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

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

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

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. petitioner issued Department Order No. 3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. In response to private respondent's July 1. 1999). 1069. Any further disclosure of the said information is not authorized by the United States District Courts. 1069. 14. Jimenez. and after receiving a copy of the Diplomatic Note. 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. Government. Article 26 of the Vienna Convention on the Law of Treaties. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime. Evidentiary requirements under our domestic law are also set forth in Section 4 of P. wrote a letter dated July 1. Pending evaluation of the aforestated extradition documents.D. the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. 15. 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. 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. 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. 1069 is the counsel of the foreign governments in all extradition requests. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. 1999 (but received by private respondent only on August 4. 1999 addressed to petitioner requesting copies of the official extradition request from the U. as well as all documents and papers submitted therewith. No. denied the foregoing requests for the following reasons: 1. Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. and that he be given ample time to comment on the request after he shall have received copies of the requested papers. to which we are a party . 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. 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. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government. Rollo. Later. he be given at least a copy of. Rollo). 2. petitioner. a period of time to amplify on his request. private respondent. 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. 1999 letter.) On the same day. The Department of Justice under P. the request of the United States Government. 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.(p. or access to. through counsel. No. Accordingly.D. private respondent requested that preliminary. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available. In this particular extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information.

and the Director of the National Bureau of Investigation. fairly and objectively).) Such was the state of affairs when. 1999. and from performing any act directed to the extradition of the petitioner to the United States. to give him access thereto. 1999 at 9:00 o'clock in the morning. 104-105. and thereafter to evaluate the request impartially. for a period of twenty (20) days from service on respondents of this Order. the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation. respondent judge issued an order dated the previous day. THE REQUEST. namely: the Secretary of Justice. is set on August 17. with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. from filing the corresponding Petition with a Regional Trial court. (pp. Rollo. THE MAIN . and to afford him an opportunity to comment on. 110-111.) Forthwith. requests for extradition or surrender of accused or convicted persons must be processed expeditiously. or oppose.E. On August 10.. BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF. 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. Lantion. (pp. 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 hearing as to whether or not this Court shall issue the preliminary injunction. likewise. Petitioner. this Court hereby Orders the respondents. Extradition is a tool of criminal law enforcement and to be effective. 1999. 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. ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date. private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice. The aforementioned petition was docketed as Civil Case No. the Secretary of Foreign Affairs. 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. for mandamus (to compel herein petitioner to furnish private respondent the extradition documents.provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". moved that he be given ample time to file a memorandum. and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court. After due notice to the parties. the case was heard on August 9. who appeared in his own behalf. Rule 58 of the 1997 Rules of Court. 1999. 77-78. Rollo. I. OR OPPOSITION TO.certiorari (to set aside herein petitioner's letter dated July 13. from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner. petitioner initiated the instant proceedings. on August 6. The respondents are. 1999). Rollo). SO ORDERED. as agreed upon by the counsels for the parties herein. their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of. disposing: WHEREFORE. but the same was denied. pursuant to Section 5. the extradition request.

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

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

Said decision is appealable to the Court of Appeals. insofar as practicable and not inconsistent with the summary nature of the proceedings. 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. according to the law of the Requested State. Embassy. particularly to prevent the flight of the prospective extraditee. shall apply. Presidential Decree No.). the provisions of the Rules of Court. ibid. ibid. P. Embassy Note No. ibid. 6. with a prayer that the court take the extradition request under consideration (Paragraph [2].). Section 5. 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]. 8. A copy of the warrant or order of arrest issued by a judge or other competent authority. Section 9 thereof provides that in the hearing of the extradition petition.D. (Paragraph 2. shall.) 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. he shall deliver the same to the Secretary of Justice. and 9. or that the offense is a military offense which is not punishable under non-military penal legislation. issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. statements. 1069. as applicable. The provisions of the Rules of Court governing appeal in criminal cases in the . civil. or other types of information specified in paragraph 3 or paragraph 4 of said Article. S. represent the latter throughout the proceedings. whose decision shall be final and immediately executory (Section 12. 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. Section 6. No. In this light. Upon conclusion of the hearing. Documents. 951309 from the Department of Foreign Affairs). Paragraph 3.5. A copy of the charging document. or dismiss the petition (Section 10." 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. Article 7. Such evidence as. upon application by the Requesting State. 1069). The presiding judge of the regional trial court.). or a special proceeding. who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1]. Section 8 of the Decree provides that the attorney having charge of the case may. Paragraph [1]. ibid. upon receipt of the petition for extradition. The lawyer designated shall then file a written petition with the proper regional trial court of the province or city.) 7. ibid. as soon as practicable. (Paragraph 3. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense. would provide probable cause for his arrest and committal for trial if the offense had been committed there. Nevertheless.). The Extradition Hearing The Extradition Law does not specifically indicate whether the extradition proceeding is criminal. During the hearing. 052 from U.

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

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

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

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

2d 103. which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty). §3184). Constitution (Art. 158 Tex. 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.S. In order to achieve extradition of an alleged fugitive. and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid. American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U. such as an indictment or an affidavit made before a magistrate. In petitioner's memorandum filed on September 15.2d 853). 407 and Ex parte Tucker. 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.S. Department of Justice.S. (b) the defendant is being sought for offenses for which the applicable treaty permits extradition.S. the right being such a basic one has been held to be a right mandatory on demand (Ibid. and vice-versa. S.W. Before doing so.) . The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose.) 4. At the hearing. affidavit. Government. requests for the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the U. 3. Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid. p. and international extradition proceedings.. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U. and must contain such papers and documents prescribed by statute. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing. a formal request for extradition is transmitted subsequently through the diplomatic channel.S. which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In urgent cases. and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing. to wit: 1.. information. he attached thereto a letter dated September 13. Department of Justice. 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. In international proceedings. 1999. and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815).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. 256 S. The extradition documents are then filed with the governor of the asylum state. the governor of the asylum state has the duty to deliver the fugitive to the demanding state. All requests for extradition are transmitted through the diplomatic channel. the requisition papers or the demand must be in proper form. §2 cl 2). and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers. In interstate rendition or extradition. federal statutes. and judicial decisions. the Department of State prepares a declaration confirming that a formal request has been made. 410.J. 2. such as the allegation that the person demanded was in the demanding state at the time the offense charged was committed. citing Ex parte Moore. 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.J. 1999 from the Criminal Division of the U.C. Cr. IV. that the offenses are covered as extraditable offenses under Article 2 thereof.S. that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings. extradition procedures and principles.S. which essentially include a copy of the instrument charging the person demanded with a crime. 324. 408-410).S. A statutory provision requiring duplicate copies of the indictment . summarizing the U. Cr. In the event of a provisional arrest. that the treaty is in full force and effect.W. the court must determine whether the person arrested is extraditable to the foreign country. 406-407). However.

However. the power to act or not to act on the court's determination of extraditability. If the court decides that the elements necessary for extradition are present. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath. is sacrificed at the altar of expediency. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U. than mediocre ones. 656) The United States. 404 U. a person facing extradition may present whatever information he deems relevant to the Secretary of State. §3186). (Stanley vs.] 6. if so warranted. and prosecuting the petition for extradition. Illinois. one might fairly say of the Bill of Rights in general. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process. From the foregoing. in particular. no doubt. the end does not justify the means. 645. then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. perfunctorily turned over the request to the Department of Justice which has taken over the task of evaluating the request as well as thereafter. it incorporates its determinations in factual findings and conclusions of law and certifies the person's extraditability. 10-12).C. 7. preparing. 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. it may be observed that in the United States. It is not enough that there be a valid objective.S. In the Philippine setting. in the person of the Secretary of State. it is the Department of Foreign Affairs which should make the initial evaluation of the request. it is also necessary that the means employed to pursue it be in keeping with the Constitution. rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826). who makes the final determination whether to surrender an individual to the foreign government concerned. Mere expediency will not excuse constitutional shortcuts. (pp. filing. 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. There is no question that not even the strongest moral . 40-41. Indeed. and.S. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. in the instant case. however. The court then forwards this certification of extraditability to the Department of State for disposition by the Secretary of State. the Department of Foreign Affairs. and the Due Process Clause. Private Respondent's Memorandum. 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. 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 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. 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. Private respondent asks what prejudice will be caused to the U. and perhaps more. extradition begins and ends with one entity — the Department of State — which has the power to evaluate the request and the extradition documents in the beginning. and having satisfied itself on the points earlier mentioned ( see pp. Sadly. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. But the Constitution recognizes higher values than speed and efficiency.) In the Philippine context.) [In this regard.5.

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

1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. because our government by then shall have already made an official decision to grant the extradition request. Hence. if the person invoking the right is the one directly affected thereby. The 1987 Constitution of the Republic of the Philippines. 336). equality. p. 1997 ed. he invokes Section 14. who is not directly affected by the matters requested. In its implementation. Strictly speaking. requires the parties to a treaty to keep their agreement therein in good faith. and adheres to the policy of peace. The observance of our country's legal duties under a treaty is also compelled by Section 2.. transactions. one of the oldest and most fundamental maxims of international law. stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas. The concept of matters of public concerns escapes exact definition. Civil Service Commission. Petitioner argues that the matters covered by private respondent's letter-request dated July 1. freedom. in favor of the interests necessary for the proper functioning of the government.S. When the individual himself is involved in official government action because said action has a direct bearing on his life. In the case at bar. . The 1987 Constitution of the Republic of the Philippines. 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.. and in documents and papers pertaining to official acts. 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. if a third party invokes this constitutional provision. no official governmental action of our own government has as yet been done. During the evaluation procedure. p. and may either cause him some kind of deprivation or injury. hence the invocation of the right is premature. p. the right of access to official records is likewise conferred. 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. Consequently. This concept embraces a broad spectrum of subjects which the public may want to know. or decisions. is there really a conflict between the treaty and the due process clause in the Constitution? First and foremost. Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy.S. As to an accused in a criminal proceeding. The 1987 Phil. 1996 ed. 1996 ed. and in contrast. 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. Such information may be contained in official records. 150 SCRA 530 [1987]). at such particular time. The right to information is implemented by the right of access to information within the control of the government (Bernas. Constitution A Reviewer-Primer. his right to information becomes absolute. the papers requested by private respondent pertain to official government action from the U. 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. invokes the right to information. Later.. The extradition of a fellow Filipino would be forthcoming.). every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas. However. Government. On the other hand. records of the extradition hearing would already fall under matters of public concern. either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. the papers have some relation to matters of foreign relations with the U. the real party in interest is the people and any citizen has "standing". No official action from our country has yet been taken. Moreover. particularly the right to be informed of the nature and cause of the accusation against him. we are afraid that the balance must be tilted. justice. 337). Government. 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. adopts the generally accepted principles of international law as part of the law of the land.concern.

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

vs. as amended by Presidential Decree No. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. Article III of the Constitution which provides that "[a]ll persons. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution. because there is no provision of its availability. Helpmate. Appropriating Funds Therefor and for other purposes). 278 SCRA 632 [1997]). 276 SCRA 315 [1997]. Court of Appeals: . and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. Jamer vs. 1069). his defenses against the charges levelled against him and to present evidence in support of his defenses.One will search in vain the RP-US Extradition Treaty. Magnaye. Padilla vs. 273 SCRA 457 [1997]. 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. . [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." Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations. in certain instances. the privilege of the writ of habeas corpus is suspended. Presidential Decree No. although summary dismissals may be effected without the necessity of a formal investigation. NLRC. 671) . Prescribing its Powers and Functions and for Other Purposes). NLRC. . We have to consider similar situations in jurisprudence for an application by analogy. This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Inc. In the evaluation process. 1069? Of analogous application are the rulings in Government Service Insurance System vs. This is a basic procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. Following petitioner's theory. PLDT vs. How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 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. or be released on recognizance as may be provided by law. 283 SCRA 31 [1997]). before conviction. that is to say. does this imply that for a period of time. Sec. In essence. 276 SCRA 1 [1997]. . a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9. Aquinas School vs. NLRC. As held in GSIS vs. the minimum requirements of due process still operate. notwithstanding Section 13. 278 SCRA 602 [1997]. NLRC. despite Section 15. and Presidential Decree No. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.. 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. Earlier. 20. . be bailable by sufficient sureties. except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong. . RPUS Extradition Treaty. United Harbor Pilots Association of the Phils. NLRC. 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. . procedural due process refers to the method or manner by which the law is enforced (Corona vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. as well as American jurisprudence and procedures on extradition. 270 SCRA 96 [1997]. 1069 does not provide therefor. shall. . 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. 1707. 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. 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. (at p. the Extradition Law. It is equally clear to us that an employee must be informed of the charges preferred against him.

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

1999 in Civil Case No. Lantion on August 9. which is the validity of the Temporary Restraining Order (TRO) issued by respondent Judge Ralph C. have deliberately intended. the past course of decisions. I add. The conclusion reached by the majority. Justice Frankfurter has viewed this flexible concept. when demanded. . it would seem. I vote to deny the petition. from conducting further proceedings in connection with the request of the United States Government for the extradition . I see implicit in this provision that even after the request for extradition is made and before a petition for extradition is filed with the courts. in the first instance. the request of private respondent to be furnished with copies of the extradition documents. as being ".. upon request. 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. on Constitutional or statutory provisions."4 The framers of our own Constitution. I vote to dismiss the petition. and stout confidence in the democratic faith.2 I am not convinced that there is something so viciously wrong with. separate concurring opinion. The constitutional right to due process secures to everyone an opportunity to be heard. on accepted rules of procedure. 99-94684. liberty or property of any person in any proceeding conducted by or under the auspices of the State. aptly I believe. . must not be ignored. whenever there is an imminent threat to the life . his right to due process of law. Hitherto. maintain the status quo by refraining from committing the acts complained of. is real. 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. KAPUNAN. the private respondent. This right is two-pronged — substantive and procedural due process — founded. presupposing foreknowledge of what he may be up against. and to submit any evidence that he may wish to proffer in an effort to clear himself. compounded by history. I hasten to add. as to deny. The TRO directed respondents in said case to: . The term "public concern" eludes exactitude. both on technical and substantial grounds. a Contracting Party may request the provisional arrest of the person prior to the presentation of the request for extradition . . 5 Verily. . Like "public concern. and in the second instance. The right of the extraditee to be furnished. There is no hornbook rule to determine whether or not an information is of public concern. 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. it is dynamic and resilient." the term due process does not admit of any restrictive definition. liberty and property might be diffused. The petition in the case at bar raises one and only issue. liberty and property. to make it malleable to the ever-changing milieu of society. 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.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. reason.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. 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. J. 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. does not mean that the Executive Department should be impeded in its evaluation of the extradition request. A danger to the liberty of the extraditee.

it is akin to a preliminary investigation because it involves the basic constitutional rights of the person sought to be extradited. neither does either prohibit it. from filing the corresponding Petition with the Regional Trial Court. 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. The function and responsibilities of the Department of Justice in evaluating the extradition papers involve the exercise of judgment. he argues that the documents sought to be furnished to private respondent only involve private concerns. 1999. This Court does not exercise jurisdiction over cases which are moot and academic or those not ripe for judicial consideration. among others. These include. malicious and oppressive prosecution. pursuant to Section 5. 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. Like a preliminary investigation. 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. it should be dismissed for lack of merit. liberty and pursuit of happiness are taken away from him — a fate as harsh and cruel as a conviction of a criminal offense.3 Assuming that the present case has not become moot and academic. In this connection. Article III of the 1997 Constitution. Nor is there any other act. order. 1069 do not provide for a preliminary investigation. ruling. of respondent Judge that is being challenged in the petition before us.of the petitioner. separated from his family and delivered to a foreign state. His rights of abode. Further."2 Notably. or decision. still. apart from the TRO already mentioned. or whether due process rights maybe invoked only upon the filing of a petition for extradition before a regional trial court. whether the documents and other informations required under Article 7(2) have .D. and from performing any act directed to the extradition of the petitioner to the United States. as alleged in the petition. 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.1 (Emphasis ours.D. Rule 58 of the 1997 Rules of Court. While the evaluation process conducted by the Department of Justice is not exactly a preliminary investigation of criminal cases. Article III of the 1997 Constitution before the Department of Justice as the request for extradition is being evaluated. 1999. it should be stressed that the evaluation procedure of the extradition request and its accompanying documents by the Department of Justice cannot be characterized as a mere " ex-parte technical assessment of the sufficiency" thereof. the instant petition has become moot and academic. whether the offense for which extradition is requested is a political or military offense (Article 3). and (b) whether or not private respondent has a right of access to extradition documents under Section 7. to privacy. A person ordered extradited is arrested. While the extradition treaty and P. 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. They involve a determination whether the request for extradition conforms fully to the requirements of the extradition treaty and whether the offense is extraditable. and not matters of public concern to which the people have a constitutional right to access.) The petition itself categorically states that "(t)he issue sought to be presented and litigated here is solely-the validity of the TRO. The right to due process is a universal basic right which is deemed written into our laws and treaties with foreign countries. For this reason. Since. forcibly taken from his house. the TRO ceased to be effective on August 30. he is entitled to have access to the evidence against him and the right to controvert them. 1069 and therefore does not exist in this stage of the proceedings. consequently.

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

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

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

if otherwise. they would have so provided in the extradition treaty. and also to protect the state from useless and expensive trails.Moreover. Paño. Even if the purpose is only to determine whether or not the respondent is a proper subject for extradition. 134 SCRA 438 (1985). the issue of whether or not the prospective extraditee truly is the person charged in the United States becomes a valid question. any assistance which the evaluating official may get from the participation of respondent may well point out deficiencies and insufficiencies in the extradition documents. Manta. It is obvious that any prospective extraditee wants to know if his identity as the person indicated has been established.nêt In closing. The constitutional guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative bodies (Constitution. to protect him from an open and extensively publicized accusation of crimes. The third reason given by petitioner is the avoidance of delay. his being extradited) determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose. of having his guilt (in this case. insufficient pleadings. 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. They also serve the interests of the State. inadequate complaints. The right to be informed is related to the constitutional right to a speedy trial. 1âwphi1. Petitioner views the request to be informed as part of undesirable delaying tactics. III. Considering the penchant of Asians to adopt American names when in America. Art. Jimenez should be extradited. 71 Phil. 36 SCRA 247 (1970). Sec. There are other preliminary matters in which respondent is interested. therefore. means one free from vexatious. It is not only identity of the person which is involved. the evaluating official discovers a case of mistaken identity. A positive provision making certain rights unavailable cannot be implied from silence. Speedy disposition. however. 216. 118 SCRA 241 (1941). It would incur greater delays if these are discovered only during court trial. hastening the extradition process. Trocio vs. Sarmiento. 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. from respondent's participation. Hon. If the Contracting States believed in a total non-divulging of information prior to court hearings. does not mean the deliberate exclusion of the defendant or respondent from the proceedings. I maintain that the paramount consideration of guaranteeing the constitutional rights of individual respondent override the concerns of petitioner. and Salonga vs. therefore. 16). to spare him the trouble. capricious and oppressive delays. An unnecessary trial with all its complications would be avoided. 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. "the right to a speedy trial. There should be no hurried or indifferent effort to routinely . the purpose of a preliminary evaluation is to secure an innocent person against hasty. and anxiety of a public trial. if. As this Court rules in Acebedo vs." The right to be informed and the right to a preliminary hearing are not merely for respondent. Boncan. or any ruinous shortcoming. Paraphrasing Hasmin vs. His innocence or guilt of any crime will be determined in an American court. oppressive proceedings. It is there where prosecution strategies will be essential. its salutary objective being to assure that an innocent person may be free from the anxiety and expense of a court litigation or. faulty and. On the other hand. there would be no delays during trial. he is nonetheless entitled to the guarantees of fairness and freedom accorded to those charged with ordinary crimes in the Philippines. Any request for extradition must be viewed objectively and impartially without any predisposition to granting it and. This is most unfortunate. expense. The crimes must also be unmistakably identified and their essential elements clearly stated. In the first place.

Possibly the most authoritative commentator on extradition today.Rauscher. Grotius and de Vattel led the school of thought that international law imposed a legal duty called civitas maxima to extradite criminals. Justice Jose A. Cherif Bassiouni. and apart from them there was no well-defined obligation on one country to deliver up such fugitives to another. . Hence. It applies to those who are merely charged with an offense but have not been brought to trial."2 It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during these different periods. We serve under a government of limited powers and inalienable rights. I understand that this is truer in the United States than in other countries. Prior to these treaties. Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear. .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. PUNO. Extradition is a well-defined concept and is more a problem in international law. radio or television. If the case at bar was strictly a criminal case which involves alone the right of an accused to due process. two (2) counts of fraud by wire. 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.comply with all requests for extradition.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. . six (6) counts of false statements or entries and thirty-three (33) counts of election contributions in the name of another. . A brief review of the history of extradition law will illumine our labor. hence this dissenting opinion.. Proposed extraditees are given every legal protection available from the American justice system before they are extradited. it was granted due to pacts. for trial and punishment. 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.R. four (4) counts of attempt to evade or defeat tax." 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. . to those who have been tried and convicted and have subsequently escaped from custody. the US Supreme Court in US v. . 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. at other times. and though such delivery was often made it was upon the principle of comity . There is an outstanding warrant of arrest against the private respondent issued by the US District Court. due to plain good will. this concurrence.6 held: ". It is the "process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. it 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. dissenting opinion.4 In sharp contrast. 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. M. Melo. without taking half a pause. whether bilateral or multilateral. This has been done generally by treaties ." . I would have co-signed the ponencia of our esteemed colleague. and those who have been convicted in absentia. Extradition was first practiced by the Egyptians. The issues are of first impression and the majority opinion dangerously takes us to unknown shoals in constitutional and international laws. Sometimes. J. . Chinese. Thus.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 . Mr. Southern District of Florida. (3) from 1833 to 1948 — a period of collective concern in suppressing common criminality. (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.

The sinking of these isms led to the elevation of the rights of the individual against the state ." 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 . The conduct of foreign relations is full of complexities and consequences. concerns the relations between legal persons known as states. we can see that executive power is vested in the President alone whereas legislative and judicial powers are shared and scattered."9 The re-examination consigned this pernicious doctrine to the museum of ideas. is a mere "object transported from one state to the other as an exercise of the sovereign will of the two states involved. etc. they must be concurred in by at least two thirds of all the members of the Senate. of the process of international accommodation. especially the rights of an extraditee. thePresident has the sole power to negotiate treaties and international agreements although to be effective. An extraditee. so it was held. Translated in extradition law."12 Needless to stress. Under Section 21. other public ministers and consuls subject to confirmation by the Commission on Appointments. 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. Between these two departments. the militarism of Japan's Hirohito and the communism of Russia's Stalin. 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.Then came the long and still ongoing debate on what should be the subject of international law. the drive to internationalize rights of women and children is also on high gear." while Section 1 of Article VIII provides that "judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law." Thus. 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 . Bassiouni observes that today. sometimes with life and death significance to the nation especially in times of war. Given the harshest eye is the moss-covered doctrine that international law deals only with States and that individuals are not its subject. the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of international law. In their seminal work.7 Today. For its undesirable corrally is the sub-doctrine that an individual's right in international law is a near cipher. .the executive has a greater say in the making of a treaty. But it is no longer novel for the particular interest of the human being to break through the mass of interstate relationship. restoration. In our constitutional scheme. Justice Florentino Feliciano. rehabilitation and reconstruction of all societies comprising the world community. the President has the power to deport undesirable aliens. except to the extent reserved to the people by the provision on initiative and referendum. Section 16 of the same Article gives the President the power to appoint ambassadors. though growing impact on the decision-making processes which translate national values and goals into specific national and international policy. deterrence. In careful language. . 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."13 I belabor the international law aspect of extradition as the majority opinion hardly gives it a sideglance. 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. "institutionalized conflicts between states are still rationalized in terms of sovereignty. Article VII of our Constitution. some species of human rights have already been accorded universal recognition. Indeed. This is necessarily so. Beyond debate. Law and Minimum World Public Order. Section 20 of the same Article empowers the President to contract or guarantee foreign loans with the prior concurrence of the Monetary Board. in the realm of international law. 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. So it was declared by then US Ambassador Philip C. he is bereft of rights. 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."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. all these prescient theses accelerated the move to recognize certain rights of the individual in international law. The concentration of these powers in the person of the President is not without a compelling consideration . We have yet to see the final and irrevocable place of individual rights. In addition. national interest. 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. while human interests continue to have limited. thus. 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 making of a treaty belongs to the executive and legislative departments of our government. and national security. Jessup in audible italics: "A very large part of international affairs and.

the RP-US extradition and P. The majority holds that the Constitution. It is. the private respondent has not proved entitlement to the right he is claiming . By and large.20In an extradition proceeding. No. 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. Also. In these situations. again because the guilt of the extraditee is not under litigation. Given this balancing approach. Admission of evidence is less stringent. 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. Rights do not necessarily arise from a vacuum. 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. 19 It is not only the quality but even the quantum of evidence in extradition proceeding is different . Section 3. 1069 do not prohibit respondent's claims. It is only when their violation will destroy the respondent's right to fundamental fairness that his constitutional claims should be given primacy. they involve a difficult choice between right against right. Our courts22 may hold an individual extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive. futile to determine what it is. does not involve an irreconcilable conflict between the RP-US Extradition Treaty and our Constitution where we have to choose one over the other. Silence of the law can even mean an implied denial of a right. 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.18 Even the rules of evidence are different in an extradition proceeding. validity of his actions are adjudged under less stringent standards. hence. it may.17 The case at bar. national embarrassment and a plethora of other problems with equally undesirable consequences. It has held that ". This is too simplistic an approach.D. still. As admitted in the ponencia itself. Hence. it calls for a harmonizationbetween said treaty and our Constitution. 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. constitutional rights that are only relevant do determine the guilt or innocence of an accused cannot be invoked by an extraditee. 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. in so far as a measure of the extradition has consequences adversely affecting the enjoyment of a convention right. He has also unlimited access to ultra-sensitive military intelligence data. an extradition proceeding is summary in nature which is untrue of criminal proceedings. attract the obligations of a Contracting State under the relevant convention guarantee. To achieve this desirable objective. Rather. the less compelling right is subjected to soft restraint but without smothering its essence. I venture the view that even assuming arguendorespondent's weak claim.on meaningful events all over the world. In such instances. rupture of state relations. Sometimes. . Let it be stressed that in an extradition proceeding. assuming that the consequences are not too remote. an extradition proceeding is sui generis. nay. Indeed. Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall .14 In fine. forfeiture of confidence."21 If more need be said. the nature of an extradition decision is different from a judicial decision whose finality cannot be changed by executive fiat.15 On one end of the pole is the more liberal European approach. The regularity. Proceeding from this premise of relativism of rights. constitutional litigations do not always involve a clear cut choice between right and wrong. it should be allowed. it is my humble submission that considering all the facts and facets of the case. thus. 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. ."16 At the other end of the pole is the more cautious approach of the various Courts of Appeal in the United States. the Court should consider whether the constitutional rights invoked by the private respondent have truly been violated and even assuming so. I respectfully submit. an alter ego of the President. whether he will be denied fundamental fairness . 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 . lest their judicial repudiation lead to breach of an international obligation. 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. 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. an extraditee can be ordered extradited "upon showing of the existed of a prima faciecase. In a criminal case.

and f) a statement that a request for extradition for the person sought will follow.24 It continues to deny Canada's charter protection to extraditees unless the violation can be considered shocking to the conscience. . 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. respondent Jimenez stands in danger of provisional arrest. the issue of whether respondent Jimenez will be provisionally arrested is now moot . 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. the general principle is enunciated that a request for provisional arrest must be made pending receipt of the request for extradition. if known. including. By filing the request for extradition. in relation to Section 20(a) of PD No. a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. the US authorities have implicitly decided not to move for respondent's provisional arrest. or that the offense is a military offense which is not punishable under non-military penal legislation. the need for him to be immediately furnished copies of documents accompanying the request for his extradition. he is not straitjacketed by strict legal considerations like an ordinary court. 2. 23 In sum. In the case. He will be given due process before he can be arrested . d) a description of the laws violated. 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. Allegedly.Respondent's fear of provisional arrest is not real . the time and location of the offense. they have not moved for respondent's arrest on the ground of probable delay in the proceedings. the Secretary of State exercises this ultimate power and is conceded considerable discretion. c) a brief statements of the facts of the case. if possible. The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence of the extraditee. 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. even with the pendency of the case at bar. the availability of adequate remedies in favor of the extraditee. To be sure. Under Section 1 of Article 9 of the RP-US Extradition Treaty. Article 9 of the treaty provides: PROVISIONAL ARREST 1. at bar and with due respect. 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. On the contrary. they filed the extradition request through the regular channel and. b) the location of the person sought. But more important." In the United States. hence. He balances the equities of the case and the demands of the nation's foreign relations. 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. a request for respondent's arrest does not mean he will be the victim of an arbitrary arrest .not be granted if the executive authority of the Requested State determined that the request was politically motivated. 1069. The application for provisional arrest shall contain: a) a description of the person sought. the limited nature of the extradition proceeding . In case of urgency.

Service of Notices." The message that leaps to the eye is that compliance with this requirements precludes any arbitrary arrest.D. In relation to the above. 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. Issuance of Summons. No." It is a judge who will issue a warrant for the provisional arrest of the respondent. . . . 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. the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree. 20. — (1) Immediately upon receipt of the petition.D. Section 20 of P. pursuant to the relevant treaty or convention and while the same remains in force. 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. as soon as practicable. . He may issue a . pending receipt of the request for extradition made in accordance with Section 4 of this Decree. Article III of the Constitution which provides that "no . It is self-evident under these provisions that a request for provisional arrest does not mean it will be granted ipso facto. who shall issue the warrant for the provisional arrest of the accused . Provisional Arrest. the requesting state may. summon the accused to appear and to answer the petition on the day and hour fixed in the order. either through the diplomatic channels or direct by post or telegraph. the accused shall be released from custody. . and particularly describing the . persons or things to be seized. 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. 4. The request must comply with certain requirements. request for the provisional arrest of the accused. For even if the Director of the National Bureau of Investigation agrees with the request for the provisional arrest of the respondent. The judge has comply with Section 2. (d) If within a period of 20 days after the provisional arrest. 1069 provides: Sec. 6. the presiding judge of the court shall. — (a) In case of urgency. (b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation. . The request can be denied if not based on a real exigency of if the supporting documents are insufficient. This is subject to verification and evaluation by our executive authorities. Manila. 1069 fixes the specific time when he will be given the papers constituting the basis for his extradition. Thus. 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 time is when he is summoned by the extradition court and required to answer the petition for extradition. Hearing. It must be based on an "urgent" factor. The due process protection of the private-respondent against arbitrary arrest is written in cyrillic letters in these two (2) related provisions. In truth. Section 6 of P. No.D. No. In light of all these considerations. . P. 1069 provides: Sec. 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 . Temporary Arrest. . The protection of the respondent against arbitrary provisional arrest does not stop on the administrative level .3. (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. 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.

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 . 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 . national interest is more equal than the others. Requesting and granting extradition remains a power and prerogative of the national government of a State. 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. Upon receipt of the summons and the petition. I vote to grant the petition. are ill-equipped to fully comprehend the foreign policy dimension of a treaty. . Thus. 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. shall be promptly served each upon the accused and the attorney having charge of the case. (2) The order and notice as well as a copy of the warrant of arrest. with due respect. 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. . equality. a more deferential treatment should be given to national interest than to individual interest. The process still involves relations between international personalities. respondent is free to foist all defense available to him. 1069. humanitarian considerations are being factored in the equation. Upon receipt of the answer within the time fixed. some of which are hidden in shadows and silhouettes. This goes against the familiar learning that in balancing the clashing interests involved in extradition treaty. the presiding judge shall hear the case or set another date for the hearing thereof.26 Courts have validated this forward-looking opinion in a catena of unbroken cases. Such an opportunity does not deny him fairness which is the essence of due process of law. 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. The increasing incidence of international and transnational crimes. and adheres to the policy of peace. it is the Executive that is most qualified to guide the ship of the state on the known and unknown continents of foreign relations .25Needless to state. the Constitution of the Philippines adopts the generally accepted principles of international law as part of law of the land. Our national interest in extraditing persons who have committed crimes in a foreign country are succinctly expressed in the whereas clauses of P.and the speed and scale of improvement of communication are factors which have virtually annihilated time and distance. As early as 1800. 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 . freedom. the development of new technologies of death. . viz: WHEREAS. cooperation and amity with all nations. WHEREAS. if issued. 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 . then a congressman. still the concept of extradition as a national act is the guiding idea. No. because it saps the foundation of social life and is an outrage upon humanity at large. 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 deferential attitude is dictated by the robust reality that of the three great branches of our government. We should not overlook the reality that courts by their nature . and it is in the interest of civilized communities that crimes should not go unpunished. . At bottom. . the legendary John Marshall.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. While lately. justice. This overriding national interest must be upheld as against respondent's weak constitutional claims which in no way amount to denial of fundamental fairness.D.

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

the formal request for extradition has already been made. Hence. there appears to be no urgency characterizing the nature of the extradition of private respondent. because of the possibility that he may be provisionally arrested pursuant to Article 9 of the RP-US Treaty. therefore. there is no actual danger that Jimenez will be provisionally arrested or deprived of his liberty. our local laws and rules of procedure respecting the issuance of a warrant of arrest will govern. 5 Finally. a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. not the executive authority. it is also the power and the duty of the court. From the wordings of the provision itself. In the instant case.6 Mark Jimenez Not in Jeopardy of Arrest Under the outlined facts of this case. In other words. there are at least three requisites: (1) there must be an urgency. 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. It must be borne in mind that during the preliminary stage. the foreign affairs secretary's determination of whether the offense charged is extraditable or politically motivated is merely preliminary.10 Private respondent insists that the United States may still request his provisional arrest at any time. 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. because no petition has yet been filed in court. He claims that this right arises immediately. surmises or conjectures. there is no open door for the application of Article 9. And the secretary of justice states during the Oral Argument that he had no intention of applying for the provisional arrest of private respondent. and (2) there is a corresponding request (3) which must be made prior to the presentation of the request for extradition. In any event. contrary to the apprehension of private respondent. However. provisional arrest is not likely. to be heard on all issues including the sufficiency of the documents supporting the extradition request. xxx xxx xxx Justice Melo's ponencia supports private respondent's contention. there being no specific provision under the Extradition Treaty by . therefore.No person shall be deprived of life. There is no request from the United States for the provisional arrest of Mark Jimenez either. in case an extradition petition will indeed be filed.9 Private Respondent Jimenez will.7 Moreover. which reads: In case of urgency. There is as yet no threat that his rights would be trampled upon. liberty or property without due process of law. and in enforcement does not depend solely on the discretion of the requested state. The same issue will be resolved by the trial court. It is elementary that this Court does not declare judgments or grant reliefs based on speculations. definitely have his full opportunity before the court. 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. pending the filing in court of the petition for his extradition. which basically involves only the exercise of the ministerial power of checking the sufficiency of the documents attached to the extradition request. That is purely speculative. It states that there are two occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional arrest pending the submission of the extradition request and (2) his temporary arrest during the pendency of the extradition petition in court.4 The second instance is not in issue here. 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. Petitioner does not claim any such urgency. the above-quoted Article 9 on provisional arrest is not automatically operative at all times. to determine whether there is sufficient evidence to establish probable cause that the extraditee committed the crimes charged.

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

and CHINA ROAD and BRIDGE CORPORATION. by its President. signed by Ambassador Ara. 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. EBDANE. I (CP I). 1999. INC. HON. HON. SECRETARY CESAR V. HON. 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. These loans were aimed at promoting our country’s economic stabilization and development efforts. Bago-Viga road. 1999 between the Japan Bank for International Cooperation (JBIC) and the Government of the Republic of the Philippines. were reiterated and the said terms were accepted by the Philippine delegation. PH-P204 dated December 28.. HON.. 167919 February 14. J. 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.Respondents. 2007 PLARIDEL M.R.1 the Government of Japan and the Government of the Philippines. confirming the understanding reached between the two governments concerning the loans to be extended by the Government of Japan to the Philippines. SR. Background Based on the Exchange of Notes dated December 27. through their respective representatives. TREASURER NORMA L. in his capacity as Secretary of the DEPARTMENT OF PUBLIC WORKS and HIGHWAYS. COMMODORE CARLOS L. No. in the island province of Catanduanes. DECISION CALLEJO.515 kilometers. Siazon. have reached an understanding concerning Japanese loans to be extended to the Philippines. JR. covering a total length of about 204. and then Secretary of Foreign Affairs Domingo L. PURISIMA. LASALA.. Both Ambassador Ara and then Secretary Siazon signed the Records of Discussion as representatives of the Government of Japan and Philippine Government. BONCODIN. 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. The CP I project is one of the four packages comprising the project for the improvement/rehabilitation of the Catanduanes Circumferential Road. in his capacity as Secretary of the DEPARTMENT OF FINANCE. namely. Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines. addressed to then Secretary of Foreign Affairs Siazon. through the Japanese delegation. ABAYA. PJHL-A-04-012 dated May 7. with the length of 79. rep. The Exchange of Notes consisted of two documents: (1) a Letter from the Government of Japan. AGUSTIN (retired). Mr. respectively. vs. Petitioners. in her capacity as Treasurer of the Bureau of Treasury. SECRETARY EMILIA T. which is the main highway in Catanduanes Province.818 kilometers. and (2) a document denominated as Records of Discussion where the salient terms of the loans as set forth by the Government of Japan. which consists of the improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Yoshihisa Ara. in her capacity as Secretary of the DEPARTMENT OF BUDGET and MANAGEMENT. SECRETARY HERMOGENES E. The Exchange of Notes stated in part: . GARCIA (retired) and PMA ’59 FOUNDATION.G. COMMODORE PLARIDEL C.

078 4. Arterial Road Links Development Project (Phase IV) 15. (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. (1) The Loan I will be made available by loan agreements to be concluded between the Borrower I and the Bank. Secondary Education Development and Improvement Project 7. includes the Arterial Road Links Development Project (Phase IV). (1) The Loan I will be made available to cover payments to be made by the Philippine executing agencies to suppliers. (2) Each of the loan agreements mentioned in sub-paragraph (1) above will be concluded after the Bank is satisfied of the feasibility.384 .210 2. the following principles: . With regard to the shipping and marine insurance of the products purchased under the Loan I. of the project to which such loan agreement relates. Rural Water Supply Project (Phase V) 951 3. 3.. 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. 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. Agrarian Reform Infrastructure Support Project (Phase II) 16. 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. which specified the projects to be financed under the Loan I. to wit: LIST A Maximum amount in million yen) 1.I 1.000) (hereinafter referred to as "the Loan I") will be extended. List A. provided that such purchases are made in such eligible source countries for products produced in and/or services supplied from those countries. x x x x2 1awphi1. 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. 4.000. A loan in Japanese yen up to the amount of seventy-nine billion eight hundred and sixty-one million yen (Y79.net Pertinently.861.990 5.. Bohol Irrigation Project (Phase II) 6. (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. inter alia. in accordance with the relevant laws and regulations of Japan. 2. including environmental consideration.

not directly related to the implementation of the said projects. expenses concerning office. Loan Agreement No. stated as follows: Loan Agreement No. dated December 28. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project (Phase IV) 5. Philippines-Japan Friendship Highway Mindanao Section Rehabilitation Project (Phase II) 7. the Philippines obtained from and was granted a loan by the JBIC. which formed part of the Exchange of Notes. taxes and duties.6.8613 The Exchange of Notes further provided that: III xxxx 3. the representative of the Japanese delegation stated that: (1) such requirement of local currency as general administrative expenses. in accordance with the agreement reached by the Government of Japan and the Philippine Government.167 Total 79. 1999.068 9. interest during construction. will not be considered as eligible for financing under the Loan I. as well as purchase of land properties. Pasig-Marikina River Channel Improvement Project (Phase I) 1. 1999. 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. in particular. the procedures of international tendering to be followed except where such procedures are inapplicable or inappropriate.013 11. . PH-P204. Maritime Safety Improvement Project (Phase C) 4.714 10.852 7. between JAPAN BANK FOR INTERNATIONAL COOPERATION and the GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES. however. remuneration to employees of the executing agencies and housing. 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. as expressed in the Exchange of Notes between the representatives of the two governments. also stated in part. 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. Cordillera Road Improvement Project 5. inter alia. x x x x4 The Records of Discussion. thus: xxxx 1. PH-P204 dated December 28. compensation and the like. x x x x5 Thus. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9. which set forth.434 8.

40 kms. the Manila Times and Manila Standard on November 22 and 29. 1999. issued by the Overseas Economic Cooperation Fund (OECF) and for the purpose. JBIC agreed to lend the Philippine Government an amount not exceeding FIFTEEN BILLION THREE HUNDRED EIGHTY-FOUR MILLION Japanese Yen (Y15.47. This road section. concerning Japanese loans to be extended with a view to promoting the economic stabilization and development efforts of the Republic of the Philippines. . 2002. dated November 1987. Bato. reference to "the OECF" and "Fund" therein (General Terms and Conditions) shall be substituted by "the JBIC" and "Bank. thus. x x x x6 Under the terms and conditions of Loan Agreement No. PH-P204 was to be used to finance the Arterial Road Links Development Project (Phase IV). the DPWH.10 As mentioned earlier.79.10. 12 After the lapse of the deadline for the submission of bid proposals. 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". 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. withdrew. CP IV: Pandan-Caramoran-Codon Road . namely. 9 Specifically.11 Subsequently. was divided into four contract packages (CP): CP I: San Andres (Codon)-Virac-Jct. which includes all agreements supplemental hereto). In accordance with the established prequalification criteria. of which the Catanduanes Circumferential Road was a part. A total of twenty-three (23) foreign and local contractors responded to the invitation by submitting their accomplished prequalification documents on January 23. CP III: Bagamanoc-Pandan 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. only seven contractors submitted their bid proposals. PH-P204. the proceeds of Loan Agreement No.66. eight contractors were evaluated or considered eligible to bid as concurred by the JBIC.384. and December 5.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. contractors or consultants.710.563. the opening of the bids commenced immediately. it was announced that the Approved Budget for the Contract (ABC) was in the amount of P738.818 kms CP II: Viga-Bagamanoc Road . in turn.67. 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. 2003. Prior to the opening of the respective bid proposals. however. One of them.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. 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).8 Further.50 kms.Viga Road .40 kms. as the government agency tasked to implement the project.000." respectively.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.

and the Department of Finance (DOF) as the government agency that acts as the custodian and manager of all financial resources of the government. Ebdane. Boncodin and Cesar V. Phase IV.099.392.475.598.099.90% 52.45% from the ABC) to P952.926. particularly those of the lowest three bidders. Also named as individual public respondents are Hermogenes E. Agustin.15 The BAC of the DPWH. San Andres (Codon) – Virac – Jct. the Consultant hereby recommends the award of the contract for the construction of CP I. DBM and DOF. and a Filipino citizen.125. 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. Jr. 3) Italian Thai Dev’t.98 (with variance of 34. public respondent Norma L.34 Public Company.926. Project Manager of the Catanduanes Circumferential Road Improvement Project (CCRIP). Named as public respondents are the DPWH. in his Contractor’s Bid Evaluation Report dated April 2004. Abaya claims that he filed the instant petition as a taxpayer. under JBIC Loan Agreement No. The bid of private respondent China Road & Bridge Corporation was corrected from the original P993. Emilia T.14 After further evaluation of the bids.183.125. San Andres (Codon) – Virac – Jct.904.564.95% 48. 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. as the government agency tasked with the implementation of government infrastructure projects.36 28. Garcia likewise claims that he filed the suit as a taxpayer.075. Mr. Petitioner Plaridel C.183. . at its total corrected bid amount of Nine Hundred Fifty-Two Million Five Hundred Sixty-Four Thousand Eight Hundred Twenty-One & 71/100 Pesos. 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. 2004. Corp.904.16 On September 29. respectively. On the other hand. with the approval of then Acting Secretary Soriquez. The Parties Petitioner Plaridel M.. Inc. non-profit corporation organized under the existing Philippine laws.821. former military officer. 2004..95% from the ABC) based on their letter clarification dated April 21. P1. Purisima in their capacities as former Secretaries of the DPWH. and a Filipino citizen. Lasala was impleaded in her capacity as Treasurer of the Bureau of Treasury. located in Catanduanes Province. is a non-stock. It is represented by its President. China Road and Bridge Corporation. P1.98 Corporation 2) Cavite Ideal Int’l Const. Petitioner PMA ’59 Foundation. issued the assailed Resolution No.564. Carlos L. PHP204.821.598.11 P1. former lawmaker.11 Devt. on the other hand.71 (with variance of 28. PH-P204 to the Lowest Complying Bidder.022. Ltd. Hedifume Ezawa.71 P1.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. PJHL-A-04-012 dated May 7.35% Name of Bidder 1) China Road And Bridge P 993. 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. Bato – Viga Road (Catanduanes Circumferential Road Improvement Project) of the Arterial Roads Links Development Project. Phase IV. 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. JBIC Loan No.

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

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

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

series of 2001. as amended. 30 or (f) where it involves an invalid law. 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. They thus urge the Court to issue a writ of certiorari to set aside Resolution No. the interest or injuries claimed by the petitioners are allegedly merely of a general interest common to all members of the public. The petitioners maintain that disbursement of public funds to implement a patently void and illegal contract is itself illegal and must be enjoined. 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. 26 (b) where there is a question of validity of election laws. and their respective named officials. have allegedly been repealed by RA 9184. including their implementing rules. a taxpayer’s locus standi was recognized in the following cases: (a) where a tax measure is assailed as unconstitutional. known as the Foreign Borrowings Act. The latter laws. The Respondents’ Counter-Arguments The public respondents. 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. According to the public respondents. namely the DPWH. 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. 25 as contended by the respondents. If at all. 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. which the petitioners not being privies to the agreement cannot raise. the procurement rules established by that law allegedly apply.were done after the effectivity of RA 9184. Their interest is allegedly too vague. and not Presidential Decree No. The public respondents find it noteworthy that the petitioners do not raise issues of constitutionality but only of contract law. 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. which when enforced will put the petitioner in imminent danger of sustaining some direct injury as a result thereof. have yet to be drafted and in fact. Even RA 4860. highly speculative and uncertain to satisfy the requirements of locus standi.28 (d) where there is a claim of illegal disbursement or wastage of public funds through the enforcement of an invalid or unconstitutional law. PJHL-A-04-012 and the contract between the DPWH and private respondent China Road & Bridge Corporation are valid. This is following the principle that a stranger to a contract cannot sue either or both the contracting parties to annul and set aside . necessarily. Resolution No. Otherwise Known as the Government Procurement Reform Act. 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. urge the Court to dismiss the petition on grounds that the petitioners have no locus standi and.27 (c) where legislators questioned the validity of any official action upon the claim that it infringes on their prerogatives as legislators. as in the present case. They aver that the implementing rules to govern foreign-funded procurement. eventually. in any case. a writ of prohibition to permanently enjoin the DPWH from implementing Resolution No. 40 (EO 40). 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. through the Office of the Solicitor General. may have also been repealed or modified by RA 9184 insofar as its provisions are inconsistent with the latter. 1594 (PD 1594)24 and Executive Order No. The petitioners also argue that the "Implementing Rules and Regulations (IRR) of RA 9184. 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. 31 None of the above considerations allegedly obtains in the present case. Part A" (IRR-A) cited by the respondents is not applicable as these rules only govern domestically-funded procurement contracts. DBM and DOF. the petitioners posit. They also pray for the issuance of a temporary restraining order and.

That in case where international competitive bidding shall be conducted preference of at least fifteen per centum shall be granted in favor of articles. as amended.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. materials or supplies of the growth.06. 104: In view of the provisions of Section 4 of Republic Act No. is governed by the latter’s Procurement Guidelines which precludes the imposition of ceilings on bid prices. On the merits. Series of 1987.06 of the JBIC Procurement Guidelines reads: Section 5. production or manufacture of the Philippines: Provided. DOJ Opinion No. 1594 . relative to the award of foreign-assisted projects. Section 5. Section 4 thereof states: SEC. xxx (e) Any procedure under which bids above or below a predetermined bid value assessment are automatically disqualified is not permitted. 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. PH-P204 is governed by RA 4860. credit or indebtedness under this Act. In the contracting of any loan. insofar as such provisions do not pertain to constructions primarily for national defense or security purposes. There being no particularized interest or elemental substantial injury necessary to confer locus standi. the provisions of [CA 541]. Commonwealth Act No.) No. the public respondents implore the Court to dismiss the petition. PH-P204 that the assailed Resolution No. to wit: Memorandum Circular No. utilization of the services of qualified domestic firms in the prosecution of projects financed under this Act shall be encouraged: Provided. as amended. Memorandum Circular Nos. the application of any law granting preferences or imposing restrictions on international competitive bidding. the President of the Philippines may. 46. agree to waive or modify. to clarify RA 4860. That the method and procedure in comparison of bids shall be the subject of agreement between the Philippine Government and the lending institution. when necessary. 104 and 108. PJHL-A-04-012 and the subsequent contract between the DPWH and private respondent China Road & Bridge Corporation materialized. The public respondents stress that it was pursuant to Loan Agreement No. They likewise aver that Loan Agreement No. [RA 5183]. 138]. as amended. Provided. 4860. issued by the President. Evaluation and Comparison of Bids.D. 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. 4239. the President is empowered to waive the application of any law imposing restrictions on the procurement of goods and services pursuant to such loans. are also invoked by the public respondents. as amended. and under Section 4 thereof. That as far as practicable. however. or the Foreign Borrowings Act. PH-P204 executed between the Philippine Government and the JBIC. including among others [Act No. financed by Loan Agreement No. 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. 4. further. 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. and PD 1594. finally.

adhere closely to the implementing rules and regulations of Presidential Decree No. the Manila Times and Manila Standard on November 22. 20. Memorandum Circular No. The latter law (EO 40). A contract. – . It is understood that the concerned government agency shall. or before the signing into law of RA 9184 on January 10. being the law between the parties.34 This recognition allegedly buttresses the binding effect of executive agreements to which the Philippine Government is a signatory. where the laws then in force on government procurements were PD 1594 and EO 40.relative to the method and procedure in the comparison of bids. and subject to such limitations as may be provided by law. the public respondents emphasize. 29 and December 5. as amended. as executive agreements and.35 On the other hand. as such. in particular. PH-P204 was executed on December 28. for projects supported in whole or in part by foreign assistance awarded through international or local competitive bidding. namely. The Constitution. 2003. Specifically. The public respondents further argue against the applicability of RA 9184 stating that it was signed into law on January 10. as far as practicable. 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. It should be made clear however that public bidding is still required and can only be waived pursuant to existing laws. 108: In view of the provisions of Section 4 of Republic Act No. Loan Agreement No.33 They cite Section 20 of Article VII of the Constitution as giving the President the authority to contract foreign loans: SEC.32 The public respondents characterize foreign loan agreements. not RA 9184. which reads: SEC. 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. 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. and containing other matters as may be provided by law. The Monetary Board shall. PH-P204. the public respondents point to Section 77 of IRR-A. including Loan Agreement No. otherwise known as the "Foreign Borrowings Act". when the loan/grant agreement so stipulates. PH-P204." The applicability of EO 40. 77. Guided by the fundamental rule of pacta sunt servanda. It is pointed out by the public respondents that executive agreements are essentially contracts governing the rights and obligations of the parties. 1999. 2002. 2003. the Philippine Government bound itself to perform in good faith its duties and obligations under Loan Agreement No. the government agency concerned may award the contract to the lowest bidder even if his/its bid exceeds the approved agency estimate. which matter may be the subject of agreement between the infrastructure agency concerned and the lending institution. should be observed pursuant to the fundamental principle in international law of pacta sunt servanda. it is hereby clarified that. within thirty days from the end of every quarter of the calendar year. 4860. 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. Transitory Clause. 1594 during loan/grant negotiation and the implementation of the projects. must be faithfully adhered to by them. 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. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board. In this connection.

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

like the public respondents. PH-P204 entered into between the JBIC and the Philippine Government. 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: .(GOCCs) and Government Financial Institutions (GFIs). Scope and Application.06 of the JBIC Procurement Guidelines prohibits the setting of ceilings on bid prices. xxx The Invitation to Prequalify and to Bid was first published on November 22. 2003. Private respondent China Road & Bridge Corporation. It supports its theory by characterizing the said loan agreement. the Exchange of Notes and Loan Agreement No.’ This Executive Order shall cover the procurement process from the pre-procurement conference up to the award of contract. it relied in good faith on the provisions of EO 40. Section 5. As an international or executive agreement. it is still the terms of Loan Agreement No. Private respondent China Road & Bridge Corporation claims that when it submitted its bid for the CP I project. Section 1 thereof. Private respondent China Road & Bridge Corporation thus postulates that following EO 40. 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. PH-P204 allegedly created a legally binding obligation on the parties. cites RA 4860 as the basis for the Exchange of Notes and Loan Agreement No. 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. 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. PH-P204 which should govern the procurement of goods and services for the CP I project. EO 40 expressly recognizes as an exception from the application of the provisions thereof on approved budget ceilings. On the other hand. executed pursuant to the Exchange of Notes between the Government of Japan and the Philippine Government. It is also contended by private respondent China Road & Bridge Corporation that even assuming arguendo that RA 9184 could be applied retroactively. 1. hereby referred to as the ‘Agencies. those projects financed by international financing institutions (IFIs) and foreign bilateral sources. as well as from bilateral and other similar foreign sources. the procurement of goods and services for the CP I project should be governed by the terms and conditions of Loan Agreement No. Pertinently. 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. PH-P204. Since the law in effect at the time the procurement process was initiated was EO 40. 2002. quoted in part earlier. Under the circumstances. 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. Section 1.2 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). as an executive agreement. 2248 and House Bill No. RA 9184 was signed into law only on January 10. further states: SEC. The following excerpt of the deliberations of the Bicameral Conference Committee on the Disagreeing Provision of Senate Bill No.

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

82. as part of the government’s commitment in the implementation of the project. acting as purchasing agent under the control of the then Military Governor. the Philippine Commission. then President Manuel L. materials and equipment for the use of the national government. at this point. to hold competitive public biddings in the making of contracts for public works and the purchase of office supplies. Congress passed RA 6957. Pertinently. materials and equipment to the government or any of its branches. 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. PJHL-A-04-012 is valid. approved on January 31. 83. 302 (1996). History of Philippine Procurement Laws It is necessary. 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. Then President Corazon Aquino issued Executive Order No. 1901. The counterpart funds. materials and equipment to the government should be subjected to public bidding. and Act No. refer to the component of the project cost to be financed from government-appropriated funds. its subdivisions and instrumentalities. 52 On February 3. In 1990.g. the subsequent contract entered into by and between the DPWH and private respondent China Road & Bridge Corporation is likewise valid. e. required the municipal and provincial governments. 1963. by requiring the Chief Engineer. United States Army for the Division of the Philippine Islands. the substantive arguments raised by the petitioners fail to persuade the Court as it holds that Resolution No.51 On June 21. to give a brief history of Philippine laws pertaining to procurement through public bidding. respectively. should be entered into without public bidding except for very extraordinary reasons to be determined by a Committee constituted thereunder. and the fact that public interest is indubitably involved considering the public expenditure of millions of pesos. construction.. in general.48 Hence. The United States Philippine Commission introduced the American practice of public bidding through Act No. 55 which authorized the financing. 49 Act No. 1901. for reasons which will be discussed shortly. required the General Superintendent of Public Instruction to purchase office supplies through competitive public bidding. in Executive Order No. 146. 1901. providing guidelines for the procurement of goods and supplies by the national government. Then President Fidel Ramos issued Executive Order No. 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. 1901 by the Philippine Commission. agencies or instrumentalities. enacted on January 21. reiterated the directive that no government contract for public service or for furnishing supplies. through Act No. enacted on October 15. providing additional guidelines in the procurement of goods and supplies by the national .the JBIC. nonetheless. 1900. warrant the Court to adopt in the present case its liberal policy on locus standi. 16 declaring as a matter of general policy that government contracts for public service or for furnishing supplies. approved on February 6. 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. Then President Joseph Ejercito Estrada issued Executive Order No. Further. whether RA 9184 applies to the CP I project. Quezon issued Executive Order No.53 The requirement of public bidding was likewise imposed for public works of construction or repair pursuant to the Revised Administrative Code of 1917. operation and maintenance of infrastructure by the private sector. 201 (2000). in particular. 74.50 Act No. the serious legal questions raised by the petitioners. taxpayers’ money would be or is being spent on the project considering that the Philippine Government is required to allocate a peso-counterpart therefor. As a corollary. 40 dated June 1. 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. In any case. 22. 301 (1987) prescribing guidelines for government negotiated contracts. public bidding became a popular policy in the purchase of supplies. and to foreign-funded government projects. 1936. Then President Diosdado Macapagal. created the Bureau of Supply and with its creation. Section 62 of the Administrative Code of 1987 reiterated the requirement of competitive public bidding in government projects. the Solicitor General explains.

entitled "Providing Additional Policies and Guidelines in the Procurement of Goods/Supplies by the National Government". 201. Executive Order No. In addition to these laws. as amended: SEC. series of 1996. 2003 in the Manila Times and Malaya newspapers." Any other law. 2003 and subsequently published on September 23. It is not disputed that with respect to the CP I project. entitled Consolidating Procurement Rules and Procedures for All National Government Agencies. entitled "Providing Policies. 1995. modified or amended accordingly. Rules and Regulations for Government Infrastructure Contracts. At the time. President Arroyo signed into law RA 9184. the Invitation to Prequalify and to Bid for its implementation was published in two leading national newspapers. Guidelines. 1978. entitled Providing Policies.56 On January 10. namely. 2002. Book Two of Republic Act No. rules and regulations or parts thereof inconsistent therewith. entitled "Amending Executive Order No. —This law repeals Executive Order No. 29 and December 5. he issued Executive Order No. entitled "Prescribing Policies. On October 8. It took effect on January 26. series of 2001. the law mainly relied upon by the respondents. Guidelines. and Requiring the Use of the Government Procurement System. 1594 dated June 11. 2003. letter of instruction. EO 40. 2003. Rules and Regulations for the Procurement of Goods/Supplies by the National Government" and Section 3 of Executive Order No. 262. charter. RA 9184 cannot be given retroactive application. That the method and procedure in the comparison of bids shall be the subject of agreement between the Philippine Government and the lending institution. executive order. agree to waive or modify the application of any law granting preferences or imposing restrictions on international competitive bidding x x x Provided. amended or modified all executive issuances. EO 302(1996) and PD 1594. and the relevant provisions of Republic Act No. orders. credit or indebtedness under this Act. the relevant provisions of Executive Order No. must be mentioned as Section 4 thereof provides that "[i]n the contracting of any loan. 57 It expressly repealed. Government-Owned or Controlled Corporations and Government Financial Institutions. It accordingly repealed. 76.58 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: . presidential decree or issuance. On the other hand. entitled "Consolidating Procurement Rules and Procedures for All National Government Agencies. 7898 dated February 23. not RA 9184. series of 1996. entitled "Providing Additional Guidelines in the Processing and Approval of Contracts of the National Government". series of 1996. 40. proclamation. or fifteen days after its publication in two newspapers of general circulation. 7160. 302. its full implementation was even delayed as IRR-A was only approved by President Arroyo on September 18. rule or regulation and/or parts thereof contrary to or inconsistent with the provisions of this Act is hereby repealed. as amended. administrative order. the Manila Times and Manila Standard on November 22.government. among others. 2004. is applicable to the procurement process undertaken for the CP I project." This law amends Title Six. otherwise known as the "Local Government Code of 1991". the law in effect was EO 40. 262 (2000) amending EO 302 (1996) and EO 201 (2000). 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 Presidential Decree No. RA 9184 took effect two months later or on January 26. 302. Further. 164. President Gloria Macapagal-Arroyo issued EO 40. Repealing Clause. series of 2000. Thereafter. series of 1987. RA 4860. finally. the President of the Philippines may. when necessary. Government Owned or Controlled Corporations and/or Government Financial Institutions. EO 262 (2000). 2001. Executive Order No." EO 40. and Requiring the Use of the Government Electronic Procurement System". Guidelines.

P. Transitory Clause In all procurement activities. P. such as in the case of the CP I project. under IRR-A. the provisions of E. even absurd. (7) bid opening and examination. or other applicable laws. if the advertisement or invitation for bids was issued prior to the effectivity of the Act. 59 Clearly then. 1594 and its IRR. and (c) consulting services. shall govern. 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. 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. Article 4 of the Civil Code is clear on the matter: "[l]aws shall have no retroactive effect. R." In the absence of such categorical provision. 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. In other words. 1594 and its IRR. 7160 and its IRR.O. (10) award of contract and notice to proceed. (b) civil works. including State Universities and Colleges (SUCs).A. 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. 7160 and its IRR. and two members thereof appointed by the Senate President and the Chairman of the House Committee on Appropriations. 77. as urged by the petitioners. The procurement process basically involves the following steps: (1) pre-procurement conference. 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. by all National Government agencies. if the advertisement of the invitation for bids was issued prior to the effectivity of RA 9184. It would be incongruous. 1. rules and regulations provided in E.D. (3) pre-bid conference. apply . (5) submission and receipt of bids. (4) eligibility check of prospective bidders. RA 9184 will not be applied retroactively to the CP I project whose procurement process commenced even before the said law took effect." This Executive Order shall cover the procurement process from the pre-procurement conference up to the award of the contract. Stated differently.D. – This Executive Order shall apply to see procurement of (a) goods.O. as the case may be. Admittedly. 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. materials and related service.61 Nonetheless. (9) post qualification. 40 and its IRR. to provide for the prospective application of RA 9184 with respect to domestically-funded procurement projects and.SEC.A. 40 and its IRR. 29 and December 5. procuring entities may continue adopting the procurement procedures. hereby referred to as "Agencies. 2002. 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. shall govern.60Indeed. as the case may be. the provisions of EO 40 and its IRR. or other applicable laws. 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. unless the contrary is provided. and two members thereof appointed by the Speaker of the House of Representatives) and the Government Procurement Policy Board (GPPB). supplies. R. Scope and Application. (8) bid evaluation. thus: SEC. Government-Owned or –Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs). (2) advertisement of the invitation to bid. when the Invitation to Prequalify and to Bid for the implementation of the CP I project was published on November 22. Section 77 of the IRR-A states. (6) modification and withdrawal of bids. on the other hand. and RA 7160 and its IRR in the case of local government units. and PD 1594 and its IRR in the case of national government agencies.

in the contracting of any loan. Nonetheless. relied upon by the petitioners in contending that since the bid price of private respondent China Road & Bridge Corporation exceeded the ABC. 1. in the light of Section 1 of EO 40.RA 9184 retroactively with respect to foreign.06. as well as the fundamental rule embodied in Article 4 of the Civil Code on prospectivity of laws. Loan Agreement No. In relation thereto. – 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. agree to waive or modify the application of any law granting preferences or imposing restrictions on international competitive bidding x x x. of which CP I is a component. Section 5." Consequently. Section 4 of RA 4860. 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. On the other hand.. Award of Contract . "when necessary. Thus. Scope and Application. as amended.62 It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid prices. then it should not have been awarded the contract for the CP I project.e. not RA 9184.09. credit or indebtedness thereunder. Bid prices which exceed this ceiling shall be disqualified outright from further participating in the bidding. was correctly cited by the respondents as likewise authorizing the President. There shall be no lower limit to the amount of the award." 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. quoted earlier. in accordance with these applicable laws. Under EO 40. The pertinent portion of Section 1 of EO 40 is quoted anew: SEC. Part II (International Competitive Bidding) thereof quoted earlier reads: Section 5.funded procurement projects. The said loan agreement stipulated that the procurement of goods and services for the Arterial Road Links Development Project (Phase IV). thus: Section 5. is reiterated. the Court holds that the procurement process for the implementation of the CP I project is governed by EO 40 and its IRR. is to be governed by the JBIC Procurement Guidelines. 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. The pertinent provision. it enjoins the award of the contract to the bidder whose bid has been determined to be the lowest evaluated bid. the lawmakers could not have intended such an absurdity. To be sure. 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.06. PH-P204. Section 77 of IRR-A. 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. x x x" It should be observed that this text is almost similar to the wording of Section 31 of RA 9184. i.

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. The petitioners’ arguments fail to persuade. regardless of nomenclature. 138. the terms of the Exchange of Notes dated December 27. 4. vigorously assert that Loan Agreement No. 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. They cite Executive Order No. in order to place the procurement process undertaken for the CP I project within the ambit of RA 9184. entered into between the Philippines and another government in written form and governed by international law. including government-owned and/or – controlled corporations and local government units. . by all branches and instrumentalities of government. 1999 and Loan Agreement No. offices and agencies. an agreement had to be one where the parties are the Philippines as a State and another State. The JBIC. 1997 where the three agreements are defined in this wise: a) International agreement – shall refer to a contract or understanding. 1999 between the Japanese Government and the Philippine Government is an executive agreement. private respondent China Road & Bridge Corporation’s bid was the lowest evaluated bid. therefore. in behalf of their respective governments. albeit 28. whether embodied in a single instrument or in two or more related instruments. b) Treaties – international agreements entered into by the Philippines which require legislative concurrence after executive ratification. Yoshihisa Ara. the government is obliged to observe and enforce the same in the procurement of goods and services for the CP I project. Scope and Applications. PH-P204 was executed by and between the JBIC and the Philippine Government pursuant to the Exchange of Notes executed by and between Mr. and then Foreign Affairs Secretary Siazon. is a Japanese banking agency. declarations.95% higher than the ABC. thus: SEC. PH-P204 taken in conjunction with the Exchange of Notes dated December 27.64 The petitioners mainly argue that Loan Agreement No. c) Executive agreements – similar to treaties except that they do not require legislative concurrence. it was correctly awarded the contract for the CP I project.63 Since these terms and conditions are made part of Loan Agreement No. regardless of source of funds. Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines. the petitioners maintain. This term may include compacts like conventions. PH-P204 would still govern the procurement for the CP I project For clarity. whether local or foreign. 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. Goods and Consulting Services. In accordance with the JBIC Procurement Guidelines. Even if RA 9184 were to be applied retroactively. which presumably has a separate juridical personality from the Japanese Government.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. The Court holds that Loan Agreement No. The petitioners. Section 4 of RA 9184 is quoted anew. its departments. 459 dated November 25. PH-P204. – This Act shall apply to the Procurement of Infrastructure Projects. PH-P204 is neither a treaty. an international agreement nor an executive agreement. subject to the provisions of Commonwealth Act No. Loan Agreement No. covenants and acts. To recall. As shown earlier. PH-P204 does not fall under any of the three categories because to be any of the three.

66 It is stated that "treaties. each of the parties being in the possession of the one signed by the representative of the other. Sayre. concerning Japanese loans to be extended with a view to promoting the economic stabilization and development efforts of the Republic of the Philippines. contractors and/or consultants of eligible source countries under such contracts as may be entered . Loan I in the amount of Y79.Phase IV). x x x70 The Exchange of Notes dated December 27. PH-P204 is indubitably an integral part of the Exchange of Notes.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 . concluded from time to time. added rules for treaties with international organizations as parties." quoted in Commissioner of Customs v. The signatories of the letters may be government Ministers. These rules are the result of long practice among the States. Therefore. they are regarded as international customary law. conventions. other than those entered into under the trade-agreements act. sometimes. it is well to understand the definition of an "exchange of notes" under international law. Instead. an exchange of notes is considered a form of an executive agreement. agreements. which entered into force on 27 January 1980. Loan Agreement No. their rules apply to all of those instruments as long as they meet the common requirements. Under the usual procedure.68 Significantly. It forms part of the Exchange of Notes such that it cannot be properly taken independent thereof. Further."67 It is further explained thatAlthough these instruments differ from each other by title. In this connection. or. entitled "The Constitutionality of Trade Agreement Acts. may sometimes be difficult of ready ascertainment. stated. charters. The agreement consists of the exchange of two documents. and that such loan (Loan I) would be used to cover payments to be made by the Philippine executing agencies to suppliers. The point where ordinary correspondence between this and other governments ends and agreements – whether denominated executive agreements or exchange of notes or otherwise – begin. It would be useless to undertake to discuss here the large variety of executive agreements as such."65 Under the circumstances. either because of its speedy procedure. two international conventions were negotiated. memoranda of understanding. Eastern Sea Trading. 1999. they all have common features and international law has applied basically the same rules to all these instruments. Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. former United States High Commissioner to the Philippines. inter alia. The 1969 Vienna Convention on the Law of Treaties ("1969 Vienna Convention"). that the Government of Japan would extend loans to the Philippines with a view to promoting its economic stabilization and development efforts. which have accepted them as binding norms in their mutual relations. to avoid the process of legislative approval. which has still not entered into force. protocols. The following disquisition by Francis B. Since there was a general desire to codify these customary rules.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. Hundreds of executive agreements. 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. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations ("1986 Vienna Convention"). declarations. which becomes binding through executive action without the need of a vote by the Senate or Congress. modus vivendi and exchange of notes" all refer to "international instruments binding at international law. The technique of exchange of notes is frequently resorted to. the JBIC may well be considered an adjunct of the Japanese Government.Loan Agreement No. diplomats or departmental heads.8651. 1999. the accepting State repeats the text of the offering State to record its assent. contains rules for treaties concluded between States. 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 27.000. They sometimes take the form of exchange of notes and at other times that of more formal documents denominated "agreements" or "protocols". have been negotiated with foreign governments.

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. Under the fundamental principle of international law of pacta sunt servanda. .72 The JBIC Procurements Guidelines. the petition is DISMISSED. in fact. PH-P204. as quoted earlier. 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. the procedures of international tendering to be followed except where such procedures are inapplicable or inappropriate. premises considered. Succinctly put. it absolutely prohibits the imposition of ceilings on bids.into between them for purchases of products and/or services required for the implementation of the projects enumerated in the List A. inter alia. it bears reiterating that as stipulated: 3.71With respect to the procurement of the goods and services for the projects. SO ORDERED." the DPWH. forbids any procedure under which bids above or below a predetermined bid value assessment are automatically disqualified. 73 which is. WHEREFORE. as the executing agency of the projects financed by Loan Agreement No. rightfully awarded the contract for the implementation of civil works for the CP I project to private respondent China Road & Bridge Corporation. which set forth.

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