Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

139465 January 18, 2000

said treat$. 5t also e2pressed its concurrence in the .iplo atic Notes correctin" Para"raph :=<:a<, Article , thereof :on the ad issibilit$ of the docu ents acco pan$in" an e2tradition re>uest upon certification b$ the principal diplo atic or consular officer of the re>uested state resident in the Re>uestin" 7tate<. 'n (une )?, )+++, the .epart ent of (ustice received fro the .epart ent of -orei"n Affairs 9.7. Note @erbale No. /=AA containin" a re>uest for the e2tradition of private respondent Mark (i enez to the 9nited 7tates. Attached to the Note @erbale !ere the 8rand (ur$ 5ndict ent, the !arrant of arrest issued b$ the 9.7. .istrict Court, 7outhern .istrict of -lorida, and other supportin" docu ents for said e2tradition. Based on the papers sub itted, private respondent appears to be char"ed in the 9nited 7tates !ith violation of the follo!in" provisions of the 9nited 7tates Code :97C<& A< )? 97C *,) :Conspirac$ to co it offense or to defraud the 9nited 7tates4 t!o BAC counts4 Ma2i u Penalt$ D = $ears on each count<4 B< A0 97C ,A/) :Atte pt to evade or defeat ta24 four B6C counts4 Ma2i u Penalt$ D = $ears on each count<4 C< )? 97C )*6* :-raud b$ !ire, radio, or television4 t!o BAC counts4 Ma2i u Penalt$ D = $ears on each count<4 .< )? 97C )//) :-alse state ent or entries4 si2 B0C counts4 Ma2i u Penalt$ D = $ears on each count<4 E< A 97C 66)f :Election contributions in na e of another4 thirt$; three B**C counts4 Ma2i u Penalt$ D less than one $ear<. :p. )6, Rollo.< 'n the sa e da$, petitioner issued .epart ent 'rder No. A6+ desi"natin" and authorizin" a panel of attorne$s to take char"e of and to handle the case pursuant to 7ection =:)< of Presidential .ecree No. )/0+. Accordin"l$, the panel be"an !ith the 1technical evaluation and assess ent1 of the e2tradition re>uest and the docu ents in support thereof. The panel found that the 1official En"lish translation of so e docu ents in 7panish !ere not attached to the re>uest and that there are so e other atters that needed to be addressed1 :p. )=, Rollo<.

SECRETAR O! JUST"CE, petitioner, vs. #ON. RA$P# C. $ANT"ON, Pr%&'('n) Ju()%, R%)'ona* Tr'a* Cour+ o, Man'*a, -ran./ 25, an( MAR0 -. J"MENE1, respondents. ME$O, J.: The individual citizen is but a speck of particle or olecule vis-à-vis the vast and over!hel in" po!ers of "overn ent. #is onl$ "uarantee a"ainst oppression and t$rann$ are his funda ental liberties under the Bill of Ri"hts !hich shield hi in ti es of need. The Court is no! called to decide !hether to uphold a citizen%s basic due process ri"hts, or the "overn ent%s ironclad duties under a treat$. The bu"le sounds and this Court ust once a"ain act as the faithful "uardian of the funda ental !rit. The petition at our doorstep is cast a"ainst the follo!in" factual backdrop& 'n (anuar$ )*, )+,,, then President -erdinand E. Marcos issued Presidential .ecree No. )/0+ 1Prescribin" the Procedure for the E2tradition of Persons 3ho #ave Co itted Cri es in a -orei"n Countr$1. The .ecree is founded on& the doctrine of incorporation under the Constitution4 the utual concern for the suppression of cri e both in the state !here it !as co itted and the state !here the cri inal a$ have escaped4 the e2tradition treat$ !ith the Republic of 5ndonesia and the intention of the Philippines to enter into si ilar treaties !ith other interested countries4 and the need for rules to "uide the e2ecutive depart ent and the courts in the proper i ple entation of said treaties. 'n Nove ber )*, )++6, then 7ecretar$ of (ustice -ranklin M. .rilon, representin" the 8overn ent of the Republic of the Philippines, si"ned in Manila the 1E2tradition Treat$ Bet!een the 8overn ent of the Republic of the Philippines and the 8overn ent of the 9nited 7tates of A erica1 :hereinafter referred to as the RP;97 E2tradition Treat$<. The 7enate, b$ !a$ of Resolution No. )), e2pressed its concurrence in the ratification of

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Pendin" evaluation of the aforestated e2tradition docu ents, private respondent, throu"h counsel, !rote a letter dated (ul$ ), )+++ addressed to petitioner re>uestin" copies of the official e2tradition re>uest fro the 9.7. 8overn ent, as !ell as all docu ents and papers sub itted there!ith4 and that he be "iven a ple ti e to co ent on the re>uest after he shall have received copies of the re>uested papers. Private respondent also re>uested that the proceedin"s on the atter be held in abe$ance in the eanti e. Eater, private respondent re>uested that preli inar$, he be "iven at least a cop$ of, or access to, the re>uest of the 9nited 7tates 8overn ent, and after receivin" a cop$ of the .iplo atic Note, a period of ti e to a plif$ on his re>uest. 5n response to private respondent%s (ul$ ), )+++ letter, petitioner, in a repl$; letter dated (ul$ )*, )+++ :but received b$ private respondent onl$ on Au"ust 6, )+++<, denied the fore"oin" re>uests for the follo!in" reasons& ). 3e find it pre ature to furnish $ou !ith copies of the e2tradition re>uest and supportin" docu ents fro the 9nited 7tates 8overn ent, pendin" evaluation b$ this .epart ent of the sufficienc$ of the e2tradition docu ents sub itted in accordance !ith the provisions of the e2tradition treat$ and our e2tradition la!. Article , of the E2tradition Treat$ bet!een the Philippines and the 9nited 7tates enu erates the docu entar$ re>uire ents and establishes the procedures under !hich the docu ents sub itted shall be received and ad itted as evidence. Evidentiar$ re>uire ents under our do estic la! are also set forth in 7ection 6 of P... No. )/0+. Evaluation b$ this .epart ent of the afore entioned docu ents is not a preli inar$ investi"ation nor akin to preli inar$ investi"ation of cri inal cases. 3e erel$ deter ine !hether the procedures and re>uire ents under the relevant la! and treat$ have been co plied !ith b$ the Re>uestin" 8overn ent. The constitutionall$ "uaranteed ri"hts of the accused in all cri inal prosecutions are therefore not available. 5t is onl$ after the filin" of the petition for e2tradition !hen the person sou"ht to be e2tradited !ill be furnished b$ the court !ith copies of the petition, re>uest and e2tradition docu ents and this .epart ent !ill not pose an$ obFection to a re>uest for a ple ti e to evaluate said docu ents.

A. The for al re>uest for e2tradition of the 9nited 7tates contains "rand Fur$ infor ation and docu ents obtained throu"h "rand Fur$ process covered b$ strict secrec$ rules under 9nited 7tates la!. The 9nited 7tates had to secure orders fro the concerned .istrict Courts authorizin" the 9nited 7tates to disclose certain "rand Fur$ infor ation to Philippine "overn ent and la! enforce ent personnel for the purpose of e2tradition of Mr. (i enez. An$ further disclosure of the said infor ation is not authorized b$ the 9nited 7tates .istrict Courts. 5n this particular e2tradition re>uest the 9nited 7tates 8overn ent re>uested the Philippine 8overn ent to prevent unauthorized disclosure of the subFect infor ation. This .epart ent%s denial of $our re>uest is consistent !ith Article , of the RP;97 E2tradition Treat$ !hich provides that the Philippine 8overn ent ust represent the interests of the 9nited 7tates in an$ proceedin"s arisin" out of a re>uest for e2tradition. The .epart ent of (ustice under P... No. )/0+ is the counsel of the forei"n "overn ents in all e2tradition re>uests. *. This .epart ent is not in a position to hold in abe$ance proceedin"s in connection !ith an e2tradition re>uest. Article A0 of the @ienna Convention on the Ea! of Treaties, to !hich !e are a part$ provides that 1BECver$ treat$ in force is bindin" upon the parties to it and ust be perfor ed b$ the in "ood faith1. E2tradition is a tool of cri inal la! enforce ent and to be effective, re>uests for e2tradition or surrender of accused or convicted persons ust be processed e2peditiousl$. :pp. ,,;,?, Rollo.< 7uch !as the state of affairs !hen, on Au"ust 0, )+++, private respondent filed !ith the Re"ional Trial Court of the National Capital (udicial Re"ion a petition a"ainst the 7ecretar$ of (ustice, the 7ecretar$ of -orei"n Affairs, and the .irector of the National Bureau of 5nvesti"ation, for mandamus :to co pel herein petitioner to furnish private respondent the e2tradition docu ents, to "ive hi access thereto, and to afford hi an opportunit$ to co ent on, or oppose, the e2tradition re>uest, and thereafter to evaluate the re>uest i partiall$, fairl$ and obFectivel$<4 certiorari :to set aside herein petitioner%s letter dated (ul$ )*, )+++<4 and prohibition :to restrain petitioner fro considerin" the e2tradition re>uest and fro filin" an e2tradition petition in court4 and to enFoin the 7ecretar$ of -orei"n Affairs and the .irector of the NB5 fro perfor in" an$ act directed to the e2tradition of private respondent to the 9nited 7tates<, !ith an application for the issuance of a te porar$ restrainin" order and a !rit of preli inar$ inFunction :pp. )/6;)/=, Rollo<.

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The afore entioned petition !as docketed as Civil Case No. ++;+60?6 and thereafter raffled to Branch A= of said re"ional trial court stationed in Manila !hich is presided over b$ the #onorable Ralph C. Eantion. After due notice to the parties, the case !as heard on Au"ust +, )+++. Petitioner, !ho appeared in his o!n behalf, oved that he be "iven a ple ti e to file a e orandu , but the sa e !as denied. 'n Au"ust )/, )+++, respondent Fud"e issued an order dated the previous da$, disposin"& 3#ERE-'RE, this Court hereb$ 'rders the respondents, na el$& the 7ecretar$ of (ustice, the 7ecretar$ of -orei"n Affairs and the .irector of the National Bureau of 5nvesti"ation, their a"ents andGor representatives to aintain the status quo b$ refrainin" fro co ittin" the acts co plained of4 fro conductin" further proceedin"s in connection !ith the re>uest of the 9nited 7tates 8overn ent for the e2tradition of the petitioner4 fro filin" the correspondin" Petition !ith a Re"ional Trial court4 and fro perfor in" an$ act directed to the e2tradition of the petitioner to the 9nited 7tates, for a period of t!ent$ :A/< da$s fro service on respondents of this 'rder, pursuant to 7ection =, Rule =? of the )++, Rules of Court. The hearin" as to !hether or not this Court shall issue the preli inar$ inFunction, as a"reed upon b$ the counsels for the parties herein, is set on Au"ust ),, )+++ at +&// o%clock in the ornin". The respondents are, like!ise, ordered to file their !ritten co ent andGor opposition to the issuance of a Preli inar$ 5nFunction on or before said date. 7' 'R.ERE.. :pp. ))/;))), Rollo.< -orth!ith, petitioner initiated the instant proceedin"s, ar"uin" that& P9BE5C RE7P'N.ENT ACTE. 35T#'9T 'R 5N EHCE77 '(9R57.5CT5'N 'R 35T# 8RA@E AB97E '- .57CRET5'N AM'9NT5N8 T' EACI 'R EHCE77 '- (9R57.5CT5'N 5N 57795N8 T#E TEMP'RARJ RE7TRA5N5N8 'R.ER BECA97E&

5. BJ 'R.ER5N8 #ERE5N PET5T5'NER T' RE-RA5N -R'M C'MM5TT5N8 T#E ACT7 C'MPEA5NE. '-, I.E., T' .E757T -R'M RE-975N8 PR5@ATE RE7P'N.ENT ACCE77 T' T#E '--5C5AE EHTRA.5T5'N REK9E7T AN. .'C9MENT7 AN. -R'M .ENJ5N8 PR5@ATE RE7P'N.ENT AN 'PP'RT9N5TJ T' -5EE A C'MMENT 'N, 'R 'PP'75T5'N T', T#E REK9E7T, T#E MA5N PRAJER -'R A 3R5T '- MANDAMUS5N T#E PET5T5'N -'R MANDAMUS !ER"I#RARI AN. PR'#5B5T5'N 3A7, 5N E--ECT, 8RANTE. 7' A7 T' C'N7T5T9TE AN A.(9.5CAT5'N 'N T#E MER5T7 'T#E MANDAMUS 5779E74 55. PET5T5'NER 3A7 9NK9AE5-5E.EJ PRE@ENTE. -R'M PER-'RM5N8 EE8AE .9T5E7 9N.ER T#E EHTRA.5T5'N TREATJ AN. T#E P#5E5PP5NE EHTRA.5T5'N EA34 555. T#E PET5T5'N -'R $MANDAMUS% PR'#5B5T5'N 57, 'N 5T7 -ACE, 79B7TANT5AEEJ .E-5C5ENT4 AN. 5@. PR5@ATE RE7P'N.ENT #A7 N' R58#T IN ESSE T#AT NEE.7 PR'TECT5'N AN. EN-'RCEMENT, AN. 35EE N'T 79--ER ANJ 5RREPARABEE 5N(9RJ. :pp. )+;A/, Rollo.< 'n Au"ust ),, )+++, the Court re>uired private respondent to file his co ent. Also issued, as pra$ed for, !as a te porar$ restrainin" order :TR'< providin"& N'3, T#ERE-'RE, effective i ediatel$ and continuin" until further orders fro this Court, Jou, Respondent (ud"e Ralph C. Eantion, $our a"ents, representatives or an$ person or persons !ER"I#RARI AN. -'RMAEEJ AN.

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actin" in $our place or stead are hereb$ 'R.ERE. to CEA7E and .E757T fro enforcin" the assailed order dated Au"ust +, )+++ issued b$ public respondent in Civil Case No. ++;+60?6. 85@EN b$ the #onorable #5EAR5' 8. .A@5.E, (R., Chief (ustice, 7upre e Court of the Philippines, this ),th da$ of Au"ust )+++. :pp. )A/;)A), Rollo.< The case !as heard on oral ar"u ent on Au"ust *), )+++, after !hich the parties, as directed, filed their respective e oranda. -ro the pleadin"s of the opposin" parties, both procedural and substantive issues are patent. #o!ever, a revie! of these issues as !ell as the e2tensive ar"u ents of both parties, co pel us to delineate the focal point raised b$ the pleadin"s& .urin" the evaluation sta"e of the e2tradition proceedin"s, is private respondent entitled to the t!o basic due process ri"hts of notice and hearin"L An affir ative ans!er !ould necessaril$ render the proceedin"s at the trial court, oot and acade ic :the issues of !hich are substantiall$ the sa e as those before us no!<, !hile a ne"ative resolution !ould call for the i ediate liftin" of the TR' issued b$ this Court dated Au"ust A6, )+++, thus allo!in" petitioner to fast;track the process leadin" to the filin" of the e2tradition petition !ith the proper re"ional trial court. Corollaril$, in the event that private respondent is adFud"ed entitled to basic due process ri"hts at the evaluation sta"e of the e2tradition proceedin"s, !ould this entitle ent constitute a breach of the le"al co it ents and obli"ations of the Philippine 8overn ent under the RP; 97 E2tradition Treat$L And assu in" that the result !ould indeed be a breach, is there an$ conflict bet!een private respondent%s basic due process ri"hts and the provisions of the RP;97 E2tradition Treat$L The issues havin" transcendental i portance, the Court has elected to "o directl$ into the substantive erits of the case, brushin" aside peripheral procedural atters !hich concern the proceedin"s in Civil Case No. ++; +60?6, particularl$ the propriet$ of the filin" of the petition therein, and of the issuance of the TR' of Au"ust ),, )+++ b$ the trial court. To be sure, the issues call for a revie! of the e2tradition procedure. The RP; 97 E2tradition Treat$ !hich !as e2ecuted onl$ on Nove ber )*, )++6, ushered into force the i ple entin" provisions of Presidential .ecree No. )/0+, also called as the Philippine E2tradition Ea!. 7ection A:a< thereof defines e2tradition as 1the re oval of an accused fro the Philippines !ith the obFect of placin" hi at the disposal of forei"n authorities to enable the

re>uestin" state or "overn ent to hold hi in connection !ith an$ cri inal investi"ation directed a"ainst hi or the e2ecution of a penalt$ i posed on hi under the penal or cri inal la! of the re>uestin" state or "overn ent.1 The portions of the .ecree relevant to the instant case !hich involves a char"ed and not convicted individual, are abstracted as follo!s& "&e E'tradition Request The re>uest is ade b$ the -orei"n .iplo at of the Re>uestin" 7tate, addressed to the 7ecretar$ of -orei"n Affairs, and shall be acco panied b$& ). The ori"inal or an authentic cop$ of the cri inal char"e and the !arrant of arrest issued b$ the authorit$ of the Re>uestin" 7tate havin" Furisdiction over the atter, or so e other instru ents havin" e>uivalent le"al force4 A. A recital of the acts for !hich e2tradition is re>uested, !ith the fullest particulars as to the na e and identit$ of the accused, his !hereabouts in the Philippines, if kno!n, the acts or o issions co plained of, and the ti e and place of the co ission of these acts4 *. The te2t of the applicable la! or a state ent of the contents of said la!, and the desi"nation or description of the offense b$ the la!, sufficient for evaluation of the re>uest4 and 6. 7uch other docu ents or infor ation in support of the re>uest. :7ec. 6. Presidential .ecree No. )/0+.< 7ec. = of the Presidential .ecree, !hich sets forth the dut$ of the 7ecretar$ of -orei"n Affairs, pertinentl$ provides . . . :)< 9nless it appears to the 7ecretar$ of -orei"n Affairs that the re>uest fails to eet the re>uire ents of this la! and the relevant treat$ or convention, he shall for!ard the re>uest to"ether !ith the related docu ents to the 7ecretar$ of (ustice, !ho shall i ediatel$ desi"nate and authorize an attorne$ in his office to take char"e of the case.

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The above provision sho!s onl$ too clearl$ that the e2ecutive authorit$ "iven the task of evaluatin" the sufficienc$ of the re>uest and the supportin" docu ents is the 7ecretar$ of -orei"n Affairs. 3hat then is the covera"e of this taskL 5n accordance !ith Para"raphs A and *, Article , of the RP;97 E2tradition Treat$, the e2ecutive authorit$ ust ascertain !hether or not the re>uest is supported b$& ). .ocu ents, state ents, or other t$pes of infor ation !hich describe the identit$ and probable location of the person sou"ht4 A. A state ent of the facts of the offense and the procedural histor$ of the case4 *. A state ent of the provisions of the la! describin" the essential ele ents of the offense for !hich e2tradition is re>uested4 6. A state ent of the provisions of la! describin" the punish ent for the offense4 =. A state ent of the provisions of the la! describin" an$ ti e li it on the prosecution or the e2ecution of punish ent for the offense4 0. .ocu ents, state ents, or other t$pes of infor ation specified in para"raph * or para"raph 6 of said Article, as applicable. :Para"raph A, Article ,, Presidential .ecree No. )/0+.< ,. 7uch evidence as, accordin" to the la! of the Re>uested 7tate, !ould provide probable cause for his arrest and co ittal for trial if the offense had been co itted there4 ?. A cop$ of the !arrant or order of arrest issued b$ a Fud"e or other co petent authorit$4 and +. A cop$ of the char"in" docu ent. :Para"raph *, ibid.<

The e2ecutive authorit$ :7ecretar$ of -orei"n Affairs< ust also see to it that the acco pan$in" docu ents received in support of the re>uest had been certified b$ the principal diplo atic or consular officer of the Re>uested 7tate resident in the Re>uestin" 7tate :E bass$ Note No. /=A fro 9. 7. E bass$4 E bass$ Note No. +=)*/+ fro the .epart ent of -orei"n Affairs<. 5n this li"ht, Para"raph *, Article * of the Treat$ provides that 1BeC2tradition shall not be "ranted if the e2ecutive authorit$ of the Re>uested 7tate deter ines that the re>uest is politicall$ otivated, or that the offense is a ilitar$ offense !hich is not punishable under non; ilitar$ penal le"islation.1 "&e E'tradition Petition 9pon a findin" ade b$ the 7ecretar$ of -orei"n Affairs that the e2tradition re>uest and its supportin" docu ents are sufficient and co plete in for and substance, he shall deliver the sa e to the 7ecretar$ of (ustice, !ho shall i ediatel$ desi"nate and authorize an attorne$ in his office to take char"e of the case :Para"raph B)C, 7ection =, P... No. )/0+<. The la!$er desi"nated shall then file a !ritten petition !ith the proper re"ional trial court of the province or cit$, !ith a pra$er that the court take the e2tradition re>uest under consideration :Para"raph BAC, ibid.<. The presidin" Fud"e of the re"ional trial court, upon receipt of the petition for e2tradition, shall, as soon as practicable, issue an order su onin" the prospective e2traditee to appear and to ans!er the petition on the da$ and hour fi2ed in the order. The Fud"e a$ issue a !arrant of arrest if it appears that the i ediate arrest and te porar$ detention of the accused !ill best serve the ends of Fustice :Para"raph B)C, 7ection 0, ibid.<, particularl$ to prevent the fli"ht of the prospective e2traditee. "&e E'tradition (earin) The E2tradition Ea! does not specificall$ indicate !hether the e2tradition proceedin" is cri inal, civil, or a special proceedin". Nevertheless, Para"raph B)C, 7ection + thereof provides that in the hearin" of the e2tradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent !ith the su ar$ nature of the proceedin"s, shall appl$. .urin" the hearin", 7ection ? of the .ecree provides that the attorne$ havin" char"e of the case a$, upon application b$ the Re>uestin" 7tate, represent the latter throu"hout the proceedin"s.

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9pon conclusion of the hearin", the court shall render a decision "rantin" the e2tradition and "ivin" the reasons therefor upon a sho!in" of the e2istence of a *rima +acie case, or dis iss the petition :7ection )/, ibid.<. 7aid decision is appealable to the Court of Appeals, !hose decision shall be final and i ediatel$ e2ecutor$ :7ection )A, ibid.<. The provisions of the Rules of Court "overnin" appeal in cri inal cases in the Court of Appeals shall appl$ in the afore entioned appeal, e2cept for the re>uired )=;da$ period to file brief :7ection )*, ibid.<. The trial court deter ines !hether or not the offense entioned in the petition is e2traditable based on the application of the dual cri inalit$ rule and other conditions entioned in Article A of the RP;97 E2tradition Treat$. The trial court also deter ines !hether or not the offense for !hich e2tradition is re>uested is a political one :Para"raph B)C, Article *, RP;97 E2tradition Treat$<.,-w*&i,.n/t 3ith the fore"oin" abstract of the e2tradition proceedin"s as backdrop, the follo!in" >uer$ presents itself& 3hat is the nature of the role of the .epart ent of (ustice at the evaluation sta"e of the e2tradition proceedin"sL A strict observance of the E2tradition Ea! indicates that the onl$ dut$ of the 7ecretar$ of (ustice is to file the e2tradition petition after the re>uest and all the supportin" papers are for!arded to hi b$ the 7ecretar$ of -orei"n Affairs. 5t is the latter official !ho is authorized to evaluate the e2tradition papers, to assure their sufficienc$, and under Para"raph B*C, Article * of the Treat$, to deter ine !hether or not the re>uest is politicall$ otivated, or that the offense is a ilitar$ offense !hich is not punishable under non; ilitar$ penal le"islation. I*so +acto, as e2pressl$ provided in Para"raph B)C, 7ection = of the E2tradition Ea!, the 7ecretar$ of (ustice has the inisterial dut$ of filin" the e2tradition papers. #o!ever, lookin" at the factual ilieu of the case before us, it !ould appear that there !as failure to abide b$ the provisions of Presidential .ecree No. )/0+. -or !hile it is true that the e2tradition re>uest !as delivered to the .epart ent of -orei"n Affairs on (une ),, )+++, the follo!in" da$ or less than A6 hours later, the .epart ent of (ustice received the re>uest, apparentl$ !ithout the .epart ent of -orei"n Affairs dischar"in" its dut$ of thorou"hl$ evaluatin" the sa e and its acco pan$in" docu ents. The state ent of an assistant secretar$ at the .epart ent of -orei"n Affairs that his .epart ent, in this re"ard, is erel$ actin" as a post office, for !hich reason he si pl$ for!arded the re>uest to the .epart ent of (ustice, indicates the a"nitude of the error of the .epart ent of -orei"n Affairs in

takin" li"htl$ its responsibilities. Thereafter, the .epart ent of (ustice took it upon itself to deter ine the co pleteness of the docu ents and to evaluate the sa e to find out !hether the$ co pl$ !ith the re>uire ents laid do!n in the E2tradition Ea! and the RP;97 E2tradition Treat$. Petitioner ratiocinates in this connection that althou"h the .epart ent of (ustice had no obli"ation to evaluate the e2tradition docu ents, the .epart ent also had to "o over the so as to be able to prepare an e2tradition petition :tsn, Au"ust *), )+++, pp. A6;A=<. Notabl$, it !as also at this sta"e !here private respondent insisted on the follo!in"4 :)< the ri"ht to be furnished the re>uest and the supportin" papers4 :A< the ri"ht to be heard !hich consists in havin" a reasonable period of ti e to oppose the re>uest, and to present evidence in support of the opposition4 and :*< that the evaluation proceedin"s be held in abe$ance pendin" the filin" of private respondent%s opposition to the re>uest. The t!o .epart ents see to have isread the scope of their duties and authorit$, one abdicatin" its po!ers and the other enlar"in" its co ission. The .epart ent of -orei"n Affairs, oreover, has, throu"h the 7olicitor 8eneral, filed a anifestation that it is adoptin" the instant petition as its o!n, indirectl$ conve$in" the essa"e that if it !ere to evaluate the e2tradition re>uest, it !ould not allo! private respondent to participate in the process of evaluation. Plainl$ then, the record cannot support the presu ption of re"ularit$ that the .epart ent of -orei"n Affairs thorou"hl$ revie!ed the e2tradition re>uest and supportin" docu ents and that it arrived at a !ell;founded Fud" ent that the re>uest and its anne2ed docu ents satisf$ the re>uire ents of la!. The 7ecretar$ of (ustice, e inent as he is in the field of la!, could not privatel$ revie! the papers all b$ hi self. #e had to officiall$ constitute a panel of attorne$s. #o! then could the .-A 7ecretar$ or his undersecretar$, in less than one da$, ake the ore authoritative deter inationL The evaluation process, Fust like the e2tradition proceedin"s proper, belon"s to a class b$ itself. 5t is sui )eneris. 5t is not a cri inal investi"ation, but it is also erroneous to sa$ that it is purel$ an e2ercise of inisterial functions. At such sta"e, the e2ecutive authorit$ has the po!er& :a< to ake a technical assess ent of the co pleteness and sufficienc$ of the e2tradition papers4 :b< to outri"htl$ den$ the re>uest if on its face and on the face of the supportin" docu ents the cri es indicated are not e2traditable4 and :c< to ake a deter ination !hether or not the re>uest is politicall$ otivated, or that the offense is a ilitar$ one !hich is not punishable under non; ilitar$ penal le"islation :tsn, Au"ust *), )+++, pp. A?;A+4 Article A M and Para"raph B*C, Article *, RP;97 E2tradition Treat$<. #ence, said process a$ be characterized as an investi"ative or in>uisitorial process in contrast to a

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proceedin" conducted in the e2ercise of an ad inistrative bod$%s >uasi; Fudicial po!er. 5n ad inistrative la!, a >uasi;Fudicial proceedin" involves& :a< takin" and evaluation of evidence4 :b< deter inin" facts based upon the evidence presented4 and :c< renderin" an order or decision supported b$ the facts proved :.e Eeon, Ad inistrative Ea!& Te2t and Cases, )++* ed., p. )+?, citin" Mor"an vs. 9nited 7tates, */6 9.7. )<. 5n>uisitorial po!er, !hich is also kno!n as e2a inin" or investi"ator$ po!er, is one or the deter inative po!ers of an ad inistrative bod$ !hich better enables it to e2ercise its >uasi;Fudicial authorit$ :Cruz, Phil. Ad inistrative Ea!, )++0 ed., p. A0<. This po!er allo!s the ad inistrative bod$ to inspect the records and pre ises, and investi"ate the activities, of persons or entities co in" under its Furisdiction :Ibid., p. A,<, or to re>uire disclosure of infor ation b$ eans or accounts, records, reports, testi on$ of !itnesses, production of docu ents, or other!ise :.e Eeon, op. cit., p. 06<. The po!er of investi"ation consists in "atherin", or"anizin", and anal$zin" evidence, !hich is a useful aid or tool in an ad inistrative a"enc$%s perfor ance of its rule; akin" or >uasi;Fudicial functions. Notabl$, investi"ation is indispensable to prosecution. 5n Ru*erto v. "orres :)// Phil. )/+? B)+=,C, unreported<, the Court had occasion to rule on the functions of an investi"ator$ bod$ !ith the sole po!er of investi"ation. 5t does not e2ercise Fudicial functions and its po!er is li ited to investi"atin" the facts and akin" findin"s in respect thereto. The Court laid do!n the test of deter inin" !hether an ad inistrative bod$ is e2ercisin" Fudicial functions or erel$ investi"ator$ functions& AdFudication si"nifies the e2ercise of po!er and authorit$ to adFudicate upon the ri"hts and obli"ations of the parties before it. #ence, if the onl$ purpose for investi"ation is to evaluate evidence sub itted before it based on the facts and circu stances presented to it, and if the a"enc$ is not authorized to ake a final pronounce ent affectin" the parties, then there is an absence of Fudicial discretion and Fud" ent. The above description in Ru*erto applies to an ad inistrative bod$ authorized to evaluate e2tradition docu ents. The bod$ has no po!er to adFudicate in re"ard to the ri"hts and obli"ations of both the Re>uestin" 7tate and the prospective e2traditee. 5ts onl$ po!er is to deter ine !hether the papers co pl$ !ith the re>uire ents of the la! and the treat$ and, therefore, sufficient to be the basis of an e2tradition petition. 7uch findin" is thus erel$ initial and not final. The bod$ has no po!er to deter ine !hether or not the e2tradition should be effected. That is the role of the

court. The bod$%s po!er is li ited to an initial findin" of !hether or not the e2tradition petition can be filed in court. 5t is to be noted, ho!ever, that in contrast to ordinar$ investi"ations, the evaluation procedure is characterized b$ certain peculiarities. Pri aril$, it sets into otion the !heels of the e2tradition process. 9lti atel$, it a$ result in the deprivation of libert$ of the prospective e2traditee. This deprivation can be effected at t!o sta"es& 0irst, the provisional arrest of the prospective e2traditee pendin" the sub ission of the re>uest. This is so because the Treat$ provides that in case of ur"enc$, a contractin" part$ a$ re>uest the provisional arrest of the person sou"ht pendin" presentation of the re>uest :Para"raph B)C, Article +, RP;97 E2tradition Treat$<, but he shall be auto aticall$ dischar"ed after 0/ da$s if no re>uest is sub itted :Para"raph 6<. Presidential .ecree No. )/0+ provides for a shorter period of A/ da$s after !hich the arrested person could be dischar"ed :7ection A/BdC<. Eo"icall$, althou"h the E2tradition Ea! is silent on this respect, the provisions onl$ ean that once a re>uest is for!arded to the Re>uested 7tate, the prospective e2traditee a$ be continuousl$ detained, or if not, subse>uentl$ rearrested :Para"raph B=C, Article +, RP;97 E2tradition Treat$<, for he !ill onl$ be dischar"ed if no re>uest is sub itted. Practicall$, the purpose of this detention is to prevent his possible fli"ht fro the Re>uested 7tate. Second, the te porar$ arrest of the prospective e2traditee durin" the pendenc$ of the e2tradition petition in court :7ection 0, Presidential .ecree No. )/0+<. Clearl$, there is an i pendin" threat to a prospective e2traditee%s libert$ as earl$ as durin" the evaluation sta"e. 5t is not onl$ an i a"ined threat to his libert$, but a ver$ i inent one. Because of these possible conse>uences, !e conclude that the evaluation process is akin to an ad inistrative a"enc$ conductin" an investi"ative proceedin", the conse>uences of !hich are essentiall$ cri inal since such technical assess ent sets off or co ences the procedure for, and ulti atel$, the deprivation of libert$ of a prospective e2traditee. As described b$ petitioner hi self, this is a 1tool1 for cri inal la! enforce ent :p. ,?,Rollo<. 5n essence, therefore, the evaluation process partakes of the nature of a cri inal investi"ation. 5n a nu ber of cases, !e had occasion to ake available to a respondent in an ad inistrative case or investi"ation certain constitutional ri"hts that are ordinaril$ available onl$ in cri inal prosecutions. -urther, as pointed out b$ Mr. (ustice Mendoza durin" the oral ar"u ents, there are ri"hts for erl$ available onl$ at the trial sta"e that had been advanced to an earlier sta"e in the proceedin"s, such as the ri"ht to counsel and the ri"ht a"ainst self;incri ination :tsn, Au"ust *), )+++, p. )*=4

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Escobedo vs. 5llinois, *,? 9.7. 6,?4 8ideon vs. 3ain!ri"ht, *,A 9.7. **=4 Miranda vs. Arizona, *?6 9.7. 6*0<. 5n Pascual v. 1oard o+ Medical E'aminers :A? 7CRA *66 B)+0+C<, !e held that the ri"ht a"ainst self;incri ination under 7ection ),, Article 555 of the )+?, Constitution !hich is ordinaril$ available onl$ in cri inal prosecutions, e2tends to ad inistrative proceedin"s !hich possess a cri inal or penal aspect, such as an ad inistrative investi"ation of a licensed ph$sician !ho is char"ed !ith i oralit$, !hich could result in his loss of the privile"e to practice edicine if found "uilt$. The Court, citin" the earlier case of !abal vs. 2a*unan :0 7CRA )/=+ B)+0AC<, pointed out that the revocation of one%s license as a edical practitioner, is an even "reater deprivation than forfeiture of propert$. !abal vs. 2a*unan :su*ra< involved an ad inistrative char"e of une2plained !ealth a"ainst a respondent !hich !as filed under Republic Act No. )*,+, or the Anti;8raft Ea!. A"ain, !e therein ruled that since the investi"ation a$ result in forfeiture of propert$, the ad inistrative proceedin"s are dee ed cri inal or penal, and such forfeiture partakes the nature of a penalt$. There is also the earlier case of Almeda Sr. vs. Pere3 := 7CRA +,/ B)+0AC<, !here the Court, citin" A erican Furisprudence, laid do!n the test to deter ine !hether a proceedin" is civil or cri inal& 5f the proceedin" is under a statute such that if an indict ent is presented the forfeiture can be included in the cri inal case, such proceedin" is cri inal in nature, althou"h it a$ be civil in for 4 and !here it ust be "athered fro the statute that the action is eant to be cri inal in its nature, it cannot be considered as civil. 5f, ho!ever, the proceedin" does not involve the conviction of the !ron"doer for the offense char"ed, the proceedin" is civil in nature. The cases entioned above refer to an i pendin" threat of deprivation of one%s propert$ or propert$ ri"ht. No less is this true, but even ore so in the case before us, involvin" as it does the possible deprivation of libert$, !hich, based on the hierarch$ of constitutionall$ protected ri"hts, is placed second onl$ to life itself and enFo$s precedence over propert$, for !hile forfeited propert$ can be returned or replaced, the ti e spent in incarceration is irretrievable and be$ond reco pense. B$ co parison, a favorable action in an e2tradition re>uest e2poses a person to eventual e2tradition to a forei"n countr$, thus salientl$ e2hibitin" the cri inal or penal aspect of the process. 5n this sense, the evaluation procedure is akin to a preli inar$ investi"ation since both procedures a$ have the sa e result D the arrest and i prison ent of the respondent or the person char"ed. 7i ilar to the evaluation sta"e of e2tradition

proceedin"s, a preli inar$ investi"ation, !hich a$ result in the filin" of an infor ation a"ainst the respondent, can possibl$ lead to his arrest, and to the deprivation of his libert$. Petitioner%s reliance on 4ri)&t vs. !ourt o+ A**eals :A*= 7CRA A6) B)++AC< :p. ?, petitioner%s Me orandu < that the e2tradition treat$ is neither a piece of cri inal le"islation nor a cri inal procedural statute is not !ell; taken.4ri)&t is not authorit$ for petitioner%s conclusion that his preli inar$ processin" is not akin to a preli inar$ investi"ation. The characterization of a treat$ in 4ri)&t !as in reference to the applicabilit$ of the prohibition a"ainst an e' *ost +acto la!. 5t had nothin" to do !ith the denial of the ri"ht to notice, infor ation, and hearin". As earl$ as )??6, the 9nited 7tates 7upre e Court ruled that 1an$ le"al proceedin" enforced b$ public authorit$, !hether sanctioned b$ a"e or custo , or ne!l$ devised in the discretion of the le"islative po!er, in furtherance of the "eneral public "ood, !hich re"ards and preserved these principles of libert$ and Fustice, ust be held to be due process of la!1 :#urtado vs. California, ))/ 9.7. =)0<. Co pliance !ith due process re>uire ents cannot be dee ed non;co pliance !ith treat$ co it ents. The 9nited 7tates and the Philippines share a utual concern about the suppression and punish ent of cri e in their respective Furisdictions. At the sa e ti e, both 7tates accord co on due process protection to their respective citizens. The due process clauses in the A erican and Philippine Constitutions are not onl$ !orded in e2actl$ identical lan"ua"e and ter inolo"$, but ore i portantl$, the$ are alike in !hat their respective 7upre e Courts have e2pounded as the spirit !ith !hich the provisions are infor ed and i pressed, the elasticit$ in their interpretation, their d$na ic and resilient character !hich ake the capable of eetin" ever$ odern proble , and their havin" been desi"ned fro earliest ti e to the present to eet the e2i"encies of an undefined and e2pandin" future. The re>uire ents of due process are interpreted in both the 9nited 7tates and the Philippines as not den$in" to the la! the capacit$ for pro"ress and i prove ent. To!ard this effect and in order to avoid the confines of a le"al straitFacket, the courts instead prefer to have the eanin" of the due process clause 1"raduall$ ascertained b$ the process of inclusion and e2clusion in the course of the decisions of cases as the$ arise1 :T!inin" vs. Ne! (erse$, A)) 9.7. ,?<. Capsulized, it refers to 1the e bodi ent of the sportin" idea of fair pla$1 :Er ita;Malate #otel and Motel '!ner%s Association vs. Cit$ Ma$or of Manila, A/ 7CRA ?6+ B)+0,C<. 5t relates to certain i utable principles of

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Fustice !hich inhere in the ver$ idea of free "overn ent :#olden vs. #ard$, )0+ 9.7. *00<. .ue process is co prised of t!o co ponents D substantive due process !hich re>uires the intrinsic validit$ of the la! in interferin" !ith the ri"hts of the person to his life, libert$, or propert$, and procedural due process !hich consists of the t!o basic ri"hts of notice and hearin", as !ell as the "uarantee of bein" heard b$ an i partial and co petent tribunal :Cruz, Constitutional Ea!, )++* Ed., pp. )/A;)/0<. True to the andate of the due process clause, the basic ri"hts of notice and hearin" pervade not onl$ in cri inal and civil proceedin"s, but in ad inistrative proceedin"s as !ell. Non;observance of these ri"hts !ill invalidate the proceedin"s. 5ndividuals are entitled to be notified of an$ pendin" case affectin" their interests, and upon notice, the$ a$ clai the ri"ht to appear therein and present their side and to refute the position of the opposin" parties :Cruz, Phil. Ad inistrative Ea!, )++0 ed., p. 06<. 5n a preli inar$ investi"ation !hich is an ad inistrative investi"ator$ proceedin", 7ection *, Rule ))A of the Rules of Court "uarantees the respondent%s basic due process ri"hts, "rantin" hi the ri"ht to be furnished a cop$ of the co plaint, the affidavits, and other supportin" docu ents, and the ri"ht to sub it counter;affidavits and other supportin" docu ents !ithin ten da$s fro receipt thereof. Moreover, the respondent shall have the ri"ht to e2a ine all other evidence sub itted b$ the co plainant. These t!in ri"hts instances, such as& a$, ho!ever, be considered dispensable in certain

a delin>uent ta2pa$er, and the replace ent of a te porar$ appointee4 and *. 3here the t!in ri"hts have previousl$ been offered but the ri"ht to e2ercise the had not been clai ed. Appl$in" the above principles to the case at bar, the >uer$ a$ be asked& .oes the evaluation sta"e of the e2tradition proceedin"s fall under an$ of the described situations entioned aboveL Eet us take a brief look at the nature of A erican e2tradition proceedin"s !hich are >uite note!orth$ considerin" that the subFect treat$ involves the 9.7. 8overn ent. A erican Furisprudence distin"uishes bet!een interstate rendition or e2tradition !hich is based on the E2tradition Clause in the 9.7. Constitution :Art. 5@, NA cl A<, and international e2tradition proceedin"s. 5n interstate rendition or e2tradition, the "overnor of the as$lu state has the dut$ to deliver the fu"itive to the de andin" state. The E2tradition Clause and the i ple entin" statute are "iven a liberal construction to carr$ out their anifest purpose, !hich is to effect the return as s!iftl$ as possible of persons for trial to the state in !hich the$ have been char"ed !ith cri e :*)A Am 5ur Ad ,=6;,==<. 5n order to achieve e2tradition of an alle"ed fu"itive, the re>uisition papers or the de and ust be in proper for , and all the ele ents or Furisdictional facts essential to the e2tradition ust appear on the face of the papers, such as the alle"ation that the person de anded !as in the de andin" state at the ti e the offense char"ed !as co itted, and that the person de anded is char"ed !ith the co ission of the cri e or that prosecution has been be"un in the de andin" state before so e court or a"istrate :*= C.(.7. 6/0;6/,<. The e2tradition docu ents are then filed !ith the "overnor of the as$lu state, and ust contain such papers and docu ents prescribed b$ statute, !hich essentiall$ include a cop$ of the instru ent char"in" the person de anded !ith a cri e, such as an indict ent or an affidavit ade before a a"istrate. 7tatutor$ re>uire ents !ith respect to said char"in" instru ent or papers are andator$ since said papers are necessar$ in order to confer Furisdiction on the "overn ent of the as$lu state to effect e2tradition :*= C.(.7. 6/?;6)/<. A statutor6 *rovision requirin) du*licate co*ies o+ t&e indictment, in+ormation, a++idavit, or 7ud)ment o+ conviction or sentence and ot&er instruments accom*an6in) t&e demand or requisitions be +urnis&ed and delivered to t&e +u)itive or &is attorne6 is director6. (owever, t&e ri)&t bein) suc& a basic one &as been &eld to be a ri)&t mandator6 on demand :Ibid., p. 6)/, citin" E' *arte Moore,

). 5n proceedin" !here there is an ur"ent need for i ediate action, like the su ar$ abate ent of a nuisance *er se :Article ,/6, Civil Code<, the preventive suspension of a public servant facin" ad inistrative char"es :7ection 0*, Eocal 8overn ent Code, B.P. Bl". **,<, the padlockin" of filth$ restaurants or theaters sho!in" obscene ovies or like establish ents !hich are i ediate threats to public health and decenc$, and the cancellation of a passport of a person sou"ht for cri inal prosecution4 A. 3here there is tentativeness of ad inistrative action, that is, !here the respondent is not precluded fro enFo$in" the ri"ht to notice and hearin" at a later ti e !ithout preFudice to the person affected, such as the su ar$ distraint and lev$ of the propert$ of

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A=0 7.3. Ad )/*, )=? Te2. Cr. 6/, and E' *arte Tucker, Cr., *A6, 7.3.Ad ?=*<. 5n international proceedin"s, e2tradition treaties "enerall$ provide for the presentation to the e2ecutive authorit$ of the Re>uested 7tate of a re>uisition or de and for the return of the alle"ed offender, and the desi"nation of the particular officer havin" authorit$ to act in behalf of the de andin" nation :*)A Am 5ur Ad ?)=<. 5n petitioner%s e orandu filed on 7epte ber )=, )+++, he attached thereto a letter dated 7epte ber )*, )+++ fro the Cri inal .ivision of the 9.7. .epart ent of (ustice, su arizin" the 9.7. e2tradition procedures and principles, !hich are basicall$ "overned b$ a co bination of treaties :!ith special reference to the RP;97 E2tradition Treat$<, federal statutes, and Fudicial decisions, to !it& ). All re>uests for e2tradition are trans itted throu"h the diplo atic channel. 5n ur"ent cases, re>uests for the provincial arrest of an individual a$ be ade directl$ b$ the Philippine .epart ent of (ustice to the 9.7. .epart ent of (ustice, and vice;versa. 5n the event of a provisional arrest, a for al re>uest for e2tradition is trans itted subse>uentl$ throu"h the diplo atic channel. A. The .epart ent of 7tate for!ards the inco in" Philippine e2tradition re>uest to the .epart ent of (ustice. Before doin" so, the .epart ent of 7tate prepares a declaration confir in" that a for al re>uest has been ade, that the treat$ is in full force and effect, that under Article ), thereof the parties provide reciprocal le"al representation in e2tradition proceedin"s, that the offenses are covered as e2traditable offenses under Article A thereof, and that the docu ents have been authenticated in accordance !ith the federal statute that ensures ad issibilit$ at an$ subse>uent e2tradition hearin". *. A Fud"e or a"istrate Fud"e is authorized to issue a !arrant for the arrest of the prospective e2traditee :)? 9.7.C. N*)?6<. 7aid Fud"e or a"istrate is authorized to hold a hearin" to consider the evidence offered in support of the e2tradition re>uest :Ibid.< 6. At the hearin", the arrested is e2traditable deter ine that :a< it Furisdiction to conduct court ust deter ine to the forei"n countr$. has Furisdiction over the hearin"4 :b< the !hether the person The court ust also the defendant and defendant is bein"

sou"ht for offenses for !hich the applicable treat$ per its e2tradition4 and :c< there is probable cause to believe that the defendant is the person sou"ht and that he co itted the offenses char"ed :Ibid.< =. The Fud"e or a"istrate Fud"e is vested !ith Furisdiction to certif$ e2traditabilit$ after havin" received a 1co plaint ade under oath, char"in" an$ person found !ithin his Furisdiction1 !ith havin" co itted an$ of the cri es provided for b$ the "overnin" treat$ in the countr$ re>uestin" e2tradition :Ibid.< B5n this re"ard, it is noted that a lon" line of A erican decisions pronounce that international e2tradition proceedin"s partake of the character of a preli inar$ e2a ination before a co ittin" a"istrate, rather than a trial of the "uilt or innocence of the alle"ed fu"itive :*)A Am 5ur Ad ?A0<.C 0. 5f the court decides that the ele ents necessar$ for e2tradition are present, it incorporates its deter inations in factual findin"s and conclusions of la! and certifies the person%s e2traditabilit$. The court then for!ards this certification of e2traditabilit$ to the .epart ent of 7tate for disposition b$ the 7ecretar$ of 7tate. The ulti ate decision !hether to surrender an individual rests !ith the 7ecretar$ of 7tate :)? 9.7.C. N*)?0<. ,. The subFect of an e2tradition re>uest a$ not liti"ate >uestions concernin" the otives of the re>uestin" "overn ent in seekin" his e2tradition. #o!ever, a person facin" e2tradition a$ present !hatever infor ation he dee s relevant to the 7ecretar$ of 7tate, !ho akes the final deter ination !hether to surrender an individual to the forei"n "overn ent concerned. -ro the fore"oin", it a$ be observed that in the 9nited 7tates, e2tradition be"ins and ends !ith one entit$ D the .epart ent of 7tate D !hich has the po!er to evaluate the re>uest and the e2tradition docu ents in the be"innin", and, in the person of the 7ecretar$ of 7tate, the po!er to act or not to act on the court%s deter ination of e2traditabilit$. 5n the Philippine settin", it is the .epart ent of -orei"n Affairs !hich should ake the initial evaluation of the re>uest, and havin" satisfied itself on the points earlier entioned :see pp. )/;)A<, then for!ards the re>uest to the .epart ent of (ustice for the preparation and filin" of the petition for e2tradition. 7adl$, ho!ever, the .epart ent of -orei"n Affairs, in the instant case, perfunctoril$ turned over the re>uest to the .epart ent of (ustice !hich has taken over the task of evaluatin" the re>uest as !ell as thereafter, if so !arranted, preparin", filin", and prosecutin" the petition for e2tradition.

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Private respondent asks !hat preFudice !ill be caused to the 9.7. 8overn ent should the person sou"ht to be e2tradited be "iven due process ri"hts b$ the Philippines in the evaluation sta"e. #e e phasizes that petitioner%s pri ar$ concern is the possible dela$ in the evaluation process. 3e a"ree !ith private respondent%s citation of an A erican 7upre e Court rulin"& The establish ent of pro pt efficacious procedures to achieve le"iti ate state ends is a proper state interest !orth$ of co"nizance in constitutional adFudication. 1ut t&e !onstitution reco)ni3es &i)&er values t&an s*eed and e++icienc6. 5ndeed, one i"ht fairl$ sa$ of the Bill of Ri"hts in "eneral, and the .ue Process Clause, in particular, that the$ !ere desi)ned to *rotect t&e +ra)ile values o+ a vulnerable citi3enr6 +rom t&e overbearin) concern +or e++icienc6 and e++icac6 t&at ma6 c&aracteri3e *raisewort&6 )overnment o++icials no less, and perhaps ore, than ediocre ones. :7tanle$ vs. 5llinois, 6/6 9.7. 06=, 0=0< The 9nited 7tates, no doubt, shares the sa e interest as the Philippine 8overn ent that no ri"ht D that of libert$ D secured not onl$ b$ the Bills of Ri"hts of the Philippines Constitution but of the 9nited 7tates as !ell, is sacrificed at the altar of e2pedienc$. :pp. 6/;6), Private Respondent%s Me orandu .< 5n the Philippine conte2t, this Court%s rulin" is invoked& 'ne of the basic principles of the de ocratic s$ste is that !here the ri"hts of the individual are concerned, the end does not Fustif$ the eans. 5t is not enou"h that there be a valid obFective4 it is also necessar$ that the eans e plo$ed to pursue it be in keepin" !ith the Constitution. Mere e2pedienc$ !ill not e2cuse constitutional shortcuts. There is no >uestion that not even the stron"est oral conviction or the ost ur"ent public need, subFect onl$ to a fe! notable e2ceptions, !ill e2cuse the b$passin" of an individual%s ri"hts. 5t is no e2a""eration to sa$ that a person invokin" a ri"ht "uaranteed under Article 555 of the Constitution is a aForit$ of one even as a"ainst the rest of the nation !ho !ould den$ hi that ri"ht :Association of 7 all Eando!ners in the Philippines, 5nc. vs. 7ecretar$ of A"rarian Refor , ),= 7CRA *6*, *,=;*,0 B)+?+C<.

There can be no dispute over petitioner%s ar"u ent that e2tradition is a tool of cri inal la! enforce ent. To be effective, re>uests for e2tradition or the surrender of accused or convicted persons ust be processed e2peditiousl$. Nevertheless, accelerated or fast;tracked proceedin"s and adherence to fair procedures are, ho!ever, not al!a$s inco patible. The$ do not al!a$s clash in discord. 7u ar$ does not ean precipitous haste. 5t does not carr$ a disre"ard of the basic principles inherent in 1ordered libert$.1 5s there reall$ an ur"ent need for i ediate action at the evaluation sta"eL At that point, there is no e2traditee $et in the strict sense of the !ord. E2tradition a$ or a$ not occur. 5n interstate e2tradition, the "overnor of the as$lu state a$ not, in the absence of andator$ statute, be co pelled to act favorabl$ :*, C.(.7. *?,< since after a close evaluation of the e2tradition papers, he a$ hold that federal and statutor$ re>uire ents, !hich are si"nificantl$ Furisdictional, have not been et :*) Am 5ur Ad ?)+<. 7i ilarl$, under an e2tradition treat$, the e2ecutive authorit$ of the re>uested state has the po!er to den$ the behest fro the re>uestin" state. Accordin"l$, if after a careful e2a ination of the e2tradition docu ents the 7ecretar$ of -orei"n Affairs finds that the re>uest fails to eet the re>uire ents of the la! and the treat$, he shall not for!ard the re>uest to the .epart ent of (ustice for the filin" of the e2tradition petition since non; co pliance !ith the aforesaid re>uire ents !ill not vest our "overn ent !ith Furisdiction to effect the e2tradition. 5n this li"ht, it should be observed that the .epart ent of (ustice e2erted notable efforts in assurin" co pliance !ith the re>uire ents of the la! and the treat$ since it even infor ed the 9.7. 8overn ent of certain proble s in the e2tradition papers :such as those that are in 7panish and !ithout the official En"lish translation, and those that are not properl$ authenticated<. 5n fact, petitioner even ad its that consultation eetin"s are still supposed to take place bet!een the la!$ers in his .epart ent and those fro the 9.7. (ustice .epart ent. 3ith the eticulous nature of the evaluation, !hich cannot Fust be co pleted in an abbreviated period of ti e due to its intricacies, ho! then can !e sa$ that it is a proceedin" that ur"entl$ necessitates i ediate and pro pt action !here notice and hearin" can be dispensed !ithL 3orth$ of in>uir$ is the issue of !hether or not there is tentativeness of ad inistrative action. 5s private respondent precluded fro enFo$in" the ri"ht to notice and hearin" at a later ti e !ithout preFudice to hi L #ere lies the peculiarit$ and deviant characteristic of the evaluation procedure. 'n one hand there is $et no e2traditee, but ironicall$ on the other, it results in an ad inistrative if adverse to the person involved, a$ cause his i ediate incarceration. The "rant of the re>uest shall lead to the filin" of the

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e2tradition petition in court. The 1accused1 :as 7ection ABcC of Presidential .ecree No. )/0+ calls hi <, faces the threat of arrest, not onl$ after the e2tradition petition is filed in court, but even durin" the evaluation proceedin" itself b$ virtue of the provisional arrest allo!ed under the treat$ and the i ple entin" la!. The preFudice to the 1accused1 is thus blatant and anifest. Plainl$, the notice and hearin" re>uire ents of ad inistrative due process cannot be dispensed !ith and shelved aside. Apart fro the due process clause of the Constitution, private respondent like!ise invokes 7ection , of Article 555 !hich reads& 7ec. ,. The ri"ht of the people to infor ation on atters of public concern shall be reco"nized. Access to official records, and to docu ents and papers pertainin" to official acts, transactions, or decisions, as !ell as to "overn ent research data used as basis for polic$ develop ent, shall be afforded the citizen, subFect to such li itations as a$ be provided b$ la!. The above provision "uarantees political ri"hts !hich are available to citizens of the Philippines, na el$& :)< the ri"ht to infor ation on atters of public concern, and :A< the corollar$ ri"ht of access to official records docu ents. The "eneral ri"ht "uaranteed b$ said provision is the ri"ht to infor ation on atters of public concern. 5n its i ple entation, the ri"ht of access to official records is like!ise conferred. These co"nate or related ri"hts are 1subFect to li itations as a$ be provided b$ la!1 :Bernas, The )+?, Phil. Constitution A Revie!er;Pri er, )++, ed., p. )/6< and rel$ on the pre ise that ulti atel$ it is an infor ed and critical public opinion !hich alone can protect the values of de ocratic "overn ent :Ibid.<. Petitioner ar"ues that the atters covered b$ private respondent%s letter; re>uest dated (ul$ ), )+++ do not fall under the "uarantee of the fore"oin" provision since the atters contained in the docu ents re>uested are not of public concern. 'n the other hand, private respondent ar"ues that the distinction bet!een atters vested !ith public interest and atters !hich are of purel$ private interest onl$ beco es aterial !hen a third person, !ho is not directl$ affected b$ the atters re>uested, invokes the ri"ht to infor ation. #o!ever, if the person invokin" the ri"ht is the one directl$ affected thereb$, his ri"ht to infor ation beco es absolute. The concept of atters of public concerns escapes e2act definition. 7trictl$ speakin", ever$ act of a public officer in the conduct of the "overn ental

process is a atter of public concern :Bernas, The )+?, Constitution of the Republic of the Philippines, )++0 ed., p. **0<. This concept e braces a broad spectru of subFects !hich the public a$ !ant to kno!, either because these directl$ affect their lives or si pl$ because such atters arouse the interest of an ordinar$ citizen :Ee"aspi v. Civil 7ervice Co ission, )=/ 7CRA =*/ B)+?,C<. #ence, the real part$ in interest is the people and an$ citizen has 1standin"1. 3hen the individual hi self is involved in official "overn ent action because said action has a direct bearin" on his life, and a$ either cause hi so e kind of deprivation or inFur$, he actuall$ invokes the basic ri"ht to be notified under 7ection ) of the Bill of Ri"hts and not e2actl$ the ri"ht to infor ation on atters of public concern. As to an accused in a cri inal proceedin", he invokes 7ection )6, particularl$ the ri"ht to be infor ed of the nature and cause of the accusation a"ainst hi . The ri"ht to infor ation is i ple ented b$ the ri"ht of access to infor ation !ithin the control of the "overn ent :1ernas, The )+?, Constitution of the Republic of the Philippines, )++0 ed., p. **,<. 7uch infor ation a$ be contained in official records, and in docu ents and papers pertainin" to official acts, transactions, or decisions. 5n the case at bar, the papers re>uested b$ private respondent pertain to official "overn ent action fro the 9.7. 8overn ent. No official action fro our countr$ has $et been taken. Moreover, the papers have so e relation to atters of forei"n relations !ith the 9.7. 8overn ent. Conse>uentl$, if a third part$ invokes this constitutional provision, statin" that the e2tradition papers are atters of public concern since the$ a$ result in the e2tradition of a -ilipino, !e are afraid that the balance ust be tilted, at such particular ti e, in favor of the interests necessar$ for the proper functionin" of the "overn ent. .urin" the evaluation procedure, no official "overn ental action of our o!n "overn ent has as $et been done4 hence the invocation of the ri"ht is pre ature. Eater, and in contrast, records of the e2tradition hearin" !ould alread$ fall under atters of public concern, because our "overn ent b$ then shall have alread$ ade an official decision to "rant the e2tradition re>uest. The e2tradition of a fello! -ilipino !ould be forthco in". 3e no! pass upon the final issue pertinent to the subFect atter of the instant controvers$& 3ould private respondent%s entitle ent to notice and hearin" durin" the evaluation sta"e of the proceedin"s constitute a breach of the le"al duties of the Philippine 8overn ent under the RP;E2tradition Treat$L Assu in" the ans!er is in the affir ative, is there reall$ a conflict bet!een the treat$ and the due process clause in the ConstitutionL

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-irst and fore ost, let us cate"oricall$ sa$ that this is not the proper ti e to pass upon the constitutionalit$ of the provisions of the RP;97 E2tradition Treat$ nor the E2tradition Ea! i ple entin" the sa e. 3e li it ourselves onl$ to the effect of the "rant of the basic ri"hts of notice and hearin" to private respondent on forei"n relations. The rule of *acta sunt servanda, one of the oldest and ost funda ental a2i s of international la!, re>uires the parties to a treat$ to keep their a"ree ent therein in "ood faith. The observance of our countr$%s le"al duties under a treat$ is also co pelled b$ 7ection A, Article 55 of the Constitution !hich provides that 1BtChe Philippines renounces !ar as an instru ent of national polic$, adopts the "enerall$ accepted principles of international la! as part of the la! of the land, and adheres to the polic$ of peace, e>ualit$, Fustice, freedo , cooperation and a it$ !ith nations.1 9nder the doctrine of incorporation, rules of international la! for part of the la! of the and land no further le"islative action is needed to ake such rules applicable in the do estic sphere :7alon"a M Jap, Public 5nternational Ea!, )++A ed., p. )A<. The doctrine of incorporation is applied !henever unicipal tribunals :or local courts< are confronted !ith situations in !hich there appears to be a conflict bet!een a rule of international la! and the provisions of the constitution or statute of the local state. Efforts should first be e2erted to har onize the , so as to "ive effect to both since it is to be presu ed that unicipal la! !as enacted !ith proper re"ard for the "enerall$ accepted principles of international la! in observance of the observance of the 5ncorporation Clause in the above;cited constitutional provision :!ru3, Philippine Political Ea!, )++0 ed., p. ==<. 5n a situation, ho!ever, !here the conflict is irreconcilable and a choice has to be ade bet!een a rule of international la! and unicipal la!, Furisprudence dictates that unicipal la! should be upheld b$ the unicipal courts :5chon" vs. #ernandez, )/) Phil. ))== B)+=,C4 8onzales vs. #echanova, + 7CRA A*/ B)+0*C4 5n re& 8arcia, A 7CRA +?6 B)+0)C< for the reason that such courts are or"ans of unicipal la! and are accordin"l$ bound b$ it in all circu stances :7alon"a M Jap, o*. cit., p. )*<. The fact that international la! has been ade part of the la! of the land does not pertain to or i pl$ the pri ac$ of international la! over national or unicipal la! in the unicipal sphere. The doctrine of incorporation, as applied in ost countries, decrees that rules of international la! are "iven e>ual standin" !ith, but are not superior to, national le"islative enact ents. Accordin"l$, the principle le' *osterior dero)at *riori takes effect D a treat$ a$ repeal a statute and a statute a$ repeal a treat$. 5n states !here the constitution is the hi"hest la! of the land, such as the Republic of the Philippines, both statutes and treaties a$ be invalidated if the$ are in conflict !ith the constitution :Ibid.<.

5n the case at bar, is there reall$ a conflict bet!een international la! and unicipal or national la!L En contrario, these t!o co ponents of the la! of the land are not pined a"ainst each other. There is no occasion to choose !hich of the t!o should be upheld. 5nstead, !e see a void in the provisions of the RP;97 E2tradition Treat$, as i ple ented b$ Presidential .ecree No. )/0+, as re"ards the basic due process ri"hts of a prospective e2traditee at the evaluation sta"e of e2tradition proceedin"s. -ro the procedures earlier abstracted, after the filin" of the e2tradition petition and durin" the Fudicial deter ination of the propriet$ of e2tradition, the ri"hts of notice and hearin" are clearl$ "ranted to the prospective e2traditee. #o!ever, prior thereto, the la! is silent as to these ri"hts. Reference to the 9.7. e2tradition procedures also anifests this silence. Petitioner interprets this silence as unavailabilit$ of these ri"hts. Conse>uentl$, he describes the evaluation procedure as an 1 e' *arte technical assess ent1 of the sufficienc$ of the e2tradition re>uest and the supportin" docu ents. 3e disa"ree. 5n the absence of a la! or principle of la!, !e ust appl$ the rules of fair pla$. An application of the basic t!in due process ri"hts of notice and hearin" !ill not "o a"ainst the treat$ or the i ple entin" la!. Neither the Treat$ nor the E2tradition Ea! precludes these ri"hts fro a prospective e2traditee. 7i ilarl$, A erican Furisprudence and procedures on e2tradition pose no proscription. 5n fact, in interstate e2tradition proceedin"s as e2plained above, the prospective e2traditee a$ even re>uest for copies of the e2tradition docu ents fro the "overnor of the as$lu state, and if he does, his ri"ht to be supplied the sa e beco es a de andable ri"ht :*= C.(.7. 6)/<. Petitioner contends that the 9nited 7tates re>uested the Philippine 8overn ent to prevent unauthorized disclosure of confidential infor ation. #ence, the secrec$ surroundin" the action of the .epart ent of (ustice Panel of Attorne$s. The confidentialit$ ar"u ent is, ho!ever, overturned b$ petitioner%s revelation that ever$thin" it refuses to ake available at this sta"e !ould be obtainable durin" trial. The .epart ent of (ustice states that the 9.7. .istrict Court concerned has authorized the disclosure of certain "rand Fur$ infor ation. 5f the infor ation is trul$ confidential, the veil of secrec$ cannot be lifted at an$ sta"e of the e2tradition proceedin"s. Not even durin" trial. A libertarian approach is thus called for under the pre ises.

Public International Law

'ne !ill search in vain the RP;97 E2tradition Treat$, the E2tradition Ea!, as !ell as A erican Furisprudence and procedures on e2tradition, for an$ prohibition a"ainst the confer ent of the t!o basic due process ri"hts of notice and hearin" durin" the evaluation sta"e of the e2tradition proceedin"s. 3e have to consider si ilar situations in Furisprudence for an application b$ analo"$. Earlier, !e stated that there are si ilarities bet!een the evaluation process and a preli inar$ investi"ation since both procedures a$ result in the arrest of the respondent or the prospective e2traditee. 5n the evaluation process, a provisional arrest is even allo!ed b$ the Treat$ and the E2tradition Ea! :Article +, RP;97 E2tradition Treat$4 7ec. A/, Presidential .ecree No. )/0+<. -ollo!in" petitioner%s theor$, because there is no provision of its availabilit$, does this i pl$ that for a period of ti e, the privile"e of the !rit of &abeas cor*us is suspended, despite 7ection )=, Article 555 of the Constitution !hich states that 1BtChe privile"e of the !rit or &abeas cor*us shall not be suspended e2cept in cases of invasion or rebellion !hen the public safet$ re>uires it1L Petitioner%s theor$ !ould also infer that bail is not available durin" the arrest of the prospective e2traditee !hen the e2tradition petition has alread$ been filed in court since Presidential .ecree No. )/0+ does not provide therefor, not!ithstandin" 7ection )*, Article 555 of the Constitution !hich provides that 1BaCll persons, e2cept those char"ed !ith offenses punishable b$ reclusion *er*etua !hen evidence of "uilt is stron", shall, before conviction, be bailable b$ sufficient sureties, or be released on reco"nizance as a$ be provided b$ la!. The ri"ht to bail shall not be i paired even !hen the privile"e of the !rit of &abeas cor*us is suspended. . .1 Can petitioner validl$ ar"ue that since these contraventions are b$ virtue of a treat$ and hence affectin" forei"n relations, the aforestated "uarantees in the Bill of Ri"hts could thus be subservient theretoL The basic principles of ad inistrative la! instruct us that 1the essence of due process in ad inistrative proceedin" is an opportunit$ to e2plain one%s side or an opportunit$ to seek reconsideration of the actions or rulin" co plained of :Mirano vs. NERC, A,/ 7CRA +0 B)++,C4 Padilla vs. NERC, A,* 7CRA 6=, B)++,C4 PE.T vs. NERC, A,0 7CRA ) B)++,C4 #elp ate, 5nc. vs. NERC, A,0 7CRA *)= B)++,C4 A>uinas 7chool vs. Ma"na$e, A,? 7CRA 0/A B)++,C4 (a er vs. NERC, A,? 7CRA 0*A B)++,C<. 5n essence, procedural due process refers to the ethod or anner b$ !hich the la! is enforced :Corona vs. 9nited #arbor Pilots Association of the Phils., A?* 7CRA *) B)++,C<. This Court !ill not tolerate the least disre"ard of constitutional "uarantees in the enforce ent of a la! or treat$. Petitioner%s fears that the Re>uestin" 7tate a$ have valid obFections to the Re>uested 7tate%s non;

perfor ance of its co it ents under the E2tradition Treat$ are insubstantial and should not be "iven para ount consideration. #o! then do !e i ple ent the RP;97 E2tradition Treat$L .o !e li it ourselves to the four corners of Presidential .ecree No. )/0+L 'f analo"ous application are the rulin"s in 8overnment Service Insurance S6stem vs. !ourt o+ A**eals :A/) 7CRA 00) B)++)C< and 8o vs. National Police !ommission :A,) 7CRA 66, B)++,C< !here !e ruled that in su ar$ proceedin"s under Presidential .ecree No. ?/, :Providin" for the 'r"anization of the Civil 7ervice Co ission in Accordance !ith Provisions of the Constitution, Prescribin" its Po!ers and -unctions and for 'ther Purposes<, and Presidential .ecree No. +,) :Providin" Ee"al Assistance for Me bers of the 5nte"rated National Police !ho a$ be char"ed for 7ervice; Connected 'ffenses and 5 provin" the .isciplinar$ 7$ste in the 5nte"rated National Police, Appropriatin" -unds Therefor and for other purposes<, as a ended b$ Presidential .ecree No. ),/,, althou"h su ar$ dis issals a$ be effected !ithout the necessit$ of a for al investi"ation, the ini u re>uire ents of due process still operate. As held in 8SIS vs. !ourt o+ A**eals& . . . B5Ct is clear to us that !hat the openin" sentence of 7ection 6/ is sa$in" is that an e plo$ee a$ be re oved or dis issed even !ithout for al investi"ation, in certain instances. 5t is e>uall$ clear to us that an e plo$ee ust be infor ed of the char"es preferred a"ainst hi , and that the nor al !a$ b$ !hich the e plo$ee is so infor ed is b$ furnishin" hi !ith a cop$ of the char"es a"ainst hi . This is a basic procedural re>uire ent that a statute cannot dispense !ith and still re ain consistent !ith the constitutional provision on due process. The second ini u re>uire ent is that the e plo$ee char"ed !ith so e isfeasance or alfeasance ust have a reasonable opportunit$ to present his side of the atter, that is to sa$, his defenses a"ainst the char"es levelled a"ainst hi and to present evidence in support of his defenses. . . . :at p. 0,)< 7aid su ar$ dis issal proceedin"s are also non;liti"ious in nature, $et !e upheld the due process ri"hts of the respondent. 5n the case at bar, private respondent does not onl$ face a clear and present dan"er of loss of propert$ or e plo$ ent, but of libert$ itself, !hich a$ eventuall$ lead to his forcible banish ent to a forei"n land. The

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conver"ence of petitioner%s favorable action on the e2tradition re>uest and the deprivation of private respondent%s libert$ is easil$ co prehensible. 3e have ruled ti e and a"ain that this Court%s e>uit$ Furisdiction, !hich is aptl$ described as 1Fustice outside le"alit$,1 a$ be availed of onl$ in the absence of, and never a"ainst, statutor$ la! or Fudicial pronounce ents :7 ith Bell M Co., 5nc. vs. Court of Appeals, A0, 7CRA =*/ B)++,C4 .avid; Chan vs. Court of Appeals, A0? 7CRA 0,, B)++,C<. The constitutional issue in the case at bar does not even call for 1Fustice outside le"alit$,1 since private respondent%s due process ri"hts, althou"h not "uaranteed b$ statute or b$ treat$, are protected b$ constitutional "uarantees. 3e !ould not be true to the or"anic la! of the land if !e choose strict construction over "uarantees a"ainst the deprivation of libert$. That !ould not be in keepin" !ith the principles of de ocrac$ on !hich our Constitution is pre ised. @eril$, as one traverses treacherous !aters of conflictin" and opposin" currents of libert$ and "overn ent authorit$, he ust ever hold the oar of freedo in the stron"er ar , lest an errant and !a$!ard course be laid. 3#ERE-'RE, in vie! of the fore"oin" pre ises, the instant petition is hereb$ .57M577E. for lack of erit. Petitioner is ordered to furnish private respondent copies of the e2tradition re>uest and its supportin" papers, and to "rant hi a reasonable period !ithin !hich to file his co ent !ith supportin" evidence. The incidents in Civil Case No. ++;+60?6 havin" been rendered oot and acade ic b$ this decision, the sa e is hereb$ ordered dis issed. 7' 'R.ERE.. 1ellosillo Purisima 1uena and De Leon 5r. 55. concur. Davide 5r. !.5. I 7oin Mr. 5ustice Puno in &is dissent. Puno 5. *lease see dissent. 9itu) 5. see se*arate o*inion. 2a*unan 5. see se*arate concurrin) o*inion. Pan)aniban 5. *lease see m6 dissentin) o*inion. Mendo3a 5. I 7oin t&e dissents o+ Puno and Pan)aniban 55. :uisumbin) 5. wit& concurrin) o*inion. Pardo 5. I 7oin 5. Puno ; 5. Pan)aniban. 8on3a)a-Re6es 5. I 7oin t&e dissent o+ 5ustices Puno ; Pan)aniban. <nares-Santia)o 5. *lease see se*arate concurrin) o*inion.

S%2ara+% O2'n'on& 3"TUG, 5. separate opinion4 The onl$ real issue before the Court, 5 !ould take it, is !hether or not private respondent can validl$ ask for copies of pertinent docu ents !hile the application for e2tradition a"ainst hi is still under"oin" process b$ the E2ecutive .epart ent. There is, 5 a"ree !ith the aForit$, a ri"ht of access to such e2tradition docu ents confor abl$ !ith the provisions of Article 555, 7ection ,, of the Philippine Constitution.) The constitutional ri"ht to free access to infor ation of public concern is circu scribed onl$ b$ the fact that the desired infor ation is not a on" the species e2e pted b$ la! fro the operation of the constitutional "uarant$ and that the e2ercise of the ri"ht confor s !ith such reasonable conditions as a$ be prescribed b$ la!. There is no hornbook rule to deter ine !hether or not an infor ation is of public concern. The ter 1public concern1 eludes e2actitude, and it can easil$ e brace a broad spectru of atters !hich the public a$ !ant to kno! either because the subFect thereof can affect their lives or si pl$ because it arouses concern.A 5 a not convinced that there is so ethin" so viciousl$ !ron" !ith, as to den$, the re>uest of private respondent to be furnished !ith copies of the e2tradition docu ents. 5 add. The constitutional ri"ht to due process secures to ever$one an opportunit$ to be heard, presupposin" forekno!led"e of !hat he a$ be up a"ainst, and to sub it an$ evidence that he a$ !ish to proffer in an effort to clear hi self. This ri"ht is t!o;pron"ed D substantive and procedural due process D founded, in the first instance, on Constitutional or statutor$ provisions, and in the second instance, on accepted rules of procedure.*7ubstantive due process looks into the e2trinsic and intrinsic validit$ of the la! that fi"ures to interfere !ith the ri"ht of a person to his life, libert$ and propert$. Procedural due process D the ore liti"ated of the t!o D focuses on the rules that are established in order to ensure eanin"ful adFudication in the enforce ent and i ple entation of the la!. Eike 1public concern,1 the ter due process does not ad it of an$ restrictive definition. (ustice -rankfurter has vie!ed this fle2ible concept, aptl$ 5 believe, as bein" 1. . . co pounded b$ histor$, reason, the past course of decisions, and stout confidence in the de ocratic faith.16 The fra ers of our o!n Constitution, it !ould see , have deliberatel$ intended, to ake it alleable to the ever;

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chan"in" ilieu of societ$. #itherto, it is d$na ic and resilient, adaptable to ever$ situation callin" for its application that akes it appropriate to accept an enlar"ed concept of the ter as and !hen there is a possibilit$ that the ri"ht of an individual to life, libert$ and propert$ i"ht be diffused. = @eril$, !henever there is an imminent t&reat to t&e li+e, libert6 or *ro*ert6 o+ an6 *erson in an$ proceedin" conducted b$ or under the auspices of the 7tate, his ri"ht to due process of la!, !hen de anded, ust not be i"nored. A dan"er to the libert$ of the e2traditee, the private respondent, is real. Article + of the E2tradition Treat$ bet!een the 8overn ent of the Republic of the Philippines and the 8overn ent of the 9nited 7tates of A erica provides that in case of ur"enc$, a Contractin" Part$ a$ re>uest the provisional arrest of the person *rior to t&e *resentation o+ t&e request +or e'tradition. 5 see i plicit in this provision that even after the re>uest for e2tradition is ade and before a petition for e2tradition is filed !ith the courts, the possibilit$ of an arrest bein" ade on the basis of a ere evaluation b$ the E2ecutive on the re>uest for e2tradition b$ the forei"n 7tate cannot totall$ be discounted. The conclusion reached b$ the aForit$, 5 hasten to add, does not ean that the E2ecutive .epart ent should be i peded in its evaluation of the e2tradition re>uest. The ri"ht of the e2traditee to be furnished, upon re>uest, !ith a cop$ of the relevant docu ents and to file his co ent thereon is not necessaril$ anathe a to the proceedin"s dul$ andated b$ the treat$ to be ade. 5 vote to den$ the petition.

!ith the re>uest of the 9nited 7tates 8overn ent for the e2tradition of the petitioner4 fro filin" the correspondin" Petition !ith the Re"ional Trial Court4 and fro perfor in" an$ act directed to the e2tradition of the petitioner to the 9nited 7tates, +or a *eriod o+ twent6 da6s +rom t&e service on res*ondents o+ t&is #rder , pursuant to 7ection =, Rule =? of the )++, Rules of Court.) :E phasis ours.< The petition itself cate"oricall$ states that 1:t<he issue sou"ht to be presented and liti"ated here is solel$;the validit$ of the TR'.1A Notabl$, there is no alle"ation in the petition that respondent (ud"e is !ithout Furisdiction to hear the case belo! or that he has e2ceeded his Furisdiction in hearin" the sa e. Nor is there an$ other act, rulin", order, or decision, apart fro the TR' alread$ entioned, of respondent (ud"e that is bein" challen"ed in the petition before us. 7ince, as alle"ed in the petition, a cop$ of the TR' !as served on respondents belo! on Au"ust )/, )+++, the TR' ceased to be effective on Au"ust */, )+++4 conse>uentl$, the instant petition has beco e oot and acade ic. This Court does not e2ercise Furisdiction over cases !hich are oot and academic or those not ripe for Fudicial consideration.* Assu in" that the present case has not beco e should be dis issed for lack of erit. oot and acade ic, still, it

0APUNAN, 5. separate concurrin" opinion4 5 vote to dis iss the petition, both on technical and substantial "rounds. The petition in the case at bar raises one and onl$ issue, !hich is the validit$ of the Te porar$ Restrainin" 'rder :TR'< issued b$ respondent (ud"e Ralph C. Eantion on Au"ust +, )+++ in Civil Case No. ++;+60?6. The TR' directed respondents in said case to& . . . aintain the status quo b$ refrainin" fro co ittin" the acts co plained of4 fro conductin" further proceedin"s in connection

The substantive issues raised in this case are& :a< !hether a person !hose e2tradition is sou"ht b$ a forei"n state has due process ri"hts under 7ection A, Article 555 of the )++, Constitution before the .epart ent of (ustice as the re>uest for e2tradition is bein" evaluated, or !hether due process ri"hts a$be invoked onl$ upon the filin" of a petition for e2tradition before a re"ional trial court4 and :b< !hether or not private respondent has a ri"ht of access to e2tradition docu ents under 7ection ,, Article 555 of the )++, Constitution. Petitioner contends that due process ri"hts such as the ri"ht to be infor ed of the basis of the re>uest for e2tradition and to have an opportunit$ to controvert are not provided in the e2tradition treat$ or in P... )/0+ and therefore does not e2ist in this sta"e of the proceedin"s. -urther, he ar"ues that the docu ents sou"ht to be furnished to private respondent onl$ involve *rivate concerns, and not atters of *ublic concern to !hich the people have a constitutional ri"ht to access.

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3hile the evaluation process conducted b$ the .epart ent of (ustice is not e2actl$ a preli inar$ investi"ation of cri inal cases, it is akin to a preli inar$ investi"ation because it involves the basic constitutional ri"hts of the person sou"ht to be e2tradited. A person ordered e2tradited is arrested, forcibl$ taken fro his house, separated fro his fa il$ and delivered to a forei"n state. #is ri"hts of abode, to privac$, libert$ and pursuit of happiness are taken a!a$ fro hi D a fate as harsh and cruel as a conviction of a cri inal offense. -or this reason, he is entitled to have access to the evidence a"ainst hi and the ri"ht to controvert the . 3hile the e2tradition treat$ and P... )/0+ do not provide for a preli inar$ investi"ation, neither does either prohibit it. The ri"ht to due process is a universal basic ri"ht !hich is dee ed !ritten into our la!s and treaties !ith forei"n countries. Eike a preli inar$ investi"ation, the evaluation b$ the .epart ent of (ustice of the e2tradition re>uest and its acco pan$in" docu ents is to establish probable cause and to secure the innocent a"ainst hast$, alicious and oppressive prosecution. 5n this connection, it should be stressed that the evaluation procedure of the e2tradition re>uest and its acco pan$in" docu ents b$ the .epart ent of (ustice cannot be characterized as a ere 1e'-*arte technical assess ent of the sufficienc$1 thereof. The function and responsibilities of the .epart ent of (ustice in evaluatin" the e2tradition papers involve the e2ercise of Fud" ent. The$ involve a deter ination !hether the re>uest for e2tradition confor s full$ to the re>uire ents of the e2tradition treat$ and !hether the offense is e2traditable. These include, a on" others, !hether the offense for !hich e2tradition is re>uested is a political or ilitar$ offense :Article *<4 !hether the docu ents and other infor ations re>uired under Article ,:A< have been provided :Article ,<4 and !hether the e2traditable offense is punishable under the la!s of both contractin" parties b$ deprivation of libert$ for a period of ore than one $ear :Article A<. Conse>uentl$, to arrive at a correct Fud" ent, the parties involved are entitled to be heard if the re>uire ents of due process and e>ual protection are to be observed. 3ith respect to petitioner%s clai that private respondent has no ri"ht to de and access to the docu ents relatin" to the re>uest for e2tradition, suffice it to sa$, that an$ docu ent used in a proceedin" that !ould Feopardize a person%s constitutional ri"hts is atter of public concern. As Martin Euther Iin" said, 1inFustice an$!here is a threat to Fustice ever$!here,1 so an$ violation of one%s ri"hts "uaranteed b$ the Bill of Ri"hts

is ever$bod$%s concern because the$, one !a$ or another, directl$ or indirectl$, affect the ri"hts of life and libert$ of all the citizens as a !hole. .ue process ri"hts in a preli inar$ investi"ation is no! an established principle. The respondent has a ri"ht of access to all of the evidence. #e has the ri"ht to sub it controvertin" evidence. The prosecutin" official !ho conducts the preli inar$ investi"ation is re>uired to be neutral, obFective, and i partial in resolvin" the issue of probable cause. 5 see no reason !h$ the sa e ri"hts a$ not be accorded a person sou"ht to be e2tradited at the sta"e !here the .epart ent of (ustice evaluates !hether a petition for e2tradition !ould be filed before a re"ional trial court. 5f denied such ri"hts, not onl$ denial of due process ri"hts but of e>ual protection a$ be raised. 5t is su""ested that after a petition for e2tradition is filed !ith a re"ional trial court, the person sou"ht to be e2tradited a$ e2ercise all due process ri"hts. #e a$ then have access to all the records on the basis of !hich the re>uest for e2tradition has been ade. #e a$ controvert that evidence and raise all defenses he a$ consider appropriate. That, it is ur"ed, eets the due process re>uire ent. But !h$ ust he !ait until the petition for e2tradition is filedL As succinctl$ e2pressed, if the ri"ht to notice and hearin" is to serve its full purpose, then, it is clear that it ust be "ranted at a ti e !hen the deprivation can still be prevented.6 Eike the filin" of an infor ation in a cri inal case, the ere filin" of a petition for e2tradition causes i ediate i pair ent of the libert$ of the person sou"ht to be e2tradited and a substantial curtail ent of other ri"hts. #is arrest a$ be i ediatel$ ordered b$ the re"ional trial court. #e !ould be co pelled to face an open and public trial. #e !ill be constrained to seek the assistance of counsel and incur other e2penses of liti"ation. The public e$e !ould be directed at hi !ith all the conco itant intrusions to his ri"ht to privac$. 3here the libert$ of a person is at risk, and e2tradition strikes at the ver$ core of libert$, invocation of due process ri"hts can never be too earl$.

4U"SUM-"NG, 5. concurrin" opinion4 As 5 concur in the result reached b$ the *onencia of (ustice Melo, add $ odest observations. a$ 5 Fust

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The hu an ri"hts of person, !hether citizen or alien, and the ri"hts of the accused "uaranteed in our Constitution should take precedence over treat$ ri"hts clai ed b$ a contractin" state. 7tated other!ise, the constitutionall$ andated duties of our "overn ent to the individual deserve preferential consideration !hen the$ collide !ith its treat$ obli"ations to the "overn ent of another state. This is so althou"h !e reco"nize treaties as a source of bindin" obli"ations under "enerall$ accepted principles of international la! incorporated in our Constitution as part of the la! of the land. -or this pri ordial reason, 5 vote to .ENJ the petition. Moreover, considerin" that the E2tradition Treat$ bet!een the 97A and Philippines appears ute on the specific issue before us, the Court D in the e2ercise of its Fudicial po!er to find and state !hat the la! is D has this rare opportunit$ of settin" a precedent that enhances respect for hu an ri"hts and stren"thens due process of la!. As both aForit$ and dissentin" collea"ues in the Court !ill reco"nize, A erican authorities follo! t!o tracks in e2tradition proceedin"s& :)< the interstate practice !here, pursuant to statute, the state E2ecutive upon de and furnishes the !ould be e2traditee or counsel copies of pertinent docu ents as !ell as the re>uest for e2tradition4 and :A< the international practice !here the E2ecutive depart ent need not initiall$ "rant notice and hearin" at all. Rules of reciprocit$ and co it$, ho!ever, should not bar us fro appl$in" internationall$ no! !hat appears the ore reasonable and hu ane procedure, that is, the interstate practice a on" A ericans the selves. -or in this case the A erican people should be a on" the ost interested parties. Trul$, !hat private respondent is askin" our E2ecutive depart ent :notice, copies of docu ents, and the opportunit$ to protect hi self at the earliest ti e a"ainst probable peril< does not, in $ vie!, violate our E2tradition Treat$ !ith the 97A. #is re>uest if "ranted au"urs !ell for transparenc$ in interstate or inter"overn ental relations rather than secrec$ !hich s acks of edieval diplo ac$ and the in>uisition discredited lon" a"o. That private respondent is a -ilipino citizen is not decisive of the issue here, althou"h it is obviousl$ pertinent. Even if he !ere a resident alien :other than A erican perhaps<, he is, in $ vie!, entitled to our full protection a"ainst the hazards of e2tradition :or deportation, si ilarl$< fro the ver$ start. More so because, lookin" at the facts adduced at the hearin" and on the record of this case, the char"es a"ainst hi involve or are co; in"led !ith, if not rooted in, certain offenses of a political nature or otivation such as the

ones involvin" alle"ed financial contributions to a aFor A erican political part$. 5f so, lon" established is the principle that e2tradition could not be utilized for political offenses or politicall$ otivated char"es. There a$, of course, be other char"es a"ainst private respondent in the 97A. But then the$ are, in $ vie!, alread$ tainted there !ith political color due to the hi"hl$ char"ed partisan ca pai"n at osphere no! prevailin". That private respondent%s cases !ill be e2ploited as political fodder there is not far;fetched, hence the need here for cautious but co prehensive deliberation on the atter at bar. -or, above all, it is not onl$ a Treat$ provision !e are construin"4 it is about constitutional and hu an ri"hts !e are ost concerned.

NARES5SANT"AGO, 5. concurrin" opinion4 5 concur in the *onencia of Mr. (ustice (ose A.R. Melo !ith its conceptive anal$sis of a citizen%s ri"ht to be "iven !hat is due to hi . 5 Foin in his e2position of this Court%s constitutional dut$ to strike the correct balance bet!een over!hel in" 8overn ent po!er and the protection of individual ri"hts !here onl$ one person is involved. #o!ever, 5 a constrained to !rite this short concurrence if onl$ to pose the >uestion of !h$ there should be an$ debate at all on a plea for protection of one%s libert$ !hich, if "ranted, !ill not result in an$ eanin"ful i pedi ent of th!artin" an$ state polic$ and obFectives. 5 see no reason !h$ respondent Mark (i enez, or other citizens not as controversial or talked about, should first be e2posed to the indi"nit$, e2pense, and an2iet$ of a public denunciation in court before he a$ be infor ed of !hat the contractin" states in an e2tradition treat$ have a"ainst hi . There is no >uestion that ever$thin" !hich respondent (i enez no! re>uests !ill be "iven to hi durin" trial. Mr. (i enez is onl$ petitionin" that, at t&is sta)e, he should be infor ed !h$ he a$ be deported fro his own countr$. 5 see no ill effects !hich !ould arise if the e2tradition re>uest and supportin" docu ents are sho!n to hi no!, instead of later.

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Petitioner 7ecretar$ of (ustice states that his action on the e2tradition re>uest and its supportin" docu ents !ill erel$ deter ine !hether or not the Philippines is co pl$in" !ith its treat$ obli"ations. #e adds that, therefore, the constitutional ri"hts of an accused in all cri inal prosecutions are not available to the private respondent. The (ul$ )*, )+++ repl$;letter fro petitioner states the reasons !h$ he is den$in" respondent (i enez%s re>uests. 5n short, the reasons are& ). 5n evaluatin" the docu ents, the .epart ent erel$ deter ines !hether the procedures and re>uire ents under the relevant la! and treat$ have been co plied !ith b$ the Re>uestin" 8overn ent. The constitutional ri"hts of the accused in all cri inal prosecutions are, therefore, not available. A. The 9nited 7tates 8overn ent has re>uested the Philippine 8overn ent to prevent unauthorized disclosure of certain "rand Fur$ infor ation. *. The petitioner cannot hold in abe$ance proceedin"s in connection !ith an e2tradition re>uest. -or e2tradition to be an effective tool of cri inal la! enforce ent, re>uests for surrender of accused or convicted persons ust be processed e2peditiousl$. 5 respectfull$ sub it that an$ apprehensions in the Court arisin" fro a denial of the petition D 1breach of an international obli"ation, rupture of states relations, forfeiture of confidence, national e barrass ent, and a plethora of other e>uall$ undesirable conse>uences1 D are ore illusor$ than real. 'ur countr$ is not den$in" the e2tradition of a person !ho ust be e2tradited. Not one provision of the e2tradition treat$ is violated. 5 cannot i a"ine the 9nited 7tates takin" issue over !hat, to it, !ould be a inor concession, perhaps a sli"ht dela$, accorded in the na e of hu an ri"hts. 'n the other hand, the issue is funda ental in the Philippines. A citizen is invokin" the protection, in the conte2t of a treat$ obli"ation, of ri"hts e2pressl$ "uaranteed b$ the Philippine Constitution. 9ntil proved to be a valid subFect for e2tradition, a person is presu ed innocent or not covered b$ the sanctions of either cri inal la! or international treat$. At an$ sta"e !here a still prospective e2traditee onl$ seeks to kno! so that he can prepare and prove that he should not be e2tradited, there should be no conflict over the e2tension to hi of constitutional protections "uaranteed to aliens and citizens alike.

Petitioner cites as a reason for the denial of respondent%s re>uests, Article , of the Treat$. Article , enu erates the re>uired docu ents and establishes the procedures under !hich the docu ents shall be sub itted and ad itted as evidence. There is no specific provision on ho! that 7ecretar$ of -orei"n Affairs should conduct his evaluation. The 7ecretar$ of (ustice is not even in the picture at this sta"e. 9nder petitioner%s theor$, silence in the treat$ over a citizen%s ri"hts durin" the evaluation sta"e is interpreted as deliberate e2clusion b$ the contractin" states of the ri"ht to kno!. 7ilence is interpreted as the e2clusion of the ri"ht to a preli inar$ e2a ination or preli inar$ investi"ation provided b$ the la!s of either one of the t!o states. The ri"ht to be infor ed of char"es !hich a$ lead to court proceedin"s and result in a deprivation of libert$ is ordinaril$ routine. 5t is readil$ available to one a"ainst !ho the state%s coercive po!er has alread$ been focused. 5 fail to see ho! silence can be interpreted as e2clusion. The treat$ is silent because at this sta"e, the preli inar$ procedure is still an internal atter. And !hen a la! or treat$ is silent, it eans a ri"ht or privile"e a$ be "ranted. 5t is not the other !a$ around. The second reason alle"in" the need for secrec$ and confidentialit$ is even less convincin". The e2planation of petitioner is self;contradictor$. 'n one hand, petitioner asserts that the 9nited 7tates 8overn ent re>uested the Philippine 8overn ent to prevent unauthorized disclosure of certain infor ation. 'n the other hand, petitioner declares that the 9nited 7tates has alread$ secured orders fro concerned .istrict Courts authorizin" the disclosure of the sa e "rand Fur$ infor ation to the Philippine 8overn ent and its la! enforce ent personnel. 'fficial per ission has been "iven. The 9nited 7tates has no cause to co plain about the disclosure of infor ation furnished to the Philippines. Moreover, ho! can "rand Fur$ infor ation and docu ents be considered confidential if the$ are "oin" to be introduced as evidence in adversel$ proceedin"s before a trial courtL The onl$ issue is !hether or not Mr. (i enez should be e2tradited. #is innocence or "uilt of an$ cri e !ill be deter ined in an A erican court. 5t is there !here prosecution strate"ies !ill be essential. 5f the Contractin" 7tates believed in a total non;divul"in" of infor ation prior to court hearin"s, the$ !ould have so provided in the e2tradition treat$. A positive provision akin" certain ri"hts unavailable cannot be i plied fro silence. 5 cannot believe that the 9nited 7tates and the Philippines !ith identical constitutional provisions on due process and basic ri"hts should sustain

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such a $opic vie! in a situation !here the "rant of a ri"ht !ould not result in an$ serious setbacks to cri inal la! enforce ent. 5t is obvious that an$ prospective e2traditee !ants to kno! if his identit$ as the person indicated has been established. Considerin" the penchant of Asians to adopt A erican na es !hen in A erica, the issue of !hether or not the prospective e2traditee trul$ is the person char"ed in the 9nited 7tates beco es a valid >uestion. 5t is not onl$ identit$ of the person !hich is involved. The cri es ust also be un istakabl$ identified and their essential ele ents clearl$ stated. There are other preli inar$ atters in !hich respondent is interested. 5 see nothin" in our la!s or in the Treat$ !hich prohibits the prospective e2traditee fro kno!in" until after the start of trial !hether or not the e2tradition treat$ applies to hi . Paraphrasin" (asmin vs. 1oncan, ,) Phil. A)04 "rocio vs. Manta, ))? 7CRA A6) :)+6)<4 and Salon)a vs. (on. Pa=o, )*6 7CRA 6*? :)+?=<, the purpose of a preli inar$ evaluation is to secure an innocent person a"ainst hast$, fault$ and, therefore, oppressive proceedin"s4 to protect hi fro an open and e2tensivel$ publicized accusation of cri es4 to spare hi the trouble, e2pense, and an2iet$ of a public trial4 and also to protect the state fro useless and e2pensive trails. Even if the purpose is onl$ to deter ine !hether or not the respondent is a proper subFect for e2tradition, he is nonetheless entitled to the "uarantees of fairness and freedo accorded to those char"ed !ith ordinar$ cri es in the Philippines. The third reason "iven b$ petitioner is the avoidance of dela$. Petitioner vie!s the re>uest to be infor ed as part of undesirable dela$in" tactics. This is ost unfortunate. An$ re>uest for e2tradition ust be vie!ed obFectivel$ and i partiall$ !ithout an$ predisposition to "rantin" it and, therefore, hastenin" the e2tradition process. 5n the first place, an$ assistance !hich the evaluatin" official a$ "et fro the participation of respondent a$ !ell point out deficiencies and insufficiencies in the e2tradition docu ents. 5t !ould incur "reater dela$s if these are discovered onl$ durin" court trial. 'n the other hand, if, fro respondent%s participation, the evaluatin" official discovers a case of istaken identit$, insufficient pleadin"s, inade>uate co plaints, or an$ ruinous shortco in", there !ould be no dela$s durin" trial. An unnecessar$ trial !ith all its co plications !ould be avoided.

The ri"ht to be infor ed is related to the constitutional ri"ht to a speed$ trial. The constitutional "uarantee e2tends to the speed$ disposition of cases before all >uasi;Fudicial and ad inistrative bodies :Constitution, Art. 555, 7ec. )0<. 7peed$ disposition, ho!ever, does not ean the deliberate e2clusion of the defendant or respondent fro the proceedin"s. As this Court rules in Acebedo vs. Sarmiento, *0 7CRA A6, :)+,/<, 1the ri"ht to a speed$ trial, eans one free fro ve2atious, capricious and oppressive dela$s, its salutar$ obFective bein" to assure that an innocent person a$ be free fro the an2iet$ and e2pense of a court liti"ation or, if other!ise, of havin" his "uilt :in this case, his bein" e2tradited< deter ined !ithin the shortest possible ti e co patible !ith the presentation and consideration of !hatsoever le"iti ate defense he a$ interpose.1 The ri"ht to be infor ed and the ri"ht to a preli inar$ hearin" are not erel$ for respondent. The$ also serve the interests of the 7tate.,-w*&i,.n/t 5n closin", 5 aintain that the para ount consideration of "uaranteein" the constitutional ri"hts of individual respondent override the concerns of petitioner. There should be no hurried or indifferent effort to routinel$ co pl$ !ith all re>uests for e2tradition. 5 understand that this is truer in the 9nited 7tates than in other countries. Proposed e2traditees are "iven ever$ le"al protection available fro the A erican Fustice s$ste before the$ are e2tradited. 3e serve under a "overn ent of li ited po!ers and inalienable ri"hts. #ence, this concurrence.

PUNO, 5. dissentin" opinion4 5f the case at bar !as strictl$ a cri inal case !hich involves alone the ri"ht of an accused to due process, 5 !ould have co;si"ned the *onencia of our estee ed collea"ue, Mr. (ustice (ose A.R. Melo, !ithout takin" half a pause.1ut t&e case at bar does not involve t&e )uilt or innocence o+ an accused but t&e inter*retation o+ an e'tradition treat6 w&ere at sta>e is our )overnment?s international obli)ation to surrender to a +orei)n state a citi3en o+ its own so &e can be tried +or an alle)ed o++ense committed wit&in t&at 7urisdiction. The issues are of first i pression and the aForit$ opinion dan"erousl$ takes us to unkno!n shoals in constitutional and international la!s, hence this dissentin" opinion. E'tradition is a !ell;defined concept and is ore a proble in international la!. 5t is the 1process b$ !hich persons char"ed !ith or convicted of cri e a"ainst the la! of a 7tate and found in a forei"n 7tate are returned b$ the

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latter to the for er for trial or punish ent. 5t a**lies to those !ho are erel$ char"ed !ith an offense but have not been brou"ht to trial4 to those !ho have been tried and convicted and have subse>uentl$ escaped fro custod$4 and those !ho have been convicted in absentia. 5t does not a**l6 to persons erel$ suspected of havin" co itted an offense but a"ainst !ho no char"e has been laid or to a person !hose presence is desired as a !itness or for obtainin" or enforcin" a civil Fud" ent.1) The de+inition covers t&e *rivate res*ondent !ho is char"ed !ith t!o :A< counts of conspirac$ to co it offense or to defraud the 9nited 7tates, four :6< counts of atte pt to evade or defeat ta2, t!o :A< counts of fraud b$ !ire, radio or television, si2 :0< counts of false state ents or entries and thirt$;three :**< counts of election contributions in the na e of another. There is an outstandin" !arrant of arrest a"ainst the private respondent issued b$ the 97 .istrict Court, 7outhern .istrict of -lorida. A brief revie! of the histor$ of e2tradition la! !ill illu ine our labor. Possibl$ the ost authoritative co entator on e2tradition toda$, M. Cherif Bassiouni, divides the histor$ of e2tradition into four :6< periods& 1:)< ancient ti es to seventeenth centur$ D a period revealin" al ost e2clusive concern for political and reli"ious offenders4 :A< the ei"hteenth centur$ and half of the nineteenth centur$ D a period of treat$; akin" chiefl$ concerned !ith ilitar$ offenders characterizin" the condition of Europe durin" that period4 :*< fro )?** to )+6? D a period of collective concern in suppressin" co on cri inalit$4 and :6< post;)+6? develop ents !hich ushered in a "reater concern for protectin" the hu an ri"hts of persons and revealed an a!areness of the need to have international due process of la! re"ulate international relations.1A 5t is also re!ardin" to have a "ood "rip on the chan"in" slopes in the landscape of e2tradition durin" these different periods. E2tradition !as first practiced b$ the E"$ptians, Chinese, Chaldeans and Ass$ro;Bab$lonians but their basis for allo!in" e2tradition !as unclear. 7o eti es, it !as "ranted due to pacts4 at other ti es, due to plain "ood !ill. * The classical commentators on international la! thus focused their earl$ vie!s on the nature o+ t&e dut6to surrender an e2traditee D !hether the dut$ is le"al or oral in character. 8rotius and de @attel led the school of thou"ht that international la! i posed a le)al dut6 called civitas ma'ima to e2tradite cri inals.6 5n sharp contrast, Puffendorf and Billot led the school of thou"ht that the so;called dut$ !as but an 1im*er+ect obli)ation!hich could beco e en+orceable onl6 b$ a contract or a"ree ent bet!een states.= Modern nations tilted to!ards the vie! of Puffendorf and Billot that under international la! there is no dut$ to e2tradite in the absence of treat$, !hether bilateral or ultilateral. Thus, the 97 7upre e Court in US

v.Rausc&er,0 held& 1. . . . it is onl6 in modern times that the nations of the earth have i posed upon the selves the obli"ation of deliverin" up these fu"itives fro Fustice to the states !here their cri es !ere co itted, for trial and punish ent. This has been done "enerall$ b$ treaties . . . Prior to these treaties, and apart fro the there !as no !ell;defined obli"ation on one countr$ to deliver up such fu"itives to another4 and thou"h such deliver$ !as often ade it !as upon the principle of co it$ . . .1 Then ca e the lon" and still on"oin" debate on !hat should be the sub7ect of international la!. The A/th centur$ sa! the dra atic rise and fall of different t$pes and hues of authoritarianis D the fascis of 5tal$%s Mussolini and 8er an$%s #itler, the ilitaris of (apan%s #irohito and the co unis of Russia%s 7talin, etc. "&e sin>in) o+ t&ese isms led to t&e elevation o+ t&e ri)&ts o+ t&e individual a)ainst t&e state . 5ndeed, so e species of hu an ri"hts have alread$ been accorded universal reco)nition., Toda$, the drive to internationalize ri"hts of !o en and children is also on hi"h "ear.? The hi"her ratin" "iven to hu an ri"hts in the hierarch$ of values necessaril$ led to the re;e2a ination of ri"htful place of the individual in international la!. 8iven the harshest e$e is the oss; covered doctrine that international law deals onl6 wit& States and t&at individuals are not its sub7ect. -or its undesirable corrall$ is the sub;doctrine that an individual%s ri"ht in international la! is a near cipher. Translated in e2tradition la!, the vie! that once co anded a consensus is that since a fu"itive is a ere ob7ect and not a sub7ect of international la!, he is bereft of ri"hts. An e2traditee, so it !as held, is a ere 1obFect transported fro one state to the other as an e2ercise of the soverei"n !ill of the t!o states involved.1+ The re;e2a ination consi"ned this pernicious doctrine to the useu of ideas.)/ The ne! thinkers of international la! then "ave a si"nificant shape to the role and ri"hts of the individual in state;concluded treaties and other international a"ree ents. 7o it !as declared b$ then 97 A bassador Philip C. (essup in audible italics& 1A ver$ lar"e part of international affairs and, thus, of the process of international acco odation, concerns the relations bet!een le"al persons kno!n as states. This is necessaril$ so. 1ut it is no lon)er novel +or t&e *articular interest o+ t&e &uman bein) to brea> t&rou)& t&e mass o+ interstate relations&i*.1)) The clarion call to re;en"ineer a ne! !orld order !hose do inant interest !ould transcend the parochial confines of national states !as not unheeded. A on" the !orld class scholars !ho Foined the search for the elusive ideolo"ical underpinnin"s of a ne! !orld order !ere Jale Professor M$res Mc.ou"al and Mr. (ustice -lorentino -eliciano. 5n their se inal !ork. Law and Minimum 4orld Public #rder, the$ su""ested that the obFect of the ne! !orld should be 1to obtain in particular situations and in the a""re"ate flo! of situations the outco e of a hi"her de"ree of confor it$ !ith the securit$ "oals of preservation, deterrence, restoration,

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rehabilitation and reconstruction of all societies co prisin" the !orld co unit$.1)A Needless to stress, all t&ese *rescient t&eses accelerated t&e move to reco)ni3e certain ri)&ts o+ t&e individual in international law. 3e have $et to see the final and irrevocable place of individual ri"hts, especiall$ the ri"hts of an e2traditee, in the real of international la!. 5n careful lan"ua"e, Bassiouni observes that toda6, 1institutionalized conflicts bet!een states are still rationalized in ter s of soverei"nt$, national interest, and national securit$, !hile hu an interests continue to have limited, thou"h "ro!in" i pact on the decision; akin" processes !hich translate national values and "oals into specific national and international polic$.1)* 5 belabor the international la! aspect of e2tradition as the aForit$ opinion hardl$ "ives it a side"lance. 5t is $ hu ble sub ission that the +irst consideration that should "uide us in the case at bar is that a bilateral treat$ D the RP;97 E2tradition Treat$ D is the subFect atter of the liti"ation. 5n our constitutional sche e, the akin" of a treat$ belon"s to the e2ecutive and le"islative depart ents of our "overn ent. Bet!een these t!o depart ents,t&e e'ecutive &as a )reater sa6 in t&e ma>in) o+ a treat6. 9nder 7ection A), Article @55 of our Constitution, the President &as t&e sole *ower to ne"otiate treaties and international a"ree ents althou"h to be effective, the$ ust be concurred in b$ at least t!o thirds of all the e bers of the 7enate. 7ection A/ of the sa e Article e po!ers the President to contract or "uarantee forei"n loans !ith the prior concurrence of the Monetar$ Board. 7ection )0 of the sa e Article "ives the President the po!er to appoint a bassadors, other public inisters and consuls subFect to confir ation b$ the Co ission on Appoint ents. 5n addition, the President has the po!er to deport undesirable aliens. "&e concentration o+ t&ese *owers in t&e *erson o+ t&e President is not wit&out a com*ellin) consideration . The conduct of +orei)n relations is full of co ple2ities and conse>uences, so eti es !ith life and death si"nificance to the nation especiall$ in ti es of !ar. It can onl6 be entrusted to t&at de*artment o+ )overnment w&ic& can act on t&e basis o+ t&e best available in+ormation and can decide wit& decisiveness. Be$ond debate, the President is the sin"le ost po!erful official in our land for 7ection ) of Article @55 provides that 1the e2ecutive po!er shall be vested in the President of the Philippines,1 !hereas 7ection ) of Article @5 states that 1the le"islative po!er shall be vested in the Con"ress of the Philippines !hich shall consist of a 7enate and a #ouse of Representatives . . . e2cept to the e2tent reserved to the people b$ the provision on initiative and referendu ,1 !hile 7ection ) of Article @555 provides that 1Fudicial po!er shall be vested in one 7upre e Court and in such lo!er courts as a$ be established b$ la!.1 "&us, we can see t&at e'ecutive *ower is vested in t&e President alone w&ereas le)islative and 7udicial *owers are s&ared and scattered . 5t is also the President !ho

possesses the ost co prehensive and the ost confidential infor ation about forei"n countries for our diplo atic and consular officials re"ularl$ brief hi on eanin"ful events all over the !orld. #e has also unli ited access to ultra;sensitive ilitar$ intelli"ence data.)6 5n fine, the presidential role in forei"n affairs is do inant and t&e President is traditionall6 accorded a wider de)ree o+ discretion in t&e conduct o+ +orei)n a++airs . The re"ularit$, na$, validit$ of his actions are adFud"ed under less strin)ent standards, lest their Fudicial repudiation lead to breach of an international obli"ation, rupture of state relations, forfeiture of confidence, national e barrass ent and a plethora of other proble s !ith e>uall$ undesirable conse>uences. These are so e of the dominant *olic6 considerations in international la! that the Court ust balance a"ainst the clai of the private respondent that he has a ri"ht to be "iven the e2tradition docu ents a"ainst hi and to co ent thereon even !hile the$ are still at the evaluation sta)e b$ the petitioner Secretar6 o+ 5ustice, an alter e)o o+ t&e President. The delicate >uestions of w&at constitutional ri)&ts and to !hat de)ree the$ can be clai ed b$ an e2traditee do not ad it of eas$ ans!ers and have resulted in discrete a**roac&es the !orld over.)= 'n one end of the pole is the ore liberal European approach. The European Court of #u an Ri"hts e braces the vie! that an e2traditee is entitled to the benefit of all relevant provisions of the European Convention for the Protection of #u an Ri"hts and -unda ental -reedo s. 5t has held that 1. . . in so far as a easure of the e2tradition has conse>uences adversel$ affectin" the enFo$ ent of a convention ri"ht, it a$, assu in" that the conse>uences are not too re ote, attract the obli"ations of a Contractin" 7tate under the relevant convention "uarantee.1)0 At the other end of the pole is the more cautious a**roac& of the various Courts of Appeal in the 9nited 7tates. These courts have been more conservative in li"ht of the principle of separation of po!ers and their faith in the presu ptive validit$ of e2ecutive decisions. B$ and lar"e, the$ adhere to the rule o+ non-inquir6 under !hich thee'traditin) court re+uses to e2a ine the re>uestin" countr$%s cri inal Fustice s$ste or consider alle"ations that the e2traditee !ill be istreated or denied a fair trial in that countr$.), The case at bar, 5 respectfull$ sub it, does not involve an irreconcilable con+lict bet!een the RP;97 E2tradition Treat$ and our Constitution !here !e have to choose one over the other. Rather, it calls for a &armoni3ationbet!een said treat$ and our Constitution. To achieve this desirable obFective, the Court s&ould consider w&et&er t&e constitutional ri)&ts invo>ed b6 t&e *rivate res*ondent &ave trul6 been violated and even assumin) so, w&et&er &e will be denied +undamental +airness. It is onl6 w&en t&eir violation will destro6 t&e res*ondent?s ri)&t to +undamental +airness t&at &is constitutional claims s&ould be )iven *rimac6.

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8iven this balancin) a**roac&, it is $ hu ble sub ission that considerin" all the facts and facets of the case, t&e *rivate res*ondent &as not *roved entitlement to t&e ri)&t &e is claimin) . The ma7orit6 &olds that the Constitution, the RP;97 e2tradition and P... No. )/0+ do not *ro&ibit res*ondent?s claims, &ence, it s&ould be allowed. This is too si plistic an approach. Ri)&ts do not necessaril6 arise +rom a vacuum. 7ilence of the la! can even ean an i plied denial of a ri"ht. Also, constitutional liti"ations do not al!a$s involve a clear cut choice bet!een ri"ht and !ron". 7o eti es, the$ involve a difficult choice bet!een ri"ht a"ainst ri"ht. 5n these situations, there is need to balance the contendin" ri"hts and pri ac$ is "iven to the ri"ht that !ill serve the interest of the nation at that particular ti e. 5n such instances, the less com*ellin) ri)&t is sub7ected to so+t restraint but !ithout s otherin" its essence. Proceedin" fro this pre ise of relativism o+ ri)&ts, 5 venture the vie! that even assu in" ar)uendorespondent%s !eak clai , still, t&e de)ree o+ denial o+ *rivate res*ondent?s ri)&ts to due *rocess and to in+ormation is too sli)&t to warrant t&e inter*osition o+ 7udicial *ower . As ad itted in the *onencia itself, an e2tradition proceedin" is sui )eneris. 5t is, thus, futile to deter ine !hat it is. 4&at is certain is that it is not a criminal *roceedin) !here there is an accused !ho clai the entire arra$ of ri"hts "uaranteed b$ the Bill of Ri"hts. Eet it be stressed that in an e'tradition *roceedin), t&ere is no accused and t&e )uilt or innocence o+ t&e e'traditee will not be *assed u*on b6 our e'ecutive o++icials nor b6 t&e e'tradition 7ud)e. #ence, constitutional ri"hts that are onl$ relevant do deter ine the "uilt or innocence of an accused cannot be invoked b$ an e2traditee. 5ndeed, an e2tradition proceedin" is summar6 in nature !hich is untrue of cri inal proceedin"s.)? Even the rules o+ evidence are di++erent in an e2tradition proceedin". Ad ission of evidence is less strin"ent, a"ain because the "uilt of the e2traditee is not under liti"ation.)+ It is not onl6 t&e qualit6 but even t&e quantum o+ evidence in e'tradition *roceedin) is di++erent. 5n a cri inal case, an accused can onl$ be convicted b$ *roo+ be6ond reasonable doubt.A/5n an e2tradition proceedin", an e2traditee can be ordered e2tradited 1upon sho!in" of the e2isted of a *rima +aciecase.1A) 5f ore need be said, the nature of an e2tradition decision is different fro a Fudicial decision !hose finalit$ cannot be chan"ed b$ e2ecutive fiat. 'ur courtsAA a$ hold an individual e2traditable but the ultimate decision to e2tradite the individual lies in the hands of the E2ecutive. 7ection *, Article * of the RP;97 E2tradition Treat$ specificall$ provides that 1e2tradition shall not be "ranted if the e2ecutive authorit$ of the Re>uested 7tate deter ined that the re>uest !as politicall$ otivated, or that the offense is a ilitar$ offense !hich is not punishable under non; ilitar$ penal le"islation.1 5n the 9nited 7tates, the 7ecretar$ of 7tate e2ercises this ulti ate po!er and is conceded considerable discretion. #e balances the e>uities of the case and the de ands of the nation%s forei"n relations. A* 5n su , he is not straitFacketed b$ strict le"al considerations like an ordinar$ court.

The t6*e o+ issue liti"ated in e2tradition proceedin"s !hich does not touch on the "uilt or innocence of the e2traditee, the limited nature o+ t&e e'tradition *roceedin), the availabilit6 o+ adequate remedies in favor of the e2traditee, and the traditional leewa6 )iven to t&e E'ecutive in the conduct of forei"n affairs have co pelled courts to put a &i)& t&res&old before considerin" clai s of individuals that enforce ent of an e2tradition treat$ !ill violate their constitutional ri"hts. E2e plif$in" such approach is the Su*reme !ourt o+ !anada !hich has adopted a&i)&l6 de+erential standard t&at em*&asi3es international comit6 and t&e e'ecutive?s e'*erience in international matters.A6 5t continues to den$ Canada%s charter protection to e'traditees unless t&e violation can be considered s&oc>in) to t&e conscience. 5n the case, at bar and !ith due respect, the *onencia inflates !ith too uch si"nificance the t&reat to libert6 o+ t&e *rivate res*ondent to prop us its thesis that his constitutional ri"hts to due process and access to infor ation ust i ediatel$ be vindicated. Alle"edl$, respondent (i enez stands in dan)er o+ *rovisional arrest, hence, the need for hi to be i ediatel$ furnished copies of docu ents acco pan$in" the re>uest for his e2tradition.Res*ondent?s +ear o+ *rovisional arrest is not real. 5t is a self; i a"ined fear for the realities on the "round sho! that the 9nited 7tates authorities have not anifested an$ desire to re>uest for his arrest. 'n the contrar$, the$ filed the e2tradition re>uest throu"h the re"ular channel and, even !ith the pendenc$ of the case at bar, the$ have not oved for respondent%s arrest on the "round of probable dela$ in the proceedin"s. "o be sure, t&e issue o+ w&et&er res*ondent 5imene3 will be *rovisionall6 arrested is now moot. 9nder 7ection ) of Article + of the RP;97 E2tradition Treat$, in relation to 7ection A/:a< of P. No. )/0+, the "eneral principle is enunciated that a re>uest for provisional arrest ust be ade *endin) recei*t o+ t&e request +or e'tradition. B$ filin" the re>uest for e2tradition, the 97 authorities have i plicitl$ decided not to ove for respondent%s provisional arrest. But ore i portant, a request +or res*ondent?s arrest does not mean &e will be t&e victim o+ an arbitrar6 arrest . (e will be )iven due *rocess be+ore &e can be arrested. Article + of the treat$ provides& PR'@575'NAE ARRE7T ). 5n case of ur"enc$, a Contractin" Part$ a$ re>uest the provisional arrest of the person sou"ht pendin" presentation of the re>uest for e2tradition. A re>uest for provisional arrest a$ be trans itted throu"h the diplo atic channel or directl$ bet!een the Philippine .epart ent of (ustice and the 9nited 7tates .epart ent of (ustice.

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A. The application for provisional arrest shall contain& a< a description of the person sou"ht4 b< the location of the person sou"ht, if kno!n4 c< a brief state ents of the facts of the case, includin", if possible, the ti e and location of the offense4 d< a description of the la!s violated4 e< a state ent of the e2istence of a !arrant of a !arrant of arrest or findin" of "uilt or Fud" ent of conviction a"ainst the person sou"ht4 and f< a state ent that a re>uest for e2tradition for the person sou"ht !ill follo!. *. The Re>uestin" 7tate shall be notified !ithout dela$ of the disposition of its application and the reasons for an$ denial. 6. A person !ho is provisionall$ arrested a$ be dischar"ed fro custod$ upon the e2piration of si2t$ :0/< da$s fro the date of arrest pursuant to this Treat$ if the e2ecutive authorit$ of the Re>uested 7tate has not received the for al re>uest for e2tradition and the supportin" docu ents re>uired in Article ,. 5n relation to the above, 7ection A/ of P... No. )/0+ provides& 7ec. A/. Provisional Arrest. D :a< 5n case of ur"enc$, the re>uestin" state a$, pursuant to the relevant treat$ or convention and !hile the sa e re ains in force, re>uest for the provisional arrest of the accused, pendin" receipt of the re>uest for e2tradition ade in accordance !ith 7ection 6 of this .ecree. :b< A re>uest for provisional arrest shall be sent to the .irector of the National Bureau of 5nvesti"ation, Manila, either throu"h the diplo atic channels or direct b$ post or tele"raph.

:c< "&e Director o+ t&e National 1ureau o+ Investi)ation or an6 o++icial actin) on &is be&al+ s&all u*on recei*t o+ t&e request immediatel6 secure a warrant +or t&e *rovisional arrest o+ t&e accused +rom t&e *residin) 7ud)e o+ t&e !ourt o+ 0irst Instance o+ t&e *rovince or cit6 &avin) 7urisdiction o+ t&e *lace w&o s&all issue t&e warrant +or t&e *rovisional arrest o+ t&e accused. The .irector of the National Bureau of 5nvesti"ation throu"h the 7ecretar$ of -orei"n Affairs shall infor the re>uestin" state of the result of its re>uest. :d< 5f !ithin a period of A/ da$s after the provisional arrest, the 7ecretar$ of -orei"n Affairs has not received the re>uest for e2tradition and the docu ents entioned in 7ection 6 of this .ecree, the accused shall be released fro custod$. "&e due *rocess *rotection o+ t&e *rivate-res*ondent a)ainst arbitrar6 arrest is written in c6rillic letters in t&ese two $@% related *rovisions . 5t is self;evident under these provisions that a re>uest for provisional arrest does not ean it !ill be "ranted i*so +acto. The re>uest ust co pl$ !ith certain re>uire ents. 5t ust be based on an 1ur"ent1 factor. This is subFect to verification and evaluation b$ our e2ecutive authorities. The re>uest can be denied if not based on a real e2i"enc$ of if the supportin" docu ents are insufficient. The protection of the respondent a"ainst arbitrar$ provisional arrest does not sto* on t&e administrative level. -or even if the .irector of the National Bureau of 5nvesti"ation a"rees !ith the re>uest for the provisional arrest of the respondent, still he has to appl$ for a 7udicial warrant fro the 1presidin" Fud"e of the Court of -irst 5nstance :no! RTC< of the province of cit$ havin" Furisdiction of the place. . . . .1 5t is a 7ud)e !ho !ill issue a !arrant for the provisional arrest of the respondent. The Fud"e has co pl$ !ith 7ection A, Article 555 of the Constitution !hich provides that 1no . . . !arrant of arrest shall issue e2cept upon probable cause to be deter ined personall$ b$ the Fud"e after e2a ination under oath or affir ation of the co plainant and the !itnesses he a$ produce, and particularl$ describin" the . . . persons or thin"s to be seized.1 "&e messa)e t&at lea*s to t&e e6e is t&at com*liance wit& t&is requirements *recludes an6 arbitrar6 arrest. 5n li"ht of all these considerations, 5 respectfull$ sub it that den$in" respondent%s constitutional clai to be furnished all docu ents relatin" to the re>uest for his e2tradition b$ the 97 authorities durin" their evaluation sta)e !ill not subvert his ri"ht to +undamental +airness. It s&ould be stressed t&at t&is is not a case w&ere t&e res*ondent will not be )iven an o**ortunit6 to >now t&e basis o+ t&e request +or &is e'tradition . 5n truth, and contrar$ to the i pression of the aForit$, P.D. No. ,ABC +i'es t&e s*eci+ic time !hen he

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!ill be "iven the papers constitutin" the basis for his e2tradition. The ti e is !hen he is su oned b$ the e2tradition court and re>uired to ans!er the petition for e2tradition. Thus, 7ection 0 of P... No. )/0+ provides& 7ec. 0. Issuance o+ Summons4 "em*orar6 Arrest4 (earin), Service o+ Notices. D :)< 5 ediatel$ upon receipt of the petition, the presidin" Fud"e of the court shall, as soon as practicable, su on the accused to appear and to ans!er the petition on the da$ and hour fi2ed in the order. #e a$ issue a !arrant for the i ediate arrest of the accused !hich a$ be served an$!here !ithin the Philippines if it appears to the presidin" Fud"e that the i ediate arrest and te porar$ detention of the accused !ill best serve the ends of Fustice. 9pon receipt of the ans!er !ithin the ti e fi2ed, the presidin" Fud"e shall hear the case or set another date for the hearin" thereof. :A< The order and notice as !ell as a cop$ of the !arrant of arrest, if issued, shall be pro ptl$ served each upon the accused and the attorne$ havin" char"e of the case. 9pon receipt of the su ons and the petition, respondent is free to foist all defense available to hi . Suc& an o**ortunit6 does not den6 &im +airness w&ic& is t&e essence o+ due *rocess o+ law. Thus, !ith due respect, 5 sub it that t&e *onencia +ailed to accord due im*ortance to t&e international law as*ect o+ an e'tradition treat6 as it undul6 stressed its constitutional law dimension . This "oes a"ainst the fa iliar learnin" that in balancin" the clashin" interests involved in e2tradition treat$, national interest is more equal t&an t&e ot&ers. 3hile latel$, hu anitarian considerations are bein" factored in the e>uation, still the concept of e2tradition as a national act is the "uidin" idea. Re>uestin" and "rantin" e2tradition re ains a po!er and prero"ative of the national "overn ent of a 7tate. The process still involves relations bet!een international personalities.A=Needless to state, a more de+erential treatment s&ould be )iven to national interest t&an to individual interest . 'ur national interest in e2traditin" persons !ho have co itted cri es in a forei"n countr$ are succinctl$ e2pressed in the !hereas clauses of P... No. )/0+, vi3& 3#EREA7, the Constitution of the Philippines adopts the "enerall$ accepted principles of international la! as part of la! of the land, and adheres to the polic$ of peace, e>ualit$, Fustice, freedo , coo*eration and amit6 wit& all nations4

3#EREA7, the su**ression o+ crime is the concern not onl$ of the state !here it is co itted but also of an$ other state to !hich the cri inal a$ have escaped, because it saps the foundation of social life and is an outra"e upon hu anit$ at lar"e, and it is in t&e interest o+ civili3ed communities t&at crimes s&ould not )o un*unis&ed. . . . . "&e increasin) incidence o+ international and transnational crimes t&e develo*ment o+ new tec&nolo)ies o+ deat&,and t&e s*eed and scale o+ im*rovement o+ communication are +actors w&ic& &ave virtuall6 anni&ilated time and distance. "&e6 ma>e more com*ellin) t&e vindication o+ national interest to insure t&at t&e *unis&ment o+ criminals s&ould not be +rustrated b6 t&e +rontiers o+ territorial soverei)nt6 . "&is overridin) national interest must be u*&eld as a)ainst res*ondent?s wea> constitutional claims w&ic& in no wa6 amount to denial o+ +undamental +airness. At bottom, t&is case involves t&e res*ect t&at courts s&ould accord to t&e E'ecutive t&at concluded t&e RP-US E'tradition "reat6 in t&e conduct o+ our +orei)n a++airs. As earl$ as )?//, the le"endar$ (ohn Marshall, then a con"ress an, has opined that the po!er to e2tradite pursuant to a treat$ rests in the e2ecutive branch as part of its po!er to conduct forei"n affairs.A0 Courts have validated this for!ard;lookin" opinion in a catena of unbroken cases. The$ defer to the Fud" ent of the E2ecutive on the necessities of our forei"n affairs and on its vie! of the re>uire ents of international co it$. The de+erential attitude is dictated b$ the robust realit$ that of the three "reat branches of our "overn ent, it is t&e E'ecutive t&at is most quali+ied to )uide t&e s&i* o+ t&e state on t&e >nown and un>nown continents o+ +orei)n relations. 5t is also co pelled b$ considerations of the principle of se*aration o+ *owers for the Constitution has clearl$ allocated the po!er to conduct our forei"n affairs to the E2ecutive. I res*ect+ull6 submit t&at t&e ma7orit6 decision &as wea>ened t&e E'ecutive b6 allowin) not&in) less t&an an unconstitutional &eadbutt on t&e *ower o+ t&e E'ecutive to conduct our +orei)n a++airs . "&e ma7orit6 s&ould be cautions in involvin) t&is !ourt in t&e conduct o+ t&e nation?s +orei)n relations w&ere t&e inviolable rule dictated b6 necessit6 is t&at t&e nation s&ould s*ea> wit& one voice. 4e s&ould not overloo> t&e realit6 t&at courts b6 t&eir nature, are ill-equi**ed to +ull6 com*re&end t&e +orei)n *olic6 dimension o+ a treat6 , some o+ w&ic& are &idden in s&adows and sil&ouettes. I vote to )rant t&e *etition.

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PANGAN"-AN, 5. dissentin" opinion4 3ith due respect, 5 dissent. The ain issue before us is !hether Private Respondent Mark B. (i enez is entitled to the due process ri"hts of notice and hearin" durin" the preli inar$ or evaluation sta"e of the e2tradition proceedin" a"ainst hi . "wo Sta)ed in E'tradition There are essentiall$ t!o sta"es in e2tradition proceedin"s& :)< the preli inar$ or evaluation sta"e, !hereb$ the e2ecutive authorit$ of the re>uested state ascertains !hether the e2tradition re>uest is supported b$ the docu ents and infor ation re>uired under the E2tradition Treat$4 and :A< the e2tradition hearin", !hereb$ the petition for e2tradition is heard before a court of Fustice, !hich deter ines !hether the accused should be e2tradited. The instant petition refers onl$ to the first sta"e. Private respondent clai s that he has a ri"ht to be notified and to be heard at this earl$ sta"e. #o!ever, even the *onencia ad its that neither the RP;97 E2tradition Treat$ nor P. )/0+ :the Philippine E2tradition Ea!< e2pressl$ re>uires the Philippine "overn ent, upon receipt of the re>uest for e2tradition, to "ive copies thereof and its supportin" docu ents to the prospective e2traditee, uch less to "ive hi an opportunit$ to be heard prior to the filin" of the petition in court. Notabl$, international e2tradition proceedin"s in the 9nited 7tates do not include the "rant b$ the e2ecutive authorit$ of notice and hearin" to the prospective e2traditee at this initial sta"e. 5t is the Fud"e or a"istrate !ho is authorized to issue a !arrant of arrest and to hold a hearin" to consider the evidence sub itted in support of the e2tradition re>uest. 5n contrast, in interstate rendition, the "overnor ust, upon de and, furnish the fu"itive or his attorne$ copies of the re>uest and its acco pan$in" docu ents, pursuant to statutor$ provisions.) 5n the Philippines, there is no si ilar statutor$ provision. Evaluation Sta)e Essentiall6 Ministerial The evaluation sta"e si pl$ involves the ascertain ent b$ the forei"n affairs secretar$ of !hether the e2tradition re>uest is acco panied b$ the docu ents stated in para"raphs A and *, Article , of the Treat$, relatin" to

the identit$ and the probable location of the fu"itive4 the facts of the offense and the procedural histor$ of the case4 provisions of the la! describin" the essential ele ents of the offense char"ed and the punish ent therefor4 its prescriptive period4 such evidence as !ould provide probable cause for the arrest and the co ittal for trial of the fu"itive4 and copies of the !arrant or order of arrest and char"in" docu ent. The forei"n affairs secretar$ also sees to it that these acco pan$in" docu ents have been certified b$ the principal diplo atic or consular officer of the Philippines in the 9nited 7tates, and that the$ are in En"lish lan"ua"e or have En"lish translations. Pursuant to Article * of the Treat$, he also deter ines !hether the re>uest is politicall$ otivated, and !hether the offense char"ed is a ilitar$ offense not punishable under non; ilitar$ penal le"islation.A 9pon a findin" of the secretar$ of forei"n affairs that the e2tradition re>uest and its supportin" docu ents are sufficient and co plete in for and substance, he shall deliver the sa e to the Fustice secretar$, !ho shall i ediatel$ desi"nate and authorize an attorne$ in his office to take char"e of the case. The la!$er desi"nated shall then file a !ritten petition !ith the proper re"ional trial court, !ith a pra$er that the court take the e2tradition re>uest under consideration.* 4&en t&e Ri)&t to Notice and (earin) 1ecomes Available Accordin" to private Respondent (i enez, his ri"ht to due process durin" the preli inar$ sta"e e anates fro our Constitution, particularl$ 7ection ), Article 555 thereof, !hich provides& No person shall be deprived of life, libert$ or propert$ !ithout due process of la!. #e clai s that this ri"ht arises i ediatel$, because of the possibilit$ that he a$ be provisionall$ arrested pursuant to Article + of the RP;97 Treat$, !hich reads& 5n case of ur"enc$, a Contractin" Part$ a$ re>uest the provisional arrest of the person sou"ht pendin" presentation of the re>uest for e2tradition. A re>uest for provisional arrest a$ be trans itted throu"h the diplo atic channel or directl$ bet!een the Philippine .epart ent of (ustice and the 9nited 7tates .epart ent of (ustice. 222 222 222

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(ustice Melo%s *onencia supports private respondent%s contention. 5t states that there are t!o occasions !herein the prospective e2traditee a$ be deprived of libert$& :)< in case of a provisional arrest pendin" the sub ission of the e2tradition re>uest and :A< his te porar$ arrest durin" the pendenc$ of the e2tradition petition in court.6 The second instance is not in issue here, because no petition has $et been filed in court. #o!ever, the above;>uoted Article + on provisional arrest is not auto aticall$ operative at all ti es, and in enforce ent does not depend solel$ on the discretion of the re>uested state. -ro the !ordin"s of the provision itself, there are at least three re>uisites& :)< there ust be an ur"enc$, and :A< there is a correspondin" re>uest :*< !hich ust be ade prior to the presentation of the re>uest for e2tradition. 5n the instant case, there appears to be no ur"enc$ characterizin" the nature of the e2tradition of private respondent. Petitioner does not clai an$ such ur"enc$. There is no re>uest fro the 9nited 7tates for the provisional arrest of Mark (i enez either. And the secretar$ of Fustice states durin" the 'ral Ar"u ent that he had no intention of appl$in" for the provisional arrest of private respondent.= -inall$, the for al re>uest for e2tradition has alread$ been ade4 therefore, provisional arrest is not likel$, as it should reall$ co e be+ore the e2tradition re>uest.0 Mar> 5imene3 Not in 5eo*ard6 o+ Arrest 9nder the outlined facts of this case, there is no open door for the application of Article +, contrar$ to the apprehension of private respondent. 5n other !ords, there is no actual dan"er that (i enez !ill be provisionall$ arrested or deprived of his libert$. There is as $et no threat that his ri"hts !ould be tra pled upon, pendin" the filin" in court of the petition for his e2tradition. #ence, there is no substantial "ain to be achieved in re>uirin" the forei"n affairs :or Fustice< secretar$ to notif$ and hear hi durin" the *reliminar6 sta)e, !hich basicall$ involves onl$ the e2ercise of the inisterial po!er of checkin" the sufficienc$ of the docu ents attached to the e2tradition re>uest. 5t ust be borne in ind that durin" the preli inar$ sta"e, the forei"n affairs secretar$%s deter ination of !hether the offense char"ed is e2traditable or politicall$ otivated is erel$ *reliminar6. The sa e issue !ill be resolved b$ the trial court., Moreover, it is also the po!er and the dut$ of the court, not the e2ecutive authorit$, to deter ine !hether there is sufficient evidence to establish probable cause that the e2traditee co itted the cri es char"ed.? The sufficienc$ of the evidence of cri inalit$ is to be deter ined

based on the la!s of the re>uested state. + Private Respondent (i enez !ill, therefore, definitel$ have his full opportunit$ before the court, in case an e2tradition petition !ill indeed be filed, to be heard on all issues includin" the sufficienc$ of the docu ents supportin" the e2tradition re>uest.)/ Private respondent insists that the 9nited 7tates a$ still re>uest his provisional arrest at an$ ti e. That is purel$ speculative. 5t is ele entar$ that this Court does not declare Fud" ents or "rant reliefs based on speculations, sur ises or conFectures. 5n an$ event, even "rantin" that the arrest of (i enez is sou"ht at an$ ti e despite the assurance of the Fustice secretar$ that no such easure !ill be undertaken, our local la!s and rules of procedure respectin" the issuance of a !arrant of arrest !ill "overn, there bein" no specific provision under the E2tradition Treat$ b$ !hich such !arrant should issue. Therefore, (i enez !ill be entitled to all the ri"hts accorded b$ the Constitution and the la!s to an$ person !hose arrest is bein" sou"ht.,-w*&i,.n/t The ri"ht of one state to de and fro another the return of an alle"ed fu"itive fro Fustice and the correlative dut$ to surrender the fu"itive to the de andin" countr$ e2ist onl$ !hen created b$ a treat$ bet!een the t!o countries. 5nternational la! does not re>uire the voluntar$ surrender of a fu"itive to a forei"n "overn ent, absent an$ treat$ stipulation re>uirin" it.)) 3hen such a treat$ does e2ist, as bet!een the Philippines and the 9nited 7tates, it ust be presu ed that the contractin" states perfor their obli"ations under it !ith uberrimae +idei, treat$ obli"ations bein" essentiall$ characterized internationall$ b$ co it$ and utual respect. "&e Need +or Res*ondent 5imene3 to 0ace !&ar)es in t&e US 'ne final point. Private respondent also clai s that fro the ti e the secretar$ of forei"n affairs "ave due course to the re>uest for his e2tradition, incalculable preFudice has been brou"ht upon hi . And because of the oral inFur$ caused, he should be "iven the opportunit$ at the earliest possible ti e to stop his e2tradition. 5 believe that an$ oral inFur$ suffered b$ private respondent had not been caused b$ the ere processin" of the e2tradition re>uest. And it !ill not cease erel$ b$ "rantin" hi the opportunit$ to be heard b$ the e2ecutive authorit$. The concrete char"es that he has alle"edl$ co itted certain offenses alread$ e2ist. These char"es have been filed in the 9nited 7tates and are part of public and official records there. Assu in" the e2istence of oral inFur$, the onl$ eans b$ !hich he can restore his "ood reputation is to prove before the proper Fudicial authorities in the 97 that the char"es a"ainst hi are unfounded. 7uch restoration cannot be

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acco plished b$ si pl$ contendin" that the docu ents supportin" the re>uest for his e2tradition are insufficient. !onclusion 5n the conte2t of the factual ilieu of private respondent, there is reall$ no threat of an$ deprivation of his libert$ at the present sta"e of the e2tradition process. #ence, the constitutional ri"ht to due process D particularl$ the ri"ht to be heard D finds no application. To "rant private respondent%s re>uest for copies of the e2tradition docu ents and for an opportunit$ to co ent thereon !ill constitute 1over;due process1 and unnecessaril$ dela$ the proceedin"s. 3#ERE-'RE, 5 vote to "rant the Petition.

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