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Attorney EDWIN REY SANDOVAL May 6, 2003 1. Ma. Evelyn S. Abeja was a municipal mayor. She ran for reelection but lost. Before she vacated her office, though, she extended permanent appointments to fourteen new employees of the municipal government. The incoming mayor, upon assuming office, recalled said appointments contending that these were midnight appointments and, therefore, prohibited under Sec. 15, Art. VII of the 1987 Constitution. Should the act of the new mayor of recalling said appointments on the aforestated ground be sustained? Ans.: In De Rama v. Court of Appeals (353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago]), the SC answered in the negative. It held: The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC, the only reason he cited to justify his action was that these were midnight appointments that are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. Petitioner certainly did not raise the issue of fraud on the part of the outgoing mayor who made the appointments. Neither did he allege that the said appointments were tainted by irregularities or anomalies that breached laws and regulations governing appointments. His solitary reason for recalling these appointments was that they were, to his personal belief, midnight appointments which the outgoing mayor had no authority to make. 2. On May 1, 2001, President Macapagal-Arroyo, faced by an angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons assaulting and attempting to break into Malacanang, issued Proclamation No. 38 declaring that there was a state of rebellion in the National Capital Region. She likewise issued General Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters of the rebellion were thereafter effected. Hence, several petitions were filed before the SC assailing the declaration of State of Rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof. Held: All the foregoing petitions assail the declaration of state of rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact and in law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a state of rebellion in Metro Manila. Accordingly, the instant petitions have been rendered moot and academic. As to petitioners claim that the proclamation of a state of rebellion is being used by the authorities to justify warrantless arrests, the Secretary of Justice denies that it has issued a particular order to arrest specific persons in connection with the rebellion. He states that what is extant are general instructions to law enforcement officers and military agencies to implement Proclamation No. 38. x x x With this declaration, petitioners apprehensions as to warrantless arrests should be laid to rest. In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a state of rebellion. (Lacson v. Perez, 357 SCRA 756, May 10, 2001, En Banc [Melo]) 3. Discuss why rates to be charged by public utilities like MERALCO are subject to State regulation.

Held: In third world countries like the Philippines, equal justice will have a synthetic ring unless the economic rights of the people, especially the poor, are protected with the same resoluteness as their right to liberty. The cases at bar are of utmost significance for they concern the right of our people to electricity and to be reasonably charged for their consumption. In configuring the contours of this economic right to a basic necessity of life, the Court shall define the limits of the power of respondent MERALCO, a giant public utility and a monopoly, to charge our people for their electric consumption. The question is: should public interest prevail over private profits? Xxx The regulation of rates to be charged by public utilities is founded upon the police power of the State and statutes prescribing rules for the control and regulations of public utilities are a valid exercise thereof. When private property is used for a public purpose and is affected with public interest, it ceases to be juris privati only and becomes subject to regulation. The regulation is to promote the common good. Submission to regulation may be withdrawn by the owner by discontinuing use; but as long as the use of the property is continued, the same is subject to public regulation (Munn v. People of the State of Illinois, 94 U.S. 113, 126 [1877]). In regulating rates charged by public utilities, the State protects the public against arbitrary and excessive rates while maintaining the efficiency and quality of services rendered. However, the power to regulate rates does not give the State the right to prescribe rates which are so low as to deprive the public utility of a reasonable return on investment. Thus, the rates prescribed by the State must be one that yields a fair return on the public utility upon the value of the property performing the service and one that is reasonable to the public for the service rendered (IV A.F. Agbayani, Commentaries and Jurisprudence on the Commercial Laws of the Philippines 500 [1993]). The fixing of just and reasonable rates involves a balancing of the investor and the consumer interests (Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591). In his famous dissenting opinion in the 1923 case of Southwestern Bell Tel. Co. v. Public Service Commission (262 U.S. 290-291, 43 S. Ct. 544, 547 [1923]), Mr. Justice Brandeis wrote: The thing devoted by the investor to the public use is not specific property, tangible and intangible, but capital embarked in an enterprise. Upon the capital so invested, the Federal Constitution guarantees to the utility the opportunity to earn a fair return x x x. The Constitution does not guarantee to the utility the opportunity to earn a return on the value of all items of property used by the utility, or of any of them. Xxx The investor agrees, by embarking capital in a utility, that its charges to the public shall be reasonable. His company is the substitute for the State in the performance of the public service, thus becoming a public servant. The compensation which the Constitution guarantees an opportunity to earn is the reasonable cost of conducting the business. (Republic of the Philippines v. Manila Electric Company, G.R. No. 141314, Nov. 15, 2002, 3rd Div. [Puno]) 4. Discuss the Void for Vagueness Doctrine, and why is it repugnant to the Constitution. Distinguish a perfectly vague act from legislation couched in imprecise language. Held: Due process requires that the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties (Connally v. General Construction Co., 269 US 385, 70 L Ed 322 46 S Ct 126 [1926]). A criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, or is so indefinite that it encourages arbitrary and erratic arrests and convictions, is void for vagueness (Colautti v. Franklin, 439 US 379, 58 L Ed 2d 596, 99 S Ct 675 [1979]). The constitutional vice in a vague or indefinite statute is the

injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning (American Communications Asso. v. Douds, 339 US 382, 94 L Ed 925, 70 S Ct 674 [1950]) We reiterated these principles in People v. Nazario (165 SCRA 186 [1988]): As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and become an arbitrary flexing of the Government muscle. We added, however, that: X x x the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving clause or by construction. Thus, in Coates v. City of Cincinnati, the U.S. Supreme Court struck down an ordinance that had made it illegal for three or more persons to assemble on any sidewalk and there conduct themselves in a manner annoying to persons passing by. Clearly, the ordinance imposed no standard at all because one may never know in advance what annoys some people but does not annoy others. Coates highlights what has been referred to as a perfectly vague act whose obscurity is evident on its face. It is to be distinguished, however, from legislation coached in imprecise language but which nonetheless specifies a standard though defectively phrased in which case, it may be saved by proper construction. X x x (People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1st Div. [Kapunan]) 5. Does Article 13 (b) of the Labor Code defining recruitment and placement violate the due process clause? Held: In support of her submission that Article 13 (b) is void for vagueness, appellant invokes People v. Panis (142 SCRA 664 [1986]), where this Court x x x criticized the definition of recruitment and placement x x x. Appellant further argues that the acts that constitute recruitment and placement suffer from overbreadth since by merely referring a person for employment, a person may be convicted of illegal recruitment. These contentions cannot be sustained. Appellants reliance on People v. Panis is misplaced. The issue in Panis was whether, under the proviso of Article 13(b), the crime of illegal recruitment could be committed only whenever two or more persons are in any manner promised or offered any employment for a fee. The Court held in the negative x x x. Xxx X x x The Court, in Panis, merely bemoaned the lack of records that would help shed light on the meaning of the proviso. The absence of such records notwithstanding, the Court was able to arrive at a reasonable interpretation of the proviso by applying principles in criminal law and drawing from the language and intent of the law itself. Section 13(b), therefore, is not a perfectly vague act whose obscurity is evident on its face. If at all, the proviso therein is merely couched in imprecise language that was salvaged by proper construction. It is not void for vagueness. An act will be declared void and inoperative on the ground of vagueness and uncertainty, only upon a showing that the defect is such that the courts are unable to determine, with any reasonable degree of certainty, what the legislature intended. x x x. In this connection we cannot pretermit reference to the rule that legislation should not be held invalid on the ground of uncertainty if susceptible of any reasonable construction that will support and give it effect. An act will not be declared inoperative and ineffectual on

the ground that it furnished no adequate means to secure the purpose to which it was passed, if men of common sense and reason can devise and provide the means, and all the instrumentalities necessary for its execution are within the reach of those intrusted therewith. (People v. Rosenthal and Osmena, 68 Phil. 328 [1939]) That Section 13(b) encompasses what appellant apparently considers as customary and harmless acts such as labor or employment referral (referring an applicant, for employment to a prospective employer) does not render the law overbroad. Evidently, appellant misapprehends concept of overbreadth. A statute may be said to be overbroad where it operates to inhibit the exercise of individual freedoms affirmatively guaranteed by the Constitution, such as the freedom of speech or religion. A generally worded statute, when construed to punish conduct which cannot be constitutionally punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and the constitutionally impermissible applications of the statute (Wright v. Georgia, 373 US 284, 10 L Ed 2d 349, 83 S Ct 1240 [1963]). In Blo Umpar Adiong v. Commission on Elections (207 SCRA 712 [1992]), for instance, we struck down as void for overbreadth provisions prohibiting the posting of election propaganda in any place including private vehicles other than in the common poster areas sanctioned by the COMELEC. We held that the challenged provisions not only deprived the owner of the vehicle the use of his property but also deprived the citizen of his right to free speech and information. The prohibition in Adiong, therefore, was so broad that it covered even constitutionally guaranteed rights and, hence, void for overbreadth. In the present case, however, appellant did not even specify what constitutionally protected freedoms are embraced by the definition of recruitment and placement that would render the same constitutionally overbroad. (People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1st Div. [Kapunan]) 6. Appellant, who was charged with Illegal Recruitment in the RTC of Zamboanga City, invokes the equal protection clause in her defense. She points out that although the evidence purportedly shows that Jasmine Alejandro handed out application forms and even received Lourdes Modestos payment, appellant was the only one criminally charged. Alejandro, on the other hand, remained scot-free. From this, appellant concludes that the prosecution discriminated against her on grounds of regional origins. Appellant is a Cebuana while Alejandro is a Zamboanguena, and the alleged crime took place in Zamboanga City. Held: The argument has no merit. At the outset, it may be stressed that courts are not confined to the language of the statute under challenge in determining whether that statute has any discriminatory effect. A statute non-discriminatory on its face may be grossly discriminatory in its operation (American Motorists Ins. Co. v. Starnes, 425 US 637, 48 L Ed 2d 263, 96 S Ct 1800 [1976]). Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution (Yick Wo v. Hopkins, 118 US 356, L Ed 1012, 18 S Ct 583 [1886], cited in Genaro Reyes Construction, Inc. v. Court of Appeals, 234 SCRA 16 [1994]). The prosecution of one guilty while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of the laws (Application of Finn, 356 P.2d 685 [1960]). Where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws (Snowden v. Hughes, 321 US 1, 88 L Ed 497, 64 S Ct 397 [1943]). The unlawful administration by officers of a statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection, unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by

extrinsic evidence showing a discriminatory design over another not to be inferred from the action itself. But a discriminatory purpose is not presumed, there must be a showing of clear and intentional discrimination. (Ibid.) Appellant has failed to show that, in charging appellant in court, that there was a clear and intentional discrimination on the part of the prosecuting officials. The discretion of who to prosecute depends on the prosecutions sound assessment whether the evidence before it can justify a reasonable belief that a person has committed an offense (Tan, Jr. v. Sandiganbayan [Third Division], 292 SCRA 452 [1998]). The presumption is that the prosecuting officers regularly performed their duties (Rules of Court, Rule 131, Sec. 5 [m]), and this presumption can be overcome only by proof to the contrary, not by mere speculation. Indeed, appellant has not presented any evidence to overcome this presumption. The mere allegation that appellant, a Cebuana, was charged with the commission of a crime, while a Zamboanguena, the guilty party in appellants eyes, was not, is insufficient to support a conclusion that the prosecution officers denied appellant equal protection of the laws. There is also common sense practicality in sustaining appellants prosecution. While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow that they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a defendant guilty of murder because others have murdered with impunity. The remedy for unequal enforcement of the law in such instances does not lie in the exoneration of the guilty at the expense of society x x x. Protection of the law will be extended to all persons equally in the pursuit of their lawful occupations, but no person has the right to demand protection of the law in the commission of a crime (People v. Montgomery, 117 P.2d 437 [1941]). Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted into a defense for others charged with crime, the result would be that the trial of the district attorney for nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the enforcement of law would suffer a complete breakdown (State v. Hicks, 325 P.2d 794 [1958]). (People v. Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1st Div. [Kapunan]) 7. The question for determination in this case is the liability for libel of a citizen who denounces a barangay official for misconduct in office. The Regional Trial Court of Manila x x x found petitioner guilty x x x on the ground that petitioner failed to prove the truth of the charges and that he was motivated by vengeance in uttering the defamatory statement. Held: The decision appealed from should be reversed. In denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo Foreshore Area were not only acting in their self-interest but engaging in the performance of a civic duty to see to it that public duty is discharged faithfully and well by those on whom such duty is incumbent. The recognition of this right and duty of every citizen in a democracy is inconsistent with any requirement placing on him the burden of proving that he acted with good motives and for justifiable ends. For that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan (376 U.S. 254, 11 L. Ed. 2d [1964]. For a fascinating account of this case, see Anthony Lewis, Make No Law The Sullivan Case and the First Amendment [1991]), which this Court has cited with approval in several of its own decisions (Lopez v. Court of Appeals, 145 Phil. 219 [1970], others omitted). This is the rule of actual malice. In this case, the prosecution failed to prove not only that the charges made by petitioner were false

but also that petitioner made them with knowledge of their falsity or with reckless disregard of whether they were false or not. A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of expression. Such a rule would deter citizens from performing their duties as members of a selfgoverning community. Without free speech and assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice Brandies has said, public discussion is a political duty and the greatest menace to freedom is an inert people. (Whitney v. California, 247 U.S. 357, 375, 71 L. Ed. 1095, 1105 [1927] [concurring]) (Vasquez v. Court of Appeals, 314 SCRA 460, Sept. 15, 1999, En Banc [Mendoza]) 8. Discuss why lower courts should act with extreme caution in admitting in evidence accuseds videotaped media confessions. Held: Apropos the court a quos admission of accused-appellants videotaped confession, we find such admission proper. The interview was recorded on video and it showed accused-appellant unburdening his guilt willingly, openly and publicly in the presence of newsmen. Such confession does not form part of custodial investigation as it was not given to police officers but to media men in an attempt to elicit sympathy and forgiveness from the public. Besides, if he had indeed been forced into confessing, he could have easily sought succor from the newsmen who, in all likelihood, would have been sympathetic with him. X x x. X x x. However, because of the inherent danger in the use of television as a medium for admitting ones guilt, and the recurrence of this phenomenon in several cases (People v. Vizcarra, No. L-38859, 30 July 1982, 115 SCRA 743; others omitted), it is prudent that trial courts are reminded that extreme caution must be taken in further admitting similar confessions. For in all probability, the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television. Such a situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system. We do not suggest that videotaped confessions given before media men by an accused with the knowledge of and in the presence of police officers are impermissible. Indeed, the line between proper and invalid police techniques and conduct is a difficult one to draw, particularly in cases such as this where it is essential to make sharp judgments in determining whether a confession was given under coercive physical or psychological atmosphere. A word of caution then to lower courts: we should never presume that all media confessions described as voluntary have been freely given. This type of confession always remains suspect and therefore should be thoroughly examined and scrutinized. Detection of coerced confessions is admittedly a difficult and arduous task for the courts to make. It requires persistence and determination in separating polluted confessions from untainted ones. We have a sworn duty to be vigilant and protective of the rights guaranteed by the Constitution. (People v. Endino, 353 SCRA 307, Feb. 20, 2001, 2nd Div. [Bellosillo]) 9. May a successful bidder compel a government agency to formalize a contract with it notwithstanding that its bid exceeds the amount appropriated by Congress for the project? Held: The case at bar provides us with another occasion to stress that with respect to government contracts, statutes take precedence over the public officers freedom to contract. X x x Enshrined in the 1987 Philippine Constitution is the mandate that no money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (Sec. 29[1], Article VI of the 1987 Constitution) Thus, in the execution of government contracts, the precise import of this constitutional restriction is to require the various agencies to limit their expenditures within the appropriations made by law for each fiscal year.

Complementary to the foregoing constitutional injunction are pertinent provisions of law and administrative issuances that are designed to effectuate the above mandate in a detailed manner x x x. It is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract (Fernandez, A Treatise on Government Contracts Under Philippine Law, 2001, pp. 40-41). Using this as our premise, we cannot accede to PHOTOKINAs contention that there is already a perfected contract. While we held in Metropolitan Manila Development Authority v. Jancom Environmental Corporation (Supra) that the effect of an unqualified acceptance of the offer or proposal of the bidder is to perfect a contract, upon notice of the award to the bidder, however, such statement would be inconsequential in a government where the acceptance referred to is yet to meet certain conditions. To hold otherwise is to allow a public officer to execute a binding contract that would obligate the government in an amount in excess of the appropriations for the purpose for which the contract was attempted to be made (64 Am Jur 2d Sec. 11). This is a dangerous precedent. In the case at bar, there seems to be an oversight of the legal requirements as early as the bidding stage. The first step of a Bids and Awards Committee (BAC) is to determine whether the bids comply with the requirements. The BAC shall rate a bid passed only if it complies with all the requirements and the submitted price does not exceed the approved budget for the contract. (Implementing Rules and Regulations [IRR] for Executive Order No. 262, supra.) Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA on account of its bid in the amount of P6.588 Billion Pesos. However, under Republic Act No. 8760 (General Appropriations Act, FY 2000, p. 1018, supra.), the only fund appropriated for the project was P1 Billion Pesos and under the Certification of Available Funds (CAF) only P1.2 Billion Pesos was available. Clearly, the amount appropriated is insufficient to cover the cost of the entire VRIS Project. There is no way that the COMELEC could enter into a contract with PHOTOKINA whose accepted bid was way beyond the amount appropriated by law for the project. This being the case, the BAC should have rejected the bid for being excessive or should have withdrawn the Notice of Award on the ground that in the eyes of the law, the same is null and void. Xxx Even the draft contract submitted by Commissioner Sadain, that provides for a contract price in the amount of P1.2 Billion Pesos is unacceptable. X x x While the contract price under the draft contract is only P1.2 Billion and, thus, within the certified available funds, the same covers only Phase I of the VRIS Project, i.e., the issuance of identification cards for only 1,000,000 voters in specified areas (Ibid., p. 382). In effect, the implementation of the VRIS Project will be segmented or chopped into several phases. Not only is such arrangement disallowed by our budgetary laws and practices, it is also disadvantageous to the COMELEC because of the uncertainty that will loom over its modernization project for an indefinite period of time. Should Congress fail to appropriate the amount necessary for the completion of the entire project, what good will the accomplished Phase I serve? As expected, the project failed to sell with the Department of Budget and Management. Thus, Secretary Benjamin Diokno, per his letter of December 1, 2000, declined the COMELECs request for the issuance of the Notice of Cash Availability (NCA) and a multi-year obligatory authority to assume payment of the total VRIS Project for lack of legal basis. Corollarily, under Section 33 of R.A. No. 8760, no agency shall enter into a multi-year contract without a multi-year obligational authority, thus: SECTION 33. Contracting Multi-Year Projects. - In the implementation of multi-year projects, no agency shall enter into a multi-year contract without a multi-year Obligational Authority issued by the Department of Budget and Management for the purpose. Notwithstanding the issuance of the multi-year Obligational Authority, the obligation to be incurred in any given calendar

year, shall in no case exceed the amount programmed for implementation during said calendar year. Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence dictated them not to enter into a contract not backed up by sufficient appropriation and available funds. Definitely, to act otherwise would be a futile exercise for the contract would inevitably suffer the vice of nullity. In Osmena v. Commission on Audit (230 SCRA 585, 589-590 [1994]), this Court held: The Auditing Code of the Philippines (P.D. 1445) further provides that no contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefore and the proper accounting official of the agency concerned shall have certified to the officer entering into the obligation that funds have been duly appropriated for the purpose and the amount necessary to cover the proposed contract for the current fiscal year is available for expenditure on account thereof. Any contract entered into contrary to the foregoing requirements shall be VOID. Clearly then, the contract entered into by the former Mayor Duterte was void from the very beginning since the agreed cost for the project (P8,368,920.00) was way beyond the appropriated amount (P5,419,180.00) as certified by the City Treasurer. Hence, the contract was properly declared void and unenforceable in COAs 2nd Indorsement, dated September 4, 1986. The COA declared and we agree, that: The prohibition contained in Sec. 85 of PD 1445 (Government Auditing Code) is explicit and mandatory. Fund availability is, as it has always been, an indispensable prerequisite to the execution of any government contract involving the expenditure of public funds by all government agencies at all levels. Such contracts are not to be considered as final or binding unless such a certification as to funds availability is issued (Letter of Instruction No. 767, s. 1978). Antecedent of advance appropriation is thus essential to government liability on contracts (Zobel v. City of Manila, 47 Phil. 169). This contract being violative of the legal requirements aforequoted, the same contravenes Sec. 85 of PD 1445 and is null and void by virtue of Sec. 87. Verily, the contract, as expressly declared by law, is inexistent and void ab initio (Article 1409 of the Civil Code of the Philippines). This is to say that the proposed contract is without force and effect from the very beginning or from its incipiency, as if it had never been entered into, and hence, cannot be validated either by lapse of time or ratification (Manila Lodge v. Court of Appeals, 73 SCRA 162 [1976]; See also Tongoy v. Court of Appeals, 123 SCRA 99 [1983]). Xxx In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract. Since PHOTOKINAs bid is beyond the amount appropriated by Congress for the VRIS Project, the proposed contract is not binding upon the COMELEC and is considered void x x x. (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez]) 10. What is the remedy available to a party who contracts with the government contrary to the requirements of the law and, therefore, void ab initio? Ans.: Of course, we are not saying that the party who contracts with the government has no other recourse in law. The law itself affords him the remedy. Section 48 of E.O. No. 292 explicitly provides that any contract entered into contrary to the above-mentioned requirements shall be void, and the officers entering into the contract shall be liable to the Government or other contracting party for any consequent damage to the same as if the transaction had been wholly between private parties. So when the contracting officer transcends his lawful and legitimate powers by acting in excess of or beyond the limits of his contracting authority, the Government is not bound under the contract. It would be as if the contract in such

case were a private one, whereupon, he binds himself, and thus, assumes personal liability thereunder. (Fernandez, a Treatise on Government Contracts Under Philippine Law, 2001, supra., pp. 22-23). Otherwise stated, the proposed contract is unenforceable as to the Government. While this is not the proceeding to determine where the culpability lies, however, the constitutional mandate cited above constrains us to remind all public officers that public office is a public trust and all public officers must at all times be accountable to the people. The authority of public officers to enter into government contracts is circumscribed with a heavy burden of responsibility. In the exercise of their contracting prerogative, they should be the first judges of the legality, propriety and wisdom of the contract they entered into. They must exercise a high degree of caution so that the Government may not be the victim of ill-advised or improvident action (Rivera v. Maclang, 7 SCRA 57 [1963]). (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez]) 11. Mayor Edward S. Hagedorn of Puerto Princesa City was elected for three consecutive times in the 1992, 1995 and 1998 elections and served in full his three consecutive terms as Mayor. In the 2001 elections, he ran for Governor of the Province of Palawan and lost. Socrates ran and won as Mayor of Puerto Princesa in that election. On July 2, 2002, the Preparatory Recall Assembly (PRA) of Puerto Princesa City adopted a Resolution calling for the recall of incumbent Mayor Socrates. The COMELEC scheduled a Special Recall Election for Mayor of that City on September 24, 2002. Is Mayor Hagedorn qualified to run again for Mayor in that Special Recall Election considering the circumstances? Held: The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution x x x. This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government Code x x x. These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms. After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. Xxx Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term. Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. The debates in the Constitutional Commission evidently show that the prohibited election referred to by the framers of the Constitution is the immediate reelection after the third term, not any other subsequent election.

Xxx In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate reelection after his third consecutive term which ended on June 30, 2001. The immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001 elections. Xxx From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. This period is clearly an interruption in the continuity of Hagedorns service as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorns three consecutive terms ended on June 30, 2001. Hagedorns new recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorns previous three-terms with his new recall term to make the recall term a fourth consecutive term because factually it is not. An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive character of Hagedorns service as mayor. X x x In Hagedorns case, the nearly 15-month period he was out of office, although short of a full term of three years, constituted an interruption in the continuity of his service as mayor. The Constitution does not require the interruption or hiatus to be a full term of three years. The clear intent is that interruption for any length of time, as long as the cause is involuntary, is sufficient to break an elective local officials continuity of service. (Victorino Dennis M. Socrates v. The Commission on Elections, G.R. No. 154512, Nov. 12, 2002, En Banc [Carpio]) 12. The members of the Preparatory Recall Assembly (PRA) of Puerto Princesa City met and adopted a resolution calling for the recall of incumbent Mayor Dennis Victorino M. Socrates on the ground of loss of confidence on July 2, 2002. Mayor Socrates argued that they have no authority to adopt said Recall Resolution because a majority of PRA members were seeking a new electoral mandate in the barangay elections scheduled on July 15, 2002. Should his contention be sustained? Held: This argument deserves scant consideration considering that when the PRA members adopted the Recall Resolution their terms of office had not yet expired. They were all de jure sangguniang barangay members with no legal disqualification to participate in the recall assembly under Section 70 of the Local Government Code. (Victorino Dennis M. Socrates v. The Commission on Elections, G.R. No. 154512, Nov. 12, 2002, En Banc [Carpio]) 13. Petitioners would seek the disqualification of respondent Leonardo B. Roman on the ground of his having transgressed the threeterm limit under Section 8, Article X, of the 1987 Constitution and Section 43 of Republic Act No. 7160 (Local Government Code). The focal issue presented before the Court x x x would revolve on the question of whether or not private respondent Roman exceeded the three-term limit for elective local officials, expressed in the Constitution and the Local Government Code, when he again ran for the position of Governor in the 14th of May 2001 elections, having occupied and served in that position following the 1993 recall elections, as well as the 1995 and 1998 regular elections, immediately prior to the 2001 elections. In fine, should respondents incumbency to the post of Governor following the recall elections be included in determining the three-consecutive term limit fixed by law? Held: After due deliberation, the Court voted 8 to 7 to DISMISS the petition. VITUG, J., joined by YNARES-SANTIAGO, J., voted to dismiss the petition. He contended that as revealed by the records of the Constitutional Commission, the Constitution envisions a continuous and an uninterrupted service for three full terms before the proscription applies. Therefore, not being a full term, a recall term should not be counted or used as a basis for the disqualification whether served prior (as in this case) or subsequent (as in the Socrates case) to the nine-year, full three-term limit.


MENDOZA, J., in whose opinion QUISUMBING, J., joined, voted to dismiss the petition on the ground that, in accordance with the ruling in Borja, Jr. v. COMELEC, 295 SCRA 157 [1998]; Arcos v. COMELEC, G.R. No. 133639, Oct. 6, 1998 (res.); Lonzanida v. COMELEC, 311 SCRA 602 [1999]; and Adormeo v. COMELEC, G.R. No. 147927, Feb. 4, 2002, a term during which succession to a local elective office takes place or a recall election is held should not be counted in determining whether an elective local official has served more than three consecutive terms. He argued that the Constitution does not prohibit elective local officials from serving for more than three consecutive terms because, in fact, it excludes from the three-term limit interruptions in the continuity of service, so long as such interruptions are not due to the voluntary renunciation of the office by the incumbent. Hence, the period from June 28, 1994 to June 30, 1995, during which respondent Leonardo B. Roman served as governor of Bataan by virtue of a recall election held in 1993, should not be counted. Since on May 14, 2001 respondent had previously served as governor of Bataan for only two consecutive terms (1995-1998 and 1998-2001), his election on that day was actually only his third term for the same position. PANGANIBAN, J., joined by PUNO, J., also voted to dismiss the petition. He argued that a recall term should not be considered as one full term, because a contrary interpretation would in effect cut short the elected officials service to less than nine years and shortchange his constituents. The desire to prevent monopoly of political power should be balanced against the need to uphold the voters obvious preference who, in the present case, is Roman who received 97 percent of the votes cast. He explained that, in Socrates, he also voted to affirm the clear choice of the electorate, because in a democracy the people should, as much as legally possible, be governed by leaders freely chosen by them in credible elections. He concluded that, in election cases, when two conflicting legal positions are of almost equal weight, the scales of justice should be tilted in favor of the peoples overwhelming choice. AZCUNA, J., joined by BELLOSILLO, J., also voted to dismiss, arguing that it is clear from the constitutional provision that the disqualification applies only if the terms are consecutive and the service is full and continuous. Hence, service for less than a term, except only in case of voluntary renunciation, should not count to disqualify an elective local official from running for the same position. This case is different from Socrates, where the full three consecutive terms had been continuously served so that disqualification had clearly attached. On the other hand, SANDOVAL-GUTIERREZ, J., with whom DAVIDE, C.J., and AUSTRIA-MARTINEZ, CORONA, and CALLEJO, SR., JJ., concurred, holds the view that the recall term served by respondent Roman, comprising the period June 28, 1994 to June 30, 1995, should be considered as one term. Since he thereafter served for two consecutive terms from 1995 to 1998 and from 1998 to 2001, his election on May 14, 2001 was actually his fourth term and contravenes Art. X, Sec. 8 of the Constitution. For this reason, she voted to grant the petition and to declare respondents election on May 14, 2002 as null and void. CARPIO, J., joined by CARPI0-MORALES, J., also dissented and voted to grant the petition. He held that a recall term constitutes one term and that to totally ignore a recall term in determining the three-term limit would allow local officials to serve for more than nine consecutive years contrary to the manifest intent of the framers of the Constitution. He contended that respondent Romans election in 2001 cannot exempt him from the three-term limit imposed by the Constitution. WHEREFORE, THE PETITION FOR CERTIORARI IS DISMISSED. THE SEPARATE OPINIONS OF THE JUSTICES ARE HERETO ATTACHED AS PART OF THIS RESOLUTION. In his Separate Opinion, Justice Vitug voted to dismiss the petition on the following considerations: In order that the three-consecutive term limit can apply, two conditions must concur, i.e., (1) that the elective local official concerned has been elected for three consecutive terms to the same local government position, and (2) that he has served three consecutive full terms, albeit a voluntary renunciation of the office for any


length of time shall not be deemed to be an interruption in the continuity of the service for the full term for which he is elected. The constitutional provision does not appear to be all that imprecise for and in its application. Section 8, Article X, of the Constitution is explicit that the term of office of elective local officials x x x shall be three years which phrase is forthwith followed by its mandate that no such official shall serve for more than three consecutive terms, and that [v]oluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he [is] elected. The law evidently contemplates a continuous full three-year term before the proscription can apply. The Constitutional Commission, in its deliberations, referred to a full nine (9) years of service for each elective local government official in the application of the prohibition, envisioning at the same time a continuous and uninterrupted period of nine years by providing for only one exception, i.e., when an incumbent voluntarily gives up the office. Xxx A winner who dislodges in a recall election an incumbent elective local official merely serves the balance of the latters term of office; it is not a full three-year term. It also goes without saying that an incumbent elective local official against whom a recall election is initiated and who nevertheless wins in a recall election must be viewed as being a continuing term of office and not as a break in reckoning his three consecutive terms. X x x If involuntary severance from the service which results in the incumbents being unable to finish his term of office because of his ouster through valid recall proceedings negates one term for purposes of applying the three-term limit, as so intimated in Lonzanida, it stands to reason that the balance of the term assumed by the newly elected local official in a recall election should not also be held to be one term in reckoning the three-term limit. In both situations, neither the elective local official who is unable to finish his term nor the elected local official who only assumes the balance of the term of the ousted local official following the recall election could be considered to have served a full three-year term set by the Constitution. This view is not inconsistent, but indeed in line, with the conclusion ultimately reached in Socrates v. Commission on Elections, where the Court has considered Hagedorn, following his three full terms of nine years, still qualified to run in a recall election conducted about a year and a half after the most recent regular local elections. A recall term then, not being a full three-year term, is not to be counted or used as a basis for disqualification whether it is held prior or subsequent to the nine year full three-term limit. This same issue has been passed and ruled upon by the Commission on Elections no less than five times. Consistently, it has held that the term of a newcomer in recall elections cannot be counted as a full term and may not thus be included in counting the three-term limit prescribed under the law. The Commission on Elections, with its fact-finding facilities, its familiarity with political realities, and its peculiar expertise in dealing with election controversies, should be in a good vantage point to resolve issues of this nature. Concededly, no ready made formulae are always extant to address occasional complex issues, allowing time and experience to merely evolve and ultimately provide acceptable solutions. In the administration of election laws, it would be unsound by an excessive zeal to remove from the Commission on Elections the initiative it takes on such questions which, in fact, by legal mandate properly belong to it (See Loong v. COMELEC, 305 SCRA 832, Pangandaman v. COMELEC, 319 SCRA 283). Nor should it be ignored that the law here involved is a limitation on the right of suffrage not only on the candidate for office but also, and most importantly, on the electorate. Respondent Roman has won the election to the post of Governor of Bataan with a comfortable margin against his closest opponent. Where a candidate appears to be the clear choice of the people, doubts on the candidates eligibility, even only as a practical matter, must be so resolved as to respect and carry out, not defeat, the paramount will of the electorate. While the Constitution would attempt to prevent the monopolization of political power, indeed a wise rule, the precept of preserving the freedom of choice of the people on who shall rightfully hold the reins


of government for them is no less than fundamental in looking at its overriding intent. WHEREFORE, I vote to DISMISS the instant petition on the foregoing theses. (Melanio L. Mendoza and Mario E. Ibarra v. Commission on Elections and Leonardo B. Roman, G.R. No. 149736, Dec. 17, 2002, En Banc) 14. On May 3, 2001, petitioner filed with the Provincial Election Supervisor in Pagadian City a petition for the disqualification of respondent Sulong, pursuant to Sec. 40[b] of Republic Act No. 7160 (Local Government Code), which disqualifies from running for any elective local position those removed from office as a result of an administrative case. It appears that respondent Sulong had previously won as mayor of Lapuyan on January 18, 1988. In the May 11, 1992, and again in the May 8, 1995 elections, he was reelected. In a petition for disqualification, petitioner alleged that in 1991, during his first term as mayor of Lapuyan, respondent Sulong, along with a municipal councilor of Lapuyan and several other individuals, was administratively charged (AC No. 12-91) with various offenses, and that, on February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the charges and ordered his removal from office. Petitioner claimed that this decision had become final and executory, and consequently the then vice-mayor of Lapuyan, Vicente Imbing, took his oath as mayor vice respondent Sulong on March 3, 1992. Respondent Sulong denied that the decision in AC No. 12-91 had become final and executory. He averred that after receiving a copy of the decision on February 17, 1992, he filed a motion for reconsideration and/or notice of appeal thereof on February 18, 1992; that on February 27, 1992, the Sangguniang Panlalawigan required Jim Lingating, the complainant in AC No. 12-91, to comment on respondent Sulongs motion for reconsideration and/or notice of appeal; that the said complainant had not yet complied therewith and his (respondent Sulongs) motion had consequently remained pending. Respondent Sulong denied he had been removed from office by virtue of the decision in AC No. 12-91. Held: Petitioner contends that the COMELEC en banc erred in applying the ruling in Aguinaldo v. Commission on Elections (212 SCRA 768 [1992]) in holding that the reelection of respondent Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of condoning the misconduct for which he was ordered dismissed by the Sangguniang Panlalawigan of Zamboanga del Sur. Petitioner cites Reyes v. Commission on Elections (254 SCRA 514, 525-526 [1996]) in which we held that an elective local executive officer, who is removed before the expiration of the term for which he was elected, is disqualified from being a candidate for a local elective position under Section 40[b] of the Local Government Code. We stated in Reyes: Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officers previous misconduct to the extent of cutting-off the right to remove him therefore. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected [for] another term. This is the rationale for the ruling in the two Aguinaldo cases. The case at bar is the very opposite of those cases. Here, x x x the decision in the administrative case x x x was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to Sec. 40[b] of the Local Government Code, he was disqualified from running for reelection.


It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to Sec. 40[b] which disqualified any person from running for any elective position on the ground that he has been removed as a result of an administrative case. The Local Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect. However, Reyes cannot be applied to this case because it appears that the 1992 decision of the Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty, falsification and malversation of public funds, has not until now become final. X x x The filing of his motion for reconsideration prevented the decision of Sangguniang Panlalawigan from becoming final. While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for reconsideration, the same cannot be interpreted as a prohibition against the filing of a motion for reconsideration. x x x. There is thus no decision finding respondent guilty to speak of. As Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the Sangguniang Panlalawigan simply considered the matter as having become moot and academic because it was overtaken by the local elections of May [11], 1992. Neither can the succession of the then vice-mayor of Lapuyan x x x and the highest ranking municipal councilor of Lapuyan x x x to the offices of mayor and vicemayor, respectively, be considered proof that the decision in AC No. 12-91 had become final because it appears to have been made pursuant to Sec. 68 of the Local Government Code, which makes decisions in administrative cases immediately executory. Indeed, considering the failure of the Sangguniang Panlalawigan to resolve respondents motion, it is unfair to the electorate to be told after they have voted for respondent Sulong that after all he is disqualified, especially since at the time of the elections on May 14, 2001, the decision of the Sangguniang Panlalawigan had been rendered nearly ten years ago. Xxx WHEREFORE, the petition for certiorari is DISMISSED and the resolution x x x of the COMELEC en banc, dismissing petitioners petition for disqualification, is AFFIRMED. (Atty. Miguel M. Lingating v. Commission on Elections and Cesar B. Sulong, G.R. No. 153475, Nov. 13, 2002, En Banc [Mendoza]) 15. With the ratification of the Visiting Forces Agreement (VFA), has it now become obligatory and incumbent on our part to be bound by its terms even if it is asserted that said agreement contravenes the Constitution? Held: 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, 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 (Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and Materials, 2nd Ed., American Casebook Series, p. 136). Hence, we cannot readily plead the Constitution as a convenient excuse for noncompliance 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. (Gerhard von Glahn, supra, p. 487) 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 (Harris, p. 634 cited in Coquia, International Law, supra, p. 512). (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, 342 SCRA 449, 492-493, En Banc [Buena]) 16. Discuss the Indigenous International Movement. Is the Philippines an active participant in the Indigenous International Movement? Held: The Indigenous Peoples Rights Act (IPRA) is a recognition of our active participation in the indigenous international movement. The indigenous movement can be seen as the heir to a history of antiimperialism stretching back to prehistoric times. The movement received a massive impetus during the 1960s from two sources. First, the decolonization of Asia and Africa brought into the limelight the possibility of peoples controlling their own destinies. Second, the right of self-determination was enshrined in the UN Declaration on Human Rights (Andrew Gray, The Indigenous Movement in Asia, Indigenous Peoples of Asia, ed. by Barnes, Gray and Kingsbury, pub. by Assn. for Asian Studies, at 35, 42 [1995]). The rise of the civil rights movement and antiracism brought to the attention of North American Indians, Aborigines in Australia, and Maori in New Zealand the possibility of fighting for fundamental rights and freedoms. In 1974 and 1975, international indigenous organizations were founded (E.g. International Indian Treaty Council, World Council of IPs), and during the 1980s, indigenous affairs were on the international agenda. The people of the Philippine Cordillera were the first Asians to take part in the international indigenous movement. It was the Cordillera Peoples Alliance that carried out successful campaigns against the building of the Chico River Dam in 1981-82 and they have since become one of the best-organized indigenous bodies in the world (Gray, The Indigenous Movement in Asia, supra, at 44, citing the International Work Group for Indigenous Affairs, 1988). Presently, there is a growing concern for indigenous rights in the international scene. This came as a result of the increased publicity focused on the continuing disrespect for indigenous human rights and the destruction of the indigenous peoples environment, together with the national governments inability to deal with the situation (Jose Paulo Kastrup, The Internationalization of Indigenous Rights from the Environmental and Human Rights Perspective, 32 Texas International Law Journal 97, 102 [1997]). Indigenous rights came as a result of both human rights and environmental protection, and have become a part of todays priorities for the international agenda (Benedict Kingsbury, Indigenous Peoples in International Law: A Constructive Approach to the Asian Controversy, The American Journal of International Law, vol. 92: 414, 429 [1998]). International organizations and bodies have realized the necessity of applying policies, programs and specific rules concerning IPs in some nations. The World Bank, for example, first adopted a policy on IPs as a result of the dismal experience of projects in Latin America (The World Bank supported the Chico Dam Project. Due to the Kalingas opposition, the WB pulled out of the project but the conflict between the Philippine government and the natives endured long after Marcus Colchester, Indigenous Peoples Rights and Sustainable Resource Use in South and Southeast Asia, Indigenous Peoples of Asia, supra, pp. 59, 71-72). The World Bank now seeks to apply its current policy on IPs to some of its projects in Asia. This policy has provided an influential model for the projects of the Asian Development Bank (Kingsbury, supra, at 417).


The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and declares as a State policy the promotion of their rights within the framework of national unity and development (Section 22, Article II, 1987 Constitution). The IPRA amalgamates the Philippine category of ICCs with the international category of IPs (Interpellation of Senator Flavier on S.B. No. 1728, Deliberation on Second Reading, November 20, 1996, p. 20), and is heavily influenced by both the International Labor Organization (ILO) Convention 169 and the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples (Guide to R.A. 8371, Coalition for IPs Rights and Ancestral Domains, the International Labor Organization, and the ILO-Bilance-Asia Dept, p. 3 [1999]). ILO Convention No. 169 is entitled the Convention Concerning Indigenous and Tribal Peoples in Independent Countries (Also referred to as the Indigenous and Tribal Peoples Convention, 1989) and was adopted on June 27, 1989. It is based on the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and many other international instruments on the prevention of discrimination (See Introduction to ILO Convention No. 169, par. 4). ILO Convention No. 169 revised the Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (ILO No. 107) passed on June 26, 1957. Developments in international law made it appropriate to adopt new international standards on indigenous peoples with a view to removing the assimilationist orientation of the earlier standards, and recognizing the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development. (Id., pars. 5 and 6) (Separate Opinion, Puno, J., in Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 238241, Dec. 6, 2000, En Banc) 17. State the occasions when the use of force may be allowed under the UN Charter. Ans.: There are only two occasions when the use of force is allowed under the UN Charter. The first is when it is authorized in pursuance of the enforcement action that may be decreed by the Security Council under Art. 42. The second is when it is employed in the exercise of the inherent right of self-defense under conditions prescribed in Art. 51. (Justice Isagani A. Cruz, in an article entitled A New World Order written in his column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer) 18. Is the United States justified in invading Iraq invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction? Ans.: The United States is invoking its right to defend itself against an expected attack by Iraq with the use of its biological and chemical weapons of mass destruction. There is no evidence of such a threat, but Bush is probably invoking the modern view that a state does not have to wait until the potential enemy fires first. The cowboy from Texas says that outdrawing the foe who is about to shoot is an act of self-defense. Art. 51 says, however, that there must first be an armed attack before a state can exercise its inherent right of self-defense, and only until the Security Council, to which the aggression should be reported, shall have taken the necessary measures to maintain international peace and security. It was the United States that made the armed attack first, thus becoming the aggressor, not Iraq. Iraq is now not only exercising its inherent right of self-defense as recognized by the UN Charter. (Justice Isagani A. Cruz, in an article entitled A New World Order written in his column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer) 19. Will the subsequent discovery of weapons of mass destruction in Iraq after its invasion by the US justify the attack initiated by the latter? Ans.: Even if Iraqs hidden arsenal is discovered or actually used and the United States is justified in its suspicions, that circumstance will not validate the procedure taken against Iraq. It is like searching a person without warrant and curing


the irregularity with the discovery of prohibited drugs in his possession. The process cannot be reversed. The warrant must first be issued before the search and seizure can be made. The American invasion was made without permission from the Security Council as required by the UN Charter. Any subsequent discovery of the prohibited biological and chemical weapons will not retroactively legalize that invasion, which was, legally speaking, null and void ab initio. (Justice Isagani A. Cruz, in an article entitled A New World Order written in his column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer) 20.Discuss the Five Postulates of Extradition. Held: 1. Extradition Is a Major Instrument for the Suppression of Crime. First, extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest and custodial transfer (Bassiouni, International Extradition, 1987 ed., p. 68) of a fugitive 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. (Bassiouni, supra, p. 21) 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 (Id., p. 67). Xxx 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 country. 2. The Requesting State Will Accord Due Process to the Accused. Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each others legal system and judicial process (Coquia, On Implementation of the RP-US Extradition Treaty, The Lawyers Review, August 31, 2000, p. 4). More pointedly, our duly authorized representatives signature on an extradition treaty signifies our confidence in the capacity and willingness of the other state to protect the basic rights of the person sought to be extradited (See Bassiouni, p. 546; citing 221 US 508, 512 [1910]). That signature signifies our full faith that the accused will be given, 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 (Supra), 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. Xxx 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 (Secretary of Justice v. Lantion, supra.). 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 (Shearer, Extradition in International Law, 1971 ed., p. 157). 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 (Id., p. 545). 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 (In line with the Philippine policy of cooperation and amity with all nations set forth in Article II, Section 2, Constitution). On the other hand, failure to fulfill our obligations thereunder paints at bad 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. Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty (Secretary of Justice v. Lantion, supra.). 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. (Wright v. Henkel, 190 U.S. 40, 62, March 23, 1903) 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 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 (Persily, International Extradition and the Right to Bail, 34 Stan. J. Intl L. 407 [Summer 1988]). 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? (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban]) 21. Is respondent in an Extradition Proceeding entitled to notice and hearing before the issuance of a warrant of arrest? xx Held: Both parties cite Section 6 of PD 1069 in support of their arguments. X

Does this provision sanction RTC Judge Purganans 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, receiving facts and arguments from them, and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can no longer be considered immediate. The law could not have intended the word as a mere superfluity but, on the whole, as a means of impairing 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. Xxx 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. 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 (See Sec. 9, PD 1069) 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. Xxx Verily x x x 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. X x x 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 (280 SCRA 365, October 9, 1997) and in all the cases cited therein, never was a judge required to go to the extent of conducting a hearing just for the 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. In Webb v. De Leon (247 SCRA 652, 680, per Puno, J.), the Court categorically stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest x x x.


At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses (Ibid; citing Allado v. Diokno, 233 SCRA 192, May 5, 1994). 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 respondents demonstrated predisposition to flee. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban]) 22. Is respondent Mark Jimenez entitled to bail during the pendency of the Extradition Proceeding? Held: We agree with petitioner. As suggested by the use of the word conviction, the constitutional provision on bail x x x, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of 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. (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, Jr. [later CJ]) It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not an 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. (Sec. 18, Article VII, Constitution) Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. 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. 23. Will Mark Jimenezs detention prior to the conclusion of the extradition proceedings not amount to a violation of his right to due process? Held: 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 (Garcia v. NLRC, GR No. 110494, November 18, 1996; Paat v. Court of Appeals, January 10, 1997) but, at the same time, point out that the doctrine does not always call for a prior opportunity to be heard (See Central Bank of the Philippines v. Court of Appeals, 220 SCRA 536, March 20, 1993). Where the circumstances such as those present in an extradition case call for it, a


subsequent opportunity to be heard is enough (Ibid. See also Busuego v. Court of Appeals, 304 SCRA 473, March 11, 1999). In the present case, respondent will be given 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 DOJs 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 judges 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 courts 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 had 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 due process that he had previously shunned pales against the governments 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 interest. (Coquia, On the Implementation of the US-RP Extradition Treaty, supra; citing Kelso v. US Department of State, 13 F Supp. 291 [DDC 1998]) Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase the risk of violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to be extradited are able to evade arrest or escape from our custody. In the absence of any provision in the Constitution, the law or the treaty expressly guaranteeing the right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors. The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14 (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.) 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. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban]) 24. What are the exceptions to the No Bail Rule in Extradition Proceedings? Held: The rule x x x is that bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave abuse of discretion and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights. Furthermore, we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the life, liberty or property of every person. It is dynamic and


resilient, adaptable to every situation calling for its application. (I.A. Cruz, Constitutional Law, 1998 ed., p. 98) Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may 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. 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. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban]) 25. Are there special circumstances compelling enough for the Court to grant Mark Jimenezs request for provisional release on bail? Held: 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 (324 SCRA 689, February 3, 2000, per Ynares-Santiago, J.), the Court has already debunked the disenfranchisement argument x x x. 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 his 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. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban]) 26. Discuss the Ten Points to consider in Extradition Proceedings? Held: 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 courts 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 d ue to our inability to comply in good faith with a treaty partners 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. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])