SECRETARY OF JUSTICE, petitioner, vs.

HON. RALPH C. LANTION, Presiding Judge, RTC of Manila, Branch 25, and MARK B.
JIMENEZ, respondents.
G.R. No. 139465
October 17, 2000

TOPIC: extradition - application of municipal law in international law/cases | human rights

FACTS: Former President Marcos issued P.D. 1069 prescribing the procedure for the
extradition of persons who have committed crimes in a foreign country, founded on the
doctrine of incorporation under the Constitution where the mutual concern for the
suppression of crime both in the state where it was committed and the state where the
criminal may have escaped. On a later date, SOJ Drilon signed the extradition treaty
between the government of the republic of the Philippines and the Government of the USA,
referred to as the RP-US Extradition Treaty. Later on, the DOJ received from the DFA a note
containing a request for the extradition of private respondent Jimenez to the US for the
violation of the provisions of the US Code, one of which is, for committing conspiracy to
commit offense or to defraud the US.
Jimenez was charged in the United States for violation of
(a) 18 USC 371 (Conspiracy to commit offense or to defraud the United States, 2
counts),
(b) 26 USC 7201 (Attempt to evade or defeat tax, 4 counts),
(c) 18 USC 1343 (Fraud by wire, radio, or television, 2 counts),
(d) 18 USC 1001 (False statement or entries, 6 counts), and
(E) 2 USC 441f (Election contributions in name of another; 33 counts).
On the same day, the Secretary issued Department Order 249 designating and
authorizing a panel of attorneys to take charge of and to handle the case.

Petitioner issued an order to conduct a technical evaluation and assessment of the

extradition request. Pending the said evaluation, Jimenez requested copies of the official
extradition request from the US Government or access thereto, however was denied on the
following grounds: 1. it’s premature to secure him copies prior to the completion of the
evaluation. 2. The U.S. requested for the prevention of unauthorized disclosure of the
information in the documents. 3. The department is not in position to hold in abeyance
proceedings in connection with an extradition request, as Philippines is bound to Vienna
Convention on law of treaties such that every treaty in force is binding upon the parties.

Thus, Jimenez filed with the RTC of NCR, in the sala of Hon. Lantion, a petition against the
petitioner-SOJ, DFA and the Director of the NBI for mandamus - to compel the latter to
furnish him the requests and issue the petitioners TRO, and was granted, hence, this case.
The petitioner assails the case on the following grounds:
I. There is a substantial difference between an evaluation process antecedent to the filing of an extradition petition in
court and a preliminary investigation.
II. Absence of notice and hearing during the evaluation process will not result in a denial of fundamental fairness.
III. In the evaluation process, instituting a notice and hearing requirement satisfies no higher objective.
IV. The deliberate omission of the notice and hearing requirement in the Philippine Extradition Law is intended to
prevent flight.
V. There is a need to balance the interest between the discretionary powers of government and the rights of an
individual.
VI. The instances cited in the assailed majority decision when the twin rights of notice and hearing may be dispensed
with in this case results in a non sequitur conclusion.
 VII. Jimenez is not placed in imminent danger of arrest by the Executive Branch necessitating notice and hearing.
VIII. By instituting a 'proceeding' not contemplated by PD No. 1069, the Supreme Court has encroached upon the
constitutional boundaries separating it from the other two co-equal branches of government.
IX. Bail is not a matter of right in proceedings leading to extradition or in extradition proceedings.

ISSUE: WON private respondent, Jimenez, is entitled to the two basic due process rights of
notice and hearing, otherwise, a breach of the legal duties of the Philippine Government
under the RP-US Treaty.

RULING: Yes. The human rights of a person, and the rights of the accused guaranteed in
our Constitution should take precedence over treaty rights claimed by a contracting state.
The duties of the government to the individual deserve preferential consideration when they
collide with its treaty obligations to the government of another state. This is so although we
recognize treaties as a source of binding obligations under generally accepted principles of
international law incorporated in our Constitution as part of the law of the land.

The doctrine of incorporation is applied whenever municipal tribunals are confronted

with situations in which there appears to be a conflict between a rule of international
law and the provisions of the constitution or statute of a local state. Efforts should be
done to harmonize them. In a situation, however, where the conflict is irreconcilable and a
choice has to be made between a rule of international law and municipal law, jurisprudence
dictates that municipal law should be upheld by the municipal courts. The doctrine of
incorporation decrees that rules of international law are given equal standing, but are not
superior to, national legislative enactment

Jimenez does not only face a clear and present danger of loss of property or employment
but of liberty itself, which may eventually lead to his forcible banishment to a foreign land.
The convergence of petitioners' favorable action on the extradition request and the
deprivation of private respondents liberty is easily comprehensible.

In Section 3, Rule 112 of the Rules of Court, the respondents basic due process rights,
granting him the right to furnish a copy of the complaint, and other supporting documents is
guaranteed and the respondent shall have the right to examine all other evidence submitted
by the complainant.

The SC upheld "justice outside legality," which may be availed of only in the absence of, and
never against, statutory law or judicial pronouncements. The constitutional issue in the case
at bar does not even call for "justice outside legality," since Jimenez’s due process rights,
although not guaranteed by statute or by treaty, are protected by constitutional guarantees.
To go against the basic fundamental law of the Philippines would not be in keeping with the
principles of democracy on which our Constitution is premised.

The rule of pacta sunt servanda, requires the parties to a treaty to keep their agreement
therein in good faith. The observance of our country's legal duties under a treaty is also
compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines
renounces war as an instrument of national policy, adopts the generally accepted principles
of international law as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations." Under the doctrine of
incorporation, rules of international law form part of the law of the land and no further
legislative action is needed to make such rules applicable in the domestic sphere.

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are
confronted with situations in which there appears to be a conflict between a rule of
international law and the provisions of the constitution or statute of the local state. In a
situation, however, where the conflict is irreconcilable and a choice has to be made between
a rule of international law and municipal law, jurisprudence dictates that municipal law should
be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales
vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that
such courts are organs of municipal law and are accordingly bound by it in all circumstances
(Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law
of the land does not pertain to or imply the primacy of international law over national or
municipal law in the municipal sphere.

Thus, Petitioner is ordered to furnish private respondent copies of the extradition request
and its supporting papers and to grant him a reasonable period within which to file his
comment with supporting evidence.

FULL TEXT:

On January 18, 2000, by a vote of 9-6, we dismissed the petition at bar and ordered the
petitioner to furnish private respondent copies of the extradition request and its supporting
papers and to grant him a reasonable period within which to file his comment with supporting
evidence.1

SOJ Drilon assails the dismissal of his petition through filing an urgent motion for
reconsideration on the following grounds:
I. There is a substantial difference between an evaluation process antecedent to the
filing of an extradition petition in court and a preliminary investigation.
II. Absence of notice and hearing during the evaluation process will not result in a
denial of fundamental fairness.
III. In the evaluation process, instituting a notice and hearing requirement satisfies no
higher objective.
IV. The deliberate omission of the notice and hearing requirement in the Philippine
Extradition Law is intended to prevent flight.
V. There is a need to balance the interest between the discretionary powers of
government and the rights of an individual.
VI. The instances cited in the assailed majority decision when the twin rights of notice
and hearing may be dispensed with in this case results in a non sequitur conclusion.
VII. Jimenez is not placed in imminent danger of arrest by the Executive Branch
necessitating notice and hearing.
VIII. By instituting a 'proceeding' not contemplated by PD No. 1069, the Supreme
Court has encroached upon the constitutional boundaries separating it from the other
two co-equal branches of government.
 IX. Bail is not a matter of right in proceedings leading to extradition or in extradition
proceedings.

On March 28, 2000, a 58-page Comment was filed by the private respondent Mark B.
Jimenez, opposing petitioner’s Urgent Motion for Reconsideration.

On April 5, 2000, petitioner filed an Urgent Motion to Allow Continuation and Maintenance of
Action and Filing of Reply. Thereafter, petitioner filed on June 7, 2000 a Manifestation with
the attached Note 327/00 from the Embassy of Canada and Note No. 34 from the Security
Bureau of the Hongkong SAR Government Secretariat. On August 15, 2000, private
respondent filed a Manifestation and Motion for Leave to File Rejoinder in the event that
petitioner's April 5, 2000 Motion would be granted. Private respondent also filed on August
18, 2000, a Motion to Expunge from the records petitioner's June 7, 2000 Manifestation with
its attached note verbales. Except for the Motion to Allow Continuation and Maintenance of
Action, the Court denies these pending motions and hereby resolves petitioner's Urgent
Motion for Reconsideration.

The jugular issue is whether or not the private respondent is entitled to the due
process right to notice and hearing during the evaluation stage of the extradition
process.

RULING: SC: that private respondent is bereft/deprived of the right to notice and hearing
during the evaluation stage of the extradition process.

First. P.D. No. 10693 which implements the RP-US Extradition Treaty provides the time
when an extraditee shall be furnished a copy of the petition for extradition as well as its
supporting papers, i.e., after the filing of the petition for extradition in the extradition court,
viz:
"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of Notices. - (1)
Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the petition on the day and hour
fixed in the order . . . Upon receipt of the answer, or should the accused after having
received the summons fail to answer within the time fixed, the presiding judge shall hear the
case or set another date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case."
It is of judicial notice that the summons includes the petition for extradition which will be
answered by the extraditee.

There is no provision in the RP-US Extradition Treaty and in P.D. No. 1069 which gives
an extraditee the right to demand from the petitioner Secretary of Justice copies of
the extradition request from the US government and its supporting documents and to
comment thereon while the request is still undergoing evaluation. We cannot write a
provision in the treaty giving private respondent that right where there is none. It is
well-settled that a "court cannot alter, amend, or add to a treaty by the insertion of any
clause, small or great, or dispense with any of its conditions and requirements or take
away any qualification, or integral part of any stipulation, upon any motion of equity,
or general convenience, or substantial justice."4
Second. All treaties, including the RP-US Extradition Treaty, should be interpreted in
light of their intent. Nothing less than the Vienna Convention on the Law of Treaties to
which the Philippines is a signatory provides that "a treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in light of its object and purpose."5 (emphasis supplied) The
preambular paragraphs of P.D. No. 1069 define its intent, viz:
"WHEREAS, under the Constitution[,] the Philippines 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;
WHEREAS, the suppression of crime is the concern not only of the state where it is
committed but also of any other state to which the criminal may have escaped, because it
saps the foundation of social life and is an outrage upon humanity at large, and it is in the
interest of civilized communities that crimes should not go unpunished;
WHEREAS, in recognition of this principle the Philippines recently concluded an extradition
treaty with the Republic of Indonesia, and intends to conclude similar treaties with other
interested countries;
x x x." (emphasis supplied)

It cannot be gainsaid that today, countries like the Philippines forge extradition treaties to
arrest the dramatic rise of international and transnational crimes like terrorism and drug
trafficking. Extradition treaties provide the assurance that the punishment of these crimes will
not be frustrated by the frontiers of territorial sovereignty. Implicit in the treaties should be the
unbending commitment that the perpetrators of these crimes will not be coddled by any
signatory state.

It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will
minimize if not prevent the escape of extraditees from the long arm of the law and expedite
their trial. The submission of the private respondent, that as a probable extraditee under the
RP-US Extradition Treaty he should be furnished a copy of the US government request for
his extradition and its supporting documents even while they are still under evaluation by
petitioner Secretary of Justice, does not meet this desideratum. The fear of the petitioner
Secretary of Justice that the demanded notice is equivalent to a notice to flee must be
deeply rooted on the experience of the executive branch of our government. As it comes
from the branch of our government in charge of the faithful execution of our laws, it deserves
the careful consideration of this Court. In addition, it cannot be gainsaid that private
respondent’s demand for advance notice can delay the summary process of executive
evaluation of the extradition request and its accompanying papers. The foresight of Justice
Oliver Wendell Holmes did not miss this danger. In 1911, he held:
"It is common in extradition cases to attempt to bring to bear all the factitious niceties of a
criminal trial at common law. But it is a waste of time . . . if there is presented, even in
somewhat untechnical form according to our ideas, such reasonable ground to suppose him
guilty as to make it proper that he should be tried, good faith to the demanding government
requires his surrender."6 (emphasis supplied)
We erode no right of an extraditee when we do not allow time to stand still on his
prosecution. Justice is best served when done without delay.
Third. An equally compelling factor to consider is the understanding of the parties
themselves to the RP-US Extradition Treaty as well as the general interpretation of the issue
in question by other countries with similar treaties with the Philippines. The rule is
recognized that while courts have the power to interpret treaties, the meaning given them by
the departments of government particularly charged with their negotiation and enforcement
is accorded great weight.7 The reason for the rule is laid down in Santos III v. Northwest
Orient Airlines, et al.,8 where we stressed that a treaty is a joint executive-legislative act
which enjoys the presumption that "it was first carefully studied and determined to be
constitutional before it was adopted and given the force of law in the country."
Our executive department of government, thru the Department of Foreign Affairs (DFA) and
the Department of Justice (DOJ), has steadfastly maintained that the RP-US Extradition
Treaty and P.D. No. 1069 do not grant the private respondent a right to notice and hearing
during the evaluation stage of an extradition process.9 This understanding of the treaty is
shared by the US government, the other party to the treaty.10 This interpretation by the two
governments cannot be given scant significance. It will be presumptuous for the Court to
assume that both governments did not understand the terms of the treaty they concluded.
Yet, this is not all. Other countries with similar extradition treaties with the Philippines have
expressed the same interpretation adopted by the Philippine and US governments.
Canadian11 and Hongkong12 authorities, thru appropriate note verbales communicated to
our Department of Foreign Affairs, stated in unequivocal language that it is not an
international practice to afford a potential extraditee with a copy of the extradition papers
during the evaluation stage of the extradition process. We cannot disregard such a
convergence of views unless it is manifestly erroneous.
Fourth. Private respondent, however, peddles the postulate that he must be afforded the
right to notice and hearing as required by our Constitution. He buttresses his position by
likening an extradition proceeding to a criminal proceeding and the evaluation stage to a
preliminary investigation.
We are not persuaded. An extradition proceeding is sui generis. It is not a criminal
proceeding which will call into operation all the rights of an accused as guaranteed by the Bill
of Rights. To begin with, the process of extradition does not involve the determination of the
guilt or innocence of an accused.13 His guilt or innocence will be adjudged in the court of the
state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant
to determine the guilt or innocence of an accused cannot be invoked by an extraditee
especially by one whose extradition papers are still undergoing evaluation.14 As held by the
US Supreme Court in United States v. Galanis:
"An extradition proceeding is not a criminal prosecution, and the constitutional safeguards
that accompany a criminal trial in this country do not shield an accused from extradition
pursuant to a valid treaty."15
There are other differences between an extradition proceeding and a criminal proceeding.
An extradition proceeding is summary in nature while criminal proceedings involve a
full-blown trial.16 In contradistinction to a criminal proceeding, the rules of evidence in an
extradition proceeding allow admission of evidence under less stringent standards.17 In
terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond
reasonable doubt for conviction18 while a fugitive may be ordered extradited "upon showing
of the existence of a prima facie case."19 Finally, unlike in a criminal case where judgment
becomes executory upon being rendered final, in an extradition proceeding, our courts may
adjudge an individual extraditable but the President has the final discretion to extradite
him.20 The United States adheres to a similar practice whereby the Secretary of State
exercises wide discretion in balancing the equities of the case and the demands of the
nation's foreign relations before making the ultimate decision to extradite.21
As an extradition proceeding is not criminal in character and the evaluation stage in an
extradition proceeding is not akin to a preliminary investigation, the due process safeguards
in the latter do not necessarily apply to the former. This we hold for the procedural due
process required by a given set of circumstances "must begin with a determination of the
precise nature of the government function involved as well as the private interest that has
been affected by governmental action."22 The concept of due process is flexible for "not all
situations calling for procedural safeguards call for the same kind of procedure."23
Fifth. Private respondent would also impress upon the Court the urgency of his right to notice
and hearing considering the alleged threat to his liberty "which may be more priceless than
life."24 The supposed threat to private respondent’s liberty is perceived to come from several
provisions of the RP-US Extradition Treaty and P.D. No. 1069 which allow provisional arrest
and temporary detention.

"PROVISIONAL ARREST
Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide that private respondent
may be provisionally arrested only pending receipt of the request for extradition. Our DFA
has long received the extradition request from the United States and has turned it over to the
DOJ. It is undisputed that until today, the United States has not requested for private
respondent’s provisional arrest. Therefore, the threat to private respondent’s liberty has
passed. It is more imagined than real. Nor can the threat to private respondent’s liberty come
from Section 6 of P.D. No. 1069, which provides:
"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1)
Immediately upon receipt of the petition, the presiding judge of the court shall, as
soon as practicable, summon the accused to appear and to answer the petition on
the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest
of the accused which may be served anywhere within the Philippines if it appears to
the presiding judge that the immediate arrest and temporary detention of the accused
will best serve the ends of justice. . .
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case."
(emphasis supplied)

It is evident from the above provision that a warrant of arrest for the temporary detention of
the accused pending the extradition hearing may only be issued by the presiding judge of
the extradition court upon filing of the petition for extradition. As the extradition process is still
in the evaluation stage of pertinent documents and there is no certainty that a petition for
extradition will be filed in the appropriate extradition court, the threat to private respondent’s
liberty is merely hypothetical.

Sixth. To be sure, private respondent’s plea for due process deserves serious consideration
involving as it does his primordial right to liberty. His plea to due process, however, collides
with important state interests which cannot also be ignored for they serve the interest of the
greater majority. The clash of rights demands a delicate balancing of interests approach
which is a "fundamental postulate of constitutional law."25 The approach requires that we
"take conscious and detailed consideration of the interplay of interests observable in a given
situation or type of situation."26 These interests usually consist in the exercise by an
individual of his basic freedoms on the one hand, and the government’s promotion of
fundamental public interest or policy objectives on the other.27
In the case at bar, on one end of the balancing pole is the private respondent’s claim to due
process predicated on Section 1, Article III of the Constitution, which provides that "No
person shall be deprived of life, liberty, or property without due process of law . . ." Without a
bubble of doubt, procedural due process of law lies at the foundation of a civilized society
which accords paramount importance to justice and fairness. It has to be accorded the
weight it deserves.

This brings us to the other end of the balancing pole. Petitioner avers that the Court should
give more weight to our national commitment under the RP-US Extradition Treaty to expedite
the extradition to the United States of persons charged with violation of some of its laws.
Petitioner also emphasizes the need to defer to the judgment of the Executive on matters
relating to foreign affairs in order not to weaken if not violate the principle of separation of
powers.

Considering that in the case at bar, the extradition proceeding is only at its evaluation stage,
the nature of the right being claimed by the private respondent is nebulous and the degree of
prejudice he will allegedly suffer is weak, we accord greater weight to the interests espoused
by the government thru the petitioner Secretary of Justice. In Angara v. Electoral
Commission, we held that the "Constitution has blocked out with deft strokes and in bold
lines, allotment of power to the executive, the legislative and the judicial departments of the
government."28 Under our constitutional scheme, executive power is vested in the President
of the Philippines.29 Executive power includes, among others, the power to contract or
guarantee foreign loans and the power to enter into treaties or international agreements.30
The task of safeguarding that these treaties are duly honored devolves upon the executive
department which has the competence and authority to so act in the international arena.31 It
is traditionally held that the President has power and even supremacy over the country’s
foreign relations.32 The executive department is aptly accorded deference on matters of
foreign relations considering the President’s most comprehensive and most confidential
information about the international scene of which he is regularly briefed by our diplomatic
and consular officials. His access to ultra-sensitive military intelligence data is also
unlimited.33 The deference we give to the executive department is dictated by the principle
of separation of powers. This principle is one of the cornerstones of our democratic
government. It cannot be eroded without endangering our government.

The Philippines also has a national interest to help in suppressing crimes and one way to do
it is to facilitate the extradition of persons covered by treaties duly entered by our
government. More and more, crimes are becoming the concern of one world. Laws involving
crimes and crime prevention are undergoing universalization. One manifest purpose of this
trend towards globalization is to deny easy refuge to a criminal whose activities threaten the
peace and progress of civilized countries. It is to the great interest of the Philippines to be
part of this irreversible movement in light of its vulnerability to crimes, especially
transnational crimes.

In tilting the balance in favor of the interests of the State, the Court stresses that it is not
ruling that the private respondent has no right to due process at all throughout the length and
breadth of the extrajudicial proceedings. Procedural due process requires a determination of
what process is due, when it is due, and the degree of what is due. Stated otherwise, a prior
determination should be made as to whether procedural protections are at all due and when
they are due, which in turn depends on the extent to which an individual will be "condemned
to suffer grievous loss."34 We have explained why an extraditee has no right to notice and
hearing during the evaluation stage of the extradition process. As aforesaid, P.D. No. 1069
which implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to
meet the evidence against him once the petition is filed in court. The time for the extraditee
to know the basis of the request for his extradition is merely moved to the filing in court of the
formal petition for extradition. The extraditee's right to know is momentarily withheld during
the evaluation stage of the extradition process to accommodate the more compelling interest
of the State to prevent escape of potential extraditees which can be precipitated by
premature information of the basis of the request for his extradition. No less compelling at
that stage of the extradition proceedings is the need to be more deferential to the judgment
of a co-equal branch of the government, the Executive, which has been endowed by our
Constitution with greater power over matters involving our foreign relations. Needless to
state, this balance of interests is not a static but a moving balance which can be adjusted as
the extradition process moves from the administrative stage to the judicial stage and to the
execution stage depending on factors that will come into play. In sum, we rule that the
temporary hold on private respondent's privilege of notice and hearing is a soft restraint on
his right to due process which will not deprive him of fundamental fairness should he decide
to resist the request for his extradition to the United States. There is no denial of due
process as long as fundamental fairness is assured a party.
WHEREFORE, the Urgent Motion for Reconsideration is GRANTED.

DISSENTING OPINION - MELO, J.:

Petitioner’s grounds in assailing the dismissal of the case need not be said that the issue of
the case at bar touch on the very bonds of a democratic society which value the power of
one - the single individual. Basic principles on democracy are underpinned on the individual.
Popular control is hinged on the value that we give to people as self-determining agents who
should have a say on issues that effect their lives, particularly on making life-plans. Political
equality is founded on the assumption that everyone (or at least every adult) has an equal
capacity for self-determination, and, therefore, an equal right to influence collective
decisions, and to have their interests considered when these decisions are made.

Affording due process to a single citizen is not contrary to the republican and
democratic roots of our State, and is in fact true to its nature. Although there can be
excessive layers of appeals and remedies, no due process rights may be deemed
excessive. It is either the rights are given or not. The case at bar calls for the grant. Be
it remembered that this is the first time that respondent Jimenez has come to court to
raise the issues herein.

Petitioner argues that the Court should have considered that preliminary investigation and
the evaluation are similar in the sense that the right to preliminary investigation and the right
to notice and hearing during the evaluation process are not fundamental rights guaranteed
by the Constitution. In Go vs. Court of Appeals (206 SCRA 138 [1992]), we held that where
there is a statutory grant of the right to preliminary investigation, denial of the same is an
infringement of the due process clause. Hence, if a citizen is deprived of a right granted by
statute, it still amounts to a violation of the due process clause. By analogy, the denial of the
right to appeal (which is not a natural right nor is part of due process) constitutes a violation
of due process if the right is granted by the Constitution or by statute.

The source of private respondent's basic due process rights is Section 1, Article III of
the Constitution which is a self-executory provision, meaning, it is by itself directly or
immediately applicable without need of statutory implementation, hence may be invoked by
proper parties independently or even against legislative enactment. In contrast, a
non-self-executory provision is one that remains dormant unless it is given vitality by
legislative implementation. The latter gives the legislature the opportunity to determine when,
or whether such provision shall be effective thus making it subordinate to the will of the
lawmaking body, which could make it entirely meaningless by simply refusing to pass the
needed implementing statute.

Section 1, Article III of the Constitution is a breathing, pulsating provision, so to speak. The
sovereign itself has given it life. It is properly invoked by respondent Jimenez particularly as
a citizen of our country. The Extradition Law need not expressly provide for its applicability.

Petitioner also posits that instituting another layer of notice and hearing, even when not
contemplated in the treaty and in the implementing law would result in excessive due
process.

I disagree. As earlier stated, admittedly, there can be excessive layers of appeals and
remedies. However, the observance of due process can hardly be tagged as excessive.
Either it is afforded the citizen or not. In the first place, due process during the evaluation
stage forms part of administrative due process. The notice and hearing afforded when the
petition for extradition is filed in court form part of judicial due process. Ultimately, these
requisites serve as restrictions on actions of judicial and quasi-judicial agencies of
government (Nachura, Outline/Reviewer in Political Law, 1996 ed., p. 48) and are collectively
called requisites of procedural due process. Moreover, it cannot be overemphasized that this
is the first instance that respondent Jimenez has invoked his basic due process rights, and it
is petitioner who has elevated the issue to this Court. There is thus nothing excessive in our
act of heeding respondent now.
Petitioner also emphasizes that the technical assessment and review to determine
sufficiency of documents are matters that can be done without need of intervention by a third
party and that the issues that may be raised during the proceedings (whether the offense is
a military offense or political offense or whether the request is politically motivated) can be
done through research without need of intervention by a party. Petitioner, however, admits
that the politically motivated request would pose some difficulties. Then he proceeds to say
that the determination of whether a request is politically motivated naturally puts at issue the
good faith of the other country making a request, and that to make this determination, one
has to be fully aware of the political surroundings upon which the request is made, an finally,
that this function can only be done by the Department of Foreign Affairs. But what actually
happened in the instant case? The DFA perfunctorily skimmed through the request an threw
the same to the Department of Justice to exercise its function. Now, petitioner would prohibit
the prospective extraditee from being heard notwithstanding the fact that the DFA forsook
and deserted its bounded duty and responsibilities and, instead, converted itself into what it
calls a mere post office. Assuming arguendo that the request was indeed politically
motivated, who would then give an objective assessment thereof when all the interests of the
DOJ is to prepare a petition for extradition, and to complete the documents in support
thereof? It is willing to assist the requesting state by advising that the papers are not in
proper order (thus resulting in delay because of the long wait for the proper papers) but is
not willing to afford the prospective extraditee, its own citizen, enjoyment of his basic rights
to preserve his liberty and freedom.
Petitioner also stresses that the paramount interest involved in the instant case is not delay
but the danger of a fugitive's flight. As mentioned above, immediacy is apparently not a
primary concern. Petitioner has given the requesting state time to complete its documents,
particularly by practically affording the U.S. Government an opportunity to submit the official
English translation of Spanish documents and to have other documents properly
authenticated. He even had time to file the instant case. To be straightforward, petitioner
himself (particularly the former Secretary of Justice) has taken his time.
And as regards the apprehension of flight, petitioner is well versed in the use of a hold
departure order which could easily lay his fear of private respondent's flight to rest. In
accordance with Department circular No. 17 issued on March 19, 1998 by then Secretary of
Justice Silvestre H. Bello III, a hold departure order (HDO) may be issued by the Secretary
of Justice "upon the request of the Head of a Department of the Government; the head of a
constitutional body or a commission or agency performing quasi-judicial functions; the chief
Justice of the Supreme Court for the Judiciary; or by the President of the Senate or the
Speaker of the House of Representatives for the legislative body" when the interested party
is the Government or any of its agencies or intrumentalities, "in the interest of national
security, public safety or public health, as may be provided by law" (Paragraph 2 [d],
Department Circular No. 17 [Prescribing Rules and Regulations Governing the Issuance of
Hold Departure Orders]). This provision can easily be utilized by petitioner to prevent private
respondent's flight.
Also in relation to flight, petitioner advances the applicability of the balance-of-interest test,
which, as discussed in American Communications Association vs. Douds (339 U.S. 282),
refers to a situation where particular conduct is regulated in the interest of public order, and
the regulation results in an indirect, conditional, partial abridgment of speech, resulting in the
duty of the courts to determine which of the conflicting interests demand the greater
protection under the particular circumstances presented. In other words, if in a given
situation it should appear that there is urgent necessity for protecting the national security
against improvident exercise of freedom, but the interests of the State are not especially
threatened by its exercise, the right must prevail.
The two other tests which evolved in the context of prosecution of crimes involving the
overthrow of the government also gain applicability on other substantive evils which the state
has the right to prevent even if these evils do not clearly undermine the safety of the
Republic (Bernas, the 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 219).
By analogy, let us consider the legislation subject of this controversy - the Philippine
Extradition Law. The substantive evil that the State would like to prevent is the flight of the
prospective extraditee. A lot lies in how we respond to the following considerations:
(1) If the prospective extraditee were given notice and hearing during the evaluation stage of
the extradition proceedings, would this result in his flight? Would there be a dangerous or
natural tendency that the prospective extraditee might flee from the country? Is flight the
probable effect of affording him his basic due process rights?
(2) If the prospective extraditee were afforded these basic due process rights, would this
create a clear and present danger that it will inevitably result in his flight?
(3) Should the Court balance the interest of the government (which refers to the prevention
of the flight of the prospective extraditee from the country and the breach of international
commitments) and that of the individual (referring to possible indefinite incarceration)? For
whom do we tilt the balance?
Both the treaty and the Extradition Law clearly provide for the incarceration of the
prospective extraditee. Although the matter has been fully discussed in the then majority
opinion of the Court now being reconsidered, it is significant to survey such provisions, as
follows:
(1) The prospective extraditee faces provisonal arrest pending the submission of the request
for extradition based on Paragraph (1), Article 9 of the RP-US Extradition Treaty which
provides that a contracting party may request the provisional arrest of the person sought
pending presentation of the request, but he shall be automatically discharged after 60 days if
no request is submitted (paragraph 4). The Extradition Law provides for a shorter period of
20 days after which the arrested person could be discharged (Section 20 [d]). And as
observed in my ponencia, although the Extradition Law is silent in this respect, the
provisions mean that once a request for extradition is forwarded to the Requested State, the
prospective extraditee may be continuously detained, or if not, subsequently rearrested
(Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no
request is later submitted.
(2) The prospective extraditee may also be subject to temporary arrest during the pendency
of the extradition petition in court (Section 6, Presidential Decree No. 1069). With the patent
insistence of the requesting state to have the RP-US Extradition Treaty strictly enforced, as
well as the noticeable zeal and attention of the Department of Justice on the extradition of
respondent Jimenez, one cannot but conclude that the filing of a petition for extradition by
the Department of Justice is an absolute certainty. This is especially obvious from the fact
that the Department of Justice has even allowed the requesting state to correct the
deficiencies of the documents in support of the request.
Petitioner likens the evaluation procedure to the cancellation of passports held by persons
facing criminal prosecution. This situation is discussed in the vintage case of Suntay vs.
People (101 Phil. 833 [1957]) where an accused in a criminal case for seduction applied for
and was granted a passport by the Department of Foreign Affairs and later left the
Philippines for the United States. We held that due to the accused's sudden departure from
the country in such a convenient time which could readily be interpreted to mean as a
deliberate attempt on his part to flee from justice, the Secretary of Foreign Affairs had the
discretion to withdraw or cancel the accused's passport even without a hearing, considering
that such cancellation was based upon an undisputed fact- the filing of a serious criminal
charges against the passport holder.
The situation in the case at bar is different precisely because we are looking at a situation
where we have a Filipino countryman facing possible exile to a foreign land. Forget the
personality and controversial nature involved.
Imagine the inconvenience brought about by incarceration when, on the extreme, the
prospective extraditee could prevent it by pointing out that, for instance, the request is
politically motivated. We are not only referring to private respondent, who petitioner himself
describes as one who luckily has access to media. The ruling in the case at bar also affects
the lives of ordinary Filipinos who are far from the limelight. Shall we allow them to be
subjected to incarceration just because they have no access to information about imminent
dangers to their liberty? What should stop us from protecting our own Filipino brethren?
In Lao Gi vs. Court of Appeals (180 SCRA 756 [1989]), we held that deportation proceedings
do not partake of the nature of a criminal action, however, considering that said proceedings
are harsh and extraordinary administrative matters affecting the freedom and liberty of a
person, the constitutional right of such person to due process should not be denied. Thus,
the provisions of the Rules of Court particularly on criminal procedure are applicable to
deportation proceedings. And this protection was given to Lao Gi, a former Filipino citizen
whose citizenship was set aside on the ground that it was founded on fraud and
misrepresentation, resulting in a charge for deportation filed against him, his wife, and
children. If an alien subject to the State's power of deportation (which is incidentally a police
measure against undesirable aliens whose presence in the country is found to be injurious to
the public good and domestic tranquility of the people) is entitled to basic due process rights,
why not a Filipino?
On the other hand, let us put the executive department's international commitments in
perspective.
The very essence of a sovereign state is that it has no superior. Each sovereign state is
supreme upon its own limits. It is, therefore, fundamental in Private International Law that it
is within the power of such state at any time to exclude any or all foreign laws from operating
within its borders to the extent that if it cannot do this, it is not sovereign. Hence, when effect
is given to a foreign law in any territory, it is only because the municipal law of that state
temporarily abdicates its supreme authority in favor of the foreign law, which for the time
being, with reference to that particular matter, becomes itself, by will of the state, its
municipal law (Paras, Phil. Conflict of Laws, 1996 ed., p. 5). However, to be precise, the
instant case involves principles of public international law which describe a sovereign state
as independent and not a dependency of another state (Salonga & Yap, Public International
Law, 1992 ed., p. 7).
If this were a case before international tribunals, international obligations would undoubtedly
reign supreme over national law. However, in the municipal sphere, the relationship between
international law and municipal law is determined by the constitutional law of individual
states (Ibid., pp. 11-12). In the Philippines, the doctrine of incorporation is observed with
respect to customary international law in accordance with Article II, Section 2 of the 1987
Constitution which in essence provides that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land."
The Extradition Treaty on the other hand is not customary international law.1âwphi1 It is a
treaty which may be invalidated if it is in conflict with the Constitution. And any conflict
therein is resolved by this Court, which is the guardian of the fundamental law of the land.
No foreign power can dictate our course of action, nor can the observations of a handful of
American lawyers have any legal bearing, as if they were law practitioners in this country.
One last point. Petitioner argues that one can search the RP-US Extradition Treaty in vain
for any provision saying that notice and hearing should be had during the evaluation
process. But it is also silent on other points-on the period within which the evaluation
procedure should be done; on the propriety of the act of the Requested State advising the
Requesting State what papers are proper to be submitted in support of the extradition
request (specifically on authentication and on translation); yet these matters are not in
question. And as regards the matter of bail, suffice it to state that the Court is not harboring
the idea that bail should be available in extradition proceedings. It merely rhetorically
presented one of the legal implications of the Extradition Law. This matter is not even in
issue.
In closing, it is significant to reiterate that in the United States, extradition begins and ends
with one entity-the Department of State-which has the power to evaluate the request an the
extradition documents in the beginning, and in the person of the secretary of State, the
power to act or not to act on the court's determination of extraditability. Let us hope that after
the extradition petition has been filed and heard by the proper court, the executive
department, represented in our country by the Department of Foreign Affairs, will this time
dutifully discharge its function, like its American counterpart, in making the final and ultimate
determination whether to surrender the prospective extraditee to the foreign government
concerned. Anyway, petitioner himself has argued that it is the entity knowledgeable of
whether the request was politically motivated in the first place. The possibility of the
prospective extraditee's exile from our land lies in its hands.
WHEREFORE, I vote to DENY the instant motion for reconsideration.

DISSENTING OPINION - YNARES-SANTIAGO, J.:

After going over the grounds given by the Government in support of the motion for
reconsideration, I regret that I cannot go along with the new ruling of the Court's recent
majority. I am convinced that there is greater reason to strike the balance in favor of a
solitary beleaguered individual against the exertion of overwhelming Government power by
both the Philippines and the United States. To grant the respondent his right to know will not,
in any significant way, weaken or frustrate compliance with treaty objectives. But it will result
in jurisprudence which reasserts national dignity and gives meaningful protection to the
rights of any citizen who is presumed innocent until proven guilty.
The basic considerations behind my vote to deny the petition have not changed inspite of the
detailed explanations in the motion for reconsideration. On the contrary, I recognize the grant
of the respondent's request even more justified and compelling.
In the first place, I find nothing unreasonable, illegal or repugnant for a man about to be
brought to trial to ask for the charges raised against him. It is a perfectly natural and to
be-expected request. There is also nothing in the RP-US Extradition Treaty that expressly
prohibits the giving of such information to an extraditee before trial. On the other hand, its
grant is in keeping with basic principles of fairness and even-handed justice.
I find petitioner's reasons for rejecting the exercise of the right to know as more illusory than
real. Delay is not an issue. Delays were incurred in the United States before the request for
extradition was finalized. Delays in the Philippines are inevitable unless a skilled prosecutor
and a competent Judge will ably control the course of the trial in a court with clogged
dockets. It is these delays that should be addressed. Why should a few days given to an
"accused" to study the charges against him be categorized as unwarranted and intolerable
delay?
I reject the argument that public interest, international commitments and national dignity
would be compromised if Mr. Mark B. Jimenez is shown the extradition treaty so he can
more adequately prepare his defense. Merely raising insuperable grounds does not insure
their validity. I find the above concerns totally inapplicable under the circumstances of this
case.
I beg the Court's indulgence as I discuss one by one the reasons for the Court's change of
mind and the grounds for the grant of the motion for reconsideration.
I dissent from the first ground which implies that a claim shall be rejected and a protection
may not be allowed if it is not found in the express provisions of the RP-US Extradition
Treaty. It should be the other way around. Any right not prohibited by the Treaty which arises
from Philippine law, custom or traditions of decency and fairness should be granted and not
denied. The referral by the Department of Foreign Affairs to the Department of Justice and
the high profile collaboration between the two powerful Departments, found in Presidential
Decree No. 1069, is not also provided for in the Treaty. Does that mean it is prohibited?
There is no provision in the Treaty which mandates that an extraditee should be kept in the
dark about the charges against him until he is brought to trial. The Treaty deals only with the
trial proper. It cannot possibly cover everything. Our law and jurisprudence are not
superseded by the mere absence of a specific provision in a treaty. What is not prohibited
should be allowed.
The respondent is not asking for any favor which interferes with the evaluation of an
extradition request. While two powerful institutions, the Department of Foreign Affairs and
the Department of Justice, are plotting the course of a citizen's life or liberty, I see no reason
why the person involved should not be given an early opportunity to prepare for trial. There
is no alteration or amendment of any Treaty provision. Section 6 of Presidential Decree No.
1069, which provides for service of the summons and the warrant of arrest once the
extradition court takes over, is a minimum requirement for the extraditee's protection. Why
should it be used against him? Why should it be treated as a prohibition against the
enjoyment of rights to which a citizen may be entitled under a liberal interpretation of our
laws, treaties and procedures?
With all due respect, I find the second reason in the Court's Resolution, ostensibly based on
the intent behind the RP-US Extradition Treaty, to be inapplicable, exaggerated and unfair.
Does the grant of an early opportunity to prepare for one's defense really diminish our
country's commitment to the suppression of crime? How can a person's right to know what
blows will strike him next be a State's coddling of a perpetrator of a crime? Why should the
odious crimes of terrorism and drug trafficking be used as inflammatory arguments to decide
cases of more subjective and problematical offenses like tax evasion or illegal election
campaign contributions? Terrorism and drug trafficking are capital offenses in the
Philippines. There should be no legal obstacles to speedily placing behind bars a Filipino
terrorist or drug dealer or summarily deporting a non-citizen as an undesirable alien. But this
should in no way lessen a greater care and more humane handling of an offense not as
clear-cut or atrocious. The use of epithetical arguments is unfair.
In this particular case, it is not the respondent's request for copies of the charges which is
delaying the extradition process. Delay is caused by the cumbersome procedures coupled
with ostentatious publicity adopted by two big Departments --- the Department of Foreign
Affairs and the Department of Justice --- to evaluate what is really a simple question:
whether or not to file extradition proceedings. But we are unfairly laying the blame on Mark
Jimenez and using it as an excuse to deny a basically reasonable request which is to him of
paramount importance.
I find this case not so much a violation of any international commitment as it is an
unnecessary exertion of the strong arm of the law and an unfortunate display of dominant
Government power.
The third factor mentioned by the majority of the Court is based on a mistaken premise. It
assumes that furnishing a potential extraditee with a copy of the extradition request is
prohibited by the Treaty. It is not. The silence of the Treaty on the matter does not mean it
cannot be done. To view silence as prohibition is completely anathema to statutory
construction of constitutional protections.
Canada, Hong Kong, an the United States may not furnish copies of the charges during the
evaluation stage. But this could be due to their use of an entirely different and abbreviated
evaluation process. Absent clear and specific prohibitions in a treaty, the procedure by which
rights are enforced and wrongs redressed is primarily one of national regulation and control.
There is no universal uniform procedure required of all countries. Every State has the
prerogative of devising its own guidelines in securing essential justice. The fact that certain
countries do not follow the practice does not mean that we cannot adopt measures that are
fair, protective of private interests to life and liberty, and not really damaging to Philippine
and American governmental concerns. Is there anything in the request of Mark Jimenez
which is offensive to the principles of ordered liberty and justice treated as fundamental? It is
the Government which is acting in an uncustomary, frigid and unfeeling manner in this case.
Regarding the fourth reason for the majority decision, I agree that an extradition proceedings
is sui generis. It may not yet involve the determination of innocence or guilt. But certainly,
such is the only result of extradition. A person's good name, dignity, reputation and honor are
at stake. In no way should these values be treated lightly simply because proceedings have
not yet reached the criminal trial proper. The preliminary procedure request by the
respondent may be different from preliminary investigations under our law. But the right to
some kind of proper notice is fundamental.
A proposed extraditee should not be denied a reasonable opportunity to prepare for trial. In
an extradition trial, there may be reasons for the exercise of special care and caution. It is
not a casual occurrence to give up your citizen to another country's criminal justice system. I
do not want to sound unduly jingoistic but in certain Western countries, especially those
using the jury system, a second-class citizen or a colored non-citizen may not always get
equal justice inspite of protestations to the contrary. The prospective extraditee, therefore,
deserves every lawful consideration which his poor third-world country can give him. Instead
of being influenced by non-applicable doomsday pronouncements regarding terrorists, drug
dealers, and internationally syndicated criminals being pampered, all we need to apply is
plain common-sense coupled with a compassionate and humane approach.
The fifth factor influencing the Court regarding threats to respondent's liberty should not be
dismissed as fancied or imaginary. The insistent denial of a simple right to be informed is the
best argument that the Treaty is being interpreted in an unduly strict manner contrary to our
established rules on transparency and candidness. At this early stage, we are already
interpreting the RP-US Extradition Treaty in a most restrictive manner. The terms of any law
or treaty can be interpreted strictly or liberally. What reasons do we have to adopt a rigidly
strict interpretation when what is involved is human liberty?
While extradition treaties should be faithfully observed and interpreted, with a view of
fulfilling the nation's obligations to other powers, this should be done without sacrificing the
constitutional rights of the accused.1
I repeat that what Mark Jimenez requests is only an opportunity to know the charges against
him. We are not judging a game where the Government may spring a surprise on him only at
the trial. I find nothing revolting in the respondent's request. And this brings me to the sixth
ground given by the latest Resolution of the Court.
We have to be cautious in relying on the so-called balancing of the sovereign powers of the
State against private interests of a wretched solitary individual. What chance does any
person have against this kind of argument unless the Court approaches the problem in a
libertarian manner?
I do not see any "important State interests" or any "government's promotion of fundamental
public interests or policy objectives" being prejudiced. The respondent's right to know the
charges against him early does not clash in any way with any paramount national interest.
The invocation of State interests by the Secretary of Justice is more illusive and rhetorical
than real.
There is nothing nebulous in an extraditee's request to prepare for trial. Whether or not the
degree of prejudice to be suffered by the respondent is weak depends on the particular
circumstance of each case. A blanket denial in all cases cannot be based in an
all-embracing invocation of public interest or sovereign power. Neither should separation of
powers be pleaded. Whether or not to extradite is a judicial function. The protection of
human rights has never been denied on grounds of comity among the three great
departments of Government. The power to enter into treaties is an executive function but its
implementation on whether or not certain protections may be accorded is judicial.
The invocation of executive prerogatives against a judicial interference has to be carefully
studied. I admit that the balancing of individual liberty and governmental authority is a
delicate and formidable task. It should, however, be accepted that the balance is an
ever-shifting one. There should be no setting down of a permanent rule of denial even under
changed circumstances.
With all due respect, I disagree with the Court's majority as it uses principles which to me are
not applicable under the circumstances of this petition. Unless there are compelling reasons,
which do not exist in this case, the balance should not be tilted in favor of interference with a
legitimate defense of life or liberty.
The considerations towards the end of the Court's Resolution about the national interest in
suppressing crime, the irreversible globalization of non-refuge to criminals, and, more
specifically, the mention of transnational crimes, are hardly relevant to the subject matter of
this case.
Illegal campaign contributions and tax evasions are not transnational crimes. Mr. Mark B.
Jimenez is not a refugee criminal until he is proven guilty and then runs away.2 The Court is
prejudging his guilt when in fact it is an American court that still has to try him.
The kind of protection advocated by the Court should not be directed towards hypothetical
cases of terrorism or international drug trafficking. There are more than enough valid
measures to insure that criminals belonging to international syndicates do not escape
apprehension and trial. Hypothetical fears of non-applicable crimes should not be conjured in
this particular case for a blanket denial of the right to information under all circumstances. To
grant the respondent's request would have no truly dangerous consequences to the
administration of justice.
I respectfully urge the Court to rescue libertarian principles from the overzealous and
sometimes inexplicable efforts of executive officers to tread upon them. Let us not
unnecessarily distance ourselves from the felt and accepted needs of our citizens in this
novel and, for us, uncharted field of extradition. The Court is tasked to defend individual
liberty in every major area of governance including international treaties, executive
agreements, and their attendant commitments.
In view of the foregoing, I vote to DENY the motion for reconsideration and to DISMISS the
petition.