EN BANC

[G.R. No. 148571. December 17, 2002.]

GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the Philippines
Department of Justice, petitioners, vs. HON. GUILLERMO G. PURGANAN, Presiding
Judge, Regional Trial Court of Manila, Branch 42, and MARK JIMENEZ a.k.a. MARIO
BATACAN CRESPO, respondents.

RESOLUTION

Before the Court are private respondent's Motion for Reconsideration dated 10 October
2002, petitioner's Comment thereon dated 05 November 2002, private respondent's Motion for Leave of
Court to File and to Admit Additional Arguments in Support of Motion for Reconsideration dated
November 6, 2002, and Reply (to petitioner's Comment) dated November 26, 2002.
First, private respondent insists that the Extradition Court acted properly in granting bail to him. We
have already exhaustively discussed this issue in our Decision and in the Concurring Opinion of Mr.
Justice Antonio T. Carpio. Thus, we will not belabor our ruling on this point. Suf ce it to say that
petitioner's repeated invocation of the Extradition Court's grant of bail has not convinced us that he
deserves bail under the exception laid down in our Decision, namely, "(1) that, once granted bail, the
applicant will not be a ight risk or a danger to the community; and (2) that there exists special,
humanitarian and compelling circumstances including, as matter of reciprocity, those cited by the
highest court in the requesting state when it grants provisional liberty in extradition cases therein."
There has been no clear and convincing showing as to the absence of ight risk and the nonendangerment of the community, or as to the existence of special, humanitarian and compelling
circumstances justifying grant of bail.
Second, private respondent claims that our Decision did not make an express nding of grave abuse of
discretion on the part of the lower court. This is incorrect. On page 24 of our Decision, we plainly stated:
"Hence, after having already determined therefrom that a
prima facie nding did exist, respondent judge gravely abused his discretion when he set the matter for
hearing upon motion of Jimenez." Such grave abuse continued to characterize the subsequent actions of
Judge Purganan in illegally granting bail to private respondent. Again, we will not repeat here why
respondent does not deserve temporary liberty. This point has been already exhaustively taken up in
our Decision and in the Opinions individually written by the members of the Court.
Further, contrary to Jimenez's claims, the Extradition Court did not negate the ight risk posed by him. It
did not make a nding on ight risk as it considered the issue irrelevant, having already determined bail to
be a matter of right. Without making any nding on ight risk, it found the capacity to ee subservient to
"the bene ts that respondent may be able to deliver to his constituents" despite the absence from the
records of evidence showing the existence of such benefits.
And in any event, in his Memorandum, private respondent submitted factual issues i.e., existence of
special circumstances and absence of ight risk for the consideration of this Court. He even reiterated
some of those factual submissions in his Motion for Reconsideration. He is therefore deemed estopped
to claim that this Court cannot, on certiorari, address factual issues and review and reverse the factual
ndings of the Extradition Court.
Third, private respondent's arguments (1) that the Extradition Court exercised due discretion in its grant
of bail and (2) that our "ruling that bail is not a matter of right in extradition cases is contrary to
prevailing law and jurisprudence" are neither novel nor deserving of further rebuttal. Again, they have
been extensively taken up in Decision as well as in Concurring, Separate and Dissenting Opinions.
Fourth, private respondent argues that allegedly our Decision violates his due process rights. Again, we
have discussed this matter in our Decision saying that, in its simplest concept, due process is merely
the opportunity to be heard which opportunity need not always be a prior one. In point of fact, private
respondent has been given more than enough opportunity to be heard in this Court as well as in the
Extradition Court. Even his Motion for Reconsideration has been given all the chances to persuade by
way of allowing "additional arguments" in his Motion dated November 6, 2002 and Reply. These latter
pleadings are normally not allowed, but precisely because this Court wanted to give him more than
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enough opportunity to be heard and to argue, we have bent backwards and admitted these additional
pleadings.
Finally, private respondent contends that as a member of Congress, he is immune from arrest "arising
from offenses punishable by not more than six (6) years imprisonment," saying that he cannot be
prevented from performing his legislative duties because his constituents would be disenfranchised. He
perorates that a member of Congress may be suspended or removed from of ce only by two thirds vote
of the House of
Representatives. TaEIAS
Citing People v. Jalosjos, our Decision (pp. 38-40) has already debunked the disenfranchisement
argument. Furthermore, our Decision does not in any manner suspend or remove him from of ce.
Neither his arrest or detention arising from the extradition proceeding will constitute his suspension or
removal from office. That is clear enough.
While equal protection and reasonable classi cations are not directly in issue in this case, we
nevertheless stress, paraphrasing Jalosjos, that respondent's election to the position of congressman,
with the concomitant duty to discharge legislative functions, does not constitute a substantial
differentiation which warrants placing him in a classi cation or category apart from all other persons con
ned and deprived of their liberty pending resolution of their extradition cases. We reiterate that lawful
arrest and temporary con nement of a potential extraditee are germane to the purposes of the law and
apply to all those belonging to the same class.
As we have stated, the procedure adopted by the Extradition Court of rst notifying and hearing a
prospective extraditee before the actual issuance of the warrant for his arrest, is tantamount to giving
notice to ee and avoid extradition. Whether a candidate for extradition does in fact go into hiding or not
is beside the point. In the nal analysis, the method adopted by the lower court was completely at
loggerheads with the purpose, object and rationale of the law, and overlooked the evils to be remedied.
As already suggested in our Decision (p. 32), private respondent can avoid arrest and detention which
are the consequences of the extradition proceeding simply by applying for bail before the courts trying
the criminal cases against him in the USA. He himself has repeatedly told us that the indictments
against him in the United States are bailable. Furthermore, he is capable, nancially and otherwise, of
producing the necessary bail in the US. Why then has he not done so?
Otherwise stated, Respondent Jimenez has the actual power to lift his arrest and detention arising from
his extradition by simply and voluntarily going to and filing bail in the USA.
AT BOTTOM, private respondent's Motion for Reconsideration presents no new or substantial arguments
which have not been presented in his prior pleadings and which have not been taken up in our Decision.
His present allegations and asseverations are mere rehashes of arguments previously presented to us or
are mere restatements of the Separate and Dissenting Opinions which were already adequately
discussed in our Decision. In short, private respondent has not given any compelling reason to warrant a
reversal or modification of our earlier rulings.
WHEREFORE, the Motion for Reconsideration is hereby DENIED with finality.
SO ORDERED.
Davide, Jr., C .J ., Mendoza, Panganiban, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr.,
and Azcuna, JJ ., concur.
Bellosillo and Puno JJ ., the latter joined by Quisumbing, J ., reiterate their Separate Opinions.
Vitug and Ynares-Santiago, JJ ., both joined by Sandoval-Gutierrez, J ., led their Dissenting Opinions.

Separate Opinions
VITUG, J p:
I vote to grant the motion for reconsideration and maintain my dissent.
Extradition is an exceptional measure
running against the tradition of asylum
International Extradition is a process under which a sovereign state surrenders to another sovereign
state a person accused in a case or a fugitive offender in the latter state. 1 The practice has its origins
as early as the ancient Egyptian, Chinese, Chaldean and AssyroBabylonian civilizations. 2 The surrender
of a person who has been granted the privilege of presence or refuge in the requested state is deemed
to be an exceptional measure running against the tradition of asylum and hospitality of the requesting
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state, and it has given rise to the speculation that the term "extradition" evolved from what used to be
then known as "extra-tradition." 3 The widely accepted explanation for the term still appears to be the
Latin original extradere on pacts and treaties. The rst recorded extradition treaty in the world dates
circa 1280 BC, where Rameses II, Pharaoh of Egypt, and King Hattusili III of the Hittites signed a peace
treaty expressly providing for the return of persons sought by each sovereign taking refuge in the
territory of the other. Since then, however, only the practice of Greece and Rome on extradition
arrangements evidently found their way into European texts of international law. 4 The participants of
the process remained the same over time the two states and the individual sought to be extradited.
But while, historically, extradition was for the purpose of obtaining the surrender of political offenders,
the trend, starting in the 19th century, has been to refuse the extradition of a person sought for political
crimes. This shift can be explained partly to the emergence of humanitarian international law which has
given impetus to a new legal status of one of the participants, i.e., the individual, thus placing some
limitations on the power of the respective sovereigns that did not historically exist. 5

Extradition, nevertheless, does not find

basis in Customary International Law
International customary law is, as its name suggests, created by custom. It is one of the two (the other
being treaties) primary law-creating processes of international law. Its evolution, according to
Schwarzenberger, 6 can be traced to the early development of a global society when international law
consisted primarily of express agreements, which the parties freely accepted as legally binding between
or among themselves. Little was taken for granted, and everything that was considered if only remotely
relevant had been incorporated into the text of these treaties. Some of the rules were found to be so
convenient and generally acceptable that their inclusion in the succeeding agreements gradually
became non-essential. Time hardened them into international customary law. International customary
law has two constitutive elements: (1) a general practice of sovereign states and (2) the acceptance by
the states of this general practice as law. 7 In the Lotus (1927) and Asylum (1950) cases, the World
Court ruled that to prove the
existence of a rule in international customary law, it is necessary to establish not only that States act a
certain way but that they do so because they recognize a legal obligation to this effect, i.e., with or
without a treaty. 8
Despite its ancient roots, extradition, as it is presently exercised by states, adopts the view represented
by Puffendorf who argues that the duty to extradite is only an imperfect obligation which requires an
explicit agreement in order to become fully binding under international law and secure reciprocal rights
and duties of the contracting states. 9 The exception would be with respect to international crimes, such
as terrorism and genocide, in which extradition is seen as being a de nite legal duty. As D.W. Grieg so
bluntly puts it,
there exists no duty to extradite under customary international law. 10 Prevailing practice among states
indeed supports the conclusion that the duty to extradite can be demanded only by virtue of a treaty,
whether bilateral or multilateral; 11 conversely, in its absence, there is no legal right to demand and no
corresponding obligation to extradite. Once, of course, an extradition treaty is concluded, respect for
and compliance with the treaty obligation is, under the international principle of pacta sunt servanda,
expected from the states that enter into the agreement.
Neither can extradition be considered a
generally accepted principle of
international law
Article 38 (1) (c) of the Statute of the International Court of Justice refers to the "general principles of
law" recognized by civilized nations as being a source of law which comes after customary law,
international conventions and treaties, all of which are based on the consent of nations. 12 Article 38 (1)
(c) is identi ed as being a "secondary source" of international law and, therefore, not ranked at par with
treaties and customary international law. 13 The phrase is innately vague; and its exact meaning still
eludes any general consensus. The widely preferred opinion, however, appears to be that of Oppenheim
which views "general principles of law" as being inclusive of principles of private or municipal law when
these are applicable to international relations. 14 Where, in certain cases, there is no applicable treaty
nor a generality of state practice giving rise to customary law, the international court is expected to rely
upon certain legal notions of justice and equity in order to deduce a new rule for application to a novel
situation. 15 This reliance or "borrowing" by the international tribunal from general principles of
municipal jurisprudence is explained in many ways by the fact that municipal or private law has a higher
level of development compared to international law. Brownlie submits that the term "generallyaccepted
principles of international law" could also refer to rules of customary law, to general principles of law, or
to logical propositions resulting from judicial reasoning on the basis of existing international law and
municipal law analogies. 16
In order to qualify as a product of the subsidiary law-creating process, a principle of law must fulll three
requirements: (1) it must be a general principle of law as distinct from a legal rule of more limited
functional scope, (2) it must be recognized by civilized nations, and (3) it must be shared by a fair
number of states in the community of nations. 17 Examples of these principles, most of which are drawn
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from Roman law, encompasses rules on prescription, estoppel, res judicata, 18 consent and pacta sunt
servanda. It can also include generally accepted principles enshrined under the Universal Declaration of
Human Rights, such as the basic human right to life and liberty without distinction as to race, color, sex,
race language or religion, political or other opinion, nationality, social origin, property, birth or other
status. 19 At the moment, extradition, at most a process resorted to by states under the policy of
cooperation and comity with each other, does not qualify as a generally accepted principle of
international law nor as being thereby incorporated and deemed part of the law of the land under Section
11, Article II, of the 1987 Philippine Constitution. 20
Clarifying the term "generally-accepted principles of international law" during the deliberations of the
1987 Constitutional Commission, Commissioner Adolfo S. Azcuna points out that "(w)hen we talk of
generally-accepted principles of international law as part of the law of the land, we mean that it is part
of the statutory part of laws, not of the Constitution. 21
The remark is shared by Professor Merlin M. Magallona who expresses that the phrase "as part of the
law of the land" in the incorporation clause refers to the levels of legal rules below the Constitution such
as legislative acts and judicial decisions. Thus, he contends, it is incorrect to so interpret this phrase as
including the Constitution itself because it would mean that the "generally-accepted principles of
international law" falls in parity with the Constitution. 22
A treaty being the primary source of the
obligation to extradite has given
occasion to a lack of cohesive and
uniform standards on extradition
Not nding basis in customary law and failing to qualify as a generally-accepted principles of international
law, the present state of international law on the return of fugitives for trial is hypothesized by Brownlie:
"With the exception of alleged crimes under international law, surrender of an alleged criminal cannot
be demanded of right in the absence of treaty." 23 The result has been a failure of consistency in
extradition practice among states. Indeed, the reality is that there is to date no uniform standard
applicable to all states. D.W. Gregg 24 attributes this lack of "universal" and cohesive standards in the
extradition process to the adoption of a variety of procedures which can be as diverse as the contracting
states would want them to be. In formulating their extradition treaties, contracting states insert
particular provisions and stipulations to address specic particularities in their relationships. Thus,
extradition under American law is different from that under English law; to illustrate, the English
Extradition Act of 1870 requires that the offense, for which a fugitive is to be extradited, be also
considered a crime under English law. No such requirement, upon the other hand, exists under the US
Extradition Act, which limits "extraditable crimes" to those enumerated under the treaty, regardless of
whether the same are considered crimes under its laws. While both England and the United States are
amenable to extraditing their own nationals, France and Belgium absolutely refuse to do so. This refusal
to surrender one's own nationals is likewise adopted by most states in Continental Europe which, under
their own municipal laws, are obliged to unconditionally reject any request for the surrender of their own
nationals, preferring to try them under their own laws even though the offense is committed abroad.
While Common Law countries require a prima facie showing of guilt before they surrender a fugitive,
almost all other legal systems require only that the offense be committed in the jurisdiction of the
demanding state. 25 In the United States, extradition is demanded with an opportunity for a judicial
hearing, while in other countries, extradition is exclusively an administrative function. 26 It may also
happen that a single state may have as many extradition processes as the number of extradition
treaties it has with other countries. Thus, while the general extradition process with England is governed
by the Extradition Act of 1870, any extradition it may undertake with member states of the British
Commonwealth is governed by the Fugitive Act of 1967. 27 Fenwick, another recognized authority in
international law, concludes "Since extradition is effected as the result of the provisions of treaties
entered into by the nations two by two, it is impossible to formulate any general rule of law upon the
subject." 28
The elevated status of a treaty over that
of an ordinary statute is taking ground
The International Tribunal, has consistently held that, in consonance with the Vienna Convention, a state
cannot plead provisions of its own laws or de ciencies in that law in an answer to a claim against it for
an alleged breach of its obligations under international law. 29 From the standpoint of International Law
and of the International Court, municipal laws are merely expressions of the will and constitute the
activities of the states within its boundaries in the same manner as do ordinary legal decisions or
administrative measures. 30 But, viewed domestically, reactions have been varied. Differing internal
laws among the members of the international community has resulted in the divergence of responses
when treaty law clashes with ordinary municipal law.

In the United Kingdom, despite pronouncements that the law of nations is "adopted in its full extent by
common law and is held to be part of the law of the land," cases decided since 1876 point to the
displacement of the doctrine of incorporation by that of transformation, viz.: customary law is part of
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the law of England only insofar as the rules have been clearly adopted and made part of England by
legislation, judicial decision, or established usage. 31 In the United States there has not been much
hesitation in recognizing the priority of legislative enactment when passed not only in contravention of
established custom but even of the provisions of a speci c treaty. 32 Meeting objection to the validity of
a tax on immigrants as a violation of the "numerous treaties of the US government with friendly
nations," the United States Supreme Court, in the Head Money Cases (112 US 580 [1884]), observed: A
treaty, then, is a law of the land as an act of Congress whenever its provisions prescribe a rule by which
the rights of the private citizen or subject may be determined, and when such rights are of a nature to
be enforced in a court of justice, courts resort to treaties for a rule of decision of the case as it would to
a
statute. Nevertheless, added the Court, "so far as a treaty made by the US with any foreign nation can
become subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress
may pass for its enforcement, modi cation or repeal." In France, a treaty has supremacy over an
inconsistent prior statute as long as the other state party to the agreement accords a similar superiority
in its domestic forum. French precedent also exists for treaty supremacy over a subsequent inconsistent
statute. 33 The European Court once ruled that the European Economic Community Treaty has
precedence over national law, even if the national law were later in time. 34
This ambivalent attitude towards the relationship between international and municipal law exempli es
the still on-going debate between two schools of thought "monism" and "dualism". Monists believe
that international law and domestic law are part of a single legal order; international law is
automatically incorporated into each nation's legal system and that international law is supreme over
domestic law. 35 Monism requires that domestic courts "give effect to international law, notwithstanding
inconsistent domestic law, even constitutional law of a constitutional character." 36 Dualists, however,
contend that international law and domestic law are distinct, each nation ascertaining for itself and to
what extent international law is incorporated into its legal system, and that the status of international
law in the domestic system is determined by domestic law. 37 Under this view, "when municipal law
provides that international law applies in whole or in part within our jurisdiction, it is but an exercise of
the authority of municipal law, an adoption or transformation of the rules of international law. 38
In the Philippines, while speci c rules on how to resolve con icts between a treaty law and an act of
Congress, whether made prior or subsequent to its execution, have yet to be succinctly de ned, the
established pattern, however, would show a leaning towards the dualist model. The Constitution exempli
ed by its incorporation clause (Article II, Section 2), as well as statutes such as those found in some
provisions of the Civil Code and of the
Revised Penal Code, 39 would exhibit a remarkable textual commitment towards
"internalizing" international law. The Supreme Court itself has recognized that "the principle of
international law" are deemed part of the law of the land as a condition and as a consequence of our
admission in the society of nations. 40
The principle being that treaties create rights and duties only for those who are parties thereto pacta
tertiis nec nocre nec prodesse possunt it is considered necessary to transform a treaty into a national
law in order to make it binding upon affected state organs, like the courts, and private individuals who
could, otherwise, be seen as nonparties. 41 The US-RP Extradition Treaty in particular, undoubtedly
affects not only state organs but also private individuals as well. It is said that, in treaties of this nature,
it should behoove the state to undertake or adopt the necessary steps to make the treaty binding upon
said subjects either by incorporation or transformation. 42 Article 2, Section 2, of the 1987 Philippine
Constitution provides for an adherence to general principles of international law as part of the law of the
land. One of these principles is the basic rule of pacta sunt servanda or the performance in good faith of
a state's treaty obligations. Pacta sunt servanda is the foundation of all conventional international law,
for without it, the superstructure of treaties, both bilateral and multilateral, which comprise a great part
of international law, could well be inconsequential. Existing legislation contrary to the provisions of the
treaty becomes invalid, but legislation is necessary to put the treaty into effect. 43 The constitutional
requirement that the treaty be concurred in by no less than two-thirds of all members of the Senate
(Article 21, Article VII) is, for legal intent and purposes, an equivalent to the required transformation of
treaty law into municipal law.
In preserving harmony between treaty law and municipal law, it is submitted 1) That treaty law has
the effect of amending, or even repealing an inconsistent municipal statute, a later enactment being
controlling, 2) but that an inconsistent municipal statute subsequently passed cannot modify treaty law,
without the concurrence of the other state party thereto, following the generally accepted principle of
pacta sunt servanda. As so observed by Fenwick: "Legislation passed, or administrative action taken
subsequent to the adoption of the treaty and in violation of its provisions is invalid, but this should be
declared so by the appropriate agency of national government. In like manner, in doubtful cases where
the national legislation or administrative ruling is open to different interpretations, the courts of the
state will give the benefit of the doubt to the provisions of the treaty.
A treaty, nevertheless, cannot override
the Constitution; in case of conflict, the
Constitution must prevail
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When a controversy calls for a determination of the validity of a treaty in the light of the Constitution,
there is no question but that the Constitution is given primary consideration.
44 The deference to the interpretation of the national law by competent organs of a state, was exhibited
by the Permanent Court of International Justice in the case of Serbian Loans 45 where it held that the
construction given by the Highest Court of France on French law should be followed. When a state,
through its government, concludes a treaty with another state, the government of the latter has no
reason and is not entitled to question the constitutionality of the act of the former. 46 But this rule does
not prevent the government of a state, after having concluded a treaty with another state, from
declaring the treaty null and void because it is made in violation of its own constitution. 47
In the United States, treaties are regarded as part of the law of the land but this general rule is qualied
by the stipulation that a treaty must not be violative of the Constitution. 48 The United States
government, in carrying out its treaty obligations, must conform its conduct to the requirements of the
Constitution which override the provisions of a treaty that may be contrary to any speci c constitutional
right. 49 In Reyes vs. Bagatsing 50 this Court has had the occasion to resolve the see-sawing interests of
preserving fundamental freedoms such as free speech and assembly, as espoused by the members of
the AntiBases Coalition seeking permit to hold a rally in front of the American Embassy and the
corresponding international obligation of the state to protect the integrity and safety of diplomatic
mission and premises under the Vienna Convention. While holding that the prohibition against holding
rallies within a 500 meter radius from any foreign mission is valid, the ponencia sees a possible scenario
that in case a treaty or a general principle of international law is found to be in irreconcilable con ict
with Constitutional mandates, the Court would uphold the latter every time, even to the possible
detriment of its obligations under international law. This preeminence of the Constitution over any treaty
is not hard to explain. The Constitution is the act of the people from whom sovereignty emanates. It re
ects the popular will. A treaty, on the other end, is merely negotiated by the treatymaking authority.
Surely a few good men, themselves mere delegates of the sovereign people, cannot be permitted to
thwart the intent of the Constitution. An agent could never go beyond the mandate of the agency under
whose authority he acts.
The 1987 Philippine Constitution has its
own standards for the grant of bail
No country is under any legal obligation to adopt, or blindly be in conformity with, procedures from other
jurisdictions. The proposed solution of developing a "special circumstances standard" in determining
whether bail should be granted or not, following what could be considered to be mere pro hac vice
pronouncements of some foreign courts, might not be apropos. Indeed, setting up the so-called "special
circumstances standard" would be to ignore our own constitutional mandate on bail.
Section 13, Article III, of the 1987 Constitution clearly sets the parameters for the judicial exercise of the
grant of bail
"All persons, except those charged with offenses punishable by reclusion perpetua,
when evidence of guilt is strong, shall, before conviction, be bailable by suf cient
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."

Starting with the declaration that the right to bail is available to all persons, the Constitution
proceeds to de ne its exceptions and quali cations 1) when a criminal offense is a capital one and
the evidence of guilt is strong, and 2) when granted the bail shall not be excessive. The
circumstance of "high risk of ight" upon which the main decision anchors its refusal to grant bail is
conspicuously absent from the recital. The Eighth Amendment of the US Federal Constitution, unlike
the Philippine Constitution does not categorically provide for bail as a matter of right. Thus,
wrestling with the compatibility of the grant of bail in extradition proceedings with basic
constitutional guarantees, which US judges have been faced with, should not be our dilemma.
TaCEHA
Extradition proceedings are part of
the criminal process
Verily, an extradition proceeding before the extradition court forms part of the criminal process. It is
predicated on criminal indictment of an extraditee. Like any criminal proceeding, it ultimately ends in
either conviction or acquittal for the potential extraditee. Except for the reality that it involves two
sovereign states, at least, extradition proceedings before the extradition court can be likened to the
preliminary investigation conducted before an investigating scal. Like the investigating scal, the judge
acting in an extradition proceeding does not rule on the issue of guilt or innocence of the potential
extraditee, his main concern being the determination of whether a prima facie case exists against the
potential extraditee. 51 Stated otherwise, both proceedings are an inquiry into whether a person should
stand trial. 52 The right to a preliminary investigation is a component part of due process in the criminal
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justice system. The initial ndings of the investigating scal, which may result in a dismissal of the case,
could spare the respondent from hasty malicious prosecution, as well as the resultant prolonged
anxiety, aggravation and humiliation, that a protracted trial brings. In the same vein, the extradition
process can result in an extended restraint of liberty following arrest that can even be more severe than
the accompanying detention within a single state. 53 Extradition involves, at minimum, administrative
processings in both the asylum state and the demanding state and a forced transportation in between.
54 Thus, the rules governing the extradition process should not
be viewed as existing in a vacuum, totally divergent and isolated from the entire criminal process of
which it, in fact, forms part. Indubitably, bail is available in this country even in the preliminary
investigation stage. The eligibility for bail exists once the person is placed under legal custody regardless
of whether a complaint or information has been led or yet to be filed in court against him. 55
In sum, I yield to the following submissions:
a) The obligation to extradite does not nd basis in customary international law, nor is it
a generally accepted principle of international law, the commitment to extradite
being dependent, by and large, on an extradition treaty between two sovereign
states.
b) There is an absence of a "universal" or "uniform" extradition practice applicable to
all states. This lack of a "standard" extradition procedure should mean that the
Philippines is not obligated to follow extradition practices from other jurisdictions,
particularly when its own Constitution itself has provided for such standards.
c) A treaty, entered into by the delegated authority although occupying an elevated
status in the hierarchy of laws predicated on the principle of pacta servanda, cannot
override the Constitution, the latter being the ultimate expression of the will of the
People from whom all sovereignty emanates. In case conict, the of Constitution must
prevail.
WHEREFORE, I vote to grant the motion for reconsideration.
YNARES-SANTIAGO, J ., dissenting:
I maintain my stand regarding the issues raised in the main decision of this case, as laid out in my
original dissent. However, the ponente raised several points which compel further comment and
discussion on my part.
If the majority's overriding concern is upholding "the government's interest in ful lling its Extradition
Treaty obligations and in cooperating with the world community in the suppression of crime," 1 then I
submit that this policy is adequately served by the denial to a potential extraditee of any notice or
hearing during the evaluation stage of the extradition process. 2 This procedure is peculiar to the
extradition process and must be implemented with goals of extradition in mind. However, once the
extradition petition is led with the extradition court, the threat of deprivation of liberty becomes
imminent, and it is submitted that the Constitutional rights of the accused including the right to bail
begin to attach similarly to the extraditee. SCDaHc
The draft resolution has reasserted its position that admission to bail in extradition cases is reserved to
certain exceptions; it is not the general rule. 3 It has effectively reiterated its formalistic stand that the
constitutional provision on bail will not apply to a case of extradition, where the presumption of
innocence is not at issue. 4 It is interesting to note that, in making such a stand, the ponente cited
former Chief Justice Enrique Fernando. The eminent jurist spoke thus:
[The right to bail] ows from the presumption of innocence in favor of every accused who
should not be subjected to the loss of freedom as thereafter he would be entitled to
acquittal, unless his guilt be proved beyond reasonable doubt. 5 (emphasis supplied)
True, the determination of guilt or innocence is not in issue in extradition proceedings. However, the loss
of precious freedom of the accused most certainly is. Mr. Justice Vitug, in his separate opinion, made the
following apt observations:
The draft ponencia would assume that the Constitution con nes the grant of provisional
liberty to criminal cases, and that it has no application to extradition proceedings. This
assumption would have reason for being if it was solely in criminal cases that a person
could face an imminent threat of deprivation of his right to life or liberty, for indeed, it is
this threat, rather than case nomenclature, that must be the focus and it would be
super cial to think otherwise. While defying a neat de nition, extradition has all the
earmarks of a criminal process an extraditee would suffer deprivations, be denied his
freedom and restricted in his movements, not much unlike a criminal indictee.
Extradition proceedings involve an extended restraint of liberty following arrest,
peculiar to an accused in a criminal case, which can even be more severe than an
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accompanying detention in a single state, for at a minimum, it can mean protracted

proceedings in both the asylum state and the demanding state and a forced
transportation in between. In Herras Teehankee vs. Rovira, the Court observed that bail
is constitutionally available to all persons, even those against whom no formal charges
are filed. 6
It should be borne in mind that the private respondent has most de nitely been indicted, 7 and the
threat to the loss of his freedom is very real. If the purpose of bail is to relieve an accused from the
rigors of imprisonment until his conviction and yet secure his appearance at trial, 8 then by analogy, an
extraditee, who may or may not yet have been charged, and who is threatened with temporary
imprisonment in both the requested and requesting states, should also bene t from the right to bail. Due
to the striking similarity in their circumstances, there is therefore no suf cient basis for distinguishing
between an accused person and a potential extraditee in terms of their entitlement to bail. This
occasion calls for the adherence to the well-entrenched principle ubi lex non distinguit nec
nos distinguere debemos. 9 The Constitutional grant of bail should, as a matter of right, be made
available to the accused and the extraditee alike.
The main decision seems to have brushed away the facts entirely, content in making distinctions where
they are not warranted. The majority sought to draw a distinction by characterizing its stand as one that
is consistent with and in implementation of the Philippines' obligations under the RP-U.S. Extradition
treaty. It further reads thus:
In the absence of any provision in the Constitution, the law or the treaty expressly
guaranteeing the right to bail in extradition proceedings, adopting the practice of not
granting them bail, as a general rule, would be a step towards deterring fugitives from
coming to the Philippines to hide from or evade their prosecutors. 10 (emphasis
supplied)
In answer to this sweeping policy statement, I submit that it is our Constitution itself that governs the
right to bail in extradition eases. As the majority has conceded, the RP-U.S. Extradition Treaty and P.D.
1069 are silent with regard to the question of bail. In case of omissions such as these, Article 31,
paragraph 3 of the Vienna Convention on the Law of Treaties authorizes reference to secondary sources
as aids to interpretation. One of these devices is subsequent practice of a state party in interpreting
said treaty, 11 and the U.S. has resorted to this device on several occasions. 12 The grant of bail by the
U.S. District Court of Las Vegas, Nevada to Mr. Charlie "Atong" Ang, a fugitive whose extradition from
the United States is sought by the Philippine government, 13 can therefore aid in the interpretation of
the RP-U.S. Extradition Treaty, being an example of subsequent state practice. In our jurisdiction, no
case has been decided which lls this gap in the RP-U.S. Extradition Treaty. This area should then be
considered outside the coverage of the treaty and, therefore, covered by municipal law. In our
jurisdiction, the supreme law governing the question of bail is the Constitution, and its hallowed
provisions dictate the general rule that bail is granted as a matter of right, with its denial reserved to
very few and very speci c instances. Being the subject of an extradition request is not one of these
exceptions. CacHES

The draft resolution cites once more my ponencia in People v. Jalosjos 14 as the basis for countering
private respondent's concern that the constituents of his district will be effectively disenfranchised by
his forced absence from of ce. I must once again reiterate that said case is not on all fours with the case
before us. Simply put, a convicted rapist awaiting nal judgment and a man accused of several noncapital crimes, whose extradition is sought by the state that has made the accusations, involve two very
different sets of circumstances, meriting different treatments. Furthermore, the question of
disenfranchisement should be considered in light of the U.S. Federal Rules of Criminal Procedure, which
grant a judicial of cer wide latitude in imposing conditions for the grant of bail, including limitations on
the right to travel. 15 A member of the House of Representatives of the Republic of the Philippines who
is indicted in the U.S. and admitted to bail therein may not be returning to his district and his
constituents any time soon.
It is unfortunate that the draft resolution proposes to summarily deny petitioner's Motion for
Reconsideration. This case could have provided this Court with the opportunity to pass upon a novel
issue and, in the process, uphold the supremacy of Constitutional rights. Instead, the right to bail has
been reduced to a hollow promise and has lost its ef cacy as a fundamental right of the individual.
I vote to GRANT the motion for reconsideration.

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