The Island of Palmas (Miangas) Arbitration, The Netherlands vs.

USA (1928)

Brief Fact Summary. Both the United States (P) laid claim to the ownership of the Island of Palmas. While the U.S.
(P) maintained that it was part of the Philippines, the Netherlands (D) claimed it as their own.

Synopsis of Rule of Law. A title that is inchoate cannot prevail over a definite title found on the continuous and
peaceful display of sovereignty.

Facts. Both the United States (P) laid claim to the ownership of the Island of Palmas. While the U.S. (P) maintained
that it was part of the Philippines, the Netherlands (D) claimed it as their own. The claim of the U.S. (P) was back up
with the fact that the islands had been ceded by Spain by the Treaty of Paris in 1898, and as successor to the rights of
Spain over the Philippines, it based its claim of title in the first place on discovery. On the part of the Netherlands (D),
they claimed to have possessed and exercised rights of sovereignty over the island from 1677 or earlier to the
present.

Issue. Can a title which is inchoate prevail over a definite title found on the continuous and peaceful display of
sovereignty?

Held. (Huber, Arb.). No. A title that is inchoate cannot prevail over a definite title found on the continuous and
peaceful display of sovereignty. The peaceful and continuous display of territorial sovereignty is as good as title.
However, discovery alone without subsequent act cannot suffice to prove sovereignty over the island. The territorial
sovereignty of the Netherlands (D) was not contested by anyone from 1700 to 1906. The title of discovery at best an
inchoate title does not therefore prevail over the Netherlands (D) claims of sovereignty.

Discussion. Evidence of contracts made by the East India Company and the Netherlands (D) was examined by the
arbitrator. The claims made by the Netherlands (D) were also based on the premise of the convention it had with the
princes and native chieftains of the islands. Hence, at the time of the Treaty of Paris in 1898, Spain was found not to
have dominion over the island. y 4,700 private U.S. claims, ordered payment by Iran (D) to U.S. nationals amounting
to over $2.5 billion.

The dispute concerned the sovereignty over the Island of Palmas, ceded by Spain to the United States of America by
treaty concluded in 1898, but claimed by the Netherlands as forming part of its possessions on the basis of having
excercised sovereignty there for more than 200 years.

On January 23, 1925, the United States of America and the Netherlands referred their dispute concerning sovereignty
over the Island of Palmas to arbitration by a sole arbitrator. The sole arbitrator was asked to determine whether the
Island of Palmas (or Miangas) in its entirety formed a part of the territory belonging to the United States of America or
of the territory of the Netherlands.

In his award, the sole arbitrator attached limited significance to discovery as a basis of title and elaborated on the
legal effect of the peaceful and continuous display of state authority over territory. The arbitrator further considered
the role of acquiescence and recognition in circumstances of competing acts of possession, and the principle nemo dat
quod non habet in relation to treaties of cession.

To determine the question of title it was necessery for the arbitrator to consider arguments about the presentation of
evidence in legal proceedings and the specific issue of maps. The arbitrator adoped a liberal approach towards the
production of evidence, but indicated that caution was required when assessing the value of maps.

The arbitrator concluded that even if it had been possible for Spain to have ceded to the United States of America its
inchoate title derived from discovery or contiguity the inchoate title of the Netherlands could not have been modified
by a treaty concluded by third Powers; and such a treaty could not have impressed the character of illegality on any
act undertaken by the Netherlands with a view to completing their inchoate title... at least as long as no dispute on
the matter had arisen. By the time a dispute had arisen, in 1906, the arbitrator found that the establishment of Dutch
authority had already reached such a degree of development, that the importance of maintaining this state of things
ought to be considered as prevailing over a claim, possibly based either on discovery in very distant times and
unsupported by occupation or mere geographical position. For these reasons, the arbitrator held that the Island of
Palmas (or Miangas) formed in its entirety a part of Netherlands territory.

Procedural History:
Arbitration of territorial dispute.

Overview:
-The United States (P) claimed that the Island of Palmas was part of the Philippines but the Netherlands (D) claimed
title as well.
-The United States (P) claimed the Island of Palmas was part of the Philippines and had been ceded by Spain by the
Treaty of Paris in 1898.
-The United States (P), as successor to the rights of Spain over the Philippines, based its claim of title in the first place
on discovery. The Netherlands (D) claimed that it had possessed and exercised rights of sovereignty over the island
from 1677 or earlier to the present.

Issue:
Can an inchoate title prevail over a definite title founded on continuous and peaceful display of sovereignty?

Rule:
-An inchoate title cannot prevail over a definite title found on continuous and peaceful display of sovereignty.

Analysis:
The arbitrator examined evidence of contracts made by the East India Company and the Netherlands (D). The
Netherlands (D) also based its claims on conventions it had with the princes and native chieftains of the islands. Spain
was found not to have had dominion over the island at the time of the Treaty of Paris in 1898.

Outcome:
-An inchoate title cannot prevail over a definite title founded on continuous and peaceful display of sovereignty. The
continuous and peaceful display of territorial sovereignty is as good as title. Discovery alone, without any subsequent
act, cannot suffice to prove sovereignty over the island. There is no positive rule of international law that islands
situated outside territorial waters should belong to a state whose territory forms the nearest continent or large island.
No one contested the exercise of territorial rights by the Netherlands (D) from 1700 to 1906. The title of discovery, at
best an inchoate title, does not prevail over the Netherlands, (D) claim of sovereignty.

International Court of Justice, Contentious Case: Anglo Norwegian Fisheries Case (UK
vs Norway)

Year of Decision: 1951.

The Court was asked to decide, amongst others, the validity, under international law, of the methods used to delimit
Norway’s territorial sea/ fisheries zone. We will not discuss the technical aspects of the judgment relating to the
delimitation, but focus on the Court’s conclusions relating to customary international law.

Background to the case

The United Kingdom requested the court to decide if Norway had used a legally acceptable method in drawing the
baseline from which it measured its territorial sea. The United Kingdom argued that customary international law did
not allow the length of a baseline drawn across a bay to be longer than ten miles. Norway argued that its delimitation
method was consistent with general principles of international law.

Findings of the Court

1. The formation of customary law
The Court referred to (1) positive State practice and (2) lack of contrary State practice as a confirmation of an
existing rule of customary international law (see p. 17 and 18). There was no mention of opinio juris in this early
judgment.
In the following passage, the Court considered expressed dissent by States regarding a particular practice to
be detrimental to the existence of an alleged general rule. Yet, the Court did not examine further whether these
States adopted a contrary practice because, for example, (1) they were claiming an exception to the rule (see
the Nicaragua jurisprudence) or (2) because they believed that the said rule did not possess the character of
customary law.
“In these circumstances the Court deems it necessary to point out that although the ten-mile rule has been adopted
by certain States both in their national law and in their treaties and conventions, and although certain arbitral
decisions have applied it as between these States, other States have adopted a different limit. Consequently, the ten-
mile rule has not acquired the authority of a general rule of international law.”
1.1. The persistent objector
The Court in its judgment held that even if a customary law rule existed on the aforementioned ten-mile rule,
“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any
attempt to apply it to the Norwegian coast.”
In this case, the Court appears to support the idea that an existing customary law rule would not apply to a State if
(1) it objected to the application of the rule to itself (2) at the initial stages and (3) in a consistent manner. The Anglo
Norwegian Fisheries Case, thus, supports the Asylum Case (Peru vs Colombia) in articulating what we now call the
persistent objector rule.
a. Initial objection
The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in spite of the adoption in
some treaties of the quite arbitrary distance of 10 sea miles, this distance would not appear to me to have acquired
the force of international law. Still less would it appear to have any foundation in reality…”
The Court held that “Language of this kind can only be construed as the considered expression of a legal conception
regarded by the Norwegian Government as compatible with international law”. Thus, the Court held that Norway had
refused to accept the rule as regards to it in 1870.
b. Sustained objection
The Court also went on to hold that Norway had followed the principles of delimitation that it considered a part of its
system in a consistent and uninterrupted manner from 1869 until the time of the dispute.
In establishing consistent practice, the Court held that “…too much importance need not be attached to the few
uncertainties or contradictions, real or apparent, which the United Kingdom Government claims to have discovered in
Norwegian practice.”
c. No objection by other States
The Court held that the 10-mile rule did not form a part of the general law and, in any event, could not bind Norway
because of the latter’s objections. Next, the Court inquired whether the Norwegian system of delimitation was
nevertheless contrary to international law. To do so, the Court relied on state practice once more.
“The general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For a period of
more than sixty years the United Kingdom Government itself in no way contested it… The Court notes that in respect
of a situation which could only be strengthened with the passage of time, the United Kingdom Government refrained
from formulating reservations.”

1.2. Contrary State practice of Norway?

In this case, Norway adopted a contrary practice – a practice that was the subject of litigation.
However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e. that its practice was
not contrary to international law). It emphasized that its practice – even if it was a deviation from the general practice
– was in conformity with international law (see page 21).
“In its (Norway’s) view, these rules of international law take into account the diversity of facts and, therefore,
concede that the drawing of base-lines must be adapted to the special conditions obtaining in different regions. In its
view, the system of delimitation applied in 1935, a system characterized by the use of straight lines, does not
therefore infringe the general law; it is an adaptation rendered necessary by local conditions. ”
The Court held that the fact that this consistent and sufficiently long practice took place without any objection to the
practice from other States (until the time of dispute) indicated that these States did not consider the Norwegian
system to be “contrary to international law”.
“The notoriety of the facts, the general toleration of the international community, Great Britain’s position in the North
Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway’s enforcement
of her system against the United Kingdom. The Court is thus led to conclude that the method of straight lines,
established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; that even
before the dispute arose, this method had been consolidated by a consistent and sufficiently long practice, in the face
of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to
international law.”
2. Relationship between international and national law
The Court alluded to the relationship between national and international law in delimitation of maritime boundaries. In
delimitation cases, States “must be allowed the latitude necessary in order to be able to adapt its delimitation to
practical needs and local requirements…” The Court would also consider “…certain economic interests peculiar to a
region, the reality and importance of which are clearly evidenced by a long usage.” However, while the act of
delimitation can be undertaken by the State, its legal validity depends on international law.
“The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the
coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a
unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard
to other States depends upon international law. (p. 20)”

Since 1911 British trawlers had been seized and condemned for violating measures taken by the Norwegian
government specifying the limits within which fishing was prohibited to foreigners. In 1935, a decree was adopted
establishing the lines of delimitation of the Norwegian fisheries zone.
On 24th September 1949 the government of the United Kingdom filed the registry of the international court of justice
an application instituting proceedings against Norway. The subject of the proceeding was the validity, under
international law, of the lines of delimitation of the Norwegian fisheries zone as set forth in a Decree of 12th July
1935.
The application referred to the declaration by which the united Kingdom and Norway had accepted the compulsory
jurisdiction of the International Court of Justice in accordance with article 36 (2) of its statute.
The parties involved in this case were Norway and the United Kingdom, of Great Britain and Northern Ireland. The
implementation of the Royal Norwegian Decree of the 1935 was met with resistance from the United Kingdom. The
decree covers the drawing of straight lines, called “baselines” 4 miles deep into the sea. This 4 miles area is reserved
fishing exclusive for Norwegian nationals. Under article 36(2) both UK and Norway were willing to accept the
jurisdiction of the ICJ on this case and with no appeal. The issues that constitute the case were submitted to the court
and the arguments presented by both countries. The issues claims the court to: declare the principles of international
law applicable in defining the baselines by reference to which Norwegian government was entitled to delimit a
fisheries zone and exclusively reserved to its nationals; and to define the said “base lines” in the light of the
arguments of the parties in order to avoid further legal difference; and secondly to award damages to the government
of the United Kingdom in respect of all interferences by the Norwegian authorities with British fishing vessels outside
the fisheries zone, which in accordance with ICJ's decision, the Norwegian government may be entitled to reserve for
its nationals.
The United Kingdom argued that;
 Norway could only draw straight lines across bays
 The length of lines drawn on the formations of the Skaergaard fjord must not exceed 10 nautical miles( the 10
Mile rule)
 That certain lines did not follow the general direction of the coast or did not follow it sufficiently , or they did
not respect certain connection of sea and land separating them
 That the Norwegian system of delimitation was unknown to the British and lack the notoriety to provide the
basis of historic title enforcement upon opposable to by the United Kingdom
The Kingdom of Norway argued;
 That the base lines had to be drawn in such a way as to respect the general direction of the coast and in a
reasonable manner.
The case was submitted to the International Court of Justice by the government of the United Kingdom. The
government of United Kingdom wants the ICJ to declare the validity of the base lines under international law and
receive compensation for damages caused by Norwegian authorities as to the seizures of British Fishing vessels.
The judgment of the court first examines the applicability of the principles put forward by the government of the UK,
then the Norwegian system, and finally the conformity of that system with international law. The first principle put
forward by the UK is that the baselines must be low water mark, this indeed is the criterion generally adopted my
most states and but differ as to its application. (Johnson 154). The court considered the methods of drawing the lines
but, the court rejected the “trace Parallele” which consists of drawing the outer limits of the belt following the coast
and all its sinuosity. The court also rejected the “courbe tangent” (arcs of a circle) and it is not obligatory under
international law to use these methods of drawing the lines. The court also paid particular attention to the
geographical aspect of the case. The geographical realities and historic control of the Norwegian coast inevitably
contributed to the final decision by the ICJ. The coast of Norway is too indented and is an exception under
international law from the 3 miles territorial waters rule. The fjords, Sunds along the coastline which have the
characteristic of a bay or legal straits should be considered Norwegian for historical reasons that the territorial sea
should be measured from the line of low water mark. So it was agreed on the outset of both parties and the court that
Norway had the right to claim a 4 mile belt of territorial sea. The court concluded that it was the outer line of the
Skaergaard that must be taken into account in admitting the belt of the Norwegian territorial waters. (Johnson 154-
158). “There is one consideration not to be overlooked, the scope of which extends beyond geographical factors. That
of certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long
usage” (Johnson 160)
The law relied upon mainly international Law of the sea; how far a state can modify its territorial waters and its
control over it, exclusively reserving fishing for its nationals. In this case, rules that are practiced for instance how
long a baseline should be. Only a 10 mile long straight line is allowed and this has been the practice by most states
however it is different in the case of Norway because of Norway's geographic indentation, islands and islets.
The international customary law has been a law of reference in the court arguments. Judge Read from Canada asserts
that Customary international law does not recognize the rule according to which belts of territorial waters of coastal
states is to be measured. More so public international law has been relied upon in this case. It regulates relation
between states; the United Kingdom and Norway.
Maritime Law
Coastline Rule
The judgment was rendered in favor of Norway on the 18th December 1951. By 10 votes to 2 the court held that the
method employed in the delimitation of the fisheries zone by the Royal Norwegian decree of the 12th July 1935 is not
contrary to international law. By 8 votes to 4 votes the court also held that the base lines fixed by this decree in
application are not contrary to international law. However there are separate opinions and dissenting opinions from
the judges in the court.
Judge Hackworth declared that he concurred with the operative part of the judgment because he considered that the
Norwegian government had proved the existence of historic title of the disputed areas of water.
Judge Alvarez from Chile relied on the evolving principles of the law of nations applicable to the law of the sea.
 States have the right to modify the extent of the of their territorial sea
 Any state directly concerned may object to another state's decision as to the extent of its territorial sea
 International status of bays and straits must be determined by the coastal state directly concerned with due
regard to the general interest and
 Historic rights and concept of prescription in international law.
Judge Hsu Mo from china opinions diverge from the court's with regards to conformity with principles of international
law to the straight lines drawn by the Decree of 1935. He allowed possibility in certain circumstances, for instance,
belt measured at low tide, Norway's geographic and historic conditions. But drawing the straight lines as of the 1935
degree is a moving away from the practice of the general rule. (Johnson 171)
The dissenting opinions from judge McNair rested upon few rules of law of international waters. Though there are
exceptions, in case of bays, the normal procedure to calculate territorial waters in from the land, a line which follows
the coastline. Judge McNair rejected the argument upon which Norway based its decree including:
 Protecting Norway's economic and other social interests
 The UK should not be precluded from objecting the Norwegian system embodied in the Decree because
previous acquiescence in the system and
 An historic title allowing the state to acquire waters that would otherwise have the status of deep sea. Judge
McNair concluded that the 1935 decree is not compatible with international law.(Johnson173)
Furthermore, Judge Read from Canada was unable to concur with parts of the judgment. Read rejected justification by
Norway for enlarging her maritime domain and seizing and condemning foreign ships (Johnson 173);
 Sovereignty of the coastal state is not the basis for Norway to claim 4 mile belt from straight base lines
 Customary international law does not recognize the rule according to which belts of territorial waters of
coastal states is to be measured.
 Norwegian system cannot be compatible with international law.

Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v.
Norway)

OVERVIEW OF THE CASE

On 16 August 1988, the Government of Denmark filed in the Registry an Application instituting proceedings against
Norway, by which it seised the Court of a dispute concerning the delimitation of Denmark’s and Norway’s fishing zones
and continental shelf areas in the waters between the east coast of Greenland and the Norwegian island of Jan Mayen,
where both Parties laid claim to an area of some 72,000 square kilometres. On 14 June 1993, the Court delivered its
Judgment. Denmark had asked the Court to draw a single line of delimitation of those areas at a distance of 200
nautical miles measured from Greenland’s baseline, or, if the Court did not find it possible to draw such a line, in
accordance with international law. Norway, for its part, had asked the Court to find that the median line constituted
the two lines of separation for the purpose of the delimitation of the two relevant areas, on the understanding that
those lines would then coincide, but that the delimitations would remain conceptually distinct. A principal contention of
Norway was that a delimitation had already been established between Jan Mayen and Greenland, by the effect of
treaties in force between the Parties — a bilateral Agreement of 1965 and the 1958 Geneva Convention on the
Continental Shelf — as both instruments provide for the drawing of a median line.
The Court noted, in the first place, that the 1965 Agreement covered areas different from the continental shelf
between the two countries, and that that Agreement did not place on record any intention of the Parties to undertake
to apply the median line for any of the subsequent delimitations of that continental shelf. The Court then found that
the force of Norway’s argument relating to the 1958 Convention depended in the circumstances of the case upon the
existence of “special circumstances” as envisaged by the Convention. It subsequently rejected the argument of
Norway according to which the Parties, by their “conjoint conduct” had long recognized the applicability of a median
line delimitation in their mutual relations. The Court examined separately the two strands of the applicable law : the
effect of Article 6 of the 1958 Convention, applicable to the delimitation of the continental shelf boundary, and then
the effect of the customary law which governed the fishery zone. After examining the case law in this field and the
provisions of the 1982 United Nations Convention on the Law of the Sea, the Court noted that the statement (in those
provisions) of an “equitable solution” as the aim of any delimitation process reflected the requirements of customary
law as regards the delimitation both of the continental shelf and of exclusive economic zones. It appeared to the Court
that, both for the continental shelf and for the fishery zones in the instant case, it was proper to begin the process of
delimitation by a median line provisionally drawn, and it then observed that it was called upon to examine every
particular factor in the case which might suggest an adjustment or shifting of the median line provisionally drawn. The
1958 Convention required the investigation of any “special circumstances” ; the customary law based upon equitable
principles for its part required the investigation of the “relevant circumstances”.
The Court found that, although it was a matter of categories which were different in origin and in name, there was
inevitably a tendency towards assimilation between the two types of circumstances. The Court then turned to the
question whether the circumstances of the instant case required adjustment or shifting of the median line. To that end
it considered a number of factors. With regard to the disparity or disproportion between the lengths of the “relevant
coasts”, alleged by Denmark, the Court concluded that the striking difference in lengths of the relevant coasts
constituted a special circumstance within the meaning of Article 6, paragraph 1, of the 1958 Convention. Similarly, as
regards the fishery zones, the Court was of the opinion that the application of the median line led to manifestly
inequitable results. The Court concluded therefrom that the median line should be adjusted or shifted in such a way as
to effect a delimitation closer to the coast of Jan Mayen.
The Court then considered certain circumstances that might also affect the position of the boundary line, i.e., access
to resources, essentially fishery resources (capelin), particularly with regard to the presence of ice ; population and
economy ; questions of security ; conduct of the Parties. Among those factors, the Court only retained the one
relating to access to resources, considering that the median line was too far to the west for Denmark to be assured of
equitable access to the capelin stock. It concluded that, for that reason also, the median line had to be adjusted or
shifted eastwards. Lastly, the Court proceeded to define the single line of delimitation as being the line M-N-O-A
marked on the sketch-map reproduced on page 139.

SS Lotus (France v. Turkey)

Brief Fact Summary. Turkey’s (D) assertion of jurisdiction over a French citizen who had been the first officer of a
ship that collided with a Turkish ship on the high seas was challenged by France (P) as a violation of international law.

Synopsis of Rule of Law. A rule of international law, which prohibits a state from exercising criminal jurisdiction
over a foreign national who commits acts outside of the state’s national jurisdiction, does not exist.

Facts. A collision occurred shortly before midnight on the 2nd of August 1926 between the French (P) mail steamer
Lotus and the Turkish (D) collier Boz-Kourt. The French mail steamer was captained by a French citizen by the name
Demons while the Turkish collier Boz-Kourt was captained by Hassan Bey. The Turks lost eight men after their ship
cut into two and sank as a result of the collision.
Although the Lotus did all it could do within its power to help the ship wrecked persons, it continued on its course to
Constantinople, where it arrived on August 3. On the 5th of August, Lieutenant Demons was asked by the Turkish (D)
authority to go ashore to give evidence. After Demons was examined, he was placed under arrest without informing
the French (P) Consul-General and Hassan Bey. Demons were convicted by the Turkish (D) courts for negligence
conduct in allowing the accident to occur.
This basis was contended by Demons on the ground that the court lacked jurisdiction over him. With this, both
countries agreed to submit to the Permanent Court of International Justice, the question of whether the exercise of
Turkish (D) criminal jurisdiction over Demons for an incident that occurred on the high seas contravened international
law.

Issue. Issue: Does a rule of international law which prohibits a state from exercising criminal jurisdiction over a
foreign national who commits acts outside of the state’s national jurisdiction exist?

Held. (Per curiam) No. A rule of international law, which prohibits a state from exercising criminal jurisdiction over a
foreign national who commits acts outside of the state’s national jurisdiction, does not exist. Failing the existence of a
permissive rule to the contrary is the first and foremost restriction imposed by international law on a state and it may
not exercise its power in any form in the territory of another state.
This does not imply that international law prohibits a state from exercising jurisdiction in its own territory, in respect
of any case that relates to acts that have taken place abroad which it cannot rely on some permissive rule of
international law. In this situation, it is impossible to hold that there is a rule of international law that prohibits Turkey
(D) from prosecuting Demons because he was aboard a French ship. This stems from the fact that the effects of the
alleged offense occurred on a Turkish vessel.
Hence, both states here may exercise concurrent jurisdiction over this matter because there is no rule of international
law in regards to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the
state whose flag is flown.

Discussion. In 1975, France enacted a law regarding its criminal jurisdiction over aliens because of this the situation
surrounding this case. The law stipulates that aliens who commit a crime outside the territory of the Republic may be
prosecuted and judged pursuant to French law, when the victim is of French nationality. This is contained in 102
Journal Du Droit International 962 (Clunet 1975). Several eminent scholars have criticized the holding in this case for
seeming to imply that international law permits all that it does not forbid.

Permanent Court of International Justice, Contentious Case: The Lotus Case (France vs Turkey);

Year of the decision: 1927.

Overview:
A collision occurred on the high seas between a French vessel and a Turkish vessel. Victims were Turkish nationals
and the alleged offender was French. Could Turkey exercise its jurisdiction over this French national under
international law?

Facts of the Case:

A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – Boz-Kourt. The Boz-
Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10 survivors of the Boz-Kourt (including
its captain) were taken to Turkey on board the Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the
captain of the Turkish ship were charged with manslaughter. Demons, a French national, was sentenced to 80 days of
imprisonment and a fine. The French government protested, demanding the release of Demons or the transfer of his
case to the French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court
of International Justice (PCIJ).
Questions before the Court:
Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a French
national, outside Turkey? If yes, should Turkey pay compensation to France?
The Court’s Decision:
Turkey, by instituting criminal proceedings against Demons, did not violate international law.
Relevant Findings of the Court:
Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an existing rule of
international law or is the mere absence of a prohibition preventing the exercise of jurisdiction enough?
The first principle of the Lotus Case: A State cannot exercise its jurisdiction outside its territory unless an international
treaty or customary law permits it to do so. This is what we called the first principle of the Lotus Case. The Court held
that:
“Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a
permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this
sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a
permissive rule derived from international custom or from a convention.” (para 45)
The second principle of the Lotus Case: Within its territory, a State may exercise its jurisdiction, in any matter, even if
there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure of
discretion, which is only limited by the prohibitive rules of international law.The Court held that:
“It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in
respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some
permissive rule of international law. Such a view would only be tenable if international law contained a general
prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property
and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain
specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a
general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their
courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of
discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free
to adopt the principles which it regards as best and most suitable. This discretion left to States by international law
explains the great variety of rules which they have been able to adopt without objections or complaints on the part
of other States …In these circumstances all that can be required of a State is that it should not overstep the limits
which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its
sovereignty.” (paras 46 and 47)
This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite to exercise jurisdiction,
the Court argued, then “it would…in many cases result in paralysing the action of the courts, owing to the impossibility
of citing a universally accepted rule on which to support the exercise of their [States’] jurisdiction” (para 48).
The Court based this finding on the sovereign will of States. It held that:
“International law governs relations between independent States. The rules of law binding upon States
therefor emanate from their own free will as expressed in conventions or by usages generally accepted as expressing
principles of law and established in order to regulate the relations between these co-existing independent communities
or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be
presumed”
[Note: This was one of the more debated aspects of the judgement. Some argued that the Court placed too much
emphasis on sovereignty and consent of States (i.e. took a strong positivist view)].
Criminal Jurisdiction: Territorial Jurisdiction
France alleged that the flag State of a vessel has exclusive jurisdiction over offences committed on board the ship in
high seas. The Court disagreed. It held that France, as the flag State, did not enjoy exclusive territorial jurisdiction in
the high seas in respect of a collision with a vessel carrying the flag of another State (paras 71 – 84). The Court held
that Turkey and France both have jurisdiction in respect of the whole incident: in other words, there was concurrent
jurisdiction.
The Court held that a ship in the high seas is assimilated to the territory of the flag State. This State may exercise its
jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land, to the exclusion of all other
States. In this case, the Court equated the Turkish vessel to Turkish territory. The Court held that the “… offence
produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the
application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners.”
The Court concluded that Turkey had jurisdiction over this case. It further said:
“If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign
territory, the same principles must be applied as if the territories of two different States were concerned, and the
conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on
which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its
territory and prosecuting, accordingly, the delinquent.”
The Lotus Case is also significant in that the Court said that a State would have territorial jurisdiction, even if the
crime was committed outside its territory, so long as a constitutive element of the crime was committed in that State.
Today, we call this subjective territorial jurisdiction. In order for subjective territorial jurisdiction to be established,
one must prove that the element of the crime and the actual crime are entirely inseparable: in other words, if the
constituent element was absent – the crime would not have happened. The Court said:
“The offence for which Lieutenant Demons appears to have been prosecuted was an act – of negligence or imprudence
– having its origin on board the Lotus, whilst its effects made themselves felt on board the Boz-Kourt. These two
elements are, legally, entirely inseparable, so much so that their separation renders the offence non-existent… It is
only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is
therefore a case of concurrent jurisdiction.”
Customary International Law
The Lotus case gave an important dictum on creating customary international law. France had alleged that
jurisdictional questions on collision cases are rarely heard in criminal cases, because States tend to prosecute only
before the flag State. France argued that this absence of prosecutions points to a positive rule in customary
law on collisions.The Court disagreed and held that, this:
“…would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that
they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious
of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow
one to infer that States have been conscious of having such a duty; on the other hand, as will presently be seen,
there are other circumstances calculated to show that the contrary is true.”
In other words, opinio juris is reflected not only in acts of States (Nicaragua Case), but also in omissions when
those omissions are made following a belief that the said State is obligated by law to refrain from acting in a
particular way. (For more on opinio juris click here)
Subsequent ICJ Decisions and Separate Opinions That Referred to Principles of the Lotus Case
Advisory Opinion on the Unilateral Declaration of Kosovo (2010)
In the Kosovo Advisory Opinion the Court had to decide if the unilateral declaration of Kosovo of February 2008 was
‘in accordance with’ international law. The Court inquired and concluded that the applicable international law did not
prohibit an unilateral declaration of independence. Based on this finding, the Court decided that ‘the adoption of the
declaration of independence did not… violate any applicable rule of international law’.
Judge Simma disagreed, inter alia, with Court’s methodology in arriving at this conclusion. He imputed the method to
the principle established in the Lotus case: that which is not prohibited is permitted under international law.
He criticised the Lotus dictum as an out dated, 19th century positivist approach that is excessively differential towards
State consent. He said that the Court should have considered the possibility that international law can be deliberately
neutral or silent on the international lawfulness of certain acts. Instead of concluding that an the absence of
prohibition ipso facto meant that a unilateral declaration of independence is permitted under international law,
the Court should have inquired whether under certain conditions international law permits or tolerates unilateral
declarations of independence.

G.R. No. L-18924 October 19, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,

vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.

Attorney-General Villa-Real for appellant.

Eduardo Gutierrez Repide for appellee.

ROMUALDEZ, J.:

In this appeal the Attorney-General urges the revocation of the order of the Court of First Instance of Manila,
sustaining the demurrer presented by the defendant to the information that initiated this case and in which the
appellee is accused of having illegally smoked opium, aboard the merchant vessel Changsa of English nationality
while said vessel was anchored in Manila Bay two and a half miles from the shores of the city.

The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and dismissed the case.

The question that presents itself for our consideration is whether such ruling is erroneous or not; and it will or will not
be erroneous according as said court has or has no jurisdiction over said offense.

The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the one herein involved,
committed aboard merchant vessels anchored in our jurisdiction waters. 1awph!l.net
There are two fundamental rules on this particular matter in connection with International Law; to wit, the French
rule, according to which crimes committed aboard a foreign merchant vessels should not be prosecuted in the
courts of the country within whose territorial jurisdiction they were committed, unless their commission affects the
peace and security of the territory; and the English rule, based on the territorial principle and followed in the United
States, according to which, crimes perpetrated under such circumstances are in general triable in the courts of the
country within territory they were committed. Of this two rules, it is the last one that obtains in this jurisdiction,
because at present the theories and jurisprudence prevailing in the United States on this matter are authority in the
Philippines which is now a territory of the United States.

In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief Justice Marshall
said:

. . . When merchant vessels enter for the purposes of trade, it would be obviously inconvenient and
dangerous to society, and would subject the laws to continual infraction, and the government to degradation,
if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the
jurisdiction of the country. . . .

In United States vs. Bull (15 Phil., 7), this court held:

. . . No court of the Philippine Islands had jurisdiction over an offense or crime committed on the high seas or
within the territorial waters of any other country, but when she came within three miles of a line drawn from
the headlands, which embrace the entrance to Manila Bay, she was within territorial waters, and a new set
of principles became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit
Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the
jurisdiction of the territorial sovereign subject to such limitations as have been conceded by that sovereignty
through the proper political agency. . . .

It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs. Keeper of the Common
Jail (120 U.., 1), wherein it was said that:

. . . The principle which governs the whole matter is this: Disorder which disturb only the peace of the ship or
those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which
disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper
authorities of the local jurisdiction. It may not be easy at all times to determine which of the two jurisdictions
a particular act of disorder belongs. Much will undoubtedly depend on the attending circumstances of the
particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if
the proper authorities are proceeding with the case in the regular way the consul has no right to interfere to
prevent it.

Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:

Although the mere possession of an article of prohibited use in the Philippine Islands, aboard a foreign
vessel in transit in any local port, does not, as a general rule, constitute a crime triable by the courts of the
Islands, such vessels being considered as an extension of its own nationality, the same rule does not apply
when the article, the use of which is prohibited in the Islands, is landed from the vessels upon Philippine soil;
in such a case an open violation of the laws of the land is committed with respect to which, as it is a violation
of the penal law in force at the place of the commission of the crime, no court other than that established in
the said place has jurisdiction of the offense, in the absence of an agreement under an international treaty.

As to whether the United States has ever consented by treaty or otherwise to renouncing such jurisdiction or a part
thereof, we find nothing to this effect so far as England is concerned, to which nation the ship where the crime in
question was committed belongs. Besides, in his work "Treaties, Conventions, etc.," volume 1, page 625, Malloy
says the following:

There shall be between the territories of the United States of America, and all the territories of His Britanic
Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the two countries, respectively, shall
have liberty freely and securely to come with their ships and cargoes to all such places, ports and rivers, in
the territories aforesaid, to which other foreigners are permitted to come, to enter into the same, and to
 remain and reside in any parts of the said territories, respectively; also to hire and occupy houses and
warehouses for the purposes of their commerce; and, generally, the merchants and traders of each nation
respectively shall enjoy the most complete protection and security for their commerce, but subject always to
the laws and statutes of the two countries, respectively. (Art. 1, Commerce and Navigation Convention.)

We have seen that the mere possession of opium aboard a foreign vessel in transit was held by this court not triable
by or courts, because it being the primary object of our Opium Law to protect the inhabitants of the Philippines
against the disastrous effects entailed by the use of this drug, its mere possession in such a ship, without being
used in our territory, does not being about in the said territory those effects that our statute contemplates avoiding.
Hence such a mere possession is not considered a disturbance of the public order.

But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a breach of
the public order here established, because it causes such drug to produce its pernicious effects within our territory. It
seriously contravenes the purpose that our Legislature has in mind in enacting the aforesaid repressive statute.
Moreover, as the Attorney-General aptly observes:

. . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the port of Manila in
open defiance of the local authorities, who are impotent to lay hands on him, is simply subversive of public
order. It requires no unusual stretch of the imagination to conceive that a foreign ship may come into the port
of Manila and allow or solicit Chinese residents to smoke opium on board.

The order appealed from is revoked and the cause ordered remanded to the court of origin for further proceedings in
accordance with law, without special findings as to costs. So ordered.

The Schooner Exchange v. Macfaddon

The Exchange v. McFaddon, 11 U.S. 7 Cranch 116 116 (1812)

The Exchange v. McFaddon

11 U.S. (7 Cranch) 116

ERROR TO THE CIRCUIT

COURT OF PENNSYLVANIA

Syllabus

A public vessel of war of a foreign sovereign at peace with the United States, coming into our ports
and demeaning herself in a friendly manner, is exempt from the jurisdiction of the country.

The jurisdiction of a nation within its own territory, is exclusive and absolute. It is susceptible of no
limitation not imposed by itself. Any restriction deriving validity from an external source would imply a
diminution of its sovereignty to the extent of that restriction, and an investment of that sovereignty to
the same extent in that power which could impose such restriction.

All exceptions to the full and complete power of a nation within its own territories must be traced up to
the consent of the nation itself.

A nation would justly be considered as violating its faith, although not expressly plighted, which
should suddenly and without previous notice exercise its territorial powers in a manner not consonant
to the usages and received obligations of the civilized world.
The full and absolute territorial jurisdiction being alike the attribute of every sovereignty and being
incapable of conferring extraterritorial power, does not contemplate foreign sovereigns, nor their
sovereign rights as its objects. One sovereign can be supposed to enter a foreign territory only under
an express license or in the confidence that the immunities belonging to his independent, sovereign
station, though not expressly stipulated, are reserved by implication and will be extended to him.

A sovereign entering a foreign territory with the knowledge and license of its sovereign, that license,
though containing no stipulation exempting his person from arrest, is universally understood to imply
such stipulation.

A foreign minister is considered as in the place of the sovereign he represents, and therefore not in
point of law within the jurisdiction of the sovereign at whose court he resides.

Where a sovereign allows the troops of a foreign prince to pass through his dominions, he waives his
jurisdiction over the army to which the right of passage has been granted without any express
declaration to that effect.

If there be no prohibition the ports of a friendly nation are considered as open to the public ships of all
powers with whom it is at peace, and they are supposed to enter such ports and to remain in them
under the protection of the government of the place.

If there be no treaty applicable to the case, and the sovereign permits his ports to remain open to the
public ships of foreign friendly powers, they virtually enter by his assent. If they enter by an assent
thus necessarily implied, their case cannot be distinguished from that of vessels entering by express
assent.

The implied license under which a public armed ship enters a friendly port ought to be construed as
containing an exemption from the jurisdiction of the sovereign whose territory she enters.

This being a cause in which the sovereign right claimed by Napoleon, the reigning emperor of the
French, and the political relations between the United States and France were involved, it was, upon
the suggestion of the Attorney General, ordered to a hearing in preference to other causes which
stood before it on the docket.

Page 11 U. S. 117

It was an appeal from the sentence of the Circuit Court of the United States for the District of
Pennsylvania which reversed the sentence of the district court and ordered the vessel to be restored
to the libellants.

The case was this:

On 24 August, 1811, John McFaddon & William Greetham, of the State of Maryland, filed their libel in
the District Court of the United States for the District of Pennsylvania against the
Schooner Exchange, setting forth that they were her sole owners, on 27 October, 1809, when she
sailed from Baltimore, bound to St. Sebastians, in Spain. That while lawfully and peaceably pursuing
her voyage, she was on 30 December, 1810, violently and forcibly taken by certain persons, acting
under the decrees and orders of Napoleon, Emperor of the French, out of the custody of the
libellants, and of their captain and agent, and was disposed of by those persons, or some of them, in
violation of the rights of the libellants and of the law of nations in that behalf. That she had been
brought into the port of Philadelphia, and was then in the jurisdiction of that court, in possession of a
certain Dennis M. Begon, her reputed captain or master. That no sentence or decree of
condemnation had been pronounced against her by any court of competent jurisdiction, but that the
property of the libellants in her remained unchanged and in full force. They therefore prayed the usual
process of the court to attach the vessel, and that she might be restored to them.

Upon this libel the usual process was issued, returnable on 30 August, 1811, which was executed
and returned accordingly, but no person appeared to claim the vessel in opposition to the libellants.
On 6 September, the usual proclamation was made for all persons to appear and show cause why
the vessel should not be restored to her former owners, but no person appeared.

On 13 September, a like proclamation was made, but no appearance was entered.

On 20 September, Mr. Dallas, the Attorney

Page 11 U. S. 118

of the United States for the District of Pennsylvania, appeared and (at the instance of the executive
department of the government of the United States, as it is understood), filed a suggestion to the
following effect:

"Protecting that he does not know and does not admit the truth of the allegations contained in the
libel, he suggests and gives the court to understand and be informed,"

"That inasmuch as there exists between the United States of America and Napoleon, Emperor of
France and King of Italy, &c., a state of peace and amity, the public vessels of his said Imperial and
Royal Majesty, conforming to the law of nations and laws of the said United States, may freely enter
the ports and harbors of the said United States and at pleasure depart therefrom without seizure,
arrest, detention or molestation. That a certain public vessel described and known as
the Balaou, or Vessel No. 5, belonging to his said Imperial and Royal Majesty and actually employed
in his service, under the command of the Sieur Begon upon a voyage from Europe to the Indies
having encountered great stress of weather upon the high seas, was compelled to enter the port of
Philadelphia for refreshment and repairs about 22 July, 1811. That having entered the said port from
necessity and not voluntarily, having procured the requisite refreshments and repairs, and having
conformed in all things to the law of nations and the laws of the United States, was about to depart
from the said port of Philadelphia and to resume her voyage in the service of his said Imperial and
Royal Majesty when on 24 August, 1811, she was seized, arrested, and detained in pursuant of the
process of attachment issued upon the prayer of the libellants. That the said public vessel had not at
any time, been violently and forcibly taken or captured from the libellants, their captain and agent on
the high seas, as prize of war or otherwise, but that if the said public vessel, belonging to his said
Imperial and Royal Majesty as aforesaid, ever was a vessel navigating under the flag of the United
States and possessed by the libellants, citizens thereof, as in their libel is alleged (which nevertheless

Page 11 U. S. 119

the said Attorney does not admit), the property of the libellants in the said vessel was seized and
divested, and the same became vested in His Imperial and Royal Majesty within a port of his empire
or of a country occupied by his arms, out of the jurisdiction of the United States and of any particular
state of the United States, according to the decrees and laws of France in such case provided. And
the said attorney submitting whether, in consideration of the premises, the court will take cognizance
of the cause, respectfully prays that the court will be pleased to order and decree that the process of
attachment heretofore issued be quashed, that the libel be dismissed with costs, and that the said
public vessel, her tackle, &c., belonging to his said Imperial and Royal Majesty be released, &c. And
the said attorney brings here into court the original commission of the said Sieur Begon. . . ."
On 27 September, 1811, the libellants filed their answer to the suggestion of the district attorney, to
which they except because it does not appear to be made for or on behalf or at the instance of the
United States or any other body politic or person.

They aver that the schooner is not a public vessel, belonging to His Imperial and Royal Majesty, but is
the private property of the libellants. They deny that she was compelled by stress of weather to enter
the port of Philadelphia or that she came otherwise than voluntarily, and that the property of the
libellants in the vessel never was divested, or vested in His Imperial and Royal Majesty within a port
of his empire or of a country occupied by his arms.

The district attorney produced the affidavits of the Sieur Begon and the French consul verifying the
commission of the captain and stating the fact that the public vessels of the Emperor of France never
carry with them any other document or evidence that they belong to him than his flag, the
commission, and the possession of his officers.

In the commission it was stated that the vessel was armed at Bayonne.

On 4 October, 1811, the district judge dismissed

Page 11 U. S. 120

the libel with costs upon the ground that a public armed vessel of a foreign sovereign in amity with our
government is not subject to the ordinary judicial tribunals of the country so far as regards the
question of title by which such sovereign claims to hold the vessel.

From this sentence, the libellants appealed to the circuit court, where it was reversed on 28 October,
1811.

From this sentence of reversal, the district attorney, appealed to this Court.

Page 11 U. S. 135

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as follows:

This case involves the very delicate and important inquiry whether an American citizen can assert in
an American court a title to an armed national vessel found within the waters of the United States.

The question has been considered with an earnest solicitude, that the decision may conform to those
principles

Page 11 U. S. 136

of national and municipal law by which it ought to be regulated.

In exploring an unbeaten path with few if any aids from precedents or written law, the Court has found
it necessary to rely much on general principles and on a train of reasoning founded on cases in some
degree analogous to this.

The jurisdiction of courts is a branch of that which is possessed by the nation as an independent
sovereign power.
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is
susceptible of no limitation not imposed by itself. Any restriction upon it deriving validity from an
external source would imply a diminution of its sovereignty to the extent of the restriction and an
investment of that sovereignty to the same extent in that power which could impose such restriction.

All exceptions, therefore, to the full and complete power of a nation within its own territories must be
traced up to the consent of the nation itself. They can flow from no other legitimate source.

This consent may be either express or implied. In the latter case it is less determinate, exposed more
to the uncertainties of construction, but if understood, not less obligatory.

The world being composed of distinct sovereignties, possessing equal rights and equal
independence, whose mutual benefit is promoted by intercourse with each other and by an
interchange of those good offices which humanity dictates and its wants require, all sovereigns have
consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute
and complete jurisdiction within their respective territories which sovereignty confers.

This consent may in some instances be tested by common usage and by common opinion, growing
out of that usage.

Page 11 U. S. 137

A nation would justly be considered as violating its faith, although that faith might not be expressly
plighted, which should suddenly and without previous notice exercise its territorial powers in a
manner not consonant to the usages and received obligations of the civilized world.

This full and absolute territorial jurisdiction, being alike the attribute of every sovereign and being
incapable of conferring extraterritorial power, would not seem to contemplate foreign sovereigns nor
their sovereign rights as its objects. One sovereign being in no respect amenable to another, and
being bound by obligations of the highest character not to degrade the dignity of his nation by placing
himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign
territory only under an express license, or in the confidence that the immunities belonging to his
independent sovereign station, though not expressly stipulated, are reserved by implication, and will
be extended to him.

This perfect equality and absolute independence of sovereigns, and this common interest impelling
them to mutual intercourse, and an interchange of good offices with each other, have given rise to a
class of cases in which every sovereign is understood to waive the exercise of a part of that complete
exclusive territorial jurisdiction which has been stated to be the attribute of every nation.

1st. One of these is admitted to be the exemption of the person of the sovereign from arrest or
detention within a foreign territory.

If he enters that territory with the knowledge and license of its sovereign, that license, although
containing no stipulation exempting his person from arrest, is universally understood to imply such
stipulation.

Why has the whole civilized world concurred in this construction? The answer cannot be mistaken. A
foreign sovereign is not understood as intending to subject himself to a jurisdiction incompatible with
his dignity, and the dignity of his nation, and it is to avoid this subjection

Page 11 U. S. 138
that the license has been obtained. The character to whom it is given and the object for which it is
granted equally require that it should be construed to impart full security to the person who has
obtained it. This security, however, need not be expressed; it is implied from the circumstances of the
case.

Should one sovereign enter the territory of another without the consent of that other, expressed or
implied, it would present a question which does not appear to be perfectly settled -- a decision of
which is not necessary to any conclusion to which the Court may come in the cause under
consideration. If he did not thereby expose himself to the territorial jurisdiction of the sovereign whose
dominions he had entered, it would seem to be because all sovereigns impliedly engage not to avail
themselves of a power over their equal which a romantic confidence in their magnanimity has placed
in their hands.

2d. A second case, standing on the same principles with the first, is the immunity which all civilized
nations allow to foreign ministers.

Whatever may be the principle on which this immunity is established, whether we consider him as in
the place of the sovereign he represents or by a political fiction suppose him to be extraterritorial, and
therefore in point of law not within the jurisdiction of the sovereign at whose court he resides, still the
immunity itself is granted by the governing power of the nation to which the minister is deputed. This
fiction of exterritoriality could not be erected and supported against the will of the sovereign of the
territory. He is supposed to assent to it.

This consent is not expressed. It is true that in some countries, and in this among others, a special
law is enacted for the case. But the law obviously proceeds on the idea of prescribing the punishment
of an act previously unlawful, not of granting to a foreign minister a privilege which he would not
otherwise possess.

The assent of the sovereign to the very important and extensive exemptions from territorial
jurisdiction

Page 11 U. S. 139

which are admitted to attach to foreign ministers is implied from the considerations that without such
exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His
minister would owe temporary and local allegiance to a foreign prince, and would be less competent
to the objects of his mission. A sovereign committing the interests of his nation with a foreign power to
the care of a person whom he has selected for that purpose cannot intend to subject his minister in
any degree to that power, and therefore a consent to receive him implies a consent that he shall
possess those privileges which his principal intended he should retain -- privileges which are
essential to the dignity of his sovereign and to the duties he is bound to perform.

In what cases a minister, by infracting the laws of the country in which he resides, may subject
himself to other punishment than will be inflicted by his own sovereign is an inquiry foreign to the
present purpose. If his crimes be such as to render him amenable to the local jurisdiction, it must be
because they forfeit the privileges annexed to his character, and the minister, by violating the
conditions under which he was received as the representative of a foreign sovereign, has
surrendered the immunities granted on those conditions, or, according to the true meaning of the
original assent, has ceased to be entitled to them.

3d. A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is
where he allows the troops of a foreign prince to pass through his dominions.
In such case, without any express declaration waiving jurisdiction over the army to which this right of
passage has been granted, the sovereign who should attempt to exercise it would certainly be
considered as violating his faith. By exercising it, the purpose for which the free passage was granted
would be defeated and a portion of the military force of a foreign independent nation would be
diverted from those national objects and duties to which it was applicable, and would be withdrawn
from the control of the sovereign whose power and whose safety might greatly depend on retaining

Page 11 U. S. 140

the exclusive command and disposition of this force. The grant of a free passage therefore implies a
waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use
that discipline and to inflict those punishments which the government of his army may require.

But if, without such express permit, an army should be led through the territories of a foreign prince,
might the jurisdiction of the territory be rightfully exercised over the individuals composing this army?

Without doubt, a military force can never gain immunities of any other description than those which
war gives by entering a foreign territory against the will of its sovereign. But if his consent, instead of
being expressed by a particular license, be expressed by a general declaration that foreign troops
may pass through a specified tract of country, a distinction between such general permit and a
particular license is not perceived. It would seem reasonable that every immunity which would be
conferred by a special license would be in like manner conferred by such general permit.

We have seen that a license to pass through a territory implies immunities not expressed, and it is
material to inquire why the license itself may not be presumed.

It is obvious that the passage of an army through a foreign territory will probably be at all times
inconvenient and injurious, and would often be imminently dangerous to the sovereign through whose
dominion it passed. Such a practice would break down some of the most decisive distinctions
between peace and war, and would reduce a nation to the necessity of resisting by war an act not
absolutely hostile in its character, or of exposing itself to the stratagems and frauds of a power whose
integrity might be doubted, and who might enter the country under deceitful pretexts. It is for reasons
like these that the general license to foreigners to enter the dominions of a friendly power is never
understood to extend to a military force, and an army marching into the dominions of another
sovereign may justly be considered as committing an act of hostility, and if not opposed by force,
acquires no privilege by its irregular and improper

Page 11 U. S. 141

conduct. It may, however, well be questioned whether any other than the sovereign power of the state
be capable of deciding that such military commander is without a license.

But the rule which is applicable to armies does not appear to be equally applicable to ships of war
entering the parts of a friendly power. The injury inseparable from the march of an army through an
inhabited country, and the dangers often -- indeed generally -- attending it do not ensue from
admitting a ship of war without special license into a friendly port. A different rule, therefore, with
respect to this species of military force has been generally adopted. If, for reasons of state, the ports
of a nation generally or any particular ports be closed against vessels of war generally, or the vessels
of any particular nation, notice is usually given of such determination. If there be no prohibition, the
ports of a friendly nation are considered as open to the public ships of all powers with whom it is at
peace, and they are supposed to enter such ports and to remain in them while allowed to remain,
under the protection of the government of the place.
In almost every instance, the treaties between civilized nations contain a stipulation to this effect in
favor of vessels driven in by stress of weather or other urgent necessity. In such cases, the sovereign
is bound by compact to authorize foreign vessels to enter his ports. The treaty binds him to allow
vessels in distress to find refuge and asylum in his ports, and this is a license which he is not at liberty
to retract. It would be difficult to assign a reason for withholding from a license thus granted any
immunity from local jurisdiction which would be implied in a special license.

If there be no treaty applicable to the case, and the sovereign, from motives deemed adequate by
himself, permits his ports to remain open to the public ships of foreign friendly powers, the conclusion
seems irresistible that they enter by his assent. And if they enter by his assent necessarily implied, no
just reason is perceived by the Court for distinguishing their case from that of vessels which enter by
express assent.

Page 11 U. S. 142

In all the cases of exemption which have been reviewed, much has been implied, but the obligation of
what was implied has been found equal to the obligation of that which was expressed. Are there
reasons for denying the application of this principle to ships of war?

In this part of the subject a difficulty is to be encountered the seriousness of which is acknowledged,
but which the Court will not attempt to evade.

Those treaties which provide for the admission and safe departure of public vessels entering a port
from stress of weather or other urgent cause provide in like manner for the private vessels of the
nation, and where public vessels enter a port under the general license which is implied merely from
the absence of a prohibition, they are, it may be urged, in the same condition with merchant vessels
entering the same port for the purposes of trade who cannot thereby claim any exemption from the
jurisdiction of the country. It may be contended, certainly with much plausibility if not correctness, that
the same rule and same principle are applicable to public and private ships, and since it is admitted
that private ships entering without special license become subject to the local jurisdiction, it is
demanded on what authority an exception is made in favor of ships of war.

It is by no means conceded that a private vessel really availing herself of an asylum provided by
treaty, and not attempting to trade, would become amenable to the local jurisdiction unless she
committed some act forfeiting the protection she claims under compact. On the contrary, motives may
be assigned for stipulating and according immunities to vessels in cases of distress which would not
be demanded for or allowed to those which enter voluntarily and for ordinary purposes. On this part of
the subject, however, the Court does not mean to indicate any opinion. The case itself may possibly
occur, and ought not to be prejudged.

Without deciding how far such stipulations in favor of distressed vessels, as are usual in treaties, may
exempt private ships from the jurisdiction of the place, it may safely be asserted that the whole
reasoning upon which such exemption has been implied in other cases

Page 11 U. S. 143

applies with full force to the exemption of ships of war in this.

"It is impossible to conceive," says Vattel,

"that a prince who sends an ambassador or any other minister can have any intention of subjecting
him to the authority of a foreign power, and this consideration furnishes an additional argument, which
completely establishes the independency of a public minister. If it cannot be reasonably presumed
that his sovereign means to subject him to the authority of the prince to whom he is sent, the latter, in
receiving the minister, consents to admit him on the footing of independency, and thus there exists
between the two princes a tacit convention which gives a new force to the natural obligation."

Equally impossible is it to conceive, whatever may be the construction as to private ships, that a
prince who stipulates a passage for his troops or an asylum for his ships of war in distress should
mean to subject his army or his navy to the jurisdiction of a foreign sovereign. And if this cannot be
presumed, the sovereign of the port must be considered as having conceded the privilege to the
extent in which it must have been understood to be asked.

To the Court it appears that where, without treaty, the ports of a nation are open to the private and
public ships of a friendly power, whose subjects have also liberty without special license to enter the
country for business or amusement, a clear distinction is to be drawn between the rights accorded to
private individuals or private trading vessels and those accorded to public armed ships which
constitute a part of the military force of the nation.

The preceding reasoning has maintained the propositions that all exemptions from territorial
jurisdiction must be derived from the consent of the sovereign of the territory, that this consent may
be implied or expressed, and that when implied, its extent must be regulated by the nature of the
case and the views under which the parties requiring and conceding it must be supposed to act.

Page 11 U. S. 144

When private individuals of one nation spread themselves through another as business or caprice
may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels
enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and
would subject the laws to continual infraction and the government to degradation, if such individuals
or merchants did not owe temporary and local allegiance and were not amenable to the jurisdiction of
the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects
thus passing into foreign countries are not employed by him, nor are they engaged in national
pursuits. Consequently there are powerful motives for not exempting persons of this description from
the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied
license, therefore, under which they enter can never be construed to grant such exemption.

But in all respects different is the situation of a public armed ship. She constitutes a part of the military
force of her nation; acts under the immediate and direct command of the sovereign; is employed by
him in national objects. He has many and powerful motives for preventing those objects from being
defeated by the interference of a foreign state. Such interference cannot take place without affecting
his power and his dignity. The implied license, therefore, under which such vessel enters a friendly
port may reasonably be construed, and it seems to the Court ought to be construed, as containing an
exemption from the jurisdiction of the sovereign within whose territory she claims the rites of
hospitality.

Upon these principles, by the unanimous consent of nations, a foreigner is amenable to the laws of
the place; but certainly in practice, nations have not yet asserted their jurisdiction over the public
armed ships of a foreign sovereign entering a port open for their reception.

Bynkershoek, a jurist of great reputation, has indeed maintained that the property of a foreign
sovereign is not distinguishable by any legal exemption from the

Page 11 U. S. 145
property of an ordinary individual, and has quoted several cases in which courts have exercised
jurisdiction over causes in which a foreign sovereign was made a party defendant.

Without indicating any opinion on this question, it may safely be affirmed that there is a manifest
distinction between the private property of the person who happens to be a prince and that military
force which supports the sovereign power and maintains the dignity and the independence of a
nation. A prince, by acquiring private property in a foreign country, may possibly be considered as
subjecting that property to the territorial jurisdiction; he may be considered as so far laying down the
prince and assuming the character of a private individual, but this he cannot be presumed to do with
respect to any portion of that armed force which upholds his Crown and the nation he is entrusted to
govern.

The only applicable case cited by Bynkershoek is that of the Spanish ships of war seized in Flushing
for a debt due from the King of Spain. In that case, the States General interposed, and there is
reason to believe from the manner in which the transaction is stated that, either by the interference of
government or the decision of the court, the vessels were released.

This case of the Spanish vessels is, it is believed, the only case furnished by the history of the world
of an attempt made by an individual to assert a claim against a foreign prince by seizing the armed
vessels of the nation. That this proceeding was at once arrested by the government in a nation which
appears to have asserted the power of proceeding in the same manner against the private property of
the prince would seem to furnish no feeble argument in support of the universality of the opinion in
favor of the exemption claimed for ships of war. The distinction made in our own laws between public
and private ships would appear to proceed from the same opinion.

It seems then to the Court to be a principle of public law that national ships of war entering the port of
a friendly power open for their reception are to be considered

Page 11 U. S. 146

as exempted by the consent of that power from its jurisdiction.

Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and
exercise jurisdiction either by employing force or by subjecting such vessels to the ordinary tribunals.
But until such power be exerted in a manner not to be misunderstood, the sovereign cannot be
considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of
faith to exercise. Those general statutory provisions, therefore, which are descriptive of the ordinary
jurisdiction of the judicial tribunals, which give an individual whose property has been wrested from
him a right to claim that property in the courts of the country in which it is found, ought not, in the
opinion of this Court, to be so construed as to give them jurisdiction in a case in which the sovereign
power has impliedly consented to waive its jurisdiction.

The arguments in favor of this opinion which have been drawn from the general inability of the judicial
power to enforce its decisions in cases of this description from the consideration that the sovereign
power of the nation is alone competent to avenge wrongs committed by a sovereign, that the
questions to which such wrongs give birth are rather questions of policy than of law, that they are for
diplomatic, rather than legal, discussion, are of great weight and merit serious attention. But the
argument has already been drawn to a length which forbids a particular examination of these points.

The principles which have been stated will now be applied to the case at bar.
In the present state of the evidence and proceedings, the Exchange must be considered as a vessel
which was the property of the libellants, whose claim is repelled by the fact that she is now a national
armed vessel, commissioned by and in the service of the Emperor of France. The evidence of this
fact is not controverted. But it is contended that it constitutes no bar to an inquiry into the validity of
the title by which the emperor holds this vessel. Every person, it is alleged, who is entitled to property
brought within the jurisdiction of our courts has a

Page 11 U. S. 147

right to assert his title in those courts unless there be some law taking his case out of the general
rule. It is therefore said to be the right, and if it be the right, it is the duty of the court, to inquire
whether this title has been extinguished by an act the validity of which is recognized by national or
municipal law.

If the preceding reasoning be correct, the Exchange, being a public armed ship in the service of a
foreign sovereign with whom the government of the United States is at peace, and having entered an
American port open for her reception on the terms on which ships of war are generally permitted to
enter the ports of a friendly power, must be considered as having come into the American territory
under an implied promise that while necessarily within it and demeaning herself in a friendly manner,
she should be exempt from the jurisdiction of the country.

If this opinion be correct, there seems to be a necessity for admitting that the fact might be disclosed
to the court by the suggestion of the attorney for the United States.

I am directed to deliver it as the opinion of the Court that the sentence of the circuit court reversing
the sentence of the district court in the case of the Exchange be

Reversed, and that of the district court dismissing the libel be affirmed.

Brief Fact Summary. Two Americans (P) laid claims of ownership and entitlements to the schooner
Exchange.

Synopsis of Rule of Law. National ships of war are viewed as been exempted by consent of the
power of the friendly jurisdiction whose port the ship enters.

Facts. Two Americans (P) claimed they owned and were entitled to the schooner Exchange they
seized on the high seas. The claim which the United States Attorney (D) put forward for the
prevention of the ship leaving was that, the ship which was owned by the Emperor of France had
been forced to enter the port of Philadelphia due to bad weather conditions.
At this point in time, the U.S and France were on friendly terms. The United States’ (D) request for the
dismissal of ownership and release of the ship was granted by the district court. However, this
judgment was reversed by the circuit court and this did not prevent the United States (D) from
appealing to the U.S. Supreme Court.

Issue. Are National ships of war viewed as been exempted by the consent of the power of the friendly
jurisdiction whose port the ship enters?

Held. (Marshall, C.J.) Yes. National ships of war are viewed as been exempted by consent of the power of the
friendly jurisdiction whose port the ship enters. A nation’s jurisdiction within its sovereign territory is exclusive
and absolute.
The Exchange been a public armed ship, currently under the control and supervision of a foreign power, who
at the time of the ship’s entry into the United States territory, was at peace with the United States, must be
viewed as having entered the states territory under an implied promise that while in such environment, would
be exempt from the jurisdiction of the country. Reversed.

Discussion. The absolute form of sovereign immunity from judicial jurisdiction was implicated in this case.
Three principles were brought forward by the court in this case; the immunity that all civilized nations allow to
foreign ministers; the exemption of the person of the sovereign from arrest or imprisonment within a foreign
country; and when a sovereign permits troops of a foreign prince to pass through his territory, such sovereign
is understood to mean he has ceded a portion of his territorial jurisdiction.

CHUNG V. THE KING

Lord Atkin - (1.) This is an appeal from the Full Court of Hongkong dismissing an appeal by the
appellant from his conviction and sentence at a trial in the Supreme Court of Hongkong before the
Chief Justice, MacGregor C. J., and a jury. The appellant was convicted of the murder of Douglas
Lorne Campbell and was sentenced to death. The murder was committed on board the Chinese
Maritime Customs cruiser "Cheung Keng"while that vessel was in Hongkong territorial waters. Both
the murdered man and the appellant were in the service of the Chinese Government as members of
the officers and crew of the cruiser. The former was captain: the appellant was cabin boy. Both were
British nationals. At the trial, the point was taken that as the murder took place on an armed public
vessel of the foreign Government, the British Court had no jurisdiction in the matter. The contention
was overruled by the Chief Justice at the trial, and on appeal his decision was upheld by the Full
Court over which he presided.
(2.) In order to elucidate the legal position it will be necessary to make a short statement of the
material facts. On 11 January 1937 the accused shot and killed the captain. He then went up the
ladder to the bridge and shot at and wounded the acting chief officer, and then went below and shot
and wounded himself. The acting chief officer as soon as he was wounded directed the boatswain to
proceed to Hongkong at full speed and hail the police launch. He wanted, he said, help to arrest the
accused from the Hongkong police. Within a couple of hours the launch of the Hongkong water police
came alongside in answer to the cruiser's signal. The police took the wounded officer and the accused
to hospital. They took possession of the two revolvers with which the accused had armed himself, of
the spent revolver bullets and expended shells, and of some unexpended cartridges. On 25 February,
extradition proceedings were commenced against the accused on the requisition of the chairman of
the Provincial Government of Kwangtung alleging murder and attempted murder on board the
Chinese Customs cruiser "within the jurisdiction of China while the said cruiser was approximately
one mile off Futaumun (British waters)."This appears to be an allegation that the vessel had not at
the time reached British territorial waters. The fact that the crime was in reality committed within
British waters is not now in dispute. After many adjournments the Magistrate decided, on evidence
called for the defence, that the accused was a British national and that the proceedings therefore
failed. The accused was at once re-arrested and charged with murder "in the waters of this
colony"and duly committed. At the hearing before the Magistrate and at the trial the acting chief
officer and three of the crew of the Chinese cruiser were called as witnesses for the prosecution.
Police witnesses produced and gave evidence as to the revolvers, cartridge cases and bullets. As has
already been stated the accused was convicted and sentenced to death.
(3.) On the question of jurisdiction two theories have found favour with persons professing a
knowledge of the principles of international law. One is that a public ship of a nation for all purposes
either is or is to be treated by other nations as part of the territory of the nation to which she
belongs. By this conception will be guided the domestic law of any country in whose territorial waters
the ship finds herself. There will therefore be no jurisdiction in fact in any Court where jurisdiction
depends upon the act in question or the party to the proceedings being done or found or resident in
the local territory. The other theory is that a public ship in foreign waters is not and is not treated as
territory of her own nation. The domestic Courts in accordance with principles of international law will
accord to the ship and its crew and its contents certain immunities, some of which are well settled,
though others are in dispute. In this view the immunities do not depend upon an objective
exterritoriality, but on implication of the domestic law. They are conditional and can in any case be
waived by the nation to which the public ship belongs.;

G.R. No. 17958 February 27, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
LOL-LO and SARAW, defendants-appellants.

Thos. D. Aitken for appellants.

Acting Attorney-General Tuason for appellee.

MALCOLM, J.:

The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and Captain Kidd and
Bartholomew Roberts gripped the imagination, when grostesque brutes like Blackbeard flourished, seem far away in
the pages of history and romance. Nevertheless, the record before us tells a tale of twentieth century piracy in the
south seas, but stripped of all touches of chivalry or of generosity, so as to present a horrible case of rapine and
near murder.

On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another Dutch possession. In one
of the boats was one individual, a Dutch subject, and in the other boat eleven men, women, and children, likewise
subjects of Holland. After a number of days of navigation, at about 7 o'clock in the evening, the second boat arrived
between the Islands of Buang and Bukid in the Dutch East Indies. There the boat was surrounded by
six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but once on the Dutch boat, too
for themselves all of the cargo, attacked some of the men, and brutally violated two of the women by methods too
horrible to the described. All of the persons on the Dutch boat, with the exception of the two young women, were
again placed on it and holes were made in it, the idea that it would submerge, although as a matter of fact, these
people, after eleven days of hardship and privation, were succored violating them, the Moros finally arrived at
Maruro, a Dutch possession. Two of the Moro marauder were Lol-lo, who also raped one of the women, and Saraw.
At Maruro the two women were able to escape.

Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands. There they were
arrested and were charged in the Court of First Instance of Sulu with the crime of piracy. A demurrer was interposed
by counsel de officio for the Moros, based on the grounds that the offense charged was not within the jurisdiction of
the Court of First Instance, nor of any court of the Philippine Islands, and that the facts did not constitute a public
offense, under the laws in force in the Philippine Islands. After the demurrer was overruled by the trial judge, trial
was had, and a judgment was rendered finding the two defendants guilty and sentencing each of them to life
imprisonment (cadena perpetua), to return together with Kinawalang and Maulanis, defendants in another case, to
the offended parties, the thirty-nine sacks of copras which had been robbed, or to indemnify them in the amount of
924 rupees, and to pay a one-half part of the costs.

A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a process of
elimination, however, certain questions can be quickly disposed of.

The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy is robbery or forcible
depredation on the high seas, without lawful authority and done animo furandi, and in the spirit and intention of
universal hostility.

It cannot be contended with any degree of force as was done in the lover court and as is again done in this court,
that the Court of First Instance was without jurisdiction of the case. Pirates are in law hostes humani generis. Piracy
is a crime not against any particular state but against all mankind. It may be punished in the competent tribunal of
any country where the offender may be found or into which he may be carried. The jurisdiction of piracy unlike all
other crimes has no territorial limits. As it is against all so may it be punished by all. Nor does it matter that the crime
was committed within the jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not
neutral to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for decision for the first time is whether or not
the provisions of the Penal Code dealing with the crime of piracy are still in force. Article 153 to 156 of the Penal
Code reads as follows:

ART. 153. The crime of piracy committed against Spaniards, or the subjects of another nation not at war
with Spain, shall be punished with a penalty ranging from cadena temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with Spain, it shall be
punished with the penalty of presidio mayor.

ART. 154. Those who commit the crimes referred to in the first paragraph of the next preceding article shall
suffer the penalty of cadena perpetua or death, and those who commit the crimes referred to in the second
paragraph of the same article, from cadena temporal to cadena perpetua:

1. Whenever they have seized some vessel by boarding or firing upon the same.

2. Whenever the crime is accompanied by murder, homicide, or by any of the physical injuries
specified in articles four hundred and fourteen and four hundred and fifteen and in paragraphs one
and two of article four hundred and sixteen.

3. Whenever it is accompanied by any of the offenses against chastity specified in Chapter II, Title
IX, of this book.

4. Whenever the pirates have abandoned any persons without means of saving themselves.

5. In every case, the captain or skipper of the pirates.

ART. 155. With respect to the provisions of this title, as well as all others of this code, when Spain is
mentioned it shall be understood as including any part of the national territory.

ART. 156. For the purpose of applying the provisions of this code, every person, who, according to the
Constitution of the Monarchy, has the status of a Spaniard shall be considered as such.

The general rules of public law recognized and acted on by the United States relating to the effect of a transfer of
territory from another State to the United States are well-known. The political law of the former sovereignty is
necessarily changed. The municipal law in so far as it is consistent with the Constitution, the laws of the United
States, or the characteristics and institutions of the government, remains in force. As a corollary to the main rules,
laws subsisting at the time of transfer, designed to secure good order and peace in the community, which are strictly
of a municipal character, continue until by direct action of the new government they are altered or repealed.
(Chicago, Rock Islands, etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)

These principles of the public law were given specific application to the Philippines by the Instructions of President
McKinley of May 19, 1898, to General Wesley Meritt, the Commanding General of the Army of Occupation in the
Philippines, when he said:

Though the powers of the military occupant are absolute and supreme, and immediately operate upon the
political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private
rights of person and property, and provide for the punishment of crime, are considered as continuing in
force, so far as they are compatible with the new order of things, until they are suspended or superseded by
the occupying belligerent; and practice they are not usually abrogated, but are allowed to remain in force,
and to be administered by the ordinary tribunals, substantially as they were before the occupations. This
enlightened practice is so far as possible, to be adhered to on the present occasion. (Official Gazette,
Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt Proclamation of August 14, 1898.)

It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were meant to include the
Philippine Islands. Article 156 of the Penal Code in relation to article 1 of the Constitution of the Spanish Monarchy,
would also make the provisions of the Code applicable not only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the civil law, and he has
never been disputed. The specific provisions of the Penal Code are similar in tenor to statutory provisions elsewhere
and to the concepts of the public law. This must necessarily be so, considering that the Penal Code finds its
inspiration in this respect in the Novelas, the Partidas, and the Novisima Recopilacion.

The Constitution of the United States declares that the Congress shall have the power to define and punish piracies
and felonies committed on the high seas, and offenses against the law of nations. (U.S. Const. Art. I, sec. 8, cl. 10.)
The Congress, in putting on the statute books the necessary ancillary legislation, provided that whoever, on the high
seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the
United States, shall be imprisoned for life. (U.S. Crim. Code, sec. 290; penalty formerly death: U.S. Rev. Stat., sec.
5368.) The framers of the Constitution and the members of Congress were content to let a definition of piracy rest
on its universal conception under the law of nations.

It is evident that the provisions of the Penal Code now in force in the Philippines relating to piracy are not
inconsistent with the corresponding provisions in force in the United States.

By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction of articles of
the Penal Code, like the articles dealing with the crime of piracy, would be that wherever "Spain" is mentioned, it
should be substituted by the words "United States" and wherever "Spaniards" are mentioned, the word should be
substituted by the expression "citizens of the United States and citizens of the Philippine Islands." somewhat similar
reasoning led this court in the case of United States vs. Smith ([1919], 39 Phil., 533) to give to the word "authority"
as found in the Penal Code a limited meaning, which would no longer comprehend all religious, military, and civil
officers, but only public officers in the Government of the Philippine Islands.

Under the construction above indicated, article 153 of the Penal Code would read as follows:

The crime of piracy committed against citizens of the United States and citizens of the Philippine Islands, or
the subjects of another nation not at war with the United States, shall be punished with a penalty ranging
from cadena temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with the United States, it
shall be punished with the penalty of presidio mayor.

We hold those provisions of the Penal code dealing with the crime of piracy, notably articles 153 and 154, to be still
in force in the Philippines.

The crime falls under the first paragraph of article 153 of the Penal Code in relation to article 154. There are present
at least two of the circumstances named in the last cited article as authorizing either cadena perpetua or death. The
crime of piracy was accompanied by (1) an offense against chastity and (2) the abandonment of persons without
apparent means of saving themselves. It is, therefore, only necessary for us to determine as to whether the penalty
of cadena perpetua or death should be imposed. In this connection, the trial court, finding present the one
aggravating circumstance of nocturnity, and compensating the same by the one mitigating circumstance of lack of
instruction provided by article 11, as amended, of the Penal Code, sentenced the accused to life imprisonment. At
least three aggravating circumstances, that the wrong done in the commission of the crime was deliberately
augmented by causing other wrongs not necessary for its commission, that advantage was taken of superior
strength, and that means were employed which added ignominy to the natural effects of the act, must also be taken
into consideration in fixing the penalty. Considering, therefore, the number and importance of the qualifying and
aggravating circumstances here present, which cannot be offset by the sole mitigating circumstance of lack of
instruction, and the horrible nature of the crime committed, it becomes our duty to impose capital punishment.

The vote upon the sentence is unanimous with regard to the propriety of the imposition of the death penalty upon
the defendant and appellant Lo-lo (the accused who raped on of the women), but is not unanimous with regard to
the court, Mr. Justice Romualdez, registers his nonconformity. In accordance with provisions of Act No. 2726, it
results, therefore, that the judgment of the trial court as to the defendant and appellant Saraw is affirmed, and is
reversed as to the defendant and appellant Lol-lo, who is found guilty of the crime of piracy and is sentenced
therefor to be hung until dead, at such time and place as shall be fixed by the judge of first instance of the Twenty-
sixth Judicial District. The two appellants together with Kinawalang and Maulanis, defendants in another case, shall
indemnify jointly and severally the offended parties in the equivalent of 924 rupees, and shall pay a one-half part of
the costs of both instances. So ordered.

G.R. No. L-1325 April 7, 1947

GEORGE L. TUBB and WESLEY TEDROW, petitioners,

vs.
THOMAS E. GRIESS, respondent.

Justiniano S. Montano for petitioners.

J. A. Wolfson for respondent.

MORAN, C.J.:

This is a petition for habeas corpus filed by George L. Tubb and Wesley Tedrow, citizens of the United States but
residents of the Philippines, under written contract of employment with the Army of the United States. It appears that
sometime between January 13, 1947, as appearing in the "charge sheet" submitted by respondent, the herein
petitioners were apprehended by the authorities of the United States Army and have since been held in custody. On
January 28, 1947, petitioners were formally charged by said authorities with violations of Articles of War regarding
misappropriation of United States Government property destined for military use, said acts having been committed
within premises occupied by the United States Army under lease contracts.

Petitioners now come before this Court alleging that they are being unlawfully deprived of their liberty and that
Philippine courts have exclusive jurisdiction over their arrest, confinement and imprisonment because (1) they are
not persons subject to military laws, (2) martial law is no longer enforced.

In the contract of employment entered into by petitioners with the United States Army, it is shown that they
voluntarily submitted themselves to United States military law while serving said contract, thereby submitting
themselves to the full extent of the authority of the United States Army in this area. This, coupled with the fact that
petitioners are American citizens, makes their position during the subsistence of said contract no different from that
of enlisted men, enlistment after all being nothing more than a contract of voluntary service in the armed forces of
one's country. Petitioners then, in relation to the United States Army in the Philippines and during the subsistence of
their employment contract, can be deemed to possess the status of military personnel.

It is a settled principle of International Law that a foreign army allowed to march through a friendly country or to be
stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the
place. In applying this rule in the case of Raquiza vs. Bradford (75 Phil., 50), this Court held that "if a foreign army
permitted to be stationed in a friendly country, "by permission of its government or sovereign," is exempt from the
civil and criminal jurisdiction of the place, with much more reason should the Army of the United States which is not
only permitted by the Commonwealth Government to be stationed here but has come to the islands and stayed in
them for the express purpose of liberating them, and further prosecuting the war to a successful conclusion, be
exempt from the civil and criminal jurisdiction of this place, at least for the time covered by said agreement of the
two Governments. By analogy, an attempt of our civil courts to exercise jurisdiction over the United States Army
before such period expires, would be considered as a violation of this country's faith, which this Court should not be
the last to keep and uphold. By exercising it, paraphrasing the foregoing quotation, the purpose for which the
stationing of the army in the islands was requested or agreed upon may be hampered or prejudiced, and a portion of
said military force would be withdrawn from the control of the sovereign to whom they belong. And, again, by
analogy, the agreement for the stationing of the United States Army or a part of its forces in the Philippines implies a
waiver of all jurisdiction over their troops during the time covered by such agreement, and permits the allied general
or commander-in-chief to retain that exclusive control and discipline which the government of his army may require."

The basis of this ruling is the leading case of The Schooner Exchange vs. McFadden (7 Cranch, 116) in which the
United States Supreme Court speaking through Chief Justice Marshall, held that "a third case in which a sovereign
is understood to cede a portion of his territorial jurisdiction is, where he allows the troops of a foreign prince to pass
through his dominions. In such case, without any express declaration waving jurisdiction over the army to which this
right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as
violating his faith. By exercising it, the purpose for which the free passage was granted would be defeated, and a
portion of the military force of a foreign independent nation would be diverted from those national objects and duties
to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety
might greatly depend on retaining the exclusive command and disposition of this force. The grant of a free passage
therefore implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to
use that discipline, and to inflict those punishments which the government of his army may require."

Since then, this principle has been consistently embodied in treaties of military character among friendly nations and
has been accepted by all the countries of the world. The most authoritative writers on International Law firmly concur
in this rule. To quote —

Wheaton. — A foreign army or fleet, marching through, sailing over or stationed in the territory of another
State, with whom the foreign sovereign to whom they belong is in amity, are also, in like manner, exempt
from the civil and criminal jurisdiction of the place. (Elements of International Law, section 95.)

Hall. — Military forces enter the territory of a state in amity with that to which they belong, either when
crossing to and fro between the main part of their country and an isolated piece of it, or as allies passing
through for the purposes of a campaign, or furnishing garrisons for protection. In cases of the former kind,
the passage of soldiers being frequent, it is usual to conclude conventions, specifying the line of road to be
followed by them, and regulating their transit so as to make it as little onerous as possible to the population
among whom they are. Under such conventions offenses committed by soldiers against the inhabitants are
dealt with by the military authorities of the state to which the former belong; and as their general object in
other respects is simply regulatory of details, it is not necessary to look upon them as intended in any
respect to modify the rights of jurisdiction possessed by the parties to them respectively. There can be no
question that the concession of jurisdiction over passing troops to the local authorities would be extremely
inconvenient; and it is believed that the commanders, not only of forces in transit through a friendly country
with which no convention exists, but also of forces stationed there, assert exclusive jurisdiction in principle in
respect of offenses committed by persons under their command, though they may be willing as a matter of
concession to hand over culprits to the civil power when they have confidence in the courts, and when their
stay is likely to be long enough to allow of the case being watched. The existence of a double jurisdiction in
a foreign country being scarcely compatible with the discipline of an army, it is evident that there would be
some difficulty in carrying out any other arrangement. (Emphasis supplied; International Law, 7th ed.,
section 56.)

Lawrence. — The universally recognized rule of modern time is that a state must obtain express permission
before its troops can pass through the territory of another state .. . Permissions may be given as a
permanent privilege by treaty for such a purpose as sending relief to garrisons, or it may be granted as a
special favor for the special occasion on which it is asked. The agreement for passage generally contains
provisions for the maintenance of order in the force by its own officers, and makes them, and the state in
whose service they are, responsible for the good behavior of the soldiers towards the inhabitants. In the
absence of special agreement the troops would not be amenable to the local law, but would be under the
jurisdiction and control of their own commanders, as long as they remained within their own lines or were
away on duty, but not otherwise. (Principles of International Law, 6th ed., section 107, p. 246.)

Oppenhein. — Whenever armed forces are on foreign territory in the service of their home State, they are
considered exterritorial and remain, therefore, under its jurisdiction. A crime committed on foreign territory by
a member of these forces cannot be punished by the local civil or military authorities, but only by the
commanding officer of the forces or by another authorities of their home State. This rule, however, applies
only in case the crime is committed, either within the place where the force is stationed, or in some place
where the criminal was on duty; it does not apply, if, for example, soldiers belonging to a foreign garrison of
a fortress leave the rayon of the fortress not on duty but for recreational and pleasure, and then and there
commit a crime. The local authorities are in that case competent to punish them. (International Law, 4th ed.,
Vol. I, section 445.)

Westlake affirmed Wheaton's view.

Hyde. — Strong grounds of convenience and necessity prevent the exercise of jurisdiction over a foreign
organized military force which, with the consent of the territorial sovereign, enters its domain. Members of
the force who there commit offenses are dealt with by the military or other authorities of the State to whose
service they belong, unless the offenders are voluntarily given up. (I International Law, section 247.)
 McNair and Lauterpacht. — It is a principle of international law that the armed forces of one State, when
crossing the territory of another friendly country, with the acquiescence of the latter, is not subject to the
jurisdiction of the territorial sovereign, but to that of the officers and superior authorities of its own command.
(Annual of Digest, 1927-1928, Case No. 114.)

Vattel. — . . . the grant of passage includes that of every particular thing connected with the passage of
troops, and of things without which it would not be practicable; such as the liberty of carrying whatever may
be necessary to an army; that of exercising military discipline on the officers and soldiers . . .. (III, 8, section
130, as quoted in Woolsey's International Law, 6th ed., section 68.)

Without applying the recent treaty on military bases concluded between the governments of the Philippines and the
United States, it having reference to base sites not involved in this case, and considering that a part of the United
States Army is stationed in the Philippines with permission of our government, and that petitioners who belong to the
military personnel of that army are charged with violations of Articles of War for offenses committed in areas under
the control of the United States Army, thereby giving said army jurisdiction over their person and the offenses
charged, petition is dismissed, without costs.

Feria, Pablo, Hilado, Bengzon, Briones, Hontiveros, Padilla and Tuason, JJ., concur.

PARAS, J.:

I concur in the result.

Separate Opinions

PERFECTO, J., dissenting:

Connected as civilian employees with the Manila Engineer Department of the United States Army depot at the North
Harbor, Manila, petitioners George L. Tubb and Wesley Tedrow were arrested on January 4, 1947, by individuals
posing as agents of the CID (Criminal Investigation Division) and since then they were confirmed, restrained and
deprived of their liberty.

In their petition filed with this Court, dated February 20, 1947, petitioners allege that in spite of the fact that they had
been detained for more than one month, no formal complaint or information for any specific violation of law has been
filed against them, nor any judicial writ or order for their commitment has at any time been issued so far; that they
did not commit any offenses for which they may be arrested, detained or deprived of their liberty without formal
charges or judicial warrant; that, according to information, they are detained by the United States Army authorities at
the North Habor, Manila, at the behest and alleged order of a certain Cap. Thomas E. Griess, Security Officer of the
Manila Engineer District, whose office is at Pasay, Rizal; that their detention, according to information was based on
the suspicion of having stolen and disposed of certain construction materials, explosives, and other miscellaneous
items belonging to the United States Army; that they are not persons subject to military laws and only a competent
court having jurisdiction in the Philippines can order their arrest, detention, and imprisonment; that there being no
martial law in the Philippines, war having been officially terminated as of December 31, 1946, and the Constitution in
the Philippines being in full force and operation, the detention and confinement of petitioners are utterly illegal.

Respondent Thomas E. Griess, Captain, Corps of Engineers, United States Army, in his return averred that
respondent, as an officer of the United States Army, pursuant to orders issued by his superiors and in his official
capacity as such officer, has in custody the petitioners against each of whom charges have been filed, which
charges are to be tried and heard by a general court martial; that petitioners are each civilian employees of the
United States Army in the Philippines, Tubb under a written contract of employment dated January 30, 1946, clause
26 of which, in part, reads: "The Employee understands he or she is subject to the United States Military Law while
serving under this agreement," and the latter (Tedrow) under a written contract of employment dated July 29, 1946,
clause 9 of which, in part, reads: "You are subject to military law whenever it is established by competent
authorities;" that part of the United States Army is stationed in the Philippines by virtue of the laws of the United
States among which is Joint Resolution No. 93, which provides for the mutual protection of the United States and
the Philippines and, petitioners were engaged as civilian employees of said army; that all persons serving with the
Armies of the United States without the territorial jurisdiction of the United States are subject to the articles of war of
said country; that on January 28, 1947, formal charges for violation of the 94th Article of War were filed against
petitioner Tubb, and on the same day formal charges for violation of the 96th Article of War were filed against
petitioner Tedrow, and it is by virtue of aforesaid charges and military orders that respondent has custody of
petitioners; that the place at the North Harbor, Manila where petitioners are in custody is under the jurisdiction of the
United States by virtue of duly executed leases dated June 14, 1955; that petitioners are not confined in any prison
or jail but are confined under surveillance of respondent in their living quarters which are situated on the leased
premises.

At the hearing of this case, which took place on March 7, 1947, Atty. Justiniano S. Montano appeared and argued
for petitioners and Atty. J. A. Wolfson, for respondent. The latter, accompanied by respondent and two-star generals
of the United States Army, garbed in their military uniform, made the statement that this case has been
communicated to Washington and that the United States Government is interested in its result. The intimidation
implied in the statement compelled counsel for petitioners to make an impassioned protest against the uncalled-for
statement and one of the Justices made the statement to the effect that this Court shall not allow any outsider to
influence it in deciding this case.

No mention having been made in the decision of the incident, notwithstanding the fact that it involves a clear attempt
to jeopardize the authority and dignity of this Court, we deem it necessary to state that such kind of attempts should
not be allowed to pass without a rebuke or a more drastic action. The Supreme Court of the Philippines, if it is to
uphold its dignity and prestige and keep the faith and respect of the people, should not be slow in repressing,
correcting, or punishing any and all bullying tactics that any litigant or attorney should resort to in a pending
litigation. It is necessary to make of record that in the performance of its official functions this Supreme Court will not
allow any foreign government or all the combined armies of the world to cow it and to make it deviate even an iota
from its duty. The interest of justice is all-paramount. It is above all governments and armies, which, after all, if they
should serve the political and ethical purposes for which they are created and established, are but also instruments
to make justice effective.

Upon the undisputed facts in this case, we entertain no doubt that petitioners are illegally deprived of their personal
freedom and, therefore, are entitled to be immediately released.

The commitment in their contracts of employment to the effect that they are subject to military law may not repeal
the mandates in the Bill of Rights of the Constitution. Fundamental rights are not goods of commerce. They are not
proper subjects of contracts. Besides, petitioner's commitment can never be construed as a renunciation of their
constitutional rights. Military law is not superior nor equal to the supreme law. The constitution is always paramount.

At the risk of being repetitious, it is necessary to remind that, under the Constitution, no person shall be deprived of
liberty without due process of law nor shall any person be denied the equal protection of the laws. The right of the
people to be secure in their persons against unreasonable searches and seizures shall not be violated and no
warrant shall be issued but upon probable cause to be determined by the court after examination under oath or
examination of the complainant and the witnesses he may produce, particularly describing the place to be searched
and the persons or things to be seized. The liberty of abode and of changing the same within the limits prescribed
by law shall not be impaired. No involuntary servitude in any form shall exist except for the punishment of crime
whereof the party shall have been duly convicted. No person shall be allowed to answer for a criminal offense
without due process of law. All persons shall before conviction be bailable. Free access to the courts shall not be
denied to any person by reason of poverty.

All these constitutional guarantees are intended to protect not only Filipino citizens, but all human beings within the
territory of our Republic, including American citizens and, if need be, even against their own government and army.
The fundamental law does not use the word citizens in the Bill of Rights. It invariably use the word person. Due
process of law by which a person may be deprived of his liberty contemplates judicial process. And judicial process
can only be had with the intervention of tribunals. Under Article VIII of the Constitution, the judicial power shall be
vested in one Supreme Court and in such inferior courts as may be established by law. There cannot be and should
not be any question that petitioners' fundamental rights, as guaranteed by the Constitution of the Philippines, have
been flagrantly violated and this Court will be recreant in not granting them the expected relief to which they are
entitled under the law.

This is one more case in which, by majority vote, this Supreme Court abdicates its powers, denying the victims of
the redress to which they are entitled. In this case the abdication of judicial power is aggravated by surrender of the
sovereignty of the Filipino people. Without the benefit of ambassadorial negotiations, of senatorial ratifications, or
even of a scrap of treaty or convention, the majority, in fact, accept and recognize extra-territoriality, only to wash
hands in petitioner's case. No dissent is vigorous enough against such judicial attitude.

Since International Law has been indiscriminatingly and confusingly misapplied in support of the glaringly erroneous
majority opinion in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113), many have been misled to imitating
the example to the extent of creating a portentous judicial vogue. The fashionable is morbidly contagious. It seems
that one is liable to lose his self-respect if he can not invoke international law once in a while, although to do it he
has to hurriedly scratch the surface of the science and oftenly misread his authors, an unavoidable risk in litigations
were there is no legal issue between nations. How risky it is shown by the hard time endured by those who
supported the majority opinion in the Co Kim Cham case to explain their international law pronouncements, which
shred counsel for petitioner in Laurel vs. Misa (77 Phil., 856), had invoked as authority in support of the theory of
"suspended allegiance." Inconsistencies are hard to explain. It is even harder if the only reasonable explanation that
can be given would exact an honest admission of error. The greatness of soul required to confess an error belongs
only to the elite of moral aristocracy.

Here we have a litigation in which the legal issues are centered on the question of the personal freedom of two
individuals, small civilian employees in the service of the Unite States Army, and who happen to be under the
territorial jurisdiction of the Republic of the Philippines and under the pale of our Constitution. The litigation does not
raise any question involving any nation or group of nations. The fact that petitioners are American citizens is
indifferent. Liberty, as one of the fundamental human rights, is a constitutional issue, and not international.
Notwithstanding this fact, the real and only issue, the constitutional one, is side-stepped by the majority.
International law is used as a bludgeon to blast petitioner's faith in the inviolability of their constitutional rights.

At the expense of committing tuategory, we are compelled to conclude that cheap international law has nowadays
become a fashion in judicial and legal circles. Under the spell of international law, the sense of legal values has
suffered and is enduring a moral disturbance, blurring judicial vision. Swayed by the transient infatuation of the new
legal fad, the majority allow themselves to be blindfolded by the fulgour of the newly found juridical shibboleth to
ignore petitioner's clamors for the vindication of their constitutional rights, as guaranteed by fundamental law,
condemning their earnest prayers for relief to the futility of "vox clamantis in diserto." Such is the glamor of the
resounding international law that it was able to drown and obliterate completely the humanitarian and lofty tenets
stereotyped in the Constitution by the will of the sovereign people.

Misunderstood, misinterpreted, misapplied, international law has become a sort of juridical panacea, a universal
thesaurus, always at hand for any solution that can be desired in any ticklish litigation. It is even recognized as
endowed with aseity.

The root of this awry judicial attitude lies in a glaring misunderstanding and misconception of section 3, Article VII of
the Constitution which says:

The Philippines renounces war as an instrument of national policy, and adopts the generally accepted
principles of international law as part of the law of the Nation.

There is the mistaken idea that international law had become part of the Constitution and even superior to the
primary principles and fundamental guarantees expressly enunciated therein. To correct such a mistake, it is
necessary to remember the following basic ideas:

1. That the declaration that the Philippines "adopts the generally accepted principles of international law as part of
the law of the Nation" is an enunciation of a general national policy but never intended to lay down specific
principles, provisions, or rules superior or even equal to the specific mandates and guarantees in the fundamental
law.
2. That "the generally accepted principles of international law" made part of our statute books are not placed in a
higher legal hierarchy than any other law that Congress may enact.

3. That said "generally accepted principles of international law" are not fixed and unchangeable but, on the contrary,
may undergo development and amplification, amendment and repeal, that is, the same biological rules that govern
all laws, including the fundamental one.

4. That the general statement made by the Constitution implies that the principles of international law which should
be considered as part of the law of the nation are subject to determination by the agencies of our government,
including courts of justice, and once determined they may be amended, enlarged or repealed, exactly as any act of
Congress.

5. That those principles are to be gathered from many sources — treaties and conventions, court decisions, laws
enacted by legislatures, treatises, magazine articles, historical facts and others — and the majority of them must be
sifted from conflicting opinions coming from said sources.

6. That the provisions of the Constitution should always be held supreme and must always prevail over any contrary
law without exempting principles of international law, no matter how generally or universally they may be accepted.

Under the express provisions of the Constitution, petitioners appear to be unconstitutionally deprived of their
personal liberty and, therefore, are entitled to be set free.

To deny the petition, the majority invoke international law. In the hypothesis that there is such a law in support of the
majority position, the law must give way to the supremacy of the Constitution.

The hypothesis happens to be wrong because it is expressly based on pronouncements made in the case of
Raquiza vs. Bradford (75 Phil., 50), which, as we have shown in our opinion in said case, are completely mistaken.

Said mistaken pronouncements are made to rely on the opinion of Chief Justice Marshall in The Schooner
Exchange vs. McFadden (7 Cranch, 116) which, although rendered by one considered to be the greatest luminary
whoever graced the Supreme Court of the United States, was written long ago, in the horse-and-buggy age, which,
from the cultural point of view, notwithstanding the inverse difference of years, appears to be millennia behind from
our Atomic Age than the Stone Age was from Marshall's time.

But even accepting the validity of Chief Justice Marshall's pronouncement, there is nothing in them to support the
majority position in this case, because, while the American jurist recognized the jurisdiction of a foreign army
passing through another country over their "troops during their passage," the majority in this case fail to differentiate
petitioners from said "troops", both parties agreeing that petitioners are civilians, and no one can pretend that Chief
Justice Marshall would commit the lexicographical error of including "civilians" among the "troops" of an army.

The several quotations in the majority decisions are inapplicable.

Wheaton is quoted by the majority to say that "a foreign army or fleet, marching through, sailing over, or situated in
the territory of another state . . .are . . . exempt from the civil and criminal jurisdiction of the place." There is nothing
in the words of Wheaton to authorize the majority position. There is nothing in this case to intimate that this
Supreme Court is asked or is trying to exercise any jurisdiction over the United States Army stationed in Manila.
Petitioners are neither an army nor a fleet. They are just a couple of American civilians.

Hall is the next authority invoked by the majority. The quotation states that "offenses committed by soldiers" of
passing or stationed military forces "against the inhabitants are dealt with" under concluded "conventions," adding
that when there are no such conventions, "it is believed that the commanders . . . exert exclusive jurisdiction in
principle in respect of offenses committed by persons under their command." It is clear that Hall offers no support to
the majority position. There is absolutely no convention that the majority may invoke in this case, and what Hall said
"it is believed" cannot seriously be entertained by any court of justice. To accept a conjecture as an authority or a
basis to set a legal rule is below the level of judicial dignity.
"In the absence of a special agreement the troops would not be amenable to the local law but would be under the
jurisdiction and control of their own commanders," so says Lawrence, the third authority quoted by the majority.
Considering that petitioners are civilians and cannot be classified within the designation of "troops," to apply the
words of lawrence to the present case must necessarily be based on a misreading.

The quotation from Oppenheim, the fourth authority invoked by our brethrens, deals with "soldiers." Has any one in
this case pretended that petitioners are soldiers?

The next authority is Westlake, affirming Wheaton's view, and we have already shown how this view is absolutely
inapplicable to the present case.

The quotation from Hyde, the sixth authority invoked, deals with "organized military force" and with "members of the
force who commit offenses." Here we have another instance of missing the point, as the words "members" of an
"organized military force" can never be understood to include civilians.

The seventh authority is McNair and Lauterpacht. The quotation deals exclusively with the jurisdiction on "the armed
forces" of a foreign country. Civilians are not a part of armed forces.

The eight and last authority is Vattel, and the quotation in the majority opinion contains absolutely no word
applicable to the present case. The nearest are where the author says "that the grant of passage includes . . . that of
excising military discipline on the officers and soldiers." To apply the quotation to the present case, petitioners must
first undergo a metamorphosis to cease being civilians and, through magic, become overnight "officers" or
"soldiers", so the facts in this case can be made to conform to the legal theory intended to be applied by the
majority.

The above analyses of the very quotations inserted in their majority opinion show conclusively that the pretended
principles of international law invoked by the majority in support of their position happened to be conclusively
missing in each and everyone of the very quotations inserted in their opinion. Only the force of an overpowering
auto-suggestions can permit one to read in those quotations what is not written therein.

Proneness to read in the writings of authorities of international law or even in judicial decisions any ruling, principle,
or doctrine that may justify the trampling down of the fundamental human rights invoked by petitioners, rights which
are specifically guaranteed in our Constitution and in the constitutions of all democracies and enlightened countries,
must have been corrected once and for all since June 25, 1945, when the Charter of the United Nations was
adopted in San Francisco.

Since then, the principles or rules of international law which may happen to be incompatible or deviating from the
principles and ideals enunciated in the Charter must be considered obsolete.

In the said Charter, the United Nations asserted their determination:

to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold
sorrow to mankind, and "to reaffirm faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and small, and

to establish conditions under which justice and respect for the obligations arising from treaties and other
sources of international law can be maintained, and

to promote social progress and better standards of life in larger freedom.

Anybody will notice that "fundamental human rights" and "dignity and worth of the human person" form part of the
supreme concern of the United Nations. Neither the Philippines nor the United States of America can honorably
ignore the solemn commitments entered into by them as members of the United Nations. All the agencies of their
respective governments, including tribunals and armies, are duty bound to respect, obey and make effective those
commitments. The preamble of the charter specifically provides, "that armed forces shall not be used, save in
common interest," the latter comprehending the basic purposes of the organization of the United Nations, such as
"promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to
race, sex, language, or religion."

There is absolutely no reason why we should be afraid, reluctant, or hesitant in performing our duty to grant
petitioners the legal relief to their illegal and unconstitutional deprivation of personal liberty, because our action may
displease the army or the government of the United States of America, or because the American army stationed in
Manila, may disregard our decision.

Justice is one of the paramount concerns and ideals of humanity. We cannot believe that any part of the United
States Army stationed in the Philippines would dare to challenge a final decision of this Supreme Court or of any
court in the Philippines. We cannot believe that any responsible officer or soldier of that great army will ever commit
an act that may tarnish the record of brilliant and glorious achievements it accomplished in the battle of the
Philippines. That army fought to help us reconquer our freedom from Japanese slavery and to obtain justice against
the criminal invasion of our soil, and we cannot believe it will ever do anything to obstruct the efficient functioning of
our machinery of justice.

But whether this litigation has been communicated to Washington, or whether the United States Government is
interested in its outcome, or whether the American army may ignore any decision we may render in favor of
petitioners, or whatever adverse action may be taken by the all-powerful United States, these are considerations
that should not stop us from doing our duty in the administration of justice. No power in the whole universe should
be allowed to deter us from performing our functions as our conscience dictates. Others may do as they please, but
we cannot have any other alternative but to keep this tribunal as the veritable bulwark of the Constitution and of the
fundamental rights guaranteed therein. Only by failing to do so may we merit the sneers of shame, the wrath of our
people, the curse of the present and future generations, the scorn of all humanity. There is no greater mission in life
than justice. There is no greater responsibility than to administer it.

On February 10, 1947, by unanimous vote of all the members of this Court, the petition in Martin vs. Ramos (L-
1290), was summarily dismissed, without the need of requiring any answer from the respondent. The legal question
involved appeared so clear to entertain any doubt. All the Justices in the Court maintained that the Court of First
Instance of Ilocos Norte has jurisdiction to try Felipe Martin, a guard in the service of the United States Army in
Laoag, for killing Pantaleon Tabac while said Martin was in the performance of his official duties as a guard. Said
court denied the petition of Lt. Walter T. Bartlett to have Martin delivered to the United States Army.

Now the legal position in the Martin case is reversed with the decision in the present case. The inconsistency is
unquestionable. What is the reason of this change of judicial criterion in two months time? There is no valid reason.
There is no legal justification.

We dissent from such judicial fickleness. The apodeictic self-contradiction involved in the reversal can not help
strengthen popular faith in the decisions of this Court. Judicial inconsistency is a conclusive evidence that of two
inconsistent decisions one is necessarily wrong and unjust, based on false theory, founded on fallacious doctrine.
Who is going to judge which of the two contradictory decisions is true to justice? Tribunals enunciate very often the
Latin maxim "falsus in unus, falsus in omnibus." By its inconsistency, is not this Supreme Court being placed in the
quandary of seeing the logic of that maxim hanging upon it as a sword of Damocles?

We refuse to believe that the fact that respondent, an officer of the United States Army, is vigorously opposing the
petition, and that his attorney hurled at our face a menacing statement which, unfortunately, has not been met,
either promptly or belatedly, by appropriate action from this Court, has anything to do with the reversal. But
apparently stronger reasons than the inapplicable quotations on international law made in the majority opinion must
be adduced to allay all suspicion that judicial supremacy is being abdicated in favor of military omnipotence. A
journalist has recently published this assertion: "Under prevailing judicial policy our courts are afraid to go against
the theoretical independence of each of the three branches of government, in spite of the judiciary's function as
guardian of the Constitution. That the newspaperman, instead of using another word, had written "afraid" and once
Mr. Justice Ozaeta had to allude to what he called "judicial timidity" are alarming symptoms that need be quelled,
not by verbal protests, but by positive action, the meaning of which should be conclusive to everybody.

Large dosage of dynamism and red blood must be injected in judicial thought so as to free it from all hindering
complexities, to emancipate it from all human frailties, to allow it to loosen all moral shackles that may keep it from
resolutely facing its tasks and acting with Olympian serenity. Formerly no Justice or judge dared to discuss
decisions or methods of their courts believing it offensive to propriety. On March 16, 1947, we delivered before the
College Editors' Guild a speech discussing some decisions and methods of the Supreme Court. No one suspected
then that we were starting a revolution in judicial attitude. One week later all our brethen released public statements
to the press, addressed to the people at large, wherein, trying to answer our speech, they took occasion to expose
and condemn our alleged individual defects and personal conduct, to the extent of assuming what our sense of
righteousness and personal dignity should counsel us and of suggesting our resignation.

The freedom of expression of Justices and judges, as one of the fundamental human rights, achieved a moral
victory against the superstitious fear to offend the dreaded sense of propriety, which, after all, is nothing basic and is
but an expression of collective or individual taste, highly momentary and changeable as any fashion can be. Now all
the members of the Supreme Court are unanimous in the position that we should not be afraid to exercise our
freedom of expression even outside of this Court.

Our brethren's branding our conduct as highly improper and inconsistent with the self-restraint of members of an
appellate court can not prevail upon the significance of their own course of action in releasing their press
statements.

Our duty to interpret, apply and make effective the Constitution must be performed without any fear nor favor. Must
not be deterred by the mistaken idea that there exists any principle, rule or doctrine of international law that can
supersede, supplant, or overpower the fundamental law. No consideration, should be allowed to deviate us from that
duty.

President Roxas a few days ago made the following statement:

This administration is determined to raise the standard of the judiciary to the highest level so that the people
may have full trust and confidence in our courts. This objective can only be attained if the judges are men of
the highest integrity and moral character, of unquestioned capacity, and of broadest human sympathies and
understanding. They should not only be familiar with the law but, above all, they should respect and apply it
under all circumstances and never to sacrifice the same for the sake of expediency.

The petition in this case, besides invoking the guarantees of the Constitution, is an appeal to our "broadest human
sympathies and understanding." If, according to President Roxas, judges should respect and apply the law "under
all circumstances and never to sacrifice the same for the sake of expediency," then there is absolutely no reason
why petitioners should be denied the protection of the law "par excellence," the supreme law, the Constitution.

Of course, neither the President of the Philippines nor any authority on earth, except the people from whose
sovereignty our powers are derived, may take any hand on how this Supreme Court is to administer justice, but the
sound that we do not see any reason why it should not be included in our goals.

The decision in this case has a wider and deeper significance than superficial observers may gather from the
insignificance of the individuals concerned. It goes down to shake the very foundations of human society and
reaches far to the destiny of civilization. The effectiveness of legal and constitutional guarantees of human rights is
the one in issue. The majority decide to set at naught that effectiveness. If the law can not afford effective protection
to individual rights, where shall we look for that protection? Since its more primitive stages, human society has been
able to exist thanks to law as its strongest foundation. The binding force of law unified the members of a family
under its head, patriarch or matriarch; grouped families into clans and tribes; created towns and cities; consolidated
nations and federations of states. That binding force is the sovereign talisman that will weld all humanity into the
unity essential for the attainment of the ideal of One World.

There is despair in many hearts. There are many who feel that an upheaval is going to doom mankind into universal
destruction. They think that the very foundations are falling apart. The harnessing of atomic energy gives them little
consolation. While it is considered as the greatest scientific triumph, the outstanding milestone in human progress, a
source of new light, new warmth, new freedom, new happiness, it also placed man on the brink of an abyss where
only ruin and chaos can exist. The greatest victory in the conquest of nature may yet prove to be the unhappiest and
last tragedy for man. But these gloomy premonitions, alarms, fears, and despair shall be dispelled once we think
than eventually all the countries, nations and peoples of the world will adhere to, abide by, and enforce the principle
of singleness of the law as the only means of ensuring world peace. The Charter of the United Nations and the
Statute of the International Court of Justice are the first steps in the right direction. They are laws intended for the
majority of the nations of the earth. We hope that in no distant future will the whole mankind be ruled by the same
laws enacted by a single world authority, representing the world's collective conscience.

But to attain this ideal we strengthen faith in the law, in its effectiveness, in its vitalizing social function, in its
guarantees of human rights. That faith can not be strengthened by making of the safeguards of the Constitution a
mummery.

The petition must be granted and so we vote.

G.R. No. 101949 December 1, 1994

THE HOLY SEE, petitioner,

vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati, Branch 61
and STARBRIGHT SALES ENTERPRISES, INC., respondents.

Padilla Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the Orders
dated June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61, Makati, Metro Manila in Civil
Case No. 90-183.

The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No. 90-183,
while the Order dated September 19, 1991 denied the motion for reconsideration of the June 20,1991 Order.

Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented in the
Philippines by the Papal Nuncio.

Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate
business.

This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A, Transfer
Certificate of Title No. 390440) located in the Municipality of Parañaque, Metro Manila and registered in the name of
petitioner.

Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos. 271108 and
265388 respectively and registered in the name of the Philippine Realty Corporation (PRC).

The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers. Later,
Licup assigned his rights to the sale to private respondent.

In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who of the
parties has the responsibility of evicting and clearing the land of squatters. Complicating the relations of the parties
was the sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation (Tropicana).

I
On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati, Metro
Manila for annulment of the sale of the three parcels of land, and specific performance and damages against
petitioner, represented by the Papal Nuncio, and three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the
PRC and Tropicana (Civil Case No.
90-183).

The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC, agreed to
sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the agreement to sell
was made on the condition that earnest money of P100,000.00 be paid by Licup to the sellers, and that the sellers
clear the said lots of squatters who were then occupying the same; (3) Licup paid the earnest money to Msgr.
Cirilos; (4) in the same month, Licup assigned his rights over the property to private respondent and informed the
sellers of the said assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos that the sellers fulfill
their undertaking and clear the property of squatters; however, Msgr. Cirilos informed private respondent of the
squatters' refusal to vacate the lots, proposing instead either that private respondent undertake the eviction or that
the earnest money be returned to the latter; (6) private respondent counterproposed that if it would undertake the
eviction of the squatters, the purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per square
meter; (7) Msgr. Cirilos returned the earnest money of P100,000.00 and wrote private respondent giving it seven
days from receipt of the letter to pay the original purchase price in cash; (8) private respondent sent the earnest
money back to the sellers, but later discovered that on March 30, 1989, petitioner and the PRC, without notice to
private respondent, sold the lots to Tropicana, as evidenced by two separate Deeds of Sale, one over Lot 5-A, and
another over Lots 5-B and 5-D; and that the sellers' transfer certificate of title over the lots were cancelled,
transferred and registered in the name of Tropicana; (9) Tropicana induced petitioner and the PRC to sell the lots to
it and thus enriched itself at the expense of private respondent; (10) private respondent demanded the rescission of
the sale to Tropicana and the reconveyance of the lots, to no avail; and (11) private respondent is willing and able to
comply with the terms of the contract to sell and has actually made plans to develop the lots into a townhouse
project, but in view of the sellers' breach, it lost profits of not less than P30,000.000.00.

Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the PRC on the
one hand, and Tropicana on the other; (2) the reconveyance of the lots in question; (3) specific performance of the
agreement to sell between it and the owners of the lots; and (4) damages.

On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint — petitioner for lack of
jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an improper party. An opposition to
the motion was filed by private respondent.

On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to dismiss after finding
that petitioner "shed off [its] sovereign immunity by entering into the business contract in question" (Rollo, pp. 20-
21).

On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed a "Motion
for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a Jurisdictional
Defense." So as to facilitate the determination of its defense of sovereign immunity, petitioner prayed that a hearing
be conducted to allow it to establish certain facts upon which the said defense is based. Private respondent
opposed this motion as well as the motion for reconsideration.

On October 1, 1991, the trial court issued an order deferring the resolution on the motion for reconsideration until
after trial on the merits and directing petitioner to file its answer (Rollo, p. 22).

Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of sovereign immunity
only on its own behalf and on behalf of its official representative, the Papal Nuncio.

On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign Affairs, claiming
that it has a legal interest in the outcome of the case as regards the diplomatic immunity of petitioner, and that it
"adopts by reference, the allegations contained in the petition of the Holy See insofar as they refer to arguments
relative to its claim of sovereign immunity from suit" (Rollo, p. 87).

Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with the resolution
of this Court, both parties and the Department of Foreign Affairs submitted their respective memoranda.
 II

A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under Rule 65 of
the Revised Rules of Court can be availed of to question the order denying petitioner's motion to dismiss. The
general rule is that an order denying a motion to dismiss is not reviewable by the appellate courts, the remedy of the
movant being to file his answer and to proceed with the hearing before the trial court. But the general rule admits of
exceptions, and one of these is when it is very clear in the records that the trial court has no alternative but to
dismiss the complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service
Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer waste of time and energy to require the
parties to undergo the rigors of a trial.

The other procedural question raised by private respondent is the personality or legal interest of the Department of
Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).

In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in
a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant
is entitled to immunity.

In the United States, the procedure followed is the process of "suggestion," where the foreign state or the
international organization sued in an American court requests the Secretary of State to make a determination as to
whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn,
asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to immunity. In
England, a similar procedure is followed, only the Foreign Office issues a certification to that effect instead of
submitting a "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of Foreign Sovereign
Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).

In the Philippines, the practice is for the foreign government or the international organization to first secure an
executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office
conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA
130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment,
informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity.
In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a
telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign
Affairs to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at
Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in
a Manifestation and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to
be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in
support of petitioner's claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents
through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command,
80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In cases
where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own
determination as to the nature of the acts and transactions involved.

III

The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a foreign state
enjoying sovereign immunity. On the other hand, private respondent insists that the doctrine of non-suability is not
anymore absolute and that petitioner has divested itself of such a cloak when, of its own free will, it entered into a
commercial transaction for the sale of a parcel of land located in the Philippines.

A. The Holy See

Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign state is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See, was
considered a subject of International Law. With the loss of the Papal States and the limitation of the territory under
the Holy See to an area of 108.7 acres, the position of the Holy See in International Law became controversial
(Salonga and Yap, Public International Law 36-37 [1992]).

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion and
sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy See to receive
foreign diplomats, to send its own diplomats to foreign countries, and to enter into treaties according to International
Law (Garcia, Questions and Problems In International Law, Public and Private 81 [1948]).

The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See
absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international
relations" (O'Connell, I International Law 311 [1965]).

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the Holy
See or in the Vatican City. Some writers even suggested that the treaty created two international persons — the
Holy See and Vatican City (Salonga and Yap, supra, 37).

The Vatican City fits into none of the established categories of states, and the attribution to it of "sovereignty" must
be made in a sense different from that in which it is applied to other states (Fenwick, International Law 124-125
[1948]; Cruz, International Law 37 [1991]). In a community of national states, the Vatican City represents an entity
organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, the
Vatican City has an independent government of its own, with the Pope, who is also head of the Roman Catholic
Church, as the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the
world. Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a sense an
"international state" (Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).

One authority wrote that the recognition of the Vatican City as a state has significant implication — that it is possible
for any entity pursuing objects essentially different from those pursued by states to be invested with international
personality (Kunz, The Status of the Holy See in International Law, 46 The American Journal of International Law
308 [1952]).

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the
name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the international
person.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through
its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957
(Rollo, p. 87). This appears to be the universal practice in international relations.

B. Sovereign Immunity

As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted principles
of International Law. Even without this affirmation, such principles of International Law are deemed incorporated as
part of the law of the land as a condition and consequence of our admission in the society of nations (United States
of America v. Guinto, 182 SCRA 644 [1990]).

There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the
classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another
sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard
to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International Law
194 [1984]).

Some states passed legislation to serve as guidelines for the executive or judicial determination when an act may be
considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act of 1976, which
defines a commercial activity as "either a regular course of commercial conduct or a particular commercial
transaction or act." Furthermore, the law declared that the "commercial character of the activity shall be determined
by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its
purpose." The Canadian Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts. The
Act defines a "commercial activity" as any particular transaction, act or conduct or any regular course of conduct that
by reason of its nature, is of a "commercial character."

The restrictive theory, which is intended to be a solution to the host of problems involving the issue of sovereign
immunity, has created problems of its own. Legal treatises and the decisions in countries which follow the restrictive
theory have difficulty in characterizing whether a contract of a sovereign state with a private party is an act jure
gestionis or an act jure imperii.

The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely
connected with the discharge of governmental functions. This is particularly true with respect to the Communist
states which took control of nationalized business activities and international trading.

This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (1)
the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. Lopez, 84 Phil.
312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station (United States
of America v. Ruiz, supra.); and (3) the change of employment status of base employees (Sanders v. Veridiano, 162
SCRA 88 [1988]).

On the other hand, this Court has considered the following transactions by a foreign state with private parties as
acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three restaurants, a cafeteria, a
bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to American
servicemen and the general public (United States of America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding
for the operation of barber shops in Clark Air Base in Angeles City (United States of America v. Guinto, 182 SCRA
644 [1990]). The operation of the restaurants and other facilities open to the general public is undoubtedly for profit
as a commercial and not a governmental activity. By entering into the employment contract with the cook in the
discharge of its proprietary function, the United States government impliedly divested itself of its sovereign immunity
from suit.

In the absence of legislation defining what activities and transactions shall be considered "commercial" and as
constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be.

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such
an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity
in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular
act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident
thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit.

As held in United States of America v. Guinto, (supra):

There is no question that the United States of America, like any other state, will be deemed to have
impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity.
It is only when the contract involves its sovereign or governmental capacity that no such waiver may
be implied.

In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business, surely
the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the acquisition
and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for the site of its
mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said claim.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for
commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal
Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the
creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic
Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and entered into force in the
Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory
of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. If this
immunity is provided for a diplomatic envoy, with all the more reason should immunity be recognized as regards the
sovereign itself, which in this case is the Holy See.

The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental
character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost
impossible for petitioner to use it for the purpose of the donation. The fact that squatters have occupied and are still
occupying the lot, and that they stubbornly refuse to leave the premises, has been admitted by private respondent in
its complaint (Rollo, pp. 26, 27).

The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of the
pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign immunity in this case
was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. As the
department tasked with the conduct of the Philippines' foreign relations (Administrative Code of 1987, Book IV, Title
I, Sec. 3), the Department of Foreign Affairs has formally intervened in this case and officially certified that the
Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from
local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this
country (Rollo, pp. 156-157). The determination of the executive arm of government that a state or instrumentality is
entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (International
Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the
executive arm of the government in conducting the country's foreign relations (World Health Organization v. Aquino,
48 SCRA 242 [1972]). As in International Catholic Migration Commission and in World Health Organization, we
abide by the certification of the Department of Foreign Affairs.

Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to establish the
facts alleged by petitioner in its motion. In view of said certification, such procedure would however be pointless and
unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No. 109645, July 25, 1994).

IV

Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask
his own government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the
Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its
claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations
between the Philippine government and the Holy See (Young, Remedies of Private Claimants Against Foreign
States, Selected Readings on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once the
Philippine government decides to espouse the claim, the latter ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court of Justice:

By taking up the case of one of its subjects and by reporting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights — its right to ensure, in
the person of its subjects, respect for the rules of international law (The Mavrommatis Palestine
Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against petitioner
is DISMISSED.

SO ORDERED.
FACTS: Petitioner is the Holy See who exercises sovereignty over the Vatican City in
Rome, Italy, and is represented in the Philippines by the Papal Nuncio; Private
respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the
real estate business.
This petition arose from a controversy over a parcel of land consisting of 6,000 square
meters located in the Municipality of Paranaque registered in the name of petitioner. Said
lot was contiguous with two other lots registered in the name of the Philippine Realty
Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as
agent to the sellers. Later, Licup assigned his rights to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold to private respondent, a
dispute arose as to who of the parties has the responsibility of evicting and clearing the
land of squatters. Complicating the relations of the parties was the sale by petitioner of Lot
5-A to Tropicana Properties and Development Corporation (Tropicana).
private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati,
Metro Manila for annulment of the sale of the three parcels of land, and specific
performance and damages against petitioner, represented by the Papal Nuncio, and three
other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana
petitioner and Msgr. Cirilos separately moved to dismiss the complaint — petitioner for
lack of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an
improper party. An opposition to the motion was filed by private respondent.
the trial court issued an order denying, among others, petitioner’s motion to dismiss after
finding that petitioner “shed off [its] sovereign immunity by entering into the business
contract in question” Petitioner forthwith elevated the matter to us. In its petition,
petitioner invokes the privilege of sovereign immunity only on its own behalf and on
behalf of its official representative, the Papal Nuncio.
ISSUE:
Whether the Holy See is immune from suit insofar as its business relations regarding
selling a lot to a private entity
RULING:
The Republic of the Philippines has accorded the Holy See the status of a foreign
sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic
representations with the Philippine government since 1957 (Rollo, p. 87). This appears to
be the universal practice in international relations.
There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the courts of another sovereign. According to the newer
or restrictive theory, the immunity of the sovereign is recognized only with regard to
public acts or acts jure imperii of a state, but not with regard to private acts or acts jure
gestionis
If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure
imperii, especially when it is not undertaken for gain or profit.
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real
estate business, surely the said transaction can be categorized as an act jure gestionis.
However, petitioner has denied that the acquisition and subsequent disposal of Lot 5-A
were made for profit but claimed that it acquired said property for the site of its mission or
the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said
claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The
donation was made not for commercial purpose, but for the use of petitioner to construct
thereon the official place of residence of the Papal Nuncio. The right of a foreign sovereign
to acquire property, real or personal, in a receiving state, necessary for the creation and
maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on
Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate
and entered into force in the Philippines on November 15, 1965.
The decision to transfer the property and the subsequent disposal thereof are likewise
clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain. It
merely wanted to dispose off the same because the squatters living thereon made it almost
impossible for petitioner to use it for the purpose of the donation. The fact that squatters
have occupied and are still occupying the lot, and that they stubbornly refuse to leave the
premises, has been admitted by private respondent in its complaint
Private respondent is not left without any legal remedy for the redress of its grievances.
Under both Public International Law and Transnational Law, a person who feels aggrieved
by the acts of a foreign sovereign can ask his own government to espouse his cause
through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to
espouse its claims against the Holy See. Its first task is to persuade the Philippine
government to take up with the Holy See the validity of its claims. Of course, the Foreign
Office shall first make a determination of the impact of its espousal on the relations
between the Philippine government and the Holy See (Young, Remedies of Private
Claimants Against Foreign States, Selected Readings on Protection by Law of Private
Foreign Investments 905, 919 [1964]). Once the Philippine government decides to espouse
the claim, the latter ceases to be a private cause.
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No.
90-183 against petitioner is DISMISSED.

FACTS: Petition arose from a controversy over a parcel of land. Lot 5-A, registered under the name
Holy See, was contiguous to Lot 5-B and 5-D under the name of Philippine Realty Corporation
(PRC). The land was donated by the Archdiocese of Manila to the Papal Nuncio, which represents the
Holy See, who exercises sovereignty over the Vatican City, Rome, Italy, for his residence.

Said lots were sold through an agent to Ramon Licup who assigned his rights to respondents Starbright
Sales Enterprises, Inc.

When the squatters refuse to vacate the lots, a dispute arose between the two parties because both were
unsure whose responsibility was it to evict the squatters from said lots. Respondent Starbright Sales
Enterprises Inc. insists that Holy See should clear the property while Holy See says that respondent
corporation should do it or the earnest money will be returned. With this, Msgr. Cirilios, the agent,
subsequently returned the P100,000 earnest money.

The same lots were then sold to Tropicana Properties and Development Corporation.
Starbright Sales Enterprises, Inc. filed a suit for annulment of the sale, specific performance and
damages against Msgr. Cirilios, PRC as well as Tropicana Properties and Development Corporation.
The Holy See and Msgr. Cirilos moved to dismiss the petition for lack of jurisdiction based on
sovereign immunity from suit. RTC denied the motion on ground that petitioner already "shed off" its
sovereign immunity by entering into a business contract. The subsequent Motion for Reconsideration
was also denied hence this special civil action for certiorari was forwarded to the Supreme Court.

ISSUE: Whether or not Holy See can invoke sovereign immunity.

HELD: The Court held that Holy See may properly invoke sovereign immunity for its non-suability.
As expressed in Sec. 2 Art II of the 1987 Constitution, generally accepted principles of International
Law are adopted by our Courts and thus shall form part of the laws of the land as a condition and
consequence of our admission in the society of nations.

It was noted in Article 31(A) of the 1961 Vienna Convention on Diplomatic Relations that diplomatic
envoy shall be granted immunity from civil and administrative jurisdiction of the receiving state over
any real action relating to private immovable property. The Department of Foreign Affairs (DFA)
certified that the Embassy of the Holy See is a duly accredited diplomatic missionary to the Republic of
the Philippines and is thus exempted from local jurisdiction and is entitled to the immunity rights of a
diplomatic mission or embassy in this Court.

Furthermore, it shall be understood that in the case at bar, the petitioner has bought and sold lands in
the ordinary course of real estate business, surely, the said transaction can be categorized as an act jure
gestionis. However, petitioner has denied that the acquisition and subsequent disposal of the lot were
made for profit but claimed that it acquired said property for the site of its mission or the Apostolic
Nunciature in the Philippines.

The Holy See is immune from suit because the act of selling the lot of concern is non-propriety in
nature. The lot was acquired through a donation from the Archdiocese of Manila, not for a commercial
purpose, but for the use of petitioner to construct the official place of residence of the Papal Nuncio
thereof. The transfer of the property and its subsequent disposal are likewise clothed with a
governmental (non-proprietal) character as petitioner sold the lot not for profit or gain rather because it
merely cannot evict the squatters living in said property.

In view of the foregoing, the petition is hereby GRANTED and the complaints were dismissed
accordingly.

G.R. No. L-35645 May 22, 1985

UNITED STATES OF AMERICA, CAPT. JAMES E. GALLOWAY, WILLIAM I. COLLINS and ROBERT
GOHIER, petitioners,
vs.
HON. V. M. RUIZ, Presiding Judge of Branch XV, Court of First Instance of Rizal and ELIGIO DE GUZMAN &
CO., INC., respondents.
Sycip, Salazar, Luna & Manalo & Feliciano Law for petitioners.

Albert, Vergara, Benares, Perias & Dominguez Law Office for respondents.

ABAD SANTOS, J.:

This is a petition to review, set aside certain orders and restrain the respondent judge from trying Civil Case No.
779M of the defunct Court of First Instance of Rizal.

The factual background is as follows:

At times material to this case, the United States of America had a naval base in Subic, Zambales. The base was
one of those provided in the Military Bases Agreement between the Philippines and the United States.

Sometime in May, 1972, the United States invited the submission of bids for the following projects

1. Repair offender system, Alava Wharf at the U.S. Naval Station Subic Bay, Philippines.

2. Repair typhoon damage to NAS Cubi shoreline; repair typhoon damage to shoreline revetment, NAVBASE Subic;
and repair to Leyte Wharf approach, NAVBASE Subic Bay, Philippines.

Eligio de Guzman & Co., Inc. responded to the invitation and submitted bids. Subsequent thereto, the company
received from the United States two telegrams requesting it to confirm its price proposals and for the name of its
bonding company. The company complied with the requests. [In its complaint, the company alleges that the United
States had accepted its bids because "A request to confirm a price proposal confirms the acceptance of a bid
pursuant to defendant United States' bidding practices." (Rollo, p. 30.) The truth of this allegation has not been
tested because the case has not reached the trial stage.]

In June, 1972, the company received a letter which was signed by Wilham I. Collins, Director, Contracts Division,
Naval Facilities Engineering Command, Southwest Pacific, Department of the Navy of the United States, who is one
of the petitioners herein. The letter said that the company did not qualify to receive an award for the projects
because of its previous unsatisfactory performance rating on a repair contract for the sea wall at the boat landings of
the U.S. Naval Station in Subic Bay. The letter further said that the projects had been awarded to third parties. In the
abovementioned Civil Case No. 779-M, the company sued the United States of America and Messrs. James E.
Galloway, William I. Collins and Robert Gohier all members of the Engineering Command of the U.S. Navy. The
complaint is to order the defendants to allow the plaintiff to perform the work on the projects and, in the event that
specific performance was no longer possible, to order the defendants to pay damages. The company also asked for
the issuance of a writ of preliminary injunction to restrain the defendants from entering into contracts with third
parties for work on the projects.

The defendants entered their special appearance for the purpose only of questioning the jurisdiction of this court
over the subject matter of the complaint and the persons of defendants, the subject matter of the complaint being
acts and omissions of the individual defendants as agents of defendant United States of America, a foreign
sovereign which has not given her consent to this suit or any other suit for the causes of action asserted in the
complaint." (Rollo, p. 50.)

Subsequently the defendants filed a motion to dismiss the complaint which included an opposition to the issuance of
the writ of preliminary injunction. The company opposed the motion. The trial court denied the motion and issued the
writ. The defendants moved twice to reconsider but to no avail. Hence the instant petition which seeks to restrain
perpetually the proceedings in Civil Case No. 779-M for lack of jurisdiction on the part of the trial court.

The petition is highly impressed with merit.

The traditional rule of State immunity exempts a State from being sued in the courts of another State without its
consent or waiver. This rule is a necessary consequence of the principles of independence and equality of States.
However, the rules of International Law are not petrified; they are constantly developing and evolving. And because
the activities of states have multiplied, it has been necessary to distinguish them-between sovereign and
governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State
immunity now extends only to acts jure imperil The restrictive application of State immunity is now the rule in the
United States, the United Kingdom and other states in western Europe. (See Coquia and Defensor Santiago, Public
International Law, pp. 207-209 [1984].)

The respondent judge recognized the restrictive doctrine of State immunity when he said in his Order denying the
defendants' (now petitioners) motion: " A distinction should be made between a strictly governmental function of the
sovereign state from its private, proprietary or non- governmental acts (Rollo, p. 20.) However, the respondent judge
also said: "It is the Court's considered opinion that entering into a contract for the repair of wharves or shoreline is
certainly not a governmental function altho it may partake of a public nature or character. As aptly pointed out by
plaintiff's counsel in his reply citing the ruling in the case of Lyons, Inc., [104 Phil. 594 (1958)], and which this Court
quotes with approval, viz.:

It is however contended that when a sovereign state enters into a contract with a private person, the
state can be sued upon the theory that it has descended to the level of an individual from which it
can be implied that it has given its consent to be sued under the contract. ...

xxx xxx xxx

We agree to the above contention, and considering that the United States government, through its
agency at Subic Bay, entered into a contract with appellant for stevedoring and miscellaneous labor
services within the Subic Bay Area, a U.S. Naval Reservation, it is evident that it can bring an action
before our courts for any contractual liability that that political entity may assume under the contract.
The trial court, therefore, has jurisdiction to entertain this case ... (Rollo, pp. 20-21.)

The reliance placed on Lyons by the respondent judge is misplaced for the following reasons:

In Harry Lyons, Inc. vs. The United States of America, supra, plaintiff brought suit in the Court of First Instance of
Manila to collect several sums of money on account of a contract between plaintiff and defendant. The defendant
filed a motion to dismiss on the ground that the court had no jurisdiction over defendant and over the subject matter
of the action. The court granted the motion on the grounds that: (a) it had no jurisdiction over the defendant who did
not give its consent to the suit; and (b) plaintiff failed to exhaust the administrative remedies provided in the contract.
The order of dismissal was elevated to this Court for review.

In sustaining the action of the lower court, this Court said:

It appearing in the complaint that appellant has not complied with the procedure laid down in Article
XXI of the contract regarding the prosecution of its claim against the United States Government, or,
stated differently, it has failed to first exhaust its administrative remedies against said Government,
the lower court acted properly in dismissing this case.(At p. 598.)

It can thus be seen that the statement in respect of the waiver of State immunity from suit was purely gratuitous and,
therefore, obiter so that it has no value as an imperative authority.

The restrictive application of State immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be
said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be
sued only when it enters into business contracts. It does not apply where the contract relates to the exercise of its
sovereign functions. In this case the projects are an integral part of the naval base which is devoted to the defense
of both the United States and the Philippines, indisputably a function of the government of the highest order; they
are not utilized for nor dedicated to commercial or business purposes.

That the correct test for the application of State immunity is not the conclusion of a contract by a State but the legal
nature of the act is shown in Syquia vs. Lopez, 84 Phil. 312 (1949). In that case the plaintiffs leased three apartment
buildings to the United States of America for the use of its military officials. The plaintiffs sued to recover possession
of the premises on the ground that the term of the leases had expired. They also asked for increased rentals until
the apartments shall have been vacated.

The defendants who were armed forces officers of the United States moved to dismiss the suit for lack of jurisdiction
in the part of the court. The Municipal Court of Manila granted the motion to dismiss; sustained by the Court of First
Instance, the plaintiffs went to this Court for review on certiorari. In denying the petition, this Court said:

On the basis of the foregoing considerations we are of the belief and we hold that the real party
defendant in interest is the Government of the United States of America; that any judgment for back
or Increased rentals or damages will have to be paid not by defendants Moore and Tillman and their
64 co-defendants but by the said U.S. Government. On the basis of the ruling in the case of Land vs.
Dollar already cited, and on what we have already stated, the present action must be considered as
one against the U.S. Government. It is clear hat the courts of the Philippines including the Municipal
Court of Manila have no jurisdiction over the present case for unlawful detainer. The question of lack
of jurisdiction was raised and interposed at the very beginning of the action. The U.S. Government
has not , given its consent to the filing of this suit which is essentially against her, though not in
name. Moreover, this is not only a case of a citizen filing a suit against his own Government without
the latter's consent but it is of a citizen filing an action against a foreign government without said
government's consent, which renders more obvious the lack of jurisdiction of the courts of his
country. The principles of law behind this rule are so elementary and of such general acceptance
that we deem it unnecessary to cite authorities in support thereof. (At p. 323.)

In Syquia,the United States concluded contracts with private individuals but the contracts notwithstanding the States
was not deemed to have given or waived its consent to be sued for the reason that the contracts were for jure
imperii and not for jure gestionis.

WHEREFORE, the petition is granted; the questioned orders of the respondent judge are set aside and Civil Case
No. is dismissed. Costs against the private respondent.

Teehankee, Aquino, Concepcion, Jr., Melencio-Herrera, Plana, * Escolin, Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ.,
concur.

Fernando, C.J., took no part.

Separate Opinions

MAKASIAR, J., dissenting:

The petition should be dismissed and the proceedings in Civil Case No. 779-M in the defunct CFI (now RTC) of
Rizal be allowed to continue therein.

In the case of Lyons vs. the United States of America (104 Phil. 593), where the contract entered into between the
plaintiff (Harry Lyons, Inc.) and the defendant (U.S. Government) involved stevedoring and labor services within the
Subic Bay area, this Court further stated that inasmuch as ". . . the United States Government. through its agency at
Subic Bay, entered into a contract with appellant for stevedoring and miscellaneous labor services within the Subic
Bay area, a U.S. Navy Reservation, it is evident that it can bring an action before our courts for any contractual
liability that that political entity may assume under the contract."

When the U.S. Government, through its agency at Subic Bay, confirmed the acceptance of a bid of a private
company for the repair of wharves or shoreline in the Subic Bay area, it is deemed to have entered into a contract
and thus waived the mantle of sovereign immunity from suit and descended to the level of the ordinary citizen. Its
consent to be sued, therefore, is implied from its act of entering into a contract (Santos vs. Santos, 92 Phil. 281,
284).

Justice and fairness dictate that a foreign government that commits a breach of its contractual obligation in the case
at bar by the unilateral cancellation of the award for the project by the United States government, through its agency
at Subic Bay should not be allowed to take undue advantage of a party who may have legitimate claims against it by
seeking refuge behind the shield of non-suability. A contrary view would render a Filipino citizen, as in the instant
case, helpless and without redress in his own country for violation of his rights committed by the agents of the
foreign government professing to act in its name.

Appropriate are the words of Justice Perfecto in his dissenting opinion in Syquia vs. Almeda Lopez, 84 Phil. 312,
325:

Although, generally, foreign governments are beyond the jurisdiction of domestic courts of justice,
such rule is inapplicable to cases in which the foreign government enters into private contracts with
the citizens of the court's jurisdiction. A contrary view would simply run against all principles of
decency and violative of all tenets of morals.

Moral principles and principles of justice are as valid and applicable as well with regard to private
individuals as with regard to governments either domestic or foreign. Once a foreign government
enters into a private contract with the private citizens of another country, such foreign government
cannot shield its non-performance or contravention of the terms of the contract under the cloak of
non-jurisdiction. To place such foreign government beyond the jurisdiction of the domestic courts is
to give approval to the execution of unilateral contracts, graphically described in Spanish as
'contratos leoninos', because one party gets the lion's share to the detriment of the other. To give
validity to such contract is to sanctify bad faith, deceit, fraud. We prefer to adhere to the thesis that
all parties in a private contract, including governments and the most powerful of them, are amenable
to law, and that such contracts are enforceable through the help of the courts of justice with
jurisdiction to take cognizance of any violation of such contracts if the same had been entered into
only by private individuals.

Constant resort by a foreign state or its agents to the doctrine of State immunity in this jurisdiction impinges unduly
upon our sovereignty and dignity as a nation. Its application will particularly discourage Filipino or domestic
contractors from transacting business and entering into contracts with United States authorities or facilities in the
Philippines whether naval, air or ground forces-because the difficulty, if not impossibility, of enforcing a validly
executed contract and of seeking judicial remedy in our own courts for breaches of contractual obligation committed
by agents of the United States government, always, looms large, thereby hampering the growth of Filipino
enterprises and creating a virtual monopoly in our own country by United States contractors of contracts for services
or supplies with the various U.S. offices and agencies operating in the Philippines.

The sanctity of upholding agreements freely entered into by the parties cannot be over emphasized. Whether the
parties are nations or private individuals, it is to be reasonably assumed and expected that the undertakings in the
contract will be complied with in good faith.

One glaring fact of modern day civilization is that a big and powerful nation, like the United States of America, can
always overwhelm small and weak nations. The declaration in the United Nations Charter that its member states are
equal and sovereign, becomes hollow and meaningless because big nations wielding economic and military
superiority impose upon and dictate to small nations, subverting their sovereignty and dignity as nations. Thus, more
often than not, when U.S. interest clashes with the interest of small nations, the American governmental agencies or
its citizens invoke principles of international law for their own benefit.

In the case at bar, the efficacy of the contract between the U.S. Naval authorities at Subic Bay on one hand, and
herein private respondent on the other, was honored more in the breach than in the compliance The opinion of the
majority will certainly open the floodgates of more violations of contractual obligations. American authorities or any
foreign government in the Philippines for that matter, dealing with the citizens of this country, can conveniently seek
protective cover under the majority opinion. The result is disastrous to the Philippines.
This opinion of the majority manifests a neo-colonial mentality. It fosters economic imperialism and foreign political
ascendancy in our Republic.

The doctrine of government immunity from suit cannot and should not serve as an instrument for perpetrating an
injustice on a citizen (Amigable vs. Cuenca, L-26400, February 29, 1972, 43 SCRA 360; Ministerio vs. Court of First
Instance, L-31635, August 31, 1971, 40 SCRA 464).

Under the doctrine of implied waiver of its non-suability, the United States government, through its naval authorities
at Subic Bay, should be held amenable to lawsuits in our country like any other juristic person.

The invocation by the petitioner United States of America is not in accord with paragraph 3 of Article III of the
original RP-US Military Bases Agreement of March 14, 1947, which states that "in the exercise of the above-
mentioned rights, powers and authority, the United States agrees that the powers granted to it will not be used
unreasonably. . ." (Emphasis supplied).

Nor is such posture of the petitioners herein in harmony with the amendment dated May 27, 1968 to the aforesaid
RP-US Military Bases Agreement, which recognizes "the need to promote and maintain sound employment
practices which will assure equality of treatment of all employees ... and continuing favorable employer-employee
relations ..." and "(B)elieving that an agreement will be mutually beneficial and will strengthen the democratic
institutions cherished by both Governments, ... the United States Government agrees to accord preferential
employment of Filipino citizens in the Bases, thus (1) the U.S. Forces in the Philippines shall fill the needs for civilian
employment by employing Filipino citizens, etc." (Par. 1, Art. I of the Amendment of May 27, 1968).

Neither does the invocation by petitioners of state immunity from suit express fidelity to paragraph 1 of Article IV of
the aforesaid amendment of May 2 7, 1968 which directs that " contractors and concessionaires performing work for
the U.S. Armed Forces shall be required by their contract or concession agreements to comply with all applicable
Philippine labor laws and regulations, " even though paragraph 2 thereof affirms that "nothing in this Agreement
shall imply any waiver by either of the two Governments of such immunity under international law."

Reliance by petitioners on the non-suability of the United States Government before the local courts, actually
clashes with No. III on respect for Philippine law of the Memorandum of Agreement signed on January 7, 1979, also
amending RP-US Military Bases Agreement, which stresses that "it is the duty of members of the United States
Forces, the civilian component and their dependents, to respect the laws of the Republic of the Philippines and to
abstain from any activity inconsistent with the spirit of the Military Bases Agreement and, in particular, from any
political activity in the Philippines. The United States shag take all measures within its authority to insure that they
adhere to them (Emphasis supplied).

The foregoing duty imposed by the amendment to the Agreement is further emphasized by No. IV on the economic
and social improvement of areas surrounding the bases, which directs that "moreover, the United States Forces
shall procure goods and services in the Philippines to the maximum extent feasible" (Emphasis supplied).

Under No. VI on labor and taxation of the said amendment of January 6, 1979 in connection with the discussions on
possible revisions or alterations of the Agreement of May 27, 1968, "the discussions shall be conducted on the basis
of the principles of equality of treatment, the right to organize, and bargain collectively, and respect for the
sovereignty of the Republic of the Philippines" (Emphasis supplied)

The majority opinion seems to mock the provision of paragraph 1 of the joint statement of President Marcos and
Vice-President Mondale of the United States dated May 4, 1978 that "the United States re-affirms that Philippine
sovereignty extends over the bases and that Its base shall be under the command of a Philippine Base
Commander," which is supposed to underscore the joint Communique of President Marcos and U.S. President Ford
of December 7, 1975, under which "they affirm that sovereign equality, territorial integrity and political independence
of all States are fundamental principles which both countries scrupulously respect; and that "they confirm that
mutual respect for the dignity of each nation shall characterize their friendship as well as the alliance between their
two countries. "

The majority opinion negates the statement on the delineation of the powers, duties and responsibilities of both the
Philippine and American Base Commanders that "in the performance of their duties, the Philippine Base
Commander and the American Base Commander shall be guided by full respect for Philippine sovereignty on the
one hand and the assurance of unhampered U.S. military operations on the other hand and that "they shall promote
cooperation understanding and harmonious relations within the Base and with the general public in the proximate
vicinity thereof" (par. 2 & par. 3 of the Annex covered by the exchange of notes, January 7, 1979, between
Ambassador Richard W. Murphy and Minister of Foreign Affairs Carlos P. Romulo, Emphasis supplied).

Separate Opinions

MAKASIAR, J., dissenting:

The petition should be dismissed and the proceedings in Civil Case No. 779-M in the defunct CFI (now RTC) of
Rizal be allowed to continue therein.

In the case of Lyons vs. the United States of America (104 Phil. 593), where the contract entered into between the
plaintiff (Harry Lyons, Inc.) and the defendant (U.S. Government) involved stevedoring and labor services within the
Subic Bay area, this Court further stated that inasmuch as ". . . the United States Government. through its agency at
Subic Bay, entered into a contract with appellant for stevedoring and miscellaneous labor services within the Subic
Bay area, a U.S. Navy Reservation, it is evident that it can bring an action before our courts for any contractual
liability that that political entity may assume under the contract."

When the U.S. Government, through its agency at Subic Bay, confirmed the acceptance of a bid of a private
company for the repair of wharves or shoreline in the Subic Bay area, it is deemed to have entered into a contract
and thus waived the mantle of sovereign immunity from suit and descended to the level of the ordinary citizen. Its
consent to be sued, therefore, is implied from its act of entering into a contract (Santos vs. Santos, 92 Phil. 281,
284).

Justice and fairness dictate that a foreign government that commits a breach of its contractual obligation in the case
at bar by the unilateral cancellation of the award for the project by the United States government, through its agency
at Subic Bay should not be allowed to take undue advantage of a party who may have legitimate claims against it by
seeking refuge behind the shield of non-suability. A contrary view would render a Filipino citizen, as in the instant
case, helpless and without redress in his own country for violation of his rights committed by the agents of the
foreign government professing to act in its name.

Appropriate are the words of Justice Perfecto in his dissenting opinion in Syquia vs. Almeda Lopez, 84 Phil. 312,
325:

Although, generally, foreign governments are beyond the jurisdiction of domestic courts of justice,
such rule is inapplicable to cases in which the foreign government enters into private contracts with
the citizens of the court's jurisdiction. A contrary view would simply run against all principles of
decency and violative of all tenets of morals.

Moral principles and principles of justice are as valid and applicable as well with regard to private
individuals as with regard to governments either domestic or foreign. Once a foreign government
enters into a private contract with the private citizens of another country, such foreign government
cannot shield its non-performance or contravention of the terms of the contract under the cloak of
non-jurisdiction. To place such foreign government beyond the jurisdiction of the domestic courts is
to give approval to the execution of unilateral contracts, graphically described in Spanish as
'contratos leoninos', because one party gets the lion's share to the detriment of the other. To give
validity to such contract is to sanctify bad faith, deceit, fraud. We prefer to adhere to the thesis that
all parties in a private contract, including governments and the most powerful of them, are amenable
to law, and that such contracts are enforceable through the help of the courts of justice with
jurisdiction to take cognizance of any violation of such contracts if the same had been entered into
only by private individuals.
Constant resort by a foreign state or its agents to the doctrine of State immunity in this jurisdiction impinges unduly
upon our sovereignty and dignity as a nation. Its application will particularly discourage Filipino or domestic
contractors from transacting business and entering into contracts with United States authorities or facilities in the
Philippines whether naval, air or ground forces-because the difficulty, if not impossibility, of enforcing a validly
executed contract and of seeking judicial remedy in our own courts for breaches of contractual obligation committed
by agents of the United States government, always, looms large, thereby hampering the growth of Filipino
enterprises and creating a virtual monopoly in our own country by United States contractors of contracts for services
or supplies with the various U.S. offices and agencies operating in the Philippines.

The sanctity of upholding agreements freely entered into by the parties cannot be over emphasized. Whether the
parties are nations or private individuals, it is to be reasonably assumed and expected that the undertakings in the
contract will be complied with in good faith.

One glaring fact of modern day civilization is that a big and powerful nation, like the United States of America, can
always overwhelm small and weak nations. The declaration in the United Nations Charter that its member states are
equal and sovereign, becomes hollow and meaningless because big nations wielding economic and military
superiority impose upon and dictate to small nations, subverting their sovereignty and dignity as nations. Thus, more
often than not, when U.S. interest clashes with the interest of small nations, the American governmental agencies or
its citizens invoke principles of international law for their own benefit.

In the case at bar, the efficacy of the contract between the U.S. Naval authorities at Subic Bay on one hand, and
herein private respondent on the other, was honored more in the breach than in the compliance The opinion of the
majority will certainly open the floodgates of more violations of contractual obligations. American authorities or any
foreign government in the Philippines for that matter, dealing with the citizens of this country, can conveniently seek
protective cover under the majority opinion. The result is disastrous to the Philippines.

This opinion of the majority manifests a neo-colonial mentality. It fosters economic imperialism and foreign political
ascendancy in our Republic.

The doctrine of government immunity from suit cannot and should not serve as an instrument for perpetrating an
injustice on a citizen (Amigable vs. Cuenca, L-26400, February 29, 1972, 43 SCRA 360; Ministerio vs. Court of First
Instance, L-31635, August 31, 1971, 40 SCRA 464).

Under the doctrine of implied waiver of its non-suability, the United States government, through its naval authorities
at Subic Bay, should be held amenable to lawsuits in our country like any other juristic person.

The invocation by the petitioner United States of America is not in accord with paragraph 3 of Article III of the
original RP-US Military Bases Agreement of March 14, 1947, which states that "in the exercise of the above-
mentioned rights, powers and authority, the United States agrees that the powers granted to it will not be used
unreasonably. . ." (Emphasis supplied).

Nor is such posture of the petitioners herein in harmony with the amendment dated May 27, 1968 to the aforesaid
RP-US Military Bases Agreement, which recognizes "the need to promote and maintain sound employment
practices which will assure equality of treatment of all employees ... and continuing favorable employer-employee
relations ..." and "(B)elieving that an agreement will be mutually beneficial and will strengthen the democratic
institutions cherished by both Governments, ... the United States Government agrees to accord preferential
employment of Filipino citizens in the Bases, thus (1) the U.S. Forces in the Philippines shall fill the needs for civilian
employment by employing Filipino citizens, etc." (Par. 1, Art. I of the Amendment of May 27, 1968).

Neither does the invocation by petitioners of state immunity from suit express fidelity to paragraph 1 of Article IV of
the aforesaid amendment of May 2 7, 1968 which directs that " contractors and concessionaires performing work for
the U.S. Armed Forces shall be required by their contract or concession agreements to comply with all applicable
Philippine labor laws and regulations, " even though paragraph 2 thereof affirms that "nothing in this Agreement
shall imply any waiver by either of the two Governments of such immunity under international law."

Reliance by petitioners on the non-suability of the United States Government before the local courts, actually
clashes with No. III on respect for Philippine law of the Memorandum of Agreement signed on January 7, 1979, also
amending RP-US Military Bases Agreement, which stresses that "it is the duty of members of the United States
Forces, the civilian component and their dependents, to respect the laws of the Republic of the Philippines and to
abstain from any activity inconsistent with the spirit of the Military Bases Agreement and, in particular, from any
political activity in the Philippines. The United States shag take all measures within its authority to insure that they
adhere to them (Emphasis supplied).

The foregoing duty imposed by the amendment to the Agreement is further emphasized by No. IV on the economic
and social improvement of areas surrounding the bases, which directs that "moreover, the United States Forces
shall procure goods and services in the Philippines to the maximum extent feasible" (Emphasis supplied).

Under No. VI on labor and taxation of the said amendment of January 6, 1979 in connection with the discussions on
possible revisions or alterations of the Agreement of May 27, 1968, "the discussions shall be conducted on the basis
of the principles of equality of treatment, the right to organize, and bargain collectively, and respect for the
sovereignty of the Republic of the Philippines" (Emphasis supplied)

The majority opinion seems to mock the provision of paragraph 1 of the joint statement of President Marcos and
Vice-President Mondale of the United States dated May 4, 1978 that "the United States re-affirms that Philippine
sovereignty extends over the bases and that Its base shall be under the command of a Philippine Base
Commander," which is supposed to underscore the joint Communique of President Marcos and U.S. President Ford
of December 7, 1975, under which "they affirm that sovereign equality, territorial integrity and political independence
of all States are fundamental principles which both countries scrupulously respect; and that "they confirm that
mutual respect for the dignity of each nation shall characterize their friendship as well as the alliance between their
two countries. "

The majority opinion negates the statement on the delineation of the powers, duties and responsibilities of both the
Philippine and American Base Commanders that "in the performance of their duties, the Philippine Base
Commander and the American Base Commander shall be guided by full respect for Philippine sovereignty on the
one hand and the assurance of unhampered U.S. military operations on the other hand and that "they shall promote
cooperation understanding and harmonious relations within the Base and with the general public in the proximate
vicinity thereof" (par. 2 & par. 3 of the Annex covered by the exchange of notes, January 7, 1979, between
Ambassador Richard W. Murphy and Minister of Foreign Affairs Carlos P. Romulo, Emphasis supplied).

Facts:
This is a petition to review, set aside certain orders and restrain perpetually the proceedings done by Hon. Ruiz for lack of
jurisdiction on the part of the trial court.

The United States of America had a naval base in Subic, Zambales. The base was one of those provided in the Military Bases
Agreement between the Philippines and the United States. Sometime in May, 1972, the United States invited the submission of
bids for a couple of repair projects. Eligio de Guzman land Co., Inc. responded to the invitation and submitted bids. Subsequent
thereto, the company received from the US two telegrams requesting it to confirm its price proposals and for the name of its
bonding company. The company construed this as an acceptance of its offer so they complied with the requests. The company
received a letter which was signed by William I. Collins of Department of the Navy of the United States, also one of the
petitioners herein informing that the company did not qualify to receive an award for the projects because of its previous
unsatisfactory performance rating in repairs, and that the projects were awarded to third parties. For this reason, a suit for
specific performance was filed by him against the US.

Issues:
Whether or not the US naval base in bidding for said contracts exercise governmental functions to be able to invoke state
immunity.

Discussions:
The traditional role of the state immunity exempts a state from being sued in the courts of another state without its consent or
waiver. This rule is necessary consequence of the principle of independence and equality of states. However, the rules of
international law are not petrified; they are continually and evolving and because the activities of states have multiplied. It has
been necessary to distinguish them between sovereign and governmental acts (jure imperii) and private, commercial and
proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperil. The restrictive
application of State immunity is now the rule in the United States, the United Kingdom and other states in western Europe.

Rulings:
Yes. The Supreme Court held that the contract relates to the exercise of its sovereign functions. In this case the projects are an
integral part of the naval base which is devoted to the defense of both the United States and the Philippines, indisputably a
function of the government of the highest order, they are not utilized for nor dedicated to commercial or business purposes.

The restrictive application of state immunity is proper only when the proceedings arise out of commercial transactions of the
foreign sovereign. Its commercial activities of economic affairs. A state may be descended to the level of an individual and can
thus be deemed to have tacitly given its consent to be sued. Only when it enters into business contracts.

G.R. No. L-65366 November 9, 1983

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,

vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.

Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.

The Solicitor General for respondent.

FERNANDO, C.J.: ñé+.£ªwph! 1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of
the protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by
respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition
sought a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in
the afternoon, starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks
away. Once there, and in an open space of public property, a short program would be held. 2 During the course of
the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the resolution
adopted on the last day by the International Conference for General Disbarmament, World Peace and the Removal
of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its
personnel who may be there so that it may be delivered to the United States Ambassador. The march would be
attended by the local and foreign participants of such conference. There was likewise an assurance in the petition
that in the exercise of the constitutional rights to free speech and assembly, all the necessary steps would be taken
by it "to ensure a peaceful march and rally." 4

The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October
20, 1983 was due to the fact that as of that date, petitioner had not been informed of any action taken on his request
on behalf of the organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his
behalf by Assistant Solicitor General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was
denied. Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a
permit was due to police intelligence reports which strongly militate against the advisability of issuing such permit at
this time and at the place applied for." 6 To be more specific, reference was made to persistent intelligence reports
affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where
a large number of people is expected to attend." 7 Respondent Mayor suggested, however, in accordance with the
recommendation of the police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal
Coliseum or any other enclosed area where the safety of the participants themselves and the general public may be
ensured." 8

The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then
deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory
injunction prayed for on the ground that there was no showing of the existence of a clear and present danger of a
substantive evil that could justify the denial of a permit. On this point, the Court was unanimous, but there was a
dissent by Justice Aquino on the ground that the holding of a rally in front of the US Embassy would be violative of
Ordinance No. 7295 of the City of Manila. The last sentence of such minute resolution reads: "This resolution is
without prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's stand on the matter.

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and
peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed
abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or punishment. 11 There is to be then no
previous restraint on the communication of views or subsequent liability whether in libel suits, 12 prosecution for
sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a
substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people to meet
peaceably for consultation and discussion of matters Of public concern.17 It is entitled to be accorded the utmost
deference and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with freedom of
expression, of a clear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to
the 1935 Constitution, Justice Maicolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the
majority of the American Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence that the right to
freedom of speech and of the press were toupled in a single guarantee with the and to petition the rights of the
people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not
Identical, are inseparable. the every case, therefo re there is a limitation placed on the exercise of this right, the
judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a
limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of
a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest. 21

2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than
in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights
was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason
by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to
restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope.
But utterance in a context of violence can lose its significance as an appeal to reason and become part of an
instrument of force. Such utterance was not meant to be sheltered by the Constitution." 22 What was rightfully
stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It
must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to
give vent to their-views, even if contrary to the prevailing climate of opinion. For if the peaceful means of
communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole
reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved
or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing
from the dissenter. That is to ensure a true ferment of Ideas. There are, of course, well-defined limits. What is
guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach
rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly.
resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As
pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to be
expected that more or less disorder will mark the public assembly of the people to protest against grievances
whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and
the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control
of the leaders over their irresponsible followers." 24 It bears repeating that for the constitutional right to be invoked,
riotous conduct, injury to property, and acts of vandalism must be avoided, To give free rein to one's destructive
urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our
scheme of values.

3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the
choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed
in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and
parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been
used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such
use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and
liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of
views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience, and in consonance with peace and good order;
but it must not, in the guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in
Primicias v. Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915
decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man
and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza
"being a promenade for public use," 29 which certainly is not the only purpose that it could serve. To repeat, there
can be no valid reason why a permit should not be granted for the or oposed march and rally starting from a public
dark that is the Luneta.

4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two
block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding
that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in
Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox vs.
State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section 2,
providing that 'no parade or procession upon any ground abutting thereon, shall 'De permitted unless a special
license therefor shall first be explained from the selectmen of the town or from licensing committee,' was construed
by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse
to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by
Chief Justice Hughes affirming the judgment of the State Supreme Court, held that 'a statute requiring persons
using the public streets for a parade or procession to procure a special license therefor from the local authorities is
not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a
consideration of the time, place, and manner of the parade or procession, with a view to conserving the public
convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion
to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a subsequent portion of the
opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society
maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The
authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the
use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the
most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation
is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted
exercise of some civil right which in other circumstances would be entitled to protection." 31

5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have
arisen. So, too, if the march would end at another park. As previously mentioned though, there would be a short
program upon reaching the public space between the two gates of the United States Embassy at Roxas Boulevard.
That would be followed by the handing over of a petition based on the resolution adopted at the closing session of
the Anti-Bases Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations adopted
in 1961. It was concurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification was
signed by the President on October 11, 1965, and was thereafter deposited with the Secretary General of the United
Nations on November 15. As of that date then, it was binding on the Philippines. The second paragraph of the
Article 22 reads: "2. The receiving State is under a special duty to take appropriate steps to protect the premises of
the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or
impairment of its dignity. " 32 The Constitution "adopts the generally accepted principles of international law as part of
the law of the land. ..." 33 To the extent that the Vienna Convention is a restatement of the generally accepted
principles of international law, it should be a part of the law of the land. 34 That being the case, if there were a clear
and present danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment of its
dignity, there would be a justification for the denial of the permit insofar as the terminal point would be the Embassy.
Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of
rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for
other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense is
understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and
peaceable assembly. Even if shown then to be applicable, that question the confronts this Court.

6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined
within the limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has
been here. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued the minute
resolution granting the mandatory injunction allowing the proposed march and rally scheduled for the next day. That
conclusion was inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public
interest. There was no justification then to deny the exercise of the constitutional rights of tree speech and
peaceable assembly. These rights are assured by our Constitution and the Universal Declaration of Human
Rights. 35 The participants to such assembly, composed primarily of those in attendance at the International
Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases would start from
the Luneta. proceeding through Roxas Boulevard to the gates of the United States Embassy located at the same
street. To repeat, it is settled law that as to public places, especially so as to parks and streets, there is freedom of
access. Nor is their use dependent on who is the applicant for the permit, whether an individual or a group. If it were,
then the freedom of access becomes discriminatory access, giving rise to an equal protection question. The
principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if
the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the
meeting is held but as to its purpose; not as to The relations of the speakers, but whether their utterances transcend
the bounds of the freedom of speech which the Constitution protects." 36 There could be danger to public peace and
safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then,
only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not
devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered
discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what
may probably occur, given all the relevant circumstances, still the assumption — especially so where the assembly
is scheduled for a specific public — place is that the permit must be for the assembly being held there. The exercise
of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged
on the plea that it may be exercised in some other place." 37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng
Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit should
recognize the right of the applicants to hold their assembly at a public place of their choice, another place may be
designated by the licensing authority if it be shown that there is a clear and present danger of a substantive evil if no
such change were made. In the Navarro and the Pagkakaisa decisions, this Court was persuaded that the clear and
present danger test was satisfied. The present situation is quite different. Hence the decision reached by the Court.
The mere assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it should
be overlooked. There was in this case, however, the assurance of General Narciso Cabrera, Superintendent,
Western Police District, Metropolitan Police Force, that the police force is in a position to cope with such emergency
should it arise That is to comply with its duty to extend protection to the participants of such peaceable assembly.
Also from him came the commendable admission that there were the least five previous demonstrations at the
Bayview hotel Area and Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It
was made clear by petitioner, through counsel, that no act offensive to the dignity of the United States Mission in the
Philippines would take place and that, as mentioned at the outset of this opinion, "all the necessary steps would be
taken by it 'to ensure a peaceful march and rally.' " 40 Assistant Solicitor General Montenegro expressed the view
that the presence of policemen may in itself be a provocation. It is a sufficient answer that they should stay at a
discreet distance, but ever ready and alert to cope with any contingency. There is no need to repeat what was
pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to provide the proper
police protection to those exercising their right to peaceable assembly and freedom of expression.

8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the
date, the public place where and the time when it will take place. If it were a private place, only the consent of the
owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to
enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to
its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and
grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, then, can have
recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the
judiciary, — even more so than on the other departments — rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights,
enjoying as they do precedence and primacy. Clearly then, to the extent that there may be inconsistencies between
this resolution and that of Navarro v. Villegas, that case is pro tanto modified. So it was made clear in the original
resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the
holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or
chancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the
Vienna Convention on Diplomatic Relations. There was no showing, however, that the distance between the
chancery and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it
does not follow that respondent Mayor could legally act the way he did. The validity of his denial of the permit sought
could still be challenged. It could be argued that a case of unconstitutional application of such ordinance to the
exercise of the right of peaceable assembly presents itself. As in this case there was no proof that the distance is
less than 500 feet, the need to pass on that issue was obviated, Should it come, then the qualification and
observation of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded
the rights to free speech and peaceable assembly demands nothing less.

10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought
and order the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march
and rally being scheduled for the next day after the hearing, this Court. in the exercise of its conceded authority,
granted the mandatory injunction in the resolution of October 25, 1983. It may be noted that the peaceful character
of the peace march and rally on October 26 was not marred by any untoward incident. So it has been in other
assemblies held elsewhere. It is quite reassuring such that both on the part of the national government and the
citizens, reason and moderation have prevailed. That is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No costs.

Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur.

De Castro, J, is on leave.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right to freedom of
speech and to peacefully assemble and petition the government for redress of grievances are fundamental personal
rights of the people recognized and guaranteed by the constitutions of democratic countries" and that the city or
town mayors are not conferred "the power to refuse to grant the permit, but only the discretion, in issuing the permit,
to determine or specify the streets or public places where the parade or procession may pass or the meeting may be
held." The most recent graphic demonstration of what this great right of peaceful assembly and petition for redress
of grievances could accomplish was the civil rights march on Washington twenty years ago under the late
assassinated black leader Martin Luther King, Jr. (whose birthday has now been declared an American national
holiday) which subpoenaed the conscience of the nation," and awakened the conscience of millions of previously
indifferent Americans and eventually (after many disorders and riots yet to come) was to put an end to segregation
and discrimination against the American Negro.

The procedure for the securing of such permits for peaceable assembly is succintly set forth in the summary given
by the Court Justice in paragraph 8 of the Court's opinion, with the injunction that "the presumption must be to
incline the weight of the scales of justice on the side of such rights, enjoying as they do, precedence and primacy,"
The exception of the clear and present danger rule, which alone would warrant a limitation of these fundamental
rights, is therein restated in paragraph 1, thus: "The sole justification for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of
a serious evil to public safety, public morals, public health, or any other legitimate public interest. "

It bears emphasis that the burden to show the existence of grave and imminent danger that would justify adverse
action on the application lies on the mayor as licensing authority. There must be objective and convincing, not
subjective or conjectural proof of the existence of such clear and present danger. As stated in our Resolution of
October 25, 1983, which granted the mandatory injunction as prayed for, "It is essential for the validity of a denial of
a permit which amounts to a previous restraint or censorship that the licensing authority does not rely solely on his
own appraisal of what public welfare, peace or safety may require. To justify such a limitation there must be proof of
such weight and sufficiency to satisfy the clear and present danger test. The possibility that subversives may
infiltrate the ranks of the demonstrators is not enough." As stated by Justice Brandeis in his concurring opinion
in Whitney vs. California. 2 têñ.£îhqw â£

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared
witches and burned women. It is the function of speech to free men from the bondage of irrational
fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil
will result if free speech is practiced. There must be reasonable ground to believe that the danger
apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented
is a serious one * * *.

Those who won our independence by revolution were not cowards. They did not fear political
change. They did not exalt order at the cost of liberty. * * *

Moreover, even imminent danger cannot justify resort to prohibition of these functions essential (for)
effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and
assembly is a measure so stringent that it would be inappropriate as the means for averting a
relatively trivial harm to a society. * * * The fact that speech is likely to result in some violence or in
destruction of property is not enough to justify its suppression. There must be the probability of
serious injury to the state. Among freemen the deterrents ordinarily to be applied to prevent crimes
are education and punishment for violations of the law, not abridgment of the rights of free speech
and assembly. (Emphasis supplied)

The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that it may be
exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities to provide the proper
police protection to those exercising their right to peaceable assembly and freedom of expression," (at page 14) The
U.S. Supreme Court's pronouncement in Hague vs. Committee for Industrial Organization 3 cited in Fugoso is worth
repeating: têñ.£îhqwâ£

* * * Wherever the title of streets and parks may rest, they have immemorially been held in trust for
the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the privileges, immunities, rights, and
liberties of citizens. The privilege of a citizen * * * to use the streets and parks for communication of
views on national questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in consonance with
peace and good order; but it must not, in the guise of regulation, be abridged or denied.
 We think the court below was right in holding the ordinance quoted in Note I void upon its face. It
does not make comfort or convenience in the use of streets or parks the standard of official action. It
enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent
'riots, disturbances or disorderly assemblage. It can thus, as the record discloses, be made
the instrument of arbitrary suppression of free expression of views on national affairs for the
prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to maintain order in connection
with the exercise of the right. (Emphasis supplied)

Needless to say, the leaders of the peaceable assembly should take all the necessary measures to ensure a
peaceful march and assembly and to avoid the possibility of infiltrators and troublemakers disrupting the same,
concommitantly with the duty of the police to extend protection to the participants "staying at a discreet distance, but
ever ready and alert to perform their duty." But should any disorderly conduct or incidents occur, whether provoked
or otherwise, it is well to recall former Chief Justice Ricardo Paras' injunction in his concurring opinion in Fugoso,
citing the 1907 case of U.S. vs. Apurado, 4 that such instances of "disorderly conduct by individual members of a
crowd (be not seized) as an excuse to characterize the assembly as a seditious and tumultuous rising against the
authorities" and render illusory the right of peaceable assembly, thus: têñ.£îhqw â£

It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater the grievance and the more intense the
feeling, the less perfect, as a rule, will the disciplinary control of the leaders over their irresponsible
followers. But if the prosecution be permitted to seize upon every instance of such disorderly
conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious
and tumultous rising against the authorities, 'then the right to assemble and to petition for redress of
grievances would become a delusion and snare and the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would expose all those who took part therein to the
severest and most unmerited punishment, if the purposes which they sought to attain did not happen
to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished therefor. (Emphasis supplied).

As it turned out, the demonstration was held on October 26, 1983 peaceably and without any untoward event or evil
result, as pledged by the organizers (like at least five previous peaceful demonstrations in the area). However, even
if there had been any incidents of disorder, this would in no way show the Court's mandatory injunction to have been
wrongfully issued. The salutary desire on the part of respondent to prevent disorder cannot be pursued by the
unjustified denial and suppression of the people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of Rights — should
prevail over the Vienna Convention.

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just want to state for
the record that I voted for the issuance ex-parte of a preliminary mandatory injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however to voice a
reservation regarding Ordinance No. 7295 of the City of Manila which has been invoked by the respondent.
The main opinion yields the implication that a rally or demonstration made within 500 feet from the chancery of a
foreign embassy would be banned for coming within the terms of the prohibition of the cited Ordinance which was
adopted, so it is said, precisely to implement a treaty obligation of the Philippines under the 1961 Vienna Convention
on Diplomatic Relations.

In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be validly invoked
whenever its application would collide with a constitutionally guaranteed right such as freedom of assembly and/or
expression, as in the case at bar, regardless of whether the chancery of any foreign embassy is beyond or within
500 feet from the situs of the rally or demonstration.

AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy violates
Ordinance No. 7295 of the City of Manila.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "the right to freedom of
speech and to peacefully assemble and petition the government for redress of grievances are fundamental personal
rights of the people recognized and guaranteed by the constitutions of democratic countries" and that the city or
town mayors are not conferred "the power to refuse to grant the permit, but only the discretion, in issuing the permit,
to determine or specify the streets or public places where the parade or procession may pass or the meeting may be
held." The most recent graphic demonstration of what this great right of peaceful assembly and petition for redress
of grievances could accomplish was the civil rights march on Washington twenty years ago under the late
assassinated black leader Martin Luther King, Jr. (whose birthday has now been declared an American national
holiday) which subpoenaed the conscience of the nation," and awakened the conscience of millions of previously
indifferent Americans and eventually (after many disorders and riots yet to come) was to put an end to segregation
and discrimination against the American Negro.

The procedure for the securing of such permits for peaceable assembly is succintly set forth in the summary given
by the Court Justice in paragraph 8 of the Court's opinion, with the injunction that "the presumption must be to
incline the weight of the scales of justice on the side of such rights, enjoying as they do, precedence and primacy,"
The exception of the clear and present danger rule, which alone would warrant a limitation of these fundamental
rights, is therein restated in paragraph 1, thus: "The sole justification for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of
a serious evil to public safety, public morals, public health, or any other legitimate public interest. "

It bears emphasis that the burden to show the existence of grave and imminent danger that would justify adverse
action on the application lies on the mayor as licensing authority. There must be objective and convincing, not
subjective or conjectural proof of the existence of such clear and present danger. As stated in our Resolution of
October 25, 1983, which granted the mandatory injunction as prayed for, "It is essential for the validity of a denial of
a permit which amounts to a previous restraint or censorship that the licensing authority does not rely solely on his
own appraisal of what public welfare, peace or safety may require. To justify such a limitation there must be proof of
such weight and sufficiency to satisfy the clear and present danger test. The possibility that subversives may
infiltrate the ranks of the demonstrators is not enough." As stated by Justice Brandeis in his concurring opinion
in Whitney vs. California. 2têñ.£îhqw â£

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared
witches and burned women. It is the function of speech to free men from the bondage of irrational
 fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil
will result if free speech is practiced. There must be reasonable ground to believe that the danger
apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented
is a serious one * * *.

Those who won our independence by revolution were not cowards. They did not fear political
change. They did not exalt order at the cost of liberty. * * *

Moreover, even imminent danger cannot justify resort to prohibition of these functions essential (for)
effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and
assembly is a measure so stringent that it would be inappropriate as the means for averting a
relatively trivial harm to a society. * * * The fact that speech is likely to result in some violence or in
destruction of property is not enough to justify its suppression. There must be the probability of
serious injury to the state. Among freemen the deterrents ordinarily to be applied to prevent crimes
are education and punishment for violations of the law, not abridgment of the rights of free speech
and assembly. (Emphasis supplied)

The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that it may be
exercised in some other place" (paragraph 6), and that "it is the duty of the city authorities to provide the proper
police protection to those exercising their right to peaceable assembly and freedom of expression," (at page 14) The
U.S. Supreme Court's pronouncement in Hague vs. Committee for Industrial Organization 3 cited in Fugoso is worth
repeating: têñ.£îhqwâ£

* * * Wherever the title of streets and parks may rest, they have immemorially been held in trust for
the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the privileges, immunities, rights, and
liberties of citizens. The privilege of a citizen * * * to use the streets and parks for communication of
views on national questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in consonance with
peace and good order; but it must not, in the guise of regulation, be abridged or denied.

We think the court below was right in holding the ordinance quoted in Note I void upon its face. It
does not make comfort or convenience in the use of streets or parks the standard of official action. It
enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent
'riots, disturbances or disorderly assemblage. It can thus, as the record discloses, be made
the instrument of arbitrary suppression of free expression of views on national affairs for the
prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to maintain order in connection
with the exercise of the right. (Emphasis supplied)

Needless to say, the leaders of the peaceable assembly should take all the necessary measures to ensure a
peaceful march and assembly and to avoid the possibility of infiltrators and troublemakers disrupting the same,
concommitantly with the duty of the police to extend protection to the participants "staying at a discreet distance, but
ever ready and alert to perform their duty." But should any disorderly conduct or incidents occur, whether provoked
or otherwise, it is well to recall former Chief Justice Ricardo Paras' injunction in his concurring opinion in Fugoso,
citing the 1907 case of U.S. vs. Apurado, 4 that such instances of "disorderly conduct by individual members of a
crowd (be not seized) as an excuse to characterize the assembly as a seditious and tumultuous rising against the
authorities" and render illusory the right of peaceable assembly, thus: têñ.£îhqw â£

It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater the grievance and the more intense the
feeling, the less perfect, as a rule, will the disciplinary control of the leaders over their irresponsible
followers. But if the prosecution be permitted to seize upon every instance of such disorderly
conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious
and tumultous rising against the authorities, 'then the right to assemble and to petition for redress of
grievances would become a delusion and snare and the attempt to exercise it on the most righteous
 occasion and in the most peaceable manner would expose all those who took part therein to the
severest and most unmerited punishment, if the purposes which they sought to attain did not happen
to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished therefor. (Emphasis supplied).

As it turned out, the demonstration was held on October 26, 1983 peaceably and without any untoward event or evil
result, as pledged by the organizers (like at least five previous peaceful demonstrations in the area). However, even
if there had been any incidents of disorder, this would in no way show the Court's mandatory injunction to have been
wrongfully issued. The salutary desire on the part of respondent to prevent disorder cannot be pursued by the
unjustified denial and suppression of the people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of Rights — should
prevail over the Vienna Convention.

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just want to state for
the record that I voted for the issuance ex-parte of a preliminary mandatory injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however to voice a
reservation regarding Ordinance No. 7295 of the City of Manila which has been invoked by the respondent.

The main opinion yields the implication that a rally or demonstration made within 500 feet from the chancery of a
foreign embassy would be banned for coming within the terms of the prohibition of the cited Ordinance which was
adopted, so it is said, precisely to implement a treaty obligation of the Philippines under the 1961 Vienna Convention
on Diplomatic Relations.

In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be validly invoked
whenever its application would collide with a constitutionally guaranteed right such as freedom of assembly and/or
expression, as in the case at bar, regardless of whether the chancery of any foreign embassy is beyond or within
500 feet from the situs of the rally or demonstration.

AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy violates
Ordinance No. 7295 of the City of Manila.
Retired Justice JBL Reyes in behalf of the members of the Anti-Bases Coalition sought a permit to rally
from Luneta Park until the front gate of the US embassy which is less than two blocks apart. The permit
has been denied by then Manila mayor Ramon Bagatsing. The mayor claimed that there have been
intelligence reports that indicated that the rally would be infiltrated by lawless elements. He also issued
City Ordinance No. 7295 to prohibit the staging of rallies within the 500 feet radius of the US embassy.
Bagatsing pointed out that it was his intention to provide protection to the US embassy from such lawless
elements in pursuant to Art. 22 of the Vienna Convention on Diplomatic Relations. And that under our
constitution we “adhere to generally accepted principles of international law”.
ISSUE: Whether or not a treaty may supersede provisions of the Constitution. Whether or not the rallyists
should be granted the permit.
HELD:
I. No. Indeed, the receiving state is tasked for the protection of foreign diplomats from any lawless
element. And indeed the Vienna Convention is a restatement of the generally accepted principles of
international law. But the same cannot be invoked as defense to the primacy of the
Philippine Constitution which upholds and guarantees the rights to free speech and peacable assembly.
At the same time, the City Ordinance issued by respondent mayor cannot be invoked if the application
thereof would collide with a constitutionally guaranteed rights.
II. Yes. The denial of their rally does not pass the clear and present danger test. The mere assertion that
subversives may infiltrate the ranks of the demonstrators does not suffice. In this case, no less than the
police chief assured that they have taken all the necessary steps to ensure a peaceful rally. Further, the
ordinance cannot be applied yet because there was no showing that indeed the rallyists are within the 500
feet radius (besides, there’s also the question of whether or not the mayor can prohibit such rally – but, as
noted by the SC, that has not been raised an an issue in this case).

[G.R. No. 142396. February 11, 2003]

KHOSROW MINUCHER, petitioner, vs. HON. COURT OF APPEALS and ARTHUR

SCALZO, respondents.

DECISION
VITUG, J.:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No.
6425, otherwise also known as the Dangerous Drugs Act of 1972, was filed against
petitioner Khosrow Minucher and one Abbas Torabian with the Regional Trial Court,
Branch 151, of Pasig City. The criminal charge followed a buy-bust operation conducted
by the Philippine police narcotic agents in the house of Minucher, an Iranian national,
where a quantity of heroin, a prohibited drug, was said to have been seized. The narcotic
agents were accompanied by private respondent Arthur Scalzo who would, in due time,
become one of the principal witnesses for the prosecution. On 08 January 1988, Presiding
Judge Eutropio Migrino rendered a decision acquitting the two accused.
 On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial
Court (RTC), Branch 19, of Manila for damages on account of what he claimed to have
been trumped-up charges of drug trafficking made by Arthur Scalzo. The Manila RTC
detailed what it had found to be the facts and circumstances surrounding the case.

"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines
to study in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran,
he was appointed Labor Attach for the Iranian Embassies in Tokyo, Japan and Manila,
Philippines. When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a
refugee of the United Nations and continued to stay in the Philippines. He headed the Iranian
National Resistance Movement in the Philippines.

He came to know the defendant on May 13, 1986, when the latter was brought to his house and
introduced to him by a certain Jose Iigo, an informer of the Intelligence Unit of the military. Jose
Iigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for
several Iranians whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines.

During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iigo,
the defendant expressed his interest in buying caviar. As a matter of fact, he bought two kilos of
caviar from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets,
pistachio nuts and other Iranian products was his business after the Khomeini government cut his
pension of over $3,000.00 per month. During their introduction in that meeting, the defendant gave
the plaintiff his calling card, which showed that he is working at the US Embassy in the
Philippines, as a special agent of the Drug Enforcement Administration, Department of Justice, of
the United States, and gave his address as US Embassy, Manila. At the back of the card appears a
telephone number in defendants own handwriting, the number of which he can also be contacted.

It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his
wife and the wife of a countryman named Abbas Torabian. The defendant told him that he [could]
help plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was more concentrated
on politics, carpets and caviar. Thereafter, the defendant promised to see plaintiff again.

On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's
Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but
for the reason that the defendant was not yet there, he requested the restaurant people to x x x place
the same in the refrigerator.Defendant, however, came and plaintiff gave him the caviar for which
he was paid. Then their conversation was again focused on politics and business.

On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at
Kapitolyo, Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at
$27,900.00. After some haggling, they agreed at $24,000.00. For the reason that defendant did not
yet have the money, they agreed that defendant would come back the next day. The following day,
at 1:00 p.m., he came back with his $24,000.00, which he gave to the plaintiff, and the latter, in
turn, gave him the pair of carpets.

At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house
and directly proceeded to the latter's bedroom, where the latter and his countryman, Abbas
Torabian, were playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00
from it, gave it to the defendant for the latter's fee in obtaining a visa for plaintiff's wife. The
defendant told him that he would be leaving the Philippines very soon and requested him to come
out of the house for a while so that he can introduce him to his cousin waiting in a cab. Without
much ado, and without putting on his shirt as he was only in his pajama pants, he followed the
defendant where he saw a parked cab opposite the street. To his complete surprise, an American
jumped out of the cab with a drawn high-powered gun. He was in the company of about 30 to 40
Filipino soldiers with 6 Americans, all armed. He was handcuffed and after about 20 minutes in the
street, he was brought inside the house by the defendant. He was made to sit down while in
handcuffs while the defendant was inside his bedroom. The defendant came out of the bedroom and
out from defendant's attach case, he took something and placed it on the table in front of the
plaintiff. They also took plaintiff's wife who was at that time at the boutique near his house and
likewise arrested Torabian, who was playing chess with him in the bedroom and both were
handcuffed together. Plaintiff was not told why he was being handcuffed and why the privacy of
his house, especially his bedroom was invaded by defendant. He was not allowed to use the
telephone.In fact, his telephone was unplugged. He asked for any warrant, but the defendant told
him to `shut up. He was nevertheless told that he would be able to call for his lawyer who can
defend him.

The plaintiff took note of the fact that when the defendant invited him to come out to meet his
cousin, his safe was opened where he kept the $24,000.00 the defendant paid for the carpets and
another $8,000.00 which he also placed in the safe together with a bracelet worth $15,000.00 and a
pair of earrings worth $10,000.00. He also discovered missing upon his release his 8 pieces hand-
made Persian carpets, valued at $65,000.00, a painting he bought for P30,000.00 together with his
TV and betamax sets. He claimed that when he was handcuffed, the defendant took his keys from
his wallet. There was, therefore, nothing left in his house.

That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various
newspapers, particularly in Australia, America, Central Asia and in the Philippines. He was
identified in the papers as an international drug trafficker. x x x

In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines,
but also in America and in Germany. His friends in said places informed him that they saw him on
TV with said news.

After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed
together, where they were detained for three days without food and water." [1]

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for
Scalzo and moved for extension of time to file an answer pending a supposed advice from
the United States Department of State and Department of Justice on the defenses to be
raised. The trial court granted the motion. On 27 October 1988, Scalzo filed another
special appearance to quash the summons on the ground that he, not being a resident of
the Philippines and the action being one in personam, was beyond the processes of the
court. The motion was denied by the court, in its order of 13 December 1988, holding that
the filing by Scalzo of a motion for extension of time to file an answer to the complaint was
a voluntary appearance equivalent to service of summons which could likewise be
construed a waiver of the requirement of formal notice. Scalzo filed a motion for
reconsideration of the court order, contending that a motion for an extension of time to file
an answer was not a voluntary appearance equivalent to service of summons since it did
not seek an affirmative relief. Scalzo argued that in cases involving the United States
government, as well as its agencies and officials, a motion for extension was peculiarly
unavoidable due to the need (1) for both the Department of State and the Department of
Justice to agree on the defenses to be raised and (2) to refer the case to a Philippine
lawyer who would be expected to first review the case. The court a quo denied the motion
for reconsideration in its order of 15 October 1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R.
No. 17023, assailing the denial. In a decision, dated 06 October 1989, the appellate court
denied the petition and affirmed the ruling of the trial court. Scalzo then elevated the
incident in a petition for review on certiorari, docketed G.R. No. 91173, to this Court. The
petition, however, was denied for its failure to comply with SC Circular No. 1-88; in any
event, the Court added, Scalzo had failed to show that the appellate court was in error in
its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a)
declaring Scalzo in default for his failure to file a responsive pleading (answer) and (b)
setting the case for the reception of evidence. On 12 March 1990, Scalzo filed a motion to
set aside the order of default and to admit his answer to the complaint. Granting the
motion, the trial court set the case for pre-trial. In his answer, Scalzo denied the material
allegations of the complaint and raised the affirmative defenses (a) of Minuchers failure to
state a cause of action in his complaint and (b) that Scalzo had acted in the discharge of
his official duties as being merely an agent of the Drug Enforcement Administration of the
United States Department of Justice.Scalzo interposed a counterclaim of P100,000.00 to
answer for attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case,
Scalzo filed a motion to dismiss the complaint on the ground that, being a special agent of
the United States Drug Enforcement Administration, he was entitled to diplomatic
immunity. He attached to his motion Diplomatic Note No. 414 of the United States
Embassy, dated 29 May 1990, addressed to the Department of Foreign Affairs of the
Philippines and a Certification, dated 11 June 1990, of Vice Consul Donna Woodward,
certifying that the note is a true and faithful copy of its original. In an order of 25 June
1990, the trial court denied the motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court,
docketed G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et
al.," asking that the complaint in Civil Case No. 88-45691 be ordered dismissed. The case
was referred to the Court of Appeals, there docketed CA-G.R. SP No. 22505, per this
Courts resolution of 07 August 1990. On 31 October 1990, the Court of Appeals
promulgated its decision sustaining the diplomatic immunity of Scalzo and ordering the
dismissal of the complaint against him. Minucher filed a petition for review with this Court,
docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court of
Appeals, et. al. (cited in 214 SCRA 242), appealing the judgment of the Court of
Appeals. In a decision, dated 24 September 1992, penned by Justice (now Chief Justice)
Hilario Davide, Jr., this Court reversed the decision of the appellate court and remanded
the case to the lower court for trial. The remand was ordered on the theses (a) that the
Court of Appeals erred in granting the motion to dismiss of Scalzo for lack of jurisdiction
over his person without even considering the issue of the authenticity of Diplomatic Note
No. 414 and (b) that the complaint contained sufficient allegations to the effect that Scalzo
committed the imputed acts in his personal capacity and outside the scope of his official
duties and, absent any evidence to the contrary, the issue on Scalzos diplomatic immunity
could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November 1995,
the trial court reached a decision; it adjudged:

WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for
the plaintiff, who successfully established his claim by sufficient evidence, against the defendant in
the manner following:

"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00;

moral damages in the sum of P10 million; exemplary damages in the sum of P100,000.00;
attorney's fees in the sum of P200,000.00 plus costs.

`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on
this judgment to answer for the unpaid docket fees considering that the plaintiff in this case
instituted this action as a pauper litigant."
[2]

While the trial court gave credence to the claim of Scalzo and the evidence presented
by him that he was a diplomatic agent entitled to immunity as such, it ruled that he,
nevertheless, should be held accountable for the acts complained of committed outside
his official duties. On appeal, the Court of Appeals reversed the decision of the trial court
and sustained the defense of Scalzo that he was sufficiently clothed with diplomatic
immunity during his term of duty and thereby immune from the criminal and civil
jurisdiction of the Receiving State pursuant to the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold
issue: (1) whether or not the doctrine of conclusiveness of judgment, following the
decision rendered by this Court in G.R. No. 97765, should have precluded the Court of
Appeals from resolving the appeal to it in an entirely different manner, and (2) whether or
not Arthur Scalzo is indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would
require 1) the finality of the prior judgment, 2) a valid jurisdiction over the subject matter
and the parties on the part of the court that renders it, 3) a judgment on the merits, and 4)
an identity of the parties, subject matter and causes of action. Even while one of the
[3]

issues submitted in G.R. No. 97765 - "whether or not public respondent Court of Appeals
erred in ruling that private respondent Scalzo is a diplomat immune from civil suit
conformably with the Vienna Convention on Diplomatic Relations" - is also a pivotal
question raised in the instant petition, the ruling in G.R. No. 97765, however, has not
resolved that point with finality. Indeed, the Court there has made this observation -
"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13
June 1990, unequivocally states that he would present documentary evidence consisting of DEA
records on his investigation and surveillance of plaintiff and on his position and duties as DEA
special agent in Manila.Having thus reserved his right to present evidence in support of his
position, which is the basis for the alleged diplomatic immunity, the barren self-serving claim in the
belated motion to dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of
the issue of diplomatic immunity." [4]

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the
Philippines is a signatory, grants him absolute immunity from suit, describing his functions
as an agent of the United States Drugs Enforcement Agency as conducting surveillance
operations on suspected drug dealers in the Philippines believed to be the source of
prohibited drugs being shipped to the U.S., (and) having ascertained the target, (he then)
would inform the Philippine narcotic agents (to) make the actual arrest." Scalzo has
submitted to the trial court a number of documents -

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and

5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.

6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign
Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC
Manila, Branch 19 (the trial court);

7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and

8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign
Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of this Court. [5]

The documents, according to Scalzo, would show that: (1) the United States Embassy
accordingly advised the Executive Department of the Philippine Government that Scalzo
was a member of the diplomatic staff of the United States diplomatic mission from his
arrival in the Philippines on 14 October 1985 until his departure on 10 August 1988; (2)
that the United States Government was firm from the very beginning in asserting the
diplomatic immunity of Scalzo with respect to the case pursuant to the provisions of the
Vienna Convention on Diplomatic Relations; and (3) that the United States Embassy
repeatedly urged the Department of Foreign Affairs to take appropriate action to inform the
trial court of Scalzos diplomatic immunity. The other documentary exhibits were presented
to indicate that: (1) the Philippine government itself, through its Executive Department,
recognizing and respecting the diplomatic status of Scalzo, formally advised the Judicial
Department of his diplomatic status and his entitlement to all diplomatic privileges and
immunities under the Vienna Convention; and (2) the Department of Foreign Affairs itself
authenticated Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13"
consisting of his reports of investigation on the surveillance and subsequent arrest of
Minucher, the certification of the Drug Enforcement Administration of the United States
Department of Justice that Scalzo was a special agent assigned to the Philippines at all
times relevant to the complaint, and the special power of attorney executed by him in favor
of his previous counsel to show (a) that the United States Embassy, affirmed by its Vice
[6]

Consul, acknowledged Scalzo to be a member of the diplomatic staff of the United States
diplomatic mission from his arrival in the Philippines on 14 October 1985 until his
departure on 10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine
law enforcement officials and in the exercise of his functions as member of the mission, he
investigated Minucher for alleged trafficking in a prohibited drug, and (c) that the Philippine
Department of Foreign Affairs itself recognized that Scalzo during his tour of duty in the
Philippines (14 October 1985 up to 10 August 1988) was listed as being an Assistant
Attach of the United States diplomatic mission and accredited with diplomatic status by the
Government of the Philippines. In his Exhibit 12, Scalzo described the functions of the
overseas office of the United States Drugs Enforcement Agency, i.e., (1) to provide
criminal investigative expertise and assistance to foreign law enforcement agencies on
narcotic and drug control programs upon the request of the host country, 2) to establish
and maintain liaison with the host country and counterpart foreign law enforcement
officials, and 3) to conduct complex criminal investigations involving international criminal
conspiracies which affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old
customary law and, by the time of its ratification on 18 April 1961, its rules of law had long
become stable. Among the city states of ancient Greece, among the peoples of the
Mediterranean before the establishment of the Roman Empire, and among the states of
India, the person of the herald in time of war and the person of the diplomatic envoy in
time of peace were universally held sacrosanct. By the end of the 16th century, when the
[7]

earliest treatises on diplomatic law were published, the inviolability of ambassadors was
firmly established as a rule of customary international law. Traditionally, the exercise of
[8]

diplomatic intercourse among states was undertaken by the head of state himself, as
being the preeminent embodiment of the state he represented, and the foreign secretary,
the official usually entrusted with the external affairs of the state. Where a state would
wish to have a more prominent diplomatic presence in the receiving state, it would then
send to the latter a diplomatic mission. Conformably with the Vienna Convention, the
functions of the diplomatic mission involve, by and large, the representation of the
interests of the sending state and promoting friendly relations with the receiving state. [9]

The Convention lists the classes of heads of diplomatic missions to include (a)
ambassadors or nuncios accredited to the heads of state, (b) envoys, ministers
[10] [11]

or internuncios accredited to the heads of states; and (c) charges d' affairs accredited to
[12]

the ministers of foreign affairs. Comprising the "staff of the (diplomatic) mission" are the
[13]

diplomatic staff, the administrative staff and the technical and service staff. Only the heads
of missions, as well as members of the diplomatic staff, excluding the members of the
administrative, technical and service staff of the mission, are accorded diplomatic
rank. Even while the Vienna Convention on Diplomatic Relations provides for immunity to
the members of diplomatic missions, it does so, nevertheless, with an understanding that
the same be restrictively applied. Only "diplomatic agents," under the terms of the
Convention, are vested with blanket diplomatic immunity from civil and criminal suits. The
Convention defines "diplomatic agents" as the heads of missions or members of the
diplomatic staff, thus impliedly withholding the same privileges from all others. It might
bear stressing that even consuls, who represent their respective states in concerns of
commerce and navigation and perform certain administrative and notarial duties, such as
the issuance of passports and visas, authentication of documents, and administration of
oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges accorded
diplomats, mainly for the reason that they are not charged with the duty of representing
their states in political matters. Indeed, the main yardstick in ascertaining whether a
person is a diplomat entitled to immunity is the determination of whether or not he
performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits 9 to 13, that he was an Assistant Attach of
the United States diplomatic mission and was accredited as such by the Philippine
Government. An attach belongs to a category of officers in the diplomatic establishment
who may be in charge of its cultural, press, administrative or financial affairs. There could
also be a class of attaches belonging to certain ministries or departments of the
government, other than the foreign ministry or department, who are detailed by their
respective ministries or departments with the embassies such as the military, naval, air,
commercial, agricultural, labor, science, and customs attaches, or the like. Attaches assist
a chief of mission in his duties and are administratively under him, but their main function
is to observe, analyze and interpret trends and developments in their respective fields in
the host country and submit reports to their own ministries or departments in the home
government. These officials are not generally regarded as members of the diplomatic
[14]

mission, nor are they normally designated as having diplomatic rank.

In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos.
414, 757 and 791, all issued post litem motam, respectively, on 29 May 1990, 25 October
1991 and 17 November 1992. The presentation did nothing much to alleviate the Court's
initial reservations in G.R. No. 97765, viz:

"While the trial court denied the motion to dismiss, the public respondent gravely abused its
discretion in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that
simply because of the diplomatic note, the private respondent is clothed with diplomatic immunity,
thereby divesting the trial court of jurisdiction over his person.

xxxxxxxxx

And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting
aside for the moment the issue of authenticity raised by the petitioner and the doubts that surround
such claim, in view of the fact that it took private respondent one (1) year, eight (8) months and
seventeen (17) days from the time his counsel filed on 12 September 1988 a Special Appearance
and Motion asking for a first extension of time to file the Answer because the Departments of State
and Justice of the United States of America were studying the case for the purpose of determining
his defenses, before he could secure the Diplomatic Note from the US Embassy in Manila, and
even granting for the sake of argument that such note is authentic, the complaint for damages filed
by petitioner cannot be peremptorily dismissed.

xxxxxxxxx

"There is of course the claim of private respondent that the acts imputed to him were done in his
official capacity. Nothing supports this self-serving claim other than the so-called Diplomatic
Note. x x x. The public respondent then should have sustained the trial court's denial of the motion
to dismiss. Verily, it should have been the most proper and appropriate recourse. It should not have
been overwhelmed by the self-serving Diplomatic Note whose belated issuance is even suspect and
whose authenticity has not yet been proved. The undue haste with which respondent Court yielded
to the private respondent's claim is arbitrary."

A significant document would appear to be Exhibit No. 08, dated 08 November 1992,
issued by the Office of Protocol of the Department of Foreign Affairs and signed by
Emmanuel C. Fernandez, Assistant Secretary, certifying that "the records of the
Department (would) show that Mr. Arthur W. Scalzo, Jr., during his term of office in the
Philippines (from 14 October 1985 up to 10 August 1988) was listed as an Assistant
Attach of the United States diplomatic mission and was, therefore, accredited diplomatic
status by the Government of the Philippines." No certified true copy of such "records," the
supposed bases for the belated issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the
executive branch of the government. In World Health Organization vs. Aquino, the Court [15]

has recognized that, in such matters, the hands of the courts are virtually tied. Amidst
apprehensions of indiscriminate and incautious grant of immunity, designed to gain
exemption from the jurisdiction of courts, it should behoove the Philippine government,
specifically its Department of Foreign Affairs, to be most circumspect, that should
particularly be no less than compelling, in its post litem motam issuances. It might be
recalled that the privilege is not an immunity from the observance of the law of the
territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the
exercise of territorial jurisdiction. The government of the United States itself, which
[16]

Scalzo claims to be acting for, has formulated its standards for recognition of a diplomatic
agent. The State Department policy is to only concede diplomatic status to a person
who possesses an acknowledged diplomatic title and performs duties of diplomatic
nature. Supplementary criteria for accreditation are the possession of a valid diplomatic
[17]

passport or, from States which do not issue such passports, a diplomatic note formally
representing the intention to assign the person to diplomatic duties, the holding of a non-
immigrant visa, being over twenty-one years of age, and performing diplomatic functions
on an essentially full-time basis. Diplomatic missions are requested to provide the most
[18]

accurate and descriptive job title to that which currently applies to the duties
performed. The Office of the Protocol would then assign each individual to the appropriate
functional category. [19]

But while the diplomatic immunity of Scalzo might thus remain contentious, it was
sufficiently established that, indeed, he worked for the United States Drug Enforcement
Agency and was tasked to conduct surveillance of suspected drug activities within the
country on the dates pertinent to this case. If it should be ascertained that Arthur Scalzo
was acting well within his assigned functions when he committed the acts alleged in the
complaint, the present controversy could then be resolved under the related doctrine
of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-
standing rule of customary international law then closely identified with the personal
immunity of a foreign sovereign from suit and, with the emergence of democratic states,
[20]

made to attach not just to the person of the head of state, or his representative, but also
distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit are
[21]

those of a foreign government done by its foreign agent, although not necessarily a
diplomatic personage, but acting in his official capacity, the complaint could be barred by
the immunity of the foreign sovereign from suit without its consent. Suing a representative
of a state is believed to be, in effect, suing the state itself. The proscription is not accorded
for the benefit of an individual but for the State, in whose service he is, under the maxim -
par in parem, non habet imperium - that all states are sovereign equals and cannot assert
jurisdiction over one another. The implication, in broad terms, is that if the judgment
[22]

against an official would require the state itself to perform an affirmative act to satisfy the
award, such as the appropriation of the amount needed to pay the damages decreed
against him, the suit must be regarded as being against the state itself, although it has not
been formally impleaded. [23]

In United States of America vs. Guinto, involving officers of the United States Air
[24]

Force and special officers of the Air Force Office of Special Investigators charged with the
duty of preventing the distribution, possession and use of prohibited drugs, this Court has
ruled -

"While the doctrine (of state immunity) appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. x x x. It cannot for a moment be imagined that
they were acting in their private or unofficial capacity when they apprehended and later testified
against the complainant. It follows that for discharging their duties as agents of the United States,
they cannot be directly impleaded for acts imputable to their principal, which has not given its
consent to be sued. x x x As they have acted on behalf of the government, and within the scope of
their authority, it is that government, and not the petitioners personally, [who were] responsible for
their acts." [25]

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of
Appeals elaborates:
[26]

It is a different matter where the public official is made to account in his capacity as such for acts
contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice
Zaldivar in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA
368): `Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of immunity of the State from suit. In the same
tenor, it has been said that an action at law or suit in equity against a State officer or the director of
a State department on the ground that, while claiming to act for the State, he violates or invades the
personal and property rights of the plaintiff, under an unconstitutional act or under an assumption
of authority which he does not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent. The rationale for this ruling is that the
doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.

xxxxxxxxx

(T)he doctrine of immunity from suit will not apply and may not be invoked where the public
official is being sued in his private and personal capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of the government is removed the moment they are sued
in their individual capacity. This situation usually arises where the public official acts without
authority or in excess of the powers vested in him. It is a well-settled principle of law that a public
official may be liable in his personal private capacity for whatever damage he may have caused by
his act done with malice and in bad faith or beyond the scope of his authority and jurisdiction. [27]

A foreign agent, operating within a territory, can be cloaked with immunity from suit but
only as long as it can be established that he is acting within the directives of the sending
state. The consent of the host state is an indispensable requirement of basic courtesy
between the two sovereigns. Guinto and Shauf both involve officers and personnel of the
United States, stationed within Philippine territory, under the RP-US Military Bases
Agreement. While evidence is wanting to show any similar agreement between the
governments of the Philippines and of the United States (for the latter to send its agents
and to conduct surveillance and related activities of suspected drug dealers in the
Philippines), the consent or imprimatur of the Philippine government to the activities of the
United States Drug Enforcement Agency, however, can be gleaned from the facts
heretofore elsewhere mentioned. The official exchanges of communication between
agencies of the government of the two countries, certifications from officials of both the
Philippine Department of Foreign Affairs and the United States Embassy, as well as the
participation of members of the Philippine Narcotics Command in the buy-bust operation
conducted at the residence of Minucher at the behest of Scalzo, may be inadequate to
support the "diplomatic status" of the latter but they give enough indication that the
Philippine government has given its imprimatur, if not consent, to the activities within
Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The
job description of Scalzo has tasked him to conduct surveillance on suspected drug
suppliers and, after having ascertained the target, to inform local law enforcers who would
then be expected to make the arrest. In conducting surveillance activities on Minucher,
later acting as the poseur-buyer during the buy-bust operation, and then becoming a
principal witness in the criminal case against Minucher, Scalzo hardly can be said to have
acted beyond the scope of his official function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the
United States Drug Enforcement Agency allowed by the Philippine government to conduct
activities in the country to help contain the problem on the drug traffic, is entitled to the
defense of state immunity from suit.
 WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.
SO ORDERED.

Facts

Violation of the “Dangerous Drugs Act of 1972,” was filed against Minucher
following a “buy-bust operation” conducted by Philippine police narcotic agents
accompanied by Scalzo in the house of Minucher, an Iranian national, where heroin
was said to have been seized. Minucher was later acquitted by the court.

Minucher later on filed for damages due to trumped-up charges of drug trafficking
made by Arthur Scalzo.

Scalzo on his counterclaims that he had acted in the discharge of his official duties
as being merely an agent of the Drug Enforcement Administration of the United
States Department of Justice.

Scalzo subsequently filed a motion to dismiss the complaint on the ground that,
being a special agent of the United States Drug Enforcement Administration, he
was entitled to diplomatic immunity. He attached to his motion Diplomatic Note of
the United States Embassy addressed to DOJ of the Philippines and a Certification
of Vice Consul Donna Woodward, certifying that the note is a true and faithful copy
of its original. Trial court denied the motion to dismiss.

ISSUE

Whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.

RULLING

YES.

A foreign agent, operating within a territory, can be cloaked with immunity from suit
as long as it can be established that he is acting within the directives of the sending
state.

The consent or imprimatur of the Philippine government to the activities of the

United States Drug Enforcement Agency, however, can be gleaned from the
undisputed facts in the case.
 The official exchanges of communication between agencies of the government
of the two countries
  Certifications from officials of both the Philippine Department of Foreign Affairs
and the United States Embassy
 Participation of members of the Philippine Narcotics Command in the “buy-bust
operation” conducted at the residence of Minucher at the behest of Scalzo

These may be inadequate to support the “diplomatic status” of the latter but they
give enough indication that the Philippine government has given its imprimatur, if
not consent, to the activities within Philippine territory of agent Scalzo of the United
States Drug Enforcement Agency.

The job description of Scalzo has tasked him to conduct surveillance on suspected
drug suppliers and, after having ascertained the target, to inform local law enforcers
who would then be expected to make the arrest.

In conducting surveillance activities on Minucher, later acting as the poseur-buyer

during the buy-bust operation, and then becoming a principal witness in the criminal
case against Minucher,

Scalzo hardly can be said to have acted beyond the scope of his official function or
duties.
G.R. No. 85750 September 28, 1990

INTERNATIONAL CATHOLIC IMMIGRATION COMMISSION, petitioner

vs
HON. PURA CALLEJA IN HER CAPACITY AS DIRECTOR OF THE BUREAU OF LABOR RELATIONS AND
TRADE UNIONS OF THE PHILIPPINES AND ALLIED SERVICES (TUPAS) WFTU respondents.

G.R. No. 89331 September 28, 1990

KAPISANAN NG MANGGAGAWA AT TAC SA IRRI-ORGANIZED LABOR ASSOCIATION IN LINE INDUSTRIES

AND AGRICULTURE, petitioner,
vs
SECRETARY OF LABOR AND EMPLOYMENT AND INTERNATIONAL RICE RESEARCH INSTITUTE,
INC., respondents.

Araullo, Zambrano, Gruba, Chua Law Firm for petitioner in 85750.

Dominguez, Armamento, Cabana & Associates for petitioner in G.R. No. 89331.

Jimenez & Associates for IRRI.

Alfredo L. Bentulan for private respondent in 85750.

MELENCIO-HERRERA, J.:

Consolidated on 11 December 1989, these two cases involve the validity of the claim of immunity by the International Catholic Migration Commission (ICMC) and
the International Rice Research Institute, Inc. (IRRI) from the application of Philippine labor laws.
 I

Facts and Issues

A. G.R. No. 85750 — the International Catholic Migration Commission (ICMC) Case.

As an aftermath of the Vietnam War, the plight of Vietnamese refugees fleeing from South Vietnam's communist
rule confronted the international community.

In response to this crisis, on 23 February 1981, an Agreement was forged between the Philippine Government and
the United Nations High Commissioner for Refugees whereby an operating center for processing Indo-Chinese
refugees for eventual resettlement to other countries was to be established in Bataan (Annex "A", Rollo, pp. 22-32).

ICMC was one of those accredited by the Philippine Government to operate the refugee processing center in
Morong, Bataan. It was incorporated in New York, USA, at the request of the Holy See, as a non-profit agency
involved in international humanitarian and voluntary work. It is duly registered with the United Nations Economic and
Social Council (ECOSOC) and enjoys Consultative Status, Category II. As an international organization rendering
voluntary and humanitarian services in the Philippines, its activities are parallel to those of the International
Committee for Migration (ICM) and the International Committee of the Red Cross (ICRC) [DOLE Records of BLR
Case No. A-2-62-87, ICMC v. Calleja, Vol. 1].

On 14 July 1986, Trade Unions of the Philippines and Allied Services (TUPAS) filed with the then Ministry of Labor
and Employment a Petition for Certification Election among the rank and file members employed by ICMC The latter
opposed the petition on the ground that it is an international organization registered with the United Nations and,
hence, enjoys diplomatic immunity.

On 5 February 1987, Med-Arbiter Anastacio L. Bactin sustained ICMC and dismissed the petition for lack of
jurisdiction.

On appeal by TUPAS, Director Pura Calleja of the Bureau of Labor Relations (BLR), reversed the Med-Arbiter's
Decision and ordered the immediate conduct of a certification election. At that time, ICMC's request for recognition
as a specialized agency was still pending with the Department of Foreign Affairs (DEFORAF).

Subsequently, however, on 15 July 1988, the Philippine Government, through the DEFORAF, granted ICMC the
status of a specialized agency with corresponding diplomatic privileges and immunities, as evidenced by a
Memorandum of Agreement between the Government and ICMC (Annex "E", Petition, Rollo, pp. 41-43), infra.

ICMC then sought the immediate dismissal of the TUPAS Petition for Certification Election invoking the immunity
expressly granted but the same was denied by respondent BLR Director who, again, ordered the immediate conduct
of a pre-election conference. ICMC's two Motions for Reconsideration were denied despite an opinion rendered by
DEFORAF on 17 October 1988 that said BLR Order violated ICMC's diplomatic immunity.

Thus, on 24 November 1988, ICMC filed the present Petition for Certiorari with Preliminary Injunction assailing the
BLR Order.

On 28 November 1988, the Court issued a Temporary Restraining Order enjoining the holding of the certification
election.

On 10 January 1989, the DEFORAF, through its Legal Adviser, retired Justice Jorge C. Coquia of the Court of
Appeals, filed a Motion for Intervention alleging that, as the highest executive department with the competence and
authority to act on matters involving diplomatic immunity and privileges, and tasked with the conduct of Philippine
diplomatic and consular relations with foreign governments and UN organizations, it has a legal interest in the
outcome of this case.

Over the opposition of the Solicitor General, the Court allowed DEFORAF intervention.
On 12 July 1989, the Second Division gave due course to the ICMC Petition and required the submittal of
memoranda by the parties, which has been complied with.

As initially stated, the issue is whether or not the grant of diplomatic privileges and immunites to ICMC extends to
immunity from the application of Philippine labor laws.

ICMC sustains the affirmative of the proposition citing (1) its Memorandum of Agreement with the Philippine
Government giving it the status of a specialized agency, (infra); (2) the Convention on the Privileges and Immunities
of Specialized Agencies, adopted by the UN General Assembly on 21 November 1947 and concurred in by the
Philippine Senate through Resolution No. 91 on 17 May 1949 (the Philippine Instrument of Ratification was signed
by the President on 30 August 1949 and deposited with the UN on 20 March 1950) infra; and (3) Article II, Section 2
of the 1987 Constitution, which declares that the Philippines adopts the generally accepted principles of international
law as part of the law of the land.

Intervenor DEFORAF upholds ICMC'S claim of diplomatic immunity and seeks an affirmance of the DEFORAF
determination that the BLR Order for a certification election among the ICMC employees is violative of the
diplomatic immunity of said organization.

Respondent BLR Director, on the other hand, with whom the Solicitor General agrees, cites State policy and
Philippine labor laws to justify its assailed Order, particularly, Article II, Section 18 and Article III, Section 8 of the
1987 Constitution, infra; and Articles 243 and 246 of the Labor Code, as amended, ibid. In addition, she contends
that a certification election is not a litigation but a mere investigation of a non-adversary, fact-finding character. It is
not a suit against ICMC its property, funds or assets, but is the sole concern of the workers themselves.

B. G.R. No. 89331 — (The International Rice Research Institute [IRRI] Case).

Before a Decision could be rendered in the ICMC Case, the Third Division, on 11 December 1989, resolved to
consolidate G.R. No. 89331 pending before it with G.R. No. 85750, the lower-numbered case pending with the
Second Division, upon manifestation by the Solicitor General that both cases involve similar issues.

The facts disclose that on 9 December 1959, the Philippine Government and the Ford and Rockefeller Foundations
signed a Memorandum of Understanding establishing the International Rice Research Institute (IRRI) at Los Baños,
Laguna. It was intended to be an autonomous, philanthropic, tax-free, non-profit, non-stock organization designed to
carry out the principal objective of conducting "basic research on the rice plant, on all phases of rice production,
management, distribution and utilization with a view to attaining nutritive and economic advantage or benefit for the
people of Asia and other major rice-growing areas through improvement in quality and quantity of rice."

Initially, IRRI was organized and registered with the Securities and Exchange Commission as a private corporation
subject to all laws and regulations. However, by virtue of Pres. Decree No. 1620, promulgated on 19 April 1979,
IRRI was granted the status, prerogatives, privileges and immunities of an international organization.

The Organized Labor Association in Line Industries and Agriculture (OLALIA), is a legitimate labor organization with
an existing local union, the Kapisanan ng Manggagawa at TAC sa IRRI (Kapisanan, for short) in respondent IRRI.

On 20 April 1987, the Kapisanan filed a Petition for Direct Certification Election with Region IV, Regional Office of
the Department of Labor and Employment (DOLE).

IRRI opposed the petition invoking Pres. Decree No. 1620 conferring upon it the status of an international
organization and granting it immunity from all civil, criminal and administrative proceedings under Philippine laws.

On 7 July 1987, Med-Arbiter Leonardo M. Garcia, upheld the opposition on the basis of Pres. Decree No. 1620 and
dismissed the Petition for Direct Certification.

On appeal, the BLR Director, who is the public respondent in the ICMC Case, set aside the Med-Arbiter's Order and
authorized the calling of a certification election among the rank-and-file employees of IRRI. Said Director relied on
Article 243 of the Labor Code, as amended, infra and Article XIII, Section 3 of the 1987 Constitution, 1 and held that
"the immunities and privileges granted to IRRI do not include exemption from coverage of our Labor Laws."
Reconsideration sought by IRRI was denied.

On appeal, the Secretary of Labor, in a Resolution of 5 July 1989, set aside the BLR Director's Order, dismissed the
Petition for Certification Election, and held that the grant of specialized agency status by the Philippine Government
to the IRRI bars DOLE from assuming and exercising jurisdiction over IRRI Said Resolution reads in part as follows:

Presidential Decree No. 1620 which grants to the IRRI the status, prerogatives, privileges and
immunities of an international organization is clear and explicit. It provides in categorical terms that:

Art. 3 — The Institute shall enjoy immunity from any penal, civil and administrative proceedings,
except insofar as immunity has been expressly waived by the Director-General of the Institution or
his authorized representative.

Verily, unless and until the Institute expressly waives its immunity, no summons, subpoena, orders,
decisions or proceedings ordered by any court or administrative or quasi-judicial agency are
enforceable as against the Institute. In the case at bar there was no such waiver made by the
Director-General of the Institute. Indeed, the Institute, at the very first opportunity already
vehemently questioned the jurisdiction of this Department by filing an ex-parte motion to dismiss the
case.

Hence, the present Petition for Certiorari filed by Kapisanan alleging grave abuse of discretion by respondent
Secretary of Labor in upholding IRRI's diplomatic immunity.

The Third Division, to which the case was originally assigned, required the respondents to comment on the petition.
In a Manifestation filed on 4 August 1990, the Secretary of Labor declared that it was "not adopting as his own" the
decision of the BLR Director in the ICMC Case as well as the Comment of the Solicitor General sustaining said
Director. The last pleading was filed by IRRI on 14 August 1990.

Instead of a Comment, the Solicitor General filed a Manifestation and Motion praying that he be excused from filing
a comment "it appearing that in the earlier case of International Catholic Migration Commission v. Hon. Pura Calleja,
G.R. No. 85750. the Office of the Solicitor General had sustained the stand of Director Calleja on the very same
issue now before it, which position has been superseded by respondent Secretary of Labor in G.R. No. 89331," the
present case. The Court acceded to the Solicitor General's prayer.

The Court is now asked to rule upon whether or not the Secretary of Labor committed grave abuse of discretion in
dismissing the Petition for Certification Election filed by Kapisanan.

Kapisanan contends that Article 3 of Pres. Decree No. 1620 granting IRRI the status, privileges, prerogatives and
immunities of an international organization, invoked by the Secretary of Labor, is unconstitutional in so far as it
deprives the Filipino workers of their fundamental and constitutional right to form trade unions for the purpose of
collective bargaining as enshrined in the 1987 Constitution.

A procedural issue is also raised. Kapisanan faults respondent Secretary of Labor for entertaining IRRI'S appeal
from the Order of the Director of the Bureau of Labor Relations directing the holding of a certification election.
Kapisanan contends that pursuant to Sections 7, 8, 9 and 10 of Rule V 2 of the Omnibus Rules Implementing the
Labor Code, the Order of the BLR Director had become final and unappeable and that, therefore, the Secretary of
Labor had no more jurisdiction over the said appeal.

On the other hand, in entertaining the appeal, the Secretary of Labor relied on Section 25 of Rep. Act. No. 6715,
which took effect on 21 March 1989, providing for the direct filing of appeal from the Med-Arbiter to the Office of the
Secretary of Labor and Employment instead of to the Director of the Bureau of Labor Relations in cases involving
certification election orders.

III

Findings in Both Cases.

There can be no question that diplomatic immunity has, in fact, been granted ICMC and IRRI.

Article II of the Memorandum of Agreement between the Philippine Government and ICMC provides that ICMC shall
have a status "similar to that of a specialized agency." Article III, Sections 4 and 5 of the Convention on the
Privileges and Immunities of Specialized Agencies, adopted by the UN General Assembly on 21 November 1947
and concurred in by the Philippine Senate through Resolution No. 19 on 17 May 1949, explicitly provides:

Art. III, Section 4. The specialized agencies, their property and assets, wherever located and by
whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any
particular case they have expressly waived their immunity. It is, however, understood that no waiver
of immunity shall extend to any measure of execution.

Sec. 5. — The premises of the specialized agencies shall be inviolable. The property and assets of
the specialized agencies, wherever located and by whomsoever held shall be immune from search,
requisition, confiscation, expropriation and any other form of interference, whether by executive,
administrative, judicial or legislative action. (Emphasis supplied).

IRRI is similarly situated, Pres. Decree No. 1620, Article 3, is explicit in its grant of immunity, thus:

Art. 3. Immunity from Legal Process. — The Institute shall enjoy immunity from any penal, civil and
administrative proceedings, except insofar as that immunity has been expressly waived by the
Director-General of the Institute or his authorized representatives.

Thus it is that the DEFORAF, through its Legal Adviser, sustained ICMC'S invocation of immunity when in a
Memorandum, dated 17 October 1988, it expressed the view that "the Order of the Director of the Bureau of Labor
Relations dated 21 September 1988 for the conduct of Certification Election within ICMC violates the diplomatic
immunity of the organization." Similarly, in respect of IRRI, the DEFORAF speaking through The Acting Secretary of
Foreign Affairs, Jose D. Ingles, in a letter, dated 17 June 1987, to the Secretary of Labor, maintained that "IRRI
enjoys immunity from the jurisdiction of DOLE in this particular instance."

The foregoing opinions constitute a categorical recognition by the Executive Branch of the Government that ICMC
and IRRI enjoy immunities accorded to international organizations, which determination has been held to be a
political question conclusive upon the Courts in order not to embarrass a political department of Government.

It is a recognized principle of international law and under our system of separation of powers that
diplomatic immunity is essentially a political question and courts should refuse to look beyond a
determination by the executive branch of the government, and where the plea of diplomatic immunity
is recognized and affirmed by the executive branch of the government as in the case at bar, it is then
the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal
law officer of the government . . . or other officer acting under his direction. Hence, in adherence to
the settled principle that courts may not so exercise their jurisdiction . . . as to embarrass the
executive arm of the government in conducting foreign relations, it is accepted doctrine that in such
cases the judicial department of (this) government follows the action of the political branch and will
not embarrass the latter by assuming an antagonistic jurisdiction. 3

A brief look into the nature of international organizations and specialized agencies is in order. The term
"international organization" is generally used to describe an organization set up by agreement between two or more
states. 4 Under contemporary international law, such organizations are endowed with some degree of international
legal personality 5 such that they are capable of exercising specific rights, duties and powers. 6 They are organized
mainly as a means for conducting general international business in which the member states have an interest. 7 The
United Nations, for instance, is an international organization dedicated to the propagation of world peace.

"Specialized agencies" are international organizations having functions in particular fields. The term appears in
Articles 57 8 and 63 9 of the Charter of the United Nations:

The Charter, while it invests the United Nations with the general task of promoting progress and
international cooperation in economic, social, health, cultural, educational and related matters,
 contemplates that these tasks will be mainly fulfilled not by organs of the United Nations itself but by
autonomous international organizations established by inter-governmental agreements outside the
United Nations. There are now many such international agencies having functions in many different
fields, e.g. in posts, telecommunications, railways, canals, rivers, sea transport, civil aviation,
meteorology, atomic energy, finance, trade, education and culture, health and refugees. Some are
virtually world-wide in their membership, some are regional or otherwise limited in their membership.
The Charter provides that those agencies which have "wide international responsibilities" are to be
brought into relationship with the United Nations by agreements entered into between them and the
Economic and Social Council, are then to be known as "specialized agencies." 10

The rapid growth of international organizations under contemporary international law has paved the way for the
development of the concept of international immunities.

It is now usual for the constitutions of international organizations to contain provisions conferring
certain immunities on the organizations themselves, representatives of their member states and
persons acting on behalf of the organizations. A series of conventions, agreements and protocols
defining the immunities of various international organizations in relation to their members generally
are now widely in force; . . . 11

There are basically three propositions underlying the grant of international immunities to international organizations.
These principles, contained in the ILO Memorandum are stated thus: 1) international institutions should have a
status which protects them against control or interference by any one government in the performance of functions
for the effective discharge of which they are responsible to democratically constituted international bodies in which
all the nations concerned are represented; 2) no country should derive any national financial advantage by levying
fiscal charges on common international funds; and 3) the international organization should, as a collectivity of States
members, be accorded the facilities for the conduct of its official business customarily extended to each other by its
individual member States. 12 The theory behind all three propositions is said to be essentially institutional in
character. "It is not concerned with the status, dignity or privileges of individuals, but with the elements of functional
independence necessary to free international institutions from national control and to enable them to discharge their
responsibilities impartially on behalf of all their members. 13 The raison d'etre for these immunities is the assurance
of unimpeded performance of their functions by the agencies concerned.

The grant of immunity from local jurisdiction to ICMC and IRRI is clearly necessitated by their international character
and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in
their internal workings. The exercise of jurisdiction by the Department of Labor in these instances would defeat the
very purpose of immunity, which is to shield the affairs of international organizations, in accordance with
international practice, from political pressure or control by the host country to the prejudice of member States of the
organization, and to ensure the unhampered performance of their functions.

ICMC's and IRRI's immunity from local jurisdiction by no means deprives labor of its basic rights, which are
guaranteed by Article II, Section 18, 14 Article III, Section 8, 15 and Article XIII, Section 3 (supra), of the 1987
Constitution; and implemented by Articles 243 and 246 of the Labor Code, 16 relied on by the BLR Director and by
Kapisanan.

For, ICMC employees are not without recourse whenever there are disputes to be settled. Section 31 of the
Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations 17 provides that
"each specialized agency shall make provision for appropriate modes of settlement of: (a) disputes arising out of
contracts or other disputes of private character to which the specialized agency is a party." Moreover, pursuant to
Article IV of the Memorandum of Agreement between ICMC the the Philippine Government, whenever there is any
abuse of privilege by ICMC, the Government is free to withdraw the privileges and immunities accorded. Thus:

Art. IV. Cooperation with Government Authorities. — 1. The Commission shall cooperate at all times
with the appropriate authorities of the Government to ensure the observance of Philippine laws, rules
and regulations, facilitate the proper administration of justice and prevent the occurrences of any
abuse of the privileges and immunities granted its officials and alien employees in Article III of this
Agreement to the Commission.
 2. In the event that the Government determines that there has been an abuse of the privileges and
immunities granted under this Agreement, consultations shall be held between the Government and
the Commission to determine whether any such abuse has occurred and, if so, the Government
shall withdraw the privileges and immunities granted the Commission and its officials.

Neither are the employees of IRRI without remedy in case of dispute with management as, in fact, there had been
organized a forum for better management-employee relationship as evidenced by the formation of the Council of
IRRI Employees and Management (CIEM) wherein "both management and employees were and still are
represented for purposes of maintaining mutual and beneficial cooperation between IRRI and its employees." The
existence of this Union factually and tellingly belies the argument that Pres. Decree No. 1620, which grants to IRRI
the status, privileges and immunities of an international organization, deprives its employees of the right to self-
organization.

The immunity granted being "from every form of legal process except in so far as in any particular case they have
expressly waived their immunity," it is inaccurate to state that a certification election is beyond the scope of that
immunity for the reason that it is not a suit against ICMC. A certification election cannot be viewed as an
independent or isolated process. It could tugger off a series of events in the collective bargaining process together
with related incidents and/or concerted activities, which could inevitably involve ICMC in the "legal process," which
includes "any penal, civil and administrative proceedings." The eventuality of Court litigation is neither remote and
from which international organizations are precisely shielded to safeguard them from the disruption of their
functions. Clauses on jurisdictional immunity are said to be standard provisions in the constitutions of international
Organizations. "The immunity covers the organization concerned, its property and its assets. It is equally applicable
to proceedings in personam and proceedings in rem." 18

We take note of a Manifestation, dated 28 September 1989, in the ICMC Case (p. 161, Rollo), wherein TUPAS calls
attention to the case entitled "International Catholic Migration Commission v. NLRC, et als., (G.R. No. 72222, 30
January 1989, 169 SCRA 606), and claims that, having taken cognizance of that dispute (on the issue of payment of
salary for the unexpired portion of a six-month probationary employment), the Court is now estopped from passing
upon the question of DOLE jurisdiction petition over ICMC.

We find no merit to said submission. Not only did the facts of said controversy occur between 1983-1985, or before
the grant to ICMC on 15 July 1988 of the status of a specialized agency with corresponding immunities, but also
because ICMC in that case did not invoke its immunity and, therefore, may be deemed to have waived it, assuming
that during that period (1983-1985) it was tacitly recognized as enjoying such immunity.

Anent the procedural issue raised in the IRRI Case, suffice it to state that the Decision of the BLR Director, dated 15
February 1989, had not become final because of a Motion for Reconsideration filed by IRRI Said Motion was acted
upon only on 30 March 1989 when Rep. Act No. 6715, which provides for direct appeals from the Orders of the
Med-Arbiter to the Secretary of Labor in certification election cases either from the order or the results of the election
itself, was already in effect, specifically since 21 March 1989. Hence, no grave abuse of discretion may be imputed
to respondent Secretary of Labor in his assumption of appellate jurisdiction, contrary to Kapisanan's allegations. The
pertinent portion of that law provides:

Art. 259. — Any party to an election may appeal the order or results of the election as determined by
the Med-Arbiter directly to the Secretary of Labor and Employment on the ground that the rules and
regulations or parts thereof established by the Secretary of Labor and Employment for the conduct
of the election have been violated. Such appeal shall be decided within 15 calendar days (Emphasis
supplied).

En passant, the Court is gratified to note that the heretofore antagonistic positions assumed by two departments of
the executive branch of government have been rectified and the resultant embarrassment to the Philippine
Government in the eyes of the international community now, hopefully, effaced.

WHEREFORE, in G.R. No. 85750 (the ICMC Case), the Petition is GRANTED, the Order of the Bureau of Labor
Relations for certification election is SET ASIDE, and the Temporary Restraining Order earlier issued is made
PERMANENT.
In G.R. No. 89331 (the IRRI Case), the Petition is Dismissed, no grave abuse of discretion having been committed
by the Secretary of Labor and Employment in dismissing the Petition for Certification Election.

No pronouncement as to costs.

SO ORDERED.

FACTS:

ICMC an accredited refugee processing center in Morong Bataan, is a non-profit agency involved in international humanitarian
and voluntary work. It is duly registered with the United Nations Economic and Social Council (ECOSOC) and enjoys
Consultative status II. It has the activities parallel to those of the International Committee for Migrtion (ICM) and the
International Committee of the Red Cross (ICRC).

On July 14, 1986, Trade Union of the Philippines and Allied Services (TUPAS) filed with the then Ministry of Labor and
Employment a Petition for Certification Election among the rank and file members employed by the ICMC. The latter opposed
the petition on the ground that it enjoys diplomatic immunity.

On Februaury 5, 1987 Med – Arbiter Anastacio L. Bactin sustained ICMC and dismissed the petition of TUPAS for lack of
jurisdiction.

On appeal, The Director of the Bureau of Labor Relations reversed the Med – Arbiter’s Decisionand ordered the immediate
conduct of a certification election.

This present Petition for Certiorari with Preliminary Injunction assailing the BLR Order.

ISSUE:

Whether or not the grant of diplomatic privileges and immunities to ICMC extends to immunity from the application of
Philippine labor laws.

HELD:

The Petition is GRANTED, the order of the Bureau of Labor Relations for Certification election is SET ASIDE, and the
Temporary Restraining Order earlier issued is made PERMANENT.

It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is
essentially a political question and courts should refuse to look beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government . . . or other officer acting under his direction. Hence, in adherence
to the settled principle that courts may not so exercise their jurisdiction . . . as to embarrass the executive arm of the
government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of (this)
government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic
jurisdiction.

BASIS:

Article II of the Memorandum of Agreement between the Philippine Government and ICMC provides that ICMC shall have a
status “similar to that of a specialized agency.”
Article III, Section 4. The specialized agencies, their property and assets, wherever located and by whomsoever held, shall
enjoy immunity from every form of legal process except in so far as in any particular case they have expressly waived their
immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution.

FACTS: ICMC was one of those accredited by the Philippine Government to operate the refugee
processing center in Morong, Bataan. It was incorporated in New York, USA, at the request of the
Holy See, as a non-profit agency involved in international humanitarian and voluntary work.
IRRI on the other hand was intended to be an autonomous, philanthropic, tax-free, non-profit, non-
stock organization designed to carry out the principal objective of conducting “basic research on
the rice plant, on all phases of rice production, management, distribution and utilization with a view
to attaining nutritive and economic advantage or benefit for the people of Asia and other major
rice-growing areas through improvement in quality and quantity of rice.”
The labor organizations in each of the above mentioned agencies filed a petition for certification
election, which was opposed by both, invoking diplomatic immunity.
ISSUE: Are the claim of immunity by the ICMC and the IRRI from the application of Philippine
labor laws valid?
HELD: YES
There are basically three propositions underlying the grant of international immunities to
international organizations. These principles, contained in the ILO Memorandum are stated thus:
1) international institutions should have a status which protects them against control or interference
by any one government in the performance of functions for the effective discharge of which they
are responsible to democratically constituted international bodies in which all the nations concerned
are represented;
2) no country should derive any national financial advantage by levying fiscal charges on common
international funds; and
3) the international organization should, as a collectivity of States members, be accorded the
facilities for the conduct of its official business customarily extended to each other by its individual
member States.
The theory behind all three propositions is said to be essentially institutional in character. “It is not
concerned with the status, dignity or privileges of individuals, but with the elements of functional
independence necessary to free international institutions from national control and to enable them
to discharge their responsibilities impartially on behalf of all their members. The raison d’etre for
these immunities is the assurance of unimpeded performance of their functions by the agencies
concerned.
**
ICMC’s and IRRI’s immunity from local jurisdiction by no means deprives labor of its basic rights,
which are guaranteed by our Constitution.
For, ICMC employees are not without recourse whenever there are disputes to be settled. Section
31 of the Convention on the Privileges and Immunities of the Specialized Agencies of the United
Nations provides that “each specialized agency shall make provision for appropriate modes of
settlement of: (a) disputes arising out of contracts or other disputes of private character to which the
specialized agency is a party.” Moreover, pursuant to Article IV of the Memorandum of Agreement
between ICMC the the Philippine Government, whenever there is any abuse of privilege by ICMC,
the Government is free to withdraw the privileges and immunities accorded.
Neither are the employees of IRRI without remedy in case of dispute with management as, in fact,
there had been organized a forum for better management-employee relationship as evidenced by
the formation of the Council of IRRI Employees and Management (CIEM) wherein “both
management and employees were and still are represented for purposes of maintaining mutual and
beneficial cooperation between IRRI and its employees.”
NOTES:

The term “international organization” is generally used to describe an organization set up by

agreement between two or more states. Under contemporary international law, such organizations
are endowed with some degree of international legal personality such that they are capable of
exercising specific rights, duties and powers. They are organized mainly as a means for conducting
general international business in which the member states have an interest. The United Nations, for
instance, is an international organization dedicated to the propagation of world peace.
“Specialized agencies” are international organizations having functions in particular fields.
Facts : After the Vietnam War, the international community was confronted with a problem on the plight of Vietnamese
refugees fleeing from South Vietnam. In response, an agreement was forged between Philippine Government and United
Nations High Commissioner for refugees to create an operating center for the resettlement of refugees.

Under the said agreement, the International Catholic Migration Commission (ICMC) was accredited by the Philippine
Government to operate the refugee processing center in Morong, Bataan. The ICMC was considered a non-profit agency
involved in international and humanitarian and voluntary work.

However, on July 14, 1986, the Trade Unions of the Philippines and Allied Service (TUPAS) filed to the then Ministry of Labor
and Employment a Petition for Certification Election among the rank and file members employed by ICMC.

Afterwhich, while ICMC’s request for recognition as a “specialized agency” was still pending, Director Pura Calleja of the
Bureau of Labor Relations (BLR) ordered ICMC the immediate conduct of certification of election.

Subsequently, through the Department of Foreign Affairs (DEFORAF) the ICMC was granted a status of a specialized agency
with corresponding diplomatic priveleges and immunities. ICMC then sought immediate dismissal of TUPAS petition invoking
immunities expressly granted but were twice denied by respondent BLR director. Thus, the present Petition for Certiorari is
now at bar.

Issue : Whether or not the grant of diplomatic priveleges and immunities to ICMC extends to immunity from the application
of Philippine labor laws

Held : The immunity granted being from every form of legal process except in any particular case they have expressly waived
the immunity.
Respondent’s claim in so far as stating that a certification of election is beyond the scope of immunity. That such is not a suit
against ICMC but mere investigation of a non-adversary fact-finding character were all rejected.

The immunuties accorded to international organization constitute a categorical recognition by the executive branch of the
Government. Its determination is held to be a political question and courts should refuse to look beyond a determination by
the Executive Branch. Where the plea of diplomatic immunity is recognized an affirmed by the executive branch as in the
case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion of the principal law
officer of the government or other officer acting under his direction - as for this case the DEFORAF.

Moreover, the exercise of jurisdiction by the Department of Labor would defeat the very purpose of immunity, which is to
shield the affairs of internatinal organizations, in accordance with international practice, from political pressure or control
by the host country and to ensure unhampered perfromance of their functions.

Petition is GRANTED.

PRESIDENTIAL COMMISSION G.R. No. 124772

ON GOOD GOVERNMENT and
MAGTANGGOL C. GUNIGUNDO,
in his capacity as CHAIRMAN thereof,
Petitioners, Present:
QUISUMBING, J.,
- versus - Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
SANDIGANBAYAN and VELASCO, JR., JJ.
OFFICECO HOLDINGS, N.V.,
Respondents.
Promulgated:
August 14, 2007

x-----------------------------------------------------------------------------------x

DECISION

TINGA, J.:

Before this Court is a Petition for Certiorari and Prohibition with Prayer for Issuance of a
Temporary Restraining Order filed by the Presidential Commission on Good Government
(PCGG) to restrain and enjoin respondent Sandiganbayan from further proceeding with Civil
Case No. 0164, and to declare null and void the Resolutions of the Sandiganbayan (Second
Division) dated 11 January 1996 and 29 March 1996, which denied PCGGs motion to dismiss
and motion for reconsideration, respectively, in Civil Case No. 0164.

The antecedent facts follow.

On 7 April 1986, in connection with criminal proceedings initiated in the Philippines to

locate, sequester and seek restitution of alleged ill-gotten wealth amassed by the Marcoses and
other accused from the Philippine Government,[1] the Office of the Solicitor General (OSG)
wrote the Federal Office for Police Matters in Berne, Switzerland, requesting assistance for the
latter office to: (a) ascertain and provide the OSG with information as to where and in which
cantons the ill-gotten fortune of the Marcoses and other accused are located, the names of the
depositors and the banks and the amounts involved; and (b) take necessary precautionary
measures, such as sequestration, to freeze the assets in order to preserve their existing value and
prevent any further transfer thereof (herein referred to as the IMAC request).[2]

On 29 May 1986, the Office of the District Attorney in Zurich, pursuant to the OSGs
request, issued an Order directing the Swiss Banks in Zurich to freeze the accounts of the
accused in PCGG I.S. No. 1 and in the List of Companies and Foundations.[3] In compliance
with said Order, Bankers Trust A.G. (BTAG) of Zurich froze the accounts of Officeco
Holdings, N.V. (Officeco).[4]

Officeco appealed the Order of the District Attorney to the Attorney General of the
Canton of Zurich. The Attorney General affirmed the Order of the District Attorney. [5] Officeco
further appealed to the Swiss Federal Court which likewise dismissed the appeal on 31 May
1989.[6]
 Thereafter, in late 1992, Officeco made representations with the OSG and the PCGG for
them to officially advise the Swiss Federal Office for Police Matters to unfreeze Officecos
assets.[7] The PCGG required Officeco to present countervailing evidence to support its request.

Instead of complying with the PCGG requirement for it to submit countervailing

evidence, on 12 September 1994, Officeco filed
[8]
the complaint which was docketed as Civil Case No. 0164 of the Sandiganbayan. The
complaint prayed for the PCGG and the OSG to officially advise the Swiss government to
exclude from the freeze or sequestration order the account of Officeco with BTAG and to
unconditionally release the said account to Officeco.

The OSG filed a joint answer[9] on 24 November 1994 in behalf of all the defendants in
Civil Case No. 0164.[10] On 12 May 1995, the PCGG itself filed a motion to dismiss[11] which
was denied by the Sandiganbayan (Third Division) in its Resolution promulgated on 11 January
1996.[12] PCGGs motion for reconsideration was likewise denied in another Resolution dated 29
March 1996.[13] Hence, this petition.

On 20 May 1996, the Sandiganbayan issued an order in Civil Case No. 0164 canceling
the pre-trial scheduled on said date in deference to whatever action the Court may take on this
petition.[14]

The issues raised by the PCGG in its Memorandum[15] may be summarized as follows:
whether the Sandiganbayan erred in not dismissing Civil Case No. 0164 on the grounds of
(1) res judicata; (2) lack of jurisdiction on account of the act of state doctrine; (3) lack of cause
of action for being premature for failure to exhaust administrative remedies; and (4) lack of
cause of action for the reason that mandamus does not lie to compel performance of a
discretionary act, there being no showing of grave abuse of discretion on the part of petitioners.

According to petitioners, the 31 May 1989 Decision of the Swiss Federal Court denying
Officecos appeal from the 29 May 1986 and16 August 1988 freeze orders of the Zurich District
Attorney and the Attorney General of the Canton of Zurich, respectively, is conclusive upon
Officecos claims or demands for the release of the subject deposit accounts with BTAG. Thus, a
relitigation of the same claims or demands cannot be done without violating the doctrine of res
judicata or conclusiveness of judgment.[16]

Next, petitioners claim that Civil Case No. 0164 in effect seeks a judicial review of the
legality or illegality of the acts of the Swiss government since the Sandiganbayan would
inevitably examine and review the freeze orders of Swiss officials in resolving the case. This
would be in violation of the act of state doctrine which states that courts of one country will not
sit in judgment on the acts of the government of another in due deference to the independence
of sovereignty of every sovereign state.[17]

Furthermore, if the Sandiganbayan allowed the complaint in Civil Case No. 0164 to
prosper, this would place the Philippine government in an uncompromising position as it would
be constrained to take a position contrary to that contained in the IMAC request.

Petitioners allege that Officeco failed to exhaust the administrative remedies available
under Secs. 5 and 6 of the PCGG Rules and Regulations Implementing Executive Orders No. 1
and No. 2. This failure, according to petitioners, stripped Officeco of a cause of action thereby
warranting the dismissal of the complaint before the Sandiganbayan.

Petitioners further contend that the complaint before the Sandiganbayan is actually one
for mandamus but the act sought by Officeco is discretionary in nature. Petitioners add that they
did not commit grave abuse of discretion in denying Officecos request to unfreeze its account
with BTAG since the denial was based on Officecos failure to present countervailing evidence
to support its claim. The action for mandamus does not lie, petitioners conclude.
In its comment,[18] Officeco questions the competence of the PCGG lawyers to appear in
the case since they are not properly authorized by the OSG to represent the Philippine
government and/or the PCGG in ill-gotten wealth cases such as the one in the case at bar.
However, this issue has been rendered moot by an agreement by and among the PCGG
Chairman, the Solicitor General, the Chief Presidential Legal Counsel, and the Secretary of
Justice that the PCGG lawyers would enter their appearance as counsel of PCGG or the
Republic and shall directly attend to the various cases of the PCGG, by virtue of their
deputization as active counsel.[19] Furthermore, the Memorandum in this case which was
prepared by the OSG reiterated the arguments in support of the petition which was initially filed
by PCGG.

Nevertheless, the petition is bereft of merit. We find that the Sandiganbayan did not act
with grave abuse of discretion in denying petitioners motion to dismiss.

Res judicata
Res judicata means a matter adjudged, a thing judicially acted upon or decided; a thing or
matter settled by judgment.[20] The doctrine of res judicata provides that a final judgment on the
merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties
and their privies and constitutes an absolute bar to subsequent actions involving the same
claim, demand, or cause of action.[21]
 For the preclusive effect of res judicata to be enforced, the following requisites must
obtain: (1) The former judgment or order must be final; (2) It must be a judgment or order on
the merits, that is, it was rendered after a consideration of the evidence or stipulations submitted
by the parties at the trial of the case; (3) It must have been rendered by a court having
jurisdiction over the subject matter and the parties; and (4) There must be, between the first and
second actions, identity of parties, of subject matter and of cause of action. This requisite is
satisfied if the two actions are substantially between the same parties.[22]

While the first three elements above are present in this case, we rule that the fourth
element is absent. Hence, res judicata does not apply to prevent the Sandiganbayan from
proceeding with Civil Case No. 0164.

Absolute identity of parties is not a condition sine qua non for res judicata to apply, a
shared identity of interest being sufficient to invoke the coverage of the principle. [23] In this
regard, petitioners claim that while the Philippine government was not an impleaded party
respondent in Switzerland, it is undisputed that the interest of the Philippine government is
identical to the interest of the Swiss officials, harping on the fact that the Swiss officials issued
the freeze order on the basis of the IMAC request.[24] However, we fail to see how petitioners
can even claim an interest identical to that of the courts of Switzerland. Petitioners interest, as
reflected in their legal mandate, is to recover ill-gotten wealth, wherever the same may be
located.[25] The interest of the Swiss court, on the other hand, is only to settle the issues raised
before it, which include the propriety of the legal assistance extended by the Swiss authorities to
the Philippine government.

Secondly, a subject matter is the item with respect to which the controversy has arisen, or
concerning which the wrong has been done, and it is ordinarily the right, the thing, or the
contract under dispute.[26] In the case at bar, the subject matter in the Swiss Federal Court was
described in the 31 May 1989 decision itself as ruling on temporary measures (freezing of
accounts) and of taking of evidence (gathering bank information).[27] It was thus concerned with
determining (1) whether there is a reason of exclusion as defined in Art. 2 lit. b and [Art. ] 3
par. 1 IRSG[28] or an applicable case of Art. 10 Par. 2 IRSG; [29] (2) whether legal assistance
should be refused on the basis of Art. 2 lit. a IRSG;[30] (3) whether Officeco should be regarded
as a disinterested party owing to the fact that its name was not included in the list
accompanying the IMAC request as well as in the order of the District Attorney of Zurich; and
(4) whether the grant of legal assistance is proper considering the actions of Gapud. [31] In short,
the subject matter before the Swiss courts was the propriety of the legal assistance extended to
the Philippine government. On the other hand, the issue in Civil Case No. 0164 is whether the
PCGG may be compelled to officially advise the Swiss government to exclude or drop from the
freeze or sequestration order the account of Officeco with BTAG and to release the said account
to Officeco. In short, the subject matter in Civil Case No. 0164 is the propriety of PCGGs
stance regarding Officecos account with BTAG.

In arguing that there is identity of causes of action, petitioners claim that the proofs
required to sustain a judgment for [Officeco] in Switzerland is no different from the proofs that
it would offer in the Philippines. We disagree.

A cause of action is an act or omission of one party in violation of the legal right of the
[32]
other. Causes of action are identical when there is an identity in the facts essential to the
maintenance of the two actions, or where the same evidence will sustain both actions. [33] The
test often used in determining whether causes of action are identical is to ascertain whether the
same facts or evidence would support and establish the former and present causes of
action.[34] More significantly, there is identity of causes of action when the judgment sought
will be inconsistent with the prior judgment.[35] In the case at bar, allowing Civil Case No. 0164
to proceed to its logical conclusion will not result in any inconsistency with the 31 May
1989 decision of the Swiss Federal Court. Even if the Sandiganbayan finds for Officeco, the
same will not automatically result in the lifting of the questioned freeze orders. It will merely
serve as a basis for requiring the PCGG (through the OSG) to make the appropriate
representations with the Swiss government agencies concerned.
Act of State Doctrine

The classic American statement of the act of state doctrine, which appears to have taken
root in England as early as 1674,[36] and began to emerge in American jurisprudence in the late
eighteenth and early nineteenth centuries, is found in Underhill v. Hernandez,[37]where Chief
Justice Fuller said for a unanimous Court:

Every sovereign state is bound to respect the independence of every other state,
and the courts of one country will not sit in judgment on the acts of the government of
another, done within its territory. Redress of grievances by reason of such acts must
be obtained through the means open to be availed of by sovereign powers as between
themselves.[38]

The act of state doctrine is one of the methods by which States prevent their national courts
from deciding disputes which relate to the internal affairs of another State, the other two being
immunity and non-justiciability.[39] It is an avoidance technique that is directly related to a
States obligation to respect the independence and equality of other States by not requiring them
to submit to adjudication in a national court or to settlement of their disputes without their
consent.[40] It requires the forum court to exercise restraint in the adjudication of disputes
relating to legislative or other governmental acts which a foreign State has performed within its
territorial limits.[41]

It is petitioners contention that the Sandiganbayan could not grant or deny the prayers in
[Officecos] complaint without first examining and scrutinizing the freeze order of the Swiss
officials in the light of the evidence, which however is in the possession of said officials and
that it would therefore sit in judgment on the acts of the government of another country. [42] We
disagree.

The parameters of the use of the act of state doctrine were clarified in Banco Nacional de
Cuba v. Sabbatino.[43] There, the U.S. Supreme Court held that international law does not
require the application of this doctrine nor does it forbid the application of the rule even if it is
claimed that the act of state in question violated international law. Moreover, due to the
doctrines peculiar nation-to-nation character, in practice the usual method for an individual to
seek relief is to exhaust local remedies and then repair to the executive authorities of his own
state to persuade them to champion his claim in diplomacy or before an international
tribunal.[44]

Even assuming that international law requires the application of the act of state doctrine,
it bears stressing that the Sandiganbayan will not examine and review the freeze orders of the
concerned Swiss officials in Civil Case No. 0164. The Sandiganbayan will not require the Swiss
officials to submit to its adjudication nor will it settle a dispute involving said officials. In fact,
as prayed for in the complaint, the Sandiganbayan will only review and examine the propriety
of maintaining PCGGs position with respect to Officecos accounts with BTAG for the purpose
of further determining the propriety of issuing a writ against the PCGG and the OSG.
Everything considered, the act of state doctrine finds no application in this case and petitioners
resort to it is utterly mislaid.

Exhaustion of Administrative Remedies

Petitioners advert to Officecos failure to exhaust the administrative remedies provided in

Secs. 5 and 6 of the PCGG Rules and Regulations Implementing Executive Orders No. 1 and
No. 2.[45] However, a reading of said provisions shows that they refer only to sequestration
orders, freeze orders and hold orders issued by the PCGG in the Philippines. They cannot be
made to apply to the freeze orders involved in this case which were issued by the government of
another country.

It was thus error for petitioners to treat Officecos request for the lifting of the freeze
orders as a request under Secs. 5 and 6 of its rules. First, the PCGG cannot even grant the
remedy embodied in the said rules, i.e., lifting of the freeze orders. Second, any argument
towards a conclusion that PCGG can grant the remedy of lifting the freeze order is totally
inconsistent with its earlier argument using the act of state doctrine. PCGGs cognizance of such
a request and treating it as a request under Secs. 5 and 6 of its rules would require a re-
examination or review of the decision of the Swiss court, a procedure that is prohibited by the
act of state doctrine.

Complaint States a Cause of Action

While the stated issue is whether mandamus lies, the real crux of the matter is whether
Officecos complaint before the Sandiganbayan states a cause of action. We uphold the
sufficiency of the complaint.

It may be recalled that Officeco had alleged that it had sent several letters to the PCGG
and the OSG for these bodies to advise the Swiss authorities to drop or exclude Officecos
account with BTAG from the freeze or sequestration, but no formal response was received by
petitioners on these letters. Copies of at least four (4) of these letters were in fact attached as
annexes to the complaint.[46]

Section 5(a) of Republic Act No. 6713, or the Code of Conduct and Ethical Standards for
Public Officials and Employees, states:

Section 5. Duties of Public Officials and Employees. ― In the performance of

their duties, all public officials and employees are under obligation to:

(a) Act promptly on letters and requests. ― All public officials and employees
shall, within fifteen (15) working days from receipt thereof, respond to letters,
telegrams or other means of communications sent by the public. The reply must
contain the action taken on the request. [Emphasis supplied.]

Since neither the PCGG nor the OSG replied to the requests of Officeco within fifteen
(15) days as required by law, such inaction is equivalent to a denial of these requests. As such,
no other recourse was left except for judicial relief. The appreciation of the allegations in the
complaint from this standpoint allows us to see how the cause of action precisely materialized.
Even if these allegations were not cast in the framework of a mandamus action, they still would
give rise to a viable cause of action, subject to the proof of the allegations during trial.

A motion to dismiss on the ground of failure to state a cause of action in the complaint
hypothetically admits the truth of the facts alleged therein. The hypothetical admission extends
to the relevant and material facts well pleaded in the complaint and inferences fairly deducible
therefrom. Hence, if the allegations in the complaint furnish sufficient basis by which the
complaint can be maintained, the same should not be dismissed regardless of the defense that
may be assessed by the defendants.[47]

The following allegations culled from Officecos complaint in the Sandiganbayan would, if
proven, entitle Officeco to the main reliefs sought in its complaint in view of petitioners refusal
to exclude Officecos account with BTAG in the list of ill-gotten wealth, to wit: (1) The freeze
order has been in effect for eleven (11) years, since 1986, without any judicial action instituted
by the PCGG and the OSG against Officeco; (2) The PCGG and the OSG have no document or
proof that the account of Officeco with BTAG belongs to the Marcoses nor their
cronies.Information on this matter was even requested by the OSG from the PCGG and the
latter from Swiss authorities who, up to the present, have not responded positively on the
request;[48] and (3) Requests[49] by Officeco to the PCGG and OSG to make representations with
the Swiss authorities for the latter to release Officecos account with the BTAG from the freeze
order remain unacted upon despite the mandate in Section 5(a) of Republic Act No. 6713.

The truth of the above allegations, which must be deemed hypothetically admitted for the
purpose of considering the motion to dismiss, may properly be determined only if Civil Case
No. 0164 is allowed to proceed, such that if they are found to be supported by preponderance of
evidence, adverse findings may properly be made against PCGG and the corresponding reliefs
granted in favor of Officeco.

Furthermore, Officeco claims that on two separate occasions, upon request of counsel for
Security Bank and Trust Company (SBTC), the PCGG and the OSG formally advised the Swiss
authorities to release from the freeze orders two other securities accounts with BTAG. Because
of these representations, the release of the two accounts from the freeze order was effected.
Gapud also assisted in the establishment and administration of these accounts with
BTAG.[50] According to Officeco, the continuous refusal of the PCGG and the OSG to act
favorably on its request while acting favorably on the above two requests of SBTC is a clear
violation of its right to equal protection under the 1987 Constitution.[51]

The guarantee of equal protection, according to Tolentino v. Board of Accountancy, et

[52]
al., simply means that no person or class of persons shall be deprived of the said protection
of the laws which is enjoyed by other persons or other classes in the same place and in like
circumstances.[53] Indeed, if it were true that the PCGG and the OSG facilitated the release of
two deposit accounts upon the request of SBTC and these accounts are similarly situated to
Officecos frozen account with BTAG, the operation of the equal protection clause of the
Constitution dictates that Officecos account should likewise be ordered released. Again, this
matter can properly be resolved if Civil Case No. 0164 is allowed to proceed.
 WHEREFORE, premises considered, the instant petition is DISMISSED.

No pronouncement as to costs.

SO ORDERED.

G.R. No. L-35131 November 29, 1972

THE WORLD HEALTH ORGANIZATION and DR. LEONCE VERSTUYFT, petitioners,

vs.
HON. BENJAMIN H. AQUINO, as Presiding Judge of Branch VIII, Court of First Instance of Rizal, MAJOR
WILFREDO CRUZ, MAJOR ANTONIO G. RELLEVE, and CAPTAIN PEDRO S. NAVARRO of the Constabulary
Offshore Action Center (COSAC), respondents.

Sycip, Salazar, Luna, Manalo and Feliciano for petitioners.

Emilio L. Baldia for respondents.

TEEHANKEE, J.:p

An original action for certiorari and prohibition to set aside respondent judge's refusal to quash a search warrant issued by him at the instance of respondents
COSAC (Constabulary Offshore Action Center) officers for the search and seizure of the personal effects of petitioner official of the WHO (World Health
Organization) notwithstanding his being entitled to diplomatic immunity, as duly recognized by the executive branch of the Philippine Government and to prohibit
respondent judge from further proceedings in the matter.

Upon filing of the petition, the Court issued on June 6, 1972 a restraining order enjoining respondents from
executing the search warrant in question.

Respondents COSAC officers filed their answer joining issue against petitioners and seeking to justify their act of
applying for and securing from respondent judge the warrant for the search and seizure of ten crates consigned to
petitioner Verstuyft and stored at the Eternit Corporation warehouse on the ground that they "contain large
quantities of highly dutiable goods" beyond the official needs of said petitioner "and the only lawful way to reach
these articles and effects for purposes of taxation is through a search warrant." 1

The Court thereafter called for the parties' memoranda in lieu of oral argument, which were filed on August 3, 1972
by respondents and on August 21, 1972 by petitioners, and the case was thereafter deemed submitted for decision.

It is undisputed in the record that petitioner Dr. Leonce Verstuyft, who was assigned on December 6, 1971 by the
WHO from his last station in Taipei to the Regional Office in Manila as Acting Assistant Director of Health Services,
is entitled to diplomatic immunity, pursuant to the Host Agreement executed on July 22, 1951 between the Philippine
Government and the World Health Organization.

Such diplomatic immunity carries with it, among other diplomatic privileges and immunities, personal inviolability,
inviolability of the official's properties, exemption from local jurisdiction, and exemption from taxation and customs
duties.

When petitioner Verstuyft's personal effects contained in twelve (12) crates entered the Philippines as
unaccompanied baggage on January 10, 1972, they were accordingly allowed free entry from duties and taxes. The
crates were directly stored at the Eternit Corporation's warehouse at Mandaluyong, Rizal, "pending his relocation
into permanent quarters upon the offer of Mr. Berg, Vice President of Eternit who was once a patient of Dr. Verstuyft
in the Congo." 2

Nevertheless, as above stated, respondent judge issued on March 3, 1972 upon application on the same date of
respondents COSAC officers search warrant No. 72-138 for alleged violation of Republic Act 4712 amending
section 3601 of the Tariff and Customs Code 3 directing the search and seizure of the dutiable items in said crates.

Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional Director for the Western Pacific with station in
Manila, Secretary of Foreign Affairs Carlos P. Romulo, personally wired on the same date respondent Judge
advising that "Dr. Verstuyft is entitled to immunity from search in respect of his personal baggage as accorded to
members of diplomatic missions" pursuant to the Host Agreement and requesting suspension of the search warrant
order "pending clarification of the matter from the ASAC."

Respondent judge set the Foreign Secretary's request for hearing and heard the same on March 16, 1972, but
notwithstanding the official plea of diplomatic immunity interposed by a duly authorized representative of the
Department of Foreign Affairs who furnished the respondent judge with a list of the articles brought in by petitioner
Verstuyft, respondent judge issued his order of the same date maintaining the effectivity of the search warrant
issued by him, unless restrained by a higher court. 4

Petitioner Verstuyft's special appearance on March 24, 1972 for the limited purpose of pleading his diplomatic
immunity and motion to quash search warrant of April 12, 1972 failed to move respondent judge.

At the hearing thereof held on May 8, 1972, the Office of the Solicitor General appeared and filed an extended
comment stating the official position of the executive branch of the Philippine Government that petitioner Verstuyft is
entitled to diplomatic immunity, he did not abuse his diplomatic immunity, 5 and that court proceedings in the
receiving or host State are not the proper remedy in the case of abuse of diplomatic immunity. 6

The Solicitor General accordingly joined petitioner Verstuyft's prayer for the quashal of the search warrant.
Respondent judge nevertheless summarily denied quashal of the search warrant per his order of May 9, 1972 "for
the same reasons already stated in (his) aforesaid order of March 16, 1972" disregarding Foreign Secretary
Romulo's plea of diplomatic immunity on behalf of Dr. Verstuyft.

Hence, the petition at bar. Petitioner Verstuyft has in this Court been joined by the World Health Organization
(WHO) itself in full assertion of petitioner Verstuyft's being entitled "to all privileges and immunities, exemptions and
facilities accorded to diplomatic envoys in accordance with international law" under section 24 of the Host
Agreement.

The writs of certiorari and prohibition should issue as prayed for.

1. The executive branch of the Philippine Government has expressly recognized that petitioner Verstuyft is entitled
to diplomatic immunity, pursuant to the provisions of the Host Agreement. The Department of Foreign Affairs
formally advised respondent judge of the Philippine Government's official position that accordingly "Dr. Verstuyft
cannot be the subject of a Philippine court summons without violating an obligation in international law of the
Philippine Government" and asked for the quashal of the search warrant, since his personal effects and baggages
after having been allowed free entry from all customs duties and taxes, may not be baselessly claimed to have been
"unlawfully imported" in violation of the tariff and customs code as claimed by respondents COSAC officers. The
Solicitor-General, as principal law officer of the Government, 7 likewise expressly affirmed said petitioner's right to
diplomatic immunity and asked for the quashal of the search warrant.

It is a recognized principle of international law and under our system of separation of powers that diplomatic
immunity is essentially a political question and courts should refuse to look beyond a determination by the executive
branch of the government, 8 and where the plea of diplomatic immunity is recognized and affirmed by the executive
branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon
appropriate suggestion by the principal law officer of the government, the Solicitor General in this case, or other
officer acting under his direction.9 Hence, in adherence to the settled principle that courts may not so exercise their
jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting
foreign relations, it is accepted doctrine that "in such cases the judicial department of (this) government follows the
action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction." 10
2. The unfortunate fact that respondent judge chose to rely on the suspicion of respondents COSAC officers "that
the other remaining crates unopened contain contraband items" 11 rather than on the categorical assurance of the
Solicitor-General that petitioner Verstuyft did not abuse his diplomatic immunity, 12 which was based in turn on the
official positions taken by the highest executive officials with competence and authority to act on the matter, namely,
the Secretaries of Foreign Affairs and of Finance, could not justify respondent judge's denial of the quashal of the
search warrant.

As already stated above, and brought to respondent court's attention, 13 the Philippine Government is bound by the
procedure laid down in Article VII of the Convention on the Privileges and Immunities of the Specialized Agencies of
the United Nations 14 for consultations between the Host State and the United Nations agency concerned to
determine, in the first instance the fact of occurrence of the abuse alleged, and if so, to ensure that no repetition
occurs and for other recourses. This is a treaty commitment voluntarily assumed by the Philippine Government and
as such, has the force and effect of law.

Hence, even assuming arguendo as against the categorical assurance of the executive branch of government that
respondent judge had some ground to prefer respondents COSAC officers' suspicion that there had been an abuse
of diplomatic immunity, the continuation of the search warrant proceedings before him was not the proper remedy.
He should, nevertheless, in deference to the exclusive competence and jurisdiction of the executive branch of
government to act on the matter, have acceded to the quashal of the search warrant, and forwarded his findings or
grounds to believe that there had been such abuse of diplomatic immunity to the Department of Foreign Affairs for it
to deal with, in accordance with the aforementioned Convention, if so warranted.

3. Finally, the Court has noted with concern the apparent lack of coordination between the various departments
involved in the subject-matter of the case at bar, which made it possible for a small unit, the COSAC, to which
respondents officers belong, seemingly to disregard and go against the authoritative determination and
pronouncements of both the Secretaries of Foreign Affairs and of Finance that petitioner Verstuyft is entitled to
diplomatic immunity, as confirmed by the Solicitor-General as the principal law officer of the Government. Such
executive determination properly implemented should have normally constrained respondents officers themselves to
obtain the quashal of the search warrant secured by them rather than oppose such quashal up to this Court, to the
embarrassment of said department heads, if not of the Philippine Government itself vis a vis the petitioners. 15

The seriousness of the matter is underscored when the provisions of Republic Act 75 enacted since October 21,
1946 to safeguard the jurisdictional immunity of diplomatic officials in the Philippines are taken into account. Said
Act declares as null and void writs or processes sued out or prosecuted whereby inter alia the person of an
ambassador or public minister is arrested or imprisoned or his goods or chattels are seized or attached and makes it
a penal offense for "every person by whom the same is obtained or prosecuted, whether as party or as attorney,
and every officer concerned in executing it" to obtain or enforce such writ or process. 16

The Court, therefore, holds that respondent judge acted without jurisdiction and with grave abuse of discretion in not
ordering the quashal of the search warrant issued by him in disregard of the diplomatic immunity of petitioner
Verstuyft.

ACCORDINGLY, the writs of certiorari and prohibition prayed for are hereby granted, and the temporary restraining
order heretofore issued against execution or enforcement of the questioned search warrant, which is hereby
declared null and void, is hereby made permanent. The respondent court is hereby commanded to desist from
further proceedings in the matter. No costs, none having been prayed for.

The clerk of court is hereby directed to furnish a copy of this decision to the Secretary of Justice for such action as
he may find appropriate with regard to the matters mentioned in paragraph 3 hereof. So ordered.
The case was brought before the Court by Application by the United States following the
occupation of its Embassy in Tehran by Iranian militants on 4 November 1979, and the capture
and holding as hostages of its diplomatic and consular staff. On a request by the United States
for the indication of provisional measures, the Court held that there was no more fundamental
prerequisite for relations between States than the inviolability of diplomatic envoys and
embassies, and it indicated provisional measures for ensuring the immediate restoration to
the United States of the Embassy premises and the release of the hostages. In its decision on
the merits of the case, at a time when the situation complained of still persisted, the Court, in
its Judgment of 24 May 1980, found that Iran had violated and was still violating obligations
owed by it to the United States under conventions in force between the two countries and
rules of general international law, that the violation of these obligations engaged its
responsibility, and that the Iranian Government was bound to secure the immediate release of
the hostages, to restore the Embassy premises, and to make reparation for the injury caused
to the United States Government. The Court reaffirmed the cardinal importance of the
principles of international law governing diplomatic and consular relations. It pointed out that
while, during the events of 4 November 1979, the conduct of militants could not be directly
attributed to the Iranian State — for lack of sufficient information — that State had however
done nothing to prevent the attack, stop it before it reached its completion or oblige the
militants to withdraw from the premises and release the hostages. The Court noted that, after
4 November 1979, certain organs of the Iranian State had endorsed the acts complained of
and decided to perpetuate them, so that those acts were transformed into acts of the Iranian
State. The Court gave judgment, notwithstanding the absence of the Iranian Government and
after rejecting the reasons put forward by Iran in two communications addressed to the Court
in support of its assertion that the Court could not and should not entertain the case. The
Court was not called upon to deliver a further judgment on the reparation for the injury
caused to the United States Government since, by Order of 12 May 1981, the case was
removed from the List following discontinuance.

SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088

REP. ETTA ROSALES, PHILIPPINE
COALITION FOR THE ESTABLISHMENT
OF THE INTERNATIONAL Present:
CRIMINAL COURT, TASK FORCE
DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J.,
FAMILIES OF VICTIMS OF Puno,
INVOLUNTARY DISAPPEARANCES, Panganiban,
BIANCA HACINTHA R. ROQUE, Quisumbing,
HARRISON JACOB R. ROQUE, Ynares-Santiago,
AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez,
LEAVIDES G. DOMINGO, EDGARDO *Carpio,
CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez,
CELESTE CEMBRANO, LIZA ABIERA, *Corona,
JAIME ARROYO, MARWIL LLASOS, Carpio Morales,
CRISTINA ATENDIDO, ISRAFEL Callejo, Sr.,
FAGELA, and ROMEL BAGARES, Azcuna,
Petitioners, Tinga,
Chico-Nazario, and
- versus - Garcia, JJ.

OFFICE OF THE EXECUTIVE

SECRETARY, represented by Promulgated:
HON. ALBERTO ROMULO, and the
DEPARTMENT OF FOREIGN
AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
PUNO J.:

This is a petition for mandamus filed by petitioners to compel the

Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed
copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for
its concurrence in accordance with Section 21, Article VII of the 1987 Constitution.

The Rome Statute established the International Criminal Court which shall have the power to
exercise its jurisdiction over persons for the most serious crimes of international concern xxx
and shall be complementary to the national criminal jurisdictions.[1] Its jurisdiction covers the
crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined
in the Statute.[2] The Statute was opened for signature by all states in Rome on July 17, 1998
and had remained open for signature until December 31, 2000 at the United Nations
Headquarters in New York. The Philippines signed the Statute on December 28, 2000
through Charge d Affairs Enrique A. Manalo of the Philippine Mission to the United
Nations.[3] Its provisions, however, require that it be subject to ratification, acceptance or
approval of the signatory states.[4]
Petitioners filed the instant petition to compel the respondents the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the signed text of the treaty to the
Senate of the Philippines for ratification.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and
international law, is a function of the Senate. Hence, it is the duty of the executive department
to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its
discretion with respect to ratification of treaties. Moreover, petitioners submit that the
Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary
international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining
the states to refrain from acts which would defeat the object and purpose of a treaty when they
have signed the treaty prior to ratification unless they have made their intention clear not to
become parties to the treaty.[5]

The Office of the Solicitor General, commenting for the respondents, questioned the standing of
the petitioners to file the instant suit. It also contended that the petition at bar violates the rule
on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the
executive department has no duty to transmit the Rome Statute to the Senate for concurrence.

A petition for mandamus may be filed when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station.[6] We have held that to be given due course, a petition
for mandamus must have been instituted by a party aggrieved by the alleged inaction of any
tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment
of a legal right. The petitioner in every case must therefore be an aggrieved party in the sense
that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be
performed.[7] The Court will exercise its power of judicial review only if the case is brought
before it by a party who has the legal standing to raise the constitutional or legal question. Legal
standing means a personal and substantial interest in the case such that the party has sustained
or will sustain direct injury as a result of the government act that is being challenged. The term
interest is material interest, an interest in issue and to be affected by the decree, as distinguished
from mere interest in the question involved, or a mere incidental interest.[8]

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to
file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the
House of Representatives and Chairperson of its Committee on Human Rights; the Philippine
Coalition for the Establishment of the International Criminal Court which is composed of
individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute;
the Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of
promoting the cause of human rights and human rights victims in the country; the Families of
Victims of Involuntary Disappearances, a juridical entity duly organized and existing pursuant
to Philippine Laws with the avowed purpose of promoting the cause of families and victims of
human rights violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque, aged
two (2) and one (1), respectively, at the time of filing of the instant petition, and suing under the
doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran, Jr.;[9] and a
group of fifth year working law students from the University of the Philippines College of Law
who are suing as taxpayers.

The question in standing is whether a party has alleged such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions.[10]

We find that among the petitioners, only Senator Pimentel has the legal standing to file the
instant suit. The other petitioners maintain their standing as advocates and defenders of human
rights, and as citizens of the country. They have not shown, however, that they have sustained
or will sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to
the Senate. Their contention that they will be deprived of their remedies for the protection and
enforcement of their rights does not persuade. The Rome Statute is intended to complement
national criminal laws and courts. Sufficient remedies are available under our national laws to
protect our citizens against human rights violations and petitioners can always seek redress for
any abuse in our domestic courts.
 As regards Senator Pimentel, it has been held that to the extent the powers of Congress
are impaired, so is the power of each member thereof, since his office confers a right to
participate in the exercise of the powers of that institution.[11] Thus, legislators have the standing
to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in their
office and are allowed to sue to question the validity of any official action which they claim
infringes their prerogatives as legislators. The petition at bar invokes the power of the Senate to
grant or withhold its concurrence to a treaty entered into by the executive branch, in this case,
the Rome Statute. The petition seeks to order the executive branch to transmit the copy of the
treaty to the Senate to allow it to exercise such authority. Senator Pimentel, as member of the
institution, certainly has the legal standing to assert such authority of the Senate.

We now go to the substantive issue.

The core issue in this petition for mandamus is whether the Executive Secretary and the
Department of Foreign Affairs have a ministerialduty to transmit to the Senate the copy of the
Rome Statute signed by a member of the Philippine Mission to the United Nations even without
the signature of the President.

We rule in the negative.

In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the countrys sole representative with foreign
nations.[12] As the chief architect of foreign policy, the President acts as the countrys
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the business of foreign
relations.[13] In the realm of treaty-making, the President has the sole authority to negotiate with
other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties,
the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the
members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII
of the 1987 Constitution provides that no treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the Members of the Senate. The 1935
and the 1973 Constitution also required the concurrence by the legislature to the treaties entered
into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided:
Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds
of all the Members of the Senate, to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be
valid and effective unless concurred in by a majority of all the Members of the
Batasang Pambansa.

The participation of the legislative branch in the treaty-making process was deemed essential to
provide a check on the executive in the field of foreign relations. [14] By requiring the
concurrence of the legislature in the treaties entered into by the President, the Constitution
ensures a healthy system of checks and balance necessary in the nations pursuit of political
maturity and growth.[15]

In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to
mean that the power to ratify treaties belongs to the Senate.

We disagree.

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in
this wise:
The usual steps in the treaty-making process are: negotiation, signature,
ratification, and exchange of the instruments of ratification. The treaty may then be
submitted for registration and publication under the U.N. Charter, although this
step is not essential to the validity of the agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually
assigns this task to his authorized representatives. These representatives are
provided with credentials known as full powers, which they exhibit to the other
negotiators at the start of the formal discussions. It is standard practice for one of
the parties to submit a draft of the proposed treaty which, together with the
counter-proposals, becomes the basis of the subsequent negotiations. The
negotiations may be brief or protracted, depending on the issues involved, and may
 even collapse in case the parties are unable to come to an agreement on the points
under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is
opened for signature. This step is primarily intended as a means of authenticating
the instrument and for the purpose of symbolizing the good faith of the parties; but,
significantly, it does not indicate the final consent of the state in cases where
ratification of the treaty is required. The document is ordinarily signed in
accordance with the alternat, that is, each of the several negotiators is allowed to
sign first on the copy which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its representatives. The purpose of
ratification is to enable the contracting states to examine the treaty more
closely and to give them an opportunity to refuse to be bound by it should they
find it inimical to their interests. It is for this reason that most treaties are
made subject to the scrutiny and consent of a department of the government
other than that which negotiated them.

xxx

The last step in the treaty-making process is the exchange of the instruments
of ratification, which usually also signifies the effectivity of the treaty unless a
different date has been agreed upon by the parties. Where ratification is dispensed
with and no effectivity clause is embodied in the treaty, the instrument is deemed
effective upon its signature.[16] [emphasis supplied]

Petitioners arguments equate the signing of the treaty by the Philippine representative
with ratification. It should be underscored that the signing of the treaty and the ratification are
two separate and distinct steps in the treaty-making process. As earlier discussed, the signature
is primarily intended as a means of authenticating the instrument and as a symbol of the good
faith of the parties. It is usually performed by the states authorized representative in the
diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms
and accepts the provisions of a treaty concluded by its representative. It is generally held to be
an executive act, undertaken by the head of the state or of the government.[17] Thus, Executive
Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the
guidelines in the negotiation of international agreements and its ratification. It mandates that
after the treaty has been signed by the Philippine representative, the same shall be transmitted to
the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the
ratification papers and forward the signed copy of the treaty to the President for ratification.
After the President has ratified the treaty, the Department of Foreign Affairs shall submit the
same to the Senate for concurrence. Upon receipt of the concurrence of the Senate, the
Department of Foreign Affairs shall comply with the provisions of the treaty to render it
effective. Section 7 of Executive Order No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or
an Executive Agreement. The domestic requirements for the entry into force of a
treaty or an executive agreement, or any amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the

Department of Foreign Affairs after their signing for the
preparation of the ratification papers. The transmittal shall
include the highlights of the agreements and the benefits which
will accrue to the Philippines arising from them.

ii. The Department of Foreign Affairs, pursuant to the

endorsement by the concerned agency, shall transmit the
agreements to the President of the Philippines for his
ratification. The original signed instrument of ratification shall
then be returned to the Department of Foreign Affairs for
appropriate action.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with

the requirements provided in sub-paragraph[s] 1 and 2, item A
(Executive Agreements) of this Section. In addition, the
Department of Foreign Affairs shall submit the treaties to the
Senate of the Philippines for concurrence in the ratification by
the President. A certified true copy of the treaties, in such
numbers as may be required by the Senate, together with a
certified true copy of the ratification instrument, shall
accompany the submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the

Department of Foreign Affairs shall comply with the provision
of the treaties in effecting their entry into force.
Petitioners submission that the Philippines is bound under treaty law and international law to
ratify the treaty which it has signed is without basis. The signature does not signify the final
consent of the state to the treaty. It is the ratification that binds the state to the provisions
thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the
states be subject to ratification, acceptance or approval of the signatory states. Ratification is the
act by which the provisions of a treaty are formally confirmed and approved by a State. By
ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the
provisions of such treaty. After the treaty is signed by the states representative, the President,
being accountable to the people, is burdened with the responsibility and the duty to carefully
study the contents of the treaty and ensure that they are not inimical to the interest of the state
and its people. Thus, the President has the discretion even after the signing of the treaty by the
Philippine representative whether or not to ratify the same. The Vienna Convention on the Law
of Treaties does not contemplate to defeat or even restrain this power of the head of states. If
that were so, the requirement of ratification of treaties would be pointless and futile. It has been
held that a state has no legal or even moral duty to ratify a treaty which has been signed by its
plenipotentiaries.[18] There is no legal obligation to ratify a treaty, but it goes without saying that
the refusal must be based on substantial grounds and not on superficial or whimsical reasons.
Otherwise, the other state would be justified in taking offense.[19]

It should be emphasized that under our Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The role of the Senate, however, is limited
only to giving or withholding its consent, or concurrence, to the ratification. [20] Hence, it is
within the authority of the President to refuse to submit a treaty to the Senate or, having secured
its consent for its ratification, refuse to ratify it.[21] Although the refusal of a state to ratify a
treaty which has been signed in its behalf is a serious step that should not be taken
lightly,[22]such decision is within the competence of the President alone, which cannot be
encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions
seeking to enjoin the President in the performance of his official duties. [23] The Court, therefore,
cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to
compel the executive branch of the government to transmit the signed text of Rome Statute to
the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

Facts:

1. The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary and
the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International
Criminal Court to the Senate of the Philippinesfor its concurrence pursuant to Sec. 21, Art VII of the
1987 Constitution.

2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the most
serious crimes as genocide, crimes against humanity, war crimes and crimes of aggression as defined
by the Statute. The Philippines through the Chargie du Affairs in UN. The provisions of the Statute
however require that it be subject to ratification, acceptance or approval of the signatory state.

3. Petitioners contend that ratification of a treaty, under both domestic and international law, is a
function of the Senate, hence it is the duty of the Executive Department to transmit the signed copy to
the senate to allow it to exercise its discretion.

Issue: Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit to
the Senate the copy of the Rome Statute signed by a member of the Philippine mission to the U.N.
even without the signature of the President.

The Supreme Court held NO.

1. The President as the head of state is the sole organ and authorized in the external relations and he is
also the country's sole representative with foreign nations, He is the mouthpiece with respect to the
country's foreign affairs.

2. In treaty-making, the President has the sole authority to negotiate with other states and enter into
treaties but this power is limited by the Constitution with the 2/3 required vote of all the members of
the Senate for the treaty to be valid. (Sec. 21, Art VII).

3. The legislative branch part is essential to provide a check on the executive in the field of foreign
relations, to ensure the nation's pursuit of political maturity and growth.

Facts:
This is a petition of Senator Aquilino Pimentel and the other parties to ask the Supreme Court to require the Executive
Department to transmit the Rome Statute which established the International Criminal Court for the Senate’s concurrence
in accordance with Sec 21, Art VII of the 1987 Constitution.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of
the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate
to allow it to exercise its discretion with respect to ratification of treaties. Moreover, petitioners submit that the Philippines
has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the
Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and
purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to
become parties to the treaty.[5]
The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners to file the
instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue
raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the
Senate for concurrence.

Issue:
Whether or not the executive department has a ministerial duty to transmit the Rome Statute (or any treaty) to the Senate
for concurrence.

Ruling:
The petition was dismissed. The Supreme Court ruled that the the President, being the head of state, is regarded as the
sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the
President is vested with the authority to deal with foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a
limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty
entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty or international agreement
shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of
ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is
not essential to the validity of the agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized
representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other
negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the
proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The
negotiations may be brief or protracted, depending on the issues involved, and may even “collapse” in case the parties are
unable to come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is
primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the
parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is
required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is
allowed to sign first on the copy which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty
concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more
closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for
this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than
that which negotiated them.

The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies
the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed
with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.

Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification. It should be
underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making
process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a
symbol of the good faith of the parties. It is usually performed by the state’s authorized representative in the diplomatic
mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty
concluded by its representative.

It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or
concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate
or, having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which
has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of
the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over
actions seeking to enjoin the President in the performance of his official duties.

[G.R. No. 138570. October 10, 2000]

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP

TOMAS MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER
BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO
LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG
MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW
CENTER, petitioners, vs. EXECUTIVE SECRETARY RONALDO ZAMORA,
FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE
SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE,
SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON,
SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR
FRANCISCO TATAD, respondents.

[G.R. No. 138572. October 10, 2000]

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B.

GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A.
 GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA, as Executive
Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense,
and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign
Affairs, respondents.

[G.R. No. 138587. October 10, 2000]

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA

III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO B. ZAMORA,
DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B.
FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G.
BIAZON, respondents.

[G.R. No. 138680. October 10, 2000]

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President,

Jose Aguila Grapilon, petitioners, vs. JOSEPH EJERCITO ESTRADA, in his
capacity as President, Republic of the Philippines, and HON. DOMINGO
SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.

[G.R. No. 138698. October 10, 2000]

JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-AVENCEA,

ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO,
AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR.,
RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
(MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY
OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE,
SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE,
SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING
THEIR CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN
RELATION TO THE VISITING FORCES AGREEMENT (VFA), respondents.

DECISION
BUENA, J.:
 Confronting the Court for resolution in the instant consolidated petitions for certiorari and
prohibition are issues relating to, and borne by, an agreement forged in the turn of the last century
between the Republic of the Philippines and the United States of America -the Visiting Forces
Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military Bases
Agreement which formalized, among others, the use of installations in the Philippine territory by
United States military personnel. To further strengthen their defense and security relationship, the
Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951. Under
the treaty, the parties agreed to respond to any external armed attack on their territory, armed forces,
public vessels, and aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the
Philippines and the United States negotiated for a possible extension of the military bases agreement.
On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security which, in effect, would have extended the presence of US military bases in
the Philippines.[2] With the expiration of the RP-US Military Bases Agreement, the periodic military
exercises conducted between the two countries were held in abeyance. Notwithstanding, the defense
and security relationship between the Philippines and the United States of America continued
pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for
Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary
Rodolfo Severino Jr., to exchange notes on the complementing strategic interests of the United
States and the Philippines in the Asia-Pacific region. Both sides discussed, among other things, the
possible elements of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on
the VFA led to a consolidated draft text, which in turn resulted to a final series of conferences and
negotiations[3] that culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel
V. Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon
and Unites States Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign
Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
Zamora, officially transmitted to the Senate of the Philippines, [5] the Instrument of Ratification, the
letter of the President[6] and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987
Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by
Senator Blas F. Ople, and its Committee on National Defense and Security, chaired by Senator
Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint public hearings
were held by the two Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No.
443[8] recommending the concurrence of the Senate to the VFA and the creation of a Legislative
Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-
thirds (2/3) vote[9] of its members. Senate Resolution No. 443 was then re-numbered as Senate
Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between
respondent Secretary Siazon and United States Ambassador Hubbard.
 The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for
regulating the circumstances and conditions under which US Armed Forces and defense personnel
may be present in the Philippines, and is quoted in its full text, hereunder:

Article I
Definitions

As used in this Agreement, United States personnel means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the
Philippine Government.

Within this definition:

1. The term military personnel refers to military members of the United States Army, Navy, Marine
Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals of, nor ordinary residents
in the Philippines and who are employed by the United States armed forces or who are
accompanying the United States armed forces, such as employees of the American Red Cross
and the United Services Organization.

Article II
Respect for Law

It is the duty of the United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this agreement, and,
in particular, from any political activity in the Philippines. The Government of the United
States shall take all measures within its authority to ensure that this is done.

Article III
Entry and Departure

1. The Government of the Philippines shall facilitate the admission of United States personnel
and their departure from the Philippines in connection with activities covered by this
agreement.

2. United States military personnel shall be exempt from passport and visa regulations upon
entering and departing the Philippines.

3. The following documents only, which shall be presented on demand, shall be required in
respect of United States military personnel who enter the Philippines:

(a) personal identity card issued by the appropriate United States authority showing full
name, date of birth, rank or grade and service number (if any), branch of service and
photograph;

(b) individual or collective document issued by the appropriate United States authority,
authorizing the travel or visit and identifying the individual or group as United States
military personnel; and
 (c) the commanding officer of a military aircraft or vessel shall present a declaration of
health, and when required by the cognizant representative of the Government of the
Philippines, shall conduct a quarantine inspection and will certify that the aircraft or
vessel is free from quarantinable diseases. Any quarantine inspection of United States
aircraft or United States vessels or cargoes thereon shall be conducted by the United
States commanding officer in accordance with the international health regulations as
promulgated by the World Health Organization, and mutually agreed procedures.

4. United States civilian personnel shall be exempt from visa requirements but shall present,
upon demand, valid passports upon entry and departure of the Philippines.

5. If the Government of the Philippines has requested the removal of any United States
personnel from its territory, the United States authorities shall be responsible for receiving
the person concerned within its own territory or otherwise disposing of said person outside
of the Philippines.

Article IV
Driving and Vehicle Registration

1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license
issued by the appropriate United States authority to United States personnel for the operation
of military or official vehicles.

2. Vehicles owned by the Government of the United States need not be registered, but shall
have appropriate markings.

Article V
Criminal Jurisdiction

1. Subject to the provisions of this article:

(a) Philippine authorities shall have jurisdiction over United States personnel with respect to
offenses committed within the Philippines and punishable under the law of the Philippines.
(b) United States military authorities shall have the right to exercise within the Philippines all
criminal and disciplinary jurisdiction conferred on them by the military law of the United States
over United States personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with
respect to offenses, including offenses relating to the security of the Philippines, punishable
under the laws of the Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States personnel with
respect to offenses, including offenses relating to the security of the United States,
punishable under the laws of the United States, but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to
security means:

(1) treason;
 (2) sabotage, espionage or violation of any law relating to national defense.

3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses
committed by United States personnel, except in cases provided for in paragraphs 1(b), 2 (b),
and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise jurisdiction over United
States personnel subject to the military law of the United States in relation to.
(1) offenses solely against the property or security of the United States or offenses solely
against the property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official duty.
(c) The authorities of either government may request the authorities of the other government to
waive their primary right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military authorities to maintain good order
and discipline among their forces, Philippine authorities will, upon request by the United States,
waive their primary right to exercise jurisdiction except in cases of particular importance to the
Philippines. If the Government of the Philippines determines that the case is of particular
importance, it shall communicate such determination to the United States authorities within
twenty (20) days after the Philippine authorities receive the United States request.
(e) When the United States military commander determines that an offense charged by authorities
of the Philippines against United states personnel arises out of an act or omission done in the
performance of official duty, the commander will issue a certificate setting forth such
determination. This certificate will be transmitted to the appropriate authorities of the Philippines
and will constitute sufficient proof of performance of official duty for the purposes of paragraph
3(b)(2) of this Article. In those cases where the Government of the Philippines believes the
circumstances of the case require a review of the duty certificate, United States military
authorities and Philippine authorities shall consult immediately. Philippine authorities at the
highest levels may also present any information bearing on its validity. United States military
authorities shall take full account of the Philippine position. Where appropriate, United States
military authorities will take disciplinary or other action against offenders in official duty cases,
and notify the Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall notify the
authorities of the other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other of the disposition
of all cases in which both the authorities of the Philippines and the United States have the right
to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines and United States
shall assist each other in the arrest of United States personnel in the Philippines and in handling
them over to authorities who are to exercise jurisdiction in accordance with the provisions of this
article.
5. United States military authorities shall promptly notify Philippine authorities of the arrest or
detention of United States personnel who are subject of Philippine primary or exclusive jurisdiction.
Philippine authorities shall promptly notify United States military authorities of the arrest or
detention of any United States personnel.
6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction
shall immediately reside with United States military authorities, if they so request, from the
commission of the offense until completion of all judicial proceedings. United States military
authorities shall, upon formal notification by the Philippine authorities and without delay, make such
personnel available to those authorities in time for any investigative or judicial proceedings relating
 to the offense with which the person has been charged in extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding custody, which
the United States Government shall take into full account. In the event Philippine judicial
proceedings are not completed within one year, the United States shall be relieved of any
obligations under this paragraph. The one-year period will not include the time necessary to
appeal. Also, the one-year period will not include any time during which scheduled trial procedures
are delayed because United States authorities, after timely notification by Philippine authorities to
arrange for the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities shall assist each
other in the carrying out of all necessary investigation into offenses and shall cooperate in
providing for the attendance of witnesses and in the collection and production of evidence,
including seizure and, in proper cases, the delivery of objects connected with an offense.
8. When United States personnel have been tried in accordance with the provisions of this Article and
have been acquitted or have been convicted and are serving, or have served their sentence, or
have had their sentence remitted or suspended, or have been pardoned, they may not be tried
again for the same offense in the Philippines. Nothing in this paragraph, however, shall prevent
United States military authorities from trying United States personnel for any violation of rules of
discipline arising from the act or omission which constituted an offense for which they were tried by
Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by Philippine
authorities, they shall be accorded all procedural safeguards established by the law of the
Philippines. At the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against them and to
have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such witnesses;
(d) To present evidence in their defense and to have compulsory process for obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the same basis as
nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States authorities, and to
have such authorities present at all judicial proceedings. These proceedings shall be public
unless the court, in accordance with Philippine laws, excludes persons who have no role in the
proceedings.
10. The confinement or detention by Philippine authorities of United States personnel shall be carried
out in facilities agreed on by appropriate Philippine and United States authorities. United States
Personnel serving sentences in the Philippines shall have the right to visits and material
assistance.
11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction,
and shall not be subject to the jurisdiction of Philippine military or religious courts.

Article VI
Claims

1. Except for contractual arrangements, including United States foreign military sales letters of offer
and acceptance and leases of military equipment, both governments waive any and all claims
against each other for damage, loss or destruction to property of each others armed forces or for
death or injury to their military and civilian personnel arising from activities to which this agreement
applies.
2. For claims against the United States, other than contractual claims and those to which paragraph 1
applies, the United States Government, in accordance with United States law regarding foreign
claims, will pay just and reasonable compensation in settlement of meritorious claims for damage,
loss, personal injury or death, caused by acts or omissions of United States personnel, or
otherwise incident to the non-combat activities of the United States forces.

Article VII
Importation and Exportation

1. United States Government equipment, materials, supplies, and other property imported into or
acquired in the Philippines by or on behalf of the United States armed forces in connection with
activities to which this agreement applies, shall be free of all Philippine duties, taxes and other
similar charges. Title to such property shall remain with the United States, which may remove such
property from the Philippines at any time, free from export duties, taxes, and other similar charges.
The exemptions provided in this paragraph shall also extend to any duty, tax, or other similar
charges which would otherwise be assessed upon such property after importation into, or
acquisition within, the Philippines. Such property may be removed from the Philippines, or
disposed of therein, provided that disposition of such property in the Philippines to persons or
entities not entitled to exemption from applicable taxes and duties shall be subject to payment of
such taxes, and duties and prior approval of the Philippine Government.
2. Reasonable quantities of personal baggage, personal effects, and other property for the personal
use of United States personnel may be imported into and used in the Philippines free of all duties,
taxes and other similar charges during the period of their temporary stay in the Philippines.
Transfers to persons or entities in the Philippines not entitled to import privileges may only be
made upon prior approval of the appropriate Philippine authorities including payment by the
recipient of applicable duties and taxes imposed in accordance with the laws of the Philippines.
The exportation of such property and of property acquired in the Philippines by United States
personnel shall be free of all Philippine duties, taxes, and other similar charges.

Article VIII
Movement of Vessels and Aircraft

1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval
of the Government of the Philippines in accordance with procedures stipulated in implementing
arrangements.
2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval
of the Government of the Philippines. The movement of vessels shall be in accordance with
international custom and practice governing such vessels, and such agreed implementing
arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not be
subject to the payment of landing or port fees, navigation or over flight charges, or tolls or other
use charges, including light and harbor dues, while in the Philippines. Aircraft operated by or for
the United States armed forces shall observe local air traffic control regulations while in the
Philippines. Vessels owned or operated by the United States solely on United States Government
non-commercial service shall not be subject to compulsory pilotage at Philippine ports.

Article IX
Duration and Termination

This agreement shall enter into force on the date on which the parties have notified each other
in writing through the diplomatic channel that they have completed their constitutional
requirements for entry into force. This agreement shall remain in force until the expiration of
 180 days from the date on which either party gives the other party notice in writing that it
desires to terminate the agreement.

Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as legislators, non-
governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and
impute to herein respondents grave abuse of discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I

Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question

the constitutionality of the VFA?
II

Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article
XVIII of the Constitution?
III

Does the VFA constitute an abdication of Philippine sovereignty?

a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US military
personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion perpetua or
higher?
IV

Does the VFA violate:

a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for the
equipment, materials supplies and other properties imported into or acquired in the Philippines by,
or on behalf, of the US Armed Forces?

LOCUS STANDI

At the outset, respondents challenge petitioners standing to sue, on the ground that the latter
have not shown any interest in the case, and that petitioners failed to substantiate that they have
sustained, or will sustain direct injury as a result of the operation of the VFA. [12] Petitioners, on the
other hand, counter that the validity or invalidity of the VFA is a matter of transcendental importance
which justifies their standing.[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute must show not only
that the law is invalid, but also that he has sustained or in is in immediate, or imminent danger of
sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. He must show that he has been, or is about to be, denied some right or privilege
to which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by
reason of the statute complained of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have
sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the
VFA. As taxpayers, petitioners have not established that the VFA involves the exercise by Congress
of its taxing or spending powers.[15] On this point, it bears stressing that a taxpayers suit refers to a
case where the act complained of directly involves the illegal disbursement of public funds derived
from taxation.[16] Thus, in Bugnay Const. & Development Corp. vs. Laron[17], we held:

x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured
by the judgment or entitled to the avails of the suit as a real party in interest. Before he can invoke
the power of judicial review, he must specifically prove that he has sufficient interest in preventing
the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result
of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a
general interest common to all members of the public.

Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the
absence of any allegation by petitioners that public funds are being misspent or illegally expended,
petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as petitioners-
legislators, do not possess the requisite locus standito maintain the present suit. While this Court,
in Phil. Constitution Association vs. Hon. Salvador Enriquez,[18] sustained the legal standing of a
member of the Senate and the House of Representatives to question the validity of a presidential veto
or a condition imposed on an item in an appropriation bull, we cannot, at this instance, similarly
uphold petitioners standing as members of Congress, in the absence of a clear showing of any direct
injury to their person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of the
power of Congress to grant tax exemptions, are more apparent than real. While it may be true that
petitioners pointed to provisions of the VFA which allegedly impair their legislative powers, petitioners
failed however to sufficiently show that they have in fact suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these
cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in
the absence of a board resolution from its Board of Governors authorizing its National President to
commence the present action.[19]
Notwithstanding, in view of the paramount importance and the constitutional significance of the
issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the
procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency
Powers Cases,[20] where we had occasion to rule:

x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders issued by President Quirino although they were involving only an indirect and
general interest shared in common with the public. The Court dismissed the objection that they
were not proper parties and ruled that transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure. We have since then applied the exception in many other
cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175
SCRA 343). (Underscoring Supplied)
 This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,[21] Daza vs.
Singson,[22] and Basco vs. Phil. Amusement and Gaming Corporation,[23] where we emphatically
held:

Considering however the importance to the public of the case at bar, and in keeping with the Courts
duty, under the 1987 Constitution, to determine whether or not the other branches of the
government have kept themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of this petition. x x x

Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled that in cases
of transcendental importance, the Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the doctrine
of separation of powers, which enjoins upon the departments of the government a becoming respect
for each others acts,[25] this Court nevertheless resolves to take cognizance of the instant petitions.

APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which provision of the
Constitution applies, with regard to the exercise by the senate of its constitutional power to concur
with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA
has for its subject the presence of foreign military troops in the Philippines. Respondents, on the
contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing
arrangement but an agreement which involves merely the temporary visits of United States personnel
engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate
on treaties or international agreements. Section 21, Article VII, which herein respondents invoke,
reads:

No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate.

Section 25, Article XVIII, provides:

After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly concurred in by the senate and,
when the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State.

Section 21, Article VII deals with treatise or international agreements in general, in which case,
the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the
subject treaty, or international agreement, valid and binding on the part of the Philippines. This
provision lays down the general rule on treatise or international agreements and applies to any form
of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treatise or
those economic in nature. All treaties or international agreements entered into by the Philippines,
regardless of subject matter, coverage, or particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the
concurrence of the Senate is only one of the requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII
further requires that foreign military bases, troops, or facilities may be allowed in the Philippines only
by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required by Congress, and recognized as such by the
other contracting state.
It is our considered view that both constitutional provisions, far from contradicting each other,
actually share some common ground. These constitutional provisions both embody phrases in the
negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens
with the clause No treaty x x x, and Section 25 contains the phrase shall not be allowed. Additionally,
in both instances, the concurrence of the Senate is indispensable to render the treaty or international
agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article
VII, and that the Senate extended its concurrence under the same provision, is immaterial. For in
either case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is
crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional
requirements.
On the whole, the VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the guidelines to govern such visits of military
personnel, and further defines the rights of the United States and the Philippine government in the
matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign
military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a
limited sense, however, the provisions of section 21, Article VII will find applicability with regard to the
issue and for the sole purpose of determining the number of votes required to obtain the valid
concurrence of the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law prevails
over a general one. Lex specialis derogat generali. Thus, where there is in the same statute a
particular enactment and also a general one which, in its most comprehensive sense, would include
what is embraced in the former, the particular enactment must be operative, and the general
enactment must be taken to affect only such cases within its general language which are not within
the provision of the particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:

x x x that another basic principle of statutory construction mandates that general legislation must
give way to a special legislation on the same subject, and generally be so interpreted as to embrace
only cases in which the special provisions are not applicable (Sto. Domingo vs. de los Angeles, 96
SCRA 139), that a specific statute prevails over a general statute (De Jesus vs. People, 120 SCRA
760) and that where two statutes are of equal theoretical application to a particular case, the one
designed therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
 Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient
agreements for the reason that there is no permanent placing of structure for the establishment of a
military base. On this score, the Constitution makes no distinction between transient and
permanent. Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or
facilities to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should
not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the
VFA. Notably, a perusal of said constitutional provision reveals that the proscription covers foreign
military bases, troops, or facilities. Stated differently, this prohibition is not limited to the entry of
troops and facilities without any foreign bases being established. The clause does not refer to foreign
military bases, troops, or facilities collectively but treats them as separate and independent
subjects.The use of comma and the disjunctive word or clearly signifies disassociation and
independence of one thing from the others included in the enumeration, [28] such that, the provision
contemplates three different situations - a military treaty the subject of which could be either (a)
foreign bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it
under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the deliberations of
the 1986 Constitutional Commission, is consistent with this interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If the
country does enter into such kind of a treaty, must it cover the three-bases, troops or facilities-
or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the
requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not
bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only
troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just
want to cover everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer viable
because of the alternatives offered by new means and weapons of warfare such as nuclear weapons,
guided missiles as well as huge sea vessels that can stay afloat in the sea even for months and years
without returning to their home country. These military warships are actually used as substitutes for a
land-home base not only of military aircraft but also of military personnel and facilities. Besides,
vessels are mobile as compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25
were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless
the following conditions are sufficiently met, viz:(a) it must be under a treaty; (b) the treaty must
be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the
votes cast by the people in a national referendum; and (c) recognized as a treaty by the other
contracting state.
 There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of
the Constitution, whether under the general requirement in Section 21, Article VII, or the specific
mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification
by a majority of the votes cast in a national referendum being unnecessary since Congress has not
required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least two-thirds of all
the members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the
treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the
Senate is clearly required so that the concurrence contemplated by law may be validly obtained and
deemed present. While it is true that Section 25, Article XVIII requires, among other things, that the
treaty-the VFA, in the instant case-be duly concurred in by the Senate, it is very true however that
said provision must be related and viewed in light of the clear mandate embodied in Section 21,
Article VII, which in more specific terms, requires that the concurrence of a treaty, or international
agreement, be made by a two -thirds vote of all the members of the Senate. Indeed, Section 25,
Article XVIII must not be treated in isolation to section 21, Article, VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be construed in
relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of
the Senate contemplated under Section 25, Article XVIII means that at least two-thirds of all the
members of the Senate favorably vote to concur with the treaty-the VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed of twenty-
four (24) Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen
(16) members, favorably acting on the proposal is an unquestionable compliance with the requisite
number of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three
(23) incumbent Senators at the time the voting was made, [31] will not alter in any significant way the
circumstance that more than two-thirds of the members of the Senate concurred with the proposed
VFA, even if the two-thirds vote requirement is based on this figure of actual members (23). In this
regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes,
suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the
subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we
shall now pass upon and delve on the requirement that the VFA should be recognized as a treaty by
the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25, Article XVIII,
means that the VFA should have the advice and consent of the United States Senate pursuant to its
own constitutional process, and that it should not be considered merely an executive agreement by
the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard stating
that the VFA is binding on the United States Government is conclusive, on the point that the VFA is
recognized as a treaty by the United States of America. According to respondents, the VFA, to be
binding, must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means that the other
contracting party accepts or acknowledges the agreement as a treaty.[32] To require the other
contracting state, the United States of America in this case, to submit the VFA to the United States
Senate for concurrence pursuant to its Constitution,[33] is to accord strict meaning to the phrase.
 Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. Its language should be understood in the sense they have in common
use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a treaty. [35] To
be sure, as long as the VFA possesses the elements of an agreement under international law, the
said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international
instrument concluded between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments, and whatever its particular
designation.[36] There are many other terms used for a treaty or international agreement, some of
which are: act, protocol, agreement, compromis d arbitrage, concordat, convention, declaration,
exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward,
have pointed out that the names or titles of international agreements included under the general
term treaty have little or no legal significance. Certain terms are useful, but they furnish little more
than mere description.[37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding the
use of terms in the present Convention are without prejudice to the use of those terms, or to the
meanings which may be given to them in the internal law of the State.
Thus, in international law, there is no difference between treaties and executive agreements in
their binding effect upon states concerned, as long as the negotiating functionaries have remained
within their powers.[38] International law continues to make no distinction between treaties and
executive agreements: they are equally binding obligations upon nations. [39]
In our jurisdiction, we have recognized the binding effect of executive agreements even without
the concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea
Trading,[40] we had occasion to pronounce:

x x x the right of the Executive to enter into binding agreements without the necessity of
subsequent congressional approval has been confirmed by long usage. From the earliest days of our
history we have entered into executive agreements covering such subjects as commercial and
consular relations, most-favored-nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The validity of these has never
been seriously questioned by our courts.

xxxxxxxxx

Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law
Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304, 81
L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed.
796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law
Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition], Vol. 2, pp. 1405,
1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore,
International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V,
pp. 390-407). (Italics Supplied)(Emphasis Ours)
 The deliberations of the Constitutional Commission which drafted the 1987 Constitution is
enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is
concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to make
it a treaty, then as far as we are concerned, we will accept it as a treaty.[41]
The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up to the terms
of the VFA.[42] For as long as the united States of America accepts or acknowledges the VFA as a
treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of
the Senate should be taken as a clear an unequivocal expression of our nations consent to be bound
by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied
thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or of the
government, as the case may be, through which the formal acceptance of the treaty is
proclaimed.[43] A State may provide in its domestic legislation the process of ratification of a
treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the
treaty provides for such ratification, (b) it is otherwise established that the negotiating States agreed
that ratification should be required, (c) the representative of the State has signed the treaty subject to
ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the
full powers of its representative, or was expressed during the negotiation. [44]
In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in
the legislature. The role of the Senate is limited only to giving or withholding its consent, or
concurrence, to the ratification.[45]
With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of
notes between the Philippines and the United States of America, it now becomes obligatory and
incumbent on our part, under the principles of international law, to be bound by the terms of the
agreement. Thus, no less than Section 2, Article II of the Constitution, [46] declares that the Philippines
adopts the generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally accepted
rules for the conduct of its international relations.While the international obligation devolves upon the
state and not upon any particular branch, institution, or individual member of its government, the
Philippines is nonetheless responsible for violations committed by any branch or subdivision of its
government or any official thereof. As an integral part of the community of nations, we are responsible
to assure that our government, Constitution and laws will carry out our international
obligation.[47] Hence, we cannot readily plead the Constitution as a convenient excuse for non-
compliance with our obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: Every State has the duty to carry out in good faith its
obligations arising from treaties and other sources of international law, and it may not invoke
provisions in its constitution or its laws as an excuse for failure to perform this duty. [48]
Equally important is Article 26 of the convention which provides that Every treaty in force is
binding upon the parties to it and must be performed by them in good faith. This is known as the
principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the
most fundamental principles of positive international law, supported by the jurisprudence of
international tribunals.[49]

NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted for exercising a power and
performing a task conferred upon him by the Constitution-the power to enter into and ratify
treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in these consolidated
cases impute grave abuse of discretion on the part of the chief Executive in ratifying the VFA, and
referring the same to the Senate pursuant to the provisions of Section 21, Article VII of the
Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and
gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law. [50]
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the
sole organ and authority in the external affairs of the country. In many ways, the President is the chief
architect of the nations foreign policy; his dominance in the field of foreign relations is (then)
conceded.[51] Wielding vast powers an influence, his conduct in the external affairs of the nation, as
Jefferson describes, is executive altogether."[52]
As regards the power to enter into treaties or international agreements, the Constitution vests the
same in the President, subject only to the concurrence of at least two-thirds vote of all the members
of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the
agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast
executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field
of negotiation the Senate cannot intrude, and Congress itself is powerless to invade
it.[53]Consequently, the acts or judgment calls of the President involving the VFA-specifically the acts
of ratification and entering into a treaty and those necessary or incidental to the exercise of such
principal acts - squarely fall within the sphere of his constitutional powers and thus, may not be validly
struck down, much less calibrated by this Court, in the absence of clear showing of grave abuse of
power or discretion.
It is the Courts considered view that the President, in ratifying the VFA and in submitting the
same to the Senate for concurrence, acted within the confines and limits of the powers vested in him
by the Constitution. It is of no moment that the President, in the exercise of his wide latitude of
discretion and in the honest belief that the VFA falls within the ambit of Section 21, Article VII of the
Constitution, referred the VFA to the Senate for concurrence under the aforementioned
provision. Certainly, no abuse of discretion, much less a grave, patent and whimsical abuse of
judgment, may be imputed to the President in his act of ratifying the VFA and referring the same to
the Senate for the purpose of complying with the concurrence requirement embodied in the
fundamental law. In doing so, the President merely performed a constitutional task and exercised a
prerogative that chiefly pertains to the functions of his office. Even if he erred in submitting the VFA to
the Senate for concurrence under the provisions of Section 21 of Article VII, instead of Section 25 of
Article XVIII of the Constitution, still, the President may not be faulted or scarred, much less be
adjudged guilty of committing an abuse of discretion in some patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope
of judicial inquiry into areas normally left to the political departments to decide, such as those relating
to national security, it has not altogether done away with political questions such as those which arise
in the field of foreign relations.[54] The High Tribunals function, as sanctioned by Article VIII, Section
1, is merely (to) check whether or not the governmental branch or agency has gone beyond the
constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a
showing (of) grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the
Court to exercise its corrective powerIt has no power to look into what it thinks is apparent error. [55]
As to the power to concur with treaties, the constitution lodges the same with the Senate
alone. Thus, once the Senate[56] performs that power, or exercises its prerogative within the
boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to
constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the exercise
of its discretion and acting within the limits of such power, may not be similarly faulted for having
simply performed a task conferred and sanctioned by no less than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in character;[57] the
Senate, as an independent body possessed of its own erudite mind, has the prerogative to either
accept or reject the proposed agreement, and whatever action it takes in the exercise of its wide
latitude of discretion, pertains to the wisdom rather than the legality of the act. In this sense, the
Senate partakes a principal, yet delicate, role in keeping the principles of separation of powers and
of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to their
form in a democratic government such as ours. The Constitution thus animates, through this treaty-
concurring power of the Senate, a healthy system of checks and balances indispensable toward our
nations pursuit of political maturity and growth. True enough, rudimentary is the principle that matters
pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to
inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this
Court- as the final arbiter of legal controversies and staunch sentinel of the rights of the people - is
then without power to conduct an incursion and meddle with such affairs purely executive and
legislative in character and nature. For the Constitution no less, maps out the distinct boundaries and
limits the metes and bounds within which each of the three political branches of government may
exercise the powers exclusively and essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.
SO ORDERED.

THE FACTS

The Republic of the Philippines and the United States of America entered into an agreement called the
Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine government and was
ratified by then-President Joseph Estrada with the concurrence of 2/3 of the total membership of the Philippine
Senate.

The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides for the
guidelines to govern such visits, and further defines the rights of the U.S. and the Philippine governments in the
matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials
and supplies.

Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution, which provides
that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate . . . and recognized as a treaty by the other contracting State.”

II. THE ISSUE

Was the VFA unconstitutional?

III. THE RULING

[The Court DISMISSED the consolidated petitions, held that the petitioners did not commit grave abuse of
discretion, and sustained the constitutionality of the VFA.]

NO, the VFA is not unconstitutional.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the
following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in
by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national
referendum; and (c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence
handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution . . . the
provision in [in §25, Article XVIII] requiring ratification by a majority of the votes cast in a national referendum being
unnecessary since Congress has not required it.

xxx xxx xxx

This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting
party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United
States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its
Constitution, is to accord strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary
meaning except where technical terms are employed, in which case the significance thus attached to them
prevails. Its language should be understood in the sense they have in common use.

Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement
because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA
possesses the elements of an agreement under international law, the said agreement is to be taken equally as a
treaty.

xxx xxx xxx

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has
stated that the United States government has fully committed to living up to the terms of the VFA. For as long as the
United States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its
obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution.

Facts:
The United States panel met with the Philippine panel to discussed, among others, the possible elements of the Visiting
Forces Agreement (VFA). This resulted to a series of conferences and negotiations which culminated on January 12 and 13,
1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United
States Ambassador Thomas Hubbard.

Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate approved it by (2/3) votes.

Cause of Action:

Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not Section 21, Article
VII.
Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or facilities” may
be allowed in the Philippines unless the following conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for that
purpose if so required by congress, and
c) recognized as such by the other contracting state.

Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to
be valid and effective is the concurrence in by at least two-thirds of all the members of the senate.

ISSUE: Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution?

HELD:
Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities should
apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will
find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain
the valid concurrence of the senate.

The Constitution, makes no distinction between “transient” and “permanent.” We find nothing in section 25, Article XVIII
that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.

It is inconsequential whether the United States treats the VFA only as an executive agreement because, under international
law, an executive agreement is as binding as a treaty.

FACTS:

The Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951, To
further strengthen their defense and security relationship. Under the treaty, the parties agreed to respond
to any external armed attack on their territory, armed forces, public vessels, and aircraft.

On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security which, in effect, would have extended the presence of US military bases in the
Philippines.

On July 18, 1997 RP and US exchanged notes and discussed, among other things, the possible elements
of the Visiting Forces Agreement (VFA).This resulted to a series of conferences and negotiations which
culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was
respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified
the VFA. On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
Zamora, officially transmitted to the Senate of the Philippines,the Instrument of Ratification, the letter of
the President and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution.

Petitions for certiorari and prohibition, petitioners – as legislators, non-governmental organizations,

citizens and taxpayers – assail the constitutionality of the VFA and impute to herein respondents grave
abuse of discretion in ratifying the agreement.

Petitioner contends, under they provision cited, the “foreign military bases, troops, or facilities” may be
allowed in the Philippines unless the following conditions are sufficiently met: a) it must be a treaty,b) it
must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum
held for that purpose if so required by congress, and c) recognized as such by the other contracting
state.

Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires
for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of
the senate.

ISSUES AND RULING:

1. Issue 1: Do the Petitioners have legal standing as concerned citizens, taxpayers, or legislators to
question the constitutionality of the VFA?

NO. Petitioners Bayan Muna, etc. have no standing. A party bringing a suit challenging the
Constitutionality of a law must show not only that the law is invalid, but that he has sustained or is in
immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. Petitioners have failed to show that they are in any danger of
direct injury as a result of the VFA.

As taxpayers, they have failed to establish that the VFA involves the exercise by Congress of its taxing or
spending powers. A taxpayer's suit refers to a case where the act complained of directly involves the
illegal disbursement of public funds derived from taxation. Before he can invoke the power of judicial
review, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of
money raised by taxation and that he will sustain a direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he has merely a general interest common to all
members of the public. Clearly, inasmuch as no public funds raised by taxation are involved in this case,
and in the absence of any allegation by petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.

Similarly, the petitioner-legislators (Tanada, Arroyo, etc.) do not possess the requisite locus standi to sue.
In the absence of a clear showing of any direct injury to their person or to the institution to which they
belong, they cannot sue. The Integrated Bar of the Philippines (IBP) is also stripped of standing in these
cases. The IBP lacks the legal capacity to bring this suit in the absence of a board resolution from its
Board of Governors authorizing its National President to commence the present action.

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues
raised, the Court may brush aside the procedural barrier and takes cognizance of the petitions.

2. Issue 2: Is the VFA governed by section 21, Art. VII, or section 25, Art. XVIII of the Constitution?

Section 25, Art XVIII, not section 21, Art. VII, applies, as the VFA involves the presence of foreign military
troops in the Philippines.

The Constitution contains two provisions requiring the concurrence of the Senate on treaties or
international agreements.

Section 21, Article VII reads: “[n]o treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.”

Section 25, Article XVIII, provides:”[a]fter the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other contracting State.”

Section 21, Article VII deals with treaties or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the treaty
valid and binding to the Philippines. This provision lays down the general rule on treaties. All treaties,
regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence
of the Senate to be valid and effective. In contrast, Section 25, Article XVIII is a special provision that
applies to treaties which involve the presence of foreign military bases, troops or facilities in the
Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render
compliance with the constitutional requirements and to consider the agreement binding on the Philippines.
Sec 25 further requires that “foreign military bases, troops, or facilities” may be allowed in the Philippines
only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required by Congress, and recognized as such by the other
contracting state.

On the whole, the VFA is an agreement which defines the treatment of US troops visiting the Philippines.
It provides for the guidelines to govern such visits of military personnel, and further defines the rights of
the US and RP government in the matter of criminal jurisdiction, movement of vessel and aircraft, import
and export of equipment, materials and supplies. Undoubtedly, Section 25, Article XVIII, which specifically
deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case.
To a certain extent, however, the provisions of Section 21, Article VII will find applicability with regard to
determining the number of votes required to obtain the valid concurrence of the Senate.

It is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the
reason that there is no permanent placing of structure for the establishment of a military base. The
Constitution makes no distinction between “transient” and “permanent”. We find nothing in Section 25,
Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the
Philippines. When no distinction is made by law; the Court should not distinguish. We do not subscribe to
the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely
foreign troops and facilities, are involved in the VFA. The proscription covers “foreign military bases,
troops, or facilities.” Stated differently, this prohibition is not limited to the entry of troops and facilities
without any foreign bases being established. The clause does not refer to “foreign military bases, troops,
or facilities” collectively but treats them as separate and independent subjects, such that three different
situations are contemplated — a military treaty the subject of which could be either (a) foreign bases, (b)
foreign troops, or (c) foreign facilities — any of the three standing alone places it under the coverage of
Section 25, Article XVIII.

3. Issue 3: Was Sec 25 Art XVIII's requisites satisfied to make the VFA effective?

YES

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the
following conditions are sufficiently met:
(a) it must be under a treaty;
(b) the treaty must be duly concurred in by the Senate and, when so required by Congress, ratified by a
majority of the votes cast by the people in a national referendum; and
(c) recognized as a treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence
handed by the Senate through Resolution No. 18 is in accordance with the Constitution, as there were at
least 16 Senators that concurred.

As to condition (c), the Court held that the phrase “recognized as a treaty” means that the other
contracting party accepts or acknowledges the agreement as a treaty. To require the US to submit the
VFA to the US Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the
phrase. Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. Its language should be understood in the sense they have in common use.

The records reveal that the US Government, through Ambassador Hubbard, has stated that the US has
fully committed to living up to the terms of the VFA. For as long as the US accepts or acknowledges the
VFA as a treaty, and binds itself further to comply with its treaty obligations, there is indeed compliance
with the mandate of the Constitution.

Worth stressing too, is that the ratification by the President of the VFA, and the concurrence of the
Senate, should be taken as a clear and unequivocal expression of our nation's consent to be bound by said
treaty, with the concomitant duty to uphold the obligations and responsibilities embodied
thereunder. Ratification is generally held to be an executive act, undertaken by the head of the state,
through which the formal acceptance of the treaty is proclaimed. A State may provide in its domestic
legislation the process of ratification of a treaty. In our jurisdiction, the power to ratify is vested in the
President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving
or withholding its consent, or concurrence, to the ratification.

With the ratification of the VFA it now becomes obligatory and incumbent on our part, under principles of
international law (pacta sunt servanda), to be bound by the terms of the agreement. Thus, no less than
Section 2, Article II declares that the Philippines adopts the generally accepted principles of international
law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations.

UZETTE NICOLAS y SOMBILON, G.R. No. 175888

Petitioner,

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
- versus - CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
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X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

JOVITO R. SALONGA, WIGBERTO G.R. No. 176051

E. TAADA, JOSE DE LA RAMA,
EMILIO C. CAPULONG, H. HARRY
L. ROQUE, JR., FLORIN HILBAY,
and BENJAMIN POZON,
Petitioners,

- versus -

DANIEL SMITH, SECRETARY RAUL GONZALEZ,

PRESIDENTIAL LEGAL COUNSEL SERGIO
APOSTOL, SECRETARY RONALDO PUNO,
SECRETARY ALBERTO ROMULO, The Special
16th Division of the COURT OF APPEALS, and all
persons acting in their capacity,
Respondents.

X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

BAGONG ALYANSANG MAKABAYAN G.R. No. 176222

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Respondents. Promulgated:
February 11, 2009

X ---------------------------------------------------------------------------------------- X

DECISION
AZCUNA, J.:
These are petitions for certiorari, etc. as special civil actions and/or for review of the
Decision of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T.
Pozon, et al., in CA-G.R. SP No. 97212, dated January 2, 2007.

The facts are not disputed.

Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States
Armed Forces. He was charged with the crime of rape committed against a Filipina, petitioner
herein, sometime on November 1, 2005, as follows:

The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier,
Dominic Duplantis, Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape
under Article 266-A of the Revised Penal Code, as amended by Republic Act 8353,
upon a complaint under oath filed by Suzette S. Nicolas, which is attached hereto and
made an integral part hereof as Annex A, committed as follows:

That on or about the First (1st) day of November 2005, inside the Subic Bay
Freeport Zone, Olongapo City and within the jurisdiction of this Honorable Court, the
above-named accuseds (sic), being then members of the United States Marine Corps,
except Timoteo L. Soriano, Jr., conspiring, confederating together and mutually helping
one another, with lewd design and by means of force, threat and intimidation, with abuse
of superior strength and taking advantage of the intoxication of the victim, did then and
there willfully, unlawfully and feloniously sexually abuse and have sexual intercourse
with or carnal knowledge of one Suzette S. Nicolas, a 22-year old unmarried woman
inside a Starex Van with Plate No. WKF-162, owned by Starways Travel and Tours, with
Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused
Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her
damage and prejudice.

CONTRARY TO LAW.[1]
 Pursuant to the Visiting Forces Agreement (VFA) between the Republic of
the Philippines and the United States, entered into on February 10, 1998, the United States, at
its request, was granted custody of defendant Smith pending the proceedings.

During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales
to the RTC of Makati for security reasons, the United States Government faithfully complied
with its undertaking to bring defendant Smith to the trial court every time his presence was
required.

On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its
Decision, finding defendant Smith guilty, thus:

WHEREFORE, premises considered, for failure of the prosecution to adduce

sufficient evidence against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL.
KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the US Marine
Corps assigned at the USS Essex, are hereby ACQUITTED to the crime charged.

The prosecution having presented sufficient evidence against accused L/CPL.

DANIEL J. SMITH, also of the US Marine Corps at the USS Essex, this Court hereby
finds him GUILTY BEYOND REASONABLE DOUBT of the crime of
RAPE defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code, as
amended by R.A. 8353, and, in accordance with Article 266-B, first paragraph
thereof, hereby sentences him to suffer the penalty of reclusion perpetua together with
the accessory penalties provided for under Article 41 of the same Code.

Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement

entered into by the Philippines and the United States, accused L/CPL. DANIEL J.
SMITH shall serve his sentence in the facilities that shall, thereafter, be agreed upon
by appropriate Philippine and United States authorities. Pending agreement on such
facilities, accused L/CPL. DANIEL J. SMITH is hereby temporarily committed to the
Makati City Jail.

Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify

complainant SUZETTE S. NICOLAS in the amount of P50,000.00 as compensatory
damages plus P50,000.00 as moral damages.

SO ORDERED.[2]

As a result, the Makati court ordered Smith detained at the Makati jail until further
orders.
 On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a
contingent of Philippine law enforcement agents, purportedly acting under orders of the
Department of the Interior and Local Government, and brought to a facility for detention under
the control of the United States government, provided for under new agreements between the
Philippines and the United States, referred to as the Romulo-Kenney Agreement of December
19, 2006 which states:

The Government of the Republic of the Philippines and the Government of the United
States of America agree that, in accordance with the Visiting Forces Agreement
signed between our two nations, Lance Corporal Daniel J. Smith, United States
Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila.

(Sgd.) KRISTIE A. KENNEY (Sgd.) ALBERTO G. ROMULO

Representative of the United States Representative of the Republic
of America of the Philippines

DATE: 12-19-06 DATE: December 19, 2006__

and the Romulo-Kenney Agreement of December 22, 2006 which states:

The Department of Foreign Affairs of the Republic of the Philippines and the
Embassy of the United States of America agree that, in accordance with the Visiting
Forces Agreement signed between the two nations, upon transfer of Lance Corporal
Daniel J. Smith, United States Marine Corps, from the Makati City Jail, he will be
detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a
room of approximately 10 x 12 square feet. He will be guarded round the clock
by U.S. military personnel. The Philippine police and jail authorities, under the direct
supervision of the Philippine Department of Interior and Local Government (DILG)
will have access to the place of detention to ensure the United States is in compliance
with the terms of the VFA.

The matter was brought before the Court of Appeals which decided on January 2, 2007,
as follows:

WHEREFORE, all the foregoing considered, we resolved to DISMISS the

petition for having become moot.[3]

Hence, the present actions.

The petitions were heard on oral arguments on September 19, 2008, after which the
parties submitted their memoranda.
 Petitioners contend that the Philippines should have custody of defendant L/CPL Smith
because, first of all, the VFA is void and unconstitutional.

This issue had been raised before, and this Court resolved in favor of the constitutionality
of the VFA. This was in Bayan v. Zamora,[4]brought by Bayan, one of petitioners in the present
cases.

Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis all the
parties, the reversal of the previous ruling is sought on the ground that the issue is of primordial
importance, involving the sovereignty of the Republic, as well as a specific mandate of the
Constitution.

The provision of the Constitution is Art. XVIII, Sec. 25 which states:

Sec. 25. After the expiration in 1991 of the Agreement between the Philippines
and the United States of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires, ratified by a majority
of the votes cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.

The reason for this provision lies in history and the Philippine experience in regard to
the United States military bases in the country.

It will be recalled that under the Philippine Bill of 1902, which laid the basis for the
Philippine Commonwealth and, eventually, for the recognition of independence, the United
States agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty
of Paris, plus a few islands later added to its realm, except certain naval ports and/or military
bases and facilities, which the United States retained for itself.

This is noteworthy, because what this means is that Clark and Subic and the other places
in the Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine
territory, as they were excluded from the cession and retained by the US.

Accordingly, the Philippines had no jurisdiction over these bases except to the extent
allowed by the United States. Furthermore, the RP-US Military Bases Agreement was never
advised for ratification by the United States Senate, a disparity in treatment, because
the Philippines regarded it as a treaty and had it concurred in by our Senate.
 Subsequently, the United States agreed to turn over these bases to the Philippines; and
with the expiration of the RP-US Military Bases Agreement in 1991, the territory covered by
these bases were finally ceded to the Philippines.

To prevent a recurrence of this experience, the provision in question was adopted in the
1987 Constitution.

The provision is thus designed to ensure that any agreement allowing the presence of
foreign military bases, troops or facilities in Philippine territory shall be equally binding on
the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of
the situation in which the terms and conditions governing the presence of foreign armed forces
in our territory were binding upon us but not upon the foreign State.

Applying the provision to the situation involved in these cases, the question is whether or
not the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed
under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other
contracting State.

This Court finds that it is, for two reasons.

First, as held in Bayan v. Zamora,[5] the VFA was duly concurred in by the Philippine
Senate and has been recognized as a treaty by the United States as attested and certified by the
duly authorized representative of the United States government.

The fact that the VFA was not submitted for advice and consent of the United States
Senate does not detract from its status as a binding international agreement or treaty recognized
by the said State. For this is a matter of internal United States law. Notice can be taken of the
internationally known practice by the United States of submitting to its Senate for advice and
consent agreements that are policymaking in nature, whereas those that carry out or further
implement these policymaking agreements are merely submitted to Congress, under the
provisions of the so-called CaseZablocki Act, within sixty days from ratification.[6]

The second reason has to do with the relation between the VFA and the RP-US Mutual
Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with
the concurrence of both the Philippine Senate and the United States Senate.

The RP-US Mutual Defense Treaty states:[7]

MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF
THE PHILIPPINES AND THE UNITED STATES OF AMERICA. Signed
at Washington, August 30, 1951.

The Parties of this Treaty

Reaffirming their faith in the purposes and principles of the Charter of the United
Nations and their desire to live in peace with all peoples and all governments, and
desiring to strengthen the fabric of peace in the Pacific area.

Recalling with mutual pride the historic relationship which brought their two peoples
together in a common bond of sympathy and mutual ideals to fight side-by-side
against imperialist aggression during the last war.

Desiring to declare publicly and formally their sense of unity and their common
determination to defend themselves against external armed attack, so that no
potential aggressor could be under the illusion that either of them stands alone in the
Pacific area.

Desiring further to strengthen their present efforts for collective defense for the
preservation of peace and security pending the development of a more
comprehensive system of regional security in the Pacific area.

Agreeing that nothing in this present instrument shall be considered or interpreted as

in any way or sense altering or diminishing any existing agreements or understandings
between the Republic of the Philippines and the United States of America.

Have agreed as follows:

ARTICLE I. The parties undertake, as set forth in the Charter of the United Nations,
to settle any international disputes in which they may be involved by peaceful means
in such a manner that international peace and security and justice are not endangered
and to refrain in their international relation from the threat or use of force in any
manner inconsistent with the purposes of the United Nations.

ARTICLE II. In order more effectively to achieve the objective of this Treaty,
the Parties separately and jointly by self-help and mutual aid will maintain and
develop their individual and collective capacity to resist armed attack.

ARTICLE III. The Parties, through their Foreign Ministers or their deputies, will
consult together from time to time regarding the implementation of this Treaty and
whenever in the opinion of either of them the territorial integrity, political
independence or security of either of the Parties is threatened by external armed attack
in the Pacific.
ARTICLE IV. Each Party recognizes that an armed attack in the Pacific area on either
of the parties would be dangerous to its own peace and safety and declares that it
would act to meet the common dangers in accordance with its constitutional
processes.

Any such armed attack and all measures taken as a result thereof shall be immediately
reported to the Security Council of the United Nations. Such measures shall be
terminated when the Security Council has taken the measures necessary to restore and
maintain international peace and security.

ARTICLE V. For the purpose of Article IV, an armed attack on either of the Parties is
deemed to include an armed attack on the metropolitan territory of either of the
Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed
forces, public vessels or aircraft in the Pacific.

ARTICLE VI. This Treaty does not affect and shall not be interpreted as affecting in
any way the rights and obligations of the Parties under the Charter of the United
Nations or the responsibility of the United Nations for the maintenance of
international peace and security.

ARTICLE VII. This Treaty shall be ratified by the Republic of the Philippines and the
United Nations of America in accordance with their respective constitutional
processes and will come into force when instruments of ratification thereof have been
exchanged by them at Manila.

ARTICLE VIII. This Treaty shall remain in force indefinitely. Either Party may
terminate it one year after notice has been given to the other party.

IN WITHNESS WHEREOF the undersigned Plenipotentiaries have signed this

Treaty.

DONE in duplicate at Washington this thirtieth day of August, 1951.

For the Republic of the Philippines:

(Sgd.) CARLOS P. ROMULO
(Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO
(Sgd.) DIOSDADO MACAPAGAL

For the United States of America:

(Sgd.) DEAN ACHESON

(Sgd.) JOHN FOSTER DULLES
(Sgd.) TOM CONNALLY
(Sgd.) ALEXANDER WILEY[8]
 Clearly, therefore, joint RP-US military exercises for the purpose of developing the
capability to resist an armed attack fall squarely under the provisions of the RP-US Mutual
Defense Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP-US
military exercises, is simply an implementing agreement to the main RP-US Military Defense
Treaty. The Preamble of the VFA states:

The Government of the United States of America and the Government of the Republic
of the Philippines,

Reaffirming their faith in the purposes and principles of the Charter of the United
Nations and their desire to strengthen international and regional security in the Pacific
area;

Reaffirming their obligations under the Mutual Defense Treaty of August 30,
1951;

Noting that from time to time elements of the United States armed forces may
visit the Republic of the Philippines;

Considering that cooperation between the United States and the Republic of
the Philippines promotes their common security interests;

Recognizing the desirability of defining the treatment of United States personnel

visiting the Republic of the Philippines;

Have agreed as follows:[9]

Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was

not necessary to submit the VFA to the US Senate for advice and consent, but merely to the US
Congress under the CaseZablocki Act within 60 days of its ratification. It is for this reason that
the US has certified that it recognizes the VFA as a binding international agreement, i.e., a
treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our
Constitution.[10]

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the
fact that the presence of the US Armed Forces through the VFA is a presence allowed under the
RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified
and concurred in by both the Philippine Senate and the US Senate, there is no violation of the
Constitutional provision resulting from such presence.

The VFA being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.
 The VFA provides that in cases of offenses committed by the members of the US Armed
Forces in the Philippines, the following rules apply:

Article V
Criminal Jurisdiction

xxx
6. The custody of any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United States military authorities,
if they so request, from the commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon formal notification by the
Philippine authorities and without delay, make such personnel available to those
authorities in time for any investigative or judicial proceedings relating to the offense
with which the person has been charged. In extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding
custody, which the United States Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one year, the United
States shall be relieved of any obligations under this paragraph. The one year period
will not include the time necessary to appeal. Also, the one year period will not
include any time during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to arrange for the
presence of the accused, fail to do so.

Petitioners contend that these undertakings violate another provision of the Constitution,
namely, that providing for the exclusive power of this Court to adopt rules of procedure for all
courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody
of an accused to a foreign power is to provide for a different rule of procedure for that accused,
which also violates the equal protection clause of the Constitution (Art. III, Sec. 1.).

Again, this Court finds no violation of the Constitution.

The equal protection clause is not violated, because there is a substantial basis for a
different treatment of a member of a foreign military armed forces allowed to enter our territory
and all other accused.[11]

The rule in international law is that a foreign armed forces allowed to enter ones territory
is immune from local jurisdiction, except to the extent agreed upon. The Status of Forces
Agreements involving foreign military units around the world vary in terms and conditions,
according to the situation of the parties involved, and reflect their bargaining power. But the
principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the
sending State only to the extent agreed upon by the parties.[12]

As a result, the situation involved is not one in which the power of this Court to adopt
rules of procedure is curtailed or violated, but rather one in which, as is normally encountered
around the world, the laws (including rules of procedure) of one State do not extend or
applyexcept to the extent agreed upon to subjects of another State due to the recognition of
extraterritorial immunity given to such bodies as visiting foreign armed forces.

Nothing in the Constitution prohibits such agreements recognizing immunity from

jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized
subjects of such immunity like Heads of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter another States territory. On the contrary, the
Constitution states that the Philippines adopts the generally accepted principles of international
law as part of the law of the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a different
treatment when it comes to detention as against custody. The moment the accused has to be
detained, e.g., after conviction, the rule that governs is the following provision of the VFA:

Article V
Criminal Jurisdiction

xxx
Sec. 10. The confinement or detention by Philippine authorities of United
States personnel shall be carried out in facilities agreed on by
appropriate Philippines and United States authorities. United States personnel serving
sentences in the Philippines shall have the right to visits and material assistance.

It is clear that the parties to the VFA recognized the difference between custody during
the trial and detention after conviction, because they provided for a specific arrangement to
cover detention. And this specific arrangement clearly states not only that the detention shall be
carried out in facilities agreed on by authorities of both parties, but also that the detention shall
be by Philippine authorities. Therefore, the Romulo-Kenney Agreements of December 19 and
22, 2006, which are agreements on the detention of the accused in the United StatesEmbassy,
are not in accord with the VFA itself because such detention is not by Philippine authorities.

Respondents should therefore comply with the VFA and negotiate with representatives of
the United States towards an agreement on detention facilities under Philippine authorities as
mandated by Art. V, Sec. 10 of the VFA.
 Next, the Court addresses the recent decision of the United States Supreme Court
in Medellin v. Texas ( 552 US ___ No. 06-984, March 25, 2008), which held that treaties
entered into by the United States are not automatically part of their domestic law unless these
treaties are self-executing or there is an implementing legislation to make them enforceable.

On February 3, 2009, the Court issued a Resolution, thus:

G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No.
176051 (Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222
(Bagong Alyansang Makabayan [BAYAN], et al. v. President Gloria
Macapagal-Arroyo, et al.).

The parties, including the Solicitor General, are required to submit within three (3)
days a Comment/Manifestation on the following points:

1. What is the implication on the RP-US Visiting Forces Agreement of the recent
US Supreme Court decision in Jose Ernesto Medellin v. Texas, dated March 25,
2008, to the effect that treaty stipulations that are not self-executory can only be
enforced pursuant to legislation to carry them into effect; and that, while
treaties may comprise international commitments, they are not domestic law
unless Congress has enacted implementing statutes or the treaty itself conveys
an intention that it be self-executory and is ratified on these terms?

2. Whether the VFA is enforceable in the US as domestic law, either because it is

self-executory or because there exists legislation to implement it.

3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred
in by the US Senate and, if so, is there proof of the US Senate advice and
consent resolution? Peralta, J., no part.

After deliberation, the Court holds, on these points, as follows:

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself,
because the parties intend its provisions to be enforceable, precisely because the Agreement is
intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty.As
a matter of fact, the VFA has been implemented and executed, with the US faithfully complying
with its obligation to produce L/CPL Smith before the court during the trial.

Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act,
USC Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that
executive agreements registered under this Act within 60 days from their ratification be
immediately implemented. The parties to these present cases do not question the fact that the
VFA has been registered under the Case-Zablocki Act.

In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and
the Avena decision of the International Court of Justice (ICJ), subject matter of
the Medellin decision. The Convention and the ICJ decision are not self-executing and are not
registrable under the Case-Zablocki Act, and thus lack legislative implementing authority.

Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US
Senate on March 20, 1952, as reflected in the US Congressional Record, 82nd Congress, Second
Session, Vol. 98 Part 2, pp. 2594-2595.

The framers of the Constitution were aware that the application of international law in
domestic courts varies from country to country.

As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF

INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some countries require
legislation whereas others do not.

It was not the intention of the framers of the 1987 Constitution, in adopting Article
XVIII, Sec. 25, to require the other contracting State to convert their system to achieve
alignment and parity with ours. It was simply required that the treaty be recognized as a treaty
by the other contracting State. With that, it becomes for both parties a binding international
obligation and the enforcement of that obligation is left to the normal recourse and processes
under international law.

Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,[13] an executive

agreement is a treaty within the meaning of that word in international law and constitutes
enforceable domestic law vis--vis the United States. Thus, the US Supreme Court
in Weinbergerenforced the provisions of the executive agreement granting preferential
employment to Filipinos in the US Bases here.

Accordingly, there are three types of treaties in the American system:

1. Art. II, Sec. 2 treaties These are advised and consented to by the US Senate in
accordance with Art. II, Sec. 2 of the USConstitution.

2. ExecutiveCongressional Agreements: These are joint agreements of the President

and Congress and need not be submitted to the Senate.
 3. Sole Executive Agreements. These are agreements entered into by the
President. They are to be submitted to Congress within sixty (60) days of
ratification under the provisions of the Case-Zablocki Act, after which they are
recognized by the Congress and may be implemented.

As regards the implementation of the RP-US Mutual Defense Treaty, military aid or
assistance has been given under it and this can only be done through implementing
legislation. The VFA itself is another form of implementation of its provisions.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals
Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces
Agreement (VFA) between the Republic of the Philippines and the United States, entered into
on February 10, 1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of
December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent
Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States
representatives for the appropriate agreement on detention facilities under Philippine authorities
as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained
until further orders by this Court.

The Court of Appeals is hereby directed to resolve without delay the related matters
pending therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith from
the judgment of conviction.

No costs.

SO ORDERED.
On the 1st of November 2005, Daniel Smith committed the crime of rape against Nicole. He was convicted
of the said crime and was ordered by the court to suffer imprisonment. Smith was a US serviceman
convicted of a crime against our penal laws and the crime was committed within the country’s jurisdiction.
But pursuant to the VFA, a treaty between the US and Philippines, the US embassy was granted custody
over Smith. Nicole, together with the other petitioners appealed before the SC assailing the validity of the
VFA. Their contention is that the VFA was not ratified by the US senate in the same way our senate
ratified the VFA.
ISSUE: Is the VFA void and unconstitutional & whether or not it is self-executing.
HELD: The VFA is a self-executing Agreement because the parties intend its provisions to be
enforceable, precisely because the VFA is intended to carry out obligations and undertakings under the
RP-US Mutual Defense Treaty. As a matter of fact, the VFA has been implemented and executed, with
the US faithfully complying with its obligation to produce Smith before the court during the trial.
The VFA is covered by implementing legislation inasmuch as it is the very purpose and intent of the US
Congress that executive agreements registered under this Act within 60 days from their ratification be
immediately implemented. The SC noted that the VFA is not like other treaties that need implementing
legislation such as the Vienna Convention. As regards the implementation of the RP-US Mutual Defense
Treaty, military aid or assistance has been given under it and this can only be done through implementing
legislation. The VFA itself is another form of implementation of its provisions.

Nottebohm (Liechtenstein v. Guatemala)

OVERVIEW OF THE CASE

In this case, Liechtenstein claimed restitution and compensation from the Government of Guatemala on the ground
that the latter had acted towards Friedrich Nottebohm, a citizen of Liechtenstein, in a manner contrary to
international law. Guatemala objected to the Court’s jurisdiction but the Court overruled this objection in a Judgment
of 18 November 1953. In a second Judgment, of 6 April 1955, the Court held that Liechtenstein’s claim was
inadmissible on grounds relating to Mr. Nottebohm’s nationality. It was the bond of nationality between a State and
an individual which alone conferred upon the State the right to put forward an international claim on his behalf. Mr.
Nottebohm, who was then a German national, had settled in Guatemala in 1905 and continued to reside there. In
October 1939 — after the beginning of the Second World War — while on a visit to Europe, he obtained
Liechtenstein nationality and returned to Guatemala in 1940, where he resumed his former business activities until
his removal as a result of war measures in 1943. On the international plane, the grant of nationality is entitled to
recognition by other States only if it represents a genuine connection between the individual and the State granting
its nationality. Mr. Nottebohm’s nationality, however, was not based on any genuine prior link with Liechtenstein and
the sole object of his naturalization was to enable him to acquire the status of a neutral national in time of war. For
these reasons, Liechtenstein was not entitled to take up his case and put forward an international claim on his
behalf against Guatemala.

Brief Fact Summary. A month after the start of World War II, Nottebohn (P), a German citizen who
had lived in Guatemala (D) for 34 years, applied for Liechtenstein (P) citizenship.

Synopsis of Rule of Law. Nationality may be disregarded by other states where it is clear that it was
a mere device since the nationality conferred on a party is normally only the concerns of that nation

Facts. Nottebohn (P), a German by birth, lived in Guatemala (D) for 34 years, retaining his German
citizenship and family and business ties with it. He however applied for Liechtenstein (P) citizenship a
month after the outbreak of World War II. Nottebohm (P) had no ties with Liechtenstein but intended
to remain in Guatemala. The naturalization application was approved by Liechtenstein and impliedly
waived its three-year. After this approval, Nottebohm (P) travelled to Liechtenstein and upon his
return to Guatemala (D), he was refused entry because he was deemed to be a German citizen. His
Liechtenstein citizenship was not honored. Liechtenstein (P) thereby filed a suit before the
International Court to compel Guatemala (D) to recognize him as one of its national. Guatemala (D)
challenged the validity of Nottebohm’s (P) citizenship, the right of Liechtenstein (P) to bring the action
and alleged its belief that Nottebohm (P) remained a German national.
Issue. Must nationality be disregarded by other states where it is clear that it was a mere device
since the nationality conferred on a party is normally the concerns of that nation?

Held. NO. issues relating to citizenship are solely the concern of the granting nation. This is the general rule.
But it does not mean that other states will automatically accept the conferring state’s designation unless it has
acted in conformity with the general aim of forging a genuine bond between it and its national aim. In this case,
there was no relationship between Liechtenstein (P) and Nottebohm (P). the change of nationality was merely
a subterfuge mandated by the war. Under this circumstance, Guatemala (D) was not forced to recognize it.
Dismissed.

Discussion. A state putting forth a claim must establish a locus standi for that purpose. Without interruption
and continuously from the time of the injury to the making of an award been a national of the state making the
claim and must not have been a national of the state against whom the claim has been filed. International law
347 (8th Ed. 1955) Vol.1.

G.R. No. 139465 January 18, 2000

SECRETARY OF JUSTICE, petitioner,

vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B.
JIMENEZ, respondents.

MELO, J.:

The individual citizen is but a speck of particle or molecule vis-à-vis the vast and overwhelming powers of
government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of
Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basic due
process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court must once again
act as the faithful guardian of the fundamental writ.

The petition at our doorstep is cast against the following factual backdrop:

On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the
Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is
founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of crime
both in the state where it was committed and the state where the criminal may have escaped; the extradition treaty
with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested
countries; and the need for rules to guide the executive department and the courts in the proper implementation of
said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic
of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the
Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition
Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also
expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility
of the documents accompanying an extradition request upon certification by the principal diplomatic or consular
officer of the requested state resident in the Requesting State).

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale
No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached
to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern
District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private
respondent appears to be charged in the United States with violation of the following provisions of the United States
Code (USC):
 A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum
Penalty — 5 years on each count);

B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty — 5 years on each
count);

C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty — 5 years on each
count);

D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty — 5 years on each count);

E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty — less
than one year).

(p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to
take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the
panel began with the "technical evaluation and assessment" of the extradition request and the documents in support
thereof. The panel found that the "official English translation of some documents in Spanish were not attached to the
request and that there are some other matters that needed to be addressed" (p. 15, Rollo).

Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter
dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.S.
Government, as well as all documents and papers submitted therewith; and that he be given ample time to comment
on the request after he shall have received copies of the requested papers. Private respondent also requested that
the proceedings on the matter be held in abeyance in the meantime.

Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the request of the
United States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify on his
request.

In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received
by private respondent only on August 4, 1999), denied the foregoing requests for the following reasons:

1. We find it premature to furnish you with copies of the extradition request and supporting documents from
the United States Government, pending evaluation by this Department of the sufficiency of the extradition
documents submitted in accordance with the provisions of the extradition treaty and our extradition law.
Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the
documentary requirements and establishes the procedures under which the documents submitted shall be
received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in
Section 4 of P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to
preliminary investigation of criminal cases. We merely determine whether the procedures and requirements
under the relevant law and treaty have been complied with by the Requesting Government. The
constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available.

It is only after the filing of the petition for extradition when the person sought to be extradited will be
furnished by the court with copies of the petition, request and extradition documents and this Department will
not pose any objection to a request for ample time to evaluate said documents.

2. The formal request for extradition of the United States contains grand jury information and documents
obtained through grand jury process covered by strict secrecy rules under United States law. The United
States had to secure orders from the concerned District Courts authorizing the United States to disclose
certain grand jury information to Philippine government and law enforcement personnel for the purpose of
extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United
 States District Courts. In this particular extradition request the United States Government requested the
Philippine Government to prevent unauthorized disclosure of the subject information. This Department's
denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the
Philippine Government must represent the interests of the United States in any proceedings arising out of a
request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign
governments in all extradition requests.

3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition
request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that
"[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith".
Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of
accused or convicted persons must be processed expeditiously.

(pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the
National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the
Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private
respondent the extradition documents, to give him access thereto, and to afford him an opportunity to comment on,
or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and
objectively); certiorari(to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain
petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the
Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private
respondent to the United States), with an application for the issuance of a temporary restraining order and a writ of
preliminary injunction (pp. 104-105, Rollo).

The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said
regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion.

After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf,
moved that he be given ample time to file a memorandum, but the same was denied.

On August 10, 1999, respondent judge issued an order dated the previous day, disposing:

WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of
Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives
to maintain the status quo by refraining from committing the acts complained of; from conducting further
proceedings in connection with the request of the United States Government for the extradition of the
petitioner; from filing the corresponding Petition with a Regional Trial court; and from performing any act
directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service
on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.

The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the
counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents
are, likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary
Injunction on or before said date.

SO ORDERED.

(pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE
TEMPORARY RESTRAINING ORDER BECAUSE:
 I.

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED

OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL
EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN
OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER
FOR A WRIT OF MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION
WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF
THE MANDAMUS ISSUES;

II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE
EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;

III.

THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY
AND SUBSTANTIALLY DEFICIENT; AND

IV.

PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT,
AND WILL NOT SUFFER ANY IRREPARABLE INJURY.

(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a
temporary restraining order (TRO) providing:

NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You,
Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your
place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated
August 9, 1999 issued by public respondent in Civil Case No. 99-94684.

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this
17th day of August 1999.

(pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective
memoranda.

From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review
of these issues as well as the extensive arguments of both parties, compel us to delineate the focal point raised by
the pleadings: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two
basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at
the trial court, moot and academic (the issues of which are substantially the same as those before us now), while a
negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999, thus
allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial
court. Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the
evaluation stage of the extradition proceedings, would this entitlement constitute a breach of the legal commitments
and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result
would indeed be a breach, is there any conflict between private respondent's basic due process rights and the
provisions of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the
case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 99-94684,
particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by
the trial court.

To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was
executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No.
1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of an
accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the
requesting state or government to hold him in connection with any criminal investigation directed against him or the
execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." The
portions of the Decree relevant to the instant case which involves a charged and not convicted individual, are
abstracted as follows:

The Extradition Request

The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign
Affairs, and shall be accompanied by:

1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority
of the Requesting State having jurisdiction over the matter, or some other instruments having equivalent
legal force;

2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and
identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of,
and the time and place of the commission of these acts;

3. The text of the applicable law or a statement of the contents of said law, and the designation or
description of the offense by the law, sufficient for evaluation of the request; and

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

(Sec. 4. Presidential Decree No. 1069.)

Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides

. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of
this law and the relevant treaty or convention, he shall forward the request together with the related
documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his
office to take charge of the case.

The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of
the request and the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this
task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must
ascertain whether or not the request is supported by:

1. Documents, statements, or other types of information which describe the identity and probable location of
the person sought;

2. A statement of the facts of the offense and the procedural history of the case;

3. A statement of the provisions of the law describing the essential elements of the offense for which
extradition is requested;

4. A statement of the provisions of law describing the punishment for the offense;
 5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of
punishment for the offense;

6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said

Article, as applicable.

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

7. Such evidence as, according to the law of the Requested State, would provide probable cause for his
arrest and committal for trial if the offense had been committed there;

8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and

9. A copy of the charging document.

(Paragraph 3, ibid.)

The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received
in support of the request had been certified by the principal diplomatic or consular officer of the Requested State
resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the
Department of Foreign Affairs).

In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive
authority of the Requested State determines that the request is politically motivated, or that the offense is a military
offense which is not punishable under non-military penal legislation."

The Extradition Petition

Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents
are sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall
immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5,
P.D. No. 1069). The lawyer designated shall then file a written petition with the proper regional trial court of the
province or city, with a prayer that the court take the extradition request under consideration (Paragraph [2], ibid.).

The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as
practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the day
and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and
temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to
prevent the flight of the prospective extraditee.

The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special
proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the extradition petition,
the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the
proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the
case may, upon application by the Requesting State, represent the latter throughout the proceedings.

Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons
therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said
decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section
12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply
in the aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.).

The trial court determines whether or not the offense mentioned in the petition is extraditable based on the
application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty.
The trial court also determines whether or not the offense for which extradition is requested is a political one
(Paragraph [1], Article 3, RP-US Extradition Treaty). 1âwphi1.nêt

With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is
the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings?

A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the
extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign
Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and
under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that
the offense is a military offense which is not punishable under non-military penal legislation. Ipso facto, as expressly
provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing
the extradition papers.

However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the
provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the
Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of
Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly
evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department
of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for which reason he simply
forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of
Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to
determine the completeness of the documents and to evaluate the same to find out whether they comply with the
requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this
connection that although the Department of Justice had no obligation to evaluate the extradition documents, the
Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp.
24-25). Notably, it was also at this stage where private respondent insisted on the following; (1) the right to be
furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable
period of time to oppose the request, and to present evidence in support of the opposition; and (3) that the
evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request.

The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and
the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General,
filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were
to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation.

Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs
thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded
judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of Justice,
eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute
a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than one day, make the more
authoritative determination?

The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is
not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At
such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and
sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting
documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is
politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation
(tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said
process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in
the exercise of an administrative body's quasi-judicial power.

In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining
facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De
Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1).
Inquisitorial power, which is also known as examining or investigatory power, is one or the determinative powers of
an administrative body which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law,
1996 ed., p. 26). This power allows the administrative body to inspect the records and premises, and investigate the
activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by
means or accounts, records, reports, testimony of witnesses, production of documents, or otherwise (De Leon, op.
cit., p. 64).

The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in
an administrative agency's performance of its rule-making or quasi-judicial functions. Notably, investigation is
indispensable to prosecution.

In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an
investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited
to investigating the facts and making findings in respect thereto. The Court laid down the test of determining whether
an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the
exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the
only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances
presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is
an absence of judicial discretion and judgment.

The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents.
The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the
prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law
and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial
and not final. The body has no power to determine whether or not the extradition should be effected. That is the role
of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in
court.

It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by
certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in
the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the
provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty
provides that in case of urgency, a contracting party may request the provisional arrest of the person sought
pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be
automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069
provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]).
Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is
forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently
rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is
submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested
State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in
court (Section 6, Presidential Decree No. 1069).

Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is
not only an imagined threat to his liberty, but a very imminent one.

Because of these possible consequences, we conclude that the evaluation process is akin to an administrative
agency conducting an investigative proceeding, the consequences of which are essentially criminal since such
technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a
prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78, Rollo).
In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of
cases, we had occasion to make available to a respondent in an administrative case or investigation certain
constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice
Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been
advanced to an earlier stage in the proceedings, such as the right to counsel and the right against self-incrimination
(tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda
vs. Arizona, 384 U.S. 436).

In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination
under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions,
extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative
investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to
practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]),
pointed out that the revocation of one's license as a medical practitioner, is an even greater deprivation than
forfeiture of property.

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which
was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation
may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture
partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where
the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If
the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal
case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the
statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the
proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in
nature.

The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is
this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which,
based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence
over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable
and beyond recompense.

By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign
country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure
is akin to a preliminary investigation since both procedures may have the same result — the arrest and
imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a
preliminary investigation, which may result in the filing of an information against the respondent, can possibly lead to
his arrest, and to the deprivation of his liberty.

Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the
extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not well-taken. Wright is
not authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. The
characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post
factolaw. 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 preserved these principles of liberty and justice, must be held to be due
process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be
deemed non-compliance with treaty commitments.

The United States and the Philippines share a mutual concern about the suppression and punishment of crime in
their respective jurisdictions. At the same time, both States accord common due process protection to their
respective citizens.

The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical
language and terminology, but more importantly, they are alike in what their respective Supreme Courts have
expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation,
their dynamic and resilient character which make them capable of meeting every modern problem, and their having
been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. The
requirements of due process are interpreted in both the United States and the Philippines as not denying to the law
the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal
straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the
process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey,
211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and
Motel Owner's Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles
of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components — substantive due process which requires the intrinsic validity of the
law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which
consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and
competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).

True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal
and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the
proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice,
they may claim the right to appear therein and present their side and to refute the position of the opposing parties
(Cruz, Phil. Administrative Law, 1996 ed., p. 64).

In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules
of Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the
complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits and other
supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to
examine all other evidence submitted by the complainant.

These twin rights may, however, be considered dispensable in certain instances, such as:

1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a
nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative
charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters
showing obscene movies or like establishments which are immediate threats to public health and decency,
and the cancellation of a passport of a person sought for criminal prosecution;

2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from
enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the
summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary
appointee; and

3. Where the twin rights have previously been offered but the right to exercise them had not been claimed.

Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the
extradition proceedings fall under any of the described situations mentioned above?

Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering
that the subject treaty involves the U.S. Government.

American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition
Clause in the U.S. Constitution (Art. IV, §2 cl 2), and international extradition proceedings. In interstate rendition or
extradition, the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The
Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose,
which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged
with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or
the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must
appear on the face of the papers, such as the allegation that the person demanded was in the demanding state at
the time the offense charged was committed, and that the person demanded is charged with the commission of the
crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-
407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers
and documents prescribed by statute, which essentially include a copy of the instrument charging the person
demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory requirements with
respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer
jurisdiction on the government of the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision
requiring duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and other
instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is
directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p.
410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d 853).
In international proceedings, extradition treaties generally provide for the presentation to the executive authority of
the Requested State of a requisition or demand for the return of the alleged offender, and the designation of the
particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815).

In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999
from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and
principles, which are basically governed by a combination of treaties (with special reference to the RP-US
Extradition Treaty), federal statutes, and judicial decisions, to wit:

1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for
the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the
U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for
extradition is transmitted subsequently through the diplomatic channel.

2. The Department of State forwards the incoming Philippine extradition request to the Department of
Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request
has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide
reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable
offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the
federal statute that ensures admissibility at any subsequent extradition hearing.

3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18
U.S.C. §3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in
support of the extradition request (Ibid.)

4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign
country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to
conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits
extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he
committed the offenses charged (Ibid.)

5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a
"complaint made under oath, charging any person found within his jurisdiction" with having committed any of
the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it
is noted that a long line of American decisions pronounce that international extradition proceedings partake
of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or
innocence of the alleged fugitive (31A Am Jur 2d 826).]

6. If the court decides that the elements necessary for extradition are present, it incorporates its
determinations in factual findings and conclusions of law and certifies the person's extraditability. The court
then forwards this certification of extraditability to the Department of State for disposition by the Secretary of
State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C.
§3186).

7. The subject of an extradition request may not litigate questions concerning the motives of the requesting
government in seeking his extradition. However, a person facing extradition may present whatever
information he deems relevant to the Secretary of State, who makes the final determination whether to
surrender an individual to the foreign government concerned.

From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity — the
Department of State — which has the power to evaluate the request and the extradition documents in the beginning,
and, in the person of the Secretary of State, the power to act or not to act on the court's determination of
extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial
evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards
the request to the Department of Justice for the preparation and filing of the petition for extradition. Sadly, however,
the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of
Justice which has taken over the task of evaluating the request as well as thereafter, if so warranted, preparing,
filing, and prosecuting the petition for extradition.
Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be
extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's
primary concern is the possible delay in the evaluation process.

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

The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state
interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values
than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process
Clause, in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the
overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no
less, and perhaps more, than mediocre ones.

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

The United States, no doubt, shares the same interest as the Philippine Government that no right — that of liberty
— secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed
at the altar of expediency.

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

In the Philippine context, this Court's ruling is invoked:

One of the basic principles of the democratic system is that where the rights of the individual are concerned,
the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that
the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is
no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a
majority of one even as against the rest of the nation who would deny him that right (Association of Small
Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).

There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be
effective, requests for extradition or the surrender of accused or convicted persons must be processed
expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are,
however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous haste.
It does not carry a disregard of the basic principles inherent in "ordered liberty."

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in
the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum
state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close
evaluation of the extradition papers, he may hold that federal and statutory requirements, which are significantly
jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of
the requested state has the power to deny the behest from the requesting state. Accordingly, if after a careful
examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the
requirements of the law and the treaty, he shall not forward the request to the Department of Justice for the filing of
the extradition petition since non-compliance with the aforesaid requirements will not vest our government with
jurisdiction to effect the extradition.

In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with
the requirements of the law and the treaty since it even informed the U.S. Government of certain problems in the
extradition papers (such as those that are in Spanish and without the official English translation, and those that are
not properly authenticated). In fact, petitioner even admits that consultation meetings are still supposed to take place
between the lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature of
the evaluation, which cannot just be completed in an abbreviated period of time due to its intricacies, how then can
we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can
be dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent
precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the
peculiarity and deviant characteristic of the evaluation procedure. On one hand there is yet no extraditee, but
ironically on the other, it results in an administrative if adverse to the person involved, may cause his immediate
incarceration. The grant of the request shall lead to the filing of the extradition petition in court. The "accused" (as
Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition
petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed
under the treaty and the implementing law. The prejudice to the "accused" is thus blatant and manifest.

Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved
aside.

Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III
which reads:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well
as to government research data used as basis for policy development, shall be afforded the citizen, subject
to such limitations as may be provided by law.

The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the
right to information on matters of public concern, and (2) the corollary right of access to official records documents.
The general right guaranteed by said provision is the right to information on matters of public concern. In its
implementation, the right of access to official records is likewise conferred. These cognate or related rights are
"subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997
ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can
protect the values of democratic government (Ibid.).

Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fall under
the guarantee of the foregoing provision since the matters contained in the documents requested are not of public
concern. On the other hand, private respondent argues that the distinction between matters vested with public
interest and matters which are of purely private interest only becomes material when a third person, who is not
directly affected by the matters requested, invokes the right to information. However, if the person invoking the right
is the one directly affected thereby, his right to information becomes absolute.

The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public officer in
the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the
Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public
may want to know, either because these directly affect their lives or simply because such matters arouse the interest
of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest
is the people and any citizen has "standing".

When the individual himself is involved in official government action because said action has a direct bearing on his
life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right to be notified
under Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern. As to an
accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and
cause of the accusation against him.

The right to information is implemented by the right of access to information within the control of the government
(Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be
contained in official records, and in documents and papers pertaining to official acts, transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to official government action from the U.S.
Government. No official action from our country has yet been taken. Moreover, the papers have some relation to
matters of foreign relations with the U.S. Government. Consequently, if a third party invokes this constitutional
provision, stating that the extradition papers are matters of public concern since they may result in the extradition of
a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the interests necessary for
the proper functioning of the government. During the evaluation procedure, no official governmental action of our
own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast,
records of the extradition hearing would already fall under matters of public concern, because our government by
then shall have already made an official decision to grant the extradition request. The extradition of a fellow Filipino
would be forthcoming.

We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private
respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of
the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the
affirmative, is there really a conflict between the treaty and the due process clause in the Constitution?

First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the
provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only
to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations.

The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the
parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under
a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces
war as an instrument of national policy, adopts the generally accepted principles of international law as part of the
law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with nations."
Under the doctrine of incorporation, rules of international law form part of the law of the and land no further
legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public
International Law, 1992 ed., p. 12).

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations
in which there appears to be a conflict between a rule of international law and the provisions of the constitution or
statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to
be presumed that municipal law was enacted with proper regard for the generally accepted principles of
international law in observance of the observance of the Incorporation Clause in the above-cited constitutional
provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable
and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that
municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs.
Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of
municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that
international law has been made part of the law of the land does not pertain to or imply the primacy of international
law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most
countries, decrees that rules of international law are given equal standing with, but are not superior to, national
legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect — a treaty may repeal a
statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the
Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution
(Ibid.).

In the case at bar, is there really a conflict between international law and municipal or national law? En contrario,
these two components of the law of the land are not pined against each other. There is no occasion to choose which
of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as
implemented by Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee
at the evaluation stage of extradition proceedings. From the procedures earlier abstracted, after the filing of the
extradition petition and during the judicial determination of the propriety of extradition, the rights of notice and
hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights.
Reference to the U.S. extradition procedures also manifests this silence.

Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation
procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting
documents.

We disagree.

In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due
process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the
Extradition Law precludes these rights from a prospective extraditee. Similarly, American jurisprudence and
procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the
prospective extraditee may even request for copies of the extradition documents from the governor of the asylum
state, and if he does, his right to be supplied the same becomes a demandable right (35 C.J.S. 410).

Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure
of confidential information. Hence, the secrecy surrounding the action of the Department of Justice Panel of
Attorneys. The confidentiality argument is, however, overturned by petitioner's revelation that everything it refuses to
make available at this stage would be obtainable during trial. The Department of Justice states that the U.S. District
Court concerned has authorized the disclosure of certain grand jury information. If the information is truly
confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial.

A libertarian approach is thus called for under the premises.

One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and
procedures on extradition, for any prohibition against the conferment of the two basic due process rights of notice
and hearing during the evaluation stage of the extradition proceedings. We have to consider similar situations in
jurisprudence for an application by analogy.

Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since
both procedures may result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a
provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec.
20, Presidential Decree No. 1069). Following petitioner's theory, because there is no provision of its availability,
does this imply that for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15,
Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be suspended
except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that
bail is not available during the arrest of the prospective extraditee when the extradition petition has already been
filed in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of
the Constitution which provides that "[a]ll persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released
on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the
writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these contraventions are by virtue of
a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be
subservient thereto?

The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding
is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained
of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1
[1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997];
Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by
which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This
Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty.
Petitioner's fears that the Requesting State may have valid objections to the Requested State's non-performance of
its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration.

How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential
Decree No. 1069?

Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA
661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary
proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service Commission in
Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and
Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be
charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police,
Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707, although
summary dismissals may be effected without the necessity of a formal investigation, the minimum requirements of
due process still operate. As held in GSIS vs. Court of Appeals:
 . . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be
removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an
employee must be informed of the charges preferred against him, and that the normal way by which the
employee is so informed is by furnishing him with a copy of the charges against him. This is a basic
procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional
provision on due process. The second minimum requirement is that the employee charged with some
misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to
say, his defenses against the charges levelled against him and to present evidence in support of his
defenses. . . .

(at p. 671)

Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the
respondent.

In the case at bar, private respondent does not only face a clear and present danger of loss of property or
employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The
convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's
liberty is easily comprehensible.

We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside
legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements
(Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA
677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private
respondent's due process rights, although not guaranteed by statute or by treaty, are protected by constitutional
guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees
against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our
Constitution is premised.

Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority,
he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit.
Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to
grant him a reasonable period within which to file his comment with supporting evidence. The incidents in Civil Case
No. 99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed.

SO ORDERED.

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

Davide, Jr., C.J., I join Mr. Justice Puno in his dissent.
Puno, J., please see dissent.
Vitug, J., see separate opinion.
Kapunan, J., see separate concurring opinion.
Panganiban, J., please see my dissenting opinion.
Mendoza, J., I join the dissents of Puno and Panganiban, JJ.
Quisumbing, J., with concurring opinion.
Pardo, J., I join J. Puno & J. Panganiban.
Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban.
Ynares-Santiago, J., please see separate concurring opinion.

Separate Opinions

VITUG, J., separate opinion;

The only real issue before the Court, I would take it, is whether or not private respondent can validly ask for copies
of pertinent documents while the application for extradition against him is still undergoing process by the Executive
Department.

There is, I agree with the majority, a right of access to such extradition documents conformably with the provisions
of Article III, Section 7, of the Philippine Constitution.1 The constitutional right to free access to information of public
concern is circumscribed only by the fact that the desired information is not among the species exempted by law
from the operation of the constitutional guaranty and that the exercise of the right conforms with such reasonable
conditions as may be prescribed by law.

There is no hornbook rule to determine whether or not an information is of public concern. The term "public concern"
eludes exactitude, and it can easily embrace a broad spectrum of matters which the public may want to know either
because the subject thereof can affect their lives or simply because it arouses concern.2

I am not convinced that there is something so viciously wrong with, as to deny, the request of private respondent to
be furnished with copies of the extradition documents.

I add. The constitutional right to due process secures to everyone an opportunity to be heard, presupposing
foreknowledge of what he may be up against, and to submit any evidence that he may wish to proffer in an effort to
clear himself. This right is two-pronged — substantive and procedural due process — founded, in the first instance,
on Constitutional or statutory provisions, and in the second instance, on accepted rules of procedure.3 Substantive
due process looks into the extrinsic and intrinsic validity of the law that figures to interfere with the right of a person
to his life, liberty and property. Procedural due process — the more litigated of the two — focuses on the rules that
are established in order to ensure meaningful adjudication in the enforcement and implementation of the law. Like
"public concern," the term due process does not admit of any restrictive definition. Justice Frankfurter has viewed
this flexible concept, aptly I believe, as being ". . . compounded by history, reason, the past course of decisions, and
stout confidence in the democratic faith."4 The framers of our own Constitution, it would seem, have deliberately
intended, to make it malleable to the ever-changing milieu of society. Hitherto, it is dynamic and resilient, adaptable
to every situation calling for its application that makes it appropriate to accept an enlarged concept of the term as
and when there is a possibility that the right of an individual to life, liberty and property might be diffused.5 Verily,
whenever there is an imminent threat to the life, liberty or property of any person in any proceeding conducted by or
under the auspices of the State, his right to due process of law, when demanded, must not be ignored.

A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the Extradition Treaty between
the Government of the Republic of the Philippines and the Government of the United States of America provides
that in case of urgency, a Contracting Party may request the provisional arrest of the person prior to the
presentation of the request for extradition. I see implicit in this provision that even after the request for extradition is
made and before a petition for extradition is filed with the courts, the possibility of an arrest being made on the basis
of a mere evaluation by the Executive on the request for extradition by the foreign State cannot totally be
discounted.

The conclusion reached by the majority, I hasten to add, does not mean that the Executive Department should be
impeded in its evaluation of the extradition request. The right of the extraditee to be furnished, upon request, with a
copy of the relevant documents and to file his comment thereon is not necessarily anathema to the proceedings duly
mandated by the treaty to be made.

I vote to deny the petition.

KAPUNAN, J., separate concurring opinion;

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

The petition in the case at bar raises one and only issue, which is the validity of the Temporary Restraining Order
(TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in Civil Case No. 99-94684. The TRO
directed respondents in said case to:

. . . maintain the status quo by refraining from committing the acts complained of; from conducting further
proceedings in connection with the request of the United States Government for the extradition of the
petitioner; from filing the corresponding Petition with the Regional Trial Court; and from performing any act
directed to the extradition of the petitioner to the United States, for a period of twenty days from the service
on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.1 (Emphasis ours.)

The petition itself categorically states that "(t)he issue sought to be presented and litigated here is solely-the validity
of the TRO."2

Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear the case below or
that he has exceeded his jurisdiction in hearing the same. Nor is there any other act, ruling, order, or decision, apart
from the TRO already mentioned, of respondent Judge that is being challenged in the petition before us.

Since, as alleged in the petition, a copy of the TRO was served on respondents below on August 10, 1999, the TRO
ceased to be effective on August 30, 1999; consequently, the instant petition has become moot and academic. This
Court does not exercise jurisdiction over cases which are moot and academic or those not ripe for judicial
consideration.3

Assuming that the present case has not become moot and academic, still, it should be dismissed for lack of merit.

The substantive issues raised in this case are: (a) whether a person whose extradition is sought by a foreign state
has due process rights under Section 2, Article III of the 1997 Constitution before the Department of Justice as the
request for extradition is being evaluated, or whether due process rights maybe invoked only upon the filing of a
petition for extradition before a regional trial court; and (b) whether or not private respondent has a right of access to
extradition documents under Section 7, Article III of the 1997 Constitution.

Petitioner contends that due process rights such as the right to be informed of the basis of the request for extradition
and to have an opportunity to controvert are not provided in the extradition treaty or in P.D. 1069 and therefore does
not exist in this stage of the proceedings. Further, he argues that the documents sought to be furnished to private
respondent only involve private concerns, and not matters of public concern to which the people have a
constitutional right to access.

While the evaluation process conducted by the Department of Justice is not exactly a preliminary investigation of
criminal cases, it is akin to a preliminary investigation because it involves the basic constitutional rights of the person
sought to be extradited. A person ordered extradited is arrested, forcibly taken from his house, separated from his
family and delivered to a foreign state. His rights of abode, to privacy, liberty and pursuit of happiness are taken
away from him — a fate as harsh and cruel as a conviction of a criminal offense. For this reason, he is entitled to
have access to the evidence against him and the right to controvert them.

While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither does either prohibit
it. The right to due process is a universal basic right which is deemed written into our laws and treaties with foreign
countries.

Like a preliminary investigation, the evaluation by the Department of Justice of the extradition request and its
accompanying documents is to establish probable cause and to secure the innocent against hasty, malicious and
oppressive prosecution.

In this connection, it should be stressed that the evaluation procedure of the extradition request and its
accompanying documents by the Department of Justice cannot be characterized as a mere "ex-parte technical
assessment of the sufficiency" thereof. The function and responsibilities of the Department of Justice in evaluating
the extradition papers involve the exercise of judgment. They involve a determination whether the request for
extradition conforms fully to the requirements of the extradition treaty and whether the offense is extraditable. These
include, among others, whether the offense for which extradition is requested is a political or military offense (Article
3); whether the documents and other informations required under Article 7(2) have been provided (Article 7); and
whether the extraditable offense is punishable under the laws of both contracting parties by deprivation of liberty for
a period of more than one year (Article 2). Consequently, to arrive at a correct judgment, the parties involved are
entitled to be heard if the requirements of due process and equal protection are to be observed.

With respect to petitioner's claim that private respondent has no right to demand access to the documents relating to
the request for extradition, suffice it to say, that any document used in a proceeding that would jeopardize a
person's constitutional rights is matter of public concern. As Martin Luther King said, "injustice anywhere is a threat
to justice everywhere," so any violation of one's rights guaranteed by the Bill of Rights is everybody's concern
because they, one way or another, directly or indirectly, affect the rights of life and liberty of all the citizens as a
whole.

Due process rights in a preliminary investigation is now an established principle. The respondent has a right of
access to all of the evidence. He has the right to submit controverting evidence. The prosecuting official who
conducts the preliminary investigation is required to be neutral, objective, and impartial in resolving the issue of
probable cause. I see no reason why the same rights may not be accorded a person sought to be extradited at the
stage where the Department of Justice evaluates whether a petition for extradition would be filed before a regional
trial court. If denied such rights, not only denial of due process rights but of equal protection may be raised.

It is suggested that after a petition for extradition is filed with a regional trial court, the person sought to be extradited
may exercise all due process rights. He may then have access to all the records on the basis of which the request
for extradition has been made. He may controvert that evidence and raise all defenses he may consider appropriate.
That, it is urged, meets the due process requirement.

But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right to notice and
hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be
prevented.4 Like the filing of an information in a criminal case, the mere filing of a petition for extradition causes
immediate impairment of the liberty of the person sought to be extradited and a substantial curtailment of other
rights. His arrest may be immediately ordered by the regional trial court. He would be compelled to face an open
and public trial. He will be constrained to seek the assistance of counsel and incur other expenses of litigation. The
public eye would be directed at him with all the concomitant intrusions to his right to privacy. Where the liberty of a
person is at risk, and extradition strikes at the very core of liberty, invocation of due process rights can never be too
early.

QUISUMBING, J., concurring opinion;

As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest observations.

The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in our Constitution
should take precedence over treaty rights claimed by a contracting state. Stated otherwise, the constitutionally
mandated duties of our government to the individual deserve preferential consideration when they collide with its
treaty obligations to the government of another state. This is so although we recognize treaties as a source of
binding obligations under generally accepted principles of international law incorporated in our Constitution as part
of the law of the land.

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

Moreover, considering that the Extradition Treaty between the USA and Philippines appears mute on the specific
issue before us, the Court — in the exercise of its judicial power to find and state what the law is — has this rare
opportunity of setting a precedent that enhances respect for human rights and strengthens due process of law.

As both majority and dissenting colleagues in the Court will recognize, American authorities follow two tracks in
extradition proceedings: (1) the interstate practice where, pursuant to statute, the state Executive upon demand
furnishes the would be extraditee or counsel copies of pertinent documents as well as the request for extradition;
and (2) the international practice where the Executive department need not initially grant notice and hearing at all.
Rules of reciprocity and comity, however, should not bar us from applying internationally now what appears the
more reasonable and humane procedure, that is, the interstate practice among Americans themselves. For in this
case the American people should be among the most interested parties.

Truly, what private respondent is asking our Executive department (notice, copies of documents, and the opportunity
to protect himself at the earliest time against probable peril) does not, in my view, violate our Extradition Treaty with
the USA. His request if granted augurs well for transparency in interstate or intergovernmental relations rather than
secrecy which smacks of medieval diplomacy and the inquisition discredited long ago.

That private respondent is a Filipino citizen is not decisive of the issue here, although it is obviously pertinent. Even
if he were a resident alien (other than American perhaps), he is, in my view, entitled to our full protection against the
hazards of extradition (or deportation, similarly) from the very start. More so because, looking at the facts adduced
at the hearing and on the record of this case, the charges against him involve or are co-mingled with, if not rooted in,
certain offenses of a political nature or motivation such as the ones involving alleged financial contributions to a
major American political party. If so, long established is the principle that extradition could not be utilized for political
offenses or politically motivated charges.

There may, of course, be other charges against private respondent in the USA. But then they are, in my view,
already tainted there with political color due to the highly charged partisan campaign atmosphere now prevailing.
That private respondent's cases will be exploited as political fodder there is not far-fetched, hence the need here for
cautious but comprehensive deliberation on the matter at bar. For, above all, it is not only a Treaty provision we are
construing; it is about constitutional and human rights we are most concerned.

YNARES-SANTIAGO, J., concurring opinion;

I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's right to be given
what is due to him. I join in his exposition of this Court's constitutional duty to strike the correct balance between
overwhelming Government power and the protection of individual rights where only one person is involved.

However, I am constrained to write this short concurrence if only to pose the question of why there should be any
debate at all on a plea for protection of one's liberty which, if granted, will not result in any meaningful impediment of
thwarting any state policy and objectives.

I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked about, should first be
exposed to the indignity, expense, and anxiety of a public denunciation in court before he may be informed of what
the contracting states in an extradition treaty have against him. There is no question that everything which
respondent Jimenez now requests will be given to him during trial. Mr. Jimenez is only petitioning that, at this stage,
he should be informed why he may be deported from his own country.

I see no ill effects which would arise if the extradition request and supporting documents are shown to him now,
instead of later.

Petitioner Secretary of Justice states that his action on the extradition request and its supporting documents will
merely determine whether or not the Philippines is complying with its treaty obligations. He adds that, therefore, the
constitutional rights of an accused in all criminal prosecutions are not available to the private respondent.

The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent Jimenez's requests.
In short, the reasons are:

1. In evaluating the documents, the Department merely determines whether the procedures and
requirements under the relevant law and treaty have been complied with by the Requesting Government.
The constitutional rights of the accused in all criminal prosecutions are, therefore, not available.
 2. The United States Government has requested the Philippine Government to prevent unauthorized
disclosure of certain grand jury information.

3. The petitioner cannot hold in abeyance proceedings in connection with an extradition request. For
extradition to be an effective tool of criminal law enforcement, requests for surrender of accused or
convicted persons must be processed expeditiously.

I respectfully submit that any apprehensions in the Court arising from a denial of the petition — "breach of an
international obligation, rupture of states relations, forfeiture of confidence, national embarrassment, and a plethora
of other equally undesirable consequences" — are more illusory than real. Our country is not denying the extradition
of a person who must be extradited. Not one provision of the extradition treaty is violated. I cannot imagine the
United States taking issue over what, to it, would be a minor concession, perhaps a slight delay, accorded in the
name of human rights. On the other hand, the issue is fundamental in the Philippines. A citizen is invoking the
protection, in the context of a treaty obligation, of rights expressly guaranteed by the Philippine Constitution.

Until proved to be a valid subject for extradition, a person is presumed innocent or not covered by the sanctions of
either criminal law or international treaty. At any stage where a still prospective extraditee only seeks to know so that
he can prepare and prove that he should not be extradited, there should be no conflict over the extension to him of
constitutional protections guaranteed to aliens and citizens alike.

Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article 7 enumerates the
required documents and establishes the procedures under which the documents shall be submitted and admitted as
evidence. There is no specific provision on how that Secretary of Foreign Affairs should conduct his evaluation. The
Secretary of Justice is not even in the picture at this stage. Under petitioner's theory, silence in the treaty over a
citizen's rights during the evaluation stage is interpreted as deliberate exclusion by the contracting states of the right
to know. Silence is interpreted as the exclusion of the right to a preliminary examination or preliminary investigation
provided by the laws of either one of the two states.

The right to be informed of charges which may lead to court proceedings and result in a deprivation of liberty is
ordinarily routine. It is readily available to one against whom the state's coercive power has already been focused. I
fail to see how silence can be interpreted as exclusion. The treaty is silent because at this stage, the preliminary
procedure is still an internal matter. And when a law or treaty is silent, it means a right or privilege may be granted. It
is not the other way around.

The second reason alleging the need for secrecy and confidentiality is even less convincing. The explanation of
petitioner is self-contradictory. On one hand, petitioner asserts that the United States Government requested the
Philippine Government to prevent unauthorized disclosure of certain information. On the other hand, petitioner
declares that the United States has already secured orders from concerned District Courts authorizing the
disclosure of the same grand jury information to the Philippine Government and its law enforcement personnel.

Official permission has been given. The United States has no cause to complain about the disclosure of information
furnished to the Philippines.

Moreover, how can grand jury information and documents be considered confidential if they are going to be
introduced as evidence in adversely proceedings before a trial court? The only issue is whether or not Mr. Jimenez
should be extradited. His innocence or guilt of any crime will be determined in an American court. It is there where
prosecution strategies will be essential. If the Contracting States believed in a total non-divulging of information prior
to court hearings, they would have so provided in the extradition treaty. A positive provision making certain rights
unavailable cannot be implied from silence.

I cannot believe that the United States and the Philippines with identical constitutional provisions on due process
and basic rights should sustain such a myopic view in a situation where the grant of a right would not result in any
serious setbacks to criminal law enforcement.

It is obvious that any prospective extraditee wants to know if his identity as the person indicated has been
established. Considering the penchant of Asians to adopt American names when in America, the issue of whether or
not the prospective extraditee truly is the person charged in the United States becomes a valid question. It is not
only identity of the person which is involved. The crimes must also be unmistakably identified and their essential
elements clearly stated.

There are other preliminary matters in which respondent is interested. I see nothing in our laws or in the Treaty
which prohibits the prospective extraditee from knowing until after the start of trial whether or not the extradition
treaty applies to him.

Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941); and Salonga vs. Hon.
Paño, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to secure an innocent person against hasty,
faulty and, therefore, oppressive proceedings; to protect him from an open and extensively publicized accusation of
crimes; to spare him the trouble, expense, and anxiety of a public trial; and also to protect the state from useless
and expensive trails. Even if the purpose is only to determine whether or not the respondent is a proper subject for
extradition, he is nonetheless entitled to the guarantees of fairness and freedom accorded to those charged with
ordinary crimes in the Philippines.

The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be informed as part of
undesirable delaying tactics. This is most unfortunate. Any request for extradition must be viewed objectively and
impartially without any predisposition to granting it and, therefore, hastening the extradition process.

In the first place, any assistance which the evaluating official may get from the participation of respondent may well
point out deficiencies and insufficiencies in the extradition documents. It would incur greater delays if these are
discovered only during court trial. On the other hand, if, from respondent's participation, the evaluating official
discovers a case of mistaken identity, insufficient pleadings, inadequate complaints, or any ruinous shortcoming,
there would be no delays during trial. An unnecessary trial with all its complications would be avoided.

The right to be informed is related to the constitutional right to a speedy trial. The constitutional guarantee extends
to the speedy disposition of cases before all quasi-judicial and administrative bodies (Constitution, Art. III, Sec. 16).
Speedy disposition, however, does not mean the deliberate exclusion of the defendant or respondent from the
proceedings. As this Court rules in Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means
one free from vexatious, capricious and oppressive delays, its salutary objective being to assure that an innocent
person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt (in this case,
his being extradited) determined within the shortest possible time compatible with the presentation and
consideration of whatsoever legitimate defense he may interpose."

The right to be informed and the right to a preliminary hearing are not merely for respondent. They also serve the
interests of the State.
1âwphi 1.nêt

In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights of individual
respondent override the concerns of petitioner. There should be no hurried or indifferent effort to routinely comply
with all requests for extradition. I understand that this is truer in the United States than in other countries. Proposed
extraditees are given every legal protection available from the American justice system before they are extradited.
We serve under a government of limited powers and inalienable rights. Hence, this concurrence.

PUNO, J., dissenting opinion;

If the case at bar was strictly a criminal case which involves alone the right of an accused to due process, I would
have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R. Melo, without taking half a
pause. But the case at bar does not involve the guilt or innocence of an accused but the interpretation of an
extradition treaty where at stake is our government's international obligation to surrender to a foreign state a citizen
of its own so he can be tried for an alleged offense committed within that jurisdiction. The issues are of first
impression and the majority opinion dangerously takes us to unknown shoals in constitutional and international laws,
hence this dissenting opinion.

Extradition is a well-defined concept and is more a problem in international law. It is the "process by which persons
charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter
to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been
brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and
those who have been convicted in absentia. It does not apply to persons merely suspected of having committed an
offense but against who no charge has been laid or to a person whose presence is desired as a witness or for
obtaining or enforcing a civil judgment."1 The definition covers the private respondent who is charged with two (2)
counts of conspiracy to commit offense or to defraud the United States, four (4) counts of attempt to evade or defeat
tax, two (2) counts of fraud by wire, radio or television, six (6) counts of false statements or entries and thirty-three
(33) counts of election contributions in the name of another. There is an outstanding warrant of arrest against the
private respondent issued by the US District Court, Southern District of Florida.

A brief review of the history of extradition law will illumine our labor. Possibly the most authoritative commentator on
extradition today, M. Cherif Bassiouni, divides the history of extradition into four (4) periods: "(1) ancient times to
seventeenth century — a period revealing almost exclusive concern for political and religious offenders; (2) the
eighteenth century and half of the nineteenth century — a period of treaty-making chiefly concerned with military
offenders characterizing the condition of Europe during that period; (3) from 1833 to 1948 — a period of collective
concern in suppressing common criminality; and (4) post-1948 developments which ushered in a greater concern for
protecting the human rights of persons and revealed an awareness of the need to have international due process of
law regulate international relations."2

It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during these different
periods. Extradition was first practiced by the Egyptians, Chinese, Chaldeans and Assyro-Babylonians but their
basis for allowing extradition was unclear. Sometimes, it was granted due to pacts; at other times, due to plain good
will.3 The classical commentators on international law thus focused their early views on the nature of the duty to
surrender an extraditee — whether the duty is legal or moral in character. Grotius and de Vattel led the school of
thought that international law imposed a legal duty called civitas maxima to extradite criminals.4 In sharp contrast,
Puffendorf and Billot led the school of thought that the so-called duty was but an "imperfect obligation which could
become enforceable only by a contract or agreement between states.5

Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no duty to
extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme Court in US
v. Rauscher,6held: ". . . . it is only in modern times that the nations of the earth have imposed upon themselves the
obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and
punishment. This has been done generally by treaties . . . Prior to these treaties, and apart from them there was no
well-defined obligation on one country to deliver up such fugitives to another; and though such delivery was often
made it was upon the principle of comity . . ."

Then came the long and still ongoing debate on what should be the subject of international law. The 20th century
saw the dramatic rise and fall of different types and hues of authoritarianism — the fascism of Italy's Mussolini and
Germany's Hitler, the militarism of Japan's Hirohito and the communism of Russia's Stalin, etc. The sinking of these
isms led to the elevation of the rights of the individual against the state. Indeed, some species of human rights have
already been accorded universal recognition.7 Today, the drive to internationalize rights of women and children is
also on high gear.8 The higher rating given to human rights in the hierarchy of values necessarily led to the re-
examination of rightful place of the individual in international law. Given the harshest eye is the moss-covered
doctrine that international law deals only with States and that individuals are not its subject. For its undesirable
corrally is the sub-doctrine that an individual's right in international law is a near cipher. Translated in extradition law,
the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of
international law, he is bereft of rights. An extraditee, so it was held, is a mere "object transported from one state to
the other as an exercise of the sovereign will of the two states involved."9 The re-examination consigned this
pernicious doctrine to the museum of ideas.10 The new thinkers of international law then gave a significant shape to
the role and rights of the individual in state-concluded treaties and other international agreements. So it was
declared by then US Ambassador Philip C. Jessup in audible italics: "A very large part of international affairs and,
thus, of the process of international accommodation, concerns the relations between legal persons known as states.
This is necessarily so. But it is no longer novel for the particular interest of the human being to break through the
mass of interstate relationship."11 The clarion call to re-engineer a new world order whose dominant interest would
transcend the parochial confines of national states was not unheeded. Among the world class scholars who joined
the search for the elusive ideological underpinnings of a new world order were Yale Professor Myres McDougal and
Mr. Justice Florentino Feliciano. In their seminal work. Law and Minimum World Public Order, they suggested that
the object of the new world should be "to obtain in particular situations and in the aggregate flow of situations the
outcome of a higher degree of conformity with the security goals of preservation, deterrence, restoration,
rehabilitation and reconstruction of all societies comprising the world community."12 Needless to stress, all these
prescient theses accelerated the move to recognize certain rights of the individual in international law.

We have yet to see the final and irrevocable place of individual rights, especially the rights of an extraditee, in the
realm of international law. In careful language, Bassiouni observes that today, "institutionalized conflicts between
states are still rationalized in terms of sovereignty, national interest, and national security, while human interests
continue to have limited, though growing impact on the decision-making processes which translate national values
and goals into specific national and international policy."13

I belabor the international law aspect of extradition as the majority opinion hardly gives it a sideglance. It is my
humble submission that the first consideration that should guide us in the case at bar is that a bilateral treaty — the
RP-US Extradition Treaty — is the subject matter of the litigation. In our constitutional scheme, the making of a
treaty belongs to the executive and legislative departments of our government. Between these two departments, the
executive has a greater say in the making of a treaty. Under Section 21, Article VII of our Constitution, the President
has the sole power to negotiate treaties and international agreements although to be effective, they must be
concurred in by at least two thirds of all the members of the Senate. Section 20 of the same Article empowers the
President to contract or guarantee foreign loans with the prior concurrence of the Monetary Board. Section 16 of the
same Article gives the President the power to appoint ambassadors, other public ministers and consuls subject to
confirmation by the Commission on Appointments. In addition, the President has the power to deport undesirable
aliens. The concentration of these powers in the person of the President is not without a compelling consideration.
The conduct of foreign relations is full of complexities and consequences, sometimes with life and death significance
to the nation especially in times of war. It can only be entrusted to that department of government which can act on
the basis of the best available information and can decide with decisiveness. Beyond debate, the President is the
single most powerful official in our land for Section 1 of Article VII provides that "the executive power shall be vested
in the President of the Philippines," whereas Section 1 of Article VI states that "the legislative power shall be vested
in the Congress of the Philippines which shall consist of a Senate and a House of Representatives . . . except to the
extent reserved to the people by the provision on initiative and referendum," while Section 1 of Article VIII provides
that "judicial power shall be vested in one Supreme Court and in such lower courts as may be established by
law." Thus, we can see that executive power is vested in the President alone whereas legislative and judicial powers
are shared and scattered. It is also the President who possesses the most comprehensive and the most confidential
information about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events
all over the world. He has also unlimited access to ultra-sensitive military intelligence data.14 In fine, the presidential
role in foreign affairs is dominant and the President is traditionally accorded a wider degree of discretion in the
conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under less stringent standards, lest
their judicial repudiation lead to breach of an international obligation, rupture of state relations, forfeiture of
confidence, national embarrassment and a plethora of other problems with equally undesirable consequences.

These are some of the dominant policy considerations in international law that the Court must balance against the
claim of the private respondent that he has a right to be given the extradition documents against him and to
comment thereon even while they are still at the evaluation stage by the petitioner Secretary of Justice, an alter ego
of the President. The delicate questions of what constitutional rights and to what degree they can be claimed by an
extraditee do not admit of easy answers and have resulted in discrete approaches the world over.15 On one end of
the pole is the more liberal European approach. The European Court of Human Rights embraces the view that an
extraditee is entitled to the benefit of all relevant provisions of the European Convention for the Protection of Human
Rights and Fundamental Freedoms. It has held that ". . . in so far as a measure of the extradition has consequences
adversely affecting the enjoyment of a convention right, it may, assuming that the consequences are not too remote,
attract the obligations of a Contracting State under the relevant convention guarantee."16 At the other end of the pole
is the more cautious approach of the various Courts of Appeal in the United States. These courts have been more
conservative in light of the principle of separation of powers and their faith in the presumptive validity of executive
decisions. By and large, they adhere to the rule of non-inquiry under which the extraditing court refuses to examine
the requesting country's criminal justice system or consider allegations that the extraditee will be mistreated or
denied a fair trial in that country.17

The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-US Extradition
Treaty and our Constitution where we have to choose one over the other. Rather, it calls for
a harmonization between said treaty and our Constitution. To achieve this desirable objective, the Court should
consider whether the constitutional rights invoked by the private respondent have truly been violated and even
assuming so, whether he will be denied fundamental fairness. It is only when their violation will destroy the
respondent's right to fundamental fairness that his constitutional claims should be given primacy.

Given this balancing approach, it is my humble submission that considering all the facts and facets of the case, the
private respondent has not proved entitlement to the right he is claiming. The majority holds that the Constitution,
the RP-US extradition and P.D. No. 1069 do not prohibit respondent's claims, hence, it should be allowed. This is
too simplistic an approach. Rights do not necessarily arise from a vacuum. Silence of the law can even mean an
implied denial of a right. Also, constitutional litigations do not always involve a clear cut choice between right and
wrong. Sometimes, they involve a difficult choice between right against right. In these situations, there is need to
balance the contending rights and primacy is given to the right that will serve the interest of the nation at that
particular time. In such instances, the less compelling right is subjected to soft restraint but without smothering its
essence. Proceeding from this premise of relativism of rights, I venture the view that even
assuming arguendorespondent'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 claim the entire array of rights guaranteed by the Bill of Rights. Let it be
stressed that in an extradition proceeding, there is no accused and the guilt or innocence of the extraditee will not be
passed upon by our executive officials nor by the extradition judge. Hence, constitutional rights that are only relevant
do determine the guilt or innocence of an accused cannot be invoked by an extraditee. Indeed, an extradition
proceeding is summary in nature which is untrue of criminal proceedings.18 Even the rules of evidence are different in
an extradition proceeding. Admission of evidence is less stringent, again because the guilt of the extraditee is not
under litigation.19 It is not only the quality but even the quantum of evidence in extradition proceeding is different. In a
criminal case, an accused can only be convicted by proof beyond reasonable doubt.20 In an extradition proceeding,
an extraditee can be ordered extradited "upon showing of the existed of a prima facie case."21 If more need be said,
the nature of an extradition decision is different from a judicial decision whose finality cannot be changed by
executive fiat. Our courts22 may hold an individual extraditable but the ultimate decision to extradite the individual lies
in the hands of the Executive. Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that
"extradition shall not be granted if the executive authority of the Requested State determined that the request was
politically motivated, or that the offense is a military offense which is not punishable under non-military penal
legislation." In the United States, the Secretary of State exercises this ultimate power and is conceded considerable
discretion. He balances the equities of the case and the demands of the nation's foreign relations.23 In sum, he is not
straitjacketed by strict legal considerations like an ordinary court.

The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence of the
extraditee, the limited nature of the extradition proceeding, the availability of adequate remedies in favor of the
extraditee, and the traditional leeway given to the Executive in the conduct of foreign affairs have compelled courts
to put a high threshold before considering claims of individuals that enforcement of an extradition treaty will violate
their constitutional rights. Exemplifying such approach is the Supreme Court of Canada which has adopted a highly
deferential standard that emphasizes international comity and the executive's experience in international matters.24 It
continues to deny Canada's charter protection to extraditees unless the violation can be considered shocking to the
conscience.

In the case, at bar and with due respect, the ponencia inflates with too much significance the threat to liberty of the
private respondent to prop us its thesis that his constitutional rights to due process and access to information must
immediately be vindicated. Allegedly, respondent Jimenez stands in danger of provisional arrest, hence, the need
for him to be immediately furnished copies of documents accompanying the request for his
extradition. Respondent's fear of provisional arrest is not real. It is a self-imagined fear for the realities on the ground
show that the United States authorities have not manifested any desire to request for his arrest. On the contrary,
they filed the extradition request through the regular channel and, even with the pendency of the case at bar, they
have not moved for respondent's arrest on the ground of probable delay in the proceedings. To be sure, the issue of
whether respondent Jimenez will be provisionally arrested is now moot. Under Section 1 of Article 9 of the RP-US
Extradition Treaty, in relation to Section 20(a) of PD No. 1069, the general principle is enunciated that a request for
provisional arrest must be made pending receipt of the request for extradition. By filing the request for extradition,
the US authorities have implicitly decided not to move for respondent's provisional arrest. But more important,
a request for respondent's arrest does not mean he will be the victim of an arbitrary arrest. He will be given due
process before he can be arrested. Article 9 of the treaty provides:

PROVISIONAL ARREST
 1. In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending
presentation of the request for extradition. A request for provisional arrest may be transmitted through the
diplomatic channel or directly between the Philippine Department of Justice and the United States
Department of Justice.

2. The application for provisional arrest shall contain:

a) a description of the person sought;

b) the location of the person sought, if known;

c) a brief statements of the facts of the case, including, if possible, the time and location of the
offense;

d) a description of the laws violated;

e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt or judgment of

conviction against the person sought; and

f) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its application and the reasons
for any denial.

4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60)
days from the date of arrest pursuant to this Treaty if the executive authority of the Requested State has not
received the formal request for extradition and the supporting documents required in Article 7.

In relation to the above, Section 20 of P.D. No. 1069 provides:

Sec. 20. Provisional Arrest. — (a) In case of urgency, the requesting state may, pursuant to the relevant
treaty or convention and while the same remains in force, request for the provisional arrest of the accused,
pending receipt of the request for extradition made in accordance with Section 4 of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation,
Manila, either through the diplomatic channels or direct by post or telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt
of the request immediately secure a warrant for the provisional arrest of the accused from the presiding
judge of the Court of First Instance of the province or city having jurisdiction of the place, who shall issue the
warrant for the provisional arrest of the accused. The Director of the National Bureau of Investigation
through the Secretary of Foreign Affairs shall inform the requesting state of the result of its request.

(d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign Affairs has not received
the request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be
released from custody.

The due process protection of the private-respondent against arbitrary arrest is written in cyrillic letters in these two
(2) related provisions. It is self-evident under these provisions that a request for provisional arrest does not mean it
will be granted ipso facto. The request must comply with certain requirements. It must be based on an "urgent"
factor. This is subject to verification and evaluation by our executive authorities. The request can be denied if not
based on a real exigency of if the supporting documents are insufficient. The protection of the respondent against
arbitrary provisional arrest does not stop on the administrative level. For even if the Director of the National Bureau
of Investigation agrees with the request for the provisional arrest of the respondent, still he has to apply for a judicial
warrant from the "presiding judge of the Court of First Instance (now RTC) of the province of city having jurisdiction
of the place. . . . ." It is a judge who will issue a warrant for the provisional arrest of the respondent. The judge has
comply with Section 2, Article III of the Constitution which provides that "no . . . warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the . . . persons or things to be
seized." The message that leaps to the eye is that compliance with this requirements precludes any arbitrary arrest.

In light of all these considerations, I respectfully submit that denying respondent's constitutional claim to be
furnished all documents relating to the request for his extradition by the US authorities during their evaluation
stage will not subvert his right to fundamental fairness. It should be stressed that this is not a case where the
respondent will not be given an opportunity to know the basis of the request for his extradition. In truth, and contrary
to the impression of the majority, P.D. No. 1069 fixes the specific time when he will be given the papers constituting
the basis for his extradition. The time is when he is summoned by the extradition court and required to answer the
petition for extradition. Thus, Section 6 of P.D. No. 1069 provides:

Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. — (1) Immediately upon
receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to
appear and to answer the petition on the day and hour fixed in the order. He may issue a warrant for the
immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the
presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of
justice. Upon receipt of the answer within the time fixed, the presiding judge shall hear the case or set
another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each
upon the accused and the attorney having charge of the case.

Upon receipt of the summons and the petition, respondent is free to foist all defense available to him. Such an
opportunity does not deny him fairness which is the essence of due process of law.

Thus, with due respect, I submit that the ponencia failed to accord due importance to the international law aspect of
an extradition treaty as it unduly stressed its constitutional law dimension. This goes against the familiar learning
that in balancing the clashing interests involved in extradition treaty, national interest is more equal than the others.
While lately, humanitarian considerations are being factored in the equation, still the concept of extradition as a
national act is the guiding idea. Requesting and granting extradition remains a power and prerogative of the national
government of a State. The process still involves relations between international personalities.25 Needless to state, a
more deferential treatment should be given to national interest than to individual interest. Our national interest in
extraditing persons who have committed crimes in a foreign country are succinctly expressed in the whereas
clauses of P.D. No. 1069, viz:

WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of international law
as part of law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and
amity with all nations;

WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of
any other state to which the criminal may have escaped, because it saps the foundation of social life and is
an outrage upon humanity at large, and it is in the interest of civilized communities that crimes should not go
unpunished. . . . .

The increasing incidence of international and transnational crimes, the development of new technologies of
death, and the speed and scale of improvement of communication are factors which have virtually annihilated time
and distance. They make more compelling the vindication of national interest to insure that the punishment of
criminals should not be frustrated by the frontiers of territorial sovereignty. This overriding national interest must be
upheld as against respondent's weak constitutional claims which in no way amount to denial of fundamental
fairness.

At bottom, this case involves the respect that courts should accord to the Executive that concluded the RP-US
Extradition Treaty in the conduct of our foreign affairs. As early as 1800, the legendary John Marshall, then a
congressman, has opined that the power to extradite pursuant to a treaty rests in the executive branch as part of its
power to conduct foreign affairs.26 Courts have validated this forward-looking opinion in a catena of unbroken cases.
They defer to the judgment of the Executive on the necessities of our foreign affairs and on its view of the
requirements of international comity. The deferential attitude is dictated by the robust reality that of the three great
branches of our government, it is the Executive that is most qualified to guide the ship of the state on the known and
unknown continents of foreign relations. It is also compelled by considerations of the principle of separation of
powers for the Constitution has clearly allocated the power to conduct our foreign affairs to the Executive. I
respectfully submit that the majority decision has weakened the Executive by allowing nothing less than an
unconstitutional headbutt on the power of the Executive to conduct our foreign affairs. The majority should be
cautions in involving this Court in the conduct of the nation's foreign relations where the inviolable rule dictated by
necessity is that the nation should speak with one voice. We should not overlook the reality that courts by their
nature, are ill-equipped to fully comprehend the foreign policy dimension of a treaty, some of which are hidden in
shadows and silhouettes.

I vote to grant the petition.

PANGANIBAN, J., dissenting opinion;

With due respect, I dissent.

The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due process rights of
notice and hearing during the preliminary or evaluation stage of the extradition proceeding against him.

Two Staged in Extradition

There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation stage, whereby the
executive authority of the requested state ascertains whether the extradition request is supported by the documents
and information required under the Extradition Treaty; and (2) the extradition hearing, whereby the petition for
extradition is heard before a court of justice, which determines whether the accused should be extradited.

The instant petition refers only to the first stage. Private respondent claims that he has a right to be notified and to
be heard at this early stage. However, even the ponencia admits that neither the RP-US Extradition Treaty nor PD
1069 (the Philippine Extradition Law) expressly requires the Philippine government, upon receipt of the request for
extradition, to give copies thereof and its supporting documents to the prospective extraditee, much less to give him
an opportunity to be heard prior to the filing of the petition in court.

Notably, international extradition proceedings in the United States do not include the grant by the executive authority
of notice and hearing to the prospective extraditee at this initial stage. It is the judge or magistrate who is authorized
to issue a warrant of arrest and to hold a hearing to consider the evidence submitted in support of the extradition
request. In contrast, in interstate rendition, the governor must, upon demand, furnish the fugitive or his attorney
copies of the request and its accompanying documents, pursuant to statutory provisions.1 In the Philippines, there is
no similar statutory provision.

Evaluation Stage Essentially Ministerial

The evaluation stage simply involves the ascertainment by the foreign affairs secretary of whether the extradition
request is accompanied by the documents stated in paragraphs 2 and 3, Article 7 of the Treaty, relating to the
identity and the probable location of the fugitive; the facts of the offense and the procedural history of the case;
provisions of the law describing the essential elements of the offense charged and the punishment therefor; its
prescriptive period; such evidence as would provide probable cause for the arrest and the committal for trial of the
fugitive; and copies of the warrant or order of arrest and charging document. The foreign affairs secretary also sees
to it that these accompanying documents have been certified by the principal diplomatic or consular officer of the
Philippines in the United States, and that they are in English language or have English translations. Pursuant to
Article 3 of the Treaty, he also determines whether the request is politically motivated, and whether the offense
charged is a military offense not punishable under non-military penal legislation.2

Upon a finding of the secretary of foreign affairs that the extradition request and its supporting documents are
sufficient and complete in form and substance, he shall deliver the same to the justice secretary, who shall
immediately designate and authorize an attorney in his office to take charge of the case. The lawyer designated
shall then file a written petition with the proper regional trial court, with a prayer that the court take the extradition
request under consideration.3

When the Right to Notice and Hearing Becomes Available

According to private Respondent Jimenez, his right to due process during the preliminary stage emanates from our
Constitution, particularly Section 1, Article III thereof, which provides:

No person shall be deprived of life, liberty or property without due process of law.

He claims that this right arises immediately, because of the possibility that he may be provisionally arrested
pursuant to Article 9 of the RP-US Treaty, which reads:

In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending
presentation of the request for extradition. A request for provisional arrest may be transmitted through the
diplomatic channel or directly between the Philippine Department of Justice and the United States
Department of Justice.

xxx xxx xxx

Justice Melo's ponencia supports private respondent's contention. It states that there are two occasions wherein the
prospective extraditee may be deprived of liberty: (1) in case of a provisional arrest pending the submission of the
extradition request and (2) his temporary arrest during the pendency of the extradition petition in court.4 The second
instance is not in issue here, because no petition has yet been filed in court.

However, the above-quoted Article 9 on provisional arrest is not automatically operative at all times, and in
enforcement does not depend solely on the discretion of the requested state. From the wordings of the provision
itself, there are at least three requisites: (1) there must be an urgency, and (2) there is a corresponding request (3)
which must be made prior to the presentation of the request for extradition.

In the instant case, there appears to be no urgency characterizing the nature of the extradition of private
respondent. Petitioner does not claim any such urgency. There is no request from the United States for the
provisional arrest of Mark Jimenez either. And the secretary of justice states during the Oral Argument that he had
no intention of applying for the provisional arrest of private respondent.5 Finally, the formal request for extradition has
already been made; therefore, provisional arrest is not likely, as it should really come before the extradition request.6

Mark Jimenez Not in Jeopardy of Arrest

Under the outlined facts of this case, there is no open door for the application of Article 9, contrary to the
apprehension of private respondent. In other words, there is no actual danger that Jimenez will be provisionally
arrested or deprived of his liberty. There is as yet no threat that his rights would be trampled upon, pending the filing
in court of the petition for his extradition. Hence, there is no substantial gain to be achieved in requiring the foreign
affairs (or justice) secretary to notify and hear him during the preliminary stage, which basically involves only the
exercise of the ministerial power of checking the sufficiency of the documents attached to the extradition request.

It must be borne in mind that during the preliminary stage, the foreign affairs secretary's determination of whether
the offense charged is extraditable or politically motivated is merely preliminary. The same issue will be resolved by
the trial court.7 Moreover, it is also the power and the duty of the court, not the executive authority, to determine
whether there is sufficient evidence to establish probable cause that the extraditee committed the crimes
charged.8The sufficiency of the evidence of criminality is to be determined based on the laws of the requested
state.9 Private Respondent Jimenez will, therefore, definitely have his full opportunity before the court, in case an
extradition petition will indeed be filed, to be heard on all issues including the sufficiency of the documents
supporting the extradition request.10
Private respondent insists that the United States may still request his provisional arrest at any time. That is purely
speculative. It is elementary that this Court does not declare judgments or grant reliefs based on speculations,
surmises or conjectures.

In any event, even granting that the arrest of Jimenez is sought at any time despite the assurance of the justice
secretary that no such measure will be undertaken, our local laws and rules of procedure respecting the issuance of
a warrant of arrest will govern, there being no specific provision under the Extradition Treaty by which such warrant
should issue. Therefore, Jimenez will be entitled to all the rights accorded by the Constitution and the laws to any
person whose arrest is being sought. 1âw phi 1.nêt

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

The Need for Respondent Jimenez to Face Charges in the US

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

Conclusion

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.

Justice v. Hon. Lantion

GR No. 139465 Jan. 18 2000
MELO, J.

Lessons: Extradition Process

Laws: Extradition Treaty between the Philippines and the United States, PD 1069, Bill of Rights

FACTS:

In accordance to "Extradition Treaty Between the Government of the Republic of the Philippines and the
Government of the United States of America" (RP-US Extradition Treaty), the Department of Justice received from
the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of Mark
Jimenez to the United States attached with the Grand Jury Indictment, the warrant of arrest issued by the U.S.
District Court, Southern District of Florida, and other supporting documents on June 18, 1999. Mr. Jimenez was
charged with the following:
i. 18 USC 371 (Conspiracy to commit offense or to defraud the United States; 2 counts; Maximum Penalty: 5
years/count)
ii. 26 USC 7201 (Attempt to evade or defeat tax;4 counts; Maximum Penalty:5 years/count)
iii. 18 USC 1343 (Fraud by wire, radio, or television; 2 counts; Maximum Penalty: 5 years/count)
iv. 18 USC 1001 (False statement or entries; 6 counts; Maximum Penalty: 5 years/count)
v. 2 USC 441f (Election contributions in name of another; 33 counts; Maximum Penalty: less than 1 year)

The Department of Justice denied Mr. Jimenez request for extradition documents based
on the following:

i. 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 are under Section 4 of P.D. No. 1069. Evaluation by the Department of the
documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. Thus, the
constitutionally guaranteed rights of the accused in all criminal prosecutions are not available. It merely determines
the compliance of the Requesting Government with the procedures and requirements under the relevant law and
treaty. After the filing of the petition for extradition, the person sought to be extradited will be furnished by the court
with copies of the petition.
ii. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition
requests. Furthermore, Article 7 of the RP-US Extradition Treaty provides that the Philippine Government must
represent the interests of the United States in any proceedings arising out of a request for extradition. Thus, it must
comply with the request of the United States Government to prevent unauthorized disclosure of the subject
information.
iii. Article 26 of the Vienna Convention on the Law of Treaties provides that "Every 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.

Mr. Jimenez filed with filed with the Regional Trial Court of the National Capital Judicial Region a petition presided
over by the Honorable Ralph C. Lantion against the Secretary of Justice, the Secretary of Foreign Affairs, and the
Director of the National Bureau of Investigation:
i. mandamus to compel the Department to furnish the extradition documents
ii. certiorari to set aside Department’s letter dated July 13, 1999 denying his request
iii. prohibition to restrain the Department from considering the extradition request and from filing an extradition
petition in court
iv. enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the
extradition
v. application for the issuance of a temporary restraining order and a writ of preliminary injunction

Honorable Ralph C. Lantion ordered the Secretary of Justice, the Secretary of Foreign
Affairs and the Director of the National Bureau of Investigation 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, from filing the corresponding Petition with a Regional Trial court and from performing any act
directed to the extradition for a period of 20 days from service of the order.

Hon. Hilario G. Davide, Jr., Chief Justice of the Supreme Court of the Philippines ordered Hon. Lantion to cease
and desist from enforcing the order. Due to transcendental importance, the Court brushed aside peripheral
procedural matters which concern the proceedings in Civil Case No. 99-94684 and the TRO and proceded on the
issues.

ISSUE:
i. Whether or NOT the evaluation procedure is not a preliminary investigation nor akin to preliminary investigation
of criminal cases
ii. Whether or NOT the twin basic due process rights granted by Sec. 3, Rule 112 of the Rules of Court on the right
to be furnished a copy of the complaint, the affidavits, and other supporting documents and the right to submit
counter-affidavits and other supporting documents within 10 days from receipt is dispensable
iii. Whether or NOT the right of the people to information on matters of public concern granted under Sec. 7 of Art.
III of the 1987 Constitution is violated
HELD: DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition
request and its supporting papers, and to grant him a reasonable period within which to file his comment with
supporting evidence.

i. NO.

Extradition Request
The Extradition Request (Sec. 4. PD 1069) is made by the Foreign Diplomat of the
Requesting State, addressed to the Secretary of Foreign Affairs. The Secretary of Foreign Affairs has the executive
authority to conduct the evaluation process which, just like the extradition proceedings proper, belongs to a class by
itself or 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:
1) to make a technical assessment of the completeness and sufficiency of the extradition papers in form and
substance
2) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated
are not extraditable
3) 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.

The process may be characterized as an investigative or inquisitorial process (NOT an exercise of an administrative
body's quasi-judicial power) (Sec. 5. PD 1069 and Pars. 2 and 3, Art. 7 of the RP-US Extradition Treaty) that is
indispensable to prosecution. 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.
In Ruperto v. Torres, the Court laid down the test of determining whether an administrative body is exercising
judicial functions or merely investigatory functions applies to an administrative body authorized to evaluate
extradition documents. If the only purpose for investigation is to evaluate evidence submitted before it based on the
facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting
the parties, then there is an absence of judicial discretion and judgment. Thus, the role of the administrative body is
limited to an initial finding of whether or not the extradition petition can be filed in court. The court has the power to
determine whether or not the extradition should be effected. The evaluation procedure (in contrast to ordinary
investigations) may result in the deprivation of liberty of the prospective extraditee or accused (Sec. 2[c] of PD 1069)
at 2 stages:
1) provisional arrest of the prospective extraditee pending the submission of the request
This is 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 (Par. 1, Art. 9 of the RP-US Extradition Treaty) to prevent
flight but he shall be automatically discharged after 60 days (Par. 4 of the RP-US Extradition Treaty) or 20 days
(Sec. 20[d] PD 1069) if no request is submitted. Otherwise, he can be continuously detained, or if not, subsequently
rearrested (Par. 5, Art 9, RP-US Extradition Treaty)
2) temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Sec. 6,
PD 1069).
The peculiarity and deviant characteristic of the evaluation procedure is that:
1) there is yet no extradite; BUT
2) it results in an administrative if adverse to the person involved, may cause his immediate incarceration

The evaluation process partakes of the nature of a criminal investigation. Similar to the evaluation stage of
extradition proceedings, a preliminary investigation, which may result in the filing of an information against the
respondent, can possibly lead to his arrest, and to the deprivation of his liberty. 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.

In this case, the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999 (the
following day the Department of Justice received the request). Thus, the Department of Foreign Affairs failed to
discharge its duty of evaluating the same and its accompanying documents.

Extradition Petition
After delivery of the Extradition Request by the Secretary of Foreign Affairs to the Secretary of Justice, the latter
shall designate and authorize an attorney in his office to take charge of the case (Par. 1, Sec. 5, PD 1069). The
attorney shall file a written Extradition Petition with the proper regional trial court, with a prayer that the court take
the extradition request under consideration (Par. 2, Sec. 5, PD 1069). The presiding judge shall issue an order
summoning the prospective extraditee to appear and to answer the petition. 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 or to prevent flight (Par. 1, Sec. 6, PD 1069).

Extradition Hearing
The provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the
proceedings, shall apply during the Extradition Hearing (Par. 1, Sec. 9, PD 1069) The attorney may represent the
Requesting state. (Sec. 8, PD 1069). The Court’s decision on whether 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 or
whether or not the offense for which extradition is requested is a political one (Par. 3, Article 7 of the RP-US
Extradition Treaty) shall be final and immediately executory (Sec. 12, PD 1069) and appealable with the Court of
Appeals where the provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall
apply except for the required 15-day period to file brief (Sec. 13, PD 1069).

ii. YES.

Neither the Treaty nor the Extradition Law precludes the twin rights of notice and hearing from a prospective
extradite. In the absence of a law or principle of law, we must apply the rules of fair play. Petitioner contends that
United States requested the Philippine Government to prevent unauthorized disclosure of confidential
information. Such argument, however has been overturned by petitioner's revelation that everything it refuses to
make available at this stage would be obtainable during trial. If the information is truly confidential, the veil of
secrecy cannot be lifted at any stage of the extradition proceedings. 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.

However in this case, with the meticulous nature of the evaluation, which cannot just be completed in an
abbreviated period of time due to its intricacies and certain problems in the extradition papers (such as those that
are in Spanish and without the official English translation, and those that are not properly authenticated) it cannot to
be said to be urgent. Therefore, notice and hearing requirements of administrative due process cannot be
dispensed with and shelved aside.

iii. NO.
During the evaluation procedure, no official governmental action of our own government has as yet been done;
hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would
already fall under matters of public concern, because our government by then shall have already made an official
decision to grant the extradition request.

FACTS:
The Department of Justice received from the Department of Foreign Affairs a request from the United States for the
extradition of Mark Jimenez to the United States pursuant to PD No. 1609 prescribing the procedure for extradition of
persons who have committed a crime in a foreign country. Jimenez requested for copies of the request and that he be
given ample time to comment on said request. The petitioners denied the request pursuant to the RP-US Extradition
Treaty.

ISSUE:
Whether or not treaty stipulations must take precedence over an individual’s due process rights

HELD:
The human rights of person and the rights of the accused guaranteed in the Constitution should take precedence over
treaty rights claimed by a contracting party, the doctrine of incorporation is applied whenever municipal tribunals are
confronted with situation where there is conflict between a rule of the international law and the constitution. Efforts must
first be made in order to harmonize the provisions so as to give effect to both but if the conflict is irreconcilable, the
municipal law must be upheld. 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 municipal law in the municipal speher. In states where the constitution is the
highest law of the land, both statutes and treaties may be invalidated if they are in conflict with the constitution.
Facts:
This is a petition for review of a decision of the Manila Regional Trial Court (RTC). The Department of Justice received a
request from the Department of Foreign Affairs for the extradition of respondent Mark Jimenez to the U.S. The Grand Jury
Indictment. The warrant for his arrest, and other supporting documents for said extradition were attached along with the request.
Charges include:

1. Conspiracy to commit offense or to defraud the US

2. Attempt to evade or defeat tax
3. Fraud by wire, radio, or television
4. False statement or entries
5. Election contribution in name of another

The Department of Justice (DOJ), through a designated panel proceeded with the technical evaluation and assessment of the
extradition treaty which they found having matters needed to be addressed. Respondent, then requested for copies of all the
documents included in the extradition request and for him to be given ample time to assess it. The Secretary of Justice denied
request on the following grounds:

1. He found it premature to secure him copies prior to the completion of the evaluation. At that point in time, the DOJ is in the
process of evaluating whether the procedures and requirements under the relevant law (PD 1069 Philippine Extradition
Law) and treaty (RP-US Extradition Treaty) have been complied with by the Requesting Government. Evaluation by the
DOJ of the documents is not a preliminary investigation like in criminal cases making the constitutionally guaranteed rights
of the accused in criminal prosecution inapplicable.
2. The U.S. requested for the prevention of unauthorized disclosure of the information in the documents.
3. The department is not in position to hold in abeyance proceedings in connection with an extradition request, as Philippines
is bound to Vienna Convention on law of treaties such that every treaty in force is binding upon the parties.

Mark Jimenez then filed a petition against the Secretary of Justice. RTC presiding Judge Lantion favored Jimenez. Secretary of
Justice was made to issue a copy of the requested papers, as well as conducting further proceedings. Thus, this petition is now at
bar.

Issue/s:
Whether or not 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-US Extradition Treaty.

Discussions:
The doctrine of incorporation is applied whenever municipal tribunals are confronted with situations in which there appears to
be a conflict between a rule of international law and the provisions of the constitution or statute of a local state. Efforts should
be done to harmonize them. In a situation, however, where the conflict is irreconcilable and a choice has to be made between a
rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts.
The doctrine of incorporation decrees that rules of international law are given equal standing, but are not superior to, national
legislative enactments.
Ruling/s:
No. The human rights of person, Filipino or foreigner, and the rights of the accused guaranteed in our Constitution should take
precedence over treaty rights claimed by a contracting state. The duties of the 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.

FACTS:
Secretary Of Justice Franklin Drilon, representing the Government of the Republic of the Philippines, signed in Manila the
“extradition Treaty Between the Government of the Philippines and the Government of the U.S.A. The Philippine Senate
ratified the said Treaty.
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 Jiminez to the United States.
On the same day petitioner designate and authorizing a panel of attorneys to take charge of and to handle the case.
Pending evaluation of the aforestated extradition documents, Mark Jiminez through counsel, wrote a letter to Justice
Secretary requesting copies of the official extradition request from the U.S Government and that he be given ample time to
comment on the request after he shall have received copies of the requested papers but the petitioner denied the request
for the consistency of Article 7 of the RP-US Extradition Treaty stated in Article 7 that the Philippine Government must
present the interests of the United States in any proceedings arising out of a request for extradition.

ISSUE: Whether or not to uphold a citizen’s basic due process rights or the governments ironclad duties under a treaty.

RULING: Petition dismissed.

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. The duties of the 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.
The doctrine of incorporation is applied whenever municipal tribunals are confronted with situation in which there appears
to be a conflict between a rule of international law and the provision of the constitution or statute of the local state.

Petitioner (Secretary of Justice) is ordered to furnish Mark Jimenez copies of the extradition request and its supporting
papers, and to grant him (Mark Jimenez) a reasonable period within which to file his comment with supporting evidence.

“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.

“The doctrine of incorporation is applied whenever municipal tribunals are confronted with situations in which there
appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local
state.

“Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal
law was enacted with proper regard for the generally accepted principles of international law in observance of the
incorporation clause in the above cited constitutional provision.
“In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international
law and a municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts, for the
reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances.

“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 derogate 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 conflict with the constitution

[G.R. No. 139465. October 17, 2000]

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding

Judge, Regional Trial Court of Manila, Branch 25, and MARK B.
JIMENEZ, respondents.

RESOLUTION
PUNO, J.:

On January 18, 2000, by a vote of 9-6, we dismissed the petition at bar and ordered
the petitioner to furnish private respondent copies of the extradition request and its
supporting papers and to grant him a reasonable period within which to file his comment
with supporting evidence.[1]
On February 3, 2000, the petitioner timely filed an Urgent Motion for
Reconsideration. He assails the decision on the following grounds:

"The majority decision failed to appreciate the following facts and points of substance and of value
which, if considered, would alter the result of the case, thus:

I. There is a substantial difference between an evaluation process antecedent to the filing of an

extradition petition in court and a preliminary investigation.

II. Absence of notice and hearing during the evaluation process will not result in a denial of
fundamental fairness.

III. In the evaluation process, instituting a notice and hearing requirement satisfies no higher
objective.

IV. The deliberate omission of the notice and hearing requirement in the Philippine Extradition
Law is intended to prevent flight.

V. There is a need to balance the interest between the discretionary powers of government and the
rights of an individual.
VI. The instances cited in the assailed majority decision when the twin rights of notice and hearing
may be dispensed with in this case results in a non sequiturconclusion.

VII. Jimenez is not placed in imminent danger of arrest by the Executive Branch necessitating
notice and hearing.

VIII. By instituting a 'proceeding' not contemplated by PD No. 1069, the Supreme Court has
encroached upon the constitutional boundaries separating it from the other two co-equal branches
of government.

IX. Bail is not a matter of right in proceedings leading to extradition or in extradition

proceedings."[2]

On March 28, 2000, a 58-page Comment was filed by the private respondent Mark B.
Jimenez, opposing petitioners Urgent Motion for Reconsideration.
On April 5, 2000, petitioner filed an Urgent Motion to Allow Continuation
and Maintenance of Action and Filing of Reply. Thereafter, petitioner filed on June 7, 2000
a Manifestation with the attached Note 327/00 from the Embassy of Canada and Note No.
34 from the Security Bureau of the Hongkong SAR Government Secretariat. On August
15, 2000, private respondent filed a Manifestation and Motion for Leave to File Rejoinder
in the event that petitioner's April 5, 2000 Motion would be granted. Private respondent
also filed on August 18, 2000, a Motion to Expunge from the records petitioner's June 7,
2000 Manifestation with its attached note verbales. Except for the Motion to Allow
Continuation and Maintenance of Action, the Court denies these pending motions and
hereby resolves petitioner's Urgent Motion for Reconsideration.
The jugular issue is whether or not the private respondent is entitled to the due
process right to notice and hearing during the evaluation stage of the extradition process.
We now hold that private respondent is bereft of the right to notice and hearing during
the evaluation stage of the extradition process.
First. P.D. No. 1069[3] 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
its supporting papers, i.e., after the filing of the petition for extradition in the extradition
court, viz:

"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 . . . Upon
receipt of the answer, or should the accused after having received the summons fail to answer
within the time fixed, the presiding judge shall hear the case or set another date for the hearing
thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly
served each upon the accused and the attorney having charge of the case."
 It is of judicial notice that the summons includes the petition for extradition which will
be answered by the extraditee.
There is no provision in the RP-US Extradition Treaty and in P.D. No. 1069 which
gives an extraditee the right to demand from the petitioner Secretary of Justice copies of
the extradition request from the US government and its supporting documents and to
comment thereon while the request is still undergoing evaluation. We cannot write a
provision in the treaty giving private respondent that right where there is none. It is well-
settled that a "court cannot alter, amend, or add to a treaty by the insertion of any clause,
small or great, or dispense with any of its conditions and requirements or take away any
qualification, or integral part of any stipulation, upon any motion of equity, or general
convenience, or substantial justice."[4]
Second. All treaties, including the RP-US Extradition Treaty, should be interpreted
in light of their intent. Nothing less than the Vienna Convention on the Law of Treaties to
which the Philippines is a signatory provides that "a treaty shall be interpreted in good faith
in accordance with the ordinary meaning to be given to the terms of the treaty in their
context and in light of its object and purpose."[5] (emphasis supplied) The preambular
paragraphs of P.D. No. 1069 define its intent, viz:

"WHEREAS, under the Constitution[,] 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;

WHEREAS, in recognition of this principle the Philippines recently concluded an extradition treaty
with the Republic of Indonesia, and intends to conclude similar treaties with other
interested countries;

x x x." (emphasis supplied)

It cannot be gainsaid that today, countries like the Philippines forge extradition treaties to
arrest the dramatic rise of international and transnational crimes like terrorism and drug
trafficking. Extradition treaties provide the assurance that the punishment of these crimes
will not be frustrated by the frontiers of territorial sovereignty. Implicit in the treaties should
be the unbending commitment that the perpetrators of these crimes will not be coddled by
any signatory state.
It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will
minimize if not prevent the escape of extraditees from the long arm of the law and
expedite their trial. The submission of the private respondent, that as a probable
extraditee under the RP-US Extradition Treaty he should be furnished a copy of the US
government request for his extradition and its supporting documents even while they are
still under evaluation by petitioner Secretary of Justice, does not meet this
desideratum. The fear of the petitioner Secretary of Justice that the demanded notice
is equivalent to a notice to flee must be deeply rooted on the experience of the executive
branch of our government. As it comes from the branch of our government in charge of
the faithful execution of our laws, it deserves the careful consideration of this Court. In
addition, it cannot be gainsaid that private respondents demand for advance notice can
delay the summary process of executive evaluation of the extradition request and its
accompanying papers. The foresight of Justice Oliver Wendell Holmes did not miss this
danger. In 1911, he held:

"It is common in extradition cases to attempt to bring to bear all the factitious niceties of a criminal
trial at common law. But it is a waste of time . . . if there is presented, even in somewhat
untechnical form according to our ideas, such reasonable ground to suppose him guilty as to make
it proper that he should be tried, good faith to the demanding government requires his
surrender."[6] (emphasis supplied)

We erode no right of an extraditee when we do not allow time to stand still on his
prosecution. Justice is best served when done without delay.
Third. An equally compelling factor to consider is the understanding of the
parties themselves to the RP-US Extradition Treaty as well as the general interpretation
of the issue in question by other countries with similar treaties with the
Philippines. The rule is recognized that while courts have the power to interpret treaties,
the meaning given them by the departments of government particularly charged with their
negotiation and enforcement is accorded great weight.[7] The reason for the rule is laid
down in Santos III v. Northwest Orient Airlines, et al.,[8] where we stressed that a treaty
is a joint executive-legislative act which enjoys the presumption that "it was first carefully
studied and determined to be constitutional before it was adopted and given the force of
law in the country."
Our executive department of government, thru the Department of Foreign Affairs
(DFA) and the Department of Justice (DOJ), has steadfastly maintained that the RP-US
Extradition Treaty and P.D. No. 1069 do not grant the private respondent a right to notice
and hearing during the evaluation stage of an extradition process.[9] This understanding
of the treaty is shared by the US government, the other party to the treaty. [10]This
interpretation by the two governments cannot be given scant significance. It will be
presumptuous for the Court to assume that both governments did not understand the
terms of the treaty they concluded.
Yet, this is not all. Other countries with similar extradition treaties with the
Philippines have expressed the same interpretation adopted by the Philippine and
US governments. Canadian[11] and Hongkong[12] authorities, thru appropriate note verbales
communicated to our Department of Foreign Affairs, stated in unequivocal language that it
is not an international practice to afford a potential extraditee with a copy of the extradition
papers during the evaluation stage of the extradition process. We cannot disregard such a
convergence of views unless it is manifestly erroneous.
Fourth. Private respondent, however, peddles the postulate that he must be afforded
the right to notice and hearing as required by our Constitution. He buttresses his position
by likening an extradition proceeding to a criminal proceeding and the evaluation stage to
a preliminary investigation.
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.[13] 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.[14] 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."[15]

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.[16] In contradistinction to a criminal proceeding, the rules of
evidence in an extradition proceeding allow admission of evidence under less stringent
standards.[17] In terms of the quantum of evidence to be satisfied, a criminal case requires
proof beyond reasonable doubt for conviction[18] while a fugitive may be ordered extradited
"upon showing of the existence of a prima facie case."[19] Finally, unlike in a criminal case
where judgment becomes executory upon being rendered final, in an extradition
proceeding, our courts may adjudge an individual extraditable but the President has the
final discretion to extradite him.[20] 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.[21]
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."[22] The concept of
due process is flexible for "not all situations calling for procedural safeguards call for the
same kind of procedure."[23]
Fifth. Private respondent would also impress upon the Court the urgency of his right to
notice and hearing considering the alleged threat to his liberty "which may be more
priceless than life."[24] The supposed threat to private respondents liberty is perceived to
come from several provisions of the RP-US Extradition Treaty and P.D. No. 1069 which
allow provisional arrest and temporary detention.
We first deal with provisional arrest. The RP-US Extradition Treaty provides as follows:
"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 finding of guilt or judgment of conviction
against the person sought; and
f) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its application and the
reasons for any denial.

4. A person who is provisionally arrested may be discharged from custody upon the expiration of
sixty (60) days from the date of arrest pursuant to this Treaty if the executive authority of the
Requested State has not received the formal request for extradition and the supporting documents
required in Article 7." (emphasis supplied)

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." (emphasis supplied)
 Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide that private
respondent may be provisionally arrested only pending receipt of the request for
extradition. Our DFA has long received the extradition request from the United States
and has turned it over to the DOJ. It is undisputed that until today, the United States has
not requested for private respondents provisional arrest. Therefore, the threat to private
respondents liberty has passed. It is more imagined than real.
Nor can the threat to private respondents liberty come from 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 best serve the ends of justice. . .

(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 supplied)

It is evident from the above provision that a warrant of arrest for the temporary
detention of the accused pending the extradition hearing may only be issued by the
presiding judge of the extradition court upon filing of the petition for extradition. As the
extradition process is still in the evaluation stage of pertinent documents and there is no
certainty that a petition for extradition will be filed in the appropriate extradition court, the
threat to private respondents liberty is merely hypothetical.
Sixth. To be sure, private respondents 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."[25] The approach requires that we "take conscious and detailed consideration of the
interplay of interests observable in a given situation or type of situation."[26] These interests
usually consist in the exercise by an individual of his basic freedoms on the one hand, and
the governments promotion of fundamental public interest or policy objectives on the
other.[27]
In the case at bar, on one end of the balancing pole is the private respondents 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 to the United States of persons charged with violation of some
of its laws. Petitioner also emphasizes 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 the private
respondent is nebulous and the degree of prejudice he will allegedly suffer is weak,
we accord greater weight to the interests espoused by the government thru the
petitioner Secretary of Justice. In Angara v. Electoral Commission, we held that the
"Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government."[28]Under our
constitutional scheme, executive power is vested in the President of the
Philippines.[29] Executive power includes, among others, the power to contract or guarantee
foreign loans and the power to enter into treaties or international agreements.[30] The
task of safeguarding that these treaties are duly honored devolves upon the executive
department which has the competence and authority to so act in the international
arena.[31] It is traditionally held that the President has power and even supremacy over the
countrys foreign relations.[32] The executive department is aptly accorded deference on
matters of foreign relations considering the Presidents most comprehensive and most
confidential information about the international scene of which he is regularly briefed by
our diplomatic and consular officials. His access to ultra-sensitive military intelligence data
is also unlimited.[33] The deference we give to the executive department is dictated by the
principle of separation of powers. This principle is one of the cornerstones of our
democratic government. It cannot be eroded without endangering our government.
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 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.
In tilting the balance in favor of the interests of the State, the Court stresses 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 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."[34] We have explained why an extraditee has no right to notice and hearing during
the evaluation stage of the extradition process. As aforesaid, P.D. No. 1069 which
implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to
meet the evidence against him once the petition is filed in court. The time for the
extraditee to know the basis of the request for his extradition is merely moved to the filing
in court of the formal petition for extradition. The extraditee's right to know is momentarily
withheld during the evaluation stageof the extradition process to accommodate the
more compelling interest of the State to prevent escape of potential extraditees which can
be precipitated by premature information of the basis of the request for his extradition. No
less compelling at that stage of the extradition proceedings is the need to be more
deferential to the judgment of a co-equal branch of the government, the Executive, which
has been endowed by our Constitution with greater power over matters involving our
foreign relations. Needless to state, this balance of interests is not a static but a moving
balancewhich can be adjusted as the extradition process moves from the administrative
stage to the judicial stage and to the execution stage depending on factors that will come
into play. In sum, we rule that the temporary hold on private respondent's privilege of
notice and hearing is a soft restraint on his right to due process which will not deprive
him of fundamental fairness should he decide to resist the request for his extradition to
the United States. There is no denial of due process as long as fundamental fairness
is assured a party.
We end where we began. A myopic interpretation of the due process clause would not
suffice to resolve the conflicting rights in the case at bar.With the global village shrinking at
a rapid pace, propelled as it is by technological leaps in transportation and
communication, we need to push further back our horizons and work with the rest of the
civilized nations and move closer to the universal goals of "peace, equality, justice,
freedom, cooperation and amity with all nations."[35] In the end, it is the individual who will
reap the harvest of peace and prosperity from these efforts.
WHEREFORE, the Urgent Motion for Reconsideration is GRANTED. The Decision in
the case at bar promulgated on January18, 2000 is REVERSED. The assailed Order
issued by the public respondent judge on August 9, 1999 is SET ASIDE. The temporary
restraining order issued by this Court on August 17, 1999 is made PERMANENT. The
Regional Trial Court of Manila, Branch 25 is enjoined from conducting further proceedings
in Civil Case No. 99-94684.
SO ORDERED.

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 PURGANAN, Presiding Judge Regional Trial Court of Manila and
MARC JIMENEZ a.k.a. MARCIO BATACAN CRESPO, respondent

Davide Jr., CJ, Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Morales and Callejo, Sr.

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 first
assailed Order set for hearing petitioner’s application for the issuance of a warrant for the arrest of Respondent
Mark B. Jimenez.

The second challenged Order, on the other hand, directed the issuance of a warrant, but at the same time granted
bail to Jimenez. The dispositive portion of the Order reads as follows:

WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against respondent Mark
Jimenez. Accordingly let a Warrant for the arrest of the respondent be issued. Consequently and taking into
consideration Section 9, Rule 114 of the Revised Rules of Criminal Procedure, this Court fixes the
reasonable amount of bail for respondent’s temporary liberty at ONE MILLION PESOS (Php 1,000,000.00),
the same to be paid in cash.

Furthermore respondent is directed to immediately surrender to this Court his passport and the Bureau of
Immigration and Deportation is likewise directed to include the name of the respondent in its Hold Departure
List." 4

Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the taking of Jimenez
into legal custody.

The Facts

This Petition is really a sequel to 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 filing with the
RTC a petition for his extradition. The validity of the TRO was, however, assailed by the SOJ in a Petition before this
Court in the said GR No. 139465. Initially, the Court -- by a vote of 9-6 -- dismissed the Petition. The SOJ was
ordered to furnish private respondent copies of the extradition request and its supporting papers and to grant the
latter a reasonable period within which to file a comment and supporting evidence. 8

Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, 2000 Resolution. 9 By an
identical vote of 9-6 -- after three justices changed their votes -- it reconsidered and reversed its earlier Decision. It
held that private respondent was bereft of the right to notice and hearing during the evaluation stage of the
extradition process. This Resolution has become final and executory.
Finding no more legal obstacle, the Government of the United States of America, represented by the Philippine
DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Extradition which was docketed as Extradition
Case No. 01192061. The Petition alleged, inter alia, that Jimenez was the subject of an arrest warrant issued by the
United States District Court for the Southern District of Florida on April 15, 1999. The warrant had been issued in
connection with the following charges in Indictment No. 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 flight of
Jimenez, the Petition prayed for the issuance of an order for his "immediate arrest" pursuant to Section 6 of PD No.
1069.

Before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent Manifestation/Ex-Parte
Motion," 10 which prayed that petitioner’s application for an arrest warrant be set for hearing.

In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on June 5,
2001. In that hearing, petitioner manifested its reservations on the procedure adopted by the trial court allowing the
accused in an extradition case to be heard prior to the issuance of a warrant of arrest.

After the hearing, the court a quo required the parties to submit their respective memoranda. In his Memorandum,
Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post bail in the amount
of P100,000.

The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court below issued its
questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and fixing bail for his temporary
liberty at one million pesos in cash. 11 After he had surrendered his passport and posted the required cash bond,
Jimenez was granted provisional liberty via the challenged Order dated July 4, 2001. 12

Hence, this Petition. 13

Issues

Petitioner presents the following issues for the consideration of this Court:

I.

The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing
an arrest warrant under Section 6 of PD No. 1069.

II.

The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go on provisional
liberty because:

‘1. An extradition court has no power to authorize bail, in the absence of any law that provides for
such power.

‘2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and Section 4, Rule
114 (Bail) of the Rules of Court, as amended, which [were] relied upon, cannot be used as bases for
allowing bail in extradition proceedings.

‘3. The presumption is against bail in extradition proceedings or proceedings leading to extradition.
 ‘4. On the assumption that bail is available in extradition proceedings or proceedings leading to
extradition, bail is not a matter of right but only of discretion upon clear showing by the applicant of
the existence of special circumstances.

‘5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent
received no evidence of ‘special circumstances’ which may justify release on bail.

‘6. The risk that Jimenez will flee is high, and no special circumstance exists that will engender a
well-founded belief that he will not flee.

‘7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the
Philippines with its obligations under the RP-US Extradition Treaty.

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

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

The Court’s Ruling

The Petition is meritorious.

Preliminary Matters

Alleged Prematurity of Present Petition

Petitioner submits the following justifications for not filing a Motion for Reconsideration in the Extradition Court: "(1)
the issues were fully considered by such court after requiring the parties to submit their respective memoranda and
position papers on the matter and thus, the filing of a reconsideration motion would serve no useful purpose; (2) the
assailed orders are a patent nullity, absent factual and legal basis therefor; and (3) the need for relief is extremely
urgent, as the passage of sufficient time would give Jimenez ample opportunity to escape and avoid extradition; and
(4) the issues raised are purely of law." 16

For resorting directly to this Court instead of the CA, petitioner submits the following reasons: "(1) even if the petition
is lodged with the Court of Appeals and such appellate court takes cognizance of the issues and decides them, the
parties would still bring the matter to this Honorable Court to have the issues resolved once and for all [and] to have
a binding precedent that all lower courts ought to follow; (2) the Honorable Court of Appeals had in one case 17ruled
on the issue by disallowing bail but the court below refused to recognize the decision as a judicial guide and all other
courts might likewise adopt the same attitude of refusal; and (3) there are pending issues on bail both in the
extradition courts and the Court of Appeals, which, unless guided by the decision that this Honorable Court will
render in this case, would resolve to grant bail in favor of the potential extraditees and would give them opportunity
to flee and thus, cause adverse effect on the ability of the Philippines to comply with its obligations under existing
extradition treaties." 18

As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior court has been
given, through a motion for reconsideration, a chance to correct the errors imputed to it. This rule, though, has
certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved, or (3) in case of
urgency. 19 As a fourth exception, the Court has also ruled that the filing of a motion for reconsideration before
availment of the remedy of certiorari is not a sine qua non, when the questions raised are the same as those that
have already been squarely argued and exhaustively passed upon by the lower court. 20 Aside from being of this
nature, the issues in the present case also involve pure questions of law that are of public interest. Hence, a motion
for reconsideration may be dispensed with.

Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of certiorari when there
are special and important reasons therefor. 21 In Fortich v. Corona 22 we stated:

[T]he Supreme Court has the full discretionary power to take cognizance of the petition filed directly [before]
it if compelling reasons, or the nature and importance of the issues raised, warrant. This has been the
judicial policy to be observed and which has been reiterated in subsequent cases, namely: Uy vs. Contreras,
et. al., Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs. Legaspi, et. al. As we have further
stated in Cuaresma:

‘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 specifically 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 file
their petition first with the Court of Appeals would only result in a waste of time and money.

That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in our
jurisprudence. We reiterate what we said in Piczon vs. Court of Appeals: 23

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

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

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

In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we deem
it best to take cognizance of the present case. Such proceedings constitute a matter of first impression over which
there is, as yet, no local jurisprudence to guide lower courts.

Five Postulates of Extradition

The substantive issues raised in this case require an interpretation or construction of the treaty and the law on
extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its intent. 25Since
PD 1069 is intended as a guide for the implementation of extradition treaties to which the Philippines is a
signatory, 26 understanding certain postulates of extradition will aid us in properly deciding the issues raised here.

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

First, extradition treaties are entered into for the purpose of suppressing crime 27 by facilitating the arrest and
the custodial transfer 28 of a fugitive 29 from one state to the other.

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

Today, "a majority of nations in the world community have come to look upon extradition as the major
effective instrument of international co-operation in the suppression of crime." 30 It is the only regular system
that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance
with municipal and international law. 31

An important practical effect 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 efficient means of detection and the threat of
punishment play a significant role in the deterrence of crime within the territorial limits of a State, so
the existence of effective extradition arrangements and the consequent certainty of return to the
locus delicti commissi play a corresponding role in the deterrence of flight abroad in order to escape
the consequence of crime. x x x. From an absence of extradition arrangements flight abroad by the
ingenious criminal receives direct encouragement and thus indirectly does the commission of crime
itself." 32

In Secretary v. Lantion 33 we explained:

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

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

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

Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust,
each other’s legal system and judicial process. 34 More pointedly, our duly authorized representative’s signature on
an extradition treaty signifies our confidence in the capacity and the willingness of the other state to protect the basic
rights of the person sought to be extradited. 35 That signature signifies our full faith that the accused will be given,
upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place
therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its
unconstitutionality.

3. The Proceedings Are Sui Generis

Third, as pointed out in Secretary of Justice v. Lantion, 36 extradition proceedings are not criminal in nature. In
criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis -- in a
class by itself -- they are not.

An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the
rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not
involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in
the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant
to determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x.

xxxxxxxxx
 There are other differences between an extradition proceeding and a criminal proceeding. An extradition
proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a
criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under
less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof
beyond reasonable doubt for conviction while a fugitive may be ordered extradited ‘upon showing of the
existence of a prima facie case.’ Finally, unlike in a criminal case where judgment becomes executory upon
being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the
President has the final discretion to extradite him. The United States adheres to a similar practice whereby
the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of
the nation’s foreign relations before making the ultimate decision to extradite."

Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of
the person sought to be extradited. 37 Such determination during the extradition proceedings will only result in
needless duplication and delay. Extradition is merely a measure of international judicial assistance through which a
person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not
part of the function of the assisting authorities to enter into questions that are the prerogative of that
jurisdiction. 38The ultimate purpose of extradition proceedings in court is only to determine whether the extradition
request complies with the Extradition Treaty, and whether the person sought is extraditable. 39

4. Compliance Shall Be in Good Faith.

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

Fulfilling our obligations under the Extradition Treaty promotes comity 40 with the requesting state. On the other hand,
failure to fulfill our obligations thereunder paints a bad image of our country before the world community. Such
failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges
on reciprocity. 41

Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty. 42 This
principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as
set forth in the Treaty, are satisfied. In other words, "[t]he demanding government, 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 flight risks. This prima facie presumption finds reinforcement in
the experience 44 of the executive branch: nothing short of confinement can ensure that the accused will not flee the
jurisdiction of the requested state in order to thwart their extradition to the requesting state.

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

extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting
country. 45 Prior acts of herein respondent -- (1) leaving the requesting state right before the conclusion of his
indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting state is
seeking his return and that the crimes he is charged with are bailable -- eloquently speak of his aversion to the
processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances point
to an ever-present, underlying high risk of flight. He has demonstrated that he has the capacity and the will to flee.
Having fled once, what is there to stop him, given sufficient opportunity, from fleeing a second time?

First Substantive Issue:

Is Respondent Entitled to Notice and Hearing

Before the Issuance of a Warrant of Arrest?
Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice, that an
Extradition Petition has been filed against him, and that petitioner is seeking his arrest -- gives him notice to escape
and to avoid extradition. Moreover, petitioner pleads that such procedure may set a dangerous precedent, in that
those sought to be extradited -- including terrorists, mass murderers and war criminals -- may invoke it in future
extradition cases.

On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily deprived of his
constitutional right to liberty without due process. He further asserts that there is as yet no specific law or rule setting
forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has been filed in
court; ergo, the formulation of that procedure is within the discretion of the presiding judge.

Both parties cite Section 6 of PD 1069 in support of their arguments. It states:

SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon
receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to
appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the
immediate arrest of the accused which may be served any where within the Philippines if it appears to the
presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of
justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer
within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each
upon the accused and the attorney having charge of the case." (Emphasis ours)

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

1. On the Basis of the Extradition Law

It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word "immediate" to qualify the
arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest
warrant. Hearing entails sending notices to the opposing parties, 46 receiving facts and arguments 47 from them, 48and
giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can no longer be
considered "immediate." The law could not have intended the word as a mere superfluity but, on the whole, as a
means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should be
issued.

By using the phrase "if it appears," the law further conveys that accuracy is not as important as speed at such early
stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual situation,
immediately upon the filing of the petition. From the knowledge and the material then available to it, the court is
expected merely to get a good first impression -- a prima facie finding -- sufficient to make a speedy initial
determination as regards the arrest and detention of the accused.

Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following: (1)
Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial attorney in the Campaign
Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary
Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1 to
120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex BB,
the Exhibit I "Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers" and enclosed
Statements in two volumes; (4) Annex GG, the Exhibit J "Table of Contents for Supplemental Evidentiary Appendix"
with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L "Appendix of Witness [excerpts] Statements
Referenced in the Affidavit of Betty Steward" and enclosed Statements in two volumes. 49

It is evident that respondent judge could have already gotten an impression from these records adequate for him to
make an initial determination of whether the accused was someone who should immediately be arrested in order to
"best serve the ends of justice." He could have determined whether such facts and circumstances existed as would
lead a reasonably discreet and prudent person to believe that the extradition request was prima facie meritorious. In
point of fact, he actually concluded from these supporting documents that "probable cause" did exist. In the second
questioned Order, he stated:

In the instant petition, the documents sent by the US Government in support of [its] request for extradition of
herein respondent are enough to convince the Court of the existence of probable cause to proceed with the
hearing against the extraditee." 50

We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest
warrant was already evident from the Petition itself and its supporting documents. Hence, after having already
determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he
set the matter for hearing upon motion of Jimenez. 51

Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the accused to
answer after receiving the summons. In connection with the matter of immediate arrest, however, the word "hearing"
is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law
could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary 52 in
nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no
intention to punctuate with a hearing every little step in the entire proceedings.

It is taken for granted that the contracting parties intend something reasonable and something not
inconsistent with generally recognized principles of International Law, nor with previous treaty obligations
towards third States. If, therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to be
preferred to the unreasonable, the more reasonable to the less reasonable 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 affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized."

To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the
examination -- under oath or affirmation -- of complainants and the witnesses they may produce. There is no
requirement to notify and hear the accused before the issuance of warrants of arrest.

In Ho v. People 54 and in all the cases cited therein, never was a judge required to go to the extent of conducting a
hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. All we
required was that the "judge must have sufficient supporting documents upon which to make his independent
judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable
cause." 55

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

At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their
witnesses. 57 In the present case, validating the act of respondent judge and instituting the practice of hearing the
accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If the
accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the
issuance of a warrant of arrest,

what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort to
negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-
blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also
anathema to the summary nature of extraditions.

That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption of
a set of procedures more protective of the accused. If a different procedure were called for at all, a more restrictive
one -- not the opposite -- would be justified in view of respondent’s demonstrated predisposition to flee.

Since this is a matter of first impression, we deem it wise to restate the proper procedure:

Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as
soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they show
compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the
judge may

require the submission of further documentation or may personally examine the affiants and witnesses of the
petitioner. If, in spite of this study and examination, no prima facie finding 58 is possible, the petition may be
dismissed at the discretion of the judge.

On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue
a warrant for the arrest of the extraditee, who is at the 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 sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of
the writ of habeas corpus is suspended. Excessive bail shall not be required."

Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of all persons,
including those sought to be extradited. Supposedly, the only exceptions are the ones charged with offenses
punishable with reclusion perpetua, when evidence of guilt is strong. He also alleges the relevance to the present
case of Section 4 59 of Rule 114 of the Rules of Court which, insofar as practicable and consistent with the summary
nature of extradition proceedings, shall also apply according to Section 9 of PD 1069.
On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the right to bail
to a person who is the subject of an extradition request and arrest warrant.

Extradition Different from Ordinary Criminal Proceedings

We agree with petitioner. As suggested by the use of the word "conviction," the constitutional provision on bail
quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested
and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because
extradition courts do not render judgments of conviction or acquittal.

Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who
should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be
proved beyond reasonable doubt." 60 It follows that the constitutional provision on bail will not apply to a case like
extradition, where the presumption of innocence is not at issue.

The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the
writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available
only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds
application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with
invasion." 61 Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in
criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in
extradition proceedings that are not criminal in nature.

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

No Violation of Due Process

Respondent Jimenez cites the foreign case Paretti 62 in arguing that, constitutionally, "[n]o one shall be deprived of 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 find no arbitrariness, either, in the immediate deprivation of his liberty
prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently ensured by (1) the DOJ’s
filing in court the Petition with its supporting documents after a determination that the extradition request meets the
requirements of the law and the relevant treaty; (2) the extradition judge’s independent prima facie determination
that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest; and (3) his
opportunity, once he is under the court’s custody, to apply for bail as an exception to the no-initial-bail rule.

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

In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations in
order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve the Petition for
Extradition? His supposed immediate deprivation of liberty without the due process that he had previously shunned
pales against the government’s interest in fulfilling its Extradition Treaty obligations and in cooperating with the world
community in the suppression of crime. Indeed, "[c]onstitutional liberties do not exist in a vacuum; the due process
rights accorded to individuals must be carefully balanced against exigent and palpable government interests." 66

Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the
consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase the risk of
violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to be
extradited are able to evade arrest or escape from our custody. In the absence of any provision -- in the
Constitution, the law or the treaty -- expressly guaranteeing the right to bail in extradition proceedings, adopting the
practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming to the
Philippines to hide from or evade their prosecutors. 1âwphi1.nêt

The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14 67 of the
Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to cut short
their detention here. Likewise, their detention pending the resolution of extradition proceedings would fall into place
with the emphasis of the Extradition Law on the summary nature of extradition cases and the need for their speedy
disposition.

Exceptions to the No Bail Rule

The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the
constitutional duty to curb grave abuse of discretion 68 and tyranny, as well as the power to promulgate rules to
protect and enforce constitutional rights. 69 Furthermore, we believe that the right to due process is broad enough to
include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the "life, liberty or
property" of every person. It is "dynamic and resilient, adaptable to every situation calling for its application." 70

Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been
arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a
clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the
community; and (2) that there exist special, humanitarian and compelling circumstances 71 including, as a matter of
reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition
cases therein.

Since this exception has no express or specific statutory basis, and since it is derived essentially from general
principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with
clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a
judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it
partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any
intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital
international and bilateral interests of our country will not be unreasonably impeded or compromised. In short, while
this Court is ever protective of "the sporting idea of fair play," it also recognizes the limits of its own prerogatives and
the need to fulfill international obligations.

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

1. Alleged Disenfranchisement

While his extradition was pending, Respondent Jimenez was elected as a member of the House of Representatives.
On that basis, he claims that his detention will disenfranchise his Manila district of 600,000 residents. We are not
persuaded. In People v. Jalosjos, 72 the Court has already debunked the disenfranchisement argument when it ruled
thus:

When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of
the limitations on his freedom of action. They did so with the knowledge that he could achieve only such
legislative results which he could accomplish within the confines of prison. To give a more drastic illustration,
 if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing
that at any time, he may no longer serve his full term in office.

In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.

The Constitution guarantees: ‘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 official result in a substantial distinction that allows different treatment? Is being a
Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the
same class as all persons validly confined under law?

The performance of legitimate and even essential duties by public officers has never been an excuse to free
a person validly [from] prison. The duties imposed by the ‘mandate of the people’ are multifarious. The
accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The
accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24
members of the Senate, charged with the duties of legislation. Congress continues to function well in the
physical absence of one or a few of its members. Depending on the exigency of Government that has to be
addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The
importance of a function depends on the need for its exercise. The duty of a mother to nurse her infant is
most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those
with a particular affliction. An elective governor has to serve provincial constituents. A police officer must
maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different
classification from those others who are validly restrained by law.

A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious discriminations are made
in favor of or against groups or types of individuals.

The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify
exercise of government authority to regulate even if thereby certain groups may plausibly assert that their
interests are disregarded.

We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal
law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the
class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and
confinement are germane to the purposes of the law and apply to all those belonging to the same class." 73

It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was already
of public knowledge that the United States was requesting his extradition. Hence, his constituents were or should
have been prepared for the consequences of the extradition case against their representative, including his
detention pending the final resolution of the case. Premises considered and in line with Jalosjos, we are constrained
to rule against his claim that his election to public office is by itself a compelling reason to grant him bail.

2. Anticipated Delay

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

We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is quite
another matter that is not at issue here. Thus, any further discussion of this point would be merely anticipatory and
academic.
However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail not be
justified. Giving premium to delay by considering it as a special circumstance for the grant of bail would be
tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out and
unreasonably delay the extradition proceedings even more. This we cannot allow.

3. Not a Flight Risk?

Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of the extradition
request in June 1999; yet, he has not fled the country. True, he has not actually fled during the preliminary stages of
the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee as the process moves
forward to its conclusion, as he hears the footsteps of the requesting government inching closer and closer. That he
has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be within reach
of our government if and when it matters; that is, upon the resolution of the Petition for Extradition.

In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the applicant has
been taken into custody and prior to judgment, even after bail has been previously denied. In the present case, the
extradition court may continue hearing evidence on the application for bail, which may be granted in accordance
with the guidelines in this Decision.

Brief Refutation of Dissents

The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact, it is a cop-out.
The parties -- in particular, Respondent Jimenez -- have been given more than sufficient opportunity both by the trial
court and this Court to discuss fully and exhaustively private respondent’s claim to bail. As already stated, the RTC
set for hearing not only petitioner’s application for an arrest warrant, but also private respondent’s prayer for
temporary liberty. Thereafter required by the RTC were memoranda on the arrest, then position papers on the
application for bail, both of which were separately filed by the parties.

This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy Memoranda and the
Position Papers of both parties. Additionally, it has patiently heard 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 firm decision on the
merits, not a circuitous cop-out.

Then, there is also the suggestion that this Court is allegedly "disregarding basic freedoms when a case is one of
extradition." We believe that this charge is not only baseless, but also unfair. Suffice it to say that, in its length and
breath, this Decision has taken special cognizance of the rights to due process and fundamental fairness of potential
extraditees.

Summation

As we draw to a close, it is now time to summarize and stress these ten points:
 1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the
petition, supported by its annexes and the evidence that may be adduced during the hearing of the petition,
complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The
proceedings are intended merely to assist the requesting state in bringing the accused -- or the fugitive who
has illegally escaped -- back to its territory, so that the criminal process may proceed therein.

2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability
or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness
of the latter to grant basic rights to the accused in the pending criminal case therein.

3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is
determined. Consequently, an extradition case is not one in which the constitutional rights of the accused
are necessarily available. It is more akin, if at all, to a court’s request to police authorities for the arrest of the
accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of
the requesting state, the reasonable prima facie presumption is that the person would escape again if given
the opportunity.

4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make
a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the
Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to
require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If
convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the
potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition.

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

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

7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy
and the conscience of society. But it is also well aware of the limitations of its authority and of the need for
respect for the prerogatives of the other 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.

ARTEMIO V. PANGANIBAN
Associate Justice

WE CONCUR:

(signed)

HILARIO G. DAVIDE, JR.

Chief Justice

JOSUE N. BELLOSILLO REYNATO S. PUNO

Associate Justice Associate Justice

JOSE C. VITUG VICENTE V. MENDOZA

Associate Justice Associate Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO-MORALES ROMEO CALLEJO, SR.

Associate Justice Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

HILARIO G. DAVIDE, JR.

Chief Justice

Footnotes
1
Rollo, p. 74.

2
Id., pp. 122-125.

3
Presided by Judge Guillermo G. Purganan.

4
Order dated July 3, 2001, p. 4; rollo, p. 125.

5
322 SCRA 160, January 18, 2000; and 343 SCRA 377, October 17, 2000.

6
Signed on November 13, 1994, and concurred in by the Philippine Senate on November 29, 1995.

7
In Civil Case No. 99-94684.

8
The 40-page Decision (322 SCRA 160, January 18, 2000) was penned by Justice Jose A. R. Melo with the
concurrence of Justices Josue N. Bellosillo, Jose C. Vitug, Santiago M. Kapunan, Leonardo A. Quisumbing,
Fidel P. Purisima, Arturo B. Buena, Consuelo Ynares-Santiago and Sabino R. de Leon Jr. Dissenting were
Chief Justice Hilario Davide Jr.; and Justices Reynato S. Puno, Vicente V. Mendoza, Artemio V.
Panganiban, Bernardo P. Pardo and Minerva P. Reyes, with Justices Puno and Panganiban writing
separate Dissents.

9
Penned by Justice Puno and concurred in by Chief Justice Davide; and Justices Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Reyes and De Leon Jr. Dissenting were Justices Bellosillo, Melo, Vitug,
Kapunan, Buena and Santiago, with Justices Melo and Santiago writing separate Dissents (343 SCRA 377,
October 17, 2000).

10
Annex E of the Petition.

11
Annex M of the Petition.

12
Annex O (certified true xerox copy) of the Petition.

13
The case was deemed submitted for resolution on July 3, 2002, upon receipt by this Court of respondent’s
Counter-Manifestation. Earlier, on September 3, 2001, this Court received petitioner’s Memorandum signed
by Undersecretary Ma. Merceditas N. Gutierrez and State Counsel Claro B. Flores. Filed on August 23,
2001 was private respondent’s Memorandum signed by Attys. Mario Luza Bautista, Nick Emmanuel C.
Villaluz and Brigette M. da Costa of Poblador Bautista and Reyes.

14
Petition, pp. 9-10; rollo, pp. 10-11.

15
During the Oral Argument on August 14, 2001, the Court asked the parties to discuss three issues: 1) the
propriety of the filing of the Petition in this case before this Court; 2) whether Mr. Mark Jimenez is entitled to
notice and hearing before the issuance of a warrant for his arrest; and 3) whether the procedure followed by
respondent judge in issuing the warrant of arrest and granting bail was correct.

16
Petition, p. 3; rollo, p. 4.

17
Government of the United States of America, represented by the Philippine Department of Justice v. The
Regional Trial Court of Manila, Branch 47, and Nelson Marquez, CA-GR SP No. 61079, promulgated on
May 7, 2001.

18
Petition, pp. 3-4; rollo, pp. 4-5.

19
Phil. Air Lines Employees Association v. Phil. Air Lines, Inc., 111 SCRA 215, 219, January 30, 1982; citing
Central Bank v. Cloribel, 44 SCRA 307 April 11, 1972.
20
Progressive Development Corporation, Inc. v. Court of Appeals, 301 SCRA 637, January 22, 1999.

21
Malonzo v. Zamora, GR No. 137718, July 27, 1999, citing cases.

22
289 SCRA 624, April 24, 1998, per Martinez, J.

23
190 SCRA 31, 38, September 24, 1990, per Fernan, CJ.

24
Philippine National Bank v. Sayo Jr, 292 SCRA 202, 232, July 9, 1999, per Davide, CJ, citing People v.
Cuaresma, 172 SCRA 415, April 18, 1999; Defensor-Santiago v. Vasquez, 217 SCRA 633, January 27,
1993; Manalo v. Gloria, 236 SCRA 130, September 1, 1994. See also Cruz v. Secretary of Environment and
Natural Resources, 347 SCRA 128, December 6, 2000; Buklod ng Kawaning EIIB v. Zamora, GR No.
142801-802, July 10, 2001.

25
Agpalo, Statutory Construction, 1995 ed., p. 37, citing Macondray & Co. v. Eustaquio, 64 Phil. 446, July
16, 1937; Roldan v. Villaroman, 69 Phil. 12, October 18, 1939; Torres v. Limjap, 56 Phil. 141, September 21,
1931; Manila Lodge No. 761 v. Court of Appeals, 73 SCRA 162, September 30, 1976; People v.
Concepcion, 44 Phil. 126, November 29, 1922; Tanada v. Cuenco, 103 Phil. 1051, February 28, 1957;
Salaysay v. Castro, 98 Phil. 364, January 31, 1956.

26
Last "Whereas" clause of PD 1069.

27
See "Whereas" clause of PD 1069 and preamble of the RP-US Extradition Treaty.

28
Bassiouni, International Extradition, 1987 ed., p.68.

29
In Rodriguez v. Comelec (259 SCRA 296, July 24, 1996), the Court defined fugitive from justice as one
who flees after conviction to avoid punishment or who, after being charged, flees to avoid prosecution.

30
Bassiouni, supra, p. 21.

31
Id., p. 67.

32
Shearer, Extradition in International Law, 1971 ed., pp. 19-20.

33
Supra, p. 392, October 17, 2000, per Puno, J.

34
Coquia, "On Implementation of the US-RP Extradition Treaty," The Lawyers Review, August 31, 2000, p.
4.

35
See Bassiouni, supra, p. 546; citing 221 U.S. 508, 512 (1910).

36
Supra.

37
Secretary of Justice v. Lantion, supra.

38
Shearer, Extradition in International Law, 1971 ed., p. 157.

39
Id., p. 545.

40
In line with the Philippine policy of cooperation and amity with all nations set forth in Article II, Section 2,
Constitution.

41
The United States District Court, District of Nevada, Las Vegas, Nevada: "In the Matter of the Extradition
of Charlie Atong Ang, a fugitive from the country of the Philippines," [the court] has denied Mr. Ang’s motion
for bail, per petitioner’s Manifestation dated June 5, 2002.
42
Secretary of Justice v. Lantion, supra.

43
Wright v. Henkel, 190 U.S. 40, 62, March 23, 1903.

44
See footnote no. 41, Petition for Certiorari, p. 18; rollo p. 19; Manifestation dated June 5, 2002.

45
Persily, "International Extradition and the Right to Bail," 34 Stan. J. Int’l L. 407 (Summer, 1998).

46
Ibid.

47
39 CJS 875, citing People v. Blair, 33 NYS 2d 183, 190, 191; Amerada Petroleum Corporation v. Hester,
109 P. 2d 820, 821, 188 Okl. 394.

48
Id., citing Independent Life Ins. Co. v. Rodgers, 55 S.W. 2d 767, 165 Tenn. 447.

49
Petition for Extradition, pp. 2-3; rollo pp. 49-50.

50
Order dated July 3, 2001, p. 3; rollo, 124.

51
In the questioned July 3, 2001 Order (p. 4; rollo, p. 125), respondent judge admitted that the Annexes of
the Petition for Extradition had been received by the court a quo on May 25, 2001; yet, in its Order dated
May 23, 2001 ( rollo, p. 74), it already set for hearing the issuance of the warrant of arrest.

52
See §9, PD 1069.

53
Bassiouni, International Extradition, supra, p. 87; citing 1 L. Oppenheim, International Law, (8th ed., 1955),
pp. 952-53.

54
280 SCRA 365, October 9, 1997.

55
Id., p. 381, per Panganiban, J.

56
247 SCRA 652, 680, per Puno, J.

57
Ibid.; citing Allado v. Diokno, 233 SCRA 192, May 5, 1994.

58
Prima facie finding, not probable cause, is the more precise terminology because an extradition case is not
a criminal proceeding in which the latter phrase is commonly used.

59
SEC. 4. Bail, a matter of right; exception. – All persons in custody shall be admitted to bail as a matter of
right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or
after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or
Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or life imprisonment."

60
De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J. (later CJ).

61
§18, Art. VII, Constitution.

62
Paretti v. United States of America, 122 F. 3d. 758, May 6, 1997.

63
Garcia v. NLRC, GR No. 110494, November 18, 1996; Paat v. Court of Appeals, January 10, 1997.

64
See Central Bank of the Philippines v. Court of Appeals, 220 SCRA 536, March 20, 1993.
 65
Ibid. See also Busuego v. Court of Appeals, 304 SCRA 473, March 11, 1999.

66
Coquia, "On the Implementation of the US-RP Extradition Treaty," supra; citing Kelso v. US Department of
State, 13 F Supp. 291 [DDC 1998].

67
It states: "If the person sought consents in writing to surrender to the Requesting State, the Requested
State may surrender the person as expeditiously as possible without further proceedings."

68
§1, Art. VIII, Constitution.

69
§5, Art. VIII, Constitution.

70
I.A. Cruz, Constitutional Law, 1998 ed., p. 98.

71
Private respondent argues that the following cases -- In re Michell, 171 F. Rep. 289, June 30, 1909; United
States v. Kirby, Brennan and Artt, 106 F. 3d. 855, February 27, 1997 and 158 F. 3d. 462, October 9, 1998.
Beaulieu v. Hartigan, 460 F. Supp. 915, March 14, 1977; and 554 F. 2d 1, April 6, 1977 -- should be treated
as examples of special circumstances. In our view, however, they are not applicable to this case due to
factual differences. Hence we refrain from ruling on this argument of Jimenez.

72
324 SCRA 689, February 3, 2000, per Ynares-Santiago, J.

73
Id., pp. 700-702.

74
The US request for extradition was dated June 16, 1999; and yet, to date, more than three years later, the
Petition for Extradition is still languishing in the trial court.

Separate Opinion

BELLOSILLO, J.:

While I do not absolutely disagree with the well-reasoned ponencia of Mr. Justice Panganiban, I prefer nevertheless
to surf with the reflections of Mr. Justice Puno expressed in his Separate Opinion which, in essence, espouse the
balancing of the duty of the State to faithfully comply with its commitments under a treaty on one hand, and its
responsibility to protect the fundamental rights of its citizens on the other.

I wish to express some concerns however, particularly the crucial issue of whether a potential extraditee may apply
for and be released on bail during the pendency of the extradition proceedings. This to me should not be ignored.

In Northern PR Co. v. North Dakota, 1 Mr. Justice Frankfurter intoned: "The cardinal article of faith of our civilization
is the inviolable character of the individual." Thus, fundamental rights

and civil liberties, although not unlimited, occupy a place inferior to none in the hierarchy of constitutional values.
These are among the most cherished privileges enjoyed by free men, of which it is the sacred duty of the State to
maintain and protect against the erosion of possible encroachments, whether minute or extensive, foreign or
domestic.

It is lamentable however that the position taken by the Government in the instant case amounts to an unpardonable
abdication of the duty of protection which it owes to all within its territory under the expediency of a treaty.

The Government maintains that an extradition court has no power to authorize bail in the absence of any law
conferring such power; and that the 1987 Constitution, as well as the Rules of Court, as amended, applies only to
persons arrested and detained for violation of Philippine Laws, but not to extradition proceedings in which courts do
not render judgments of conviction or acquittal.
The argument is as ingenious as it is fallacious. It is settled that the power to admit to bail exists in extradition
proceedings, although as a matter of policy it may only be granted under "exceptional circumstances." This,
quintessentially, has been the doctrine advocated in a cavalcade of American cases starting with Wright v. Henkel,
190 US 40 (1902); and worth mentioning, of course, are Paretti v. United States, 112 F.3d 1363 (1977), Bealieu v.
Hartigan, 430 F. Supp. 915 (1977), and In re Kirby, et al., 106 F.3d 855(1996); which are also discussed extensively
by Mr. Justice Puno.

Apart from these cases, there is likewise a considerable number of authorities which support the general view that
the power to admit to bail is a necessary incident of the power to hear and determine cases. 2 In other words, one of
the inherent powers of the judiciary with regard to proceedings before it has been the admission of a prisoner to bail
where, in the exercise of his discretion, the judge deems it advisable. A fortiori, even in the absence of express
statutory grant of authority to courts, judicial power to admit to bail parties properly within their jurisdiction must be
deemed to exist. It must be mentioned, however, that this authority is not absolute for the Constitution, statutes and
the Rules of Court render it readily subject to limitations.

Significantly, both the extradition treaty between the United States and the Philippines, and the Philippine Extradition
Law (PD 1069) contain no provision expressly withholding from the courts the power to grant bail. Had the intention
of the parties to the treaty been to totally nullify the pre-existing power of the extradition court on the matter of bail,
they could have easily provided for it in the treaty. But since they had not done so, it would be reasonable to
presume that they had not so intended. Indeed, the treaty fails to even remotely suggest such judicial limitation
insisted upon by the Government.

Truly, there is neither logic nor persuasion to the suggestion that bail should only be allowed in criminal cases, or
that class of cases where courts must "render judgments of conviction or acquittal." Bail as a remedy is available
where there is deprivation of liberty prior or during trial. In the 1909 case of United States v. Go Siaco, 3 akin to the
situation confronting us, but involving a deportation proceeding, this Court allowed the potential deportee to post bail
although a deportation proceeding is not criminal in nature and there was then no law providing for bail in
deportation cases -

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 flight does not ipso facto call for denying his right to bail. Trial
judges must henceforth weigh carefully and judiciously other methods to assure the presence of the accused during
the proceedings and right after, when he ought to be deported already. Bail may be set at huge amounts or
passports cancelled and hold-departure orders issued or border patrols heightened, in order that the extraditee may
not flee from our jurisdiction. In this regard, while I agree that it is the extraditee's burden to prove the least
likelihood of flight, the extradition court is also entitled to presume that the executive branch has done all it can to
forestall his sudden disappearance. The executive branch cannot plead its helplessness and inutility to defeat the
grant of bail to the extraditee.
In any event, all things being equal, the personal circumstances of respondent Jimenez would negate any idea of
flight risk. He is a popular, even notorious, fellow whose face is more frequently than others plastered in the tri-
media. His stature as representative for a congressional district in Manila makes escape from Philippine jurisdiction
not only embarrassing for him but also constitutive of the offense of abandonment of duty. His family and business
interests are said to be strategically placed in this country. Indeed, where respondent Jimenez has more to lose
from flight, the possibility thereof appears remote and speculative.

Equity especially tilts in favor of respondent Jimenez in light of our ruling in Montano v. Ocampo 4 where we allowed
bail to an elected senator of the country who was charged with the capital offenses of murder and frustrated murder.
In resolving to grant bail in favor of Senator Montano, this Court took special notice of the accused's official and
social standing as senator from which we concluded that flight was remote if not nil despite the capital crimes he
had to face. In the same breath, respondent Jimenez is a duly elected Congressman with personal circumstances
that will not risk the ignominy of flight, considering further the crimes he is charged with are far less severe and
ignoble, since most of them had something to do with election campaign contributions than the seemingly serious
indictment for murder and frustrated murder against Senator Montano.

If we grant for the sake of argument that the possibility of flight exists, still respondent Jimenez' detention would be
unwarranted by law and the Constitution if the only purpose of the confinement is to eliminate a rare odd of danger
that is by no means actual, present and uncontrollable. After all the Government is not powerless to deal with or
prevent any threat by measures it has the ways and means to implement. The thought eloquently expressed by Mr.
Justice Jackson of the United States Supreme Court in connection with the application for bail of ten (10)
communists convicted by a lower court for advocacy of a violent overthrow of the United States Government is
pertinent and elucidating in principle -

The Government's alternative contention is that defendants, by misbehavior after conviction, have forfeited their
claim to bail. Grave public danger is said to result from what they may be expected to do, in addition to what they
have done since their conviction. If I assume that defendants are disposed to commit every opportune disloyal act
helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by
the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect society from predicted but
unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice
that I am loath to resort to it, even as a discretionary judicial technique to supplement conviction of such offenses as
those of which defendants stand convicted 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
unjustifiably 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 unjustified imprisonment of Communist leaders. Under no circumstances must we permit their symbolization of an
evil force in the world to be hallowed and glorified by any semblance of martyrdom. The way to avoid that risk is not
to jail these men until it is finally decided that they should stay jailed.

If the commentary is not comparable with ours on the issues presented, its underlying principle is of universal
application. If only to preserve our regime of civil liberties and stem a precedent where bail is unscrupulously
disallowed, respondent 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 sufficient surety or sureties to ensure that his extradition is not thwarted.

In our society - and even in the United States, I am sure - freedom from bodily restraint has always been at the core
of the civil liberties protected by the Constitution. To unduly sacrifice the civil liberties of an individual by reason of
an unfounded fear of being unable to fulfill treaty obligations, would be to render impotent the ideals of the dignity of
the human person, thereby destroying something of what is noble in our way of life. Certainly, if civil liberties may be
safely respected without imminently or actually impairing faithful compliance with treaty obligations, as in this case,
then there is no valid reason for disregarding them.

I wish to emphasize, however, lest the best of my intentions be misconstrued, that it is not my purpose here to
encourage, much less foment, dishonor of the treaty duly entered into by our Government. By all means we have to
fulfill all our international commitments, for they are not mere moral obligations to be enforced at the whims and
caprices of the State. They create legally binding obligations founded on the generally accepted principle in
international law of pacta sunt servanda which has been adopted as part of the law of our land. But, in so doing, we
must be ever conscious of the need to balance in one equation our commitments under the treaty, and the equally
important right of the individual to freedom from unnecessary restraint.

As the vast powers and enormous resources of both the United States of America and the Republic of the
Philippines are marshalled against a puny individual that is respondent Jimenez, he is certainly entitled to some
measure of protection to ensure that no unwarranted intrusions or undue curtailment of his liberty is committed.

I vote to REMAND the petition to the court a quo to ensure that proper safeguards are afforded respondent in the
course of the extradition proceedings.

JOSUE N. BELOSILLO

Footnotes

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; Whitfield 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.

Separate Opinion

PUNO, J:

This is a case of first impression involving not only the state’s interest to comply with its extradition treaty with the
United States but also its equally imperative duty to protect the constitutional rights of its citizens to liberty and to
due process. Our decision will affect important rights of all our citizens facing extradition in foreign countries.
Personalities should not therefore bend our decision one way or the other for the protection of the Bill of Rights
extends indifferently to all alike.

We begin with the unfudged facts. The records reveal that when the private respondent learned of the filing of the
petition for extradition against him and before the extradition court could issue any summons, he filed a motion to be
furnished a copy of the petition and to set for hearing petitioner’s request for the issuance of warrant of arrest.
Alternatively, he prayed that he be allowed to post bail for his temporary liberty. Respondent judge granted private
respondent’s motion. After hearing, he issued a warrant for the arrest of private respondent but allowed him to post
bail.
Petitioner assails the orders of the respondent judge and submits the following issues for resolution by this Court:

I.

The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack
or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an arrest
warrant under Section 6 of P.D. No. 1069.

II.

The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack
or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go on provisional liberty because:

1. An extradition court has no power to authorize bail in the absence of any law that provides for
such power.

2. Section 13, Article III (right to bail clause) of the 1987 Constitution and section 4, Rule 114 (Bail)
of the Rules of Court, as amended, which were relied upon, cannot be used as bases for allowing
bail in extradition proceedings.

3. The presumption is against bail in extradition proceedings or proceedings leading to extradition.

4. On the assumption that bail is available in extradition proceedings or proceedings leading to

extradition, bail is not a matter of right but only of discretion upon clear showing by the applicant of
the existence of special circumstances.

5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent
received no evidence of ‘special circumstances’ which may justify release on bail.

6. The risk that Jimenez will flee is high, and no special circumstance exists that will engender a
well-founded belief that he will not flee.

7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the
Philippines with its obligations under the RP-US Extradition Treaty.

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

The substantive issues are shortlisted 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 above, viz:

I.

The right to notice and hearing of private respondent as an extraditee.

The first issue demands a two-tiered analysis based on the following questions:

(1) Can the private respondent, as potential extraditee, demand as a matter of right, that he be furnished a
copy of the petition for extradition before the summons and/or the warrant of arrest are issued by the
extraditing court?
 (2) Can he demand a hearing for the purpose of determining the necessity and propriety of the issuance of a
warrant for his arrest?

The majority opinion submits that neither P.D. No. 1069 nor the Constitution authorize respondent judge to give the
private respondent a copy of the petition for extradition and immediately set for hearing the request for a warrant of
arrest against the latter.

I beg to disagree. There can be no disagreement that P.D. No. 1069 deserves an interpretation that would blend
with the purpose of the RP-US Extradition Treaty, i.e., the minimization of flight risk and the facilitation of an
extraditee’s surrender to the requesting state. But this stance should not be taken to mean that this Court can cast a
blind eye to the private respondent’s constitutional rights to life, liberty and to due process. While this Court is
obliged to accord due respect to the state’s interests to comply with its treaty obligations, it cannot also shirk from its
duty to protect the fundamental rights of its citizens. Thus, a full and careful weighing of these warring interests is
imperative as we did in its predecessor case Secretary of Justice vs. Lantion. 1 With due respect, it is my humble
submission that the majority failed to allocate the proper weight due to the constitutional rights of the private
respondent to life, liberty and to due process. These rights are now conceded in the civilized world as universal in
character and it was never the intent of the RP-US Extradition Treaty to trivialize their significance.

It bears emphasis that this Court’s ruling in Secretary of Justice vs. Lantion did not per se negate the constitutional
rights of a potential extraditee to liberty and due process. If we rejected private respondent’s invocation of these
rights 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 filing of the petition for extradition was merely hypothetical. 3 At that time, the
government of the United States has not requested for the provisional arrest of the private respondent. Likewise, the
petition for extradition has not yet been filed before the extradition court. Thus, after carefully balancing the
conflicting interests of the parties at the evaluation stage of the extradition proceedings, we upheld the state’s
interests under its extradition treaty with the United States, viz:

To be sure, private respondent’s plea for due process deserves serious consideration, involving as it does his
primordial right to liberty. His plea to due process, however, collides with important state interests which cannot also
be ignored for they serve the interest of the greater majority. The clash of rights demands a delicate balancing of
interests approach which is a ‘fundamental postulate of constitutional law.’ The approach requires that we ‘take
conscious and detailed consideration of the interplay of interests observable in a given type of situation.’ These
interests usually consist in the exercise of the individual of his basic freedoms on the one hand, and the
government’s promotion of fundamental public interests or policy objectives on the other.

In the case at bar, on one end of the balancing pole is the private respondent’s claim to due process predicated on
Section 1, Article III of the Constitution, which provides that ‘No person shall be deprived of life, liberty, or property
without due process of law…’ Without a bubble of doubt, procedural due process of law lies at the foundation of a
civilized society which accords paramount importance to justice and fairness. It has to be accorded the weight it
deserves.

This brings us to the other end of the balancing pole. Petitioner avers that the Court should give more weight to our
national commitment under the RP-US Extradition Treaty to expedite the extradition of its laws. Petitioner also
emphasized the need to defer to the judgment of the Executive on matters relating to foreign affairs in order not to
weaken if not violate the principle of separation of powers.

Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of the right
being claimed by private respondent is nebulous and the degree of prejudice he will allegedly suffer is weak, we
accord greater weight to the interests espoused by the government thru the petitioner Secretary of Justice." 4

We stressed that the denial of the private respondent’s privilege of notice and hearing during the evaluation stage of
the extradition proceeding is merely a soft restraint on his right to due process, viz:

In tilting the balance in favor of the interests of the State, we stress that it is not ruling that the private respondent
has no right to due process at all throughout the length and breadth of the extrajudicial proceedings. Procedural due
process requires a determination of what process is due, when it is due, and the degree of what is due. Stated
otherwise, a prior determination should be made as to whether procedural protections are not at all due and when
they are due, which in turn depends on the extent to which an individual will be condemned to suffer grievous
loss." 5

The extradition process against the private respondent has, however, moved away from the stage of evaluation of
documents by the executive officials of the Philippine government. A formal petition for the extradition of the private
respondent has now been filed with our court of justice. With this development, the competing interests of our
government and of the private respondent have developed new dimensions and they need to be rebalanced. In re-
adjusting the balance, I respectfully submit the following propositions, viz.

(a) A potential extraditee has the right to be notified of the filing of the petition for extradition.

It is my humble submission that from the moment the petition for extradition is filed before the extradition court, a
potential extraditee has the right to demand that he be furnished a copy of the petition. This right inheres from the
duty imposed by P.D. No. 1069 to the extradition judge to summon a potential extraditee to appear and answer the
petition "as soon as practicable." It is a mandatory duty that should be carried out by the extradition judge; the law
does not give him any discretion.

This submission is in accord with our ruling in Secretary of Justice vs. Lantion, 6 where we held that: "P.D. No. 1069
which implements the RP-US Extradition Treaty provides the time when an extraditee shall be furnished a copy of
the petition for extradition as well as the supporting papers, i.e., after the filing of the extradition in the extradition
court."

(b) The need for a hearing to determine whether a warrant of arrest should be issued against an extraditee is
addressed to the sound discretion of the extraditing judge.

The majority opinion holds that the private respondent extraditee is not entitled to notice and hearing before the
issuance of a warrant of arrest. It relies on section 6 of P.D. No. 1069, which provides:

Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of Notices.- (1) Immediately upon receipt of the
petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to
answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of the
accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate
arrest and temporary detention of the accused will serve the ends of justice. Upon receipt of the answer, or should
the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear
the case or set another date for hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the
accused and the attorney having charge of the accused." (emphasis supplied)

The majority interprets this provision as follows:

It is significant to note that section 6 of PD 1069, our Extradition Law, uses the word ‘immediate’ to qualify the arrest
of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest
warrant. Hearing entails sending notices to the opposing parties, receiving facts and arguments from them, and
giving them time to prepare and present such facts and arguments. Arrest subsequent to hearing can no longer be
considered ‘immediate.’ The law could have intended the word as a mere superfluity but, on the whole, as means of
imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should issue."

Clearly, the opinion leans heavily on the use of the word "immediate" which qualified the arrest of an extraditee. It
holds that "the qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant."

Again, I beg to disagree. I submit that the decision whether to send notice to an extraditee and hear him before
ordering his arrest should be left to the sound discretion of the extraditing judge. This is crystal clear from section 6
of P.D. No. 1069 which provides:
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 office of the judge was
called upon to insure that fundamental fairness is not denied to a potential extraditee. The extraditing judge is not to
act as a stamp pad but has to exercise his sound discretion on whether to issue the warrant. Under our law on
extradition, P.D. No. 1069, section 6, the discretion of the extradition judge on whether to order the arrest of the
extraditee is guided by the following consideration - - - whether the arrest will serve the ends of justice. The grant of
this judicial discretion will be rendered naught if we subject the action of the extraditing judge to unnecessary fetters.
With due respect, the view that the extraditing judge has no discretion to determine whether to notify and hear a
potential extraditee before ordering his arrest cuts too much on the freedom of action of the extraditing judge. I
submit that we should give the extraditing judge more discretion on the matter. If the extraditing judge feels that the
notice and hearing will allow an extraditee to flee, I have no doubt, he will immediately order his arrest. If, however,
he believes that notice and hearing will not pose such danger and that he needs to hear the parties to make a better
determination on whether the immediate arrest of an extraditee will serve the ends of justice, let us not deny him the
discretion to do so. The essence of discretion is freedom of action and we negate that essence when we impose
needless limits on the judge’s freedom of action.

Prescinding from these premises, I cannot also subscribe to the submission of the majority that the phrase "if it
appears" in section 6 of P.D. No. 1069 conveys the message that accuracy is not as important as speed in issuing a
warrant of arrest against a potential extraditee. We are concerned here with the priceless right to life and liberty, with
the right to due process before one’s liberty is taken away. We are not dealing with chattels. We should not lay down
the doctrine that speed should be preferred to accuracy for speed breeds recklessness and we cannot be reckless
with our right to life and liberty.

I agree 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 opinion on the
documents attached to the petition for extradition, viz:

Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following: (1)
Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage – trial attorney in the Campaign
Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary
Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1 to
120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex BB,
the Exhibit I ‘Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers’ and enclosed
Statements in two volumes; (4) Annex GG, the Exhibit J ‘Table of Contents for Supplemental Evidentiary Appendix’
with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L ‘Appendix of Witness [excerpts] Statements
Referenced in the Affidavit of Betty Steward’ and enclosed Statements in two volumes."

Even a cursory reading of these documents will not sustain the thesis that "it is evident that the respondent could
have already gotten an impression from these records adequate for him to make an initial determination of whether
the accused was someone who should immediately be arrested in order to best serve the ends of justice.

The documents are evidence tending to prove the guilt of the private respondent in regard to the cases filed against
him in the United States. They are not evidence, however, to prove that the private respondent will flee the
Philippine jurisdiction while his extradition petition is being heard. In other words, the petition for extradition may be
in due form but it does not establish sufficient factual basis to justify the immediate issuance of warrant of arrest
against the private respondent. The probability of his flight from our jurisdiction is central to the question of whether
he should be arrested. In the absence of evidence establishing that private respondent will flee, I cannot join the
ruling 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, it is postulated:

Moreover, the law specifies the court’s setting a hearing upon receipt of the answer or upon failure of the accused to
answer after receiving the summons. In connection with the matter of immediate arrest, however, the word ‘hearing’
is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law
could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary in
nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no
intention to punctuate with a hearing every little step in the entire proceedings."

Once more, I beg to disagree from this reading of our law on extradition. The law, it is true, did not provide that the
extraditing judge must hold a hearing before he issues a warrant of arrest. The call for a hearing is not mandatory
but neither is it prohibited. Ergo, the matter of whether there ought to be a hearing before issuance of warrant of
arrest is addressed to the discretion of the extraditing judge. The exercise of this discretion depends on the
configuration of the facts of each case.

II.

The right to bail of a potential extraditee during the pendency of the petition for extradition.

I respectfully submit that a potential extraditee can hinge his right to bail in our Constitution. The mere silence of our
extradition treaty with the Unites States and our extradition law (P.D. No. 1069) does not negate the right to bail of a
potential extraditee. Our adherence to the Universal Declaration of Human Rights and the International Covenant on
Civil and Political Rights, as well as international norms, customs and practices support an extraditee’s right to bail.
But while an extraditee may apply for bail, its grant depends on presentation of clear and convincing evidence that
the extraditee will not frustrate the ends of justice by fleeing from our jurisdiction. Again, I proffer the following
propositions:

First. The right to bail inheres from the rights to life, liberty and to due process.

Our Constitution jealously guards every person’s right to life and liberty against unwarranted state intrusion; indeed,
no state action is permitted to invade this forbidden zone except upon observance of due process of law. 7 Like the
privilege of the writ of habeas corpus, the right to bail gives flesh to the guarantee to liberty, without which, the right
to liberty can prove meaningless, and due process will only be an empty slogan.

However, unlike the privilege of habeas corpus which is principally a remedy against illegal restraint on liberty, 8 the
right to bail is available even when the reason for the detention is lawful. The purpose of bail is to relieve a person
the rigors of prolonged imprisonment until the main case against him is resolved, and at the same time, insure his
attendance when required by the authorities. 9 It is the prospect of prolonged detention, not the detention itself,
which offends the constitutional right to due process.

In Teehankee vs. Rovira, 10 this Court rejected the view which limits the right to bail to persons charged with criminal
offenses. We ruled that the constitutional right to bail applies to all persons, viz:

"This constitutional mandate refers to all persons, not only to persons against whom a complaint or information has
already been filed; it lays down the rule that all persons shall before conviction be bailable except those charged
with capital offense and the evidence of his guilt is strong. Of course, only those persons who have either been
arrested, detained or otherwise deprived of their liberty may have the occasion to seek the benefit of said provision.
But in order that a person can invoke this constitutional precept, it is not necessary that he should wait until a formal
complaint or information is filed against him. From the moment he is placed under arrest, detention or restraint by
officers of the law, he can claim this guarantee of Bill of Rights, and this right he retains unless and until he is
charged with a capital offense and the evidence against him is strong. Indeed, if, as admitted on all sides, the
precept protects those already charged under a formal complaint or information, there seems to be no legal or just
reason for denying its benefit to one against whom the proper authorities may yet conclude that there exists no
sufficient evidence of guilt. To place the former in a more favored position than the latter would be, to say the least,
anomalous and absurd. If there is presumption of innocence in favor of one already formally charged with a criminal
offense, a fortiori this presumption should be induced in favor of one yet so charged although arrested or detained."
(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 specific law which provides for such standard in deportation proceedings, i.e., Commonwealth
Act No. 613 or the Philippine Immigration Act of 1940. Neither did the case preclude the grant of bail on due process
grounds as in the case Mejoff vs. Director of Prisons, 16 where this Court held that while "temporary detention is a
necessary step in the process of exclusion and expulsion of undesirable aliens and that pending arrangements for
his deportation, the Government has a right to hold the undesirable alien under confinement for a reasonable length
of time, too long a detention may justify the issuance of a writ of habeas corpus" 17 and entitle an alien to be released
on bail, viz:

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

It must be noted that the Mejoff case was decided when C.A. No. 613 was already in effect. Similarly, in Chirskoff
vs. Commission of Immigration 19 the Court released the alien deportee on bail because his prolonged detention
violates his right to liberty, viz:

"[F]oreign nationals, not enemy, against whom no criminal charges have been formally made or judicial order
issued, may not be indefinitely kept in detention; that in the ‘Universal Declaration of Human Rights’ approved by the
General Assembly of the United Nations of which the Philippines is a member, the right to life and liberty and all
other fundamental rights as applied to human beings were proclaimed; that the theory on which the court is given
power to act is that the warrant of deportation, not having been executed, is functus officio and the alien is being
held without any authority of law; and that the possibility that the petitioner might join or aid disloyal elements if
turned out at large does not justify prolonged detention, the remedy in that case being to impose conditions in the
order of release and exact bail in reasonable amount with sufficient sureties."

In the case of Lao Gi vs. Court of Appeals, 20 this Court again held that although a deportation proceeding does not
partake of a criminal action, the constitutional right of a person to due process should be protected therein, viz:

Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is
a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional
right of such person to due process shall not be denied. Thus, the provisions of the Rules of Court of the Philippines
particularly on criminal procedure are applicable to deportation proceedings.

xxx xxx xxx

Before any charge should be filed in the CID a preliminary investigation must be conducted to determine if there is
sufficient cause to charge respondent for deportation. The issuance of warrants of arrest, arrests without a warrant
and service of warrant should be in accordance likewise with Rule 113 of the 1985 Rules of Criminal Procedure;
search warrants issued by the CID shall be governed by Rule 126 of the 1985 Rules of Criminal Procedure; and so
the matter of bail, motion to quash, trial, among others." 21 (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
specifically vested by statutes, or that, while bail should not be ordinarily granted in cases of foreign extradition,
those courts may not in any case, and whatever the special circumstances, extend that relief."

This dictum planted the seeds of the current federal common law on bail in international extradition proceedings. 33It
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

likelihood of delay and bailable offense in seeking extradition; 38 and

provisional arrest justifies grant of bail and disparity of treatment of persons on same charge. 39

The trend in recent years is for courts to liberalize the bail standard as they place primary emphasis on the
accused’s risk of flight. 40 The rationale of this trend was succinctly laid down in Beaulieu vs. Hartigan, 41 to wit:
"In none of the cases dealing with the issue of bail in an extradition setting was a district judge who granted bail
subsequently reversed by a reviewing court. Analysis of these cases leads me to the conclusion that the ‘special
circumstances’ doctrine of Wright, though still viable, must be viewed, in the light of modern concepts of
fundamental fairness, as providing a district judge with flexibility and discretion in considering whether bail should be
granted in these extradition cases. The standard scrutiny and concern exercised by a district judge should be
greater than in the typical bail situation, given the delicate nature of international relations. But one of the basic
questions facing a district judge in either situation is whether, under all circumstances, the petitioner is likely to
return to court when directed to do so. Fundamentally, it is a judgment call by the district court based on the totality
of circumstances, including extremely important consideration of the country’s treaty agreements with other nations;
a district judge should approach the bail situation in an extradition case with an added degree of caution, given the
additional factor of an international treaty."

Fifth. While an extraditee may apply for bail, its grant is discretionary depending on whether it will frustrate the ends
of justice.

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

Whether or not a potential extraditee is a flight risk is determined by two factors: (1) capacity to flee; and (2) intent to
flee. The combination of these two factors determines the degree of risk that the trial court must assess and weigh.
While there is no mathematical formula to guide the court in gauging the precise risk posed by a particular
combination of these two factors, it is commonsensical to assume that one without the other would not result to any
risk at all. For while one has the capacity to flee, if he does not intend to flee, the fear of flight would be for naught,
and vice versa.

Sixth. The burden of proof to justify the arrest and detention of the potential extraditee initially rests on the
petitioning executive authorities.

Under our extradition treaty and law, a potential extraditee may be arrested and detained under any of the following
circumstances: (a) upon the receipt of the request for the arrest of the potential extraditee and even before the filing
of the request for extradition; (b) upon the filing of the petition for extradition before the extradition court; or (c)
during the hearing of the petition for extradition.

In all the above circumstances, the issuance of a warrant of arrest depends on a showing that it will serve the ends
of justice. Initially, it is the burden of the petitioning executive authorities to prove that the warrant against the
extraditee will serve the ends of justice.

Seventh. After the warrant of arrest is issued, the burden of proof on the right to be admitted to bail shifts on the
potential extraditee.

In criminal cases, the presumption lies in favor of granting bail. This is so because of the constitutional presumption
of innocence, which is not overturned by the finding of probable cause upon which the warrant of arrest against the
accused was issued.

However, the presumption of innocence, from which the ordinary presumption in favor of granting bail emanates, is
inoperative in extradition cases. The issuance of the warrant of arrest in extradition cases is not based on the finding
that the accused is probably guilty of the offense for which he was charged in the requesting State. The warrant is
predicated on the finding that it will serve the ends of justice. Once issued, it raises a presumption of the continuing
presence of the circumstances upon which the issuance of the warrant was based. More often than not, this
circumstance is the probability that the extraditee will flee from the jurisdiction of the extraditing court. The burden of
proving admittance to bail is thus shifted to the extraditee.

It should be underscored that due process, which is the basis of bail in extradition proceeding, merely grants the
potential extraditee the opportunity to avail of the remedy of bail; it does not give him the right to demand that he be
released on bail under any circumstance. What the right to due process prohibits is the outright denial of the remedy
of bail; it does not prohibit a reasonable denial of the application for bail after carefully weighing all the
circumstances at hand.

III.

There is need to remand the case at bar to the extradition court

in fairness to the parties.

I respectfully submit that in fairness to both parties, the case should be remanded to the extradition court so that the
proper procedure and standard to determine the right to bail can be complied with. I put no blame on the extradition
court nor to the parties in this regard for we are still developing our jurisprudence on extradition. There is need for
remand for the following reasons, viz:

First. As aforediscussed, the petitioner has the burden of proof to show that the issuance of a warrant of arrest
against the private respondent will serve the ends of justice. This burden of proof can not be satisfied by the
petitioner in the case at bar by merely relying on the petition for extradition and its annexes. The petition and its
annexes do not prove that the private respondent is a flight risk. They only show that he has been indicted in the
court of the United States.

Second. On the issue of whether the private respondent is entitled to bail, the petitioner cannot rely on the
presumption against bail in extradition proceedings. The presumption against bail in extradition proceedings is
founded on the assumption that the extraditee is a fugitive from justice. Thus, it was explained in Beaulieu vs.
Hartigan, 42 viz:

"The vast majority of fugitives from justice in foreign countries fled from those countries knowing that charges have
been, or were likely to be, brought against them. Thus the typical subject of an extradition request has a
demonstrated propensity to flee rather than face charges and in general is likely to continue his flight if released
pending extradition." 43

The presumption against bail therefore arises only when the extraditee is a "fugitive from justice." To avail of this
presumption, it is a condition sine qua non that competent evidence be proffered that the extraditee is a fugitive from
justice.

In Marquez, Jr. vs. COMELEC, 44 we ruled that the term fugitive from justice "includes not only those who flee after
conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution." 45 In
Rodriguez vs. COMELEC, 46 we clarified that this definition indicates that "the intent to evade is the compelling factor
that animates one’s flight from a particular jurisdiction. And obviously, there can only be an intent to evade
prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a
promulgated judgment of conviction." 47

From the records, it appears that the claim of the petitioner that the private respondent is a fugitive from justice is
based on the following allegations: (a) that an investigation for the charges against him was then on going; and (b)
that upon learning that he was about to be charged, he fled from the United States. Thus, petitioner alleged:

Learning that an investigation involving his violations of United States federal laws was about to be terminated and
that he was about to be charged, Jimenez fled the United States jurisdiction. Under United States law, he is
therefore a fugitive from justice. A "fugitive from justice" is a person who commits a crime within a state and
withdraws himself from such jurisdiction (Ex Parte Montoya, 135 P.2d 281, 282, 170 Or. 499). Because he has fled
once, there is a greater likelihood that he will flee to another jurisdiction once more and frustrate extradition. Thus,
he poses a serious risk flight. The interest of justice will be best served if he is arrested and detained pending
extradition proceedings, which after all, is summary in nature." 48

It is clear, however, that the warrant of arrest in connection with Indictment No. 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 fled the jurisdiction of the
United States of America to evade prosecution and there would again be another risk of plight (sic) and to ensure
the proposed extraditee will be present during the extradition proceeding, therefore this request on the part of the
petitioner for the issuance of warrant of arrest. 50

xxx xxx xxx

Atty. Bautista: The Honorable Counsel has declared gratuitously that Mr. Mark Jimenez is a fugitive from the United
States, left the United States because of the indictment against him. That is totally false. The petition itself says that
a warrant for the arrest of Mr. Jimenez was issued in the United States in April 1999. Mr. Jimenez was here in the
Philippines on May 1998 and he has not left the country since then. So he left the United States long before, a year
before the warrant of arrest was issued, so how can we say that he is a fugitive from justice?" 51

That private respondent arrived in the country on May 10, 1998 is evidenced by the records and is not contradicted
by the petitioner. 52 On the other hand, petitioner’s claim that private respondent knew of the ongoing investigation
as well as of the existence of the charges against him when he fled from the United States is devoid of evidence.
Therefore, it would be fatal for the petitioner to rely alone on the presumption against bail in extradition cases to
justify the denial of bail of the private respondent.

In Rodriguez, petitioner arrived in the Philippines on June 25, 1985 and the complaint in Los Angeles was filed on
November 2, 1985. We ruled that "it was clearly impossible for Rodriguez to have known about such felony
complaint and arrest warrant - much less conviction- to speak of yet at such time." We rejected the contention 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 filing of the charges against petitioner. It was offered for the sole purpose of establishing
the fact that it was impossible for the petitioner not to have known of said investigation due to its magnitude.
Unfortunately, such conclusion misleads because investigations of this nature, no matter how extensive or
prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest
of those who would be charged." 53

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

Third. In granting bail to the private respondent, the standard used by the extraditing court is not clear. An
extradition proceeding is sui generis, hence, neither the standard of proof beyond reasonable doubt in criminal
cases nor the standard of proof of preponderance of evidence in civil cases can apply. Thus, in Lantion, 54 we
explained:

We are not persuaded. An extradition proceeding is sui generis. It is not a criminal proceeding which will call into
operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition
does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in
the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose
extradition papers are still undergoing evaluation. As held by the US Supreme Court in United States v. Galanis:

‘An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal
trial in this country do not shield an accused from extradition pursuant to a valid treaty.’

There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding
is summary in nature while a criminal proceeding involve a full blown trial. In contradistinction to a criminal
proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent
standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable
doubt for conviction while a fugitive may be ordered extradited ‘upon showing of the existence of a prima facie case.’
Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition
proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite
him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in
balancing the equities of the case and the demands of the nation’s foreign relations before making the ultimate
decision to extradite."

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

CONCLUSION

In conclusion, I offer the following views:

First. The filing of a petition for extradition does not per se justify the issuance of a warrant of arrest against an
extraditee. The petition, in some instances, may not contain sufficient allegations and proof on the issue of whether
the possible extraditee will escape from the jurisdiction of the extraditing court.

Second. When the petition for extradition does not provide sufficient basis for the arrest of the possible extraditee or
the grant of bail as in the case at bar, it is discretionary for the extradition court to call for a hearing to determine the
issue.

Third. An extraditee has the right to apply for bail. The right is rooted in the due process clause of the Constitution. It
cannot be denied simply because of the silence of our extradition treaty and law on the matter. The availability of the
right to bail is buttressed by our other treaties recognizing civil and political rights and by international norms,
customs and practices.

Fourth. The extraditee may apply for bail but its grant depends on the discretion of the extraditing court. The court
must satisfy itself that the bail will not frustrate the ends of justice.

Fifth. In deciding whether to grant bail or not to a possible extraditee, the extraditing court must follow a higher and
stricter standard. The extraditee must prove by clear and convincing evidence that he will not flee from the
jurisdiction of the extraditing court and will respect all its processes. In fine, that he will not frustrate the ends of
justice.

As emphasized, the case at bar has entered a new stage and the competing interests of the state and the rights of
the private respondent as an extraditee need to be rebalanced on the scale of justice. These competing rights and
interests have to be rebalanced for they have developed new dimensions and some facts may have to be accorded
greater or lesser weights to meet the more paramount interest of our people. This paramount interest is always in
motion as it is affected by the inexorable changes wrought in time both by man and machine.

In rebalancing these conflicting interests, we should take care not to diminish to a disturbing degree an extraditee’s
fundamental rights to life, liberty and due process. These rights have evolved as universal rights and extradition
treaties for all their utility were never meant to disparage, let alone, derogate them to inutility.

Likewise, in rebalancing these interests, we should not weaken the role of courts in tempering the harshness of
extradition proceedings. We should not therefore dilute the discretionary power of courts to determine whether a
hearing should be called before ordering the immediate arrest of a possible extraditee.
In counter-balance, we should not be soft on extraditees who are facing charges in countries where we have
extradition treaties. While rights are being universalized, so too are crimes being internationalized. We should not
allow our country to be the sanctuary of criminals who demand rights but deny the rights of others. Thus, there is
need to impose a higher and stricter standard before we grant bail to potential extraditees.

We are in the difficult step by step process of developing our jurisprudence in extradition. In Lantion, our first
extradition case, we held that an extraditee has no right to demand examination of the documents of extradition
while the request for extradition is just being processed and evaluated by the Departments of Foreign Affairs and
Justice. In the case at bar, our second extradition case, we have the opportunity to impose a higher and stricter
standard that will govern a plea for bail of an extraditee. I urge the Court to seize the rare opportunity for this can
well be our humble contribution to man’s relentless search for elusive peace.

Prescinding from all these premises, I vote to remand the case at bar to the extradition court so that it can follow the
proper procedure and higher standard in determining the right to bail of the private respondent.

REYNATO S. PUNO

Footnotes

1
343 SCRA 377 (2000).

2
Id., p. 389. "Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide that private respondent
may be provisionally arrested only pending receipt of the request for extradition. Our DFA has long received
the extradition request from the United States and has turned it over to the DOJ. It is undisputed that until
today, the United States has not requested for private respondent’s provisional arrest. Therefore, the threat
to private respondent’s liberty has passed. It is more imagined than real."

3
Id., p. 390. "It is evident from the above provision that a warrant of arrest for the temporary detention of the
accused pending the extradition hearing may only be issued by the presiding judge of the extradition court
upon filing of the petition for extradition. As the extradition is still in the evaluation stage of pertinent
documents and there is no certainty that a petition for extradition will be filed in the appropriate extradition
court, the threat to private respondent’s liberty is merely hypothetical."

4
Id., pp. 390-391.

5
Id., pp. 392-393.

6
Supra note 1.

7
1987 Constitution, Article III, section 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."

8
The writ of habeas corpus is an order issued by a court directed to a person detaining another,
commanding him to produce the body of the person whose liberty is being restrained at a designated time
and place, and asking him to show sufficient cause for the continued custody of the person so detained. See
Rule 102, Revised Rules of Court.

9
Paderanga vs. Court of Appeals, 247 SCRA 741 (1995), citing Almeda vs. Villaluz, 66 SCRA 38 (1975).

10
75 Phil. 634 (1945).
11
12 Phil. 490 (1909).

12
37 Phil. 53 (1917).

13
42 Phil. 415 (1921).

14
114 Phil. 368 (1962).

15
Tiu Chuan Hai, et al., vs. Deportation Board, 104 Phil. 949 (1958).

16
90 Phil. 70 (1951).

17
Id., p. 72.

18
Id., pp. 73-74.

19
90 Phil. 257 (1951).

20
180 SCRA 756 (1989).

21
Id., pp. 762-763.

22
A Recommended Approach to Bail in International Extradition Cases," 86 Mich. L. Rev. 599, 607 (1987).

23
Michigan v. Doran, 439 U.S. 282, 296 (1978). The US Supreme Court opined: "The extradition process
involves an extended restraint of liberty following arrest even more severe than that accompanying detention
with a single State. Extradition involves, at a minimum, administrative processing in both the asylum State
and the demanding State, and forced transportation in between. It surely is a significant restraint on liberty."

24
In Europe for instance, a State Party to an extradition treaty may refuse extradition on the ground that the
basic human rights of the fugitives will be violated by the requesting state if he is extradited. The primacy of
human rights norms over extradition treaties arises from the notion of jus cogens--- or those peremptory
norms which the Vienna Convention on the Law of Treaties acknowledges to be superior than any treaty
obligation because they form part of the ordre public of the international community or of a particular region.
See Article 53 of Vienna Convention on the Law of Treaties. See also, J. Dugard and C. Wyngaert,
"Reconciling Extradition with Human Rights," 92 AJIL 187-212 (1998).

25
Article 31(1), Vienna Convention on the Law of Treaties.

26
Id., Art. 31 (3) (b).

27
Preamble, United Nations Charter. Concern for human rights is also embodied in Article 13, par. 1 (b),
Article 55 (c) and Article 62(2) of the U.N. Charter.

28
The Universal Declaration of Human Rights (hereinafter cited as UDHR) was adopted by the United
Nations General Assembly on December 10, 1948. Although not a treaty, the principles of freedom
contained in the UDHR have been generally regarded as customary, hence, binding among the members of
the international community. See Mejoff vs. Director of Prisons, supra.

29
The UN General Assembly adopted the International Covenant on Civil and Political Rights (hereinafter
cited as ICCPR) on December 16, 1966. The Philippines signed the convention on December 19, 1966 but
ratified it only on October 23, 1986. On the other hand, the United States signed the convention on October
5, 1977 but ratified it only on June 8, 1992.

30
The UDHR provides that:
 "Article 1. All human beings are born free and equal in degree and rights;

Article 2. Everyone 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;

xxx xxx xxx

Article 8. Everyone 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;

Article 9. No one shall be subjected to arbitrary arrest, detention or exile"

Similarly, Article 9 of the ICCPR provides:

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of his liberty except on such grounds and in
accordance with such procedures as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and
shall be promptly informed of any charges against him;

3. Anyone arrested or detained in a criminal charge shall be brought promptly before a judge or
other officer authorized by law to exercise judicial power and shall be entitled to trial within
reasonable time or to release.

4. Anyone who was deprived of his liberty by arrest or detention shall be entitled to 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.

5. Anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to
compensation.

31
Absolute rights are those which may not be suspended or derogated in any circumstance. Examples of
absolute or non-derogable rights are freedom from torture and arbitrary killing. On the other hand, relative or
derogable rights are those which may be suspended or derogated under circumstances such as the
occurrence of public emergency or commission of an offense.

32
190 US 40 (1902).

33
Persily, International Extradition and the Right to Bail, 34 Stan. J. Int’l. L 407, 408 (1998).

34
The ordinary presumption in favor of granting bail is modified when a person faces a warrant of extradition.
18 U.S.C.A. § 3146, 3184.

35
Hu Yau-Leung vs. Soscia, 649 F. 2d 914 (1981).

36
In re Kirby, et al., 106 F. 3d 855 (1996).

37
In re Mitchell, 171 F. 289 (1909).

38
In re Gannon, supra.

39
Hall, Bail in International Extradition, supra at 604.

40
Ibid.
 41
430 F. Supp. 915 (1977).

42
554 F. 2d 1 (1977).

43
Persily, supra, p. 429, citing Reform of the Extradition Laws of the United States: Hearings on H.R. 2643
Before the Subcommittee On Crime of the House Committee On Judiciary, 98th Cong. 42-43 (1983).

44
243 SCRA 538 (1995).

45
Id., p. 542, citing Philippine Law Dictionary, Third Edition, p. 300 by F. B. Moreno; Black’s Law Dictionary,
Sixth Edition, p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs. PFlanz, 138 F. 980;
Tobin vs. Casaus, 275 P. 2d 792.

46
259 SCRA 296 (1996).

47
Id., p. 307.

48
Petitioner’s Memorandum Re: Prayer for Jimenez’ Arrest, Rollo, p. 87.

49
Petition for Extradition, pp. 7-8; Rollo, pp. 54-55.

50
TSN June 5, 2001, pp. 11- 15; Rollo, pp. 267-271.

51
Id., pp. 24-25; Id., pp. 280-281.

52
Sworn Statement, Rollo, p. 195.

53
Supra note 1, p. 308.

54
Ibid.

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 – first, it would ignore constitutional
safeguards to which all government action is defined, and second, it would overstep constitutional restraints on
judicial power.

Treaty laws, particularly those which are self-executing, have equal stature as national statutes and, like all other
municipal laws, are subject to the parameters set forth in the Constitution. The Constitution, being both a grant and
a circumscription of government authority by the sovereign people, presents the ultimate yardstick of power and its
limitation upon which an act of government is justly measured. This instrument contains a rule for all agencies of the
government and any act in opposition thereto can only be struck down as being invalid and without effect. 2 When
the great Charter gives a mandate, the government can do no less than to accept it; its rejection would be an act of
betrayal. The edict in its Bill of Rights granting to all persons, without distinction, the fundamental right to bail, is
clear. No statute or treaty can abrogate or discard its language and its intent.
The draft ponencia would assume that the Constitution confines the grant of provisional liberty to criminal cases,
and that it has no application to extradition proceedings. This assumption would have reason for being if it were
solely in criminal cases that a person could face an imminent threat of deprivation of his right to life or liberty, for
indeed, it is this threat, rather than case nomenclature, that must be the focus and it would be superficial to think
otherwise. While defying a neat definition, extradition has all the earmarks of a criminal process --- an extraditee
would suffer deprivations, be denied his freedom and restricted in his movements, not much unlike a criminal
indictee. Extradition proceedings involve an extended restraint of liberty following arrest, peculiar to an accused in a
criminal case, which can even be more severe than an accompanying detention in a single state, for, at a minimum,
it can mean protracted proceedings in both the asylum state and the demanding state and a forced transportation in
between. 3 In Herras Teehankee vs. Rovira, 4 the Court observed that bail is constitutionally available to all persons,
even those against whom no formal charges are filed.

"Indeed, if, as admitted on all sides, the precept protects those already charged under a formal complaint or
information, there seems no legal and just reason for denying its benefits to one against whom the proper authorities
may not even yet conclude that there exists no sufficient evidence of guilt. To place the former in a more favored
position than the latter would be, to say the least, anomalous and absurd. If there is a presumption of innocence in
favor of one already formally charged with criminal offenses ... a fortiori, this presumption should be indulged in
favor of one not yet so charged although arrested and detained."

xxxxxxxxx

"We reiterate now that under the Constitution, all persons, without distinction, whether formally charged or not yet so
charged with any criminal offense, 'shall before conviction be bailable,' the only exception being when charge is for a
capital offense and the court finds that the evidence of guilt is strong."

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

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

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

A Constitution does not deal with details, but only enunciates general tenets that are intended to apply to all facts
that may come about and be brought within its directions. 5 Behind its conciseness is its encompassing
inclusiveness. It is not skin-deep; beneath that surface is what gives it real life and meaning. It can truly be said that
the real essence of justice does not emanate from quibbling over patchwork but proceeds from its gut
consciousness and dynamic role as a brick in the ultimate development of the edifice. 6

Resort to overly rigid procedures is being justified as a need to keep in line with our treaty obligations. Verily, comity
in our relations with sovereign states is important, but there are innate rights of individuals which no government can
negotiate or, let alone, bargain away.

Analogy between extradition process and proceedings where the right to bail is said to be unavailing, i.e.,
deportation proceedings and proceedings before a military tribunal, would not at all be apropos. Deportation
proceedings are no more than inquiries and just involve the simple fact of whether or not an alien has an authorized
entry within a named country or, if authorized, whether or not he has complied with the conditions for a continued
stay thereat. A subject found to be illegally staying in a country is merely transported back to his place of origin.
Most importantly, such a person is not considered to be under judicial custody. Proceedings before a military
tribunal, upon the other hand, are confined to members of the military organization who give consent to its
jurisdiction. The stringent proceedings before such tribunals place emphasis on summary procedures, a speedy
resolution of the case being vital in maintaining discipline, obedience and fitness among the ranks 7 that cannot
obviously be compromised in any sound military establishment.
The draft ponencia would rely heavily on foreign jurisprudence, notably American cases, to belabor the point that the
right to bail is extraneous to extradition proceedings. The citation, particularly of the jurisprudence obtaining in the
United States, could be predicated on the Eighth Amendment of the US Federal Constitution. This amendment
however, recognizes merely by implication the right to bail by simply disallowing excessive bail; it does not expressly
provide for the grant of bail. 8 Individual states have incorporated into their own state constitutions various versions --
some give it as a matter of right and some do not – a fact which partially explains the lack of uniformity in state
jurisprudence on the matter. Where some states provide for a constitutional right to bail, the same is almost
invariably viewed as affording a greater right than that provided in the federal charter. 9

In contrast, the Philippine Constitution strongly and clearly mandates that, except for those charged with offenses
punishable by reclusion perpetua, when evidence of guilt is strong, bail is an undeniable right of every person ---

"All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong,
shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by
law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required." 10

Thus, grappling in this jurisdiction with the compatibility of the grant of bail in extradition proceedings with basic
constitutional guarantees has not been and should not be a predicament. Absent any standard, except for the
constitutional limitation that the same be not excessive, the grant of bail in the United States largely rests on judicial
discretion under the umbrella of judicial power. And so it has been so regarded in Wright v.

Henkel, 11 the primary case governing access to bail in United States extradition proceedings, where the Court has
held:

"We are unwilling to hold that the Circuit Courts possess no power in respect of admitting bail other than as
specifically vested by statute or that, while bail should not ordinarily be granted in cases of foreign extradition, those
courts may not, in any case, and whatever the special circumstances, extend that relief."

Henkel, decided by the US Supreme Court in 1903, has been criticized to have imposed an amorphous standard
and has resulted in an incoherent and inconsistent approach to bail. 12 While the clamor for its re-examination
appears to be getting persistent by the day, 13 it has nevertheless become the forerunner in the 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 flee. 16

But Philippine courts need not really bother borrowing from dicta in foreign jurisdictions. The absoluteness of the
constitutional grant under Section 13, Article, III of the Constitution precludes any need for further standards than
those explicitly expressed by it. Judicial discretion is confined to the issue of whether or not the offense charged is a
capital crime and a determination of whether or not the evidence of guilt is strong. The rule may appear to be too
simplistic but it is the correct approach. At all events, I would not be comfortable in developing a "special
circumstances" standard on the basis of mere pro hac vice pronouncements from elsewhere. In Herras Teehankee
vs. Director of Prisons 17 , this Court has expressed unqualified acquiescence to the deeply ingrained policy of
restraint against unwarranted judicial adventurism that can otherwise easily get out of hand. 1âwphi1.nêt

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.

 JOSE C. VITUG

Footnotes

1
Section II, Article II, 1987 Constitution.

2
Bernas, 1987 Constitution, 1st Edition, Bk. 2, p. 1.

3
Jeffrey A. Hall, "A Recommended Approach to Bail in International Extradition Cases," Michigan Law
Review, December 1987.

4
66 SCRA 38, 43.

5
16th AmJur 2d.

6
See the writer’s opinion in G.R. No. 146710-15.

7
Reid vs. Covert, 354 U.S. 683, 694 (1969), cited in Bernas, Ibid. p. 370.

8
U.S. ex. re. Keating vs. Bensinger, D.C. Ill. 1971, 322 F. Supp. 784, Mastrian vs. Hedman, C.A. Minn.
1964, 326 F2d 708, certiorari denied 84 S.Ct. 1128,376 U.S. 965, 11 L. Ed. 2d 982. The eighth Amendment
of the U.S. Federal Constitution merely provides –

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment
inflicted."

9
Ray vs. State, 679 N.E. 2d 1364 (Ind. Ct. App. 1997).

10
Section 13, Article III, 1987 Philippine Constitution.

11
190 U.S. 40 (1903).

12
Jeffrey Hall, Ibid.

13
Ibid.

14
M. Cherif Bassiouni, "International Extradition United States Law and Practice," Vol. II, November 1987,
Oceana Publications, Inc., p. 535.

15
171 F, 289 (S.D. N.Y 1909), cited in Bassiouni, Ibid., at p. 535.

16
Ibid.

17
76 Phil 756, 769.

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 first impression. I find the views on the
indiscriminate denial of fundamental rights too open-ended and heedless of entrenched jurisprudence on Bill of
Rights protections.

The sheer novelty of the world’s only superpower asking that a Filipino be brought before it to face criminal
prosecution seems to mesmerize policy makers and this Court alike into depriving that citizen of constitutional
protections. The issue before the respondent court is a fairly innocuous one – whether or not the petition for
extradition is meritorious. We are not concerned with the guilt or innocence of the respondent. He is presumed
innocent of the crimes charged until he is convicted by a foreign court. He is likewise presumed innocent of the
demands found in the request for his extradition. But the majority opinion has chosen to adopt a presumption of
guilt. It presumes that the petition calling for the forcible separation of the respondent from his homeland, family,
occupation, and friends is correct even before the merits are ascertained. It presumes that he will flee.

A person convicted of a crime, except for the most serious offenses, is allowed bail while an appeal is pending.
Respondent Jimenez has not been convicted of any crime. His guilt or innocence is not in issue before the
respondent court. The only legal affront he has committed is his refusal to leave the pleasures of life in his country
and go to a place where he fears the reception to him would be disagreeable and much less pleasant. Eventually
after trial in the respondent court, respondent may be compelled to undergo what he fears. But until that decision is
rendered and becomes executory, he must be presumed innocent of any crime or any affront to law or treaty. There
can be no deprivation of basic rights and freedoms merely because the case is one of extradition.

I submit that we must consider the implications of a ruling that in criminal proceedings, the constitutional rights of the
accused must be protected, but 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 first be
exposed to the indignity, expense, and anxiety of a public denunciation in court before he may be informed of what
the requesting State has against him. The right to notice before trial is denied.

The majority opinion states that a prospective extraditee is not entitled to notice and hearing before a warrant of
arrest can be issued against him. Worse, he is denied the right to bail and provisional liberty while the extradition
proceedings are pending.

All the jurisprudence explaining the parameters of the unreasonable searches and seizures provision of the
Constitution 3 becomes inapplicable. The petition for extradition and its attachments take the place of probable
cause. The right against unreasonable search and seizure is available to all persons including those not charged
with any crime. 4 But now, we create an unusual exception. It is not available to one who may be seized against his
will for possible extradition to a country where his innocence or guilt will first be determined. Arrest and
imprisonment will become virtually certain in extradition proceedings. The only thing required of the Court is to go
over the request for extradition and its supporting documents. Arrest is virtually assured because of the absence of
notice and hearing. It is inconceivable that the officials of a requesting State would be so dense or careless as to fail
to include in the request for extradition a prima facie showing that the respondent deserves to be seized and forcibly
brought to the foreign country for trial. According to the majority opinion, from the forwarded documents, we expect
the trial court to "merely xxx xxx xxx get a good first impression sufficient to make a speedy initial determination as
regards the arrest and detention of the accused." This novel doctrine justifying the near certainty of automatic arrest
and detention goes against this Court’s decisions, too numerous to mention, protecting citizens and aliens alike from
unreasonable arrests or seizures. Can we expect anything other than a "good first impression" to arise from the
mere reading of a request for extradition?

In criminal prosecutions, the judge must personally determine probable cause for the arrest. Facts and
circumstances must first be presented which would lead a reasonably discreet and prudent man to believe that an
offense has been committed and the accused is probably guilty of the offense. 5 In the majority opinion, the request
for extradition by the foreign country takes the place of a hearing for probable cause. After trial, it is possible that the
petition for extradition may be denied. Under the majority opinion, the possibility of a judgment of denial does not
influence the immediate arrest and indefinite detention of the respondent since notice and hearing before arrest are
not required. He must be jailed while the grant or denial of the petition is being considered.

The majority opinion gives five (5) postulates of extradition. With all due respect, I fail to see how compliance with
these postulates should result in a disregard for constitutional liberties.

I agree with the first postulate. It is a general proposition that extradition is a major instrument for the suppression of
crime and the Philippines should cooperate in facilitating the arrest and custodial transfer of a fugitive from one
State to another. However, I cannot see how compliance with the requirements for notice and hearing and the
ascertainment of reasonable cause would hamper the suppression of crime. If they do, why should they appear in
our laws and in the decisions of this Court? Does obedience to the dictates of due process and the prohibition
against unreasonable seizures mean any lesser determination to eradicate crime? Effective extradition
arrangements and deterrence of flight abroad by felons are not incompatible with fundamental liberties. The act of
according due process and reasonable seizures does not make the Philippines an isolationist state. The
employment of beneficial objectives to justify the repression of far more worthy values is pejorative in nature, one in
which the Court should not engage.

The second postulate is based on the apriorism that the two parties to an extradition treaty accept and trust each
other’s legal system and judicial processes. We trust the fairness of the American system of justice. However, why
should we assume that it is a breach of trust which the requesting country will look upon with disfavor if we accord
notice and hearing to the respondent before a warrant of arrest is issued? If bail is allowed while the extradition
petition is pending before the trial court, does this signify a lack of confidence on our part in the capacity and the
willingness of the other state to protect the basic rights of the person sought to be extradited?

The Constitution of the United States provides that "(t)he right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue,
but on probable cause, supported by oath or affirmation and particularly describing the place to be searched and the
persons or things to be seized." 6 The offenses upon which the request for extradition is premised are relatively light.
Undoubtedly, bail will be given by the American courts on the basis of a presumption of innocence and the lack of
gravity of the offenses. If the alleged offenses themselves are bailable both here and in the United States, I see no
connection between the grant of the right against unreasonable seizures or the right of bail and the gratuitous
assertion of the majority opinion that this is an absence of trust and confidence in the American legal system and
judicial process.

The guarantees of the Philippine Bill of Rights are derived from American sources. Why should we withhold them
out of a misplaced fear that their grant may be interpreted as a lack of faith in the American judicial system?

The third postulate states that extradition proceedings are sui generis. It is a dogma pernicious in its consequences
to declare that a classification of sui generis lifts a court proceeding beyond constitutional protections. The trial
before the respondent court is not criminal in nature. It is less onerous than a criminal prosecution. Yet, the majority
opinion confers upon one accused of grave crimes far greater rights than an extraditee whose guilt of lesser
offenses is not even in issue. Classifying a proceeding as sui generis does not mean that procedural guarantees
available in criminal prosecutions, civil trials, or administrative proceedings are thereby waived or become irrelevant.
The classification should not mean exemption from notice or hearing for the issuance of a warrant of arrest. It
cannot result in non-entitlement to bail.

The process of extradition does not involve the determination of the guilt of an accused. The majority opinion states
that extradition is merely a measure of international judicial assistance to restore a person charged with crime to the
jurisdiction with the best claim to try him. If so why should the person sought to be extradited be imprisoned without
bail while the grant of assistance is pending? With more reason should constitutional protections be given to him.
The correctness of a decision to forcibly remove a person from his homeland, family, and friends should not be
taken lightly. In determining whether the extradition request complies with the extradition treaty, the trial court should
not be encouraged by a postulate to act in a cavalier manner or treat the proceedings as inconsequential in nature.

The majority opinion states as its fourth postulate that compliance with treaties shall be in good faith. If the
respondent court grants bail to the respondent in extradition proceedings, does this constitute a failure to fulfill our
obligations under the extradition treaty? I am not aware of any treaty which requires the incarceration of a
respondent while the court determines whether or not he falls under the treaty provisions. Why should the furnishing
of notice and the holding of a hearing for an arrest warrant paint a bad picture of our country before the world
community? There should be a contrary impression of adherence to fairness and justice. We cannot fault the trial
court for adopting procedural safeguards which help insure the correctness of its decision. If compliance in good
faith with the treaty requires that the respondent be immediately seized and confined in the national penitentiary,
why should an extradition trial still be held? We might as well give full faith and credence to the request for
extradition and without any trial or hearing, place the respondent in the next airplane leaving for the requesting
country. The discussion in the majority opinion of the postulates of extradition implies that the implementation of an
extradition treaty rarely or never results in a refusal to allow extradition and that the court proceedings do not
amount to anything more than a formality. Otherwise, why should he languish in the penitentiary while his extradition
case is pending?

The fifth and last postulate uses the underlying risk of flight. To say that all persons sought to be extradited have a
propensity to flee is too sweeping a statement to be adopted as an axiom. In every criminal prosecution, the
prosecution can, with greater reason, argue that the accused will escape and go into hiding. But never has the
possibility of flight sufficed to always require incarceration while court proceedings are going on. The opposite
practice is the one we have adopted. The right to bail has been elevated into a constitutional guarantee. Only for the
most serious of offenses when evidence of guilt is strong may an accused be denied freedom upon the posting of
bail prior to his conviction. 7 In fact, the Revised Rules of Criminal Procedure, as amended, provide that any person
in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality
where he is held. 8 The respondent is not charged of any crime before our courts.

The five postulates of extradition outlined in the majority opinion are motherhood statements over which there can
be no quarrel. However, these postulates should be interpreted in a manner that preserves procedural safeguards
instead of being used to support the petitioner's intent to cut corners. Compliance with treaty obligations does not
mean unquestioning obedience to everything stated in a petition for extradition. The allegations will still be proved,
refuted, and determined. Much less does it result in instant seizure without notice and hearing or incarceration
without any recourse to legal methods of gaining provisional liberty.

Is the respondent entitled to notice and hearing before the issuance of a warrant of arrest?

The majority opinion agrees with the Department of Justice that the Regional Trial Court committed grave abuse of
discretion when it informed the respondent that an extradition petition had been filed against him and that petitioner
was seeking his arrest. The opinion states that the exercise of discretion by the judge is a notice to escape and to
avoid extradition.

The truth is that long before January 18, 2000 when G.R. No. 139465 was decided, 9 respondent was fully aware of
the information which this Court now declares should not have been given to him. Respondent could have fled but
he did not do so. Instead, he made himself more visible; he ran for Congress and engaged in various civic activities
always in the public eye.

Paraphrasing the ruling in G.R. No. 139465 on the motion for reconsideration, the threat of private respondent's
flight from the Philippines has passed. It is more imagined 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 classification. Respondent is charged before the district
court of Florida with conspiracy to defraud, attempted tax evasion, fraud through the use of radio – television, false
statements, and unlawful election contributions. There is absolutely no indication of terrorism, mass murder, or war
crimes against him. He is definitely not a candidate for confinement in the Guantanamo Prison Compound. The fear
of terrorists is not reason to deprive all subjects of extradition proceedings any and all constitutional protections.
Methods of dealing with terrorists should not be used against suspected tax evaders or violators of election laws.
The fact that terrorists are denied bail is not reason to deny this constitutional guarantee to persons being tried for
offenses where no individual is a victim.
It is error to expect that all persons against whom charges have been filed would voluntarily and cheerfully submit to
trial. There are procedural safeguards such as preliminary investigation intended to secure a person presumed
innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public
accusation of crime, from the trouble, expense, and anxiety of a public trial and also to protect the state from
useless and expensive trials. 11 For both the State and the accused, there could be sound reasons to oppose or
avoid prosecution.

If there is reason in some cases for the State not to prosecute, there is greater reason for a prospective accused to
take all steps that would prevent his having to go before a criminal court. We may assume that any fears of
oppressive prosecution in the mind of the private respondent are unfounded and imagined. This should not lead the
Court to conclude that a natural aversion to criminal prosecution is always based on ignoble or indefensible reasons.
Neither should a natural desire to avoid unpleasant situations be used to deny basic rights and privileges.

I submit that it is a dangerous precedent for this Court to rule that the prima facie existence of probable cause for a
warrant of arrest can be derived from a mere reading of the petition for extradition and its supporting documents.
The determination of probable cause is effectively taken away from the judge and transferred to the Department of
Justice. Worse, the determination could come directly from an office not equipped to make it, namely the
Department of Foreign Affairs. In either case, the Constitution is infringed.

The majority opinion is overly influenced by the fear that a person sought to be extradited would be tempted to flee.
Of course, it is natural for any person facing court litigation of any kind to try to avoid it. An accused already being
tried in court or an appellant who appeals a judgment of conviction has greater reason to flee if possible. Yet, this is
not cause to deny him notice of proceedings or the right of provisional liberty while his case is pending. If bail is
going to be denied respondent Jimenez, it should be after a full hearing and with the application of all constitutional
guarantees.

The majority opinion states that under the Constitution only the complainants and the witnesses he may produce are
required to be examined. 12 It overlooks that in this case no complainant and no witness has been examined. A
warrant of arrest is ordered issued on the sole basis of documents. There may be no requirement to notify and hear
the accused before a warrant of arrest is issued. But neither is there any prohibition against the judge hearing an
accused before a warrant is issued; more so if he is already in court and strongly opposes his being arrested
pending trial. In his search for the truth, the judge should not be restrained in the exercise of sound discretion.

In this case, the petition has already been filed. The respondent has submitted himself to the jurisdiction of the trial
court. The motion to have him arrested and detained is an incident of the pending case. There is no need to take
him into custody in order to make him forthcoming for trial. 13 Mr. Jimenez appears to be more than willing and, in
fact, is already answering the request for extradition. He is not before the court to answer for any crime. But he is
there. Strangely, the court would deny him provisional liberty in a case not criminal in nature but which could make
him answer for alleged offenses in another country if the court should decide against him. What cannot be denied to
him in the criminal prosecution is denied in a case which may or may not lead to such prosecution.

The absence of logic behind the majority opinion’s denial of basic rights becomes clearer when it comes to the issue
on the right to bail. The reason given for the denial of the right to bail is not merely deceptive; it has dangerous
implications. It states that the constitutional provision on bail applies only when a person has been arrested and
detained for violation of Philippine Criminal Law. The reasoning states, that ergo, the right to bail does not exist in
non-criminal prosecutions. The absence of a constitutional provision on the right to bail of a person subject to
extradition is simply based on the fact that the idea of incarcerating a person for something other than crime never
occurred to the framers of the Constitution. There can be no forcible detention in non-criminal situations.
Incarceration for something not related to crime would be arbitrary detention or illegal detention. It could even be
slavery or involuntary servitude. In all these cases, the issue of bail does not arise. If we insist on classifying
extradition as a proceeding not covered by the protections given to accused persons, we should rule that bail is not
provided because the respondent is not supposed to be imprisoned. There is no need for bail because the detention
is illegal in cases not related to crime. Extradition cases may not be criminal in nature. But they assist and precede
criminal prosecutions.

The petitioner twists the right to bail out of context when it argues that the right available during criminal
prosecutions is irrelevant and should be disregarded when the court action is non-criminal in nature and, therefore, it
is not available in civil, administrative, regulatory, and extradition proceedings. The fallacy of the argument is readily
apparent.

I cannot go along with the proposition that a person who tries to avoid criminal prosecution is always a criminal,
coward, or weakling who prefers to run and hide. There are many reasons why people will fear trial in criminal
cases. It is not overprotection or excessively liberal treatment to enforce constitutional guarantees in extradition
cases. It is fairness and adherence to the rule of law. The judge has discretion on whether or not he should allow
bail. He should have a sound basis for the probability or likelihood of flight.

The majority opinion starts by asking two questions. (1) Are prospective extraditees entitled to notice and hearing
before warrants for their arrest are issued? and (2) Are they entitled to bail and provisional liberty while extradition
proceedings are pending? The answer is a curt "No". By the brevity and terse nature of the answer, it seems
absolute and inflexible.

Towards the end of the majority opinion, 14 however, two exceptions are allowed. First, the applicant is not a flight
risk. Second, there exist special and compelling circumstances.

To my mind, the issues in this case should be framed differently. On the first question, the present provisions of law
and decisions of this Court on arrests and seizures should be assumed and followed. On the second question, the
Court should apply the same principles on the right to bail found in the Constitution to persons facing trial for
extradition. Thus, all persons, except those where the probability of flight is clear and present or the crimes for which
extradition is sought are heinous, shall before judgment in the extradition proceedings, be bailable by sufficient
sureties or be released on recognizance as may be provided by law. The right to bail shall not be impaired even
where the requesting country is one with which the Philippines maintains strong ties. Excessive bail shall not be
required. 15

The majority opinion cites my ponencia in People v. Jalosjos. 16 Jalosjos was already convicted and his appeal was
pending when he was 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 flight. Why should a
person run for Congress, campaign all over his district, and expose himself regularly to newspaper media and
television if he intends to flee the country? There is a hold-order against him found in all ports of exit and entry.
When his constituents voted Jimenez to Congress knowing fully well that an extradition case was or could be filed
against him, it was an expression of confidence that he would not run away. Their faith may be misplaced or proved
wrong later, but today, it must be taken at face value as against mere suppositions, fears, and apprehensions. The
rules on denial of bail where possibility of flight is established must be followed.

The request for extradition comes from the United States. In the course of the most perilous period in the life of that
nation, the American Supreme Court stated that "the constitution is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. 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.

CONSUELO YNARES-SANTIAGO

Footnotes

1
Secretary of Justice v. Lantion, 343 SCRA 377 (2000).

2
Constitution, Art. III, Sec. 1 and Sec. 14(2); People v. Mencias, 46 SCRA 88 [1972].

3
Constitution, Art. III, Sec. 2.

4
Moncado v. Peoples Court, 80 Phil. 1.

5
People v. Syjuco, 64 Phil. 667 (1937); Alvarez v. Court of First Instance, 64 Phil. 33 (1937); U.S. v.
Addison, 28 Phil. 566 (1914); Burgos v. Chief of Staff, 133 SCRA 800 (1984).

6
American Bill of Rights, Amendment No. IV of the U.S. Constitution.

7
Constitution, Art. III, Sec. 13.

8
Revised Rules of Criminal Procedure, Rule 114, Sec. 17 (c).

9
328 SCRA 160 (2000).

10
343 SCRA 377, 389 (2000).

11
Salonga v. Hon. Pano et al., 134 SCRA 438 (1985).

12
Constitution, Art. III, Sec. 2.

13
Rule 113, Section 1 of the Revised Rules of Criminal Procedure defines arrest as "the taking of a person
into custody in order that he may be bound to answer for the commission of an offense."

14
Decision, p. 34.

15
See Constitution, Art. III, Sec. 13.

16
324 SCRA 689 (2000).

17
Ex parte Milligan, 4 Wallace 2 (1866); 71 U.S. 2; 18 L. Ed. 281.

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 bail." (Tiu Chun Hai, et al vs. Deportation Board, 104 Phil.
949 [1958]). As deportation proceedings do not partake of the nature of a criminal action, the constitutional
guarantee to bail may not be invoked by aliens in said proceedings (Ong Hee Sang vs. Commissioner of
Immigration, supra)."

In Commendador v. de Villa, 5 involving the court martial of military putschists against the Aquino Government, the
Court held that:

We find that the right to bail invoked by the private respondents in G.R. No(s). 95020 has traditionally not been
recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights.
This much was suggested in Arula, where we observed that `the right to a speedy trial is given more emphasis in
the military where the right to bail does not exist’."

The justification for this exception was well explained by the Solicitor General as follows:

`The unique structure of the military should be enough reason to exempt military men from the constitutional
coverage on the right to bail.

Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic
system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and
responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their
activities outside of and against the existing political system.
National security considerations should also impress upon this Honorable Court that release on bail of respondents
constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis
on bail, or if the assailed July 25, 1990 Order were sustained, on "provisional" bail. The sheer number alone is
already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which
could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the
same with a system consonant with their own concept of government and justice.’

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

Finally, in Secretary of Justice v. Lantion, 6 the Court, speaking through Justice Reynato S. Puno, declared that:

We are not persuaded. An extradition proceeding is sui generis. It is not a criminal proceeding which will call into
operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition
does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in
the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose
extradition papers are still undergoing evaluation. As held by the US Supreme Court in United States v. Galanis:

`An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a
criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty.’

There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding
is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a criminal
proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent
standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable
doubt for conviction while a fugitive may be ordered extradited `upon showing of the existence of a prima facie
case.’ Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an
extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to
extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide
discretion in balancing the equities of the case and the demands of the nation's foreign relations before making the
ultimate decision to extradite.

As an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not
akin to a preliminary investigation, the due process safeguards in the latter do not necessarily apply to the former.
This we hold for the procedural due process required by a given set of circumstances "must begin with a
determination of the precise nature of the government function involved as well as the private interest that has been
affected by governmental action." The concept of due process is flexible for "not all situations calling for procedural
safeguards call for the same kind of procedure."

Clearly, in this jurisdiction there is no constitutional or statutory right to bail in 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 flight risk. This is why courts have consistently held that the presumption is against
bail in extradition cases. 12

The development of extradition law is still in its infancy in this country. We are fortunate that the present Constitution
has empowered the Court to adopt rules to protect and enforce the fundamental rights of the people. In the United
States, the grant of bail to extraditees is still largely governed by the 1903 case of Wright v. Henkel, with only the
cryptic "special circumstances" as the standard prescribed by the U.S. Supreme Court for extradition courts in the
U.S. to follow. 13 The instant case provides the opportunity for this Court to lay down a clear-cut guideline for our own
extradition courts to follow. This will insure that our Executive Department can comply promptly with extradition
requests as required by the nature of our treaty obligations while at the same time protecting the fundamental rights
of our citizens.

In essence, extradition is police assistance extended by a state to arrest a person charged with a crime in another
state and surrender him to the authorities of that state. The power to arrest by the assisting state is legitimized by a
treaty, which has the force of a statute 14 and forms part of municipal law. 15 The benefit of extradition is the mutual
assistance between states in criminal law enforcement across national boundaries. The assisting state acts as an
arresting agent and in some jurisdictions the extradition process is mainly an executive function. Even under our
extradition treaties, the final decision whether to extradite or not rests with the President of the Philippines, not with
the courts. 16 Thus, ordinarily an assisting state does not grant bail to the extraditee whose recourse is to apply for
bail before the court of the state where he is charged with a crime. The assisting state, however, for equity
considerations may choose to accord bail to the extraditee. One equity consideration is to put extraditees in one
country in equal footing with extraditees in the country of the treaty partner. Another equity consideration is to grant
the right to bail, in carefully limited exceptions, to preserve and enforce fundamental rights.

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

The special circumstances" that Jimenez has alleged do not inspire confidence that he will not likely flee. Jimenez
claims that he has been admitted to the Witness Protection Program which shows his lack of intent to flee. The
Department of Justice, however, has disowned issuing to Jimenez a Certificate of Admission to the Witness
Protection Program. The Department of Justice should know who have been admitted to the Witness Protection
Program because the Department itself administers the Program. Under the Witness Protection, Security and
Benefit Act, the issuance of the Certificate of Admission is the operative act that establishes admission to the
Program. 19 Unless he can present a Certificate of Admission, Jimenez’s claim should be rejected, and even taken
as an act of misrepresentation to the extradition court, in view of the statement by the Department of Justice that
there is no record of Jimenez’s admission to the Program. 2 20

For the same reason, Jimenez’s claim that he is a state witness in the plunder case against ex-President Joseph
Estrada, and that "his flight would strip him of (the) immunity he is entitled to," 2 21 cannot be given credence. Under
the Witness Protection, Security and Benefits Act, the Certificate of Admission is essential to the discharge of the
accused and his utilization as a state witness. 2 22 Without the Certificate of Admission, Jimenez is not entitled to
immunity under the Program. 2 23 The Department of Justice will issue the Certificate of Admission only if it is
satisfied with the proposed testimony of the witness as disclosed in his sworn statement. Since until now the
Department of Justice has not issued a Certificate of Admission to Jimenez, it could mean that the Department is
either not satisfied with what Jimenez is bargaining to testify against ex-President Joseph Estrada, or that Jimenez
may not be the least guilty. 2 24 Unless Jimenez presents to the extradition court the Certificate of Admission, and
this he has not done, Jimenez’s claim of being a state witness against ex-President Estrada is baseless and self-
serving.
Jimenez claims that the Department of Justice knows his whereabouts because he is under 24-hour PNP protection.
Jimenez asserts in his Sworn Statement 2 25 that the Department of Justice has provided him police protection
because he "was admitted into the Witness Protection Program of the DOJ on 2 March 2001." This is patently false.
The Department of Justice states that there is no record of Jimenez’s admission to the Witness Protection Program.
Jimenez has not presented a Certificate of Admission to the Program which under the Witness Protection, Security
and Benefits Act would entitle him to the benefits, protection and immunities of the Program.

That Jimenez enjoys the privilege of a 24-hour PNP security detail does not establish that he is a state witness
under the Witness Protection Program. As a member of the House of Representatives, Jimenez may have
requested the PNP to provide him a security detail for his own benefit and protection. In such a case, the PNP
security detail takes instructions from Jimenez and not from the Department of Justice. The 24-hour PNP security
detail would hardly be effective in preventing Jimenez from fleeing the country.

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

Accordingly, I vote to grant the petition.

ANTONIO T. CARPIO

Footnotes

1
Section 5 (5), Article VIII of the Constitution provides as follows: "The Supreme Court shall have the
following powers: (1) x x x (5) Promulgate rules concerning the protection and enforcement of constitutional
rights, x x x."

2
Section 13, Article III of the Constitution.

3
4 SCRA 442 (1962).

4
162 SCRA 840 (1988).

5
200 SCRA 80 (1991).

6
343 SCRA 377 (2000).

7
The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required."
The excessive bail clause did not establish a constitutional right to bail. In United States v. Salerno, 481 U.S.
739 (1987), attached as Annex "7", Memorandum for Private Respondent, the U.S. Supreme Court
declared: "The Eighth Amendment addresses pretrial release by providing merely that `[e]xcessive bail shall
not be required.’ This Clause, of course, says nothing about whether bail shall be available at all."

8
The U.S. Bail Reform Act of 1984 does not grant the right to bail in extradition cases.

9
Wright v. Henkel, 190 U.S. 40 (1903), attached as Annex "2", Memorandum for Private Respondent.

10
Canada v. Pitman, 1986 WL602917 (Ont. H.C.), Supreme Court of Ontario.
 11
Parretti v. United States, 122 F.3d 758 (9th Cir. 1997), attached as Annex "5", Memorandum for Private
Respondent.

12
United States v. Lui Kin-Hong, 83 F.3d 523 (1st Cir. 1996), attached as Annex "8", Memorandum for
Private Respondent.

13
U.S. lower courts have differed in their interpretation of the "special circumstances" standard. See A
Recommended Approach to Bail in International Extradition Cases, Jeffrey A. Hall, Michigan Law Review,
December, 1987.

14
La Chemise Lacoste v. Fernandez, 129 SCRA 373 (1984); Ram Singh v. Insular Collector of Customs, 38
Phil. 862. In Secretary of Justice v. Lantion, 322 SCRA 160 (2000), the Court stated: "Accordingly, the
principle lex posterior derogat priori takes effect - a treaty may repeal a statute and a statute may repeal a
treaty."

Guerrero’s Transport Services, Inc. v. Blaylock Trans. Services Employees Association-Kilusan, 71 SCRA
15

621 (1976).

16
Paragraph 2, Article 2 of the RP-US Extradition Treaty.

17
Letter dated August 23, 2001 written by Mr. John E. Harris, Director, Office of the International Affairs, U.S.
Department of Justice, addressed to Undersecretary Merceditas Gutierrez of the Philippine Department of
Justice, attached to Petitioner’s Memorandum.

18
Page 17, Petition for Certiorari.

19
Section 11 of R.A. No. 6981 provides as follows: " x x x If after said examination of said person, his sworn
statement and other relevant facts, the Department is satisfied that the requirement of this Act and its
implementing rules are complied with, it may admit such person into the Program and issue the
corresponding certificate."

20
Pages 28-29, Petitioner’s Memorandum.

21
Page 46, Memorandum for Private Respondent.

22
Section 12 of R.A. No. 6981 provides as follows: "The certificate of admission into the Program by the
Department shall be given full faith and credit by the provincial or city prosecutor who is not required to
include the Witness in the criminal complaint or information and if included therein, to petition the court for
his discharge in order that he can be utilized as a state Witness. x x x."

23
Section 12 of R.A. No. 6981 provides that "[a]dmission into the Program shall entitle such State Witness to
immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used x
x x."

24
Section 10, R.A. No. 6981.

25
Annex "A-1" of Private Respondent’s Comment.

FACTS:

Petition is a sequel to the case “Sec. of Justice v. Hon. Lantion”. The Secretary was ordered to furnish Mr.
Jimenez copies of the extradition request and its supporting papers and to grant the latter a reasonable period within
which to file a comment and supporting evidence. But, on motion for reconsideration by the Sec. of Justice, it
reversed its decision but held that the Mr. Jimenez was bereft of the right to notice and hearing during the evaluation
stage of the extradition process. On May 18, 2001, the Government of the USA, represented by the Philippine
Department of Justice, filed with the RTC, the Petition for Extradition praying for the issuance of an order for his
“immediate arrest” pursuant to Sec. 6 of PD 1069 in order to prevent the flight of Jimenez. Before the RTC could act
on the petition, Mr. Jimenez filed before it an “Urgent Manifestation/Ex-Parte Motion” praying for his application for
an arrest warrant be set for hearing. After the hearing, as required by the court, Mr. Jimenez submitted his
Memorandum. Therein seeking an alternative prayer that in case a warrant should issue, he be allowed to post bail
in the amount of P100,000. The court ordered the issuance of a warrant for his arrest and fixing bail for his
temporary liberty at P1M in cash. After he had surrendered his passport and posted the required cash bond,
Jimenez was granted provisional liberty.

Government of the USA filed a petition for Certiorari under Rule 65 of the Rules of Court to set aside the order for
the issuance of a warrant for his arrest and fixing bail for his temporary liberty at P1M in cash which the court deems
best to take cognizance as there is still no local jurisprudence to guide lower court.

ISSUES:
i. Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before
issuing an arrest warrant under Section 6 of PD No. 1069
ii. Whether or NOT Hon. Purganan 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
iii. Whether or NOT there is a violation of due process

HELD: Petition is GRANTED. Bail bond posted is CANCELLED. Regional Trial Court of
Manila is directed to conduct the extradition proceedings before it.

i. YES.

By using the phrase “if it appears,” the law further conveys that accuracy is not as
important as speed at such early stage. From the knowledge and the material then available to it, the court is
expected merely to get a good first impression or a prima facie finding sufficient to make a speedy initial
determination as regards the arrest and detention of the accused. The prima facie existence of probable cause for
hearing the petition and, a priori, for issuing an arrest warrant was already evident from the Petition itself and its
supporting documents. Hence, after having already determined therefrom that a prima facie finding did exist,
respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez. 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 also bears emphasizing at this point that extradition
proceedings are summary in nature. 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 which neither the Treaty nor the Law could have intended.

Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a
hearing before the issuance of a warrant of arrest. To determine probable cause for the issuance of arrest
warrants, the Constitution itself requires only the examination under oath or affirmation of complainants and the
witnesses they may produce.

The Proper Procedure to “Best Serve The Ends Of Justice” In Extradition Cases
Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as
soon as possible, a prima facie finding whether
a) they are sufficient in form and substance
b) they show compliance with the Extradition Treaty and Law
c) the person sought is extraditable

At his discretion, the judge may require the submission of further documentation or may personally examine the
affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding is possible,
the petition may be dismissed at the discretion of the judge. On the other hand, if the presence of a prima facie
case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at
the same time summoned to answer the petition and to appear at scheduled summary hearings. Prior to the
issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition,
lest the latter be given the opportunity to escape and frustrate the proceedings.
ii. Yes.

The constitutional provision on bail on Article III, Section 13 of the Constitution, as well
as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for
violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not
render judgments of conviction or acquittal. Moreover, the constitutional right to bail “flows from the presumption of
innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be
entitled to acquittal, unless his guilt be proved beyond reasonable doubt. In extradition, 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” finds application “only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.”

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. 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.

Exceptions to the “No Bail” Rule

Bail is not a matter of right in extradition cases. It is subject to judicial discretion in the context of the peculiar
facts of each case. Bail may be applied for and granted as an exception, only upon a clear and convincing showing
1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and
2) that there exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those
cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein

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

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. Therefore, his constituents were
or should have been prepared for the consequences of the extradition case. Thus, the court ruled against his claim
that his election to public office is by itself a compelling reason to grant him bail.

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. 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.

That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be
within reach of our government if and when it matters; that is, upon the resolution of the Petition for Extradition.

iii. NO.

Potential extraditees are entitled to the rights to due process and to fundamental fairness. The doctrine of right to
due process and fundamental fairness does not always call for a prior opportunity to be heard. A subsequent
opportunity to be heard is enough. He will be given full opportunity to be heard subsequently, when the extradition
court hears the Petition for Extradition. 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.

It is also worth noting that before the US government requested the extradition of respondent, proceedings had
already been conducted in that country. He already had that opportunity in the requesting state; yet, instead of
taking it, he ran away.

Other Doctrines:

Five Postulates of Extradition

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

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) The Proceedings Are Sui Generis

An extradition proceeding is sui generis:

a) It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill
of Rights. It 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.
b) An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial.
c) In terms of the quantum of evidence to be satisfied, a criminal case requires proof “beyond reasonable doubt”
for conviction while a fugitive may be ordered extradited “upon showing of the existence of a prima facie case”
d) Unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition
proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite
him.

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. 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.

4) Compliance Shall Be in Good Faith.

We are bound by pacta sunt servanda to comply in good faith with our obligations
under the Treaty. 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

Indeed, extradition hearings would not even begin, if only the accused were
willing to submit to trial in the requesting country. Prior acts of herein respondent:
a) leaving the requesting state right before the conclusion of his indictment proceedings there; and
b) 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

Extradition is Essentially Executive

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.

Facts:
The petition at bar seeking to void and set aside the Orders issued by the Regional Trial Court (RTC) of Manila, Branch 42. The
first assailed Order set for hearing petitioner’s application for the issuance of a warrant for the arrest of Respondent Mark B.
Jimenez.
Pursuant to the existing RP-US Extradition Treaty, the US Government requested the extradition of Mark Jimenez. A hearing
was held to determine whether a warrant of arrest should be issued. Afterwards, such warrant was issued but the trial court
allowed Jimenez to post bail for his provisional liberty.

Issue/s:
Whether or not the right to bail is available in extradition proceedings

Discussions:
The constitutional right to bail “flows from the presumption of innocence in favor of every accused who should not be subjected
to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt.” It
follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is
not at issue.

Ruling/s:
No. The court 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.

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.