G.R. No. L-17169 November 30, 1963 When Commissioner of Customs Manuel P.
When Commissioner of Customs Manuel P. Manahan learned of the release of the concentrates in
ISIDRO C. ANG-ANGCO, petitioner,
vs.
HON. NATALIO P. CASTILLO, ET AL., respondents.
Juan T. David for petitioner.
Office of the Solicitor General for respondents.
BAUTISTA ANGELO, J.:
On October 8, 1956, the Pepsi-Cola Far East Trade Development Co., Inc. wrote a letter to the Secretary
of Commerce and Industry requesting for special permit to withdraw certain commodities from the
customs house which were imported without any dollar allocation or remittance of foreign exchange. Said
commodities consisted of 1,188 units of pepsi-cola concentrates which were not covered by any Central
Bank release certificate. On the same date, the company addressed an identical request to the Secretary
of Finance who was also the Chairman of the Monetary Board of the Central Bank. Senator Pedro Sabido,
in behalf of the company, likewise wrote said official urging that authority be given to withdraw the
abovementioned concentrates. Not content with this step, he also wrote to Dr. Andres Castillo, Acting
Governor of the Central Bank, urging, the same matter. Then Secretary Hernandez wrote another letter to
Dr. Castillo stating, "Senator Sabido is taking this to you personally. Unless we have legal objection, I
would like to authorize the withdrawal of the concentrates upon payment of all charges in pesos. Please
expedite action."
Almost at the same time, the Import-Export Committee of the Central Bank, thru Mr. Gregorio Licaros,
submitted to the Monetary Board a memorandum on the joint petition of the company and Sabido Law
Office for authority to withdraw the concentrates from the customs house stating therein that it sees no
objection to the proposal. The Monetary Board, however, failed to take up the matter in its meeting of
October 12, 1956 for the reason that the transaction did not involve any dollar allocation or foreign
exchange, and of this decision Mr. Licaros was informed.
Having failed to secure the necessary authority from the Central Bank, on October 13, 1956, the counsel
of the Pepsi-Cola Far East Trade Development Co., Inc., approached Collector of Customs Isidro Ang-
Angco in an attempt to secure from him the immediate release of the concentrates, but this official seeing
perhaps that the importation did not carry any release certificate from the Central Bank advised the
counsel to try to secure the necessary release certificate from the No-Dollar Import Office that had
jurisdiction over the case. In the morning of the same day, Mr. Aquiles J. Lopez, of said Office, wrote a
letter addressed to the Collector of Customs stating, among other things, that his office had no objection
to the release of the 1,188 units of concentrates but that it could not take action on the request as "the
same is not within the jurisdiction of the No-Dollar Import Office within the contemplation of R.A. No.
1410." The counsel already referred to above showed the letter to Collector of Customs Ang-Angco who
upon perusing it still hesitated to grant the release. Instead he suggested that the letter be amended in
order to remove the ambiguity appearing therein, but Mr. Lopez refused to amend the letter stating that
the same was neither a permit nor a release. Secretary of Finance Hernandez having been contacted by
telephone, Collector of Customs Ang-Angco read to him the letter after which the Secretary verbally
expressed his approval of the release on the basis of said certificate. Collector Ang-Angco, while still in
doubt as to the propriety of the action suggested, finally authorized the release of the concentrates upon
payment of the corresponding duties, customs charges, fees and taxes.
1
question he immediately ordered their seizure but only a negligible portion thereof remained in the
warehouse. Whereupon, he filed an administrative complaint against Collector of Customs Ang-Angco
charging him with having committed a grave neglect of duty and observed a conduct prejudicial to the best
interest of the customs service. On the strength of this complaint President Ramon Magsaysay constituted
an investigating committee to investigate Ang-Angco composed of former Solicitor General Ambrosio
Padilla, as Chairman, and Atty. Arturo A. Alafriz and Lt. Col. Angel A. Salcedo, as members. Together
with Collector Ang-Angco, Mr. Aquiles J. Lopez, was also investigated by the same Committee, who was
also charged in a separate complaint with serious misconduct in office or conduct prejudicial to the best
interest of the State. As a result, Collector Ang-Angco was suspended from office in the latter part of
December, 1956.
After the investigation, the committee submitted to President Magsaysay its report recommending that a
suspension of 15 days, without pay, be imposed upon Ang-Angco chargeable against the period of his
suspension. On April 1, 1957, Collector Ang-Angco was reinstated to his office by Secretary Hernandez,
but the decision on the administrative case against him remained pending until the death of President
Magsaysay. After around three years from the termination of the investigation during which period Ang-
Angco had been discharging the duties of his office, Executive Secretary Natalio P. Castillo, by authority
of the President, rendered a decision on the case on February 12, 1960 finding Ang-Angco "guilty of
conduct prejudicial to the best interest of the service", and considering him resigned effective from the
date of notice, with prejudice to reinstatement in the Bureau of Customs.
Upon learning said decision from the newspapers, Collector Ang-Angco wrote a letter to President Carlos
P. Garcia calling attention to the fact that the action taken by Secretary Castillo in removing him from
office had the effect of depriving him of his statutory right to have his case originally decided by the
Commissioner of Civil Service, as well as of his right of appeal to the Civil Service Board of Appeals,
whose decision under Republic Act No. 2260 is final, besides the fact that such decision is in violation of
the guaranty vouchsafed by the Constitution to officers or employees in the civil service against removal
or suspension except for cause in the manner provided by law.
In a letter dated February 16, 1960, Secretary Castillo, also by authority of the President, denied the
request for reconsideration. Not satisfied with this resolution, Collector Ang-Angco sent a memorandum to
President Garcia reiterating once more the same grounds on which he predicated his request for
reconsideration. Again Secretary Castillo, also by authority of the President, in letter dated July 1, 1960,
denied the appeal. In this instance, Secretary Castillo asserted that the President virtue of his power of
control over all executive departments, bureaus and offices, can take direct action and dispose of the
administrative case in question inasmuch as the provisions of law that would seem to vest final authority in
subordinate officers of the executive branch of the government over administrative matters falling under
their jurisdiction cannot divest the President of his power of control nor diminish the same.
Hence, after exhausting all the administrative remedies available to him to secure his reinstatement to the
office from which he was removed without any valid cause or in violation of his right to due process of law,
Collector Ang-Angco filed before this Court the present petition for certiorari, prohibition and mandamus
with a petition for the issuance of a preliminary mandatory injunction. The Court gave due course to the
petition, but denied the request for injunction.
The main theme of petitioner is that respondent Executive Secretary Natalio P. Castillo in acting on his
case by authority of the President in the sense of considering him as resigned from notice thereof, violated
the guaranty vouchsafed by the Constitution to officers and employees in the classified service in that he
acted in violation of Section 16 (i) of the Civil Service Act of 1959 which vests in the Commissioner of Civil
Service the original and exclusive jurisdiction to decide administrative cases against officers and
employees in the classified service, deprived him of his right of appeal under Section 18 (b) of the same
Act to the Civil Service Board of Appeals whose decision on the matter is final, and removed him from the
service without due process in violation of Section 32 of the same Act which expressly provides that the
removal or suspension of any officer or employee from the civil service shall be accomplished only after
due process, and of Section 4, Article XII of our Constitution which provides that "No officer or employee
in the civil service shall be removed except for cause as provided for by law." Since petitioner is an officer
who belongs to the classified civil service and is not a presidential appointee, but one appointed by the
Secretary of Finance under the Revised Administrative Code, he cannot be removed from the service by
the President in utter disregard of the provisions of the Civil Service Act of 1959.
Respondents, on their part, do not agree with this theory entertained by petitioner. They admit that if the
theory is to be considered in the light of the provisions of the Civil Service Act of 1959, the same may be
correct, for indeed the Civil Service Law as it now stands provides that all officers and employees who
belong to the classified service come under the exclusive jurisdiction of the Commissioner of Civil Service
and as such all administrative cases against them shall be indorsed to said official whose decision may be
appealed to the Civil Service Board of Appeals from whose decision no further appeal can be taken. They
also admit that petitioner belongs to the classified civil service. But it is their theory that the pertinent
provisions of the Civil Service Law applicable to employees in the classified service do not apply to the
particular case of petitioner since to hold otherwise would be to deprive the President of his power of
control over the officers and employees of the executive branch of the government. In other words,
respondents contend that, whether the officers or employees concerned are presidential appointees or
belong to the classified service, if they are all officers and employees in the executive department, they all
come under the control of the President and, therefore, his power of removal may be exercised over them
directly without distinction. Indeed, respondents contend that, if, as held in the case of Negado v. Castro,
55 O.G., 10534, the President may modify or set aside a decision of the Civil Service Board of Appeals at
the instance of the office concerned, or the respondent employee, or may even do so motu propio, there
would be in the final analysis no logical difference between removing petitioner by direct action of the
President and separating him from the service by ultimate action by the President should an appeal be
taken from the decision of the Civil Service Board of Appeals to him, or if in his discretion he may motu
proprio consider it necessary to review the Board's decision. It is contended that this ruling still holds true
in spite of the new provision wrought into the law by Republic Act 2260 which eliminated the power of
review given to the President because the power of control given by the Constitution to the President over
officers and employees in the executive department can only be limited by the Constitution and not by
Congress, for to permit Congress to do so would be to diminish the authority conferred on the President
by the Constitution which is tantamount to amending the Constitution itself (Hebron v. Reyes, L- 9124,
July 28, 1958). Indeed this is the argument invoked by respondent Castillo in taking direct action against
petitioner instead of following the procedure outlined in the Civil Service Act of 1959 as may be seen from
the following portion of his decision.
In connection with the second ground advanced in support of your petition, it is contended that in deciding
the case directly, instead of transmitting it to the Commissioner of Civil Service for original decision, his
Office deprived the respondent of his right to appeal to the Civil Service Board of Appeals. This contention
overlooks the principle that the President may modify or set aside a decision of the Civil Service Board of
Appeals at the instance of either the office concerned or the respondent employee, or may even do so
motu proprio (Negado vs. Castro, 55 O.G, No. 51, p. 10534, Dec. 21, 1959). There would therefore be no
difference in effect between direct action by the President and ultimate action by him should an appeal be
taken from the decision of the Commissioner of Civil Service or the Civil Service Board of Appeals. The
2
result is that the President's direct action would be the final decision that would be reached in case an
appeal takes its due course.
Thus, we see that the main issue involved herein is whether the President has the power to take direct
action on the case of petitioner even if he belongs to the classified service in spite of the provisions now in
force in the Civil Service Act of 1959. Petitioner sustains the negative contending that the contrary view
would deprive him of his office without due process of law while respondents sustain the affirmative
invoking the power of control given to the President by the Constitution over all officers and employees,
belonging to the executive department.
To begin with, we may state that under Section 16 (i) of the Civil Service Act of 1959 it is the
Commissioner of Civil Service who has original and exclusive jurisdiction to decide administrative cases of
all officers and employees in the classified service for in said section the following is provided: "Except as
otherwise provided by law, (the Commissioner shall) have final authority to pass upon the removal,
separation and suspension of all permanent officers and employees in the competitive or classified
service and upon all matters relating to the employees." The only limitation to this power is that the
decision of the Commissioner may be appealed to the Civil Service Board of Appeals, in which case said
Board shall decide the appeal within a period of 90 days after the same has been submitted for decision,
whose decision in such case shall be final (Section 18, Republic Act 2260). It should be noted that the law
as it now stands does not provide for any appeal to the President, nor is he given the power to review the
decision motu proprio, unlike the provision of the previous law, Commonwealth Act No. 598, which was
expressly repealed by the Civil Service Act of 1959 (Rep. Act 2260), which provides that the decision of
the Civil Service Board of Appeals may be reversed or modified motu proprio by the President. It is,
therefore, clear that under the present provision of the Civil Service Act of 1959, the case of petitioner
comes under the exclusive jurisdiction of the Commissioner of Civil Service, and having been deprived of
the procedure laid down therein in connection with the investigation and disposition of his case, it may be
said that he has been deprived of due process as guaranteed by said law.
It must, however, be noted that the removal, separation and suspension of the officers and employees of
the classified service are subject to the saving clause "Except as otherwise provided by law" (Section 16
[i], Republic Act No. 2260). The question then may be asked: Is the President empowered by any other
law to remove officers and employees in the classified civil service?
The only law that we can recall on the point is Section 64 (b) of the Revised Administrative Code, the
pertinent portion of which we quote:
(b) To remove officials from office conformably to law and to declare vacant the offices held by such
removed officials. For disloyalty to the (United States) Republic of the Philippines, the (Governor-General)
President of the Philippines may at any time remove a person from any position of trust or authority under
the Government of the (Philippine Islands) Philippines.
The phrase "conformably to law" is significant. It shows that the President does not have blanket authority
move any officer or employee of the government but his power must still be subject to the law that passed
by the legislative body particularly with regard the procedure, cause and finality of the removal of persons
who may be the subject of disciplinary action. Here, as above stated we have such law which governs
action to be taken against officers and employees in classified civil service. This law is binding upon
President.
Another provision that may be mentioned is Section (D) of the Revised Administrative Code, which
provides:
Power to appoint and remove. — The Department Head, the recommendation of the chief of the Bureau
or office concerned, shall appoint all subordinate officers and employees appointment is not expressly
vested by law in the (Governor-General) President of the Philippines, and may remove or punish them,
except as especially provided otherwise, in accordance the Civil Service Law.
The phrase "in accordance with the Civil Service is also significant. So we may say that even granting for
administrative purposes, the President of the Philippines is considered as the Department Head of the
Civil Service Commission, his power to remove is still subject to the Civil Service Act of 1959, and we
already know with regard to officers and employees who belong to classified service the finality of the
action is given to the Commissioner of Civil Service or the Civil Board of Appeals.
Let us now take up the power of control given to President by the Constitution over all officers and
employees in the executive department which is now in by respondents as justification to override the
specific visions of the Civil Service Act. This power of control couched in general terms for it does not set
in specific manner its extent and scope. Yes, this Court in the case of Hebron v. Reyes, supra, had
already occasion to interpret the extent of such power to mean "the power of an officer to alter or modify
or nullify or set aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter,"1 to distinguish it from the power of general
supervision over municipal government, but the decision does not go to the extent of including the power
to remove an officer or employee in the executive department. Apparently, the power merely applies to the
exercise of control over the acts of the subordinate and not over the actor or agent himself of the act. It
only means that the President may set aside the judgment or action taken by a subordinate in the
performance of his duties.
That meaning is also the meaning given to the word "control" as used in administrative law. Thus, the
Department Head pursuant to Section 79(C) is given direct control of all bureaus and offices under his
department by virtue of which he may "repeal or modify decisions of the chiefs of said bureaus or offices",
and under Section 74 of the same Code, the President's control over the executive department only refers
to matters of general policy. The term "policy" means a settled or definite course or method adopted and
followed by a government, body, or individual,2 and it cannot be said that the removal of an inferior officer
comes within the meaning of control over a specific policy of government.
But the strongest argument against the theory of respondents is that it would entirely nullify and set at
naught the beneficient purpose of the whole civil service system implanted in this jurisdiction, which is to
give stability to the tenure of office of those who belong to the classified service, in derogation of the
provisions of our Constitution which provides that "No officer or employee in the civil service shall be
removed or suspended except for cause as provided by law" (Section 4, Article XII, Constitution).Here, we
have two provisions of our Constitution which are apparently in conflict, the power of control by the
President embodied in Section 10 (1), Article VII, and the protection extended to those who are in the civil
service of our government embodied in Section 4, Article XII. It is our duty to reconcile and harmonize
these conflicting provisions in a manner that may give to both full force and effect and the only logical,
practical and rational way is to interpret them in the manner we do it in this decision. As this Court has
aptly said in the case of Lacson v. Romero:
... To hold that civil service officials hold their office at the will of the appointing power subject to removal
or forced transfer at any time, would demoralize and undermine and eventually destroy the whole Civil
3
Service System and structure. The country would then go back to the days of the old Jacksonian Spoils
System under which a victorious Chief Executive, after the elections could if so minded, sweep out of
office, civil service employees differing in Political color or affiliation from him, and sweep in his Political
followers and adherents, especially those who have given him help, political or otherwise. (Lacson v.
Romero, 84 Phil. 740, 754)
There is some point in the argument that the Power of control of the President may extend to the Power to
investigate, suspend or remove officers and employees who belong to the executive department if they
are presidential appointees or do not belong to the classified service for such can be justified under the
principle that the power to remove is inherent in the power to appoint (Lacson V. Romero, supra), but not
with regard to those officers or employees who belong to the classified service for as to them that inherent
power cannot be exercised. This is in line with the provision of our Constitution which says that "the
Congress may by law vest the appointment of the inferior officers, in the President alone, in the courts, or
in heads of department" (Article VII, Section 10 [3], Constitution). With regard to these officers whose
appointments are vested on heads of departments, Congress has provided by law for a procedure for their
removal precisely in view of this constitutional authority. One such law is the Civil Service Act of 1959.
We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of
departments it may limit and restrict power of removal as it seem best for the public interest. The
constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and
regulate the removal by such laws as Congress may enact in relation to the officers so appointed. The
head of a department has no constitutional prerogative of appointment to officers independently of
legislation of Congress, and by such legislation he must be governed, not only in making appointments
but in all that is incident thereto. (U.S. v. Perkins, 116 U.S. 483)
In resume, we may conclude that the action taken by respondent Executive Secretary, even with the
authority of the President, in taking direct action on the administrative case of petitioner, without
submitting the same to the Commissioner of Civil Service, is contrary to law and should be set aside.
WHEREFORE, it is hereby ordered that petitioner be immediately reinstated to his office as Collector of
Customs for the Port of Manila, without prejudice of submitting his case to the Commissioner of Civil
Service to be dealt with in accordance with law. No costs.
Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera, Parades, Dizon, Regala and Makalintal, JJ.,
concur.
G.R. No. L-42428 March 18, 1983
BERNARDINO MARCELINO, petitioner,
vs.
THE HON. FERNANDO CRUZ, JR., as Presiding Judge of Branch XII of the Court of First Instance
of Rizal, PEOPLE OF THE PHILIPPINES, and THE PROVINCIAL WARDEN OF THE PROVINCIAL
JAIL OF RIZAL, respondents.
ESCOLIN, J.:
A petition for prohibition and writ of habeas corpus to enjoin respondent Judge Fernando Cruz, Jr. from
promulgating his decision in Criminal Case No. C-5910, entitled People of the Philippines versus
Bernardino Marcelino, and for release from detention of petitioner, the accused in said case, on the
ground of loss of jurisdiction of respondent trial court over the case for failure to decide the same within
the period of ninety [90] days from submission thereof.
Petitioner was charged with the crime of rape before the Court of First Instance of Rizal, Branch XII. Trial
was conducted and the same was concluded when the accused rested his case on August 4, 1975. On
the same date, however, the attorneys for both parties moved for time within which to submit their
respective memoranda. The trial court granted the motion as follows:
Upon joint motion, the parties are given thirty [30] days to submit their respective memoranda,
simultaneously, and thereafter the case shall be deemed submitted for decision of the Court.
Counsel for petitioner submitted his memorandum in due time, but no memorandum was filed by the
People.
On November 28, 1975, respondent judge filed with the Deputy Clerk of Court his decision in said case for
promulgation. The decision was also dated November 28, 1975. 1
A certification dated January 26, 1976 was executed by Postmaster Jesse A. Santos of the Grace Park
Post Office 2 to the effect that registered letters Nos. 011980 and 011981, addressed to Marietta Ferrer of
9-E Mango Road, Portero, Malabon, Rizal, the complaining witness, and Atty, Angel P. Purisima of 414
Shurdut Bldg., Intramuros, Manila, counsel for the accused, respectively, were posted in said office on
December 4, 1975. These notices were received by the respective addressees on December 8 and 9,
1975. 3
Similar notices were sent to the Provincial Fiscal of Pasig and to the Provincial Warden of Pasig, Rizal,
who both received them on December 2,1975, 4
On the date set for promulgation of the decision, counsel for accused moved for postponement, raising for
the first time the alleged loss of jurisdiction of the trial court for failure to decide the case within 90 days
from submission thereof for decision. Acceding to counsel's request that he be given time to consider the
proper remedial measure to take, the respondent judge reset the promulgation of the decision to January
19, 1976 at 8:30 A. M.
On January 19, 1976, counsel for petitioner moved anew for the resetting of the promulgation of decision.
Granting the motion, respondent judge rescheduled the promulgation to January 26, 1976.
4
Meanwhile, on January 12, 1976, counsel for the accused filed before Us the present petition. On January
16, 1976, this Court issued an Order temporarily restraining respondent judge from promulgating the
decision in Criminal Case No, C-5910.
Petitioner espouses the thesis that the three-month period prescribed by Section 11[l] of Article X of the
1973 Constitution, being a constitutional directive, is mandatory in character and that non-observance
thereof results in the loss of jurisdiction of the court over the unresolved case.
We disagree. Undisputed is the fact that on November 28, 1975, or eighty- five [851 days from September
4, 1975 the date the case was deemed submitted for decision, respondent judge filed with the deputy
clerk of court the decision in Criminal Case No. 5910. He had thus veritably rendered his decision on said
case within the three-month period prescribed by the Constitution.
In Comia v. Nicolas, 5 Ago v. Court of Appeals 6 and Balquidra v. Court of First Instance 7 this Court ruled
that the rendition of the judgment in trial courts refers to the filing of the signed decision with the clerk of
court. There is no doubt that the constitutional provision cited by petitioner refers to the rendition of
judgment and not to the promulgation thereof. Thus, it is this date that should be considered in
determining whether or not respondent judge had resolved the case within the allotted period. Indeed, the
date of promulgation of a decision could not serve as the reckoning date because the same necessarily
comes at at a later date, considering that notices have to be sent to the accused as well as to the other
parties involved, an event which is beyond the control of the judge. As pointed out in People v. Court of
Appeals 8, the promulgation of a judgment in the trial court does not necessarily coincide with the date of
its delivery by the judge of the clerk of court.
Section 11 [1], Article X of the New Constitution provides in full, to wit:
SEC. 11 [1]. Upon the effectivity of this Constitution, the maximum period within which a case or matter
shall be decided or resolved from the date of its submission, shall be eighteen months for the Supreme
court, and, unless reduced by the Supreme Court, twelve months for all inferior collegiate courts, and
three months for all other inferior courts.
To date, no authoritative interpretation of the above-quoted provision has been rendered by this Court.
Thus, in approaching this novel question, We now tread upon what Mr. Cooley characterizes as "very
dangerous ground when they [referring to the courts] venture to apply rules which distinguish directory
and mandatory statutes to the provisions of a constitution." 9
The established rule is that "constitutional provisions are to be construed as mandatory, unless by
express provision or by necessary implication, a different intention is manifest." 10 "The difference
between a mandatory and a directory provision is often determined on grounds of expediency, the reason
being that less injury results to the general public by disregarding than by enforcing the letter of the law."
11
In Trapp v. McCormick, 12 a case calling for the interpretation of a statute containing a limitation of thirty
[30] days within which a decree may be entered without the consent of counsel, it was held that "the
statutory provisions which may be thus departed from with impunity, without affecting the validity of
statutory proceedings, are usually those which relate to the mode or time of doing that which is essential
to effect the aim and purpose of the Legislature or some incident of the essential act. " Thus, in said case,
the statute under examination was construed merely to be directory.

On this view, authorities are one in saying that:
Statutes requiring the rendition of judgment forthwith or immediately after the trial or verdict have been
held by some courts to be merely directory so that non-compliance with them does not invalidate the
judgment, on the theory that if the statute had intended such result it would clearly have indicated it."
[American Tupe Founders Co. v. Justice's Court, 133 Cal. 819, 65 Pac. 742; Heillen v. Phillips, 88 Cal.
557, 26 Pac. 366; Drake v. Bagley, 69 Mo. App. 39, State v. Davis, 194 Mo. 585, 5 Ann. Cas. 1000, 4
L.R.A. (N.S.) 1023, 92 S.W. 484; Wissman v. Meagher, 115 Mo. App. 82, 91 S.W. 448; Pohle v.
Dickmann, 67 Mo. App. 381; Herwick v. Koken Barber Supply Co., 61 Mo. App. 454].
Such construction applies equally to the constitutional provision under consideration. In Mikell v. School
Dis. of Philadelphia, 13 it was ruled that "the legal distinction between directory and mandatory laws is
applicable to fundamental as it is to statutory laws."
To Our mind, the phraseology of the provision in question indicates that it falls within the exception rather
than the general rule. By the phrase "unless reduced by the Supreme Court," it is evident that the period
prescribed therein is subject to modification by this Court in accordance with its prerogative under Section
5[5] of Article X of the New Constitution to "promulgate rules concerning pleading, practice and procedure
in all courts ... " And there can be no doubt that said provision, having been incorporated for reasons of
expediency, relates merely to matters of procedure. Albermarle Oil & Gas Co. v. Morris, 14 declares that
constitutional provisions are directory, and not mandatory, where they refer to matters merely procedural.
In practice, We have assumed a liberal stand with respect to this provision. This Court had at various
times, upon proper application and for meritorious reasons, allowed judges of inferior courts additional
time beyond the three-month period within which to decide cases submitted to them. The reason is that a
departure from said provision would result in less injury to the general public than would its strict
application. To hold that non-compliance by the courts with the aforesaid provision would result in loss of
jurisdiction, would make the courts, through which conflicts are resolved, the very instruments to foster
unresolved causes by reason merely of having failed to render a decision within the alloted term. Such an
absurd situation could not have been intended by the framers of our fundamental law.
As foreseen by Mr. Henry Campbell Black in his Construction and Interpretation of the Laws, 15 the
constitutional provision in question should be held merely as directory. "Thus, where the contrary
construction) would lead to absurd, impossible or mischievous consequences, it should not be followed. "
Makasiar (Chairman), Concepcion Jr., Guerrero and De Castro, JJ., concur.
Aquino, J., is on leave.
Separate Opinions
ABAD SANTOS, J., concurring:
I concur and I wish to add the following observations:
The petitioner sinks release from detention on the ground of loss of jurisdiction of the trial court allegedly
because its judge failed to decide his case within 90 days from the date of its submission. Section 11(1),
Art. X of the Constitution is invoked.
The main opinion states that the 90-day period was not exceeded in this case and I agree. But exceeded
or not, a decision rendered by an inferior court outside of the 90-day period is not void for loss of
jurisdiction. To hold otherwise is to make the administration of justice depend heavily on the frailities of a
human judge. A decision rendered beyond the 90-day period, I submit, is valid and the only consequence
is to subject the erring judge to administrative action. "... failure to comply with the injunction for judges to
decide their cases within 90 days from submission merely deprives them of their right to collect their
salaries or to apply for leave (section 5, Judiciary Act of 1948; section 129, Revised Administrative Code)
but does not deprive them of jurisdiction to act in the causes pending before them." (Dimson vs. Elepaño,
99 Phil. 733, 737 ,1956].)
The judge who wrote the questioned decision has died. It cannot now be promulgated. "It is well-settled
that, to be binding, a judgment must be duly signed and promulgated during the incumbency of the judge
whose signature appears thereon." (People vs. So, July 30, 1957, No. L-8732, citing Lino Luna v.
Rodriguez, 37 Phil. 186; Garchitorena v. Crescini, 37 Phil. 675; Barredo v. The Commission on Elections,
45 Off. Gaz. 4457; People v. Court of Appeals, G.R. No. L-9111-9113.) For this reason, petitioner's case
has to be declared by another judge.

One last point, Notwithstanding Our conclusion that courts are not divested of their jurisdiction for failure
to decide a case within the ninety-day period, We here emphasize the rule, for the guidance of the judges
manning our courts, that cases pending before their salas must be decided within the aforementioned
period. Failure to observe said rule constitutes a ground for administrative sanction against the defaulting
judge. In fact a certificate to this certificate is required before judges are allowed Lo draw their salaries.

WHEREFORE, the petition is hereby dismissed; and the Restraining Order dated January 16, 1976
issued by this Court is lifted. Since respondent Judge Fernando Cruz, Jr. is already deceased, his
successor is hereby ordered to decide Criminal Case No. C-5910 on the basis of the record thereof within
ninety [90] days from the time the case is raffled to him.

SO ORDERED.

5

G.R. No. L-20051 May 30, 1966
ANTIQUE SAWMILLS, INC., petitioner and appellant,
vs.
AQUILES R. ZAYCO, ET AL., respondents and appellees.
C. T. Reyes, D. G. Magno and R. R. Tulod for petitioner and appellant.
Gamboa and Gamboa for respondent and appellee Zayco.
Office of the Solicitor General Arturo A. Alafriz and Solicitor Camilo D. Quiason for appellee Secretary of
Agriculture and Natural Resources.
REGALA, J.:
This is an appeal from the decision of the Court of first Instance of Manila dismissing the petition for
certiorari with preliminary injunction filed by the Antique Sawmills, Inc. seeking the annulment of the
decisions of the Executive Secretary dated August 27, 1956 and February 25, 1958 in DANR Case Nos.
1020 and 1020-A (In Re Forestry Notice No. 1598).
The only issue raised in this case is whether the Office of the President still retains or possesses
jurisdiction to review on appeal a decision of the Secretary of Agriculture and Natural Resources which
has become final. The issue came up by reason of the following incidents:
On September 30, 1954, a public bidding was conducted for the award of a 12680-hectare forest area.
Four parties submitted bid applications with the Bureau of Forestry, namely: the petitioner-appellant,
Antique Sawmills, Inc., the
respondent-appellee, Aquiles Zayco, Crisencio Milendez and Pedro T. Lo. On November 29, 1954, the
Director of Forestry awarded the bid to the respondent-appellee, Aquiles R. Zayco. Thereafter, the losing
bidders appealed the above award to the Secretary of Agriculture and Natural Resources who, on March
23, 1955, however, affirmed the same.
To the above order of March 23, 1955, all the losing bidders filed a motion for reconsideration with the
Secretary of Agricultural and Natural Resources and acting on this motion, the said Secretary issued an
order on July 14, 1955 modifying the original exclusive award to Aquiles R. Zayco. Under this July 14,
1955 order, the forest area in question was awarded in equal portions to Aquiles R. Zayco and the
petitioner-appellant, Antique Sawmills, Inc.1äwphï1.ñët
Zayco received a copy of the above-mentioned order on July 28, 1955, and on August 20, 1955, he filed
against it a motion for reconsideration. On September 10, 1955, this motion for reconsideration was
denied. Zayco received a copy of this order on November 27, 1955.
On December 19, 1955, Zayco filed with the Secretary of Agriculture and Natural Resources a second
motion for reconsideration which, on February 15, 1956, was resolved by the latter thus —
It appears that the herein motion which in effect is a second motion for reconsideration was filed too late,
that is, outside the reglementary period of thirty (30) days prescribed in Section 10 of Forestry
Administrative Order No. 6-2. From the time the movant received notice of the order sought to be
reconsidered on July 28, 1955, to the time he filed his first motion for reconsideration on August 20, 1955,
6
twenty-three (23) days had elapsed; and from his receipt of the order of this Office dated September 10,
1955, denying the first motion for reconsideration on November 22, 1955, to the filing of the instant motion
on December 19, 1955, twenty-seven (27) days had elapsed. All in all, fifty (50) days had elapsed from his
receipt of the order sought to be reconsidered to the filing of the herein motion. Consequently, the said
order of this office dated July 14, 1955 had already become final and executory pursuant to the aforecited
regulation.
It appears further that the grounds upon which the instant motion is based are unmeritorious and
undeserving of further consideration. That the appellant Antique Sawmills, Inc. fraudulently
misrepresented the facts of this case, is a gratuituous assertion belied by the evidence on record and then
further charge that said appellant is a dummy or is acting not on its own behalf but for another entity, for
the present is unfounded and based on the mere suspicions of the movant. At any rate, another re-
examination of the evidence on record has not only led us to the same conclusion, but also convinced us
more of the justice and wisdom of our disposition in the order of July 14, 1955.
On February 27, 1956, the respondent-appellee appealed the above order of February 15, 1956 to the
Office of the President. On March 10, 1956, the herein appellant interposed an opposition to the above-
mentioned appeal on the main ground that the order appealed from had already become final and
executory.
On August 27, 1956, however, the Executive Secretary rendered a decision sustaining the appeal and
reversing the order of the Secretary of Agriculture and Natural Resources dated July 14, 1955. This order
of the Executive Secretary awarded the entire forest concession in question to the respondent-appellee,
Aquiles B. Zayco. Pertinent portion of the decision reads:
The first issue to be resolved in this appeal is whether or not this Office can pass upon the merits of the
instant case, it appearing that the appeal was filed after the lapse of thirty (30) days from appellant's
receipt of that Department's order dated July 14, 1955. It appears, however, in the affidavit of the
appellant and in the records of this case that he was not duly represented by counsel in the main stages
of the proceedings, and that he was not aware of the reglementary period within which to take the various
steps to protect his rights. Moreover, there was no advertence on notice by that Department upon the
herein appellant that he had to exercise his rights within certain fixed periods. While it can not be denied
that, for the sake of orderly proceedings, technical rules may be relaxed in the interest of justice and
equity. We are inclined to liberalize the rule in this case to attain an approximation to substantial justice.
An examination of the record shows that the order modifying that Department's decision dated March 23,
1955, lacks legal and equitable basis. For this reason, this Office is constrained to pass upon the
substantial merits of the case.
After the denial of his motion for reconsideration on the order of the Executive Secretary, the petitioner
instituted with the Court of First Instance of Manila the instant proceedings.
The petitioner's theory is simple. It contends that the period provided by the rules for the perfection of an
appeal is not only mandatory but jurisdictional. Thus, since, the respondent-appellee failed to perfect his
appeal on time and finality had already set in the order of July 14, 1955, the Office of the President could
not have required jurisdiction over the same.
The respondents, on the other hand, maintain that the said period is a mere procedural technicality which,
at least in administrative proceedings, may liberally be relaxed.
In a long line of cases,1 the Supreme Court has ruled that compliance with the period provided by law for
the perfection of an appeal is not merely mandatory but also a jurisdictional requirement. Thus, in the case
of Miranda vs. Guanzon, et al., 92 Phil. 168, this Court held:

Section 13 of Rule 41 provides that when the appeal is not perfected within the reglementary period the
appeal shall be dismissed. The requirement regarding the perfection of an appeal within the reglementary
period is not only mandatory but jurisdictional. Such failure has the effect of rendering final the judgment
of the court, and the certification of the record on appeal thereafter cannot restore the jurisdiction which
has been lost. The dismissal of the appeal can be effected even after the case has been elevated to the
Court of Appeals (Rule 52, Section 1[a]). Appellee's failure to file a motion for dismissal of appeal in the
court of origin before the transmittal of the record to the appellate court, does not constitute a waiver on
his part to interpose such objection. (Emphasis supplied)

That administrative rules and regulations have the force of law can no longer be questioned. Only
recently, in the case of Valerio vs. Secretary of Agriculture, et al., G.R. No. L-18587, April 23, 1963, we
reaffirmed that —

x x x it cannot be contended, as the court a quo intimated, that an administrative regulation should not be
given the same weight as to rule of court but should rather be given a more liberal interpretation for, as is
well known, a regulation adopted pursuant to law has the force and effect of law. In fact it is a wise policy
that administrative regulations be given the same force as rules of court in order to maintain the regularity
of administrative proceedings.

The appellees' view that the period fixed in Administrative Order No. 6-2 of the Director of Forestry cannot
bind the Office of the President since the latter has supervision and control over the former cannot
commend itself to sound public policy. Even administrative decisions must and sometime, as fully as
public policy demands that finality be written on judicial controversies (Manila Electric Co. vs. Public
Service Commission, 61 Phil. 456).

In other words, public interest requires that proceedings already terminated should not be altered at every
step. The rule of non quieta movere prescribes that what was already terminated should not be disturbed
(Espiritu vs. San Miguel Brewery, 63 Phil. 615). We do not doubt that even the Office of the President
subscribes to the above rule. As aptly remarked by Justice Malcolm in Dy Cay vs. Crossfield & O'Brien, 38
Phil. 527:

Public policy and sound practice demand that, at the risk of occasional errors, judgments of courts should
become final at some definite date fixed by law. The very object for which courts were instituted was to put
an end to controversy. To fulfill this purpose and to do so steadily, certain time limits, more or less
arbitrary, have to be set up to spur on the slothful. ...

Wherefore, the decision appealed from is hereby revoked and set aside. The award made under the
Order of the Secretary of Agriculture and Natural Resources dated July 14, 1955 is hereby declared valid,
effective and subsisting. Costs against the appellee, Aquiles Zayco.

7
G.R. No. 90336 August 12, 1991
RUPERTO TAULE, petitioner,
vs.
SECRETARY LUIS T. SANTOS and GOVERNOR LEANDRO VERCELES, respondents.
Balgos & Perez and Bugaring, Tugonon & Associates Law Offices for petitioner.
Juan G. Atencia for private respondent.
GANCAYCO, J.:
The extent of authority of the Secretary of Local Government over the katipunan ng mga barangay or the
barangay councils is brought to the fore in this case.
On June 18,1989, the Federation of Associations of Barangay Councils (FABC) of Catanduanes,
composed of eleven (11) members, in their capacities as Presidents of the Association of Barangay
Councils in their respective municipalities, convened in Virac, Catanduanes with six members in
attendance for the purpose of holding the election of its officers.
Present were petitioner Ruperto Taule of San Miguel, Allan Aquino of Viga, Vicente Avila of Virac, Fidel
Jacob of Panganiban, Leo Sales of Caramoran and Manuel Torres of Baras. The Board of Election
Supervisors/Consultants was composed of Provincial Government Operation Officer (PGOO) Alberto P.
Molina, Jr. as Chairman with Provincial Treasurer Luis A. Manlapaz, Jr. and Provincial Election Supervisor
Arnold Soquerata as members.
When the group decided to hold the election despite the absence of five (5) of its members, the Provincial
Treasurer and the Provincial Election Supervisor walked out.
The election nevertheless proceeded with PGOO Alberto P. Molina, Jr. as presiding officer. Chosen as
members of the Board of Directors were Taule, Aquino, Avila, Jacob and Sales.
Thereafter, the following were elected officers of the FABC:
President — Ruperto Taule
Vice-President — Allan Aquino
Secretary — Vicente Avila
Treasurer — Fidel Jacob
Auditor — Leo Sales1
On June 19, 1989, respondent Leandro I. Verceles, Governor of Catanduanes, sent a letter to respondent
Luis T. Santos, the Secretary of Local Government, * protesting the election of the officers of the FABC
and seeking its nullification in view of several flagrant irregularities in the manner it was conducted.2
8
In compliance with the order of respondent Secretary, petitioner Ruperto Taule as President of the FABC,
filed his comment on the letter-protest of respondent Governor denying the alleged irregularities and
denouncing said respondent Governor for meddling or intervening in the election of FABC officers which is
a purely non-partisan affair and at the same time requesting for his appointment as a member of the
Sangguniang Panlalawigan of the province being the duly elected President of the FABC in
Catanduanes.3
On August 4, 1989, respondent Secretary issued a resolution nullifying the election of the officers of the
FABC in Catanduanes held on June 18, 1989 and ordering a new one to be conducted as early as
possible to be presided by the Regional Director of Region V of the Department of Local Government.4
Petitioner filed a motion for reconsideration of the resolution of August 4, 1989 but it was denied by
respondent Secretary in his resolution of September 5, 1989.5
In the petition for certiorari before Us, petitioner seeks the reversal of the resolutions of respondent
Secretary dated August 4, 1989 and September 5, 1989 for being null and void.
Petitioner raises the following issues:
1) Whether or not the respondent Secretary has jurisdiction to entertain an election protest involving the
election of the officers of the Federation of Association of Barangay Councils;
2) Whether or not the respondent Governor has the legal personality to file an election protest;
3) Assuming that the respondent Secretary has jurisdiction over the election protest, whether or not he
committed grave abuse of discretion amounting to lack of jurisdiction in nullifying the election;
The Katipunan ng mga Barangay is the organization of all sangguniang barangays in the following levels:
in municipalities to be known as katipunang bayan; in cities, katipunang panlungsod; in provinces,
katipunang panlalawigan; in regions, katipunang pampook; and on the national level, katipunan ng mga
barangay.6
The Local Government Code provides for the manner in which the katipunan ng mga barangay at all
levels shall be organized:
Sec. 110. Organization. — (1) The katipunan at all levels shall be organized in the following manner:
(a) The katipunan in each level shall elect a board of directors and a set of officers. The president of each
level shall represent the katipunan concerned in the next higher level of organization.
(b) The katipunan ng mga barangay shall be composed of the katipunang pampook, which shall in turn be
composed of the presidents of the katipunang panlalawigan and the katipunang panlungsod. The
presidents of the katipunang bayan in each province shall constitute the katipunang panlalawigan. The
katipunang panlungsod and the katipunang bayan shall be composed of the punong barangays of cities
and municipalities, respectively.
xxx xxx xxx
The respondent Secretary, acting in accordance with the provision of the Local Government Code
empowering him to "promulgate in detail the implementing circulars and the rules and regulations to carry
out the various administrative actions required for the initial implementation of this Code in such a manner
as will ensure the least disruption of on-going programs and projects7 issued Department of Local
Government Circular No. 89-09 on April 7, 1989,8 to provide the guidelines for the conduct of the
elections of officers of the Katipunan ng mga Barangay at the municipal, city, provincial, regional and
national levels.
It is now the contention of petitioner that neither the constitution nor the law grants jurisdiction upon the
respondent Secretary over election contests involving the election of officers of the FABC, the katipunan
ng mga barangay at the provincial level. It is petitioner's theory that under Article IX, C, Section 2 of the
1987 Constitution, it is the Commission on Elections which has jurisdiction over all contests involving
elective barangay officials.
On the other hand, it is the opinion of the respondent Secretary that any violation of the guidelines as set
forth in said circular would be a ground for filing a protest and would vest upon the Department jurisdiction
to resolve any protest that may be filed in relation thereto.
Under Article IX, C, Section 2(2) of the 1987 Constitution, the Commission on Elections shall exercise
"exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all
elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials
decided by trial courts of limited jurisdiction." The 1987 Constitution expanded the jurisdiction of the
COMELEC by granting it appellate jurisdiction over all contests involving elective municipal officials
decided by trial courts of general jurisdiction or elective barangay officials decided by trial courts of limited
jurisdiction.9
The jurisdiction of the COMELEC over contests involving elective barangay officials is limited to appellate
jurisdiction from decisions of the trial courts. Under the law,10 the sworn petition contesting the election of
a barangay officer shall be filed with the proper Municipal or Metropolitan Trial Court by any candidate
who has duly filed a certificate of candidacy and has been voted for the same office within 10 days after
the proclamation of the results. A voter may also contest the election of any barangay officer on the
ground of ineligibility or of disloyalty to the Republic of the Philippines by filing a sworn petition for quo
warranto with the Metropolitan or Municipal Trial Court within 10 days after the proclamation of the results
of the election.11 Only appeals from decisions of inferior courts on election matters as aforestated may be
decided by the COMELEC.
The Court agrees with the Solicitor General that the jurisdiction of the COMELEC is over popular
elections, the elected officials of which are determined through the will of the electorate. An election is the
embodiment of the popular will, the expression of the sovereign power of the people.12 It involves the
choice or selection of candidates to public office by popular vote.13 Specifically, the term "election," in the
context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding
of the electoral campaign, and the casting and counting of the votes14 which do not characterize the
election of officers in the Katipunan ng mga barangay. "Election contests" would refer to adversary
proceedings by which matters involving the title or claim of title to an elective office, made before or after
proclamation of the winner, is settled whether or not the contestant is claiming the office in dispute15 and
in the case of elections of barangay officials, it is restricted to proceedings after the proclamation of the
winners as no pre-proclamation controversies are allowed.16
9
The jurisdiction of the COMELEC does not cover protests over the organizational set-up of the katipunan
ng mga barangay composed of popularly elected punong barangays as prescribed by law whose officers
are voted upon by their respective members. The COMELEC exercises only appellate jurisdiction over
election contests involving elective barangay officials decided by the Metropolitan or Municipal Trial
Courts which likewise have limited jurisdiction. The authority of the COMELEC over the katipunan ng mga
barangay is limited by law to supervision of the election of the representative of the katipunan concerned
to the sanggunian in a particular level conducted by their own respective organization.17
However, the Secretary of Local Government is not vested with jurisdiction to entertain any protest
involving the election of officers of the FABC.
There is no question that he is vested with the power to promulgate rules and regulations as set forth in
Section 222 of the Local Government Code.
Likewise, under Book IV, Title XII, Chapter 1, See. 3(2) of the Administrative Code of 1987, ** the
respondent Secretary has the power to "establish and prescribe rules, regulations and other issuances
and implementing laws on the general supervision of local government units and on the promotion of local
autonomy and monitor compliance thereof by said units."
Also, the respondent Secretary's rule making power is provided in See. 7, Chapter II, Book IV of the
Administrative Code, to wit:
(3) Promulgate rules and regulations necessary to carry out department objectives, policies, functions,
plans, programs and projects;
Thus, DLG Circular No. 89-09 was issued by respondent Secretary in pursuance of his rule-making power
conferred by law and which now has the force and effect of law.18
Now the question that arises is whether or not a violation of said circular vests jurisdiction upon the
respondent Secretary, as claimed by him, to hear a protest filed in relation thereto and consequently
declare an election null and void.
It is a well-settled principle of administrative law that unless expressly empowered, administrative
agencies are bereft of quasi- judicial powers.19 The jurisdiction of administrative authorities is dependent
entirely upon the provisions of the statutes reposing power in them; they cannot confer it upon
themselves.20 Such jurisdiction is essential to give validity to their determinations.21
There is neither a statutory nor constitutional provision expressly or even by necessary implication
conferring upon the Secretary of Local Government the power to assume jurisdiction over an election
protect involving officers of the katipunan ng mga barangay. An understanding of the extent of authority of
the Secretary over local governments is therefore necessary if We are to resolve the issue at hand.
Presidential power over local governments is limited by the Constitution to the exercise of general
supervision22 "to ensure that local affairs are administered according to law."23 The general supervision
is exercised by the President through the Secretary of Local Government.24
In administrative law, supervision means overseeing or the power or authority of an officer to see that the
subordinate officers perform their duties. If the latter fails or neglects to fulfill them the former may take
such action or step as prescribed by law to make them perform their duties. Control, on the other hand,
means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done
in the performance of his duties and to substitute the judgment of the former for that of the latter. The
fundamental law permits the Chief Executive to wield no more authority than that of checking whether said
local government or the officers thereof perform their duties as provided by statutory enactments. Hence,
the President cannot interfere with local governments so long as the same or its officers act within the
scope of their authority.25 Supervisory power, when contrasted with control, is the power of mere
oversight over an inferior body; it does not include any restraining authority over such body.26
Construing the constitutional limitation on the power of general supervision of the President over local
governments, We hold that respondent Secretary has no authority to pass upon the validity or regularity of
the election of the officers of the katipunan. To allow respondent Secretary to do so will give him more
power than the law or the Constitution grants. It will in effect give him control over local government
officials for it will permit him to interfere in a purely democratic and non-partisan activity aimed at
strengthening the barangay as the basic component of local governments so that the ultimate goal of
fullest autonomy may be achieved. In fact, his order that the new elections to be conducted be presided
by the Regional Director is a clear and direct interference by the Department with the political affairs of the
barangays which is not permitted by the limitation of presidential power to general supervision over local
governments.27
Indeed, it is the policy of the state to ensure the autonomy of local governments.28 This state policy is
echoed in the Local Government Code wherein it is declared that "the State shall guarantee and promote
the autonomy of local government units to ensure their fullest development as self-reliant communities
and make them more effective partners in the pursuit of national development and social progress."29 To
deny the Secretary of Local Government the power to review the regularity of the elections of officers of
the katipunan would be to enhance the avowed state policy of promoting the autonomy of local
governments.
Moreover, although the Department is given the power to prescribe rules, regulations and other
issuances, the Administrative Code limits its authority to merely "monitoring compliance" by local
government units of such issuances.30 To monitor means "to watch, observe or check.31 This is
compatible with the power of supervision of the Secretary over local governments which as earlier
discussed is limited to checking whether the local government unit concerned or the officers thereof
perform their duties as provided by statutory enactments. Even the Local Government Code which grants
the Secretary power to issue implementing circulars, rules and regulations is silent as to how these
issuances should be enforced. Since the respondent Secretary exercises only supervision and not control
over local governments, it is truly doubtful if he could enforce compliance with the DLG Circular.32 Any
doubt therefore as to the power of the Secretary to interfere with local affairs should be resolved in favor
of the greater autonomy of the local government.
Thus, the Court holds that in assuming jurisdiction over the election protest filed by respondent Governor
and declaring the election of the officers of the FABC on June 18, 1989 as null and void, the respondent
Secretary acted in excess of his jurisdiction. The respondent Secretary not having the jurisdiction to hear
an election protest involving officers of the FABC, the recourse of the parties is to the ordinary courts. The
Regional Trial Courts have the exclusive original jurisdiction to hear the protest.33
The provision in DLG Circular No. 89-15 amending DLG Circular No. 89-09 which states that "whenever
the guidelines are not substantially complied with, the election shall be declared null and void by the
Department of Local Government and an election shall conduct and being invoked by the Solicitor
General cannot be applied. DLG Circular No. 89-15 was issued on July 3, 1989 after the June 18, 1989
10
elections of the FABC officers and it is the rule in statutory construction that laws, including circulars and
regulations34 cannot be applied retrospectively.35 Moreover, such provision is null and void for having
been issued in excess of the respondent Secretary's jurisdiction, inasmuch as an administrative authority
cannot confer jurisdiction upon itself.
As regards the second issue raised by petitioner, the Court finds that respondent Governor has the
personality to file the protest. Under Section 205 of the Local Government Code, the membership of the
sangguniang panlalawigan consists of the governor, the vice-governor, elective members of the said
sanggunian and the presidents of the katipunang panlalawigan and the kabataang barangay provincial
federation. The governor acts as the presiding officer of the sangguniang panlalawigan.36
As presiding officer of the sagguniang panlalawigan, the respondent governor has an interest in the
election of the officers of the FABC since its elected president becomes a member of the assembly. If the
president of the FABC assumes his presidency under questionable circumstances and is allowed to sit in
the sangguniang panlalawigan the official actions of the sanggunian may be vulnerable to attacks as to
their validity or legality. Hence, respondent governor is a proper party to question the regularity of the
elections of the officers of the FABC.
As to the third issue raised by petitioner, the Court has already ruled that the respondent Secretary has no
jurisdiction to hear the protest and nullify the elections.
Nevertheless, the Court holds that the issue of the validity of the elections should now be resolved in order
to prevent any unnecessary delay that may result from the commencement of an appropriate action by the
parties.
The elections were declared null and void primarily for failure to comply with Section 2.4 of DLG Circular
No. 89-09 which provides that "the incumbent FABC President or the Vice-President shall preside over
the reorganizational meeting, there being a quorum." The rule specifically provides that it is the incumbent
FABC President or Vice-President who shall preside over the meeting. The word "shall" should be taken
in its ordinary signification, i.e., it must be imperative or mandatory and not merely
permissive,37 as the rule is explicit and requires no other interpretation. If it had been intended that any
other official should preside, the rules would have provided so, as it did in the elections at the town and
city levels38 as well as the regional level..39
It is admitted that neither the incumbent FABC President nor the Vice-President presided over the meeting
and elections but Alberto P. Molina, Jr., the Chairman of the Board of Election Supervisors/Consultants.
Thus, there was a clear violation of the aforesaid mandatory provision. On this ground, the elections
should be nullified.
Under Sec. 2.3.2.7 of the same circular it is provided that a Board of Election Supervisors/Consultants
shall be constituted to oversee and/or witness the canvassing of votes and proclamation of winners. The
rules confine the role of the Board of Election Supervisors/Consultants to merely overseeing and
witnessing the conduct of elections. This is consistent with the provision in the Local Government Code
limiting the authority of the COMELEC to the supervision of the election.40
In case at bar, PGOO Molina, the Chairman of the Board, presided over the elections. There was direct
participation by the Chairman of the Board in the elections contrary to what is dictated by the rules.
Worse, there was no Board of Election Supervisors to oversee the elections in view of the walk out staged
by its two other members, the Provincial COMELEC Supervisor and the Provincial Treasurer. The
objective of keeping the election free and honest was therefore compromised.
The Court therefore finds that the election of officers of the FABC held on June 18, 1989 is null and void
for failure to comply with the provisions of DLG Circular No. 89-09.
Meanwhile, pending resolution of this petition, petitioner filed a supplemental petition alleging that public
respondent Local Government Secretary, in his memorandum dated June 7, 1990, designated Augusto
Antonio as temporary representative of the Federation to the sangguniang panlalawigan of
Catanduanes.41 By virtue of this memorandum, respondent governor swore into said office Augusto
Antonio on June 14, 1990.42
The Solicitor General filed his comment on the supplemental petition43 as required by the resolution of
the Court dated September 13,1990.
In his comment, the Solicitor General dismissed the supervening event alleged by petitioner as something
immaterial to the petition. He argues that Antonio's appointment was merely temporary "until such time
that the provincial FABC president in that province has been elected, appointed and qualified."44 He
stresses that Antonio's appointment was only a remedial measure designed to cope with the problems
brought about by the absence of a representative of the FABC to the "sanggunian ang panlalawigan."
Sec. 205 (2) of the Local Government Code (B.P. Blg. 337) provides-
(2) The sangguniang panlalawigan shall be composed of the governor, the vice-governor, elective
members of the said sanggunian and the presidents of the katipunang panlalawigan and the kabataang
barangay provincial federation who shall be appointed by the President of the Philippines. (Emphasis
supplied.)
Batas Pambansa Blg. 51, under Sec. 2 likewise states:
xxx xxx xxx
The sangguniang panlalawigan of each province shall be composed of the governor as chairman and
presiding officer, the vice-governor as presiding officer pro tempore, the elective sangguniang
panlalawigan members, and the appointive members consisting of the president of the provincial
association of barangay councils, and the president of the provincial federation of the kabataang
barangay. (Emphasis supplied.)
In Ignacio vs. Banate Jr.45 the Court, interpreting similarly worded provisions of Batas Pambansa Blg. 337
and Batas Pambansa Blg. 51 on the composition of the sangguniang panlungsod,46 declared as null and
void the appointment of private respondent Leoncio Banate Jr. as member of the Sangguniang
Panlungsod of the City of Roxas representing the katipunang panlungsod ng mga barangay for he lacked
the elegibility and qualification required by law, not being a barangay captain and for not having been
elected president of the association of barangay councils. The Court held that an unqualified person
cannot be appointed a member of the sanggunian, even in an acting capacity. In Reyes vs. Ferrer,47 the
appointment of Nemesio L. Rasgo Jr. as representative of the youth sector to the sangguniang
panlungsod of Davao City was declared invalid since he was never the president of the kabataang
barangay city federation as required by Sec. 173, Batas Pambansa Blg. 337.
11
In the present controversy involving the sangguniang panlalawigan, the law is likewise explicit. To be
appointed by the President of the Philippines to sit in the sangguniang panlalawigan is the president of the
katipunang panlalawigan. The appointee must meet the qualifications set by law.48 The appointing power
is bound by law to comply with the requirements as to the basic qualifications of the appointee to the
sangguniang panlalawigan. The President of the Philippines or his alter ego, the Secretary of Local
Government, has no authority to appoint anyone who does not meet the minimum qualification to be the
president of the federation of barangay councils.
Augusto Antonio is not the president of the federation. He is a member of the federation but he was not
even present during the elections despite notice. The argument that Antonio was appointed as a remedial
measure in the exigency of the service cannot be sustained. Since Antonio does not meet the basic
qualification of being president of the federation, his appointment to the sangguniang panlalawigan is not
justified notwithstanding that such appointment is merely in a temporary capacity. If the intention of the
respondent Secretary was to protect the interest of the federation in the sanggunian, he should have
appointed the incumbent FABC President in a hold-over capacity. For even under the guidelines, the term
of office of officers of the katipunan at all levels shall be from the date of their election until their
successors shall have been duly elected and qualified, without prejudice to the terms of their
appointments as members of the sanggunian to which they may be correspondingly appointed.49 Since
the election is still under protest such that no successor of the incumbent has as yet qualified, the
respondent Secretary has no choice but to have the incumbent FABC President sit as member of the
sanggunian. He could even have appointed petitioner since he was elected the president of the federation
but not Antonio. The appointment of Antonio, allegedly the protege of respondent Governor, gives
credence to petitioner's charge of political interference by respondent Governor in the organization. This
should not be allowed. The barangays should be insulated from any partisan activity or political
intervention if only to give true meaning to local autonomy.
WHEREFORE, the petition is GRANTED in that the resolution of respondent Secretary dated August 4,
1989 is hereby SET ASIDE for having been issued in excess of jurisdiction.
The election of the officials of the ABC Federation held on June 18, 1989 is hereby annulled.1âwphi1 A
new election of officers of the federation is hereby ordered to be conducted immediately in accordance
with the governing rules and regulations.
The Supplemental petition is hereby GRANTED. The appointment of Augusto Antonio as representative to
the Sangguniang Panlalawigan in a temporary capacity is declared null and void.
No costs.
SO ORDERED.
G.R. No. 139465 January 18, 2000
SECRETARY OF JUSTICE, petitioner,
vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK
B. JIMENEZ, respondents.
MELO, J.:
The individual citizen is but a speck of particle or molecule vis-à-vis the vast and overwhelming powers of
government. His only guarantee against oppression and tyranny are his fundamental liberties under the
Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a
citizen's basic due process rights, or the government's ironclad duties under a treaty. The bugle sounds
and this Court must once again act as the faithful guardian of the fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069
"Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign
Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual
concern for the suppression of crime both in the state where it was committed and the state where the
criminal may have escaped; the extradition treaty with the Republic of Indonesia and the intention of the
Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the
executive department and the courts in the proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the
Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the
Republic of the Philippines and the Government of the United States of America" (hereinafter referred to
as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in
the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting
Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition
request upon certification by the principal diplomatic or consular officer of the requested state resident in
the Requesting State).
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note
Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the
United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued
by the U.S. District Court, Southern District of Florida, and other supporting documents for said
extradition. Based on the papers submitted, private respondent appears to be charged in the United
States with violation of the following provisions of the United States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum
Penalty — 5 years on each count);
B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty — 5 years on each
count);
C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty — 5 years on each
count);
12
D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty — 5 years on each count);
E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty —
less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of
attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No.
1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition
request and the documents in support thereof. The panel found that the "official English translation of
some documents in Spanish were not attached to the request and that there are some other matters that
needed to be addressed" (p. 15, Rollo).
Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a
letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from
the U.S. Government, as well as all documents and papers submitted therewith; and that he be given
ample time to comment on the request after he shall have received copies of the requested papers.
Private respondent also requested that the proceedings on the matter be held in abeyance in the
meantime.
Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the
request of the United States Government, and after receiving a copy of the Diplomatic Note, a period of
time to amplify on his request.
In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but
received by private respondent only on August 4, 1999), denied the foregoing requests for the following
reasons:
1. We find it premature to furnish you with copies of the extradition request and supporting documents
from the United States Government, pending evaluation by this Department of the sufficiency of the
extradition documents submitted in accordance with the provisions of the extradition treaty and our
extradition law. Article 7 of the Extradition Treaty between the Philippines and the United States
enumerates the documentary requirements and establishes the procedures under which the documents
submitted shall be received and admitted as evidence. Evidentiary requirements under our domestic law
are also set forth in Section 4 of P.D. No. 1069.
Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin
to preliminary investigation of criminal cases. We merely determine whether the procedures and
requirements under the relevant law and treaty have been complied with by the Requesting Government.
The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not
available.
It is only after the filing of the petition for extradition when the person sought to be extradited will be
furnished by the court with copies of the petition, request and extradition documents and this Department
will not pose any objection to a request for ample time to evaluate said documents.
2. The formal request for extradition of the United States contains grand jury information and documents
obtained through grand jury process covered by strict secrecy rules under United States law. The United
States had to secure orders from the concerned District Courts authorizing the United States to disclose
certain grand jury information to Philippine government and law enforcement personnel for the purpose of
extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United
States District Courts. In this particular extradition request the United States Government requested the
Philippine Government to prevent unauthorized disclosure of the subject information. This Department's
denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the
Philippine Government must represent the interests of the United States in any proceedings arising out of
a request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign
governments in all extradition requests.
3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition
request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that
"[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith".
Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of
accused or convicted persons must be processed expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial
Court of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of
Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel herein
petitioner to furnish private respondent the extradition documents, to give him access thereto, and to
afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate
the request impartially, fairly and objectively); certiorari (to set aside herein petitioner's letter dated July
13, 1999); and prohibition (to restrain petitioner from considering the extradition request and from filing an
extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from
performing any act directed to the extradition of private respondent to the United States), with an
application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-
105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25
of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his
own behalf, moved that he be given ample time to file a memorandum, but the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous day, disposing:
WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary
of Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or
representatives to maintain the status quo by refraining from committing the acts complained of; from
conducting further proceedings in connection with the request of the United States Government for the
extradition of the petitioner; from filing the corresponding Petition with a Regional Trial court; and from
performing any act directed to the extradition of the petitioner to the United States, for a period of twenty
(20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of
Court.
13
The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the
counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents
are, likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary
Injunction on or before said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE
TEMPORARY RESTRAINING ORDER BECAUSE:
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED
OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL
EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN
OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN
PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND
PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE
MERITS OF THE MANDAMUS ISSUES;
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER
THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY
AND SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND
ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.
(pp. 19-20, Rollo.)
On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed
for, was a temporary restraining order (TRO) providing:
NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You,
Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your
place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated
August 9, 1999 issued by public respondent in Civil Case No. 99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this
17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their
respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive issues are patent. However,
a review of these issues as well as the extensive arguments of both parties, compel us to delineate the
focal point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private
respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer
would necessarily render the proceedings at the trial court, moot and academic (the issues of which are
substantially the same as those before us now), while a negative resolution would call for the immediate
lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the
process leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in the
event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of
the extradition proceedings, would this entitlement constitute a breach of the legal commitments and
obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the
result would indeed be a breach, is there any conflict between private respondent's basic due process
rights and the provisions of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go directly into the substantive
merits of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil
Case No. 99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the
TRO of August 17, 1999 by the trial court.
To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which
was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential
Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as
"the removal of an accused from the Philippines with the object of placing him at the disposal of foreign
authorities to enable the requesting state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed on him under the penal or
criminal law of the requesting state or government." The portions of the Decree relevant to the instant
case which involves a charged and not convicted individual, are abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of
Foreign Affairs, and shall be accompanied by:
1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority
of the Requesting State having jurisdiction over the matter, or some other instruments having equivalent
legal force;
2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and
identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of,
and the time and place of the commission of these acts;
14
3. The text of the applicable law or a statement of the contents of said law, and the designation or
description of the offense by the law, sufficient for evaluation of the request; and
4. Such other documents or information in support of the request.
(Sec. 4. Presidential Decree No. 1069.)
Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently
provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements
of this law and the relevant treaty or convention, he shall forward the request together with the related
documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his
office to take charge of the case.
The above provision shows only too clearly that the executive authority given the task of evaluating the
sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is
the coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority
must ascertain whether or not the request is supported by:
1. Documents, statements, or other types of information which describe the identity and probable location
of the person sought;
2. A statement of the facts of the offense and the procedural history of the case;
3. A statement of the provisions of the law describing the essential elements of the offense for which
extradition is requested;
4. A statement of the provisions of law describing the punishment for the offense;
5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of
punishment for the offense;
6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said
Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)
7. Such evidence as, according to the law of the Requested State, would provide probable cause for his
arrest and committal for trial if the offense had been committed there;
8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying
documents received in support of the request had been certified by the principal diplomatic or consular
officer of the Requested State resident in the Requesting State (Embassy Note No. 052 from U. S.
Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the
executive authority of the Requested State determines that the request is politically motivated, or that the
offense is a military offense which is not punishable under non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting
documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary
of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the
case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition
with the proper regional trial court of the province or city, with a prayer that the court take the extradition
request under consideration (Paragraph [2], ibid.).
The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as
practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on
the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the
immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph
[1], Section 6, ibid.), particularly to prevent the flight of the prospective extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a
special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the
extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with
the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides
that the attorney having charge of the case may, upon application by the Requesting State, represent the
latter throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the
reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section
10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and
immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in
criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required
15-day period to file brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the petition is extraditable based on the
application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition
Treaty. The trial court also determines whether or not the offense for which extradition is requested is a
political one (Paragraph [1], Article 3, RP-US Extradition Treaty).1âwphi1.nêt
With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself:
What is the nature of the role of the Department of Justice at the evaluation stage of the extradition
proceedings?
15
A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file
the extradition petition after the request and all the supporting papers are forwarded to him by the
Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to
assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the
request is politically motivated, or that the offense is a military offense which is not punishable under non-
military penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition
Law, the Secretary of Justice has the ministerial duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would appear that there was failure to abide
by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was
delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours
later, the Department of Justice received the request, apparently without the Department of Foreign Affairs
discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement
of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely
acting as a post office, for which reason he simply forwarded the request to the Department of Justice,
indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its
responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of
the documents and to evaluate the same to find out whether they comply with the requirements laid down
in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that
although the Department of Justice had no obligation to evaluate the extradition documents, the
Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31,
1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following; (1)
the right to be furnished the request and the supporting papers; (2) the right to be heard which consists in
having a reasonable period of time to oppose the request, and to present evidence in support of the
opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private
respondent's opposition to the request.
The two Departments seem to have misread the scope of their duties and authority, one abdicating its
powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has,
through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own,
indirectly conveying the message that if it were to evaluate the extradition request, it would not allow
private respondent to participate in the process of evaluation.
Plainly then, the record cannot support the presumption of regularity that the Department of Foreign
Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-
founded judgment that the request and its annexed documents satisfy the requirements of law. The
Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by
himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his
undersecretary, in less than one day, make the more authoritative determination?
The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui
generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of
ministerial functions. At such stage, the executive authority has the power: (a) to make a technical
assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the
request if on its face and on the face of the supporting documents the crimes indicated are not
extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the
offense is a military one which is not punishable under non-military penal legislation (tsn, August 31, 1999,
pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may
be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the
exercise of an administrative body's quasi-judicial power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b)
determining facts based upon the evidence presented; and (c) rendering an order or decision supported
by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs.
United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power,
is one or the determinative powers of an administrative body which better enables it to exercise its quasi-
judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative
body to inspect the records and premises, and investigate the activities, of persons or entities coming
under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or accounts, records,
reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid
or tool in an administrative agency's performance of its rule-making or quasi-judicial functions. Notably,
investigation is indispensable to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions
of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its
power is limited to investigating the facts and making findings in respect thereto. The Court laid down the
test of determining whether an administrative body is exercising judicial functions or merely investigatory
functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and
obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence
submitted before it based on the facts and circumstances presented to it, and if the agency is not
authorized to make a final pronouncement affecting the parties, then there is an absence of judicial
discretion and judgment.
The above description in Ruperto applies to an administrative body authorized to evaluate extradition
documents. The body has no power to adjudicate in regard to the rights and obligations of both the
Requesting State and the prospective extraditee. Its only power is to determine whether the papers
comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an
extradition petition. Such finding is thus merely initial and not final. The body has no power to determine
whether or not the extradition should be effected. That is the role of the court. The body's power is limited
to an initial finding of whether or not the extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is
characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process.
Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be
effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of
the request. This is so because the Treaty provides that in case of urgency, a contracting party may
request the provisional arrest of the person sought pending presentation of the request (Paragraph [1],
Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is
submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after
which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is
silent on this respect, the provisions only mean that once a request is forwarded to the Requested State,
the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph
[5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted.
Practically, the purpose of this detention is to prevent his possible flight from the Requested State.
16
Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition
in court (Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation
stage. It is not only an imagined threat to his liberty, but a very imminent one.
Because of these possible consequences, we conclude that the evaluation process is akin to an
administrative agency conducting an investigative proceeding, the consequences of which are essentially
criminal since such technical assessment sets off or commences the procedure for, and ultimately, the
deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for
criminal law enforcement (p. 78, Rollo). In essence, therefore, the evaluation process partakes of the
nature of a criminal investigation. In a number of cases, we had occasion to make available to a
respondent in an administrative case or investigation certain constitutional rights that are ordinarily
available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral
arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier
stage in the proceedings, such as the right to counsel and the right against self-incrimination (tsn, August
31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs.
Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-
incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in
criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect,
such as an administrative investigation of a licensed physician who is charged with immorality, which
could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case
of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical
practitioner, is an even greater deprivation than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent
which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the
investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or
penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr.
vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to
determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an
indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in
nature, although it may be civil in form; and where it must be gathered from the statute that the action is
meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not
involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature.
The cases mentioned above refer to an impending threat of deprivation of one's property or property right.
No less is this true, but even more so in the case before us, involving as it does the possible deprivation of
liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself
and enjoys precedence over property, for while forfeited property can be returned or replaced, the time
spent in incarceration is irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a
foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the
evaluation procedure is akin to a preliminary investigation since both procedures may have the same
result — the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation
stage of extradition proceedings, a preliminary investigation, which may result in the filing of an
information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty.
Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's
Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural
statute is not well-taken. Wright is not authority for petitioner's conclusion that his preliminary processing
is not akin to a preliminary investigation. The characterization of a treaty in Wright was in reference to the
applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right
to notice, information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public
authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative
power, in furtherance of the general public good, which regards and preserved these principles of liberty
and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance
with due process requirements cannot be deemed non-compliance with treaty commitments.
The United States and the Philippines share a mutual concern about the suppression and punishment of
crime in their respective jurisdictions. At the same time, both States accord common due process
protection to their respective citizens.
The due process clauses in the American and Philippine Constitutions are not only worded in exactly
identical language and terminology, but more importantly, they are alike in what their respective Supreme
Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity
in their interpretation, their dynamic and resilient character which make them capable of meeting every
modern problem, and their having been designed from earliest time to the present to meet the exigencies
of an undefined and expanding future. The requirements of due process are interpreted in both the United
States and the Philippines as not denying to the law the capacity for progress and improvement. Toward
this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the
meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the
course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it
refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's
Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of
justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components — substantive due process which requires the intrinsic
validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural
due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being
heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in
criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights
will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their
interests, and upon notice, they may claim the right to appear therein and present their side and to refute
the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of
the Rules of Court guarantees the respondent's basic due process rights, granting him the right to be
furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit
17
counter-affidavits and other supporting documents within ten days from receipt thereof. Moreover, the
respondent shall have the right to examine all other evidence submitted by the complainant.
These twin rights may, however, be considered dispensable in certain instances, such as:
1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a
nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing
administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy
restaurants or theaters showing obscene movies or like establishments which are immediate threats to
public health and decency, and the cancellation of a passport of a person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded
from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such
as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a
temporary appointee; and
3. Where the twin rights have previously been offered but the right to exercise them had not been claimed.
Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of
the extradition proceedings fall under any of the described situations mentioned above?
Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy
considering that the subject treaty involves the U.S. Government.
American jurisprudence distinguishes between interstate rendition or extradition which is based on the
Extradition Clause in the U.S. Constitution (Art. IV, §2 cl 2), and international extradition proceedings. In
interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to
the demanding state. The Extradition Clause and the implementing statute are given a liberal construction
to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to
the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve
extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the
elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as
the allegation that the person demanded was in the demanding state at the time the offense charged was
committed, and that the person demanded is charged with the commission of the crime or that
prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407).
The extradition documents are then filed with the governor of the asylum state, and must contain such
papers and documents prescribed by statute, which essentially include a copy of the instrument charging
the person demanded with a crime, such as an indictment or an affidavit made before a magistrate.
Statutory requirements with respect to said charging instrument or papers are mandatory since said
papers are necessary in order to confer jurisdiction on the government of the asylum state to effect
extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment,
information, affidavit, or judgment of conviction or sentence and other instruments accompanying the
demand or requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the
right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex
parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d 853).
In international proceedings, extradition treaties generally provide for the presentation to the executive
authority of the Requested State of a requisition or demand for the return of the alleged offender, and the
designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur
2d 815).
In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September
13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition
procedures and principles, which are basically governed by a combination of treaties (with special
reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit:
1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for
the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the
U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for
extradition is transmitted subsequently through the diplomatic channel.
2. The Department of State forwards the incoming Philippine extradition request to the Department of
Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request
has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide
reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable
offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the
federal statute that ensures admissibility at any subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee
(18 U.S.C. §3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence
offered in support of the extradition request (Ibid.)
4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign
country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to
conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits
extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he
committed the offenses charged (Ibid.)
5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a
"complaint made under oath, charging any person found within his jurisdiction" with having committed any
of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this
regard, it is noted that a long line of American decisions pronounce that international extradition
proceedings partake of the character of a preliminary examination before a committing magistrate, rather
than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for extradition are present, it incorporates its
determinations in factual findings and conclusions of law and certifies the person's extraditability. The
court then forwards this certification of extraditability to the Department of State for disposition by the
Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of
State (18 U.S.C. §3186).
7. The subject of an extradition request may not litigate questions concerning the motives of the
requesting government in seeking his extradition. However, a person facing extradition may present
whatever information he deems relevant to the Secretary of State, who makes the final determination
whether to surrender an individual to the foreign government concerned.
18
From the foregoing, it may be observed that in the United States, extradition begins and ends with one
entity — the Department of State — which has the power to evaluate the request and the extradition
documents in the beginning, and, in the person of the Secretary of State, the power to act or not to act on
the court's determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs
which should make the initial evaluation of the request, and having satisfied itself on the points earlier
mentioned (see pp. 10-12), then forwards the request to the Department of Justice for the preparation and
filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case,
perfunctorily turned over the request to the Department of Justice which has taken over the task of
evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition
for extradition.
Private respondent asks what prejudice will be caused to the U.S. Government should the person sought
to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes
that petitioner's primary concern is the possible delay in the evaluation process.
We agree with private respondent's citation of an American Supreme Court ruling:
The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state
interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values
than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due
Process Clause, in particular, that they were designed to protect the fragile values of a vulnerable citizenry
from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government
officials no less, and perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the Philippine Government that no right — that
of liberty — secured not only by the Bills of Rights of the Philippines Constitution but of the United States
as well, is sacrificed at the altar of expediency.
(pp. 40-41, Private Respondent's Memorandum.)
In the Philippine context, this Court's ruling is invoked:
One of the basic principles of the democratic system is that where the rights of the individual are
concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will
not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or
the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an
individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of
the Constitution is a majority of one even as against the rest of the nation who would deny him that right
(Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA
343, 375-376 [1989]).
There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement.
To be effective, requests for extradition or the surrender of accused or convicted persons must be
processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair
procedures are, however, not always incompatible. They do not always clash in discord. Summary does
not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered
liberty."
Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no
extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition,
the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act
favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he may hold that federal
and statutory requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819).
Similarly, under an extradition treaty, the executive authority of the requested state has the power to deny
the behest from the requesting state. Accordingly, if after a careful examination of the extradition
documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law
and the treaty, he shall not forward the request to the Department of Justice for the filing of the extradition
petition since non-compliance with the aforesaid requirements will not vest our government with
jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice exerted notable efforts in assuring
compliance with the requirements of the law and the treaty since it even informed the U.S. Government of
certain problems in the extradition papers (such as those that are in Spanish and without the official
English translation, and those that are not properly authenticated). In fact, petitioner even admits that
consultation meetings are still supposed to take place between the lawyers in his Department and those
from the U.S. Justice Department. With the meticulous nature of the evaluation, which cannot just be
completed in an abbreviated period of time due to its intricacies, how then can we say that it is a
proceeding that urgently necessitates immediate and prompt action where notice and hearing can be
dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private
respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to
him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand there is
yet no extraditee, but ironically on the other, it results in an administrative if adverse to the person
involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the
extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him),
faces the threat of arrest, not only after the extradition petition is filed in court, but even during the
evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the
implementing law. The prejudice to the "accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and
shelved aside.
Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of
Article III which reads:
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well
as to government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
The above provision guarantees political rights which are available to citizens of the Philippines, namely:
(1) the right to information on matters of public concern, and (2) the corollary right of access to official
records documents. The general right guaranteed by said provision is the right to information on matters
19
of public concern. In its implementation, the right of access to official records is likewise conferred. These
cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil.
Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed
and critical public opinion which alone can protect the values of democratic government (Ibid.).
Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not
fall under the guarantee of the foregoing provision since the matters contained in the documents
requested are not of public concern. On the other hand, private respondent argues that the distinction
between matters vested with public interest and matters which are of purely private interest only becomes
material when a third person, who is not directly affected by the matters requested, invokes the right to
information. However, if the person invoking the right is the one directly affected thereby, his right to
information becomes absolute.
The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public
officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987
Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad
spectrum of subjects which the public may want to know, either because these directly affect their lives or
simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service
Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has
"standing".
When the individual himself is involved in official government action because said action has a direct
bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the
basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on
matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly
the right to be informed of the nature and cause of the accusation against him.
The right to information is implemented by the right of access to information within the control of the
government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such
information may be contained in official records, and in documents and papers pertaining to official acts,
transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to official government action from
the U.S. Government. No official action from our country has yet been taken. Moreover, the papers have
some relation to matters of foreign relations with the U.S. Government. Consequently, if a third party
invokes this constitutional provision, stating that the extradition papers are matters of public concern since
they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such
particular time, in favor of the interests necessary for the proper functioning of the government. During the
evaluation procedure, no official governmental action of our own government has as yet been done;
hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing
would already fall under matters of public concern, because our government by then shall have already
made an official decision to grant the extradition request. The extradition of a fellow Filipino would be
forthcoming.
We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private
respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a
breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the
answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the
Constitution?
First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality
of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit
ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on
foreign relations.
The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law,
requires the parties to a treaty to keep their agreement therein in good faith. The observance of our
country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which
provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with nations." Under the doctrine of incorporation, rules
of international law form part of the law of the and land no further legislative action is needed to make
such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with
situations in which there appears to be a conflict between a rule of international law and the provisions of
the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to
give effect to both since it is to be presumed that municipal law was enacted with proper regard for the
generally accepted principles of international law in observance of the observance of the Incorporation
Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a
situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of
international law and municipal law, jurisprudence dictates that municipal law should be upheld by the
municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230
[1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and
are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international
law has been made part of the law of the land does not pertain to or imply the primacy of international law
over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most
countries, decrees that rules of international law are given equal standing with, but are not superior to,
national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect — a
treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the
highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be
invalidated if they are in conflict with the constitution (Ibid.).
In the case at bar, is there really a conflict between international law and municipal or national law? En
contrario, these two components of the law of the land are not pined against each other. There is no
occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-
US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due
process rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the
procedures earlier abstracted, after the filing of the extradition petition and during the judicial
determination of the propriety of extradition, the rights of notice and hearing are clearly granted to the
prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S.
extradition procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the
evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request
and the supporting documents.
We disagree.
20
In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic
twin due process rights of notice and hearing will not go against the treaty or the implementing law.
Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly,
American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate
extradition proceedings as explained above, the prospective extraditee may even request for copies of the
extradition documents from the governor of the asylum state, and if he does, his right to be supplied the
same becomes a demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine Government to prevent unauthorized
disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of
Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioner's revelation
that everything it refuses to make available at this stage would be obtainable during trial. The Department
of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury
information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the
extradition proceedings. Not even during trial.
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American
jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic
due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We
have to consider similar situations in jurisprudence for an application by analogy.
Earlier, we stated that there are similarities between the evaluation process and a preliminary
investigation since both procedures may result in the arrest of the respondent or the prospective
extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition
Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's
theory, because there is no provision of its availability, does this imply that for a period of time, the
privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution which
states that "[t]he privilege of the writ or habeas corpus shall not be suspended except in cases of invasion
or rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is not available
during the arrest of the prospective extraditee when the extradition petition has already been filed in court
since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the
Constitution which provides that "[a]ll persons, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly
argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations, the
aforestated guarantees in the Bill of Rights could thus be subservient thereto?
The basic principles of administrative law instruct us that "the essence of due process in administrative
proceeding is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions
or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997];
PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School
vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural
due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots
Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of
constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State
may have valid objections to the Requested State's non-performance of its commitments under the
Extradition Treaty are insubstantial and should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of
Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals
(201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled
that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the
Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and
Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for
Members of the Integrated National Police who may be charged for Service-Connected Offenses and
Improving the Disciplinary System in the Integrated National Police, Appropriating Funds Therefor and for
other purposes), as amended by Presidential Decree No. 1707, although summary dismissals may be
effected without the necessity of a formal investigation, the minimum requirements of due process still
operate. As held in GSIS vs. Court of Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be
removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that
an employee must be informed of the charges preferred against him, and that the normal way by which
the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic
procedural requirement that a statute cannot dispense with and still remain consistent with the
constitutional provision on due process. The second minimum requirement is that the employee charged
with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the
matter, that is to say, his defenses against the charges levelled against him and to present evidence in
support of his defenses. . . .
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights
of the respondent.
In the case at bar, private respondent does not only face a clear and present danger of loss of property or
employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land.
The convergence of petitioner's favorable action on the extradition request and the deprivation of private
respondent's liberty is easily comprehensible.
We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice
outside legality," may be availed of only in the absence of, and never against, statutory law or judicial
pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs.
Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for
"justice outside legality," since private respondent's due process rights, although not guaranteed by
statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of
the land if we choose strict construction over guarantees against the deprivation of liberty. That would not
be in keeping with the principles of democracy on which our Constitution is premised.
Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government
authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be
laid.
21
WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of
merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its
supporting papers, and to grant him a reasonable period within which to file his comment with supporting
evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and academic by this
decision, the same is hereby ordered dismissed.
SO ORDERED.
Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., I join Mr. Justice Puno in his dissent.
Puno, J., please see dissent.
Vitug, J., see separate opinion.
Kapunan, J., see separate concurring opinion.
Panganiban, J., please see my dissenting opinion.
Mendoza, J., I join the dissents of Puno and Panganiban, JJ.
Quisumbing, J., with concurring opinion.
Pardo, J., I join J. Puno & J. Panganiban.
Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban.
Ynares-Santiago, J., please see separate concurring opinion.
Separate Opinions
VITUG, J., separate opinion;
The only real issue before the Court, I would take it, is whether or not private respondent can validly ask
for copies of pertinent documents while the application for extradition against him is still undergoing
process by the Executive Department.
There is, I agree with the majority, a right of access to such extradition documents conformably with the
provisions of Article III, Section 7, of the Philippine Constitution.1 The constitutional right to free access to
information of public concern is circumscribed only by the fact that the desired information is not among
the species exempted by law from the operation of the constitutional guaranty and that the exercise of the
right conforms with such reasonable conditions as may be prescribed by law.
There is no hornbook rule to determine whether or not an information is of public concern. The term
"public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters which the
public may want to know either because the subject thereof can affect their lives or simply because it
arouses concern.2
I am not convinced that there is something so viciously wrong with, as to deny, the request of private
respondent to be furnished with copies of the extradition documents.
I add. The constitutional right to due process secures to everyone an opportunity to be heard,
presupposing foreknowledge of what he may be up against, and to submit any evidence that he may wish
to proffer in an effort to clear himself. This right is two-pronged — substantive and procedural due process
— founded, in the first instance, on Constitutional or statutory provisions, and in the second instance, on
accepted rules of procedure.3 Substantive due process looks into the extrinsic and intrinsic validity of the
law that figures to interfere with the right of a person to his life, liberty and property. Procedural due
process — the more litigated of the two — focuses on the rules that are established in order to ensure
meaningful adjudication in the enforcement and implementation of the law. Like "public concern," the term
due process does not admit of any restrictive definition. Justice Frankfurter has viewed this flexible
concept, aptly I believe, as being ". . . compounded by history, reason, the past course of decisions, and
stout confidence in the democratic faith."4 The framers of our own Constitution, it would seem, have
deliberately intended, to make it malleable to the ever-changing milieu of society. Hitherto, it is dynamic
and resilient, adaptable to every situation calling for its application that makes it appropriate to accept an
enlarged concept of the term as and when there is a possibility that the right of an individual to life, liberty
and property might be diffused.5 Verily, whenever there is an imminent threat to the life, liberty or property
of any person in any proceeding conducted by or under the auspices of the State, his right to due process
of law, when demanded, must not be ignored.
A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the Extradition Treaty
between the Government of the Republic of the Philippines and the Government of the United States of
America provides that in case of urgency, a Contracting Party may request the provisional arrest of the
person prior to the presentation of the request for extradition. I see implicit in this provision that even after
the request for extradition is made and before a petition for extradition is filed with the courts, the
possibility of an arrest being made on the basis of a mere evaluation by the Executive on the request for
extradition by the foreign State cannot totally be discounted.
The conclusion reached by the majority, I hasten to add, does not mean that the Executive Department
should be impeded in its evaluation of the extradition request. The right of the extraditee to be furnished,
upon request, with a copy of the relevant documents and to file his comment thereon is not necessarily
anathema to the proceedings duly mandated by the treaty to be made.
I vote to deny the petition.
KAPUNAN, J., separate concurring opinion;
I vote to dismiss the petition, both on technical and substantial grounds.
The petition in the case at bar raises one and only issue, which is the validity of the Temporary
Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in Civil Case
No. 99-94684. The TRO directed respondents in said case to:
. . . maintain the status quo by refraining from committing the acts complained of; from conducting further
proceedings in connection with the request of the United States Government for the extradition of the
petitioner; from filing the corresponding Petition with the Regional Trial Court; and from performing any act
directed to the extradition of the petitioner to the United States, for a period of twenty days from the
service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.1
(Emphasis ours.)
The petition itself categorically states that "(t)he issue sought to be presented and litigated here is solely-
the validity of the TRO."2
Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear the case
below or that he has exceeded his jurisdiction in hearing the same. Nor is there any other act, ruling,
22
order, or decision, apart from the TRO already mentioned, of respondent Judge that is being challenged in
the petition before us.
Since, as alleged in the petition, a copy of the TRO was served on respondents below on August 10,
1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition has become
moot and academic. This Court does not exercise jurisdiction over cases which are moot and academic or
those not ripe for judicial consideration.3
Assuming that the present case has not become moot and academic, still, it should be dismissed for lack
of merit.
The substantive issues raised in this case are: (a) whether a person whose extradition is sought by a
foreign state has due process rights under Section 2, Article III of the 1997 Constitution before the
Department of Justice as the request for extradition is being evaluated, or whether due process rights
maybe invoked only upon the filing of a petition for extradition before a regional trial court; and (b) whether
or not private respondent has a right of access to extradition documents under Section 7, Article III of the
1997 Constitution.
Petitioner contends that due process rights such as the right to be informed of the basis of the request for
extradition and to have an opportunity to controvert are not provided in the extradition treaty or in P.D.
1069 and therefore does not exist in this stage of the proceedings. Further, he argues that the documents
sought to be furnished to private respondent only involve private concerns, and not matters of public
concern to which the people have a constitutional right to access.
While the evaluation process conducted by the Department of Justice is not exactly a preliminary
investigation of criminal cases, it is akin to a preliminary investigation because it involves the basic
constitutional rights of the person sought to be extradited. A person ordered extradited is arrested, forcibly
taken from his house, separated from his family and delivered to a foreign state. His rights of abode, to
privacy, liberty and pursuit of happiness are taken away from him — a fate as harsh and cruel as a
conviction of a criminal offense. For this reason, he is entitled to have access to the evidence against him
and the right to controvert them.
While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither does
either prohibit it. The right to due process is a universal basic right which is deemed written into our laws
and treaties with foreign countries.
Like a preliminary investigation, the evaluation by the Department of Justice of the extradition request and
its accompanying documents is to establish probable cause and to secure the innocent against hasty,
malicious and oppressive prosecution.
In this connection, it should be stressed that the evaluation procedure of the extradition request and its
accompanying documents by the Department of Justice cannot be characterized as a mere "ex-parte
technical assessment of the sufficiency" thereof. The function and responsibilities of the Department of
Justice in evaluating the extradition papers involve the exercise of judgment. They involve a determination
whether the request for extradition conforms fully to the requirements of the extradition treaty and whether
the offense is extraditable. These include, among others, whether the offense for which extradition is
requested is a political or military offense (Article 3); whether the documents and other informations
required under Article 7(2) have been provided (Article 7); and whether the extraditable offense is
punishable under the laws of both contracting parties by deprivation of liberty for a period of more than
one year (Article 2). Consequently, to arrive at a correct judgment, the parties involved are entitled to be
heard if the requirements of due process and equal protection are to be observed.
With respect to petitioner's claim that private respondent has no right to demand access to the documents
relating to the request for extradition, suffice it to say, that any document used in a proceeding that would
jeopardize a person's constitutional rights is matter of public concern. As Martin Luther King said,
"injustice anywhere is a threat to justice everywhere," so any violation of one's rights guaranteed by the
Bill of Rights is everybody's concern because they, one way or another, directly or indirectly, affect the
rights of life and liberty of all the citizens as a whole.
Due process rights in a preliminary investigation is now an established principle. The respondent has a
right of access to all of the evidence. He has the right to submit controverting evidence. The prosecuting
official who conducts the preliminary investigation is required to be neutral, objective, and impartial in
resolving the issue of probable cause. I see no reason why the same rights may not be accorded a person
sought to be extradited at the stage where the Department of Justice evaluates whether a petition for
extradition would be filed before a regional trial court. If denied such rights, not only denial of due process
rights but of equal protection may be raised.
It is suggested that after a petition for extradition is filed with a regional trial court, the person sought to be
extradited may exercise all due process rights. He may then have access to all the records on the basis of
which the request for extradition has been made. He may controvert that evidence and raise all defenses
he may consider appropriate. That, it is urged, meets the due process requirement.
But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right to notice
and hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the
deprivation can still be prevented.4 Like the filing of an information in a criminal case, the mere filing of a
petition for extradition causes immediate impairment of the liberty of the person sought to be extradited
and a substantial curtailment of other rights. His arrest may be immediately ordered by the regional trial
court. He would be compelled to face an open and public trial. He will be constrained to seek the
assistance of counsel and incur other expenses of litigation. The public eye would be directed at him with
all the concomitant intrusions to his right to privacy. Where the liberty of a person is at risk, and extradition
strikes at the very core of liberty, invocation of due process rights can never be too early.
QUISUMBING, J., concurring opinion;
As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest observations.
The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in our
Constitution should take precedence over treaty rights claimed by a contracting state. Stated otherwise,
the constitutionally mandated duties of our government to the individual deserve preferential consideration
when they collide with its treaty obligations to the government of another state. This is so although we
recognize treaties as a source of binding obligations under generally accepted principles of international
law incorporated in our Constitution as part of the law of the land.
For this primordial reason, I vote to DENY the petition.
Moreover, considering that the Extradition Treaty between the USA and Philippines appears mute on the
specific issue before us, the Court — in the exercise of its judicial power to find and state what the law is
23
— has this rare opportunity of setting a precedent that enhances respect for human rights and strengthens
due process of law.
As both majority and dissenting colleagues in the Court will recognize, American authorities follow two
tracks in extradition proceedings: (1) the interstate practice where, pursuant to statute, the state Executive
upon demand furnishes the would be extraditee or counsel copies of pertinent documents as well as the
request for extradition; and (2) the international practice where the Executive department need not initially
grant notice and hearing at all. Rules of reciprocity and comity, however, should not bar us from applying
internationally now what appears the more reasonable and humane procedure, that is, the interstate
practice among Americans themselves. For in this case the American people should be among the most
interested parties.
Truly, what private respondent is asking our Executive department (notice, copies of documents, and the
opportunity to protect himself at the earliest time against probable peril) does not, in my view, violate our
Extradition Treaty with the USA. His request if granted augurs well for transparency in interstate or
intergovernmental relations rather than secrecy which smacks of medieval diplomacy and the inquisition
discredited long ago.
That private respondent is a Filipino citizen is not decisive of the issue here, although it is obviously
pertinent. Even if he were a resident alien (other than American perhaps), he is, in my view, entitled to our
full protection against the hazards of extradition (or deportation, similarly) from the very start. More so
because, looking at the facts adduced at the hearing and on the record of this case, the charges against
him involve or are co-mingled with, if not rooted in, certain offenses of a political nature or motivation such
as the ones involving alleged financial contributions to a major American political party. If so, long
established is the principle that extradition could not be utilized for political offenses or politically motivated
charges.
There may, of course, be other charges against private respondent in the USA. But then they are, in my
view, already tainted there with political color due to the highly charged partisan campaign atmosphere
now prevailing. That private respondent's cases will be exploited as political fodder there is not far-
fetched, hence the need here for cautious but comprehensive deliberation on the matter at bar. For, above
all, it is not only a Treaty provision we are construing; it is about constitutional and human rights we are
most concerned.
YNARES-SANTIAGO, J., concurring opinion;
I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's right to be
given what is due to him. I join in his exposition of this Court's constitutional duty to strike the correct
balance between overwhelming Government power and the protection of individual rights where only one
person is involved.
However, I am constrained to write this short concurrence if only to pose the question of why there should
be any debate at all on a plea for protection of one's liberty which, if granted, will not result in any
meaningful impediment of thwarting any state policy and objectives.
I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked about,
should first be exposed to the indignity, expense, and anxiety of a public denunciation in court before he
may be informed of what the contracting states in an extradition treaty have against him. There is no
question that everything which respondent Jimenez now requests will be given to him during trial. Mr.
Jimenez is only petitioning that, at this stage, he should be informed why he may be deported from his
own country.
I see no ill effects which would arise if the extradition request and supporting documents are shown to him
now, instead of later.
Petitioner Secretary of Justice states that his action on the extradition request and its supporting
documents will merely determine whether or not the Philippines is complying with its treaty obligations. He
adds that, therefore, the constitutional rights of an accused in all criminal prosecutions are not available to
the private respondent.
The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent Jimenez's
requests. In short, the reasons are:
1. In evaluating the documents, the Department merely determines whether the procedures and
requirements under the relevant law and treaty have been complied with by the Requesting Government.
The constitutional rights of the accused in all criminal prosecutions are, therefore, not available.
2. The United States Government has requested the Philippine Government to prevent unauthorized
disclosure of certain grand jury information.
3. The petitioner cannot hold in abeyance proceedings in connection with an extradition request. For
extradition to be an effective tool of criminal law enforcement, requests for surrender of accused or
convicted persons must be processed expeditiously.
I respectfully submit that any apprehensions in the Court arising from a denial of the petition — "breach of
an international obligation, rupture of states relations, forfeiture of confidence, national embarrassment,
and a plethora of other equally undesirable consequences" — are more illusory than real. Our country is
not denying the extradition of a person who must be extradited. Not one provision of the extradition treaty
is violated. I cannot imagine the United States taking issue over what, to it, would be a minor concession,
perhaps a slight delay, accorded in the name of human rights. On the other hand, the issue is
fundamental in the Philippines. A citizen is invoking the protection, in the context of a treaty obligation, of
rights expressly guaranteed by the Philippine Constitution.
Until proved to be a valid subject for extradition, a person is presumed innocent or not covered by the
sanctions of either criminal law or international treaty. At any stage where a still prospective extraditee
only seeks to know so that he can prepare and prove that he should not be extradited, there should be no
conflict over the extension to him of constitutional protections guaranteed to aliens and citizens alike.
Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article 7
enumerates the required documents and establishes the procedures under which the documents shall be
submitted and admitted as evidence. There is no specific provision on how that Secretary of Foreign
Affairs should conduct his evaluation. The Secretary of Justice is not even in the picture at this stage.
Under petitioner's theory, silence in the treaty over a citizen's rights during the evaluation stage is
interpreted as deliberate exclusion by the contracting states of the right to know. Silence is interpreted as
the exclusion of the right to a preliminary examination or preliminary investigation provided by the laws of
either one of the two states.
24
The right to be informed of charges which may lead to court proceedings and result in a deprivation of
liberty is ordinarily routine. It is readily available to one against whom the state's coercive power has
already been focused. I fail to see how silence can be interpreted as exclusion. The treaty is silent
because at this stage, the preliminary procedure is still an internal matter. And when a law or treaty is
silent, it means a right or privilege may be granted. It is not the other way around.
The second reason alleging the need for secrecy and confidentiality is even less convincing. The
explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United States
Government requested the Philippine Government to prevent unauthorized disclosure of certain
information. On the other hand, petitioner declares that the United States has already secured orders from
concerned District Courts authorizing the disclosure of the same grand jury information to the Philippine
Government and its law enforcement personnel.
Official permission has been given. The United States has no cause to complain about the disclosure of
information furnished to the Philippines.
Moreover, how can grand jury information and documents be considered confidential if they are going to
be introduced as evidence in adversely proceedings before a trial court? The only issue is whether or not
Mr. Jimenez should be extradited. His innocence or guilt of any crime will be determined in an American
court. It is there where prosecution strategies will be essential. If the Contracting States believed in a total
non-divulging of information prior to court hearings, they would have so provided in the extradition treaty.
A positive provision making certain rights unavailable cannot be implied from silence.
I cannot believe that the United States and the Philippines with identical constitutional provisions on due
process and basic rights should sustain such a myopic view in a situation where the grant of a right would
not result in any serious setbacks to criminal law enforcement.
It is obvious that any prospective extraditee wants to know if his identity as the person indicated has been
established. Considering the penchant of Asians to adopt American names when in America, the issue of
whether or not the prospective extraditee truly is the person charged in the United States becomes a valid
question. It is not only identity of the person which is involved. The crimes must also be unmistakably
identified and their essential elements clearly stated.
There are other preliminary matters in which respondent is interested. I see nothing in our laws or in the
Treaty which prohibits the prospective extraditee from knowing until after the start of trial whether or not
the extradition treaty applies to him.
Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941); and Salonga vs.
Hon. Paño, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to secure an innocent
person against hasty, faulty and, therefore, oppressive proceedings; to protect him from an open and
extensively publicized accusation of crimes; to spare him the trouble, expense, and anxiety of a public
trial; and also to protect the state from useless and expensive trails. Even if the purpose is only to
determine whether or not the respondent is a proper subject for extradition, he is nonetheless entitled to
the guarantees of fairness and freedom accorded to those charged with ordinary crimes in the Philippines.
The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be informed
as part of undesirable delaying tactics. This is most unfortunate. Any request for extradition must be
viewed objectively and impartially without any predisposition to granting it and, therefore, hastening the
extradition process.

In the first place, any assistance which the evaluating official may get from the participation of respondent
may well point out deficiencies and insufficiencies in the extradition documents. It would incur greater
delays if these are discovered only during court trial. On the other hand, if, from respondent's participation,
the evaluating official discovers a case of mistaken identity, insufficient pleadings, inadequate complaints,
or any ruinous shortcoming, there would be no delays during trial. An unnecessary trial with all its
complications would be avoided.
The right to be informed is related to the constitutional right to a speedy trial. The constitutional guarantee
extends to the speedy disposition of cases before all quasi-judicial and administrative bodies
(Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the deliberate exclusion of
the defendant or respondent from the proceedings. As this Court rules in Acebedo vs. Sarmiento, 36
SCRA 247 (1970), "the right to a speedy trial, means one free from vexatious, capricious and oppressive
delays, its salutary objective being to assure that an innocent person may be free from the anxiety and
expense of a court litigation or, if otherwise, of having his guilt (in this case, his being extradited)
determined within the shortest possible time compatible with the presentation and consideration of
whatsoever legitimate defense he may interpose."
The right to be informed and the right to a preliminary hearing are not merely for respondent. They also
serve the interests of the State.1âwphi1.nêt
In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights of
individual respondent override the concerns of petitioner. There should be no hurried or indifferent effort to
routinely comply with all requests for extradition. I understand that this is truer in the United States than in
other countries. Proposed extraditees are given every legal protection available from the American justice
system before they are extradited. We serve under a government of limited powers and inalienable rights.
Hence, this concurrence.
PUNO, J., dissenting opinion;
If the case at bar was strictly a criminal case which involves alone the right of an accused to due process,
I would have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R. Melo, without
taking half a pause. But the case at bar does not involve the guilt or innocence of an accused but the
interpretation of an extradition treaty where at stake is our government's international obligation to
surrender to a foreign state a citizen of its own so he can be tried for an alleged offense committed within
that jurisdiction. The issues are of first impression and the majority opinion dangerously takes us to
unknown shoals in constitutional and international laws, hence this dissenting opinion.
Extradition is a well-defined concept and is more a problem in international law. It is the "process by which
persons charged with or convicted of crime against the law of a State and found in a foreign State are
returned by the latter to the former for trial or punishment. It applies to those who are merely charged with
an offense but have not been brought to trial; to those who have been tried and convicted and have
subsequently escaped from custody; and those who have been convicted in absentia. It does not apply to
persons merely suspected of having committed an offense but against who no charge has been laid or to
a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment."1 The
definition covers the private respondent who is charged with two (2) counts of conspiracy to commit
offense or to defraud the United States, four (4) counts of attempt to evade or defeat tax, two (2) counts of
fraud by wire, radio or television, six (6) counts of false statements or entries and thirty-three (33) counts
25
of election contributions in the name of another. There is an outstanding warrant of arrest against the
private respondent issued by the US District Court, Southern District of Florida.
A brief review of the history of extradition law will illumine our labor. Possibly the most authoritative
commentator on extradition today, M. Cherif Bassiouni, divides the history of extradition into four (4)
periods: "(1) ancient times to seventeenth century — a period revealing almost exclusive concern for
political and religious offenders; (2) the eighteenth century and half of the nineteenth century — a period
of treaty-making chiefly concerned with military offenders characterizing the condition of Europe during
that period; (3) from 1833 to 1948 — a period of collective concern in suppressing common criminality;
and (4) post-1948 developments which ushered in a greater concern for protecting the human rights of
persons and revealed an awareness of the need to have international due process of law regulate
international relations."2
It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during
these different periods. Extradition was first practiced by the Egyptians, Chinese, Chaldeans and Assyro-
Babylonians but their basis for allowing extradition was unclear. Sometimes, it was granted due to pacts;
at other times, due to plain good will.3 The classical commentators on international law thus focused their
early views on the nature of the duty to surrender an extraditee — whether the duty is legal or moral in
character. Grotius and de Vattel led the school of thought that international law imposed a legal duty
called civitas maxima to extradite criminals.4 In sharp contrast, Puffendorf and Billot led the school of
thought that the so-called duty was but an "imperfect obligation which could become enforceable only by a
contract or agreement between states.5
Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no duty
to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme Court in US
v. Rauscher,6 held: ". . . . it is only in modern times that the nations of the earth have imposed upon
themselves the obligation of delivering up these fugitives from justice to the states where their crimes
were committed, for trial and punishment. This has been done generally by treaties . . . Prior to these
treaties, and apart from them there was no well-defined obligation on one country to deliver up such
fugitives to another; and though such delivery was often made it was upon the principle of comity . . ."
Then came the long and still ongoing debate on what should be the subject of international law. The 20th
century saw the dramatic rise and fall of different types and hues of authoritarianism — the fascism of
Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the communism of Russia's
Stalin, etc. The sinking of these isms led to the elevation of the rights of the individual against the state.
Indeed, some species of human rights have already been accorded universal recognition.7 Today, the
drive to internationalize rights of women and children is also on high gear.8 The higher rating given to
human rights in the hierarchy of values necessarily led to the re-examination of rightful place of the
individual in international law. Given the harshest eye is the moss-covered doctrine that international law
deals only with States and that individuals are not its subject. For its undesirable corrally is the sub-
doctrine that an individual's right in international law is a near cipher. Translated in extradition law, the
view that once commanded a consensus is that since a fugitive is a mere object and not a subject of
international law, he is bereft of rights. An extraditee, so it was held, is a mere "object transported from
one state to the other as an exercise of the sovereign will of the two states involved."9 The re-examination
consigned this pernicious doctrine to the museum of ideas.10 The new thinkers of international law then
gave a significant shape to the role and rights of the individual in state-concluded treaties and other
international agreements. So it was declared by then US Ambassador Philip C. Jessup in audible italics:
"A very large part of international affairs and, thus, of the process of international accommodation,
concerns the relations between legal persons known as states. This is necessarily so. But it is no longer
novel for the particular interest of the human being to break through the mass of interstate relationship."11
The clarion call to re-engineer a new world order whose dominant interest would transcend the parochial
confines of national states was not unheeded. Among the world class scholars who joined the search for
the elusive ideological underpinnings of a new world order were Yale Professor Myres McDougal and Mr.
Justice Florentino Feliciano. In their seminal work. Law and Minimum World Public Order, they suggested
that the object of the new world should be "to obtain in particular situations and in the aggregate flow of
situations the outcome of a higher degree of conformity with the security goals of preservation,
deterrence, restoration, rehabilitation and reconstruction of all societies comprising the world
community."12 Needless to stress, all these prescient theses accelerated the move to recognize certain
rights of the individual in international law.
We have yet to see the final and irrevocable place of individual rights, especially the rights of an
extraditee, in the realm of international law. In careful language, Bassiouni observes that today,
"institutionalized conflicts between states are still rationalized in terms of sovereignty, national interest,
and national security, while human interests continue to have limited, though growing impact on the
decision-making processes which translate national values and goals into specific national and
international policy."13
I belabor the international law aspect of extradition as the majority opinion hardly gives it a sideglance. It is
my humble submission that the first consideration that should guide us in the case at bar is that a bilateral
treaty — the RP-US Extradition Treaty — is the subject matter of the litigation. In our constitutional
scheme, the making of a treaty belongs to the executive and legislative departments of our government.
Between these two departments, the executive has a greater say in the making of a treaty. Under Section
21, Article VII of our Constitution, the President has the sole power to negotiate treaties and international
agreements although to be effective, they must be concurred in by at least two thirds of all the members of
the Senate. Section 20 of the same Article empowers the President to contract or guarantee foreign loans
with the prior concurrence of the Monetary Board. Section 16 of the same Article gives the President the
power to appoint ambassadors, other public ministers and consuls subject to confirmation by the
Commission on Appointments. In addition, the President has the power to deport undesirable aliens. The
concentration of these powers in the person of the President is not without a compelling consideration.
The conduct of foreign relations is full of complexities and consequences, sometimes with life and death
significance to the nation especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and can decide with
decisiveness. Beyond debate, the President is the single most powerful official in our land for Section 1 of
Article VII provides that "the executive power shall be vested in the President of the Philippines," whereas
Section 1 of Article VI states that "the legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives . . . except to the extent reserved to the
people by the provision on initiative and referendum," while Section 1 of Article VIII provides that "judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by law."
Thus, we can see that executive power is vested in the President alone whereas legislative and judicial
powers are shared and scattered. It is also the President who possesses the most comprehensive and the
most confidential information about foreign countries for our diplomatic and consular officials regularly
brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military
intelligence data.14 In fine, the presidential role in foreign affairs is dominant and the President is
traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay,
validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to
breach of an international obligation, rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally undesirable consequences.
26
These are some of the dominant policy considerations in international law that the Court must balance
against the claim of the private respondent that he has a right to be given the extradition documents
against him and to comment thereon even while they are still at the evaluation stage by the petitioner
Secretary of Justice, an alter ego of the President. The delicate questions of what constitutional rights and
to what degree they can be claimed by an extraditee do not admit of easy answers and have resulted in
discrete approaches the world over.15 On one end of the pole is the more liberal European approach. The
European Court of Human Rights embraces the view that an extraditee is entitled to the benefit of all
relevant provisions of the European Convention for the Protection of Human Rights and Fundamental
Freedoms. It has held that ". . . in so far as a measure of the extradition has consequences adversely
affecting the enjoyment of a convention right, it may, assuming that the consequences are not too remote,
attract the obligations of a Contracting State under the relevant convention guarantee."16 At the other end
of the pole is the more cautious approach of the various Courts of Appeal in the United States. These
courts have been more conservative in light of the principle of separation of powers and their faith in the
presumptive validity of executive decisions. By and large, they adhere to the rule of non-inquiry under
which the extraditing court refuses to examine the requesting country's criminal justice system or consider
allegations that the extraditee will be mistreated or denied a fair trial in that country.17
The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-US
Extradition Treaty and our Constitution where we have to choose one over the other. Rather, it calls for a
harmonization between said treaty and our Constitution. To achieve this desirable objective, the Court
should consider whether the constitutional rights invoked by the private respondent have truly been
violated and even assuming so, whether he will be denied fundamental fairness. It is only when their
violation will destroy the respondent's right to fundamental fairness that his constitutional claims should be
given primacy.
Given this balancing approach, it is my humble submission that considering all the facts and facets of the
case, the private respondent has not proved entitlement to the right he is claiming. The majority holds that
the Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit respondent's claims, hence, it
should be allowed. This is too simplistic an approach. Rights do not necessarily arise from a vacuum.
Silence of the law can even mean an implied denial of a right. Also, constitutional litigations do not always
involve a clear cut choice between right and wrong. Sometimes, they involve a difficult choice between
right against right. In these situations, there is need to balance the contending rights and primacy is given
to the right that will serve the interest of the nation at that particular time. In such instances, the less
compelling right is subjected to soft restraint but without smothering its essence. Proceeding from this
premise of relativism of rights, I venture the view that even assuming arguendo respondent's weak claim,
still, the degree of denial of private respondent's rights to due process and to information is too slight to
warrant the interposition of judicial power. As admitted in the ponencia itself, an extradition proceeding is
sui generis. It is, thus, futile to determine what it is. What is certain is that it is not a criminal proceeding
where there is an accused who claim the entire array of rights guaranteed by the Bill of Rights. Let it be
stressed that in an extradition proceeding, there is no accused and the guilt or innocence of the extraditee
will not be passed upon by our executive officials nor by the extradition judge. Hence, constitutional rights
that are only relevant do determine the guilt or innocence of an accused cannot be invoked by an
extraditee. Indeed, an extradition proceeding is summary in nature which is untrue of criminal
proceedings.18 Even the rules of evidence are different in an extradition proceeding. Admission of
evidence is less stringent, again because the guilt of the extraditee is not under litigation.19 It is not only
the quality but even the quantum of evidence in extradition proceeding is different. In a criminal case, an
accused can only be convicted by proof beyond reasonable doubt.20 In an extradition proceeding, an
extraditee can be ordered extradited "upon showing of the existed of a prima facie case."21 If more need
be said, the nature of an extradition decision is different from a judicial decision whose finality cannot be
changed by executive fiat. Our courts22 may hold an individual extraditable but the ultimate decision to
extradite the individual lies in the hands of the Executive. Section 3, Article 3 of the RP-US Extradition
Treaty specifically provides that "extradition shall not be granted if the executive authority of the
Requested State determined that the request was politically motivated, or that the offense is a military
offense which is not punishable under non-military penal legislation." In the United States, the Secretary of
State exercises this ultimate power and is conceded considerable discretion. He balances the equities of
the case and the demands of the nation's foreign relations.23 In sum, he is not straitjacketed by strict legal
considerations like an ordinary court.
The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence of the
extraditee, the limited nature of the extradition proceeding, the availability of adequate remedies in favor of
the extraditee, and the traditional leeway given to the Executive in the conduct of foreign affairs have
compelled courts to put a high threshold before considering claims of individuals that enforcement of an
extradition treaty will violate their constitutional rights. Exemplifying such approach is the Supreme Court
of Canada which has adopted a highly deferential standard that emphasizes international comity and the
executive's experience in international matters.24 It continues to deny Canada's charter protection to
extraditees unless the violation can be considered shocking to the conscience.
In the case, at bar and with due respect, the ponencia inflates with too much significance the threat to
liberty of the private respondent to prop us its thesis that his constitutional rights to due process and
access to information must immediately be vindicated. Allegedly, respondent Jimenez stands in danger of
provisional arrest, hence, the need for him to be immediately furnished copies of documents
accompanying the request for his extradition. Respondent's fear of provisional arrest is not real. It is a
self-imagined fear for the realities on the ground show that the United States authorities have not
manifested any desire to request for his arrest. On the contrary, they filed the extradition request through
the regular channel and, even with the pendency of the case at bar, they have not moved for respondent's
arrest on the ground of probable delay in the proceedings. To be sure, the issue of whether respondent
Jimenez will be provisionally arrested is now moot. Under Section 1 of Article 9 of the RP-US Extradition
Treaty, in relation to Section 20(a) of PD No. 1069, the general principle is enunciated that a request for
provisional arrest must be made pending receipt of the request for extradition. By filing the request for
extradition, the US authorities have implicitly decided not to move for respondent's provisional arrest. But
more important, a request for respondent's arrest does not mean he will be the victim of an arbitrary
arrest. He will be given due process before he can be arrested. Article 9 of the treaty provides:
PROVISIONAL ARREST
1. In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending
presentation of the request for extradition. A request for provisional arrest may be transmitted through the
diplomatic channel or directly between the Philippine Department of Justice and the United States
Department of Justice.
2. The application for provisional arrest shall contain:
a) a description of the person sought;
b) the location of the person sought, if known;
c) a brief statements of the facts of the case, including, if possible, the time and location of the offense;
27
d) a description of the laws violated;
e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt or judgment of
conviction against the person sought; and
f) a statement that a request for extradition for the person sought will follow.
3. The Requesting State shall be notified without delay of the disposition of its application and the reasons
for any denial.
4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60)
days from the date of arrest pursuant to this Treaty if the executive authority of the Requested State has
not received the formal request for extradition and the supporting documents required in Article 7.
In relation to the above, Section 20 of P.D. No. 1069 provides:
Sec. 20. Provisional Arrest. — (a) In case of urgency, the requesting state may, pursuant to the relevant
treaty or convention and while the same remains in force, request for the provisional arrest of the
accused, pending receipt of the request for extradition made in accordance with Section 4 of this Decree.
(b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation,
Manila, either through the diplomatic channels or direct by post or telegraph.
(c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon
receipt of the request immediately secure a warrant for the provisional arrest of the accused from the
presiding judge of the Court of First Instance of the province or city having jurisdiction of the place, who
shall issue the warrant for the provisional arrest of the accused. The Director of the National Bureau of
Investigation through the Secretary of Foreign Affairs shall inform the requesting state of the result of its
request.
(d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign Affairs has not
received the request for extradition and the documents mentioned in Section 4 of this Decree, the
accused shall be released from custody.
The due process protection of the private-respondent against arbitrary arrest is written in cyrillic letters in
these two (2) related provisions. It is self-evident under these provisions that a request for provisional
arrest does not mean it will be granted ipso facto. The request must comply with certain requirements. It
must be based on an "urgent" factor. This is subject to verification and evaluation by our executive
authorities. The request can be denied if not based on a real exigency of if the supporting documents are
insufficient. The protection of the respondent against arbitrary provisional arrest does not stop on the
administrative level. For even if the Director of the National Bureau of Investigation agrees with the
request for the provisional arrest of the respondent, still he has to apply for a judicial warrant from the
"presiding judge of the Court of First Instance (now RTC) of the province of city having jurisdiction of the
place. . . . ." It is a judge who will issue a warrant for the provisional arrest of the respondent. The judge
has comply with Section 2, Article III of the Constitution which provides that "no . . . warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly describing the . . .
persons or things to be seized." The message that leaps to the eye is that compliance with this
requirements precludes any arbitrary arrest.

In light of all these considerations, I respectfully submit that denying respondent's constitutional claim to
be furnished all documents relating to the request for his extradition by the US authorities during their
evaluation stage will not subvert his right to fundamental fairness. It should be stressed that this is not a
case where the respondent will not be given an opportunity to know the basis of the request for his
extradition. In truth, and contrary to the impression of the majority, P.D. No. 1069 fixes the specific time
when he will be given the papers constituting the basis for his extradition. The time is when he is
summoned by the extradition court and required to answer the petition for extradition. Thus, Section 6 of
P.D. No. 1069 provides:
Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. — (1) Immediately upon
receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused
to appear and to answer the petition on the day and hour fixed in the order. He may issue a warrant for
the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to
the presiding judge that the immediate arrest and temporary detention of the accused will best serve the
ends of justice. Upon receipt of the answer within the time fixed, the presiding judge shall hear the case or
set another date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served
each upon the accused and the attorney having charge of the case.
Upon receipt of the summons and the petition, respondent is free to foist all defense available to him.
Such an opportunity does not deny him fairness which is the essence of due process of law.
Thus, with due respect, I submit that the ponencia failed to accord due importance to the international law
aspect of an extradition treaty as it unduly stressed its constitutional law dimension. This goes against the
familiar learning that in balancing the clashing interests involved in extradition treaty, national interest is
more equal than the others. While lately, humanitarian considerations are being factored in the equation,
still the concept of extradition as a national act is the guiding idea. Requesting and granting extradition
remains a power and prerogative of the national government of a State. The process still involves
relations between international personalities.25 Needless to state, a more deferential treatment should be
given to national interest than to individual interest. Our national interest in extraditing persons who have
committed crimes in a foreign country are succinctly expressed in the whereas clauses of P.D. No. 1069,
viz:
WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of international
law as part of law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation
and amity with all nations;
WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of
any other state to which the criminal may have escaped, because it saps the foundation of social life and
is an outrage upon humanity at large, and it is in the interest of civilized communities that crimes should
not go unpunished. . . . .
The increasing incidence of international and transnational crimes, the development of new technologies
of death, and the speed and scale of improvement of communication are factors which have virtually
annihilated time and distance. They make more compelling the vindication of national interest to insure
that the punishment of criminals should not be frustrated by the frontiers of territorial sovereignty. This
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overriding national interest must be upheld as against respondent's weak constitutional claims which in no
way amount to denial of fundamental fairness.
At bottom, this case involves the respect that courts should accord to the Executive that concluded the
RP-US Extradition Treaty in the conduct of our foreign affairs. As early as 1800, the legendary John
Marshall, then a congressman, has opined that the power to extradite pursuant to a treaty rests in the
executive branch as part of its power to conduct foreign affairs.26 Courts have validated this forward-
looking opinion in a catena of unbroken cases. They defer to the judgment of the Executive on the
necessities of our foreign affairs and on its view of the requirements of international comity. The
deferential attitude is dictated by the robust reality that of the three great branches of our government, it is
the Executive that is most qualified to guide the ship of the state on the known and unknown continents of
foreign relations. It is also compelled by considerations of the principle of separation of powers for the
Constitution has clearly allocated the power to conduct our foreign affairs to the Executive. I respectfully
submit that the majority decision has weakened the Executive by allowing nothing less than an
unconstitutional headbutt on the power of the Executive to conduct our foreign affairs. The majority should
be cautions in involving this Court in the conduct of the nation's foreign relations where the inviolable rule
dictated by necessity is that the nation should speak with one voice. We should not overlook the reality
that courts by their nature, are ill-equipped to fully comprehend the foreign policy dimension of a treaty,
some of which are hidden in shadows and silhouettes.
I vote to grant the petition.
PANGANIBAN, J., dissenting opinion;
With due respect, I dissent.
The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due process
rights of notice and hearing during the preliminary or evaluation stage of the extradition proceeding
against him.
Two Staged in Extradition
There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation stage,
whereby the executive authority of the requested state ascertains whether the extradition request is
supported by the documents and information required under the Extradition Treaty; and (2) the extradition
hearing, whereby the petition for extradition is heard before a court of justice, which determines whether
the accused should be extradited.
The instant petition refers only to the first stage. Private respondent claims that he has a right to be
notified and to be heard at this early stage. However, even the ponencia admits that neither the RP-US
Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the Philippine
government, upon receipt of the request for extradition, to give copies thereof and its supporting
documents to the prospective extraditee, much less to give him an opportunity to be heard prior to the
filing of the petition in court.
Notably, international extradition proceedings in the United States do not include the grant by the
executive authority of notice and hearing to the prospective extraditee at this initial stage. It is the judge or
magistrate who is authorized to issue a warrant of arrest and to hold a hearing to consider the evidence
submitted in support of the extradition request. In contrast, in interstate rendition, the governor must, upon
demand, furnish the fugitive or his attorney copies of the request and its accompanying documents,
pursuant to statutory provisions.1 In the Philippines, there is no similar statutory provision.
Evaluation Stage Essentially Ministerial
The evaluation stage simply involves the ascertainment by the foreign affairs secretary of whether the
extradition request is accompanied by the documents stated in paragraphs 2 and 3, Article 7 of the Treaty,
relating to the identity and the probable location of the fugitive; the facts of the offense and the procedural
history of the case; provisions of the law describing the essential elements of the offense charged and the
punishment therefor; its prescriptive period; such evidence as would provide probable cause for the arrest
and the committal for trial of the fugitive; and copies of the warrant or order of arrest and charging
document. The foreign affairs secretary also sees to it that these accompanying documents have been
certified by the principal diplomatic or consular officer of the Philippines in the United States, and that they
are in English language or have English translations. Pursuant to Article 3 of the Treaty, he also
determines whether the request is politically motivated, and whether the offense charged is a military
offense not punishable under non-military penal legislation.2
Upon a finding of the secretary of foreign affairs that the extradition request and its supporting documents
are sufficient and complete in form and substance, he shall deliver the same to the justice secretary, who
shall immediately designate and authorize an attorney in his office to take charge of the case. The lawyer
designated shall then file a written petition with the proper regional trial court, with a prayer that the court
take the extradition request under consideration.3
When the Right to Notice and Hearing Becomes Available
According to private Respondent Jimenez, his right to due process during the preliminary stage emanates
from our Constitution, particularly Section 1, Article III thereof, which provides:
No person shall be deprived of life, liberty or property without due process of law.
He claims that this right arises immediately, because of the possibility that he may be provisionally
arrested pursuant to Article 9 of the RP-US Treaty, which reads:
In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending
presentation of the request for extradition. A request for provisional arrest may be transmitted through the
diplomatic channel or directly between the Philippine Department of Justice and the United States
Department of Justice.
xxx xxx xxx
Justice Melo's ponencia supports private respondent's contention. It states that there are two occasions
wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional arrest pending
the submission of the extradition request and (2) his temporary arrest during the pendency of the
extradition petition in court.4 The second instance is not in issue here, because no petition has yet been
filed in court.
However, the above-quoted Article 9 on provisional arrest is not automatically operative at all times, and in
enforcement does not depend solely on the discretion of the requested state. From the wordings of the
29
provision itself, there are at least three requisites: (1) there must be an urgency, and (2) there is a
corresponding request (3) which must be made prior to the presentation of the request for extradition.
In the instant case, there appears to be no urgency characterizing the nature of the extradition of private
respondent. Petitioner does not claim any such urgency. There is no request from the United States for
the provisional arrest of Mark Jimenez either. And the secretary of justice states during the Oral Argument
that he had no intention of applying for the provisional arrest of private respondent.5 Finally, the formal
request for extradition has already been made; therefore, provisional arrest is not likely, as it should really
come before the extradition request.6
Mark Jimenez Not in Jeopardy of Arrest
Under the outlined facts of this case, there is no open door for the application of Article 9, contrary to the
apprehension of private respondent. In other words, there is no actual danger that Jimenez will be
provisionally arrested or deprived of his liberty. There is as yet no threat that his rights would be trampled
upon, pending the filing in court of the petition for his extradition. Hence, there is no substantial gain to be
achieved in requiring the foreign affairs (or justice) secretary to notify and hear him during the preliminary
stage, which basically involves only the exercise of the ministerial power of checking the sufficiency of the
documents attached to the extradition request.
It must be borne in mind that during the preliminary stage, the foreign affairs secretary's determination of
whether the offense charged is extraditable or politically motivated is merely preliminary. The same issue
will be resolved by the trial court.7 Moreover, it is also the power and the duty of the court, not the
executive authority, to determine whether there is sufficient evidence to establish probable cause that the
extraditee committed the crimes charged.8 The sufficiency of the evidence of criminality is to be
determined based on the laws of the requested state.9 Private Respondent Jimenez will, therefore,
definitely have his full opportunity before the court, in case an extradition petition will indeed be filed, to be
heard on all issues including the sufficiency of the documents supporting the extradition request.10
Private respondent insists that the United States may still request his provisional arrest at any time. That
is purely speculative. It is elementary that this Court does not declare judgments or grant reliefs based on
speculations, surmises or conjectures.
In any event, even granting that the arrest of Jimenez is sought at any time despite the assurance of the
justice secretary that no such measure will be undertaken, our local laws and rules of procedure
respecting the issuance of a warrant of arrest will govern, there being no specific provision under the
Extradition Treaty by which such warrant should issue. Therefore, Jimenez will be entitled to all the rights
accorded by the Constitution and the laws to any person whose arrest is being sought.1âwphi1.nêt
The right of one state to demand from another the return of an alleged fugitive from justice and the
correlative duty to surrender the fugitive to the demanding country exist only when created by a treaty
between the two countries. International law does not require the voluntary surrender of a fugitive to a
foreign government, absent any treaty stipulation requiring it.11 When such a treaty does exist, as
between the Philippines and the United States, it must be presumed that the contracting states perform
their obligations under it with uberrimae fidei, treaty obligations being essentially characterized
internationally by comity and mutual respect.
The Need for Respondent Jimenez to Face Charges in the US
One final point. Private respondent also claims that from the time the secretary of foreign affairs gave due
course to the request for his extradition, incalculable prejudice has been brought upon him. And because
of the moral injury caused, he should be given the opportunity at the earliest possible time to stop his
extradition. I believe that any moral injury suffered by private respondent had not been caused by the
mere processing of the extradition request. And it will not cease merely by granting him the opportunity to
be heard by the executive authority. The concrete charges that he has allegedly committed certain
offenses already exist. These charges have been filed in the United States and are part of public and
official records there. Assuming the existence of moral injury, the only means by which he can restore his
good reputation is to prove before the proper judicial authorities in the US that the charges against him are
unfounded. Such restoration cannot be accomplished by simply contending that the documents supporting
the request for his extradition are insufficient.

Conclusion

In the context of the factual milieu of private respondent, there is really no threat of any deprivation of his
liberty at the present stage of the extradition process. Hence, the constitutional right to due process —
particularly the right to be heard — finds no application. To grant private respondent's request for copies
of the extradition documents and for an opportunity to comment thereon will constitute "over-due process"
and unnecessarily delay the proceedings.

WHEREFORE, I vote to grant the Petition.

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