EN BANC
[G.R. No. 148571. December 17, 2002.]
GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the Philippines Department of Justice, Petitioners, v. HON. GUILLERMO G. PURGANAN, Presiding Judge, Regional Trial Court of Manila, Branch 42, and MARK JIMENEZ a.k.a. MARIO BATACAN CRESPO, Respondents.
R E S O L U T I O N
Before the Court are private respondent’s Motion for Reconsideration dated 10 October 2002, petitioner’s Comment thereon dated 05 November 2002, private respondent’s Motion for Leave of Court to File and to Admit Additional Arguments in Support of Motion for Reconsideration dated November 6, 2002, and Reply (to petitioner’s Comment) dated November 26, 2002.cralaw : red
First, private respondent insists that the Extradition Court acted properly in granting bail to him. We have already exhaustively discussed this issue in our Decision and in the Concurring Opinion of Mr. Justice Antonio T. Carpio. Thus, we will not belabor our ruling on this point. Suffice it to say that petitioner’s repeated invocation of the Extradition Court’s grant of bail has not convinced us that he deserves bail under the exception laid down in our Decision, namely," (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exists special, humanitarian and compelling circumstances including, as matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein."cralaw virtua1aw library
There has been no clear and convincing showing as to the absence of flight risk and the non-endangerment of the community, or as to the existence of special, humanitarian and compelling circumstances justifying grant of bail.
Second, private respondent claims that our Decision did not make an express finding of grave abuse of discretion on the part of the lower court. This is incorrect. On page 24 of our Decision, we plainly stated: "Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez." Such grave abuse continued to characterize the subsequent actions of Judge Purganan in illegally granting bail to private Respondent. Again, we will not repeat here why respondent does not deserve temporary liberty. This point has been already exhaustively taken up in our Decision and in the Opinions individually written by the members of the Court.
Further, contrary to Jimenez’s claims, the Extradition Court did not negate the flight risk posed by him. It did not make a finding on flight risk as it considered the issue irrelevant, having already determined bail to be a matter of right. Without making any finding on flight risk, it found the capacity to flee subservient to "the benefits that respondent may be able to deliver to his constituents" despite the absence from the records of evidence showing the existence of such benefits.
And in any event, in his Memorandum, private respondent submitted factual issues — i.e., existence of special circumstances and absence of flight risk — for the consideration of this Court. He even reiterated some of those factual submissions in his Motion for Reconsideration. He is therefore deemed estopped to claim that this Court cannot, on certiorari, address factual issues and review and reverse the factual findings of the Extradition Court.
Third, private respondent’s arguments (1) that the Extradition Court exercised due discretion in its grant of bail and (2) that our "ruling that bail is not a matter of right in extradition cases is contrary to prevailing law and jurisprudence" are neither novel nor deserving of further rebuttal. Again, they have been extensively taken up in Decision as well as in Concurring, Separate and Dissenting Opinions.
Fourth, private respondent argues that allegedly our Decision violates his due process rights. Again, we have discussed this matter in our Decision saying that, in its simplest concept, due process is merely the opportunity to be heard — which opportunity need not always be a prior one. In point of fact, private respondent has been given more than enough opportunity to be heard in this Court as well as in the Extradition Court. Even his Motion for Reconsideration has been given all the chances to persuade by way of allowing "additional arguments" in his Motion dated November 6, 2002 and Reply. These latter pleadings are normally not allowed, but precisely because this Court wanted to give him more than enough opportunity to be heard and to argue, we have bent backwards and admitted these additional pleadings.
Finally, private respondent contends that as a member of Congress, he is immune from arrest "arising from offenses punishable by not more than six (6) years imprisonment," saying that he cannot be prevented from performing his legislative duties because his constituents would be disenfranchised. He perorates that a member of Congress may be suspended or removed from office only by two thirds vote of the House of Representatives.chanrob1es virtua1 1aw 1ibrary
Citing People v. Jalosjos, our Decision (pp. 38-40) has already debunked the disenfranchisement argument. Furthermore, our Decision does not in any manner suspend or remove him from office. Neither his arrest or detention arising from the extradition proceeding will constitute his suspension or removal from office. That is clear enough.
While equal protection and reasonable classifications are not directly in issue in this case, we nevertheless stress, paraphrasing Jalosjos, that respondent’s election to the position of congressman, with the concomitant duty to discharge legislative functions, does not constitute a substantial differentiation which warrants placing him in a classification or category apart from all other persons confined and deprived of their liberty pending resolution of their extradition cases. We reiterate that lawful arrest and temporary confinement of a potential extraditee are germane to the purposes of the law and apply to all those belonging to the same class.
As we have stated, the procedure adopted by the Extradition Court of first notifying and hearing a prospective extraditee before the actual issuance of the warrant for his arrest, is tantamount to giving notice to flee and avoid extradition. Whether a candidate for extradition does in fact go into hiding or not is beside the point. In the final analysis, the method adopted by the lower court was completely at loggerheads with the purpose, object and rationale of the law, and overlooked the evils to be remedied.
As already suggested in our Decision (p. 32), private respondent can avoid arrest and detention which are the consequences of the extradition proceeding simply by applying for bail before the courts trying the criminal cases against him in the USA. He himself has repeatedly told us that the indictments against him in the United States are bailable. Furthermore, he is capable, financially and otherwise, of producing the necessary bail in the US. Why then has he not done so?
Otherwise stated, Respondent Jimenez has the actual power to lift his arrest and detention arising from his extradition by simply and voluntarily going to and filing bail in the USA.
AT BOTTOM, private respondent’s Motion for Reconsideration presents no new or substantial arguments which have not been presented in his prior pleadings and which have not been taken up in our Decision. His present allegations and asseverations are mere rehashes of arguments previously presented to us or are mere restatements of the Separate and Dissenting Opinions which were already adequately discussed in our Decision. In short, private respondent has not given any compelling reason to warrant a reversal or modification of our earlier rulings.
WHEREFORE, the Motion for Reconsideration is hereby DENIED with finality.chanrob1es virtua1 1aw 1ibrary
SO ORDERED.
Davide, Jr., C.J., Mendoza, Panganiban, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Bellosillo and Puno, JJ., the latter joined by Quisumbing, J., reiterate their Separate Opinions.
Vitug and Ynares-Santiago, JJ., both joined by Sandoval-Gutierrez, J., filed their Dissenting Opinions.
VITUG, J.:
First, private respondent insists that the Extradition Court acted properly in granting bail to him. We have already exhaustively discussed this issue in our Decision and in the Concurring Opinion of Mr. Justice Antonio T. Carpio. Thus, we will not belabor our ruling on this point. Suffice it to say that petitioner’s repeated invocation of the Extradition Court’s grant of bail has not convinced us that he deserves bail under the exception laid down in our Decision, namely," (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exists special, humanitarian and compelling circumstances including, as matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein."cralaw virtua1aw library
There has been no clear and convincing showing as to the absence of flight risk and the non-endangerment of the community, or as to the existence of special, humanitarian and compelling circumstances justifying grant of bail.
Second, private respondent claims that our Decision did not make an express finding of grave abuse of discretion on the part of the lower court. This is incorrect. On page 24 of our Decision, we plainly stated: "Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez." Such grave abuse continued to characterize the subsequent actions of Judge Purganan in illegally granting bail to private Respondent. Again, we will not repeat here why respondent does not deserve temporary liberty. This point has been already exhaustively taken up in our Decision and in the Opinions individually written by the members of the Court.
Further, contrary to Jimenez’s claims, the Extradition Court did not negate the flight risk posed by him. It did not make a finding on flight risk as it considered the issue irrelevant, having already determined bail to be a matter of right. Without making any finding on flight risk, it found the capacity to flee subservient to "the benefits that respondent may be able to deliver to his constituents" despite the absence from the records of evidence showing the existence of such benefits.
And in any event, in his Memorandum, private respondent submitted factual issues — i.e., existence of special circumstances and absence of flight risk — for the consideration of this Court. He even reiterated some of those factual submissions in his Motion for Reconsideration. He is therefore deemed estopped to claim that this Court cannot, on certiorari, address factual issues and review and reverse the factual findings of the Extradition Court.
Third, private respondent’s arguments (1) that the Extradition Court exercised due discretion in its grant of bail and (2) that our "ruling that bail is not a matter of right in extradition cases is contrary to prevailing law and jurisprudence" are neither novel nor deserving of further rebuttal. Again, they have been extensively taken up in Decision as well as in Concurring, Separate and Dissenting Opinions.
Fourth, private respondent argues that allegedly our Decision violates his due process rights. Again, we have discussed this matter in our Decision saying that, in its simplest concept, due process is merely the opportunity to be heard — which opportunity need not always be a prior one. In point of fact, private respondent has been given more than enough opportunity to be heard in this Court as well as in the Extradition Court. Even his Motion for Reconsideration has been given all the chances to persuade by way of allowing "additional arguments" in his Motion dated November 6, 2002 and Reply. These latter pleadings are normally not allowed, but precisely because this Court wanted to give him more than enough opportunity to be heard and to argue, we have bent backwards and admitted these additional pleadings.
Finally, private respondent contends that as a member of Congress, he is immune from arrest "arising from offenses punishable by not more than six (6) years imprisonment," saying that he cannot be prevented from performing his legislative duties because his constituents would be disenfranchised. He perorates that a member of Congress may be suspended or removed from office only by two thirds vote of the House of Representatives.chanrob1es virtua1 1aw 1ibrary
Citing People v. Jalosjos, our Decision (pp. 38-40) has already debunked the disenfranchisement argument. Furthermore, our Decision does not in any manner suspend or remove him from office. Neither his arrest or detention arising from the extradition proceeding will constitute his suspension or removal from office. That is clear enough.
While equal protection and reasonable classifications are not directly in issue in this case, we nevertheless stress, paraphrasing Jalosjos, that respondent’s election to the position of congressman, with the concomitant duty to discharge legislative functions, does not constitute a substantial differentiation which warrants placing him in a classification or category apart from all other persons confined and deprived of their liberty pending resolution of their extradition cases. We reiterate that lawful arrest and temporary confinement of a potential extraditee are germane to the purposes of the law and apply to all those belonging to the same class.
As we have stated, the procedure adopted by the Extradition Court of first notifying and hearing a prospective extraditee before the actual issuance of the warrant for his arrest, is tantamount to giving notice to flee and avoid extradition. Whether a candidate for extradition does in fact go into hiding or not is beside the point. In the final analysis, the method adopted by the lower court was completely at loggerheads with the purpose, object and rationale of the law, and overlooked the evils to be remedied.
As already suggested in our Decision (p. 32), private respondent can avoid arrest and detention which are the consequences of the extradition proceeding simply by applying for bail before the courts trying the criminal cases against him in the USA. He himself has repeatedly told us that the indictments against him in the United States are bailable. Furthermore, he is capable, financially and otherwise, of producing the necessary bail in the US. Why then has he not done so?
Otherwise stated, Respondent Jimenez has the actual power to lift his arrest and detention arising from his extradition by simply and voluntarily going to and filing bail in the USA.
AT BOTTOM, private respondent’s Motion for Reconsideration presents no new or substantial arguments which have not been presented in his prior pleadings and which have not been taken up in our Decision. His present allegations and asseverations are mere rehashes of arguments previously presented to us or are mere restatements of the Separate and Dissenting Opinions which were already adequately discussed in our Decision. In short, private respondent has not given any compelling reason to warrant a reversal or modification of our earlier rulings.
WHEREFORE, the Motion for Reconsideration is hereby DENIED with finality.chanrob1es virtua1 1aw 1ibrary
SO ORDERED.
Davide, Jr., C.J., Mendoza, Panganiban, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Bellosillo and Puno, JJ., the latter joined by Quisumbing, J., reiterate their Separate Opinions.
Vitug and Ynares-Santiago, JJ., both joined by Sandoval-Gutierrez, J., filed their Dissenting Opinions.
Separate Opinions
VITUG, J.:
I vote to grant the motion for reconsideration and maintain my dissent.
Extradition is an exceptional
measure running against the
tradition of asylum
International Extradition is a process under which a sovereign state surrenders to another sovereign state a person accused in a case or a fugitive offender in the latter state. 1 The practice has its origins as early as the ancient Egyptian, Chinese, Chaldean and Assyro-Babylonian civilizations. 2 The surrender of a person who has been granted the privilege of presence or refuge in the requested state is deemed to be an exceptional measure running against the tradition of asylum and hospitality of the requesting state, and it has given rise to the speculation that the term "extradition" evolved from what used to be then known as "extra-tradition." 3 The widely accepted explanation for the term still appears to be the Latin original extradere on pacts and treaties. The first recorded extradition treaty in the world dates circa 1280 BC, where Rameses II, Pharaoh of Egypt, and King Hattusili III of the Hittites signed a peace treaty expressly providing for the return of persons sought by each sovereign taking refuge in the territory of the other. Since then, however, only the practice of Greece and Rome on extradition arrangements evidently found their way into European texts of international law. 4 The participants of the process remained the same over time — the two states and the individual sought to be extradited. But while, historically, extradition was for the purpose of obtaining the surrender of political offenders, the trend, starting in the 19th century, has been to refuse the extradition of a person sought for political crimes. This shift can be explained partly to the emergence of humanitarian international law which has given impetus to a new legal status of one of the participants, i.e., the individual, thus placing some limitations on the power of the respective sovereigns that did not historically exist. 5
Extradition, nevertheless, does not
find basis in Customary
International Law
International customary law is, as its name suggests, created by custom. It is one of the two (the other being treaties) primary law-creating processes of international law. Its evolution, according to Schwarzenberger, 6 can be traced to the early development of a global society when international law consisted primarily of express agreements, which the parties freely accepted as legally binding between or among themselves. Little was taken for granted, and everything that was considered if only remotely relevant had been incorporated into the text of these treaties. Some of the rules were found to be so convenient and generally acceptable that their inclusion in the succeeding agreements gradually became non-essential. Time hardened them into international customary law. International customary law has two constitutive elements: (1) a general practice of sovereign states and (2) the acceptance by the states of this general practice as law. 7 In the Lotus (1927) and Asylum (1950) cases, the World Court ruled that to prove the existence of a rule in international customary law, it is necessary to establish not only that States act a certain way but that they do so because they recognize a legal obligation to this effect, i.e., with or without a treaty. 8
Despite its ancient roots, extradition, as it is presently exercised by states, adopts the view represented by Puffendorf who argues that the duty to extradite is only an imperfect obligation which requires an explicit agreement in order to become fully binding under international law and secure reciprocal rights and duties of the contracting states. 9 The exception would be with respect to international crimes, such as terrorism and genocide, in which extradition is seen as being a definite legal duty. As D.W. Grieg so bluntly puts it, there exists no duty to extradite under customary international law. 10 Prevailing practice among states indeed supports the conclusion that the duty to extradite can be demanded only by virtue of a treaty, whether bilateral or multilateral; 11 conversely, in its absence, there is no legal right to demand and no corresponding obligation to extradite. Once, of course, an extradition treaty is concluded, respect for and compliance with the treaty obligation is, under the international principle of pacta sunt servanda, expected from the states that enter into the agreement.chanrob1es virtua1 1aw 1ibrary
Neither can extradition be
considered a generally accepted
principle of international law
Article 38 (1) (c) of the Statute of the International Court of Justice refers to the "general principles of law" recognized by civilized nations as being a source of law which comes after customary law, international conventions and treaties, all of which are based on the consent of nations. 12 Article 38 (1) (c) is identified as being a "secondary source" of international law and, therefore, not ranked at par with treaties and customary international law. 13 The phrase is innately vague; and its exact meaning still eludes any general consensus. The widely preferred opinion, however, appears to be that of Oppenheim which views "general principles of law" as being inclusive of principles of private or municipal law when these are applicable to international relations. 14 Where, in certain cases, there is no applicable treaty nor a generality of state practice giving rise to customary law, the international court is expected to rely upon certain legal notions of justice and equity in order to deduce a new rule for application to a novel situation. 15 This reliance or "borrowing" by the international tribunal from general principles of municipal jurisprudence is explained in many ways by the fact that municipal or private law has a higher level of development compared to international law. Brownlie submits that the term "generally-accepted principles of international law" could also refer to rules of customary law, to general principles of law, or to logical propositions resulting from judicial reasoning on the basis of existing international law and municipal law analogies. 16
In order to qualify as a product of the subsidiary law-creating process, a principle of law must fulfill three requirements: (1) it must be a general principle of law as distinct from a legal rule of more limited functional scope, (2) it must be recognized by civilized nations, and (3) it must be shared by a fair number of states in the community of nations. 17 Examples of these principles, most of which are drawn from Roman law, encompasses rules on prescription, estoppel, res judicata, 18 consent and pacta sunt servanda. It can also include generally accepted principles enshrined under the Universal Declaration of Human Rights, such as the basic human right to life and liberty without distinction as to race, color, sex, race language or religion, political or other opinion, nationality, social origin, property, birth or other status. 19 At the moment, extradition, at most a process resorted to by states under the policy of cooperation and comity with each other, does not qualify as a generally accepted principle of international law nor as being thereby incorporated and deemed part of the law of the land under Section 11, Article II, of the 1987 Philippine Constitution. 20
Clarifying the term "generally-accepted principles of international law" during the deliberations of the 1987 Constitutional Commission, Commissioner Adolfo S. Azcuna points out that" (w)hen we talk of generally-accepted principles of international law as part of the law of the land, we mean that it is part of the statutory part of laws, not of the Constitution. 21
The remark is shared by Professor Merlin M. Magallona who expresses that the phrase "as part of the law of the land" in the incorporation clause refers to the levels of legal rules below the Constitution such as legislative acts and judicial decisions. Thus, he contends, it is incorrect to so interpret this phrase as including the Constitution itself because it would mean that the "generally-accepted principles of international law" falls in parity with the Constitution. 22
A treaty being the primary source
of the obligation to extradite has
given occasion to a lack of
cohesive and uniform standards
on extradition
Not finding basis in customary law and failing to qualify as a generally-accepted principles of international law, the present state of international law on the return of fugitives for trial is hypothesized by Brownlie: "With the exception of alleged crimes under international law, surrender of an alleged criminal cannot be demanded of right in the absence of treaty." 23 The result has been a failure of consistency in extradition practice among states. Indeed, the reality is that there is to date no uniform standard applicable to all states. D.W. Gregg 24 attributes this lack of "universal" and cohesive standards in the extradition process to the adoption of a variety of procedures which can be as diverse as the contracting states would want them to be. In formulating their extradition treaties, contracting states insert particular provisions and stipulations to address specific particularities in their relationships. Thus, extradition under American law is different from that under English law; to illustrate, the English Extradition Act of 1870 requires that the offense, for which a fugitive is to be extradited, be also considered a crime under English law. No such requirement, upon the other hand, exists under the US Extradition Act, which limits "extraditable crimes" to those enumerated under the treaty, regardless of whether the same are considered crimes under its laws. While both England and the United States are amenable to extraditing their own nationals, France and Belgium absolutely refuse to do so. This refusal to surrender one’s own nationals is likewise adopted by most states in Continental Europe which, under their own municipal laws, are obliged to unconditionally reject any request for the surrender of their own nationals, preferring to try them under their own laws even though the offense is committed abroad. While Common Law countries require a prima facie showing of guilt before they surrender a fugitive, almost all other legal systems require only that the offense be committed in the jurisdiction of the demanding state. 25 In the United States, extradition is demanded with an opportunity for a judicial hearing, while in other countries, extradition is exclusively an administrative function. 26 It may also happen that a single state may have as many extradition processes as the number of extradition treaties it has with other countries. Thus, while the general extradition process with England is governed by the Extradition Act of 1870, any extradition it may undertake with member states of the British Commonwealth is governed by the Fugitive Act of 1967. 27 Fenwick, another recognized authority in international law, concludes — "Since extradition is effected as the result of the provisions of treaties entered into by the nations two by two, it is impossible to formulate any general rule of law upon the subject." 28
The elevated status of a treaty
over that of an ordinary statute is
taking ground
The International Tribunal, has consistently held that, in consonance with the Vienna Convention, a state cannot plead provisions of its own laws or deficiencies in that law in an answer to a claim against it for an alleged breach of its obligations under international law. 29 From the standpoint of International Law and of the International Court, municipal laws are merely expressions of the will and constitute the activities of the states within its boundaries in the same manner as do ordinary legal decisions or administrative measures. 30 But, viewed domestically, reactions have been varied. Differing internal laws among the members of the international community has resulted in the divergence of responses when treaty law clashes with ordinary municipal law.chanrob1es virtua1 1aw 1ibrary
In the United Kingdom, despite pronouncements that the law of nations is "adopted in its full extent by common law and is held to be part of the law of the land," cases decided since 1876 point to the displacement of the doctrine of incorporation by that of transformation, viz.: customary law is part of the law of England only insofar as the rules have been clearly adopted and made part of England by legislation, judicial decision, or established usage. 31 In the United States there has not been much hesitation in recognizing the priority of legislative enactment when passed not only in contravention of established custom but even of the provisions of a specific treaty. 32 Meeting objection to the validity of a tax on immigrants as a violation of the "numerous treaties of the US government with friendly nations," the United States Supreme Court, in the Head Money Cases (112 US 580 [1884]), observed: A treaty, then, is a law of the land as an act of Congress whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined, and when such rights are of a nature to be enforced in a court of justice, courts resort to treaties for a rule of decision of the case as it would to a statute. Nevertheless, added the Court, "so far as a treaty made by the US with any foreign nation can become subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification or repeal." In France, a treaty has supremacy over an inconsistent prior statute as long as the other state party to the agreement accords a similar superiority in its domestic forum. French precedent also exists for treaty supremacy over a subsequent inconsistent statute. 33 The European Court once ruled that the European Economic Community Treaty has precedence over national law, even if the national law were later in time. 34
This ambivalent attitude towards the relationship between international and municipal law exemplifies the still on-going debate between two schools of thought — "monism" and "dualism." Monists believe that international law and domestic law are part of a single legal order; international law is automatically incorporated into each nation’s legal system and that international law is supreme over domestic law. 35 Monism requires that domestic courts "give effect to international law, notwithstanding inconsistent domestic law, even constitutional law of a constitutional character." 36 Dualists, however, contend that international law and domestic law are distinct, each nation ascertaining for itself and to what extent international law is incorporated into its legal system, and that the status of international law in the domestic system is determined by domestic law. 37 Under this view, "when municipal law provides that international law applies in whole or in part within our jurisdiction, it is but an exercise of the authority of municipal law, an adoption or transformation of the rules of international law. 38
In the Philippines, while specific rules on how to resolve conflicts between a treaty law and an act of Congress, whether made prior or subsequent to its execution, have yet to be succinctly defined, the established pattern, however, would show a leaning towards the dualist model. The Constitution exemplified by its incorporation clause (Article II, Section 2), as well as statutes such as those found in some provisions of the Civil Code and of the Revised Penal Code, 39 would exhibit a remarkable textual commitment towards "internalizing" international law. The Supreme Court itself has recognized that "the principle of international law" are deemed part of the law of the land as a condition and as a consequence of our admission in the society of nations. 40
The principle being that treaties create rights and duties only for those who are parties thereto — pacta tertiis nec nocre nec prodesse possunt — it is considered necessary to transform a treaty into a national law in order to make it binding upon affected state organs, like the courts, and private individuals who could, otherwise, be seen as non-parties. 41 The US-RP Extradition Treaty in particular, undoubtedly affects not only state organs but also private individuals as well. It is said that, in treaties of this nature, it should behoove the state to undertake or adopt the necessary steps to make the treaty binding upon said subjects either by incorporation or transformation. 42 Article 2, Section 2, of the 1987 Philippine Constitution provides for an adherence to general principles of international law as part of the law of the land. One of these principles is the basic rule of pacta sunt servanda or the performance in good faith of a state’s treaty obligations. Pacta sunt servanda is the foundation of all conventional international law, for without it, the superstructure of treaties, both bilateral and multilateral, which comprise a great part of international law, could well be inconsequential. Existing legislation contrary to the provisions of the treaty becomes invalid, but legislation is necessary to put the treaty into effect. 43 The constitutional requirement that the treaty be concurred in by no less than two-thirds of all members of the Senate (Article 21, Article VII) is, for legal intent and purposes, an equivalent to the required transformation of treaty law into municipal law.
In preserving harmony between treaty law and municipal law, it is submitted — 1) That treaty law has the effect of amending, or even repealing an inconsistent municipal statute, a later enactment being controlling, 2) but that an inconsistent municipal statute subsequently passed cannot modify treaty law, without the concurrence of the other state party thereto, following the generally accepted principle of pacta sunt servanda. As so observed by Fenwick: "Legislation passed, or administrative action taken subsequent to the adoption of the treaty and in violation of its provisions is invalid, but this should be declared so by the appropriate agency of national government. In like manner, in doubtful cases where the national legislation or administrative ruling is open to different interpretations, the courts of the state will give the benefit of the doubt to the provisions of the treaty.cralaw : red
A treaty, nevertheless, cannot
override the Constitution; in case
of conflict, the Constitution must
prevail
When a controversy calls for a determination of the validity of a treaty in the light of the Constitution, there is no question but that the Constitution is given primary consideration. 44 The deference to the interpretation of the national law by competent organs of a state, was exhibited by the Permanent Court of International Justice in the case of Serbian Loans 45 where it held that the construction given by the Highest Court of France on French law should be followed. When a state, through its government, concludes a treaty with another state, the government of the latter has no reason and is not entitled to question the constitutionality of the act of the former. 46 But this rule does not prevent the government of a state, after having concluded a treaty with another state, from declaring the treaty null and void because it is made in violation of its own constitution. 47
In the United States, treaties are regarded as part of the law of the land but this general rule is qualified by the stipulation that a treaty must not be violative of the Constitution. 48 The United States government, in carrying out its treaty obligations, must conform its conduct to the requirements of the Constitution which override the provisions of a treaty that may be contrary to any specific constitutional right. 49 In Reyes v. Bagatsing 50 this Court has had the occasion to resolve the see-sawing interests of preserving fundamental freedoms such as free speech and assembly, as espoused by the members of the Anti-Bases Coalition seeking permit to hold a rally in front of the American Embassy and the corresponding international obligation of the state to protect the integrity and safety of diplomatic mission and premises under the Vienna Convention. While holding that the prohibition against holding rallies within a 500 meter radius from any foreign mission is valid, the ponencia sees a possible scenario — that in case a treaty or a general principle of international law is found to be in irreconcilable conflict with Constitutional mandates, the Court would uphold the latter every time, even to the possible detriment of its obligations under international law. This preeminence of the Constitution over any treaty is not hard to explain. The Constitution is the act of the people from whom sovereignty emanates. It reflects the popular will. A treaty, on the other end, is merely negotiated by the treaty-making authority. Surely a few good men, themselves mere delegates of the sovereign people, cannot be permitted to thwart the intent of the Constitution. An agent could never go beyond the mandate of the agency under whose authority he acts.
The 1987 Philippine Constitution
has its own standards for the
grant of bail
No country is under any legal obligation to adopt, or blindly be in conformity with, procedures from other jurisdictions. The proposed solution of developing a "special circumstances standard" in determining whether bail should be granted or not, following what could be considered to be mere pro hac vice pronouncements of some foreign courts, might not be apropos. Indeed, setting up the so-called "special circumstances standard" would be to ignore our own constitutional mandate on bail.
Section 13, Article III, of the 1987 Constitution clearly sets the parameters for the judicial exercise of the grant of bail —
"All 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. Excessive bail shall not be required."cralaw virtua1aw library
Starting with the declaration that the right to bail is available to all persons, the Constitution proceeds to define its exceptions and qualifications — 1) when a criminal offense is a capital one and the evidence of guilt is strong, and 2) when granted the bail shall not be excessive. The circumstance of "high risk of flight" upon which the main decision anchors its refusal to grant bail is conspicuously absent from the recital. The Eighth Amendment of the US Federal Constitution, unlike the Philippine Constitution does not categorically provide for bail as a matter of right. Thus, wrestling with the compatibility of the grant of bail in extradition proceedings with basic constitutional guarantees, which US judges have been faced with, should not be our dilemma.chanrob1es virtua1 1aw 1ibrary
Extradition proceedings are part of
the criminal process
Verily, an extradition proceeding before the extradition court forms part of the criminal process. It is predicated on criminal indictment of an extraditee. Like any criminal proceeding, it ultimately ends in either conviction or acquittal for the potential extraditee. Except for the reality that it involves two sovereign states, at least, extradition proceedings before the extradition court can be likened to the preliminary investigation conducted before an investigating fiscal. Like the investigating fiscal, the judge acting in an extradition proceeding does not rule on the issue of guilt or innocence of the potential extraditee, his main concern being the determination of whether a prima facie case exists against the potential extraditee. 51 Stated otherwise, both proceedings are an inquiry into whether a person should stand trial. 52 The right to a preliminary investigation is a component part of due process in the criminal justice system. The initial findings of the investigating fiscal, which may result in a dismissal of the case, could spare the respondent from hasty malicious prosecution, as well as the resultant prolonged anxiety, aggravation and humiliation, that a protracted trial brings. In the same vein, the extradition process can result in an extended restraint of liberty following arrest that can even be more severe than the accompanying detention within a single state. 53 Extradition involves, at minimum, administrative processings in both the asylum state and the demanding state and a forced transportation in between. 54 Thus, the rules governing the extradition process should not be viewed as existing in a vacuum, totally divergent and isolated from the entire criminal process of which it, in fact, forms part. Indubitably, bail is available in this country even in the preliminary investigation stage. The eligibility for bail exists once the person is placed under legal custody regardless of whether a complaint or information has been filed or yet to be filed in court against him. 55
In sum, I yield to the following submissions:chanrob1es virtual 1aw library
a) The obligation to extradite does not find basis in customary international law, nor is it a generally accepted principle of international law, the commitment to extradite being dependent, by and large, on an extradition treaty between two sovereign states.
b) There is an absence of a "universal" or "uniform" extradition practice applicable to all states. This lack of a "standard" extradition procedure should mean that the Philippines is not obligated to follow extradition practices from other jurisdictions, particularly when its own Constitution itself has provided for such standards.
c) A treaty, entered into by the delegated authority although occupying an elevated status in the hierarchy of laws predicated on the principle of pacta servanda, cannot override the Constitution, the latter being the ultimate expression of the will of the People from whom all sovereignty emanates. In case conflict, the of Constitution must prevail.
WHEREFORE, I vote to grant the motion for reconsideration.
YNARES-SANTIAGO, J., dissenting:chanrob1es virtual 1aw library
I maintain my stand regarding the issues raised in the main decision of this case, as laid out in my original dissent. However, the ponente raised several points which compel further comment and discussion on my part.
If the majority’s overriding concern is upholding "the government’s interest in fulfilling its Extradition Treaty obligations and in cooperating with the world community in the suppression of crime," 1 then I submit that this policy is adequately served by the denial to a potential extraditee of any notice or hearing during the evaluation stage of the extradition process. 2 This procedure is peculiar to the extradition process and must be implemented with goals of extradition in mind. However, once the extradition petition is filed with the extradition court, the threat of deprivation of liberty becomes imminent, and it is submitted that the Constitutional rights of the accused — including the right to bail — begin to attach similarly to the extraditee.chanrob1es virtua1 1aw 1ibrary
The draft resolution has reasserted its position that admission to bail in extradition cases is reserved to certain exceptions; it is not the general rule. 3 It has effectively reiterated its formalistic stand that the constitutional provision on bail will not apply to a case of extradition, where the presumption of innocence is not at issue. 4 It is interesting to note that, in making such a stand, the ponente cited former Chief Justice Enrique Fernando. The eminent jurist spoke thus:chanrob1es virtual 1aw library
[The right to bail] flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. 5 (Emphasis supplied)
True, the determination of guilt or innocence is not in issue in extradition proceedings. However, the loss of precious freedom of the accused most certainly is. Mr. Justice Vitug, in his separate opinion, made the following apt observations:chanrob1es virtual 1aw library
The draft ponencia would assume that the Constitution confines the grant of provisional liberty to criminal cases, and that it has no application to extradition proceedings. This assumption would have reason for being if it was solely in criminal cases that a person could face an imminent threat of deprivation of his right to life or liberty, for indeed, it is this threat, rather than case nomenclature, that must be the focus and it would be superficial to think otherwise. While defying a neat definition, extradition has all the earmarks of a criminal process — an extraditee would suffer deprivations, be denied his freedom and restricted in his movements, not much unlike a criminal indictee. Extradition proceedings involve an extended restraint of liberty following arrest, peculiar to an accused in a criminal case, which can even be more severe than an accompanying detention in a single state, for at a minimum, it can mean protracted proceedings in both the asylum state and the demanding state and a forced transportation in between. In Herras Teehankee v. Rovira, the Court observed that bail is constitutionally available to all persons, even those against whom no formal charges are filed. 6
It should be borne in mind that the private respondent has most definitely been indicted, 7 and the threat to the loss of his freedom is very real. If the purpose of bail is to relieve an accused from the rigors of imprisonment until his conviction and yet secure his appearance at trial, 8 then by analogy, an extraditee, who may or may not yet have been charged, and who is threatened with temporary imprisonment in both the requested and requesting states, should also benefit from the right to bail. Due to the striking similarity in their circumstances, there is therefore no sufficient basis for distinguishing between an accused person and a potential extraditee in terms of their entitlement to bail. This occasion calls for the adherence to the well-entrenched principle ubi lex non distinguit nec nos distinguere debemos. 9 The Constitutional grant of bail should, as a matter of right, be made available to the accused and the extraditee alike.
The main decision seems to have brushed away the facts entirely, content in making distinctions where they are not warranted. The majority sought to draw a distinction by characterizing its stand as one that is consistent with and in implementation of the Philippines’ obligations under the RP-U.S. Extradition treaty. It further reads thus:chanrob1es virtual 1aw library
In the absence of any provision — in the Constitution, the law or the treaty — expressly guaranteeing the right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors. 10 (Emphasis supplied)
In answer to this sweeping policy statement, I submit that it is our Constitution itself that governs the right to bail in extradition eases. As the majority has conceded, the RP-U.S. Extradition Treaty and P.D. 1069 are silent with regard to the question of bail. In case of omissions such as these, Article 31, paragraph 3 of the Vienna Convention on the Law of Treaties authorizes reference to secondary sources as aids to interpretation. One of these devices is subsequent practice of a state party in interpreting said treaty, 11 and the U.S. has resorted to this device on several occasions. 12 The grant of bail by the U.S. District Court of Las Vegas, Nevada to Mr. Charlie "Atong" Ang, a fugitive whose extradition from the United States is sought by the Philippine government, 13 can therefore aid in the interpretation of the RP-U.S. Extradition Treaty, being an example of subsequent state practice. In our jurisdiction, no case has been decided which fills this gap in the RP-U.S. Extradition Treaty. This area should then be considered outside the coverage of the treaty and, therefore, covered by municipal law. In our jurisdiction, the supreme law governing the question of bail is the Constitution, and its hallowed provisions dictate the general rule that bail is granted as a matter of right, with its denial reserved to very few and very specific instances. Being the subject of an extradition request is not one of these exceptions.chanrob1es virtua1 1aw 1ibrary
The draft resolution cites once more my ponencia in People v. Jalosjos 14 as the basis for countering private respondent’s concern that the constituents of his district will be effectively disenfranchised by his forced absence from office. I must once again reiterate that said case is not on all fours with the case before us. Simply put, a convicted rapist awaiting final judgment and a man accused of several non-capital crimes, whose extradition is sought by the state that has made the accusations, involve two very different sets of circumstances, meriting different treatments. Furthermore, the question of disenfranchisement should be considered in light of the U.S. Federal Rules of Criminal Procedure, which grant a judicial officer wide latitude in imposing conditions for the grant of bail, including limitations on the right to travel. 15 A member of the House of Representatives of the Republic of the Philippines who is indicted in the U.S. and admitted to bail therein may not be returning to his district and his constituents any time soon.
It is unfortunate that the draft resolution proposes to summarily deny petitioner’s Motion for Reconsideration. This case could have provided this Court with the opportunity to pass upon a novel issue and, in the process, uphold the supremacy of Constitutional rights. Instead, the right to bail has been reduced to a hollow promise and has lost its efficacy as a fundamental right of the individual.chanrob1es virtua1 1aw 1ibrary
I vote to GRANT the motion for reconsideration.
Extradition is an exceptional
measure running against the
tradition of asylum
International Extradition is a process under which a sovereign state surrenders to another sovereign state a person accused in a case or a fugitive offender in the latter state. 1 The practice has its origins as early as the ancient Egyptian, Chinese, Chaldean and Assyro-Babylonian civilizations. 2 The surrender of a person who has been granted the privilege of presence or refuge in the requested state is deemed to be an exceptional measure running against the tradition of asylum and hospitality of the requesting state, and it has given rise to the speculation that the term "extradition" evolved from what used to be then known as "extra-tradition." 3 The widely accepted explanation for the term still appears to be the Latin original extradere on pacts and treaties. The first recorded extradition treaty in the world dates circa 1280 BC, where Rameses II, Pharaoh of Egypt, and King Hattusili III of the Hittites signed a peace treaty expressly providing for the return of persons sought by each sovereign taking refuge in the territory of the other. Since then, however, only the practice of Greece and Rome on extradition arrangements evidently found their way into European texts of international law. 4 The participants of the process remained the same over time — the two states and the individual sought to be extradited. But while, historically, extradition was for the purpose of obtaining the surrender of political offenders, the trend, starting in the 19th century, has been to refuse the extradition of a person sought for political crimes. This shift can be explained partly to the emergence of humanitarian international law which has given impetus to a new legal status of one of the participants, i.e., the individual, thus placing some limitations on the power of the respective sovereigns that did not historically exist. 5
Extradition, nevertheless, does not
find basis in Customary
International Law
International customary law is, as its name suggests, created by custom. It is one of the two (the other being treaties) primary law-creating processes of international law. Its evolution, according to Schwarzenberger, 6 can be traced to the early development of a global society when international law consisted primarily of express agreements, which the parties freely accepted as legally binding between or among themselves. Little was taken for granted, and everything that was considered if only remotely relevant had been incorporated into the text of these treaties. Some of the rules were found to be so convenient and generally acceptable that their inclusion in the succeeding agreements gradually became non-essential. Time hardened them into international customary law. International customary law has two constitutive elements: (1) a general practice of sovereign states and (2) the acceptance by the states of this general practice as law. 7 In the Lotus (1927) and Asylum (1950) cases, the World Court ruled that to prove the existence of a rule in international customary law, it is necessary to establish not only that States act a certain way but that they do so because they recognize a legal obligation to this effect, i.e., with or without a treaty. 8
Despite its ancient roots, extradition, as it is presently exercised by states, adopts the view represented by Puffendorf who argues that the duty to extradite is only an imperfect obligation which requires an explicit agreement in order to become fully binding under international law and secure reciprocal rights and duties of the contracting states. 9 The exception would be with respect to international crimes, such as terrorism and genocide, in which extradition is seen as being a definite legal duty. As D.W. Grieg so bluntly puts it, there exists no duty to extradite under customary international law. 10 Prevailing practice among states indeed supports the conclusion that the duty to extradite can be demanded only by virtue of a treaty, whether bilateral or multilateral; 11 conversely, in its absence, there is no legal right to demand and no corresponding obligation to extradite. Once, of course, an extradition treaty is concluded, respect for and compliance with the treaty obligation is, under the international principle of pacta sunt servanda, expected from the states that enter into the agreement.chanrob1es virtua1 1aw 1ibrary
Neither can extradition be
considered a generally accepted
principle of international law
Article 38 (1) (c) of the Statute of the International Court of Justice refers to the "general principles of law" recognized by civilized nations as being a source of law which comes after customary law, international conventions and treaties, all of which are based on the consent of nations. 12 Article 38 (1) (c) is identified as being a "secondary source" of international law and, therefore, not ranked at par with treaties and customary international law. 13 The phrase is innately vague; and its exact meaning still eludes any general consensus. The widely preferred opinion, however, appears to be that of Oppenheim which views "general principles of law" as being inclusive of principles of private or municipal law when these are applicable to international relations. 14 Where, in certain cases, there is no applicable treaty nor a generality of state practice giving rise to customary law, the international court is expected to rely upon certain legal notions of justice and equity in order to deduce a new rule for application to a novel situation. 15 This reliance or "borrowing" by the international tribunal from general principles of municipal jurisprudence is explained in many ways by the fact that municipal or private law has a higher level of development compared to international law. Brownlie submits that the term "generally-accepted principles of international law" could also refer to rules of customary law, to general principles of law, or to logical propositions resulting from judicial reasoning on the basis of existing international law and municipal law analogies. 16
In order to qualify as a product of the subsidiary law-creating process, a principle of law must fulfill three requirements: (1) it must be a general principle of law as distinct from a legal rule of more limited functional scope, (2) it must be recognized by civilized nations, and (3) it must be shared by a fair number of states in the community of nations. 17 Examples of these principles, most of which are drawn from Roman law, encompasses rules on prescription, estoppel, res judicata, 18 consent and pacta sunt servanda. It can also include generally accepted principles enshrined under the Universal Declaration of Human Rights, such as the basic human right to life and liberty without distinction as to race, color, sex, race language or religion, political or other opinion, nationality, social origin, property, birth or other status. 19 At the moment, extradition, at most a process resorted to by states under the policy of cooperation and comity with each other, does not qualify as a generally accepted principle of international law nor as being thereby incorporated and deemed part of the law of the land under Section 11, Article II, of the 1987 Philippine Constitution. 20
Clarifying the term "generally-accepted principles of international law" during the deliberations of the 1987 Constitutional Commission, Commissioner Adolfo S. Azcuna points out that" (w)hen we talk of generally-accepted principles of international law as part of the law of the land, we mean that it is part of the statutory part of laws, not of the Constitution. 21
The remark is shared by Professor Merlin M. Magallona who expresses that the phrase "as part of the law of the land" in the incorporation clause refers to the levels of legal rules below the Constitution such as legislative acts and judicial decisions. Thus, he contends, it is incorrect to so interpret this phrase as including the Constitution itself because it would mean that the "generally-accepted principles of international law" falls in parity with the Constitution. 22
A treaty being the primary source
of the obligation to extradite has
given occasion to a lack of
cohesive and uniform standards
on extradition
Not finding basis in customary law and failing to qualify as a generally-accepted principles of international law, the present state of international law on the return of fugitives for trial is hypothesized by Brownlie: "With the exception of alleged crimes under international law, surrender of an alleged criminal cannot be demanded of right in the absence of treaty." 23 The result has been a failure of consistency in extradition practice among states. Indeed, the reality is that there is to date no uniform standard applicable to all states. D.W. Gregg 24 attributes this lack of "universal" and cohesive standards in the extradition process to the adoption of a variety of procedures which can be as diverse as the contracting states would want them to be. In formulating their extradition treaties, contracting states insert particular provisions and stipulations to address specific particularities in their relationships. Thus, extradition under American law is different from that under English law; to illustrate, the English Extradition Act of 1870 requires that the offense, for which a fugitive is to be extradited, be also considered a crime under English law. No such requirement, upon the other hand, exists under the US Extradition Act, which limits "extraditable crimes" to those enumerated under the treaty, regardless of whether the same are considered crimes under its laws. While both England and the United States are amenable to extraditing their own nationals, France and Belgium absolutely refuse to do so. This refusal to surrender one’s own nationals is likewise adopted by most states in Continental Europe which, under their own municipal laws, are obliged to unconditionally reject any request for the surrender of their own nationals, preferring to try them under their own laws even though the offense is committed abroad. While Common Law countries require a prima facie showing of guilt before they surrender a fugitive, almost all other legal systems require only that the offense be committed in the jurisdiction of the demanding state. 25 In the United States, extradition is demanded with an opportunity for a judicial hearing, while in other countries, extradition is exclusively an administrative function. 26 It may also happen that a single state may have as many extradition processes as the number of extradition treaties it has with other countries. Thus, while the general extradition process with England is governed by the Extradition Act of 1870, any extradition it may undertake with member states of the British Commonwealth is governed by the Fugitive Act of 1967. 27 Fenwick, another recognized authority in international law, concludes — "Since extradition is effected as the result of the provisions of treaties entered into by the nations two by two, it is impossible to formulate any general rule of law upon the subject." 28
The elevated status of a treaty
over that of an ordinary statute is
taking ground
The International Tribunal, has consistently held that, in consonance with the Vienna Convention, a state cannot plead provisions of its own laws or deficiencies in that law in an answer to a claim against it for an alleged breach of its obligations under international law. 29 From the standpoint of International Law and of the International Court, municipal laws are merely expressions of the will and constitute the activities of the states within its boundaries in the same manner as do ordinary legal decisions or administrative measures. 30 But, viewed domestically, reactions have been varied. Differing internal laws among the members of the international community has resulted in the divergence of responses when treaty law clashes with ordinary municipal law.chanrob1es virtua1 1aw 1ibrary
In the United Kingdom, despite pronouncements that the law of nations is "adopted in its full extent by common law and is held to be part of the law of the land," cases decided since 1876 point to the displacement of the doctrine of incorporation by that of transformation, viz.: customary law is part of the law of England only insofar as the rules have been clearly adopted and made part of England by legislation, judicial decision, or established usage. 31 In the United States there has not been much hesitation in recognizing the priority of legislative enactment when passed not only in contravention of established custom but even of the provisions of a specific treaty. 32 Meeting objection to the validity of a tax on immigrants as a violation of the "numerous treaties of the US government with friendly nations," the United States Supreme Court, in the Head Money Cases (112 US 580 [1884]), observed: A treaty, then, is a law of the land as an act of Congress whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined, and when such rights are of a nature to be enforced in a court of justice, courts resort to treaties for a rule of decision of the case as it would to a statute. Nevertheless, added the Court, "so far as a treaty made by the US with any foreign nation can become subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification or repeal." In France, a treaty has supremacy over an inconsistent prior statute as long as the other state party to the agreement accords a similar superiority in its domestic forum. French precedent also exists for treaty supremacy over a subsequent inconsistent statute. 33 The European Court once ruled that the European Economic Community Treaty has precedence over national law, even if the national law were later in time. 34
This ambivalent attitude towards the relationship between international and municipal law exemplifies the still on-going debate between two schools of thought — "monism" and "dualism." Monists believe that international law and domestic law are part of a single legal order; international law is automatically incorporated into each nation’s legal system and that international law is supreme over domestic law. 35 Monism requires that domestic courts "give effect to international law, notwithstanding inconsistent domestic law, even constitutional law of a constitutional character." 36 Dualists, however, contend that international law and domestic law are distinct, each nation ascertaining for itself and to what extent international law is incorporated into its legal system, and that the status of international law in the domestic system is determined by domestic law. 37 Under this view, "when municipal law provides that international law applies in whole or in part within our jurisdiction, it is but an exercise of the authority of municipal law, an adoption or transformation of the rules of international law. 38
In the Philippines, while specific rules on how to resolve conflicts between a treaty law and an act of Congress, whether made prior or subsequent to its execution, have yet to be succinctly defined, the established pattern, however, would show a leaning towards the dualist model. The Constitution exemplified by its incorporation clause (Article II, Section 2), as well as statutes such as those found in some provisions of the Civil Code and of the Revised Penal Code, 39 would exhibit a remarkable textual commitment towards "internalizing" international law. The Supreme Court itself has recognized that "the principle of international law" are deemed part of the law of the land as a condition and as a consequence of our admission in the society of nations. 40
The principle being that treaties create rights and duties only for those who are parties thereto — pacta tertiis nec nocre nec prodesse possunt — it is considered necessary to transform a treaty into a national law in order to make it binding upon affected state organs, like the courts, and private individuals who could, otherwise, be seen as non-parties. 41 The US-RP Extradition Treaty in particular, undoubtedly affects not only state organs but also private individuals as well. It is said that, in treaties of this nature, it should behoove the state to undertake or adopt the necessary steps to make the treaty binding upon said subjects either by incorporation or transformation. 42 Article 2, Section 2, of the 1987 Philippine Constitution provides for an adherence to general principles of international law as part of the law of the land. One of these principles is the basic rule of pacta sunt servanda or the performance in good faith of a state’s treaty obligations. Pacta sunt servanda is the foundation of all conventional international law, for without it, the superstructure of treaties, both bilateral and multilateral, which comprise a great part of international law, could well be inconsequential. Existing legislation contrary to the provisions of the treaty becomes invalid, but legislation is necessary to put the treaty into effect. 43 The constitutional requirement that the treaty be concurred in by no less than two-thirds of all members of the Senate (Article 21, Article VII) is, for legal intent and purposes, an equivalent to the required transformation of treaty law into municipal law.
In preserving harmony between treaty law and municipal law, it is submitted — 1) That treaty law has the effect of amending, or even repealing an inconsistent municipal statute, a later enactment being controlling, 2) but that an inconsistent municipal statute subsequently passed cannot modify treaty law, without the concurrence of the other state party thereto, following the generally accepted principle of pacta sunt servanda. As so observed by Fenwick: "Legislation passed, or administrative action taken subsequent to the adoption of the treaty and in violation of its provisions is invalid, but this should be declared so by the appropriate agency of national government. In like manner, in doubtful cases where the national legislation or administrative ruling is open to different interpretations, the courts of the state will give the benefit of the doubt to the provisions of the treaty.cralaw : red
A treaty, nevertheless, cannot
override the Constitution; in case
of conflict, the Constitution must
prevail
When a controversy calls for a determination of the validity of a treaty in the light of the Constitution, there is no question but that the Constitution is given primary consideration. 44 The deference to the interpretation of the national law by competent organs of a state, was exhibited by the Permanent Court of International Justice in the case of Serbian Loans 45 where it held that the construction given by the Highest Court of France on French law should be followed. When a state, through its government, concludes a treaty with another state, the government of the latter has no reason and is not entitled to question the constitutionality of the act of the former. 46 But this rule does not prevent the government of a state, after having concluded a treaty with another state, from declaring the treaty null and void because it is made in violation of its own constitution. 47
In the United States, treaties are regarded as part of the law of the land but this general rule is qualified by the stipulation that a treaty must not be violative of the Constitution. 48 The United States government, in carrying out its treaty obligations, must conform its conduct to the requirements of the Constitution which override the provisions of a treaty that may be contrary to any specific constitutional right. 49 In Reyes v. Bagatsing 50 this Court has had the occasion to resolve the see-sawing interests of preserving fundamental freedoms such as free speech and assembly, as espoused by the members of the Anti-Bases Coalition seeking permit to hold a rally in front of the American Embassy and the corresponding international obligation of the state to protect the integrity and safety of diplomatic mission and premises under the Vienna Convention. While holding that the prohibition against holding rallies within a 500 meter radius from any foreign mission is valid, the ponencia sees a possible scenario — that in case a treaty or a general principle of international law is found to be in irreconcilable conflict with Constitutional mandates, the Court would uphold the latter every time, even to the possible detriment of its obligations under international law. This preeminence of the Constitution over any treaty is not hard to explain. The Constitution is the act of the people from whom sovereignty emanates. It reflects the popular will. A treaty, on the other end, is merely negotiated by the treaty-making authority. Surely a few good men, themselves mere delegates of the sovereign people, cannot be permitted to thwart the intent of the Constitution. An agent could never go beyond the mandate of the agency under whose authority he acts.
The 1987 Philippine Constitution
has its own standards for the
grant of bail
No country is under any legal obligation to adopt, or blindly be in conformity with, procedures from other jurisdictions. The proposed solution of developing a "special circumstances standard" in determining whether bail should be granted or not, following what could be considered to be mere pro hac vice pronouncements of some foreign courts, might not be apropos. Indeed, setting up the so-called "special circumstances standard" would be to ignore our own constitutional mandate on bail.
Section 13, Article III, of the 1987 Constitution clearly sets the parameters for the judicial exercise of the grant of bail —
"All 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. Excessive bail shall not be required."cralaw virtua1aw library
Starting with the declaration that the right to bail is available to all persons, the Constitution proceeds to define its exceptions and qualifications — 1) when a criminal offense is a capital one and the evidence of guilt is strong, and 2) when granted the bail shall not be excessive. The circumstance of "high risk of flight" upon which the main decision anchors its refusal to grant bail is conspicuously absent from the recital. The Eighth Amendment of the US Federal Constitution, unlike the Philippine Constitution does not categorically provide for bail as a matter of right. Thus, wrestling with the compatibility of the grant of bail in extradition proceedings with basic constitutional guarantees, which US judges have been faced with, should not be our dilemma.chanrob1es virtua1 1aw 1ibrary
Extradition proceedings are part of
the criminal process
Verily, an extradition proceeding before the extradition court forms part of the criminal process. It is predicated on criminal indictment of an extraditee. Like any criminal proceeding, it ultimately ends in either conviction or acquittal for the potential extraditee. Except for the reality that it involves two sovereign states, at least, extradition proceedings before the extradition court can be likened to the preliminary investigation conducted before an investigating fiscal. Like the investigating fiscal, the judge acting in an extradition proceeding does not rule on the issue of guilt or innocence of the potential extraditee, his main concern being the determination of whether a prima facie case exists against the potential extraditee. 51 Stated otherwise, both proceedings are an inquiry into whether a person should stand trial. 52 The right to a preliminary investigation is a component part of due process in the criminal justice system. The initial findings of the investigating fiscal, which may result in a dismissal of the case, could spare the respondent from hasty malicious prosecution, as well as the resultant prolonged anxiety, aggravation and humiliation, that a protracted trial brings. In the same vein, the extradition process can result in an extended restraint of liberty following arrest that can even be more severe than the accompanying detention within a single state. 53 Extradition involves, at minimum, administrative processings in both the asylum state and the demanding state and a forced transportation in between. 54 Thus, the rules governing the extradition process should not be viewed as existing in a vacuum, totally divergent and isolated from the entire criminal process of which it, in fact, forms part. Indubitably, bail is available in this country even in the preliminary investigation stage. The eligibility for bail exists once the person is placed under legal custody regardless of whether a complaint or information has been filed or yet to be filed in court against him. 55
In sum, I yield to the following submissions:chanrob1es virtual 1aw library
a) The obligation to extradite does not find basis in customary international law, nor is it a generally accepted principle of international law, the commitment to extradite being dependent, by and large, on an extradition treaty between two sovereign states.
b) There is an absence of a "universal" or "uniform" extradition practice applicable to all states. This lack of a "standard" extradition procedure should mean that the Philippines is not obligated to follow extradition practices from other jurisdictions, particularly when its own Constitution itself has provided for such standards.
c) A treaty, entered into by the delegated authority although occupying an elevated status in the hierarchy of laws predicated on the principle of pacta servanda, cannot override the Constitution, the latter being the ultimate expression of the will of the People from whom all sovereignty emanates. In case conflict, the of Constitution must prevail.
WHEREFORE, I vote to grant the motion for reconsideration.
YNARES-SANTIAGO, J., dissenting:chanrob1es virtual 1aw library
I maintain my stand regarding the issues raised in the main decision of this case, as laid out in my original dissent. However, the ponente raised several points which compel further comment and discussion on my part.
If the majority’s overriding concern is upholding "the government’s interest in fulfilling its Extradition Treaty obligations and in cooperating with the world community in the suppression of crime," 1 then I submit that this policy is adequately served by the denial to a potential extraditee of any notice or hearing during the evaluation stage of the extradition process. 2 This procedure is peculiar to the extradition process and must be implemented with goals of extradition in mind. However, once the extradition petition is filed with the extradition court, the threat of deprivation of liberty becomes imminent, and it is submitted that the Constitutional rights of the accused — including the right to bail — begin to attach similarly to the extraditee.chanrob1es virtua1 1aw 1ibrary
The draft resolution has reasserted its position that admission to bail in extradition cases is reserved to certain exceptions; it is not the general rule. 3 It has effectively reiterated its formalistic stand that the constitutional provision on bail will not apply to a case of extradition, where the presumption of innocence is not at issue. 4 It is interesting to note that, in making such a stand, the ponente cited former Chief Justice Enrique Fernando. The eminent jurist spoke thus:chanrob1es virtual 1aw library
[The right to bail] flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. 5 (Emphasis supplied)
True, the determination of guilt or innocence is not in issue in extradition proceedings. However, the loss of precious freedom of the accused most certainly is. Mr. Justice Vitug, in his separate opinion, made the following apt observations:chanrob1es virtual 1aw library
The draft ponencia would assume that the Constitution confines the grant of provisional liberty to criminal cases, and that it has no application to extradition proceedings. This assumption would have reason for being if it was solely in criminal cases that a person could face an imminent threat of deprivation of his right to life or liberty, for indeed, it is this threat, rather than case nomenclature, that must be the focus and it would be superficial to think otherwise. While defying a neat definition, extradition has all the earmarks of a criminal process — an extraditee would suffer deprivations, be denied his freedom and restricted in his movements, not much unlike a criminal indictee. Extradition proceedings involve an extended restraint of liberty following arrest, peculiar to an accused in a criminal case, which can even be more severe than an accompanying detention in a single state, for at a minimum, it can mean protracted proceedings in both the asylum state and the demanding state and a forced transportation in between. In Herras Teehankee v. Rovira, the Court observed that bail is constitutionally available to all persons, even those against whom no formal charges are filed. 6
It should be borne in mind that the private respondent has most definitely been indicted, 7 and the threat to the loss of his freedom is very real. If the purpose of bail is to relieve an accused from the rigors of imprisonment until his conviction and yet secure his appearance at trial, 8 then by analogy, an extraditee, who may or may not yet have been charged, and who is threatened with temporary imprisonment in both the requested and requesting states, should also benefit from the right to bail. Due to the striking similarity in their circumstances, there is therefore no sufficient basis for distinguishing between an accused person and a potential extraditee in terms of their entitlement to bail. This occasion calls for the adherence to the well-entrenched principle ubi lex non distinguit nec nos distinguere debemos. 9 The Constitutional grant of bail should, as a matter of right, be made available to the accused and the extraditee alike.
The main decision seems to have brushed away the facts entirely, content in making distinctions where they are not warranted. The majority sought to draw a distinction by characterizing its stand as one that is consistent with and in implementation of the Philippines’ obligations under the RP-U.S. Extradition treaty. It further reads thus:chanrob1es virtual 1aw library
In the absence of any provision — in the Constitution, the law or the treaty — expressly guaranteeing the right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors. 10 (Emphasis supplied)
In answer to this sweeping policy statement, I submit that it is our Constitution itself that governs the right to bail in extradition eases. As the majority has conceded, the RP-U.S. Extradition Treaty and P.D. 1069 are silent with regard to the question of bail. In case of omissions such as these, Article 31, paragraph 3 of the Vienna Convention on the Law of Treaties authorizes reference to secondary sources as aids to interpretation. One of these devices is subsequent practice of a state party in interpreting said treaty, 11 and the U.S. has resorted to this device on several occasions. 12 The grant of bail by the U.S. District Court of Las Vegas, Nevada to Mr. Charlie "Atong" Ang, a fugitive whose extradition from the United States is sought by the Philippine government, 13 can therefore aid in the interpretation of the RP-U.S. Extradition Treaty, being an example of subsequent state practice. In our jurisdiction, no case has been decided which fills this gap in the RP-U.S. Extradition Treaty. This area should then be considered outside the coverage of the treaty and, therefore, covered by municipal law. In our jurisdiction, the supreme law governing the question of bail is the Constitution, and its hallowed provisions dictate the general rule that bail is granted as a matter of right, with its denial reserved to very few and very specific instances. Being the subject of an extradition request is not one of these exceptions.chanrob1es virtua1 1aw 1ibrary
The draft resolution cites once more my ponencia in People v. Jalosjos 14 as the basis for countering private respondent’s concern that the constituents of his district will be effectively disenfranchised by his forced absence from office. I must once again reiterate that said case is not on all fours with the case before us. Simply put, a convicted rapist awaiting final judgment and a man accused of several non-capital crimes, whose extradition is sought by the state that has made the accusations, involve two very different sets of circumstances, meriting different treatments. Furthermore, the question of disenfranchisement should be considered in light of the U.S. Federal Rules of Criminal Procedure, which grant a judicial officer wide latitude in imposing conditions for the grant of bail, including limitations on the right to travel. 15 A member of the House of Representatives of the Republic of the Philippines who is indicted in the U.S. and admitted to bail therein may not be returning to his district and his constituents any time soon.
It is unfortunate that the draft resolution proposes to summarily deny petitioner’s Motion for Reconsideration. This case could have provided this Court with the opportunity to pass upon a novel issue and, in the process, uphold the supremacy of Constitutional rights. Instead, the right to bail has been reduced to a hollow promise and has lost its efficacy as a fundamental right of the individual.chanrob1es virtua1 1aw 1ibrary
I vote to GRANT the motion for reconsideration.
Endnotes:
Vitug, J., separate opinion:chanrob1es virtual 1aw library
1. Jeffrey A. Hall, "A Recommended Approach to Bail in International Extradition Cases," Michigan Law Review, December 1987.
2. M. Cherif Bassiouni, "International Extradition," Oceana Publications Inc., 2nd Edition, (1987), Vol. 1, p. 5.
3. Ibid.
4. Ibid., p. 6. The history of extradition can be divided into four 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 the period, (3) from 1833 to 1948 — a period of collective concern in suppressing common criminality, (4) post 1948 developments which ushered in a greater awareness of the need to have international due process of law regulate international relations. (Ibid., p. 7)
5. Ibid., 8-9.
6. Georg Schwarzenberger, "A Manual of International Law," 5th Edition, Stevens and Sons Limited (1967), p. 28.
7. Ibid. p. 32.
8. Ibid.
9. Bassiounni, supra, p.10
10. D.W. Greig, M.A., LL.B., "International Law," London, (1970), p. 322.
11. Ibid.
12. Ian Brownlie, "Principles of Public International Law," Claredon Press, Oxford, 5th Edition, (1998), p. 15.
13 RESTATEMENT (THIRD), OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES S102 (2) (1987)
14 J.L. Brierly, "The Law of Nations", Oxford University Press, (1963), 6th Ed. pp. 62-63.
15. D.W. Greig, supra, p. 26.
16. Brownlie, supra, pp. 18-19.
17. Schwarzenberger, supra, p. 34.
18. Brierly, supra.
19. Mejoff v. Director of Prisons, 90 Phil. 70 (1951).
20. Section II, Article II of the 1987 Constitution provides: "The Philippines denounces 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 all nations.
21. Ibid.
22. Merlin M. Magallona, A Primer in International Law in Relation to Philippine Law (1997), p. 47.
23. Browlie, Principles of Public International Law, 4th Edition, 315-316, cited in Fr. Ranhilio C. Aquino, "International Law and the International Legal Processes, The Law on Extradition."cralaw virtua1aw library
24. D.W. Greig, supra, pp. 323-348.
25. Charles Rhyne, International Law," CLB Publishers, (1971), 119.
26. Ibid.
27 D.W. Grieg, supra, 323-247
28 Charles G. Fenwick, "International Law," Appleton-Century-Crofts, Inc., New York, 3rd Ed, (1948), p. 331.
29. Brownlie, supra, p. 34.
30. See Certain German Interests in Polish Upper Silesia, PCIJ, Ser. A, no. 7, p. 17.
31. Brownlie, supra, 43.
32. D.P. O’Connel, supra, p. 92
33. See In re Rekhov, 1981, cited in Maris, ibid.
34. Stein, 1981; 11, 13, quoting the Costa, 1964, and Simmenthal, 1978 cases, cited in Maris, Ibid.
35. Rosalyn Higgins, Problems and Process: International Law and How We Use It. (1994), p. 205.
36. Louis Henkin, International Law: Politics and Values (1995) p. 280.
37. Higgins, supra, p. 19.
38. Brownlie, supra, p. 33
39. Article 14 of the Civil Code provides:" [p]enal laws and those of public security and safety shall be obligatory upon all who live and sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations. The Revised Penal Code provides: "Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone but also outside of its jurisdiction . . . (. . .)
40. US v. Guinto 182 SCRA 644.
41. Kelsen, supra, pp. 351-352.
42. Ibid.
43. Fenwick, supra, pp. 95-96.
44. Hans Kelsen, "Basic Principles of International Law," Rinehart & Company, Inc., New York (1956 Ed.) p. 324.
45. From the Publications of the Permanent Court of Justice, 1929, Series A, Nos. 20-21, p. 41. In this case, the Permanent Court of International Justice, after having decided that French law was to be applied in the case, stated: "The Court, having in these circumstances to decide as to the meaning and scope of a municipal law, makes the following observations: For the Court itself to undertake its own construction of municipal law, leaving on one side existing judicial decisions, with the ensuing danger of contradicting the construction which has been placed in such law by the highest national tribunal and which, in its results, seems to the Court reasonable, would not be in conformity with the task for which the Court has been established and would not be compatible with the principles governing the selection of its Members. It would be a most delicate matter to do so, especially in cases concerning public policy — a conception of the definition of which particular country is largely dependent on the opinion prevailing at any given time in such country itself — and in cases where to relevant provisions directly relate to the question at issue. It is French legislation, as applied in France, which really constitutes French law." (Ibid., f. 26)
46. Ibid.
47. Ibid.
48. Gary L. Maris, "International Law, An Introduction," University Press of America, (1984), p. 224, citing the US federal cases of Missouri v. Holland (1920), Reid v. Covert (1957).
49. Bassiounni, supra, p. 73.
50. 125 SCRA 553 (1983).
51. Preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial. (Section 1, Rule 112, Rules of Court).
52. Bassiuonni, supra, p. 562.
53. Jeffrey Hall, supra.
54. Ibid.
55. Section 14, Rule 114 of the Rules of Criminal Procedure provides —
Sec. 14. Bail, where filed. . . . (c) Any person in custody who is not charged in court may apply for bail with any court, in the province, city, or municipality where he is held.
Ynares-Santiago, J., dissenting:chanrob1es virtual 1aw library
1. Government of the United States of America, Et. Al. v. Hon. Guillermo G. Purganan, Et Al., supra.
2. Resolution, Secretary of Justice v. Lantion, G.R. No. 139465, October 17, 2000.
3. Resolution, Government of the United States of America, Et. Al. v. Hon. Guillermo G. Purganan, Et Al., G.R. No. 148571, December 17, 2002.
4. Government of the United States of America, Et. Al. v. Hon. Guillermo G. Purganan, Et Al., G.R. No. 148571, September 24, 2002.
5. De la Camara v. Enage, G.R. No. 32951-2, September 17, 1971, 41 SCRA 1, 6.
6. Separate Opinion of Vitug, J., Government of the United States of America, Et. Al. v. Hon. Guillermo G. Purganan, Et Al., G.R. No. 148571, September 24, 2002, citing Hall, A Recommended Approach to Bail in International Extradition Cases, MICHIGAN L. REV, December 1987.
7. Indictment No. 99-00281 CR-SEITZ.
8. Paderanga v. Court of Appeals, G.R. No. 115407, August 28, 1995, 247 SCRA 741, 749, citing Almeda v. Villaluz, G.R. No. 31665, August 6, 1965, 66 SCRA 38.
9. Where the law does not distinguish, we should not distinguish.
10. Government of the United States of America, Et. Al. v. Hon. Guillermo G. Purganan, Et Al., supra.
11. VIENNA CONVENTION ON THE LAW OF TREATIES, art 31 (3).
12. Husserl v. Swiss Air Transport, Co., Ltd., 351 F. Supp. 702 (S.D.N.Y. 1972), Day v. Trans World Airlines, Inc., 528 F. 2d 31 (2d Cir. 1975).
13. U.S. Judge rejects bid to increase Ang’s bail, Manila Bulletin, December 8, 2002.
14. G.R. No. 132875-132876, February 3, 2000, 324 SCRA 689.
15. 18 U.S.C.A. ยง 3146.
