G.R. No.
120295 June 28, 1996
JUAN G. FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.
G.R. No. 123755 June 28, 1996
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
PANGANIBAN, J.:p
The ultimate question posed before this Court in these twin cases is: Who should be
declared the rightful governor of Sorsogon -
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three
successive elections but who was twice declared by this Court to be disqualified to hold
such office due to his alien citizenship, and who now claims to have re-assumed his lost
Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes
cast in favor of Frivaldo should be considered void; that the electorate should be deemed
to have intentionally thrown away their ballots; and that legally, he secured the most
number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly
to the position of governor, but who according to prevailing jurisprudence should take
over the said post inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in
the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation,
clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections, and
upholds the superiority of substantial justice over pure legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and
preliminary injunction to review and annul a Resolution of the respondent Commission
on Elections (Comelec), First Division,1 promulgated on December 19, 19952 and another
Resolution of the Comelec en banc promulgated February 23, 19963 denying petitioner's
motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy
for the office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995,
petitioner Raul R. Lee, another candidate, filed a petition 4 with the Comelec docketed as
SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any public
office or position by reason of not yet being a citizen of the Philippines", and that his
Certificate of Candidacy be canceled. On May 1, 1995, the Second Division of the Comelec
promulgated a Resolution5 granting the petition with the following disposition6:
WHEREFORE, this Division resolves to GRANT the petition and
declares that respondent is DISQUALIFIED to run for the Office of
Governor of Sorsogon on the ground that he is NOT a citizen of the
Philippines. Accordingly, respondent's certificate of candidacy is
canceled.
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the
May 8, 1995 elections. So, his candidacy continued and he was voted for during the
elections held on said date. On May 11, 1995, the Comelec en banc7 affirmed the
aforementioned Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the election returns and a
Certificate of Votes8 dated May 27, 1995 was issued showing the following votes
obtained by the candidates for the position of Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition9 praying for
his proclamation as the duly-elected Governor of Sorsogon.
In an order10 dated June 21, 1995, but promulgated according to the petition "only on
June 29, 1995," the Comelec en banc directed "the Provincial Board of Canvassers of
Sorsogon to reconvene for the purpose of proclaiming candidate Raul Lee as the winning
gubernatorial candidate in the province of Sorsogon on June 29, 1995 . . ." Accordingly, at
8:30 in the evening of June 30, 1995, Lee was proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 docketed as SPC No. 95-
317, praying for the annulment of the June 30, 1995 proclamation of Lee and for his own
proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath
of allegiance as a citizen of the Philippines after "his petition for repatriation under P.D.
725 which he filed with the Special Committee on Naturalization in September 1994 had
been granted". As such, when "the said order (dated June 21, 1995) (of the Comelec) . . .
was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening,
there was no more legal impediment to the proclamation (of Frivaldo) as governor . . ." In
the alternative, he averred that pursuant to the two cases of Labo vs. Comelec,12 the Vice-
Governor - not Lee - should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed
Resolution13 holding that Lee, "not having garnered the highest number of votes," was
not legally entitled to be proclaimed as duly-elected governor; and that Frivaldo, "having
garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under
the provisions of Presidential Decree No. 725 . . . (is) qualified to hold the office of
governor of Sorsogon"; thus:
PREMISES CONSIDERED, the Commission (First Division), therefore
RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation
of Raul R. Lee as Governor of Sorsogon is hereby ordered annulled,
being contrary to law, he not having garnered the highest number of
votes to warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee,
the Provincial Board of Canvassers is directed to immediately
reconvene and, on the basis of the completed canvass, proclaim
petitioner Juan G. Frivaldo as the duly elected Governor of Sorsogon
having garnered the highest number of votes, and he having
reacquired his Filipino citizenship by repatriation on June 30, 1995
under the provisions of Presidential Decree No. 725 and, thus,
qualified to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code
(B.P. Blg. 881), the Clerk of the Commission is directed to notify His
Excellency the President of the Philippines, and the Secretary of the
Sangguniang Panlalawigan of the Province of Sorsogon of this
resolution immediately upon the due implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration which was denied by the
Comelec en banc in its Resolution 14 promulgated on February 23, 1996. On February 26,
1996, the present petition was filed. Acting on the prayer for a temporary restraining
order, this Court issued on February 27, 1996 a Resolution which inter alia directed the
parties "to maintain the status quo prevailing prior to the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be capsulized in the
following propositions"15:
First -- The initiatory petition below was so far insufficient in form
and substance to warrant the exercise by the COMELEC of its
jurisdiction with the result that, in effect, the COMELEC acted without
jurisdiction in taking cognizance of and deciding said petition;
Second -- The judicially declared disqualification of respondent was a
continuing condition and rendered him ineligible to run for, to be
elected to and to hold the Office of Governor;
Third -- The alleged repatriation of respondent was neither valid nor
is the effect thereof retroactive as to cure his ineligibility and qualify
him to hold the Office of Governor; and
Fourth -- Correctly read and applied, the Labo Doctrine fully supports
the validity of petitioner's proclamation as duly elected Governor of
Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the first two of
which are also at issue in G.R. No. 123755, as follows:
1. Resolution16 of the Second Division, promulgated on May 1, 1995,
disqualifying Frivaldo from running for governor of Sorsogon in the
May 8, 1995 elections "on the ground that he is not a citizen of the
Philippines";
2. Resolution17 of the Comelec en banc, promulgated on May 11, 1995;
and
3. Resolution18 of the Comelec en banc, promulgated also on May 11,
1995 suspending the proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755. However,
Frivaldo assails the above-mentioned resolutions on a different ground: that under
Section 78 of the Omnibus Election Code, which is reproduced hereinunder:
Sec. 78. Petition to deny due course or to cancel a certificate of
candidacy. -- A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may
be filed at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be decided, after
 notice and hearing, not later than fifteen days before the election.
(Emphasis supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not
rendered "within the period allowed by law" i.e., "not later than fifteen days
before the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition
for disqualification within the period of fifteen days prior to the election as provided by
law is a jurisdictional defect which renders the said Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755
since they are intimately related in their factual environment and are identical in the
ultimate question raised, viz., who should occupy the position of governor of the
province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and required them
thereafter to file simultaneously their respective memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of
citizenship as to qualify him to be proclaimed and to hold the Office of Governor? If not,
may it be given retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a
continuing bar to his eligibility to run for, be elected to or hold the governorship of
Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No.
95-317 considering that said petition is not "a pre-proclamation case, an election protest
or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of
existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating
the assailed Resolutions, all of which prevented Frivaldo from assuming the
governorship of Sorsogon, considering that they were not rendered within the period
referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days
before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal
issue in this case. All the other matters raised are secondary to this.
The Local Government Code of 199119 expressly requires Philippine citizenship as a
qualification for elective local officials, including that of provincial governor, thus:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen
of the Philippines; a registered voter in the barangay, municipality,
city, or province or, in the case of a member of the sangguniang
panlalawigan, sangguniang panlungsod, or sangguniang bayan, the
district where he intends to be elected; a resident therein for at least
one (1) year immediately preceding the day of the election; and able
to read and write Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice
governor or member of the sangguniang
panlalawigan, or mayor, vice mayor or member of
the sangguniang panlungsod of highly urbanized
cities must be at least twenty-three (23) years of
age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it is therefore
incumbent upon him to show that he has reacquired citizenship; in fine, that he
possesses the qualifications prescribed under the said statute (R.A. 7160).
Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by
naturalization or by repatriation. Frivaldo told this Court in G.R. No. 104654 22 and during
the oral argument in this case that he tried to resume his citizenship by direct act of
Congress, but that the bill allowing him to do so "failed to materialize, notwithstanding
the endorsement of several members of the House of Representatives" due, according to
him, to the "maneuvers of his political rivals." In the same case, his attempt
at naturalization was rejected by this Court because of jurisdictional, substantial and
procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor
by the electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections,
57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he was
judicially declared a non-Filipino and thus twice disqualified from holding and
discharging his popular mandate. Now, he comes to us a third time, with a fresh vote
from the people of Sorsogon and a favorable decision from the Commission on Elections
to boot. Moreover, he now boasts of having successfully passed through the third and
last mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less
than the Solicitor General himself, who was the prime opposing counsel in the previous
cases he lost, this time, as counsel for co-respondent Comelec, arguing the validity of his
cause (in addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath
of allegiance under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not
disputed. Hence, he insists that he -- not Lee -- should have been proclaimed as the duly-
elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m.
on the said date since, clearly and unquestionably, he garnered the highest number of
votes in the elections and since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects,
which we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then
President Corazon Aquino exercising legislative powers under the Transitory Provisions
of the 1987 Constitution, forbade the grant of citizenship by Presidential Decree or
Executive Issuances as the same poses a serious and contentious issue of policy which
the present government, in the exercise of prudence and sound discretion, should best
leave to the judgment of the first Congress under the 1987 Constitution", adding that in
her memorandum dated March 27, 1987 to the members of the Special Committee on
Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino
directed them "to cease and desist from undertaking any and all proceedings within your
functional area of responsibility as defined under Letter of Instructions (LOI) No. 270
dated April 11, 1975, as amended."23
This memorandum dated March 27, 198724 cannot by any stretch of legal hermeneutics
be construed as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are
repealed only by subsequent ones 25 and a repeal may be express or implied. It is obvious
that no express repeal was made because then President Aquino in her memorandum --
based on the copy furnished us by Lee -- did not categorically and/or impliedly state that
P.D. 725 was being repealed or was being rendered without any legal effect. In fact, she
did not even mention it specifically by its number or text. On the other hand, it is a basic
rule of statutory construction that repeals by implication are not favored. An implied
repeal will not be allowed "unless it is convincingly and unambiguously demonstrated
that the two laws are clearly repugnant and patently inconsistent that they cannot co-
exist".26
The memorandum of then President Aquino cannot even be regarded as a legislative
enactment, for not every pronouncement of the Chief Executive even under the
Transitory Provisions of the 1987 Constitution can nor should be regarded as an exercise
of her law-making powers. At best, it could be treated as an executive policy addressed to
the Special Committee to halt the acceptance and processing of applications for
repatriation pending whatever "judgment the first Congress under the 1987
Constitution" might make. In other words, the former President did not repeal P.D. 725
but left it to the first Congress -- once created -- to deal with the matter. If she had
intended to repeal such law, she should have unequivocally said so instead of referring
the matter to Congress. The fact is she carefully couched her presidential issuance in
terms that clearly indicated the intention of "the present government, in the exercise of
prudence and sound discretion" to leave the matter of repeal to the new Congress. Any
other interpretation of the said Presidential Memorandum, such as is now being
proffered to the Court by Lee, would visit unmitigated violence not only upon statutory
construction but on common sense as well.
Second, Lee also argues that "serious congenital irregularities flawed the repatriation
proceedings," asserting that Frivaldo's application therefor was "filed on June 29, 1995 . .
. (and) was approved in just one day or on June 30, 1995 . . .", which "prevented a
judicious review and evaluation of the merits thereof." Frivaldo counters that he filed his
application for repatriation with the Office of the President in Malacañang Palace on
August 17, 1994. This is confirmed by the Solicitor General. However, the Special
Committee was reactivated only on June 8, 1995, when presumably the said Committee
started processing his application. On June 29, 1995, he filled up and re-submitted the
FORM that the Committee required. Under these circumstances, it could not be said that
there was "indecent haste" in the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee on
Naturalization was intended solely for the personal interest of respondent," 27 the
Solicitor General explained during the oral argument on March 19, 1996 that such
allegation is simply baseless as there were many others who applied and were
considered for repatriation, a list of whom was submitted by him to this Court, through a
Manifestation28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of
regularity in the performance of official duty and the presumption of legality in the
repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that
the proceedings were speeded up is by itself not a ground to conclude that such
proceedings were necessarily tainted. After all, the requirements of repatriation under
P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In
fact, P.D.
72529 itself requires very little of an applicant, and even the rules and regulations to
implement the said decree were left to the Special Committee to promulgate. This is not
unusual since, unlike in naturalization where an alien covets a first-time entry into
Philippine political life, in repatriation the applicant is a former natural-born Filipino
who is merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he
was undoubtedly a natural-born citizen who openly and faithfully served his country and
his province prior to his naturalization in the United States -- a naturalization he insists
was made necessary only to escape the iron clutches of a dictatorship he abhorred and
could not in conscience embrace -- and who, after the fall of the dictator and the re-
establishment of democratic space, wasted no time in returning to his country of birth to
offer once more his talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were
granted repatriation argues convincingly and conclusively against the existence of
favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality of
Frivaldo's repatriation should have been pursued before the Committee itself, and,
failing there, in the Office of the President, pursuant to the doctrine of exhaustion of
administrative remedies.
Third, Lee further contends that assuming the assailed repatriation to be valid,
nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the
citizenship qualification prescribed by the Local Government Code "must exist on the
date of his election, if not when the certificate of candidacy is filed," citing our decision in
G.R. 10465430 which held that "both the Local Government Code and the Constitution
require that only Philippine citizens can run and be elected to public office." Obviously,
however, this was a mere obiter as the only issue in said case was whether Frivaldo's
naturalization was valid or not -- and NOT the effective date thereof. Since the Court held
his naturalization to be invalid, then the issue of when an aspirant for public office
should be a citizen was NOT resolved at all by the Court. Which question we shall now
directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province . . .
where he intends to be elected;
* a resident therein for at least one (1) year immediately preceding
the day of the election;
* able to read and write Filipino or any other local language or dialect.
* In addition, "candidates for the position of governor . . . must be at
least twenty-three (23) years of age on election day.
From the above, it will be noted that the law does not specify any particular date or time
when the candidate must possess citizenship, unlike that for residence (which must
consist of at least one year's residency immediately preceding the day of election) and age
(at least twenty three years of age on election day).
Philippine citizenship is an indispensable requirement for holding an elective public
office,31 and the purpose of the citizenship qualification is none other than to ensure that
no alien, i.e., no person owing allegiance to another nation, shall govern our people and
our country or a unit of territory thereof. Now, an official begins to govern or to
discharge his functions only upon his proclamation and on the day the law mandates his
term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 -- the
very day32 the term of office of governor (and other elective officials) began -- he was
therefore already qualified to be proclaimed, to hold such office and to discharge the
functions and responsibilities thereof as of said date. In short, at that time, he was
already qualified to govern his native Sorsogon. This is the liberal interpretation that
should give spirit, life and meaning to our law on qualifications consistent with the
purpose for which such law was enacted. So too, even from a literal (as distinguished
from liberal) construction, it should be noted that Section 39 of the Local Government
Code speaks of "Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then
should such qualification be required at the time of election or at the time of the filing of
the certificates of candidacies, as Lee insists? Literally, such qualifications -- unless
otherwise expressly conditioned, as in the case of age and residence -- should thus be
possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is
proclaimed and at the start of his term -- in this case, on June 30, 1995. Paraphrasing this
Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the
citizenship requirement is to ensure that our people and country do not end up being
governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose
would not be thwarted but instead achieved by construing the citizenship qualification as
applying to the time of proclamation of the elected official and at the start of his term.
But perhaps the more difficult objection was the one raised during the oral
argument34 to the effect that the citizenship qualification should be possessed at the time
the candidate (or for that matter the elected official) registered as a voter. After all,
Section 39, apart from requiring the official to be a citizen, also specifies as another item
of qualification, that he be a "registered voter". And, under the law 35 a "voter" must be a
citizen of the Philippines. So therefore, Frivaldo could not have been a voter -- much less
a validly registered one -- if he was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the requirement. If
the law intended the citizenship qualification to be possessed prior to election consistent
with the requirement of being a registered voter, then it would not have made
citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands
to reason that the law intended CITIZENSHIP to be a qualification distinct from being a
VOTER, even if being a voter presumes being a citizen first. It also stands to reason that
the voter requirement was included as another qualification (aside from "citizenship"),
not to reiterate the need for nationality but to require that the official be registered as a
voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered
voter in the barangay, municipality, city, or province . . . where he intends to be elected."
It should be emphasized that the Local Government Code requires an elective official to
be a registered voter. It does not require him to vote actually. Hence, registration -- not
the actual voting -- is the core of this "qualification". In other words, the law's purpose in
this second requirement is to ensure that the prospective official is actually registered in
the area he seeks to govern -- and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -- that
he "was and is a registered voter of Sorsogon, and his registration as a voter has been
sustained as valid by judicial declaration . . . In fact, he cast his vote in his precinct on May
8, 1995."36
So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo
has always been a registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then
he voted again in 1995. In fact, his eligibility as a voter was questioned, but the court
dismissed (sic) his eligibility as a voter and he was allowed to vote as in fact, he voted in
all the previous elections including on May 8, 1995."3 7
It is thus clear that Frivaldo is a registered voter in the province where he intended to be
elected.
There is yet another reason why the prime issue of citizenship should be reckoned from
the date of proclamation, not necessarily the date of election or date of filing of the
certificate of candidacy. Section 253 of the Omnibus Election Code 38 gives any voter,
presumably including the defeated candidate, the opportunity to question the
ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that
authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility
arising from failure to meet the qualifications enumerated under Sec. 39 of the Local
Government Code. Such remedy of Quo Warranto can be availed of "within ten days after
proclamation" of the winning candidate. Hence, it is only at such time that the issue of
ineligibility may be taken cognizance of by the Commission. And since, at the very
moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already
and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of
the same day, then he should have been the candidate proclaimed as he unquestionably
garnered the highest number of votes in the immediately preceding elections and such
oath had already cured his previous "judicially-declared" alienage. Hence, at such time,
he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the repatriation of
Frivaldo RETROACTED to the date of the filing of his application on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive
effect, unless the contrary is provided." But there are settled exceptions 40 to this general
rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES
NEW RIGHTS.
According to Tolentino,41 curative statutes are those which undertake to cure errors and
irregularities, thereby validating judicial or administrative proceedings, acts of public
officers, or private deeds and contracts which otherwise would not produce their intended
consequences by reason of some statutory disability or failure to comply with some
technical requirement. They operate on conditions already existing, and are necessarily
retroactive in operation. Agpalo,42 on the other hand, says that curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing obligations .
. . (and) are intended to supply defects, abridge superfluities in existing laws, and curb
certain evils. . . . By their very nature, curative statutes are retroactive . . . (and) reach
back to past events to correct errors or irregularities and to render valid and effective
attempted acts which would be otherwise ineffective for the purpose the parties
intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies
or modes of procedure, which do not create new or take away vested rights, but only
operate in furtherance of the remedy or confirmation of such rights, ordinarily do not
come within the legal meaning of a retrospective law, nor within the general rule against
the retrospective operation of statutes.43
A reading of P.D. 725 immediately shows that it creates a new right, and also provides for
a new remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725
expressly recognizes the plight of "many Filipino women (who) had lost their Philippine
citizenship by marriage to aliens" and who could not, under the existing law (C.A. No. 63,
as amended) avail of repatriation until "after the death of their husbands or the
termination of their marital status" and who could neither be benefitted by the 1973
Constitution's new provision allowing "a Filipino woman who marries an alien to retain
her Philippine citizenship . . ." because "such provision of the new Constitution does not
apply to Filipino women who had married aliens before said constitution took effect."
Thus, P.D. 725 granted a new right to these women -- the right to re-acquire Filipino
citizenship even during their marital coverture, which right did not exist prior to P.D.
725. On the other hand, said statute also provided a new remedy and a new right in favor
of other "natural born Filipinos who (had) lost their Philippine citizenship but now
desire to re-acquire Philippine citizenship", because prior to the promulgation of P.D.
725 such former Filipinos would have had to undergo the tedious and cumbersome
process of naturalization, but with the advent of P.D. 725 they could now re-acquire their
Philippine citizenship under the simplified procedure of repatriation.
The Solicitor General44 argues:
By their very nature, curative statutes are retroactive, (DBP vs. CA, 96
SCRA 342), since they are intended to supply defects, abridge
superfluities in existing laws (Del Castillo vs. Securities and Exchange
Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14
SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing
naturalization law, specifically C.A. No. 63 wherein married Filipino
women are allowed to repatriate only upon the death of their
husbands, and natural-born Filipinos who lost their citizenship by
naturalization and other causes faced the difficulty of undergoing the
rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by
naturalization.
Presidential Decree No. 725 provided a remedy for the
aforementioned legal aberrations and thus its provisions are
considered essentially remedial and curative.
In light of the foregoing, and prescinding from the wording of the preamble, it is
unarguable that the legislative intent was precisely to give the statute retroactive
operation. "(A) retrospective operation is given to a statute or amendment where the
intent that it should so operate clearly appears from a consideration of the act as a
whole, or from the terms thereof."45 It is obvious to the Court that the statute was meant
to "reach back" to those persons, events and transactions not otherwise covered by
prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a
political and civil right equally as important as the freedom of speech, liberty of abode,
the right against unreasonable searches and seizures and other guarantees enshrined in
the Bill of Rights, therefore the legislative intent to give retrospective operation to P.D.
725 must be given the fullest effect possible. "(I)t has been said that a remedial statute
must be so construed as to make it effect the evident purpose for which it was enacted, so
that if the reason of the statute extends to past transactions, as well as to those in the
future, then it will be so applied although the statute does not in terms so direct, unless
to do so would impair some vested right or violate some constitutional guaranty."46 This
is all the more true of P.D. 725, which did not specify any restrictions on or delimit or
qualify the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit
Frivaldo considering that said law was enacted on June 5, 1975, while Frivaldo lost his
Filipino citizenship much later, on January 20, 1983, and applied for repatriation even
later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo became an
American citizen, nevertheless, it is not only the law itself (P.D. 725) which is to be given
retroactive effect, but even the repatriation granted under said law to Frivaldo on June
30, 1995 is to be deemed to have retroacted to the date of his application therefor,
August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of
the legislative authority that the law should apply to past events -- i.e., situations and
transactions existing even before the law came into being -- in order to benefit the
greatest number of former Filipinos possible thereby enabling them to enjoy and
exercise the constitutionally guaranteed right of citizenship, and such legislative
intention is to be given the fullest effect and expression, then there is all the more reason
to have the law apply in a retroactive or retrospective manner to situations, events and
transactions subsequent to the passage of such law. That is, the repatriation granted to
Frivaldo on June 30, 1995 can and should be made to take effect as of date of his
application. As earlier mentioned, there is nothing in the law that would bar this or
would show a contrary intention on the part of the legislative authority; and there is no
showing that damage or prejudice to anyone, or anything unjust or injurious would
result from giving retroactivity to his repatriation. Neither has Lee shown that there will
result the impairment of any contractual obligation, disturbance of any vested right or
breach of some constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal
interpretation of Philippine laws and whatever defects there were in his nationality
should now be deemed mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would prevent prejudice
to applicants. If P.D. 725 were not to be given retroactive effect, and the Special
Committee decides not to act, i.e., to delay the processing of applications for any
substantial length of time, then the former Filipinos who may be stateless, as Frivaldo --
having already renounced his American citizenship -- was, may be prejudiced for causes
outside their control. This should not be. In case of doubt in the interpretation or
application of laws, it is to be presumed that the law-making body intended right and
justice to prevail.4 7
And as experience will show, the Special Committee was able to process, act upon and
grant applications for repatriation within relatively short spans of time after the same
were filed.48 The fact that such interregna were relatively insignificant minimizes the
likelihood of prejudice to the government as a result of giving retroactivity to
repatriation. Besides, to the mind of the Court, direct prejudice to the government is
possible only where a person's repatriation has the effect of wiping out a liability of his
to the government arising in connection with or as a result of his being an alien, and
accruing only during the interregnum between application and approval, a situation that
is not present in the instant case.
And it is but right and just that the mandate of the people, already twice frustrated,
should now prevail. Under the circumstances, there is nothing unjust or iniquitous in
treating Frivaldo's repatriation as having become effective as of the date of his
application, i.e., on August 17, 1994. This being so, all questions about his possession of
the nationality qualification -- whether at the date of proclamation (June 30, 1995) or the
date of election (May 8, 1995) or date of filing his certificate of candidacy (March 20,
1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a registered voter
would also be deemed settled. Inasmuch as he is considered as having been repatriated --
i.e., his Filipino citizenship restored -- as of August 17, 1994, his previous registration as
a voter is likewise deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the
retroactivity of his repatriation not effectively give him dual citizenship, which under
Sec. 40 of the Local Government Code would disqualify him "from running for any
elective local position?"49 We answer this question in the negative, as there is cogent
reason to hold that Frivaldo was really STATELESS at the time he took said oath of
allegiance and even before that, when he ran for governor in 1988. In his Comment,
Frivaldo wrote that he "had long renounced and had long abandoned his American
citizenship -- long before May 8, 1995. At best, Frivaldo was stateless in the interim --
when he abandoned and renounced his US citizenship but before he was repatriated to
his Filipino citizenship."50
On this point, we quote from the assailed Resolution dated December 19, 1995: 51
By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in 1992, and in 1995.
Every certificate of candidacy contains an oath of allegiance to the
Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before the
elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that
such findings of the Commission are conclusive upon this Court, absent any showing of
capriciousness or arbitrariness or
abuse.52
The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA
No. 95-028 as affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995
"became final and executory after five (5) days or on May 17, 1995, no restraining order
having been issued by this Honorable Court.54 Hence, before Lee "was proclaimed as the
elected governor on June 30, 1995, there was already a final and executory judgment
disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now
concedes were legally "correct") declaring Frivaldo an alien have also become final and
executory way before the 1995 elections, and these "judicial pronouncements of his
political status as an American citizen absolutely and for all time disqualified (him) from
running for, and holding any public office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was
rendered in connection with the 1988 elections while that in G.R. No. 104654 was in
connection with the 1992 elections. That he was disqualified for such elections is final
and can no longer be changed. In the words of the respondent Commission (Second
Division) in its assailed Resolution:55
The records show that the Honorable Supreme Court had decided that
Frivaldo was not a Filipino citizen and thus disqualified for the
purpose of the 1988 and 1992 elections. However, there is no record
of any "final judgment" of the disqualification of Frivaldo as a
candidate for the May 8, 1995 elections. What the Commission said in
its Order of June 21, 1995 (implemented on June 30, 1995), directing
the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino
citizen "having been declared by the Supreme Court in its Order dated
March 25, 1995, not a citizen of the Philippines." This declaration of the
Supreme Court, however, was in connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a
person's future status with finality. This is because a person may subsequently reacquire,
or for that matter lose, his citizenship under any of the modes recognized by law for the
purpose. Hence, in Lee vs. Commissioner of Immigration,56 we held:
Everytime the citizenship of a person is material or indispensable in a
judicial or administrative case, whatever the corresponding court or
administrative authority decides therein as to such citizenship is
generally not considered res judicata, hence it has to be threshed out
again and again, as the occasion demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in
SPC No. 95-317 because the only "possible types of proceedings that may be entertained
by the Comelec are a pre-proclamation case, an election protest or a quo warranto case".
Again, Lee reminds us that he was proclaimed on June 30, 1995 but that Frivaldo filed
SPC No. 95-317 questioning his (Lee's) proclamation only on July 6, 1995 -- "beyond the
5-day reglementary period." Hence, according to him, Frivaldo's "recourse was to file
either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution57 has given the Comelec ample
power to "exercise exclusive original jurisdiction over all contests relating to the
elections, returns and qualifications of all elective . . . provincial . . . officials." Instead of
dwelling at length on the various petitions that Comelec, in the exercise of its
constitutional prerogatives, may entertain, suffice it to say that this Court has invariably
recognized the Commission's authority to hear and decide petitions for annulment of
proclamations -- of which SPC No. 95-317 obviously is one.58 Thus, in Mentang
vs. COMELEC,59 we ruled:
The petitioner argues that after proclamation and assumption of
office, a pre-proclamation controversy is no longer viable. Indeed, we
are aware of cases holding that pre-proclamation controversies may
no longer be entertained by the COMELEC after the winning candidate
has been proclaimed. (citing Gallardo vs. Rimando, 187 SCRA 463;
Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171
SCRA 468.) This rule, however, is premised on an assumption that the
proclamation is no proclamation at all and the proclaimed candidate's
assumption of office cannot deprive the COMELEC of the power to
make such declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA
883; Agbayani vs. COMELEC, 186 SCRA 484.)
The Court however cautioned that such power to annul a proclamation must "be done
within ten (10) days following the proclamation." Inasmuch as Frivaldo's petition was
filed only six (6) days after Lee's proclamation, there is no question that the Comelec
correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him for the following
reasons:
First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he (Lee)
was not the choice of the sovereign will," and in Aquino vs. COMELEC,61 Lee is "a second
placer, . . . just that, a second placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of this
Court in the aforesaid Labo62 case, as follows:
The rule would have been different if the electorate fully aware in fact
and in law of a candidate's disqualification so as to bring such
awareness within the realm of notoriety, would nonetheless cast their
votes in favor of the ineligible candidate. In such case, the electorate
may be said to have waived the validity and efficacy of their votes by
notoriously misapplying their franchise or throwing away their votes,
in which case, the eligible candidate obtaining the next higher number
of votes may be deemed elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the instant dispute. It has not
been shown, and none was alleged, that petitioner Labo was
notoriously known as an ineligible candidate, much less the electorate
as having known of such fact. On the contrary, petitioner Labo was
even allowed by no less than the Comelec itself in its resolution dated
May 10, 1992 to be voted for the office of the city Payor as its
resolution dated May 9, 1992 denying due course to petitioner Labo's
 certificate of candidacy had not yet become final and subject to the
final outcome of this case.
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this
case because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when
the Comelec's cancellation of his certificate of candidacy was not yet final on election day
as there was in both cases a pending motion for reconsideration, for which reason
Comelec issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and
several others can still be voted for in the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show that the electorate
of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as
to "bring such awareness within the realm of notoriety;" in other words, that the voters
intentionally wasted their ballots knowing that, in spite of their voting for him, he was
ineligible. If Labo has any relevance at all, it is that the vice-governor -- and not Lee --
should be pro- claimed, since in losing the election, Lee was, to paraphrase Labo again,
"obviously not the choice of the people" of Sorsogon. This is the emphatic teaching
of Labo:
The rule, therefore, is: the ineligibility of a candidate receiving
majority votes does not entitle the eligible candidate receiving the
next highest number of votes to be declared elected. A minority or
defeated candidate cannot be deemed elected to the office.
Second. As we have earlier declared Frivaldo to have seasonably reacquired his
citizenship and inasmuch as he obtained the highest number of votes in the 1995
elections, he -- not Lee -- should be proclaimed. Hence, Lee's proclamation was patently
erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second
Division) dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995
disqualifying him for want of citizenship should be annulled because they were rendered
beyond the fifteen (15) day period prescribed by Section 78, of the Omnibus Election
Code which reads as follows:
Sec. 78. Petition to deny due course or to cancel a certificate of
candidacy. -- A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may
be filed at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be decided after
notice and hearing, not later than fifteen days before the election.
(Emphasis supplied.)
This claim is now moot and academic inasmuch as these resolutions are deemed
superseded by the subsequent ones issued by the Commission (First Division) on
December 19, 1995, affirmed en banc63 on February 23, 1996; which both upheld his
election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A.
No. 6646 authorizes the Commission to try and decide petitions for disqualifications
even after the elections, thus:
Sec. 6. Effect of Disqualification Case. -- Any candidate who has been
declared by final judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of
votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest and upon motion of
the complainant or any intervenor, may during the pendency thereof
order the suspension of the proclamation of such candidate whenever
the evidence of his guilt is strong. (emphasis supplied)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that
President Aquino's memorandum dated March 27, 1987 should be viewed as a
suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a
suspension or a repeal is a purely academic distinction because the said issuance is not a
statute that can amend or abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in the first Frivaldo
case;64 viz., "(u)nder CA No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine
citizenship maybe reacquired by . . . repatriation". He also contends that by allowing
Frivaldo to register and to remain as a registered voter, the Comelec and in effect this
Court abetted a "mockery" of our two previous judgments declaring him a non-citizen.
We do not see such abetting or mockery. The retroactivity of his repatriation, as
discussed earlier, legally cured whatever defects there may have been in his registration
as a voter for the purpose of the 1995 elections. Such retroactivity did not change his
disqualifications in 1988 and 1992, which were the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the
ineligibility of a candidate, citing the Comelec's authority under Section 78 of the
Omnibus Election Code allowing the denial of a certificate of candidacy on the ground of
a false material representation therein as required by Section 74. Citing Loong, he then
states his disagreement with our holding that Section 78 is merely directory. We really
have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295
that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were
invalid because they were issued "not later than fifteen days before the election" as
prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the
Comelec did not commit grave abuse of discretion because "Section 6 of R.A. 6646
authorizes the Comelec to try and decide disqualifications even after the elections." In
spite of his disagreement with us on this point, i.e., that Section 78 "is merely directory",
we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No.
120295". One other point. Loong, as quoted in the dissent, teaches that a petition to deny
due course under Section 78 must be filed within the 25-day period prescribed therein.
The present case however deals with the period during which the Comelec
may decide such petition. And we hold that it may be decided even after the fifteen
day period mentioned in Section 78. Here, we rule that a decision promulgated by the
Comelec even after the elections is valid but Loong held that a petition filed beyond the
25-day period is out of time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual
circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that
such retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even
the second Frivaldo) decision did not directly involve repatriation as a mode of acquiring
citizenship. If we may repeat, there is no question that Frivaldo was not a Filipino for
purposes of determining his qualifications in the 1988 and 1992 elections. That is
settled. But his supervening repatriation has changed his political status -- not in 1988 or
1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless prior to his
repatriation, saying that "informal renunciation or abandonment is not a ground to lose
American citizenship". Since our courts are charged only with the duty of determining
who are Philippine nationals, we cannot rule on the legal question of who are or who are
not Americans. It is basic in international law that a State determines ONLY those who
are its own citizens -- not who are the citizens of other countries.65 The issue here is: the
Comelec made a finding of fact that Frivaldo was stateless and such finding has not been
shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding
is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in
all three previous elections, should be declared winner because "Frivaldo's ineligibility
for being an American was publicly known". First, there is absolutely no empirical
evidence for such "public" knowledge. Second, even if there is, such knowledge can be
truepost facto only of the last two previous elections. Third, even the Comelec and now
this Court were/are still deliberating on his nationality before, during and after the 1995
elections. How then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the
qualifications of electivelocal officials, i.e., candidates, and not elected officials, and that
the citizenship qualification [under par. (a) of that section] must be possessed by
candidates, not merely at the commencement of the term, but by election day at the
latest. We see it differently. Section 39, par. (a) thereof speaks of "elective local official"
while par. (b) to (f) refer to "candidates". If the qualifications under par. (a) were
intended to apply to "candidates" and not elected officials, the legislature would have
said so, instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if
Congress had meant that the citizenship qualification should be possessed at election day
or prior thereto, it would have specifically stated such detail, the same way it did in pars.
(b) to (f) far other qualifications of candidates for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation
on the ground, among others, that the law specifically provides that it is only after taking
the oath of allegiance that applicants shall be deemed to have reacquired Philippine
citizenship. We do not question what the provision states. We hold however that the
provision should be understood thus: that after taking the oath of allegiance the
applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or
repatriation) is deemed for all purposes and intents to have retroacted to the date of his
application therefor.
In any event, our "so too" argument regarding the literal meaning of the word "elective"
in reference to Section 39 of the Local Authority Code, as well as regarding Mr. Justice
Davide's thesis that the very wordings of P.D. 725 suggest non-retroactivity, were
already taken up rather extensively earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to
uphold the Rule of Law." We agree -- we must all follow the rule of law. But that is NOT
the issue here. The issue is how should the law be interpreted and applied in this case so
it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and perception of
how to interpret and apply laws relating to elections: literal or liberal; the letter or the
spirit, the naked provision or its ultimate purpose; legal syllogism or substantial justice;
in isolation or in the context of social conditions; harshly against or gently in favor of the
voters' obvious choice. In applying election laws, it would be far better to err in favor of
popular sovereignty than to be right in complex but little understood legalisms. Indeed,
to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute
unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government Code is to be
possessed by an elective official at the latest as of the time he is proclaimed and at the
start of the term of office to which he has been elected. We further hold P.D. No. 725 to be
in full force and effect up to the present, not having been suspended or repealed
expressly nor impliedly at any time, and Frivaldo's repatriation by virtue thereof to have
been properly granted and thus valid and effective. Moreover, by reason of the remedial
or curative nature of the law granting him a new right to resume his political status and
the legislative intent behind it, as well as his unique situation of having been forced to
give up his citizenship and political aspiration as his means of escaping a regime he
abhorred, his repatriation is to be given retroactive effect as of the date of his application
therefor, during the pendency of which he was stateless, he having given up his U.S.
nationality. Thus, in contemplation of law, he possessed the vital requirement of Filipino
citizenship as of the start of the term of office of governor, and should have been
proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted
to August 17, 1994, his registration as a voter of Sorsogon is deemed to have been
validated as of said date as well. The foregoing, of course, are precisely consistent with
our holding that lack of the citizenship requirement is not a continuing disability or
disqualification to run for and hold public office. And once again, we emphasize herein
our previous rulings recognizing the Comelec's authority and jurisdiction to hear and
decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws of our
country to give fullest effect to the manifest will of our people, 66 for in case of doubt,
political laws must be interpreted to give life and spirit to the popular mandate freely
expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot
stand in the way of the sovereign will. Consistently, we have held:
. . . (L)aws governing election contests must be liberally construed to
the end that the will of the people in the choice of public officials may
not be defeated by mere technical objections (citations omitted).67
but beloved land of birth. He therefore deserves every liberal interpretation of the law
which can be applied in his favor. And in the final analysis, over and above Frivaldo
himself, the indomitable people of Sorsogon most certainly deserve to be governed by a
leader of their overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the
respondent Commission are AFFIRMED.

The law and the courts must accord Frivaldo every possible protection, defense and (2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In
refuge, in deference to the popular will. Indeed, this Court has repeatedly stressed the any event, it has no merit.
importance of giving effect to the sovereign will in order to ensure the survival of our
democracy. In any action involving the possibility of a reversal of the popular electoral
choice, this Court must exert utmost effort to resolve the issues in a manner that would No costs.
give effect to the will of the majority, for it is merely sound public policy to cause elective
offices to be filled by those who are the choice of the majority. To successfully challenge a SO ORDERED.
winning candidate's qualifications, the petitioner must clearly demonstrate that the
ineligibility is so patently antagonistic68 to constitutional and legal principles that
overriding such ineligibility and thereby giving effect to the apparent will of the people,
would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote. In this
undertaking, Lee has miserably failed.

In Frivaldo's case. it would have been technically easy to find fault with his cause. The
Court could have refused to grant retroactivity to the effects of his repatriation and hold
him still ineligible due to his failure to show his citizenship at the time he registered as a
voter before the 1995 elections. Or, it could have disputed the factual findings of the
Comelec that he was stateless at the time of repatriation and thus hold his consequent
dual citizenship as a disqualification "from running for any elective local position." But
the real essence of justice does not emanate from quibblings over patchwork legal
technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as
a brick in the ultimate development of the social edifice. Thus, the Court struggled
against and eschewed the easy, legalistic, technical and sometimes harsh anachronisms
of the law in order to evoke substantial justice in the larger social context consistent with
Frivaldo's unique situation approximating venerability in Philippine political life.
Concededly, he sought American citizenship only to escape the clutches of the
dictatorship. At this stage, we cannot seriously entertain any doubt about his loyalty and
dedication to this country. At the first opportunity, he returned to this land, and sought
to serve his people once more. The people of Sorsogon overwhelmingly voted for him
three times. He took an oath of allegiance to this Republic every time he filed his
certificate of candidacy and during his failed naturalization bid. And let it not be
overlooked, his demonstrated tenacity and sheer determination to re-assume his
nationality of birth despite several legal set-backs speak more loudly, in spirit, in fact and
in truth than any legal technicality, of his consuming intention and burning desire to re-
embrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to
and love of country as well as nobility of purpose cannot be lost on this Court of justice
and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured
of a life of ease and plenty as a citizen of the most powerful country in the world. But he
opted, nay, single-mindedly insisted on returning to and serving once more his struggling
G.R. No. 113213 August 15, 1994
PAUL JOSEPH WRIGHT, petitioner,
vs.
HON. COURT OF APPEALS, HON. JUDGE JOSE DE LA RAMA, RTC, BRANCH 139,
MAKATI, M.M. and HON. FRANK DRILON, SECRETARY OF JUSTICE, respondents.
Rodrigo E. Mallari for petitioner.
Aurora Salva Bautista collaborating for petitioner.
KAPUNAN, J.:
A paramount principle of the law of extradition provides that a State may not surrender
any individual for any offense not included in a treaty of extradition. This principle arises
from the reality of extradition as a derogation of sovereignty. Extradition is an intrusion
into the territorial integrity of the host State and a delimitation of the sovereign power of
the State within its own territory. 1 The act of extraditing amounts to a "delivery by the
State of a person accused or convicted of a crime, to another State within whose
territorial jurisdiction, actual or constructive, it was committed and which asks for his
surrender with a view to execute justice." 2 As it is an act of "surrender" of an individual
found in a sovereign State to another State which demands his surrender 3 , an act of
extradition, even with a treaty rendered executory upon ratification by appropriate
authorities, does not imposed an obligation to extradite on the requested State until the
latter has made its own determination of the validity of the requesting State's demand, in
accordance with the requested State's own interests.
The principles of international law recognize no right of extradition apart from that
arising from treaty. 4 Pursuant to these principles, States enter into treaties of extradition
principally for the purpose of bringing fugitives of justice within the ambit of their laws,
under conventions recognizing the right of nations to mutually agree to surrender
individuals within their jurisdiction and control, and for the purpose of enforcing their
respective municipal laws. Since punishment of fugitive criminals is dependent mainly
on the willingness of host State to apprehend them and revert them to the State where
their offenses were committed, 5 jurisdiction over such fugitives and subsequent
enforcement of penal laws can be effectively accomplished only by agreement between
States through treaties of extradition.
Desiring to make more effective cooperation between Australia and the Government of
the Philippines in the suppression of crime, 6 the two countries entered into a Treaty of
Extradition on the 7th of March 1988. The said treaty was ratified in accordance with the
provisions of Section 21, Article VII of the 1987 Constitution in a Resolution adopted by
the Senate on September 10, 1990 and became effective thirty (30) days after both States
notified each other in writing that the respective requirements for the entry into force of
the Treaty have been complied with. 7
The Treaty adopts a "non-list, double criminality approach" which provides for broader
coverage of extraditable offenses between the two countries and (which) embraces
crimes punishable by imprisonment for at least one (1) year. Additionally, the Treaty
allows extradition for crimes committed prior to the treaty's date of effectivity, provided
that these crimes were in the statute books of the requesting State at the time of their
commission.
Under the Treaty, each contracting State agrees to extradite. . . "persons
. . . wanted for prosecution of the imposition or enforcement of a sentence in the
Requesting State for an extraditable offense." 8 A request for extradition requires, if the
person is accused of an offense, the furnishing by the requesting State of either a warrant
for the arrest or a copy of the warrant of arrest of the person, or, where appropriate, a
copy of the relevant charge against the person sought to be extradited. 9
In defining the extraditable offenses, the Treaty includes all offenses "punishable under
the Laws of both Contracting States by imprisonment for a period of at least one (1) year,
or by a more severe penalty." 10 For the purpose of the definition, the Treaty states that:
(a) an offense shall be an extraditable offense whether or not the laws
of the Contracting States place the offense within the same category or
denominate the offense by the same terminology;
(b) the totality of the acts or omissions alleged against the person
whose extradition is requested shall be taken into account in
determining the constituent elements of the offense. 11
Petitioner, an Australian Citizen, was sought by Australian authorities for indictable
crimes in his country. Extradition proceedings were filed before the Regional Trial Court
of Makati, which rendered a decision ordering the deportation of petitioner. Said
decision was sustained by the Court of Appeals; hence, petitioner came to this Court by
way of review on certiorari, to set aside the order of deportation. Petitioner contends
that the provision of the Treaty giving retroactive effect to the extradition treaty
amounts to an ex post facto law which violates Section 21 of Article VI of the Constitution.
He assails the trial court's decision ordering his extradition, arguing that the evidence
adduced in the court below failed to show that he is wanted for prosecution in his
country. Capsulized, all the principal issues raised by the petitioner before this Court
strike at the validity of the extradition proceedings instituted by the government against
him.
The facts, as found by the Court of Appeals, 12 are undisputed:
On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the
Department of Foreign Affairs indorsed to the Department of Justice
Diplomatic Note No. 080/93 dated February 19, 1993 from the
Government of Australia to the Department of Justice through
Attorney General Michael Duffy. Said Diplomatic Note was a formal
request for the extradition of Petitioner Paul Joseph Wright who is
wanted for the following indictable crimes:
1. Wright/Orr Matter — one count of Obtaining Property by
Deception contrary to Section 81(1) of the Victorian Crimes Act of
1958; and
2. Wright/Cracker Matter — Thirteen (13) counts of Obtaining
Properties by Deception contrary to Section 81(1) of the Victorian
Crimes Act of 1958; one count of attempting to Obtain Property by
Deception contrary to Section 321(m) of Victorian Crimes Act of 1958;
and one count of Perjury contrary to Section 314 of Victorian Crimes
Act of 1958, which crimes were allegedly committed in the following
manner:
The one (1) count of Obtaining Property by
Deception contrary to Section 81 (1) of the
Victorian Crimes Act of 1958 constitutes in Mr.
Wright's and co-offender, Herbert Lance Orr's,
dishonesty in obtaining $315,250 from Mulcahy,
Mendelson and Round Solicitors (MM7R), secured
by a mortgage on the property in Bangholme,
Victoria owned by Ruven Nominees Pty. Ltd., a
company controlled by a Rodney and a Mitchell, by
falsely representing that all the relevant legal
documents relating to the mortgage had been
signed by Rodney and Janine Mitchell.
The thirteen (13) counts of Obtaining Property by
Deception contrary to Section 81(1) of the
Victorian Crimes Act of 1958 constitutes in Mr.
Wright's and co-offender Mr. John Carson Craker's
receiving a total of approximately 11.2 in
commission (including $367,044 in bonus
commission) via Amazon Bond Pty. Ltd., depending
on the volume of business written, by submitting
two hundred fifteen (215) life insurance proposals,
and paying premiums thereon (to the acceptance of
the policies and payment of commissions) to the
Australian Mutual Provident (AMP) Society
through the Office of Melbourne Mutual Insurance,
of which respondent is an insurance agent, out of
which life proposals none are in existence and
approximately 200 of which are alleged to have
been false, in one or more of the following ways:
( i ) some policy-holders signed up only because
they were told the policies were free (usually for 2
years) and no payments were required.
(ii) some policy-holders were offered cash
inducements ($50 or $100) to sign and had to
supply a bank account no longer used (at which a
direct debit request for payment of premiums
would apply). These policy-holders were also told
no payments by them were required.
(iii) some policy-holders were introduced through
the "Daily Personnel Agency", and again were told
the policies were free for 2 years as long as an
unused bank account was applied.
(iv) some policy-holders were found not to exist.
The one count of Attempting to Obtain Property by
Deception contrary to Section 321(m) of the
Victorian Crimes Act of 1958 constitutes in Mr.
Wright's and Mr. Craker's attempting to cause the
payment of $2,870.68 commission to a bank
account in the name of Amazon Bond Pty. Ltd. by
submitting one proposal for Life Insurance to the
AMP Society, the policy-holder of which does not
exist with the end in view of paying the premiums
thereon to insure acceptance of the policy and
commission payments.
The one count of Perjury contrary to Section 314 of
Victorian Crimes Act of 1958 constitutes in Mr.
Wright's and Mr. Craker's signing and swearing
before a Solicitor holding a current practicing
certificate pursuant to the Legal Profession
Practice Act (1958), a Statutory Declaration
attesting to the validity of 29 of the most recent
Life Insurance proposals of AMP Society and
containing three (3) false statements.
Pursuant to Section 5 of PD No. 1069, in relation to the Extradition
Treaty concluded between the Republic of the Philippines and
Australia on September 10, 1990, extradition proceedings were
initiated on April 6, 1993 by the State Counsels of the Department of
Justice before the respondent court.
In its Order dated April 13, 1993, the respondent court directed the
petitioner to appear before it on April 30, 1993 and to file his answer
within ten days. In the same order, the respondent Judge ordered the
NBI to serve summons and cause the arrest of the petitioner.
The respondent court received return of the warrant of arrest and
summons signed by NBI Senior Agent Manuel Almendras with the
information that the petitioner was arrested on April 26, 1993 at
 Taguig, Metro Manila and was subsequently detained at the NBI
detention cell where petitioner, to date, continue to be held.
Thereafter, the petitioner filed his answer.
In the course of the trial, the petitioner testified that he was jobless,
married to a Filipina, Judith David, with whom he begot a child; that
he has no case in Australia; that he is not a fugitive from justice and is
not aware of the offenses charged against him; that he arrived in the
Philippines on February 25, 1990 returned to Australia on March 1,
1990, then back to the Philippines on April 11, 1990, left the
Philippines again on April 24, 1990 for Australia and returned to the
Philippines on May 24, 1990, again left for Australia on May 29, 1990
passing by Singapore and then returned to the Philippines on June 25,
1990 and from that time on, has not left the Philippines; and that his
tourist visa has been extended but he could not produce the same in
court as it was misplaced, has neither produced any certification
thereof, nor any temporary working visa.
The trial court, in its decision dated 14 June 1993, granting the petition for extradition
requested by the Government of Australia, concluding that the documents submitted by
the Australian Government meet the requirements of Article 7 of the Treaty of
Extradition and that the offenses for which the petitioner were sought in his country are
extraditable offenses under Article 2 of the said Treaty. The trial court, moreover, held
that under the provisions of the same Article, extradition could be granted irrespective of
when the offense — in relation to the extradition — was committed, provided that the
offense happened to be an offense in the requesting State at the time the acts or
omissions constituting the same were committed. 13
Petitioner challenged the decision of the Regional Trial Court before the Court of Appeals
assigning the following errors:
I. THAT THE HONORABLE RESPONDENT JUDGE GRAVELY ERRED IN
GIVING RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION
TREATY DESPITE THE FACT THAT THE EVIDENCE ADDUCED BY THE
RESPONDENT SHOW THAT THE ALLEGED OFFENSES FOR WHICH
PETITIONER IS SOUGHT TO BE EXTRADITED TOOK PLACE IN 1988-
1989 AT THE TIME THERE WAS NO EXTRADITION TREATY
BETWEEN THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA.
II. THAT THE ACT OF THE HONORABLE RESPONDENT JUDGE IN
GIVING RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION
TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND
AUSTRALIA AMOUNTS TO AN "EX POST FACTO LAW" AND VIOLATES
SECTION 21, ARTICLE VII OF THE 1987 CONSTITUTION.
III. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN
ORDERING THE EXTRADITION OF PETITIONER DESPITE THE FACT
THAT THE EVIDENCE ADDUCED DO NOT SHOW THAT PETITIONER
IS WANTED FOR PROSECUTION IN AUSTRALIA.
IV. THAT THE HON. RESPONDENT JUDGE GRAVELY ABUSED HIS
DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN
MISINTERPRETING THE EXTENDED STAY OF PETITIONER AS
EVIDENCE OF PETITIONER'S DESIGN TO HIDE AND EVADE
PROSECUTION IN AUSTRALIA.
V. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN
ORDERING THE EXTRADITION OF PETITIONER WITHOUT
SPECIFYING IN HIS ORDER OR DECISION THE SPECIFIC CHARGES
FOR WHICH PETITIONER IS TO STAND TRIAL IN AUSTRALIA.
The Court of Appeals affirmed the trial court's decision on September 14, 1993 and
denied petitioner's Motion for Reconsideration on December 16, 1993. 14 Reiterating
substantially the same assignments of error which he interposed in the Court of Appeals,
petitioner challenges in this petition the validity of the extradition order issued by the
trial court as affirmed by the Court of Appeals under the Treaty. Petitioner vigorously
argues that the trial court order violates the Constitutional prohibition against ex post
facto laws. He avers that for the extradition order to be valid, the Australian government
should show that he "has a criminal case pending before a competent court" in that
country "which can legally pass judgement or acquittal or conviction upon him."
Clearly, a close reading of the provisions of the Treaty previously cited, which are
relevant to our determination of the validity of the extradition order, reveals that the
trial court committed no error in ordering the petitioner's extradition. Conformably with
Article 2, Section 2 of the said Treaty, the crimes for which the petitioner was charged
and for which warrants for his arrest were issued in Australia were undeniably offenses
in the Requesting State at the time they were alleged to have been committed. From its
examination of the charges against the petitioner, the trial court correctly determined
that the corresponding offenses under our penal laws are Articles 315(2) and 183 of the
Revised Penal Code on swindling/estafa and false testimony/perjury, respectively. 15
The provisions of Article 6 of the said Treaty pertaining to the documents required for
extradition are sufficiently clear and require no interpretation. The warrant for the
arrest of an individual or a copy thereof, a statement of each and every offense and a
statement of the acts and omissions which were alleged against the person in respect of
each offense are sufficient to show that a person is wanted for prosecution under the
said article. All of these documentary requirements were dully submitted to the trial
court in its proceedings a quo. For purposes of the compliance with the provisions of the
Treaty, the signature and official seal of the Attorney-General of Australia were sufficient
to authenticate all the documents annexed to the Statement of the Acts and Omissions,
including the statement itself. 16 In conformity with the provisions of Article 7 of the
Treaty, the appropriate documents and annexes were signed by "an officer in or of the
Requesting State" 17 "sealed with . . . (a) public seal of the Requesting State or of a
Minister of State, or of a Department or officer of the Government of the Requesting
State," 18 and "certified by a diplomatic or consular officer of the Requesting State
accredited to the Requested State." 19The last requirement was accomplished by the
certification made by the Philippine Consular Officer in Canberra, Australia.
The petitioner's contention that a person sought to be extradited should have a "criminal
case pending before a competent court in the Requesting State which can legally pass
judgement of acquittal or conviction" 20 stretches the meaning of the phrase "wanted for
prosecution" beyond the intended by the treaty provisions because the relevant
provisions merely require "a warrant for the arrest or a copy of the warrant for the
arrest of the person sought to be extradited." 21 Furthermore, the 'Charge and Warrant of
Arrest Sheets' attest to the fact that petitioner is not only wanted for prosecution but has,
in fact, absconded to evade arrest and criminal prosecution. Since a charge or information
under the Treaty is required only when appropriate, i.e., in cases where an individual
charged before a competent court in the Requesting State thereafter absconds to the
Requested State, a charge or a copy thereof is not required if the offender has in fact
already absconded before a criminal complaint could be filed. As the Court of Appeals
correctly noted, limiting the phrase "wanted for prosecution" to person charged with an
information or a criminal complaint renders the Treaty ineffective over individuals who
abscond for the purpose of evading arrest and prosecution. 22
This brings us to another point raised by the petitioner both in the trial court and in the
Court of Appeals. May the extradition of the petitioner who is wanted for prosecution by
the government of Australia be granted in spite of the fact that the offenses for which the
petitioner is sought in his country were allegedly committed prior to the date of
effectivity of the Treaty.
Petitioner takes the position that under Article 18 of the Treaty its enforcement cannot
be given retroactive effect. Article 18 states:
ENTRY INTO FORCE AND TERMINATION
This Treaty shall enter into force thirty (30) days after the date on
which the Contracting States have notified each other in writing that
their respective requirements for the entry into force of this Treaty
have been complied with.
Either contracting State may terminate this Treaty by notice in writing
at any time and it shall cease to be in force on the one hundred and
eightieth day after the day on which notice is given.
We fail to see how the petitioner can infer a prohibition against retroactive enforcement
from this provision. The first paragraph of Article 18 refers to the Treaty's date of
effectivity; the second paragraph pertains to its termination. Absolutely nothing in the
said provision relates to, much less, prohibits retroactive enforcement of the Treaty.
On the other hand, Article 2(4) of the Treaty unequivocally provides that:
4. Extradition may be granted pursuant to provisions of this Treaty
irrespective of when the offense in relation to which extradition is
requested was committed, provided that:
(a) it was an offense in the Requesting State at the time of the acts or
omissions constituting the offense; and
(b) the acts or omissions alleged would, if they had taken place in the
Territory of the Requested State at the time of the making of the
request for extradition, have constituted an offense against the laws in
force in that state.
Thus, the offenses for which petitioner is sought by his government are clearly
extraditable under Article 2 of the Treaty. They were offenses in the Requesting State at
the time they were committed, and, irrespective of the time they were committed, they
fall under the panoply of the Extradition Treaty's provisions, specifically, Article 2
paragraph 4, quoted above.
Does the Treaty's retroactive application violate the Constitutional prohibition against ex
post facto laws? Early commentators understood ex post facto laws to include all laws of
retrospective application, whether civil or criminal. 23 However, Chief Justice Salmon P.
Chase, citing Blackstone, The Federalist and other early U.S. state constitutions in Calder
vs. Bull 24 concluded that the concept was limited only to penal and criminal statutes. As
conceived under our Constitution, ex post facto laws are 1) statutes that make an act
punishable as a crime when such act was not an offense when committed; 2) laws which,
while not creating new offenses, aggravate the seriousness of a crime; 3) statutes which
prescribes greater punishment for a crime already committed; or, 4) laws which alter the
rules of evidence so as to make it substantially easier to convict a defendant. 25 "Applying
the constitutional principle, the (Court) has held that the prohibition applies only to
criminal legislation which affects the substantial rights of the accused." 26 This being so,
there is no absolutely no merit in petitioner's contention that the ruling of the lower
court sustaining the Treaty's retroactive application with respect to offenses committed
prior to the Treaty's coming into force and effect, violates the Constitutional prohibition
against ex post facto laws. As the Court of Appeals correctly concluded, the Treaty is
neither a piece of criminal legislation nor a criminal procedural statute. "It merely
provides for the extradition of persons wanted for prosecution of an offense or a crime
which offense or crime was already committed or consummated at the time the treaty
was ratified." 27
In signing the Treaty, the government of the Philippines has determined that it is within
its interests to enter into agreement with the government of Australia regarding the
repatriation of persons wanted for criminal offenses in either country. The said Treaty
was concurred and ratified by the Senate in a Resolution dated September 10, 1990.
Having been ratified in accordance with the provision of the 1987 Constitution, the
Treaty took effect thirty days after the requirements for entry into force were complied
with by both governments.
WHEREFORE, finding no reversible error in the decision of respondent Court of Appeals,
we hereby AFFIRM the same and DENY the instant petition for lack of merit.
G.R. No. 148571 September 24, 2002
GOVERNMENT OF THE UNITED STATES OF AMERICA,
Represented by the Philippine Department of Justice, petitioner,
vs.
HON. GUILLERMO PURGANAN, Presiding Judge Regional Trial Court of Manila and
MARC JIMENEZ a.k.a. MARCIO BATACAN CRESPO, respondent
Davide Jr., CJ, Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Morales and Callejo, Sr.
DECISION
PANGANIBAN, J.:
In extradition proceedings, are prospective extraditees entitled to notice and hearing
before warrants for their arrest can be issued? Equally important, are they entitled to the
right to bail and provisional liberty while the extradition proceedings are pending? In
general, the answer to these two novel questions is "No." The explanation of and the
reasons for, as well as the exceptions to, this rule are laid out in this Decision.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void
and set aside the Orders dated May 23, 2001 1 and July 3, 2001 2 issued by the Regional
Trial Court (RTC) of Manila, Branch 42. 3 The first assailed Order set for hearing
petitioner’s application for the issuance of a warrant for the arrest of Respondent Mark
B. Jimenez.
The second challenged Order, on the other hand, directed the issuance of a warrant, but
at the same time granted bail to Jimenez. The dispositive portion of the Order reads as
follows:
WHEREFORE, in the light of the foregoing, the [Court] finds probable cause
against respondent Mark Jimenez. Accordingly let a Warrant for the arrest of
the respondent be issued. Consequently and taking into consideration Section
9, Rule 114 of the Revised Rules of Criminal Procedure, this Court fixes the
reasonable amount of bail for respondent’s temporary liberty at ONE MILLION
PESOS (Php 1,000,000.00), the same to be paid in cash.
Furthermore respondent is directed to immediately surrender to this Court his
passport and the Bureau of Immigration and Deportation is likewise directed to
include the name of the respondent in its Hold Departure List." 4
Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the
bond, and the taking of Jimenez into legal custody.
The Facts
This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C.
Lantion. 5
Pursuant to the existing RP-US Extradition Treaty, 6 the United States Government,
through diplomatic channels, sent to the Philippine Government Note Verbale No. 0522
dated June 16, 1999, supplemented by Note Nos. 0597, 0720 and 0809 and accompanied
by duly authenticated documents requesting the extradition of Mark B. Jimenez, also
known as Mario Batacan Crespo. Upon receipt of the Notes and documents, the secretary
of foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate
action, pursuant to Section 5 of Presidential Decree (PD) No. 1069, also known as the
Extradition Law.
Upon learning of the request for his extradition, Jimenez sought and was granted a
Temporary Restraining Order (TRO) by the RTC of Manila, Branch 25. 7 The TRO
prohibited the Department of Justice (DOJ) from filing with the RTC a petition for his
extradition. The validity of the TRO was, however, assailed by the SOJ in a Petition before
this Court in the said GR No. 139465. Initially, the Court -- by a vote of 9-6 -- dismissed
the Petition. The SOJ was ordered to furnish private respondent copies of the extradition
request and its supporting papers and to grant the latter a reasonable period within
which to file a comment and supporting evidence. 8
Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October
17, 2000 Resolution. 9 By an identical vote of 9-6 -- after three justices changed their
votes -- it reconsidered and reversed its earlier Decision. It held that private respondent
was bereft of the right to notice and hearing during the evaluation stage of the
extradition process. This Resolution has become final and executory.
Finding no more legal obstacle, the Government of the United States of America,
represented by the Philippine DOJ, filed with the RTC on May 18, 2001, the appropriate
Petition for Extradition which was docketed as Extradition Case No. 01192061. The
Petition alleged, inter alia, that Jimenez was the subject of an arrest warrant issued by
the United States District Court for the Southern District of Florida on April 15, 1999. The
warrant had been issued in connection with the following charges in Indictment No. 99-
00281 CR-SEITZ: (1) conspiracy to defraud the United States and to commit certain
offenses in violation of Title 18 US Code Section 371; (2) tax evasion, in violation of Title
26 US Code Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections 1343
and 2; (4) false statements, in violation of Title 18 US Code Sections 1001 and 2; and (5)
illegal campaign contributions, in violation of Title 2 US Code Sections 441b, 441f and
437g(d) and Title 18 US Code Section 2. In order to prevent the flight of Jimenez, the
Petition prayed for the issuance of an order for his "immediate arrest" pursuant to
Section 6 of PD No. 1069.
Before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent
Manifestation/Ex-Parte Motion," 10 which prayed that petitioner’s application for an
arrest warrant be set for hearing.
In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the
case for hearing on June 5, 2001. In that hearing, petitioner manifested its reservations
on the procedure adopted by the trial court allowing the accused in an extradition case to
be heard prior to the issuance of a warrant of arrest.
After the hearing, the court a quo required the parties to submit their respective
memoranda. In his Memorandum, Jimenez sought an alternative prayer: that in case a
warrant should issue, he be allowed to post bail in the amount of P100,000.
The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter,
the court below issued its questioned July 3, 2001 Order, directing the issuance of a
warrant for his arrest and fixing bail for his temporary liberty at one million pesos in
cash. 11 After he had surrendered his passport and posted the required cash bond,
Jimenez was granted provisional liberty via the challenged Order dated July 4, 2001. 12
Hence, this Petition. 13
Issues
Petitioner presents the following issues for the consideration of this Court:
I.
The public respondent acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction in adopting a
procedure of first hearing a potential extraditee before issuing an arrest
warrant under Section 6 of PD No. 1069.
II.
The public respondent acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction in granting the
prayer for bail and in allowing Jimenez to go on provisional liberty because:
‘1. An extradition court has no power to authorize bail, in the absence
of any law that provides for such power.
‘2. Section 13, Article III (right to bail clause) of the 1987 Philippine
Constitution and Section 4, Rule 114 (Bail) of the Rules of Court, as
amended, which [were] relied upon, cannot be used as bases for
allowing bail in extradition proceedings.
‘3. The presumption is against bail in extradition proceedings or
proceedings leading to extradition.
‘4. On the assumption that bail is available in extradition proceedings
or proceedings leading to extradition, bail is not a matter of right but
only of discretion upon clear showing by the applicant of the existence
of special circumstances.
‘5. Assuming that bail is a matter of discretion in extradition
proceedings, the public respondent received no evidence of ‘special
circumstances’ which may justify release on bail.
‘6. The risk that Jimenez will flee is high, and no special circumstance
exists that will engender a well-founded belief that he will not flee.
‘7. The conditions attached to the grant of bail are ineffectual and do
not ensure compliance by the Philippines with its obligations under
the RP-US Extradition Treaty.
‘8. The Court of Appeals Resolution promulgated on May 10, 2001 in
the case entitled ‘Eduardo T. Rodriguez et al. vs. The Hon. Presiding
Judge, RTC, Branch 17, Manila,’ CA-G.R. SP No. 64589, relied upon by
the public respondent in granting bail, had been recalled before the
issuance of the subject bail orders.’" 14
In sum, the substantive questions that this Court will address are: (1) whether Jimenez is
entitled to notice and hearing before a warrant for his arrest can be issued, and (2)
whether he is entitled to bail and to provisional liberty while the extradition proceedings
are pending. Preliminarily, we shall take up the alleged prematurity of the Petition for
Certiorari arising from petitioner’s failure to file a Motion for Reconsideration in the RTC
and to seek relief in the Court of Appeals (CA), instead of in this Court. 15 We shall also
preliminarily discuss five extradition postulates that will guide us in disposing of the
substantive issues.
The Court’s Ruling
The Petition is meritorious.
Preliminary Matters
Alleged Prematurity of Present Petition
Petitioner submits the following justifications for not filing a Motion for Reconsideration
in the Extradition Court: "(1) the issues were fully considered by such court after
requiring the parties to submit their respective memoranda and position papers on the
matter and thus, the filing of a reconsideration motion would serve no useful purpose;
(2) the assailed orders are a patent nullity, absent factual and legal basis therefor; and
(3) the need for relief is extremely urgent, as the passage of sufficient time would give
Jimenez ample opportunity to escape and avoid extradition; and (4) the issues raised are
purely of law." 16
For resorting directly to this Court instead of the CA, petitioner submits the following
reasons: "(1) even if the petition is lodged with the Court of Appeals and such appellate
court takes cognizance of the issues and decides them, the parties would still bring the
matter to this Honorable Court to have the issues resolved once and for all [and] to have
a binding precedent that all lower courts ought to follow; (2) the Honorable Court of
Appeals had in one case 17ruled on the issue by disallowing bail but the court below
refused to recognize the decision as a judicial guide and all other courts might likewise
adopt the same attitude of refusal; and (3) there are pending issues on bail both in the
extradition courts and the Court of Appeals, which, unless guided by the decision that
this Honorable Court will render in this case, would resolve to grant bail in favor of the
potential extraditees and would give them opportunity to flee and thus, cause adverse
effect on the ability of the Philippines to comply with its obligations under existing
extradition treaties." 18
As a general rule, a petition for certiorari before a higher court will not prosper unless
the inferior court has been given, through a motion for reconsideration, a chance to
correct the errors imputed to it. This rule, though, has certain exceptions: (1) when the
issue raised is purely of law, (2) when public interest is involved, or (3) in case of
urgency. 19 As a fourth exception, the Court has also ruled that the filing of a motion for
reconsideration before availment of the remedy of certiorari is not a sine qua non, when
the questions raised are the same as those that have already been squarely argued and
exhaustively passed upon by the lower court. 20 Aside from being of this nature, the
issues in the present case also involve pure questions of law that are of public interest.
Hence, a motion for reconsideration may be dispensed with.
Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue
writs of certiorari when there are special and important reasons therefor. 21 In Fortich v.
Corona 22 we stated:
[T]he Supreme Court has the full discretionary power to take cognizance of the
petition filed directly [before] it if compelling reasons, or the nature and
importance of the issues raised, warrant. This has been the judicial policy to be
observed and which has been reiterated in subsequent cases, namely: Uy vs.
Contreras, et. al., Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs.
Legaspi, et. al. As we have further stated in Cuaresma:
‘x x x. A direct invocation of the Supreme Court’s original jurisdiction
to issue these writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in the
petition. This is established policy. x x x.’
Pursuant to said judicial policy, we resolve to take primary jurisdiction over the
present petition in the interest of speedy justice and to avoid future litigations
so as to promptly put an end to the present controversy which, as correctly
observed by petitioners, has sparked national interest because of the
magnitude of the problem created by the issuance of the assailed resolution.
Moreover, x x x requiring the petitioners to file their petition first with the
Court of Appeals would only result in a waste of time and money.
That the Court has the power to set aside its own rules in the higher interests of justice is
well-entrenched in our jurisprudence. We reiterate what we said in Piczon vs. Court of
Appeals: 23
‘Be it remembered that rules of procedure are but mere tools designed to
facilitate the attainment of justice. Their strict and rigid application, which
would result in technicalities that tend to frustrate rather than promote
substantial justice, must always be avoided. Time and again, this Court has
suspended its own rules and excepted a particular case from their operation
whenever the higher interests of justice so require. In the instant petition, we
forego a lengthy disquisition of the proper procedure that should have been
taken by the parties involved and proceed directly to the merits of the case.’
In a number of other exceptional cases, 24 we held as follows:
This Court has original jurisdiction, concurrent with that of Regional Trial
Courts and the Court of Appeals, over petitions for certiorari, prohibition,
mandamus, quo warranto and habeas corpus, and we entertain direct resort to
us in cases where special and important reasons or exceptional and compelling
circumstances justify the same."
In the interest of justice and to settle once and for all the important issue of bail in
extradition proceedings, we deem it best to take cognizance of the present case. Such
proceedings constitute a matter of first impression over which there is, as yet, no local
jurisprudence to guide lower courts.
Five Postulates of Extradition
The substantive issues raised in this case require an interpretation or construction of the
treaty and the law on extradition. A cardinal rule in the interpretation of a treaty or a law
is to ascertain and give effect to its intent. 25Since PD 1069 is intended as a guide for the
implementation of extradition treaties to which the Philippines is a
signatory, 26 understanding certain postulates of extradition will aid us in properly
deciding the issues raised here.
1. Extradition Is a Major Instrument for the Suppression of Crime.
First, extradition treaties are entered into for the purpose of suppressing
crime 27 by facilitating the arrest and the custodial transfer 28 of a
fugitive 29 from one state to the other.
With the advent of easier and faster means of international travel, the flight of
affluent criminals from one country to another for the purpose of committing
crime and evading prosecution has become more frequent. Accordingly,
governments are adjusting their methods of dealing with criminals and crimes
that transcend international boundaries.
 Today, "a majority of nations in the world community have come to look upon
extradition as the major effective instrument of international co-operation in
the suppression of crime." 30 It is the only regular system that has been devised
to return fugitives to the jurisdiction of a court competent to try them in
accordance with municipal and international law. 31
An important practical effect x x x of the recognition of the principle
that criminals should be restored to a jurisdiction competent to try
and punish them is that the number of criminals seeking refuge
abroad will be reduced. For to the extent that efficient means of
detection and the threat of punishment play a significant role in the
deterrence of crime within the territorial limits of a State, so the
existence of effective extradition arrangements and the consequent
certainty of return to the locus delicti commissi play a corresponding
role in the deterrence of flight abroad in order to escape the
consequence of crime. x x x. From an absence of extradition
arrangements flight abroad by the ingenious criminal receives direct
encouragement and thus indirectly does the commission of crime
itself." 32
In Secretary v. Lantion 33 we explained:
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 [into] 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."
Indeed, in this era of globalization, easier and faster international travel, and an
expanding ring of international crimes and criminals, we cannot afford to be an
isolationist state. We need to cooperate with other states in order to improve our
chances of suppressing crime in our own country.
2. The Requesting State Will Accord Due Process to the Accused
Second, an extradition treaty presupposes that both parties thereto have examined, and
that both accept and trust, each other’s legal system and judicial process. 34 More
pointedly, our duly authorized representative’s signature on an extradition treaty
signifies our confidence in the capacity and the willingness of the other state to protect
the basic rights of the person sought to be extradited. 35 That signature signifies our full
faith that the accused will be given, upon extradition to the requesting state, all relevant
and basic rights in the criminal proceedings that will take place therein; otherwise, the
treaty would not have been signed, or would have been directly attacked for its
unconstitutionality.
3. The Proceedings Are Sui Generis
Third, as pointed out in Secretary of Justice v. Lantion, 36 extradition proceedings are not
criminal in nature. In criminal proceedings, the constitutional rights of the accused are at
fore; in extradition which is sui generis -- in a class by itself -- they are not.
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. 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 x x x.
xxxxxxxxx
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. In contradistinction to a criminal
proceeding, the rules of evidence in an extradition proceeding allow admission
of evidence under less stringent standards. In terms of the quantum of evidence
to be satisfied, a criminal case requires proof beyond reasonable doubt for
conviction while a fugitive may be ordered extradited ‘upon showing of the
existence of a prima facie case.’ 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. 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."
Given the foregoing, it is evident that the extradition court is not called upon to ascertain
the guilt or the innocence of the person sought to be extradited. 37 Such determination
during the extradition proceedings will only result in needless duplication and delay.
Extradition is merely a measure of international judicial assistance through which a
person charged with or convicted of a crime is restored to a jurisdiction with the best
claim to try that person. It is not part of the function of the assisting authorities to enter
into questions that are the prerogative of that jurisdiction. 38The ultimate purpose of
extradition proceedings in court is only to determine whether the extradition request
complies with the Extradition Treaty, and whether the person sought is extraditable. 39
4. Compliance Shall Be in Good Faith.
Fourth, our executive branch of government voluntarily entered into the Extradition
Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption
that its implementation will serve the national interest.
Fulfilling our obligations under the Extradition Treaty promotes comity 40 with the
requesting state. On the other hand, failure to fulfill our obligations thereunder paints a
bad image of our country before the world community. Such failure would discourage
other states from entering into treaties with us, particularly an extradition treaty that
hinges on reciprocity. 41
Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations
under the Treaty. 42 This principle requires that we deliver the accused to the requesting
country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied.
In other words, "[t]he demanding government, when it has done all that the treaty and
the law require it to do, is entitled to the delivery of the accused on the issue of the
proper warrant, and the other government is under obligation to make the
surrender." 43 Accordingly, the Philippines must be ready and in a position to deliver the
accused, should it be found proper.
5. There Is an Underlying Risk of Flight
Fifth, persons to be extradited are presumed to be flight risks. This prima facie
presumption finds reinforcement in the experience 44 of the executive branch: nothing
short of confinement can ensure that the accused will not flee the jurisdiction of the
requested state in order to thwart their extradition to the requesting state.
The present extradition case further validates the premise that persons sought to be
extradited have a propensity to flee. Indeed,
extradition hearings would not even begin, if only the accused were willing to submit to
trial in the requesting country. 45 Prior acts of herein respondent -- (1) leaving the
requesting state right before the conclusion of his indictment proceedings there; and (2)
remaining in the requested state despite learning that the requesting state is seeking his
return and that the crimes he is charged with are bailable -- eloquently speak of his
aversion to the processes in the requesting state, as well as his predisposition to avoid
them at all cost. These circumstances point to an ever-present, underlying high risk of
flight. He has demonstrated that he has the capacity and the will to flee. Having fled once,
what is there to stop him, given sufficient opportunity, from fleeing a second time?
First Substantive Issue:
Is Respondent Entitled to Notice and Hearing
Before the Issuance of a Warrant of Arrest?
Petitioner contends that the procedure adopted by the RTC --informing the accused, a
fugitive from justice, that an Extradition Petition has been filed against him, and that
petitioner is seeking his arrest -- gives him notice to escape and to avoid extradition.
Moreover, petitioner pleads that such procedure may set a dangerous precedent, in that
those sought to be extradited -- including terrorists, mass murderers and war criminals -
- may invoke it in future extradition cases.
On the other hand, Respondent Jimenez argues that he should not be hurriedly and
arbitrarily deprived of his constitutional right to liberty without due process. He further
asserts that there is as yet no specific law or rule setting forth the procedure prior to the
issuance of a warrant of arrest, after the petition for extradition has been filed in court;
ergo, the formulation of that procedure is within the discretion of the presiding judge.
Both parties cite Section 6 of PD 1069 in support of their arguments. It states:
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 any where within the
Philippines if it appears to the presiding judge that the immediate arrest and
temporary detention of the accused will best serve the ends of justice. Upon
receipt of the answer, 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." (Emphasis ours)
Does this provision sanction RTC Judge Purganan’s act of immediately setting for hearing
the issuance of a warrant of arrest? We rule in the negative.
1. On the Basis of the Extradition Law
It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word
"immediate" to qualify the arrest of the accused. This qualification would be rendered
nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails
sending notices to the opposing parties, 46 receiving facts and arguments 47 from
them, 48and giving them time to prepare and present such facts and arguments. Arrest
subsequent to a hearing can no longer be considered "immediate." The law could not
have intended the word as a mere superfluity but, on the whole, as a means of imparting
a sense of urgency and swiftness in the determination of whether a warrant of arrest
should be issued.
By using the phrase "if it appears," the law further conveys that accuracy is not as
important as speed at such early stage. The trial court is not expected to make an
exhaustive determination to ferret out the true and actual situation, immediately upon
the filing of the petition. From the knowledge and the material then available to it, the
court is expected merely to get a good first impression -- a prima facie finding --
sufficient to make a speedy initial determination as regards the arrest and detention of
the accused.
Attached to the Petition for Extradition, with a Certificate of Authentication among
others, were the following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr.
Michael E. Savage -- trial attorney in the Campaign Financing Task Force of the Criminal
Division of the US Department of Justice; (2) Annexes H to G, evidentiary Appendices of
various exhibits that constituted evidence of the crimes charged in the Indictment, with
Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes
charged in the Indictment); (3) Annex BB, the Exhibit I "Appendix of Witness [excerpts]
Statements Referenced in the Affidavit of Angela Byers" and enclosed Statements in two
volumes; (4) Annex GG, the Exhibit J "Table of Contents for Supplemental Evidentiary
Appendix" with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L
"Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Betty
Steward" and enclosed Statements in two volumes. 49
It is evident that respondent judge could have already gotten an impression from these
records adequate for him to make an initial determination of whether the accused was
someone who should immediately be arrested in order to "best serve the ends of justice."
He could have determined whether such facts and circumstances existed as would lead a
reasonably discreet and prudent person to believe that the extradition request was
prima facie meritorious. In point of fact, he actually concluded from these supporting
documents that "probable cause" did exist. In the second questioned Order, he stated:
In the instant petition, the documents sent by the US Government in support of
[its] request for extradition of herein respondent are enough to convince the
Court of the existence of probable cause to proceed with the hearing against the
extraditee." 50
We stress that the prima facie existence of probable cause for hearing the petition and, a
priori, for issuing an arrest warrant was already evident from the Petition itself and its
supporting documents. 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. 51
Moreover, the law specifies that the court sets a hearing upon receipt of the answer or
upon failure of the accused to answer after receiving the summons. In connection with
the matter of immediate arrest, however, the word "hearing" is notably absent from the
provision. Evidently, had the holding of a hearing at that stage been intended, the law
could have easily so provided. It also bears emphasizing at this point that extradition
proceedings are summary 52 in nature. Hence, the silence of the Law and the Treaty leans
to the more reasonable interpretation that there is no intention to punctuate with a
hearing every little step in the entire proceedings.
It is taken for granted that the contracting parties intend something reasonable
and something not inconsistent with generally recognized principles of
International Law, nor with previous treaty obligations towards third States. If,
therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to
be preferred to the unreasonable, the more reasonable to the less reasonable x
x x ." 53
Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the
request for their arrest and setting it for hearing at some future date would give them
ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law
could have
intended that consequence, for the very purpose of both would have been defeated by
the escape of the accused from the requested state.
2. On the Basis of the Constitution
Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not
require a notice or a hearing before the issuance of a warrant of arrest. It provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized."
To determine probable cause for the issuance of arrest warrants, the Constitution itself
requires only the examination -- under oath or affirmation -- of complainants and the
witnesses they may produce. There is no requirement to notify and hear the accused
before the issuance of warrants of arrest.
In Ho v. People 54 and in all the cases cited therein, never was a judge required to go to
the extent of conducting a hearing just for the purpose of personally determining
probable cause for the issuance of a warrant of arrest. All we required was that the
"judge must have sufficient supporting documents upon which to make his independent
judgment, or at the very least, upon which to verify the findings of the prosecutor as to
the existence of probable cause." 55
In Webb v. De Leon, 56 the Court categorically stated that a judge was not supposed to
conduct a hearing before issuing a warrant of arrest:
Again, we stress that before issuing warrants of arrest, judges merely
determine personally the probability, not the certainty of guilt of an accused. In
doing so, judges do not conduct a de novo hearing to determine the existence of
probable cause. They just personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported by substantial
evidence."
At most, in cases of clear insufficiency of evidence on record, judges merely further
examine complainants and their witnesses. 57 In the present case, validating the act of
respondent judge and instituting the practice of hearing the accused and his witnesses at
this early stage would be discordant with the rationale for the entire system. If the
accused were allowed to be heard and necessarily to present evidence during the prima
facie determination for the issuance of a warrant of arrest,
what would stop him from presenting his entire plethora of defenses at this stage -- if he
so desires -- in his effort to negate a prima facie finding? Such a procedure could convert
the determination of a prima facie case into a full-blown trial of the entire proceedings
and possibly make trial of the main case superfluous. This scenario is also anathema to
the summary nature of extraditions.
That the case under consideration is an extradition and not a criminal action is not
sufficient to justify the adoption of a set of procedures more protective of the accused. If
a different procedure were called for at all, a more restrictive one -- not the opposite --
would be justified in view of respondent’s demonstrated predisposition to flee.
Since this is a matter of first impression, we deem it wise to restate the proper
procedure:
Upon receipt of a petition for extradition and its supporting documents, the judge must
study them and make, as soon as possible, a prima facie finding whether (a) they are
sufficient in form and substance, (b) they show compliance with the Extradition Treaty
and Law, and (c) the person sought is extraditable. At his discretion, the judge may
require the submission of further documentation or may personally examine the affiants
and witnesses of the petitioner. If, in spite of this study and examination, no prima facie
finding 58 is possible, the petition may be dismissed at the discretion of the judge.
On the other hand, if the presence of a prima facie case is determined, then the
magistrate must immediately issue a warrant for the arrest of the extraditee, who is at
the same time summoned to answer the petition and to appear at scheduled summary
hearings. Prior to the issuance of the warrant, the judge must not inform or notify the
potential extraditee of the pendency of the petition, lest the latter be given the
opportunity to escape and frustrate the proceedings. In our opinion, the foregoing
procedure will "best serve the ends of justice" in extradition cases.
Second Substantive Issue:
Is Respondent Entitled to Bail?
Article III, Section 13 of the Constitution, is worded as follows:
Art. III, Sec. 13. 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."
Respondent Mark B. Jimenez maintains that this constitutional provision secures the
right to bail of all persons, including those sought to be extradited. Supposedly, the only
exceptions are the ones charged with offenses punishable with reclusion perpetua, when
evidence of guilt is strong. He also alleges the relevance to the present case of Section
4 59 of Rule 114 of the Rules of Court which, insofar as practicable and consistent with the
summary nature of extradition proceedings, shall also apply according to Section 9 of PD
1069.
On the other hand, petitioner claims that there is no provision in the Philippine
Constitution granting the right to bail to a person who is the subject of an extradition
request and arrest warrant.
Extradition Different from Ordinary Criminal Proceedings
We agree with petitioner. As suggested by the use of the word "conviction," the
constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the
Rules of Court, applies only when a person has been arrested and detained for violation
of Philippine criminal laws. It does not apply to extradition proceedings, because
extradition courts do not render judgments of conviction or acquittal.
Moreover, the constitutional 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." 60 It follows that the constitutional provision on bail will not apply to a case like
extradition, where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended" does not detract from the
rule that the constitutional right to bail is available only in criminal proceedings. It must
be noted that the suspension of the privilege of the writ of habeas corpus finds
application "only to persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion." 61 Hence, the second sentence in the constitutional
provision on bail merely emphasizes the right to bail in criminal proceedings for the
aforementioned offenses. It cannot be taken to mean that the right is available even in
extradition proceedings that are not criminal in nature.
That the offenses for which Jimenez is sought to be extradited are bailable in the United
States is not an argument to grant him one in the present case. To stress, extradition
proceedings are separate and distinct from the trial for the offenses for which he is
charged. He should apply for bail before the courts trying the criminal cases against him,
not before the extradition court.
No Violation of Due Process
Respondent Jimenez cites the foreign case Paretti 62 in arguing that, constitutionally,
"[n]o one shall be deprived of x x x liberty x x x without due process of law."
Contrary to his contention, his detention prior to the conclusion of the extradition
proceedings does not amount to a violation of his right to due process. We iterate the
familiar doctrine that the essence of due process is the opportunity to be heard 63 but, at
the same time, point out that the doctrine does not always call for a prior opportunity to
be heard. 64 Where the circumstances -- such as those present in an extradition case --
call for it, a subsequent opportunity to be heard is enough. 65 In the present case,
respondent will be given full opportunity to be heard subsequently, when the extradition
court hears the Petition for Extradition. Hence, there is no violation of his right to due
process and fundamental fairness.
Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate
deprivation of his liberty prior to his being heard. That his arrest and detention will not
be arbitrary is sufficiently ensured by (1) the DOJ’s filing in court the Petition with its
supporting documents after a determination that the extradition request meets the
requirements of the law and the relevant treaty; (2) the extradition judge’s independent
prima facie determination that his arrest will best serve the ends of justice before the
issuance of a warrant for his arrest; and (3) his opportunity, once he is under the court’s
custody, to apply for bail as an exception to the no-initial-bail rule.
It is also worth noting that before the US government requested the extradition of
respondent, proceedings had already been conducted in that country. But because he left
the jurisdiction of the requesting state before those proceedings could be completed, it
was hindered from continuing with the due processes prescribed under its laws. His
invocation of due process now has thus become hollow. He already had that opportunity
in the requesting state; yet, instead of taking it, he ran away.
In this light, would it be proper and just for the government to increase the risk of
violating its treaty obligations in order to accord Respondent Jimenez his personal
liberty in the span of time that it takes to resolve the Petition for Extradition? His
supposed immediate deprivation of liberty without the due process that he had
previously shunned pales against the government’s interest in fulfilling its Extradition
Treaty obligations and in cooperating with the world community in the suppression of
crime. Indeed, "[c]onstitutional liberties do not exist in a vacuum; the due process rights
accorded to individuals must be carefully balanced against exigent and palpable
government interests." 66
Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings
who, instead of facing the consequences of their actions, choose to run and hide. Hence, it
would not be good policy to increase the risk of violating our treaty obligations if,
through overprotection or excessively liberal treatment, persons sought to be extradited
are able to evade arrest or escape from our custody. 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.1âwphi1.nêt
The denial of bail as a matter of course in extradition cases falls into place with and gives
life to Article 14 67 of the Treaty, since this practice would encourage the accused to
voluntarily surrender to the requesting state to cut short their detention here. Likewise,
their detention pending the resolution of extradition proceedings would fall into place
with the emphasis of the Extradition Law on the summary nature of extradition cases
and the need for their speedy disposition.
Exceptions to the No Bail Rule
The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the
judiciary has the constitutional duty to curb grave abuse of discretion 68 and tyranny, as
well as the power to promulgate rules to protect and enforce constitutional
rights. 69 Furthermore, we believe that the right to due process is broad enough to
include the grant of basic fairness to extraditees. Indeed, the right to due process extends
to the "life, liberty or property" of every person. It is "dynamic and resilient, adaptable to
every situation calling for its application." 70
Accordingly and to best serve the ends of justice, we believe and so hold that, after a
potential extraditee has been arrested or placed under the custody of the law, bail may
be applied for and granted as an exception, only upon a clear and convincing showing (1)
that, once granted bail, the applicant will not be a flight risk or a danger to the
community; and (2) that there exist special, humanitarian and compelling
circumstances 71 including, as a matter of reciprocity, those cited by the highest court in
the requesting state when it grants provisional liberty in extradition cases therein.
Since this exception has no express or specific statutory basis, and since it is derived
essentially from general principles of justice and fairness, the applicant bears the burden
of proving the above two-tiered requirement with clarity, precision and emphatic
forcefulness. The Court realizes that extradition is basically an executive, not a judicial,
responsibility arising from the presidential power to conduct foreign relations. In its
barest concept, it partakes of the nature of police assistance amongst states, which is not
normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of
this power should be characterized by caution, so that the vital international and
bilateral interests of our country will not be unreasonably impeded or compromised. In
short, while this Court is ever protective of "the sporting idea of fair play," it also
recognizes the limits of its own prerogatives and the need to fulfill international
obligations.
Along this line, Jimenez contends that there are special circumstances that are
compelling enough for the Court to grant his request for provisional release on bail. We
have carefully examined these circumstances and shall now discuss them.
1. Alleged Disenfranchisement
While his extradition was pending, Respondent Jimenez was elected as a member of the
House of Representatives. On that basis, he claims that his detention will disenfranchise
his Manila district of 600,000 residents. We are not persuaded. In People v. Jalosjos, 72 the
Court has already debunked the disenfranchisement argument when it ruled thus:
When the voters of his district elected the accused-appellant to Congress, they
did so with full awareness of the limitations on his freedom of action. They did
so with the knowledge that he could achieve only such legislative results which
he could accomplish within the confines of prison. To give a more drastic
illustration, if voters elect a person with full knowledge that he is suffering from
a terminal illness, they do so knowing that at any time, he may no longer serve
his full term in office.
In the ultimate analysis, the issue before us boils down to a question of
constitutional equal protection.
The Constitution guarantees: ‘x x x nor shall any person be denied the equal
protection of laws.’ This simply means that all persons similarly situated shall
be treated alike both in rights enjoyed and responsibilities imposed. The organs
of government may not show any undue favoritism or hostility to any person.
Neither partiality nor prejudice shall be displayed.
Does being an elective official result in a substantial distinction that allows
different treatment? Is being a Congressman a substantial differentiation which
removes the accused-appellant as a prisoner from the same class as all persons
validly confined under law?
The performance of legitimate and even essential duties by public officers has
never been an excuse to free a person validly [from] prison. The duties imposed
by the ‘mandate of the people’ are multifarious. The accused-appellant asserts
that the duty to legislate ranks highest in the hierarchy of government. The
accused-appellant is only one of 250 members of the House of Representatives,
not to mention the 24 members of the Senate, charged with the duties of
legislation. Congress continues to function well in the physical absence of one
or a few of its members. Depending on the exigency of Government that has to
be addressed, the President or the Supreme Court can also be deemed the
highest for that particular duty. The importance of a function depends on the
need for its exercise. The duty of a mother to nurse her infant is most
compelling under the law of nature. A doctor with unique skills has the duty to
save the lives of those with a particular affliction. An elective governor has to
serve provincial constituents. A police officer must maintain peace and order.
Never has the call of a particular duty lifted a prisoner into a different
classification from those others who are validly restrained by law.
A strict scrutiny of classifications is essential lest[,] wittingly or otherwise,
insidious discriminations are made in favor of or against groups or types of
individuals.
The Court cannot validate badges of inequality. The necessities imposed by
public welfare may justify exercise of government authority to regulate even if
thereby certain groups may plausibly assert that their interests are
disregarded.
We, therefore, find that election to the position of Congressman is not a
reasonable classification in criminal law enforcement. The functions and duties
of the office are not substantial distinctions which lift him from the class of
prisoners interrupted in their freedom and restricted in liberty of movement.
Lawful arrest and confinement are germane to the purposes of the law and
apply to all those belonging to the same class." 73
It must be noted that even before private respondent ran for and won a congressional
seat in Manila, it was already of public knowledge that the United States was requesting
his extradition. Hence, his constituents were or should have been prepared for the
consequences of the extradition case against their representative, including his detention
pending the final resolution of the case. Premises considered and in line with Jalosjos, we
are constrained to rule against his claim that his election to public office is by itself a
compelling reason to grant him bail.
2. Anticipated Delay
Respondent Jimenez further contends that because the extradition proceedings are
lengthy, it would be unfair to confine him during the pendency of the case. Again we are
not convinced. We must emphasize that extradition cases are summary in nature. They
are resorted to merely to determine whether the extradition petition and its annexes
conform to the Extradition Treaty, not to determine guilt or innocence. Neither is it, as a
rule, intended to address issues relevant to the constitutional rights available to the
accused in a criminal action.
We are not overruling the possibility that petitioner may, in bad faith, unduly delay the
proceedings. This is quite another matter that is not at issue here. Thus, any further
discussion of this point would be merely anticipatory and academic.
However, if the delay is due to maneuverings of respondent, with all the more reason
would the grant of bail not be justified. Giving premium to delay by considering it as a
special circumstance for the grant of bail would be tantamount to giving him the power
to grant bail to himself. It would also encourage him to stretch out and unreasonably
delay the extradition proceedings even more. This we cannot allow.
3. Not a Flight Risk?
Jimenez further claims that he is not a flight risk. To support this claim, he stresses that
he learned of the extradition request in June 1999; yet, he has not fled the country. True,
he has not actually fled during the preliminary stages of the request for his extradition.
Yet, this fact cannot be taken to mean that he will not flee as the process moves forward
to its conclusion, as he hears the footsteps of the requesting government inching closer
and closer. That he has not yet fled from the Philippines cannot be taken to mean that he
will stand his ground and still be within reach of our government if and when it matters;
that is, upon the resolution of the Petition for Extradition.
In any event, it is settled that bail may be applied for and granted by the trial court at
anytime after the applicant has been taken into custody and prior to judgment, even after
bail has been previously denied. In the present case, the extradition court may continue
hearing evidence on the application for bail, which may be granted in accordance with
the guidelines in this Decision.
Brief Refutation of Dissents
The proposal to remand this case to the extradition court, we believe, is totally
unnecessary; in fact, it is a cop-out. The parties -- in particular, Respondent Jimenez --
have been given more than sufficient opportunity both by the trial court and this Court to
discuss fully and exhaustively private respondent’s claim to bail. As already stated, the
RTC set for hearing not only petitioner’s application for an arrest warrant, but also
private respondent’s prayer for temporary liberty. Thereafter required by the RTC were
memoranda on the arrest, then position papers on the application for bail, both of which
were separately filed by the parties.
This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy
Memoranda and the Position Papers of both parties. Additionally, it has patiently heard
them in Oral Arguments, a procedure not normally observed in the great majority of
cases in this Tribunal. Moreover, after the Memos had been submitted, the parties --
particularly the potential extraditee -- have bombarded this Court with additional
pleadings -- entitled "Manifestations" by both parties and "Counter-Manifestation" by
private respondent -- in which the main topic was Mr. Jimenez’s plea for bail.
A remand would mean that this long, tedious process would be repeated in its entirety.
The trial court would again hear factual and evidentiary matters. Be it noted, however,
that, in all his voluminous pleadings and verbal propositions, private respondent has not
asked for a remand. Evidently, even he realizes that there is absolutely no need to rehear
factual matters. Indeed, the inadequacy lies not in the factual presentation of Mr.
Jimenez. Rather, it lies in his legal arguments. Remanding the case will not solve this
utter lack of persuasion and strength in his legal reasoning.
In short, this Court -- as shown by this Decision and the spirited Concurring, Separate
and Dissenting Opinions written by the learned justices themselves -- has exhaustively
deliberated and carefully passed upon all relevant questions in this case. Thus, a remand
will not serve any useful purpose; it will only further delay these already very delayed
proceedings, 74 which our Extradition Law requires to be summary in character. What we
need now is prudent and deliberate speed, not unnecessary and convoluted delay. What
is needed is a firm decision on the merits, not a circuitous cop-out.
Then, there is also the suggestion that this Court is allegedly "disregarding basic
freedoms when a case is one of extradition." We believe that this charge is not only
baseless, but also unfair. Suffice it to say that, in its length and breath, this Decision has
taken special cognizance of the rights to due process and fundamental fairness of
potential extraditees.
Summation
As we draw to a close, it is now time to summarize and stress these ten points:
1. The ultimate purpose of extradition proceedings is to determine whether the
request expressed in the petition, supported by its annexes and the evidence
that may be adduced during the hearing of the petition, complies with the
Extradition Treaty and Law; and whether the person sought is extraditable. The
proceedings are intended merely to assist the requesting state in bringing the
accused -- or the fugitive who has illegally escaped -- back to its territory, so
that the criminal process may proceed therein.
2. By entering into an extradition treaty, the Philippines is deemed to have
reposed its trust in the reliability or soundness of the legal and judicial system
of its treaty partner, as well as in the ability and the willingness of the latter to
grant basic rights to the accused in the pending criminal case therein.
3. By nature then, extradition proceedings are not equivalent to a criminal case
in which guilt or innocence is determined. Consequently, an extradition case is
not one in which the constitutional rights of the accused are necessarily
available. It is more akin, if at all, to a court’s request to police authorities for
the arrest of the accused who is at large or has escaped detention or jumped
bail. Having once escaped the jurisdiction of the requesting state, the
reasonable prima facie presumption is that the person would escape again if
given the opportunity.
4. Immediately upon receipt of the petition for extradition and its supporting
documents, the judge shall make a prima facie finding whether the petition is
sufficient in form and substance, whether it complies with the Extradition
Treaty and Law, and whether the person sought is extraditable. The magistrate
has discretion to require the petitioner to submit further documentation, or to
personally examine the affiants or witnesses. If convinced that a prima facie
case exists, the judge immediately issues a warrant for the arrest of the
potential extraditee and summons him or her to answer and to appear at
scheduled hearings on the petition.
5. After being taken into custody, potential extraditees may apply for bail. Since
the applicants have a history of absconding, they have the burden of showing
that (a) there is no flight risk and no danger to the community; and (b) there
exist special, humanitarian or compelling circumstances. The grounds used by
the highest court in the requesting state for the grant of bail therein may be
considered, under the principle of reciprocity as a special circumstance. In
extradition cases, bail is not a matter of right; it is subject to judicial discretion
in the context of the peculiar facts of each case.
6. Potential extraditees are entitled to the rights to due process and to
fundamental fairness. Due process does not always call for a prior opportunity
to be heard. A subsequent opportunity is sufficient due to the flight risk
involved. Indeed, available during the hearings on the petition and the answer
is the full chance to be heard and to enjoy fundamental fairness that is
compatible with the summary nature of extradition.
 7. This Court will always remain a protector of human rights, a bastion of
liberty, a bulwark of democracy and the conscience of society. But it is also well
aware of the limitations of its authority and of the need for respect for the
prerogatives of the other co-equal and co-independent organs of government.

8. We realize that extradition is essentially an executive, not a judicial,

responsibility arising out of the presidential power to conduct foreign relations
and to implement treaties. Thus, the Executive Department of government has
broad discretion in its duty and power of implementation.

9. On the other hand, courts merely perform oversight functions and exercise
review authority to prevent or excise grave abuse and tyranny. They should not
allow contortions, delays and "over-due process" every little step of the way,
lest these summary extradition proceedings become not only inutile but also
sources of international embarrassment due to our inability to comply in good
faith with a treaty partner’s simple request to return a fugitive. Worse, our
country should not be converted into a dubious haven where fugitives and
escapees can unreasonably delay, mummify, mock, frustrate, checkmate and
defeat the quest for bilateral justice and international cooperation.

10. At bottom, extradition proceedings should be conducted with all deliberate

speed to determine compliance with the Extradition Treaty and Law; and, while
safeguarding basic individual rights, to avoid the legalistic contortions, delays
and technicalities that may negate that purpose.

WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is
hereby declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET
ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail bond posted by
private respondent is CANCELLED. The Regional Trial Court of Manila is directed to
conduct the extradition proceedings before it, with all deliberate speed pursuant to the
spirit and the letter of our Extradition Treaty with the United States as well as our
Extradition Law. No costs.

SO ORDERED.
G.R. No. 153675 April 19, 2007
GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by
the Philippine Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUÑOZ, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules
of Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial
Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.)
issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001
allowing Juan Antonio Muñoz, private respondent, to post bail; and (2) the Order dated
April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed
by the Government of Hong Kong Special Administrative Region, represented by the
Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders
were issued by respondent judge with grave abuse of discretion amounting to lack or
excess of jurisdiction as there is no provision in the Constitution granting bail to a
potential extraditee.
The facts are:
On January 30, 1995, the Republic of the Philippines and the then British Crown Colony
of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted
Persons." It took effect on June 20, 1997.
On July 1, 1997, Hong Kong reverted back to the People’s Republic of China and became
the Hong Kong Special Administrative Region.
Private respondent Muñoz was charged before the Hong Kong Court with three (3)
counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1)
(a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven
(7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong
Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against
him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a
request for the provisional arrest of private respondent. The DOJ then forwarded the
request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of
Manila, Branch 19 an application for the provisional arrest of private respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against
private respondent. That same day, the NBI agents arrested and detained him.
On October 14, 1999, private respondent filed with the Court of Appeals a petition for
certiorari, prohibition and mandamus with application for preliminary mandatory
injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of
Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari,
docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be
reversed.
On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ
and sustaining the validity of the Order of Arrest against private respondent. The
Decision became final and executory on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative
Region filed with the RTC of Manila a petition for the extradition of private respondent,
docketed as Civil Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo
Bernardo, Jr. For his part, private respondent filed, in the same case,- a petition for
bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the
petition for bail, holding that there is no Philippine law granting bail in extradition cases
and that private respondent is a high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil
Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge.
On October 30, 2001, private respondent filed a motion for reconsideration of the Order
denying his application for bail. This was granted by respondent judge in an Order dated
December 20, 2001 allowing private respondent to post bail, thus:
In conclusion, this Court will not contribute to accused’s further erosion of civil liberties.
The petition for bail is granted subject to the following conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused hereby
undertakes that he will appear and answer the issues raised in these
proceedings and will at all times hold himself amenable to orders and
processes of this Court, will further appear for judgment. If accused fails in this
undertaking, the cash bond will be forfeited in favor of the government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and discretion of filing
its own motion for hold departure order before this Court even in extradition
proceeding; and
 4. Accused is required to report to the government prosecutors handling this
case or if they so desire to the nearest office, at any time and day of the week;
and if they further desire, manifest before this Court to require that all the
assets of accused, real and personal, be filed with this Court soonest, with the
condition that if the accused flees from his undertaking, said assets be forfeited
in favor of the government and that the corresponding lien/annotation be
noted therein accordingly.
SO ORDERED.
On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but
it was denied by respondent judge in his Order dated April 10, 2002.
Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse
of discretion amounting to lack or excess of jurisdiction in admitting private respondent
to bail; that there is nothing in the Constitution or statutory law providing that a
potential extraditee has a right to bail, the right being limited solely to criminal
proceedings.
In his comment on the petition, private respondent maintained that the right to bail
guaranteed under the Bill of Rights extends to a prospective extraditee; and that
extradition is a harsh process resulting in a prolonged deprivation of one’s liberty.
Section 13, Article III of the Constitution provides that the right to bail shall not be
impaired, thus:
Sec. 13. 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.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is
not the first time that this Court has an occasion to resolve the question of whether a
prospective extraditee may be granted bail.
In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge,
RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court,
speaking through then Associate Justice Artemio V. Panganiban, later Chief Justice, held
that the constitutional provision on bail does not apply to extradition proceedings. It is
"available only in criminal proceedings," thus:
x x x. As suggested by the use of the word "conviction," the constitutional provision on
bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when
a person has been arrested and detained for violation of Philippine criminal laws. It does
not apply to extradition proceedings because extradition courts do not render judgments
of conviction or acquittal.
Moreover, the constitutional 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"
(De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It
follows that the constitutional provision on bail will not apply to a case like extradition,
where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended" does not detract from the
rule that the constitutional right to bail is available only in criminal proceedings. It must
be noted that the suspension of the privilege of the writ of habeas corpus finds
application "only to persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second
sentence in the constitutional provision on bail merely emphasizes the right to bail in
criminal proceedings for the aforementioned offenses. It cannot be taken to mean that
the right is available even in extradition proceedings that are not criminal in nature.
At first glance, the above ruling applies squarely to private respondent’s case. However,
this Court cannot ignore the following trends in international law: (1) the growing
importance of the individual person in public international law who, in the 20th century,
has gradually attained global recognition; (2) the higher value now being given to human
rights in the international sphere; (3) the corresponding duty of countries to observe
these universal human rights in fulfilling their treaty obligations; and (4) the duty of this
Court to balance the rights of the individual under our fundamental law, on one hand,
and the law on extradition, on the other.
The modern trend in public international law is the primacy placed on the worth
of the individual person and the sanctity of human rights. Slowly, the recognition
that the individual person may properly be a subject of international law is now taking
root. The vulnerable doctrine that the subjects of international law are limited only to
states was dramatically eroded towards the second half of the past century. For one, the
Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle
of individual defendants for acts characterized as violations of the laws of war, crimes
against peace, and crimes against humanity. Recently, under the Nuremberg principle,
Serbian leaders have been persecuted for war crimes and crimes against humanity
committed in the former Yugoslavia. These significant events show that the individual
person is now a valid subject of international law.
On a more positive note, also after World War II, both international organizations and
states gave recognition and importance to human rights. Thus, on December 10, 1948,
the United Nations General Assembly adopted the Universal Declaration of Human Rights
in which the right to life, liberty and all the other fundamental rights of every person
were proclaimed. While not a treaty, the principles contained in the said Declaration
are now recognized as customarily binding upon the members of the international
community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail to a
prospective deportee, held that under the Constitution,3the principles set forth in
that Declaration are part of the law of the land. In 1966, the UN General Assembly also
adopted the International Covenant on Civil and Political Rights which the Philippines
signed and ratified. Fundamental among the rights enshrined therein are the rights of
every person to life, liberty, and due process.
The Philippines, along with the other members of the family of nations, committed to
uphold the fundamental human rights as well as value the worth and dignity of every
person. This commitment is enshrined in Section II, Article II of our Constitution which
provides: "The State values the dignity of every human person and guarantees full
respect for human rights." The Philippines, therefore, has the responsibility of protecting
and promoting the right of every person to liberty and due process, ensuring that those
detained or arrested can participate in the proceedings before a court, to enable it to
decide without delay on the legality of the detention and order their release if justified.
In other words, the Philippine authorities are under obligation to make available to every
person under detention such remedies which safeguard their fundamental right to
liberty. These remedies include the right to be admitted to bail. While this Court
in Purganan limited the exercise of the right to bail to criminal proceedings, however, in
light of the various international treaties giving recognition and protection to human
rights, particularly the right to life and liberty, a reexamination of this Court’s ruling
in Purganan is in order.
First, we note that the exercise of the State’s power to deprive an individual of
his liberty is not necessarily limited to criminal proceedings. Respondents in
administrative proceedings, such as deportation and quarantine,4 have likewise
been detained.
Second, to limit bail to criminal proceedings would be to close our eyes to our
jurisprudential history. Philippine jurisprudence has not limited the exercise of
the right to bail to criminal proceedings only. This Court has admitted to bail
persons who are not involved in criminal proceedings. In fact, bail has been
allowed in this jurisdiction to persons in detention during the pendency of
administrative proceedings, taking into cognizance the obligation of the
Philippines under international conventions to uphold human rights.
The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation
for failure to secure the necessary certificate of registration was granted bail pending his
appeal. After noting that the prospective deportee had committed no crime, the Court
opined that "To refuse him bail is to treat him as a person who has committed the most
serious crime known to law;" and that while deportation is not a criminal proceeding,
some of the machinery used "is the machinery of criminal law." Thus, the provisions
relating to bail was applied to deportation proceedings.
In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court
ruled that foreign nationals against whom no formal criminal charges have been filed
may be released on bail pending the finality of an order of deportation. As previously
stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in
sustaining the detainee’s right to bail.
If bail can be granted in deportation cases, we see no justification why it should not also
be allowed in extradition cases. Likewise, considering that the Universal Declaration of
Human Rights applies to deportation cases, there is no reason why it cannot be invoked
in extradition cases. After all, both are administrative proceedings where the innocence
or guilt of the person detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be
viewed in the light of the various treaty obligations of the Philippines concerning respect
for the promotion and protection of human rights. Under these treaties, the presumption
lies in favor of human liberty. Thus, the Philippines should see to it that the right to
liberty of every individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law)
defines "extradition" as "the removal of an accused from the Philippines with the object
of placing him at the disposal of foreign authorities to enable the requesting state or
government to hold him in connection with any criminal investigation directed against
him or the execution of a penalty imposed on him under the penal or criminal law of the
requesting state or government."
Extradition has thus been characterized as the right of a foreign power, created by treaty,
to demand the surrender of one accused or convicted of a crime within its territorial
jurisdiction, and the correlative duty of the other state to surrender him to the
demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a
criminal, an extradition proceeding is not by its nature criminal, for it is not punishment
for a crime, even though such punishment may follow extradition.10 It is sui
generis, tracing its existence wholly to treaty obligations between different nations.11 It
is not a trial to determine the guilt or innocence of the potential extraditee. 12 Nor is
it a full-blown civil action, but one that is merely administrative in character.13 Its object
is to prevent the escape of a person accused or convicted of a crime and to secure his
return to the state from which he fled, for the purpose of trial or punishment.14
But while extradition is not a criminal proceeding, it is characterized by the following:
(a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the
means employed to attain the purpose of extradition is also "the machinery of
criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition
Law) which mandates the "immediate arrest and temporary detention of the
accused" if such "will best serve the interest of justice." We further note that Section 20
allows the requesting state "in case of urgency" to ask for the "provisional arrest of the
accused, pending receipt of the request for extradition;" and that release from
provisional arrest "shall not prejudice re-arrest and extradition of the accused if a
request for extradition is received subsequently."
Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks
of a criminal process. A potential extraditee may be subjected to arrest, to a
prolonged restraint of liberty, and forced to transfer to the demanding state
following the proceedings. "Temporary detention" may be a necessary step in the
process of extradition, but the length of time of the detention should be reasonable.
Records show that private respondent was arrested on September 23, 1999, and
remained incarcerated until December 20, 2001, when the trial court ordered his
admission to bail. In other words, he had been detained for over two (2) years
without having been convicted of any crime. By any standard, such an extended
period of detention is a serious deprivation of his fundamental right to liberty. In fact, it and his immediate detention; and thereafter, conduct the extradition proceedings with
was this prolonged deprivation of liberty which prompted the extradition court to grant dispatch.
him bail.
SO ORDERED.
While our extradition law does not provide for the grant of bail to an extraditee,
however, there is no provision prohibiting him or her from filing a motion for bail, a right
to due process under the Constitution.

The applicable standard of due process, however, should not be the same as that in
criminal proceedings. In the latter, the standard of due process is premised on the
presumption of innocence of the accused. As Purganancorrectly points out, it is from this
major premise that the ancillary presumption in favor of admitting to bail arises. Bearing
in mind the purpose of extradition proceedings, the premise behind the issuance of the
arrest warrant and the "temporary detention" is the possibility of flight of the potential
extraditee. This is based on the assumption that such extraditee is a fugitive from
justice.15 Given the foregoing, the prospective extraditee thus bears the onus probandi of
showing that he or she is not a flight risk and should be granted bail.

The time-honored principle of pacta sunt servanda demands that the Philippines honor
its obligations under the Extradition Treaty it entered into with the Hong Kong Special
Administrative Region. Failure to comply with these obligations is a setback in our
foreign relations and defeats the purpose of extradition. However, it does not necessarily
mean that in keeping with its treaty obligations, the Philippines should diminish a
potential extraditee’s rights to life, liberty, and due process. More so, where these rights
are guaranteed, not only by our Constitution, but also by international conventions, to
which the Philippines is a party. We should not, therefore, deprive an extraditee of his
right to apply for bail, provided that a certain standard for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in granting or
denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the
standard of proof of preponderance of evidence in civil cases. While administrative in
character, the standard of substantial evidence used in administrative cases cannot
likewise apply given the object of extradition law which is to prevent the prospective
extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then
Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which
he termed "clear and convincing evidence" should be used in granting bail in
extradition cases. According to him, this standard should be lower than proof beyond
reasonable doubt but higher than preponderance of evidence. The potential extraditee
must prove by "clear and convincing evidence" that he is not a flight risk and will abide
with all the orders and processes of the extradition court.

In this case, there is no showing that private respondent presented evidence to show that
he is not a flight risk. Consequently, this case should be remanded to the trial court to
determine whether private respondent may be granted bail on the basis of "clear and
convincing evidence."

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to
determine whether private respondent is entitled to bail on the basis of "clear and
convincing evidence." If not, the trial court should order the cancellation of his bail bond
 Petitioners filed the instant petition to compel the respondents the Office of the
SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088 Executive Secretary and the Department of Foreign Affairs to transmit the signed text of
REP. ETTA ROSALES, PHILIPPINE the treaty to the Senate of the Philippines for ratification.
COALITION FOR THE ESTABLISHMENT It is the theory of the petitioners that ratification of a treaty, under both domestic law
OF THE INTERNATIONAL Present: and international law, is a function of the Senate. Hence, it is the duty of the executive
CRIMINAL COURT, TASK FORCE department to transmit the signed copy of the Rome Statute to the Senate to allow it to
DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J., exercise its discretion with respect to ratification of treaties. Moreover, petitioners
FAMILIES OF VICTIMS OF Puno, submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty
INVOLUNTARY DISAPPEARANCES, Panganiban, law and customary international law. Petitioners invoke the Vienna Convention on the
BIANCA HACINTHA R. ROQUE, Quisumbing, Law of Treaties enjoining the states to refrain from acts which would defeat the object
HARRISON JACOB R. ROQUE, Ynares-Santiago, and purpose of a treaty when they have signed the treaty prior to ratification unless they
AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez, have made their intention clear not to become parties to the treaty.[5]
LEAVIDES G. DOMINGO, EDGARDO *Carpio, The Office of the Solicitor General, commenting for the respondents, questioned the
CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez, standing of the petitioners to file the instant suit. It also contended that the petition at
CELESTE CEMBRANO, LIZA ABIERA, *Corona, bar violates the rule on hierarchy of courts. On the substantive issue raised by
JAIME ARROYO, MARWIL LLASOS, Carpio Morales, petitioners, respondents argue that the executive department has no duty to transmit the
CRISTINA ATENDIDO, ISRAFEL Callejo, Sr., Rome Statute to the Senate for concurrence.
FAGELA, and ROMEL BAGARES, Azcuna, A petition for mandamus may be filed when any tribunal, corporation, board, officer or
Petitioners, Tinga, person unlawfully neglects the performance of an act which the law specifically enjoins
Chico-Nazario, and as a duty resulting from an office, trust, or station.[6] We have held that to be given due
- versus - Garcia, JJ. course, a petition for mandamus must have been instituted by a party aggrieved by the
alleged inaction of any tribunal, corporation, board or person which unlawfully excludes
OFFICE OF THE EXECUTIVE said party from the enjoyment of a legal right. The petitioner in every case must
SECRETARY, represented by Promulgated: therefore be an aggrieved party in the sense that he possesses a clear legal right to be
HON. ALBERTO ROMULO, and the enforced and a direct interest in the duty or act to be performed.[7] The Court will
DEPARTMENT OF FOREIGN exercise its power of judicial review only if the case is brought before it by a party who
AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005 has the legal standing to raise the constitutional or legal question. Legal standing means
Respondents. a personal and substantial interest in the case such that the party has sustained or will
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x sustain direct injury as a result of the government act that is being challenged. The term
interest is material interest, an interest in issue and to be affected by the decree, as
DECISION distinguished from mere interest in the question involved, or a mere incidental
interest.[8]
PUNO J.: The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal
standing to file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a
member of the House of Representatives and Chairperson of its Committee on Human
This is a petition for mandamus filed by petitioners to compel the Rights; the Philippine Coalition for the Establishment of the International Criminal Court
Office of the Executive Secretary and the Department of Foreign Affairs to transmit the which is composed of individuals and corporate entities dedicated to the Philippine
signed copy of the Rome Statute of the International Criminal Court to the Senate of the ratification of the Rome Statute; the Task Force Detainees of the Philippines, a juridical
Philippines for its concurrence in accordance with Section 21, Article VII of the 1987 entity with the avowed purpose of promoting the cause of human rights and human
Constitution. rights victims in the country; the Families of Victims of Involuntary Disappearances, a
The Rome Statute established the International Criminal Court which shall have the juridical entity duly organized and existing pursuant to Philippine Laws with the avowed
power to exercise its jurisdiction over persons for the most serious crimes of purpose of promoting the cause of families and victims of human rights violations in the
international concern xxx and shall be complementary to the national criminal country; Bianca Hacintha Roque and Harrison Jacob Roque, aged two (2) and one (1),
jurisdictions.[1] Its jurisdiction covers the crime of genocide, crimes against humanity, respectively, at the time of filing of the instant petition, and suing under the doctrine of
war crimes and the crime of aggression as defined in the Statute.[2] The Statute was inter-generational rights enunciated in the case of Oposa vs. Factoran, Jr.;[9] and a group
opened for signature by all states in Rome on July 17, 1998 and had remained open for of fifth year working law students from the University of the Philippines College of Law
signature until December 31, 2000 at the United Nations Headquarters in New York. The who are suing as taxpayers.
Philippines signed the Statute on December 28, 2000 through Charge d Affairs Enrique A. The question in standing is whether a party has alleged such a personal stake in the
Manalo of the Philippine Mission to the United Nations.[3] Its provisions, however, outcome of the controversy as to assure that concrete adverseness which sharpens the
require that it be subject to ratification, acceptance or approval of the signatory states.[4] presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.[10]
We find that among the petitioners, only Senator Pimentel has the legal standing to file
the instant suit. The other petitioners maintain their standing as advocates and
defenders of human rights, and as citizens of the country. They have not shown,
however, that they have sustained or will sustain a direct injury from the non-transmittal
of the signed text of the Rome Statute to the Senate. Their contention that they will be
deprived of their remedies for the protection and enforcement of their rights does not
persuade. The Rome Statute is intended to complement national criminal laws and
courts. Sufficient remedies are available under our national laws to protect our citizens
against human rights violations and petitioners can always seek redress for any abuse in
our domestic courts.
As regards Senator Pimentel, it has been held that to the extent the powers of Congress
are impaired, so is the power of each member thereof, since his office confers a right to
participate in the exercise of the powers of that institution.[11] Thus, legislators have the
standing to maintain inviolate the prerogatives, powers and privileges vested by the
Constitution in their office and are allowed to sue to question the validity of any official
action which they claim infringes their prerogatives as legislators. The petition at bar
invokes the power of the Senate to grant or withhold its concurrence to a treaty entered
into by the executive branch, in this case, the Rome Statute. The petition seeks to order
the executive branch to transmit the copy of the treaty to the Senate to allow it to
exercise such authority. Senator Pimentel, as member of the institution, certainly has the
legal standing to assert such authority of the Senate.
We now go to the substantive issue.
The core issue in this petition for mandamus is whether the Executive Secretary and the
Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy
of the Rome Statute signed by a member of the Philippine Mission to the United Nations
even without the signature of the President.
We rule in the negative.
In our system of government, the President, being the head of state, is regarded as the
sole organ and authority in external relations and is the countrys sole representative
with foreign nations.[12] As the chief architect of foreign policy, the President acts as the
countrys mouthpiece with respect to international affairs. Hence, the President is vested
with the authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the
business of foreign relations.[13] In the realm of treaty-making, the President has the sole
authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into
treaties, the Constitution provides a limitation to his power by requiring the concurrence
of 2/3 of all the members of the Senate for the validity of the treaty entered into by him.
Section 21, Article VII of the 1987 Constitution provides that no treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all the
Members of the Senate. The 1935 and the 1973 Constitution also required the
concurrence by the legislature to the treaties entered into by the executive. Section 10
(7), Article VII of the 1935 Constitution provided:
Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all
the Members of the Senate, to make treaties xxx.
Section 14 (1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and
effective unless concurred in by a majority of all the Members of the Batasang Pambansa.
The participation of the legislative branch in the treaty-making process was deemed
essential to provide a check on the executive in the field of foreign relations.[14] By
requiring the concurrence of the legislature in the treaties entered into by the President,
the Constitution ensures a healthy system of checks and balance necessary in the nations
pursuit of political maturity and growth.[15]
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987
Constitution to mean that the power to ratify treaties belongs to the Senate.
We disagree.
Justice Isagani Cruz, in his book on International Law, describes the treaty-making
process in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and
exchange of the instruments of ratification. The treaty may then be submitted for
registration and publication under the U.N. Charter, although this step is not essential to
the validity of the agreement as between the parties.
Negotiation may be undertaken directly by the head of state but he now usually assigns
this task to his authorized representatives. These representatives are provided with
credentials known as full powers, which they exhibit to the other negotiators at the start
of the formal discussions. It is standard practice for one of the parties to submit a draft of
the proposed treaty which, together with the counter-proposals, becomes the basis of the
subsequent negotiations. The negotiations may be brief or protracted, depending on the
issues involved, and may even collapse in case the parties are unable to come to an
agreement on the points under consideration.
If and when the negotiators finally decide on the terms of the treaty, the same is opened
for signature. This step is primarily intended as a means of authenticating the instrument
and for the purpose of symbolizing the good faith of the parties; but, significantly, it does
not indicate the final consent of the state in cases where ratification of the treaty is
required. The document is ordinarily signed in accordance with the alternat, that is, each
of the several negotiators is allowed to sign first on the copy which he will bring home to
his own state.
Ratification, which is the next step, is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its representatives. The purpose of
ratification is to enable the contracting states to examine the treaty more closely and to
give them an opportunity to refuse to be bound by it should they find it inimical to their
interests. It is for this reason that most treaties are made subject to the scrutiny and
consent of a department of the government other than that which negotiated them.
xxx
The last step in the treaty-making process is the exchange of the instruments of
ratification, which usually also signifies the effectivity of the treaty unless a different date
has been agreed upon by the parties. Where ratification is dispensed with and no
effectivity clause is embodied in the treaty, the instrument is deemed effective upon its
signature.[16] [emphasis supplied]
Petitioners arguments equate the signing of the treaty by the Philippine representative
with ratification. It should be underscored that the signing of the treaty and the
ratification are two separate and distinct steps in the treaty-making process. As earlier
discussed, the signature is primarily intended as a means of authenticating the
instrument and as a symbol of the good faith of the parties. It is usually performed by the
states authorized representative in the diplomatic mission. Ratification, on the other
hand, is the formal act by which a state confirms and accepts the provisions of a treaty
concluded by its representative. It is generally held to be an executive act, undertaken by
the head of the state or of the government.[17] Thus, Executive Order No. 459 issued by
President Fidel V. Ramos on November 25, 1997 provides the guidelines in the
negotiation of international agreements and its ratification. It mandates that after the
treaty has been signed by the Philippine representative, the same shall be transmitted to
the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare
the ratification papers and forward the signed copy of the treaty to the President for
ratification. After the President has ratified the treaty, the Department of Foreign Affairs
shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of
the Senate, the Department of Foreign Affairs shall comply with the provisions of the
treaty to render it effective. Section 7 of Executive Order No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
Agreement. The domestic requirements for the entry into force of a treaty or an
executive agreement, or any amendment thereto, shall be as follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department of Foreign Affairs
after their signing for the preparation of the ratification papers. The transmittal shall
include the highlights of the agreements and the benefits which will accrue to the
Philippines arising from them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned
agency, shall transmit the agreements to the President of the Philippines for his
ratification. The original signed instrument of ratification shall then be returned to the
Department of Foreign Affairs for appropriate action.
signed by the states representative, the President, being accountable to the people, is
burdened with the responsibility and the duty to carefully study the contents of the
treaty and ensure that they are not inimical to the interest of the state and its people.
Thus, the President has the discretion even after the signing of the treaty by the
Philippine representative whether or not to ratify the same. The Vienna Convention on
the Law of Treaties does not contemplate to defeat or even restrain this power of the
head of states. If that were so, the requirement of ratification of treaties would be
pointless and futile. It has been held that a state has no legal or even moral duty to ratify
a treaty which has been signed by its plenipotentiaries.[18] There is no legal obligation to
ratify a treaty, but it goes without saying that the refusal must be based on substantial
grounds and not on superficial or whimsical reasons. Otherwise, the other state would be
justified in taking offense.[19]
It should be emphasized that under our Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The role of the Senate, however, is
limited only to giving or withholding its consent, or concurrence, to the
ratification.[20] Hence, it is within the authority of the President to refuse to submit a
treaty to the Senate or, having secured its consent for its ratification, refuse to ratify
it.[21] Although the refusal of a state to ratify a treaty which has been signed in its behalf
is a serious step that should not be taken lightly,[22] such decision is within the
competence of the President alone, which cannot be encroached by this Court via a writ
of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President
in the performance of his official duties.[23] The Court, therefore, cannot issue the writ
of mandamusprayed for by the petitioners as it is beyond its jurisdiction to compel the
executive branch of the government to transmit the signed text of Rome Statute to the
Senate.
IN VIEW WHEREOF, the petition is DISMISSED.
SO ORDERED.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with the requirements
provided in sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In
addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the
Philippines for concurrence in the ratification by the President. A certified true copy of
the treaties, in such numbers as may be required by the Senate, together with a certified
true copy of the ratification instrument, shall accompany the submission of the treaties
to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall
comply with the provision of the treaties in effecting their entry into force.

Petitioners submission that the Philippines is bound under treaty law and international
law to ratify the treaty which it has signed is without basis. The signature does not
signify the final consent of the state to the treaty. It is the ratification that binds the state
to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the
representatives of the states be subject to ratification, acceptance or approval of the
signatory states. Ratification is the act by which the provisions of a treaty are formally
confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state
expresses its willingness to be bound by the provisions of such treaty. After the treaty is
G.R. No. L-5 September 17, 1945
CO KIM CHAM (alias CO KIM CHAM), petitioner,
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of
Manila, respondents.1
Marcelino Lontok for petitioner.
P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA, J.:
This petition for mandamus in which petitioner prays that the respondent judge of the
lower court be ordered to continue the proceedings in civil case No. 3012 of said court,
which were initiated under the regime of the so-called Republic of the Philippines
established during the Japanese military occupation of these Islands.
The respondent judge refused to take cognizance of and continue the proceedings in said
case on the ground that the proclamation issued on October 23, 1944, by General
Douglas MacArthur had the effect of invalidating and nullifying all judicial proceedings
and judgements of the court of the Philippines under the Philippine Executive
Commission and the Republic of the Philippines established during the Japanese military
occupation, and that, furthermore, the lower courts have no jurisdiction to take
cognizance of and continue judicial proceedings pending in the courts of the defunct
Republic of the Philippines in the absence of an enabling law granting such authority.
And the same respondent, in his answer and memorandum filed in this Court, contends
that the government established in the Philippines during the Japanese occupation were
no de facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the
next day their Commander in Chief proclaimed "the Military Administration under law
over the districts occupied by the Army." In said proclamation, it was also provided that
"so far as the Military Administration permits, all the laws now in force in the
Commonwealth, as well as executive and judicial institutions, shall continue to be
effective for the time being as in the past," and "all public officials shall remain in their
present posts and carry on faithfully their duties as before."
A civil government or central administration organization under the name of "Philippine
Executive Commission was organized by Order No. 1 issued on January 23, 1942, by the
Commander in Chief of the Japanese Forces in the Philippines, and Jorge B. Vargas, who
was appointed Chairman thereof, was instructed to proceed to the immediate
coordination of the existing central administrative organs and judicial courts, based
upon what had existed therefore, with approval of the said Commander in Chief, who
was to exercise jurisdiction over judicial courts.
The Chairman of the Executive Commission, as head of the central administrative
organization, issued Executive Orders Nos. 1 and 4, dated January 30 and February 5,
1942, respectively, in which the Supreme Court, Court of Appeals, Courts of First
Instance, and the justices of the peace and municipal courts under the Commonwealth
were continued with the same jurisdiction, in conformity with the instructions given to
the said Chairman of the Executive Commission by the Commander in Chief of Japanese
Forces in the Philippines in the latter's Order No. 3 of February 20, 1942, concerning
basic principles to be observed by the Philippine Executive Commission in exercising
legislative, executive and judicial powers. Section 1 of said Order provided that
"activities of the administration organs and judicial courts in the Philippines shall be
based upon the existing statutes, orders, ordinances and customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no
substantial change was effected thereby in the organization and jurisdiction of the
different courts that functioned during the Philippine Executive Commission, and in the
laws they administered and enforced.
On October 23, 1944, a few days after the historic landing in Leyte, General Douglas
MacArthur issued a proclamation to the People of the Philippines which declared:
1. That the Government of the Commonwealth of the Philippines is, subject to
the supreme authority of the Government of the United States, the sole and only
government having legal and valid jurisdiction over the people in areas of the
Philippines free of enemy occupation and control;
2. That the laws now existing on the statute books of the Commonwealth of the
Philippines and the regulations promulgated pursuant thereto are in full force
and effect and legally binding upon the people in areas of the Philippines free of
enemy occupation and control; and
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without
legal effect in areas of the Philippines free of enemy occupation and control.
On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945,
General MacArthur, on behalf of the Government of the United States, solemnly declared
"the full powers and responsibilities under the Constitution restored to the
Commonwealth whose seat is here established as provided by law."
In the light of these facts and events of contemporary history, the principal questions to
be resolved in the present case may be reduced to the following:(1) Whether the judicial
acts and proceedings of the court existing in the Philippines under the Philippine
Executive Commission and the Republic of the Philippines were good and valid and
remained so even after the liberation or reoccupation of the Philippines by the United
States and Filipino forces; (2)Whether the proclamation issued on October 23, 1944, by
General Douglas MacArthur, Commander in Chief of the United States Army, in which he
declared "that all laws, regulations and processes of any of the government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free of enemy occupation and control," has invalidated
all judgements and judicial acts and proceedings of the said courts; and (3) If the said
judicial acts and proceedings have not been invalidated by said proclamation, whether
the present courts of the Commonwealth, which were the same court existing prior to,
and continued during, the Japanese military occupation of the Philippines, may continue
those proceedings pending in said courts at the time the Philippines were reoccupied
and liberated by the United States and Filipino forces, and the Commonwealth of the
Philippines were reestablished in the Islands.
We shall now proceed to consider the first question, that is, whether or not under the
rules of international law the judicial acts and proceedings of the courts established in
the Philippines under the Philippine Executive Commission and the Republic of the
Philippines were good and valid and remained good and valid even after the liberation or
reoccupation of the Philippines by the United States and Filipino forces.
1. It is a legal truism in political and international law that all acts and proceedings of the
legislative, executive, and judicial departments of a de facto government are good and
valid. The question to be determined is whether or not the governments established in
these Islands under the names of the Philippine Executive Commission and Republic of
the Philippines during the Japanese military occupation or regime were de
facto governments. If they were, the judicial acts and proceedings of those governments
remain good and valid even after the liberation or reoccupation of the Philippines by the
American and Filipino forces.
There are several kinds of de facto governments. The first, or government de facto in a
proper legal sense, is that government that gets possession and control of, or usurps, by
force or by the voice of the majority, the rightful legal governments and maintains itself
against the will of the latter, such as the government of England under the
Commonwealth, first by Parliament and later by Cromwell as Protector. The second is
that which is established and maintained by military forces who invade and occupy a
territory of the enemy in the course of war, and which is denominated a government of
paramount force, as the cases of Castine, in Maine, which was reduced to British
possession in the war of 1812, and Tampico, Mexico, occupied during the war with
Mexico, by the troops of the United States. And the third is that established as an
independent government by the inhabitants of a country who rise in insurrection against
the parent state of such as the government of the Southern Confederacy in revolt not
concerned in the present case with the first kind, but only with the second and third
kinds of de facto governments.
Speaking of government "de facto" of the second kind, the Supreme Court of the United
States, in the case of Thorington vs. Smith (8 Wall., 1), said: "But there is another
description of government, called also by publicists a government de facto, but which
might, perhaps, be more aptly denominated a government of paramount force. Its
distinguishing characteristics are (1), that its existence is maintained by active military
power with the territories, and against the rightful authority of an established and lawful
government; and (2), that while it exists it necessarily be obeyed in civil matters by
private citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, or wrongdoers, for those acts, though not warranted by the laws of
the rightful government. Actual governments of this sort are established over districts
differing greatly in extent and conditions. They are usually administered directly by
military authority, but they may be administered, also, civil authority, supported more or
less directly by military force. . . . One example of this sort of government is found in the
case of Castine, in Mine, reduced to British possession in the war of 1812 . . . U. S. vs. Rice
(4 Wheaton, 253). A like example is found in the case of Tampico, occupied during the
war with Mexico, by the troops of the United States . . . Fleming vs. Page (9 Howard, 614).
These were cases of temporary possessions of territory by lawfull and regular
governments at war with the country of which the territory so possessed was part."
The powers and duties of de facto governments of this description are regulated in
Section III of the Hague Conventions of 1907, which is a revision of the provisions of the
Hague Conventions of 1899 on the same subject of said Section III provides "the
authority of the legislative power having actually passed into the hands of the occupant,
the latter shall take steps in his power to reestablish and insure, as far as possible, public
order and safety, while respecting, unless absolutely prevented, the laws in force in the
country."
According to the precepts of the Hague Conventions, as the belligerent occupant has the
right and is burdened with the duty to insure public order and safety during his military
occupation, he possesses all the powers of a de factogovernment, and he can suspended
the old laws and promulgate new ones and make such changes in the old as he may see
fit, but he is enjoined to respect, unless absolutely prevented by the circumstances
prevailing in the occupied territory, the municipal laws in force in the country, that is,
those laws which enforce public order and regulate social and commercial life of the
country. On the other hand, laws of a political nature or affecting political relations, such
as, among others, the right of assembly, the right to bear arms, the freedom of the press,
and the right to travel freely in the territory occupied, are considered as suspended or in
abeyance during the military occupation. Although the local and civil administration of
justice is suspended as a matter of course as soon as a country is militarily occupied, it is
not usual for the invader to take the whole administration into his own hands. In
practice, the local ordinary tribunals are authorized to continue administering justice;
and judges and other judicial officers are kept in their posts if they accept the authority
of the belligerent occupant or are required to continue in their positions under the
supervision of the military or civil authorities appointed, by the Commander in Chief of
the occupant. These principles and practice have the sanction of all publicists who have
considered the subject, and have been asserted by the Supreme Court and applied by the
President of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work on
International Law (Vol. 2, p. 444): "The right of one belligerent to occupy and govern the
territory of the enemy while in its military possession, is one of the incidents of war, and
flows directly from the right to conquer. We, therefore, do not look to the Constitution or
political institutions of the conqueror, for authority to establish a government for the
territory of the enemy in his possession, during its military occupation, nor for the rules
by which the powers of such government are regulated and limited. Such authority and
such rules are derived directly from the laws war, as established by the usage of the of
the world, and confirmed by the writings of publicists and decisions of courts — in fine,
from the law of nations. . . . The municipal laws of a conquered territory, or the laws
which regulate private rights, continue in force during military occupation, excepts so far
as they are suspended or changed by the acts of conqueror. . . . He, nevertheless, has all
the powers of a de facto government, and can at his pleasure either change the existing
laws or make new ones."
And applying the principles for the exercise of military authority in an occupied territory,
which were later embodied in the said Hague Conventions, President McKinley, in his
executive order to the Secretary of War of May 19,1898, relating to the occupation of the
Philippines by United States forces, said in part: "Though the powers of the military
occupant are absolute and supreme, and immediately operate upon the political
condition of the inhabitants, the municipal laws of the conquered territory, such as affect
private rights of person and property and provide for the punishment of crime, are
considered as continuing in force, so far as they are compatible with the new order of
things, until they are suspended or superseded by the occupying belligerent; and in
practice they are not usually abrogated, but are allowed to remain in force and to be
administered by the ordinary tribunals, substantially as they were before the occupation.
This enlightened practice is, so far as possible, to be adhered to on the present occasion.
The judges and the other officials connected with the administration of justice may, if
they accept the authority of the United States, continue to administer the ordinary law of
the land as between man and man under the supervision of the American Commander in
Chief." (Richardson's Messages and Papers of President, X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of the United States, in
the same case of Thorington vs. Smith, supra, recognized the government set up by the
Confederate States as a de factogovernment. In that case, it was held that "the central
government established for the insurgent States differed from the temporary
governments at Castine and Tampico in the circumstance that its authority did no
originate in lawful acts of regular war; but it was not, on the account, less actual or less
supreme. And we think that it must be classed among the governments of which these
are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United
States, discussing the validity of the acts of the Confederate States, said: "The same
general form of government, the same general laws for the administration of justice and
protection of private rights, which had existed in the States prior to the rebellion,
remained during its continuance and afterwards. As far as the Acts of the States do not
impair or tend to impair the supremacy of the national authority, or the just rights of
citizens under the Constitution, they are, in general, to be treated as valid and binding. As
we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657): "The existence of a state of
insurrection and war did not loosen the bonds of society, or do away with civil
government or the regular administration of the laws. Order was to be preserved, police
regulations maintained, crime prosecuted, property protected, contracts enforced,
marriages celebrated, estates settled, and the transfer and descent of property regulated,
precisely as in the time of peace. No one, that we are aware of, seriously questions the
validity of judicial or legislative Acts in the insurrectionary States touching these and
kindered subjects, where they were not hostile in their purpose or mode of enforcement
to the authority of the National Government, and did not impair the rights of citizens
under the Constitution'. The same doctrine has been asserted in numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what
occured or was done in respect of such matters under the authority of the laws of these
local de facto governments should not be disregarded or held to be
invalid merely because those governments were organized in hostility to the Union
established by the national Constitution; this, because the existence of war between the
United States and the Confederate States did not relieve those who are within the
insurrectionary lines from the necessity of civil obedience, nor destroy the bonds of
society nor do away with civil government or the regular administration of the laws, and
because transactions in the ordinary course of civil society as organized within the
enemy's territory although they may have indirectly or remotely promoted the ends of
the de facto or unlawful government organized to effect a dissolution of the Union, were
without blame 'except when proved to have been entered into with actual intent to
further invasion or insurrection:'" and "That judicial and legislative acts in the respective
states composing the so-called Confederate States should be respected by the courts if
they were not hostile in their purpose or mode of enforcement to the authority of the
National Government, and did not impair the rights of citizens under the Constitution."
In view of the foregoing, it is evident that the Philippine Executive Commission, which
was organized by Order No. 1, issued on January 23, 1942, by the Commander of the
Japanese forces, was a civil government established by the military forces of occupation
and therefore a de facto government of the second kind. It was not different from the
government established by the British in Castine, Maine, or by the United States in
Tampico, Mexico. As Halleck says, "The government established over an enemy's
territory during the military occupation may exercise all the powers given by the laws of
war to the conqueror over the conquered, and is subject to all restrictions which that
code imposes. It is of little consequence whether such government be called a military or
civil government. Its character is the same and the source of its authority the same. In
either case it is a government imposed by the laws of war, and so far it concerns the
inhabitants of such territory or the rest of the world, those laws alone determine the
legality or illegality of its acts." (Vol. 2, p. 466.) The fact that the Philippine Executive
Commission was a civil and not a military government and was run by Filipinos and not
by Japanese nationals, is of no consequence. In 1806, when Napoleon occupied the
greater part of Prussia, he retained the existing administration under the general
direction of a french official (Langfrey History of Napoleon, 1, IV, 25); and, in the same
way, the Duke of Willington, on invading France, authorized the local authorities to
continue the exercise of their functions, apparently without appointing an English
superior. (Wellington Despatches, XI, 307.). The Germans, on the other hand, when they
invaded France in 1870, appointed their own officials, at least in Alsace and Lorraine, in
every department of administration and of every rank. (Calvo, pars. 2186-93; Hall,
International Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and organized as a
sovereign state independent from any other government by the Filipino people, was, in
truth and reality, a government established by the belligerent occupant or the Japanese
forces of occupation. It was of the same character as the Philippine Executive
Commission, and the ultimate source of its authority was the same — the Japanese
military authority and government. As General MacArthur stated in his proclamation of
October 23, 1944, a portion of which has been already quoted, "under enemy duress, a
so-called government styled as the 'Republic of the Philippines' was established on
October 14, 1943, based upon neither the free expression of the people's will nor the
sanction of the Government of the United States." Japan had no legal power to grant
independence to the Philippines or transfer the sovereignty of the United States to, or
recognize the latent sovereignty of, the Filipino people, before its military occupation
and possession of the Islands had matured into an absolute and permanent dominion or
sovereignty by a treaty of peace or other means recognized in the law of nations. For it is
a well-established doctrine in International Law, recognized in Article 45 of the Hauge
Conventions of 1907 (which prohibits compulsion of the population of the occupied
territory to swear allegiance to the hostile power), the belligerent occupation, being
essentially provisional, does not serve to transfer sovereignty over the territory
controlled although the de jure government is during the period of occupancy deprived
of the power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9 Cranch,
191; United States vs. Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard, 603;
Downes vs. Bidwell, 182 U. S., 345.) The formation of the Republic of the Philippines was
a scheme contrived by Japan to delude the Filipino people into believing in the apparent
magnanimity of the Japanese gesture of transferring or turning over the rights of
government into the hands of Filipinos. It was established under the mistaken belief that
by doing so, Japan would secure the cooperation or at least the neutrality of the Filipino
people in her war against the United States and other allied nations.
Indeed, even if the Republic of the Philippines had been established by the free will of the
Filipino who, taking advantage of the withdrawal of the American forces from the
Islands, and the occupation thereof by the Japanese forces of invasion, had organized an
independent government under the name with the support and backing of Japan, such
government would have been considered as one established by the Filipinos in
insurrection or rebellion against the parent state or the Unite States. And as such, it
would have been a de facto government similar to that organized by the confederate
states during the war of secession and recognized as such by the by the Supreme Court of
the United States in numerous cases, notably those of Thorington vs. Smith,
Williams vs. Bruffy, and Badly vs. Hunter, above quoted; and similar to the short-lived
government established by the Filipino insurgents in the Island of Cebu during the
Spanish-American war, recognized as a de facto government by the Supreme Court of the
United States in the case of McCleod vs. United States (299 U. S., 416). According to the
facts in the last-named case, the Spanish forces evacuated the Island of Cebu on
December 25, 1898, having first appointed a provisional government, and shortly
afterwards, the Filipinos, formerly in insurrection against Spain, took possession of the
Islands and established a republic, governing the Islands until possession thereof was
surrendered to the United States on February 22, 1898. And the said Supreme Court held
in that case that "such government was of the class of de facto governments described in I
Moore's International Law Digest, S 20, . . . 'called also by publicists a government de
facto, but which might, perhaps, be more aptly denominated a government of paramount
force . . '." That is to say, that the government of a country in possession of belligerent
forces in insurrection or rebellion against the parent state, rests upon the same
principles as that of a territory occupied by the hostile army of an enemy at regular war
with the legitimate power.
The governments by the Philippine Executive Commission and the Republic of the
Philippines during the Japanese military occupation being de facto governments, it
necessarily follows that the judicial acts and proceedings of the courts of justice of those
governments, which are not of a political complexion, were good and valid, and, by virtue
of the well-known principle of postliminy (postliminium) in international law, remained
good and valid after the liberation or reoccupation of the Philippines by the American
and Filipino forces under the leadership of General Douglas MacArthur. According to that
well-known principle in international law, the fact that a territory which has been
occupied by an enemy comes again into the power of its legitimate government of
sovereignty, "does not, except in a very few cases, wipe out the effects of acts done by an
invader, which for one reason or another it is within his competence to do. Thus judicial
acts done under his control, when they are not of a political complexion, administrative
acts so done, to the extent that they take effect during the continuance of his control, and
the various acts done during the same time by private persons under the sanction of
municipal law, remain good. Were it otherwise, the whole social life of a community
would be paralyzed by an invasion; and as between the state and the individuals the evil
would be scarcely less, — it would be hard for example that payment of taxes made
under duress should be ignored, and it would be contrary to the general interest that the
sentences passed upon criminals should be annulled by the disappearance of the
intrusive government ." (Hall, International Law, 7th ed., p. 518.) And when the
occupation and the abandonment have been each an incident of the same war as in the
present case, postliminy applies, even though the occupant has acted as conqueror and
for the time substituted his own sovereignty as the Japanese intended to do apparently
in granting independence to the Philippines and establishing the so-called Republic of
the Philippines. (Taylor, International Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which are not of a
political complexion, are and remain valid after reoccupation of a territory occupied by a
belligerent occupant, is confirmed by the Proclamation issued by General Douglas
MacArthur on October 23, 1944, which declares null and void all laws, regulations and
processes of the governments established in the Philippines during the Japanese
occupation, for it would not have been necessary for said proclamation to abrogate them
if they were invalid ab initio.
2. The second question hinges upon the interpretation of the phrase "processes of any
other government" as used in the above-quoted proclamation of General Douglas
MacArthur of October 23, 1944 — that is, whether it was the intention of the
Commander in Chief of the American Forces to annul and void thereby all judgments and
judicial proceedings of the courts established in the Philippines during the Japanese
military occupation.
The phrase "processes of any other government" is broad and may refer not only to the
judicial processes, but also to administrative or legislative, as well as constitutional,
processes of the Republic of the Philippines or other governmental agencies established
in the Islands during the Japanese occupation. Taking into consideration the fact that, as
above indicated, according to the well-known principles of international law all
judgements and judicial proceedings, which are not of a political complexion, of the de
facto governments during the Japanese military occupation were good and valid before
and remained so after the occupied territory had come again into the power of the titular
sovereign, it should be presumed that it was not, and could not have been, the intention
of General Douglas MacArthur, in using the phrase "processes of any other government"
in said proclamation, to refer to judicial processes, in violation of said principles of
international law. The only reasonable construction of the said phrase is that it refers to
governmental processes other than judicial processes of court proceedings, for according
to a well-known rule of statutory construction, set forth in 25 R. C. L., p. 1028, "a statute
ought never to be construed to violate the law of nations if any other possible
construction remains."
It is true that the commanding general of a belligerent army of occupation, as an agent of
his government, may not unlawfully suspend existing laws and promulgate new ones in
the occupied territory, if and when the exigencies of the military occupation demand
such action. But even assuming that, under the law of nations, the legislative power of a
commander in chief of military forces who liberates or reoccupies his own territory
which has been occupied by an enemy, during the military and before the restoration of
the civil regime, is as broad as that of the commander in chief of the military forces of
invasion and occupation (although the exigencies of military reoccupation are evidently
less than those of occupation), it is to be presumed that General Douglas MacArthur, who
was acting as an agent or a representative of the Government and the President of the
United States, constitutional commander in chief of the United States Army, did not
intend to act against the principles of the law of nations asserted by the Supreme Court
of the United States from the early period of its existence, applied by the Presidents of
the United States, and later embodied in the Hague Conventions of 1907, as above
indicated. It is not to be presumed that General Douglas MacArthur, who enjoined in the
same proclamation of October 23, 1944, "upon the loyal citizens of the Philippines full
respect and obedience to the Constitution of the Commonwealth of the Philippines,"
should not only reverse the international policy and practice of his own government, but
also disregard in the same breath the provisions of section 3, Article II, of our
Constitution, which provides that "The Philippines renounces war as an instrument of
national policy, and adopts the generally accepted principles of international law as part
of the law of the Nation."
Moreover, from a contrary construction great inconvenience and public hardship would
result, and great public interests would be endangered and sacrificed, for disputes or
suits already adjudged would have to be again settled accrued or vested rights nullified,
sentences passed on criminals set aside, and criminals might easily become immune for
evidence against them may have already disappeared or be no longer available,
especially now that almost all court records in the Philippines have been destroyed by
fire as a consequence of the war. And it is another well-established rule of statutory
construction that where great inconvenience will result from a particular construction,
or great public interests would be endangered or sacrificed, or great mischief done, such
construction is to be avoided, or the court ought to presume that such construction was
not intended by the makers of the law, unless required by clear and unequivocal words.
(25 R. C. L., pp. 1025, 1027.)
The mere conception or thought of possibility that the titular sovereign or his
representatives who reoccupies a territory occupied by an enemy, may set aside or annul
all the judicial acts or proceedings of the tribunals which the belligerent occupant had
the right and duty to establish in order to insure public order and safety during military
occupation, would be sufficient to paralyze the social life of the country or occupied
territory, for it would have to be expected that litigants would not willingly submit their
litigation to courts whose judgements or decisions may afterwards be annulled, and
criminals would not be deterred from committing crimes or offenses in the expectancy
that they may escaped the penalty if judgments rendered against them may be
afterwards set aside.
That the proclamation has not invalidated all the judgements and proceedings of the
courts of justice during the Japanese regime, is impliedly confirmed by Executive Order
No. 37, which has the force of law, issued by the President of the Philippines on March
10, 1945, by virtue of the emergency legislative power vested in him by the Constitution
and the laws of the Commonwealth of the Philippines. Said Executive order abolished the
Court of Appeals, and provided "that all case which have heretofore been duly appealed
to the Court of Appeals shall be transmitted to the Supreme Court final decision." This
provision impliedly recognizes that the judgments and proceedings of the courts during
the Japanese military occupation have not been invalidated by the proclamation of
General MacArthur of October 23, because the said Order does not say or refer to cases
which have been duly appealed to said court prior to the Japanese occupation, but to
cases which had therefore, that is, up to March 10, 1945, been duly appealed to the Court
of Appeals; and it is to be presumed that almost all, if not all, appealed cases pending in
the Court of Appeals prior to the Japanese military occupation of Manila on January 2,
1942, had been disposed of by the latter before the restoration of the Commonwealth
Government in 1945; while almost all, if not all, appealed cases pending on March 10,
1945, in the Court of Appeals were from judgments rendered by the Court of First Instance
during the Japanese regime.
The respondent judge quotes a portion of Wheaton's International Law which say:
"Moreover when it is said that an occupier's acts are valid and under international law
should not be abrogated by the subsequent conqueror, it must be remembered that no
crucial instances exist to show that if his acts should be reversed, any international
wrong would be committed. What does happen is that most matters are allowed to stand
by the restored government, but the matter can hardly be put further than this."
(Wheaton, International Law, War, 7th English edition of 1944, p. 245.) And from this
quotion the respondent judge "draws the conclusion that whether the acts of the
occupant should be considered valid or not, is a question that is up to the restored
government to decide; that there is no rule of international law that denies to the
restored government to decide; that there is no rule of international law that denies to
the restored government the right of exercise its discretion on the matter, imposing upon
it in its stead the obligation of recognizing and enforcing the acts of the overthrown
government."
There is doubt that the subsequent conqueror has the right to abrogate most of the acts
of the occupier, such as the laws, regulations and processes other than judicial of the
government established by the belligerent occupant. But in view of the fact that the
proclamation uses the words "processes of any other government" and not "judicial
processes" prisely, it is not necessary to determine whether or not General Douglas
MacArthur had power to annul and set aside all judgments and proceedings of the courts
during the Japanese occupation. The question to be determined is whether or not it was
his intention, as representative of the President of the United States, to avoid or nullify
them. If the proclamation had, expressly or by necessary implication, declared null and
void the judicial processes of any other government, it would be necessary for this court
to decide in the present case whether or not General Douglas MacArthur had authority to
declare them null and void. But the proclamation did not so provide, undoubtedly
because the author thereof was fully aware of the limitations of his powers as
Commander in Chief of Military Forces of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law, as they
result from the usages established between civilized nations, the laws of humanity and
the requirements of the public of conscience, constitute or from the law of nations.
(Preamble of the Hague Conventions; Westlake, International Law, 2d ed., Part II, p. 61.)
Article 43, section III, of the Hague Regulations or Conventions which we have already
quoted in discussing the first question, imposes upon the occupant the obligation to
establish courts; and Article 23 (h), section II, of the same Conventions, which prohibits
the belligerent occupant "to declare . . . suspended . . . in a Court of Law the rights and
action of the nationals of the hostile party," forbids him to make any declaration
preventing the inhabitants from using their courts to assert or enforce their civil rights.
(Decision of the Court of Appeals of England in the case of Porter vs. Fruedenburg, L.R.
[1915], 1 K.B., 857.) If a belligerent occupant is required to establish courts of justice in
the territory occupied, and forbidden to prevent the nationals thereof from asserting or
enforcing therein their civil rights, by necessary implication, the military commander of
the forces of liberation or the restored government is restrained from nullifying or
setting aside the judgments rendered by said courts in their litigation during the period
of occupation. Otherwise, the purpose of these precepts of the Hague Conventions would
be thwarted, for to declare them null and void would be tantamount to suspending in
said courts the right and action of the nationals of the territory during the military
occupation thereof by the enemy. It goes without saying that a law that enjoins a person
to do something will not at the same time empower another to undo the same. Although
the question whether the President or commanding officer of the United States Army has
violated restraints imposed by the constitution and laws of his country is obviously of a
domestic nature, yet, in construing and applying limitations imposed on the executive
authority, the Supreme Court of the United States, in the case of Ochoa, vs. Hernandez
(230 U.S., 139), has declared that they "arise from general rules of international law and
from fundamental principles known wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in
command of the forces of the United States in South Carolina after the end of the Civil
War, wholly annulling a decree rendered by a court of chancery in that state in a case
within its jurisdiction, was declared void, and not warranted by the acts approved
respectively March 2, 1867 (14 Stat., 428), and July 19 of the same year (15 id., 14),
which defined the powers and duties of military officers in command of the several
states then lately in rebellion. In the course of its decision the court said; "We have
looked carefully through the acts of March 2, 1867 and July 19, 1867. They give very
large governmental powers to the military commanders designated, within the States
committed respectively to their jurisdiction; but we have found nothing to warrant the
order here in question. . . . The clearest language would be necessary to satisfy us that
Congress intended that the power given by these acts should be so exercised. . . . It was
an arbitrary stretch of authority, needful to no good end that can be imagined. Whether
Congress could have conferred the power to do such an act is a question we are not
called upon to consider. It is an unbending rule of law that the exercise of military power,
where the rights of the citizen are concerned, shall never be pushed beyond what the
exigency requires. (Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67;
Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject
before us from the standpoint indicated, we hold that the order was void."
It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944,
which declared that "all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void without legal effect in
areas of the Philippines free of enemy occupation and control," has not invalidated the
judicial acts and proceedings, which are not a political complexion, of the courts of
justice in the Philippines that were continued by the Philippine Executive Commission
and the Republic of the Philippines during the Japanese military occupation, and that
said judicial acts and proceedings were good and valid before and now good and valid
after the reoccupation of liberation of the Philippines by the American and Filipino
forces.
3. The third and last question is whether or not the courts of the Commonwealth, which
are the same as those existing prior to, and continued during, the Japanese military
occupation by the Philippine Executive Commission and by the so-called Republic of the
Philippines, have jurisdiction to continue now the proceedings in actions pending in said
courts at the time the Philippine Islands were reoccupied or liberated by the American
and Filipino forces, and the Commonwealth Government was restored.
Although in theory the authority the authority of the local civil and judicial
administration is suspended as a matter of course as soon as military occupation takes
place, in practice the invader does not usually take the administration of justice into his
own hands, but continues the ordinary courts or tribunals to administer the laws of the
country which he is enjoined, unless absolutely prevented, to respect. As stated in the
above-quoted Executive Order of President McKinley to the Secretary of War on May 19,
1898, "in practice, they (the municipal laws) are not usually abrogated but are allowed to
remain in force and to be administered by the ordinary tribunals substantially as they
were before the occupation. This enlightened practice is, so far as possible, to be adhered
to on the present occasion." And Taylor in this connection says: "From a theoretical point
of view it may be said that the conqueror is armed with the right to substitute his
arbitrary will for all preexisting forms of government, legislative, executive and judicial.
From the stand-point of actual practice such arbitrary will is restrained by the provision
of the law of nations which compels the conqueror to continue local laws and institution
so far as military necessity will permit." (Taylor, International Public Law, p.596.)
Undoubtedly, this practice has been adopted in order that the ordinary pursuits and
business of society may not be unnecessarily deranged, inasmuch as belligerent
occupation is essentially provisional, and the government established by the occupant of
transient character.
Following these practice and precepts of the law of nations, Commander in Chief of the
Japanese Forces proclaimed on January 3, 1942, when Manila was occupied, the military
administration under martial law over the territory occupied by the army, and ordered
that "all the laws now in force in the Commonwealth, as well as executive and judicial
institutions, shall continue to be affective for the time being as in the past," and "all
public officials shall remain in their present post and carry on faithfully their duties as
before." When the Philippine Executive Commission was organized by Order No. 1 of the
Japanese Commander in Chief, on January 23, 1942, the Chairman of the Executive
Commission, by Executive Orders Nos. 1 and 4 of January 30 and February 5,
respectively, continued the Supreme Court, Court of Appeals, Court of First Instance, and
justices of the peace of courts, with the same jurisdiction in conformity with the
instructions given by the Commander in Chief of the Imperial Japanese Army in Order
No. 3 of February 20, 1942. And on October 14, 1943 when the so-called Republic of the
Philippines was inaugurated, the same courts were continued with no substantial change
in organization and jurisdiction thereof.
If the proceedings pending in the different courts of the Islands prior to the Japanese
military occupation had been continued during the Japanese military administration, the
Philippine Executive Commission, and the so-called Republic of the Philippines, it stands
to reason that the same courts, which had become reestablished and conceived of as
having in continued existence upon the reoccupation and liberation of the Philippines by
virtue of the principle of postliminy (Hall, International Law, 7th ed., p. 516), may
continue the proceedings in cases then pending in said courts, without necessity of
enacting a law conferring jurisdiction upon them to continue said proceedings. As Taylor
graphically points out in speaking of said principles "a state or other governmental
entity, upon the removal of a foreign military force, resumes its old place with its right
and duties substantially unimpaired. . . . Such political resurrection is the result of a law
analogous to that which enables elastic bodies to regain their original shape upon
removal of the external force, — and subject to the same exception in case of absolute
crushing of the whole fibre and content." (Taylor, International Public Law, p. 615.)
The argument advanced by the respondent judge in his resolution in support in his
conclusion that the Court of First Instance of Manila presided over by him "has no
authority to take cognizance of, and continue said proceedings (of this case) to final
judgment until and unless the Government of the Commonwealth of the Philippines . . .
shall have provided for the transfer of the jurisdiction of the courts of the now defunct
Republic of the Philippines, and the cases commenced and the left pending therein," is
"that said courts were a government alien to the Commonwealth Government. The laws
they enforced were, true enough, laws of the Commonwealth prior to Japanese
occupation, but they had become the laws — and the courts had become the institutions
— of Japan by adoption (U.S. vs.Reiter. 27 F. Cases, No. 16146), as they became later on
the laws and institutions of the Philippine Executive Commission and the Republic of the
Philippines."
The court in the said case of U.S. vs. Reiter did not and could not say that the laws and
institutions of the country occupied if continued by the conqueror or occupant, become
the laws and the courts, by adoption, of the sovereign nation that is militarily occupying
the territory. Because, as already shown, belligerent or military occupation is essentially
provisional and does not serve to transfer the sovereignty over the occupied territory to
the occupant. What the court said was that, if such laws and institutions are continued in
use by the occupant, they become his and derive their force from him, in the sense that
he may continue or set them aside. The laws and institution or courts so continued
remain the laws and institutions or courts of the occupied territory. The laws and the
courts of the Philippines, therefore, did not become, by being continued as required by
the law of nations, laws and courts of Japan. The provision of Article 45, section III, of the
Hague Conventions of 1907 which prohibits any compulsion of the population of
occupied territory to swear allegiance to the hostile power, "extends to prohibit
everything which would assert or imply a change made by the invader in the legitimate
sovereignty. This duty is neither to innovate in the political life of the occupied districts,
nor needlessly to break the continuity of their legal life. Hence, so far as the courts of
justice are allowed to continue administering the territorial laws, they must be allowed
to give their sentences in the name of the legitimate sovereign " (Westlake, Int. Law, Part
II, second ed., p. 102). According to Wheaton, however, the victor need not allow the use
of that of the legitimate government. When in 1870, the Germans in France attempted to
violate that rule by ordering, after the fall of the Emperor Napoleon, the courts of Nancy
to administer justice in the name of the "High German Powers occupying Alsace and
Lorraine," upon the ground that the exercise of their powers in the name of French
people and government was at least an implied recognition of the Republic, the courts
refused to obey and suspended their sitting. Germany originally ordered the use of the
name of "High German Powers occupying Alsace and Lorraine," but later offered to allow
use of the name of the Emperor or a compromise. (Wheaton, International Law, War, 7th
English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once
established continues until changed by the some competent legislative power. It is not
change merely by change of sovereignty." (Joseph H. Beale, Cases on Conflict of Laws, III,
Summary Section 9, citing Commonwealth vs. Chapman, 13 Met., 68.) As the same author
says, in his Treatise on the Conflict on Laws (Cambridge, 1916, Section 131): "There can
no break or interregnum in law. From the time the law comes into existence with the
first-felt corporateness of a primitive people it must last until the final disappearance of
human society. Once created, it persists until a change take place, and when changed it
continues in such changed condition until the next change, and so forever. Conquest or
colonization is impotent to bring law to an end; in spite of change of constitution, the law
continues unchanged until the new sovereign by legislative acts creates a change."
As courts are creatures of statutes and their existence defends upon that of the laws
which create and confer upon them their jurisdiction, it is evident that such laws, not
being a political nature, are not abrogated by a change of sovereignty, and continue in
force "ex proprio vigore" unless and until repealed by legislative acts. A proclamation
that said laws and courts are expressly continued is not necessary in order that they may
continue in force. Such proclamation, if made, is but a declaration of the intention of
respecting and not repealing those laws. Therefore, even assuming that Japan had legally
acquired sovereignty over these Islands, which she had afterwards transferred to the so-
called Republic of the Philippines, and that the laws and the courts of these Islands had
become the courts of Japan, as the said courts of the laws creating and conferring
jurisdiction upon them have continued in force until now, it necessarily follows that the
same courts may continue exercising the same jurisdiction over cases pending therein
before the restoration of the Commonwealth Government, unless and until they are
abolished or the laws creating and conferring jurisdiction upon them are repealed by the
said government. As a consequence, enabling laws or acts providing that proceedings
pending in one court be continued by or transferred to another court, are not required
by the mere change of government or sovereignty. They are necessary only in case the
former courts are abolished or their jurisdiction so change that they can no longer
continue taking cognizance of the cases and proceedings commenced therein, in order
that the new courts or the courts having jurisdiction over said cases may continue the
proceedings. When the Spanish sovereignty in the Philippine Islands ceased and the
Islands came into the possession of the United States, the "Audiencia" or Supreme Court
was continued and did not cease to exist, and proceeded to take cognizance of the actions
pending therein upon the cessation of the Spanish sovereignty until the said "Audiencia"
or Supreme Court was abolished, and the Supreme Court created in Chapter II of Act No.
136 was substituted in lieu thereof. And the Courts of First Instance of the Islands during
the Spanish regime continued taking cognizance of cases pending therein upon the
change of sovereignty, until section 65 of the same Act No. 136 abolished them and
created in its Chapter IV the present Courts of First Instance in substitution of the
former. Similarly, no enabling acts were enacted during the Japanese occupation, but a
mere proclamation or order that the courts in the Island were continued.
On the other hand, during the American regime, when section 78 of Act No. 136 was
enacted abolishing the civil jurisdiction of the provost courts created by the military
government of occupation in the Philippines during the Spanish-American War of 1898,
the same section 78 provided for the transfer of all civil actions then pending in the
provost courts to the proper tribunals, that is, to the justices of the peace courts, Court of
First Instance, or Supreme Court having jurisdiction over them according to law. And
later on, when the criminal jurisdiction of provost courts in the City of Manila was
abolished by section 3 of Act No. 186, the same section provided that criminal cases
pending therein within the jurisdiction of the municipal court created by Act No. 183
were transferred to the latter.

That the present courts as the same courts which had been functioning during the
Japanese regime and, therefore, can continue the proceedings in cases pending therein
prior to the restoration of the Commonwealth of the Philippines, is confirmed by
Executive Order No. 37 which we have already quoted in support of our conclusion in
connection with the second question. Said Executive Order provides"(1) that the Court of
Appeals created and established under Commonwealth Act No. 3 as amended, be
abolished, as it is hereby abolished," and "(2) that all cases which have heretofore been
duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for final
decision. . . ." In so providing, the said Order considers that the Court of Appeals
abolished was the same that existed prior to, and continued after, the restoration of the
Commonwealth Government; for, as we have stated in discussing the previous question,
almost all, if not all, of the cases pending therein, or which had theretofore (that is, up to
March 10, 1945) been duly appealed to said court, must have been cases coming from
the Courts of First Instance during the so-called Republic of the Philippines. If the Court
of Appeals abolished by the said Executive Order was not the same one which had been
functioning during the Republic, but that which had existed up to the time of the
Japanese occupation, it would have provided that all the cases which had, prior to and up
to that occupation on January 2, 1942, been dully appealed to the said Court of Appeals
shall be transmitted to the Supreme Court for final decision.

It is, therefore, obvious that the present courts have jurisdiction to continue, to final
judgment, the proceedings in cases, not of political complexion, pending therein at the
time of the restoration of the Commonwealth Government.

Having arrived at the above conclusions, it follows that the Court of First Instance of
Manila has jurisdiction to continue to final judgment the proceedings in civil case No.
3012, which involves civil rights of the parties under the laws of the Commonwealth
Government, pending in said court at the time of the restoration of the said Government;
and that the respondent judge of the court, having refused to act and continue him does a
duty resulting from his office as presiding judge of that court, mandamus is the speedy
and adequate remedy in the ordinary course of law, especially taking into consideration
the fact that the question of jurisdiction herein involved does affect not only this
particular case, but many other cases now pending in all the courts of these Islands.

In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue,
directed to the respondent judge of the Court of First Instance of Manila, ordering him to
take cognizance of and continue to final judgment the proceedings in civil case No. 3012
of said court. No pronouncement as to costs. So ordered.

Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.