CASES FOR JURISDICTION upon the witness with a tender of traveling expenses. §§ 2, 3.

Upon proof of such

service and of the failure of the witness to appear, the court may make an order
Blackmer v. United States, 284 U.S. 421 (1932) requiring the witness to show cause why he should not be punished for contempt,
and, upon the issue of such an order, the court may direct that property belonging
to the witness and within the United States may be seized and held to satisfy any
Argued January 5, 6, 1932 judgment which may be rendered against him in the proceeding. §§ 4, 5. Provision
Decided February 15, 1932 is made for personal service of the order upon the witness and also for its
publication in a newspaper of general circulation in the district where the court is
284 U.S. 421 sitting. § 6. If, upon the hearing, the charge is sustained, the court may adjudge the
witness guilty of contempt and impose upon him a fine not exceeding $100,000, to
be satisfied by a sale of the property seized. § 7. This statute and the proceedings
CERTIORARI TO THE COURT OF APPEALS
against the petitioner are assailed as being repugnant to the Constitution of the
United States.
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
First. The principal objections to the statute are that it violates the due process
The petitioner, Harry M. Blackmer, a citizen of the United States resident in Paris, clause of the Fifth Amendment. These contentions are: (1) that the "Congress has
France, was adjudged guilty of contempt of the Supreme Court of the District of no power to authorize United States consuls to serve process except as permitted
Columbia for failure to respond to subpoenas served upon him in France and by treaty;" (2) that the Act does not provide "a valid method of acquiring judicial
requiring him to appear as a witness on behalf of the United States at a criminal jurisdiction to render personal judgment against defendant and judgment against
trial in that court. Two subpoenas were issued, for appearances at different times, his property;" (3) that the Act "does not require actual or any other notice to
and there was a separate proceeding with respect to each. The two cases were defendant of the offense or of the government's claim against his property;" (4)
heard together, and a fine of $30,000 with costs was imposed in each case, to be that the provisions "for hearing and judgment in the entire absence of the accused
satisfied out of the property of the petitioner which had been seizer by order of and without his consent" are invalid, and (5) that the Act is "arbitrary, capricious
the court. The decrees were affirmed by the Court of Appeals of the District, 49 and unreasonable."
F.2d 523, and this Court granted writs of certiorari.
While it appears that the petitioner removed his residence to France in the year
The subpoenas were issued and served, and the proceedings to punish for 1924, it is undisputed that he was, and continued to be, a citizen of the United
contempt were taken, under the provisions of the Act of July 3, 1926, c. 762, 44 States. He continued to owe allegiance to the United States. By virtue of the
Stat. 835, U.S.C. Tit. 28, §§ 711-718. [Footnote 1] The statute provided that, obligations of citizenship, the United States retained its authority over him, and he
whenever the attendance at the trial of a criminal action of a witness abroad, who was bound by its laws made applicable to him in a foreign country. Thus, although
is "a citizen of the United States or domiciled therein," is desired by the Attorney resident abroad, the petitioner remained subject to the taxing power of the United
General or any assistant or district attorney acting under him, the judge of the States. Cook v. Tait, 265 U. S. 47, 265 U. S. 54-56. For disobedience to its laws
court in which the action is pending may order a subpoena to issue, to be through conduct abroad, he was subject to punishment in the courts of the United
addressed to a consul of the United States and to be served by him personally
States. With respect to such an exercise of authority, there is no question of Congress should authorize the court to direct the notice to be given, and that it
international law, [Footnote 2] but solely of the purport of the municipal law which should be in the customary form of a subpoena. Obviously, the requirement would
establishes the duties of the citizen in relation to his own government. [Footnote be nugatory if provision could not be made for its communication to the witness in
3] While the legislation of the Congress, unless the contrary intent appears, is the foreign country.
construed to apply only within the territorial jurisdiction of the United States, the
question of its application, so far as citizens of the United States in foreign The efficacy of an attempt to provide constructive service in this country would
countries are concerned, is one of construction, not of legislative power. American rest upon the presumption that the notice would be given in a manner calculated
Banana Co. v. United Fruit Co., 213 U. S. 347, 213 U. S. 357; United States v. to reach the witness abroad. McDonald v. Mabee, 243 U. S. 90,243 U. S. 92. The
Bowman, supra; Robertson v. Labor Board, 268 U. S. 619, 268 U. S. 622. Nor can it question of the validity of the provision for actual service of the subpoena in a
be doubted that the United States possesses the power inherent in sovereignty to foreign country is one that arises solely between the government of the United
require the return to this country of a citizen, resident elsewhere, whenever the States and the citizen. The mere giving of such a notice to the citizen in the foreign
public interest requires it, and to penalize him in case of refusal. Compare Bartue country of the requirement of his government that he shall return is in no sense an
and the Duchess of Suffolk's Case, 2 Dyer's Rep. 176b, 73 Eng.Rep. 388; Knowles v. invasion of any right of the foreign government, and the citizen has no standing to
Luce, Moore 109, 72 Eng.Rep. 473. [Footnote 4] What in England was the invoke any such supposed right. While consular privileges in foreign countries are
prerogative of the sovereign in this respect pertains under our constitutional the appropriate subjects of treaties, [Footnote 6] it does not follow that every act
system to the national authority which may be exercised by the Congress by virtue of a consul, as, e.g., in communicating with citizens of his own country, must be
of the legislative power to prescribe the duties of the citizens of the United States. predicated upon a specific provision of a treaty. The intercourse of friendly nations,
It is also beyond controversy that one of the duties which the citizen owes to his permitting travel and residence of the citizens of each in the territory of the other,
government is to support the administration of justice by attending its courts and presupposes and facilitates such communications. In selecting the consul for the
giving his testimony whenever he is properly summoned.Blair v. United States, 250 service of the subpoena, the Congress merely prescribed a method deemed to
U. S. 273, 250 U. S. 281. And the Congress may provide for the performance of this assure the desired result, but in no sense essential. The consul was not directed to
duty and prescribe penalties for disobedience. perform any function involving consular privileges or depending upon any treaty
relating to them, but simply to act as any designated person might act for the
In the present instance, the question concerns only the method of enforcing the government in conveying to the citizen the actual notice of the requirement of his
obligation. [Footnote 5] The jurisdiction of the United States over its absent citizen, attendance. The point raised by the petitioner with respect to the provision for the
so far as the binding effect of its legislation is concerned, is a jurisdiction  in service of the subpoena abroad is without merit.
personam, as he is personally bound to take notice of the laws that are applicable
to him, and to obey them. United States v. Bowman, supra. But, for the exercise of As the Congress could define the obligation, it could prescribe a penalty to enforce
judicial jurisdiction in personam, there must be due process, which requires it. And as the default lay in disobedience to an authorized direction of the court, it
appropriate notice of the judicial action and an opportunity to be heard. For this constituted a contempt of court, and the Congress could provide for procedure
notice and opportunity, the statute provides. The authority to require the absent appropriate in contempt cases. The provision of the statute for punishment for
citizen to return and testify necessarily implies the authority to give him notice of contempt is applicable only "upon proof's being made of the service and default."
the requirement. As his attendance is needed in court, it is appropriate that the § 4. That proof affords a proper basis for the proceeding, and provision is made for
personal service upon the witness of the order to show cause why he should not seizure upon constitutional grounds. The argument that the statute creates an
be adjudged guilty. For the same reasons as those which sustain the service of the unreasonable classification is untenable. The disobedience of the defaulting
subpoena abroad, it was competent to provide for the service of the order in like witness to a lawful requirement of the court, and not the fact that he owns
manner. It is only after a hearing pursuant to the order to show cause, and upon property, is the ground of his liability. He is not the subject of unconstitutional
proof sustaining the charge, that the court can impose the penalty. The petitioner discrimination simply because he has property which may be appropriated to the
urges that the statute does not require notice of the offense, but the order to satisfaction of a lawful claim.
show cause is to be issued after the witness has failed to obey the subpoena
demanding his attendance and the order is to be made by the court before which Second. What has already been said also disposes of the contention that the
he was required to appear. This is sufficient to apprise the witness of the nature of statute provides for an unreasonable search and seizure in violation of the Fourth
the proceeding, and he has full opportunity to be heard. The further contention is Amendment. It authorizes a levy upon property of the witness at any place within
made that, as the offense is a criminal one, it is a violation of due process to hold the United States in the manner provided by law or rule of court for levy or seizure
the hearing, and to proceed to judgment, in the absence of the defendant. The under execution. A levy in such a manner, either provisionally or finally, to satisfy
argument misconstrues the nature of the proceeding. the liability of the owner, is not within the constitutional prohibition.

"While contempt may be an offense against the law and subject to appropriate The petitioner raises the further and distinct point that the statute limits the
punishment, certain it is that, since the foundation of our government proceedings availability of the subpoena to the government, and that, "by excluding defendants
to punish such offenses have been regarded as sui generis, and not 'criminal in criminal prosecutions" from the right to such a subpoena, it violates the
prosecutions' within the Sixth Amendment or common understanding." provision of the Sixth Amendment that the accused shall have "compulsory
process for obtaining witnesses in his favor." We need not consider whether the
The authorization of the seizure of the property belonging to the defaulting statute requires the construction for which the petitioner contends, as, in any
witness and within the United States, upon the issue of the order to show cause event, the petitioner, a recalcitrant witness, is not entitled to raise the question.
why he should not be punished for contempt (§ 5 of the Act) affords a provisional
remedy, the propriety of which rests upon the validity of the contempt proceeding. Third. The statute being valid, the question remains as to the procedure in its
As the witness is liable to punishment by fine if, upon the hearing, he is found application against the petitioner. He insists that the showing for the issue of the
guilty of contempt, no reason appears why his property may not be seized to subpoenas requiring him to attend was inadequate. But the "proper showing"
provide security for the payment of the penalty. The proceeding conforms to required was for the purpose of satisfying the court that the subpoenas should
familiar practice where absence or other circumstance makes a provisional remedy issue. The petitions in the instant cases were presented to the judge of the court
appropriate.See Cooper v. Reynolds, 10 Wall. 308, 77 U. S. 318. The order that is to by the official representatives of the government, and their statement as to the
be served upon the witness contains the direction for the seizure. The property is materiality and importance of the testimony expected from the witness was
to be held pending the hearing, and is to be applied to the satisfaction of the fine if unquestionably sufficient to give the court jurisdiction to issue the subpoenas, and,
imposed and unless it is paid. Given the obligation of the witness to respond to the unless they were vacated upon proper application, the petitioner was bound to
subpoena, the showing of his default after service, and the validity of the provision obey. Nor was it necessary that the subpoenas should "identify" themselves with
for a fine in case default is not excused, there is no basis for objection to the the statute under which they were issued. The petitioner, as a citizen of the United
States, was chargeable with knowledge of the law under which his attendance as a JOYCE, APPELLANT AND DIRECTOR OF PUBLIC PROSECUTIONS, RESPONDENT.
witness could be required. It was sufficient that the subpoenas required his
attendance to testify on behalf of the United States at the time and place stated. In 1933 the appellant, an American citizen, who had resided in British territory for
about twenty-four years, applied for and obtained a British passport, describing
Page 284 U. S. 443 himself as a British subject by birth and stating that he required it for the purpose
of holiday touring in Belgium, France, Germany, Switzerland, Italy and Austria. On
Equally unavailing is the objection that, after the petitioner had refused to appear its expiration, he obtained renewals on September 24, 1938 and on August 24,
in response to the subpoenas, the orders to show cause why he should not be 1939, each for a period of one year, again describing himself as a British subject.
punished for contempt did not specify the offense. As the statute prescribed, he After the outbreak of war between Great Britain and Germany and before the
had been served with the subpoenas and had defaulted, and he had also been expiration of the validity of the renewed passport, he was proved to have been
served with the order which directed him to show cause why he should not be employed by the German radio company and to have delivered from enemy
adjudged guilty of contempt and provided for the seizure of his property to be held territory broadcast talks in English hostile to Great Britain. The passport was not
to satisfy any judgment that might be rendered against him in the proceeding. The found in his possession when he was arrested. Having been convicted of high
notice which he thus received was sufficient to inform him of the character of the treason he appealed:—
charge against him and of the hearing at which he would have opportunity to
present his defense. The petitioner also insists that the seizure which was made in Held (1.) that an alien abroad holding a British passport enjoys the protection of
case No. 200 was abandoned by virtue of the seizure of the same property under the Crown and if he is adherent to the King’s enemies he is guilty of treason, so
the order issued in No. 201. But the second levy was not antagonistic to the first. long as he has not renounced that protection; (2.) (per Lord Jowitt L.C., Lord
The proceedings were consistent. Macmillan Lord Wright and Lord Simonds, Lord Porter dissenting) that the judge at
the trial had given a proper direction to the jury who could not have failed to
In No. 201, the contention is made that the petitioner was subpoenaed to attend appreciate from it that it was for them to consider whether at the material times
on April 2, 1928, and that the case in which his testimony was desired was not the appellant continued to enjoy the protection afforded by the passport.
tried until April 9, 1928. There is no suggestion that the petitioner appeared on
April 2, 1928, in compliance with the subpoena, and the record shows that the Per Lord Porter: The renewal of the passport did not prove conclusively in law that
case in which he was subpoenaed was continued by the court until the later date. the duty of allegiance continued until the passport ceased to be valid, unless some
The subpoena contained the usual provision that the witness was "not to depart action on the part of the Crown or of the appellant put an end to that protection;
the court without leave of the court or district attorney." Cf. R.S. § 877, U.S.C. Tit. the onus was not on the appellant to show that the duty had been terminated.
28, § 655. It was the duty of the petitioner to respond to the subpoena and to
remain in attendance until excused by the court or by the government's APPEAL from the Court of Criminal Appeal.
representatives.
The facts, stated by Lord Jowitt L.C. and Lord Porter, were as follows: The
Decrees affirmed. appellant, William Joyce, was charged at the Central Criminal Court on three
counts, upon the third of which only he was convicted. That count was as follows:
“Statement of offence. granted the passport for a period of five [*349] years. The document was not
produced, but its contents were duly proved. In it he was described as a British
“High Treason by adhering to the King’s enemies elsewhere than in the King’s subject. On September 26, 1938, he applied for a renewal of the passport for a
Realm, to wit, in the German Realm, contrary to the Treason Act, 1351. period of one year. He again declared that he was a British subject and had not lost
that national status. His application was granted. On August 24, 1939, he again
“Particulars of offence. applied for a renewal of his passport for a further period of one year, repeating the
same declaration. His application was granted, the passport, as appears from the
endorsement on the declaration, being extended to July 1, 1940. On some day
“William Joyce, on September 18, 1939, and on divers other days thereafter and
after August 24, 1939, the appellant left the realm, his parents, his brothers and his
between that day and July 2, 1940, being then — to wit on the several days — a
sister remaining in England. The exact date and manner of his departure were not
person owing allegiance to our Lord the King, and whilst on the said several days
proved. On his arrest in the year 1945 there was found on his person a “work
an open and public war was being prosecuted and carried on by the German Realm
book” issued by the German State on October 4, 1939, from which it appeared that
and its subjects against our Lord the King and his subjects, then and on the said
he had been employed by the German radio company of Berlin as an announcer of
several days traitorously contriving and intending to aid and assist the said
English news from September 18, 1939. In this document his nationality was stated
enemies of our Lord the King against our Lord the King and his subjects did
to be “Great Britain” and his special qualification “English.” The passport was not
traitorously adhere to and aid and comfort the said enemies in parts beyond the
found and nothing further was known of it. It was proved by uncontradicted
seas without the Realm of England, to wit, in the Realm of Germany by
evidence that he had, between September 3, 1939, and December 10, 1939,
broadcasting to the subjects of our Lord the King propaganda on behalf of the said
broadcast propaganda on behalf of the enemy. He did not give evidence but in a
enemies of our Lord the King.”
statement made after his arrest in Germany he said (inter alia): “In 1940 I acquired
German nationality. … As, by reason of my opinions, I was not conscientiously
The first and second counts, upon which the appellant was found not guilty, were
disposed to fight for Britain against Germany, I decided to leave the country. …
based upon the assumption that he was at all material times a British subject. This Realizing, however, that at this critical juncture I had declined to serve Britain I
assumption was proved to be incorrect; therefore upon these counts the appellant drew the logical conclusion that I should have no moral right to return to that
was acquitted. country of my own free will and that it would be best to apply for German
citizenship and make my home in Germany.” After argument on the law, Tucker J.
The appellant was born in the United States of America, in 1906, the son of a said to counsel for the Crown and for the appellant: “I shall direct the jury on count
naturalized American citizen who had previously been a British subject by birth. He 3 that on August 24, 1939, when the passport was applied for, the prisoner beyond
thereby became himself a natural born American citizen. At about three years of a shadow of doubt owed allegiance to the Crown of this country and that on the
age he was brought to Ireland, where he stayed until about 1921, when he came to evidence given, if they accept it, nothing happened at the material time thereafter
England. He stayed in England until 1939. He was then thirty-three years of age. He to put an end to the allegiance that he then owed. It will remain for the jury, and
was brought up and educated within the King’s Dominions, and he settled there. for the jury alone, as to whether or not at the relevant dates he adhered to the
On July 4, 1933, he applied for a British passport, describing himself as a British King’s enemies with intent [*350] to assist the King’s enemies. If both or either of
subject by birth, born in Galway. He asked for the passport for the purpose of you desire to address the jury on that issue, of course now is your opportunity.”
holiday touring in Belgium, France, Germany, Switzerland, Italy and Austria. He was Both counsel proceeded to address the jury, the defence submitting that the
appellant had not adhered to the King’s enemies and the Crown that he had. No country has jurisdiction to try an alien for an offence alleged to have been
other topic was touched on and no argument was addressed to the question committed abroad except only in the two cases of piracy jure gentium and an
whether the appellant still had the passport in his possession and retained it for offence committed on board a British ship. Though the legislature would have
use or whether he still owed allegiance to the British Crown. Tucker J. then power to make treason also an exception it has not done so. The Treason Act,
summed up and the appellant was found guilty on the third count of the 1351, speaks of “a man” — “home” is the actual word used — and the comity of
indictment, and sentenced to death on September 19, 1945. An appeal was nations requires that that word should be interpreted as a man owing allegiance to
brought to the Court of Criminal Appeal on the following grounds: “(1.) The court the Crown, that is to say a British subject wherever he may be or an alien so long
wrongly assumed jurisdiction to try an alien for an offence against British law only as he is physically present within the King’s dominions. (e) There is no
committed in a foreign country. (2.) The learned judge was wrong in law in holding, evidence that the renewal of the appellant’s passport afforded him or was capable
and misdirected the jury in directing them, that the appellant owed allegiance to of affording him any protection or that he ever availed himself or intended to avail
His Majesty the King during the period from September 18, 1939, to July 2, 1940. himself of such protection. Further, even if there was any such evidence, the issue
(3.) That there was no evidence that the renewal of the appellant’s passport was one for the jury and the learned judge failed to direct them on it. The
afforded him or was capable of affording him any protection or that the appellant submission which depends on local allegiance is complementary to that depending
ever availed himself or had any intention of availing himself of any such protection. on jurisdiction, for whenever an alien leaves the realm local allegiance ceases and
(4.) If (contary to the appellant’s contention) there were any such evidence, the he can no longer be tried by the courts of this country. As regards the first point,
issue was one for the jury and the learned judge failed to direct them thereon.” On that an alien owes a local allegiance only so long as he resides within the King’s
November 7, 1945, the Court of Criminal Appeal dismissed the appeal. The dominions, the nature of allegiance has been long settled: see Calvin’s case(2) and
Attorney-General certified under s. 1, sub-s. 6, of the Criminal Appeal Act, 1907, In re Stepney Election Petition (3). A man cannot be guilty of treason if he does not
that the decision of the Court of Criminal Appeal involved a point of law of owe allegiance. An act which is treasonable if he owes allegiance is not treasonable
exceptional public importance and that in his opinion it was desirable in the public if he does not. The allegiance due from an alien is accurately laid down in
interest that a further appeal should be brought. The appellant accordingly Blackstone’s Commentaries, 1st ed., vol. 1, pp. 357-9: “Allegiance, both express
appealed to the House of Lords. and implied, is however distinguished by the law into two sorts or species, the one
natural, the other local; the former being also perpetual, the latter temporary. ….
It is clear that if this conviction be upheld an alien holding a British passport owes Local allegiance is such as is due from an alien, or stranger born, for so long time as
allegiance during its unexpired validity wherever he goes and no matter what he he continues within the King’s dominion and protection: and it ceases the instant
does. The case for the appellant rests on five submissions: (a) The local allegiance such stranger transfers himself from this Kingdom to another. … As therefore the
due from an alien continues so long only as he is personally present within the prince is always under a constant tie to protect his natural-born subjects, at all
King’s dominions. (b) The protection which is the counterpart of the local times and in all countries, for this reason their allegiance due to him is equally
allegiance due from an alien is the protection of our laws and is co-extensive with universal and permanent. But, on the other hand, as the prince affords his
our legal jurisdiction. It is that which was referred to [*351] in Calvin’s case(1) in protection to an alien, only during his residence in this realm, the allegiance of an
the maxim: Protectio trahit subjectionem, et subjectio protectionem. (c) Protection alien is confined (in point of time) to the duration of such his residence, and (in
means the right to protection and not merely the de facto enjoyment of it, which point of locality) to the dominions of the British empire. …” Here residence means
might be had by a person who obtained a passport by fraud. (d) No court in this personal presence within the realm. It has been suggested that this principle is
qualified by a passage in Foster’s Crown Cases, 1792 ed., p. 185: “And if such alien
seeking the protection of the Crown; and having a family and effects here, should As to the third proposition that protection means the right to protection and not
during a war with his native country, go thither, and adhere to the King’s enemies merely the de facto enjoyment of it, no right to protection is derived from a British
for purposes of hostility, he might be dealt with as a traitor. For he came and passport as such. Protection is derived from the fact of being a British subject and
settled here under the protection of the Crown; and though his person was that is given whether one has a passport or not. A passport gives protection only in
removed for a time, his effects and family continued still under the same a colloquial sense, not that protection which is the counterpart of allegiance. It has
protection. This rule was laid down by all the judges assembled at the Queen’s no real legal significance and no rights flow from it.
command, January 12, 1707.” In the margin “Mss. Tracy, Price, Dod and Denton”
are cited but the original manuscript cannot be found. This resolution, which is the It is a mere voucher and means of identification. When day trips to the Continent
only authority for the Crown, is also set out, quoting Foster, in Bacon’s could be made without passports British subjects who took advantage of them
Abridgement, 7th ed., vol. VII., pp. 583-4, East’s Pleas of the Crown, 1803 ed., vol. were not any the less entitled to the administrative protection of the Crown. If the
I., p. 53, Chitty’s Prerogatives of the Crown, p. 13, and Hawkins’; Pleas of the appellant’s contentions were wrong, strange consequences might arise. If a
Crown, 8th ed., vol. I., p. 8 n., most of these treating it with reserve. It is bad law, German, having masqueraded as a British subject till August, 1939, and then
quite inconsistent with Johnstone v. Pedlar (1), and merely the opinion of the received intimation that war was about to break out, had obtained a British
judges in consultation with prosecuting counsel. It was not given as a decision in passport with a validity of five years, for the purpose of returning to his country,
any case and so is not binding as an authority. To bring the resolution into and had joined the German army within that period, he would have been liable to
harmony with the law, “settled” must be given the meaning of “resident” and be convicted of treason. Again, if a British subject lawfully holding a British
“resident” must mean physically present, without reference to the duration of the passport went to America and became naturalized there, then although by statute
alien’s stay here. he ceased to be a British subject immediately on his naturalization, yet he would
continue to owe allegiance to the British Crown for the unexpired term of his
As to the second proposition that the protection which draws allegiance is the passport.
protection of our laws, the appellant while in enemy territory was quite incapable
of taking advantage of any protection which this country could have afforded him. On the — fourth point that no British court has jurisdiction to try an alien for an
He forfeited the right to it when he went to Germany in 1939. Since our laws are offence alleged to have been committed abroad, even on the assumption that the
territorial they could not protect him there and no protection outside British appellant owed allegiance to the British Crown after leaving England, he could still
territory could be such as to found a duty of allegiance. A passport is only a request not be tried here (1.) because no statute gives jurisdiction to try an alien for such
to a foreign potentate and a command to a British representative to afford the an offence and (2.) because otherwise it would always be possible merely by
holder assistance. After the appellant left England he did not enjoy the protection alleging that any person owed allegiance to bring him within the jurisdiction of the
of British law and when war was declared even administrative protection was courts of this country for trial of the question whether he owed allegiance or not.
withdrawn from him. If on his trial he had been acquitted and had then proceeded There is a distinction between substantive crime and the jurisdiction to try it. For
to bring an action for damages in respect of his arrest in Germany and his being the court to be able, merely by alleging allegiance to give itself jurisdiction to try
brought to England, the defence of act of state would have been a complete the question of law whether or not there was allegiance would offend against the
answer, since he was a foreigner outside British territory and outside the principle that no court can confer jurisdiction on itself. The court admittedly
protection of the law. derives jurisdiction to try a British subject by alleging that he is a British subject,
but there is a difference between alleging that a person is a British subject, a fact that allegiance for the period during which the passport happens to remain in
which founds the courts jurisdiction if it is true, and alleging allegiance which is force. Accordingly, it must be a question of fact in each case — it cannot be one of
only a factor in the particular offence charged. Apart from the Naturalization Act, law — by what act and at what date he divested himself of the protection and the
1870, the general principle still holds good. Nemo potest exuere patriam. Nothing corresponding allegiance. The onus was on the Crown to prove that he had not
a man does can make him a British subject and nothing he can omit to do can done anything to divest himself of the protection of the passport. Even if the mere
prevent him from being a British subject if he was so born. In the case of a fact that he obtained a passport raised a prima facie case and shifted the burden of
foreigner committing an offence outside British territory, British courts have no proof on to him, the question of fact involved must be left to the jury. It was the
jurisdiction to try him: see Halsbury’s Laws of England, 2nd ed., vol. IX., pp. 55-6, judge’s duty in this case to direct them what the evidence was and to tell them
62. In construing an Act of Parliament there is a presumption against a violation of that evidence which was sufficient to call for an answer from the defence was not
international law: Maxwell on Interpretation of Statutes, 8th ed., p. 130. That necessarily enough to satisfy them. In any event the issue must be left to them and
applies to the Treason Act, 1351. Two later statutes dealt with the trial of treasons here it had not been. Tucker J. directed them as a matter of law that the appellant
committed abroad, both of them purely procedural, the Treason Act, 1543 (35 continued to owe allegiance throughout the currency of his passport. [They
Hen. 8, c. 2) and the Treason Act, 1551 (5 & 6 Edw. 6, c. 11), the latter repealed by referred to Stirland v. Director of Public Prosecutions (1).] As regards R. v.
the Treason Act, 1945 (8 & 9 Geo. 6, c. 44). The Treachery Act, 1940 (3 & 4 Geo. 6, Casement (2) that case is irrelevant to any of the issues raised by this appeal,
c. 21), s. 4, shows how the legislature has regard to the comity of nations by its because Casement was not an alien but a British subject. Moreover. it was, in any
careful definition of the persons who can be guilty of offences created by the Act. event, wrongly decided.
The only possible application of that Act to an alien is in respect of an offence
committed by him while subject to naval, military or air force law. Sir Hartley Shawcross A.-G. and Gerald Howard for the Crown. The appellant
contended that the judges’ resolution of January 12, 1707, was the only authority
On the final points that there was no evidence that the passport ever afforded the for the Crown. That resolution was made in response to a summons from the
appellant any protection and that, if there was such evidence, the issue was one sovereign to the judges to give their advice according to recognized legal
for the jury, even if the resolution of the judges in 1707 were correct, the effect of procedure. However, even putting it aside it is sterile to search for an exact
the ruling of Tucker J., would be to extend it, since none of the prerequisites set precedent to cover the present case. No branch of the law has been so much
out in it were present in the case of the appellant. He left no family or effects in subject to judicial construction as that of treason. In this case the inducements to
England and the protection which would have been afforded to them if he had apply, not new principles, but existing principles to new facts are singularly
bore no relation to the administrative protection alleged to be afforded by a compelling. On the appellant’s point as to jurisdiction, there is no principle that no
passport. After the outbreak of war the British passport could afford the appellant alien is triable in England for offences committed abroad. There is only a rebuttable
no protection in Germany and there was no direct evidence that at any material presumption that statutes are not meant to have extra-territorial effect: see
time it remained in his possession. Even assuming that all the previous submissions Mortensen v. Peters (3). In the Treason Act, 1351, the territory specified is the
for the appellant are wrong and that the mere granting of a passport to an alien world at large and there is express reference to treasons committed abroad. The
imports a duty of allegiance by him to the Crown, even so he must be able to words “a man” embrace any man under a duty of allegiance, whether a British
divest himself of the protection which gave rise to the allegiance. It cannot be the subject or an alien. It would have made no difference if the appellant had been a
law that whatever happens and in all circumstances the alien must continue under German subject. The rule as to the locality of crime does rot embrace treason,
which is justiciable in this country even when committed abroad: see R. v. nationality, to enter the United States. One of the uses of a passport is that the
Casement (1). The appellant relied on the comity of nations but only those rules of country issuing it to any person is, under international conventions, bound to
international law which are generally and fully accepted are imported into our law. receive him back. Further, the passport was evidence that he was under the
There is no rule of international law prohibiting the exercise of the jurisdiction of protection of the Crown. It was accepted as proof that he was a British subject and
the court in a case such as this. In the case of R. v. Jameson (2) it was said in terms as such he acquired his position in Germany. It was the fact that he held himself
that the rule there laid down was based on international law. In the case of out as such that made his broadcasts effective. As to the nature of the protection
treason, if there is a duty of allegiance and a crime is committed in breach of that which a passport affords to an alien, it is not the protection of our laws. Originally,
allegiance the question of jurisdiction does not arise. The question is not where when protection depended on the strong arm of the feudal lord, aliens were
treason can be committed, since it can be committed anywhere, but by whom it granted by the Crown an executive protection against our laws, the passport
can be committed. A duty of allegiance on the part of an alien may arise in several enabling them to pass freely in this country, protected from the ordinary operation
ways, by residence, by the taking of an oath, by service under the Crown or by of laws which were highly restrictive and penal as regards foreigners. It was a
grant of protection to him, as, for instance when he holds a British passport. The document permitting them to travel within the state’s own boundaries: see the
real basis of that allegiance is the protection afforded by the Crown and accepted article on The Crown and the Alien by E. F. Churchill (1920), 36 Law Quarterly
by the subject: Calvin’s case (3); Coke’s Institutes, Part I., Book II., s. 199, and Review, p. 402. There is not really any connexion between such a document and a
Foster’s Crown Cases, 1792 ed., pp. 183-5. For the purpose of giving rise to modern passport, which is a matter of international practice. In modern practice
allegiance, the vicarious protection contemplated by the judges’ resolution is the State takes under its protection persons who are not British subjects, who have
sufficient. Allegiance ceases when protection ceases. An alien physically present then the status of protected persons and such was the appellant. Inasmuch as this
within the realm and under the protection of the Crown owes allegiance and a species of protection is not the protection of our laws, even a British subject has no
mere temporary absence from the country does not put an end to it, since it does legally enforceable right to the protection of the Crown abroad. It is a prerogative
not terminate residence for the purposes of the Treason Act. Residence means right in the Crown to protect its own subjects abroad by diplomatic means and this
more than mere physical presence, though less than domicile. In the fourteenth was illustrated in 1850 in the incident of Don Pacifico. The exercise of the
century an alien departing from England was likely to go for good but now protective jurisdiction here contended for is well recognized in international law:
departure and return are easy. If an alien went out of the realm in a speed boat, see Oppenheim on International Law, 5th ed., p. 267; art. 7 of the Draft Convention
committed treason and returned, it could not be denied that there was jurisdiction on Jurisdiction in Respect of Crime (Harvard Research (1935), p. 545) and Borchard
to try him in England. There can be no doubt that, if Germany had won the war, on the Diplomatic Protection of Citizens Abroad, pp. 10, 29. The passport is now
the appellant would have returned to England, His statement with regard to his the method by which the Crown accords [*359] his protection to persons abroad.
acquisition of German nationality is not a thing on which he can rely, for it was not It is the sovereign’s express command to his representatives that protection is to
an admission but an assertion in his own favour. Since he did not choose to go into be given and in its normal functioning puts into operation the Crown’s protective
the witness-box it is not evidence. The passport granted to him in 1933 was for the system. The resident alien shares now in the general protection of all the
purpose of holiday touring. The renewals were unqualified and an application for inhabitants of the realm but the passport holder has the benefit of a protective
plain renewal of a passport must be presumed to be for the same purpose as the machinery going much further, even to the point of involving the country in war:
original. A person going abroad for a holiday for a week or a month does not cease see article on International Law in Practice by Sir William Malkin (1933), 49 Law
to be resident in this country. Moreover, the appellant did not need a British Quarterly Review, p. 489, and Encyclop3Ú4dia of the Laws of England, 2nd ed., vol
passport merely to leave England nor, if he could establish his American X., p. 585, et seq. This was the nature of the protection which in this case imposed
on the appellant the duty of allegiance. Some dicta in the authorities, when of it. It was for him to show that he had by some overt act divested himself of the
divorced from their context, may appear to support the view that the protection to status he had acquired. Negative averments only in the knowledge of the accused
be afforded to produce that result is that of our laws, but the danger of treating and not of the Crown must be proved by him: Archbold’s Criminal Practice (31st
dicta in that way is illustrated by Sovfracht (V/O) v. Van Udens Scheepvaart en ed.) (1943), p. 330. The summing-up satisfied the tests laid down in Stirland v.
Agentuur Maatschappij (N. V. Gebr.) (1). To impose the duty of allegiance it is Director of Public Prosecutions (1) approving R. v. Haddy (2). Once a man has
enough if the State has accorded protection to a person seeking it and is able to obtained the general administrative and executive protection of the Crown, there
give it to the extent recognized by international law. If the appellant’s argument is no principle limiting his allegiance by reference to cases where protection arose
were right a subject of a British mandated, or even a British protected, territory, simply from the fact of residence. This case will have the important effect of
holding, as such a person does, a British passport, would be under no duty of defining the position of all persons who place themselves under the protection of
allegiance to the Crown. That could have far-reaching and serious consequences. the British Crown. The appellant voluntarily sought the protection which the Crown
The appellant enjoyed exactly the same protection, whether it were called can give to a British subject travelling abroad. He had made his home in England
protection of law, or protection in fact, as any British subject would have enjoyed and enjoyed all the privileges of British citizenship. It would be an unthinkable
in the same circumstances at the same time. Though the right to protection might outrage if it were held that while temporarily absent he was absolved from the
be in suspense, the duty of allegiance remained. Even in Germany after the reciprocal duty of allegiance and could not be held to have committed treason.
outbreak of war the administrative protection was not withdrawn, though direct
protection by the Crown’s representatives might have come to an end. The Crown Slade K.C. in reply. The appellant relies on the following principles: (1.) There is no
continued to exercise protection through the medium of the protecting power and reported case of an alien convicted of treason for an act committed abroad. (2.)
the holder of a British passport might benefit from that. Thus, a British subject There is no reported case of any court in this country having assumed jurisdiction
could not be called up to serve in the German army. In international law it is not to try an alien for an offence committed abroad. (3.) The appellant was convicted
open to a foreign state to disregard a British passport and deny its holder’s and his conviction was upheld on the strength of a resolution passed by the judges
nationality. It is immaterial that it may have been obtained by a false, or even a in 1707, which is contrary to every principle of constitutional law enunciated in the
fraudulent, representation. The protection conferred continues until the Crown text-books. (4.) His conviction, since there was no evidence that he left any family
withdraws it. Similarly, just as a British subject can terminate his allegiance by or effects behind in England when he went to Germany in 1939, ran counter, not
becoming a naturalized citizen of a foreign state, so the protected person can by only to the law as it was laid down before that resolution, but also to the
some overt act of substance terminate his allegiance, which does not necessarily resolution itself. The relevant principles laid down by all the masters of the
continue during the whole of the passport’s validity. The passport is evidence of common law are more than dicta and Calvin’s case (1), Blackstone’s Commentaries
the existence of protection and if the appellant had discarded it on a return to and Johnstone v. Pedlar (2) are irreconcilable with that resolution. From R. v.
England that might make a difference, though his merely handing it back to a Lindsay (3) and R. v. Gregg (4) it appears that the resolution was designed to satisfy
British consul in Germany might not justify this country in subsequently refusing to Queen Anne that there was no constitutional difficulty in bringing Valiere and Bara
admit him. From the application for the passport and its renewals it must be to trial. It was framed when no counsel was present to call attention to Calvin’s
presumed that the appellant used it for going abroad. That inference is a matter of case (1) which had been unchallenged for a century before or to argue against its
accepted international law. Having sought the protection of the Crown, the unconstitutional nature or the extent of its implications. The same procedure was
appellant has also the burden of showing that it was not in fact afforded. The adopted in 1660 before the trial of the Regicides, when the judges met and passed
applications were the best prima facie evidence that he intended to avail himself
several resolutions, many of them bad law. Those trials would not have been a safe country. That would give rise to extraordinary situations, so that if a German spy
criterion for any civilized state. Of all the cases which have disfigured our legal wished, in obedience to his natural instincts to return to Germany when war with
history and outraged the common law, treason trials have been the worst. The England became imminent and obtained a British passport, since that was the only
judges’ resolution of 1707 does not bear the imprimatur of the authors who way he could go out of the country, he would be held guilty of treason. As regards
reproduce it in the text-books and who use such phrases as “it is even stated.” jurisdiction, there is no case in which a court in England has assumed jurisdiction to
Moreover, the appellant’s conviction and the judgment of the Court of Criminal try an alien for an offence committed abroad. As regards the case of De Jager v.
Appeal are not consistent with the law as stated by Sir Michael Foster (Foster’s Attorney-General for Natal (1) that was a bad decision. In general, it is a singularly
Crown Cases, 1792 ed., pp. 183-5) and the resolution which he set out is not in sterile process to try to interpret the Treason Act, 1351, by reference to modern
accordance with his previous statement of the law; he said that the local allegiance concepts of international law, which did not then exist in more than an embryonic
of an alien ceased so soon as he withdrew his person and effects but in the present state. Confusion has arisen between the intention with which the appellant left
case the courts below held that this was not so if the alien held a British passport. England, whether he had any animus revertendi, and the use which he may have
Foster made it clear that the protection in question was that of our law. He made of the passport after he got to Germany. The fact of his joining the German
referred (p. 184 n.) to the coronation oath whereby the sovereign undertakes to radio organization indicated an intention not to return and a casting off of any
cause law to be executed. It is this which is the correlative of allegiance. If the gist protection provided by the passport. He had deserted what he took to be a sinking
of the matter is not the protection of the law there was no point in insisting on the ship and any intention he may have had of returning was not a return to the
necessity for the presence in this country of the alien’s family or effects. The effect Crown’s allegiance but with a victorious German army. As regards the passport so
of this conviction is to contradict that and say that the protection attracting far as the evidence goes he might have thrown it overboard during the sea crossing
allegiance is not that of our law in the case of a person holding a British passport. from England. There is no complaint of the judge’s summing-up on the facts
But allegiance is derived from status, the status of a subject. A resident alien is a proved in evidence but he failed to direct the jury on facts about which no
subject and when he ceases to reside he ceases to be a subject. An alien soldier in evidence had been given but which were for them and on an issue which should
the British service could not be tried for treason for an act committed abroad, for have been left to them. Even if it was for the appellant to show what was done
his oath of allegiance would not constitute the status of local allegiance. There is with the passport the judge should have directed the jury on that matter. Further,
no reported case of an alien mercenary being tried for such an act. Before 1940 he he directed them as a matter of law that the appellant continued to owe allegiance
would have been tried under s. 4 of the Army Act and since then he would be to the Crown at the material times and that was an issue which should have been
triable under the Treachery Act, 1940. There is no intermediate status between a left to them. It could not be said that a reasonable jury if they had received the
British subject and an alien called a “British protected subject.” The de facto directions which were lacking would necessarily have reached the same
protection afforded by a British mandate does not beget allegiance. British subjects conclusion. Since the issue was not put to the jury at all the proviso to s, 4, sub-s. 1
alone are entitled when abroad to the protection of the Crown against other of the Criminal Appeal Act, 1907, does not operate.
states. It is a fallacy to suggest that any protection is afforded by a passport qua
passport; it is only an easy means of identification. An alien who has obtained a December 18, 1945. LORD JOWITT L.C. I have come to the conclusion, in common
British passport, with whatever protection he might get from the belief that he is a with the majority of your Lordships, that the appeal should be dismissed.
British subject, can have no higher degree of protection than a British protected
person, and that cannot found allegiance. The Crown admitted that this conviction
would have been good in law if the appellant had been a German when he left the
LORD JOWITT L.C. My Lords, on November 7, 1945, the Court of Criminal Appeal them aid and comfort in the realm, or elsewhere” then (I depart from the text and
dismissed the appeal of the appellant, William Joyce, who had on September 19, use modern terms) he shall be guilty of treason. It is not denied that the appellant
1945, been convicted of high treason at the Central Criminal Court and duly has adhered to the King’s enemies giving them aid and comfort elsewhere than in
sentenced to death. The Attorney-General certified under s. 1, sub-s. 6, of the the realm. Upon this part of the case the single question is whether, having done
Criminal Appeal Act 1907, that the decision of the Court of Criminal Appeal so, he can be and in the circumstances of the case is guilty of treason. Your
involved a point of law of exceptional public importance and that in his opinion it Lordships will observe that the statute is wide enough in its terms to cover any
was desirable in the public interest that a further appeal should be brought. Hence man anywhere, “if a man do levy war,” etc. Yet it is clear that some limitation must
this appeal is brought to your Lordships’ House. And though, in accordance with be placed upon the generality of the language, for the context in the preamble
the usual practice, the certificate of the Attorney-General does not specify the poses the question “in what case treason shall be said and in what not.” It is
point of law raised in the appeal, it is clear that the question for your Lordships’ necessary then to prove not only that an act was done but that, being done, it was
determination is whether an alien who has been resident within the realm can be a treasonable act. This must depend upon one thing only, namely the relation in
held guilty and convicted in this country of high treason in respect of acts which the actor stands to the King to whose enemies he adheres. An act that is in
committed by him outside the realm This is in truth a question of law of far- one man treasonable, may not be so in another. In the long discussion which your
reaching importance. The appellant was charged at the Central Criminal Court on Lordships have heard upon this part of the case attention has necessarily been
three counts, upon the third of which only he was convicted. The first and second concentrated on the question of allegiance. The question whether a man can be
counts, upon which he was found not guilty, were based upon the assumption that guilty of treason to the King has been treated as identical with the question
he was at all material times a British subject. This assumption was proved to be whether he owes allegiance to the King. An act, it is said, which is treasonable if
incorrect; therefore upon these counts the appellant was rightly acquitted. The the actor owes allegiance, is not treasonable if he does not. As a generalization,
Court of Criminal Appeal, as I have already said, dismissed the appeal, and it will be this is undoubtedly true and is supported by the language of the indictment, but it
convenient if I deal with the grounds of appeal in the same order as did that court, leaves undecided the question by whom allegiance is owed and I shall ask your
first considering the important question of law raised in the second ground. Lordships to look [*366] somewhat more deeply into the principle upon which
this statement is founded, for it is by the application of principle to changing
The House is called upon in the year 1945 to consider the scope and effect of a circumstances that our law has developed. It is not for His Majesty’s judges to
statute of the year 1351, the twenty-fifth year of the rein of Edward III. That create new offences or to extend any penal law and particularly the law of high
statute, as has been commonly said and as appears from its terms, was itself treason, but new conditions may demand a reconsideration of the scope of the
declaratory of the common law: its language differs little from the statement in principle. It is not an extension of a penal law to apply its principle to
Bracton (see De Legibus et Consuetudinibus Angliæ (No. 70 Rolls Series), vol. II., p. circumstances unforeseen at the time of its enactment, so long as the case is fairly
258; Stephen’s History of the Criminal Law, vol. II., p. 243). It is proper to set out brought within its language.
the material parts. Thus it runs: “Whereas divers opinions have been before this
time in what case treason shall be said and in what not; the King, at the request of I have said, my Lords, that the question for consideration is bound up with the
the Lords and of the Commons hath made a declaration in the manner as hereafter question of allegiance. Allegiance is owed to their sovereign Lord the King by his
followeth, that is to say;” [amongst other things] “if a man do levy war against our natural born subjects; so it is by those who, being aliens, become his subjects by
Lord the King in his realm, or be adherent to the King’s enemies in his realm giving denization or naturalization (I will call them all “naturalized subjects”); so it is by
those who, being aliens, reside within the King’s realm. Whether you look to the Crown; and, though his person was removed for a time, his effects and family
feudal law for the origin of this conception or find it in the elementary necessities continued still under the same protection. This rule was laid down by all the judges
of any political society, it is clear that fundamentally it recognizes the need of the assembled at the Queen’s command January 12, 1707.” The author has a side note
man for protection and of the sovereign lord for service. “;Protectio trahit against the last line of this passage “MSS. Tracey, Price, Dod and Denton.” These
subjectionem et subjectio protectionem.” All Who were brought within the King’s manuscripts have not been traced but their authenticity is not questioned. It is
protection were ad fidem regis: all owed him allegiance. The topic is discussed with indeed impossible to suppose that Sir Michael Foster could have incorporated such
much learning in Calvin’s case (1). The natural-born subject owes allegiance from a statement except upon the surest grounds and it is to be noted that he accepts
his birth, the naturalized subject from his naturalization, the alien from the day equally the fact of the judges’ resolution and the validity of its content.
when he comes within the realm. By what means and when can they cast off
allegiance? The natural-born subject cannot at common law at any time cast it off. The question then is how is this principle to be applied to the circumstances of the
“Nemo potest exuere patriam” is a fundamental maxim of the law from which present case. My Lords, I have already stated the material facts in regard to the
relief was given only by recent statutes. Nor can the naturalized subjects at appellant’s residence in this country, his applications for a passport and the grant
common law. It is in regard to the alien resident within the realm that the of such passport to him and I need not restate them. I do not think it necessary in
controversy in this case arises. Admittedly he owes allegiance while he is so this case to determine what for the purpose of the doctrine, whether stated with
resident, but it is argued that his allegiance extends no further. Numerous or without qualification, constitutes for an alien “residence” within the realm. It
authorities were cited by the learned counsel for the appellant in which it is stated would, I think, be strangely inconsistent with the robust and vigorous
without any qualification or extension that an alien owes allegiance so long as he is commonsense of the common law to suppose that an alien quitting his residence
within the realm and it has been argued with great force that the physical in this country and temporarily on the high seas beyond territorial waters or at
presence of the alien actor within the realm is necessary to make his act some even distant spot now brought within speedy reach and there adhering and
treasonable. It is implicit in this argument that during absence from the realm, giving aid to the King’s enemies could do so with impunity. In the present case the
however brief, an alien ordinarily resident within the realm cannot commit appellant had long resided here and appears to have had many ties with this
treason; he cannot in any circumstances by giving aid and comfort to the King’s country, but I make no assumption one way or another about his intention to
enemies outside the realm be guilty of a treasonable act. My Lords in my opinion return and I do not attach any importance to the fact that the original passport
this which is the necessary and logical statement of the appellant’s case is not only application and, therefore, presumably the renewals also were for “holiday
at variance with the principle of the law, but is inconsistent with authority which touring.” The material facts are these, that being for long resident here and owing
your Lordships cannot disregard. I refer first to authority. It is said in Foster’s allegiance he applied for and obtained a passport and, leaving the realm, adhered
Crown Cases (3rd ed.), p. 183 — “Local allegiance is founded in the protection a to the King’s enemies. It does not matter that he made false representations as to
foreigner enjoyeth for his person, his family or effects, during his residence here; his status, asserting that he was a British subject by birth, a statement that he was
and it ceaseth, whenever he withdraweth with his family and effects.” And then on afterwards at pains to disprove. It may be that when he first made the statement,
p. 185 comes the statement of law upon which the passage I have cited is clearly he thought it was true. Of this there is no evidence. The essential fact is that he got
founded “Section 4. And if such alien, seeking the protection of the Crown, and the passport and I now examine its effect. The actual passport issued to the
having a family and effects here, should during a war with his native country, go appellant has not been produced, but its contents have been duly proved. The
thither, and there adhere to the King’s enemies for purposes of hostility, he might terms of a passport are familiar. It is thus described by Lord Alverstone C.J., in R. v.
be dealt with as a traitor. For he came and settled here under the protection of the
Brailsford (1): “It is a document issued in the name of the sovereign on the the alien looked and to his dispensing power under the prerogative. It is not
responsibility of a minister of the Crown to a named individual, intended to be necessary to trace the gradual process by which the civic rights and duties of a
presented to the governments of foreign nations and to be used for that resident alien became assimilated to those of the natural-born subject; they have
individual’s protection as a British subject in foreign countries.” By its terms it in fact been assimilated, but to this day there will be found some difference. It is
requests and requires in the name of His Majesty all those whom it may concern to sufficient to say that at the time when the common law established between
allow the bearer to pass freely without let or hindrance and to afford him every sovereign lord and resident alien the reciprocal duties of protection and allegiance
assistance and protection of which he may stand in need. It is, I think, true that the it was to the personal power of the sovereign rather than to the law of England
possession of a passport by a British subject does not increase the sovereign’s duty that the alien looked. It is not, therefore, an answer to the sovereign’s claim to
of protection, though it will make his path easier. For him it serves as a voucher fidelity from an alien without the realm who holds a British passport that there
and means of identification. But the possession of a passport by one who is not a cannot be extended to him the protection of the law. What is this protection upon
British subject gives him rights and imposes upon the sovereign obligations which which the claim to fidelity is founded? To me, my Lords, it appears that the Crown
would otherwise not be given or imposed. It is immaterial that he has obtained it in issuing a passport is assuming an onerous burden, and the holder of the
by misrepresentation and that he is not in law a British subject. By the possession passport is acquiring substantial privileges. It is true that the measure in which the
of that document he is enabled to obtain in a foreign country the protection state will exercise its right lies in its discretion. But with the issue of the passport
extended to British subjects. By his own act he has maintained the bond which the first step is taken. Armed with that document the holder may demand from
while he was within the realm bound him to his sovereign. The question is not the State’s representatives abroad and from the officials of foreign governments
whether he obtained British citizenship by obtaining the passport, but whether by that he be treated as a British subject, and even in the territory of a hostile state
its receipt he extended his duty of allegiance beyond the moment when he left the may claim the intervention of the protecting power. I should make it clear that it is
shores of this country. As one owing allegiance to the King he sought and obtained no part of the case for the Crown that the appellant is debarred from alleging that
the protection of the King for himself while abroad. he is not a British subject. The contention is a different one: it is that by the holding
of a passport he asserts and maintains the relation in which he formerly stood,
Your Lordships were pressed by counsel for the appellant with a distinction claiming the continued protection of the Crown and thereby pledging the
between the protection of the law and the protection of the sovereign, and he continuance of his fidelity. In these circumstances I am clearly of opinion that so
cited many passages from the books in which the protection of the law was long as he holds the passport he is within the meaning of the statute a man who, if
referred to as the counterpart of the duty of allegiance. Upon this he based the he is adherent to the King’s enemies in the realm or elsewhere commits an act of
argument that, since the protection of the law could not be given outside the treason. There is one other aspect of this part of the case with which I must deal. It
realm to an alien, he could not outside the realm owe any duty. This argument in is said that there is nothing to prevent an alien from withdrawing from his
my opinion has no substance. In the first place reference is made as often to the allegiance when he leaves the realm. I do not dissent from this as a general
protection of the Crown or sovereign or lord or government as to the protection of proposition. It is possible that he may do so even though he has obtained a
the law, sometimes also to protection of the Crown and the law. In the second passport. But that is a hypothetical case. Here there was no suggestion that the
place it is historically false to suppose that in olden days the alien within the realm appellant had surrendered his passport or taken any other overt step to withdraw
looked to the law for protection except in so far as it was part of the law that the from his allegiance, unless indeed reliance is placed on the act of treason itself as a
King could by the exercise of his prerogative protect him. It was to the King that withdrawal. That in my opinion he cannot do. For such an act is not inconsistent
with his still availing himself of the passport in other countries than Germany and
possibly even in Germany itself. It is not to be assumed that the British authorities with the observations of that court. The document speaks for itself. It was capable
could immediately advise their representatives abroad or other foreign of affording the appellant protection. He applied for it and obtained it, and it was
governments that the appellant, though the holder of a British passport, was not available for his use. Before this House the argument took a slightly different turn.
entitled to the protection that it appeared to afford. Moreover the special value to For it was urged that there was no direct evidence that the passport at any
the enemy of the appellant’s services as a broadcaster was that he could be material time remained in the physical possession of the appellant and that upon
represented as speaking as a British subject and his German work book showed this matter the jury had not been properly directed by the learned judge in that he
that it was in this character that he was employed, for which his passport was assumed to determine as a matter of law a question of fact which it was for them
doubtless accepted as the voucher. to determine. This point does not in this form at least appear to have been taken
before the Court of Criminal Appeal and your Lordships have not the advantage of
The second point of appeal (the first in formal order) was that in any case no knowing the views of the experienced judges of that court upon it. Nor, though the
English court has jurisdiction to try an alien for a crime committed abroad and your importance of keeping separate the several functions of judge and jury in a
Lordships heard an exhaustive argument upon the construction of penal statutes. criminal trial is unquestionable, can I think that this is a question with which your
There is, I think, a short answer to this point. The statute in question deals with the Lordships would have had to deal in this case, if no other issue had been involved.
crime of treason committed within or, as was held in R. v. Casement (1), without For it is clear that here no question of principle is involved. The narrow point
the realm: it is general in its terms and I see no reason for limiting its scope except appears to be whether in the course of this protracted and undeniably difficult
in the way that I indicated earlier in this opinion, viz.: that, since it is declaratory of case the learned judge removed from the jury and himself decided a question of
the crime of treason, it can apply only to those who are capable of committing that fact which it was for them to decide. This is a matter which can only be determined
crime. No principle of comity demands that a state should ignore the crime of by a close scrutiny of the whole of the proceedings. My Lords, this is a task which
treason committed against it outside its territory. On the contrary a proper regard in the circumstances of this case your Lordships have thought fit to undertake. I do
for its own security requires that all those who commit that crime, whether they not propose to examine in detail the course of the trial and the summing up of the
commit it within or without the realm should be amenable to its laws. I share to learned judge, though I may perhaps be permitted to say that it was distinguished
the full the difficulty experienced by the Court of Criminal Appeal in understanding by conspicuous care and ability on his part. But having read the whole of the
the grounds upon which this submission is based, so soon as it has been held that proceedings I have come to the clear conclusion that the learned judge’s summing
an alien can commit, and that the appellant did commit, a treasonable act outside up is not open to the charge of misdirection. It may well be that there are passages
the realm. I concur in the conclusion and reasons of that court upon this point. in it which are open to criticism. But the summing up must be viewed as a whole
and upon this view of it I am satisfied that the jury cannot have failed to appreciate
Finally (and these are the third and fourth grounds of appeal to the Court of and did appreciate that it was for them to consider whether the passport remained
Criminal Appeal) it was urged on behalf of the appellant that there was no at all material times in the possession of the appellant. Upon this question no
evidence that the renewal of his passport afforded him or was capable of affording evidence could be given by the Crown and for obvious reasons no evidence was
him any protection or that he ever availed himself or had any intention of availing given by the appellant. It has not been suggested that the inference could not fairly
himself of any such protection, and if there was any such evidence the issue was be drawn from the proved facts if the jury thought fit to draw it and I think that
one for the jury and the learned judge failed to direct them thereon. Upon these they understood this and did draw the inference when they returned the general
points too, which are eminently matters for the Court of Criminal Appeal, I agree verdict of “Guilty.” This point therefore also fails.
It was said in the second place, however, that in no case could an alien, however It must be remembered that the matter to be determined is not whether the
long he had been resident here, commit an act of treason whilst he was abroad. appellant took upon himself a new allegiance, but whether he continued an
This argument again seems to me to limit unduly the extent of his obligation. It is allegiance which he had owed for some twenty-four years, and a lesser amount of
in contradiction of the resolution of the judges in 1707, whereby it was declared evidence may be required in the latter than the former case. I cannot think that
that if an alien who has been resident here goes abroad himself but leaves his such a resident can in war time pass to and fro from this country to a foreign
family and effects here under the same protection, the duty (i.e. of allegiance) still jurisdiction and be permitted by our laws to adhere to the enemy there without
continues. This resolution has been criticized as being merely the opinion of the being amenable to the law of treason. I agree with your Lordships also in thinking
judges in consultation with prosecuting counsel, and not given as a decision in any that if an alien is under British protection he occupies the same position when
case. The criticism is true, but the resolution has been repeated in text book after abroad as he would occupy if he were a British subject. Each of them owes
text book of high authority, and though not authoritative as a legal decision, it still allegiance, and in so doing each is subject to the jurisdiction of the British Crown.
has the weight of its repetition by great lawyers and the fact that it is nowhere “The law of nations,” says Oppenheim, International Law, vol. I., p. 266 (5th ed.),
challenged. Foster, East, Hawkins, Chitty and Bacon all set it out. Blackstone alone “does not prevent a state from exercising jurisdiction within its own territory over
omits it, but Blackstone was giving a general view of the laws of England, and an its subjects travelling or residing abroad, since they remain under its personal
omission to set out a particular extension of the general rule is not necessarily a supremacy.” Moreover, in R. v. Casement (1), the point was directly decided in the
denial of its existence. Equally the fact that many cases also state only the general case of a British subject who committed the act of adhering to the King’s enemies
rule in cases where no more is required is not a denial of the existence of certain abroad, and the decision was not seriously controverted before your Lordships.
modifications or extensions of it. It is true that even in the case with which the But my Lords, though the renewing of a passport might in a proper case lead to the
resolution deals the alien, though absent himself, is vicariously protected by the conclusion that the possessor, though absent from the country, continued to owe
laws of this country in the person of his family and effects, but it is still no more allegiance to the British Crown, yet in my view the question whether that duty was
than protection. Does then the possession of a passport afford any such protection still in existence depends upon the circumstances of the individual case and is a
as that contemplated by the rule? I think it does. Even after war is declared, some matter for the jury to determine. In the present case, as I understand him, the
protection could be afforded to holders of British passports through the protecting learned judge ruled that in law the duty of allegiance continued until the
power, and again it would be useful and afford protection in neutral countries. “It protection given by the passport came to an end — i.e. in a year’s time — or at any
will be well to consider what a passport really is,” says Lord Alverstone C.J., in R. v. rate until after the first act of adhering to the enemy, which I take to be the date of
Brailsford (1). “It is a document issued in the name of the sovereign on the the appellant’s employment as broadcaster by the German State on September 18,
responsibility of a minister of the Crown to a named individual, intended to be 1939. The Court of Criminal Appeal take, I think, the same view, but since your
presented to the governments of foreign nations and to be used for that Lordships, as I understand, think otherwise, I must set out the facts as I see them.
individual’s protection as a British subject in foreign countries,” and the late Sir The appellant, admittedly an American subject, but resident within this realm for
William Malkin in vol. 49 of the Law Quarterly Review, p. 493, speaks of “the some twenty-four years, applied for and obtained a passport, as a British subject,
extensive though perhaps somewhat ill-defined, branch of international law which in 1933. This document continued to be effective for five years, and was renewed
may be called. … ‘the diplomatic protection of citizens abroad’.” in 1938 and again on August 24, 1939. Extensions are normally granted for one
year, and that given to the appellant followed the normal course. It would, I think,
not be an unnatural inference that he used it in leaving England and entering
Germany, but in fact nothing further was proved as to the appellant’s movements,
save that his appointment as broadcaster by the German State, dated September as a matter of law, this man William Joyce did owe allegiance to our Lord the King,
18, 1939, was found in his possession when he was captured, and that at any rate notwithstanding the fact that he was not a British subject at the material time.
by December 10, he had given his first broadcast. Nothing is known as to the Now, members of the jury, although that is a matter for me entirely and not for
passport after its issue, and it has not since been found. you, I think it will be convenient if I explain quite shortly the reasons by which I
have arrived at that view, partly for your assistance, explanation, and perhaps for
My Lords, for the purpose of establishing what the learned judge’s ruling was, I consideration hereafter in the event of this case possibly going to a higher court.”
think it necessary to quote his own words to the representatives of the Crown and Again, he says “None the less I think it is the law that if a man who owes allegiance
of the prisoner before they addressed the jury. They are as follows(2): “I shall by having made his home here, having come to live here permanently, thereby
direct “the jury on count 3” (the only material count) “that on August 24, 1939, acquiring allegiance, as he undoubtedly does, if he then steps out of this realm
when the passport was applied for, the prisoner beyond a shadow of doubt owed armed with the protection which is normally afforded to a British subject —
allegiance to the Crown of this country and that on the evidence given, if they improperly obtained, it may be, but none the less obtained — . … using and
accept it, nothing happened at the material time thereafter to put an end to the availing himself of the protection of the Crown in an executive capacity which
allegiance that he then owed. It will remain for the jury, and for the jury alone, as covers him while he is abroad, then in my view he has not thereby divested himself
to whether or not at the relevant dates he adhered to the King’s enemies with of the allegiance which he already owed.” Later, he says(1): “So between August
intent to assist the King’s enemies. If both or either of you desire to address the 24 and September 18, 1939, armed with a British passport, he had somehow or
jury on that issue, of course, now is your opportunity.” After that ruling both another entered Germany. Now, members of the jury, thereafter up until the 2nd
counsel proceeded to address the jury, the defence submitting that the appellant July, 1940, when his passport ran out, he remained under such protection as that
had not adhered to the King’s enemies, the Attorney-General that he had. No passport could afford him during his stay in Europe.” Once again, he says(2): I do
other topic was touched upon by either of them, and in particular no argument not think that I am in any way extending the principles of the law in saying that a
was addressed to the question whether the appellant still had the passport in his man who in this way adopts and uses the protection of the sovereign to whom he
possession and retained it for use or whether he still owed allegiance to the British has already acquired an allegiance remains under that allegiance and is guilty of
Crown. treason if he adheres to the King’s enemies. Members of the jury, I accordingly
pass from that aspect of the matter; that is my responsibility. I may be wrong; if I
After counsel’s address to the jury the learned judge summed up, and again I think am I can be corrected. My duty is to tell you what I believe to be the law on the
I must quote some passages from his observations. One such is(1): “Under that subject and that you have to accept from me, provided you believe those facts
count [i.e. count 3] there are two matters which have got to be established by the about the passport, going abroad and so forth. If you do not believe that you are
prosecution. … beyond all reasonable doubt. … The first thing that the prosecution entitled to reject it and say so, because you are not bound to believe everything,
have to establish is that at the material time the prisoner, William Joyce, was a but if you accept the uncontradicted evidence that has been given, then in my view
person owing allegiance to our Lord the King. Now, in my view, I have already that shows that this man at the material time owed allegiance to the British Crown.
intimated. … the conclusion that have reached as a matter of law is, if you as a jury Now, if that is so, then the matter passes into your hands, and from now onwards I
accept the facts which have been proved in this case beyond contradiction — of am dealing with matters which are your concern and your concern alone, with
course you are entitled to disbelieve anything if you wish — if you accept the facts which I have got nothing to do; they are matters of fact, and the onus of proving
which have been proved and not denied in this case, then at the time in question, those facts is upon the prosecution from first to last, and it never shifts. Now what
have they got to prove? They have got to prove that during this period, as I have
already indicated, this man adhered to the King’s enemies without the realm, implement the Final Solution there, organised the transfer of money from
namely, in Germany.” The learned judge then refers to a broadcast, of which there evacuated Jews to the State and was responsible for the administration of the
was uncontradicted evidence that it had been made before December 10, 1939, to camps at Terezin and Bergen-Belsen.
the prisoner’s engagement as a German broadcaster to Britain, and to the
prisoner’s statement which was put in evidence by the Crown and from which I He was captured by Israeli Security Forces in Argentina and handed over to the
need only quote the words: “Realizing, however, that at this critical juncture I had District Court of Jerusalem to stand trial for war crimes, crimes against humanity
declined to serve Britain, I drew the logical conclusion that I should have no moral and crimes against the Jewish people. He was convicted of all 15 counts and
right to return to that country of my own free will and that it would be best to sentenced to death. He was unsuccessful in contesting the jurisdiction of the Court
apply for German citizenship and make my permanent home in Germany.” After or defending his actions by relying on superior orders.
reading the statement the learned judge added(1): “I think that is the whole of the Procedural history
very short material upon which you have to come to the conclusion as to whether
or not it is proved to your satisfaction beyond all reasonable doubt that during the In May 1960, the Israeli intelligence service, Mossad, abducted Eichmann from his
period in question this man adhered to the King’s enemies, comforted and aided hiding place in Argentina and transferred him to Jerusalem to face an Israeli court.
them with intent to assist them and that he did so voluntarily. Those are the
matters which you have to consider.” Appeal dismissed. The trial commenced on 11 April 1961 with the indictment charging Eichmann with
15 counts of crimes against the Jewish people, crimes against humanity, war
Attorney General v. Adolf Eichmann crimes and membership in an organisation declared criminal by the International
Military Tribunal in Nuremberg 15 years earlier.
Summary Related developments
The crimes perpetrated by the Nazis during Hitler’s reign against Jewish citizens
were some of the worst recorded in history. Although accurate figures may never Eichmann appealed the decision of the District Court. The Supreme
be known, it is estimated that some 6 million Jewish individuals died – men, Court dismissed his appeal on 29 May 1962.
women, and children from all over Europe. They were deported from their homes
in large freight trains in appalling conditions, others starved or froze to death, Eichmann was executed on 31 May 1962.
others still were taken away to concentration camps where the fit were forced to Legally relevant facts
perform manual labour whilst the weak were shot to death or later, gassed to
death in their thousands. Prior to the outbreak of World War II, the Accused was a member of the Austrian
SS and later volunteered for a position with the Head Office of the Security Service
The Accused, Adolf Eichmann, was an Austrian by birth who volunteered to work (SD) in Berlin (para. 59). When the SD merged with the State Secret Police
for the Security Service (SD) in Berlin. He rose through the ranks and eventually (Gestapo) to form the Head Office for Reich Security (RSHA), the Accused occupied
occupied the position of Head of Section (Referant) for Jewish Affairs charged with the role of Special Officer of Zionist Affairs (para. 61). He was transferred to Vienna
all matters related to the implementation of the Final Solution to the Jewish in 1938 to administer the Central Office for the Emigration of Austrian Jews (para.
Question. In this capacity, he oversaw the transport and deportation of Jewish 64). His success was such that approximately 150,000 Austrian Jews were forced to
persons, set up and personally ran an operations centre in Hungary in order to
emigrate and he was appointed head of the new Reich Central Office for Jewish established and recognised as the State of the Jews (para. 34). The crimes
Emigration in October 1939 (para. 65). committed by the Accused concern the vital interests of the State, thus it has a
right to punish the Accused pursuant to the protective principle (para. 35).
From the outbreak of the War to mid-1941, the Accused devised and carried out
the mass deportation of Jewish persons from his role as the Special Referent for This jurisdiction is not negated by the manner in which the Accused was brought
Emigration and Evacuation within the RSHA (paras. 71-75) and explored the before the Court. It is an established rule of law that a person standing trial for an
possibility of setting up a slave Jewish state in Madagascar (para. 76). offence against the laws of a State may not oppose his being tried by reason of the
illegality of his arrest or the means by which he was brought to the jurisdiction of
In early 1942, the Accused was appointed the Referant of the RSHA in matters the court (para. 41). This rule applies equally in cases where the accused is relying
connected to the Final Solution (para. 88). In implementing the Final Solution, the on violations of international, rather than domestic, law (para. 47). Such a violation
Accused received information as to the number of persons to be expelled (para. of international law constitutes an international tort, which may be “cured” by
90), organised the transfer of money from evacuated Jews for the disposal of the waiver. In the present instance, the joint decision of the Governments of Argentina
SS (para. 91), and oversaw the handling of the transport of Jews (para. 93), not and Israel of 3 August 1960 “cured” the international tort committed by Israel
only in the Reich but also in other countries (para. 98). In particular, he headed the when it entered Argentinian territory to abduct the Accused (para. 50).
Eichmann Special Operations Unit in Hungary and did his utmost to carry out the
Final Solution (para. 111). These "Transport Jews" were taken to concentration Having examined the command structure in place at the SS and the scope of the
camps and those who were unfit for hard labour were exterminated immediately Accused’s authority, the Court concluded that the latter acted in accordance with
(para. 145). general directives from his superiors but he retained wide powers of discretion
(para. 180). Under Section 8 of the Punishment Law, the defence of superior
In autumn 1942, a cover up effort was begun as bodies in mass graves were orders (contained in Section 19(b) of the Criminal Code Ordinance of 1936) is not
burned in an effort to hide the slaughter (para. 148). The concentration camps available in case of offences enumerated by the afore-mentioned Law but may be
were evacuated (para. 149) – the Accused in particular was responsible for all taken into account as a factor at sentencing (para. 218).
administrative matters connected with the Terezin Ghetto (para. 152) and the
camp at Bergen-Belsen (para. 153). The Accused was convicted on all fifteen counts and sentenced to death (para.
244).
Court's holding and analysis United States v. Yunis, 681 F. Supp. 896, 1988 U.S. Dist. LEXIS 1857 (D.D.C. Feb.
The Court’s jurisdiction is founded upon it by the Nazis and Nazi Collaborators 12, 1988)
(Punishment) Law 5710-1950. This law does not violate the principles of
international law (para. 10). Israel’s “right to punish” is founded on two elements. Brief Fact Summary
First, the universal character of the crimes in question, which are grave offences
against the law of nations itself and, in the absence of an international court, grant Yunis (Defendant) argued that the Government (Plaintiff) could not prosecute him
jurisdiction to any domestic court (para. 12). Second, the specific character of the for a hijacking that he perpetrated when its only connection to the United States
crimes, which was the extermination of the Jewish people, provides the necessary was that several Americans were on board the plane.
linking point between the Accused and the newly-founded State of Israel, a State
Synopsis of Rule of Law contrary to civilization that any court may assert jurisdiction. The acts that fall
within this category are mainly defined by international convention. The universal
The federal government may prosecute an airline hijacker even if the hijacking’s principle applies because numerous conventions condemn hijacking and hostage
only connection with the United States was the presence of Americans on board taking. The “passive personal principle”� is also relevant, which applies to
the plane. offenses against a nation’s citizens abroad. The United States has been slow to
recognize this principle, but it is now generally agreed upon. International law
Facts having been disposed of on this issue, domestic law must now be discussed. The
Hostage Taking Law, at subsection (b)(1)(A), clearly includes an offender that has
seized or detained a U.S. citizen. The language could not be plainer. With regard to
Yunis (Defendant) and several accomplices hijacked a Jordanian airliner while it
the Destruction of Aircraft Act and the Federal Aviation Act, 18 U.S.C. § 31, that the
was on the ground in Beirut. The plane flew to several locations around the
law was intended to apply only when the aircraft in question either began or
Mediterranean Sea, and eventually flew back to Beirut, where the hijackers blew
ended its flight in the United States. Since the flight in question did not do this, the
up the plane and then escaped into the hills. The only connection between the
Act does not apply. Motion denied in part; granted in part.
whole event and the United States was that several Americans were on board the
whole time. Yunis (Defendant) was indicted for violating the Hostage Taking Act,
18 U.S.C. § 1203. He was apprehended, and later indicted under the Destruction of Discussion
Aircraft Act, 18 U.S.C. § 32. He moved to dismiss on grounds of jurisdiction.
There are three other existing bases for jurisdiction that are generally accepted.
Issue These are territorial (jurisdiction over territory), national (jurisdiction over a
person) and protective (jurisdiction necessary to protect a state.) Of the five
generally recognized jurisdictional grounds, the passive personal principle has been
May the federal government prosecute an airline hijacker even if the hijacking’s
met with the most resistance by U.S. courts and officials.
only connection with the United States was the presence of several Americans on
board the plane?
United States v. Alvarez-Machain
Held
Brief Fact Summary. Alvarez-Machain (D) abducted from Mexico for trial in the U.S.
(P) by Drug Enforcement Agency (DEA) agents, contended that his abduction was
(Parker, J.) Yes. The federal government may prosecute an airline hijacker even if
illegal because of an extradition treaty between the United States (P) and Mexico.
the hijacking’s only connection with the United States was the presence of
Americans on board the plane. There must be jurisdiction under both international
and domestic law in order for jurisdiction to exist in the situation of this case. Synopsis of Rule of Law. The presence of an extradition treaty between the United
International law relates to the power of Congress to have extraterritorial States and another country does not necessarily preclude obtaining a citizen of
application of its law; domestic law relates to its intent to do so. International law that nation through abduction.
recognizes several bases for a nation to give extraterritorial application to its laws.
One is the “universal principle.”� Some acts are considered to be so heinous and
Facts. Agents of the DEA abducted Alvarez-Machain (D) from his office in Mexico GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the
because he was wanted in the U.S. (P) for alleged complicity in the torture-murder Philippine Department of Justice, petitioner, vs. Hon. GUILLERMO G. PURGANAN,
of a DEA agent. But by contending that his abduction violated a U.S.-Mexico Morales, and Presiding Judge, Regional Trial Court of Manila, Branch 42; and
extradition treaty, Alvarez (D) sought to dismiss the indictment. His prayer was MARK B. JIMENEZ a.k.a. MARIO BATACAN CRESPO, respondents.
granted by the district court and the indictment was dismissed. The court of
appeals affirmed while the U.S. Supreme Court granted review. The Facts

Issue. Does the presence of an extradition treaty between the United States and This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v.
another country does not necessarily preclude obtaining a citizen of that nation Ralph C. Lantion.[5]
through abduction?
Pursuant to the existing RP-US Extradition Treaty,[6] the United States
Held. (Rehnquist, C.J.) No. The presence of an extradition treaty between the Government, through diplomatic channels, sent to the Philippine Government
United States and another country does not necessarily preclude obtaining a Note Verbale No. 0522 dated June 16, 1999, supplemented by Note Nos. 0597,
citizen of that nation through abduction. It has been established that abduction, in 0720 and 0809 and accompanied by duly authenticated documents requesting the
and of itself, does not invalidate prosecution against a foreign national. The only extradition of Mark B. Jimenez, also known as Mario Batacan Crespo. Upon receipt
question to be answered is whether the abduction violates any extradition treaty of the Notes and documents, the secretary of foreign affairs (SFA) transmitted
that may be in effect between the U.S. (P) and the nation in which the abductee them to the secretary of justice (SOJ) for appropriate action, pursuant to Section 5
was to be found. The international law applies only to situations where no of Presidential Decree (PD) No. 1069, also known as the Extradition Law.
extradition treaty exists, so it is irrelevant here. Since the extradition treaty does
not prohibit an abduction as it occurred in this case, then it is not illegal. Reversed. 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
Dissent. (Stevens, J.). the majority opinion fails to distinguish between acts of prohibited the Department of Justice (DOJ) from filing with the RTC a petition for
private citizens, which do not violate any treaty obligations and conduct expressly his extradition. The validity of the TRO was, however, assailed by the SOJ in a
authorized by the executive branch, which undoubtedly constitutes a fragrant Petition before this Court in the said GR No. 139465. Initially, the Court -- by a vote
violation of international law and a breach of the U.S. (P) treaty obligations. 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
Discussion. Alvarez (D) lost this battle but won the war. In 1993, he was tried in Los reasonable period within which to file a comment and supporting evidence.[8]
Angeles. The trial judge Edward Rafeedie dismissed the case for lack of evidence at
the close of the prosecution case. The judge used some harsh language in his Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its
order, apparently believing the case should never have been brought. 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
[G.R. No. 148571. September 24, 2002] 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 The alternative prayer of Jimenez was also set for hearing on June 15, 2001.
executory. 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
Finding no more legal obstacle, the Government of the United States of America, million pesos in cash.[11] After he had surrendered his passport and posted the
represented by the Philippine DOJ, filed with the RTC on May 18, 2001, the required cash bond, Jimenez was granted provisional liberty via the challenged
appropriate Petition for Extradition which was docketed as Extradition Case No. Order dated July 4, 2001. Hence, this Petition.
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 Issues
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 I. The public respondent acted without or in excess of jurisdiction or with grave
the United States and to commit certain offenses in violation of Title 18 US Code abuse of discretion amounting to lack or excess of jurisdiction in adopting a
Section 371; (2) tax evasion, in violation of Title 26 US Code Section 7201; (3) wire procedure of first hearing a potential extraditee before issuing an arrest warrant
fraud, in violation of Title 18 US Code Sections 1343 and 2; (4) false statements, in under Section 6 of PD No. 1069.
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 II. The public respondent acted without or in excess of jurisdiction or with grave
Title 18 US Code Section 2. In order to prevent the flight of Jimenez, the Petition abuse of discretion amounting to lack or excess of jurisdiction in granting the
prayed for the issuance of an order for his immediate arrest pursuant to Section 6 prayer for bail and in allowing Jimenez to go on provisional liberty because:
of PD No. 1069.
1. An extradition court has no power to authorize bail, in the absence of any law
Before the RTC could act on the Petition, Respondent Jimenez filed before it an that provides for such power.
Urgent Manifestation/Ex-Parte Motion,[10] which prayed that petitioners
application for an arrest warrant be set for hearing.
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
In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set upon, cannot be used as bases for allowing bail in extradition proceedings.
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
3. The presumption is against bail in extradition proceedings or proceedings
an extradition case to be heard prior to the issuance of a warrant of arrest.
leading to extradition.

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.
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 Petitioner submits the following justifications for not filing a Motion for
circumstances. Reconsideration in the Extradition Court: (1) the issues were fully considered by
such court after requiring the parties to submit their respective memoranda and
5. Assuming that bail is a matter of discretion in extradition proceedings, the public position papers on the matter and thus, the filing of a reconsideration motion
respondent received no evidence of special circumstances which may justify would serve no useful purpose; (2) the assailed orders are a patent nullity, absent
release on bail. 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
6. The risk that Jimenez will flee is high, and no special circumstance exists that will avoid extradition; and (4) the issues raised are purely of law.
engender a well-founded belief that he will not flee.
For resorting directly to this Court instead of the CA, petitioner submits the
7. The conditions attached to the grant of bail are ineffectual and do not ensure following reasons: (1) even if the petition is lodged with the Court of Appeals and
compliance by the Philippines with its obligations under the RP-US Extradition such appellate court takes cognizance of the issues and decides them, the parties
Treaty. 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[17] ruled on the issue
8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case
by disallowing bail but the court below refused to recognize the decision as a
entitled Eduardo T. Rodriguez et al. vs. The Hon. Presiding Judge, RTC, Branch 17,
judicial guide and all other courts might likewise adopt the same attitude of
Manila, CA-G.R. SP No. 64589, relied upon by the public respondent in granting
refusal; and (3) there are pending issues on bail both in the extradition courts and
bail, had been recalled before the issuance of the subject bail orders.[14]
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
In sum, the substantive questions that this Court will address are: (1) whether extraditees and would give them opportunity to flee and thus, cause adverse effect
Jimenez is entitled to notice and hearing before a warrant for his arrest can be on the ability of the Philippines to comply with its obligations under existing
issued, and (2) whether he is entitled to bail and to provisional liberty while the extradition treaties.
extradition proceedings are pending. Preliminarily, we shall take up the alleged
prematurity of the Petition for Certiorari arising from petitioners failure to file a
As a general rule, a petition for certiorari before a higher court will not prosper
Motion for Reconsideration in the RTC and to seek relief in the Court of Appeals
unless the inferior court has been given, through a motion for reconsideration, a
(CA), instead of in this Court.[15] We shall also preliminarily discuss five extradition
chance to correct the errors imputed to it. This rule, though, has certain
postulates that will guide us in disposing of the substantive issues.
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
The Courts Ruling 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
The Petition is meritorious. 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 technicalities that tend to frustrate rather than promote substantial justice, must
reconsideration may be dispensed with. 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
Likewise, this Court has allowed a direct invocation of its original jurisdiction to justice so require. In the instant petition, we forego a lengthy disquisition of the
issue writs of certiorari when there are special and important reasons therefor.[21] proper procedure that should have been taken by the parties involved and proceed
In Fortich v. Corona[22]we stated: directly to the merits of the case.

[T]he Supreme Court has the full discretionary power to take cognizance of the In a number of other exceptional cases,[24] we held as follows:
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 This Court has original jurisdiction, concurrent with that of Regional Trial Courts
observed and which has been reiterated in subsequent cases, namely: Uy vs. and the Court of Appeals, over petitions for certiorari, prohibition, mandamus, quo
Contreras, et. al., Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs. warranto and habeas corpus, and we entertain direct resort to us in cases where
Legaspi, et. al. As we have further stated in Cuaresma: special and important reasons or exceptional and compelling circumstances justify
the same.
x x x. A direct invocation of the Supreme Courts original jurisdiction to issue these
writs should be allowed only when there are special and important reasons In the interest of justice and to settle once and for all the important issue of bail in
therefor, clearly and specifically set out in the petition. This is established policy. x extradition proceedings, we deem it best to take cognizance of the present case.
x x. Such proceedings constitute a matter of first impression over which there is, as yet,
no local jurisprudence to guide lower courts.
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 Five Postulates of Extradition
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 The substantive issues raised in this case require an interpretation or construction
problem created by the issuance of the assailed resolution. Moreover, x x x of the treaty and the law on extradition. A cardinal rule in the interpretation of a
requiring the petitioners to file their petition first with the Court of Appeals would treaty or a law is to ascertain and give effect to its intent.[25] Since PD 1069 is
only result in a waste of time and money. intended as a guide for the implementation of extradition treaties to which the
Philippines is a signatory,[26] understanding certain postulates of extradition will
That the Court has the power to set aside its own rules in the higher interests of aid us in properly deciding the issues raised here.
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 1. Extradition Is a Major Instrument for the Suppression of Crime.
the attainment of justice. Their strict and rigid application, which would result in
First, extradition treaties are entered into for the purpose of suppressing crime[27] universalization. One manifest purpose of this trend towards globalization is to
by facilitating the arrest and the custodial transfer[28] of a fugitive[29] from one deny easy refuge to a criminal whose activities threaten the peace and progress of
state to the other. 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
With the advent of easier and faster means of international travel, the flight of crimes.
affluent criminals from one country to another for the purpose of committing
crime and evading prosecution has become more frequent. Accordingly, Indeed, in this era of globalization, easier and faster international travel, and an
governments are adjusting their methods of dealing with criminals and crimes that expanding ring of international crimes and criminals, we cannot afford to be an
transcend international boundaries. isolationist state. We need to cooperate with other states in order to improve our
chances of suppressing crime in our own country.
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 2. The Requesting State Will Accord Due Process to the Accused
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 Second, an extradition treaty presupposes that both parties thereto have
with municipal and international law.[31] examined, and that both accept and trust, each others legal system and judicial
process.[34] More pointedly, our duly authorized representatives signature on an
An important practical effect x x x of the recognition of the principle that criminals extradition treaty signifies our confidence in the capacity and the willingness of the
should be restored to a jurisdiction competent to try and punish them is that the other state to protect the basic rights of the person sought to be extradited.[35]
number of criminals seeking refuge abroad will be reduced. For to the extent that That signature signifies our full faith that the accused will be given, upon
efficient means of detection and the threat of punishment play a significant role in extradition to the requesting state, all relevant and basic rights in the criminal
the deterrence of crime within the territorial limits of a State, so the existence of proceedings that will take place therein; otherwise, the treaty would not have
effective extradition arrangements and the consequent certainty of return to the been signed, or would have been directly attacked for its unconstitutionality.
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 3. The Proceedings Are Sui Generis
arrangements flight abroad by the ingenious criminal receives direct
encouragement and thus indirectly does the commission of crime itself.[32] 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
In Secretary v. Lantion[33] we explained: accused are at fore; in extradition which is sui generis -- in a class by itself -- they
are not.
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 An extradition [proceeding] is sui generis. It is not a criminal proceeding which will
entered [into] by our government. More and more, crimes are becoming the call into operation all the rights of an accused as guaranteed by the Bill of Rights.
concern of one world. Laws involving crimes and crime prevention are undergoing 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 Fourth, our executive branch of government voluntarily entered into the
court of the state where he will be extradited. Hence, as a rule, constitutional Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries
rights that are only relevant to determine the guilt or innocence of an accused the presumption that its implementation will serve the national interest.
cannot be invoked by an extraditee x x x.
Fulfilling our obligations under the Extradition Treaty promotes comity[40]with the
There are other differences between an extradition proceeding and a criminal requesting state. On the other hand, failure to fulfill our obligations thereunder
proceeding. An extradition proceeding is summary in nature while criminal paints a bad image of our country before the world community. Such failure would
proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, discourage other states from entering into treaties with us, particularly an
the rules of evidence in an extradition proceeding allow admission of evidence extradition treaty that hinges on reciprocity.[41]
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 Verily, we are bound by pacta sunt servanda to comply in good faith with our
fugitive may be ordered extradited upon showing of the existence of a prima facie obligations under the Treaty.[42] This principle requires that we deliver the
case. Finally, unlike in a criminal case where judgment becomes executory upon accused to the requesting country if the conditions precedent to extradition, as set
being rendered final, in an extradition proceeding, our courts may adjudge an forth in the Treaty, are satisfied. In other words, [t]he demanding government,
individual extraditable but the President has the final discretion to extradite him. when it has done all that the treaty and the law require it to do, is entitled to the
The United States adheres to a similar practice whereby the Secretary of State delivery of the accused on the issue of the proper warrant, and the other
exercises wide discretion in balancing the equities of the case and the demands of government is under obligation to make the surrender.[43] Accordingly, the
the nations foreign relations before making the ultimate decision to extradite. Philippines must be ready and in a position to deliver the accused, should it be
found proper.
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] 5. There Is an Underlying Risk of Flight
Such determination during the extradition proceedings will only result in needless
duplication and delay. Extradition is merely a measure of international judicial Fifth, persons to be extradited are presumed to be flight risks. This prima facie
assistance through which a person charged with or convicted of a crime is restored presumption finds reinforcement in the experience[44] of the executive branch:
to a jurisdiction with the best claim to try that person. It is not part of the function nothing short of confinement can ensure that the accused will not flee the
of the assisting authorities to enter into questions that are the prerogative of that jurisdiction of the requested state in order to thwart their extradition to the
jurisdiction.[38] The ultimate purpose of extradition proceedings in court is only to requesting state.
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.

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 On the other hand, Respondent Jimenez argues that he should not be hurriedly
before the conclusion of his indictment proceedings there; and (2) remaining in the and arbitrarily deprived of his constitutional right to liberty without due process.
requested state despite learning that the requesting state is seeking his return and He further asserts that there is as yet no specific law or rule setting forth the
that the crimes he is charged with are bailable -- eloquently speak of his aversion procedure prior to the issuance of a warrant of arrest, after the petition for
to the processes in the requesting state, as well as his predisposition to avoid them extradition has been filed in court; ergo, the formulation of that procedure is
at all cost. These circumstances point to an ever-present, underlying high risk of within the discretion of the presiding judge.
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?
Both parties cite Section 6 of PD 1069 in support of their arguments. It states:

First Substantive Issue:

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
Is Respondent Entitled to Notice and Hearing 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
Before the Issuance of a Warrant of Arrest? 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.

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 (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall
avoid extradition. Moreover, petitioner pleads that such procedure may set a be promptly served each upon the accused and the attorney having charge of the
dangerous precedent, in that those sought to be extradited -- including terrorists, case. (Emphasis ours)
mass murderers and war criminals -- may invoke it in future extradition cases.
Does this provision sanction RTC Judge Purganans act of immediately setting for Attached to the Petition for Extradition, with a Certificate of Authentication among
hearing the issuance of a warrant of arrest? We rule in the negative. 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
1. On the Basis of the Extradition Law 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
It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the 132; and (5) Annex MM, the Exhibit L Appendix of Witness [excerpts] Statements
word immediate to qualify the arrest of the accused. This qualification would be Referenced in the Affidavit of Betty Steward and enclosed Statements in two
rendered nugatory by setting for hearing the issuance of the arrest warrant. volumes.[49]
Hearing entails sending notices to the opposing parties,[46] receiving facts and
arguments[47] from them,[48] 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 It is evident that respondent judge could have already gotten an impression from
determination of whether a warrant of arrest should be issued. 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,
By using the phrase if it appears, the law further conveys that accuracy is not as he actually concluded from these supporting documents that probable cause did
important as speed at such early stage. The trial court is not expected to make an exist. In the second questioned Order, he stated:
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. 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 both would have been defeated by the escape of the accused from the requested
and, a priori, for issuing an arrest warrant was already evident from the Petition state.
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]
2. On the Basis of the Constitution

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 Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does
connection with the matter of immediate arrest, however, the word hearing is not require a notice or a hearing before the issuance of a warrant of arrest. It
notably absent from the provision. Evidently, had the holding of a hearing at that provides:
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
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
step in the entire proceedings.
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
It is taken for granted that the contracting parties intend something reasonable may produce, and particularly describing the place to be searched and the persons
and something not inconsistent with generally recognized principles of or things to be seized.
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]
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.
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
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 That the case under consideration is an extradition and not a criminal action is not
was that the judge must have sufficient supporting documents upon which to sufficient to justify the adoption of a set of procedures more protective of the
make his independent judgment, or at the very least, upon which to verify the accused. If a different procedure were called for at all, a more restrictive one -- not
findings of the prosecutor as to the existence of probable cause.[55] the opposite -- would be justified in view of respondents demonstrated
predisposition to flee.

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: Since this is a matter of first impression, we deem it wise to restate the proper
procedure:

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, Upon receipt of a petition for extradition and its supporting documents, the judge
judges do not conduct a de novo hearing to determine the existence of probable must study them and make, as soon as possible, a prima facie finding whether (a)
cause. They just personally review the initial determination of the prosecutor they are sufficient in form and substance, (b) they show compliance with the
finding a probable cause to see if it is supported by substantial evidence. 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
At most, in cases of clear insufficiency of evidence on record, judges merely further dismissed at the discretion of the judge.
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 On the other hand, if the presence of a prima facie case is determined, then the
evidence during the prima facie determination for the issuance of a warrant of magistrate must immediately issue a warrant for the arrest of the extraditee, who
arrest, what would stop him from presenting his entire plethora of defenses at this is at the same time summoned to answer the petition and to appear at scheduled
stage -- if he so desires -- in his effort to negate a prima facie finding? Such a summary hearings. Prior to the issuance of the warrant, the judge must not inform
procedure could convert the determination of a prima facie case into a full-blown or notify the potential extraditee of the pendency of the petition, lest the latter be
trial of the entire proceedings and possibly make trial of the main case given the opportunity to escape and frustrate the proceedings. In our opinion, the
superfluous. This scenario is also anathema to the summary nature of extraditions. foregoing procedure will best serve the ends of justice in extradition cases.
 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
Second Substantive Issue: extradition request and arrest warrant.

Is Respondent Entitled to Bail? Extradition Different from Ordinary Criminal Proceedings

Article III, Section 13 of the Constitution, is worded as follows: 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.
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. 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
Respondent Mark B. Jimenez maintains that this constitutional provision secures
issue.
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, The provision in the Constitution stating that the right to bail shall not be impaired
shall also apply according to Section 9 of PD 1069. 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 enough.[65] In the present case, respondent will be given full opportunity to be
sentence in the constitutional provision on bail merely emphasizes the right to bail heard subsequently, when the extradition court hears the Petition for Extradition.
in criminal proceedings for the aforementioned offenses. It cannot be taken to Hence, there is no violation of his right to due process and fundamental fairness.
mean that the right is available even in extradition proceedings that are not
criminal in nature.

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
That the offenses for which Jimenez is sought to be extradited are bailable in the detention will not be arbitrary is sufficiently ensured by (1) the DOJs filing in court
United States is not an argument to grant him one in the present case. To stress, the Petition with its supporting documents after a determination that the
extradition proceedings are separate and distinct from the trial for the offenses for extradition request meets the requirements of the law and the relevant treaty; (2)
which he is charged. He should apply for bail before the courts trying the criminal the extradition judges independent prima facie determination that his arrest will
cases against him, not before the extradition court. best serve the ends of justice before the issuance of a warrant for his arrest; and
(3) his opportunity, once he is under the courts custody, to apply for bail as an
exception to the no-initial-bail rule.

No Violation of Due Process

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
Respondent Jimenez cites the foreign case Paretti[62] in arguing that, he left the jurisdiction of the requesting state before those proceedings could be
constitutionally, [n]o one shall be deprived of x x x liberty x x x without due process completed, it was hindered from continuing with the due processes prescribed
of law. 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.

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 In this light, would it be proper and just for the government to increase the risk of
heard[63] but, at the same time, point out that the doctrine does not always call violating its treaty obligations in order to accord Respondent Jimenez his personal
for a prior opportunity to be heard.[64] Where the circumstances -- such as those liberty in the span of time that it takes to resolve the Petition for Extradition? His
present in an extradition case -- call for it, a subsequent opportunity to be heard is supposed immediate deprivation of liberty without the due process that he had
previously shunned pales against the governments interest in fulfilling its
Extradition Treaty obligations and in cooperating with the world community in the The rule, we repeat, is that bail is not a matter of right in extradition cases.
suppression of crime. Indeed, [c]onstitutional liberties do not exist in a vacuum; However, the judiciary has the constitutional duty to curb grave abuse of
the due process rights accorded to individuals must be carefully balanced against discretion[68] and tyranny, as well as the power to promulgate rules to protect
exigent and palpable government interests.[66] 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
Too, we cannot allow our country to be a haven for fugitives, cowards and application.[70]
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 Accordingly and to best serve the ends of justice, we believe and so hold that, after
custody. In the absence of any provision -- in the Constitution, the law or the treaty a potential extraditee has been arrested or placed under the custody of the law,
-- expressly guaranteeing the right to bail in extradition proceedings, adopting the bail may be applied for and granted as an exception, only upon a clear and
practice of not granting them bail, as a general rule, would be a step towards convincing showing (1) that, once granted bail, the applicant will not be a flight risk
deterring fugitives from coming to the Philippines to hide from or evade their or a danger to the community; and (2) that there exist special, humanitarian and
prosecutors. 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.

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 Since this exception has no express or specific statutory basis, and since it is
detention here. Likewise, their detention pending the resolution of extradition derived essentially from general principles of justice and fairness, the applicant
proceedings would fall into place with the emphasis of the Extradition Law on the bears the burden of proving the above two-tiered requirement with clarity,
summary nature of extradition cases and the need for their speedy disposition. 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
Exceptions to the No Bail Rule 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 In the ultimate analysis, the issue before us boils down to a question of
prerogatives and the need to fulfill international obligations. constitutional equal protection.

Along this line, Jimenez contends that there are special circumstances that are The Constitution guarantees: x x x nor shall any person be denied the equal
compelling enough for the Court to grant his request for provisional release on protection of laws. This simply means that all persons similarly situated shall be
bail. We have carefully examined these circumstances and shall now discuss them. 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.

1. Alleged Disenfranchisement

Does being an elective official result in a substantial distinction that allows

different treatment? Is being a Congressman a substantial differentiation which
While his extradition was pending, Respondent Jimenez was elected as a member removes the accused-appellant as a prisoner from the same class as all persons
of the House of Representatives. On that basis, he claims that his detention will validly confined under law?
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:
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
When the voters of his district elected the accused-appellant to Congress, they did duty to legislate ranks highest in the hierarchy of government. The accused-
so with full awareness of the limitations on his freedom of action. They did so with appellant is only one of 250 members of the House of Representatives, not to
the knowledge that he could achieve only such legislative results which he could mention the 24 members of the Senate, charged with the duties of legislation.
accomplish within the confines of prison. To give a more drastic illustration, if Congress continues to function well in the physical absence of one or a few of its
voters elect a person with full knowledge that he is suffering from a terminal members. Depending on the exigency of Government that has to be addressed,
illness, they do so knowing that at any time, he may no longer serve his full term in the President or the Supreme Court can also be deemed the highest for that
office. 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 his claim that his election to public office is by itself a compelling reason to grant
duty lifted a prisoner into a different classification from those others who are him bail.
validly restrained by law.

2. Anticipated Delay
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.

Respondent Jimenez further contends that because the extradition proceedings

are lengthy, it would be unfair to confine him during the pendency of the case.
The Court cannot validate badges of inequality. The necessities imposed by public Again we are not convinced. We must emphasize that extradition cases are
welfare may justify exercise of government authority to regulate even if thereby summary in nature. They are resorted to merely to determine whether the
certain groups may plausibly assert that their interests are disregarded. 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, 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 We are not overruling the possibility that petitioner may, in bad faith, unduly delay
interrupted in their freedom and restricted in liberty of movement. Lawful arrest the proceedings. This is quite another matter that is not at issue here. Thus, any
and confinement are germane to the purposes of the law and apply to all those further discussion of this point would be merely anticipatory and academic.
belonging to the same class.[73]

However, if the delay is due to maneuverings of respondent, with all the more
It must be noted that even before private respondent ran for and won a reason would the grant of bail not be justified. Giving premium to delay by
congressional seat in Manila, it was already of public knowledge that the United considering it as a special circumstance for the grant of bail would be tantamount
States was requesting his extradition. Hence, his constituents were or should have to giving him the power to grant bail to himself. It would also encourage him to
been prepared for the consequences of the extradition case against their stretch out and unreasonably delay the extradition proceedings even more. This
representative, including his detention pending the final resolution of the case. we cannot allow.
Premises considered and in line with Jalosjos, we are constrained to rule against
 Jimenez -- have been given more than sufficient opportunity both by the trial court
and this Court to discuss fully and exhaustively private respondents claim to bail.
3. Not a Flight Risk? As already stated, the RTC set for hearing not only petitioners application for an
arrest warrant, but also private respondents 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.
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 This Court has meticulously pored over the Petition, the Comment, the Reply, the
requesting government inching closer and closer. That he has not yet fled from the lengthy Memoranda and the Position Papers of both parties. Additionally, it has
Philippines cannot be taken to mean that he will stand his ground and still be patiently heard them in Oral Arguments, a procedure not normally observed in the
within reach of our government if and when it matters; that is, upon the resolution great majority of cases in this Tribunal. Moreover, after the Memos had been
of the Petition for Extradition. 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.
Jimenezs plea for bail.
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 A remand would mean that this long, tedious process would be repeated in its
granted in accordance with the guidelines in this Decision. 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.
Brief Refutation of Dissents
Remanding the case will not solve this utter lack of persuasion and strength in his
legal reasoning.

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
In short, this Court -- as shown by this Decision and the spirited Concurring, fugitive who has illegally escaped -- back to its territory, so that the criminal
Separate and Dissenting Opinions written by the learned justices themselves -- has process may proceed therein.
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 2. By entering into an extradition treaty, the Philippines is deemed to have reposed
unnecessary and convoluted delay. What is needed is a firm decision on the merits, its trust in the reliability or soundness of the legal and judicial system of its treaty
not a circuitous cop-out. 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.

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 3. By nature then, extradition proceedings are not equivalent to a criminal case in
baseless, but also unfair. Suffice it to say that, in its length and breath, this Decision which guilt or innocence is determined. Consequently, an extradition case is not
has taken special cognizance of the rights to due process and fundamental fairness one in which the constitutional rights of the accused are necessarily available. It is
of potential extraditees. more akin, if at all, to a courts 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.
Summation

4. Immediately upon receipt of the petition for extradition and its supporting
As we draw to a close, it is now time to summarize and stress these ten points: 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
1. The ultimate purpose of extradition proceedings is to determine whether the personally examine the affiants or witnesses. If convinced that a prima facie case
request expressed in the petition, supported by its annexes and the evidence that exists, the judge immediately issues a warrant for the arrest of the potential
may be adduced during the hearing of the petition, complies with the Extradition extraditee and summons him or her to answer and to appear at scheduled
Treaty and Law; and whether the person sought is extraditable. The proceedings hearings on the petition.
are intended merely to assist the requesting state in bringing the accused -- or the
5. After being taken into custody, potential extraditees may apply for bail. Since 9. On the other hand, courts merely perform oversight functions and exercise
the applicants have a history of absconding, they have the burden of showing that review authority to prevent or excise grave abuse and tyranny. They should not
(a) there is no flight risk and no danger to the community; and (b) there exist allow contortions, delays and over-due process every little step of the way, lest
special, humanitarian or compelling circumstances. The grounds used by the these summary extradition proceedings become not only inutile but also sources
highest court in the requesting state for the grant of bail therein may be of international embarrassment due to our inability to comply in good faith with a
considered, under the principle of reciprocity as a special circumstance. In treaty partners simple request to return a fugitive. Worse, our country should not
extradition cases, bail is not a matter of right; it is subject to judicial discretion in be converted into a dubious haven where fugitives and escapees can unreasonably
the context of the peculiar facts of each case. delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral
justice and international cooperation.

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 10. At bottom, extradition proceedings should be conducted with all deliberate
be heard. A subsequent opportunity is sufficient due to the flight risk involved. speed to determine compliance with the Extradition Treaty and Law; and, while
Indeed, available during the hearings on the petition and the answer is the full safeguarding basic individual rights, to avoid the legalistic contortions, delays and
chance to be heard and to enjoy fundamental fairness that is compatible with the technicalities that may negate that purpose.
summary nature of extradition.

WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001
7. This Court will always remain a protector of human rights, a bastion of liberty, a is hereby declared NULL and VOID, while the challenged Order dated July 3, 2001 is
bulwark of democracy and the conscience of society. But it is also well aware of SET ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail bond
the limitations of its authority and of the need for respect for the prerogatives of posted by private respondent is CANCELLED. The Regional Trial Court of Manila is
the other co-equal and co-independent organs of government. 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.

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 SO ORDERED.
discretion in its duty and power of implementation.
G.R. No. 153675 April 19, 2007
 The facts are:

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by

the Philippine Department of Justice, Petitioner,
On January 30, 1995, the Republic of the Philippines and the then British Crown
vs. Colony of Hong Kong signed an "Agreement for the Surrender of Accused and
Convicted Persons." It took effect on June 20, 1997.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUÑOZ, Respondents.

On July 1, 1997, Hong Kong reverted back to the People’s Republic of China and
DECISION became the Hong Kong Special Administrative Region.

SANDOVAL-GUTIERREZ, J.: 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
For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997
arrest were issued against him. If convicted, he faces a jail term of seven (7) to
Rules of Civil Procedure, as amended, seeking to nullify the two Orders of the
fourteen (14) years for each charge.
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 On September 13, 1999, the DOJ received from the Hong Kong Department of
Administrative Region, represented by the Philippine Department of Justice (DOJ), Justice a request for the provisional arrest of private respondent. The DOJ then
petitioner. The petition alleges that both Orders were issued by respondent judge forwarded the request to the National Bureau of Investigation (NBI) which, in turn,
with grave abuse of discretion amounting to lack or excess of jurisdiction as there filed with the RTC of Manila, Branch 19 an application for the provisional arrest of
is no provision in the Constitution granting bail to a potential extraditee. private respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10,
against private respondent. That same day, the NBI agents arrested and detained presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in
him. the same case,- a petition for bail which was opposed by petitioner.

On October 14, 1999, private respondent filed with the Court of Appeals a petition After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying
for certiorari, prohibition and mandamus with application for preliminary the petition for bail, holding that there is no Philippine law granting bail in
mandatory injunction and/or writ of habeas corpus questioning the validity of the extradition cases and that private respondent is a high "flight risk."
Order of Arrest.

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing
On November 9, 1999, the Court of Appeals rendered its Decision declaring the Civil Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent
Order of Arrest void. judge.

On November 12, 1999, the DOJ filed with this Court a petition for review on On October 30, 2001, private respondent filed a motion for reconsideration of the
certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court of Order denying his application for bail. This was granted by respondent judge in an
Appeals be reversed. Order dated December 20, 2001 allowing private respondent to post bail, thus:

On December 18, 2000, this Court rendered a Decision granting the petition of the In conclusion, this Court will not contribute to accused’s further erosion of civil
DOJ and sustaining the validity of the Order of Arrest against private respondent. liberties. The petition for bail is granted subject to the following conditions:
The Decision became final and executory on April 10, 2001.

1. Bail is set at Php750,000.00 in cash with the condition that accused hereby
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special undertakes that he will appear and answer the issues raised in these proceedings
Administrative Region filed with the RTC of Manila a petition for the extradition of 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;
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
2. Accused must surrender his valid passport to this Court; providing that a potential extraditee has a right to bail, the right being limited
solely to criminal proceedings.

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 In his comment on the petition, private respondent maintained that the right to
proceeding; and 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.

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 Section 13, Article III of the Constitution provides that the right to bail shall not be
accused, real and personal, be filed with this Court soonest, with the condition that impaired, thus:
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.
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
SO ORDERED. 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.

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.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, The provision in the Constitution stating that the "right to bail shall not be
this is not the first time that this Court has an occasion to resolve the question of impaired even when the privilege of the writ of habeas corpus is suspended" does
whether a prospective extraditee may be granted bail. 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.
In Government of United States of America v. Hon. Guillermo G. Purganan, VIII, Constitution). Hence, the second sentence in the constitutional provision on
Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario bail merely emphasizes the right to bail in criminal proceedings for the
Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio V. aforementioned offenses. It cannot be taken to mean that the right is available
Panganiban, later Chief Justice, held that the constitutional provision on bail does even in extradition proceedings that are not criminal in nature.
not apply to extradition proceedings. It is "available only in criminal proceedings,"
thus:

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
x x x. As suggested by the use of the word "conviction," the constitutional provision growing importance of the individual person in public international law who, in the
on bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies 20th century, has gradually attained global recognition; (2) the higher value now
only when a person has been arrested and detained for violation of Philippine being given to human rights in the international sphere; (3) the corresponding duty
criminal laws. It does not apply to extradition proceedings because extradition of countries to observe these universal human rights in fulfilling their treaty
courts do not render judgments of conviction or acquittal. 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.

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 The modern trend in public international law is the primacy placed on the worth of
freedom as thereafter he would be entitled to acquittal, unless his guilt be proved the individual person and the sanctity of human rights. Slowly, the recognition that
beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, the individual person may properly be a subject of international law is now taking
1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail root. The vulnerable doctrine that the subjects of international law are limited only
will not apply to a case like extradition, where the presumption of innocence is not to states was dramatically eroded towards the second half of the past century. For
at issue. 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. include the right to be admitted to bail. While this Court in Purganan limited the
These significant events show that the individual person is now a valid subject of exercise of the right to bail to criminal proceedings, however, in light of the various
international law. 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.

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 First, we note that the exercise of the State’s power to deprive an individual of his
of Human Rights in which the right to life, liberty and all the other fundamental liberty is not necessarily limited to criminal proceedings. Respondents in
rights of every person were proclaimed. While not a treaty, the principles administrative proceedings, such as deportation and quarantine,4 have likewise
contained in the said Declaration are now recognized as customarily binding upon been detained.
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,3 the 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 Second, to limit bail to criminal proceedings would be to close our eyes to our
on Civil and Political Rights which the Philippines signed and ratified. Fundamental jurisprudential history. Philippine jurisprudence has not limited the exercise of the
among the rights enshrined therein are the rights of every person to life, liberty, right to bail to criminal proceedings only. This Court has admitted to bail persons
and due process. 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 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 The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing
and guarantees full respect for human rights." The Philippines, therefore, has the deportation for failure to secure the necessary certificate of registration was
responsibility of protecting and promoting the right of every person to liberty and granted bail pending his appeal. After noting that the prospective deportee had
due process, ensuring that those detained or arrested can participate in the committed no crime, the Court opined that "To refuse him bail is to treat him as a
proceedings before a court, to enable it to decide without delay on the legality of person who has committed the most serious crime known to law;" and that while
the detention and order their release if justified. In other words, the Philippine deportation is not a criminal proceeding, some of the machinery used "is the
authorities are under obligation to make available to every person under detention machinery of criminal law." Thus, the provisions relating to bail was applied to
such remedies which safeguard their fundamental right to liberty. These remedies deportation proceedings.
In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Extradition has thus been characterized as the right of a foreign power, created by
Court ruled that foreign nationals against whom no formal criminal charges have treaty, to demand the surrender of one accused or convicted of a crime within its
been filed may be released on bail pending the finality of an order of deportation. territorial jurisdiction, and the correlative duty of the other state to surrender him
As previously stated, the Court in Mejoff relied upon the Universal declaration of to the demanding state.8 It is not a criminal proceeding.9 Even if the potential
Human Rights in sustaining the detainee’s right to bail. 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
If bail can be granted in deportation cases, we see no justification why it should the potential extraditee.12 Nor is it a full-blown civil action, but one that is merely
not also be allowed in extradition cases. Likewise, considering that the Universal administrative in character.13 Its object is to prevent the escape of a person
Declaration of Human Rights applies to deportation cases, there is no reason why it accused or convicted of a crime and to secure his return to the state from which he
cannot be invoked in extradition cases. After all, both are administrative fled, for the purpose of trial or punishment.14
proceedings where the innocence or guilt of the person detained is not in issue.

But while extradition is not a criminal proceeding, it is characterized by the

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction following: (a) it entails a deprivation of liberty on the part of the potential
must be viewed in the light of the various treaty obligations of the Philippines extraditee and (b) the means employed to attain the purpose of extradition is also
concerning respect for the promotion and protection of human rights. Under these "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The
treaties, the presumption lies in favor of human liberty. Thus, the Philippines Philippine Extradition Law) which mandates the "immediate arrest and temporary
should see to it that the right to liberty of every individual is not impaired. 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
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) subsequently."
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." 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 The time-honored principle of pacta sunt servanda demands that the Philippines
reasonable. 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
Records show that private respondent was arrested on September 23, 1999, and Philippines should diminish a potential extraditee’s rights to life, liberty, and due
remained incarcerated until December 20, 2001, when the trial court ordered his process. More so, where these rights are guaranteed, not only by our Constitution,
admission to bail. In other words, he had been detained for over two (2) years but also by international conventions, to which the Philippines is a party. We
without having been convicted of any crime. By any standard, such an extended should not, therefore, deprive an extraditee of his right to apply for bail, provided
period of detention is a serious deprivation of his fundamental right to liberty. In that a certain standard for the grant is satisfactorily met.
fact, it was this prolonged deprivation of liberty which prompted the extradition
court to grant him bail.

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
While our extradition law does not provide for the grant of bail to an extraditee, criminal cases nor the standard of proof of preponderance of evidence in civil
however, there is no provision prohibiting him or her from filing a motion for bail, cases. While administrative in character, the standard of substantial evidence used
a right to due process under the Constitution. 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,
The applicable standard of due process, however, should not be the same as that
this standard should be lower than proof beyond reasonable doubt but higher than
in criminal proceedings. In the latter, the standard of due process is premised on
preponderance of evidence. The potential extraditee must prove by "clear and
the presumption of innocence of the accused. As Purganan correctly points out, it
convincing evidence" that he is not a flight risk and will abide with all the orders
is from this major premise that the ancillary presumption in favor of admitting to
and processes of the extradition court.
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 In this case, there is no showing that private respondent presented evidence to
risk and should be granted bail. 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 169 SCRA 328; Doruelo v. Ministry of National Defense, 169 SCRA 448). Courts of
basis of "clear and convincing evidence." justice will not interfere with purely administrative matters rendered by
administrative bodies within the scope of their power and authority (Gegare v. CA,
177 SCRA 471).

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to 2. ID.; PUBLIC OFFICERS; TERMINATION OF OFFICIAL RELATIONS; DISHONESTY AS A
determine whether private respondent is entitled to bail on the basis of "clear and CAUSE FOR DISCIPLINARY ACTION; NOT ESTABLISHED IN CASE AT BAR. — Since
convincing evidence." If not, the trial court should order the cancellation of his bail petitioner was moved by the best of motives in using the discounted tickets which
bond and his immediate detention; and thereafter, conduct the extradition she had purchased before she received the order to attend the UNCTAD
proceedings with dispatch. conference in Havana, her action should be commended instead of condemned
(Hernandez v. Chairman, Commission on Audit, 179 SCRA 39). Petitioner’s
problems probably would not have arisen if before embarking on the Havana trip
she had asked DFA for permission to use the two (2) discounted round-trip tickets
for the Geneva-New York-Geneva portion of her trip. Her inadvertence was
SO ORDERED. construed by the Government as lack of candor and honesty on her part. The Court
believes however that she did not intend to falsify or conceal the truth when she
[G.R. No. 94070. April 10, 1992.] filed a claim for the refund of the total cost of her discounted tickets (SFr. 1,597).
Her claim for the whole discounted fare was based on the fact that her daughter’s
ROSALINDA DE PERIO SANTOS, Petitioner, v. EXECUTIVE SECRETARY CATALINO ticket was inseparable from her own fare. They had to go together to be entitled to
MACARAIG and SECRETARY RAUL MANGLAPUS, Respondents. the special discount. Their fare was indivisible, hence, the Government’s offer to
shoulder only the petitioner’s portion of the discounted fare (SFr. 950), excluding
Abad, Bautista & Associates for Petitioner. her daughter’s portion (SFr. 647) was neither fair nor reasonable. In view of the
DFA’s objection to the refund of the entire discounted fare to her, the petitioner
Solicitor General Francisco I. Chavez, Assistant Solicitor General Ramon S. returned the whole amount of SFr. 1,597 which she had earlier received from the
Desuasido and Solicitor Diosdado Saavedra for Respondents. DFA, and asked, in return, for the cost of the regular economy fare (SFr. 2,966)
which she was legally entitled to purchase for her trip. Thereupon, the Secretary
reprimanded her for misconduct and recalled her to the home office. On appeal to
SYLLABUS the Office of the President, the latter ironically found her guilty of the more serious
offense of dishonesty, reprimanded her therefor, and recalled her to Manila. We
hold that under the circumstances above narrated, the petitioner’s actuation
1. ADMINISTRATIVE LAW; JUDICIAL REVIEW; FACTUAL FINDINGS OF constituted neither dishonesty nor misconduct, hence, the reprimand that was
ADMINISTRATIVE BODIES; RULE. — The general rule is that the factual findings of meted to her was unmerited.
administrative agencies are binding on this Court and controlling on the reviewing
authorities if supported by substantial evidence (Planters Products, Inc. v. NLRC, 3. ID.; ID.; TOUR OF DUTY OF FOREIGN SERVICE OFFICER; FOUR YEARS PROVIDED
IN P.D. 1578; REPEALED BY E.O NO. 168. — The Court is not disposed to disturb the tenure of officials holding primarily confidential positions ends upon loss of
order of the DFA and the Office of the President recalling the petitioner to the confidence, because their term of office lasts only as long as confidence in them
home office. There is no merit in the petitioner’s contention that her tour of duty endures (Corpus v. Cuaderno, 13 SCRA 591). When that confidence is lost and
in Geneva was for four (4) years, as provided in Section 260 of P.D. No. 1578 officer holding the position is separated from the service, such cessation is not
("Instituting the Administrative Code of 1978"). As pointed out by the Solicitor removal from office but merely an expiration of his/her term (Cadiente v. Santos,
General, P.D. 1578 was one of those unpublished "secret" decrees which this Court 142 SCRA 280). An incumbent of a primarily confidential position holds office at the
in Tañeda, Et. Al. v. Tuvera, Et Al., 146 SCRA 446, declared to be inoperative or pleasure of the appointing power. When the pleasure turns into displeasure, the
without legal force and effect. P.D. 1578 was expressly repealed on May 5, 1987, incumbent is not removed or dismissed from office — his term merely expires
by Executive Order No. 168, entitled "REPEALING PRESIDENTIAL DECREE NO. 1578 (Ingles v. Mutuc, 26 SCRA 171). It is the fact of loss of confidence, not the reason
ENTITLED ‘INSTITUTING THE ADMINISTRATIVE CODE OF 1978.’"  for it, that is important and controlling. As holder of a primarily confidential
position, petitioner’s foreign assignment was at the pleasure of the President. The
4. ID.; ID.; ID.; PERIOD THEREOF GOVERNED BY ‘THE FOREIGN SERVICE ACT’ (R.A. recall order terminating her tour of duty in Geneva and returning to her home
708); APPLICATION IN CASE AT BAR. — The applicable law is Section 6, Part B, Title office was merely a change of post or transfer of location of work.
III, of R.A. 708 "The Foreign Service Act of the Philippines," enacted on June 5,
1952, providing that: "Section 6. Assignments and Transfers — A Foreign Service 6. ID.; ID.; ID.; ID.; CONSTRUED. — "Primarily confidential" denotes "not only
Officer may be assigned by the Secretary to serve in the Department or in a confidence in the aptitude of the appointee for the duties of the office but
diplomatic or consular post abroad: Provided, however, that the minimum period primarily close intimacy which insures freedom of intercourse without
during which he may serve in any foreign post shall be one year and the maximum embarrassment or freedom from misgivings of betrayals of personal trust or
period four years, except in case of emergency or extraordinary circumstances, in confidential matters of state" (Pinero v. Hechanova, 18 SCRA 417; citing De los
which event he may be transferred from one foreign post to another or to the Santos v. Mallare, 87 Phil. 289).
Department by the order of the Secretary without regard to his length of service in
his former post." Since the petitioner had been appointed to her post on July 24, 7. POLITICAL LAW; EXECUTIVE DEPARTMENT; PRESIDENT; APPOINTING POWER
1986, she had already served the minimum one-year period of service when her THEREOF, ESSENTIALLY DISCRETIONARY. — Petitioner may not justifiably assail the
recall on April 22, 1988 came. Her reassignment to Manila did not have to be appointment of Narcisa Escaler as her replacement in Geneva because the power
explained and justified by the Secretary of Foreign Affairs nor the President of the to appoint is essentially discretionary. The appointing power, the President, has
Philippines. the right of choice which she may exercise freely, according to her best lights
(Pamantasan ng Lungsod ng Maynila v. Court of Appeals, 140 SCRA 22). This Court
5. ID.; ID.; CLASSIFICATION OF POSITIONS; PRIMARILY CONFIDENTIAL INCUMBENT may not order the reinstatement of the petitioner to her former position in
HOLDS OFFICE AT THE PLEASURE OF THE APPOINTING POWER. — The petitioner’s Geneva for that would be tantamount to a usurpation by this Court of the power
designation as the permanent representative of the Philippine Government to the of appointment, which is the exclusive prerogative of the Chief Executive (Article
United Nations and other International Organizations in Geneva (Annex B, p. 34, VII, Section 16, 1987 Constitution). It would violate the system of separation of
Rollo), was one based on the special trust and confidence which the appointing powers which inheres in our democratic republican form of government.
power, the President, had in the appointee. Once that trust and confidence ceased
to exist, the incumbent’s continuance in the position became untenable. The 8. ID.; ID.; DEPARTMENT SECRETARIES; ACTS THEREOF PERFORMED AND
PROMULGATED IN THE REGULAR COURSE OF BUSINESS; PRESUMPTIVELY ACTS OF On April 6, 1987, petitioner sought a leave of absence from the Department of
THE PRESIDENT; EXCEPTION; CASE AT BAR. — The recall order issued by the Foreign Affairs (DFA) to spend the Easter Holidays in New York, U.S.A., with her
Secretary of Foreign Affairs (Assignment Order No. 58/88) was a valid exercise of mother, brothers and sisters at no expense to the Government (p. 84, Rollo). She
his authority as an alter ego of the President (Villena v. Secretary of Interior, 67 bought two (2) non-transferable, non-refundable discounted tickets costing SFr.
Phil. 451). His acts, "performed and promulgated in the regular course of business, 1,597 for herself and her adopted daughter Pia.chanrobles virtualawlibrary
are, unless disapproved or reprobated by the Chief Executive presumptively the chanrobles.com:chanrobles.com.ph
acts of the latter (Cruz, Political Law, p. 188, 1987 Edition). His order recalling the
petitioner to the home office, having been affirmed by the President, any doubts Before they could leave Geneva, petitioner received instructions from the home
as to its validity and propriety have thereby been laid to rest. office directing her to proceed to Havana as a member of the Philippine delegation
to the UNCTAD G-77 Preparatory Conference from April 20-26, 1987 (Ibid.). For the
official trip outside her station, she was entitled, under the "Foreign Service
DECISION Personnel Manual on Travel, Per Diems, and Daily Allowance Abroad," to SFr. 2,996
for the cost of economy roundtrip fare from Geneva-New York-Geneva portion of
her Geneva-New York-Havana-New York-Geneva trip. (Annexes C and D, pp. 35-37,
GRIÑO-AQUINO, J.: Rollo.) Instead of buying an economy roundtrip ticket, she used for the Geneva-
New York-Geneva portion of her trip the two (2) discounted tickets costing only
SFr. 1,597 for herself and her daughter Pia. They left Geneva for New York en route
This is a petition for certiorari ** seeking to set aside Administrative Order No. 122 to Havana on April 15, 1987. On the same day, the DFA approved her application
of the Office of the President, finding the petitioner guilty of dishonesty and for a leave of absence with pay from April 27 to May 1, 1987 (Ibid.).
meting upon her, after appreciating certain mitigating circumstances in her favor,
the penalty of reprimand with a warning that a repetition of the same or similar After the Havana Conference, she and her daughter spent her vacation leave in
offense will be dealt with more severely. The President affirmed Assignment Order New York before returning to Geneva (Ibid.).
No. 58/88 dated April 27, 1988 of the Secretary of Foreign Affairs recalling the
petitioner to the home office from her post as permanent representative to the Instead of claiming reimbursement for SFr. 2,996, she requested, and received,
Philippine Mission to the United Nations and other International Organizations reimbursement of only SFr. 1,597 which she spent for the Geneva to New York,
(MISUNPHIL, for short) in Geneva, Switzerland (pp. 84-99, Rollo). and New York to Geneva portion of her trip, thereby effecting savings of SFr. 1,399
for the Government (p. 35, Rollo).
Petitioner Rosalinda de Perio-Santos, a career service officer with the rank of Chief
of Mission II and Ambassador Extraordinary and Plenipotentiary, was appointed on On September 16, 1987, the DFA sent her a cable (GE-202/87) requesting
July 24, 1986, by her Excellency, President Corazon C. Aquino, to the position of clarification on "why Mission paid for plane ticket of infant Pia de Perio-Santos
Permanent Representative of the Philippines to the Philippine Mission to the (petitioner’s daughter) Geneva-New York-Geneva per CV 216/87 when she was not
United Nations and other International Organizations with station in Geneva, authorized to accompany her adopting mother at government expense." (Ibid.).
Switzerland (Annexes A and B, pp. 33-34, Rollo).
Petitioner replied that the air fare tickets were for her only and did not include her
daughter whose trip was paid from her personal funds (p. 86, Rollo).
On March 17, 1988, the Board of Foreign Service Administration (BFSA) constituted
On September 21, 1987, the DFA required her to refund the amount representing a new 5-man investigating committee to evaluate the evidence presented by the
her daughter’s round-trip ticket since DFA received a copy of the "facture" from parties.
the travel agency showing that the amount of SFr. 1,597 was in payment of (a) 1
billet adulte-Geneva/New York/Geneva SFr. 950, and (b) 1 billet enfant- Three (3) members of the committee, (Atty. Pineda and Ambassadors Pastores and
Geneva/New York/Geneva SFr. 673; and that the sum of SFr. 673 represented the Garrido) found her liable for misconduct only, and recommended dismissal of the
cost of her daughter’s portion of the ticket (p. 86, Ibid.). other charges. They also recommended that she be reprimanded and recalled to
Manila. Ambassador Arague dissented with respect to the penalty, which he
Instead of refunding only the sum of Sfr. 673 to the Government, petitioner thought should include a six-month suspension. Atty. De Vera found all the charges
returned the full amount of SFr. 1,597 (Annex E, pp. 38 and 86, Rollo). She against Ambassador de Perio-Santos "to be unmeritorious." (pp. 87-88, Rollo.).
thereafter claimed payment for one round-trip economy plane ticket (Geneva-New
York-Geneva) in the amount of SFr. 2,996 to which she was entitled under the The BFSA met en banc on April 22, 1988 to consider the memorandum-report of
Foreign Service Personnel Manual on Travel, Per Diems and Daily Allowance the new Investigating Committee. On April 26, 1988, the BFSA, through its
Abroad.cralawnad Chairman, Undersecretary Jose D. Ingles, submitted a memorandum to the
Secretary of Foreign Affairs (SFA), adopting the findings and recommendations of
On October 5, 1987, Deputy Armando Maglaque, and some MISUNPHIL employees the investigating committee.
filed administrative charges against her for "incompetence; inefficient; corrupt and
dishonest activities; rude and uncouth manners; abusive and high-handed In a letter-decision dated April 27, 1988 (p. 50, Rollo), the Secretary of Foreign
behavior; irregular and highly illegal transactions involving funds of the mission." Affairs affirmed the BFSA’s recommendation declaring Ambassador de Perio-
The charges were referred to Ambassador Luis Ascalon for initial investigation Santos guilty of the lesser offense of misconduct, instead of dishonesty, meted to
(Comment, p. 182, Rollo). Petitioner explained the circumstances of the purchase her the penalty of reprimand, and recalled her to the home office.
of the discounted tickets. On November 26, 1987, Ambassador Ascalon submitted
his findings which, with the complaints, were referred to a 5-man Ad Hoc Petitioner filed a motion for reconsideration on the ground that she was denied
Investigation Committee for preliminary investigation (p. 86, Rollo). The Committee due process when she was declared guilty of misconduct although it was not one
found a prima facie case against petitioner for (1) dishonesty; (2) violation of of the charges against her. Conceding that point, the Secretary ordered the records
existing rules and regulations; (3) incompetence and inefficiency; and (4) conduct remanded to the BFSA for hearing to give petitioner an opportunity to defend
prejudicial to the best interest of the service. herself against the charge of misconduct which was deemed to have been filed by
the Secretary himself since an administrative complaint can be initiated directly by
Ambassador Eduardo Rosal also charged her with estafa before the Tanodbayan. the Department Head (Sec. 37[b], P.D. 807) (p. 91, Rollo).
The case was dismissed for insufficiency of evidence (p. 87, Rollo).
Insisting that no formal charge of misconduct had been filed against her, and that
On November 23, 1987, DFA recalled her to Manila for consultation. She came hence, there was nothing to investigate (p. 91, Rollo), petitioner refused to attend
home on November 29, 1987 (p. 86, Rollo). the hearing. Consequently, in his resolution of August 18, 1988, Secretary
Manglapus declared his decision of April 27, 1988, "final and executory, effective
immediately." (Annex Q, p. 72, Rollo.). In a Resolution dated January 9, 1990 (Annex AA, pp. 166-167, Rollo), respondent
Executive Secretary Catalino Macaraig, Jr., by authority of the President, denied
Petitioner appealed that resolution to the Office of the President, where it was the motion for reconsideration.
docketed as O.P. Case No. 3903 (p. 91, Rollo).
In due time she filed this petition for certiorari alleging that the President’s
On January 24, 1989, President Aquino nominated Narcisa L. Escaler as "reprimand and recall orders are not supported by substantial evidence and were
Ambassador and Permanent Representative to the United Nations and other issued with gross abuse of discretion and serious error of law" (p. 15, Rollo). The
International Organizations in Geneva in lieu of the petitioner. The nomination was petition has merit.
confirmed by the Commission on Appointments on March 15, 1989 (pp. 191, 224,
Rollo). The general rule is that the factual findings of administrative agencies are binding
on this Court and controlling on the reviewing authorities if supported by
On March 30, 1989, President Aquino issued Administrative Order No. 122 (Annex substantial evidence (Planters Products, Inc. v. NLRC, 169 SCRA 328; Doruelo v.
S, pp. 84-99, Rollo) finding petitioner guilty of dishonesty (instead of misconduct) Ministry of National Defense, 169 SCRA 448). Courts of justice will not interfere
and imposed upon her the penalty of reprimand, with recall to the home office. with purely administrative matters rendered by administrative bodies within the
scope of their power and authority (Gegare v. CA, 177 SCRA 471).
The finding of dishonesty was based on:chanrob1es virtual 1aw library
A careful review of the records fails to yield any evidence of dishonesty on the part
1. The certification which was made in support of her request for reimbursement of the petitioner, or an intent to cheat and defraud the government. Her failure to
of the discounted round-trip ticket stating that "she purchased the said round trip disclose the fact that her discounted tickets included the fare for her child, was
ticket, which consists of two (2) one-way tickets (instead of two roundtrip tickets), harmless and inconsequential as the two (2) discounted Geneva-New York-Geneva
one from Geneva to New York and the other from New York to Geneva, as shown tickets for herself and her daughter were in fact inseparable, intransferable, non-
in the attached receipt (`quittance’) of payment to the travel agency. Hence, she cancellable and non-refundable, in effect one whole fare only, for purposes of the
was reimbursed, per Check No. UBS-4455589 dated May 7, 1987." (p. 95, Rollo.) discount. The mother and daughter tickets were, in the words of the petitioner,
"married to each other" (p. 8, Rollo). One without the other would not have been
2. The allegation in her telex ZGE-373-87 (in answer to DFA cable of September 16, entitled to the discount. And if she left her daughter behind, it would have made
1987) that the Geneva Mission "never paid for the trip of Ambassador de Perio- no difference in the fare because the ticket was not refundable.
Santos’ daughter to Mexico which was paid from ambassador’s personal fund"
(although the DFA in fact refunded Pia’s portion of the discounted round-trip Using the discounted tickets was beneficial to the Government for they cost 50%
tickets from Geneva-New York-Geneva). (p. 95, Rollo.). less than an economy round-trip ticket that the petitioner was entitled to purchase
for the same trip if she travelled alone. She obviously saved money (SFr. 1,399) for
Petitioner filed a motion for reconsideration and a supplemental memorandum the government by using her discounted tickets even if her daughter’s fare was
and letter addressed to the President (Annexes X, Y and Z, pp. 146-265, included therein.
Rollo).chanrobles.com.ph : virtual law library
Since petitioner was moved by the best of motives in using the discounted tickets
which she had purchased before she received the order to attend the UNCTAD "(b) Tour of duty — (1) The tour of duty of a foreign service officer at any post shall
conference in Havana, her action should be commended instead of condemned be four (4) years commencing on the date of his arrival at the post, after which he
(Hernandez v. Chairman, Commission on Audit, 179 SCRA 39). shall be transferred to another post." (p. 15, Rollo.).

Petitioner’s problems probably would not have arisen if before embarking on the As pointed out by the Solicitor General, P.D. 1578 was one of those unpublished
Havana trip she had asked DFA for permission to use the two (2) discounted round- "secret" decrees which this Court in Tañeda, Et. Al. v. Tuvera, Et Al., 146 SCRA 446,
trip tickets for the Geneva-New York-Geneva portion of her trip. Her inadvertence declared to be inoperative or without legal force and effect. P.D. 1578 was
was construed by the Government as lack of candor and honesty on her part. The expressly repealed on May 5, 1987, by Executive Order No. 168, entitled
Court believes however that she did not intend to falsify or conceal the truth when "REPEALING PRESIDENTIAL DECREE NO. 1578 ENTITLED ‘INSTITUTING THE
she filed a claim for the refund of the total cost of her discounted tickets (SFr. ADMINISTRATIVE CODE OF 1978.’" 
1,597). Her claim for the whole discounted fare was based on the fact that her
daughter’s ticket was inseparable from her own fare. They had to go together to The applicable law therefore is Section 6, Part B, Title III, of R.A. 708 "The Foreign
be entitled to the special discount. Their fare was indivisible, hence, the Service Act of the Philippines," enacted on June 5, 1952, providing that:chanrobles
Government’s offer to shoulder only the petitioner’s portion of the discounted fare lawlibrary : rednad
(SFr. 950), excluding her daughter’s portion (SFr. 647) was neither fair nor
reasonable. "SECTION 6. Assignments and Transfers. — A Foreign Service Officer may be
assigned by the Secretary to serve in the Department or in a diplomatic or consular
In view of the DFA’s objection to the refund of the entire discounted fare to her, post abroad: Provided, however, that the minimum period during which he may
the petitioner returned the whole amount of SFr. 1,597 which she had earlier serve in any foreign post shall be one year and the maximum period four years,
received from the DFA, and asked, in return, for the cost of the regular economy except in case of emergency or extraordinary circumstances, in which event he
fare (SFr. 2,966) which she was legally entitled to purchase for her trip. Thereupon, may be transferred from one foreign post to another or to the Department by the
the Secretary reprimanded her for misconduct and recalled her to the home office. order of the Secretary without regard to his length of service in his former post."
On appeal to the Office of the President, the latter ironically found her guilty of the (Emphasis supplied; p. 202, Rollo.)
more serious offense of dishonesty, reprimanded her therefor, and recalled her to
Manila. We hold that under the circumstances above narrated, the petitioner’s Since the petitioner had been appointed to her post on July 24, 1986, she had
actuation constituted neither dishonesty nor misconduct, hence, the reprimand already served the minimum one-year period of service when her recall on April
that was meted to her was unmerited. 22, 1988 came. Her reassignment to Manila did not have to be explained and
justified by the Secretary of Foreign Affairs nor the President of the Philippines (p.
Nevertheless, the Court is not disposed to disturb the order of the DFA and the 51, Rollo).
Office of the President recalling the petitioner to the home office. There is no merit
in the petitioner’s contention that her tour of duty in Geneva was for four (4) The presidential prerogative to determine the assignments of the country’s
years, as provided in Section 260 of P.D. No. 1578 ("Instituting the Administrative diplomatic personnel is unquestionable. As discussed in the Solicitor General’s
Code of 1978"), thus:jgc:chanrobles.com.ph "Comment" on the petition for certiorari and prohibition —
 p. 758.).
"The conduct of the country’s foreign affairs is vested on the President through
respondent Manglapus as alter ego of the President. As head of the Department of ‘The conduct of the external affairs of the State is an executive prerogative. As
Foreign Affairs, he is mandated by law to maintain the country’s representation head of the State, the President deals with foreign states and governments with
with foreign governments, the United Nations (UN), Association of Southeast Asian respect to matters relating to entering into treaties, maintaining diplomatic
Nations (ASEAN), and other international and regional organizations. The foreign relations, extending or withholding recognition. Chief Justice Marshall described
service officers and employees abroad represent the interest of the Philippines the President of the United States as the `sole organ of the nation in its external
under the direction, supervision and control of the Chief Executive through relations and its sole representative with foreign nations.’ This apt description
respondent Secretary. likewise applies to the President of the Philippines.’ (Anonuevo-Taro, The 1987
Constitution of the Philippines Explained, 1989 ed., p. 263-264.).
"x       x       x
"Thus, the assignment to and recall from posts of ambassadors are prerogatives of
"Considering that the conduct of foreign relations is primarily an executive the President, for her to exercise as the exigencies of the foreign service and the
prerogative, courts may not inquire into the wisdom or unwisdom in the exercise interests of the nation may from time to time dictate." (pp. 204-207, Rollo.)
thereof. This is a principle laid down by the courts from time immemorial. The
power to conduct foreign policy and its necessary element of assigning the The petitioner’s designation as the permanent representative of the Philippine
country’s representatives abroad is best addressed to the wisdom of the executive Government to the United Nations and other International Organizations in
branch and not to be unduly interfered with by the judiciary (U.S. v. Curtiss Wright Geneva (Annex B, p. 34, Rollo), was one based on the special trust and confidence
Export Corp. 299 U.S. 304; Missouri v. Holland, 352 U.S. 416; U.S. v. Belmonte, 301 which the appointing power, the President, had in the appointee. Once that trust
U.S. 324; U.S. v. Pink, 315 U.S. 203; Jones v. U.S., 137 U.S. 202, 212; Oetegen v. and confidence ceased to exist, the incumbent’s continuance in the position
Central Leather Co., 246 U.S. 297, 302; Foster v. Neilson, 2 Pet. 253, 307-09; became untenable.
Williams v. Suffolf Insurance Co., 13 Pet. 414, 419-20; Zemel v. Rusk, 381 U.S. 17;
Harisiades v. Shughnessy, 342 U.S. 580; Chicago Southern Air Lines, Inc. v. The tenure of officials holding primarily confidential positions ends upon loss of
Loatherman S.S. Corp. 333 U.S. 103; Haig v. Agee, 453 U.S. 280). In States which confidence, because their term of office lasts only as long as confidence in them
follow the principle of separation of powers like the United States and the endures (Corpus v. Cuaderno, 13 SCRA 591). When that confidence is lost and
Philippines, the President holds actual executive power, including the power to officer holding the position is separated from the service, such cessation is not
conduct foreign relations (Public International Law, Coquia and Santiago, 1984, ed., removal from office but merely an expiration of his/her term (Cadiente v. Santos,
p. 480). On this, textwriters are nign unanimous:jgc:chanrobles.com.ph 142 SCRA 280).

"‘The head of State, as the State’s Chief organ and representative in the totality of An incumbent of a primarily confidential position holds office at the pleasure of the
its international intercourse, with the consequence that all his legally relevant appointing power. When the pleasure turns into displeasure, the incumbent is not
international acts are considered acts of his state. Such acts comprises chiefly the removed or dismissed from office — his term merely expires (Ingles v. Mutuc, 26
reception and sending of diplomatic agents and consuls, conclusion of treaties, and SCRA 171).
recognition of states. (Ibid, p. 481, citing Fenwick, International Law, 554 [1965], at
"Primarily confidential" denotes "not only confidence in the aptitude of the hereby set aside. However, the order recalling her to the home office in Manila is
appointee for the duties of the office but primarily close intimacy which insures affirmed. No costs.
freedom of intercourse without embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters of state" (Pinero v. Hechanova, SO ORDERED.
18 SCRA 417; citing De los Santos v. Mallare, 87 Phil. 289).
[G.R. No. 139465. January 18, 2000]
It is the fact of loss of confidence, not the reason for it, that is important and
controlling. As holder of a primarily confidential position, petitioner’s foreign
assignment was at the pleasure of the President. The recall order terminating her
tour of duty in Geneva and returning to her home office was merely a change of
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge,
post or transfer of location of work.
Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents.
Esmso
Petitioner may not justifiably assail the appointment of Narcisa Escaler as her
replacement in Geneva because the power to appoint is essentially discretionary.
The appointing power, the President, has the right of choice which she may
exercise freely, according to her best lights (Pamantasan ng Lungsod ng Maynila v.
Court of Appeals, 140 SCRA 22). This Court may not order the reinstatement of the DECISION
petitioner to her former position in Geneva for that would be tantamount to a
usurpation by this Court of the power of appointment, which is the exclusive
prerogative of the Chief Executive (Article VII, Section 16, 1987 Constitution). It
would violate the system of separation of powers which inheres in our democratic MELO, J.:
republican form of government.chanrobles virtual lawlibrary

The recall order issued by the Secretary of Foreign Affairs (Assignment Order No.
58/88) was a valid exercise of his authority as an alter ego of the President (Villena The individual citizen is but a speck of particle or molecule vis--vis the vast and
v. Secretary of Interior, 67 Phil. 451). His acts, "performed and promulgated in the overwhelming powers of government. His only guarantee against oppression and
regular course of business, are, unless disapproved or reprobated by the Chief tyranny are his fundamental liberties under the Bill of Rights which shield him in
Executive presumptively the acts of the latter (Cruz, Political Law, p. 188, 1987 times of need. The Court is now called to decide whether to uphold a citizens basic
Edition). His order recalling the petitioner to the home office, having been affirmed due process rights, or the governments ironclad duties under a treaty. The bugle
by the President, any doubts as to its validity and propriety have thereby been laid sounds and this Court must once again act as the faithful guardian of the
to rest. fundamental writ.

WHEREFORE, Administrative Order No. 122 of the Office of the President, insofar
as it finds the petitioner guilty of dishonesty and reprimands her therefor, is
The petition at our doorstep is cast against the following factual backdrop: District Court, Southern District of Florida, and other supporting documents for
said extradition. Based on the papers submitted, private respondent appears to be
charged in the United States with violation of the following provisions of the
United States Code (USC):
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential
Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who
Have Committed Crimes in a Foreign Country". The Decree is founded on: the
doctrine of incorporation under the Constitution; the mutual concern for the A)......18 USC 371 (Conspiracy to commit offense or to defraud the United States;
suppression of crime both in the state where it was committed and the state two [2] counts; Maximum Penalty 5 years on each count);
where the criminal may have escaped; the extradition treaty with the Republic of
Indonesia and the intention of the Philippines to enter into similar treaties with
other interested countries; and the need for rules to guide the executive
department and the courts in the proper implementation of said treaties. B)......26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum
Penalty 5 years on each count);

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing

the Government of the Republic of the Philippines, signed in Manila the C)......18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum
"Extradition Treaty Between the Government of the Republic of the Philippines Penalty 5 years on each count);
and the Government of the United States of America" (hereinafter referred to as
the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed
its concurrence in the ratification of said treaty. It also expressed its concurrence in
the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the
D)......18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5
admissibility of the documents accompanying an extradition request upon
years on each count);
certification by the principal diplomatic or consular officer of the requested state
resident in the Requesting State). Kycalr

E)......2 USC 441f (Election contributions in name of another; thirty-three [33]

counts; Maximum Penalty less than one year).
On June 18, 1999, the Department of Justice received from the Department of
Foreign Affairs U. S. Note Verbale No. 0522 containing a request for the extradition
of private respondent Mark Jimenez to the United States. Attached to the Note
Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S.
(p. 14, Rollo.) In response to private respondents July 1, 1999 letter, petitioner, in a reply-letter
dated July 13, 1999 (but received by private respondent only on August 4, 1999),
denied the foregoing requests for the following reasons:

On the same day, petitioner issued Department Order No. 249 designating and
authorizing a panel of attorneys to take charge of and to handle the case pursuant
to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with 1. We find it premature to furnish you with copies of the extradition request and
the "technical evaluation and assessment" of the extradition request and the supporting documents from the United States Government, pending evaluation by
documents in support thereof. The panel found that the "official English translation this Department of the sufficiency of the extradition documents submitted in
of some documents in Spanish were not attached to the request and that there are accordance with the provisions of the extradition treaty and our extradition law.
some other matters that needed to be addressed" (p. 15, Rollo). Calrky Article 7 of the Extradition Treaty between the Philippines and the United States
enumerates the documentary requirements and establishes the procedures under
which the documents submitted shall be received and admitted as evidence.
Evidentiary requirements under our domestic law are also set forth in Section 4 of
Pending evaluation of the aforestated extradition documents, private respondent, P.D. No. 1069.
through counsel, wrote a letter dated July 1, 1999 addressed to petitioner
requesting copies of the official extradition request from the U. S. Government, as
well as all documents and papers submitted therewith; and that he be given ample
time to comment on the request after he shall have received copies of the Evaluation by this Department of the aforementioned documents is not a
requested papers. Private respondent also requested that the proceedings on the preliminary investigation nor akin to preliminary investigation of criminal cases.
matter be held in abeyance in the meantime. We merely determine whether the procedures and requirements under the
relevant law and treaty have been complied with by the Requesting Government.
The constitutionally guaranteed rights of the accused in all criminal prosecutions
are therefore not available.
Later, private respondent requested that preliminarily, he be given at least a copy
of, or access to, the request of the United States Government, and after receiving a
copy of the Diplomatic Note, a period of time to amplify on his request.
It is only after the filing of the petition for extradition when the person sought to
be extradited will be furnished by the court with copies of the petition, request
and extradition documents and this Department will not pose any objection to a
request for ample time to evaluate said documents. Mesm
2. The formal request for extradition of the United States contains grand jury against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of
information and documents obtained through grand jury process covered by strict the National Bureau of Investigation, for mandamus (to compel herein petitioner
secrecy rules under United States law. The United States had to secure orders from to furnish private respondent the extradition documents, to give him access
the concerned District Courts authorizing the United States to disclose certain thereto, and to afford him an opportunity to comment on, or oppose, the
grand jury information to Philippine government and law enforcement personnel extradition request, and thereafter to evaluate the request impartially, fairly and
for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said objectively); certiorari (to set aside herein petitioners letter dated July 13, 1999);
information is not authorized by the United States District Courts. In this particular and prohibition (to restrain petitioner from considering the extradition request and
extradition request the United States Government requested the Philippine from filing an extradition petition in court; and to enjoin the Secretary of Foreign
Government to prevent unauthorized disclosure of the subject information. This Affairs and the Director of the NBI from performing any act directed to the
Departments denial of your request is consistent with Article 7 of the RP-US extradition of private respondent to the United States), with an application for the
Extradition Treaty which provides that the Philippine Government must represent issuance of a temporary restraining order and a writ of preliminary injunction (pp.
the interests of the United States in any proceedings arising out of a request for 104-105, Rollo). Scslx
extradition. The Department of Justice under P.D. No. 1069 is the counsel of the
foreign governments in all extradition requests.

The aforementioned petition was docketed as Civil Case No. 99-94684 and
thereafter raffled to Branch 25 of said regional trial court stationed in Manila which
3. This Department is not in a position to hold in abeyance proceedings in is presided over by the Honorable Ralph C. Lantion.
connection with an extradition request. Article 26 of the Vienna Convention on the
Law of Treaties, to which we are a party provides that "[E]very treaty in force is
binding upon the parties to it and must be performed by them in good faith".
Extradition is a tool of criminal law enforcement and to be effective, requests for After due notice to the parties, the case was heard on August 9, 1999. Petitioner,
extradition or surrender of accused or convicted persons must be processed who appeared in his own behalf, moved that he be given ample time to file a
expeditiously. memorandum, but the same was denied.

(pp. 77-78, Rollo.) On August 10, 1999, respondent judge issued an order dated the previous day,
disposing:

Such was the state of affairs when, on August 6, 1999, private respondent filed
with the Regional Trial Court of the National Capital Judicial Region a petition
WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH
Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
Investigation, their agents and/or representatives to maintain the status quo by IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE: Slxs c
refraining from committing the acts complained of; from conducting further
proceedings in connection with the request of the United States Government for
the extradition of the petitioner; from filing the corresponding Petition with a
Regional Trial court; and from performing any act directed to the extradition of the I.
petitioner to the United States, for a period of twenty (20) days from service on
respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of
Court.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS
COMPLAINED OF, I. E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS
TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING
The hearing as to whether or not this Court shall issue the preliminary injunction, PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR
as agreed upon by the counsels for the parties herein, is set on August 17, 1999 at OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN
9:00 oclock in the morning. The respondents are, likewise, ordered to file their THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT,
written comment and/or opposition to the issuance of a Preliminary Injunction on GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE
or before said date. MANDAMUS ISSUES;

SO ORDERED. II.

(pp. 110-111, Rollo.) PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES
UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;

Forthwith, petitioner initiated the instant proceedings, arguing that:

III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of
FORMALLY AND SUBSTANTIALLY DEFICIENT; AND the Philippines, this 17th day of August 1999.

IV. (pp. 120-121, Rollo.)

PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND The case was heard on oral argument on August 31, 1999, after which the parties,
ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY. as directed, filed their respective memoranda.

(pp. 19-20, Rollo.) From the pleadings of the opposing parties, both procedural and substantive issues
are patent. However, a review of these issues as well as the extensive arguments
of both parties, compel us to delineate the focal point raised by the pleadings:
During the evaluation stage of the extradition proceedings, is private respondent
On August 17, 1999, the Court required private respondent to file his comment. entitled to the two basic due process rights of notice and hearing? An affirmative
Also issued, as prayed for, was a temporary restraining order (TRO) providing: slx answer would necessarily render the proceedings at the trial court, moot and
mis academic (the issues of which are substantially the same as those before us now),
while a negative resolution would call for the immediate lifting of the TRO issued
by this Court dated August 24, 1999, thus allowing petitioner to fast-track the
process leading to the filing of the extradition petition with the proper regional
trial court. Corollarily, in the event that private respondent is adjudged entitled to
NOW, THEREFORE, effective immediately and continuing until further orders from basic due process rights at the evaluation stage of the extradition proceedings,
this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives would this entitlement constitute a breach of the legal commitments and
or any person or persons acting in your place or stead are hereby ORDERED to obligations of the Philippine Government under the RP-US Extradition Treaty? And
CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued assuming that the result would indeed be a breach, is there any conflict between
by public respondent in Civil Case No. 99-94684. private respondents basic due process rights and the provisions of the RP-US
Extradition Treaty?
 1. The original or an authentic copy of the criminal charge and the warrant of
arrest issued by the authority of the Requesting State having jurisdiction over the
The issues having transcendental importance, the Court has elected to go directly matter, or some other instruments having equivalent legal force;
into the substantive merits of the case, brushing aside peripheral procedural
matters which concern the proceedings in Civil Case No. 99-94684, particularly the
propriety of the filing of the petition therein, and of the issuance of the TRO of
August 17, 1999 by the trial court. Missdaa 2. A recital of the acts for which extradition is requested, with the fullest
particulars as to the name and identity of the accused, his whereabouts in the
Philippines, if known, the acts or omissions complained of, and the time and place
of the commission of these acts; Sda adsc
To be sure, the issues call for a review of the extradition procedure. The RP-US
Extradition Treaty which was executed only on November 13, 1994, ushered into
force the implementing provisions of Presidential Decree No. 1069, also called as
the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the 3. The text of the applicable law or a statement of the contents of said law, and the
removal of an accused from the Philippines with the object of placing him at the designation or description of the offense by the law, sufficient for evaluation of the
disposal of foreign authorities to enable the requesting state or government to request; and
hold him in connection with any criminal investigation directed against him or the
execution of a penalty imposed on him under the penal or criminal law of the
requesting state or government." The portions of the Decree relevant to the
instant case which involves a charged and not convicted individual, are abstracted
4. Such other documents or information in support of the request.
as follows:

(Section 4, Presidential Decree No. 1069.)

The Extradition Request

Section 5 of the Presidential Decree, which sets forth the duty of the Secretary of
The request is made by the Foreign Diplomat of the Requesting State, addressed to
Foreign Affairs, pertinently provides:
the Secretary of Foreign Affairs, and shall be accompanied by:
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to 4. A statement of the provisions of law describing the punishment for the offense;
meet the requirements of this law and the relevant treaty or convention, he shall Rtc spped
forward the request together with the related documents to the Secretary of
Justice, who shall immediately designate and authorize an attorney in his office to
take charge of the case.
5. A statement of the provisions of the law describing any time limit on the
prosecution or the execution of punishment for the offense;

The above provision shows only too clearly that the executive authority given the
task of evaluating the sufficiency of the request and the supporting documents is
the Secretary of Foreign Affairs. What then is the coverage of this task? 6. Documents, statements, or other types of information specified in paragraph 3
or paragraph 4 of said Article, as applicable.

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty,

the executive authority must ascertain whether or not the request is supported by: (Paragraph 2, Article 7, Presidential Decree No. 1069.)

1. Documents, statements, or other types of information which describe the 7. Such evidence as, according to the law of the Requested State, would provide
identity and probable location of the person sought; probable cause for his arrest and committal for trial if the offense had been
committed there;

2. A statement of the facts of the offense and the procedural history of the case;
8. A copy of the warrant or order of arrest issued by a judge or other competent
authority; and

3. A statement of the provisions of the law describing the essential elements of the
offense for which extradition is requested;
9. A copy of the charging document.
 with a prayer that the court take the extradition request under consideration
(Paragraph [2], ibid.). Korte
(Paragraph 3, ibid.)

The presiding judge of the regional trial court, upon receipt of the petition for
The executive authority (Secretary of Foreign Affairs) must also see to it that the extradition, shall, as soon as practicable, issue an order summoning the
accompanying documents received in support of the request had been certified by prospective extraditee to appear and to answer the petition on the day and hour
the principal diplomatic or consular officer of the Requested State resident in the fixed in the order. The judge may issue a warrant of arrest if it appears that the
Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. immediate arrest and temporary detention of the accused will best serve the ends
951309 from the Department of Foreign Affairs). of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the
prospective extraditee.

In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall
not be granted if the executive authority of the Requested State determines that The Extradition Hearing
the request is politically motivated, or that the offense is a military offense which is
not punishable under non-military penal legislation."

The Extradition Law does not specifically indicate whether the extradition
proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1],
The Extradition Petition Section 9 thereof provides that in the hearing of the extradition petition, the
provisions of the Rules of Court, insofar as practicable and not inconsistent with
the summary nature of the proceedings, shall apply. During the hearing, Section 8
of the Decree provides that the attorney having charge of the case may, upon
application by the Requesting State, represent the latter throughout the
Upon a finding made by the Secretary of Foreign Affairs that the extradition
proceedings.
request and its supporting documents are sufficient and complete in form and
substance, he shall deliver the same to the Secretary of Justice, who shall
immediately designate and authorize an attorney in his office to take charge of the
case (Paragraph [1], Section 5, P. D. No. 1069). The lawyer designated shall then
file a written petition with the proper regional trial court of the province or city, Upon conclusion of the hearing, the court shall render a decision granting the
extradition and giving the reasons therefor upon a showing of the existence of a
prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is However, looking at the factual milieu of the case before us, it would appear that
appealable to the Court of Appeals, whose decision shall be final and immediately there was failure to abide by the provisions of Presidential Decree No. 1069. For
executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal while it is true that the extradition request was delivered to the Department of
in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the
except for the required 15-day period to file brief (Section 13, ibid.). Department of Justice received the request, apparently without the Department of
Foreign Affairs discharging its duty of thoroughly evaluating the same and its
accompanying documents. The statement of an assistant secretary at the
Department of Foreign Affairs that his Department, in this regard, is merely acting
The trial court determines whether or not the offense mentioned in the petition is as a post office, for which reason he simply forwarded the request to the
extraditable based on the application of the dual criminality rule and other Department of Justice, indicates the magnitude of the error of the Department of
conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of
also determines whether or not the offense for which extradition is requested is a Justice took it upon itself to determine the completeness of the documents and to
political one (Paragraph [1], Article 3, RP-US Extradition Treaty). evaluate the same to find out whether they comply with the requirements laid
down in the Extradition Law and the RP-US Extradition Treaty. Petitioner
ratiocinates in this connection that although the Department of Justice had no
obligation to evaluate the extradition documents, the Department also had to go
over them so as to be able to prepare an extradition petition (tsn, August 31, 1999,
With the foregoing abstract of the extradition proceedings as backdrop, the pp. 24-25). Notably, it was also at this stage where private respondent insisted on
following query presents itself: What is the nature of the role of the Department of the following: (1) the right to be furnished the request and the supporting papers;
Justice at the evaluation stage of the extradition proceedings? Sclaw (2) the right to be heard which consists in having a reasonable period of time to
oppose the request, and to present evidence in support of the opposition; and (3)
that the evaluation proceedings be held in abeyance pending the filing of private
respondent's opposition to the request. Kyle
A strict observance of the Extradition Law indicates that the only duty of the
Secretary of Justice is to file the extradition petition after the request and all the
supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the
latter official who is authorized to evaluate the extradition papers, to assure their The two Departments seem to have misread the scope of their duties and
sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether authority, one abdicating its powers and the other enlarging its commission. The
or not the request is politically motivated, or that the offense is a military offense Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a
which is not punishable under non-military penal legislation. Ipso facto, as manifestation that it is adopting the instant petition as its own, indirectly
expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary conveying the message that if it were to evaluate the extradition request, it would
of Justice has the ministerial duty of filing the extradition papers. not allow private respondent to participate in the process of evaluation.
 States, 304 U.S. 1). Inquisitorial power, which is also known as examining or
investigatory power, is one of the determinative powers of an administrative body
Plainly then, the record cannot support the presumption of regularity that the which better enables it to exercise its quasi-judicial authority (Cruz, Phil.
Department of Foreign Affairs thoroughly reviewed the extradition request and Administrative Law, 1996 ed., p. 26). This power allows the administrative body to
supporting documents and that it arrived at a well-founded judgment that the inspect the records and premises, and investigate the activities, of persons or
request and its annexed documents satisfy the requirements of law. The Secretary entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of
of Justice, eminent as he is in the field of law, could not privately review the papers information by means of accounts, records, reports, testimony of witnesses,
all by himself. He had to officially constitute a panel of attorneys. How then could production of documents, or otherwise (De Leon, op. cit., p. 64).
the DFA Secretary or his undersecretary, in less than one day, make the more
authoritative determination?

The power of investigation consists in gathering, organizing, and analyzing

evidence, which is a useful aid or tool in an administrative agencys performance of
The evaluation process, just like the extradition proceedings proper, belongs to a its rule-making or quasi-judicial functions. Notably, investigation is indispensable to
class by itself. It is sui generis. It is not a criminal investigation, but it is also prosecution.
erroneous to say that it is purely an exercise of ministerial functions. At such stage,
the executive authority has the power: (a) to make a technical assessment of the
completeness and sufficiency of the extradition papers; (b) to outrightly deny the
request if on its face and on the face of the supporting documents the crimes In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to
indicated are not extraditable; and (c) to make a determination whether or not the rule on the functions of an investigatory body with the sole power of investigation.
request is politically motivated, or that the offense is a military one which is not It does not exercise judicial functions and its power is limited to investigating the
punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; facts and making findings in respect thereto. The Court laid down the test of
Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said determining whether an administrative body is exercising judicial functions or
process may be characterized as an investigative or inquisitorial process in contrast merely investigatory functions: Adjudication signifies the exercise of power and
to a proceeding conducted in the exercise of an administrative bodys quasi-judicial authority to adjudicate upon the rights and obligations of the parties before it.
power. Ex sm Hence, if the only purpose for investigation is to evaluate evidence submitted
before it based on the facts and circumstances presented to it, and if the agency is
not authorized to make a final pronouncement affecting the parties, then there is
an absence of judicial discretion and judgment. Mse sm
In administrative law, a quasi-judicial proceeding involves: (a) taking and
evaluation of evidence; (b) determining facts based upon the evidence presented;
and (c) rendering an order or decision supported by the facts proved (De Leon,
Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United
The above description in Ruperto applies to an administrative body authorized to Clearly, there is an impending threat to a prospective extraditees liberty as early as
evaluate extradition documents. The body has no power to adjudicate in regard to during the evaluation stage. It is not only an imagined threat to his liberty, but a
the rights and obligations of both the Requesting State and the prospective very imminent one. Sc lex
extraditee. Its only power is to determine whether the papers comply with the
requirements of the law and the treaty and, therefore, sufficient to be the basis of
an extradition petition. Such finding is thus merely initial and not final. The body
has no power to determine whether or not the extradition should be effected. That Because of these possible consequences, we conclude that the evaluation process
is the role of the court. The bodys power is limited to an initial finding of whether is akin to an administrative agency conducting an investigative proceeding, the
or not the extradition petition can be filed in court. consequences of which are essentially criminal since such technical assessment
sets off or commences the procedure for, and ultimately, the deprivation of liberty
of a prospective extraditee. As described by petitioner himself, this is a "tool" for
criminal law enforcement (p. 78, Rollo). In essence, therefore, the evaluation
It is to be noted, however, that in contrast to ordinary investigations, the process partakes of the nature of a criminal investigation. In a number of cases, we
evaluation procedure is characterized by certain peculiarities. Primarily, it sets into had occasion to make available to a respondent in an administrative case or
motion the wheels of the extradition process. Ultimately, it may result in the investigation certain constitutional rights that are ordinarily available only in
deprivation of liberty of the prospective extraditee. This deprivation can be criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the
effected at two stages: First, the provisional arrest of the prospective extraditee oral arguments, there are rights formerly available only at the trial stage that had
pending the submission of the request. This is so because the Treaty provides that been advanced to an earlier stage in the proceedings, such as the right to counsel
in case of urgency, a contracting party may request the provisional arrest of the and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs.
person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona,
Extradition Treaty), but he shall be automatically discharged after 60 days if no 384 U.S. 436).
request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a
shorter period of 20 days after which the arrested person could be discharged
(Section 20[d]). Logically, although the Extradition Law is silent on this respect, the
provisions only mean that once a request is forwarded to the Requested State, the In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the
prospective extraditee may be continuously detained, or if not, subsequently right against self-incrimination under Section 17, Article III of the 1987 Constitution
rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be which is ordinarily available only in criminal prosecutions, extends to
discharged if no request is submitted. Practically, the purpose of this detention is administrative proceedings which possess a criminal or penal aspect, such as an
to prevent his possible flight from the Requested State. Second, the temporary administrative investigation of a licensed physician who is charged with
arrest of the prospective extraditee during the pendency of the extradition petition immorality, which could result in his loss of the privilege to practice medicine if
in court (Section 6, Presidential Decree No. 1069). found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059
[1962]), pointed out that the revocation of ones license as a medical practitioner, is
an even greater deprivation than forfeiture of property.
 result in the filing of an information against the respondent, can possibly lead to
his arrest, and to the deprivation of his liberty.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth
against a respondent which was filed under Republic Act No. 1379, or the Anti-
Graft Law. Again, we therein ruled that since the investigation may result in
forfeiture of property, the administrative proceedings are deemed criminal or Petitioners reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8,
penal, and such forfeiture partakes the nature of a penalty. There is also the earlier Petitioners Memorandum) that the extradition treaty is neither a piece of criminal
case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American legislation nor a criminal procedural statute is not well-taken. Wright is not
jurisprudence, laid down the test to determine whether a proceeding is civil or authority for petitioners conclusion that his preliminary processing is not akin to a
criminal: If the proceeding is under a statute such that if an indictment is preliminary investigation. The characterization of a treaty in Wright was in
presented the forfeiture can be included in the criminal case, such proceeding is reference to the applicability of the prohibition against an ex post facto law. It had
criminal in nature, although it may be civil in form; and where it must be gathered nothing to do with the denial of the right to notice, information, and hearing.
from the statute that the action is meant to be criminal in its nature, it cannot be
considered as civil. If, however, the proceeding does not involve the conviction of
the wrongdoer for the offense charged, the proceeding is civil in nature. x law
As early as 1884, the United States Supreme Court ruled that "any legal proceeding
enforced by public authority, whether sanctioned by age or custom, or newly
devised in the discretion of the legislative power, in furtherance of the general
The cases mentioned above refer to an impending threat of deprivation of ones public good, which regards and preserves these principles of liberty and justice,
property or property right. No less is this true, but even more so in the case before must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516).
us, involving as it does the possible deprivation of liberty, which, based on the Compliance with due process requirements cannot be deemed non-compliance
hierarchy of constitutionally protected rights, is placed second only to life itself and with treaty commitments.
enjoys precedence over property, for while forfeited property can be returned or
replaced, the time spent in incarceration is irretrievable and beyond recompense.

The United States and the Philippines share a mutual concern about the
suppression and punishment of crime in their respective jurisdictions. At the same
By comparison, a favorable action in an extradition request exposes a person to time, both States accord common due process protection to their respective
eventual extradition to a foreign country, thus saliently exhibiting the criminal or citizens. Sc
penal aspect of the process. In this sense, the evaluation procedure is akin to a
preliminary investigation since both procedures may have the same result the
arrest and imprisonment of the respondent or the person charged. Similar to the
evaluation stage of extradition proceedings, a preliminary investigation, which may
The due process clauses in the American and Philippine Constitutions are not only their interests, and upon notice, they may claim the right to appear therein and
worded in exactly identical language and terminology, but more importantly, they present their side and to refute the position of the opposing parties (Cruz, Phil.
are alike in what their respective Supreme Courts have expounded as the spirit Administrative Law, 1996 ed., p. 64).
with which the provisions are informed and impressed, the elasticity in their
interpretation, their dynamic and resilient character which make them capable of
meeting every modern problem, and their having been designed from earliest time
to the present to meet the exigencies of an undefined and expanding future. The In a preliminary investigation which is an administrative investigatory proceeding,
requirements of due process are interpreted in both the United States and the Section 3, Rule 112 of the Rules of Court guarantees the respondents basic due
Philippines as not denying to the law the capacity for progress and improvement. process rights, granting him the right to be furnished a copy of the complaint, the
Toward this effect and in order to avoid the confines of a legal straitjacket, the affidavits, and other supporting documents, and the right to submit counter-
courts instead prefer to have the meaning of the due process clause "gradually affidavits and other supporting documents within ten days from receipt thereof.
ascertained by the process of inclusion and exclusion in the course of the decisions Moreover, the respondent shall have the right to examine all other evidence
of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to submitted by the complainant. Scmis
"the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel
Owners Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to
certain immutable principles of justice which inhere in the very idea of free
government (Holden vs. Hardy, 169 U.S. 366).
These twin rights may, however, be considered dispensable in certain instances,
such as:

Due process is comprised of two components substantive due process which

requires the intrinsic validity of the law in interfering with the rights of the person
1. In proceedings where there is an urgent need for immediate action, like the
to his life, liberty, or property, and procedural due process which consists of the
summary abatement of a nuisance per se (Article 704, Civil Code), the preventive
two basic rights of notice and hearing, as well as the guarantee of being heard by
suspension of a public servant facing administrative charges (Section 63, Local
an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-
Government Code, B. P. Blg. 337), the padlocking of filthy restaurants or theaters
106).
showing obscene movies or like establishments which are immediate threats to
public health and decency, and the cancellation of a passport of a person sought
for criminal prosecution;

True to the mandate of the due process clause, the basic rights of notice and
hearing pervade not only in criminal and civil proceedings, but in administrative
proceedings as well. Non-observance of these rights will invalidate the
proceedings. Individuals are entitled to be notified of any pending case affecting
2. Where there is tentativeness of administrative action, that is, where the been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition
respondent is not precluded from enjoying the right to notice and hearing at a of an alleged fugitive, the requisition papers or the demand must be in proper
later time without prejudice to the person affected, such as the summary distraint form, and all the elements or jurisdictional facts essential to the extradition must
and levy of the property of a delinquent taxpayer, and the replacement of a appear on the face of the papers, such as the allegation that the person demanded
temporary appointee; and was in the demanding state at the time the offense charged was committed, and
that the person demanded is charged with the commission of the crime or that
prosecution has been begun in the demanding state before some court or
magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the
3. Where the twin rights have previously been offered but the right to exercise governor of the asylum state, and must contain such papers and documents
them had not been claimed. prescribed by statute, which essentially include a copy of the instrument charging
the person demanded with a crime, such as an indictment or an affidavit made
before a magistrate. Statutory requirements with respect to said charging
instrument or papers are mandatory since said papers are necessary in order to
confer jurisdiction on the governor of the asylum state to effect the extradition (35
Applying the above principles to the case at bar, the query may be asked: Does the C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment,
evaluation stage of the extradition proceedings fall under any of the described information, affidavit, or judgment of conviction or sentence and other
situations mentioned above? instruments accompanying the demand or requisitions be furnished and delivered
to the fugitive or his attorney is directory. However, the right being such a basic
one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte
Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d
Let us take a brief look at the nature of American extradition proceedings which 853). Mis spped
are quite noteworthy considering that the subject treaty involves the U.S.
Government. Mis sc

In international proceedings, extradition treaties generally provide for the

presentation to the executive authority of the Requested State of a requisition or
American jurisprudence distinguishes between interstate rendition or extradition demand for the return of the alleged offender, and the designation of the
which is based on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), particular officer having authority to act in behalf of the demanding nation (31A
and international extradition proceedings. In interstate rendition or extradition, Am Jur 2d 815).
the governor of the asylum state has the duty to deliver the fugitive to the
demanding state. The Extradition Clause and the implementing statute are given a
liberal construction to carry out their manifest purpose, which is to effect the
return as swiftly as possible of persons for trial to the state in which they have
In petitioners memorandum filed on September 15, 1999, he attached thereto a 4. At the hearing, the court must determine whether the person arrested is
letter dated September 13, 1999 from the Criminal Division of the U.S. Department extraditable to the foreign country. The court must also determine that (a) it has
of Justice, summarizing the U.S. extradition procedures and principles, which are jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the
basically governed by a combination of treaties (with special reference to the RP- defendant is being sought for offenses for which the applicable treaty permits
US Extradition Treaty), federal statutes, and judicial decisions, to wit: extradition; and (c) there is probable cause to believe that the defendant is the
person sought and that he committed the offenses charged (Ibid.) Spped

1. All requests for extradition are transmitted through the diplomatic channel. In
urgent cases, requests for the provisional arrest of an individual may be made 5. The judge or magistrate judge is vested with jurisdiction to certify extraditability
directly by the Philippine Department of Justice to the U.S. Department of Justice, after having received a "complaint made under oath, charging any person found
and vice-versa. In the event of a provisional arrest, a formal request for extradition within his jurisdiction" with having committed any of the crimes provided for by
is transmitted subsequently through the diplomatic channel. the governing treaty in the country requesting extradition (Ibid.) [In this regard, it
is noted that a long line of American decisions pronounce that international
extradition proceedings partake of the character of a preliminary examination
before a committing magistrate, rather than a trial of the guilt or innocence of the
2. The Department of State forwards the incoming Philippine extradition request alleged fugitive (31A Am Jur 2d 826).]
to the Department of Justice. Before doing so, the Department of State prepares a
declaration confirming that a formal request has been made, that the treaty is in
full force and effect, that under Article 17 thereof the parties provide reciprocal
legal representation in extradition proceedings, that the offenses are covered as 6. If the court decides that the elements necessary for extradition are present, it
extraditable offenses under Article 2 thereof, and that the documents have been incorporates its determinations in factual findings and conclusions of law and
authenticated in accordance with the federal statute that ensures admissibility at certifies the persons extraditability. The court then forwards this certification of
any subsequent extradition hearing. extraditability to the Department of State for disposition by the Secretary of State.
The ultimate decision whether to surrender an individual rests with the Secretary
of State (18 U.S.C. 3186).

3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the
prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to
hold a hearing to consider the evidence offered in support of the extradition 7. The subject of an extradition request may not litigate questions concerning the
request (Ibid.) motives of the requesting government in seeking his extradition. However, a
person facing extradition may present whatever information he deems relevant to
the Secretary of State, who makes the final determination whether to surrender an The establishment of prompt efficacious procedures to achieve legitimate state
individual to the foreign government concerned. ends is a proper state interest worthy of cognizance in constitutional adjudication.
But the Constitution recognizes higher values than speed and efficiency. Indeed,
one might fairly say of the Bill of Rights in general, and the Due Process Clause, in
particular, that they were designed to protect the fragile values of a vulnerable
From the foregoing, it may be observed that in the United States, extradition citizenry from the overbearing concern for efficiency and efficacy that may
begins and ends with one entity the Department of State which has the power to characterize praiseworthy government officials no less, and perhaps more, than
evaluate the request and the extradition documents in the beginning, and, in the mediocre ones.
person of the Secretary of State, the power to act or not to act on the courts
determination of extraditability. In the Philippine setting, it is the Department of
Foreign Affairs which should make the initial evaluation of the request, and having
satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the (Stanley vs. Illinois, 404 U.S. 645, 656)
request to the Department of Justice for the preparation and filing of the petition
for extradition. Sadly, however, the Department of Foreign Affairs, in the instant
case, perfunctorily turned over the request to the Department of Justice which has
taken over the task of evaluating the request as well as thereafter, if so warranted, The United States, no doubt, shares the same interest as the Philippine
preparing, filing, and prosecuting the petition for extradition. Jo spped Government that no right that of liberty secured not only by the Bills of Rights of
the Philippines Constitution but of the United States as well, is sacrificed at the
altar of expediency.

Private respondent asks what prejudice will be caused to the U.S. Government
should the person sought to be extradited be given due process rights by the
Philippines in the evaluation stage. He emphasizes that petitioners primary (pp. 40-41, Private Respondents Memorandum.) Spped jo
concern is the possible delay in the evaluation process.

In the Philippine context, this Courts ruling is invoked:

We agree with private respondents citation of an American Supreme Court ruling:

One of the basic principles of the democratic system is that where the rights of the
individual are concerned, the end does not justify the means. It is not enough that
there be a valid objective; it is also necessary that the means employed to pursue it Department of Justice for the filing of the extradition petition since non-
be in keeping with the Constitution. Mere expediency will not excuse compliance with the aforesaid requirements will not vest our government with
constitutional shortcuts. There is no question that not even the strongest moral jurisdiction to effect the extradition.
conviction or the most urgent public need, subject only to a few notable
exceptions, will excuse the bypassing of an individuals rights. It is no exaggeration
to say that a person invoking a right guaranteed under Article III of the Constitution
is a majority of one even as against the rest of the nation who would deny him that In this light, it should be observed that the Department of Justice exerted notable
right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of efforts in assuring compliance with the requirements of the law and the treaty
Agrarian Reform, 175 SCRA 343, 375-376 [1989]). since it even informed the U.S. Government of certain problems in the extradition
papers (such as those that are in Spanish and without the official English
translation, and those that are not properly authenticated). In fact, petitioner even
admits that consultation meetings are still supposed to take place between the
There can be no dispute over petitioners argument that extradition is a tool of lawyers in his Department and those from the U.S. Justice Department. With the
criminal law enforcement. To be effective, requests for extradition or the meticulous nature of the evaluation, which cannot just be completed in an
surrender of accused or convicted persons must be processed expeditiously. abbreviated period of time due to its intricacies, how then can we say that it is a
Nevertheless, accelerated or fast-tracked proceedings and adherence to fair proceeding that urgently necessitates immediate and prompt action where notice
procedures are, however, not always incompatible. They do not always clash in and hearing can be dispensed with?
discord. Summary does not mean precipitous haste. It does not carry a disregard of
the basic principles inherent in "ordered liberty." Miso

Worthy of inquiry is the issue of whether or not there is tentativeness of

administrative action. Is private respondent precluded from enjoying the right to
Is there really an urgent need for immediate action at the evaluation stage? At that notice and hearing at a later time without prejudice to him? Here lies the
point, there is no extraditee yet in the strict sense of the word. Extradition may or peculiarity and deviant characteristic of the evaluation procedure. On one hand,
may not occur. In interstate extradition, the governor of the asylum state may not, there is yet no extraditee, but ironically on the other, it results in an administrative
in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) determination which, if adverse to the person involved, may cause his immediate
since after a close evaluation of the extradition papers, he may hold that federal incarceration. The grant of the request shall lead to the filing of the extradition
and statutory requirements, which are significantly jurisdictional, have not been petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069
met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive calls him), faces the threat of arrest, not only after the extradition petition is filed
authority of the requested state has the power to deny the behest from the in court, but even during the evaluation proceeding itself by virtue of the
requesting state. Accordingly, if after a careful examination of the extradition provisional arrest allowed under the treaty and the implementing law. The
documents the Secretary of Foreign Affairs finds that the request fails to meet the prejudice to the "accused" is thus blatant and manifest.
requirements of the law and the treaty, he shall not forward the request to the
 Petitioner argues that the matters covered by private respondents letter-request
dated July 1, 1999 do not fall under the guarantee of the foregoing provision since
Plainly, the notice and hearing requirements of administrative due process cannot the matters contained in the documents requested are not of public concern. On
be dispensed with and shelved aside. the other hand, private respondent argues that the distinction between matters
vested with public interest and matters which are of purely private interest only
becomes material when a third person, who is not directly affected by the matters
requested, invokes the right to information. However, if the person invoking the
right is the one directly affected thereby, his right to information becomes
Apart from the due process clause of the Constitution, private respondent likewise
absolute.
invokes Section 7 of Article III which reads: Nex old

The concept of matters of public concern escapes exact definition. Strictly

Sec. 7. The right of the people to information on matters of public concern shall be
speaking, every act of a public officer in the conduct of the governmental process is
recognized. Access to official records, and to documents and papers pertaining to
a matter of public concern (Bernas, The 1987 Constitution of the Republic of the
official acts, transactions, or decisions, as well as to government research data
Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects
used as basis for policy development, shall be afforded the citizen, subject to such
which the public may want to know, either because these directly affect their lives
limitations as may be provided by law.
or simply because such matters arouse the interest of an ordinary citizen (Legaspi
v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest
is the people and any citizen has "standing".Mani kx

The above provision guarantees political rights which are available to citizens of
the Philippines, namely: (1) the right to information on matters of public concern,
and (2) the corollary right of access to official records and documents. The general
When the individual himself is involved in official government action because said
right guaranteed by said provision is the right to information on matters of public
action has a direct bearing on his life, and may either cause him some kind of
concern. In its implementation, the right of access to official records is likewise
deprivation or injury, he actually invokes the basic right to be notified under
conferred. These cognate or related rights are "subject to limitations as may be
Section 1 of the Bill of Rights and not exactly the right to information on matters of
provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed.,
public concern. As to an accused in a criminal proceeding, he invokes Section 14,
p. 104) and rely on the premise that ultimately it is an informed and critical public
particularly the right to be informed of the nature and cause of the accusation
opinion which alone can protect the values of democratic government (Ibid.).
against him.
The right to information is implemented by the right of access to information First and foremost, let us categorically say that this is not the proper time to pass
within the control of the government (Bernas, The 1987 Constitution of the upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the
Republic of the Philippines, 1996 ed., p. 337). Such information may be contained Extradition Law implementing the same. We limit ourselves only to the effect of
in official records, and in documents and papers pertaining to official acts, the grant of the basic rights of notice and hearing to private respondent on foreign
transactions, or decisions. relations. Maniks

In the case at bar, the papers requested by private respondent pertain to official The rule of pacta sunt servanda, one of the oldest and most fundamental maxims
government action from the U. S. Government. No official action from our country of international law, requires the parties to a treaty to keep their agreement
has yet been taken. Moreover, the papers have some relation to matters of foreign therein in good faith. The observance of our country's legal duties under a treaty is
relations with the U. S. Government. Consequently, if a third party invokes this also compelled by Section 2, Article II of the Constitution which provides that "[t]he
constitutional provision, stating that the extradition papers are matters of public Philippines renounces war as an instrument of national policy, adopts the generally
concern since they may result in the extradition of a Filipino, we are afraid that the accepted principles of international law as part of the law of the land, and adheres
balance must be tilted, at such particular time, in favor of the interests necessary to the policy of peace, equality, justice, freedom, cooperation and amity with all
for the proper functioning of the government. During the evaluation procedure, no nations." Under the doctrine of incorporation, rules of international law form part
official governmental action of our own government has as yet been done; hence of the law of the land and no further legislative action is needed to make such rules
the invocation of the right is premature. Later, and in contrast, records of the applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992
extradition hearing would already fall under matters of public concern, because ed., p. 12).
our government by then shall have already made an official decision to grant the
extradition request. The extradition of a fellow Filipino would be forthcoming.

The doctrine of incorporation is applied whenever municipal tribunals (or local

courts) are confronted with situations in which there appears to be a conflict
We now pass upon the final issue pertinent to the subject matter of the instant between a rule of international law and the provisions of the constitution or
controversy: Would private respondents entitlement to notice and hearing during statute of the local state. Efforts should first be exerted to harmonize them, so as
the evaluation stage of the proceedings constitute a breach of the legal duties of to give effect to both since it is to be presumed that municipal law was enacted
the Philippine Government under the RP-Extradition Treaty? Assuming the answer with proper regard for the generally accepted principles of international law in
is in the affirmative, is there really a conflict between the treaty and the due observance of the Incorporation Clause in the above-cited constitutional provision
process clause in the Constitution? (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the
conflict is irreconcilable and a choice has to be made between a rule of
international law and municipal law, jurisprudence dictates that municipal law
should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155
[1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984
[1961]) for the reason that such courts are organs of municipal law and are
accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact We disagree.
that international law has been made part of the law of the land does not pertain
to or imply the primacy of international law over national or municipal law in the
municipal sphere. The doctrine of incorporation, as applied in most countries,
decrees that rules of international law are given equal standing with, but are not
In the absence of a law or principle of law, we must apply the rules of fair play. An
superior to, national legislative enactments. Accordingly, the principle lex posterior
application of the basic twin due process rights of notice and hearing will not go
derogat priori takes effect a treaty may repeal a statute and a statute may repeal a
against the treaty or the implementing law. Neither the Treaty nor the Extradition
treaty. In states where the constitution is the highest law of the land, such as the
Law precludes these rights from a prospective extraditee. Similarly, American
Republic of the Philippines, both statutes and treaties may be invalidated if they
jurisprudence and procedures on extradition pose no proscription. In fact, in
are in conflict with the constitution (Ibid.). Manikan
interstate extradition proceedings as explained above, the prospective extraditee
may even request for copies of the extradition documents from the governor of
the asylum state, and if he does, his right to be supplied the same becomes a
demandable right (35 C.J.S. 410).
In the case at bar, is there really a conflict between international law and municipal
or national law? En contrario, these two components of the law of the land are not
pitted against each other. There is no occasion to choose which of the two should
be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty,
Petitioner contends that the United States requested the Philippine Government
as implemented by Presidential Decree No. 1069, as regards the basic due process
to prevent unauthorized disclosure of confidential information. Hence, the secrecy
rights of a prospective extraditee at the evaluation stage of extradition
surrounding the action of the Department of Justice Panel of Attorneys. The
proceedings. From the procedures earlier abstracted, after the filing of the
confidentiality argument is, however, overturned by petitioners revelation that
extradition petition and during the judicial determination of the propriety of
everything it refuses to make available at this stage would be obtainable during
extradition, the rights of notice and hearing are clearly granted to the prospective
trial. The Department of Justice states that the U.S. District Court concerned has
extraditee. However, prior thereto, the law is silent as to these rights. Reference to
authorized the disclosure of certain grand jury information. If the information is
the U.S. extradition procedures also manifests this silence.
truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition
proceedings. Not even during trial. Oldmis o

Petitioner interprets this silence as unavailability of these rights. Consequently, he

describes the evaluation procedure as an "ex parte technical assessment" of the
A libertarian approach is thus called for under the premises.
sufficiency of the extradition request and the supporting documents.
 The basic principles of administrative law instruct us that "the essence of due
process in administrative proceedings is an opportunity to explain ones side or an
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as opportunity to seek reconsideration of the actions or ruling complained of (Mirano
American jurisprudence and procedures on extradition, for any prohibition against vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs.
the conferment of the two basic due process rights of notice and hearing during NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas
the evaluation stage of the extradition proceedings. We have to consider similar School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]).
situations in jurisprudence for an application by analogy. In essence, procedural due process refers to the method or manner by which the
law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA
31 [1997]). This Court will not tolerate the least disregard of constitutional
guarantees in the enforcement of a law or treaty. Petitioners fears that the
Requesting State may have valid objections to the Requested States non-
Earlier, we stated that there are similarities between the evaluation process and a
performance of its commitments under the Extradition Treaty are insubstantial
preliminary investigation since both procedures may result in the arrest of the
and should not be given paramount consideration.
respondent or the prospective extraditee. In the evaluation process, a provisional
arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US
Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioners
theory, because there is no provision of its availability, does this imply that for a
period of time, the privilege of the writ of habeas corpus is suspended, despite How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to
Section 15, Article III of the Constitution which states that "[t]he privilege of the the four corners of Presidential Decree No. 1069?
writ of habeas corpus shall not be suspended except in cases of invasion or
rebellion when the public safety requires it"? Petitioners theory would also infer
that bail is not available during the arrest of the prospective extraditee when the
extradition petition has already been filed in court since Presidential Decree No. Of analogous application are the rulings in Government Service Insurance System
1069 does not provide therefor, notwithstanding Section 13, Article III of the vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission
Constitution which provides that "[a]ll persons, except those charged with offenses (271 SCRA 447 [1997]) where we ruled that in summary proceedings under
punishable by reclusion perpetua when evidence of guilt is strong, shall, before Presidential Decree No. 807 (Providing for the Organization of the Civil Service
conviction, be bailable by sufficient sureties, or be released on recognizance as Commission in Accordance with Provisions of the Constitution, Prescribing its
may be provided by law. The right to bail shall not be impaired even when the Powers and Functions and for Other Purposes), and Presidential Decree No. 971
privilege of the writ of habeas corpus is suspended " Can petitioner validly argue (Providing Legal Assistance for Members of the Integrated National Police who
that since these contraventions are by virtue of a treaty and hence affecting may be charged for Service-Connected Offenses and Improving the Disciplinary
foreign relations, the aforestated guarantees in the Bill of Rights could thus be System in the Integrated National Police, Appropriating Funds Therefor and for
subservient thereto? Ncm other purposes), as amended by Presidential Decree No. 1707, although summary
dismissals may be effected without the necessity of a formal investigation, the
minimum requirements of due process still operate. As held in GSIS vs. Court of petitioners favorable action on the extradition request and the deprivation of
Appeals: private respondents liberty is easily comprehensible.

... [I]t is clear to us that what the opening sentence of Section 40 is saying is that an We have ruled time and again that this Courts equity jurisdiction, which is aptly
employee may be removed or dismissed even without formal investigation, in described as "justice outside legality," may be availed of only in the absence of,
certain instances. It is equally clear to us that an employee must be informed of and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc.
the charges preferred against him, and that the normal way by which the vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268
employee is so informed is by furnishing him with a copy of the charges against SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for
him. This is a basic procedural requirement that a statute cannot dispense with "justice outside legality," since private respondents due process rights, although
and still remain consistent with the constitutional provision on due process. The not guaranteed by statute or by treaty, are protected by constitutional guarantees.
second minimum requirement is that the employee charged with some We would not be true to the organic law of the land if we choose strict
misfeasance or malfeasance must have a reasonable opportunity to present his construction over guarantees against the deprivation of liberty. That would not be
side of the matter, that is to say, his defenses against the charges levelled against in keeping with the principles of democracy on which our Constitution is premised.
him and to present evidence in support of his defenses. Ncmmis

Verily, as one traverses treacherous waters of conflicting and opposing currents of

(at p. 671) liberty and government authority, he must ever hold the oar of freedom in the
stronger arm, lest an errant and wayward course be laid.

Said summary dismissal proceedings are also non-litigious in nature, yet we upheld
the due process rights of the respondent. WHEREFORE, in view of the foregoing premises, the instant petition is hereby
DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent
copies of the extradition request and its supporting papers, and to grant him a
reasonable period within which to file his comment with supporting evidence. The
In the case at bar, private respondent does not only face a clear and present incidents in Civil Case No. 99-94684 having been rendered moot and academic by
danger of loss of property or employment, but of liberty itself, which may this decision, the same is hereby ordered dismissed.
eventually lead to his forcible banishment to a foreign land. The convergence of
SO ORDERED. imprisonment in case of insolvency but not to exceed one-third of the principal
penalty, and to pay the costs. In the case of falsification, in which the defendant
G.R. Nos. L-2708 and L-3355-60 January 30, 1953 pleaded not guilty, he was condemned to an indeterminate penalty of from one
year and eight months to four years and nine months, to indemnify the United
States Army in the amount of $100.46, or subsidiary imprisonment in case of
insolvency, and to pay the costs.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
On this appeal, the seven cases have been consolidated in the briefs and for
decision, and in all of them these questions are raised: (1) former jeopardy, (2)
SEGUNDO M. ACIERTO, defendant-appellant.
want of jurisdiction of the court a quo, on both of which the Solicitor General sides
with the appellant, and (3) sufficiency of the evidence, besides others be briefly
mentioned in the latter part of this opinion.

Segundo M. Acierto in his own behalf.

Office of the Solicitor General Juan R. Liwag and Solicitor Jesus A. Avanceña for For a background, it is well to state the pertinent facts.
appellee.

Prior to August 23, 1947, the accused was employed by the Army of the United
TUASON, J.: States as court martial reporter on a salary basis in the Judge Advocate Section,
Headquarters PHILRYCOM, Camp Rizal, Quezon City. On that date, at this request,
he was "dropped from the strength report of this section" and became a reporter
on piece-work arrangement. As piece worker he was paid for so much work of
This is an appeal from two separate decisions, one in a case for falsification of a reporting and transcribing as he performed. It was when he was working in the
private document and another in six cases for estafa. The charges for estafa are latter capacity, in 1948, that he was said to have made false claims and received
similar in all respects except as to the dates of the commission of the crimes and compensation for services not rendered.
the amounts alleged to have been swindled. In the cases of estafa, the accused
pleaded guilty and was sentenced to four months and one day of arresto mayor in
each, to indemnify the United States Army in the amount of P305.08, P353,
P316.44, P221.08, P233.48 and P209.60, respectively, with subsidiary
Charged with violation of the 94th Article of War, in the belief that defendant was Consequently, on June 19, he was conducted by a United States Military office to
still an employee of, or serving with, the Army subject to its jurisdiction, on March the City Attorney of Quezon City for prosecution under the penal laws of the
20, 1948, he was placed under arrest by the United States Military authorities, Philippines, and the said City Attorney, after conducting a preliminary
detained in a United States Army stockade, and brought to trial before a general investigation, filed the information which initiated the several cases now on
court martial appointed and convened by the Commanding General on April 7, appeal.
1948.

The appellant states in his brief that in all the above seven cases he set up the plea
Before the court martial, the defendant, on arraignment, interposed a special plea of double jeopardy, a statement which is belied by the fact that in all the six cases
to its jurisdiction. But he was overruled, after which, trial proceeded on a plea of for estafa he pleaded guilty. However, the plea of double jeopardy is interwoven
not guilty. On April 8, 1948, after trial, he was found guilty of all the specifications with the plea of want of jurisdiction, in that the former is directly predicated on the
with which he stood charged, and sentenced to be confined at hard labor for sixty proposition, now sustained by the defendant, that the court martial had
months. Immediately after the sentence was promulgated, he was committed to jurisdiction of the offenses and his person. Because of this interrelationship
the general prisoners branch by which, it is alleged, he was subjected to hard labor between the two pleas, we may disregard, for the present, the fact that in the six
like all other military prisoners. cases for estafa double jeopardy, which is a matter of defense, was not invoked.

On June 18, 1948, however, the Commanding General as reviewing authority The Bases Agreement between the Republic of the Philippines and the United
disapproved the above verdict and sentence in an order of the following tenor: States over American Military bases signed on March 14, 1947, and effective upon
its acceptance by the two governments, in part provides:

In the foregoing case of Segundo M. Acierto, a person accompanying and serving

with the Army of the United States without the territorial jurisdiction of the United ARTICLE XIII
States, the sentence is disapproved upon the sole ground that this accused was not
subject to military law and without prejudice to his trial before a proper tribunal.

JURISDICTION
1. The Philippines consents that the United States shall have the right to exercise province in which the offense has been committed within ten days after his arrest,
jurisdiction over the following offenses: and in such a case the Philippines shall exercise jurisdiction.

"(a) Any offense committed by any person within any base except where the Camp Rizal where the crimes in question were committed was, it is conceded, a
offender and offended parties are both Philippine citizens (not members of the military base or installation in 1948. Since paragraphs (b) and (c) of section 1 refer
armed forces of the United States on active duty) or the offense is against the to offenses "committed outside the bases" by members of the armed forces, and
security of the Philippines; since the accused was not, it is also conceded, a member of the armed forces,
these paragraphs may be eliminated from our inquiry into the jurisdiction of the
court martial.

"(b) Any offense committed outside the bases by any member of the armed forces
of the United States in which the offended party is also a member of the armed
forces of the United States; and Paragraph (a) is the provision in virtue in which the appellants disputes the
authority of the civil court to take jurisdiction of his offenses. He contends that he
was an employee of the Army of the United States, and was properly and legally
tried by a duly constituted by a military court.
"(c) Any offense committed outside the bases by any member of the armed forces
of the United States against the security of the United States.

This is the exact reverse of the position defendant took at the military trial. As
stated, he there attacked the court martial's jurisdiction with the same vigor that
2. The Philippines shall have the right to exercise jurisdiction over all other offenses he now says the court martial did have jurisdiction; and thanks to his objections, so
committed outside the bases by any member of the armed forces of the United we incline to believe, the Commanding General, upon consultation with, and the
States. recommendation of, the Judge Advocate General in Washington, disapproved the
court martial proceedings.

3. Whenever for special reasons the United States may desire not to exercise the
jurisdiction reserve to it in paragraphs 1 and 6 of this Article, the officer holding the The question that meets us at the threshold is: Was the defendant an employee of
offender in custody shall so notify the fiscal (prosecuting attorney) of the city or the United States Army within the meaning of the United States Military law?
Defense counsel at the court martial, a United States Military officer, and Lt. Colonel Wurfel cited Winthrop's Military Law and Precedents, 2nd ed., Vols. 1 and
Colonel Seymour W. Wurfel, Staff Judge Advocate General of the Philippines 2, page 100, which says:
Ryukus Command who appeared as amicus curiae in the Court of First Instance and
submitted a memorandum for the prosecution, were one in holding that he was
not. Both counsel thus described the nature of the defendant's work and his
relation with the United States Army. The article to be strictly construed. This article, in creating an exceptional
jurisdiction over civilians, is to be strictly construed and confined to the classes
specified. A civil offender who is not certainly within its terms cannot be subjected
under it to a military trial in time of war with any more legality then he could be
Defendant worked as he pleased and was not amenable to daily control and subjected to such a trial in time of peace. As held by the Judge Advocate General,
disciplines of the Army. Upon the change of his status he ceased to be an integral the mere fact of employment by the Government within the theatre of war does
parts of the Army with the corresponding loss of the rights and privileges he not bring the person within the application of the article. In several cases of public
previously enjoyed and which accrue to regular United States Army employees. employees brought to trial by court martial during the late war the convictions
While the Army could request him to record court martial proceedings, in which were disapproved on the ground that it did not appear that at the time of their
event he was paid under Army regulations for so much work accomplished, he offenses they were "serving with the army" in the sense of this article. (Referring
could not in his status as piece worker be compelled to do so. He could act as to Article of War 2, paragraph 2[d.])
reporter but was not under any obligation to the United States Army to do so. He
was not required to present himself for work nor could he be marked absent for
failure to appear regularly in his office. He was remunerated for so much of his
work of reporting and transcribing as he volunteered to make. He was privileged to Construction of the United States Military Law by the Judge Advocate General of
remain in his home except for the purpose of bringing his finished report to the the United States Army is entitled to great respect, to say the very least. When
office. Then he was at liberty to depart once more. After his discharge as regular such construction is a disclaimed of jurisdiction under the Bases Agreement, the
employee he was in fact paid for records of trial prepared by him from a fund Philippine Government certainly is not the party to dispute it; the fewer the rights
entirely different from that set aside to pay regular employees' salaries. His asserted by the United States the more is enhanced the dignity of the Philippines
position was comparable to that of any vendor who sells commodity to the Army and its interest promoted.
as distinguished from employees who draw regular pay from the organization. The
last time he reported court martial proceedings was on December 13, 1947. Since
that date he had not in any way performed any work for the Army, nor had he
been called upon to act in any case or to report in any section of the Headquarters
Irrespective of the correctness of the views of the Military authorities, the
of the Philippine Ryukus Command for any purpose. Upon the circumstances set
defendant was estopped from demurring to the Philippine court's jurisdiction and
forth, he could not be considered as serving with the Army.
pleading double jeopardy on the strength of his trial by the court martial. A party
will not be allowed to make a mockery of justice by making inconsistent position
which if allowed would result in brazen deception. It is trifling with the courts,
contrary to the elementary principles of right dealing and good faith, for an Then carrying out of the provisions of the bases Agreement is the concern of the
accused to tell one court that it lacks authority to try him and, after he has contracting parties alone. Whether, therefore, a given case which by the treaty
succeeded in his effort, to tell the court to which he has been turned over that the comes within the United States jurisdiction should be transferred to the Philippine
first has committed error in yielding to his plea. authorities is to a matter about which the accused has nothing to do or say. In
other words, the rights granted to the United States by the treaty insure solely that
country and can not be raised by the offender. (Funk vs. State, 208 S. W., 509.) By
the same taken, non-compliance with any of the conditions imposed on the United
From another angle, it seems immaterial whether or not the court martial had States cannot benefit the offender.
jurisdiction of the accused and his crime under the terms of the Bases Agreement.
Granting that it had, the Court of First Instance of Quezon City nevertheless
properly and legally took cognizance of the cases and denied the defendant's
motion to quash. This brings up the last ground for the contention that the Court of First Instance of
Quezon City was without jurisdiction of the cases at bar. The Bases Agreement
provides in Article XIII, paragraph 3, that in case the United States renounce the
jurisdiction reserved to it in paragraphs 1 and 6 of this Article, the officer holding
By the agreement, it should be noted, the Philippine Government merely consents the offender in custody shall so notify the fiscal of the city or province in which the
that the United States exercise jurisdiction in certain cases. The consent was given offense has been committed within 10 days after his arrest. The Solicitor General
purely as a matter of comity, courtesy, or expediency. The Philippine Government invites attention to the fact that "appellant was arrested by the United States Army
has not abdicated its sovereignty over the bases as part of the Philippine territory on March 20, 1948, and confined until June 18, 1948, pending final decision of this
or divested itself completely of jurisdiction over offenses committed therein. case," and, like the appellant, he believes that "this delay of three months does not
Under the terms of the treaty, the United States Government has prior or obviously comply with the requirement of the foregoing section, which is explicit
preferential but not exclusive jurisdiction of such offenses. The Philippine on its terms and provides for no exceptions." In their opinion this delay was fatal.
Government retains not only jurisdictional rights not granted, but also all such
ceded rights as the United States Military authorities for reasons of their own
decline to make use of. The first proposition is implied from the fact of Philippine
sovereignty over the bases; the second from the express provisions of the treaty. The appellant and the Solicitor General labor, we believe, under a
The treaty expressly stipulates that offenses included therein may be tried by the misapprehension as to the purpose and meaning of the treaty provision just cited.
proper Philippine courts if for any special reason the United States waives its This provision is not, and cannot on principle or authority be construed as a
jurisdiction over them. limitation upon the rights of the Philippine Government. If anything, it is an
emphatic recognition and reaffirmation of Philippine sovereignty over the bases
and of the truth that all jurisdiction rights granted to the United States and not
exercised by the latter are reserved by the Philippine for itself.
 been held that a former trial may be pleaded when there has been a trial for the
offense, whether or not there has been a sentence adjudged or the sentence has
The ten-day requirement is of directory character relating to procedure, inserted been disapproved (Dig. JAG [1912] p. 167), the rule is and should be otherwise
merely for the convenience of the Philippine Government. It cannot and does not when the disapproval was made in response to the defendant's plea based on lack
pretend to diminish or impair the fundamental rights of jurisdiction reserved by of jurisdiction. (Ex parte Castello, 8. F. 2nd., 283, 286.) In such case the former trial
the treaty for this Government. It is an obligation imposed on the United States may not be pleaded in bar in the second trial.
precisely with a view to enabling the Philippine Government the better to exercise
its residual authority. The offender has no interest in this clause of the treaty
beyond the right to demand that whoever is to try him should proceed with
reasonable dispatch. To say that failure on the part of the United States to turn the On the question of the sufficiency of the evidence in the case for falsification of a
offender over to the Philippine authorities within ten days works as a forfeiture of private document, (which was the only case tried, in the six cases for estafa the
the Philippine Government's jurisdiction is a paradox. By the appellant's and the defendant having entered the plea of guilty), the court below found that on March
Solicitor General's theory, this Government would be penalized by the fault of the 11, 1948, the defendant submitted a voucher in which he falsely made it appear
other signatory to the treaty over whose action it has no control. In effect, the idea that he was entitled to collect $100.46 from the United States Army for services
is not much unlike divesting a lender of the ownership to his property by reason of allegedly rendered, forging in said document the signature of Captain Eaton J.
the borrower's neglect to return it within the time promised. What is more serious, Bowers, and that by these fraudulent pretenses he succeeded in being paid the
offenses not purely military in character perpetrated in military or naval amount itemized.
reservations would be left unpunished where the military or naval authorities in
appropriate cases fail or refuse to act.

As the lower court said, the defendant did not introduce any evidence to disprove
the above findings, confining himself to raising questions of law.
Partly for the reasons already shown, the plea of double jeopardy is without any
merit. If the court martial had no jurisdiction, jeopardy could no have attached.
This proposition is too well-established and too well-known to need citation of
authorities.
Other legal theories are urged in the appellant's brief but they were not raised in
the court below and, moreover, are obviously unmeritorious. It suffices to say that
on the facts charged and found by the court in case No. 1701 and established by
the proof, the defendant was properly prosecuted for falsification of a private
Even if it be granted that the court martial did have jurisdiction, the military trial in document, even assuming, without deciding, that they also constitute violation of
the instant cases has not placed the appellant in jeopardy such as would bar his other laws.
prosecution for violation of the Philippine penal laws or, for that matter, a second
trial under the Articles of War. Although under Rev. Stat. sec. 1342, art. 2, it has
The judgment appealed from will be affirmed with the modification that the
maximum duration of the appellant's imprisonment shall not be more than
threefold the length of the time corresponding to the most severe of the penalties,
and that from the sentence as thus reduced there shall be deducted one-half of
the preventive imprisonment undergone by the accused.

The appellant will pay the costs of both instances.