can we say that he is a fugitive from justice?”[51]
That private respondent arrived in the country on May 10, 1998 is evidenced by the records and is not contradicted by the
petitioner.[52] On the other hand, petitioner’s claim that private respondent knew of the ongoing investigation as well as of the existence of
the charges against him when he led from the United States is devoid of evidence. Therefore, it would be fatal for the petitioner to rely
alone on the presumption against bail in extradition cases to justify the denial of bail of the private respondent.
In Rodriguez, petitioner arrived in the Philippines on June 25, 1985 and the complaint in Los Angeles was iled on November 2, 1985. We
ruled that “it was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant - much less conviction- to
speak of yet at such time.” We rejected the contention that Rodriguez would have known the on-going investigation, viz:
“It is acknowledged that there was an attempt by the private respondent to show Rodriguez’ intent to evade the law. This was done by
offering for admission a voluminous copy of an investigation report on the alleged crimes committed which led to the iling of the charges
against petitioner. It was offered for the sole purpose of establishing the fact that it was impossible for the petitioner not to have known of
said investigation due to its magnitude. Unfortunately, such conclusion misleads because investigations of this nature, no matter how
extensive or prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest of those who
would be charged.”[53]
Furthermore, we held that “the circumstantial fact that it was seventeen (17) days after Rodriguez’ departure that charges against him were
iled cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of events, which
transpired. A subjective fact as that of petitioner’s purpose cannot be inferred from the objective data at hand in absence of further
proof to substantiate that claim.”

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Third. In granting bail to the private respondent, the standard used by the extraditing court is not clear. An extradition proceeding is sui
generis, hence, neither the standard of proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of
evidence in civil cases can apply. Thus, in Lantion,[54] we explained:
“We are not persuaded. An extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of
an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or
innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule,
constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by
one whose extradition papers are still undergoing evaluation. As held by the US Supreme Court in United States v. Galanis:
‘An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do
not shield an accused from extradition pursuant to a valid treaty.’
There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature
while a criminal proceeding involve a full blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition
requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited ‘upon showing of the existence of a prima
similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nation’s
foreign relations before making the ultimate decision to extradite.”
With humility, I submit that the Court should fashion out a higher standard to govern the grant of bail to a possible extraditee. The higher
standard is demanded by the fact that our extradition treaty obligates us to assure that an extraditee will not abscond from our jurisdiction.
Failure to comply with this obligation will expose our country to international embarrassment. It will defeat the purpose of extradition
treaties, i.e., the suppression of crimes, especially transnational crimes to which the Philippines is very vulnerable. The standard, I propose, is
the standard of clear and convincing evidence which is higher than mere preponderance of evidence but lower than proof beyond
reasonable doubt. If this new and stricter standard would be adopted, it ought to follow that the parties should be given a chance to
offer evidence to meet the same. Contrary to the claim of the majority, the voluminous pleadings already iled by the parties are
insuf icient to resolve the issue of whether the private respondent is entitled to bail. These pleadings proffer legal arguments but not proof of
facts. The remand of the case at bar is therefore not a cop-out but is proper and it will not delay the proceedings. The extradition
court can be ordered to inish the hearing on the limited issue of bail within one (1) week. After all, extradition proceedings are summary in
nature.
CONCLUSION
In conclusion, I offer the following views:
First. The iling of a petition for extradition does not per se justify the issuance of a warrant of arrest against an extraditee. The petition, in
some instances, may not contain suf icient allegations and proof on the issue of whether the possible extraditee will escape from the
jurisdiction of the extraditing court.
Second. When the petition for extradition does not provide suf icient basis for the arrest of the possible extraditee or the grant of bail as in
the case at bar, it is discretionary for the extradition court to call for a hearing to determine the issue.
Third. An extraditee has the right to apply for bail. The right is rooted in the due process clause of the Constitution. It cannot be denied
simply because of the silence of our extradition treaty and law on the matter. The availability of the right to bail is buttressed by our other
treaties recognizing civil and political rights and by international norms, customs and practices.
Fourth. The extraditee may apply for bail but its grant depends on the discretion of the extraditing court. The court must satisfy itself
that the bail will not frustrate the ends of justice.
Fifth. In deciding whether to grant bail or not to a possible extraditee, the extraditing court must follow a higher and stricter standard. The
extraditee must prove by clear and convincing evidence that he will not lee from the jurisdiction of the extraditing court and will respect all
its processes. In ine, that he will not frustrate the ends of justice.
As emphasized, the case at bar has entered a new stage and the competing interests of the state and the rights of the private respondent as
an extraditee need to be rebalanced on the scale of justice. These competing rights and interests have to be rebalanced for they have
developed new dimensions and some facts may have to be accorded greater or lesser weights to meet the more paramount interest of our
people. This paramount interest is always in motion as it is affected by the inexorable changes wrought in time both by man and machine.
In rebalancing these con licting interests, we should take care not to diminish to a disturbing degree an extraditee’s fundamental rights to
life, liberty and due process. These rights have evolved as universal rights and extradition treaties for all their utility were never meant to
disparage, let alone, derogate them to inutility.
Likewise, in rebalancing these interests, we should not weaken the role of courts in tempering the harshness of extradition
proceedings. We should not therefore dilute the discretionary power of courts to determine whether a hearing should be called before
ordering the immediate arrest of a possible extraditee.
In counter-balance, we should not be soft on extraditees who are facing charges in countries where we have extradition treaties. While
rights are being universalized, so too are crimes being internationalized. We should not allow our country to be the sanctuary of criminals
who demand rights but deny the rights of others. Thus, there is need to impose a higher and stricter standard before we grant bail to

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potential extraditees.
We are in the dif icult step by step process of developing our jurisprudence in extradition. In Lantion, our irst extradition case, we held that
an extraditee has no right to demand examination of the documents of extradition while the request for extradition is just being processed
and evaluated by the Departments of Foreign Affairs and Justice. In the case at bar, our second extradition case, we have the opportunity to
impose a higher and stricter standard that will govern a plea for bail of an extraditee. I urge the Court to seize the rare opportunity for this
can well be our humble contribution to man’s relentless search for elusive peace.
Prescinding from all these premises, I vote to remand the case at bar to the extradition court so that it can follow the proper procedure and
higher standard in determining the right to bail of the private respondent.
DISSENTING OPINION
YNARES-SANTIAGO, J.:
With all due respect, I am disturbed by the majority opinion’s disregard of basic freedoms when a case is one of extradition. The majority
opinion is too sweeping and dogmatic for a case of irst impression. I ind the views on the indiscriminate denial of fundamental rights too
open-ended and heedless of entrenched jurisprudence on Bill of Rights protections.
The sheer novelty of the world’s only superpower asking that a Filipino be brought before it to face criminal prosecution seems to mesmerize
policy makers and this Court alike into depriving that citizen of constitutional protections. The issue before the respondent court is a fairly
innocuous one – whether or not the petition for extradition is meritorious. We are not concerned with the guilt or innocence of the
respondent. He is presumed innocent of the crimes charged until he is convicted by a foreign court. He is likewise presumed innocent of the
demands found in the request for his extradition. But the majority opinion has chosen to adopt a presumption of guilt. It presumes that the
petition calling for the forcible separation of the respondent from his homeland, family, occupation, and friends is correct even before the
merits are ascertained. It presumes that he will lee.
A person convicted of a crime, except for the most serious offenses, is allowed bail while an appeal is pending. Respondent Jimenez has not
been convicted of any crime. His guilt or innocence is not in issue before the respondent court. The only legal affront he has committed is his
refusal to leave the pleasures of life in his country and go to a place where he fears the reception to him would be disagreeable and much less
pleasant. Eventually after trial in the respondent court, respondent may be compelled to undergo what he fears. But until that decision is
rendered and becomes executory, he must be presumed innocent of any crime or any affront to law or treaty. There can be no deprivation of
basic rights and freedoms merely because the case is one of extradition.
I submit that we must consider the implications of a ruling that in criminal proceedings, the constitutional rights of the accused must be
protected, but in a case neither criminal nor civil, one which we call “sui generis,” basic freedoms become irrelevant and non-available. A
non-criminal proceeding, less onerous and repulsive to society than prosecution for crime, and where the penalty is only to be brought for
trial before the court with jurisdiction, is stripped of guarantees and protections given to hard-boiled recidivists pending arrest and trial.
We have denied a prospective extraditee the right to be informed before trial of the nature and cause of the charges against him.[1] Due
process is essential in all court proceedings – criminal, civil, investigatory, administrative, or even sui generis, a class the Court uses as an
excuse to justify deprivation of that most elemental of rights, the right of notice.[2] The Court has ruled that respondent Mark Jimenez or any
other person sought to be extradited must irst be exposed to the indignity, expense, and anxiety of a public denunciation in court before he
may be informed of what the requesting State has against him. The right to notice before trial is denied.
The majority opinion states that a prospective extraditee is not entitled to notice and hearing before a warrant of arrest can be issued against
him. Worse, he is denied the right to bail and provisional liberty while the extradition proceedings are pending.
All the jurisprudence explaining the parameters of the unreasonable searches and seizures provision of the Constitution[3] becomes
inapplicable. The petition for extradition and its attachments take the place of probable cause. The right against unreasonable search and
seizure is available to all persons including those not charged with any crime.[4] But now, we create an unusual exception. It is not available to
one who may be seized against his will for possible extradition to a country where his innocence or guilt will irst be determined. Arrest and
imprisonment will become virtually certain in extradition proceedings. The only thing required of the Court is to go over the request for
extradition and its supporting documents. Arrest is virtually assured because of the absence of notice and hearing. It is inconceivable that the
of icials of a requesting State would be so dense or careless as to fail to include in the request for extradition a prima facie showing that the
respondent deserves to be seized and forcibly brought to the foreign country for trial. According to the majority opinion, from the forwarded
documents, we expect the trial court to “merely xxx xxx xxx get a good irst impression suf icient to make a speedy initial determination as
regards the arrest and detention of the accused.” This novel doctrine justifying the near certainty of automatic arrest and detention goes
against this Court’s decisions, too numerous to mention, protecting citizens and aliens alike from unreasonable arrests or seizures. Can we
expect anything other than a “good irst impression” to arise from the mere reading of a request for extradition?
In criminal prosecutions, the judge must personally determine probable cause for the arrest. Facts and circumstances must irst be presented
which would lead a reasonably discreet and prudent man to believe that an offense has been committed and the accused is probably guilty of
the offense.[5] In the majority opinion, the request for extradition by the foreign country takes the place of a hearing for probable cause. After
trial, it is possible that the petition for extradition may be denied. Under the majority opinion, the possibility of a judgment of denial does not
in luence the immediate arrest and inde inite detention of the respondent since notice and hearing before arrest are not required. He must
be jailed while the grant or denial of the petition is being considered.
The majority opinion gives ive (5) postulates of extradition. With all due respect, I fail to see how compliance with these postulates should

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result in a disregard for constitutional liberties.

I agree with the irst postulate. It is a general proposition that extradition is a major instrument for the suppression of crime and the
Philippines should cooperate in facilitating the arrest and custodial transfer of a fugitive from one State to another. However, I cannot see
how compliance with the requirements for notice and hearing and the ascertainment of reasonable cause would hamper the suppression of
crime. If they do, why should they appear in our laws and in the decisions of this Court? Does obedience to the dictates of due process and
the prohibition against unreasonable seizures mean any lesser determination to eradicate crime? Effective extradition arrangements and
deterrence of light abroad by felons are not incompatible with fundamental liberties. The act of according due process and reasonable
seizures does not make the Philippines an isolationist state. The employment of bene icial objectives to justify the repression of far more
worthy values is pejorative in nature, one in which the Court should not engage.
The second postulate is based on the apriorism that the two parties to an extradition treaty accept and trust each other’s legal system and
judicial processes. We trust the fairness of the American system of justice. However, why should we assume that it is a breach of trust which
the requesting country will look upon with disfavor if we accord notice and hearing to the respondent before a warrant of arrest is issued? If
bail is allowed while the extradition petition is pending before the trial court, does this signify a lack of con idence on our part in the capacity
and the willingness of the other state to protect the basic rights of the person sought to be extradited?
The Constitution of the United States provides that “(t)he right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated and no warrants shall issue, but on probable cause, supported by oath or
af irmation and particularly describing the place to be searched and the persons or things to be seized.”[6] The offenses upon which the
request for extradition is premised are relatively light. Undoubtedly, bail will be given by the American courts on the basis of a presumption
of innocence and the lack of gravity of the offenses. If the alleged offenses themselves are bailable both here and in the United States, I see no
connection between the grant of the right against unreasonable seizures or the right of bail and the gratuitous assertion of the majority
opinion that this is an absence of trust and con idence in the American legal system and judicial process.
The guarantees of the Philippine Bill of Rights are derived from American sources. Why should we withhold them out of a misplaced fear that
their grant may be interpreted as a lack of faith in the American judicial system?
The third postulate states that extradition proceedings are sui generis. It is a dogma pernicious in its consequences to declare that a
classi ication of sui generis lifts a court proceeding beyond constitutional protections. The trial before the respondent court is not criminal in
nature. It is less onerous than a criminal prosecution. Yet, the majority opinion confers upon one accused of grave crimes far greater rights
than an extraditee whose guilt of lesser offenses is not even in issue. Classifying a proceeding as sui generis does not mean that procedural
guarantees available in criminal prosecutions, civil trials, or administrative proceedings are thereby waived or become irrelevant. The
classi ication should not mean exemption from notice or hearing for the issuance of a warrant of arrest. It cannot result in non-entitlement to
bail.
The process of extradition does not involve the determination of the guilt of an accused. The majority opinion states that extradition is
merely a measure of international judicial assistance to restore a person charged with crime to the jurisdiction with the best claim to try him.
If so why should the person sought to be extradited be imprisoned without bail while the grant of assistance is pending? With more reason
should constitutional protections be given to him. The correctness of a decision to forcibly remove a person from his homeland, family, and
friends should not be taken lightly. In determining whether the extradition request complies with the extradition treaty, the trial court should
not be encouraged by a postulate to act in a cavalier manner or treat the proceedings as inconsequential in nature.
The majority opinion states as its fourth postulate that compliance with treaties shall be in good faith. If the respondent court grants bail to
the respondent in extradition proceedings, does this constitute a failure to ful ill our obligations under the extradition treaty? I am not aware
of any treaty which requires the incarceration of a respondent while the court determines whether or not he falls under the treaty
provisions. Why should the furnishing of notice and the holding of a hearing for an arrest warrant paint a bad picture of our country before
the world community? There should be a contrary impression of adherence to fairness and justice. We cannot fault the trial court for
adopting procedural safeguards which help insure the correctness of its decision. If compliance in good faith with the treaty requires that the
respondent be immediately seized and con ined in the national penitentiary, why should an extradition trial still be held? We might as well
give full faith and credence to the request for extradition and without any trial or hearing, place the respondent in the next airplane leaving
for the requesting country. The discussion in the majority opinion of the postulates of extradition implies that the implementation of an
extradition treaty rarely or never results in a refusal to allow extradition and that the court proceedings do not amount to anything more
than a formality. Otherwise, why should he languish in the penitentiary while his extradition case is pending?
The ifth and last postulate uses the underlying risk of light. To say that all persons sought to be extradited have a propensity to lee is too
sweeping a statement to be adopted as an axiom. In every criminal prosecution, the prosecution can, with greater reason, argue that the
accused will escape and go into hiding. But never has the possibility of light suf iced to always require incarceration while court proceedings
are going on. The opposite practice is the one we have adopted. The right to bail has been elevated into a constitutional guarantee. Only for
the most serious of offenses when evidence of guilt is strong may an accused be denied freedom upon the posting of bail prior to his
conviction.[7] In fact, the Revised Rules of Criminal Procedure, as amended, provide that any person in custody who is not yet charged in court
may apply for bail with any court in the province, city, or municipality where he is held.[8] The respondent is not charged of any crime before
our courts.
The ive postulates of extradition outlined in the majority opinion are motherhood statements over which there can be no quarrel. However,
these postulates should be interpreted in a manner that preserves procedural safeguards instead of being used to support the petitioner's

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intent to cut corners. Compliance with treaty obligations does not mean unquestioning obedience to everything stated in a petition for
extradition. The allegations will still be proved, refuted, and determined. Much less does it result in instant seizure without notice and
hearing or incarceration without any recourse to legal methods of gaining provisional liberty.
Is the respondent entitled to notice and hearing before the issuance of a warrant of arrest?
The majority opinion agrees with the Department of Justice that the Regional Trial Court committed grave abuse of discretion when it
informed the respondent that an extradition petition had been iled against him and that petitioner was seeking his arrest. The opinion states
that the exercise of discretion by the judge is a notice to escape and to avoid extradition.
The truth is that long before January 18, 2000 when G.R. No. 139465 was decided,[9] respondent was fully aware of the information which
this Court now declares should not have been given to him. Respondent could have led but he did not do so. Instead, he made himself more
visible; he ran for Congress and engaged in various civic activities always in the public eye.
Paraphrasing the ruling in G.R. No. 139465 on the motion for reconsideration, the threat of private respondent's light from the Philippines
has passed. It is more imagined than real at this time.[10]
Petitioner states that the procedure requiring notice and hearing will set a dangerous precedent. The Court agrees that those sought to be
extradited – including terrorists, mass murderers and war criminals – may invoke it in future extradition cases.
To lump up respondent Jimenez and all persons in extradition proceedings with terrorists, mass murderers, and war criminals is contrary to
all rules of reasonable and valid classi ication. Respondent is charged before the district court of Florida with conspiracy to defraud,
attempted tax evasion, fraud through the use of radio – television, false statements, and unlawful election contributions. There is absolutely
no indication of terrorism, mass murder, or war crimes against him. He is de initely not a candidate for con inement in the Guantanamo
Prison Compound. The fear of terrorists is not reason to deprive all subjects of extradition proceedings any and all constitutional protections.
Methods of dealing with terrorists should not be used against suspected tax evaders or violators of election laws. The fact that terrorists are
denied bail is not reason to deny this constitutional guarantee to persons being tried for offenses where no individual is a victim.
It is error to expect that all persons against whom charges have been iled would voluntarily and cheerfully submit to trial. There are
procedural safeguards such as preliminary investigation intended to secure a person presumed innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense, and anxiety of a public
trial and also to protect the state from useless and expensive trials.[11] For both the State and the accused, there could be sound reasons to
oppose or avoid prosecution.
If there is reason in some cases for the State not to prosecute, there is greater reason for a prospective accused to take all steps that would
prevent his having to go before a criminal court. We may assume that any fears of oppressive prosecution in the mind of the private
respondent are unfounded and imagined. This should not lead the Court to conclude that a natural aversion to criminal prosecution is always
based on ignoble or indefensible reasons. Neither should a natural desire to avoid unpleasant situations be used to deny basic rights and
privileges.
I submit that it is a dangerous precedent for this Court to rule that the prima facie existence of probable cause for a warrant of arrest can be
derived from a mere reading of the petition for extradition and its supporting documents. The determination of probable cause is effectively
taken away from the judge and transferred to the Department of Justice. Worse, the determination could come directly from an of ice not
equipped to make it, namely the Department of Foreign Affairs. In either case, the Constitution is infringed.
The majority opinion is overly in luenced by the fear that a person sought to be extradited would be tempted to lee. Of course, it is natural
for any person facing court litigation of any kind to try to avoid it. An accused already being tried in court or an appellant who appeals a
judgment of conviction has greater reason to lee if possible. Yet, this is not cause to deny him notice of proceedings or the right of
provisional liberty while his case is pending. If bail is going to be denied respondent Jimenez, it should be after a full hearing and with
the application of all constitutional guarantees.
The majority opinion states that under the Constitution only the complainants and the witnesses he may produce are required to be
examined.[12] It overlooks that in this case no complainant and no witness has been examined. A warrant of arrest is ordered issued on the
sole basis of documents. There may be no requirement to notify and hear the accused before a warrant of arrest is issued. But neither is there
any prohibition against the judge hearing an accused before a warrant is issued; more so if he is already in court and strongly opposes his
being arrested pending trial. In his search for the truth, the judge should not be restrained in the exercise of sound discretion.
In this case, the petition has already been iled. The respondent has submitted himself to the jurisdiction of the trial court. The motion to
have him arrested and detained is an incident of the pending case. There is no need to take him into custody in order to make him
forthcoming for trial.[13] Mr. Jimenez appears to be more than willing and, in fact, is already answering the request for extradition. He is not
before the court to answer for any crime. But he is there. Strangely, the court would deny him provisional liberty in a case not criminal in
nature but which could make him answer for alleged offenses in another country if the court should decide against him. What cannot be
denied to him in the criminal prosecution is denied in a case which may or may not lead to such prosecution.
The absence of logic behind the majority opinion’s denial of basic rights becomes clearer when it comes to the issue on the right to bail. The
reason given for the denial of the right to bail is not merely deceptive; it has dangerous implications. It states that the constitutional provision
on bail applies only when a person has been arrested and detained for violation of Philippine Criminal Law. The reasoning states, that ergo,
the right to bail does not exist in non-criminal prosecutions. The absence of a constitutional provision on the right to bail of a person subject
to extradition is simply based on the fact that the idea of incarcerating a person for something other than crime never occurred to the
framers of the Constitution. There can be no forcible detention in non-criminal situations. Incarceration for something not related to crime

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would be arbitrary detention or illegal detention. It could even be slavery or involuntary servitude. In all these cases, the issue of bail does
not arise. If we insist on classifying extradition as a proceeding not covered by the protections given to accused persons, we should rule that
bail is not provided because the respondent is not supposed to be imprisoned. There is no need for bail because the detention is illegal in
cases not related to crime. Extradition cases may not be criminal in nature. But they assist and precede criminal prosecutions.
The petitioner twists the right to bail out of context when it argues that the right available during criminal prosecutions is irrelevant and
should be disregarded when the court action is non-criminal in nature and, therefore, it is not available in civil, administrative, regulatory,
and extradition proceedings. The fallacy of the argument is readily apparent.
I cannot go along with the proposition that a person who tries to avoid criminal prosecution is always a criminal, coward, or weakling who
prefers to run and hide. There are many reasons why people will fear trial in criminal cases. It is not overprotection or excessively liberal
treatment to enforce constitutional guarantees in extradition cases. It is fairness and adherence to the rule of law. The judge has discretion on
whether or not he should allow bail. He should have a sound basis for the probability or likelihood of flight.
The majority opinion starts by asking two questions. (1) Are prospective extraditees entitled to notice and hearing before warrants for their
arrest are issued? and (2) Are they entitled to bail and provisional liberty while extradition proceedings are pending? The answer is a curt
“No”. By the brevity and terse nature of the answer, it seems absolute and in lexible.
Towards the end of the majority opinion,[14] however, two exceptions are allowed. First, the applicant is not a light risk. Second, there exist
special and compelling circumstances.
To my mind, the issues in this case should be framed differently. On the irst question, the present provisions of law and decisions of this
Court on arrests and seizures should be assumed and followed. On the second question, the Court should apply the same principles on the
right to bail found in the Constitution to persons facing trial for extradition. Thus, all persons, except those where the probability of light is
clear and present or the crimes for which extradition is sought are heinous, shall before judgment in the extradition proceedings, be bailable
by suf icient sureties or be released on recognizance as may be provided by law. The right to bail shall not be impaired even where the
requesting country is one with which the Philippines maintains strong ties. Excessive bail shall not be required.[15]
The majority opinion cites my ponencia in People v. Jalosjos.[16] Jalosjos was already convicted and his appeal was pending when he was
re-elected. The crime of statutory rape where a minor is involved is particularly heinous. The evidence of guilt was not merely strong; it was
beyond reasonable doubt as found in our decision. Disenfranchisement of constituents is not reason for his release.
The case of Congressman Jimenez is an entirely different one. Respondent has not even faced trial as yet. There can be no proof of strong
evidence against him. All we have are still accusations.
Respondent is not charged with heinous crimes. The alleged tax evasion is at the stage of attempt. The defraudation is part of a conspiracy.
Perjury and illegal election contributions are relatively not so serious offenses as to support denial of the right to bail.
The respondent’s being a Congressman should be viewed from the aspect of possibility of light. Why should a person run for Congress,
campaign all over his district, and expose himself regularly to newspaper media and television if he intends to lee the country? There is a
hold-order against him found in all ports of exit and entry. When his constituents voted Jimenez to Congress knowing fully well that an
extradition case was or could be iled against him, it was an expression of con idence that he would not run away. Their faith may be
misplaced or proved wrong later, but today, it must be taken at face value as against mere suppositions, fears, and apprehensions. The rules
on denial of bail where possibility of light is established must be followed.
The request for extradition comes from the United States. In the course of the most perilous period in the life of that nation, the American
Supreme Court stated that “the constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its
protection all classes of men, at all times and under all circumstances. xxx xxx xxx no doctrine involving more pernicious consequences
was ever invented by the next of man than that its provisions can be suspended during any of the great exigencies of government.”[17]
The extradition of respondent is not an exigency of government. The provisions of the Bill of Rights of the two States which entered into the
treaty are fully applicable in extradition. If a person is to be arrested and detained, current laws and procedures for arrests and detentions
should be employed. The novelty of extradition cases in the Philippines cannot result in any suspension or disregard of basic liberties
whether here or in the United States. The mantle of constitutional protections should cover persons covered by extradition requests.
I vote to dismiss the petition.
SEPARATE OPINION
VITUG, J.:
"The State values the dignity of every human person and guarantees full respect for human rights."[1]
The proposal to curtail the right of an individual to seek bail from the courts of law, acting in extradition cases, as well as his right to notice
and hearing before being arrested, brings to mind the not so distant past of the Spanish Inquisition and an uneasy realization that we have
yet to totally free ourselves from the grip of a dark page in history.
My reservation on the draft ponencia is premised on the following theses – irst, it would ignore constitutional safeguards to which all
government action is de ined, and second, it would overstep constitutional restraints on judicial power.
Treaty laws, particularly those which are self-executing, have equal stature as national statutes and, like all other municipal laws, are subject
to the parameters set forth in the Constitution. The Constitution, being both a grant and a circumscription of government authority by the
sovereign people, presents the ultimate yardstick of power and its limitation upon which an act of government is justly measured. This
instrument contains a rule for all agencies of the government and any act in opposition thereto can only be struck down as being invalid and

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[2]
without effect. When the great Charter gives a mandate, the government can do no less than to accept it; its rejection would be an act of
betrayal. The edict in its Bill of Rights granting to all persons, without distinction, the fundamental right to bail, is clear. No statute or treaty
can abrogate or discard its language and its intent.
The draft ponencia would assume that the Constitution con ines the grant of provisional liberty to criminal cases, and that it has no
application to extradition proceedings. This assumption would have reason for being if it were solely in criminal cases that a person could
face an imminent threat of deprivation of his right to life or liberty, for indeed, it is this threat, rather than case nomenclature, that must be
the focus and it would be super icial to think otherwise. While defying a neat de inition, extradition has all the earmarks of a criminal process
--- an extraditee would suffer deprivations, be denied his freedom and restricted in his movements, not much unlike a criminal indictee.
Extradition proceedings involve an extended restraint of liberty following arrest, peculiar to an accused in a criminal case, which can even be
more severe than an accompanying detention in a single state, for, at a minimum, it can mean protracted proceedings in both the asylum state
and the demanding state and a forced transportation in between.[3] In Herras Teehankee vs. Rovira,[4] the Court observed that bail is
constitutionally available to all persons, even those against whom no formal charges are iled.
"Indeed, if, as admitted on all sides, the precept protects those already charged under a formal complaint or information, there seems no
legal and just reason for denying its bene its to one against whom the proper authorities may not even yet conclude that there exists no
suf icient evidence of guilt. To place the former in a more favored position than the latter would be, to say the least, anomalous and absurd. If
there is a presumption of innocence in favor of one already formally charged with criminal offenses ... a fortiori, this presumption should be
indulged in favor of one not yet so charged although arrested and detained."
“x x x xxx xxx
"We reiterate now that under the Constitution, all persons, without distinction, whether formally charged or not yet so charged with any
criminal offense, 'shall before conviction be bailable,' the only exception being when charge is for a capital offense and the court inds that the
evidence of guilt is strong."
Notably, our extradition law (P.D. 1069, paragraph. 1, Section 9 thereof), expressly provides that in the hearing of the extradition petition, the
provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. In this
regard, Section 3, Rule 114, of our Rules of Criminal Procedure is unequivocal ---
"All persons in custody shall, before inal conviction, be entitled to bail as a matter of right, except those charged with capital offenses or an
offense which, under the law at the time of its commission and the time of the application for bail, is punished by reclusion perpetua, when
evidence of guilt is strong."
Nowhere in the Extradition Treaty with the United States is the grant of bail mentioned but so also it is not prohibited. This obscurity must
not be held to negate the right to bail; on the contrary, it should be viewed as allowing, at the very least, the evident intendment and spirit of
the fundamental law to prevail.
A Constitution does not deal with details, but only enunciates general tenets that are intended to apply to all facts that may come about and
be brought within its directions.[5] Behind its conciseness is its encompassing inclusiveness. It is not skin-deep; beneath that surface is what
gives it real life and meaning. It can truly be said that the real essence of justice does not emanate from quibbling over patchwork but
proceeds from its gut consciousness and dynamic role as a brick in the ultimate development of the edi ice.[6]
Resort to overly rigid procedures is being justi ied as a need to keep in line with our treaty obligations. Verily, comity in our relations with
sovereign states is important, but there are innate rights of individuals which no government can negotiate or, let alone, bargain away.
Analogy between extradition process and proceedings where the right to bail is said to be unavailing, i.e., deportation proceedings and
proceedings before a military tribunal, would not at all be apropos. Deportation proceedings are no more than inquiries and just involve the
simple fact of whether or not an alien has an authorized entry within a named country or, if authorized, whether or not he has complied with
the conditions for a continued stay thereat. A subject found to be illegally staying in a country is merely transported back to his place of
origin. Most importantly, such a person is not considered to be under judicial custody. Proceedings before a military tribunal, upon the other
hand, are con ined to members of the military organization who give consent to its jurisdiction. The stringent proceedings before such
tribunals place emphasis on summary procedures, a speedy resolution of the case being vital in maintaining discipline, obedience and itness
among the ranks[7] that cannot obviously be compromised in any sound military establishment.
The draft ponencia would rely heavily on foreign jurisprudence, notably American cases, to belabor the point that the right to bail is
extraneous to extradition proceedings. The citation, particularly of the jurisprudence obtaining in the United States, could be predicated on
the Eighth Amendment of the US Federal Constitution. This amendment however, recognizes merely by implication the right to bail by simply
disallowing excessive bail; it does not expressly provide for the grant of bail.[8] Individual states have incorporated into their own state
constitutions various versions – some give it as a matter of right and some do not – a fact which partially explains the lack of uniformity in
state jurisprudence on the matter. Where some states provide for a constitutional right to bail, the same is almost invariably viewed as
affording a greater right than that provided in the federal charter.[9]
In contrast, the Philippine Constitution strongly and clearly mandates that, except for those charged with offenses punishable by reclusion
perpetua, when evidence of guilt is strong, bail is an undeniable right of every person ---
"All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction,
be bailable by suf icient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when
the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required."[10]
Thus, grappling in this jurisdiction with the compatibility of the grant of bail in extradition proceedings with basic constitutional guarantees

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has not been and should not be a predicament. Absent any standard, except for the constitutional limitation that the same be not excessive,
the grant of bail in the United States largely rests on judicial discretion under the umbrella of judicial power. And so it has been so regarded
in Wright v. Henkel,[11] the primary case governing access to bail in United States extradition proceedings, where the Court has held:
"We are unwilling to hold that the Circuit Courts possess no power in respect of admitting bail other than as speci ically vested by statute or
that, while bail should not ordinarily be granted in cases of foreign extradition, those courts may not, in any case, and whatever the special
circumstances, extend that relief."
Henkel, decided by the US Supreme Court in 1903, has been criticized to have imposed an amorphous standard and has resulted in an
incoherent and inconsistent approach to bail.[12] While the clamor for its re-examination appears to be getting persistent by the day,[13] it has
nevertheless become the forerunner in the judicially-prescribed "special circumstances" standard in deciding whether the bail should be
granted or denied.[14] These "special circumstances" vary – from reasons of ill-health to material prejudice – depending on the peculiarities of
the case.
In In re Mitchel,[15] to cite an example, the court there caused the release of an extraditee who was charged with larceny by the requesting
state based on the assertion that his continued detention rendered him incapable of consulting with his counsel. The court was careful to
emphasize that it had become imperative for him to obtain advice of counsel because his entire fortune depended upon his doing so. The
court then added that while he had knowledge for a long time of the extradition, he had made no attempt to lee.[16]
But Philippine courts need not really bother borrowing from dicta in foreign jurisdictions. The absoluteness of the constitutional grant under
Section 13, Article, III of the Constitution precludes any need for further standards than those explicitly expressed by it. Judicial discretion is
con ined to the issue of whether or not the offense charged is a capital crime and a determination of whether or not the evidence of guilt is
strong. The rule may appear to be too simplistic but it is the correct approach. At all events, I would not be comfortable in developing a
"special circumstances" standard on the basis of mere pro hac vice pronouncements from elsewhere. In Herras Teehankee vs. Director of
Prisons[17] , this Court has expressed unquali ied acquiescence to the deeply ingrained policy of restraint against unwarranted judicial
adventurism that can otherwise easily get out of hand.
Given the foregoing, the trial court did not err, let alone commit a grave abuse of discretion, in the grant of bail to the extraditee.
WHEREFORE, I vote to DENY the Petition.
Govt of Hongkong v Olalia, Jr.
550 Phil. 63
EN BANC
G.R. NO. 153675, April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, REPRESENTED BY THE
PHILIPPINE DEPARTMENT OF JUSTICE, PETITIONER, VS. HON. FELIXBERTO T. OLALIA, JR. AND
JUAN ANTONIO MUÑOZ, RESPONDENTS.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to nullify the
two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No.
99-95773. These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muñ oz, private respondent, to post bail; and (2) the
Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 iled by the Government of Hong Kong Special
Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders were
issued by respondent judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the
Constitution granting bail to a potential extraditee.
The facts are:

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On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the
Surrender of Accused and Convicted Persons." It took effect on June 20, 1997.
On July 1, 1997, Hong Kong reverted back to the People's Republic of China and became the Hong Kong Special Administrative Region.
Private respondent Muñ oz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting an advantage as agent,"
in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of
conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued
against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private
respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in turn, iled with the RTC of Manila,
Branch 19 an application for the provisional arrest of private respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same day, the NBI agents
arrested and detained him.
On October 14, 1999, private respondent iled with the Court of Appeals a petition for certiorari, prohibition and mandamus with application
for preliminary mandatory injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.
On November 12, 1999, the DOJ iled with this Court a petition for review on certiorari, docketed as G.R. No. 140520, praying that the
Decision of the Court of Appeals be reversed.
On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of the Order of Arrest
against private respondent. The Decision became inal and executory on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region iled with the RTC of Manila a petition for
the extradition of private respondent, docketed as Civil Case No. 99-95733, raf led off to Branch 10, presided by Judge Ricardo Bernardo, Jr.
For his part, private respondent iled, in the same case,- a petition for bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law
granting bail in extradition cases and that private respondent is a high " light risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then raf led off to Branch 8
presided by respondent judge.
On October 30, 2001, private respondent iled a motion for reconsideration of the Order denying his application for bail. This was granted by
respondent judge in an Order dated December 20, 2001 allowing private respondent to post bail, thus:
In conclusion, this Court will not contribute to accused's further erosion of civil liberties. The petition for bail is granted subject to the
following conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear and answer the issues
raised in these proceedings and will at all times hold himself amenable to orders and processes of this Court, will further appear for
judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and discretion of iling its own motion for hold departure order before this
Court even in extradition proceeding; and
4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest of ice, at any time
and day of the week; and if they further desire, manifest before this Court to require that all the assets of accused, real and personal,
be iled with this Court soonest, with the condition that if the accused lees from his undertaking, said assets be forfeited in favor of
the government and that the corresponding lien/annotation be noted therein accordingly.
SO ORDERED.On December 21, 2001, petitioner iled an urgent motion to vacate the above Order, but it was denied by respondent judge in
his Order dated April 10, 2002.

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Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of
jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential
extraditee has a right to bail, the right being limited solely to criminal proceedings.
In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights extends to a
prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of one's liberty.
Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus:
Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by suf icient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.Jurisprudence on extradition
is but in its infancy in this jurisdiction. Nonetheless, this is not the irst time that this Court has an occasion to resolve the question of
whether a prospective extraditee may be granted bail.
In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a.
Mario Batacan Crespo,[1] this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the
constitutional provision on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus:
x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4, Rule 114 of the
Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to
extradition proceedings because extradition courts do not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail " lows from the presumption of innocence in favor of every accused who should not be subjected to
the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v.
Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail will not apply to a case
like extradition, where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that
the suspension of the privilege of the writ of habeas corpus inds application "only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision
on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right
is available even in extradition proceedings that are not criminal in nature.At irst glance, the above ruling applies squarely to private
respondent's case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual
person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to
human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in ful illing their
treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law
on extradition, on the other.
The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of
human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The
vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the
past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants
for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg
principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These
signi icant events show that the individual person is now a valid subject of international law.
On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human
rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the
right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in
the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff
v. Director of Prisons,[2] this Court, in granting bail to a prospective deportee, held that under the Constitution,[3] the principles set
forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on
Civil and Political Rights which the Philippines signed and rati ied. Fundamental among the rights enshrined therein are the rights of every
person to life, liberty, and due process.
The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value

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the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: "The State
values the dignity of every human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility of
protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the
proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justi ied. In other
words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard
their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the exercise
of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and protection to human
rights, particularly the right to life and liberty, a reexamination of this Court's ruling in Purganan is in order.
First, we note that the exercise of the State's power to deprive an individual of his liberty is not necessarily limited to criminal proceedings.
Respondents in administrative proceedings, such as deportation and quarantine,[4] have likewise been detained.
Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not
limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal
proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative
proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights.
The 1909 case of US v. Go-Sioco[5] is illustrative. In this case, a Chinese facing deportation for failure to secure the necessary certi icate of
registration was granted bail pending his appeal. After noting that the prospective deportee had committed no crime, the Court opined that
"To refuse him bail is to treat him as a person who has committed the most serious crime known to law;" and that while deportation is not a
criminal proceeding, some of the machinery used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to
deportation proceedings.
In Mejoff v. Director of Prisons[6] and Chirskoff v. Commission of Immigration,[7] this Court ruled that foreign nationals against whom no formal
criminal charges have been iled may be released on bail pending the inality of an order of deportation. As previously stated, the Court in
Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainee's right to bail.
If bail can be granted in deportation cases, we see no justi ication why it should not also be allowed in extradition cases. Likewise,
considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be
invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in
issue.
Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of
the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of
human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) de ines "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."
Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or
convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.[8] It
is not a criminal proceeding.[9] Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not
punishment for a crime, even though such punishment may follow extradition.[10] It is sui generis, tracing its existence wholly to treaty
obligations between different nations.[11] It is not a trial to determine the guilt or innocence of the potential extraditee.[12] Nor is it a
full-blown civil action, but one that is merely administrative in character.[13] Its object is to prevent the escape of a person accused or
convicted of a crime and to secure his return to the state from which he led, for the purpose of trial or punishment.[14]
But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the
potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is
shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of
the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency"
to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional
arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may

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be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings.
"Temporary detention" may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable.
Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until December 20, 2001, when the
trial court ordered his admission to bail. In other words, he had been detained for over two (2) years without having been convicted
of any crime. By any standard, such an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was
this prolonged deprivation of liberty which prompted the extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from
iling a motion for bail, a right to due process under the Constitution.
The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due
process is premised on the presumption of innocence of the accused. As Purganan correctly points out, it is from this major premise that the
ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the
issuance of the arrest warrant and the "temporary detention" is the possibility of light of the potential extraditee. This is based on the
assumption that such extraditee is a fugitive from justice.[15] Given the foregoing, the prospective extraditee thus bears the onus probandi of
showing that he or she is not a light risk and should be granted bail.
The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered
into with the Hong Kong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and
defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should
diminish a potential extraditee's rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our
Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his
right to apply for bail, provided that a certain standard for the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond
reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character,
the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to
prevent the prospective extraditee from leeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief
Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail
in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance
of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a light risk and will abide with all the
orders and processes of the extradition court.
In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case
should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing
evidence."
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to
bail on the basis of "clear and convincing evidence." If not, the trial court should order the cancellation of his bail bond and his immediate
detention; and thereafter, conduct the extradition proceedings with dispatch.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario, Tinga, Garcia,
Velasco, Jr., and Nachura, JJ., concur.
Gonzales v Hechanova
118 Phil. 1065
G.R. No. L-21897, October 22, 1963

RAMON A. GONZALES, PETITIONER VS. RUFINO G. HECHANOVA, ETC., ET AL., RESPONDENTS.
DECISION

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CONCEPCION, J.:
This is an original action for prohibition with preliminary injunction.

It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the importation of 67,000 tons of foreign rice to be
purchased from private sources, and created a rice procurement committee composed of the other respondents herein for the
implementation of said proposed importation. Thereupon, or on September 25, 1963, herein[1] petitioner, Ramon A. Gonzales—a rice planter,
and president of the Iloilo Palay and Corn Planters Association, whose members are, likewise, engaged in the production of rice and
corn— iled the petition herein, averring that, in making or attempting to make said importation of foreign rice, the aforementioned
respondents "are acting without jurisdiction or in excess of jurisdiction", because Republic Act No. 3452— which allegedly repeals or amends
Republic Act No. 2207—explicitly prohibits the importation of rice and corn by "the Rice and Corn Administration or any other government
agency"; that petitioner has no other plain, speedy and adequate remedy in the ordinary course of law; and that a preliminary injunction is
necessary for the preservation of the rights of the parties during the pendency of this case and to prevent the judgment therein from
becoming ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a writ of preliminary injunction be forthwith
issued restraining respondents, their agents or representatives from implementing the decision of the Executive Secretary to import the
aforementioned foreign rice; and that, after due hearings judgment be rendered making said injunction permanent.
Forthwith, respondents were required to ile their answer to the petition which they did, and petitioner's prayer for a writ of preliminary
injunction was set for hearing, at which both parties appeared and argued orally. Moreover, a memorandum was iled, shortly thereafter, by
the respondents. Considering, later on, that the resolution of said incident may require some pronouncements that would be more
appropriate in a decision on the merits of the case, the same was set for hearing on the merits soon thereafter. The parties, however, waived
the right to argue orally, although counsel for respondents iled their memoranda.
I. Sufficiency of petitioner's interest.
Respondents maintain that the status of petitioner as a rice planter does not give him suf icient interest to ile the petition herein and secure
the relief therein prayed for. We ind no merit in this pretense. Apart from prohibiting the importation of rice and corn "by the Rice and Corn
Administration or any other government agency", Republic Act No. 3452 declares, in Section 1 thereof, that "the policy of the Government" is
to "engage in the purchase of these basic foods directly from those tenants, farmers, growers, producers and landowners in the Philippines
who wish to dispose of their products at a price that will afford them a fair and just return 'for their labor and capital investment. * * *."
Pursuant to this provision, petitioner, as a planter with a rice land of substantial proportion,[2] is entitled to a chance to sell to the
Government the rice it now seeks to buy abroad. Moreover, since the purchase of said commodity will have to be effected with public funds
mainly raised by taxation, and as a rice producer and landowner petitioner must necessarily be a taxpayer, it follows that he has suf icient
personality and interest to seek judicial assistance with a view to restraining what he believes to be an attempt to unlawfully disburse said
funds.
II. Exhaustion of administrative remedies.
Respondents assail petitioner's right to the relief s prayed for because he "has not exhausted all administrative remedies available to him
before coming to court". We have already held, however, that the principle requiring the previous exhaustion of administrative remedies is
not applicable "where the question in dispute is purely a legal one",[3] or where the controverted act is "patently illegal" or was performed
without jurisdiction or in excess of jurisdiction,[4] or where the respondent is a department secretary, whose acts as an alter-ego of the
President bear the implied or assumed approval of the latter,[5] unless actually disapproved by him,[6] or where there are circumstances
[7]
indicating the urgency of judicial intervention. The case at bar falls under each one of the foregoing exceptions to the general rule.
Respondents' contention is, therefore, untenable.
III. Merits of petitioner's cause of action.
Respondents question the suf iciency of petitioner's cause of action upon the theory that the proposed importation in question is not
governed by Republic Act Nos. 2207 and 3452, but was authorized by the President as commander- in-chief "for military stock pile purposes"
[8]
in the exercise of his alleged authority under Section 2 of Commonwealth Act No. I; that in cases of necessity, the President "or his
subordinates may take such preventive measure for the restoration of good order and maintenance of peace"; and that, as
Commander-in-Chief of our armed forces, "the President * * * is duty-bound to prepare for the challenge of threats of war or emergency
without waiting for any special authority."
Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by petitioner herein on which our view need not
be expressed—we are unanimously of the opinion—assuming that said Republic Act No. 2207 is still in force—that the two Acts are
applicable to the proposed importation in question because the language of said laws is such as to include within the purview thereof all
importations of rice and corn into the Philippines. Pursuant to Republic Act No. 2207, "it shall be unlawful for any person, association,
corporation or government agency to import rice and corn into any point in the Philippines", although, by way of exception, it adds that "the
President of the Philippines may authorize the importation of these commodities through any government agency that he may designate", if
the conditions prescribed in Section 2 of said Act are present. Similarly, Republic Act No. 3452 explicitly enjoins "the Rice and Corn
Administration or any government agency from importing rice and corn.
Respondent allege, however, that said provisions of Republic Acts Nos. 2207 and 3452, prohibiting the importation of rice and corn by any
"government agency", do not apply to importations "made by the Government itself", because the latter is not a "government agency". This
theory is devoid of merit. The Department of National Defense and the Armed Forces of the Philippines, as well as respondents herein, and

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each and every of icer and employee of our Government, are government agencies and/or agents. The applicability of said laws even to
importations by the Government, as such, becomes more apparent when we consider that:
1. The importation permitted in Republic Act No. 2207 is to be authorized by "the President of the Philippines", and, hence, by or on
behalf of the Government of the Philippines;
2. Immediately after enjoining the Rice and Corn Administration and any other government agency from importing rice and corn,
Section 10 of Republic Act No. 3452 adds " that the importation of rice and corn is left to private parties upon payment of the
corresponding taxes", thus indicating that only "private parties" may import rice under its provisions; and
3. Aside from prescribing a ine not exceeding P10,000.00 and imprisonment of not more than ive (5) years for those who shall violate
any provision of Republic Act No. 3452 or any rule and regulation promulgated pursuant thereto, Section 15 of said Act provides that
"if the offender is a public official and/or employee", he shall be subject to the additional penalty speci ied therein. A public of icial is
an of icer of the Government itself, as distinguished from of icers or employees of instrumentalities of the Government. Hence, the
duly authorized acts of the former are those of the Government, unlike those of a government instrumentality which may have a
personality of its own, distinct and separate from that of the Government, as such. The provisions of Republic Act No. 2207 are, in this
respect, even more explicit. Section 3 thereof provides a similar additional penalty for any "of icer or employee of the Government"
who "violates, abets or tolerates the violation of any provision" of said Act. Hence, the intent to apply the same to transactions made
by the very government is patent.
Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed in Commonwealth Act No. 138, entitled "An
Act to give native products and domestic entities the preference in the purchase of articles for the Government" Pursuant to Section 1 thereof:
"The Purchase and Equipment Division of the Government of the Philippines and other of icers and employees of the municipal and provincial
governments and the Government of the Philippines and of chartered cities, boards, commissions, bureaus, departments, offices, agencies,
branches, and bodies of any description, including government-owned companies, authorized to requisition, purchase, or contract or make
disbursements for articles, materials, and supplies for public use, public buildings, or public works, shall give preference to materials * * *
produced * * * in the Philippines or in the United States, and to domestic entities, subject to the conditions hereinbelow speci ied." (Italic
supplied.)
Under this provision, in all purchase by the Government, including those made by and/or for the armed forces, preference shall be given to
materials produced in the Philippines. The importation involved in the case at bar violates this general policy of our Government, aside from
the provisions of Republic Act Nos. 2207 and 3452.
The attempt to justify the proposed importation by invoking reasons of national security—predicated upon the "worsening situation in Laos
and Vietnam", and "the recent tension created by the Malaysia problem"—and the alleged powers of the President as commander-in-chief of
all armed forces in the Philippines, under Section 2 of the National Defense Act (Commonwealth Act No. 1), overlooks the fact that the
protection of local planters of rice and corn in a manner that would foster and accelerate self-suf iciency in the local production of said
commodities constitutes a factor that is vital to our ability to meet a possible national emergency. Even if the intent in importing goods in
anticipation of such emergency were to bolster up that ability, the latter would, instead, be impaired if the importation were so made as to
discourage our farmers from engaging in the production of rice.
Besides, the stocking of rice and corn for purposes of national security and/or national emergency is within the purview of Republic Act No.
3452. Section 3 thereof expressly authorizes the Rice and Corn Administration "to accumulate stocks as a national reserve in such quantities
as it may deem proper and necessary to meet any contingencies". Moreover, it ordains that "the buffer stocks held as a national reserve * * * be
deposited by the Administration throughout the country under proper dispersed plans * * * and maybe released only upon the occurrence of
calamities or emergencies * * * (Italic supplied.)
Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so much, are not self-executory. They merely
outline the general objectives of said legislation. The means for the attainment of those objectives are subject to congressional legislation.
Thus, the conditions under which the services of citizens, as indicated in said Section 2, may be availed of, are provided for in Sections 3, 4
and 51 to 88 of said Commonwealth Act No. 1. Similarly, Section 5 thereof speci ies the manner in which resources necessary for our national
defense may be secured by the Government of the Philippines, but only "during a national mobilization", [9] which does not exist. Inferentially,
therefore, in the absence of a national mobilization, said resources shall be produced in such manner as Congress may by other Laws provide
from time to time. Insofar as rice and corn are concerned, Republic Act Nos. 2207 and 3452, and Commonwealth Act No. 138 are such laws.
[10]
Respondents cite Corwin in support of their pretense, but in vain. An examination of the work cited shows that Corwin referred to the
[11] [12]
powers of the President during "war time" or when he has placed the country or a part thereof under "martial law". Since neither
condition obtains in the case at bar, said work merely proves that respondents' theory, if accepted, would, in effect, place the Philippines
under martial law, without a declaration of the Executive to that effect. What is worse, it would keep us perpetually under martial law.
It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207 and 3452, it should, nevertheless, be permitted
because "it redounds to the bene it of the people". Salus populi est suprema lex, it is said.
If there were a local shortage of rice, the argument might have some value. But the respondents, as of icials of this Government, have
expressly af irmed again and again that there is no rice shortage. And the importation is avowedly for stockpile of the Army—not the civilian
population.
But let us follow the respondents' trend of thought. It has a more serious implication than appears on the surface. It implies that if an
executive of icer believes that compliance with a certain statute will not bene it the people, he is at liberty to disregard it. That idea must be

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rejected—we still live under a rule of law.

And then, "the people" are either producers or consumers. Now—as respondents explicitly admit—Republic Acts Nos. 2207 and 3452 were
approved by the Legislature for the bene it, of producers and consumers, i.e-, the people, it must follow that the welfare of the people lies
precisely in the compliance with said Acts.
It is not for respondent executive of icers now to set their own opinions against that of the Legislature, and adopt means or ways to set those
Acts at naught. Anyway, those laws permit importation—but under certain conditions, which have not been, and should be complied with.
IV. The Contracts With Vietnam and Burma.
It is lastly contended that the Government of the Philippines has already entered into two (2) contracts for the purchase of rice, one with the
Republic of Viet Nam, and another with the Government of Burma, that these contracts constitute valid executive agreements under
international law; that such agreements became binding and effective upon signing thereof by representatives of the parties thereto; that in
case of con lict between Republic Acts Nos. 2207 and 3452 on the one hand, and; the aforementioned contracts, on the other, the latter
should prevail, because, if a treaty and a statute are inconsistent with each other, the con lict must be resolved—under the American
jurisprudence—in favor of the one which is latest in point of time; that petitioner herein assails the validity of acts of the executive relative to
foreign relations in the conduct of which the Supreme Court cannot interfere; and that the aforementioned contracts have already been
consummated, the Government of the Philippines having already paid the price of the rice involved therein through irrevocable letters of
credit in favor of the sellers of said commodity. We ind no merit in this pretense.
The Court is not satis ied that the status of said contracts as alleged executive agreements has been suf iciently established. The parties to
said contracts do not appear to have regarded the same as executive agreements. But, even assuming that said contracts may properly be
considered as executive agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said agreements being
inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although the President may, under the American constitutional
system, enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction
which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted by
Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He
may not defeat legislative enactments that have acquired the status of laws, by indirectly repealing the same through an executive agreement
providing for the performance of the very act prohibited by said laws.
The American theory to the effect that, in the event of con lict between a treaty and a statute, the one which is latest in point of time shall
prevail, is not applicable to the case at bar, for respondents not only admit, but, also, insist that the contracts adverted to are not treaties. Said
theory may be justi ied upon the ground that treaties to which the United States is signatory require the advice and consent of its Senate, and,
hence, of a branch of the legislative department. No such justi ication can be given as regards executive agreements not authorized by
previous legislation, without completely upsetting the principle of separation of powers and the system of checks and balances which are
fundamental in our constitutional set up and that of the United States.
As regards the question whether an international agreement may be invalidated by our courts, suf ice it to say that the Constitution of the
Philippines has clearly settled it in the af irmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be
deprived "of its jurisdiction to review, revise, reverse, modify, or af irm on appeal, certiorari, or writ of error, as the law or the rules of court
may provide, inal judgments and decrees of inferior courts in—(1) All cases in which the constitutionality or validity of any treaty, law,
ordinance, or executive order or regulation is in question". In other words, our Constitution authorizes the nulli ication of a threaty, not only
when it con licts with the fundamental law, but, also, when it runs counter to an act of Congress.
The alleged consummation of the aforementioned contracts with Vietnam and Burma does not render this case academic. Republic Act No.
2207 enjoins our Government not from entering into contracts for the purchase of rice, but from importing rice, except under the conditions
prescribed in said Act. Upon the other, Republic Act No. 3452 has two (2) main features, namely; (a) it requires the Government to purchase
rice and corn directly from our local planters, growers or landowners; and (b) it prohibits importations of rice by the Government, and leaves
such importations to private parties. The pivotal issue in this case is whether the proposed importation—which has not been consummated
ad yet—is legally feasible.
Lastly, a judicial declaration of illegality of the proposed importation would not compel our Government to default in the performance of
such obligations as it may have contracted with the sellers of the rice in question, because, aside from the fact that said obligations may be
complied with without importing the commodity into the Philippines, the proposed importation may still be legalized by complying with the
provisions of the aforementioned laws.
V. The writ of preliminary injunction.
The members of the Court have divergent opinions on the question whether or not respondents herein should be enjoined from
implementing the aforementioned proposed importation. However, the majority favors the negative view, for which reason the injunction
prayed for cannot be granted.
Wherefore, judgment is hereby rendered declaring that respondent Executive Secretary had and has no power to authorize the importation
in question; that he exceeded his jurisdiction in granting said authority; that said importation is not sanctioned by law and is contrary to its
provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly, denied. It is so ordered.
Bengzon, C. J., Padilla, Labrador, Reyes, J. B. L., Dizon, and Makalintal, JJ., concur.
Paredes, and Regala, JJ., concur in the result.

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C ON C U R R I N G
BAUTISTA, ANGELO, J.,
Under Republic Act 2207, which took effect on May 15, 1959, it is unlawful for any person, association, corporation or government agency to
import rice and corn into any point in the Philippines. The exception is if there is an existing or imminent shortage of such commodity of
such gravity as to constitute national emergency in which case an importation may be authorized by the President when so certi ied by the
National Economic Council.
However, on June 14, 1962, Republic Act 3452 was enacted providing that the importation of rice and corn can only be made by private
parties thereby prohibiting from doing so the Rice and Corn Administration or any other government agency. Republic Act 3452 does not
expressly repeal Republic Act 2207, but only repeals or modi ies those parts thereof that are inconsistent with its provisions. The question
that now arises is: Has the enactment of Republic Act 3452 the effect of prohibiting completely the government from importing rice and corn
into the Philippines?
My answer is in the negative. Since this Act does not in any manner provide for the importation of rice and corn in case of national
emergency, the provision of the former law on the matter should stand, for that is not inconsistent with any provision embodied in Republic
Act 3452. The Rice and Corn Administration, or any other government agency, may therefore still import rice and corn into the Philippines as
provided in Republic Act 2207 if there is a declared national emergency.
The next question that arises is: Can the government authorize the importation of rice and corn regardless of Republic Act 2207 if that is
authorized by the President as Commander-in-Chief of the Philippine Army as a military precautionary measure for military stock-pile?
Respondents answer this question in the af irmative. They advance the argument that it is the President's duty to see to it that the Armed
Forces of the Philippines are geared to the defense of the country as well as to the ful illment of cur international commitments in Southeast
Asia in the event the peace and security of the area are in danger. The stock piling of rice, they aver, is an essential requirement of defense
preparation in view of the limited local supply and the probable disruption of trade and commerce with outside countries in the event of
armed hostilities, and this military precautionary measure is necessary because of the unsettled conditions in the Southeast Asia bordering
on actual threats of armed con licts as evaluated by the Intelligence Service of the Military Department of our Government. This advocacy,
they contend, inds support in the national defense policy embodied in Section 2 of our National Defense Act (Commonwealth Act No. 1),
which provides:
"(a) The preservation of the State is the obligation of every citizen. The security of the Philippines and the freedom, independence and
perpetual neutrality of the Philippine Republic shall be guaranteed by the employment of all citizens, without distinction of sex or age, and all
resources.
"(b) The employment of the nation's citizens and resources for national defense shall be effected by a national mobilization.
"(c) The national mobilization shall include the execution of all national defense shall be effected by a national mobilization.
"(d) The civil authority shall always be supreme. The President of the Philippines as the Commander-in-Chief of all military forces, shall be
responsible that mobilization measures are prepared at all times." (Italic supplied.)
Indeed, I ind in that declaration of policy that the security of the Philippines and its freedom constitutes the core of the preservation of our
State which is the basic duty of every citizen and that to secure which it is enjoined that the President employ all the resources at his
command. But over and above, all that power and duty, fundamental as they may seem, there is the injunction that the civil authority shall
always be supreme.This injunction can only mean that while all precautions should be taken to insure the security and preservation of the
State and to this effect the employment of all resources may be resorted to, the action must always be taken within the framework of the civil
authority. Military authority should be harmonized and coordinated with civil authority, the only exception being when the law clearly
ordains otherwise. Neither Republic Act 22,07, nor Republic Act 3452, contains any exception in favor of military action concerning
importation of rice and corn. An exception must be strictly construed.
A distinction is made between the government and government agency in an attempt to take the former out of the operation of Republic Act
2207. I disagree. The Government of the Republic of the Philippines under the Revised Administrative Code refers to that entity through
which the functions of government are exercised, including the various arms through which political authority is made effective whether they
be provincial, municipal or other form of local government, whereas a government instrumentality refers to corporations owned or
controlled by the government to promote certain aspects of the economic life of our people. A government agency, therefore, must
necessarily refer to the government itself of the Republic, as distinguished from any government instrumentality which has a personality
distinct and separate from it (Section 2).
The important point to determine, however, is whether we should enjoin respondents from carrying out the importation of the rice which
according to the record has been authorized to be imported on government to government level, it appearing that the arrangement to this
effect has already been concluded, the only thing lacking being its implementation. This is evident from the manifestation submitted by the
Solicitor General wherein it appears that the contract for the purchase of 47,000 tons of rice from Vietnam had been signed on October 5,
1963, (and for the purchase of 20,000 tons from Burma on October 8, 1963,) by the authorized representatives of both our government and
the Governments of Vietnam and Burma, respectively. If it is true that our government has already made a formal commitment with the
selling countries there arise the question as to whether the Act can still be impeded at this stage of the negotiations. Though on this score
there is a divergence of opinion, it is gratifying to note that the majority has expressed itself against it. This is a plausible attitude for, had the

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writ been issued, our government would have been placed in a predicament where, as a necessary consequence, it would have to repudiate a
duly formalized agreement to its great embarrassment and loss of face. This was avoided by the judicial statesmanship evinced by the Court.
CONCURRING
BARRERA, J.:
Because of possible complications that might be aggravated by misrepresentation of the true nature and scope of the case before this Court,
it is well to restate as clearly as possible, the real and only issue presented by the respondents representing the government.
From the answer iled by the Solicitor General, in behalf of respondents, we quote:
"The importation of the rice in question by the Armed Forces of the Philippines is for military stockpiling authorized by the President
pursuant to his inherent power as commander-in-chief and as a military precautionary measure in view of the worsening situation in Laos
and Vietnam and, it may be added, the recent tension created by the Malaysia problem." (Answer, p. 2: italic supplied.)
During the oral argument, Senator Fernandez, appearing in behalf of the respondents, likewise reiterated that the imported rice was for
military stockpiling, and while he admitted that some of it went to the Rice and Corn Administration, he emphasized again and again that the
rice was not intended for the RCA for distribution to the people, as there was no shortage of rice for that purpose, but it was only exchanged
for palay because this could be better preserved.
From the memorandum iled thereafter by the Solicitor General, again the claim was made:
"We respectfully reiterate the arguments in our answer dated October 4, 1963 that the importation of rice sought to be enjoined in this
petition is in the exercise of the authority vested in the President of the Philippines as Commander-in-Chief of the Armed Forces, as a
measure of military preparedness demanded by a real and actual threat of emergency in the South East Asian countries. (p. 1: italic supplied.)
* * * * * * *
"It (the stressing of the unsettled conditions in Southeast Asia) is merely our intention to show the necessity for the stockpiling of rice for
army purposes, which is the very reason for the importation. (p. 3, italic supplied.)
* * * * * * *
"As it is, the importation in question is being made by the Republic of the Philippines for its own use: and the rice is not supposed to be poured
into the open market as to affect the price to be paid by the public, (p. 4, italic supplied.)
* * * * * * *
"What we do contend is that the law, for want of express and clear provision to the effect, does not include in its prohibition importation by the
Government of rice for its own use not for the consuming public, regardless of whether there is or there is no emergency." (p. 5, italic supplied.)
From the above, it not only appears but is evident that the respondents were not concerned with the present rice situation confronting the
consuming public, but were solely and exclusively after the stockpiling of rice for the future use of the army. The issue, therefore, in which the
Government was interested is not whether rice is imported to give the people a bigger or greater supply to maintain the price at P.80 per
ganta—for, to quote again their contention: "the rice is not supposed to be poured into the open market to affect the price to be paid by the
public", as it is "not for the consuming public, regardless of whether there is or there is no emergency",—but whether rice can legally be
imported by the Armed Forces of the Philippines avowedly for its future use, notwithstanding the prohibitory provisions of Republic Acts
Nos. 2207 and 3452. The majority opinion ably sets forth the reasons why this Court can not accept the contention of the respondents that
this importation is beyond and outside the operation of these statutes. I can only emphasize that I see in the theory advanced by the Solicitor
General a dangerous trend—that because the policies enunciated in the cited laws are for the protection of the producers and the consumers,
the army is removed from their application. To adopt this theory is to proclaim the existence in the Philippines of three economic groups or
classes; the producers, the consumers, and the Armed Forces of the Philippines. What is more portentious is the effort to equate the army
with the Government itself.
Then again, the importation of this rice for military stockpiling is sought to be justi ied by the alleged threat of emergency in the Southeast
Asian countries. But the existence of this supposed threat was unilaterally determined by the Department of National Defense alone. We
recall that there exists a body called the National Security Council in which are represented the Executive as well as the Legislative
department. In it sit not only members of the party in power but of the opposition as well. To our knowledge, this is the highest consultative
body which deliberates precisely in times of emergency threatening to affect the security of the state. The democratic composition of this
council is to guarantee that its deliberations would be non-partisan and only the best interests of the nation will be considered. Being a
deliberative body, it insures against precipitate action. This is as it should be. Otherwise, in these days of ever present cold war, any change or
development in the political climate in any region of the world is apt to be taken as an excuse for the military to conjure up a crisis or
emergency and thereupon attempt to override our laws and legal processes, and imperceptibly institute some kind of martial law on the
pretext of precautionary mobilization measure avowedly in the interest of the security of the state. One need not be too imaginative to
perceive a hint of this in the present case.
The Supreme Court, in arriving at the conclusion unanimously reached, is fully aware of the dif icult and delicate task it had to discharge. Its
position is liable to be exploited by some for their own purposes, by claiming and making it appear that the Court is unmindful of the plight
of our people during these days of hardship; that it preferred to give substance to the "niceties of the law" than heed the needs of the people.
Our answer is that the Court was left no alternative. It had, in compliance with its duty, to decide the case upon the facts presented to it. The

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respondents, representing the administration, steadfastly maintained and insisted that there is no rice shortage; that the imported rice is not
for the consuming public and is not supposed to be placed in the open market to affect the price to be paid by the public; that it is solely for
stockpiling of the army for future use as a measure of mobilization in the face of what the Department of National Defense unilaterally
deemed a threatened armed con lict in Southeast Asia. Confronted with these facts upon which the Government has built and rested its case,
we have searched in vain for legal authority or cogent reasons to justify this importation made admittedly contrary to the provisions of
Republic Acts Nos. 2207 and 3452, I say admittedly, because respondents never as much as pretended that the importation ful ills the
conditions speci ied in these laws, but limited themselves to the contention, which is their sole defense, that this importation does not fall
within the scope of said laws. In our view, however, the laws are clear. The laws are comprehensive and their application does not admit of
any exception. The laws are adequate. Compliance therewith is not dif icult, much less impossible. The avowed emergency, if at all, is not
urgently immediate.
In this connection, it is pertinent to bear in mind that the Supreme Court has a duty to perform under the Constitution. It has to decide, when
called upon to do so in an appropriate proceeding, "all cases in which the constitutionality or validity of any treaty, law, ordinance, executive
order or regulation is in question". We can not elude this duty. To do so would be culpable dereliction on our part. While we symphatize with
the public that might be adversely affected as a result of this decision, yet our sympathy does not authorize us to sanction an act contrary to
applicable laws. The fault lies with those who stubbornly contended and represented before this Court that there is no rice shortage, that the
imported rice not intended for the consuming public, but for stockpiling of the army. And, if as now claimed before the public, contrary to the
Government's stand in this case, that there is need for imported rice to stave off hunger, our legislature has provided for such a situation. As
already stated, the laws are adequate. The importation of rice under the conditions set forth in the laws may be authorized not only where
there is an existing shortage, but also when the shortage is imminent. In other words, lawful remedy to solve the situation is available, if only
those who have the duty to execute the laws perform their duty. If there is really need for the importation of rice, why adopt some dubious
means which necessitates resort to doubtful exercise of the power of the President as Commander-in-Chief of the Army? Why not comply
with the mandate of the laws? Ours is supposed to be a regime under the rule of law. Adoption as a government policy of the theory of "the
end justi ies the means" brushing aside constitutional and legal restraints, must be rejected, lest we end up with the end of freedom.
For these reasons, I concur in the decision of the Court.
Cathay Pacific Airways v CA
G.R. No. 60501
FIRST DIVISION
G.R. No. 60501, March 05, 1993

CATHAY PACIFIC AIRWAYS, LTD, PETITIONER, VS. COURT OF APPEALS AND TOMAS L.
ALCANTARA, RESPONDENTS.
DECISION
BELLOSILLO, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals which af irmed with modi ication that of the trial court by
increasing the award of damages in favor of private respondent Tomas L. Alcantara.
The facts are undisputed: On 19 October 1975, respondent Tomas L. Alcantara was a irst class passenger of petitioner Cathay Paci ic
Airways, Ltd. (CATHAY for brevity) on its Flight No. CX-900 from Manila to Hongkong and onward from Hongkong to Jakarta on Flight No.
CX-711. The purpose of his trip was to attend the following day, 20 October 1975, a conference with the Director General of Trade of
Indonesia, Alcantara being the Executive Vice-President and General Manager of Iligan Cement Corporation, Chairman of the Export
Committee of the Philippine Cement Corporation, and representative of the Cement Industry Authority and the Philippine Cement

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Corporation. He checked in his luggage which contained not only his clothing and articles for personal use but also papers and documents he
needed for the conference.
Upon his arrival in Jakarta, respondent discovered that his luggage was missing. When he inquired about his luggage from CATHAY’s
representative in Jakarta, private respondent was told that his luggage was left behind in Hongkong. For this, respondent Alcantara was
offered $20.00 as “inconvenience money” to buy his immediate personal needs until the luggage could be delivered to him.
His luggage inally reached Jakarta more than twenty four (24) hours after his arrival. However, it was not delivered to him at his hotel but
was required by petitioner to be picked up by an of icial of the Philippine Embassy.
On 1 March 1976, respondent iled his complaint against petitioner with the Court of First Instance (now Regional Trial Court) of Lanao del
Norte praying for temperate, moral and exemplary damages, plus attorney’s fees.
On 18 April 1976, the trial court rendered its decision ordering CATHAY to pay plaintiff P20,000.00 for moral damages, P5,000.00 for
temperate damages, P10,000.00 for exemplary damages, and P25,000.00 for attorney’s fees, and the costs.[1]
Both parties appealed to the Court of Appeals. CATHAY assailed the conclusion of the trial court that it was accountable for breach of contract
and questioned the non-application by the court of the Warsaw Convention as well as the excessive damages awarded on the basis of its
inding that respondent Alcantara was rudely treated by petitioner’s employees during the time that his luggage could not be found. For his
part, respondent Alcantara assigned as error the failure of the trial court to grant the full amount of damages sought in his complaint.
On 11 November 1981, respondent Court of Appeals rendered its decision af irming the indings of fact of the trial court but modifying its
award by increasing the moral damages to P80,000.00, exemplary damages to P20,000.00 and temperate or moderate damages to
P10,000.00. The award of P25,000.00 for attorney’s fees was maintained.
The same grounds raised by petitioner in the Court of Appeals are reiterated before Us. CATHAY contends that: (1) the Court of Appeals erred
in holding petitioner liable to respondent Alcantara for moral, exemplary and temperate damages as well as attorney’s fees; and, (2) the
Court of Appeals erred in failing to apply the Warsaw Convention on the liability of a carrier to its passengers.
On its irst assigned error, CATHAY argues that although it failed to transport respondent Alcantara’s luggage on time, the one-day delay was
not made in bad faith so as to justify moral, exemplary and temperate damages. It submits that the conclusion of respondent appellate court
that private respondent was treated rudely and arrogantly when he sought assistance from CATHAY’s employees has no factual basis, hence,
the award of moral damages has no leg to stand on.
Petitioner’s irst assigned error involves indings of fact which are not reviewable by this Court.[2] At any rate, it is not impressed with merit.
Petitioner breached its contract of carriage with private respondent when it failed to deliver his luggage at the designated place and time, it
being the obligation of a common carrier to carry its passengers and their luggage safely to their destination, which includes the duty not to
delay their transportation,[3] and the evidence shows that petitioner acted fraudulently or in bad faith.
Moral damages predicated upon a breach of contract of carriage may only be recoverable in instances where the mishap results in death of a
passenger,[4] or where the carrier is guilty of fraud or bad faith.[5]
In the case at bar, both the trial court and the appellate court found that CATHAY was grossly negligent and reckless when it failed to deliver
the luggage of petitioner at the appointed place and time. We agree. CATHAY alleges that as a result of mechanical trouble, all pieces of
luggage on board the irst aircraft bound for Jakarta were unloaded and transferred to the second aircraft which departed an hour and a half
later. Yet, as the Court of Appeals noted, petitioner was not even aware that it left behind private respondent’s luggage until its attention was
called by the Hongkong Customs authorities. More, bad faith or otherwise improper conduct may be attributed to the employees of
petitioner. While the mere failure of CATHAY to deliver respondent’s luggage at the agreed place and time did not ipso facto amount to willful
misconduct since the luggage was eventually delivered to private respondent, albeit belatedly,[6] We are persuaded that the employees of
CATHAY acted in bad faith. We refer to the deposition of Romulo Palma, Commercial Attache of the Philippine Embassy at Jakarta, who was
with respondent Alcantara when the latter sought assistance from the employees of CATHAY. This deposition was the basis of the indings of
the lower courts when both awarded moral damages to private respondent. Hereunder is part of Palma’s testimony -
“Q: What did Mr. Alcantara say, if any?
A: Mr. Alcantara was of course …. I could understand his position. He was furious for the experience because
probably he was thinking he was going to meet the Director-General the following day and, well, he was with
no change of proper clothes and so, I would say, he was not happy about the situation.
Q: What did Mr. Alcantara say?

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A: He was trying to press the fellow to make the report and if possible make the delivery of his baggage as soon
as possible.
Q: And what did the agent or duty of icer say, if any?
A: The duty of icer, of course, answered back saying ‘What can we do, the baggage is missing. I cannot do
anything.’ something like it. ‘Anyhow you can buy anything you need, charged to Cathay Paci ic.’
Q: What was the demeanor or comportment of the duty of icer of Cathay Paci ic when he said to Mr. Alcantara
‘You can buy anything chargeable to Cathay Paci ic’?
A: If I had to look at it objectively, the duty of icer would like to dismiss the affair as soon as possible by saying
indifferently ‘Don’t worry. It can be found.’”[7]
Indeed, the aforequoted testimony shows that the language and conduct of petitioner’s representative towards respondent Alcantara was
discourteous or arbitrary to justify the grant of moral damages. The CATHAY representative was not only indifferent and impatient; he was
also rude and insulting. He simply advised Alcantara to buy anything he wanted. But even that was not sincere because the representative
knew that the passenger was limited only to $20.00 which, certainly, was not enough to purchase comfortable clothings appropriate for an
executive conference. Considering that Alcantara was not only a revenue passenger but even paid for a irst class airline accommodation and
accompanied at the time by the Commercial Attache of the Philippine Embassy who was assisting him in his problem, petitioner or its agents
should have been more courteous and accommodating to private respondent, instead of giving him a curt reply, “What can we do, the
baggage is missing. I cannot do anything x x x x Anyhow, you can buy anything you need, charged to Cathay Paci ic.” CATHAY’s employees
should have been more solicitous to a passenger in distress and assuaged his anxieties and apprehensions. To compound matters, CATHAY
refused to have the luggage of Alcantara delivered to him at his hotel; instead, he was required to pick it up himself and an of icial of the
Philippine Embassy. Under the circumstances, it is evident that petitioner was remiss in its duty to provide proper and adequate assistance
to a paying passenger, more so one with irst class accommodation.
Where in breaching the contract of carriage the defendant airline is not shown to have acted fraudulently or in bad faith, liability for damages
is limited to the natural and probable consequences of the breach of obligation which the parties had foreseen or could have reasonably
foreseen. In that case, such liability does not include moral and exemplary damages.[8] Conversely, if the defendant airline is shown to have
acted fraudulently or in bad faith, the award of moral and exemplary damages is proper.
However, respondent Alcantara is not entitled to temperate damages, contrary to the ruling, of the court a quo, in the absence of showing that
he sustained some pecuniary loss.[9] It cannot be gainsaid that respondent’s luggage was ultimately delivered to him without serious or
appreciable damage.
As regards its second assigned error, petitioner airline contends that the extent of its liability for breach of contract should be limited
absolutely to that set forth in the Warsaw Convention. We do not agree. As We have repeatedly held, although the Warsaw Convention has the
force and effect of law in this country, being a treaty commitment assumed by the Philippine government, said convention does not operate
as an exclusive enumeration of the instances for declaring a carrier liable for breach of contract of carriage or as an absolute limit of the
extent of that liability.[10] The Warsaw Convention declares the carrier liable for damages in the enumerated cases and under certain
limitations.[11] However, it must not be construed to preclude the operation of the Civil Code and other pertinent laws. It does not regulate,
much less exempt, the carrier from liability for damages for violating the rights of its passengers under contract of carriage,[12] especially if
wilfull misconduct on the part of the carrier’s employees is found or established, which is clearly the case before Us. For, the Warsaw
Convention itself provides in Art. 25 that -
“(1) The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is
caused by his wilfull misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is
considered to be equivalent to wilfull misconduct.
“(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused under the same circumstances
by any agent of the carrier acting within the scope of his employment.”When petitioner airline misplaced respondent’s luggage and failed to
deliver it to its passenger at the appointed place and time, some special species of injury must have been caused to him. For sure, the latter
underwent profound distress and anxiety, and the fear of losing the opportunity to ful ill the purpose of his trip. In fact, for want of
appropriate clothings for the occasion brought about by the delay of the arrival of his luggage, to his embarrassment and consternation
respondent Alcantara had to seek postponement of his pre-arranged conference with the Director General of Trade of the host country.
In one case,[13] this Court observed that a traveler would naturally suffer mental anguish, anxiety and shock when he inds that his luggage
did not travel with him and he inds himself in a foreign land without any article of clothing other than what he has on.
Thus, respondent is entitled to moral and exemplary damages. We however ind the award by the Court of Appeals of P80,000.00 for moral
damages excessive, hence, We reduce the amount to P30,000.00. The exemplary damages of P20,000.00 being reasonable is maintained, as
well as the attorney’s fees of P25,000.00 considering that petitioner’s act or omission has compelled Alcantara to litigate with third persons

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[14]
or to incur expenses to protect his interest.
WHEREFORE, the assailed decision of respondent Court of Appeals is AFFIRMED with the exception of the award of temperate damages of
P10,000.00 which is deleted, while the award of moral damages of P80,000.00 is reduced to P30,000.00. The award of P20,000.00 for
exemplary damages is maintained as reasonable together with the attorney’s fees of P25,000.00. The moral and exemplary damages shall
earn interest at the legal rate from 1 March 1976 when the complaint was iled until full payment.
SO ORDERED.
Cruz, (Chairman), Griño-Aquino, and Quiason, JJ., concur.
Ichong v Hernandez
101 Phil. 1155
G.R. No. L-7995, May 31, 1957

LAO H. ICHONG, IN HIS OWN BEHALF AND IN BEHALF OF OTHER ALIEN RESIDENTS,
CORPORATIONS AND PARTNERSHIPS ADVERSELY AFFECTED BY REPUBLIC ACT NO. 1180,
PETITIONER, VS. JAIME HERNANDEZ, SECRETARY OF FINANCE, AND MARCELINO SARMIENTO,
CITY TREASURER OF MANILA, RESPONDENTS.
LABRADOR, J.:
I. The case and the issue, in general
This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative enactment, fundamental and
far-reaching in signi icance. The enactment poses questions of due process, police power and equal protection of the laws. It also poses an
important issue of fact, that is whether the conditions which the disputed law purports to remedy really or actually exist. Admittedly
springing from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country from the alien retailer.
Through it, and within the ield of economy it regulates, Congress attempts to translate national aspirations for economic independence and
national security, rooted in the drive and urge for national survival and welfare, into a concrete and tangible measures designed to free the
national retailer from the competing dominance of the alien, so that the country and the nation may be free from a supposed economic
dependence and bondage. Do the facts and circumstances justify the enactment?
II. Pertinent 'provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The main
provisions of the Act are: (1) a prohibition against persons, not citizens of the Philippines, and against associations, partnerships, or
corporations the capital of which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail
trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are allowed
to continue to engage therein, unless their licenses are forfeited in accordance with the law, until their death or voluntary retirement in case
of natural persons, and for ten years after the approval of the Act or until the expiration of term in case of juridical persons; (3) an
exception therefrom in favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture of licenses (to engage in
the retail business) for violation of the laws on nationalization, economic control weights and measures and labor and other laws relating
to trade, commerce and industry; (5) a prohibition against the establishment or opening by aliens actually engaged in the retail business of
additional stores or branches of retail business, (6) a provision requiring aliens actually engaged in the retail business to present for
registration with the proper authorities a veri ied statement concerning their businesses, giving, among other matters, the nature of the
business, their assets and liabilities and their of ices and principal of ices of juridical entities; and (7) a provision allowing the heirs of
aliens now negated in the retail business who die, to continue such business for a period of six months for purposes of liquidation,
III. Grounds upon which petition is based—Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents, corporations and partnerships adversely affected by the
provisions of Republic Act No. 1180, brought this action to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the
Secretary of Finance and all other persons acting under him, particularly city and municipal treasurers, from enforcing its provisions.
Petitioner attacks the constitutionality of the Act, contending that: (1) it denies to alien residents the equal protection of the laws and

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deprives them of their liberty and property without due process of law; (2) the subject of the Act is not expressed or comprehended in the
title thereof; (3) the Act violates international and treaty obligations of the Republic of the Philippines; (4) the provisions of the Act against
the transmission by aliens of their retail business thru hereditary succession, and those requiring 100% Filipino capitalization for a
corporation or entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8 of Article
XIV of the Constitution. In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed in the
valid exercise of the police power of the State, which exercise is authorized in the Constitution in the interest of national economic
survival; (2) the Act has only one subject embraced in the title; (3) no treaty or international obligations are infringed; (4) as regards
hereditary succession, only the form is affected but the value of the property is not impaired, and the institution of inheritance is only of
statutory origin.
IV. Preliminary consideration of legal principles involved

a. The police power.—There is no question that the Act was approved in the exercise of the police power, but petitioner claims that its
exercise in this instance is attended by a violation of the constitutional requirements of due process and equal protection of the laws. But
before proceeding to the consideration and resolution of the ultimate issue- involved, it would be well to bear in mind certain basic and
fundamental, albeit preliminary, considerations in the determination of the ever recurrent con lict between police power and the guarantees
of due process and equal protection of the laws. What is the scope of police power, and how are the due process and equal protection
clauses related to it V What is the province and power of the legislature, and what is the function and duty of the courts? These
consideration must be clearly and correctly understood that their application to the facts of the case may be brought forth with clarity and
the issue accordingly resolved.
It has been said that police power is so far-reaching in scope, that it has become almost impossible to limit its sweep. As it derives its
existence from the very existence of the State itself, it does not need to be expressed or de ined in its scope; it is said to be co-extensive
with self- protection and survival, and as such it is the most positive and active of all governmental processes, the most essential, insistent
and illimitable. Especially is it so under a modern democratic framework where the demands of society and of nations have multiplied to
almost unimaginable proportions; the ield and scope of police power has become almost boundles3, just as the ields of public interest and
public welfare have become almost all-embracing and have transcended human foresight. Otherwise stated, as we cannot foresee the
needs and demands of public interest and welfare in this constantly changing and progressive world, so we cannot delimit beforehand the
extent or scope of police power by which and through which the State seeks to attain or achieve public interest or welfare. So it is that
Constitutions do not de ine the scope or extent of the police power of the State; what they do is to set forth the limitations thereof. The
most important of these are the due process clause and the equal protection clause.
b. Limitations on police power.—The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:
"SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the
equal protection of the laws." (Article III, Phil. Constitution)These constitutional guarantees which embody the essence of individual
liberty and freedom in democracies, are not limited to citizens alone but are admittedly universal in their application, without regard to any
differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, SO, L. ed. 220, 226.)
c. The equal protection clause.—
The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or by territory
within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated
alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not
infringed by legislation which applies only to those persons falling within a speci ied class, if it applies alike to all persons within such
class, and reasonable grounds exists for making" a distinction between those who fall within such class and those who do not. (2 Cooley,
Constitutional Limitations, 824-825.)
d. The due process clause.—The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police
power. Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably necessary for the accomplishment of
the legislature's purpose; is it not unreasonable, arbitrary or oppressive? Is. there suf icient foundation or reason in connection with the
matter involved ; or has there not been a capricious use of the legislative power? Can the aims conceived be achieved by the means used,
or is it not merely an unjusti ied interference with private interest? These are the questions that we ask when the due process test is
applied.
The con lict, therefore, between police power and the guarantees of due process and equal protection of the laws is more apparent than
real. Properly related, the power and the guarantees are supposed to coexist. The balancing is the essence or, shall it be said, the
indispensable means for the attainment of legitimate aspirations of any democratic society. There can be no absolute power, whoever
exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and anarchy. So the State can
deprive persons of life, liberty and property, provided there is due process of law; and persons may be classi ied into classes and groups,
provided everyone is given the equal protection of the law. The test or standard, as always, is reason. The police power legislation

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must be irmly grounded on public interest and welfare, and a reasonable relation must exist between purposes and means. And if
distinction and classi ication has been made, there must be a reasonable basis for said distinction.
e. Legislative discretion not subject to judicial review.—Now, in this matter of equitable balancing1, what is the proper place and role of the
courts? It must not be overlooked, in the irst place, that the legislature, which is the constitutional repository of police power and exercises
the prerogative of determining the policy of the State, is by force of circumstances primarily the judge of necessity, adequacy or
reasonableness and wisdom, of any law promulgated in the exercise of the police power, or of the measures adopted to implement the
public policy or to achieve public interest. On the other hand, courts, although zealous guardians of individual liberty and right, have
nevertheless evinced a reluctance to interfere with the exercise of the legislative prerogative. They have done so early where there has
been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not supposed to
override legitimate policy, and courts never inquire into the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly into the issue involved. If the disputed legislation were
merely a regulation, as its title indicates, there would be no question that it falls within the legitimate scope of legislative power. But it
goes further and prohibits a group of residents, the aliens, from engaging therein. The problem becomes more complex because its subject
is a common, trade or occupation, as old as society itself, which from time immemorial has always been open to residents, irrespective of
race, color or citizenship.
a. Importance of retail trade in the economy of the nation.—In a primitive economy where families produce all that they consume and
consume all that they produce, the dealer, of course, is unknown. But as group life develops and families begin to live in communities
producing more than what they consume and needing an in inite number of things they do not produce, the dealer comes into existence.
As villages develop into big communities and specialization in production begins, the dealer's importance is enhanced. Under modern
conditions and standards of living, in which man's needs have multiplied and diversi ied to unlimited extents and proportions, the retailer
comes as essential as the producer, because thru him the in inite variety of articles, goods and commodities needed for daily life are
placed within the easy reach of consumers. Retail dealers perform the functions of capillaries in the human body, thru which all the
needed food and supplies are ministered to members of the communities comprising the nation.
There cannot be any question about the importance of the retailer in the life of the community. He ministers to the resident's daily needs,
food in all its increasing forms, and the various little gadgets and things needed for home and daily life. He provides his customers around
his store with the rice or corn, the ish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell, even the needle
and the thread to sew them or darn the clothes that wear out. The retailer, therefore, from the lowly peddler, the owner of a small
sari-sari store, to the operator of a department store or a supermarket is so much a part of day-to-day existence.
b. The alien retailer's, traits.—The alien retailer must have started plying his trade in this country in the bigger centers of population (Time
there was when he was unknown in provincial towns and villages). Slowly but gradually he invaded towns and villages; now he
predominates in the cities and big centers of population. He even pioneers in far away nooks where the beginnings of community life
appear, ministering to the daily needs of the residents and purchasing their agricultural produce for sale in the towns. It is an undeniable
fact that in many communities the alien has replaced the native retailer. He has shown in this trade, industry without limit, and the
patience and forbearance of a slave. Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and
insolent neighbors and customers are made in his face, but he heeds them not, and he forgets, and forgives. The community takes no note
of him, as he appears to be harmless and extremely useful.
c. Alleged alien control and dominance.—There is a general feeling on the part of the public, which appears to be true to fact, about the
controlling and dominant position that the alien retailer holds in the nation's economy. Food and other essentials, clothing, almost all
articles of daily life reach the residents mostly through him. In big cities and centers of population he has acquired not only
predominance, but apparent control aver distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs,
sugar, lour, garlic, and scores of other goods and articles. And were it not for some national corporations like the Naric, the Namarco, the
Facomas and the Accfa, his control over principal foods and products would easily become full and complete.
Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said that the fear is unfounded and
the threat is imagined; in another, it is charged that the law is merely the result of racialism and pure and unabashed nationalism.
Alienage, it is said, is not an element of control; also so many unmanageable factors in the retail business make control virtually impossible.
The irst argument which brings up an issue of fact merits serious consideration. The others are matters of opinion within the exclusive
competence of the legislature and beyond our prerogative to pass upon and decide.
The best evidence are the statistics on the retail trade, which put down the igures in black and white. Between the constitutional
convention year (1935), when the fear of alien domination and control of the retail trade already illed the minds of our leaders with fears
and misgivings, and the year of the enactment of the nationalization of the retail trade act (1954), of icial statistics unmistakably point out
to the ever-increasing dominance and control by the alien of the retail trade, as witness the following tables:

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Assets Gross Sales

Year and Retailer's No. Pesos Per cent Distribution Pesos Per cent
Nationality -Establis Distributi
hments on
1941:
Filipino 106,671 200,323, 55.82 174,181,924 5174
............... 138
Chinese 15,356 118,348, 32.98 148,8.13,23 44.21
.............. 692 9
Others 1,646 40,187,0 11.20 13,630,289 4.05
................ 90
1947:
Filipino 111,107 208,658, 65.05 279,583,888 57.03
.............. 946
Chinese 13,774 106,156, 33.56 205,701,134 41.96
................ 218
Otters ................ 354 8,761,26 ..49 4,927,168 1.01
0
1948: (Census)
Filipino.............. 118,681 213,842, 67.30 467,161,667 60.51

264
Chinese.............. 12,087 93,155,4 29.38 294,894,227 38.20
59
Others................ 422 10,514,6 3.32 9,995,402 1.29
.. 75
1949:
Filipino 113,659 213,461, 60.30 462,532,901 53.47

.............. 602
Chinese 16,248 125,223, 35.72 392,414,876 45.36
.............. 886
Others 486 12,066,3 3.39 10,078,364 1.17
................ 65
1951:
Filipino 119,362 224,053, 61.09 466,058,052 53.07

................ 620
Chinese 17,429 134,325, 36.60 404,481,384 46.06
.............. 303
Others ............... 347 8,614,02 2.31 7,645,327 .87
6
AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT
Item Gross Sales

Year and Assets (Pesos)
Retailer's
Nationality (Pesos)
1941:
Filipino .............................................................................. 1,878 1,638
Chinese................................................................................ 7,707 9,691

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Others.................................................................................. 24,416 8,281

1947:
Filipino................................................................................ 1,878 2,516
Chinese ................................................................................ 7,707 14,934
Others ................................................................................. 24,749 13,919
1948: (Census)
Filipino................................................................................ 1,878 4,111
Chinese ................................................................................ 7,707 24,398
Others.................................................................................. 24,916 23,686
1949:
Filipino................................................................................ 1,878 4,069
Chinese ................................................................................ 7,707 24,152
Others ................................................................................ 24,807 20,737
1951:
Filipino................................................................................. 1,877 3,905
Chinese ................................................................................ 7,707 33,207
Others .............................................................................. 24,824 22,033
(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships, while the igures on Filipino establishments already include mere
market vendors, whose capital is necessarily small.
The above igures reveal that in percentage distribution of assets and of gross sales, alien participation has steadily increased during the
years. It is true, of course, that Filipinos have the edge in the number of retailers, but aliens more than make up for the numerical gap
through their assets and gross sales which average between six and seven times those of the very many Filipino retailers. Numbers in
retailers, here, do not imply superiority; the alien invests more capital, buys and sells six to seven times more, and gains much more. The
same of icial report, pointing out to the known predominance of foreign elements in the retail trade, remarks that the Filipino retailers
were largely engaged in minor retailer enterprises. As observed by respondents, the native investment is thinly spread, and the Filipino
retailer is practically helpless in matters of capital, credit, price" and supply.
d. Alien control and threat, subject of apprehension in Constitutional Convention.—
It is this domination and control, which we believe has been suf iciently shown to exist, that is the legislature's target in the enactment of
the disputed nationalization law. If they did not exist as a fact the sweeping remedy of nationalization would never have been adopted.
The framers of our Constitution also believed in the existence of this alien dominance and control when they approved a resolution
categorically declaring among other things, that "it is the sense of the Convention that the public interest requires the nationalization of the
retail trade; * * *." (II Aruego, The Framing of the Philippine Constitution, 662— 663, quoted on page 67 of Petitioner.) That was twenty-
two years ago; and the events since then have not been either pleasant or comforting. Dean Sinco of the University of the Philippines
College of Law, commenting on the patrimony clause of the Preamble opines that the fathers of our Constitution were merely translating
the general preoccupation of Filipinos "of the dangers from alien interests that had already brought under their control the commercial
and other economic activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the members of the
constitutional convention for the economic life of the citizens, in connection with the nationalistic provisions of the Constitution, he says:
"But there has been a general feeling that alien dominance over the economic life of the country is not desirable and that if such a situation
should remain, political independence alone is no guarantee to national stability and strength. Filipino private capital is not big enough to
wrest from alien hands the control of the national economy. Moreover, it is but of recent formation and hence, largely inexperienced, timid
and hesitant. Under such conditions, the government as the instrumentality of the national will, has to step in and assume the initiative, if
not the leadership, in the struggle for the economic freedom of the nation in somewhat the same way that it did in the crusade for political
freedom. Thus * * * it (the Constitution) envisages an organized movement for the protection of the nation not only against the
possibilities of armed invasion but also against its economic subjugation by alien interests in the economic ield." (Phil. Political Law by
Sinco, 10th ed., p. 476.)Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen,
manufacturers and producers believe so; they fear the dangers coming from alien control, and they express sentiments of economic
independence. Witness thereto is Resolution No. 1, approved on July IS, 1958, of the Fifth National Convention of Filipino Businessmen,
and. a similar resolution, approved on March 20, 1954, of the Second National Convention of Manufacturers and Producers. The man in the
street also believes, and fears, alien predominance and control; so our newspapers, which have editorially pointed out not only to control

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but to alien stranglehold. We, therefore, ind alien domination and control to be a fact, a reality proved by of icial statistics, and felt by
all the sections and groups that compose the Filipino community.
e. Dangers of alien control and dominance in retail.—But the dangers arising from alien participation in the retail trade does not seem to
lie in the predominance alone; there is a prevailing feeling that such predominance may truly endanger the national interest. With
ample capital, unity of purpose and action and thorough organization, alien retailers and merchants can act in such complete unison and
concert on such vital matters as the ixing of prices, the determination of the amount of goods or articles to be made available in the market,
and even the choice of the goods or articles they would or would not patronize or distribute, that fears of dislocation of the national
economy and of the complete subservience of national retailers and of the consuming public are not entirely unfounded. Nationals,
producers and consumers alike, can be placed completely at their mercy. This is easily illustrated. Suppose an article of daily use is
desired to be prescribed by the aliens, because the producer or importer does not offer them suf icient pro its, or because a new competing
article offers bigger pro its for its introduction. All that aliens would do is to agree to refuse to sell the irst article, eliminating it from their
stocks, offering the new one as a substitute. Hence, the producers or importers of the prescribed article, or its consumers, ind the article
suddenly out of circulation. Freedom of trade is thus curtailed and free enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious in luences of alien domination. Grave abuses have
characterized the exercise of the retail trade by aliens. It is a fact within judicial notice, which courts of justice may not properly
overlook or ignore in the interests of truth and justice, that there exists a general feeling on the part of the public that alien participation in
the retail trade has been attended by a pernicious and intolerable practices, the mention of a few of which would suf ice for our purposes;
that at some time or other they have cornered the market of essential commodities, like corn and rice, creating arti icial scarcities to
justify and enhance pro its to unreasonable proportions; that they have hoarded essential foods to the inconvenience and prejudice of the
consuming public, so much so that the Government has had to establish the National Rice and Corn Corporation to save the public from
their continuous hoarding practices and tendencies; that they have violated price control laws, especially on foods and essential
commodities, such that the legislature had to enact a law (See. 9, Republic Act No. 1168), authorizing their immediate and automatic
deportation for price control convictions; that they have secret combinations among themselves to control prices, cheating the operation of
the law of supply and demand; that they have connived to boycott honest merchants and traders who would not cater or yield to their
demands, in unlawful restraint of freedom of trade and enterprise. They are believed by the public to have evaded tax laws, smuggled goods
and money into and out of the land, violated import and export prohibitions, control laws and the like, in derision and contempt of
lawful authority. It is also believed that they have engaged in corrupting public of icials with fabulous bribes, indirectly causing the
prevalence of graft and corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been made both by the
Government and by their own lawful diplomatic representatives, action which impliedly admits a prevailing feeling about the existence of
many of the above practices.
The circumstances above set forth create well founded fears that worse things may come in the future. The present dominance of the
alien retailer, especially in the big' centers of population, therefore, becomes a potential source of danger on occasions of war or other
calamity. We do not have here in this country isolated groups of harmless aliens retailing goods among nationals ; what we have are well
organized and powerful groups that dominate the distribution of goods and commodities in the communities and big centers of population.
They owe no allegiance or loyalty to the State, and the State cannot rely upon them in times of crisis or emergency. While the national
holds his life, his person and his property subject to the needs of his country, the alien may even become the potential enemy of the
State.
f. Law enacted in interest of national economic survival and security.—We are fully satis ied upon a consideration of all the facts and
circumstances that the disputed law is not the product of racial hostility, prejudice or discrimination, but the expression of the legitimate
desire and determinetion of the people, thru their authorized representatives, to free the nation from the economic situation that has
•unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The law is clearly in the interest of the public, nay of the
national security itself, and indisputably falls within the scope of police power, thru which and by which the State insures its existence
and security and the supreme welfare of its citizens.
VI. The Equal Protection Limitation

a. Objections to alien participation in retail trade.—The next question that now poses solution is, Does the law deny the equal protection of
the laws? As pointed out above, the mere fact of alienage is the root and cause of the distinction between the alien and the national as
a trader. The alien resident owes allegiance to the country of his birth or his adopted country; his stay here is for personal convenience;
he is attracted by the lure of gain and pro it. His aim or purpose of stay, we admit, is neither illegitimate nor immoral, but he is naturally
lacking in that spirit of loyalty and enthusiasm for this country where he temporarily stays and makes his living, or of that spirit' of
regard, sympathy and consideration for his Filipino customers as would prevent him from taking advantage of their weakness and
exploiting them. The faster he makes his pile, the earlier can the alien go back to his beloved country and his beloved kin and
countrymen. The experience of the country is that the alien retailer has shown such utter disregard for his customers and the people on
whom he makes his pro it, that it has been found necessary to adopt the legislation, radical as it may seem.

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Another objection to the alien retailer in this country is that he never really makes a genuine contribution to national income and wealth.
He undoubtedly contributes to general distribution, but the gains and pro its he makes are not invested in industries that would help the
country's economy and increase national wealth. The alien's interest in this country being merely transient and temporary, it would
indeed be ill-advised to continue entrusting the very important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out above, their secret manipulations of stocks of
commodities and prices, their utter disregard of the welfare of their customers and of the ultimate happiness of the people of the nation
of which they are mere guests, which practices, manipulations and disregard do not attend the exercise of the trade by the nationals, show
the existence of real and actual, positive and fundamental differences between an alien and a national which fully justify the legislative
classi ication adopted in the retail trade measure. These differences are certainly a valid reason for the State to prefer the national over
the alien in the retail trade.
We would be doing violence to fact and reality were we to hold that no reason or ground for a legitimate distinction can be found
between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction.—
The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual and real, furnish suf icient
grounds for legislative classi ication of retail traders into nationals and aliens. Some may disagree with the wisdom of the legislature's
classi ication. To this we answer, that this is the prerogative of the law-making power. Since the Court inds that the classi ication is actual,
real and reasonable, and all persons of one class are treated alike, and as it cannot be said that the classi ication is patently unreasonable
and unfounded, it is in duty bound to declare that the legislature acted within its legitimate prerogative and it cannot declare that the act
transcends the limit of equal protection established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classi ications among persons is not curtailed or denied by the
equal protection of the laws clause. The legislative power admits of a wide scope of discretion, and a law can be violative of the
constitutional limitation only when the classi ication is without reasonable basis. In addition to the authorities we have earlier cited, we
can also refer to the case of Lindsley vs. Natural Carbonic Gas Co. (1911), 55 L. ed., 369, which clearly and succinctly de ined the
application of equal protection clause to a law sought to be voided as contrary thereto:
'* * *1. the equal protection clause of the Fourteenth Amendment does not take from the state the power to classify in the adoption of
police laws, but admits of the exercise of the wide scope of discretion m that regard, and avoids what is done only when it is without any
reasonable basis, and therefore is purely arbitrary.
2. A classi ication having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety,
or because in practice it results in some inequality. 3. When the classi ication in such a law is called in question, if any state of facts
reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4.
One who assails the classi ication in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is
essentially arbitrary.'"c. Authorities recognizing citizenship as basis for classification.—The question as to whether or not citizenship
is a legal and valid ground for classi ication has already been af irmatively decided in this jurisdiction as well as in various courts in the
United States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil, 136, where the validity of Act No. 2761 of the Philippine Legislature
was in issue, because of a condition therein limiting the ownership of vessels engaged in coastwise trade to corporations formed by
citizens of the Philippine Islands or the United States, thus denying the right to aliens, it was held that the Philippine Legislature did not
violate the equal protection clause of the Philippine Bill of Rights. The Legislature in enacting the law had as ultimate purpose the
encouragement of Philippine shipbuilding and the safety for these Islands from foreign interlopers. We held that this was a valid exercise
of the police power, and all presumptions are in favor of its constitutionality. In substance, we held that the limitation of domestic
ownership of vessels engaged in coastwise trade to citizens of the Philippines does not violate the equal protection of the law and due
process of law clauses of the Philippine Bill of Rights. In rendering said decision we quoted with approval the concurring opinion of
Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows:
" 'Licensing acts, intact, in legislation, are universally restraining acts; as, for example, acts licensing1 gaming houses, retailers of spirituous
liquors, etc. The act, in this instance, is distinctly of that character, and forms part of an extensive system, the object of which is to
encourage American shipping, and place them on an equal footing with, the shipping of other nations. Almost every commercial 'nation
reserves to its own subjects a monopoly of its coasting trade; and a countervailing privilege in favor of American snipping is contemplated,
in the whole legislation of the United States on this subject. It is not to give the vessel an American character, that the license is granted;
that effect has been correctly attributed to the act of her enrollment. But it is to confer on her American privileges, as contradistinguished
from foreign; and to preserve the Government from fraud by foreigners; in surreptitiously intruding themselves into the American
commercial marine,, as well as frauds upon the revenue in the trade coastwise, that this whole system is projected.' "The rule in general is
as follows:
"Aliens are raider no special constitutional protection which forbids n classi ication otherwise justi ied simply because the limitation of the
class falls along the lines of nationality. That would be requiring a higher degree of protection for aliens as a class than for similar classes

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of American citizens. Broadly speaking, the difference in status between citizens and aliens constitutes a basis for reasonable classi ication
in the exercise of police power," (2 Am. Jur. 468-469.)In Commonwealth vs. Hana, 81 N. E. 149, (Massachusetts, 1907), a statute on the
licensing of hawkers and peddlers, which provided that no one can obtain a license unless he is, or has declared his intention, to become a
citizen of the United States, was held valid, for the following reason: It may seem wise to the legislature to limit the business of those who
are supposed to have regard for' the welfare, good order and happiness of the community, and the court cannot question this judgment
and conclusion. In Bloom ield vs. State, 99 N.E. 309 (Ohio, 1912), a statute which prevented certain persons, among them aliens, from
engaging in the traf ic of liquors, was found not to be the result of race hatred, or in hospitality, or a deliberate purpose to discriminate,
but was based on the belief that an alien cannot be suf iciently acquainted with 'our institutions and our life as to enable him to
appreciate the relation of this particular business to our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs.
Deckebach, 274 U.S. 392, 71 L. ed. 1115 (1926), the U. S. Supreme Court had under consideration an ordinance of the city of Cincinnati
prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly irrational discrimination against aliens is
prohibited, but it does not follow that alien race and allegiance may not bear in some instances such a relation to a legitimate object of
legislation as to be made the basis of permitted classi ication, and that it could not state that the legislation is clearly wrong; and that
latitude must be allowed for the legislative appraisement of local conditions and for the legislative choice of methods for controlling an
apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura, vs. City of
Seattle, 210 P. SO (Washington, 1922), the business of pawnbroking was considered as having tendencies injuring public interest, and
limiting it to citizens is within the scope of police power. A similar statute denying aliens the right to engage in auctioneering was also
sustained in Wright vs. May, L. R. A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 V. 340 (Oregon, 1924), the court
said that aliens are judicially known to have different interests, knowledge, attitude, psychology and loyalty, hence the prohibition of
issuance of licenses to them for the business of pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional
rights. In Templar vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as
barbers was held void, but the reason for the decision was the court's inding that the exercise of the business by the aliens does not in
any way affect the morals, the health, or even the convenience of the community. In Takahashi vs. Fish and Game Commission, 92 L. ed.
1479 (1947), a California statute banning the issuance of commercial ishing licenses to persons ineligible to citizenship was held void,
because the law con licts with Federal power over immigration, and because there is no public interest in the mere claim of ownership' of
the waters and the ish in them, so there was no adequate justi ication for the discrimination. It further added that the law was the
outgrowth of antagonism toward persons of Japanese ancestry. However, two Justices dissented on the theory that ishing rights have
been treated traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law
which imposed a tax on every employer of foreign-born unnaturalized male persons over 21 years of age, was declared void because the
court found that there was no reason for the classi ication and the tax was an arbitrary deduction from the daily wage of an employee.
d. Authorities contra explained.—It is true that some decisions of the Federal court and of the State courts in the United States hold that
the distinction between aliens and citizens is not a valid ground for classi ication. But in these decisions the laws declared invalid were
found to be either arbitrary, unreasonable or capricious, or were the result or product of racial antagonism and hostility, and there was no
question of public interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court
declared invalid a Philippine law making unlawful the keeping of books of account in any language other than English, Spanish or any
other local dialect, but the main reasons for the decisions are: (1) that if Chinese were driven out of business there would be no other
system of distribution, and (2) that the Chinese1 would fall prey to all kinds of fraud, because they would be deprived of their right to
be advised of their business and to direct its conduct. The real reason for the decision, therefore, is the court's belief that no public bene it
would be derived from the operation of the law and on the other hand it would deprive Chinese of something indispensable for carrying
on their business. In Yick Wo vs. Hopkins, 30 L. ed. 220 (1885) an ordinance conferring power on of icials to withhold consent in the
operation of laundries both as to persons and place, was declared invalid, but the court said that the power granted was arbitrary, that
there was no reason for the discrimination which attended the administration and implementation of the law, and that the motive thereof
was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to engage as hawkers and peddlers
was declared void, because the discrimination bore no reasonable and just relation to the act in respect to which the classi ication was
proposed. The case at bar is radically different, and the facts make them so. As we already have said, aliens do, not naturally possess the
sympathetic consideration and regard for customers with whom they come in daily contact, nor the patriotic desire to help bolster the
nation's economy, except in so far as it enhances their pro it, nor the loyalty and allegiance which the national owes to the land. These
limitations on the quali ications of aliens have been shown on many occasions and instances, especially in times of crisis and emergency.
We can do no better than borrow the language of Anton vs. "Van Winkle, 297 F. 340, 342, to drive home the reality and signi icance of the
distinction between the alien and the national, thus:
"* * *. It may be judicially known, however, that aliens coming into this country are without the intimate knowledge of our laws, customs,
and usages that our own, people have. So it is likewise known that certain, classes of aliens are of different psychology from our fellow
countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born, whose allegiance is irst to their own country, and
whose ideals of governmental environment and control have been engendered and formed under entirely different regimes and political
systems, have not the same inspiration for the public weal, nor are they as well disposed toward the United States, as those who by
citizenship, are a part of the government itself. Further enlargement, is unnecessary. I have said enough so that obviously it cannot be
af irmed with absolute con idence that the Legislature was without plausible reason for making the classi ication, and therefore appropriate

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discrimination against aliens as it relates to the subject of legislation. * * *."

VII The Due Process of Law Limitation
a. Reasonability, the test of the limitation; determination by legislature decisive.—
We now come to due process as a limitation on the exercise of the police power. It has been stated by the highest authority in the United
States that:
"* * *. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious,
and that the means selected shall, have a real and substantial relation to the subject sought to be attained. * * *."
* * * * * * *
"So far as the requirement of due process is concerned and in the absence of other constitutional restriction a state is free to adopt
whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its
purposed. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws
passed are seen to have a reasonable relation to a proper legislative purposed, and are neither arbitrary nor discriminatory, the
requirements of due process are satis ied, and judicial determination to that effect renders a court functus officio. * * *." (Nebbia vs New York,
78 L. ed. 940, 950, 957.)Another authority states the principle thus:
"* * *. Too much signi icance cannot be given to the word 'reasonable' in considering the scope of the police power in a constitutional sense,
for the test used to determine the constitutionality of the means employed by the legislature is to inquire whether the restrictions it
imposes on rights secured to individuals by the Bill of Eights are unreasonable, and not whether it imposes any restrictions on such rights. *
* *."
* * * * * * *
"* * *. A statute to be "within this power must also be reasonable in its operation upon the persons whom it affects, must not be for the
annoyance of a particular class, and must not be unduly oppressive." (11 Am. Jur. Sec. 302, pp. 1074-1075.)In the case of Lawton vs.
Steele, 38 L. ed. 385, 388, it was also held:
"* * *. To justify the state in thus interposing1 its authority in behalf of the public, it must appear, irst, that the interests of the public
generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary
for the accomplishment of the purpose, and not unduly oppressive upon individuals.* * *."Prata Undertaking Co. vs. State Board of
Embalming, 104 ALR, 389, 395, ixes this lest of constitutionality:
"In determining" whether a given act of the Legislature, passed in the exercise of the police power to regulate the operation of a business,
is or is not constitutional, one of the irst questions to be considered by the court is whether the power as exercised has a suf icient
foundation in reason in connection with the matter involved, or is an arbitrary, oppressive, and capricious use of that power, without
substantial relation to the health, safety, morals, comfort, and general "welfare of the public."b. Petitioner's argument
considered.—Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long ago recognized as
essential to the orderly pursuit of happiness by free men; that it is a gainful and honest occupation and therefore beyond the power of the
legislature to prohibit and penalize. This argument overlooks fact and reality and rests on an incorrect assumption and premise, i.e.,
that in this country where the occupation is engaged in by petitioner, it has been so engaged by him, by the alien, in an honest creditable
and unimpeachable manner, without harm or injury to the citizens and without ultimate danger to their economic peace, tranquility and
welfare. But the Legislature has found, as we have also found and indicated, that the 'privilege has been so grossly abused by the alien,
thru the illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control of the occupation and threatens a
deadly stranglehold on the nation's economy endangering the national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the facts and circumstances, but this, Is
the exclusion in the future of aliens from the retail trade unreasonable, arbitrary and capricious, taking into account the illegitimate and
pernicious form and manner in which the aliens have heretofore engaged therein? As thus correctly stated the answer is clear. The law in
question is deemed absolutely necessary to bring about the desired legislative objective, i.e., to free national economy from alien control and
dominance. It is not necessarily unreasonable because it affects private rights and. privileges (11 Am. Jur. pp. 1080-1081.) The test of
reasonableness of a law is the appropriateness or adequacy under all circumstances of the means adopted to carry out its purpose into
effect (Id.) Judged by this test, disputed legislation, which is not merely reasonable but actually necessary, must be considered not to have
infringed the constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied the bill, which later was enacted into law:
"This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of the Philippines from having a
strangle hold upon our economic life. If the persons who control this vital artery of our economic life are the ones who owe no allegiance to
this Republic, who have no profound devotion to our free institutions, and who have no permanent stake in our people's welfare, we are
not really the masters of our own destiny. All aspects of our life, even our national security, will be at the mercy of other people.

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"In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens of the Philippines of their means
of livelihood. While this bill seeks to take away from the hands of persons who are not citizens of the Philippines a power that can bo
wielded to paralyze all aspects of our national life and endanger our national security it respects existing rights.
"The approval of this bill is ¦necessary for our national survival."If political independence is a legitimate aspiration of a people, then
economic independence is none the less legitimate. Freedom and liberty are not real and positive if the people are subject to the
economic control and domination of others, especially if not of their own race or country. . The removal and eradication of the shackles of
foreign economic control and domination,, is one of the noblest motives that a national legislature may pursue. It is impossible to
conceive that legislation that seeks to bring it about can infringe the constitutional limitation of due process.. The attainment of a.
legitimate aspiration of a people can never be beyond the limits of legislative authority.
c. Law expressly held by Constitutional .Convention to be within the sphere of legislative action.—The framers of the Constitution could not
have intended to impose the constitutional restrictions of due process on the attainment of such a noble motive as freedom from
economic control and domination, thru the exercise of the police power. The fathers of the . Constitution must have given to the
legislature full authority and power to enact legislation that would promote the supreme happiness of the people, their freedom and liberty.
On the precise issue now before us, they expressly made their voice clear; they adopted a resolution expressing their belief that the
legislation in question is within the scope of the legislative power. Thus they declared' in their Resolution:
" 'That it is the sense of the Convention that the public interest requires the nationalization of retail trade; but it abstains from approving the
amendment introduced by the Delegate for Manila, Mr. Araneta, and others on this matter because it is convinced that the National Assembly
is authorized to promulgate a law which limits to Filipino and American citizens the privilege to engage in the retail trade.' " (II Aruego,
The Framing of the Philippine Constitution, 662-663, quoted on pages 66 and 67 of the Memorandum for the Petitioner.)It would do well to
refer to the nationalistic tendency manifested in various provisions of the Constitution. Thus in the preamble, a principal objective is the
conservation of the patrimony of the nation and as corollary thereto the provision limiting to citizens of the Philippines the exploitation,
development and utilization of its natural resources. And in Section 8 of Article XIV, it is provided that "no franchise, certi icate, or any
other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines." The. nationalization
of the retail trade is only a continuance of the nationalistic protective policy laid down as a primary objective of the Constitution. Can it
be said that a law imbued with the same purpose and spirit underlying many of the provisions of the Constitution is unreasonable,
invalid and unconstitutional?
The seriousness of the Legislature's concern for the plight of the ' nationals as manifested in the approval of the radical measure is,
therefore, fully justi ied. It would have been recreant to its duties towards the country and its people would it view the sorry plight of
the nationals with complacency and refuse or neglect to adopt a remedy commensurate with the demands of public interest and national
survival. As the repository of the sovereign power of legislation, the Legislature was in duty bound to face the problem and meet, through
adequate measures, the danger and threat that alien domination of retail trade poses to national economy.
d. Provisions of law not unreasonable.—.A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those already engaged in the occupation to
continue therein during the rest of their lives; and similar recognition of the right to continue is accorded associations of alians. The
right or privilege is denied to those only upon conviction of certain offenses. In the deliberations of the Court on this case, attention was
called to the fact that the privilege should not have been denied to children and heirs of aliens now engaged in the retail trade. Such
provision would defeat the law itself, its aims and purposes. Besides, the exercise of legislative discretion is not subject to judicial review.
It is well settled that the Court will not inquire into the motives of the Legislature, nor pass upon general matters of legislative
judgment. The Legislature is primarily the judge of the necessity of an enactment or of any of its provisions, and every presumption is in
favor of its validity, and though the Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if not
palpably in excess of the legislative power. Furthermore, the test of the validity of a law attacked as a violation of due process, is not its
reasonableness, but its, unreasonableness, and we ind the provisions are not unreasonable. These principles also answer various
other arguments raised against the law, some of which are: that the law does not promote general welfare; that thousands of aliens would
be thrown out of employment; that prices will increase because of the elimination of competition; that there is no need for the legislation;
that adequate replacement is problematical; that there may be general breakdown; that there would be repercussions from foreigners;
etc. Many of these arguments are directed against the supposed wisdom of the law which lies solely within the legislative prerogative; they
do not import invalidity.
VIII. Alleged defect in the title of the lawA subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof
is misleading or deceptive, as it conceals the real purpose of the bill, which is to nationalize the retail business and prohibit aliens from
engaging therein. The constitutional provision which is claimed to be violated in Section 21 (1) of Article VI, which reads:
"No bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill."What the above
provision prohibits is duplicity, that is, if its title completely fails to apprise the legislators or the public of the nature, scope and
consequences of the law or its operation (I Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and
the provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate" does not and may not readily and at irst

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glance convey the idea of "nationalization" and "prohibition", which terms express the two main purposes and objectives of the law. But
"regulate" is a broader term than either prohibition or nationalization. Both of these have always been included within the term
regulation.
"Under the. title of an act to 'regulate', the sale of intoxicating liquors, the Legislature may prohibit the sale of intoxicating liquors." (Sweet vs.
City of Wabash, 41 Ind., 7; quoted in page AX of Answer.)
"Within the meaning of the Constitution requiring that the subject of every act of the Legislature shall he stated in the title, the title 'To
regulate the sale of intoxicating liquors, etc." suf iciently expresses the subject of an act prohibiting the sale of such liquors to minors and
to persons in the habit of getting intoxicated; such matters being properly included within the subject of regulating the sale." (Williams
vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.)
"The word 'regulate' is of broad import, and necessarily implies some degree of restraint and prohibition of acts usually done in connection
with the thing to be regulated. While word regulate' does not ordinarily convey meaning of prohibit, there is no absolute reason why it
should not have such meaning when used in delegating police power in connection with a thing the best or only ef icacious regulation of
which involves suppression." (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)The general rule is for the use of
general terms, in the title of a bill; it has also been said that the title need not be an index to the entire contents of the law (I Sutherland,
Statutory Construction, Sec. 4803, p. 345.) The above rule was followed when the title of the Act in question adopted the more general term
"regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules for the regulation of the retail trade, which
may not be included in the terms "nationalization" or "prohibition"; so were the title changed from "regulate" to "nationalize" or "prohibit",
there would have been many provisions not falling within the scope of the title which would have made the Act invalid. The use of the
term "regulate", therefore, is in accord with the principle governing the drafting of statutes, under which a simple or general term should be
adopted in the title, which would include all other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of the
purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have not received the notice, action
and study of the legislators or of the public. In the case at bar it cannot be claimed that the legislators have not been apprised of the nature
of the law, especially the nationalization and prohibition provisions. The legislators took active interest in the discussion of the law, and a
great many of the persons affected by the prohibition in the law conducted a campaign against its approval. It cannot be claimed, therefore,
that the reasons for declaring the law invalid ever existed. The objection must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation thereby of the Charter of the United Nations and of
the Declaration of Human Eights adopted by the United Nations General Assembly. We ind no merit in the above contention. The United
Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United
Nations, 1951 ed. pp. 29- 32), and the Declaration of Human Rights contains nothing more than a mere recommendation, or a common
standard of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the United Nations Charter aid of the
Declaration of Human Rights can be inferred from the fact that members of the United Nations Organization, such as Norway and Denmark,
prohibit foreigners from engaging in retail trade, and in most nations of the world laws against foreigners engaged in domestic trade are
adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is also claimed, to be violated by the
law in question. All that the treaty guarantees is equality of treatment to the Chinese nationals "upon the same terms as the nationals of
any other country." But the nationals of China are not discriminated against because nationals of all other countries, except those of the
United States, who are granted special rights by the Constitution, are all prohibited from engaging in the retail trade. But even supposing
that the law infringes upon the said treaty, the treaty is always subject to quali ication or amendment by a subsequent law (U. S. vs.
Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict the scope of the police power of the State (Palston vs.
Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual threat and danger to national
economy posed by alien dominance and control of the retail business and free citizens and country from such dominance and control; that
the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its own personality and
insures its security and future; that the law does not violate the equal protection clause of the Constitution because suf icient grounds exist
for the distinction between alien and citizen in the exercise of the occupation regulated, nor the due process of law clause, because the
law is prospective in operation and recognizes the privilege of aliens already engaged in the occupation and reasonably protects their

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privilege; that the wisdom and ef icacy of the law to carry out its objectives appear to us to be plainly evident—as a matter of fact it seems
not only appropriate but actually necessary—and that in any case such matter falls within the prerogative of the Legislature, with whose
power and discretion the Judicial department of the Government may not interfere; that the provisions of the law are clearly embraced in
the title, and this suffers from no duplicity and has not misled the legislators or the segment of the population affected; and that it cannot
be said to be void for supposed con lict with treaty obligations because no treaty has actually been entered into on the subject and the
police power may not be curtailed or surrendered by any treaty or any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law could have been made less harsh in its impact on the
aliens. Thus it is stated that more time should have been given in the law for the liquidation of existing businesses when the time comes for
them to dose. Our legal duty, however, is merely to determine if the law falls within the scope of legislative authority and does not
transcend the limitations of due process and equal protection guaranteed in the Constitution. Remedies against the harshness of the law
should be addressed to the Legislature; they are beyond our power and jurisdiction.
The petition is hereby denied, with costs against petitioner.
Paras, C. J., Bengzon, Reyes, A., Bautista Angela, Concepcion, Reyes, J. B. L., Endencia, and Felix, J.J., concur.
CONCURRING AND DISSENTING
PADILLA, J.,
I agree to the proposition, principle or rule that courts may not Inquire into the wisdom of an Act passed by the Congress and duly
approved by the President of the Republic. But the rule does not preclude courts from inquiring and determining whether the Act offends
against a provision or provisions of the Constitution. I am satis ied that the Act assailed as violative of the due process of law and the equal
protection of the laws clauses of the Constitution does not infringe upon them, insofar as it affects associations, partnerships or
corporations, the capital of which is not wholly owned by citizens of the Philippines, and aliens, who are not and have not been engaged
in the retail business. I am, however, unable to persuade myself that it does not violate said clauses insofar as the Act applies to
associations and partnerships referred to in "the Act' and to aliens, who are and have heretofore been engaged in said business; When
they did engage in the retail business there was no prohibition on or against them to engage in it. They assumed and believed in good faith
they were entitled to engage in the business. The Act allows aliens to continue in business until their death or voluntary retirement from
the business or forfeiture of their license; and corporations, associations or partnerships, the capital of which is not wholly owned by
citizens of the Philippines to continue in the business for a period of ten years from the date of the approval of the Act (19 June 19S4) or
until the expiry of the term of the existence of the association or partnership or corporation, whichever event comes irst. The prohibition
on corporations, the capital of which is not wholly owned by citizens of the Philippines, to engage in the retail business for a period of
more than ten years from the date of the approval of the Act or beyond the term of their corporate existence, whichever event comes irst,
is valid and lawful, because the continuance of the existence of such corporations is subject to whatever the Congress may impose
reasonably upon them by subsequent legislation[1] But the prohibition to engage in the retail business by associations and partnerships, the
capital of which is not wholly owned by citizens of the Philippines, after ten years from the date of the approval of the Act, even before the
end of the term of their existence as agreed upon by the associates and partners, and by alien heirs to whom the retail business is
transmitted by the death of an alien engaged in the business, or by his executor or administrator, amounts to a deprivation of their
property without due process of law. To my mind, the ten-year period from the date of the approval of the Act or until the expiration of the
term of the existence of the association and partnership, whichever event comes irst, and the six-month period granted to alien heirs of a
deceased alien, his executor or administrator, to liquidate the business, do not cure the defect of the law, because the effect of the
prohibition is to compel them to sell or dispose of their business. The price obtainable at such forced sale of the business would be
inadequate to reimburse and compensate the associates or partners of the association or partnership, and the alien heirs of a deceased
alien, engaged in the retail business for the capital invested in it. The stock of merchandise bought and sold at retail does not alone
constitute the business. The goodwill that the association, partnership and the alien had built up during a long period of effort, patience
and perseverance forms part of such business. The constitutional provisions that no person shall be deprived of his property without due
[1]
process of law and that no person shall be denied the equal protection of the laws[2] would have no meaning as applied to associations or
partnerships and alien heirs of an alien engaged in the retail business if they were to be compelled to sell or dispose of their business within
ten years from the date of the approval of the Act and before the end of the term of the existence of the associations and partnerships as
agreed upon by the associates and partners and within six months after the death of their predecessor-in-interest.

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The authors of the Constitution were vigilant, careful and zealous in the safeguard of the ownership of private agricultural lands which
together with the lands of the public domain constitute the priceless patrimony and mainstay of the nation; yet, they did not deem it wise
and prudent to deprive aliens and their heirs of such lands.[3]
For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels associations and partnerships referred to therein to
wind up their retail business within ten years from the date of the approval of the Act even before the expiry of the term of their existence as
agreed upon by the associates and partners and section 3 of the Act, insofar as it compels the alien heirs of a deceased alien engaged in the
retail business in his lifetime, his executor or administrator, to liquidate the business, are invalid, for they violate the due process of law and
the equal protection of the laws clauses of the Constitution.
The Paquete Habana, 175 U.S. 677 (1900)

The Paquete Habana
Nos. 895-896
Argued November 7-8, 1899
Decided January 8, 1900
175 U.S. 677 (1900)
APPEALS FROM THE DISTRICT COURT OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF FLORIDA
Syllabus
Under the Act of Congress of March 3, 1891, c. 517, this Court has jurisdiction of appeals from all final sentences and decrees in prize
causes, without regard to the amount in dispute and without any certificate of the district judge as to the importance of the particular
case.
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often
as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as
evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to
be, but for trustworthy evidence of what the law really is.
At the present day, by the general consent of the civilized nations of the world and independently of any express treaty or other public
act, it is an established rule of international law that coast fishing vessels, with their implements and supplies, cargoes and crews,
unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war.
And this rule is one which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the
absence of any treaty or other public act of their own government in relation to the matter.
At the breaking out of the recent war with Spain, two fishing smacks -- the one a sloop, 43 feet long on the keel and of 25 tons burden,
and with a crew of three men, and the other a schooner, 51 feet long on the keel and of 35 tons burden, and with a crew of six men --
were regularly engaged in fishing on the coast of Cuba, sailing under the Spanish flag, and each owned by a Spanish subject, residing
in Havana; her crew, who also resided there, had no interest in the vessel, but were entitled to shares, amounting in all to two thirds, of
her catch, the other third belonging to her owner, and her cargo consisted of fresh fish, caught by her crew from the sea, put on board
as they were caught, and kept and sold alive. Each vessel left Havana on a coast fishing voyage, and sailed along the coast of Cuba
about two hundred miles to the west end of the island; the sloop there fished for twenty-five days in the territorial waters of Spain, and
the schooner extended her fishing trip a hundred
Page 175 U. S. 678
miles farther across the Yucatan Channel, and fished for eight days on the coast of Yucatan. On her return, with her cargo of live fish,
along the coast of Cuba, and when near Havana, each was captured by one of the United States blockading squadron. Neither fishing
vessel had any arms or ammunition on board, had any knowledge of the blockade, or even of the war, until she was stopped by a
blockading vessel, made any attempt to run the blockade, or any resistance at the time of her capture, nor was there any evidence that
she, or her crew, was likely to aid the enemy. Held that both captures were unlawful, and without probable cause.
The cases are stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
These are two appeals from decrees of the District Court of the United States for the Southern District of Florida condemning two
fishing vessels and their cargoes as prize of war.
Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in fishing on the coast of Cuba; sailed under the
Spanish flag; was owned by a Spanish subject of Cuban birth, living in the City of Havana; was commanded by a subject of Spain, also
residing in Havana, and her master and crew had no interest in the vessel, but were entitled to shares, amounting in all to two-thirds, of
her catch, the other third belonging to her owner. Her cargo consisted of fresh fish, caught by her crew from the sea, put on board as

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they were caught, and kept and sold alive. Until stopped by the blockading squadron, she had no knowledge of the existence of the war
or of any blockade. She had no arms or ammunition on board, and made no attempt to run the blockade after she knew of its existence,
nor any resistance at the time of the capture.
The Paquete Habana was a sloop, 43 feet long on the keel,
Page 175 U. S. 679
and of 25 tons burden, and had a crew of three Cubans, including the master, who had a fishing license from the Spanish government,
and no other commission or license. She left Havana March 25, 1898, sailed along the coast of Cuba to Cape San Antonio at the
western end of the island, and there fished for twenty-five days, lying between the reefs off the cape, within the territorial waters of
Spain, and then started back for Havana, with a cargo of about 40 quintals of live fish. On April 25, 1898, about two miles off Mariel, and
eleven miles from Havana, she was captured by the United States gunboat Castine.
The Lola was a schooner, 51 feet long on the keel, and of 35 tons burden, and had a crew of six Cubans, including the master, and no
commission or license. She left Havana April 11, 1898, and proceeded to Campeachy Sound, off Yucatan, fished there eight days, and
started back for Havana with a cargo of about 10,000 pounds of live fish. On April 26, 1898, near Havana, she was stopped by the
United States steamship Cincinnati, and was warned not to go into Havana, but was told that she would be allowed to land at Bahia
Honda. She then changed her course, and put for Bahia Honda, but on the next morning, when near that port, was captured by the
United States steamship Dolphin.
Both the fishing vessels were brought by their captors into Key West. A libel for the condemnation of each vessel and her cargo as prize
of war was there filed on April 27, 1898; a claim was interposed by her master on behalf of himself and the other members of the crew,
and of her owner; evidence was taken, showing the facts above stated, and on May 30, 1898, a final decree of condemnation and sale
was entered,
"the court not being satisfied that as a matter of law, without any ordinance, treaty, or proclamation, fishing vessels of this class are
exempt from seizure."
Each vessel was thereupon sold by auction; the Paquete Habana for the sum of $490 and the Lola for the sum of $800. There was no
other evidence in the record of the value of either vessel or of her cargo.
It has been suggested in behalf of the United States that
Page 175 U. S. 680
this Court has no jurisdiction to hear and determine these appeals because the matter in dispute in either case does not exceed the
sum or value of $2,000, and the district judge has not certified that the adjudication involves a question of general importance.
The suggestion is founded on § 695 of the Revised Statutes, which provides that
"an appeal shall be allowed to the Supreme Court from all final decrees of any district court in prize causes, where the matter in dispute,
exclusive of costs, exceeds the sum or value of two thousand dollars, and shall be allowed, without reference to the value of the matter
in dispute, on the certificate of the district judge that the adjudication involves a question of general importance."
The Judiciary Acts of the United States, for a century after the organization of the government under the Constitution, did impose
pecuniary limits upon appellate jurisdiction.
In actions at law and suits in equity the pecuniary limit of the appellate jurisdiction of this Court from the circuit courts of the United
States was for a long time fixed at $2000. Acts of September 24, 1789, c. 20, § 22; 1 Stat. 84; March 3, 1803, c. 40; 2 Stat. 244;
Gordon v. Ogden, 3 Pet. 33; Rev.Stat. §§ 691, 692. In 1875, it was raised to $5,000. Act of February 16, 1875, c. 77, § 3; 18 Stat. 316.
And in 1889 this was modified by providing that, where the judgment or decree did not exceed the sum of $5,000, this Court should
have appellate jurisdiction upon the question of the jurisdiction of the circuit court, and upon that question only. Act of February 25,
1889, c. 236, § 1; 25 Stat. 693; Parker v. Ormsby, 141 U. S. 81.
As to cases of admiralty and maritime jurisdiction, including prize causes, the Judiciary Act of 1789, in § 9, vested the original
jurisdiction in the district courts, without regard to the sum or value in controversy, and in § 21 permitted an appeal from them to the
circuit courts where the matter in dispute exceeded the sum or value of $300. 1 Stat. 77, 83, c. 20; The Betsey, 3 Dall. 6, 3 U. S. 16;
The Amiable Nancy, 3 Wheat. 546; Stratton v. Jarvis, 8 Pet. 4, 33 U. S. 11. By the Act of March 3, 1803, c. 40, appeals to the circuit
court were permitted from all final decrees of a district court where
Page 175 U. S. 681
the matter in dispute exceeded the sum or value of $50, and from the circuit courts to this Court in all cases "of admiralty and maritime
jurisdiction, and of prize or no prize" in which the matter in dispute exceeded the sum or value of $2,000. 2 Stat. 244; Jenks v. Lewis, 3
Mason 503; Stratton v. Jarvis, above cited; The Admiral,3 Wall. 603, 70 U. S. 612. The acts of March 3, 1863, c. 86, § 7, and June 30,
1864, c. 174, § 13, provided that appeals from the district courts in prize causes should lie directly to this Court, where the amount in
controversy exceeded $2,000, or "on the certificate of the district judge that the adjudication involves a question of difficulty and general
importance." 12 Stat. 760; 13 Stat. 310. The provision of the act of 1803, omitting the words "and of prize or no prize," was reenacted in
§ 692 of the Revised Statutes, and the provision of the act of 1864, concerning prize causes, was substantially reenacted in § 695 of
the Revised Statutes, already quoted.

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But all this has been changed by the Act of March 3, 1891, c. 517, establishing the circuit courts of appeals and creating a new and
complete scheme of appellate jurisdiction, depending upon the nature of the different cases, rather than upon the pecuniary amount
involved. 26 Stat. 826.
By that act, as this Court has declared, the entire appellate jurisdiction from the circuit and district courts of the United States was
distributed, "according to the scheme of the act," between this Court and the circuit courts of appeals thereby established, "by
designating the classes of cases" of which each of these courts was to have final jurisdiction. McLish v. Roff, 141 U. S. 661, 141 U. S.
666; American Construction Co. v. Jacksonville Railway, 148 U. S. 372, 148 U. S. 382; Carey v. Houston & Texas Railway, 150 U. S.
170, 150 U. S. 179.
The intention of Congress, by the act of 1891, to make the nature of the case, and not the amount in dispute, the test of the appellate
jurisdiction of this Court from the district and circuit courts clearly appears upon examination of the leading provisions of the act.
Section 4 provides that no appeal, whether by writ of error or otherwise, shall hereafter be taken from a district court
Page 175 U. S. 682
to a circuit court, but that all appeals, by writ of error or otherwise, from the district courts "shall only be subject to review" in this Court
or in the circuit court of appeal "as is hereinafter provided," and "the review by appeal, by writ of error, or otherwise" from the circuit
courts, "shall be had only" in this Court or in the circuit court of appeals, "according to the provisions of this act regulating the same."
Section 5 provides that "appeals or writs of error may be taken from the district courts, or from the existing circuit courts, direct to the
Supreme Court, in the following cases:"
First.
"In any case in which the jurisdiction of the court is in issue; in such cases, the question of jurisdiction alone shall be certified to the
Supreme Court from the court below for decision."
This clause includes "any case," without regard to amount, in which the jurisdiction of the court below is in issue, and differs in this
respect from the act of 1889, above cited.
Second. "From the final sentences and decrees in prize causes." This clause includes the whole class of "the final sentences and
decrees in prize causes," and omits all provisions of former acts regarding amount in controversy, or certificate of a district judge.
Third. "In cases of conviction of a capital or otherwise infamous crime." This clause looks to the nature of the crime, and not to the
extent of the punishment actually imposed. A crime which might have been punished by imprisonment in a penitentiary is an infamous
crime, even if the sentence actually pronounced is of a small fine only. Ex Parte Wilson, 114 U. S. 417, 114 U. S. 426. Consequently,
such a sentence for such a crime was subject to the appellate jurisdiction of this Court, under this clause, until this jurisdiction, so far as
regards infamous crimes, was transferred to the circuit court of appeals by the Act of January 20, 1897, c. 68. 29 Stat. 492.
Fourth. "In any case, that involves the construction or application of the Constitution of the United States."
Fifth.
"In any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its
authority, is drawn in question. "
Page 175 U. S. 683
Sixth. "In any case in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States."
Each of these last three clauses, again, includes "any case" of the class mentioned. They all relate to what are commonly called federal
questions, and cannot reasonably be construed to have intended that the appellate jurisdiction of this Court over such questions should
be restricted by any pecuniary limit -- especially in their connection with the succeeding sentence of the same section:
"Nothing in this act shall affect the jurisdiction of the Supreme Court in cases appealed from the highest court of a state, nor the
construction of the statute providing for review of such cases."
Writs of error from this Court to review the judgments of the highest court of a state upon such questions have never been subject to
any pecuniary limit. Act of September 24, 1789, c. 20, § 25; 1 Stat. 85; Buel v. Van Ness, 8 Wheat. 312; Act of February 5, 1867, c. 28,
§ 2; 14 Stat. 386; Rev.Stat. § 709.
By section 6 of the act of 1891, this Court is relieved of much of the appellate jurisdiction that it had before; the appellate jurisdiction
from the district and circuit courts "in all cases other than those provided for in the preceding section of this act, unless otherwise
provided by law," is vested in the circuit court of appeals, and its decisions in admiralty cases, as well as in cases arising under the
criminal laws, and in certain other classes of cases, are made final, except that that court may certify to this Court questions of law, and
that this Court may order up the whole case by writ of certiorari. It is settled that the words "unless otherwise provided by law," in this
section, refer only to provisions of the same act, or of contemporaneous or subsequent acts, and do not include provisions of earlier
statutes. Lau Ow Bew v. United States, 144 U. S. 47,144 U. S. 57; Hubbard v. Soby, 146 U. S. 56; American Construction Co. v.
Jacksonville Railway, 148 U. S. 372, 148 U. S. 383.
The act of 1891 nowhere imposes a pecuniary limit upon the appellate jurisdiction, either of this Court or of the circuit court of appeals,
from a district or circuit court of the United States. The only pecuniary limit imposed is one of

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Page 175 U. S. 684
$1,000 upon the appeal to this Court of a case which has been once decided on appeal in the circuit court of appeals, and in which the
judgment of that court is not made final by section 6 of the act.
Section 14 of the act of 1891, after specifically repealing section 691 of the Revised Statutes and section 3 of the act of February 16,
1875, further provides that
"all acts and parts of acts relating to appeals or writs of error, inconsistent with the provisions for review by appeals or writs of error in
the preceding sections 5 and 6 of this act, are hereby repealed."
26 Stat. 829, 830. The object of the specific repeal, as this Court has declared, was to get rid of the pecuniary limit in the acts referred
to. McLish v. Roff, 141 U. S. 661, 141 U. S. 667. And, although neither section 692 nor section 695 of the Revised Statutes is repealed
by name, yet, taking into consideration the general repealing clause, together with the affirmative provisions of the act, the case comes
within the reason of the decision in an analogous case, in which this Court said:
"The provisions relating to the subject matter under consideration are, however, so comprehensive, as well as so variant from those of
former acts, that we think the intention to substitute the one for the other is necessarily to be inferred, and must prevail."
Fisk v. Henarie, 142 U. S. 459, 142 U. S. 468.
The decision in this Court in the recent case of United States v. Rider, 163 U. S. 132, affords an important, if not controlling, precedent.
From the beginning of this century until the passage of the act of 1891, both in civil and in criminal cases, questions of law upon which
two judges of the circuit court were divided in opinion might be certified by them to this Court for decision. Act of April 29, 1802, c. 31, §
6; 2 Stat. 159; June 1, 1872, c. 255, § 1; 17 Stat.196; Rev.Stat. §§ 650-652, 693, 697; Insurance Co. v. Dunham, 11 Wall. 1, 78 U. S.
21; United States v. Sanges, 144 U. S. 310, 144 U. S. 320. But in United States v. Rider, it was adjudged by this Court that the act of
1891 had superseded and repealed the earlier acts authorizing questions of law to be certified from the circuit court to this Court, and
the grounds of that adjudication sufficiently appear by
Page 175 U. S. 685
the statement of the effect of the act of 1891 in two passages of that opinion:
"Appellate jurisdiction was given in all criminal cases by writ of error either from this Court or from the circuit courts of appeals, and in all
civil cases by appeal or error, without regard to the amount in controversy, except as to appeals or writs of error to or from the circuit
courts of appeals in cases not made final as specified in § 6. . . . It is true that repeals by implication are not favored, but we cannot
escape the conclusion that, tested by its scope, its obvious purpose, and its terms, the Act of March 3, 1891, covers the whole subject
matter under consideration, and furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error, or certificate."
163 U. S. 163 U.S. 138, 163 U. S. 140.
That judgment was thus rested upon two successive propositions: first, that the act of 1891 gives appellate jurisdiction, either to this
Court or to the circuit court of appeals, in all criminal cases, and in all civil cases "without regard to the amount in controversy;" second,
that the act, by its terms, its scope, and its obvious purpose, "furnishes the exclusive rule in respect of appellate jurisdiction on appeal,
writ of error, or certificate."
As was long ago said by Chief Justice Marshall,
"the spirit as well as the letter of a statute must be respected, and where the whole context of the law demonstrates a particular intent in
the legislature to effect a certain object, some degree of implication may be called in to aid that intent."
Durousseau v. United States, 6 Cranch 307, 10 U. S. 314. And it is a well settled rule in the construction of statutes, often affirmed and
applied by this Court, that,
"even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new
provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act."
United States v. Tynen, 11 Wall. 88, 78 U. S. 92; King v. Cornell, 106 U. S. 395, 106 U. S. 396; Tracy v. Tuffly, 134 U. S. 206, 134 U. S.
223; Fisk v. Henarie, 142 U. S. 459, 142 U. S. 468; District of Columbia v. Hutton, 143 U. S. 18,143 U. S. 27; United States v. Healey,
160 U. S. 136, 160 U. S. 147.
We are of opinion that the act of 1891, upon its face, read
Page 175 U. S. 686
in the light of settled rules of statutory construction and of the decisions of this Court, clearly manifests the intention of Congress to
cover the whole subject of the appellate jurisdiction from the district and circuit courts of the United States, so far as regards in what
cases, as well as to what courts, appeals may be taken, and to supersede and repeal, to this extent, all the provisions of earlier acts of
Congress, including those that imposed pecuniary limits upon such jurisdiction, and, as part of the new scheme, to confer upon this
Court jurisdiction of appeals from all final sentences and decrees in prize causes, without regard to the amount in dispute, and without
any certificate of the district judge as to the importance of the particular case.
We are then brought to the consideration of the question whether, upon the facts appearing in these records, the fishing smacks were
subject to capture by the armed vessels of the United States during the recent war with Spain.

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By an ancient usage among civilized nations, beginning centuries ago and gradually ripening into a rule of international law, coast
fishing vessels pursuing their vocation of catching and bringing in fresh fish have been recognized as exempt, with their cargoes and
crews, from capture as prize of war.
This doctrine, however, has been earnestly contested at the bar, and no complete collection of the instances illustrating it is to be found,
so far as we are aware, in a single published work, although many are referred to and discussed by the writers on international law,
notable in 2 Ortolan, Regles Internationales et Diplomatie de la Mer (4th ed.) lib. 3, c. 2, pp. 51-56; in 4 Calvo, Droit International (5th
ed.) §§ 2367-2373; in De Boeck, Propriete Privee Ennemie sous Pavillon Ennemi, §§ 191-196, and in Hall, International Law (4th ed.) §
148. It is therefore worth the while to trace the history of the rule from the earliest accessible sources through the increasing recognition
of it, with occasional setbacks, to what we may now justly consider as its final establishment in our own country and generally
throughout the civilized world.
The earliest acts of any government on the subject mentioned
Page 175 U. S. 687
in the books either emanated from, or were approved by, a King of England.
In 1403 and 1406, Henry IV issued orders to his admirals and other officers, entitled "Concerning Safety for Fishermen -- De Securitate
pro Piscatoribus." By an order of October 26, 1403, reciting that it was made pursuant to a treaty between himself and the King of
France, and for the greater safety of the fishermen of either country, and so that they could be, and carry on their industry, the more
safely on the sea, and deal with each other in peace, and that the French King had consented that English fishermen should be treated
likewise, it was ordained that French fishermen might, during the then pending season for the herring fishery, safely fish for herrings and
all other fish from the harbor of Gravelines and the Island of Thanet to the mouth of the Seine and the harbor of Hautoune. And by an
order of October 5, 1406, he took into his safe conduct and under his special protection, guardianship, and defense all and singular the
fishermen of France, Flanders, and Brittany, with their fishing vessels and boats, everywhere on the sea, through and within his
dominions, jurisdictions, and territories, in regard to their fishery, while sailing, coming, and going, and at their pleasure, freely and
lawfully fishing, delaying, or proceeding, and returning homeward with their catch of fish, without any molestation or hindrance
whatever, and also their fish, nets, and other property and goods soever, and it was therefore ordered that such fishermen should not
be interfered with, provided they should comport themselves well and properly, and should not, by color of these presents, do or
attempt, or presume to do or attempt, anything that could prejudice the King, or his Kingdom of England, or his subjects. 8 Rymer's
Foedera 336, 451.
The treaty made October 2, 1521, between the Emperor Charles V and Francis I of France, through their ambassadors, recited that a
great and fierce war had arisen between them, because of which there had been, both by land and by sea, frequent depredations and
incursions on either side, to the grave detriment and intolerable injury of the innocent
Page 175 U. S. 688
subjects of each, and that a suitable time for the herring fishery was at hand, and, by reason of the sea being beset by the enemy, the
fishermen did not dare to go out, whereby the subject of their industry, bestowed by heaven to allay the hunger of the poor, would
wholly fail for the year unless it were otherwise provided -- quo fit, ut piscaturae commoditas, ad pauperum levandam famen a coelesti
numine concessa, cessare hoc anno omnino debeat, nisi aliter provideatur. And it was therefore agreed that the subjects of each
sovereign, fishing in the sea or exercising the calling of fishermen, could and might, until the end of the next January, without incurring
any attack, depredation, molestation, trouble, or hindrance soever, safely and freely, everywhere in the sea, take herrings and every
other kind of fish, the existing war by land and sea notwithstanding; and, further, that, during the time aforesaid, no subject of either
sovereign should commit, or attempt or presume to commit, any depredation, force, violence, molestation, or vexation to or upon such
fishermen or their vessels, supplies, equipments, nets, and fish, or other goods soever truly appertaining to fishing. The treaty was
made at Calais, then an English possession. It recites that the ambassadors of the two sovereigns met there at the earnest request of
Henry VIII and with his countenance and in the presence of Cardinal Wolsey, his chancellor and representative. And towards the end of
the treaty, it is agreed that the said King and his said representative, "by whose means the treaty stands concluded, shall be
conservators of the agreements therein, as if thereto by both parties elected and chosen." 4 Dumont, Corps Diplomatique, pt. 1, pp.
352, 353.
The herring fishery was permitted, in time of war, by French and Dutch edicts in 1536. Bynkershoek, Quaestiones Juris Publicae, lib. 1,
c. 3; 1 Emerigon des Assurances, c. 4, section 9; c. 12, section 19, section 8.
France, from remote times, set the example of alleviating the evils of war in favor of all coast fishermen. In the compilation entitled "Us
et Coutumes de la Mer," published by Cleirac in 1661, and in the third part thereof, containing "Maritime or Admiralty Jurisdiction -- la
Jurisdiction de la
Page 175 U. S. 689
Marine ou d'Admiraute -- as well in time of peace as in time of war," article 80 is as follows:
"The admiral may in time of war accord fishing truces -- tresves pescheresses -- to the enemy and to his subjects, provided that the
enemy will likewise accord them to Frenchmen."
Cleirac 544. Under this article, reference is made to articles 49 and 79, respectively, of the French ordinances concerning the admiralty
in 1543 and 1584, of which it is but a reproduction. 4 Pardessus, Collection de Lois Maritimes 319; 2 Ortolan, 51. And Cleirac adds, in a
note, this quotation from Froissart's Chronicles:

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"Fishermen on the sea, whatever war there were in France and England, never did harm to one another; so they are friends, and help
one another at need -- Pescheurs sur mer, quelque guerre qui soit en France et Angleterre, jamais ne se firent mal l'un a l'autre; aincois
sont amis, et s'aydent l'un a l'autre au besoin."
The same custom would seem to have prevailed in France until towards the end of the seventeenth century. For example, in 1675,
Louis XIV and the States General of Holland, by mutual agreement, granted to Dutch and French fishermen the liberty, undisturbed by
their vessels of war, of fishing along the coasts of France, Holland, and England. D'Hauterive et De Cussy, Traites de Commerce, pt. 1,
vol. 2, p. 278. But by the ordinances of 1681 and 1692, the practice was discontinued, because, Valin says, of the faithless conduct of
the enemies of France, who, abusing the good faith with which she had always observed the treaties, habitually carried off her
fishermen, while their own fished in safety. 2 Valin sur l'Ordonnance de la Marine (1776) 689, 690; 2 Ortolan 52; De Boeck, § 192.
The doctrine which exempts coast fishermen, with their vessels and cargoes, from capture as prize of war, has been familiar to the
United States from the time of the War of Independence.
On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to his admiral, informing him that the wish he had always had of
alleviating, as far as he could, the hardships of war, had directed his attention to that class of his subjects
Page 175 U. S. 690
which devoted itself to the trade of fishing, and had no other means of livelihood; that he had thought that the example which he should
give to his enemies, and which could have no other source than the sentiments of humanity which inspired him, would determine them
to allow to fishermen the same facilities which he should consent to grant, and that he had therefore given orders to the commanders of
all his ships not to disturb English fishermen, nor to arrest their vessels laden with fresh fish, even if not caught by those vessels;
provided they had no offensive arms, and were not proved to have made any signals creating a suspicion of intelligence with the
enemy, and the admiral was directed to communicate the King's intentions to all officers under his control. By a royal order in council of
November 6, 1780, the former orders were confirmed, and the capture and ransom, by a French cruiser, of The John and Sarah, an
English vessel, coming from Holland, laden with fresh fish, were pronounced to be illegal. 2 Code des Prises (ed. 1784) 721, 901, 903.
Among the standing orders made by Sir James Marriott, Judge of the English High Court of Admiralty, was one of April 11, 1780, by
which it was
"ordered that all causes of prize of fishing boats or vessels taken from the enemy may be consolidated in one monition, and one
sentence or interlocutory, if under fifty tons burthen, and not more than six in number."
Marriott's Formulary 4. But by the statements of his successor, and of both French and English writers, it appears that England, as well
as France, during the American Revolutionary War, abstained from interfering with the coast fisheries. The Young Jacob and Johanna,
1 C. Rob. 20; 2 Ortolan 53; Hall, § 148.
In the treaty of 1785 between the United States and Prussia, article 23 (which was proposed by the American Commissioners, John
Adams, Benjamin Franklin, and Thomas Jefferson, and is said to have been drawn up by Franklin), provided that if war should arise
between the contracting parties,
"all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers, and fishermen,
Page 175 U. S. 691
unarmed and inhabiting unfortified towns, villages, or places, and in general all others whose occupations are for the common
subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their
persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into
whose power, by the events of war, they may happen to fall; but if anything is necessary to be taken from them for the use of such
armed force, the same shall be paid for at a reasonable price."
8 Stat. 96; 1 Kent Com. 91, note; Wheaton, History of the Law of Nations, 306, 308. Here was the clearest exemption from hostile
molestation or seizure of the persons, occupations, houses, and goods of unarmed fishermen inhabiting unfortified places. The article
was repeated in the later treaties between the United States and Prussia of 1799 and 1828. 8 Stat. 174, 384. And Dana, in a note to his
edition of Wheaton's International Laws, says:
"In many treaties and decrees, fishermen catching fish as an article of food are added to the class of persons whose occupation is not
to be disturbed in war."
Wheaton, International Law (8th ed.) § 345, note 168.
Since the United States became a nation, the only serious interruptions, so far as we are informed, of the general recognition of the
exemption of coast fishing vessels from hostile capture, arose out of the mutual suspicions and recriminations of England and France
during the wars of the French Revolution.
In the first years of those wars, England having authorized the capture of French fishermen, a decree of the French National
Convention of October 2, 1793, directed the executive power "to protest against this conduct, theretofore without example; to reclaim
the fishing boats seized; and, in case of refusal, to resort to reprisals." But in July, 1796, the Committee of Public Safety ordered the
release of English fishermen seized under the former decree, "not considering them as prisoners of war." La Nostra Segnora de la
Piedad(1801) cited below; 2 De Cussy, Droit Maritime, 164, 165; 1 Masse, Droit Commercial (2d ed.) 266, 267.
Page 175 U. S. 692

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On January 24, 1798, the English government by express order instructed the commanders of its ships to seize French and Dutch
fishermen with their boats. 6 Martens, Recueil des Traites (2d ed.) 505; 6 Schoell, Histoire des Traites, 119; 2 Ortolan, 53. After the
promulgation of that order, Lord Stowell (then Sir William Scott) in the High Court of Admiralty of England condemned small Dutch
fishing vessels as prize of war. In one case, the capture was in April, 1798, and the decree was made November 13, 1798. The Young
Jacob and Johanna, 1 C. Rob. 20. In another case, the decree was made August 23, 1799. The Noydt Gedacht, 2 C. Rob. 137, note.
For the year 1800, the orders of the English and French governments and the correspondence between them may be found in books
already referred to. 6 Martens 503-512; 6 Schoell, 118-120; 2 Ortolan 53, 54. The doings for that year may be summed up as follows:
on March 27, 1800, the French government, unwilling to resort to reprisals, reenacted the orders given by Louis XVI in 1780, above
mentioned, prohibiting any seizure by the French ships of English fishermen, unless armed or proved to have made signals to the
enemy. On May 30, 1800, the English government, having received notice of that action of the French government, revoked its order of
January 24, 1798. But soon afterward, the English government complained that French fishing boats had been made into fireboats at
Flushing, as well as that the French government had impressed and had sent to Brest, to serve in its flotilla, French fishermen and their
boats, even those whom the English had released on condition of their not serving, and on January 21, 1801, summarily revoked its last
order, and again put in force its order of January 24, 1798. On February 16, 1801, Napoleon Bonaparte, then First Consul, directed the
French commissioner at London to return at once to France, first declaring to the English government that its conduct,
"contrary to all the usages of civilized nations, and to the common law which governs them, even in time of war, gave to the existing war
a character of rage and bitterness which destroyed even the relations usual in a loyal war, "
Page 175 U. S. 693
and "tended only to exasperate the two nations, and to put off the term of peace," and that the French government, having always made
it
"a maxim to alleviate as much as possible the evils of war, could not think, on its part, of rendering wretched fishermen victims of a
prolongation of hostilities, and would abstain from all reprisals."
On March 16, 1801, the Addington Ministry, having come into power in England, revoked the orders of its predecessors against the
French fishermen, maintaining, however, that "the freedom of fishing was nowise founded upon an agreement, but upon a simple
concession," that "this concession would be always subordinate to the convenience of the moment," and that "it was never extended to
the great fishery, or to commerce in oysters or in fish." And the freedom of the coast fisheries was again allowed on both sides. 6
Martens 514; 6 Schoell 121; 2 Ortolan, 54; Manning, Law of Nations (Amos' ed.) 206.
Lord Stowell's judgment in The Young Jacob and Johanna, 1 C. Rob. 20, above cited, was much relied on by the counsel for the United
States, and deserves careful consideration.
The vessel there condemned is described in the report as "a small Dutch fishing vessel taken April, 1798, on her return from the Dogger
bank to Holland," and Lord Stowell, in delivering judgment, said:
"In former wars, it has not been usual to make captures of these small fishing vessels; but this rule was a rule of comity only, and not of
legal decision; it has prevailed from views of mutual accommodation between neighboring countries, and from tenderness to a poor and
industrious order of people. In the present war, there has, I presume, been sufficient reason for changing this mode of treatment, and as
they are brought before me for my judgment, they must be referred to the general principles of this Court; they fall under the character
and description of the last class of cases -- that is, of ships constantly and exclusively employed in the enemy's trade."
And he added: "It is a further satisfaction to me in giving this judgment to observe that the facts also bear strong marks of a false and
fraudulent transaction."
Page 175 U. S. 694
Both the capture and the condemnation were within a year after the order of the English government of January 24, 1798, instructing
the commanders of its ships to seize French and Dutch fishing vessels, and before any revocation of that order. Lord Stowell's
judgment shows that his decision was based upon the order of 1798, as well as upon strong evidence of fraud. Nothing more was
adjudged in the case.
But some expressions in his opinion have been given so much weight by English writers that it may be well to examine them
particularly. The opinion begins by admitting the known custom in former wars not to capture such vessels, adding, however, "but this
was a rule of comity only, and not of legal decision." Assuming the phrase "legal decision" to have been there used, in the sense in
which courts are accustomed to use it, as equivalent to "judicial decision," it is true that, so far as appears, there had been no such
decision on the point in England. The word "comity" was apparently used by Lord Stowell as synonymous with courtesy or goodwill. But
the period of a hundred years which has since elapsed is amply sufficient to have enabled what originally may have rested in custom or
comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law. As well said by
Sir James Mackintosh:
"In the present century, a slow and silent, but very substantial, mitigation has taken place in the practice of war, and in proportion as that
mitigated practice has received the sanction of time, it is raised from the rank of mere usage and becomes part of the law of nations."
Discourse on the Law of Nations 38; 1 Miscellaneous Works, 360.
The French prize tribunals, both before and after Lord Stowell's decision, took a wholly different view of the general question. In 1780,
as already mentioned, an order in council of Louis XVI had declared illegal the capture by a French cruiser of The John and Sarah, an

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English vessel coming from Holland, laden with fresh fish. And on May 17, 1801, where a Portuguese fishing vessel, with her cargo of
fish, having no more crew than was needed for her management and for serving the nets, on a trip of several days, had been captured
Page 175 U. S. 695
in April, 1801, by a French cruiser, three leagues off the coast of Portugal, the Council of Prizes held that the capture was contrary to
"the principles of humanity and the maxims of international law," and decreed that the vessel, with the fish on board, or the net proceeds
of any that had been sold, should be restored to her master. La Nostra Segnora de la Piedad, 25 Merlin, Jurisprudence, Prise Maritime,
§ 3, arts. 1, 3; S.C. 1 Pistoye et Duverdy, Prises Maritimes 331; 2 De Cussy, Droit Maritime 166.
The English government, soon afterwards, more than once unqualifiedly prohibited the molestation of fishing vessels employed in
catching and bringing to market fresh fish. On May 23, 1806, it was
"ordered in council that all fishing vessels under Prussian and other colors, and engaged for the purpose of catching fish and conveying
them fresh to market, with their crews, cargoes, and stores, shall not be molested on their fishing voyages and bringing the same to
market, and that no fishing vessels of this description shall hereafter be molested. And the Right Honorable the Lords Commissioners
of His Majesty's Treasury, the Lords Commissioners of the Admiralty, and the Judge of the High Court of Admiralty, are to give the
necessary directions herein as to them may respectively appertain."
5 C. Rob. 408. Again, in the order in council of May 2, 1810, which directed that
"all vessels which shall have cleared out from any port so far under the control of France or her allies as that British vessels may not
freely trade thereat, and which are employed in the whale fishery, or other fishery of any description, save as hereinafter excepted, and
are returning, or destined to return either to the port from whence they cleared, or to any other port or place at which the British flag
may not freely trade, shall be captured and condemned together with their stores and cargoes, as prize to the captors,"
there were excepted "vessels employed in catching and conveying fish fresh to market, such vessels not being fitted or provided for the
curing of fish." Edw.Adm. appx. L.
Wheaton, in his Digest of the Law of Maritime Captures and Prizes, published in 1815, wrote:
"It has been usual
Page 175 U. S. 696
in maritime wars to exempt from capture fishing boats and their cargoes, both from views of mutual accommodation between
neighboring countries, and from tenderness to a poor and industrious order of people. This custom, so honorable to the humanity of
civilized nations, has fallen into disuse, and it is remarkable that both France and England mutually reproach each other with that
breach of good faith which has finally abolished it."
Wheaton, Captures, c. 2, § 18.
This statement clearly exhibits Wheaton's opinion that the custom had been a general one, as well as that it ought to remain so. His
assumption that it had been abolished by the differences between France and England at the close of the last century was hardly
justified by the state of things when he wrote, and has not since been borne out.
During the wars of the French Empire, as both French and English writers agree, the coast fisheries were left in peace. 2 Ortolan 54;
De Boeck § 193; Hall § 148. De Boeck quaintly and truly adds, "and the incidents of 1800 and of 1801 had no morrow -- n'eurent pas de
lendemain."
In the war with Mexico, in 1846, the United States recognized the exemption of coast fishing boats from capture. In proof of this,
counsel have referred to records of the Navy Department, which this Court is clearly authorized to consult upon such a question. Jones
v. United States, 137 U. S. 202; Underhill v. Hernandez, 168 U. S. 250, 168 U. S. 253.
By those records, it appears that Commodore Conner, commanding the Home Squadron blockading the east coast of Mexico, on May
14, 1846, wrote a letter from the ship Cumberland, off Brazos Santiago, near the southern point of Texas, to Mr. Bancroft, the Secretary
of the Navy, enclosing a copy of the commodore's "instructions to the commanders of the vessels of the Home Squadron, showing the
principles to be observed in the blockade of the Mexican ports," one of which was that "Mexican boats engaged in fishing on any part of
the coast will be allowed to pursue their labors unmolested," and that, on June 10, 1846, those instructions were approved by the Navy
Department, of which Mr. Bancroft was still the head, and continued to be until he was appointed Minister to
Page 175 U. S. 697
England in September following. Although Commodore Conner's instructions and the Department's approval thereof do not appear in
any contemporary publication of the government, they evidently became generally known at the time, or soon after, for it is stated in
several treatises on international law (beginning with Ortolan's second edition, published in 1853) that the United States in the Mexican
war permitted the coast fishermen of the enemy to continue the free exercise of their industry. 2 Ortolan (2d ed.) 49, note; (4th ed.) 55;
4 Calvo (5th ed.) § 2372; De Boeck § 194; Hall (4th ed.) § 148.
As qualifying the effect of those statements, the counsel for the United States relied on a proclamation of Commodore Stockton,
commanding the Pacific Squadron, dated August 20, 1846, directing officers under his command to proceed immediately to blockade
the ports of Mazatlan and San Blas, on the west coast of Mexico, and saying to them,

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"All neutral vessels that you may find there you will allow twenty days to depart, and you will make the blockade absolute against all
vessels, except armed vessels of neutral nations. You will capture all vessels under the Mexican flag that you may be able to take."
Navy Reports of 1846, pp. 673, 674. But there is nothing to show that Commodore Stockton intended, or that the government
approved, the capture of coast fishing vessels.
On the contrary, General Halleck, in the preface to his work on International Law, or Rules Regulating the Intercourse of states in Peace
and War, published in 1861, says that he began that work during the war between the United States and Mexico "while serving on the
staff of the commander of the Pacific Squadron," and "often required to give opinions on questions of international law growing out of
the operations of the war." Had the practice of the blockading squadron on the west coast of Mexico during that war, in regard to fishing
vessels, differed from that approved by the Navy Department on the east coast, General Halleck could hardly have failed to mention it
when stating the prevailing doctrine upon the subject as follows:
Page 175 U. S. 698
"Fishing boats have also, as a general rule, been exempted from the effects of hostilities. As early as 1521, while war was raging
between Charles V and Francis, ambassadors from these two sovereigns met at Calais, then English, and agreed that, whereas the
herring fishery was about to commence, the subjects of both belligerents engaged in this pursuit should be safe and unmolested by the
other party, and should have leave to fish as in time of peace. In the war of 1800, the British and French governments issued formal
instructions exempting the fishing boats of each other's subjects from seizure. This order was subsequently rescinded by the British
government on the alleged ground that some French fishing boats were equipped as gunboats, and that some French fishermen who
had been prisoners in England had violated their parole not to serve, and had gone to join the French fleet at Brest. Such excuses were
evidently mere pretexts, and after some angry discussions had taken place on the subject, the British restriction was withdrawn and the
freedom of fishing was again allowed on both sides. French writers consider this exemption as an established principle of the modern
law of war, and it has been so recognized in the French courts, which have restored such vessels when captured by French cruisers."
Halleck (1st ed.) c. 20, § 23.
That edition was the only one sent out under the author's own auspices except an abridgment, entitled "Elements of International Law
and the Law of War," which he published in 1866, as he said in the preface, to supply a suitable textbook for instruction upon the
subject, "not only in our colleges, but also in our two great national schools -- the Military and Naval Academies." In that abridgment, the
statement as to fishing boats was condensed as follows:
"Fishing boats have also, as a general rule, been exempted from the effects of hostilities. French writers consider this exemption as an
established principle of the modern law of war, and it has been so recognized in the French courts, which have restored such vessels
when captured by French cruisers."
Halleck's Elements, c. 20, § 21.
In the treaty of peace between the United States and Mexico,
Page 175 U. S. 699
in 1848, were inserted the very words of the earlier treaties with Prussia, already quoted, forbidding the hostile molestation or seizure in
time of war of the persons, occupations, houses, or goods of fishermen. 9 Stat. 939, 940.
Wharton's Digest of the International Law of the United States, published by authority of Congress in 1886 and 1887, embodies General
Halleck's fuller statement, above quoted, and contains nothing else upon the subject. 3 Whart. Int.Law Dig. § 345, p. 315; 2 Halleck
(Eng. eds. 1873 and 1878) p. 151.
France in the Crimean war in 1854, and in her wars with Italy in 1859 and with Germany in 1870, by general orders, forbade her
cruisers to trouble the coast fisheries or to seize any vessel or boat engaged therein unless naval or military operations should make it
necessary. Calvo, § 2372; Hall, § 148; 2 Ortolan (4th ed.) 449; 10 Revue de Droit Internationale (1878) 399.
Calvo says that, in the Crimean War,
"notwithstanding her alliance with France and Italy, England did not follow the same line of conduct, and her cruisers in the Sea of Azof
destroyed the fisheries, nets, fishing implements, provisions, boats, and even the cabins of the inhabitants of the coast."
Calvo § 2372. And a Russian writer on prize law remarks that those depredations,
"having brought ruin on poor fishermen and inoffensive traders, could not but leave a painful impression on the minds of the population,
without impairing in the least the resources of the Russian government."
Katchenovsky (Pratt's ed.) 148. But the contemporaneous reports of the English naval officers put a different face on the matter by
stating that the destruction in question was part of a military measure, conducted with the cooperation of the French ships, and
pursuant to instructions of the English admiral
"to clear the seaboard of all fish stores, all fisheries and mills, on a scale beyond the wants of the neighboring population, and indeed of
all things destined to contribute to the maintenance of the enemy's army in the Crimea,"
and that the property destroyed consisted of large fishing establishments and storehouses of the Russian government, numbers of
heavy launches, and enormous quantities of nets and gear, salted fish, corn,
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and other provisions intended for the supply of the Russian army. United Service Journal of 1855, pt. 3, pp. 108-112.
Since the English orders in council of 1806 and 1810, before quoted, in favor of fishing vessels employed in catching and bringing to
market fresh fish, no instance has been found in which the exemption from capture of private coast fishing vessels honestly pursuing
their peaceful industry has been denied by England or by any other nation. And the Empire of Japan (the last state admitted into the
rank of civilized nations), by an ordinance promulgated at the beginning of its war with China in August, 1894, established prize courts
and ordained that "the following enemy's vessels are exempt from detention," including in the exemption "boats engaged in coast
fisheries," as well as "ships engaged exclusively on a voyage of scientific discovery, philanthrophy, or religious mission." Takahashi,
International Law 11, 178.
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often
as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as
evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves
peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals not for the speculations
of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Hilton v. Guyot, 159 U. S.
113, 159 U. S. 163-164, 159 U. S. 214-215.
Wheaton places among the principal sources international law
"text writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with
the definitions and modifications introduced by general consent."
As to these, he forcibly observes:
"Without wishing to exaggerate the importance of these writers or to substitute, in any case, their authority for the principles of reason, it
may be affirmed that they are generally
Page 175 U. S. 701
impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony
increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works
being impugned by the avowal of contrary principles."
Wheaton, International Law (8th ed.), § 15.
Chancellor Kent says:
"In the absence of higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the
writings of distinguished jurists are regarded as of great consideration on questions not settled by conventional law. In cases where the
principal jurists agree, the presumption will be very great in favor of the solidity of their maxims, and no civilized nation that does not
arrogantly set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers on
international law."
1 Kent, Com. 18.
It will be convenient, in the first place, to refer to some leading French treatises on international law, which deal with the question now
before us, not as one of the law of France only, but as one determined by the general consent of civilized nations.
"Enemy ships," say Pistoye and Duverdy, in their Treatise on Maritime Prizes, published in 1855,
"are good prize. Not all, however, for it results from the unanimous accord of the maritime powers that an exception should be made in
favor of coast fishermen. Such fishermen are respected by the enemy so long as they devote themselves exclusively to fishing."
1 Pistoye et Duverdy, Tit. 6, c. 1, p. 314.
De Cussy, in his work on the Phases and Leading cases of the Maritime Law of Nations -- Phases et Causes Celebres du Droit
Maritime des Nations -- published in 1856, affirms in the clearest language the exemption from capture of fishing boats, saying, in lib. 1,
Tit. 3, § 36, that
"in time of war, the freedom of fishing is respected by belligerents; fishing boats are considered as neutral; in law, as in principle, they
are not subject either to capture or to confiscation,"
and that in lib. 2, c. 20, he will state "several facts and several decisions
Page 175 U. S. 702
which prove that the perfect freedom and neutrality of fishing boats are not illusory." 1 De Cussy, p. 291. And in the chapter so referred
to, entitled De la Liberte et de la Neutralite Parfaite de la Peche, besides references to the edicts and decisions in France during the
French Revolution, is this general statement:
"If one consulted only positive international law -- 1e droit des gens positif -- [by which is evidently meant international law expressed in
treaties, decrees, or other public acts, as distinguished from what may be implied from custom or usage], fishing boats would be
subject, like all other trading vessels, to the law of prize; a sort of tacit agreement among all European nations frees them from it, and

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several official declarations have confirmed this privilege in favor of 'a class of men whose hard and ill rewarded labor, commonly
performed by feeble and aged hands, is so foreign to the operations of war.'"
2 De Cussy 164, 165.
Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la Mer, published in 1864, after stating the general rule that
the vessels and cargoes of subjects of the enemy are lawful prize, says:
"Nevertheless, custom admits an exception in favor of boats engaged in the coast fishery; these boats, as well as their crews, are free
from capture and exempt from all hostilities. The coast-fishing industry is, in truth, wholly pacific, and of much less importance in regard
to the national wealth that it may produce than maritime commerce or the great fisheries. Peaceful and wholly inoffensive, those who
carry it on, among whom women are often seen, may be called the harvesters of the territorial seas, since they confine themselves to
gathering in the products thereof; they are for the most part poor families who seek in this calling hardly more than the means of gaining
their livelihood."
2 Ortolan 51. Again, after observing that there are very few solemn public treaties which make mention of the immunity of fishing boats
in time of war, he says:
"From another point of view, the custom which sanctions this immunity is not so general that it can be considered as making an
absolute international rule; but it has been so often put in practice, and, besides, it accords so well with the rule in use in wars on
Page 175 U. S. 703
land, in regard to peasants and husbandmen, to whom coast fishermen may be likened, that it will doubtless continue to be followed in
maritime wars to come."
2 Ortolan 55.
No international jurist of the present day has a wider or more deserved reputation than Calvo, who, though writing in French, is a citizen
of the Argentine Republic employed in its diplomatic service abroad. In the fifth edition of his great work on international law, published
in 1896, he observes, in § 2366, that the international authority of decisions in particular cases by the prize courts of France, of
England, and of the United States is lessened by the fact that the principles on which they are based are largely derived from the
internal legislation of each country, and yet the peculiar character of maritime wars, with other considerations, gives to prize
jurisprudence a force and importance reaching beyond the limits of the country in which it has prevailed. He therefore proposes here to
group together a number of particular cases proper to serve as precedents for the solution of grave questions of maritime law in regard
to the capture of private property as prize of war. Immediately, in § 2367, he goes on to say:
"Notwithstanding the hardships to which maritime wars subject private property, notwithstanding the extent of the recognized rights of
belligerents, there are generally exempted, from seizure and capture, fishing vessels."
In the next section, he adds: "This exception is perfectly justiciable -- Cette exception est parfaitement justiciable" -- that is to say,
belonging to judicial jurisdiction or cognizance. Littre, Dist. voc. Justiciable; Hans v. Louisiana, 134 U. S. 1, 134 U. S. 15. Calvo then
quotes Ortolan's description, above cited, of the nature of the coast-fishing industry, and proceeds to refer in detail to some of the
French precedents, to the acts of the French and English governments in the times of Louis XVI and of the French Revolution, to the
position of the United States in the war with Mexico, and of France in later wars, and to the action of British cruisers in the Crimean war.
And he concludes his discussion of the subject, in § 2373, by affirming the exemption of the coast fishery and pointing out the
distinction in this regard between the coast fishery and
Page 175 U. S. 704
what he calls the great fishery, for cod, whales, or seals, as follows:
"The privilege of exemption from capture, which is generally acquired by fishing vessels plying their industry near the coasts, is not
extended in any country to ships employed on the high sea in what is called the great fishery, such as that for the cod, for the whale or
the sperm whale, or for the seal or sea calf. These ships are, in effect, considered as devoted to operations which are at once
commercial and industrial -- Ces navires sont en effect consideres comme adonnes a des operations a la fois commerciales et
industrielles."
The distinction is generally recognized. 2 Ortolan 54; De Boeck § 196; Hall, § 148. See also The Susa, 2 C. Rob. 251; The Johan,
Edw.Adm. 275, and appx. L.
The modern German books on international law, cited by the counsel for the appellants, treat the custom by which the vessels and
implements of coast fishermen are exempt from seizure and capture as well established by the practice of nations. Heffter § 137; 2
Kalterborn § 237, p. 480; Bluntschli § 667; Perels § 37, p. 217.
De Boeck, in his work on Enemy Private Property under Enemy's Flag -- De la Propriete Privee Ennemie sous Pavillon Ennemi --
published in 1882, and the only continental treatise cited by the counsel for the United States, says in § 191:
"A usage very ancient, if not universal, withdraws from the right of capture enemy vessels engaged in the coast fishery. The reason of
this exception is evident; it would have been too hard to snatch from poor fishermen the means of earning their bread. . . . The
exemption includes the boats, the fishing implements, and the cargo of fish."
Again, in § 195:

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"It is to be observed that very few treatises sanction in due form this immunity of the coast fishery. . . . There is, then, only a custom. But
what is its character? Is it so fixed and general that it can be raised to the rank of a positive and formal rule of international law?"
After discussing the statements of other writers, he approves the opinion of Ortolan (as expressed in the last sentence above quoted
from his work) and says that, at bottom, it differs by a shade only from that formulated by Calvo and by some of the German jurists, and
that
"it is more exact,
Page 175 U. S. 705
without ignoring the imperative character of the humane rule in question -- elle est plus exacte, sans meconnaitre le caractere imperatif
de la regle d'humanite dont il s'agit."
And in § 196 he defines the limits of the rule as follows:
"But the immunity of the coast fishery must be limited by the reasons which justify it. The reasons of humanity and of harmlessness --
les raisons d'humanite et d'innocuite -- which militate in its favor do not exist in the great fishery, such as the cod fishery; ships engaged
in that fishery devote themselves to truly commercial operations, which employ a large number of seamen. And these same reasons
cease to be applicable to fishing vessels employed for a warlike purpose, to those which conceal arms, or which exchange signals of
intelligence with ships of war; but only those taken in the fact can be rigorously treated; to allow seizure by way of preventive would
open the door to every abuse, and would be equivalent to a suppression of the immunity."
Two recent English text writers cited at the bar (influenced by what Lord Stowell said a century since) hesitate to recognize that the
exemption of coast fishing vessels from capture has now become a settled rule of international law. Yet they both admit that there is
little real difference in the views, or in the practice, of England and of other maritime nations, and that no civilized nation at the present
day would molest coast fishing vessels so long as they were peaceably pursuing their calling and there was no danger that they or their
crews might be of military use to the enemy. Hall, in § 148 of the fourth edition of his Treatise on International Law, after briefly
sketching the history of the positions occupied by France and England at different periods, and by the United States in the Mexican war,
goes on to say:
"In the foregoing facts there is nothing to show that much real difference has existed in the practice of the maritime countries. England
does not seem to have been unwilling to spare fishing vessels so long as they are harmless, and it does not appear that any state has
accorded them immunity under circumstances of inconvenience to itself. It is likely that all nations would now refrain from molesting
them as a general rule, and would capture
Page 175 U. S. 706
them so soon as any danger arose that they or their crews might be of military use to the enemy, and it is also likely that it is impossible
to grant them a more distinct exemption."
So, T. J.Lawrence, in § 206 of his Principles of International Law, says:
"The difference between the English and the French view is more apparent than real, for no civilized belligerent would now capture the
boats of fishermen plying their avocation peaceably in the territorial waters of their own state, and no jurist would seriously argue that
their immunity must be respected if they were used for warlike purposes, as were the smacks belonging to the northern ports of France
when Great Britain gave the order to capture them in 1800."
But there are writers of various maritime countries not yet cited too important to be passed by without notice.
Jan Helenus Ferguson, Netherlands Minister to China, and previously in the naval and in the colonial service of his country, in his
Manual of International Law for the Use of Navies, Colonies, and Consulates, published in 1882, writes:
"An exception to the usage of capturing enemy's private vessels at sea is the coast fishery. . . . This principle of immunity from capture
of fishing boats is generally adopted by all maritime powers, and in actual warfare they are universally spared so long as they remain
harmless."
2 Ferguson § 212.
Ferdinand Attlmayr, captain in the Austrian Navy, in his Manual for Naval Officers, published at Vienna in 1872 under the auspices of
Admiral Tegetthoff, says:
"Regarding the capture of enemy property, an exception must be mentioned, which is a universal custom. Fishing vessels which belong
to the adjacent coast, and whose business yields only a necessary livelihood, are, from considerations of humanity, universally
excluded from capture."
1 Attlmayr 61.
Ignacio de Megrin, First Official of the Spanish Board of Admiralty, in his Elementary Treatise on Maritime International Law, adopted by
royal order as a textbook in the naval schools of Spain and published at Madrid in 1873, concludes his chapter "Of the lawfulness of
prizes" with these words:
"It remains to be added that the custom of all civilized peoples excludes from capture and from all kind of hostility the
Page 175 U. S. 707

106 of 113


fishing vessels of the enemy's coasts, considering this industry as absolutely inoffensive, and deserving, from its hardships and
usefulness, of this favorable exception. It has been thus expressed in very many international conventions, so that it can be deemed an
incontestable principle of law at least among enlightened nations."
Negrin, Tit. 3, c. 1, § 310.
Carlos Testa, captain in the Portuguese Navy and professor in the naval school at Lisbon, in his work on Public International Law,
published in French at Paris in 1886, when discussing the general right of capturing enemy ships, says:
"Nevertheless, in this, customary law establishes an exception of immunity in favor of coast fishing vessels. Fishing is so peaceful an
industry, and is generally carried on by so poor and so hardworking a class of men, that it is likened, in the territorial waters of the
enemy's country, to the class of husbandmen who gather the fruits of the earth for their livelihood. The examples and practice generally
followed establish this humane and beneficent exception as an international rule, and this rule may be considered as adopted by
customary law and by all civilized nations."
Testa, pt. 3, c. 2, in 18 Bibliotheque International et Diplomatique, pp. 152, 153.
No less clearly and decisively speaks the distinguished Italian jurist, Pasquale Fiore, in the enlarged edition of his exhaustive work on
Public International Law, published at Paris in 1885-1886, saying:
"The vessels of fishermen have been generally declared exempt from confiscation because of the eminently peaceful object of their
humble industry and of the principles of equity and humanity. The exemption includes the vessel, the implements of fishing, and the
cargo resulting from the fishery. This usage, eminently humane, goes back to very ancient times, and although the immunity of the
fishery along the coasts may not have been sanctioned by treaties, yet it is considered today as so definitely established that the
inviolability of vessels devoted to that fishery is proclaimed by the publicists as a positive rule of international law, and is generally
respected by the nations. Consequently we shall lay down the following rule: (a) vessels belonging to citizens of the enemy state, and
devoted to fishing
Page 175 U. S. 708
along the coasts, cannot be subject to capture; (b) such vessels, however, will lose all right of exemption when employed for a warlike
purpose; (c) there may nevertheless be subjected to capture vessels devoted to the great fishery in the ocean, such as those employed
in the whale fishery, or in that for seals or sea calves."
3 Fiore § 1421.
This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that, at the present day, by the
general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule
of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of
belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing
their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war.
The exemption, of course, does not apply to coast fishermen or their vessels if employed for a warlike purpose, or in such a way as to
give aid or information to the enemy, nor when military or naval operations create a necessity to which all private interests must give
way.
Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales or seals or cod or other fish which
are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce.
This rule of international law is one which prize courts administering the law of nations are bound to take judicial notice of, and to give
effect to, in the absence of any treaty or other public act of their own government in relation to the matter.
Calvo, in a passage already quoted, distinctly affirms that the exemption of coast fishing vessels from capture is perfectly justiciable, or,
in other words, of judicial jurisdiction or cognizance. Calvo § 2368. Nor are judicial precedents wanting in support of the view that this
exemption, or a somewhat analogous one, should be recognized and declared by a prize court.
Page 175 U. S. 709
By the practice of all civilized nations, vessels employed only for the purposes of discovery or science are considered as exempt from
the contingencies of war, and therefore not subject to capture. It has been usual for the government sending out such an expedition to
give notice to other powers, but it is not essential. 1 Kent, Com. 91, note; Halleck, c. 20, § 22; Calvo § 2376; Hall § 138.
In 1813, while the United States were at war with England, an American vessel on her voyage from Italy to the United States was
captured by an English ship, and brought into Halifax, in Nova Scotia, and, with her cargo, condemned as lawful prize by the court of
vice admiralty there. But a petition for the restitution of a case of paintings and engravings which had been presented to and were
owned by the Academy of Arts in Philadelphia was granted by Dr. Croke, the judge of that court, who said:
"The same law of nations which prescribes that all property belonging to the enemy shall be liable to confiscation has likewise its
modifications and relaxations of that rule. The arts and sciences are admitted amongst all civilized nations as forming an exception to
the severe rights of warfare, and as entitled to favor and protection. They are considered not as the peculium of this or of that nation,
but as the property of mankind at large, and as belonging to the common interests of the whole species."
And he added that there had been "innumerable cases of the mutual exercise of this courtesy between nations in former wars." The
Marquis de Somerueles, Stewart Adm. (Nova Scotia) 445, 482.

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In 1861, during the war of the Rebellion, a similar decision was made in the District Court of the United States for the Eastern District of
Pennsylvania in regard to two cases of books belonging and consigned to a university in North Carolina. Judge Cadwalader, in ordering
these books to be liberated from the custody of the marshal and restored to the agent of the university, said:
"Though this claimant, as the resident of a hostile district, would not be entitled to restitution of the subject of a commercial adventure in
books, the purpose of the shipment in question gives to it a different
Page 175 U. S. 710
character. The United States, in prosecuting hostilities for the restoration of their constitutional authority, are compelled incidentally to
confiscate property captured at sea, of which the proceeds would otherwise increase the wealth of that district. But the United States
are not at war with literature in that part of their territory."
He then referred to the decision in Nova Scotia, and to the French decisions upon cases of fishing vessels, as precedents for the
decree which he was about to pronounce, and he added that, without any such precedents, he should have had no difficulty in liberating
these books. The Amelia, 4 Philadelphia 417.
In Brown v. United States, 8 Cranch 110, there are expressions of Chief Justice Marshall which, taken by themselves, might seem
inconsistent with the position above maintained, of the duty of a prize court to take judicial notice of a rule of international law,
established by the general usage of civilized nations, as to the kind of property subject to capture. But the actual decision in that case,
and the leading reasons on which it was based, appear to us rather to confirm our position. The principal question there was whether
personal property of a British subject, found on land in the United States at the beginning of the last war with Great Britain, could
lawfully be condemned as enemy's property on a libel filed by the attorney of the United States, without a positive act of Congress. The
conclusion of the Court was
"that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate
property which was within our territory at the declaration of war."
8 Cranch 12 U. S. 129. In showing that the declaration of war did not, of itself, vest the Executive with authority to order such property
to be confiscated, the Chief Justice relied on the modern usages of nations, saying:
"The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received that the right to them
revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers the
right of confiscation,"
and again:
"The modern rule, then, would seem to be that tangible property
Page 175 U. S. 711
belonging to an enemy, and found in the country at the commencement of war, ought not to be immediately confiscated, and in almost
every commercial treaty, an article is inserted stipulating for the right to withdraw such property."
8 Cranch 12 U. S. 123-125. The decision that enemy property on land, which by the modern usage of nations is not subject to capture
as prize of war, cannot be condemned by a prize court, even by direction of the Executive, without express authority from Congress
appears to us to repel any inference that coast fishing vessels, which are exempt by the general consent of civilized nations from
capture and which no act of Congress or order of the President has expressly authorized to be taken and confiscated, must be
condemned by a prize court for want of a distinct exemption in a treaty or other public act of the government.
To this subject in more than one aspect are singularly applicable the words uttered by Mr. Justice Strong, speaking for this Court:
"Undoubtedly no single nation can change the law of the sea. The law is of universal obligation, and no statute of one or two nations
can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force
not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may
have been its origin, whether in the usages of navigation, or in the ordinances of maritime states, or in both, it has become the law of
the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages
which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first
of limited effect, but which, when generally accepted, became of universal obligation."
"This is not giving to the statutes of any nation extraterritorial effect. It is not treating them as general maritime laws, but it is recognition
of the historical fact that, by common consent of mankind these rules have been acquiesced in as of general obligation. Of that fact we
think we may take judicial notice. Foreign municipal laws
Page 175 U. S. 712
must indeed be proved as facts, but it is not so with the law of nations."
The Scotia, 14 Wall. 170, 81 U. S. 187-188.
The position taken by the United States during the recent war with Spain was quite in accord with the rule of international law, now
generally recognized by civilized nations, in regard to coast fishing vessels.
On April 21, 1898, the Secretary of the Navy gave instructions to Admiral Sampson, commanding the North Atlantic Squadron, to
"immediately institute a blockade of the north coast of Cuba, extending from Cardenas on the east to Bahia Honda on the west." Bureau

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of Navigation Report of 1898, appx. 175. The blockade was immediately instituted accordingly. On April 22, the President issued a
proclamation declaring that the United States had instituted and would maintain that blockade "in pursuance of the laws of the United
States, and the law of nations applicable to such cases." 30 Stat. 1769. And by the act of Congress of April 25, 1898, c. 189, it was
declared that the war between the United States and Spain existed on that day, and had existed since and including April 21, 30 Stat.
364.
On April 26, 1898, the President issued another proclamation which, after reciting the existence of the war as declared by Congress,
contained this further recital:
"It being desirable that such war should be conducted upon principles in harmony with the present views of nations and sanctioned by
their recent practice."
This recital was followed by specific declarations of certain rules for the conduct of the war by sea, making no mention of fishing
vessels. 30 Stat. 1770. But the proclamation clearly manifests the general policy of the government to conduct the war in accordance
with the principles of international law sanctioned by the recent practice of nations.
On April 28, 1898 (after the capture of the two fishing vessels now in question), Admiral Sampson telegraphed to the Secretary of the
Navy as follows:
"I find that a large number of fishing schooners are attempting to get into Havana from their fishing grounds near the Florida reefs and
coasts. They are generally manned by excellent seamen, belonging
Page 175 U. S. 713
to the maritime inscription of Spain, who have already served in the Spanish navy, and who are liable to further service. As these
trained men are naval reserves, most valuable to the Spaniards as artillerymen, either afloat or ashore, I recommend that they should
be detained prisoners of war, and that I should be authorized to deliver them to the commanding officer of the army at Key West."
To that communication the Secretary of the Navy, on April 30, 1898, guardedly answered:
"Spanish fishing vessels attempting to violate blockade are subject, with crew, to capture, and any such vessel or crew considered likely
to aid enemy may be detained."
Bureau of Navigation Report of 1898, appx. 178. The admiral's dispatch assumed that he was not authorized, without express order, to
arrest coast fishermen peaceably pursuing their calling, and the necessary implication and evident intent of the response of the Navy
Department were that Spanish coast fishing vessels and their crews should not be interfered with so long as they neither attempted to
violate the blockade nor were considered likely to aid the enemy.
The Paquete Habana, as the record shows, was a fishing sloop of 25 tons burden, sailing under the Spanish flag, running in and out of
Havana, and regularly engaged in fishing on the coast of Cuba. Her crew consisted of but three men, including the master, and,
according to a common usage in coast fisheries, had no interest in the vessel, but were entitled to two-thirds of her catch, the other third
belonging to her Spanish owner, who, as well as the crew, resided in Havana. On her last voyage, she sailed from Havana along the
coast of Cuba, about two hundred miles, and fished for twenty-five days off the cape at the west end of the island, within the territorial
waters of Spain, and was going back to Havana with her cargo of live fish when she was captured by one of the blockading squadron
on April 25, 1898. She had no arms or ammunition on board; she had no knowledge of the blockade, or even of the war, until she was
stopped by a blockading vessel; she made no attempt to run the blockade, and no resistance at the time of the capture; nor was there
any evidence
Page 175 U. S. 714
whatever of likelihood that she or her crew would aid the enemy.
In the case of the Lola, the only differences in the facts were that she was a schooner of 35 tons burden, and had a crew of six men,
including the master; that, after leaving Havana and proceeding some two hundred miles along the coast of Cuba, she went on, about
one hundred miles farther, to the coast of Yucatan, and there fished for eight days, and that, on her return, when near Bahia Honda on
the coast of Cuba, she was captured, with her cargo of live fish, on April 27, 1898. These differences afford no ground for distinguishing
the two cases.
Each vessel was of a moderate size, such as is not unusual in coast fishing smacks, and was regularly engaged in fishing on the coast
of Cuba. The crew of each were few in number, had no interest in the vessel, and received, in return for their toil and enterprise,
two-thirds of her catch, the other third going to her owner by way of compensation for her use. Each vessel went out from Havana to
her fishing ground and was captured when returning along the coast of Cuba. The cargo of each consisted of fresh fish, caught by her
crew from the sea and kept alive on board. Although one of the vessels extended her fishing trip across the Yucatan channel and fished
on the coast of Yucatan, we cannot doubt that each was engaged in the coast fishery, and not in a commercial adventure, within the
rule of international law.
The two vessels and their cargoes were condemned by the district court as prize of war; the vessels were sold under its decrees, and it
does not appear what became of the fresh fish of which their cargoes consisted.
Upon the facts proved in either case, it is the duty of this Court, sitting as the highest prize court of the United States and administering
the law of nations, to declare and adjudge that the capture was unlawful and without probable cause, and it is therefore, in each case
Ordered, that the decree of the district court be reversed, and the proceeds of the sale of the vessel, together with the proceeds of any
sale of her cargo, be restored to the claimant, with damages and costs.

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Page 175 U. S. 715
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN and MR. JUSTICE McKENNA, dissenting:
The district court held these vessels and their cargoes liable because not "satisfied that, as a matter of law, without any ordinance,
treaty, or proclamation, fishing vessels of this class are exempt from seizure."
This Court holds otherwise not because such exemption is to be found in any treaty, legislation, proclamation, or instruction granting it,
but on the ground that the vessels were exempt by reason of an established rule of international law applicable to them which it is the
duty of the court to enforce.
I am unable to conclude that there is any such established international rule, or that this Court can properly revise action which must be
treated as having been taken in the ordinary exercise of discretion in the conduct of war.
In cannot be maintained "that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through
the sovereign power." That position was disallowed in Brown v. United States,8 Cranch 110, 12 U. S. 128, and Chief Justice Marshall
said:
"This usage is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and
even of wisdom, is addressed to the judgment of the sovereign, and although it cannot be disregarded by him without obloquy, yet it
may be disregarded. The rule is in its nature flexible. It is subject to infinite modification. It is not an immutable rule of law, but depends
on political considerations which may continually vary."
The question in that case related to the confiscation of the property of the enemy on land within our own territory, and it was held that
property so situated could not be confiscated without an act of Congress. The Chief Justice continued:
"Commercial nations in the situation of the United States have always a considerable quantity of property in the possession of their
neighbors. When war breaks out, the question what shall be done with enemy property in our country is a
Page 175 U. S. 716
question rather of policy than of law. The rule which we apply to the property of our enemy will be applied by him to the property of our
citizens. Like all other questions of policy, it is proper for the consideration of a department which can modify it at will, not for the
consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of
the executive or judiciary."
This case involves the capture of enemy's property on the sea, and executive action, and if the position that the alleged rule ex proprio
vigore limits the sovereign power in war be rejected, then I understand the contention to be that by reason of the existence of the rule,
the proclamation of April 26 must be read as if it contained the exemption in terms, or the exemption must be allowed because the
capture of fishing vessels of this class was not specifically authorized.
The preamble to the proclamation stated, it is true, that it was desirable that the war "should be conducted upon principles in harmony
with the present views of nations and sanctioned by their recent practice," but the reference was to the intention of the government "not
to resort to privateering, but to adhere to the rules of the Declaration of Paris," and the proclamation spoke for itself. The language of
the preamble did not carry the exemption in terms, and the real question is whether it must be allowed because not affirmatively
withheld -- or, in other words, because such captures were not in terms directed.
These records show that the Spanish sloop Paquete Habana "was captured as a prize of war by the U.S.S. Castine" on April 25, and
"was delivered" by the Castine's commander "to Rear Admiral Wm. T. Sampson (commanding the North Atlantic Squadron)," and
thereupon "turned over" to a prize master with instructions to proceed to Key West.
And that the Spanish schooner Lola "was captured as a prize of war by the U.S.S. Dolphin," April 27, and "was delivered" by the
Dolphin's commander "to Rear Admiral Wm. T. Sampson (commanding the North Atlantic Squadron)," and thereupon "turned over" to a
prize master with instructions to proceed to Key West.
Page 175 U. S. 717
That the vessels were accordingly taken to Key West and there libeled, and that the decrees of condemnation were entered against
them May 30.
It is impossible to concede that the Admiral ratified these captures in disregard of established international law and the proclamation, or
that the President, if he had been of opinion that there was any infraction of law or proclamation, would not have intervened prior to
condemnation.
The correspondence of April 28, 30, between the Admiral and the Secretary of the Navy, quoted from in the principal opinion, was
entirely consistent with the validity of the captures.
The question put by the Admiral related to the detention as prisoners of war of the persons manning the fishing schooners "attempting
to get into Havana." Noncombatants are not so detained except for special reasons. Sailors on board enemy's trading vessels are
made prisoners because of their fitness for immediate use on ships of war. Therefore the Admiral pointed out the value of these fishing
seamen to the enemy, and advised their detention. The Secretary replied that if the vessels referred to were "attempting to violate
blockade," they were subject "with crew" to capture, and also that they might be detained if "considered likely to aid enemy." The point
was whether these crews should be made prisoners of war. Of course, they would be liable to be if involved in the guilt of blockade
running, and the Secretary agreed that they might be on the other ground in the Admiral's discretion.

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All this was in accordance with the rules and usages of international law, with which, whether in peace or war, the naval service has
always been necessarily familiar.
I come then to examine the proposition
"that at the present day, by the general consent of the civilized nations of the world and independently of any express treaty or other
public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men,
and of the mutual convenience of belligerent states, that coast fishing vessels, with their implements and supplies,
Page 175 U. S. 718
cargoes, and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in of fresh fish, are exempt from
capture as prize of war."
This, it is said, is a rule
"which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of treaty
or other public act of their own government."
At the same time, it is admitted that the alleged exemption does not apply
"to coast fishermen or their vessels if employed for a warlike purpose or in such a way as to give aid or information to the enemy, nor
when military or naval operations create a necessity to which all private interests must give way,"
and further that the exemption has not
"been extended to ships or vessels employed on the high sea in taking whales or seals, or cod or other fish which are not brought fresh
to market, but are salted or otherwise cured and made a regular article of commerce."
It will be perceived that the exceptions reduce the supposed rule to very narrow limits, requiring a careful examination of the facts in
order to ascertain its applicability, and the decision appears to me to go altogether too far in respect of dealing with captures directed or
ratified by the officer in command.
But were these two vessels within the alleged exemption? They were of twenty-five and thirty-five tons burden, respectively. They
carried large tanks in which the fish taken were kept alive. They were owned by citizens of Havana, and the owners and the masters
and crew were to be compensated by shares of the catch. One of them had been two hundred miles from Havana, off Cape San
Antonio, for twenty-five days, and the other for eight days off the coast of Yucatan. They belonged, in short, to the class of fishing or
coasting vessels of from five to twenty tons burden, and from twenty tons upwards, which, when licensed or enrolled as prescribed by
the Revised Statutes, are declared to be vessels of the United States, and the shares of whose men, when the vessels are employed in
fishing, are regulated by statute. They were engaged in what were substantially commercial ventures, and the mere fact that the fish
were kept alive by contrivances
Page 175 U. S. 719
for that purpose -- a practice of considerable antiquity -- did not render them any the less an article of trade than if they had been
brought in cured.
I do not think that, under the circumstances, the considerations which have operated to mitigate the evils of war in respect of individual
harvesters of the soil can properly be invoked on behalf of these hired vessels as being the implements of like harvesters of the sea.
Not only so as to the owners, but as to the masters and crews. The principle which exempts the husbandman and his instruments of
labor exempts the industry in which he is engaged, and is not applicable in protection of the continuance of transactions of such
character and extent as these.
In truth, the exemption of fishing craft is essentially an act of grace, and not a matter of right, and it is extended or denied as the
exigency is believed to demand.
It is, said Sir William Scott, "a rule of comity only, and not of legal decision."
The modern view is thus expressed by Mr. Hall:
"England does not seem to have been unwilling to spare fishing vessels so long as they are harmless, and it does not appear that any
state has accorded them immunity under circumstances of inconvenience to itself. It is likely that all nations would now refrain from
molesting them as a general rule, and would capture them so soon as any danger arose that they or their crews might be of military use
to the enemy, and it is also likely that it is impossible to grant them a more distinct exemption."
In the Crimean war, 1854-55, none of the orders in council, in terms, either exempted or included fishing vessels, yet the allied
squadrons swept the Sea of Azof of all craft capable of furnishing the means of transportation, and the English admiral in the Gulf of
Finland directed the destruction of all Russian coasting vessels not of sufficient value to be detained as prizes except "boats or small
craft which may be found empty at anchor, and not trafficking."
It is difficult to conceive of a law of the sea of universal obligation to which Great Britain has not acceded. And I
Page 175 U. S. 720
am not aware of adequate foundation for imputing to this country the adoption of any other than the English rule.

111 of 113


In his lectures on International Law at the Naval Law College, the late Dr. Freeman Snow laid it down that the exemption could not be
asserted as a rule of international law. These lectures were edited by Commodore Stockton and published under the direction of the
Secretary of the Navy in 1895, and, by that department, in a second edition, in 1898, so that in addition to the well known merits of their
author, they possess the weight to be attributed to the official imprimatur. Neither our treaties nor settled practice are opposed to that
conclusion.
In view of the circumstances surrounding the breaking out of the Mexican war, Commodore Conner, commanding the Home Squadron,
on May 14, 1846, directed his officers, in respect of blockade, not to molest "Mexican boats engaged exclusively in fishing on any part
of the coast," presumably small boats in proximity to the shore, while on the Pacific coast, Commodore Stockton, in the succeeding
August, ordered the capture of "all vessels under the Mexican flag."
The treaties with Prussia of 1785, 1799, and 1828, and of 1848 with Mexico, in exempting fishermen, "unarmed and inhabiting
unfortified towns, villages, or places," did not exempt fishing vessels from seizure as prize, and these captures evidence the convictions
entertained and acted on in the late war with Spain.
In is needless to review the speculations and repetitions of the writers on international law. Ortolan, De Boeck, and others admit that the
custom relied on as consecrating the immunity is not so general as to create an absolute international rule; Heffter, Calvo, and others
are to the contrary. Their lucubrations may be persuasive, but not authoritative.
In my judgment, the rule is that exemption from the rigors of war is in the control of the Executive. He is bound by no immutable rule on
the subject. It is for him to apply, or to modify, or to deny altogether such immunity as may have been usually extended.
Page 175 U. S. 721
Exemptions may be designated in advance or granted according to circumstances, but carrying on war involves the infliction of the
hardships of war, at least to the extent that the seizure or destruction of enemy's property on sea need not be specifically authorized in
order to be accomplished.
Being of opinion that these vessels were not exempt as matter of law, I am constrained to dissent from the opinion and judgment of the
Court, and my brothers HARLAN and McKENNA concur in this dissent.
-----
On January 29, 1900, the Court in each case, on motion of the Solicitor General in behalf of the United States, and after argument of
counsel thereon, and to secure the carrying out of the opinion and decree of this Court according to their true meaning and intent,
ordered that the decree be so modified as to direct that the damages to be allowed shall be compensatory only, and not punitive.
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Govt of Hongkong v Olalia, Jr. 70

Cathay Pacific Airways v CA 80

The Paquete Habana, 175 U.S. 677 (1900) 95

SPECIAL THIRD DIVISION

G.R. No. 91332, July 16, 1993

of P120,120,295.98 from January to July 1989.

Feliciano, J., (Chairman), see dissenting opinion.

Davide, Jr., J., in the result.

Romero, J., no part.

Supreme Court of the Philippines

G.R. No. 139465, January 18, 2000

The Extradition Request

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

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

9. A copy of the charging document.

The Extradition Petition

The Extradition Hearing

Secretary of State (18 U.S.C. §3186).

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

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

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

A libertarian approach is thus called for under the premises.

Davide, Jr., C.J., joins Mr. Justice Puno in his dissent.

Bellosillo, Purisima, Buena, and De Leon, Jr., JJ., concur.

Puno, J., please see dissent.

Vitug, J., see separate opinion.

Kapunan, and Ynares-Santiago, JJ., see separate concurring opinion.

Panganiban, J., please see dissenting opinion.

Quisumbing, J., with concurring opinion.

"2. The application for provisional arrest shall contain:

"a) a description of the person sought;

I vote to grant the petition.

I vote to deny the petition.

SEPARATE CONCURRING OPINION

I vote to dismiss the petition, both technical and substantial grounds.

With due respect, I dissent.

When the Right to Notice and

Mark Jimenez Not

The Need for Respondent Jimenez

WHEREFORE, I vote to grant the Petition.

For this primordial reason, I vote to DENY the petition.

438 Phil. 417

G.R. No. 148571, September 24, 2002

circumstances, extend that relief.”

result in a disregard for constitutional liberties.

Govt of Hongkong v Olalia, Jr.

Supreme Court of the Philippines

G.R. NO. 153675, April 19, 2007

The facts are:

2. Accused must surrender his valid passport to this Court;

118 Phil. 1065

G.R. No. L-21897, October 22, 1963

This is an original action for prohibition with preliminary injunction.

rejected—we still live under a rule of law.

Cathay Pacific Airways v CA

Supreme Court of the Philippines

G.R. No. 60501

G.R. No. 60501, March 05, 1993

Cruz, (Chairman), Griño-Aquino, and Quiason, JJ., concur.

101 Phil. 1155

G.R. No. L-7995, May 31, 1957

I. The case and the issue, in general

II. Pertinent 'provisions of Republic Act No. 1180