G.R. No.

L-4254

September 26, 1951

BORIS MEJOFF, petitioner, vs. THE DIRECTOR OF PRISONS, respondent. Ambrosio T. Dollete for petitioner. First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor for respondents. TUASON, J.: This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a decision of this Court of July 30, 1949. The history of the petitioner's detention was thus briefly set forth in that decision, written by Mr. Justice Bengzon: The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from Shanghai as a secret operative by the Japanese forces during the latter's regime in these Islands. Upon liberation he was arrested as a Japanese spy, by U.S. Army Counter Intelligence Corps. Later he was handed to theCommonwealth Government for disposition in accordance with Commonwealth Act No. 682. Thereafter, the People's Court ordered his release. But the deportation Board taking his case up, found that having no travel documents Mejoff was illegally in this country, and consequently referred the matter to the immigration authorities. After the corresponding investigation, the Board of commissioners of Immigration on April 5, 1948, declared that Mejoff had entered the Philippines illegally in 1944, without inspection and admission by the immigration officials at a designation port of entry and, therefore, it ordered that he be deported on the first available transportation to Russia. The petitioner was then under custody, he having been arrested on March 18, 1948. In May 1948 he was transferred to the Cebu Provincial Jail together with three other Russians to await the arrival of some Russian vessels. In July and August of that year two boats of Russian nationality called at the Cebu Port. But their masters refused to take petitioner and his companions alleging lack of authority to do so. In October 1948 after repeated failures to ship this deportee abroad, the authorities removed him to Bilibid Prison at Muntinglupa where he has been confined up to the present time, inasmuch as the Commissioner of Immigration believes it is for the best interests of the country to keep him under detention while arrangements for his departure are being made. The Court held the petitioner's detention temporary and said that "temporary detention is a necessary step in the process of exclusion or expulsion of undesirable aliens and that pending arrangements for his deportation, the Government has the right to hold the undesirable alien under confinement for a reasonable lenght of time." It took note of the fact, manifested by the Solicitor General's representative in the course of the of the oral argumment, that "this Government desires to expel the alien, and does not relish keeping him at the people's expense . . . making efforts to carry out the decree of exclusion by the highest officer of the land." No period was fixed within which the immigration authorities should carry out the contemplated deportation beyond the statement that "The meaning of 'reasonable time' depends upon the circumstances, specially the difficulties of obtaining a passport, the availability of transportation, the diplomatic arrangements with the governments concerned and the efforts displayed to send the deportee away;" but the Court warned that "under established precedents, too long a detention may justify the issuance of a writ of habeas corpus." Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of this decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge of the prisoner from custody. Mr. Justice Paras qualified his dissent by stating that he might agree "to further detention of the herein petitioner, provided that he be released if after six months, the Government is still unable to deport him." This writer joined in the latter dissent but thought that two months constituted reasonable time. Over two years having elapsed since the decision aforesaid was promulgated, the Government has not found way and means of removing the petitioner out of the country, and none are in sight, although it should be said in justice to the deportation authorities, it was through no fault of theirs that no ship or country would take the petitioner.

Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon, Sept. 18, 1946, 157 F. ed., 289, 290), even if they are "stateless," which the petitioner claims to be. It is no less true however, as impliedly stated in this Court's decision, supra, that foreign nationals, not enemy against whom no charge has been made other than that their permission to stay has expired, may not indefinitely be kept in detention. The protection against deprivation of liberty without due process of law and except for crimes committed against the laws of the land is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality. Whether an alien who entered the country in violation of its immigration laws may be detained for as long as the Government is unable to deport him, is a point we need not decide. The petitioner's entry into the Philippines was not unlawful; he was brought by the armed and belligerent forces of a de facto government whose decrees were law furing the occupation. Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles of international law as part of the law of Nation." And in a resolution entitled "Universal Declaration of Human Rights" and approved by the General Assembly of the United Nations of which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed. It was there resolved that "All human beings are born free and equal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status" (Art. 2): that "Every one has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary arrest, detention or exile" (Art. 9); etc. In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from custody an alien who has been detained an unreasonably long period of time by the Department of Justice after it has become apparent that although a warrant for his deportation has been issued, the warrant can not be effectuated;" that "the theory on which the court is given the power to act is that the warrant of deportation, not having been able to be executed, is functus officio and the alien is being held without any authority of law." The decision cited several cases which, it said, settled the matter definitely in that jurisdiction, adding that the same result had reached in innumerable cases elsewhere. The cases referred to were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401, 404; Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp. 425. The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins (1948), 90 Fed. Supp., 132, which is nearly foursquare with the case at hand. In that case a stateless person, formerly a Polish national, resident in the United States since 1911 and many times serving as a seaman on American vessels both in peace and in war, was ordered excluded from the United States and detained at Ellis Island at the expense of the steamship company, when he returned from a voyage on which he had shipped from New York for one or more European ports and return to the United States. The grounds for his exclusion were that he had no passport or immigration visa, and that in 1937 had been convicted of perjury because in certain documents he presented himself to be an American citizen. Upon his application for release on habeas corpus, the Court released him upon his own recognizance. Judge Leibell, of the United States District Court for the Southern District of New York, said in part: When the return to the writ of habeas corpus came before this court, I suggested that all interested parties . . . make an effort to arrange to have the petitioner ship out of some country that he would receive him as a resident. He is, a native-born Pole but the Polish Consul has advised him in writing that he is no longer a Polish subject. This Government does not claim that he is a Polish citizen. His attorney says he is a stateless. The Government is willing that he go back to the ship, but if he were sent back aboard a ship and sailed to the Port (Cherbourg, France) from which he last sailed to the United States, he would probably be denied permission to land. There is no other country that would take him, without proper documents. It seems to me that this is a genuine hardship case and that the petitioner should be released from custody on proper terms. . . .

What is to be done with the petitioner? The government has had him in custody almost seven months and practically admits it has no place to send him out of this country. The steamship company, which employed him as one of a group sent to the ship by the Union, with proper seaman's papers issued by the United States Coast Guard, is paying $3 a day for petitioner's board at Ellis Island. It is no fault of the steamship company that petitioner is an inadmissible alien as the immigration officials describe him. ... I intend to sustain the writ of habeas corpus and order the release of the petitioner on his own recognizance. He will be required to inform the immigration officials at Ellis Island by mail on the 15th of each month, stating where he is employed and where he can be reached by mail. If the government does succeed in arranging for petitioner's deportation to a country that will be ready to receive him as a resident, it may then advise the petitioner to that effect and arrange for his deportation in the manner provided by law. Although not binding upon this Court as a precedent, the case aforecited affords a happy solution to the quandry in which the parties here finds themselves, solution which we think is sensible, sound and compatible with law and the Constitution. For this reason, and since the Philippine law on immigration was patterned after or copied from the American law and practice, we choose to follow and adopt the reasoning and conclusions in the Staniszewski decision with some modifications which, it is believed, are in consonance with the prevailing conditions of peace and order in the Philippines. It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the return, that the petitioner was engaged in subversive activities, and fear was expressed that he might join or aid the disloyal elements if allowed to be at large. Bearing in mind the Government's allegation in its answer that "the herein petitioner was brought to the Philippines by the Japanese forces," and the fact that Japan is no longer at war with the United States or the Philippines nor identified with the countries allied against these nations, the possibility of the petitioner's entertaining or committing hostile acts prejudicial to the interest and security of this country seems remote. If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly prolonged detention would be unwarranted by law and the Constitution, if the only purpose of the detention be to eliminate a danger that is by no means actual, present, or uncontrolable. After all, the Government is not impotent to deal with or prevent any threat by such measure as that just outlined. The thought eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in connection with the appliccation for bail of ten Communists convicted by a lower court of advocacy of violent overthrow of the United States Government is, in principle, pertinent and may be availed of at this juncture. Said the learned Jurist: The Governmet's alternative contention is that defendants, by misbehavior after conviction, have forfeited their claim to bail. Grave public danger is said to result from what they may be expected to do, in addition to what they have done since their conviction. If I assume that defendants are disposed to commit every opportune disloyal to act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. lmprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted. But the right of every American to equal treatment before the law is wrapped up in the same constitutional bundle with those of these Communists. If an anger or disgust with these defendants we throw out the bundle, we alsocast aside protection for the liberties of more worthy critics who may be in opposition to the government of some future day. xxx xxx xxx
1âwphïl.nêt

If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there is a very practical aspect of this application which must not be overlooked or underestimated — that is the

disastrous effect on the reputation of American justice if I should now send these men to jail and the full Court later decide that their conviction is invalid. All experience with litigation teaches that existence of a substantial question about a conviction implies a more than negligible risk of reversal. Indeed this experience lies back of our rule permitting and practice of allowing bail where such questions exist, to avoid the hazard of unjustifiably imprisoning persons with consequent reproach to our system of justice. If that is prudent judicial practice in the ordinary case, how much more important to avoid every chance of handing to the Communist world such an ideological weapon as it would have if this country should imprison this handful of Communist leaders on a conviction that our highest Court would confess to be illegal. Risks, of course, are involved in either granting or refusing bail. I am naive enough to underestimate the troublemaking propensities of the defendants. But, with the Department of Justice alert to the the dangers, the worst they can accomplish in the short time it will take to end the litigation is preferable to the possibility of national embarrassment from a celebrated case of unjustified imprisonment of Communist leaders. Under no circumstances must we permit their symbolization of an evil force in the world to be hallowed and glorified by any semblance of martyrdom. The way to avoid that risk is not to jail these men until it is finally decided that they should stay jailed. If that case is not comparable with ours on the issues presented, its underlying principle is of universal application. In fact, its ratio decidendi applies with greater force to the present petition, since the right of accused to bail pending apppeal of his case, as in the case of the ten Communists, depends upon the discretion of the court, whereas the right to be enlarged before formal charges are instituted is absolute. As already noted, not only are there no charges pending against the petitioner, but the prospects of bringing any against him are slim and remote. Premises considered, the writ will issue commanding the respondents to release the petitioner from custody upon these terms: The petitioner shall be placed under the surveillance of the immigration authorities or their agents in such form and manner as may be deemed adequate to insure that he keep peace and be available when the Government is ready to deport him. The surveillance shall be reasonable and the question of reasonableness shall be submitted to this Court or to the Court of First Instance of Manila for decision in case of abuse. He shall also put up a bond for the above purpose in the amount of P5,000 with sufficient surety or sureties, which bond the Commissioner of Immigration is authorized to exact by section 40 of Commonwealth Act No. 613. No costs will be charged. Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.

Separate Opinions PABLO, M., disidente: Disiento En decision disada por este Tribunal en la primera causa de habeas corpus incoada por el solicitante Boris Mejoff (G.R. No. L-2855, Mejoff vs. Director of Prisons)*, se declaro que el habia venido a Filipinas procedente de Shanghai como espia japones; en la liberacion, el ejercito americano le arresto por se espia, habiendo sido mas tarde entregado al Gobierno del Commonwealth para ser tratado de acuerdo con la ley No.682; pero como bajo el Codgo Penal Revisado, antes de su enmienda por la Orden Ejecutiva No. 44, (mayo 31, 1945) no se castiga al extranjero que comete traicion, Mejoff fue puesto en libertad. Despues de una debida investigacion, la Junta de Departacion encontra que el solicitante no tenia permiso para entrar en Filipinas; fue entregado a la Junta de Inmigacion, la cual ordeno su deportacion a Rusia por el primer transporte disponible por haber vendo aqui ilegalmente; fue enviado a Cebu para que alli se embarcase, pero los dos barcos de nacionalidad rusa que llegaron a dicho puerto en julio y agosto de 1948 rehusaron admitirle. Por no encontrar

transportacion para su departacion, Mejoff fue enviado a la Prison de Muntinglupa, donde esta actualmente de tenido mientras el Gobierno no encuenra medio de transportarle a Rusia. La mayoria contiende que "The Petitioner's entry into the Philippines was not unlawful; he was brought by the armed and belligerent forces of a de facto government whose decrees were law during the occupation." Es tan ilegal la entrada del solicitante como la del ejercito al que sirvio como espia. Ninguno tiene derecho a permanecer aqui. Puesto que fue vencido el ejercito invasor que le trajo, el solicitante no tiene derecho a pemanecer aqui ni un minuto mas. Si desea proteccion, debe acudir al Gobierno Japones a cuyo ejercito el sirvio; el hecho de que ya esta aqui no le da titulo para permanecer libre aqui. El que ha venido como espia de enemigo del Pueblo de Filipinas no tiene derecho a pedir igual trato que aquel ha entrado de buena fe. ¿Es que Filipinos tiene la obligacion de acoger a un ciudadano indeseable de Rusia? ¿Desde cuando tiene que allanarse una nacion a ser residencia de una extranjero que entro como enemigo o, peor aun, como espia? Un Estado tiene indiscutible derecho a deportar y expulsar de su territorio a todo extranjero indeseable. El solicitante sostiene que no tiene estado. Eso no es razon para que tenga derecho a permanecer aqui. Puede ser departado a Rusio o a Shanghai de donde vino. Si todos los rusos que, por alguno que otro motivo, o por odio al comunisomo, dejasen su pais y emigrasen aqui reclamando igual derecho, no habria territorio suficiente para ellos. Se puede decir otro tanto de los chinos que, so pretexto de no querer someterse al regimen comunista, optasen por resider para siempre aqui. Y si los mismos communistas chinos viniesen clandestinamente y despues reclamasen igual proteccion como la concedida a Mejoff, ¿tendreos que darles por el gusto? Se invoca la resolucion aprobada por la Asamblea General de las Naciones Unidas, titulada "Universal Declaration of Human Rights", en la que se establece, entre otras cosas, que "no one shall be subjected to arbitrary arrest, detention or exile." Yo soy de los que creen firmemente en lo sagrado de esta resolucion; no puedo permitir que se detenga y se arreste a alguien sin motivo justificado, de una manera arbitraria; pero el solicitante no esta detenido de esta manera, lo esta de una manera provisional. Tan pronto como haya barco disponible para su deportacion o tan pronto como pueda embarcarse en algun barco para el extenjero o para cualquier otro punto a donde quiera ir, dejara de ser detenido. Conste que no esta preso como un criminal condenado por un delito; esta tratado como cualquier otro extranjero sujeto a deportacion. Si el solicitante no hubiera sido espia, si no hubiera venido aqui para ayudar a las hordas japonesas en la subyugacion del pueblo filipino, si hubiera venido como visitante, por ejemplo, y, por azares de la fortuna, no pudo salir, yo seria el primero en abogar por su liberacion inmediata. Se cita el caso de Staniszewski vs. Watkins, (1948 A.M.C. 931, 42 American Journal of International Law, 732) en el cual el recurrente estuvo detenido ya casi siete meses cuando se decreto su libertad en un recurso de habeas corpus. En nuestra opinion, dicho caso no tiene simulitud con la causa presente. Staniszewski era residente de los Estados desde 1911; estuvo sirviendo como marino en barcos mercantes americanos en tiempo de guerra y se ordeno su detencion en Ellis Island cuando volvio a America procedente de un viaje a Europa por no tener papeles de inmigracion. Staniszewski no habia entrado en los Estados Unidos como espia, estuvo residiendo en dicho pais por varios años, era ya habitante de los Estados unidos. La ocupacion de marino es honrosa, la del espia mercenario, detestable. El espia es peor que el enemigo. Este lucha cara a cara, y el espia, con disimulo y arte engañosa, escucha lo que a Staniszewski se le haya puesto en libertad. Poner en libertad a un espia es poner en peligro la seguridad del Estado. En cuanto a la duracion de la detencion provisional del recurrente, no hay regla fija, depende de la cincunstancia de cada caso particular. Es evidente que los medios de comunicacion entre Filipinas y Rusia o Shanghai, debico a fala de relciones diplomaticas, son completamente anormales. No es culpa del gobierno el que no encuentre medios de transportacion para el. La Comision de Inmigracion ha dado pasos para que la International Refugee Organziation of the United Nations (IRO0 se hiciera cargo del recurrente para que pueda ser repartriado o enviado a otro pais extranjero, pero el Jefe de dicha organizacion contesto que no estaba en condicines para aceptar dicha recomendacion. William Martin Jurgans fue arrestado en 9 de enero de 1920, en 20 de mayo se decreto su deportacion por el Sub Secretario del Tarabajo por violacion de la Ley de Inmigracion; solicto su libertad bajo el recurso

If he is not really fit for sea service.. A federal court would not be justified in discharging him. En Moraitis vs. Howe. . Schlimm vs. sino porque no hay medio disponible para realizarlo. se dijo: What constitutes a reasonable time for the detention of the petitioner in custody for deportation depends upon the facts and circumstances of particular cases. D C. 46 F. 97. . must be utilized to the utmost without delay consequent upon the lack of avilable seamen. Como se vera. La proposicion de vigilar al recurrente hasta que el gobierno encuentre transporte para su deportacion. y en 16 de febrero de 1927 se denego su peticion. supon un gasto innecesario. while this country has no power under existing legislation to impress him into sea service against his will. Supp. . This court cannot shut its eyes to the vitally important interests of this country at this time with respect to the bottleneck of shipping. . although he may be able to serve his government in some other capacity.de Habeas Corpus. It was said: At the present time there is no regular passenger ocean service to German ports." (District Court of Minnesota. 222 F. 96. His continual detention is unfortunate. la de Mejoff no ha sido mas que de 31 meses. and to remain at liberty in this country as a sanctuary contrary to our laws. and are holding him until some opportunity of returning him to Germany may present itself. rel. Esta jutificada por las circunstancias anormales. no se le pudo deportar porque "the necessary arrangements for his deportation could obviously not be made. U Y. it is not probable that he would be forced into it. but certainly is not illegal. so the authorities are unable to forward him. His present condition can be alleviated only by the action of the executive branch of the government. when every available ship. 507). domestic and foreign. 2nd series. No es arbitraria la detencion de Mejoff. 17 F. Under these present conditions the court should be liberal indeed in aiding the executive branch of the govenment in the strict enforcement of laws so vitally necessary in the common defns. y no porque el gobierno no quiere deportarle. he has no just cause to be relieved from the strict enforcement of our deportation laws. But however that may be.N. There is sound authority for this view in United States ex. his deportation to Germany was not possible. where Circuit Judge Lacombe refused to release an alien who had come here from Germany and was ordered deported in 1915 when. la detencion provisional de William Martin Jurgans duro mas de seis años. Delany. 425. by reason of the then existing war between Germany and England.

: The individual citizen is but a speck of particle or molecule vis-à-vis the vast and overwhelming powers of government. petitioner. Based on the papers submitted. the mutual concern for the suppression of crime both in the state where it was committed and the state where the criminal may have escaped. The Senate. the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested countries. LANTION. Maximum Penalty — 5 years on each count). respondents. The Court is now called to decide whether to uphold a citizen's basic due process rights.R. 139465 January 18. 11. Maximum Penalty — less than one year). B) 26 USC 7201 (Attempt to evade or defeat tax. signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Decree is founded on: the doctrine of incorporation under the Constitution. Maximum Penalty — 5 years on each count). and MARK B. 1977. RALPH C. 1994. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". or the government's ironclad duties under a treaty. expressed its concurrence in the ratification of said treaty. and other supporting documents for said extradition. On June 18. C) 18 USC 1343 (Fraud by wire. thirty-three [33] counts. Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in the Requesting State). four [4] counts. two [2] counts. D) 18 USC 1001 (False statement or entries. . The petition at our doorstep is cast against the following factual backdrop: On January 13. vs. 2000 SECRETARY OF JUSTICE. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a). Attached to the Note Verbale were the Grand Jury Indictment.G. On November 13. Maximum Penalty — 5 years on each count). MELO. The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ. six [6] counts. Marcos issued Presidential Decree No. Southern District of Florida. Maximum Penalty — 5 years on each count). His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. by way of Resolution No.S. the Department of Justice received from the Department of Foreign Affairs U. Drilon. HON. JIMENEZ. two [2] counts. 1999. radio. Note Verbale No. Regional Trial Court of Manila. Branch 25. E) 2 USC 441f (Election contributions in name of another. No. and the need for rules to guide the executive department and the courts in the proper implementation of said treaties. private respondent appears to be charged in the United States with violation of the following provisions of the United States Code (USC): A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States. then Secretary of Justice Franklin M. District Court. Presiding Judge. then President Ferdinand E. J.S. or television. the warrant of arrest issued by the U. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. representing the Government of the Republic of the Philippines.

Jimenez. Rollo. denied the foregoing requests for the following reasons: 1. Pending evaluation of the aforestated extradition documents. wrote a letter dated July 1. It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition. and that he be given ample time to comment on the request after he shall have received copies of the requested papers. The Department of Justice under P. 1069. private respondent requested that preliminary. The United States had to secure orders from the concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. Any further disclosure of the said information is not authorized by the United States District Courts. Government. In response to private respondent's July 1. as well as all documents and papers submitted therewith. No. in a reply-letter dated July 13.S. request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents.(p.) On the same day.D. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed" (p. 15. the request of the United States Government. 3. 14. 1999 (but received by private respondent only on August 4. Rollo). a period of time to amplify on his request. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. 1069 is the counsel of the foreign governments in all extradition requests. No. Accordingly. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. petitioner issued Department Order No. Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. petitioner. or access to. the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government. through counsel. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime. pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and our extradition law. This Department's denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the interests of the United States in any proceedings arising out of a request for extradition. 1999 letter. 1999 addressed to petitioner requesting copies of the official extradition request from the U. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and establishes the procedures under which the documents submitted shall be received and admitted as evidence.D. In this particular extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. 1069. Evidentiary requirements under our domestic law are also set forth in Section 4 of P. The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by strict secrecy rules under United States law. and after receiving a copy of the Diplomatic Note. to which we are a party . 2. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available. Later. Article 26 of the Vienna Convention on the Law of Treaties. 1999). he be given at least a copy of. private respondent. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government.

THE REQUEST. this Court hereby Orders the respondents. 1999 at 9:00 o'clock in the morning. for mandamus (to compel herein petitioner to furnish private respondent the extradition documents.certiorari (to set aside herein petitioner's letter dated July 13. private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice. but the same was denied.) Forthwith. 77-78. disposing: WHEREFORE.E. SO ORDERED. Extradition is a tool of criminal law enforcement and to be effective. moved that he be given ample time to file a memorandum. Rollo). Rollo. fairly and objectively). as agreed upon by the counsels for the parties herein.. and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court. from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner. Rollo. the Secretary of Foreign Affairs. 1999. On August 10. Petitioner. the extradition request. namely: the Secretary of Justice. BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF. and thereafter to evaluate the request impartially. 104-105. pursuant to Section 5. to give him access thereto. from filing the corresponding Petition with a Regional Trial court. 1999. on August 6. Rule 58 of the 1997 Rules of Court. 1999). their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of. and the Director of the National Bureau of Investigation. Lantion. likewise. and to afford him an opportunity to comment on. or oppose. the case was heard on August 9. The aforementioned petition was docketed as Civil Case No. and from performing any act directed to the extradition of the petitioner to the United States. 110-111. OR OPPOSITION TO. requests for extradition or surrender of accused or convicted persons must be processed expeditiously. is set on August 17.) Such was the state of affairs when. arguing that: PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE: I. (pp. (pp. who appeared in his own behalf. 1999. for a period of twenty (20) days from service on respondents of this Order. with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. I. The hearing as to whether or not this Court shall issue the preliminary injunction. After due notice to the parties. and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States). the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation.provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". THE MAIN . respondent judge issued an order dated the previous day. petitioner initiated the instant proceedings. The respondents are. ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date. TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON.

particularly the propriety of the filing of the petition therein. moot and academic (the issues of which are substantially the same as those before us now). 1999 issued by public respondent in Civil Case No. JR. as directed. Respondent Judge Ralph C.. GIVEN by the Honorable HILARIO G. FORMALLY AND SUBSTANTIALLY DEFICIENT. brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. is private respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court. III. DAVIDE. filed their respective memoranda. ON ITS FACE. your agents. representatives or any person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9. 1999. would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach. was a temporary restraining order (TRO) providing: NOW. AND WILL NOT SUFFER ANY IRREPARABLE INJURY. PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW. CERTIORARI AND PROHIBITION IS. a review of these issues as well as the extensive arguments of both parties. the Court required private respondent to file his comment. II. the Court has elected to go directly into the substantive merits of the case. as prayed for. Lantion. THEREFORE. 1999. Corollarily.PRAYER FOR A WRIT OF MANDAMUSIN THE PETITION FOR MANDAMUS. Supreme Court of the Philippines. PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS ENFORCEMENT. IN EFFECT. CERTIORARI AND PROHIBITION WAS.) On August 17. Also issued. both procedural and substantive issues are patent. You. Chief Justice. Rollo. is there any conflict between private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty? The issues having transcendental importance. From the pleadings of the opposing parties. while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24. 19-20. and of the issuance of the TRO of August 17. However. compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings. this 17th day of August 1999. 99-94684. 120-121. after which the parties. THE PETITION FOR (MANDAMUS). 1999. in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings. Rollo. (pp. thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial court. 1999 by the trial court. GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES. effective immediately and continuing until further orders from this Court.) The case was heard on oral argument on August 31. 9994684. AND IV. PROTECTION AND . (pp.

4. and 4. Such other documents or information in support of the request. 1069. the executive authority must ascertain whether or not the request is supported by: 1. . . A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested. and the time and place of the commission of these acts. 1069. the issues call for a review of the extradition procedure. or other types of information which describe the identity and probable location of the person sought. his whereabouts in the Philippines. 4. which sets forth the duty of the Secretary of Foreign Affairs. and shall be accompanied by: 1. The RP-US Extradition Treaty which was executed only on November 13. A statement of the facts of the offense and the procedural history of the case. if known. the acts or omissions complained of. The text of the applicable law or a statement of the contents of said law. Article 7 of the RP-US Extradition Treaty. Documents. 1994. he shall forward the request together with the related documents to the Secretary of Justice. pertinently provides . with the fullest particulars as to the name and identity of the accused. (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention. The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over the matter. A recital of the acts for which extradition is requested. sufficient for evaluation of the request.) Sec. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government. or some other instruments having equivalent legal force. . 3." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual.To be sure. 2. 2. 5 of the Presidential Decree. What then is the coverage of this task? In accordance with Paragraphs 2 and 3. statements. A statement of the provisions of law describing the punishment for the offense. 3. are abstracted as follows: The Extradition Request The request is made by the Foreign Diplomat of the Requesting State. (Sec. and the designation or description of the offense by the law. addressed to the Secretary of Foreign Affairs. Presidential Decree No. who shall immediately designate and authorize an attorney in his office to take charge of the case. ushered into force the implementing provisions of Presidential Decree No. also called as the Philippine Extradition Law.

Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the Requested State determines that the request is politically motivated. civil. with a prayer that the court take the extradition request under consideration (Paragraph [2]. Embassy Note No. (Paragraph 2. Paragraph 3. In this light. Said decision is appealable to the Court of Appeals. according to the law of the Requested State. would provide probable cause for his arrest and committal for trial if the offense had been committed there. 052 from U. Upon conclusion of the hearing. ibid. (Paragraph 3. issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph [1].) The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State (Embassy Note No. Presidential Decree No. or dismiss the petition (Section 10.5. Section 9 thereof provides that in the hearing of the extradition petition. ibid. the provisions of the Rules of Court. Documents. Section 8 of the Decree provides that the attorney having charge of the case may. The provisions of the Rules of Court governing appeal in criminal cases in the . the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case. The lawyer designated shall then file a written petition with the proper regional trial court of the province or city. Paragraph [1]. or that the offense is a military offense which is not punishable under non-military penal legislation. The presiding judge of the regional trial court. and 9. Article 7. Embassy. shall apply. who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1].). Section 5. upon application by the Requesting State.). ibid. The Extradition Hearing The Extradition Law does not specifically indicate whether the extradition proceeding is criminal. A copy of the warrant or order of arrest issued by a judge or other competent authority. particularly to prevent the flight of the prospective extraditee. Nevertheless. 1069.D.).) 7. No. he shall deliver the same to the Secretary of Justice." The Extradition Petition Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance. shall. 1069). 951309 from the Department of Foreign Affairs).). as applicable. ibid. represent the latter throughout the proceedings. A copy of the charging document. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense. 8. Such evidence as. whose decision shall be final and immediately executory (Section 12. During the hearing. or other types of information specified in paragraph 3 or paragraph 4 of said Article. or a special proceeding. as soon as practicable. upon receipt of the petition for extradition. ibid. S. Section 6. 6. P. insofar as practicable and not inconsistent with the summary nature of the proceedings. statements.

the Secretary of Justice has the ministerial duty of filing the extradition papers. it would not allow private respondent to participate in the process of evaluation. is merely acting as a post office. but it is also erroneous to say that it is purely an exercise of ministerial functions. (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable. Plainly then. However. the following query presents itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings? A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. it was also at this stage where private respondent insisted on the following. filed a manifestation that it is adopting the instant petition as its own. moreover. pp. the Department of Justice received the request. except for the required 15-day period to file brief (Section 13. belongs to a class by itself. (1) the right to be furnished the request and the supporting papers. Ipso facto. Notably. indirectly conveying the message that if it were to evaluate the extradition request. How then could the DFA Secretary or his undersecretary. It is not a criminal investigation. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17. The Department of Foreign Affairs. Section 5 of the Extradition Law. and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request. ibid. Article 3. The Secretary of Justice. the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to evaluate the extradition documents. the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers. and to present evidence in support of the opposition. looking at the factual milieu of the case before us. Article 3 of the Treaty.nêt With the foregoing abstract of the extradition proceedings as backdrop. to assure their sufficiency. 1999. eminent as he is in the field of law.). indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. At such stage.Court of Appeals shall apply in the aforementioned appeal. could not privately review the papers all by himself. The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. one abdicating its powers and the other enlarging its commission. through the Solicitor General. The two Departments seem to have misread the scope of their duties and authority. He had to officially constitute a panel of attorneys. it would appear that there was failure to abide by the provisions of Presidential Decree No. as expressly provided in Paragraph [1]. and (c) to make a . to determine whether or not the request is politically motivated. The statement of an assistant secretary at the Department of Foreign Affairs that his Department. 1âwphi1. 1069. in this regard. for which reason he simply forwarded the request to the Department of Justice. Thereafter. It is the latter official who is authorized to evaluate the extradition papers. apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. make the more authoritative determination? The evaluation process. It is sui generis. has. and under Paragraph [3]. (2) the right to be heard which consists in having a reasonable period of time to oppose the request. the Department also had to go over them so as to be able to prepare an extradition petition (tsn. the following day or less than 24 hours later. RP-US Extradition Treaty). in less than one day. 24-25). The trial court also determines whether or not the offense for which extradition is requested is a political one (Paragraph [1]. or that the offense is a military offense which is not punishable under non-military penal legislation. 1999. August 31. just like the extradition proceedings proper.

Phil. 304 U. there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. op. The power of investigation consists in gathering. said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasijudicial power. RP-US Extradition Treaty). The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. therefore. Article 2 & and Paragraph [3]. however. of persons or entities coming under its jurisdiction ( Ibid. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it. that in contrast to ordinary investigations. 1098 [1957]. 1996 ed. is one or the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority (Cruz. or that the offense is a military one which is not punishable under non-military penal legislation (tsn.. That is the role of the court. although the Extradition Law is silent on this respect.. United States. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. p. Ultimately. RP-US Extradition Treaty). cit. 1069). It is to be noted. then there is an absence of judicial discretion and judgment. 64). This is so because the Treaty provides that in case of urgency. Logically. .. Article 9. 1). Primarily. the provisions only mean that once a request is forwarded to the Requested State. investigation is indispensable to prosecution. p. (b) determining facts based upon the evidence presented. or to require disclosure of information by means or accounts. Notably. RP-US Extradition Treaty). it may result in the deprivation of liberty of the prospective extraditee.. Presidential Decree No. Inquisitorial power. a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1]. 26). Practically. and analyzing evidence.determination whether or not the request is politically motivated. the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6. organizing. 28-29. but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). production of documents. In Ruperto v. Presidential Decree No. which is also known as examining or investigatory power. or otherwise (De Leon. which is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial functions. but a very imminent one. sufficient to be the basis of an extradition petition.S. and investigate the activities. Article 3. In administrative law. records. It does not exercise judicial functions and its power is limited to investigating the facts and making findings in respect thereto. 198. Such finding is thus merely initial and not final. 1999. It is not only an imagined threat to his liberty. p. Torres (100 Phil. 27). Hence. Clearly. citing Morgan vs. Administrative Law: Text and Cases. This deprivation can be effected at two stages: First. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court. testimony of witnesses. unreported). pp. the prospective extraditee may be continuously detained. 1993 ed. and (c) rendering an order or decision supported by the facts proved (De Leon. Hence. This power allows the administrative body to inspect the records and premises. for he will only be discharged if no request is submitted. the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. a quasi-judicial proceeding involves: (a) taking and evaluation of evidence. or if not. The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to determine whether or not the extradition should be effected. Second. Article 9. the provisional arrest of the prospective extraditee pending the submission of the request. the evaluation procedure is characterized by certain peculiarities. it sets into motion the wheels of the extradition process. p. and if the agency is not authorized to make a final pronouncement affecting the parties. the purpose of this detention is to prevent his possible flight from the Requested State. Administrative Law. reports. August 31. subsequently rearrested (Paragraph [5].

Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. August 31. must be held to be due process of law" (Hurtado vs. the administrative proceedings are deemed criminal or penal. a preliminary investigation. and such forfeiture partakes the nature of a penalty. Sr. and hearing. the proceeding does not involve the conviction of the wrongdoer for the offense charged. Further. which. although it may be civil in form. thus saliently exhibiting the criminal or penal aspect of the process. such as an administrative investigation of a licensed physician who is charged with immorality. citing American jurisprudence. 372 U. By comparison. however.S. involving as it does the possible deprivation of liberty. we therein ruled that since the investigation may result in forfeiture of property.S. 1999. or newly devised in the discretion of the legislative power. Court of Appeals (235 SCRA 241 [1992]) (p. where the Court. There is also the earlier case of Almeda. If. based on the hierarchy of constitutionally protected rights. Kapunan (6 SCRA 1059 [1962]). 378 U. Arizona. the time spent in incarceration is irretrievable and beyond recompense. In a number of cases. In this sense. this is a "tool" for criminal law enforcement (p.Rollo). the proceeding is civil in nature. there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings. laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case. and ultimately. extends to administrative proceedings which possess a criminal or penal aspect. and to the deprivation of his liberty. the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result — the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings. No less is this true. citing the earlier case of Cabal vs. p. and where it must be gathered from the statute that the action is meant to be criminal in its nature. . 78. the evaluation process partakes of the nature of a criminal investigation. can possibly lead to his arrest. 1379. as pointed out by Mr. therefore. Perez (5 SCRA 970 [1962]). we held that the right against selfincrimination under Section 17. but even more so in the case before us. Gideon vs. such as the right to counsel and the right against self-incrimination (tsn. in furtherance of the general public good.Wright is not authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. California. which may result in the filing of an information against the respondent. Compliance with due process requirements cannot be deemed non-compliance with treaty commitments. whether sanctioned by age or custom. which could result in his loss of the privilege to practice medicine if found guilty. 436). vs. Petitioner's reliance on Wright vs. or the Anti-Graft Law. As early as 1884. Board of Medical Examiners (28 SCRA 344 [1969]). we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding. 478. It had nothing to do with the denial of the right to notice. is placed second only to life itself and enjoys precedence over property. information. Justice Mendoza during the oral arguments. the deprivation of liberty of a prospective extraditee. is an even greater deprivation than forfeiture of property. Miranda vs. The characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post facto law. 8. for while forfeited property can be returned or replaced. the United States Supreme Court ruled that "any legal proceeding enforced by public authority. 135. Escobedo vs. the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for. petitioner's Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not welltaken. pointed out that the revocation of one's license as a medical practitioner. 384 U. which regards and preserved these principles of liberty and justice. In Pascual v. The Court. 516).Because of these possible consequences. As described by petitioner himself. Wainwright. Illinois. 110 U. we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions. The cases mentioned above refer to an impending threat of deprivation of one's property or property right. such proceeding is criminal in nature. it cannot be considered as civil. Cabal vs. Again.S.S. In essence. a favorable action in an extradition request exposes a person to eventual extradition to a foreign country. 335.

20 SCRA 849 [1967]). as well as the guarantee of being heard by an impartial and competent tribunal (Cruz. the elasticity in their interpretation. but more importantly. their dynamic and resilient character which make them capable of meeting every modern problem. 102-106). B. It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Phil. 337). In proceeding where there is an urgent need for immediate action. like the summary abatement of a nuisance per se (Article 704. be considered dispensable in certain instances. City Mayor of Manila. Individuals are entitled to be notified of any pending case affecting their interests. Where there is tentativeness of administrative action. 1993 Ed. liberty. The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. and the right to submit counter-affidavits and other supporting documents within ten days from receipt thereof. Local Government Code. 78). Constitutional Law. they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed. the respondent shall have the right to examine all other evidence submitted by the complainant.P. Section 3. the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described situations mentioned above? . 2. At the same time. and the replacement of a temporary appointee.The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions.S. such as the summary distraint and levy of the property of a delinquent taxpayer. but in administrative proceedings as well. and upon notice. 1996 ed. Administrative Law. In a preliminary investigation which is an administrative investigatory proceeding. Rule 112 of the Rules of Court guarantees the respondent's basic due process rights. the preventive suspension of a public servant facing administrative charges (Section 63. granting him the right to be furnished a copy of the complaint.S. that is. or property. 366). and other supporting documents. Where the twin rights have previously been offered but the right to exercise them had not been claimed. however. 211 U. pp. 169 U. Moreover. New Jersey. These twin rights may. both States accord common due process protection to their respective citizens. Hardy. Civil Code). Non-observance of these rights will invalidate the proceedings. and procedural due process which consists of the two basic rights of notice and hearing. the affidavits. Blg. and the cancellation of a passport of a person sought for criminal prosecution. and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. such as: 1. p. The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology. Toward this effect and in order to avoid the confines of a legal straitjacket.. where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected. Due process is comprised of two components — substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life. it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz. Capsulized. Applying the above principles to the case at bar. True to the mandate of the due process clause. the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are immediate threats to public health and decency. and 3. 64).. the basic rights of notice and hearing pervade not only in criminal and civil proceedings.

S. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing. the Department of State prepares a declaration confirming that a formal request has been made. and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing. which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755).2d 853). and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid. 1999 from the Criminal Division of the U. extradition procedures and principles. the court must determine whether the person arrested is extraditable to the foreign country. In order to achieve extradition of an alleged fugitive. In interstate rendition or extradition. which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty). Department of Justice. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. a formal request for extradition is transmitted subsequently through the diplomatic channel.S. 1999. 324.S. In international proceedings. citing Ex parte Moore. A statutory provision requiring duplicate copies of the indictment . 410. Department of Justice. §2 cl 2). which essentially include a copy of the instrument charging the person demanded with a crime. 2d 103.. 2. information. the right being such a basic one has been held to be a right mandatory on demand (Ibid.J.C. federal statutes.. extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand for the return of the alleged offender. 407 and Ex parte Tucker. and international extradition proceedings. Cr. Government. 408-410).) . 3. Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the government of the asylum state to effect extradition (35 C. the requisition papers or the demand must be in proper form. S. the governor of the asylum state has the duty to deliver the fugitive to the demanding state. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U. such as an indictment or an affidavit made before a magistrate. (b) the defendant is being sought for offenses for which the applicable treaty permits extradition. that the treaty is in full force and effect. requests for the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the U.Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U. The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose. IV. Cr.S. he attached thereto a letter dated September 13. and judicial decisions. and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers. and must contain such papers and documents prescribed by statute.J. American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U. such as the allegation that the person demanded was in the demanding state at the time the offense charged was committed. All requests for extradition are transmitted through the diplomatic channel. 406-407). 256 S.S. and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C. In petitioner's memorandum filed on September 15.S. and vice-versa. In the event of a provisional arrest. that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings. p. affidavit. Before doing so.S. At the hearing. to wit: 1. The extradition documents are then filed with the governor of the asylum state.W. §3184). In urgent cases. summarizing the U.W. Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid. 158 Tex. that the offenses are covered as extraditable offenses under Article 2 thereof.S.) 4. However. and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815). Constitution (Art. or judgment of conviction or sentence and other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is directory.

a person facing extradition may present whatever information he deems relevant to the Secretary of State. the power to act or not to act on the court's determination of extraditability. it may be observed that in the United States. rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826). and prosecuting the petition for extradition. however. one might fairly say of the Bill of Rights in general. However. if so warranted. the end does not justify the means. 7. it incorporates its determinations in factual findings and conclusions of law and certifies the person's extraditability. But the Constitution recognizes higher values than speed and efficiency. If the court decides that the elements necessary for extradition are present.C. extradition begins and ends with one entity — the Department of State — which has the power to evaluate the request and the extradition documents in the beginning.S. The court then forwards this certification of extraditability to the Department of State for disposition by the Secretary of State. There is no question that not even the strongest moral . 656) The United States.] 6. §3186). The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. 645. Illinois. who makes the final determination whether to surrender an individual to the foreign government concerned. Private respondent asks what prejudice will be caused to the U. in the instant case. It is not enough that there be a valid objective. In the Philippine setting. 404 U. it is also necessary that the means employed to pursue it be in keeping with the Constitution. (Stanley vs. in the person of the Secretary of State. then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. Mere expediency will not excuse constitutional shortcuts. preparing. From the foregoing. filing. charging any person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid. is sacrificed at the altar of expediency. and perhaps more. and having satisfied itself on the points earlier mentioned ( see pp.) [In this regard.5. in particular. this Court's ruling is invoked: One of the basic principles of the democratic system is that where the rights of the individual are concerned. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process. that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less. (pp. perfunctorily turned over the request to the Department of Justice which has taken over the task of evaluating the request as well as thereafter. We agree with private respondent's citation of an American Supreme Court ruling: The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. Private Respondent's Memorandum. and. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. the Department of Foreign Affairs. than mediocre ones. it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate.S. shares the same interest as the Philippine Government that no right — that of liberty — secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well. it is the Department of Foreign Affairs which should make the initial evaluation of the request. Indeed.) In the Philippine context. and the Due Process Clause. Sadly.S. 40-41. 10-12). no doubt.

private respondent likewise invokes Section 7 of Article III which reads: Sec. be compelled to act favorably (37 C. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines. namely: (1) the right to information on matters of public concern." Is there really an urgent need for immediate action at the evaluation stage? At that point. The general right guaranteed by said provision is the right to information on matters of public . which are significantly jurisdictional. he may hold that federal and statutory requirements. The right of the people to information on matters of public concern shall be recognized. not only after the extradition petition is filed in court. The prejudice to the "accused" is thus blatant and manifest. In fact. In this light. Summary does not mean precipitous haste. have not been met (31 Am Jur 2d 819). 375-376 [1989]). the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside. accelerated or fast-tracked proceedings and adherence to fair procedures are. Nevertheless. 175 SCRA 343. and (2) the corollary right of access to official records documents.S. transactions. will excuse the bypassing of an individual's rights. the executive authority of the requested state has the power to deny the behest from the requesting state. Apart from the due process clause of the Constitution. 387) since after a close evaluation of the extradition papers. Secretary of Agrarian Reform. Extradition may or may not occur.J. and to documents and papers pertaining to official acts. may cause his immediate incarceration. if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty. The "accused" (as Section 2[c] of Presidential Decree No. In interstate extradition. Justice Department. subject only to a few notable exceptions. They do not always clash in discord. how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can be dispensed with? Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. With the meticulous nature of the evaluation. shall be afforded the citizen. vs. under an extradition treaty. as well as to government research data used as basis for policy development. Accordingly.conviction or the most urgent public need. Is private respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. 1069 calls him). there is no extraditee yet in the strict sense of the word. Government of certain problems in the extradition papers (such as those that are in Spanish and without the official English translation. On one hand there is yet no extraditee. The above provision guarantees political rights which are available to citizens of the Philippines. and those that are not properly authenticated). petitioner even admits that consultation meetings are still supposed to take place between the lawyers in his Department and those from the U. There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. however. To be effective. requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. but ironically on the other. Inc. or decisions. the governor of the asylum state may not. it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements of the law and the treaty since it even informed the U. subject to such limitations as may be provided by law.S. Similarly. The grant of the request shall lead to the filing of the extradition petition in court. it results in an administrative if adverse to the person involved. which cannot just be completed in an abbreviated period of time due to its intricacies. Access to official records. in the absence of mandatory statute. faces the threat of arrest. 7.S. It does not carry a disregard of the basic principles inherent in "ordered liberty. he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the extradition. not always incompatible. Plainly.

1997 ed.. The concept of matters of public concerns escapes exact definition. Civil Service Commission. Strictly speaking. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas. private respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only becomes material when a third person.concern. p. In its implementation. invokes the right to information. 1996 ed. Consequently. the real party in interest is the people and any citizen has "standing". transactions. However. requires the parties to a treaty to keep their agreement therein in good faith. one of the oldest and most fundamental maxims of international law. either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. During the evaluation procedure. Government. Such information may be contained in official records. p. In the case at bar. The extradition of a fellow Filipino would be forthcoming.. let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. justice. adopts the generally accepted principles of international law as part of the law of the land. and may either cause him some kind of deprivation or injury. the right of access to official records is likewise conferred. Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy. p. we are afraid that the balance must be tilted. Petitioner argues that the matters covered by private respondent's letter-request dated July 1. The observance of our country's legal duties under a treaty is also compelled by Section 2. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations. The rule of pacta sunt servanda. because our government by then shall have already made an official decision to grant the extradition request. hence the invocation of the right is premature. 337).. We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the affirmative. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can protect the values of democratic government (Ibid. if the person invoking the right is the one directly affected thereby. 1996 ed. in favor of the interests necessary for the proper functioning of the government. and adheres to the policy of peace.S. On the other hand. The 1987 Constitution of the Republic of the Philippines. The 1987 Constitution of the Republic of the Philippines. he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern. he invokes Section 14. When the individual himself is involved in official government action because said action has a direct bearing on his life. Constitution A Reviewer-Primer. the papers have some relation to matters of foreign relations with the U. the papers requested by private respondent pertain to official government action from the U. stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino. if a third party invokes this constitutional provision. is there really a conflict between the treaty and the due process clause in the Constitution? First and foremost. equality. who is not directly affected by the matters requested. records of the extradition hearing would already fall under matters of public concern. and in contrast.). and in documents and papers pertaining to official acts. 1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. This concept embraces a broad spectrum of subjects which the public may want to know. every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas. 336). or decisions. No official action from our country has yet been taken. Moreover. The right to information is implemented by the right of access to information within the control of the government (Bernas. Government. Hence. Later. his right to information becomes absolute. . no official governmental action of our own government has as yet been done. The 1987 Phil. 150 SCRA 530 [1987]). freedom. particularly the right to be informed of the nature and cause of the accusation against him. As to an accused in a criminal proceeding. at such particular time.S.

the principle lex posterior derogat priori takes effect — a treaty may repeal a statute and a statute may repeal a treaty. p. as applied in most countries. rules of international law form part of the law of the and land no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap. both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid. Accordingly.). The Department of Justice states that the U. However. and if he does. Hence. decrees that rules of international law are given equal standing with. prior thereto. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. If the information is truly confidential. 1069. overturned by petitioner's revelation that everything it refuses to make available at this stage would be obtainable during trial. 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap. however. In states where the constitution is the highest law of the land. In the case at bar. as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. 101 Phil. 1992 ed. these two components of the law of the land are not pined against each other. however. jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. From the procedures earlier abstracted. Not even during trial. 12). as implemented by Presidential Decree No." Under the doctrine of incorporation. the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state. cit.J. p. Instead. Hernandez. In fact. the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Hechanova. District Court concerned has authorized the disclosure of certain grand jury information.S. In the absence of a law or principle of law. extradition procedures also manifests this silence. the law is silent as to these rights. op. The confidentiality argument is. 1996 ed. is there really a conflict between international law and municipal or national law? En contrario. we must apply the rules of fair play. 55). after the filing of the extradition petition and during the judicial determination of the propriety of extradition. The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. A libertarian approach is thus called for under the premises.. Consequently. his right to be supplied the same becomes a demandable right (35 C. Gonzales vs. In a situation.S.S. but are not superior to. where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law. Philippine Political Law. the rights of notice and hearing are clearly granted to the prospective extraditee.cooperation and amity with nations. 9 SCRA 230 [1963]. so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause in the above-cited constitutional provision (Cruz. national legislative enactments. 1155 [1957]. such as the Republic of the Philippines. 13). The doctrine of incorporation.. 410). the secrecy surrounding the action of the Department of Justice Panel of Attorneys. Similarly. The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. American jurisprudence and procedures on extradition pose no proscription. . In re: Garcia. Public International Law. Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. Petitioner interprets this silence as unavailability of these rights. Reference to the U. p. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. he describes the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents.. There is no occasion to choose which of the two should be upheld. We disagree. in interstate extradition proceedings as explained above. Efforts should first be exerted to harmonize them. we see a void in the provisions of the RP-US Extradition Treaty.

or be released on recognizance as may be provided by law. Aquinas School vs. Sec. . the privilege of the writ of habeas corpus is suspended. 1069? Of analogous application are the rulings in Government Service Insurance System vs. vs. 270 SCRA 96 [1997]. Appropriating Funds Therefor and for other purposes). except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong. a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter. notwithstanding Section 13." Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations. because there is no provision of its availability. Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No. that is to say. 283 SCRA 31 [1997]). . National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police. It is equally clear to us that an employee must be informed of the charges preferred against him. Padilla vs. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution. Court of Appeals (201 SCRA 661 [1991]) and Go vs. Inc. Article III of the Constitution which provides that "[a]ll persons. before conviction. Presidential Decree No.. as well as American jurisprudence and procedures on extradition. be bailable by sufficient sureties. (at p. in certain instances. PLDT vs. 1707. This is a basic procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. 20. Petitioner's fears that the Requesting State may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration. This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the respondent or the prospective extraditee. 1069). Magnaye. for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. 273 SCRA 457 [1997]. Following petitioner's theory. his defenses against the charges levelled against him and to present evidence in support of his defenses. Prescribing its Powers and Functions and for Other Purposes). the minimum requirements of due process still operate. How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 278 SCRA 602 [1997]. shall. NLRC. United Harbor Pilots Association of the Phils. .One will search in vain the RP-US Extradition Treaty. Jamer vs. 276 SCRA 1 [1997]. . As held in GSIS vs. 276 SCRA 315 [1997]. NLRC. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation. . Court of Appeals: . 278 SCRA 632 [1997]). In essence. 671) . despite Section 15. 1069 does not provide therefor. as amended by Presidential Decree No. Helpmate. and Presidential Decree No. . although summary dismissals may be effected without the necessity of a formal investigation. RPUS Extradition Treaty. Earlier. and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. the Extradition Law. NLRC. does this imply that for a period of time. In the evaluation process. NLRC. NLRC. . procedural due process refers to the method or manner by which the law is enforced (Corona vs. the aforestated guarantees in the Bill of Rights could thus be subservient thereto? The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. We have to consider similar situations in jurisprudence for an application by analogy.

J.Said summary dismissal proceedings are also non-litigious in nature. see separate opinion. Puno. The constitutional issue in the case at bar does not even call for "justice outside legality. lest an errant and wayward course be laid. statutory law or judicial pronouncements (Smith Bell & Co. the instant petition is hereby DISMISSED for lack of merit. the same is hereby ordered dismissed. of the Philippine Constitution. vs. with concurring opinion. Ynares-Santiago. Inc." may be availed of only in the absence of. I join J. Bellosillo.. and to grant him a reasonable period within which to file his comment with supporting evidence. please see dissent. WHEREFORE.. Mendoza. C. J. Quisumbing. J. Panganiban. Kapunan. Jr. Vitug. We have ruled time and again that this Court's equity jurisdiction. which may eventually lead to his forcible banishment to a foreign land. which is aptly described as "justice outside legality. J. separate opinion.. Buena and De Leon. are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. I agree with the majority. a right of access to such extradition documents conformably with the provisions of Article III. Panganiban... Davide.. private respondent does not only face a clear and present danger of loss of property or employment. That would not be in keeping with the principles of democracy on which our Constitution is premised. JJ. Pardo. concur. 1 The constitutional right to free access to information of public concern is circumscribed only by the fact that the desired information is not among the . 267 SCRA 530 [1997]. 268 SCRA 677 [1997]). see separate concurring opinion. J. There is. I would take it. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers. SO ORDERED. and never against. Puno & J. Justice Puno in his dissent. In the case at bar.. is whether or not private respondent can validly ask for copies of pertinent documents while the application for extradition against him is still undergoing process by the Executive Department.. although not guaranteed by statute or by treaty. in view of the foregoing premises.. David-Chan vs.. but of liberty itself. I join Mr. J.. please see my dissenting opinion. I join the dissent of Justices Puno & Panganiban. Court of Appeals. yet we upheld the due process rights of the respondent. Separate Opinions VITUG. he must ever hold the oar of freedom in the stronger arm. J. Section 7. J. The convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's liberty is easily comprehensible. Court of Appeals. The only real issue before the Court. 99-94684 having been rendered moot and academic by this decision.. as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority. J. Verily. please see separate concurring opinion. Jr." since private respondent's due process rights. JJ. I join the dissents of Puno and Panganiban.. J.. The incidents in Civil Case No. Purisima. Gonzaga-Reyes..J.

species exempted by law from the operation of the constitutional guaranty and that the exercise of the right conforms with such reasonable conditions as may be prescribed by law. adaptable to every situation calling for its application that makes it appropriate to accept an enlarged concept of the term as and when there is a possibility that the right of an individual to life. I vote to deny the petition. to make it malleable to the ever-changing milieu of society. maintain the status quo by refraining from committing the acts complained of. presupposing foreknowledge of what he may be up against. 99-94684. 5 Verily. it is dynamic and resilient. . aptly I believe." the term due process does not admit of any restrictive definition.2 I am not convinced that there is something so viciously wrong with. Hitherto. . and in the second instance. Article 9 of the Extradition Treaty between the Government of the Republic of the Philippines and the Government of the United States of America provides that in case of urgency."4 The framers of our own Constitution. both on technical and substantial grounds. This right is two-pronged — substantive and procedural due process — founded. The TRO directed respondents in said case to: . Lantion on August 9. it would seem. the private respondent. J. reason. in the first instance.. The constitutional right to due process secures to everyone an opportunity to be heard. The conclusion reached by the majority. The term "public concern" eludes exactitude. as to deny. does not mean that the Executive Department should be impeded in its evaluation of the extradition request. which is the validity of the Temporary Restraining Order (TRO) issued by respondent Judge Ralph C. the possibility of an arrest being made on the basis of a mere evaluation by the Executive on the request for extradition by the foreign State cannot totally be discounted. I vote to dismiss the petition. the past course of decisions. upon request. Procedural due process — the more litigated of the two — focuses on the rules that are established in order to ensure meaningful adjudication in the enforcement and implementation of the law. must not be ignored. liberty and property might be diffused. I see implicit in this provision that even after the request for extradition is made and before a petition for extradition is filed with the courts. is real. A danger to the liberty of the extraditee. compounded by history. when demanded. and stout confidence in the democratic faith.3Substantive due process looks into the extrinsic and intrinsic validity of the law that figures to interfere with the right of a person to his life. whenever there is an imminent threat to the life . The right of the extraditee to be furnished. I hasten to add. on accepted rules of procedure. with a copy of the relevant documents and to file his comment thereon is not necessarily anathema to the proceedings duly mandated by the treaty to be made. on Constitutional or statutory provisions. a Contracting Party may request the provisional arrest of the person prior to the presentation of the request for extradition . . from conducting further proceedings in connection with the request of the United States Government for the extradition . I add. liberty or property of any person in any proceeding conducted by or under the auspices of the State. . as being ". separate concurring opinion. and it can easily embrace a broad spectrum of matters which the public may want to know either because the subject thereof can affect their lives or simply because it arouses concern. the request of private respondent to be furnished with copies of the extradition documents. There is no hornbook rule to determine whether or not an information is of public concern. Like "public concern. liberty and property. 1999 in Civil Case No. Justice Frankfurter has viewed this flexible concept. and to submit any evidence that he may wish to proffer in an effort to clear himself. KAPUNAN. have deliberately intended. his right to due process of law. The petition in the case at bar raises one and only issue.

Since. Further.D. among others. Petitioner contends that due process rights such as the right to be informed of the basis of the request for extradition and to have an opportunity to controvert are not provided in the extradition treaty or in P. order. The right to due process is a universal basic right which is deemed written into our laws and treaties with foreign countries. whether the offense for which extradition is requested is a political or military offense (Article 3). 1069 do not provide for a preliminary investigation. liberty and pursuit of happiness are taken away from him — a fate as harsh and cruel as a conviction of a criminal offense. and from performing any act directed to the extradition of the petitioner to the United States.D. whether the documents and other informations required under Article 7(2) have . it should be stressed that the evaluation procedure of the extradition request and its accompanying documents by the Department of Justice cannot be characterized as a mere " ex-parte technical assessment of the sufficiency" thereof. separated from his family and delivered to a foreign state. the instant petition has become moot and academic. to privacy. malicious and oppressive prosecution. In this connection. These include. or decision. and (b) whether or not private respondent has a right of access to extradition documents under Section 7. from filing the corresponding Petition with the Regional Trial Court. he is entitled to have access to the evidence against him and the right to controvert them. the evaluation by the Department of Justice of the extradition request and its accompanying documents is to establish probable cause and to secure the innocent against hasty. Like a preliminary investigation."2 Notably. and not matters of public concern to which the people have a constitutional right to access. 1069 and therefore does not exist in this stage of the proceedings.of the petitioner. there is no allegation in the petition that respondent Judge is without jurisdiction to hear the case below or that he has exceeded his jurisdiction in hearing the same. Rule 58 of the 1997 Rules of Court. They involve a determination whether the request for extradition conforms fully to the requirements of the extradition treaty and whether the offense is extraditable.) The petition itself categorically states that "(t)he issue sought to be presented and litigated here is solely-the validity of the TRO. or whether due process rights maybe invoked only upon the filing of a petition for extradition before a regional trial court.1 (Emphasis ours. still.3 Assuming that the present case has not become moot and academic. of respondent Judge that is being challenged in the petition before us. Article III of the 1997 Constitution. Article III of the 1997 Constitution before the Department of Justice as the request for extradition is being evaluated. ruling. he argues that the documents sought to be furnished to private respondent only involve private concerns. apart from the TRO already mentioned. While the extradition treaty and P. forcibly taken from his house. it should be dismissed for lack of merit. For this reason. The substantive issues raised in this case are: (a) whether a person whose extradition is sought by a foreign state has due process rights under Section 2. Nor is there any other act. pursuant to Section 5. While the evaluation process conducted by the Department of Justice is not exactly a preliminary investigation of criminal cases. it is akin to a preliminary investigation because it involves the basic constitutional rights of the person sought to be extradited. consequently. A person ordered extradited is arrested. His rights of abode. neither does either prohibit it. as alleged in the petition. 1999. the TRO ceased to be effective on August 30. This Court does not exercise jurisdiction over cases which are moot and academic or those not ripe for judicial consideration. a copy of the TRO was served on respondents below on August 10. for a period of twenty days from the service on respondents of this Order. The function and responsibilities of the Department of Justice in evaluating the extradition papers involve the exercise of judgment. 1999.

been provided (Article 7). He may controvert that evidence and raise all defenses he may consider appropriate. may I just add my modest observations. The prosecuting official who conducts the preliminary investigation is required to be neutral. Due process rights in a preliminary investigation is now an established principle. the parties involved are entitled to be heard if the requirements of due process and equal protection are to be observed. then. and extradition strikes at the very core of liberty. That. As I concur in the result reached by the ponencia of Justice Melo. affect the rights of life and liberty of all the citizens as a whole. and impartial in resolving the issue of probable cause. whether citizen or alien. "injustice anywhere is a threat to justice everywhere. and the rights of the accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting state. He would be compelled to face an open and public trial." so any violation of one's rights guaranteed by the Bill of Rights is everybody's concern because they. the person sought to be extradited may exercise all due process rights. it is clear that it must be granted at a time when the deprivation can still be prevented. considering that the Extradition Treaty between the USA and Philippines appears mute on the specific issue before us. For this primordial reason. invocation of due process rights can never be too early. not only denial of due process rights but of equal protection may be raised. The respondent has a right of access to all of the evidence. J. concurring opinion. Stated otherwise. . one way or another. His arrest may be immediately ordered by the regional trial court. and whether the extraditable offense is punishable under the laws of both contracting parties by deprivation of liberty for a period of more than one year (Article 2). Where the liberty of a person is at risk. Moreover. the mere filing of a petition for extradition causes immediate impairment of the liberty of the person sought to be extradited and a substantial curtailment of other rights. This is so although we recognize treaties as a source of binding obligations under generally accepted principles of international law incorporated in our Constitution as part of the law of the land. the Court — in the exercise of its judicial power to find and state what the law is — has this rare opportunity of setting a precedent that enhances respect for human rights and strengthens due process of law. suffice it to say. I vote to DENY the petition. the constitutionally mandated duties of our government to the individual deserve preferential consideration when they collide with its treaty obligations to the government of another state. that any document used in a proceeding that would jeopardize a person's constitutional rights is matter of public concern. I see no reason why the same rights may not be accorded a person sought to be extradited at the stage where the Department of Justice evaluates whether a petition for extradition would be filed before a regional trial court.4 Like the filing of an information in a criminal case. directly or indirectly. The public eye would be directed at him with all the concomitant intrusions to his right to privacy. The human rights of person.. As Martin Luther King said. to arrive at a correct judgment. if the right to notice and hearing is to serve its full purpose. But why must he wait until the petition for extradition is filed? As succinctly expressed. objective. QUISUMBING. He will be constrained to seek the assistance of counsel and incur other expenses of litigation. If denied such rights. it is urged. It is suggested that after a petition for extradition is filed with a regional trial court. He may then have access to all the records on the basis of which the request for extradition has been made. With respect to petitioner's claim that private respondent has no right to demand access to the documents relating to the request for extradition. meets the due process requirement. Consequently. He has the right to submit controverting evidence.

be other charges against private respondent in the USA. looking at the facts adduced at the hearing and on the record of this case. That private respondent is a Filipino citizen is not decisive of the issue here. That private respondent's cases will be exploited as political fodder there is not far-fetched. in my view. Melo with its conceptive analysis of a citizen's right to be given what is due to him. Even if he were a resident alien (other than American perhaps). or other citizens not as controversial or talked about. Truly. what private respondent is asking our Executive department (notice. However. . therefore. if granted. Rules of reciprocity and comity. I join in his exposition of this Court's constitutional duty to strike the correct balance between overwhelming Government power and the protection of individual rights where only one person is involved. although it is obviously pertinent. copies of documents. of course. should not bar us from applying internationally now what appears the more reasonable and humane procedure. But then they are. Jimenez is only petitioning that. already tainted there with political color due to the highly charged partisan campaign atmosphere now prevailing. I am constrained to write this short concurrence if only to pose the question of why there should be any debate at all on a plea for protection of one's liberty which. and (2) the international practice where the Executive department need not initially grant notice and hearing at all. violate our Extradition Treaty with the USA. the constitutional rights of an accused in all criminal prosecutions are not available to the private respondent. and the opportunity to protect himself at the earliest time against probable peril) does not. I see no reason why respondent Mark Jimenez. More so because. For in this case the American people should be among the most interested parties. the interstate practice among Americans themselves. instead of later. J. certain offenses of a political nature or motivation such as the ones involving alleged financial contributions to a major American political party. and anxiety of a public denunciation in court before he may be informed of what the contracting states in an extradition treaty have against him. the state Executive upon demand furnishes the would be extraditee or counsel copies of pertinent documents as well as the request for extradition. I see no ill effects which would arise if the extradition request and supporting documents are shown to him now. For. hence the need here for cautious but comprehensive deliberation on the matter at bar. Justice Jose A. There is no question that everything which respondent Jimenez now requests will be given to him during trial.. it is not only a Treaty provision we are construing. His request if granted augurs well for transparency in interstate or intergovernmental relations rather than secrecy which smacks of medieval diplomacy and the inquisition discredited long ago. it is about constitutional and human rights we are most concerned.As both majority and dissenting colleagues in the Court will recognize. concurring opinion. expense. above all. he is. will not result in any meaningful impediment of thwarting any state policy and objectives. the charges against him involve or are co-mingled with. If so. There may. Petitioner Secretary of Justice states that his action on the extradition request and its supporting documents will merely determine whether or not the Philippines is complying with its treaty obligations. Mr. at this stage. pursuant to statute. in my view. He adds that. should first be exposed to the indignity. I concur in the ponencia of Mr. he should be informed why he may be deported from his own country. similarly) from the very start. that is. entitled to our full protection against the hazards of extradition (or deportation.R. if not rooted in. YNARES-SANTIAGO. long established is the principle that extradition could not be utilized for political offenses or politically motivated charges. American authorities follow two tracks in extradition proceedings: (1) the interstate practice where. in my view. however.

I cannot imagine the United States taking issue over what. It is readily available to one against whom the state's coercive power has already been focused. the preliminary procedure is still an internal matter. the reasons are: 1. For extradition to be an effective tool of criminal law enforcement. The United States has no cause to complain about the disclosure of information furnished to the Philippines. On the other hand. Official permission has been given. a person is presumed innocent or not covered by the sanctions of either criminal law or international treaty. petitioner declares that the United States has already secured orders from concerned District Courts authorizing the disclosure of the same grand jury information to the Philippine Government and its law enforcement personnel. of rights expressly guaranteed by the Philippine Constitution. accorded in the name of human rights. silence in the treaty over a citizen's rights during the evaluation stage is interpreted as deliberate exclusion by the contracting states of the right to know. The second reason alleging the need for secrecy and confidentiality is even less convincing. 2. Our country is not denying the extradition of a person who must be extradited. rupture of states relations. On one hand. In short. The petitioner cannot hold in abeyance proceedings in connection with an extradition request. would be a minor concession. I respectfully submit that any apprehensions in the Court arising from a denial of the petition — "breach of an international obligation. Not one provision of the extradition treaty is violated. Article 7 enumerates the required documents and establishes the procedures under which the documents shall be submitted and admitted as evidence. 3. Petitioner cites as a reason for the denial of respondent's requests. And when a law or treaty is silent. in the context of a treaty obligation. I fail to see how silence can be interpreted as exclusion. and a plethora of other equally undesirable consequences" — are more illusory than real. The Secretary of Justice is not even in the picture at this stage. not available. forfeiture of confidence. The treaty is silent because at this stage. 1999 reply-letter from petitioner states the reasons why he is denying respondent Jimenez's requests. It is not the other way around. The United States Government has requested the Philippine Government to prevent unauthorized disclosure of certain grand jury information. national embarrassment. Article 7 of the Treaty. there should be no conflict over the extension to him of constitutional protections guaranteed to aliens and citizens alike. the Department merely determines whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. Silence is interpreted as the exclusion of the right to a preliminary examination or preliminary investigation provided by the laws of either one of the two states. On the other hand. A citizen is invoking the protection.The July 13. Under petitioner's theory. it means a right or privilege may be granted. In evaluating the documents. requests for surrender of accused or convicted persons must be processed expeditiously. perhaps a slight delay. At any stage where a still prospective extraditee only seeks to know so that he can prepare and prove that he should not be extradited. Until proved to be a valid subject for extradition. The constitutional rights of the accused in all criminal prosecutions are. The right to be informed of charges which may lead to court proceedings and result in a deprivation of liberty is ordinarily routine. petitioner asserts that the United States Government requested the Philippine Government to prevent unauthorized disclosure of certain information. therefore. The explanation of petitioner is self-contradictory. . There is no specific provision on how that Secretary of Foreign Affairs should conduct his evaluation. to it. the issue is fundamental in the Philippines.

Sarmiento. inadequate complaints. It would incur greater delays if these are discovered only during court trial. The crimes must also be unmistakably identified and their essential elements clearly stated. and Salonga vs. 16). 71 Phil. Petitioner views the request to be informed as part of undesirable delaying tactics. he is nonetheless entitled to the guarantees of fairness and freedom accorded to those charged with ordinary crimes in the Philippines. As this Court rules in Acebedo vs. I cannot believe that the United States and the Philippines with identical constitutional provisions on due process and basic rights should sustain such a myopic view in a situation where the grant of a right would not result in any serious setbacks to criminal law enforcement. if otherwise. 118 SCRA 241 (1941). they would have so provided in the extradition treaty. The constitutional guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative bodies (Constitution. 134 SCRA 438 (1985). his being extradited) determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose. His innocence or guilt of any crime will be determined in an American court. Trocio vs. There should be no hurried or indifferent effort to routinely . The right to be informed is related to the constitutional right to a speedy trial. Paraphrasing Hasmin vs. to protect him from an open and extensively publicized accusation of crimes. Sec. any assistance which the evaluating official may get from the participation of respondent may well point out deficiencies and insufficiencies in the extradition documents. Art. "the right to a speedy trial. I maintain that the paramount consideration of guaranteeing the constitutional rights of individual respondent override the concerns of petitioner. 216. Any request for extradition must be viewed objectively and impartially without any predisposition to granting it and.Moreover. does not mean the deliberate exclusion of the defendant or respondent from the proceedings. Hon. I see nothing in our laws or in the Treaty which prohibits the prospective extraditee from knowing until after the start of trial whether or not the extradition treaty applies to him. There are other preliminary matters in which respondent is interested. It is obvious that any prospective extraditee wants to know if his identity as the person indicated has been established.nêt In closing. hastening the extradition process. Boncan. of having his guilt (in this case. This is most unfortunate. expense. 36 SCRA 247 (1970). and anxiety of a public trial. if. how can grand jury information and documents be considered confidential if they are going to be introduced as evidence in adversely proceedings before a trial court? The only issue is whether or not Mr. the issue of whether or not the prospective extraditee truly is the person charged in the United States becomes a valid question. or any ruinous shortcoming. Jimenez should be extradited. The third reason given by petitioner is the avoidance of delay. Speedy disposition. and also to protect the state from useless and expensive trails. They also serve the interests of the State. its salutary objective being to assure that an innocent person may be free from the anxiety and expense of a court litigation or. the purpose of a preliminary evaluation is to secure an innocent person against hasty. means one free from vexatious. therefore. On the other hand. faulty and. oppressive proceedings. however. If the Contracting States believed in a total non-divulging of information prior to court hearings. Paño. It is not only identity of the person which is involved. to spare him the trouble. 1âwphi1. therefore. It is there where prosecution strategies will be essential. In the first place. the evaluating official discovers a case of mistaken identity." The right to be informed and the right to a preliminary hearing are not merely for respondent. insufficient pleadings. An unnecessary trial with all its complications would be avoided. Considering the penchant of Asians to adopt American names when in America. Manta. Even if the purpose is only to determine whether or not the respondent is a proper subject for extradition. there would be no delays during trial. III. A positive provision making certain rights unavailable cannot be implied from silence. capricious and oppressive delays. from respondent's participation.

. whether bilateral or multilateral.But the case at bar does not involve the guilt or innocence of an accused but the interpretation of an extradition treaty where at stake is our government's international obligation to surrender to a foreign state a citizen of its own so he can be tried for an alleged offense committed within that jurisdiction . and those who have been convicted in absentia. Chinese. Thus. at other times. Southern District of Florida. four (4) counts of attempt to evade or defeat tax. this concurrence. It applies to those who are merely charged with an offense but have not been brought to trial. it is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed. J. the US Supreme Court in US v. A brief review of the history of extradition law will illumine our labor. Puffendorf and Billot led the school of thought that the so-called duty was but an "imperfect obligationwhich could become enforceable only by a contract or agreement between states. two (2) counts of fraud by wire.R. This has been done generally by treaties ." 1 The definition covers the private respondent who is charged with two (2) counts of conspiracy to commit offense or to defraud the United States. six (6) counts of false statements or entries and thirty-three (33) counts of election contributions in the name of another. It is the "process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. . and though such delivery was often made it was upon the principle of comity . Sometimes. hence this dissenting opinion. M. for trial and punishment. Justice Jose A.Rauscher. Possibly the most authoritative commentator on extradition today.comply with all requests for extradition. . Hence." .6 held: ". Extradition is a well-defined concept and is more a problem in international law.5 Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no duty to extradite in the absence of treaty. It does not apply to persons merely suspected of having committed an offense but against who no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment.3 The classical commentators on international law thus focused their early views on the nature of the dutyto surrender an extraditee — whether the duty is legal or moral in character."2 It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during these different periods. The issues are of first impression and the majority opinion dangerously takes us to unknown shoals in constitutional and international laws. to those who have been tried and convicted and have subsequently escaped from custody. If the case at bar was strictly a criminal case which involves alone the right of an accused to due process. radio or television. without taking half a pause. dissenting opinion. Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear. Prior to these treaties. (3) from 1833 to 1948 — a period of collective concern in suppressing common criminality. . Cherif Bassiouni. . . (2) the eighteenth century and half of the nineteenth century — a period of treaty-making chiefly concerned with military offenders characterizing the condition of Europe during that period. Extradition was first practiced by the Egyptians. I understand that this is truer in the United States than in other countries. I would have co-signed the ponencia of our esteemed colleague. . . We serve under a government of limited powers and inalienable rights. Proposed extraditees are given every legal protection available from the American justice system before they are extradited. PUNO. and apart from them there was no well-defined obligation on one country to deliver up such fugitives to another. Grotius and de Vattel led the school of thought that international law imposed a legal duty called civitas maxima to extradite criminals. it was granted due to pacts. Melo. There is an outstanding warrant of arrest against the private respondent issued by the US District Court. due to plain good will. divides the history of extradition into four (4) periods: "(1) ancient times to seventeenth century — a period revealing almost exclusive concern for political and religious offenders. and (4) post-1948 developments which ushered in a greater concern for protecting the human rights of persons and revealed an awareness of the need to have international due process of law regulate international relations. Mr.4 In sharp contrast.

An extraditee. This is necessarily so. they must be concurred in by at least two thirds of all the members of the Senate. deterrence. Under Section 21."9 The re-examination consigned this pernicious doctrine to the museum of ideas. Justice Florentino Feliciano. Given the harshest eye is the moss-covered doctrine that international law deals only with States and that individuals are not its subject. the making of a treaty belongs to the executive and legislative departments of our government.Then came the long and still ongoing debate on what should be the subject of international law. 8 The higher rating given to human rights in the hierarchy of values necessarily led to the re-examination of rightful place of the individual in international law. Jessup in audible italics: "A very large part of international affairs and. The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism — the fascism of Italy's Mussolini and Germany's Hitler. Translated in extradition law. especially the rights of an extraditee. Among the world class scholars who joined the search for the elusive ideological underpinnings of a new world order were Yale Professor Myres McDougal and Mr."11 The clarion call to re-engineer a new world order whose dominant interest would transcend the parochial confines of national states was not unheeded. is a mere "object transported from one state to the other as an exercise of the sovereign will of the two states involved. some species of human rights have already been accorded universal recognition. "institutionalized conflicts between states are still rationalized in terms of sovereignty. and national security. rehabilitation and reconstruction of all societies comprising the world community. he is bereft of rights." while Section 1 of Article VIII provides that "judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. But it is no longer novel for the particular interest of the human being to break through the mass of interstate relationship. . In careful language. In our constitutional scheme.7 Today. The conduct of foreign relations is full of complexities and consequences. Beyond debate. So it was declared by then US Ambassador Philip C. Section 20 of the same Article empowers the President to contract or guarantee foreign loans with the prior concurrence of the Monetary Board."12 Needless to stress. all these prescient theses accelerated the move to recognize certain rights of the individual in international law. In their seminal work. though growing impact on the decision-making processes which translate national values and goals into specific national and international policy. in the realm of international law." Thus. We have yet to see the final and irrevocable place of individual rights. In addition. of the process of international accommodation. For its undesirable corrally is the sub-doctrine that an individual's right in international law is a near cipher. Article VII of our Constitution. we can see that executive power is vested in the President alone whereas legislative and judicial powers are shared and scattered. other public ministers and consuls subject to confirmation by the Commission on Appointments. while human interests continue to have limited. It is also the President who possesses the most comprehensive and the most confidential information about foreign countries for our diplomatic and consular officials regularly brief him . . The sinking of these isms led to the elevation of the rights of the individual against the state . It is my humble submission that the first consideration that should guide us in the case at bar is that a bilateral treaty — the RP-US Extradition Treaty — is the subject matter of the litigation." whereas Section 1 of Article VI states that "the legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives . 10 The new thinkers of international law then gave a significant shape to the role and rights of the individual in state-concluded treaties and other international agreements. so it was held. the militarism of Japan's Hirohito and the communism of Russia's Stalin. sometimes with life and death significance to the nation especially in times of war. Law and Minimum World Public Order. It can only be entrusted to that department of government which can act on the basis of the best available information and can decide with decisiveness. the President has the power to deport undesirable aliens. Bassiouni observes that today. the drive to internationalize rights of women and children is also on high gear. etc. national interest. Between these two departments. except to the extent reserved to the people by the provision on initiative and referendum. concerns the relations between legal persons known as states. the President is the single most powerful official in our land for Section 1 of Article VII provides that "the executive power shall be vested in the President of the Philippines. the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of international law. thus. The concentration of these powers in the person of the President is not without a compelling consideration .the executive has a greater say in the making of a treaty. thePresident has the sole power to negotiate treaties and international agreements although to be effective. Section 16 of the same Article gives the President the power to appoint ambassadors. Indeed."13 I belabor the international law aspect of extradition as the majority opinion hardly gives it a sideglance. restoration. they suggested that the object of the new world should be "to obtain in particular situations and in the aggregate flow of situations the outcome of a higher degree of conformity with the security goals of preservation.

the degree of denial of private respondent's rights to due process and to information is too slight to warrant the interposition of judicial power . futile to determine what it is. nay. national embarrassment and a plethora of other problems with equally undesirable consequences. an extraditee can be ordered extradited "upon showing of the existed of a prima faciecase. it may. To achieve this desirable objective. By and large. an extradition proceeding is sui generis. Indeed. it should be allowed. the nature of an extradition decision is different from a judicial decision whose finality cannot be changed by executive fiat. they involve a difficult choice between right against right. it calls for a harmonizationbetween said treaty and our Constitution. In such instances. Sometimes. These are some of the dominant policy considerations in international law that the Court must balance against the claim of the private respondent that he has a right to be given the extradition documents against him and to comment thereon even while they are still at the evaluation stage by the petitioner Secretary of Justice.15 On one end of the pole is the more liberal European approach. Section 3.20In an extradition proceeding. This is too simplistic an approach.14 In fine. forfeiture of confidence. there is no accused and the guilt or innocence of the extraditee will not be passed upon by our executive officials nor by the extradition judge. they adhere to the rule of non-inquiry under which theextraditing court refuses to examine the requesting country's criminal justice system or consider allegations that the extraditee will be mistreated or denied a fair trial in that country. the RP-US extradition and P. Our courts22 may hold an individual extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive. These courts have been more conservative in light of the principle of separation of powers and their faith in the presumptive validity of executive decisions. an accused can only be convicted by proof beyond reasonable doubt. . rupture of state relations. Rather. Let it be stressed that in an extradition proceeding. validity of his actions are adjudged under less stringent standards. the presidential role in foreign affairs is dominant and the President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. constitutional rights that are only relevant do determine the guilt or innocence of an accused cannot be invoked by an extraditee. Admission of evidence is less stringent. I venture the view that even assuming arguendorespondent's weak claim.17 The case at bar. As admitted in the ponencia itself. still. It has held that ".D. lest their judicial repudiation lead to breach of an international obligation. the private respondent has not proved entitlement to the right he is claiming . hence. What is certain is that it is not a criminal proceeding where there is an accused who claim the entire array of rights guaranteed by the Bill of Rights. He has also unlimited access to ultra-sensitive military intelligence data. Proceeding from this premise of relativism of rights.on meaningful events all over the world. does not involve an irreconcilable conflict between the RP-US Extradition Treaty and our Constitution where we have to choose one over the other. constitutional litigations do not always involve a clear cut choice between right and wrong. Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall . it is my humble submission that considering all the facts and facets of the case. Also. an alter ego of the President. the Court should consider whether the constitutional rights invoked by the private respondent have truly been violated and even assuming so. assuming that the consequences are not too remote. whether he will be denied fundamental fairness . 19 It is not only the quality but even the quantum of evidence in extradition proceeding is different . there is need to balance the contending rights and primacy is given to the right that will serve the interest of the nation at that particular time."21 If more need be said. The regularity. It is. again because the guilt of the extraditee is not under litigation. Hence. in so far as a measure of the extradition has consequences adversely affecting the enjoyment of a convention right. The delicate questions of what constitutional rights and to what degree they can be claimed by an extraditee do not admit of easy answers and have resulted in discrete approaches the world over. Rights do not necessarily arise from a vacuum."16 At the other end of the pole is the more cautious approach of the various Courts of Appeal in the United States. No. 1069 do not prohibit respondent's claims. I respectfully submit. The European Court of Human Rights embraces the view that an extraditee is entitled to the benefit of all relevant provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. . attract the obligations of a Contracting State under the relevant convention guarantee. thus. an extradition proceeding is summary in nature which is untrue of criminal proceedings. In these situations. Silence of the law can even mean an implied denial of a right.18 Even the rules of evidence are different in an extradition proceeding. Given this balancing approach. In a criminal case. the less compelling right is subjected to soft restraint but without smothering its essence. It is only when their violation will destroy the respondent's right to fundamental fairness that his constitutional claims should be given primacy. The majority holds that the Constitution.

Article 9 of the treaty provides: PROVISIONAL ARREST 1. 2. By filing the request for extradition. and the traditional leeway given to the Executive in the conduct of foreign affairs have compelled courts to put a high threshold before considering claims of individuals that enforcement of an extradition treaty will violate their constitutional rights. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice. He will be given due process before he can be arrested . if possible. the issue of whether respondent Jimenez will be provisionally arrested is now moot . b) the location of the person sought. including. and f) a statement that a request for extradition for the person sought will follow. they have not moved for respondent's arrest on the ground of probable delay in the proceedings. the US authorities have implicitly decided not to move for respondent's provisional arrest. the general principle is enunciated that a request for provisional arrest must be made pending receipt of the request for extradition. d) a description of the laws violated.24 It continues to deny Canada's charter protection to extraditees unless the violation can be considered shocking to the conscience. the need for him to be immediately furnished copies of documents accompanying the request for his extradition. In the case. To be sure. c) a brief statements of the facts of the case. the ponencia inflates with too much significance the threat to liberty of the private respondent to prop us its thesis that his constitutional rights to due process and access to information must immediately be vindicated. if known. 1069. he is not straitjacketed by strict legal considerations like an ordinary court. Under Section 1 of Article 9 of the RP-US Extradition Treaty. He balances the equities of the case and the demands of the nation's foreign relations. at bar and with due respect. But more important. in relation to Section 20(a) of PD No. hence. Exemplifying such approach is the Supreme Court of Canada which has adopted ahighly deferential standard that emphasizes international comity and the executive's experience in international matters. The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence of the extraditee. the limited nature of the extradition proceeding . . the time and location of the offense. In case of urgency." In the United States. The application for provisional arrest shall contain: a) a description of the person sought. 23 In sum. or that the offense is a military offense which is not punishable under non-military penal legislation. the Secretary of State exercises this ultimate power and is conceded considerable discretion. On the contrary. respondent Jimenez stands in danger of provisional arrest.not be granted if the executive authority of the Requested State determined that the request was politically motivated. e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt or judgment of conviction against the person sought. Allegedly. a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. the availability of adequate remedies in favor of the extraditee. they filed the extradition request through the regular channel and. a request for respondent's arrest does not mean he will be the victim of an arbitrary arrest . even with the pendency of the case at bar. It is a self-imagined fear for the realities on the ground show that the United States authorities have not manifested any desire to request for his arrest.Respondent's fear of provisional arrest is not real .

request for the provisional arrest of the accused. — (a) In case of urgency. pursuant to the relevant treaty or convention and while the same remains in force. 1069 provides: Sec. The Director of the National Bureau of Investigation through the Secretary of Foreign Affairs shall inform the requesting state of the result of its request. Provisional Arrest. (c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt of the request immediately secure a warrant for the provisional arrest of the accused from the presiding judge of the Court of First Instance of the province or city having jurisdiction of the place. It is self-evident under these provisions that a request for provisional arrest does not mean it will be granted ipso facto. (b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation. warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. In truth. In light of all these considerations. (d) If within a period of 20 days after the provisional arrest. He may issue a . the presiding judge of the court shall. the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree. pending receipt of the request for extradition made in accordance with Section 4 of this Decree. persons or things to be seized. as soon as practicable. 6. . summon the accused to appear and to answer the petition on the day and hour fixed in the order." The message that leaps to the eye is that compliance with this requirements precludes any arbitrary arrest. The time is when he is summoned by the extradition court and required to answer the petition for extradition. the requesting state may. Issuance of Summons. I respectfully submit that denying respondent's constitutional claim to be furnished all documents relating to the request for his extradition by the US authorities during their evaluation stage will not subvert his right to fundamental fairness. The request must comply with certain requirements.3. . The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial. and contrary to the impression of the majority. 1069 fixes the specific time when he will be given the papers constituting the basis for his extradition. Service of Notices. Section 20 of P. 4.D. still he has to apply for a judicial warrant from the "presiding judge of the Court of First Instance (now RTC) of the province of city having jurisdiction of the place. For even if the Director of the National Bureau of Investigation agrees with the request for the provisional arrest of the respondent. Temporary Arrest. This is subject to verification and evaluation by our executive authorities. . No. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 7. 1069 provides: Sec. The due process protection of the private-respondent against arbitrary arrest is written in cyrillic letters in these two (2) related provisions. The request can be denied if not based on a real exigency of if the supporting documents are insufficient. Thus. .D. The judge has comply with Section 2. It should be stressed that this is not a case where the respondent will not be given an opportunity to know the basis of the request for his extradition . It must be based on an "urgent" factor. . Article III of the Constitution which provides that "no . P. Manila. 20. who shall issue the warrant for the provisional arrest of the accused . and particularly describing the . Hearing. No. the accused shall be released from custody. No. ." It is a judge who will issue a warrant for the provisional arrest of the respondent. . either through the diplomatic channels or direct by post or telegraph. The protection of the respondent against arbitrary provisional arrest does not stop on the administrative level .D. In relation to the above. . Section 6 of P. — (1) Immediately upon receipt of the petition.

has opined that the power to extradite pursuant to a treaty rests in the executive branch as part of its power to conduct foreign affairs. The majority should be cautions in involving this Court in the conduct of the nation's foreign relations where the inviolable rule dictated by necessity is that the nation should speak with one voice . shall be promptly served each upon the accused and the attorney having charge of the case.25Needless to state.and the speed and scale of improvement of communication are factors which have virtually annihilated time and distance. . viz: WHEREAS. some of which are hidden in shadows and silhouettes. cooperation and amity with all nations. The increasing incidence of international and transnational crimes. Our national interest in extraditing persons who have committed crimes in a foreign country are succinctly expressed in the whereas clauses of P. We should not overlook the reality that courts by their nature . No. humanitarian considerations are being factored in the equation. it is the Executive that is most qualified to guide the ship of the state on the known and unknown continents of foreign relations . I respectfully submit that the majority decision has weakened the Executive by allowing nothing less than an unconstitutional headbutt on the power of the Executive to conduct our foreign affairs. They defer to the judgment of the Executive on the necessities of our foreign affairs and on its view of the requirements of international comity. the development of new technologies of death. Upon receipt of the summons and the petition. with due respect. . . respondent is free to foist all defense available to him. the presiding judge shall hear the case or set another date for the hearing thereof. While lately. The process still involves relations between international personalities. because it saps the foundation of social life and is an outrage upon humanity at large. Such an opportunity does not deny him fairness which is the essence of due process of law. and it is in the interest of civilized communities that crimes should not go unpunished. freedom. and adheres to the policy of peace. 1069. the legendary John Marshall. Upon receipt of the answer within the time fixed. At bottom. WHEREAS. equality. the Constitution of the Philippines adopts the generally accepted principles of international law as part of law of the land. This overriding national interest must be upheld as against respondent's weak constitutional claims which in no way amount to denial of fundamental fairness. This goes against the familiar learning that in balancing the clashing interests involved in extradition treaty.26 Courts have validated this forward-looking opinion in a catena of unbroken cases. then a congressman. The deferential attitude is dictated by the robust reality that of the three great branches of our government. national interest is more equal than the others. are ill-equipped to fully comprehend the foreign policy dimension of a treaty. still the concept of extradition as a national act is the guiding idea. the suppression of crime is the concern not only of the state where it is committed but also of any other state to which the criminal may have escaped. this case involves the respect that courts should accord to the Executive that concluded the RP-US Extradition Treaty in the conduct of our foreign affairs . . I vote to grant the petition. . I submit that the ponencia failed to accord due importance to the international law aspect of an extradition treaty as it unduly stressed its constitutional law dimension . As early as 1800. (2) The order and notice as well as a copy of the warrant of arrest. if issued.warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice.D. Requesting and granting extradition remains a power and prerogative of the national government of a State. It is also compelled by considerations of the principle of separation of powers for the Constitution has clearly allocated the power to conduct our foreign affairs to the Executive. They make more compelling the vindication of national interest to insure that the punishment of criminals should not be frustrated by the frontiers of territorial sovereignty . a more deferential treatment should be given to national interest than to individual interest. justice. Thus.

upon receipt of the request for extradition. I dissent. It is the judge or magistrate who is authorized to issue a warrant of arrest and to hold a hearing to consider the evidence submitted in support of the extradition request. who shall immediately designate and authorize an attorney in his office to take charge of the case. even the ponencia admits that neither the RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the Philippine government. in interstate rendition. the governor must. which provides: . such evidence as would provide probable cause for the arrest and the committal for trial of the fugitive. and whether the offense charged is a military offense not punishable under non-military penal legislation. Article III thereof. upon demand. Two Staged in Extradition There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation stage. In contrast. Evaluation Stage Essentially Ministerial The evaluation stage simply involves the ascertainment by the foreign affairs secretary of whether the extradition request is accompanied by the documents stated in paragraphs 2 and 3. Notably. The foreign affairs secretary also sees to it that these accompanying documents have been certified by the principal diplomatic or consular officer of the Philippines in the United States. With due respect. dissenting opinion. Private respondent claims that he has a right to be notified and to be heard at this early stage. with a prayer that the court take the extradition request under consideration. and that they are in English language or have English translations. whereby the petition for extradition is heard before a court of justice. The lawyer designated shall then file a written petition with the proper regional trial court. his right to due process during the preliminary stage emanates from our Constitution.PANGANIBAN.3 When the Right to Notice and Hearing Becomes Available According to private Respondent Jimenez. The main issue before us is whether Private Respondent Mark B. he shall deliver the same to the justice secretary. its prescriptive period. pursuant to statutory provisions. Jimenez is entitled to the due process rights of notice and hearing during the preliminary or evaluation stage of the extradition proceeding against him. and copies of the warrant or order of arrest and charging document. furnish the fugitive or his attorney copies of the request and its accompanying documents. and (2) the extradition hearing.2 Upon a finding of the secretary of foreign affairs that the extradition request and its supporting documents are sufficient and complete in form and substance. international extradition proceedings in the United States do not include the grant by the executive authority of notice and hearing to the prospective extraditee at this initial stage. particularly Section 1.1 In the Philippines.. provisions of the law describing the essential elements of the offense charged and the punishment therefor. whereby the executive authority of the requested state ascertains whether the extradition request is supported by the documents and information required under the Extradition Treaty. to give copies thereof and its supporting documents to the prospective extraditee. Article 7 of the Treaty. which determines whether the accused should be extradited. J. The instant petition refers only to the first stage. However. the facts of the offense and the procedural history of the case. Pursuant to Article 3 of the Treaty. relating to the identity and the probable location of the fugitive. there is no similar statutory provision. he also determines whether the request is politically motivated. much less to give him an opportunity to be heard prior to the filing of the petition in court.

a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. it is also the power and the duty of the court. there appears to be no urgency characterizing the nature of the extradition of private respondent. which basically involves only the exercise of the ministerial power of checking the sufficiency of the documents attached to the extradition request.No person shall be deprived of life. It must be borne in mind that during the preliminary stage.9 Private Respondent Jimenez will. and in enforcement does not depend solely on the discretion of the requested state. However. as it should really come before the extradition request.8 The sufficiency of the evidence of criminality is to be determined based on the laws of the requested state. And the secretary of justice states during the Oral Argument that he had no intention of applying for the provisional arrest of private respondent.7 Moreover. there is no open door for the application of Article 9.10 Private respondent insists that the United States may still request his provisional arrest at any time. In any event. In the instant case. there is no actual danger that Jimenez will be provisionally arrested or deprived of his liberty. to be heard on all issues including the sufficiency of the documents supporting the extradition request.4 The second instance is not in issue here. Petitioner does not claim any such urgency. the above-quoted Article 9 on provisional arrest is not automatically operative at all times. there are at least three requisites: (1) there must be an urgency. It is elementary that this Court does not declare judgments or grant reliefs based on speculations. there being no specific provision under the Extradition Treaty by . That is purely speculative. In other words. surmises or conjectures. pending the filing in court of the petition for his extradition. He claims that this right arises immediately. there is no substantial gain to be achieved in requiring the foreign affairs (or justice) secretary to notify and hear him during the preliminary stage. It states that there are two occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional arrest pending the submission of the extradition request and (2) his temporary arrest during the pendency of the extradition petition in court. and (2) there is a corresponding request (3) which must be made prior to the presentation of the request for extradition. the formal request for extradition has already been made. in case an extradition petition will indeed be filed. 5 Finally. our local laws and rules of procedure respecting the issuance of a warrant of arrest will govern. to determine whether there is sufficient evidence to establish probable cause that the extraditee committed the crimes charged.6 Mark Jimenez Not in Jeopardy of Arrest Under the outlined facts of this case. There is as yet no threat that his rights would be trampled upon. Hence. the foreign affairs secretary's determination of whether the offense charged is extraditable or politically motivated is merely preliminary. not the executive authority. contrary to the apprehension of private respondent. From the wordings of the provision itself. The same issue will be resolved by the trial court. which reads: In case of urgency. therefore. liberty or property without due process of law. therefore. There is no request from the United States for the provisional arrest of Mark Jimenez either. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice. xxx xxx xxx Justice Melo's ponencia supports private respondent's contention. definitely have his full opportunity before the court. even granting that the arrest of Jimenez is sought at any time despite the assurance of the justice secretary that no such measure will be undertaken. because no petition has yet been filed in court. provisional arrest is not likely. because of the possibility that he may be provisionally arrested pursuant to Article 9 of the RP-US Treaty.

To grant private respondent's request for copies of the extradition documents and for an opportunity to comment thereon will constitute "over-due process" and unnecessarily delay the proceedings. as between the Philippines and the United States. it must be presumed that the contracting states perform their obligations under it with uberrimae fidei. Jimenez will be entitled to all the rights accorded by the Constitution and the laws to any person whose arrest is being sought. Hence. Therefore.which such warrant should issue. Assuming the existence of moral injury. there is really no threat of any deprivation of his liberty at the present stage of the extradition process. the only means by which he can restore his good reputation is to prove before the proper judicial authorities in the US that the charges against him are unfounded. WHEREFORE. Such restoration cannot be accomplished by simply contending that the documents supporting the request for his extradition are insufficient. the constitutional right to due process — particularly the right to be heard — finds no application. I believe that any moral injury suffered by private respondent had not been caused by the mere processing of the extradition request. 1âwphi1. International law does not require the voluntary surrender of a fugitive to a foreign government. The concrete charges that he has allegedly committed certain offenses already exist. absent any treaty stipulation requiring it. he should be given the opportunity at the earliest possible time to stop his extradition. I vote to grant the Petition. And because of the moral injury caused. And it will not cease merely by granting him the opportunity to be heard by the executive authority. treaty obligations being essentially characterized internationally by comity and mutual respect. Conclusion In the context of the factual milieu of private respondent.nêt The right of one state to demand from another the return of an alleged fugitive from justice and the correlative duty to surrender the fugitive to the demanding country exist only when created by a treaty between the two countries. Private respondent also claims that from the time the secretary of foreign affairs gave due course to the request for his extradition.11 When such a treaty does exist. These charges have been filed in the United States and are part of public and official records there. . The Need for Respondent Jimenez to Face Charges in the US One final point. incalculable prejudice has been brought upon him.

Both Ambassador Ara and then Secretary Siazon signed the Records of Discussion as representatives of the Government of Japan and Philippine Government. vs. COMMODORE PLARIDEL C. respectively. which is the main highway in Catanduanes Province. GARCIA (retired) and PMA ’59 FOUNDATION. Siazon. BONCODIN. The Exchange of Notes consisted of two documents: (1) a Letter from the Government of Japan... TREASURER NORMA L.818 kilometers. Background Based on the Exchange of Notes dated December 27. in her capacity as Treasurer of the Bureau of Treasury. The Exchange of Notes provided that the loans to be extended by the Government of Japan to the Philippines consisted of two loans: Loan I and Loan II.515 kilometers. which consists of the improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. SR.R. Mr. through their respective representatives. PJHL-A-04-012 dated May 7. The Exchange of Notes stated in part: . signed by Ambassador Ara. The CP I project is one of the four packages comprising the project for the improvement/rehabilitation of the Catanduanes Circumferential Road. Petitioners. addressed to then Secretary of Foreign Affairs Siazon. covering a total length of about 204. 2004 issued by the Bids and Awards Committee (BAC) of the Department of Public Works and Highways (DPWH) and approved by then DPWH Acting Secretary Florante Soriquez. HON. SECRETARY HERMOGENES E. 2007 PLARIDEL M. 1999 between the Japan Bank for International Cooperation (JBIC) and the Government of the Republic of the Philippines. DECISION CALLEJO. JR. J. in the island province of Catanduanes..Respondents. in his capacity as Secretary of the DEPARTMENT OF PUBLIC WORKS and HIGHWAYS. I (CP I). HON. No. and then Secretary of Foreign Affairs Domingo L. 167919 February 14. Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines. were reiterated and the said terms were accepted by the Philippine delegation. COMMODORE CARLOS L. PH-P204 dated December 28. LASALA. The assailed resolution recommended the award to private respondent China Road & Bridge Corporation of the contract for the implementation of civil works for Contract Package No. ABAYA. through the Japanese delegation.G. The road section (Catanduanes Circumferential Road) is part of the Arterial Road Links Development Project (Phase IV) funded under Loan Agreement No.: Before the Court is the petition for certiorari and prohibition under Rule 65 of the Rules of Court seeking to set aside and nullify Resolution No. in his capacity as Secretary of the DEPARTMENT OF FINANCE. Bago-Viga road. confirming the understanding reached between the two governments concerning the loans to be extended by the Government of Japan to the Philippines. 1999. by its President. HON. in her capacity as Secretary of the DEPARTMENT OF BUDGET and MANAGEMENT. SECRETARY CESAR V. rep. EBDANE. AGUSTIN (retired). PURISIMA. have reached an understanding concerning Japanese loans to be extended to the Philippines. These loans were aimed at promoting our country’s economic stabilization and development efforts. HON. and CHINA ROAD and BRIDGE CORPORATION. namely. and (2) a document denominated as Records of Discussion where the salient terms of the loans as set forth by the Government of Japan. INC. Yoshihisa Ara.1 the Government of Japan and the Government of the Philippines. with the length of 79. SECRETARY EMILIA T.

provided that such purchases are made in such eligible source countries for products produced in and/or services supplied from those countries.. List A. in accordance with the relevant laws and regulations of Japan. Rural Water Supply Project (Phase V) 951 3.net Pertinently. (1) The Loan I will be made available to cover payments to be made by the Philippine executing agencies to suppliers. x x x x2 1awphi1. of the project to which such loan agreement relates.I 1. (1) The Loan I will be made available by loan agreements to be concluded between the Borrower I and the Bank. includes the Arterial Road Links Development Project (Phase IV). 3.990 5. contractors and/or consultants of eligible source countries under such contracts as may be entered into between them for purchases of products and/or services required for the implementation of the projects enumerated in the List A.210 2.384 . including environmental consideration.. (3) A part of the Loan I may be used to cover eligible local currency requirements for the implementation of the projects enumerated in the List A. (2) The scope of eligible source countries mentioned in sub-paragraph (1) above will be agreed upon between the authorities concerned of the two Governments. (2) Each of the loan agreements mentioned in sub-paragraph (1) above will be concluded after the Bank is satisfied of the feasibility. Bohol Irrigation Project (Phase II) 6. the Government of the Republic of the Philippines will refrain from imposing any restrictions that may hinder fair and free competition among the shipping and marine insurance companies. inter alia. Arterial Road Links Development Project (Phase IV) 15. 4. Agrarian Reform Infrastructure Support Project (Phase II) 16.000) (hereinafter referred to as "the Loan I") will be extended. to the Government of the Republic of the Philippines (hereinafter referred to as "the Borrower I") by the Japan Bank for International Cooperation (hereinafter referred to as "the Bank") to implement the projects enumerated in the List A attached hereto (hereinafter referred to as "the List A") according to the allocation for each project as specified in the List A. which specified the projects to be financed under the Loan I.000. Secondary Education Development and Improvement Project 7. 2.078 4. With regard to the shipping and marine insurance of the products purchased under the Loan I.861. to wit: LIST A Maximum amount in million yen) 1. The terms and conditions of the Loan I as well as the procedure for its utilization will be governed by said loan agreements which will contain. the following principles: . A loan in Japanese yen up to the amount of seventy-nine billion eight hundred and sixty-one million yen (Y79.

will not be considered as eligible for financing under the Loan I. which formed part of the Exchange of Notes. dated December 28. and (2) the procurement of products and/or services will be made in accordance with the procedures of international competitive tendering except where such procedures are inapplicable and inappropriate. With reference to sub-paragraph (3) of paragraph 3 of Part I of the Exchange of Notes concerning the financing of eligible local currency requirements for the implementation of the projects mentioned in the said sub-paragraph. thus: xxxx 1. which set forth. expenses concerning office. inter alia. 1999. Maritime Safety Improvement Project (Phase C) 4.434 8. Philippines-Japan Friendship Highway Mindanao Section Rehabilitation Project (Phase II) 7. in accordance with the agreement reached by the Government of Japan and the Philippine Government. as well as purchase of land properties. stated as follows: Loan Agreement No. taxes and duties.8613 The Exchange of Notes further provided that: III xxxx 3.167 Total 79. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project (Phase IV) 5. . Pinatubo Hazard Urgent Mitigation Project (Phase II) 9. interest during construction.714 10. Loan Agreement No. Cordillera Road Improvement Project 5. not directly related to the implementation of the said projects. Pasig-Marikina River Channel Improvement Project (Phase I) 1. as expressed in the Exchange of Notes between the representatives of the two governments. x x x x4 The Records of Discussion. between JAPAN BANK FOR INTERNATIONAL COOPERATION and the GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES. x x x x5 Thus. remuneration to employees of the executing agencies and housing. the representative of the Japanese delegation stated that: (1) such requirement of local currency as general administrative expenses.013 11. PH-P204 dated December 28. The Government of the Republic of the Philippines will ensure that the products and/or services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the Bank. compensation and the like. 1999. the Philippines obtained from and was granted a loan by the JBIC.852 7.068 9. the procedures of international tendering to be followed except where such procedures are inapplicable or inappropriate. PH-P204. however. also stated in part.6. in particular.

10 As mentioned earlier.50 kms. in turn. the guidelines for procurement of all goods and services to be financed out of the proceeds of the said loan shall be as stipulated in the Guidelines for Procurement under OECF Loans dated December 1997 (herein referred to as JBIC Procurement Guidelines). A total of twenty-three (23) foreign and local contractors responded to the invitation by submitting their accomplished prequalification documents on January 23.Viga Road . caused the publication of the "Invitation to Prequalify and to Bid" for the implementation of the CP I project in two leading national newspapers.710. it was announced that the Approved Budget for the Contract (ABC) was in the amount of P738.In the light of the contents of the Exchange of Notes between the Government of Japan and the Government of the Republic of the Philippines dated December 27. thus. the Manila Times and Manila Standard on November 22 and 29. 1999. only seven contractors submitted their bid proposals. PH-P204 was to be used to finance the Arterial Road Links Development Project (Phase IV). concerning Japanese loans to be extended with a view to promoting the economic stabilization and development efforts of the Republic of the Philippines. .563.10. PH-P204. In accordance with the established prequalification criteria. contractors or consultants. JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") and THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES (hereinafter referred to as "the Borrower") herewith conclude the following Loan Agreement (hereinafter referred to as "the Loan Agreement". One of them. it was provided under the said loan agreement that other terms and conditions generally applicable thereto shall be set forth in the General Terms and Conditions.79." respectively. issued by the Overseas Economic Cooperation Fund (OECF) and for the purpose. 9 Specifically. the DPWH. 2002.384. however. JBIC agreed to lend the Philippine Government an amount not exceeding FIFTEEN BILLION THREE HUNDRED EIGHTY-FOUR MILLION Japanese Yen (Y15.818 kms CP II: Viga-Bagamanoc Road .11 Subsequently.47. as the government agency tasked to implement the project. withdrew. of which the Catanduanes Circumferential Road was a part. This road section. Bato. dated November 1987. 2003. the proceeds of Loan Agreement No.8 Further.40 kms. 12 After the lapse of the deadline for the submission of bid proposals.67. which includes all agreements supplemental hereto). x x x x6 Under the terms and conditions of Loan Agreement No.000) as principal for the implementation of the Arterial Road Links Development Project (Phase IV) on the terms and conditions set forth in the Loan Agreement and in accordance with the relevant laws and regulations of Japan.7 The said amount shall be used for the purchase of eligible goods and services necessary for the implementation of the above-mentioned project from suppliers. CP IV: Pandan-Caramoran-Codon Road .66. namely. CP III: Bagamanoc-Pandan Road . the opening of the bids commenced immediately.000. reference to "the OECF" and "Fund" therein (General Terms and Conditions) shall be substituted by "the JBIC" and "Bank. eight contractors were evaluated or considered eligible to bid as concurred by the JBIC. Prior to the opening of the respective bid proposals. was divided into four contract packages (CP): CP I: San Andres (Codon)-Virac-Jct. The bid documents submitted by the prequalified contractors/bidders were examined to determine their compliance with the requirements as stipulated in Article 6 of the Instruction to Bidders.40 kms. and December 5.

Abaya claims that he filed the instant petition as a taxpayer. P1. Purisima in their capacities as former Secretaries of the DPWH.The result of the bidding revealed the following three lowest bidders and their respective bids vis-à-vis the ABC:13 Original Bid As Read As-Corrected Bid Amount Variance (Pesos) (Pesos) P952.099. the Department of Budget and Management (DBM) as the government agency that authorizes the release and disbursement of public funds for the implementation of government infrastructure projects.34 Public Company. former military officer. 3) Italian Thai Dev’t.564. The Parties Petitioner Plaridel M.14 After further evaluation of the bids. 2004. San Andres (Codon) – Virac – Jct. Project Manager of the Catanduanes Circumferential Road Improvement Project (CCRIP). 2004 recommending the award in favor of private respondent China Road & Bridge Corporation of the contract for the implementation of civil works for CP I.95% from the ABC) based on their letter clarification dated April 21. and the Department of Finance (DOF) as the government agency that acts as the custodian and manager of all financial resources of the government. issued the assailed Resolution No.564. is a non-stock. Corp. Carlos L.95% 48.71 (with variance of 28. recommended the award of the contract to private respondent China Road & Bridge Corporation: In accordance with the Guidelines for the Procurements under ODA [Official Development Assistance] Loans. It claims that its members are all taxpayers and alumni of the Philippine Military Academy. Bato – Viga Section under the Arterial Road Links Development Projects. PHP204. P1.926. On the other hand..71 P1.392.125.022. China Road and Bridge Corporation. public respondent Norma L. The bid of private respondent China Road & Bridge Corporation was corrected from the original P993. former lawmaker. as the government agency tasked with the implementation of government infrastructure projects. Emilia T. on the other hand. Ltd. a Contract of Agreement was entered into by and between the DPWH and private respondent China Road & Bridge Corporation for the implementation of the CP I project.36 28. Mr.183. with the approval of then Acting Secretary Soriquez. at its total corrected bid amount of Nine Hundred Fifty-Two Million Five Hundred Sixty-Four Thousand Eight Hundred Twenty-One & 71/100 Pesos. and a Filipino citizen.125.. located in Catanduanes Province. Also named as individual public respondents are Hermogenes E. Phase IV.16 On September 29. Agustin. PJHL-A-04-012 dated May 7. .11 Devt.11 P1.075.35% Name of Bidder 1) China Road And Bridge P 993. Hedifume Ezawa.821.45% from the ABC) to P952. Petitioner PMA ’59 Foundation. Phase IV. respectively.598. under JBIC Loan Agreement No.099. Ebdane. JBIC Loan No. in his Contractor’s Bid Evaluation Report dated April 2004. It is represented by its President.90% 52.926. Garcia likewise claims that he filed the suit as a taxpayer. Lasala was impleaded in her capacity as Treasurer of the Bureau of Treasury. 2004.821.475.98 Corporation 2) Cavite Ideal Int’l Const. PH-P204 to the Lowest Complying Bidder. San Andres (Codon) – Virac – Jct. Jr. particularly those of the lowest three bidders. DBM and DOF. Boncodin and Cesar V.98 (with variance of 34. the Consultant hereby recommends the award of the contract for the construction of CP I. Inc. Bato – Viga Road (Catanduanes Circumferential Road Improvement Project) of the Arterial Roads Links Development Project. Named as public respondents are the DPWH.904.904.183.15 The BAC of the DPWH. non-profit corporation organized under the existing Philippine laws. Petitioner Plaridel C.598. and a Filipino citizen.

They point out that the Philippine Government allocates a peso-counterpart for CP I. Phase IV. and the China Road & Bridge Corporation. the law allegedly violated by the public respondents. for the implementation of civil works for CPI. They also seek to annul the contract of agreement subsequently entered into by and between the DPWH and private respondent China Road & Bridge Corporation pursuant to the said resolution. Whether or not Petitioners are entitled to the issuance of a Writ of Prohibition permanently prohibiting the implementation of DPWH Resolution No. PH-P204. under JBIC L/A No. Whether or not Petitioners are entitled to a Preliminary Injunction and/or a Temporary Restraining Order immediately enjoining the implementation of DPWH Resolution No. is thus allegedly proper.18 Further. is void ab initio. They pose the following issues for the Court’s resolution: I. PJHL-A-04-012. Whether or not Petitioners are entitled to the issuance of a Writ of Certiorari reversing and setting aside DPWH Resolution No. under JBIC L/A No. San Andres (CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD IMPROVEMENT PROJECT) of the Arterial Road Links Development Project. which amount is appropriated by Congress in the General Appropriations Act. the petitioners assert that they have standing or locus standi to file the instant petition. The Petitioners’ Case The petitioners mainly seek to nullify DPWH Resolution No. The present action. II. PH-P204. located in Catanduanes Province. and the disbursement of public funds by the [D]epartment of [B]udget and [M]anagement for such purpose. They likewise characterize the instant petition as one of transcendental importance that warrants the Court’s adoption of a liberal stance on the issue of standing. to China Road & Bridge Corporation. they have the right and duty to question the expenditure of public funds on illegal acts. funds that are being utilized in the implementation of the questioned project also partake of taxpayers’ money. III. as a taxpayers’ suit. recommending the award of the Contract Agreement for the implementation of civil works for CPI. Phase IV.Private respondent China Road & Bridge Corporation is a duly organized corporation engaged in the business of construction. petitioner Abaya asserts that he possesses the requisite standing as a former member of the House of Representatives and one of the principal authors of Republic Act No. 2004. hence. . 9184 (RA 9184) 19 known as the Government Procurement Reform Act. which recommended the award to private respondent China Road & Bridge Corporation of the contract for the implementation of the civil works of CP I. through the Department of Public Works and Highways. V. PJHL-A-04-012 and the Contract Agreement executed by and between the Republic of the Philippines (through the Department of Public Works and Highways) and the China Road & Bridge Corporation. Whether or not Petitioners have standing to file the instant Petition. It cited several cases where the Court brushed aside procedural technicalities in order to resolve issues involving paramount public interest and transcendental importance. They claim that as taxpayers and concerned citizens. during the pendency of this case. Whether or not the Contract Agreement executed by and between the Republic of the Philippines. PJHL-A-04-012 and the Contract Agreement executed by and between the Republic of the Philippines (through the Department of Public Works and Highways) and the China Road & Bridge Corporation. PJHL-A-04-012 dated May 7. San Andres (CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD IMPROVEMENT PROJECT) of the Arterial Road Links Development Project. located in Catanduanes Province. IV.17 Preliminarily. and the disbursement of public funds by the Department of Budget and Management for such purpose.

The following contracts are inexistent and void from the beginning: (1) Those whose cause. the petitioners anchor the instant petition on the contention that the award of the contract to private respondent China Road & Bridge Corporation violates RA 9184. series of 1979. have been awarded the said contract. morals. the Corporate Budget for the contract approved by the governing Boards. Definition of Terms. as provided for in the General Appropriations Act and/or continuing appropriations. (2) Those which are absolutely simulated or fictitious.O. (3) Those whose cause or object did not exist at the time of the transaction. 518. Resolution No. – refers to the budget for the contract duly approved by the Head of the Procuring Entity. the petitioners opine that the contract subsequently entered into by and between the DPWH and private respondent China Road & Bridge Corporation is void ab initio for being prohibited by RA 9184. 1409. PJHL-A-04-012 was allegedly issued with grave abuse of discretion because it recommended the award of the contract to private respondent China Road & Bridge Corporation whose bid was more than P200 million overpriced based on the ABC. good customs. There shall be no lower limit to the amount of the award. (4) Those whose object is outside the commerce of men. the award is allegedly illegal and unconscionable. (5) Those which contemplate an impossible service. As such. – The ABC shall be the upper limit or ceiling for the Bid prices.On the substantive issues. Bid prices that exceed this ceiling shall be disqualified outright from further participating in the bidding. it should have been allegedly disqualified from the bidding process and should not. in the case of Local Government Units. the contract is deemed void and inexistent. Under the above-quoted provisions of RA 9184. Ceiling for Bid Prices. They stress that Section 31 thereof expressly provides that "bid prices that exceed this ceiling shall be disqualified outright from participating in the bidding. object or purpose is contrary to law. thus: SEC. Government Financial Institutions and State Universities and Colleges. pursuant to E. 31. and the Budget for the contract approved by the respective Sanggunian. They invoke Article 1409 of the Civil Code: ART. public order or public policy. In this connection. otherwise. the petitioners cite the definition of the ABC. (6) Those where the intention of the parties relative to the principal object of the contract cannot be ascertained. in the case of Government-Owned and/or Controlled Corporations. 5." The upper limit or ceiling is called the ABC and since the bid of private respondent China Road & Bridge Corporation exceeded the ABC for the CP I project. No. In relation thereto. particularly Section 31 thereof which reads: SEC. – xxx (a) Approved Budget for the Contract (ABC). xxx The petitioners theorize that the foregoing provisions show the mandatory character of ceilings or upper limits of every bid. . in the case of National Government Agencies. by law. all bids or awards should not exceed the ceilings or upper limits.

Since the subject procurement and award of the contract . 1999. five contractors will gather. It should read as follows: "This Act shall apply to the procurement of goods. accepted. included in that 500 million is the 20 percent profit. and not on the loan agreements attached to such projects. PH-P204. "O eto 20 million. The petitioners clarify that they do not pray for the annulment of Loan Agreement No. REP. 4? Definition – definition of terms. if you allow bids above government estimate. So this promote (sic) collusion among bidders. PH-P204. Chairman? THE CHAIRMAN (SEN. They further insist on the applicability of RA 9184 contending that while it took effect on January 26. Del. Thus. of course. the actual procurement or award of the contract to private respondent China Road & Bridge Corporation was done after the effectivity of RA 9184. The Senate accepts it. We accept. REP. the contract between the DPWH and private respondent China Road & Bridge Corporation is allegedly inexistent and void ab initio and can produce no effects whatsoever. ABAYA. it will not be very tempting kasi walang extra money na pwedeng ibigay sa ibang contractor." THE CHAIRMAN (SEN. To give an example. PJHL-A-04-012 as well as the contract between the DPWH and private respondent China Road & Bridge Corporation. For violating the above provision. aregluhan na lang. can we just propose additional amendments? Can we go back to Section 4. 20 million. 20 million. 4809:20 REP. the petition only prays for the annulment of Resolution No. the parties must be two sovereigns or States whereas in the case of Loan Agreement No. PH-P204 between the JBIC and the Philippine Government is neither a treaty.22 The petitioners insist that Loan Agreement No. this is a rich source of graft money. REP. If we eliminate that. 2003 23 and Loan Agreement No. Now. ‘Yun ang practice na nangyayari. So we should have a ceiling to include foreign funded projects. Ito. let’s say take the case of 500 million project. we should include foreign funded projects kasi these are the big projects. which is on the actual procurement of infrastructure and other projects only. The said law is allegedly specific as to its application. 30 percent of 500 million is another 150 million. the parties are the Philippine Government and the JBIC. Section? Section ano. Mr. they will add another say 28 percent of (sic) 30 percent.(7) Those expressly prohibited or declared void by law. with the cooperation of irresponsible officials of some agencies. an international nor an executive agreement that would bar the application of RA 9184. If you allow them to bid above government estimate. ABAYA. Mr. an international or an executive agreement. Just take note of that ano. it is rigged. ANGARA). a banking agency of Japan. Sa House bill. ANGARA)." So.and foreign-funded procurement contracts. can you repeat again the justification for including foreign funded contracts within the scope para malinaw because the World Bank daw might raise some objection to it. It is the contention of the petitioners that RA 9184 is applicable to both local. Okay.21 xxx xxx xxx THE CHAIRMAN (SEN ANGARA). They cite the following excerpt of the deliberations of the Bicameral Conference Committee on the Disagreeing Provisions of Senate Bill No. Mr. PH-P204 was executed prior thereto or on December 28. Well. supplies and materials. 150 million. THE CHAIRMAN (SEN. Medyo nga problematic ‘yan eh. ABAYA. ABAYA. Chairman. which has a separate juridical personality from the Japanese Government. Chairman. ANGARA). 2248 and House Bill No. it is sa scope and application. if we have a ceiling then. just for the record Del. They point out that to be considered a treaty. Okay. infrastructure projects and consulting services regardless of funding source whether local or foreign by the government.

Their interest is allegedly too vague. eventually. as in the present case. series of 2001. PJHL-A-04-012 as well as to declare null and void the contract entered into between the DPWH and private respondent China Road & Bridge Corporation. there are concurrent resolutions drafted by both houses of Congress for the Reconvening of the Joint Congressional Oversight Committee for the formulation of the IRR for foreign-funded procurements under RA 9184. may have also been repealed or modified by RA 9184 insofar as its provisions are inconsistent with the latter.28 (d) where there is a claim of illegal disbursement or wastage of public funds through the enforcement of an invalid or unconstitutional law. necessarily. or that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute complained of. Resolution No. Members of Congress may properly challenge the validity of an official act of any department of the government only upon showing that the assailed official act affects or impairs their rights and prerogatives as legislators. urge the Court to dismiss the petition on grounds that the petitioners have no locus standi and. and not Presidential Decree No. The petitioners also argue that the "Implementing Rules and Regulations (IRR) of RA 9184. Otherwise Known as the Government Procurement Reform Act. The Respondents’ Counter-Arguments The public respondents. The public respondents find it noteworthy that the petitioners do not raise issues of constitutionality but only of contract law. They aver that the implementing rules to govern foreign-funded procurement. which when enforced will put the petitioner in imminent danger of sustaining some direct injury as a result thereof. namely the DPWH. the procurement rules established by that law allegedly apply. They thus urge the Court to issue a writ of certiorari to set aside Resolution No. The public respondents further assail the standing of the petitioners to file the instant suit claiming that they failed to allege any specific injury suffered nor an interest that is direct and personal to them.27 (c) where legislators questioned the validity of any official action upon the claim that it infringes on their prerogatives as legislators. through the Office of the Solicitor General. in any case. a writ of prohibition to permanently enjoin the DPWH from implementing Resolution No. 40 (EO 40). the interest or injuries claimed by the petitioners are allegedly merely of a general interest common to all members of the public. and their respective named officials. known as the Foreign Borrowings Act.were done after the effectivity of RA 9184. which the petitioners not being privies to the agreement cannot raise. 30 or (f) where it involves an invalid law. 29 (e) where it involves the right of members of the Senate or House of Representatives to question the validity of a presidential veto or condition imposed on an item in an appropriation bill. 26 (b) where there is a question of validity of election laws. 1594 (PD 1594)24 and Executive Order No. DBM and DOF. They also pray for the issuance of a temporary restraining order and. They bring to the Court’s attention the fact that the works on the CP I project have already commenced as early as October 2004. The petitioners maintain that disbursement of public funds to implement a patently void and illegal contract is itself illegal and must be enjoined. have allegedly been repealed by RA 9184. including their implementing rules. This is following the principle that a stranger to a contract cannot sue either or both the contracting parties to annul and set aside . PJHL-A-04-012 and the contract between the DPWH and private respondent China Road & Bridge Corporation are valid. 31 None of the above considerations allegedly obtains in the present case. 25 as contended by the respondents. the petitioners posit. as amended. Even RA 4860. highly speculative and uncertain to satisfy the requirements of locus standi. Part A" (IRR-A) cited by the respondents is not applicable as these rules only govern domestically-funded procurement contracts. If at all. have yet to be drafted and in fact. PJHL-A-04-012 and its contract with private respondent China Road & Bridge Corporation as well as the DBM from disbursing funds for the said purpose. The latter laws. According to the public respondents. It is also the view of the public respondents that the fact that petitioner Abaya was a former lawmaker would not suffice to confer locus standi on himself. a taxpayer’s locus standi was recognized in the following cases: (a) where a tax measure is assailed as unconstitutional.

That in case where international competitive bidding shall be conducted preference of at least fifteen per centum shall be granted in favor of articles.D. the President of the Philippines may. Series of 1987. PJHL-A-04-012 and the subsequent contract between the DPWH and private respondent China Road & Bridge Corporation materialized. Section 4 thereof states: SEC.06 of the JBIC Procurement Guidelines reads: Section 5. and under Section 4 thereof. 46. as amended. Evaluation and Comparison of Bids. the provisions of [CA 541]. to clarify RA 4860. the President is empowered to waive the application of any law imposing restrictions on the procurement of goods and services pursuant to such loans. 1594 . 104 and 108. otherwise known as the "Foreign Borrowings Act" xxx It is hereby clarified that foreign-assisted infrastructure projects may be exempted from the application for the pertinent provisions of the Implementing Rules and Regulations (IRR) of Presidential Decree (P. That as far as practicable. xxx (e) Any procedure under which bids above or below a predetermined bid value assessment are automatically disqualified is not permitted. financed by Loan Agreement No. 104: In view of the provisions of Section 4 of Republic Act No. DOJ Opinion No. are also invoked by the public respondents. issued by the President. the public respondents maintain that the imposition of ceilings or upper limits on bid prices in RA 9184 does not apply because the CP I project and the entire Catanduanes Circumferential Road Improvement Project. credit or indebtedness under this Act. insofar as such provisions do not pertain to constructions primarily for national defense or security purposes. Memorandum Circular Nos. There being no particularized interest or elemental substantial injury necessary to confer locus standi. Provided. as amended. PH-P204 executed between the Philippine Government and the JBIC. agree to waive or modify. when necessary. finally. 4239. however. is relied upon by the public respondents as it opined that an agreement for the exclusion of foreign assisted projects from the coverage of local bidding regulations does not contravene existing legislations because the statutory basis for foreign loan agreements is RA 4860. The public respondents stress that it was pursuant to Loan Agreement No. They likewise aver that Loan Agreement No. [RA 5183]. It was explained that other foreign banks such as the Asian Development Bank (ADB) and the World Bank (WB) similarly prohibit the bracketing or imposition of a ceiling on bid prices. On the merits. as amended. as amended. That the method and procedure in comparison of bids shall be the subject of agreement between the Philippine Government and the lending institution. to wit: Memorandum Circular No. materials or supplies of the growth. 4860. Section 5.) No. is governed by the latter’s Procurement Guidelines which precludes the imposition of ceilings on bid prices. utilization of the services of qualified domestic firms in the prosecution of projects financed under this Act shall be encouraged: Provided. Commonwealth Act No. further.06. 138]. In the contracting of any loan. or the Foreign Borrowings Act. PH-P204 that the assailed Resolution No. including among others [Act No. the application of any law granting preferences or imposing restrictions on international competitive bidding. production or manufacture of the Philippines: Provided.the same except when he is prejudiced on his rights and can show detriment which would positively result to him from the implementation of the contract in which he has no intervention. relative to the award of foreign-assisted projects. 4. and PD 1594. PH-P204 is governed by RA 4860. the public respondents implore the Court to dismiss the petition.

4860. as such. when the loan/grant agreement so stipulates. 1999. Memorandum Circular No. and subject to such limitations as may be provided by law.relative to the method and procedure in the comparison of bids. PH-P204. 2002.32 The public respondents characterize foreign loan agreements. PH-P204 was executed on December 28. Guided by the fundamental rule of pacta sunt servanda. 77. being the law between the parties. including Loan Agreement No. – . 2003. recognizes the enforceability of executive agreements in the same way that it recognizes generally accepted principles of international law as forming part of the law of the land. or before the signing into law of RA 9184 on January 10. Transitory Clause. it is hereby clarified that. PH-P204. must be faithfully adhered to by them. Loan Agreement No. in particular. the public respondents point to Section 77 of IRR-A. should be observed pursuant to the fundamental principle in international law of pacta sunt servanda. where the laws then in force on government procurements were PD 1594 and EO 40." The applicability of EO 40. excluded from its application "any existing and future government commitments with respect to the bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and other similar foreign sources. The public respondents further argue against the applicability of RA 9184 stating that it was signed into law on January 10. It is pointed out by the public respondents that executive agreements are essentially contracts governing the rights and obligations of the parties.35 On the other hand. 108: In view of the provisions of Section 4 of Republic Act No. and containing other matters as may be provided by law. for projects supported in whole or in part by foreign assistance awarded through international or local competitive bidding. as amended. 2003. The Constitution. Specifically. is allegedly bolstered by the fact that the "Invitation to Prequalify and to Bid" for the implementation of the CP I project was published in two leading national newspapers. It should be made clear however that public bidding is still required and can only be waived pursuant to existing laws. as far as practicable.34 This recognition allegedly buttresses the binding effect of executive agreements to which the Philippine Government is a signatory. within thirty days from the end of every quarter of the calendar year. the government agency concerned may award the contract to the lowest evaluated bidder at his bid price consistent with the provisions of the applicable loan/grant agreement. as executive agreements and. 1594 during loan/grant negotiation and the implementation of the projects. In this connection. adhere closely to the implementing rules and regulations of Presidential Decree No. the government agency concerned may award the contract to the lowest bidder even if his/its bid exceeds the approved agency estimate. namely. otherwise known as the "Foreign Borrowings Act". It is understood that the concerned government agency shall. which matter may be the subject of agreement between the infrastructure agency concerned and the lending institution. 20. the Manila Times and Manila Standard on November 22. The latter law (EO 40). the public respondents emphasize. submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government or Government-owned and Controlled Corporations which would have the effect of increasing the foreign debt. the Philippine Government bound itself to perform in good faith its duties and obligations under Loan Agreement No. The Monetary Board shall. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board. 29 and December 5. A contract. which reads: SEC.33 They cite Section 20 of Article VII of the Constitution as giving the President the authority to contract foreign loans: SEC. not RA 9184.

Any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed. its departments. and (c) consulting services. Goods and Consulting Services. including State Universities and Colleges (SUCs). EO 40 was issued by the Office of the President on October 8. as a former lawmaker. subject to the provisions of Commonwealth Act No. private respondent China Road & Bridge Corporation asserts that the applicable law to govern the bidding of the CP I project was EO 40.In all procurement activities. To insist on the application of RA 9184 on the bidding for the CP I project would. The said loan agreement expressly provided that the procurement of goods and services for the project financed by the same shall be governed by the Guidelines for Procurement under OECF Loans dated December 1997. shall govern. in the case of petitioner Abaya. 4. Section 5. PH-P204 were an ordinary loan contract. PH-P204. 138. For its part. rules and regulations provided in EO 40 and its IRR. it is also alleged that. PH-P204 states that the JBIC Procurement Guidelines shall govern the parties’ relationship and further dictates that there be no ceiling price for the bidding. the petitioners failed to observe the hierarchy of courts. It is also the position of the public respondents that even granting arguendo that Loan Agreement No. Scope and Application." The public respondents explain that since the contract is the law between the parties and Loan Agreement No. RA 9184 is inapplicable under the non-impairment clause 36 of the Constitution. the provisions of EO 40 and its IRR. either as taxpayers or. RA 7160 and its IRR. private respondent China Road & Bridge Corporation similarly assails the standing of the petitioners. PD 1594 and its IRR. (b) civil works. Lastly. regardless of source of funds. In addition. Further. not RA 9184. offices and agencies. as the case may be. procuring entities may continue adopting the procurement procedures. Further. 2001 and Section 1 thereof states that: SEC. allegedly violate the constitutional provision on non-impairment of obligations and contracts. if the advertisement or invitation for bids was issued prior to the effectivity of the Act. – This Act shall apply to the Procurement of Infrastructure Projects. which includes the Catanduanes Circumferential Road Improvement Project. Scope and Applications. by filing the petition directly to this Court. This Executive Order shall apply to the procurement of: (a) goods. including government-owned and/or – controlled corporations and local government units. because the former was the law governing the procurement of government projects at the time that it was bidded out. were covered by the necessary appropriations made by law. to file the present suit. Government-Owned or Controlled Corporations . materials and related services. or other applicable laws as the case may be. In cases where the advertisements or invitations for bids were issued after the effectivity of the Act but before the effectivity of this IRR-A. They asseverate that all the releases made by the DBM for the implementation of the entire Arterial Road Links Project – Phase IV. supplies. specifically the General Appropriations Act (GAA). the requirements and procedures prescribed for the release of the said funds were duly complied with. still. On the merits. or other applicable laws. Section 4 of RA 9184 is also invoked by the public respondents as it provides: SEC. whether local or foreign. and destroy vested rights duly acquired under the said loan agreement. the public respondents deny that there was illegal disbursement of public funds by the DBM. by all National Government agencies. by all branches and instrumentalities of government. it naturally follows that any subsequent law passed contrary to the letters of the said contract would have no effect with respect to the parties’ rights and obligations arising therefrom. notwithstanding the terms and conditions of Loan Agreement No.06 of the JBIC Procurement Guidelines categorically provides that "[a]ny procedure under which bids above or below a predetermined bid value assessment are automatically disqualified is not permitted. 1.

Section 1. PH-P204 which should govern the procurement of goods and services for the CP I project. The following excerpt of the deliberations of the Bicameral Conference Committee on the Disagreeing Provision of Senate Bill No. Scope and Application.’ This Executive Order shall cover the procurement process from the pre-procurement conference up to the award of contract. Since the law in effect at the time the procurement process was initiated was EO 40. 4809 is cited by private respondent China Road & Bridge Corporation to support its contention that it is the intent of the lawmakers to exclude from the application of RA 9184 those foreign-funded projects: . the Exchange of Notes and Loan Agreement No. Private respondent China Road & Bridge Corporation thus postulates that following EO 40. PH-P204 allegedly created a legally binding obligation on the parties. On the other hand. Private respondent China Road & Bridge Corporation. It was allegedly on the basis of the said law that the DPWH awarded the project to private respondent China Road & Bridge Coporation even if its bid was higher than the ABC. private respondent China Road & Bridge Corporation submits that it should be the said law which should govern the entire procurement process relative to the CP I project.06 of the JBIC Procurement Guidelines prohibits the setting of ceilings on bid prices. PH-P204.(GOCCs) and Government Financial Institutions (GFIs). It is also contended by private respondent China Road & Bridge Corporation that even assuming arguendo that RA 9184 could be applied retroactively. 2248 and House Bill No. It supports its theory by characterizing the said loan agreement. Section 1 thereof. Section 5. executed pursuant to the Exchange of Notes between the Government of Japan and the Philippine Government. xxx The Invitation to Prequalify and to Bid was first published on November 22. As an international or executive agreement. EO 40 expressly recognizes as an exception from the application of the provisions thereof on approved budget ceilings. as well as from bilateral and other similar foreign sources. 2002. quoted in part earlier. the procurement of goods and services for the CP I project should be governed by the terms and conditions of Loan Agreement No. it relied in good faith on the provisions of EO 40. Pertinently. RA 9184 could not be applied retroactively for to do so would allegedly impair the vested rights of private respondent China Road & Bridge Corporation arising from its contract with the DPWH. cites RA 4860 as the basis for the Exchange of Notes and Loan Agreement No. RA 9184 was signed into law only on January 10. hereby referred to as the ‘Agencies.2 of the Implementing Rules and Regulations of EO 40 is likewise invoked as it provides: For procurement financed wholly or partly from Official Development Assistance (ODA) funds from International Financing Institutions (IFIs). Private respondent China Road & Bridge Corporation claims that when it submitted its bid for the CP I project. 1. as an executive agreement. like the public respondents. 2003. x x x Nothing in this Order shall negate any existing and future government commitments with respect to the bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and other similar foreign sources. it is still the terms of Loan Agreement No. further states: SEC. those projects financed by international financing institutions (IFIs) and foreign bilateral sources. the corresponding loan/grant agreement governing said funds as negotiated and agreed upon by and between the Government and the concerned IFI shall be observed. Under the circumstances. PH-P204 entered into between the JBIC and the Philippine Government.

the Court. is merely a matter of procedure 42 and it has been recognized that in some cases." 38 More particularly. Okay.47 In the present case. it is a party’s personal and substantial interest in a case such that he has sustained or will sustain direct injury as a result of the governmental act being challenged. The prevailing doctrine in taxpayer’s suits is to allow taxpayers to question contracts entered into by the national government or government. ‘Yun pala eh.46 Significantly. It calls for more than just a generalized grievance. because some countries now make it a condition that they supply both services and goods especially the Japanese. It urges the Court to dismiss the petition for lack of merit. MARCOS. THE CHAIRMAN (SEN. the petitioners are suing as taxpayers. ANGARA). locus standi is "a right of appearance in a court of justice on a given question. may we just state that foreign contracts have. That should allay their anxiety and concern. a taxpayer need not be a party to the contract to challenge its validity."41 Locus standi. Now. PH-P204. I think the possible concern is that some ODA are with strings attached especially the Japanese. possess locus standi to file the present suit Briefly stated.owned or controlled corporations allegedly in contravention of law. THE CHAIRMAN (SEN. Chairman. taxpayers or voters who actually sue in the public interest. subject to any treaty. as taxpayers. or a mere incidental interest. they are no longer strictly foreign in nature but fall under the laws of the Philippine government. di ba Laura? MR. that they are (sic) even provide the architect and the design. a justification for the inclusion of foreign contracts. Actually. suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens. or that public money is being deflected to any improper purpose.37 Private respondent China Road & Bridge Corporation submits that based on the provisions of the Exchange of Notes and Loan Agreement No.xxx REP. notwithstanding the fact that the CP I project is primarily financed from loans obtained by the government from . Yes. an interest in issue affected by the decree.44 has invariably adopted a liberal stance on locus standi. or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. however. The term "interest" means a material interest. ENCARNACION. I think that’s pretty clear. Mr. So I think we can put a sentence that we continue to honor our international obligations. as distinguished from mere interest in the question involved. including those cases involving taxpayers. The Japanese are quite strict about that. of course. of course. etcetera. to respond and to put into the record. They have sufficiently demonstrated that. Okay. it was rightfully and legally awarded the CP I project. The Court’s Rulings Petitioners. 45 A taxpayer is allowed to sue where there is a claim that public funds are illegally disbursed. 43 Consequently. buti na lang for the record para malaman nila na we are conscious sa ODA. ANGARA). plus. in a catena of cases. 39 Standing or locus standi is a peculiar concept in constitutional law 40 and the rationale for requiring a party who challenges the constitutionality of a statute to allege such a personal stake in the outcome of the controversy is "to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. been brought into the ambit of the law because of the Filipino counterpart for this foreign projects. the goods that will be supplied. I think we’ve already provided that this is open to all and we will recognize our international agreements so that this bill will not also restrict the flow of foreign funding.

22. the serious legal questions raised by the petitioners. RA 7160 was likewise enacted by Congress in 1991 and it contains provisions governing the procurement of goods and locally-funded civil works by the local government units. 52 On February 3. 302 (1996). the Philippine Commission.50 Act No. The counterpart funds. acting as purchasing agent under the control of the then Military Governor. nonetheless. 74. whether RA 9184 applies to the CP I project. required the municipal and provincial governments.51 On June 21. 1936. taxpayers’ money would be or is being spent on the project considering that the Philippine Government is required to allocate a peso-counterpart therefor. Then President Joseph Ejercito Estrada issued Executive Order No. refer to the component of the project cost to be financed from government-appropriated funds. 201 (2000). through Act No. 1901 by the Philippine Commission. Section 62 of the Administrative Code of 1987 reiterated the requirement of competitive public bidding in government projects. by requiring the Chief Engineer. e.48 Hence. In 1990. enacted on October 15. in general. As a corollary. In any case. 1900. Then President Ferdinand Marcos issued PD 1594 prescribing guidelines for government infrastructure projects and Section 454 thereof stated that they should generally be undertaken by contract after competitive public bidding. for reasons which will be discussed shortly. providing additional guidelines in the procurement of goods and supplies by the national . its subdivisions and instrumentalities. the subsequent contract entered into by and between the DPWH and private respondent China Road & Bridge Corporation is likewise valid. as part of the government’s commitment in the implementation of the project. Then President Diosdado Macapagal. should be entered into without public bidding except for very extraordinary reasons to be determined by a Committee constituted thereunder. 83. 82. respectively. in Executive Order No.. to hold competitive public biddings in the making of contracts for public works and the purchase of office supplies.the JBIC.53 The requirement of public bidding was likewise imposed for public works of construction or repair pursuant to the Revised Administrative Code of 1917. and the fact that public interest is indubitably involved considering the public expenditure of millions of pesos. 1901.g. reiterated the directive that no government contract for public service or for furnishing supplies. 55 which authorized the financing. materials and equipment to the government should be subjected to public bidding. at this point. 146. 301 (1987) prescribing guidelines for government negotiated contracts. public bidding became a popular policy in the purchase of supplies. the substantive arguments raised by the petitioners fail to persuade the Court as it holds that Resolution No. created the Bureau of Supply and with its creation. then President Manuel L. United States Army for the Division of the Philippine Islands. materials and equipment for the use of the national government. approved on January 31. 1901. Congress passed RA 6957. Pertinently. 1963. to advertise and call for a competitive bidding for the purchase of the necessary materials and lands to be used for the construction of highways and bridges in the Philippine Islands. the Solicitor General explains. required the General Superintendent of Public Instruction to purchase office supplies through competitive public bidding. construction. Further. The public respondents themselves admit that appropriations for these foreign-assisted projects in the GAA are composed of the loan proceeds and the peso-counterpart. enacted on January 21. agencies or instrumentalities. materials and equipment to the government or any of its branches. 40 dated June 1. PJHL-A-04-012 is valid. Then President Fidel Ramos issued Executive Order No. in particular. operation and maintenance of infrastructure by the private sector. and Act No. 49 Act No. providing guidelines for the procurement of goods and supplies by the national government. History of Philippine Procurement Laws It is necessary. Then President Corazon Aquino issued Executive Order No. the petitioners correctly asserted their standing since a part of the funds being utilized in the implementation of the CP I project partakes of taxpayers’ money. to give a brief history of Philippine laws pertaining to procurement through public bidding. Quezon issued Executive Order No. and to foreign-funded government projects. approved on February 6. 1901. warrant the Court to adopt in the present case its liberal policy on locus standi. The United States Philippine Commission introduced the American practice of public bidding through Act No. 16 declaring as a matter of general policy that government contracts for public service or for furnishing supplies.

and Requiring the Use of the Government Electronic Procurement System". entitled "Providing Additional Policies and Guidelines in the Procurement of Goods/Supplies by the National Government".58 The provisions of EO 40 apply to the procurement process pertaining to the CP I project as it is explicitly provided in Section 1 thereof that: . not RA 9184. agree to waive or modify the application of any law granting preferences or imposing restrictions on international competitive bidding x x x Provided. 2003. entitled "Providing Additional Guidelines in the Processing and Approval of Contracts of the National Government". RA 9184 took effect two months later or on January 26. 1995. Rules and Regulations for Government Infrastructure Contracts. 2004." Any other law. and the relevant provisions of Republic Act No. 29 and December 5. series of 1996. executive order. as amended: SEC. must be mentioned as Section 4 thereof provides that "[i]n the contracting of any loan. President Arroyo signed into law RA 9184. That the method and procedure in the comparison of bids shall be the subject of agreement between the Philippine Government and the lending institution. 1594 dated June 11. namely. Executive Order No. the President of the Philippines may. 57 It expressly repealed. 2001. 302. letter of instruction. 302. Guidelines. the relevant provisions of Executive Order No. series of 2001. the Manila Times and Manila Standard on November 22. At the time. entitled "Consolidating Procurement Rules and Procedures for All National Government Agencies. It accordingly repealed. entitled "Amending Executive Order No. 164.56 On January 10. orders. rules and regulations or parts thereof inconsistent therewith. modified or amended accordingly. series of 2000. Repealing Clause. 262. proclamation. or fifteen days after its publication in two newspapers of general circulation. EO 302(1996) and PD 1594. 2003. he issued Executive Order No. as amended. On the other hand. President Gloria Macapagal-Arroyo issued EO 40. 2003 and subsequently published on September 23. entitled "Providing Policies. presidential decree or issuance. Book Two of Republic Act No. In addition to these laws. 201." EO 40. credit or indebtedness under this Act. Rules and Regulations for the Procurement of Goods/Supplies by the National Government" and Presidential Decree No. charter. Guidelines. 40. the law mainly relied upon by the respondents. Government-Owned or Controlled Corporations and Government Financial Institutions. Thereafter. among others. its full implementation was even delayed as IRR-A was only approved by President Arroyo on September 18. 2003 in the Manila Times and Malaya newspapers. the Invitation to Prequalify and to Bid for its implementation was published in two leading national newspapers. 76. Further. —This law repeals Executive Order No. Government Owned or Controlled Corporations and/or Government Financial Institutions. It is not disputed that with respect to the CP I project. finally. 262 (2000) amending EO 302 (1996) and EO 201 (2000). RA 9184 cannot be given retroactive application. and Requiring the Use of the Government Procurement System. administrative order. entitled Consolidating Procurement Rules and Procedures for All National Government Agencies. RA 4860. amended or modified all executive issuances. 2002. 7160. rule or regulation and/or parts thereof contrary to or inconsistent with the provisions of this Act is hereby repealed. entitled "An Act Providing for the Modernization of the Armed Forces of the Philippines and for Other Purposes. Rules and Regulations for the Procurement of Goods/Supplies by the National Government" and Section 3 of Executive Order No. It took effect on January 26. On October 8. EO 262 (2000). Executive Order No. entitled "Prescribing Policies. when necessary. series of 1996. Guidelines. the law in effect was EO 40. is applicable to the procurement process undertaken for the CP I project. otherwise known as the "Local Government Code of 1991". EO 40. entitled Providing Policies. 1978. series of 1987." This law amends Title Six. 7898 dated February 23.government. series of 1996.

(10) award of contract and notice to proceed.SEC.A. by all National Government agencies. if the advertisement or invitation for bids was issued prior to the effectivity of the Act. RA 9184 cannot be applied retroactively to govern the procurement process relative to the CP I project because it is well settled that a law or regulation has no retroactive application unless it expressly provides for retroactivity. when the Invitation to Prequalify and to Bid for the implementation of the CP I project was published on November 22. (2) advertisement of the invitation to bid." In the absence of such categorical provision. even absurd. the provisions of E. (9) post qualification. Stated differently.D. 29 and December 5. thus: SEC. and RA 7160 and its IRR in the case of local government units. hereby referred to as "Agencies. (8) bid evaluation.O. (6) modification and withdrawal of bids. as urged by the petitioners. Government-Owned or –Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs). R. and two members thereof appointed by the Senate President and the Chairman of the House Committee on Appropriations. to provide for the prospective application of RA 9184 with respect to domestically-funded procurement projects and. Scope and Application. IRR-A covers only fully domestically-funded procurement activities from procurement planning up to contract implementation and that it is expressly stated that IRR-B for foreign-funded procurement activities shall be subject of a subsequent issuance. unless the contrary is provided. (b) civil works. R. on the other hand. procuring entities may continue adopting the procurement procedures. The procurement process basically involves the following steps: (1) pre-procurement conference. the policy on the prospective or non-retroactive application of RA 9184 with respect to domestically-funded procurement projects cannot be any different with respect to foreign-funded procurement projects like the CP I project. In cases where the advertisements or invitations for bids were issued after the effectivity of the Act but before the effectivity of this IRR-A. In other words. Section 77 of the IRR-A states. such as in the case of the CP I project. Transitory Clause In all procurement activities. as the case may be. the provisions of EO 40 and its IRR. 7160 and its IRR. It would be incongruous. the procurement process thereof had already commenced and the application of EO 40 to the procurement process for the CP I project had already attached. under IRR-A. 7160 and its IRR." This Executive Order shall cover the procurement process from the pre-procurement conference up to the award of the contract.O. and two members thereof appointed by the Speaker of the House of Representatives) and the Government Procurement Policy Board (GPPB).D. 40 and its IRR. P. (7) bid opening and examination. or other applicable laws. RA 9184 will not be applied retroactively to the CP I project whose procurement process commenced even before the said law took effect.61 Nonetheless. 77. rules and regulations provided in E. including State Universities and Colleges (SUCs). 40 and its IRR. (3) pre-bid conference. 2002. Nothing in this Order shall negate any existing and future government commitments with respect to the bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and similar foreign sources. Admittedly. 59 Clearly then. shall govern. Article 4 of the Civil Code is clear on the matter: "[l]aws shall have no retroactive effect. shall govern. and (c) consulting services. if the advertisement of the invitation for bids was issued prior to the effectivity of RA 9184. That the legislators did not intend RA 9184 to have retroactive effect could be gleaned from the IRR-A formulated by the Joint Congressional Oversight Committee (composed of the Chairman of the Senate Committee on Constitutional Amendments and Revision of Laws.A. supplies. as the case may be. 1. or other applicable laws.60Indeed. 1594 and its IRR. apply . there is no reason why the policy behind Section 77 of IRR-A cannot be applied to foreign-funded procurement projects like the CP I project. materials and related service. – This Executive Order shall apply to see procurement of (a) goods. (5) submission and receipt of bids. P. and PD 1594 and its IRR in the case of national government agencies. 1594 and its IRR. (4) eligibility check of prospective bidders.

the Court holds that the procurement process for the implementation of the CP I project is governed by EO 40 and its IRR. In relation thereto." The said provision of law further provides that "the method and procedure in the comparison of bids shall be the subject of agreement between the Philippine Government and the lending institution.62 It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid prices. it enjoins the award of the contract to the bidder whose bid has been determined to be the lowest evaluated bid. Section 77 of IRR-A. The pertinent portion of Section 1 of EO 40 is quoted anew: SEC. The said loan agreement stipulated that the procurement of goods and services for the Arterial Road Links Development Project (Phase IV). Part II (International Competitive Bidding) thereof quoted earlier reads: Section 5. Section 5. On the other hand.09." Consequently. in the light of Section 1 of EO 40. the procurement of goods and services for the CP I project is governed by the corresponding loan agreement entered into by the government and the JBIC. 1.RA 9184 retroactively with respect to foreign. agree to waive or modify the application of any law granting preferences or imposing restrictions on international competitive bidding x x x. quoted earlier. PH-P204. i. Nonetheless.funded procurement projects.06. EO 40 expressly recognizes as an exception to its scope and application those government commitments with respect to bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and other similar foreign sources. Under EO 40. Section 4 of RA 4860. Evaluation and Comparison of Bids xxx (e) Any procedure under which bids above or below a predetermined bid value assessment are automatically disqualified is not permitted. was correctly cited by the respondents as likewise authorizing the President. Loan Agreement No.. then it should not have been awarded the contract for the CP I project. in accordance with these applicable laws. not RA 9184. – x x x Nothing in this Order shall negate any existing and future government commitments with respect to the bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and similar foreign sources. thus: Section 5. Bid prices which exceed this ceiling shall be disqualified outright from further participating in the bidding. Award of Contract .06. in the contracting of any loan. relied upon by the petitioners in contending that since the bid price of private respondent China Road & Bridge Corporation exceeded the ABC. Thus. "when necessary. is reiterated. x x x" It should be observed that this text is almost similar to the wording of Section 31 of RA 9184. To be sure. Scope and Application.e. as amended. of which CP I is a component. as well as the fundamental rule embodied in Article 4 of the Civil Code on prospectivity of laws. There shall be no lower limit to the amount of the award. credit or indebtedness thereunder. The pertinent provision. the lawmakers could not have intended such an absurdity. the award of the contract to private respondent China Road & Bridge Corporation is valid Section 25 of EO 40 provides that "[t]he approved budget of the contract shall be the upper limit or ceiling of the bid price. is to be governed by the JBIC Procurement Guidelines.

A bidder shall not be required as a condition of award to undertake responsibilities or work not stipulated in the specifications or to modify the bid. Scope and Applications. 1999 between the Japanese Government and the Philippine Government is an executive agreement. . PH-P204. PH-P204 was executed by and between the JBIC and the Philippine Government pursuant to the Exchange of Notes executed by and between Mr. To recall. by all branches and instrumentalities of government. its departments. 4. regardless of nomenclature.95% higher than the ABC. In accordance with the JBIC Procurement Guidelines. subject to the provisions of Commonwealth Act No. 138. PH-P204 taken in conjunction with the Exchange of Notes dated December 27. PH-P204 would still govern the procurement for the CP I project For clarity. 1997 where the three agreements are defined in this wise: a) International agreement – shall refer to a contract or understanding. PH-P204 does not fall under any of the three categories because to be any of the three. The Court holds that Loan Agreement No. an international agreement nor an executive agreement. in behalf of their respective governments.The contract is to be awarded to the bidder whose bid has been determined to be the lowest evaluated bid and who meets the appropriate standards of capability and financial resources. including government-owned and/or – controlled corporations and local government units. the government is obliged to observe and enforce the same in the procurement of goods and services for the CP I project. Section 4 of RA 9184 is quoted anew. it was correctly awarded the contract for the CP I project. Goods and Consulting Services. As shown earlier.63 Since these terms and conditions are made part of Loan Agreement No. The Exchange of Notes expressed that the two governments have reached an understanding concerning Japanese loans to be extended to the Philippines and that these loans were aimed at promoting our country’s economic stabilization and development efforts. b) Treaties – international agreements entered into by the Philippines which require legislative concurrence after executive ratification. an agreement had to be one where the parties are the Philippines as a State and another State. declarations. Loan Agreement No. Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines. and then Foreign Affairs Secretary Siazon. Yoshihisa Ara. which presumably has a separate juridical personality from the Japanese Government. whether local or foreign. regardless of source of funds. Any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed. the petitioners maintain. They cite Executive Order No. offices and agencies. – This Act shall apply to the Procurement of Infrastructure Projects. thus: SEC. PH-P204 is neither a treaty. The JBIC. private respondent China Road & Bridge Corporation’s bid was the lowest evaluated bid.64 The petitioners mainly argue that Loan Agreement No. entered into between the Philippines and another government in written form and governed by international law. is a Japanese banking agency. vigorously assert that Loan Agreement No. whether embodied in a single instrument or in two or more related instruments. 459 dated November 25. the terms of the Exchange of Notes dated December 27. Even if RA 9184 were to be applied retroactively. c) Executive agreements – similar to treaties except that they do not require legislative concurrence. 1999 and Loan Agreement No. therefore. The petitioners. in order to place the procurement process undertaken for the CP I project within the ambit of RA 9184. The petitioners’ arguments fail to persuade. covenants and acts. This term may include compacts like conventions. albeit 28.

concerning Japanese loans to be extended with a view to promoting the economic stabilization and development efforts of the Republic of the Philippines. diplomats or departmental heads.Phase IV). The following disquisition by Francis B. which has still not entered into force. The signatories of the letters may be government Ministers. sometimes. The technique of exchange of notes is frequently resorted to. the accepting State repeats the text of the offering State to record its assent. modus vivendi and exchange of notes" all refer to "international instruments binding at international law.000 would be extended by the JBIC to the Philippine Government to implement the projects in the List A (including the Arterial Road Links Development Project . PH-P204 is indubitably an integral part of the Exchange of Notes. to avoid the process of legislative approval. The term is defined in the United Nations Treaty Collection in this wise: An "exchange of notes" is a record of a routine agreement that has many similarities with the private law contract. have been negotiated with foreign governments. Sayre. that the Government of Japan would extend loans to the Philippines with a view to promoting its economic stabilization and development efforts. It would be useless to undertake to discuss here the large variety of executive agreements as such. conventions. 1999. agreements. the JBIC may well be considered an adjunct of the Japanese Government." quoted in Commissioner of Customs v.66 It is stated that "treaties. They sometimes take the form of exchange of notes and at other times that of more formal documents denominated "agreements" or "protocols". other than those entered into under the trade-agreements act. Loan Agreement No. which becomes binding through executive action without the need of a vote by the Senate or Congress. These rules are the result of long practice among the States. may sometimes be difficult of ready ascertainment. x x x70 The Exchange of Notes dated December 27. inter alia. their rules apply to all of those instruments as long as they meet the common requirements. two international conventions were negotiated. or. Further. It forms part of the Exchange of Notes such that it cannot be properly taken independent thereof. which entered into force on 27 January 1980. Instead. charters. they all have common features and international law has applied basically the same rules to all these instruments.000. each of the parties being in the possession of the one signed by the representative of the other. The agreement consists of the exchange of two documents. In this connection.Loan Agreement No.8651.69 is apropos: Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments – treaties and conventions. Eastern Sea Trading. Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. Therefore. Hundreds of executive agreements."65 Under the circumstances. contractors and/or consultants of eligible source countries under such contracts as may be entered . former United States High Commissioner to the Philippines. Loan I in the amount of Y79.68 Significantly. contains rules for treaties concluded between States. entitled "The Constitutionality of Trade Agreement Acts. declarations. Under the usual procedure. Since there was a general desire to codify these customary rules. which have accepted them as binding norms in their mutual relations. it is well to understand the definition of an "exchange of notes" under international law. PH-P204 was subsequently executed and it declared that it was so entered by the parties "[i]n the light of the contents of the Exchange of Notes between the Government of Japan and the Government of the Republic of the Philippines dated December 27. an exchange of notes is considered a form of an executive agreement. and that such loan (Loan I) would be used to cover payments to be made by the Philippine executing agencies to suppliers. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations ("1986 Vienna Convention"). memoranda of understanding. The point where ordinary correspondence between this and other governments ends and agreements – whether denominated executive agreements or exchange of notes or otherwise – begin. they are regarded as international customary law. added rules for treaties with international organizations as parties. stated. either because of its speedy procedure. protocols. concluded from time to time. 1999."67 It is further explained thatAlthough these instruments differ from each other by title. The 1969 Vienna Convention on the Law of Treaties ("1969 Vienna Convention").

72 The JBIC Procurements Guidelines. it bears reiterating that as stipulated: 3. embodied in Section 4 of RA 9184 as it provides that "[a]ny treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed. which set forth. the procedures of international tendering to be followed except where such procedures are inapplicable or inappropriate.into between them for purchases of products and/or services required for the implementation of the projects enumerated in the List A. rightfully awarded the contract for the implementation of civil works for the CP I project to private respondent China Road & Bridge Corporation. as quoted earlier. premises considered. The Government of the Republic of the Philippines will ensure that the products and/or services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the Bank. WHEREFORE. 73 which is. SO ORDERED. it absolutely prohibits the imposition of ceilings on bids. in fact. Under the fundamental principle of international law of pacta sunt servanda. . forbids any procedure under which bids above or below a predetermined bid value assessment are automatically disqualified.71With respect to the procurement of the goods and services for the projects. as the executing agency of the projects financed by Loan Agreement No." the DPWH. PH-P204. inter alia. Succinctly put. the petition is DISMISSED.

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