Secretary of Justice vs Judge Lantion

8/3/2019 Secretary of Justice vs Judge Lantion

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Secretary of justice vs judge lantion

Nature: Petition for review of a decision of the Manila RTCFacts: On June 18, 1999 the Department of Justice received from the Department ofForeign Affairs a request for the extradition of private respondent Mark Jimenez to the

U.S. The Grand Jury Indictment, the warrant for his arrest, and other supportingdocuments for said extradition were attached along with the request. Charges include:1. Conspiracy to commit offense or to defraud the US2. Attempt to evade or defeat tax3. Fraud by wire, radio, or television4. False statement or entries5. Election contribution in name of anotherThe Department of Justice (DOJ), through a designated panel proceeded with thetechnical evaluation and assessment of the extradition treaty which they found havingmatters needed to be addressed. Respondent, then requested for copies of all thedocuments included in the extradition request and for him to be given ample time to

assess it.The Secretary of Justice denied request on the ff. grounds:1. He found it premature to secure him copies prior to the completion of theevaluation. At that point in time, the DOJ is in the process of evaluating whether theprocedures and requirements under the relevant law (PD 1069Philippine ExtraditionLaw) and treaty (RP-US Extradition Treaty) have been complied with by the RequestingGovernment. Evaluation by the DOJ of the documents is not a preliminary investigationlike in criminal cases making the constitutionally guaranteed rights of the accused in

criminal prosecution inapplicable.2. The U.S. requested for the prevention of unauthorized disclosure of the

information in the documents.3. Finally, country is bound to Vienna convention on law of treaties such thatevery treaty in force is binding upon the parties.The respondent filed for petition of mandamus, certiorari, and prohibition. The RTC ofNCR ruled in favor of the respondent. Secretary of Justice was made to issue a copy ofthe requested papers, as well as conducting further proceedings.Issues:1. WON private is respondent entitled to the two basic due process rights ofnotice and hearing

Yes. 2(a) of PD 1086 defines extradition as the removal of an accused from thePhilippines 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 criminalinvestigation directed against him in connection with any criminal investigation directedagainst him or the execution of a penalty imposed on him under the penal or criminallaw of the requesting state or government. Although the inquisitorial power exercisedby the DOJ as an administrative agency due to the failure of the DFA to comply lacksany judicial discretion, it primarily sets the wheels for the extradition process which mayultimately result in the deprivation of the liberty of the prospective extradite. This


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deprivation can be effected at two stages: The provisional arrest of the prospectiveextradite pending the submission of the request & the temporary arrest of theprospective extradite during the pendency of the extradition petition in court. Clearly,theres an impending threat to a prospective extraditees liberty as early as during theevaluation stage. Because of such consequences, the evaluation process is akin to an

administrative agency conducting an investigative proceeding, the consequences ofwhich are essentially criminal since such technical assessment sets off or commencesthe procedure for & ultimately the deprivation of liberty of a prospective extradite. Inessence, therefore, the evaluation process partakes of the nature of a criminalinvestigation. There are certain constitutional rights that are ordinarily available only incriminal prosecution. But the Court has ruled in other cases that where the investigationof an administrative proceeding may result in forfeiture of life, liberty, or property, theadministrative proceedings are deemed criminal or penal, & such forfeiture partakes thenature of a penalty. In the case at bar, similar to a preliminary investigation, theevaluation stage of the extradition proceedings which may result in the filing of aninformation against the respondent, can possibly lead to his arrest, & to the deprivationof his liberty. Thus, the extraditee must be accorded due process rights of notice &hearing according to A3 14(1) & (2), as well as A3 7the right of the people toinformation on matters of public concern & the corollary right to access to officialrecords & documentsThe court held that the evaluation process partakes of the nature of a criminalinvestigation, having consequences which will result in deprivation of liberty of theprospective extradite. A favorable action in an extradition request exposes a person toeventual extradition to a foreign country, thus exhibiting the penal aspect of theprocess. The evaluation process itself is like a preliminary investigation since bothprocedures may have the same result the arrest and imprisonment of the respondent.

The basic rights of notice & hearing are applicable in criminal, civil & administrativeproceedings. Non-observance of these rights will invalidate the proceedings.Individuals are entitled to be notified of any pending case affecting their interests, &upon notice, may claim the right to appear therein & present their side.Rights to notice and hearing: Dispensable in 3 cases:a. When there is an urgent need for immediate action (preventive suspension inadministrative charges, padlocking filthy restaurants, cancellation of passport).b. Where there is tentativeness of administrative action, & the respondent isntprevented from enjoying the right to notice & hearing at a later time (summary distraint& levy of the property of a delinquent taxpayer, replacement of an appointee)c. Twin rights have been offered, but the right to exercise them had not been

claimed.2. WON this entitlement constitutes a breach of the legal commitments andobligation of the Philippine Government under the RP-US Treaty?No. The U.S. and the Philippines share mutual concern about the suppression andpunishment of crime in their respective jurisdictions. Both states accord common dueprocess protection to their respective citizens. The administrative investigation doesnt


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fall under the three exceptions to the due process of notice and hearing in the Sec. 3Rules 112 of the Rules of Court.3. WON theres any conflict between private respondents basic due processrights & provisions of RP-US Extradition treatyNo. Doctrine of incorporation under international law, as applied in most countries,

decrees that rules of international law are given equal standing with, but are notsuperior to national legislative acts. Treaty can repeal statute and statute can repealtreaty. No conflict. Veil of secrecy is lifted during trial. Request should impose veil atany stage.Judgment: Petition dismissed for lack of merit.Kapunan, separate concurring opinion: While the evaluation process conducted by theDOJ is not exactly a preliminary investigation of criminal cases, it is akin to apreliminary investigation because it involves the basic constitutional rights of the personsought to be extradited. A person ordered extradited is arrested, forcibly taken from hishouse, separated from his family and delivered to a foreign state. His rights of abode,to privacy, liberty and pursuit of happiness are taken away from hima fate as harshand cruel as a conviction of a criminal offense. For this reason, he is entitled to haveaccess to the evidence against him and the right to controvert them.Puno, dissenting: Case at bar does not involve guilt or innocence of an accused but theinterpretation of an extradition treaty where at stake is our governments internationalobligation to surrender to a foreign state a citizen of its own so he can be tried for analleged offense committed within that jurisdiction.Panganiban, dissenting: Instant petition refers only to the evaluation stage.

Govt. of the USA vs. Purganan, G.R. No. 148571, Sept. 24, 2002

FACTS:

Pursuant to the existing RP-US Extradition Treaty, the US Government requested theextradition of Mark Jimenez. A hearing was held to determine whether a warrant ofarrest should be issued. Afterwards, such warrant was issued but the trial court allowedJimenez to post bail for his provisional liberty.

ISSUE:

Whether or not extraditee is entitled to notice and hearing before issuance ofwarrant of arrest

Whether or not the right to bail is available in extradition proceedings

RULING:

Five Postulates of Extradition


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1. Extradition Is a Major Instrument for the Suppression of Crime.

First, extradition treaties are entered into for the purpose of suppressing crime by

facilitating the arrest and the custodial transfer of a fugitive 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.

xxx

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 others legal system and judicial process. More

pointedly, our duly authorized representatives 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. 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, extradition proceedings are not


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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 beginwith, 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.

x x x x x x x x x

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 nations 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. 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 assistingauthorities to enter into questions that are the prerogative of that jurisdiction. The

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.

4. Compliance Shall Be in Good Faith.


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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 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.

Verily, we are bound by pacta sunt servanda to comply in good faith with our

obligations under the Treaty. 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. 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 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. 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 withare 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?


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Due Process

Is an extraditee entitled to notice and hearing before the issuance of a warrant of

arrest?

It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the wordimmediate 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, receiving facts and arguments from them, and

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.

xxx

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 thingsto 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.


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x x x

At most, in cases of clear insufficiency of evidence on record, judges merely further

examine complainants and their witnesses. In the present case, validating the act ofrespondent 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 respondents demonstrated predisposition to flee.

PAUL JOSEPH WRIGHT vs. CA, G.R. No. 113213 August 15, 1994

Australia and the Government of the Philippines in the suppression of crime, 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 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. 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.

ISSUE: Can an extradition treaty be applied retroactively?

HELD: Applying the constitutional principle, the Court has held that the prohibition

applies only to criminal legislation which affects the substantial rights of the accused.

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


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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.

Cuevas vs Munoz

The antecedent facts: chanrobles virtual law library

On August 23, 1997, the Hong Kong Magistrates Court at Eastern Magistracy issued awarrant for the arrest of respondent for seven (7) counts of accepting an advantage asan agent contrary to Section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201

of Hong Kong, and seven (7) counts of conspiracy to defraud, contrary to the commonlaw of Hong Kong.3Said warrant remains in full force and effect up to the presenttime.4chanrobles virtual law library

On September 13, 1999, the Philippine Department of Justice (hereafter, PhilippineDOJ) received a request for the provisional arrest of the respondent from the MutualLegal Assistance Unit, International Law Division of the Hong Kong Department ofJustice (hereafter, Hong Kong DOJ)5pursuant to Article 11(1) of the AgreementBetween The Government Of The Republic Of The Philippines And The Government OfHong Kong For The Surrender Of Accused And Convicted Persons (hereafter, RP-HongKong Extradition Agreement).6The Philippine DOJ forwarded the request for provisional

arrest to the Anti-Graft Division of the National Bureau of Investigation(NBI). chanrobles virtual law library

On September 17, 1999, for and in behalf of the government of Hong Kong, the NBIfiled an application for the provisional arrest of respondent with the Regional Trial Court(RTC) of Manila. chanrobles virtual law library

On September 20, 1999, Branch 19 of the RTC of Manila issued an Order granting theapplication for provisional arrest and issuing the corresponding Order of

Arrest.[7 chanrobles virtual law library

On September 23, 1999, respondent was arrested pursuant to the said order, and iscurrently detained at the NBI detention cell.8chanrobles virtual law library

On October 14, 1999, respondent filed with the Court of Appeals, a petitionfor certiorari, prohibition and mandamus with application for preliminary mandatoryinjunction and/or writ ofhabeas corpusassailing the validity of the Order of Arrest. The
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Court of Appeals rendered a decision declaring the Order of Arrest null and void on thefollowing grounds: chanrobles virtual law library

(1) that there was no urgency to warrant the request for provisional arrest under Article11(1) of the RP-Hong Kong Extradition Agreement;[9 chanrobles virtual law library

(2) that the request for provisional arrest and the accompanying warrant of arrest andsummary of facts were unauthenticated and mere facsimile copies which are insufficientto form a basis for the issuance of the Order of Arrest;[10chanrobles virtual law library

(3) that the twenty (20) day period for provisional arrest under Section 20(d) ofPresidential Decree No. 1069 otherwise known as the Philippine Extradition Law, wasnot amended by Article 11(3) of the RP-Hong Kong Extradition Agreement whichprovides for a forty-five (45) day period for provisional arrest;11chanrobles virtual lawlibrary

(4) that the Order of Arrest was issued without the Judge having personally determinedthe existence of probable cause;[12 and chanrobles virtual law library

(5) that the requirement of dual criminality under Section 3(a) of P.D. No. 1069 has notbeen satisfied as the crimes for which respondent is wanted in Hong Kong, namelyaccepting an advantage as an agent and conspiracy to commit fraud, are notpunishable by Philippine laws.[13 chanrobles virtual law library

Thus, petitioner Justice Serafin R. Cuevas, in his capacity as the Secretary of theDepartment of Justice, lost no time in filing the instant petition.[14 chanrobles virtual

law library

On November 17, 1999, respondent filed an Urgent Motion For Release Pending Appeal.He primarily contended that, since Section 20(d) of P.D. No. 1069 sets the maximumperiod of provisional arrest at twenty (20) days, and he has been detained beyond thesaid period, without both a request for extradition having been received by thePhilippine DOJ and the corresponding petition for extradition having been filed in theproper RTC, he should be released from detention. 15chanrobles virtual law library

On December 16, 1999, petitioner filed a Manifestation with this Court stressing the fact

that as early as November 5, 1999, the Philippine DOJ had already received from the

Hong Kong DOJ, a formal request for the surrender of respondent. Petitioner alsoinformed this Court that pursuant to the said request for extradition, the Philippine DOJ,representing the Government of Hong Kong, filed on November 22, 1999, a verifiedpetition for the extradition of respondent docketed as Case No. 99-95733 and currentlypending in Branch 10 of the RTC of Manila.16chanrobles virtual law library

Petitioner submits that the Court of Appeals erred in nullifying the Order of provisionalarrest against respondent. chanrobles virtual law library
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Petitioner imputes the following errors in the subject Decision of the Court of Appeals,to wit:

I chanrobles virtual law library

The Court of Appeals gravely erred in holding that: chanrobles virtual law library

A. there was no urgency for the provisional arrest of respondent; chanrobles virtual lawlibrary

B. the municipal law (P.D. No. 1069) subordinates an international agreement (RP-Hongkong Agreement); chanrobles virtual law library

C. the supporting documents for a request for provisional arrest have to beauthenticated; chanrobles virtual law library

D. there was lack of factual and legal bases in the determination of probable cause;and chanrobles virtual law library

E. the offense of accepting an advantage as an agent is not an offense under the Anti-Graft and Corrupt Practices Act, as amended.

II chanrobles virtual law library

The Court of Appeals seriously erred in declaring as null and void the trial courts Orderof Arrest dated September 20, 1999 despite that (sic) respondent waived the right to

assail the order of arrest by filing in the trial court a motion for release on recognizance,that (sic) the issue of legality of the order of arrest was being determined by the trialcourt, and respondent mocked the established rules of procedure intended for anorderly administration of justice.[17 chanrobles virtual law library

Petitioner takes exception to the finding of the Court of Appeals that the offense ofaccepting an advantage as an agent is not punishable under Republic Act (R.A.) No.3019 otherwise known as the Anti-Graft and Corrupt Practices Act, thus, obviating theapplication of P.D. No. 106918that requires the offense to be punishable under the lawsboth of the requesting state or government and the Republic of the

Philippines.19chanrobles virtual law library

However, the issue of whether or not the rule of double criminality applies was not forthe Court of Appeals to decide in the first place. The trial court in which the petition forextradition is filed is vested with jurisdiction to determine whether or not the offensesmentioned in the petition are extraditable based on the application of the dualcriminality rule and other conditions mentioned in the applicable treaty. In this case, thepresiding Judge of Branch 10 of the RTC of Manila has yet to rule on the extraditabilityof the offenses for which the respondent is wanted in Hong Kong. Therefore,
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respondent has prematurely raised this issue before the Court of Appeals and now,before this Court. chanrobles virtual law library

Petitioners other arguments, however, are impressed with merit. chanrobles virtual lawlibrary

First. There was urgency for the provisional arrest of the respondent. chanrobles virtuallaw library

Section 20(a) of P.D. No. 1069 reads as follows: chanrobles virtual law library

Provisional Arrest. - (a) In case of urgency, the requesting state may, pursuant to therelevant treaty or convention and while the same remains in force, request for theprovisional arrest of the accused, pending receipt of the request for extradition made inaccordance with Section 4 of this Decree; chanrobles virtual law library

and Article 11 of the Extradition Agreement between the Philippines and Hong Kongprovides in part that: chanrobles virtual law library

(1) In urgent cases, the person sought may, in accordance with the law of therequested Party, be provisionally arrested on the application of the requesting Party. x xx. chanrobles virtual law library

Nothing in existing treaties or Philippine legislation defines the meaning of urgency as

used in the context of a request for provisional arrest. Using reasonable standards ofinterpretation, however, we believe that urgency connotes such conditions relating to

the nature of the offense charged and the personality of the prospective extraditeewhich would make him susceptible to the inclination to flee or escape from thejurisdiction if he were to learn about the impending request for his extradition and/orlikely to destroy the evidence pertinent to the said request or his eventual prosecutionand without which the latter could not proceed.20chanrobles virtual law library

We find that such conditions exist in respondents case. chanrobles virtual law library

First. It should be noted that at the time the request for provisional arrest was made,respondents pending application for the discharge of a restraint order over certainassets held in relation to the offenses with which he is being charged, was set to be

heard by the Court of First Instance of Hong Kong on September 17, 1999. The HongKong DOJ was concerned that the pending request for the extradition of the respondentwould be disclosed to the latter during the said proceedings, and would motivaterespondent to flee the Philippines before the request for extradition could bemade.21chanrobles virtual law library

There is also the fact that respondent is charged with seven (7) counts of accepting anadvantage as an agent and seven (7) counts of conspiracy to defraud, for each count of
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which, if found guilty, he may be punished with seven (7) and fourteen (14) yearsimprisonment, respectively. Undoubtedly, the gravity of the imposable penalty upon anaccused is a factor to consider in determining the likelihood that the accused willabscond if allowed provisional liberty. It is, after all, but human to fear a lengthy, if nota lifetime, incarceration. Furthermore, it has also not escaped the attention of this Court

that respondent appears to be affluent and possessed of sufficient resources tofacilitate an escape from this jurisdiction.[22 chanrobles virtual law library

The arguments raised by the respondent in support of his allegation that he is not aflight risk, are, to wit: chanrobles virtual law library

a) He did not flee or hide when the Central Bank and the NBI investigated the matteralleged in the request for extradition of the Hongkong Government during the secondhalf of 1994; he has since been cleared by the Central Bank; chanrobles virtual lawlibrary

b) He did not flee or hide when the Hongkong Governments Independent CommissionAgainst Corruption (ICAC) issued a warrant for his arrest in August 1997; he has in factfiled a case in Hongkong against the Hongkong Government for the release of hisfrozen assets; chanrobles virtual law library

c) He never changed his address nor his identity, and has sought vindication of hisrights before the courts in Hongkong and in the Philippines; chanrobles virtual lawlibrary

d) He has never evaded arrest by any lawful authority, and certainly will never fly away

now that his mother is on her death bed.[23 chanrobles virtual law library

do not convince this Court. That respondent did not flee despite the investigationconducted by the Central Bank and the NBI way back in 1994, nor when the warrant forhis arrest was issued by the Hong Kong ICAC in August 1997, is not a guarantee thathe will not flee now that proceedings for his extradition are well on the way.Respondent is about to leave the protective sanctuary of his mother state to facecriminal charges in another jurisdiction. It cannot be denied that this is sufficientimpetus for him to flee the country as soon as the opportunity to do soarises. chanrobles virtual law library

Respondent also avers that his mothers impending death makes it impossible for him toleave the country. However, by respondents own admission, his mother finally expiredat the Cardinal Santos Hospital in Mandaluyong City last December 5,1999.24chanrobles virtual law library

Second. Twelve (12) days after respondent was provisionally arrested, the PhilippineDOJ received from the Hong Kong DOJ, a request for the surrender or extradition ofrespondent. chanrobles virtual law library


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On one hand, Section 20(d) of P.D. No. 1069 reads as follows: chanrobles virtual lawlibrary

(d) If within a period of twenty (20) days after the provisional arrest the Secretary ofForeign Affairs has not received the request for extradition and the documents

mentioned in Section 4 of this Decree, the accused shall be released fromcustody. chanrobles virtual law library

On the other hand, Article 11(3) of the RP-Hong Kong Extradition Agreement providesthat: chanrobles virtual law library

(3) The provisional arrest of the person sought shall be terminated upon the expirationof forty-five days from the date of arrest if the request for surrender has not beenreceived, unless the requesting Party can justify continued provisional arrest of theperson sought in which case the period of provisional arrest shall be terminated uponthe expiration of a reasonable time not being more than a further fifteen days. This

provision shall not prevent the re-arrest or surrender of the person sought if therequest for the persons surrender is received subsequently. chanrobles virtual lawlibrary

Petitioner contends that Article 11(3) of the RP-Hong Kong Extradition Agreement whichallows a period of forty-five (45) days for provisional arrest absent a formal request forextradition has amended Section 20(d) of P.D. No. 1069 which provides only a twenty(20) day period for the same.[25 chanrobles virtual law library

Petitioners argument on this point, however, has been rendered moot and academic by

the fact that as early as November 5, 1999 or twelve (12) days after respondents arreston September 23, 1999, the Philippine DOJ already received from the Hong Kong DOJ,a request for the surrender of respondent. The crucial event, after all, which tolls theprovisional detention period is the transmittal of the request for the extradition orsurrender of the extraditee. Hence, the question as to whether the period forprovisional arrest stands at twenty (20) days, as provided for in P.D. No. 1069, or hasbeen extended to forty-five (45) days under the Extradition Agreement between HongKong and the Philippines is rendered irrelevant by the actual request made by the HongKong DOJ for the extradition of respondent twelve (12) days after the request for thelatters provisional arrest. chanrobles virtual law library

Likewise, respondents contention in his motion for release pending appeal, that hisincarceration cannot continue beyond the twenty (20) day period without a petition forhis extradition having been filed in court, is simply bereft of merit. It is clear from theabove-cited provisions, that for the provisional arrest of an accused to continue, theformal request for extradition is not required to be filed in court. It only need bereceived by the requested state within the periods provided for by P.D. No. 1069 andthe RP-Hong Kong Extradition Agreement. By no stretch of imagination may we infer
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from the required receipt of the request for extradition and its accompanyingdocuments, the additional requisite that the same be filed in the court within the sameperiods. chanrobles virtual law library

Third. The request for provisional arrest of respondent and its accompanying

documents are valid despite lack of authentication. chanrobles virtual law library

Section 20(b) of P.D. No. 1069 reads as follows: chanrobles virtual law library

(b) A request for provisional arrest shall be sent to the Director of the National Bureauof Investigation, Manila, either through the diplomatic channels or direct by post ortelegraph. chanrobles virtual law library

and Article 11(1) of the RP-Hong Kong Extradition Agreement provides in partthat: chanrobles virtual law library

x x x. The application for provisional arrest shall contain an indication of intention torequest the surrender of the person sought and the text of a warrant of arrest or a

judgment of conviction against that person, a statement of the penalty for that offense,and such further information, if any, as would be necessary to justify the issue of awarrant of arrest had the offense been committed, or the person convicted, within the

jurisdiction of the requested Party. chanrobles virtual law library

The language of the abovequoted provisions is clear. There is no requirement for theauthentication of a request for provisional arrest and its accompanyingdocuments. chanrobles virtual law library

We also note that under Section 20(d) of P.D. No. 1069, viz: chanrobles virtual lawlibrary

(d) If within a period of 20 days after the request for provisional arrest the Secretary ofForeign Affairs has not received the request for extradition and the documentsmentioned in Section 4 of this Decree,[26 the accused shall be released fromcustody.27chanrobles virtual law library

the original or authenticated copies of the decision or sentence imposed upon theaccused by the requesting state or the criminal charge and the warrant of arrest issued

by the authority of the requesting state, need not accompany the request forprovisional arrest and may, in fact, be transmitted after the said request has alreadybeen received by the requested state. chanrobles virtual law library

Furthermore, the pertinent provision of the RP-Hong Kong Extradition Agreementenumerates the documents that must accompany the request, as follows: (1) anindication of the intention to request the surrender of the person sought; (2) the text ofa warrant of arrest or judgment of conviction against that person; (3) a statement of
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penalty for that offense; and (4) such further information as would justify the issue of awarrant of arrest had the offense been committed, or the person convicted, within the

jurisdiction of the requested party.[28 That the enumeration does not specify that thesedocuments must be authenticated copies, is not a mere omission of law. This may begleaned from the fact that while Article 11(1) does not require the accompanying

documents of a request for provisional arrest to be authenticated, Article 9 of the sameExtradition Agreement makes authentication a requisite for admission in evidence ofany document accompanying a request for surrender or extradition.[29 In other words,authentication is required for the request for surrender or extradition but not for therequest for provisional arrest. chanrobles virtual law library

We must also state that the above mentioned provisions of P.D. No. 1069 and the RP-Hong Kong Extradition Agreement, as they are worded, serve the purpose sought to beachieved by treaty stipulations for provisional arrest. chanrobles virtual law library

The process of preparing a formal request for extradition and its accompanying

documents, and transmitting them through diplomatic channels, is not only time-consuming but also leakage-prone. There is naturally a great likelihood of flight bycriminals who get an intimation of the pending request for their extradition. To solvethis problem, speedier initial steps in the form of treaty stipulations for provisionalarrest were formulated.30Thus, it is an accepted practice for the requesting state torush its request in the form of a telex or diplomatic cable, the practicality of the use ofwhich is conceded.[31 Even our own Extradition Law (P.D. No. 1069) allows thetransmission of a request for provisional arrest viatelegraph.[32 In the advent ofmodern technology, the telegraph or cable have been conveniently replaced by thefacsimile machine. Therefore, the transmission by the Hong Kong DOJ of the request

for respondents provisional arrest and the accompanying documents, namely, a copy ofthe warrant of arrest against respondent, a summary of the facts of the case againsthim, particulars of his birth and address, a statement of the intention to request hisprovisional arrest and the reason therefor, by fax machine, more than serves thispurpose of expediency. chanrobles virtual law library

Respondents reliance on Garvida v. Sales, Jr.33is misplaced. The proscription againstthe admission of a pleading that has been transmitted by facsimile machine has noapplication in the case at bar for obvious reasons. First, the instant case does notinvolve a pleading; and second, unlike the COMELEC Rules of Procedure which do notsanction the filing of a pleading by means of a facsimile machine, P.D. No. 1069 and

the RP Hong Kong Extradition Agreement do not prohibit the transmission of a requestfor provisional arrest by means of a fax machine. chanrobles virtual law library

In a futile attempt to convince this Court, respondent cites our ruling in the recent caseofSecretary of Justice v. Hon. Lantion, et al.[34, where we held that the right of anextraditee to due process necessarily includes the right to be furnished with copies of
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the extradition request and supporting papers, and to file a comment thereto during theevaluation stage of the extradition proceedings. chanrobles virtual law library

Respondent posits that, in the same vein, the admission by the RTC of the request forprovisional arrest and its supporting documents despite lack of authentication is a

violation of the respondents right to due process. This contention fails to impressus. chanrobles virtual law library

Respondents contention is now a non-issue, in view of our Resolution dated October17, 2000 in the said case ofSecretary of Justice v. Hon. Lantion, et al. reconsideringand reversing our earlier decision therein. Acting on therein petitioners Motion forReconsideration, we held that therein respondent is bereft of the right to notice andhearing during the evaluation stage of the extradition process.[35 Worthy to reiterate isthe following concluding pronouncement of this Court in the said case:[36 chanroblesvirtual law library

In tilting the balance in favor of the interests of the State, the Court stresses that it isnot ruling that the private respondent has no right to due process at all throughout thelength and breath of the extrajudicial proceedings. Procedural due process requires adetermination of what process is due, when it is due and the degree of what is due.Stated otherwise, a prior determination should be made as to whether proceduralprotections are at all due and when they are due, which in turn depends on the extentto which an individual will be condemned to suffer grievous loss.[37We have explainedwhy an extraditee has no right to notice and hearing during the evaluation stage of theextradition process. As aforesaid, P.D. 1069 xxx affords an extraditee sufficientopportunityto meet the evidence against him once the petition is filed in court.

The timefor the extraditee to know the basis of the request for his extradition is merelymovedto the filing in court of the formal petition for extradition. The extraditees rightto know is momentarily withheld during the evaluation stageof the extradition processto accommodate the more compelling interest of the State to prevent escape ofpotential extraditees which can be precipitated by premature information of the basis ofthe request for his extradition. No less compelling at that stageof the extraditionproceedings is the need to be more deferential to the judgment of a co-equal branch ofthe government, the Executive, which has been endowed by our Constitution withgreater power over matters involving our foreign relations. Needless to state, thisbalance of interests is not a static but a moving balancewhich can be adjusted as theextradition process moves from the administrative stage to the judicial stage and to the

execution stage depending on factors that will come into play. In sum, we rule thatthe temporary holdon private respondents privilege of notice and hearing is a softrestrainton his right to due process which will not deprive him offundamentalfairnessshould he decide to resist the request for his extradition to the UnitedStates. There is no denial of due process as long as fundamental fairness is assured aparty. chanrobles virtual law library
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Respondent also contends that the request for his provisional arrest was rendereddefective by the fact that the person who made the request was not a foreign diplomatas provided for in Section 4 (2) of P.D. No. 1069, to wit: chanrobles virtual law library

SEC. 4. Request; By Whom Made; Requirements.- chanrobles virtual law library

(1) Any foreign state or government with which the Republic of the Philippines hasentered into extradition treaty or convention, and only when the relevant treaty orconvention, remains in force, may request for the extradition of any accused who issuspected of being in the territorial jurisdiction of the Philippines. chanrobles virtual lawlibrary

(2) The request shall be made by the Foreign Diplomat of the requesting state orgovernment, addressed to the Secretary of Foreign Affairs, x x x. chanrobles virtual lawlibrary

This contention deserves scant consideration. The foregoing refers to the requirementsfor a request for extradition and notfor a request for provisional arrest. The pertinentprovisions are Article 11(2) which states: chanrobles virtual law library

An application for provisional arrest may be forwarded through the same channels as arequest for surrender or through the International Criminal Police Organization(INTERPOL);[38 chanrobles virtual law library

and Article 8(1) which provides: chanrobles virtual law library

Requests for surrender and related documents shall be conveyed through theappropriate authority as may be notified from time to time by one party toanother.[39 chanrobles virtual law library

Hence, there is sufficient compliance with the foregoing if the request for provisionalarrest is made by an official who is authorized by the government of the requestingstate to make such a request and the authorization is communicated to the requestedstate. chanrobles virtual law library

The request for provisional arrest of respondent was signed by Wayne Walsh, SeniorGovernment Counsel of the Mutual Legal Assistance Unit, International Law Division of

the Hong Kong DOJ who stated in categorical terms that: chanrobles virtual law library

The Department of Justice (Mutual Legal Assistance Unit) of the HKSAR is theappropriate authority under the Agreement to make requests for provisional arrest andsurrender. I confirm that as a member of the Mutual Legal Assistance Unit, I amauthorized (sic) to make this request for provisional arrest.40chanrobles virtual lawlibrary


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Last. There was sufficient factual and legal basis for the determination of probablecause as a requisite for the issuance of the Order of Arrest.[41 chanrobles virtual lawlibrary

We have defined probable cause for the issuance of a warrant of arrest as the existence

of such facts and circumstances that would lead a reasonably discreet and prudentperson to believe that an offense has been committed by the person sought to bearrested.42The determination of probable cause is a function of the Judge. Such is themandate of our Constitution which provides that a warrant of arrest shall issue onlyupon probable cause to be determined personally by the judge after examination underoath or affirmation of the complainant and the witnesses he may produce.43In the caseofAllado v. Diokno,[44 we stated that personal determination by the Judge of theexistence of probable cause means that he - chanrobles virtual law library

(a) shall personally evaluate the report and the supporting documents submitted by thefisegarding the existence of probable cause and, on the basis thereof, issue a warrant

of arrest; or, (b) if on the basis thereof he finds no probable cause, may disregard thefiscals report and require the submission of supporting affidavits of witnesses to aid himin arriving at a conclusion on the existence of probable cause.45chanrobles virtual lawlibrary

The Judge cannot, therefore, merely rely on the certification issued by the prosecutor.He is, however, not required to personally examine ipso factothe complainant and hiswitnesses. He sufficiently complies with the requirement of personal determination if hereviews the information and the documents attached thereto, and on the basis thereofforms a belief that the accused is probably guilty of the crime with which he is being

charged.46

The Judge determines the existence of probable cause to pass upon whethera warrant of arrest should be issued against the accused, that is, whether there is anecessity for placing him under immediate custody in order not to frustrate the ends of

justice.[47 chanrobles virtual law library

The request for the respondents provisional arrest was accompanied by facsimile copiesof the outstanding warrant of arrest issued by the Hong Kong government, a summaryof the facts of the case against respondent, particulars of his birth and address, anintention to request his provisional arrest and the reason therefor. The said documentswere appended to the application for respondents provisional arrest filed in theRTC,[48 and formed the basis of the judges finding of probable cause for the issuance

of the warrant of arrest against respondent. chanrobles virtual law library

Respondent alleges the contrary and surmises that all that the trial judge did was tointerview NBI agent Saunar who filed the application for the issuance of the warrant ofprovisional arrest, and that her honor did not probably even notice that the supportingdocuments were not authenticated.[49 The allegation, baseless and purely speculative,
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is one which we cannot countenance in view of the legal presumption that official dutyhas been regularly performed.[50 chanrobles virtual law library

That the Presiding Judge of RTC Manila, Branch 19, made a personal determination ofthe existence of probable cause on the basis of the documents forwarded by the Hong

Kong DOJ is further supported by the Order of Arrest against respondent whichstates: chanrobles virtual law library

ORDER chanrobles virtual law library

This treats of the Application For Provisional Arrest of Juan Antonio Muoz, for thepurpose of extradition from the Republic of the Philippines. chanrobles virtual lawlibrary

This application was filed in behalf of the Government of Hong Kong SpecialAdministrative Region for the provisional arrest of Juan Antonio Muoz, pursuant to

Section 20 of Presidential Decree No. 1069, in relation to paragraph 1, Article 11 of theAgreement for the Surrender of Accused and Convicted Persons between the Republicof the Philippines and Hong Kong on provisional arrest. The application alleged thatJuan Antonio Muoz is wanted in Hong Kong for seven (7) counts of the offense ofaccepting an advantage as an agent, contrary to Section 9(1) (9) of the Prevention ofBribery Ordinance Cap. 201 of Hong Kong and seven (7) counts of the offense ofconspiracy to defraud, contrary to the Common Law of Hong Kong.chanrobles virtuallaw library

That a warrant of arrest was issued by the Magistrates Court at Eastern Magistracy,

Hong Kong on August 23, 1997, pursuant to the 14 charges filed against him before theissuing Court. Juan Antonio Muoz is now alleged to be in the Philippines. He was bornon June 24, 1941, a holder of Philippines Passport No. 2K 934808, formerly anemployee of the Central Bank of the Philippines and with address at Phase 3, BFHomes, No. 26 D C Chuan Street, Metro Manila. chanrobles virtual law library

That there is an urgency in the issuance of the provisional arrest warrant for the reasonthat the application to discharge the restraint over the funds, subject of the offenses, inhis Citibank Account in Hong Kong was set for hearing on September 17, 1999 and thathis lawyer in Hong Kong will be notified of the request of the Hong Kong Governmentfor his provisional arrest (sic) and Juan Antonio E. Muoz upon knowledge of the

request. chanrobles virtual law library

Considering that the Extradition treaty referred to is part of our systems of laws andrecognized by Presidential Decree No. 1069 and the Constitution itself by the adoptionof international laws, treaties and conventions as parts (sic) of the law of the land, theapplication for provisional arrest of Juan Antonio Muoz is hereby GRANTED. Let awarrant for his provisional arrest therefore issue. chanrobles virtual law library


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SO ORDERED.[51 (Underscoring supplied.) chanrobles virtual law library

Finally, petitioner also avers that the respondent has waived his right to assail thevalidity of his provisional arrest when he filed a motion for release on recognizance.Considering that we find petitioners other contentions to be impressed with merit, there

is no need to delve further into this particular issue. chanrobles virtual law library

WHEREFORE, the petition is GRANTED, and the assailed Decision of the Court ofAppeals, dated November 9, 1999, in CA-G.R. SP No. 55343 is hereby REVERSED andSET ASIDE. Respondents Urgent Motion For Release Pending Appeal is herebyDENIED. chanrobles virtual law library

SO ORDERED. chanrobles virtual law library

Documents

Secretary of Justice vs Judge Lantion