G.R. No.

153675

April 19, 2007

On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void. On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed. On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001. Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,-a petition for bail which was opposed by petitioner. After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk." On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge. On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application for bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private respondent to post bail, thus: In conclusion, this Court will not contribute to accuseds further erosion of civil liberties. The petition for bail is granted subject to the following conditions: 1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the government; 2. Accused must surrender his valid passport to this Court; 3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order before this Court even in extradition proceeding; and 4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest office, at any time and day of the week; and if they further desire, manifest before this Court to require that all the assets of accused, real and personal, be filed with this Court soonest, with the condition that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that the corresponding lien/annotation be noted therein accordingly.

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine Department of Justice, Petitioner, vs. HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUOZ, Respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee. The facts are: On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997. On July 1, 1997, Hong Kong reverted back to the Peoples Republic of China and became the Hong Kong Special Administrative Region. Private respondent Muoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge. On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent. On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same day, the NBI agents arrested and detained him. On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition andmandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest.

SO ORDERED. On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent judge in his Order dated April 10, 2002. Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings. In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of ones liberty. Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this Court has an occasion to resolve the question of whether a prospective extraditee may be granted bail. In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus: x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando,J., later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpusfinds application "only to persons

judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. At first glance, the above ruling applies squarely to private respondents case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law. On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail to a prospective deportee, held that under the Constitution,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 on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process. The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and

protection to human rights, particularly the right to life and liberty, a reexamination of this Courts ruling in Purganan is in order.

First, we note that the exercise of the States power to deprive an individual of his

liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine,4 have likewise been detained.

criminal proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is it a full-blown civil action, but one that is merely administrative in character.13Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.14 But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently." Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable. Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for over two (2) years without having been convicted of any crime. By any standard, such an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail. While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganancorrectly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail. The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditees rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by

Second, to limit bail to criminal proceedings would be to close our eyes to our

jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights. The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure to secure the necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation proceedings. In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that foreign nationals against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainees right to bail. If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired. Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.8 It is not a

our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met. An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court. In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence." WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch. SO ORDERED.

G.R. No. 148571

September 24, 2002

This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C. Lantion. 5 Pursuant to the existing RP-US Extradition Treaty, 6 the United States Government, through diplomatic channels, sent to the Philippine Government Note Verbale No. 0522 dated June 16, 1999, supplemented by Note Nos. 0597, 0720 and 0809 and accompanied by duly authenticated documents requesting the extradition of Mark B. Jimenez, also known as Mario Batacan Crespo. Upon receipt of the Notes and documents, the secretary of foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action, pursuant to Section 5 of Presidential Decree (PD) No. 1069, also known as the Extradition Law. Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary Restraining Order (TRO) by the RTC of Manila, Branch 25. 7 The TRO prohibited the Department of Justice (DOJ) from filing with the RTC a petition for his extradition. The validity of the TRO was, however, assailed by the SOJ in a Petition before this Court in the said GR No. 139465. Initially, the Court -- by a vote of 9-6 -- dismissed the Petition. The SOJ was ordered to furnish private respondent copies of the extradition request and its supporting papers and to grant the latter a reasonable period within which to file a comment and supporting evidence. 8 Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, 2000 Resolution. 9 By an identical vote of 9-6 -- after three justices changed their votes -- it reconsidered and reversed its earlier Decision. It held that private respondent was bereft of the right to notice and hearing during the evaluation stage of the extradition process. This Resolution has become final and executory. Finding no more legal obstacle, the Government of the United States of America, represented by the Philippine DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Extradition which was docketed as Extradition Case No. 01192061. The Petition alleged, inter alia, that Jimenez was the subject of an arrest warrant issued by the United States District Court for the Southern District of Florida on April 15, 1999. The warrant had been issued in connection with the following charges in Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to defraud the United States and to commit certain offenses in violation of Title 18 US Code Section 371; (2) tax evasion, in violation of Title 26 US Code Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections 1343 and 2; (4) false statements, in violation of Title 18 US Code Sections 1001 and 2; and (5) illegal campaign contributions, in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title 18 US Code Section 2. In order to prevent the flight of Jimenez, the Petition prayed for the issuance of an order for his "immediate arrest" pursuant to Section 6 of PD No. 1069. Before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent Manifestation/Ex-Parte Motion," 10 which prayed that petitioners application for an arrest warrant be set for hearing. In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on June 5, 2001. In that hearing, petitioner manifested its reservations on the procedure adopted by the trial court allowing the accused in an extradition case to be heard prior to the issuance of a warrant of arrest. After the hearing, the court a quo required the parties to submit their respective memoranda. In his Memorandum, Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post bail in the amount of P100,000.

GOVERNMENT OF THE UNITED STATES OF AMERICA, Represented by the Philippine Department of Justice, petitioner, vs. HON. GUILLERMO PURGANAN, Presiding Judge Regional Trial Court of Manila and MARC JIMENEZ a.k.a. MARCIO BATACAN CRESPO, respondent

Davide Jr., CJ, Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Morales and Callejo, Sr.
DECISION PANGANIBAN, J.: In extradition proceedings, are prospective extraditees entitled to notice and hearing before warrants for their arrest can be issued? Equally important, are they entitled to the right to bail and provisional liberty while the extradition proceedings are pending? In general, the answer to these two novel questions is "No." The explanation of and the reasons for, as well as the exceptions to, this rule are laid out in this Decision. The Case Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void and set aside the Orders dated May 23, 2001 1 and July 3, 2001 2 issued by the Regional Trial Court (RTC) of Manila, Branch 42. 3The first assailed Order set for hearing petitioners application for the issuance of a warrant for the arrest of Respondent Mark B. Jimenez. The second challenged Order, on the other hand, directed the issuance of a warrant, but at the same time granted bail to Jimenez. The dispositive portion of the Order reads as follows: WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against respondent Mark Jimenez. Accordingly let a Warrant for the arrest of the respondent be issued. Consequently and taking into consideration Section 9, Rule 114 of the Revised Rules of Criminal Procedure, this Court fixes the reasonable amount of bail for respondents temporary liberty at ONE MILLION PESOS (Php 1,000,000.00), the same to be paid in cash. Furthermore respondent is directed to immediately surrender to this Court his passport and the Bureau of Immigration and Deportation is likewise directed to include the name of the respondent in its Hold Departure List." 4 Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the taking of Jimenez into legal custody. The Facts

The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court below issued its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and fixing bail for his temporary liberty at one million pesos in cash. 11 After he had surrendered his passport and posted the required cash bond, Jimenez was granted provisional liberty via the challenged Order dated July 4, 2001. 12 Hence, this Petition.
13

7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the Philippines with its obligations under the RP-US Extradition Treaty. 8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case entitled Eduardo T. Rodriguez et al. vs. The Hon. Presiding Judge, RTC, Branch 17, Manila, CA-G.R. SP No. 64589, relied upon by the public respondent in granting bail, had been recalled before the issuance of the subject bail orders." 14 In sum, the substantive questions that this Court will address are: (1) whether Jimenez is entitled to notice and hearing before a warrant for his arrest can be issued, and (2) whether he is entitled to bail and to provisional liberty while the extradition proceedings are pending. Preliminarily, we shall take up the alleged prematurity of the Petition for Certiorari arising from petitioners failure to file a Motion for Reconsideration in the RTC and to seek relief in the Court of Appeals (CA), instead of in this Court. 15 We shall also preliminarily discuss five extradition postulates that will guide us in disposing of the substantive issues. The Courts Ruling The Petition is meritorious. Preliminary Matters

Issues Petitioner presents the following issues for the consideration of this Court: I. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an arrest warrant under Section 6 of PD No. 1069. II. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go on provisional liberty because: 1. An extradition court has no power to authorize bail, in the absence of any law that provides for such power. 2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and Section 4, Rule 114 (Bail) of the Rules of Court, as amended, which [were] relied upon, cannot be used as bases for allowing bail in extradition proceedings. 3. The presumption is against bail in extradition proceedings or proceedings leading to extradition. 4. On the assumption that bail is available in extradition proceedings or proceedings leading to extradition, bail is not a matter of right but only of discretion upon clear showing by the applicant of the existence of special circumstances. 5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent received no evidence of special circumstances which may justify release on bail. 6. The risk that Jimenez will flee is high, and no special circumstance exists that will engender a well-founded belief that he will not flee.

Alleged Prematurity of Present Petition

Petitioner submits the following justifications for not filing a Motion for Reconsideration in the Extradition Court: "(1) the issues were fully considered by such court after requiring the parties to submit their respective memoranda and position papers on the matter and thus, the filing of a reconsideration motion would serve no useful purpose; (2) the assailed orders are a patent nullity, absent factual and legal basis therefor; and (3) the need for relief is extremely urgent, as the passage of sufficient time would give Jimenez ample opportunity to escape and avoid extradition; and (4) the issues raised are purely of law." 16 For resorting directly to this Court instead of the CA, petitioner submits the following reasons: "(1) even if the petition is lodged with the Court of Appeals and such appellate court takes cognizance of the issues and decides them, the parties would still bring the matter to this Honorable Court to have the issues resolved once and for all [and] to have a binding precedent that all lower courts ought to follow; (2) the Honorable Court of Appeals had in one case 17 ruled on the issue by disallowing bail but the court below refused to recognize the decision as a judicial guide and all other courts might likewise adopt the same attitude of refusal; and (3) there are pending issues on bail both in the extradition courts and the Court of Appeals, which, unless guided by the decision that this Honorable Court will render in this case, would resolve to grant bail in favor of the potential extraditees and would give them opportunity to flee and thus, cause adverse effect on the ability of the Philippines to comply with its obligations under existing extradition treaties." 18 As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior court has been given, through a motion for reconsideration, a chance to correct the errors imputed to it. This rule, though, has certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved, or (3) in case of urgency. 19 As a fourth

exception, the Court has also ruled that the filing of a motion for reconsideration before availment of the remedy of certiorari is not a sine qua non, when the questions raised are the same as those that have already been squarely argued and exhaustively passed upon by the lower court. 20 Aside from being of this nature, the issues in the present case also involve pure questions of law that are of public interest. Hence, a motion for reconsideration may be dispensed with. Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of certiorari when there are special and important reasons therefor. 21 In Fortich v. Corona 22 we stated: [T]he Supreme Court has the full discretionary power to take cognizance of the petition filed directly [before] it if compelling reasons, or the nature and importance of the issues raised, warrant. This has been the judicial policy to be observed and which has been reiterated in subsequent cases, namely: Uy vs. Contreras, et. al., Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs. Legaspi, et. al. As we have further stated in Cuaresma: x x x. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. x x x. Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the interest of speedy justice and to avoid future litigations so as to promptly put an end to the present controversy which, as correctly observed by petitioners, has sparked national interest because of the magnitude of the problem created by the issuance of the assailed resolution. Moreover, x x x requiring the petitioners to file their petition first with the Court of Appeals would only result in a waste of time and money. That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in our jurisprudence. We reiterate what we said in Piczon vs. Court of Appeals: 23 Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. In the instant petition, we forego a lengthy disquisition of the proper procedure that should have been taken by the parties involved and proceed directly to the merits of the case. In a number of other exceptional cases, 24 we held as follows: This Court has original jurisdiction, concurrent with that of Regional Trial Courts and the Court of Appeals, over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus, and we entertain direct resort to us in cases where special and important reasons or exceptional and compelling circumstances justify the same."

In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.

Five Postulates of Extradition

The substantive issues raised in this case require an interpretation or construction of the treaty and the law on extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its intent. 25 Since PD 1069 is intended as a guide for the implementation of extradition treaties to which the Philippines is a signatory, 26 understanding certain postulates of extradition will aid us in properly deciding the issues raised here. 1. Extradition Is a Major Instrument for the Suppression of Crime. First, extradition treaties are entered into for the purpose of suppressing crime 27 by facilitating the arrest and the custodial transfer 28 of a fugitive 29 from one state to the other. With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. Today, "a majority of nations in the world community have come to look upon extradition as the major effective instrument of international co-operation in the suppression of crime." 30 It is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law. 31 An important practical effect x x x of the recognition of the principle that criminals should be restored to a jurisdiction competent to try and punish them is that the number of criminals seeking refuge abroad will be reduced. For to the extent that efficient means of detection and the threat of punishment play a significant role in the deterrence of crime within the territorial limits of a State, so the existence of effective extradition arrangements and the consequent certainty of return to the locus delicti commissi play a corresponding role in the deterrence of flight abroad in order to escape the consequence of crime. x x x. From an absence of extradition arrangements flight abroad by the ingenious criminal receives direct encouragement and thus indirectly does the commission of crime itself." 32 In Secretary v. Lantion 33 we explained: The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate the extradition of persons covered by treaties duly entered [into] by our government. More and more, crimes are becoming the concern of one world. Laws involving crimes and crime prevention are undergoing

universalization. One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal whose activities threaten the peace and progress of civilized countries. It is to the great interest of the Philippines to be part of this irreversible movement in light of its vulnerability to crimes, especially transnational crimes." Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in order to improve our chances of suppressing crime in our own country. 2. The Requesting State Will Accord Due Process to the Accused Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each others legal system and judicial process. 34 More pointedly, our duly authorized representatives signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited. 35 That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality. 3. The Proceedings Are Sui Generis Third, as pointed out in Secretary of Justice v. Lantion, 36 extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis -- in a class by itself -- they are not. An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x. xxxxxxxxx There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nations foreign relations before making the ultimate decision to extradite."

Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited. 37 Such determination during the extradition proceedings will only result in needless duplication and delay. Extradition is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction. 38 The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable. 39 4. Compliance Shall Be in Good Faith. Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national interest. Fulfilling our obligations under the Extradition Treaty promotes comity 40 with the requesting state. On the other hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity. 41 Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty.42 This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. In other words, "[t]he demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender." 43 Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be found proper. 5. There Is an Underlying Risk of Flight Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in the experience 44 of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee. Indeed, extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting country. 45 Prior acts of herein respondent -- (1) leaving the requesting state right before the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable -- eloquently speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances point to an ever-present, underlying high risk of flight. He has demonstrated that he has the capacity and the will to flee. Having fled once, what is there to stop him, given sufficient opportunity, from fleeing a second time?

First Substantive Issue: Is Respondent Entitled to Notice and Hearing Before the Issuance of a Warrant of Arrest? Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice, that an Extradition Petition has been filed against him, and that petitioner is seeking his arrest -- gives him notice to escape and to avoid extradition. Moreover, petitioner pleads that such procedure may set a dangerous precedent, in that those sought to be extradited -- including terrorists, mass murderers and war criminals -- may invoke it in future extradition cases. On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily deprived of his constitutional right to liberty without due process. He further asserts that there is as yet no specific law or rule setting forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has been filed in court; ergo, the formulation of that procedure is within the discretion of the presiding judge. Both parties cite Section 6 of PD 1069 in support of their arguments. It states: SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of the accused which may be served any where within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case." (Emphasis ours) Does this provision sanction RTC Judge Purganans act of immediately setting for hearing the issuance of a warrant of arrest? We rule in the negative. 1. On the Basis of the Extradition Law It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word "immediate" to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, 46 receiving facts and arguments 47 from them, 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 determination of whether a warrant of arrest should be issued.

By using the phrase "if it appears," the law further conveys that accuracy is not as important as speed at such early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual situation, immediately upon the filing of the petition. From the knowledge and the material then available to it, the court is expected merely to get a good first impression -- a prima facie finding -- sufficient to make a speedy initial determination as regards the arrest and detention of the accused. Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial attorney in the Campaign Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex BB, the Exhibit I "Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers" and enclosed Statements in two volumes; (4) Annex GG, the Exhibit J "Table of Contents for Supplemental Evidentiary Appendix" with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L "Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward" and enclosed Statements in two volumes. 49 It is evident that respondent judge could have already gotten an impression from these records adequate for him to make an initial determination of whether the accused was someone who should immediately be arrested in order to "best serve the ends of justice." He could have determined whether such facts and circumstances existed as would lead a reasonably discreet and prudent person to believe that the extradition request was prima facie meritorious. In point of fact, he actually concluded from these supporting documents that "probable cause" did exist. In the second questioned Order, he stated: In the instant petition, the documents sent by the US Government in support of [its] request for extradition of herein respondent are enough to convince the Court of the existence of probable cause to proceed with the hearing against the extraditee." 50 We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez. 51 Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the accused to answer after receiving the summons. In connection with the matter of immediate arrest, however, the word "hearing" is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary 52 in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings. It is taken for granted that the contracting parties intend something reasonable and something not inconsistent with generally recognized principles of International Law, nor with previous treaty obligations towards third States. If,

therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to be preferred to the unreasonable, the more reasonable to the less reasonable x x x ." 53 Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law could have intended that consequence, for the very purpose of both would have been defeated by the escape of the accused from the requested state. 2. On the Basis of the Constitution Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest. It provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination -- under oath or affirmation -- of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused before the issuance of warrants of arrest. In Ho v. People 54 and in all the cases cited therein, never was a judge required to go to the extent of conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. All we required was that the "judge must have sufficient supporting documents upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause." 55 In Webb v. De Leon, 56 the Court categorically stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest: Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence." At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses. 57 In the present case, validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If the accused were

allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of extraditions. That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a more restrictive one -- not the opposite -- would be justified in view of respondents demonstrated predisposition to flee. Since this is a matter of first impression, we deem it wise to restate the proper procedure: Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they show compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding 58 is possible, the petition may be dismissed at the discretion of the judge. On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings. In our opinion, the foregoing procedure will "best serve the ends of justice" in extradition cases. Second Substantive Issue:

Is Respondent Entitled to Bail? Article III, Section 13 of the Constitution, is worded as follows: Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required."

Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of all persons, including those sought to be extradited. Supposedly, the only exceptions are the ones charged with offenses punishable with reclusion perpetua, when evidence of guilt is strong. He also alleges the relevance to the present case of Section 4 59 of Rule 114 of the Rules of Court which, insofar as practicable and consistent with the summary nature of extradition proceedings, shall also apply according to Section 9 of PD 1069. On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the right to bail to a person who is the subject of an extradition request and arrest warrant.

heard. 64 Where the circumstances -- such as those present in an extradition case -- call for it, a subsequent opportunity to be heard is enough. 65 In the present case, respondent will be given full opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there is no violation of his right to due process and fundamental fairness. Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of his liberty prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently ensured by (1) the DOJs filing in court the Petition with its supporting documents after a determination that the extradition request meets the requirements of the law and the relevant treaty; (2) the extradition judges independent prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest; and (3) his opportunity, once he is under the courts custody, to apply for bail as an exception to the no-initial-bail rule. It is also worth noting that before the US government requested the extradition of respondent, proceedings had already been conducted in that country. But because he left the jurisdiction of the requesting state before those proceedings could be completed, it was hindered from continuing with the due processes prescribed under its laws. His invocation of due process now has thus become hollow. He already had that opportunity in the requesting state; yet, instead of taking it, he ran away. In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations in order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve the Petition for Extradition? His supposed immediate deprivation of liberty without the due process that he had previously shunned pales against the governments interest in fulfilling its Extradition Treaty obligations and in cooperating with the world community in the suppression of crime. Indeed, "[c]onstitutional liberties do not exist in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and palpable government interests." 66 Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase the risk of violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to be extradited are able to evade arrest or escape from our custody. In the absence of any provision -- in the Constitution, the law or the treaty -- expressly guaranteeing the right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors.1wphi1.nt The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 1467 of the Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to cut short their detention here. Likewise, their detention pending the resolution of extradition proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases and the need for their speedy disposition. Exceptions to the No Bail Rule

Extradition Different from Ordinary Criminal Proceedings

We agree with petitioner. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt." 60 It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion." 61 Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. No Violation of Due Process Respondent Jimenez cites the foreign case Paretti 62 in arguing that, constitutionally, "[n]o one shall be deprived of x x x liberty x x x without due process of law." Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not amount to a violation of his right to due process. We iterate the familiar doctrine that the essence of due process is the opportunity to be heard 63 but, at the same time, point out that the doctrine does not always call for a prior opportunity to be

The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave abuse of discretion 68 and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights. 69 Furthermore, we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the "life, liberty or property" of every person. It is "dynamic and resilient, adaptable to every situation calling for its application." 70 Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances 71including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. In short, while this Court is ever protective of "the sporting idea of fair play," it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. Along this line, Jimenez contends that there are special circumstances that are compelling enough for the Court to grant his request for provisional release on bail. We have carefully examined these circumstances and shall now discuss them. 1. Alleged Disenfranchisement While his extradition was pending, Respondent Jimenez was elected as a member of the House of Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000 residents. We are not persuaded. In People v. Jalosjos, 72 the Court has already debunked the disenfranchisement argument when it ruled thus: When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office. In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection. The Constitution guarantees: x x x nor shall any person be denied the equal protection of laws. This simply means that all persons similarly situated shall be

treated alike both in rights enjoyed and responsibilities imposed. The organs of government may not show any undue favoritism or hostility to any person. Neither partiality nor prejudice shall be displayed. Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law? The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly [from] prison. The duties imposed by the mandate of the people are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accusedappellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals. The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded. We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class." 73 It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was already of public knowledge that the United States was requesting his extradition. Hence, his constituents were or should have been prepared for the consequences of the extradition case against their representative, including his detention pending the final resolution of the case. Premises considered and in line with Jalosjos, we are constrained to rule against his claim that his election to public office is by itself a compelling reason to grant him bail. 2. Anticipated Delay

Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be unfair to confine him during the pendency of the case. Again we are not convinced. We must emphasize that extradition cases are summary in nature. They are resorted to merely to determine whether the extradition petition and its annexes conform to the Extradition Treaty, not to determine guilt or innocence. Neither is it, as a rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal action. We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is quite another matter that is not at issue here. Thus, any further discussion of this point would be merely anticipatory and academic. However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail not be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail would be tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more. This we cannot allow. 3. Not a Flight Risk? Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of the extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled during the preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee as the process moves forward to its conclusion, as he hears the footsteps of the requesting government inching closer and closer. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be within reach of our government if and when it matters; that is, upon the resolution of the Petition for Extradition. In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the applicant has been taken into custody and prior to judgment, even after bail has been previously denied. In the present case, the extradition court may continue hearing evidence on the application for bail, which may be granted in accordance with the guidelines in this Decision. Brief Refutation of Dissents The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact, it is a cop-out. The parties -- in particular, Respondent Jimenez -- have been given more than sufficient opportunity both by the trial court and this Court to discuss fully and exhaustively private respondents claim to bail. 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. This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy Memoranda and the Position Papers of both parties. Additionally, it has patiently heard them in Oral Arguments, a procedure not normally observed in the great majority of cases in this Tribunal. Moreover, after the Memos had been submitted, the parties -- particularly the potential extraditee -- have bombarded this Court with additional pleadings -- entitled

"Manifestations" by both parties and "Counter-Manifestation" by private respondent -- in which the main topic was Mr. Jimenezs plea for bail. A remand would mean that this long, tedious process would be repeated in its entirety. The trial court would again hear factual and evidentiary matters. Be it noted, however, that, in all his voluminous pleadings and verbal propositions, private respondent has not asked for a remand. Evidently, even he realizes that there is absolutely no need to rehear factual matters. Indeed, the inadequacy lies not in the factual presentation of Mr. Jimenez. Rather, it lies in his legal arguments. Remanding the case will not solve this utter lack of persuasion and strength in his legal reasoning. In short, this Court -- as shown by this Decision and the spirited Concurring, Separate and Dissenting Opinions written by the learned justices themselves -- has exhaustively deliberated and carefully passed upon all relevant questions in this case. Thus, a remand will not serve any useful purpose; it will only further delay these already very delayed proceedings, 74 which our Extradition Law requires to be summary in character. What we need now is prudent and deliberate speed, not unnecessary and convoluted delay. What is needed is a firm decision on the merits, not a circuitous cop-out. Then, there is also the suggestion that this Court is allegedly "disregarding basic freedoms when a case is one of extradition." We believe that this charge is not only baseless, but also unfair. Suffice it to say that, in its length and breath, this Decision has taken special cognizance of the rights to due process and fundamental fairness of potential extraditees. Summation As we draw to a close, it is now time to summarize and stress these ten points: 1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes and the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused -- or the fugitive who has illegally escaped -- back to its territory, so that the criminal process may proceed therein. 2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein. 3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a 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.

4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition. 5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community; and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case. 6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. 7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and the conscience of society. But it is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-equal and co-independent organs of government. 8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of government has broad discretion in its duty and power of implementation. 9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or excise grave abuse and tyranny. They should not allow contortions, delays and "over-due process" every little step of the way, lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partners simple request to return a fugitive. Worse, our country should not be converted into a dubious haven where fugitives and escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and international cooperation. 10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose.

WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail bond posted by private respondent is CANCELLED. The Regional Trial Court of Manila is directed to conduct the extradition proceedings before it, with all deliberate speed pursuant to the spirit and the letter of our Extradition Treaty with the United States as well as our Extradition Law. No costs. Separate Opinion BELLOSILLO, J.: While I do not absolutely disagree with the well-reasoned ponencia of Mr. Justice Panganiban, I prefer nevertheless to surf with the reflections of Mr. Justice Puno expressed in his Separate Opinion which, in essence, espouse the balancing of the duty of the State to faithfully comply with its commitments under a treaty on one hand, and its responsibility to protect the fundamental rights of its citizens on the other. I wish to express some concerns however, particularly the crucial issue of whether a potential extraditee may apply for and be released on bail during the pendency of the extradition proceedings. This to me should not be ignored. In Northern PR Co. v. North Dakota, 1 Mr. Justice Frankfurter intoned: "The cardinal article of faith of our civilization is the inviolable character of the individual." Thus, fundamental rights and civil liberties, although not unlimited, occupy a place inferior to none in the hierarchy of constitutional values. These are among the most cherished privileges enjoyed by free men, of which it is the sacred duty of the State to maintain and protect against the erosion of possible encroachments, whether minute or extensive, foreign or domestic. It is lamentable however that the position taken by the Government in the instant case amounts to an unpardonable abdication of the duty of protection which it owes to all within its territory under the expediency of a treaty. The Government maintains that an extradition court has no power to authorize bail in the absence of any law conferring such power; and that the 1987 Constitution, as well as the Rules of Court, as amended, applies only to persons arrested and detained for violation of Philippine Laws, but not to extradition proceedings in which courts do not render judgments of conviction or acquittal. The argument is as ingenious as it is fallacious. It is settled that the power to admit to bail exists in extradition proceedings, although as a matter of policy it may only be granted under "exceptional circumstances." This, quintessentially, has been the doctrine advocated in a cavalcade of American cases starting with Wright v. Henkel, 190 US 40 (1902); and worth mentioning, of course, are Paretti v. United States, 112 F.3d 1363 (1977), Bealieu v. Hartigan, 430 F. Supp. 915 (1977), and In re Kirby, et al., 106 F.3d 855(1996); which are also discussed extensively by Mr. Justice Puno. Apart from these cases, there is likewise a considerable number of authorities which support the general view that the power to admit to bail is a necessary incident of the power

to hear and determine cases. 2 In other words, one of the inherent powers of the judiciary with regard to proceedings before it has been the admission of a prisoner to bail where, in the exercise of his discretion, the judge deems it advisable. A fortiori, even in the absence of express statutory grant of authority to courts, judicial power to admit to bail parties properly within their jurisdiction must be deemed to exist. It must be mentioned, however, that this authority is not absolute for the Constitution, statutes and the Rules of Court render it readily subject to limitations. Significantly, both the extradition treaty between the United States and the Philippines, and the Philippine Extradition Law (PD 1069) contain no provision expressly withholding from the courts the power to grant bail. Had the intention of the parties to the treaty been to totally nullify the pre-existing power of the extradition court on the matter of bail, they could have easily provided for it in the treaty. But since they had not done so, it would be reasonable to presume that they had not so intended. Indeed, the treaty fails to even remotely suggest such judicial limitation insisted upon by the Government. Truly, there is neither logic nor persuasion to the suggestion that bail should only be allowed in criminal cases, or that class of cases where courts must "render judgments of conviction or acquittal." Bail as a remedy is available where there is deprivation of liberty prior or during trial. In the 1909 case of United States v. Go Siaco, 3 akin to the situation confronting us, but involving a deportation proceeding, this Court allowed the potential deportee to post bail although a deportation proceeding is not criminal in nature and there was then no law providing for bail in deportation cases x x x x we see no reason why bail should not be allowed in this class of cases. As is said by the Supreme Court, the defendant has committed no crime. In this particular case the defendant was born in this country, has lived here for more than 35 years and is now living here with his mother, a native of the Islands. There is no reason to think that his being at large will be any menace to the people in the locality where he resides, nor is there any reason to believe that his attendance at court abide the judgment which may be entered against him cannot be secured by the giving of bail as in ordinary cases. To refuse him bail is to treat him as a person is treated who has committed the most serious crime known to the law, and while we do not intend to say that this is a criminal proceeding, we do say that some of the machinery used for making the investigation required by Act No. 702 is the machinery of the criminal law, and to it are applicable those provisions of General Orders No. 58, relating to bail. Were we to adopt the view pressed upon us by the Government, it would restrict the reciprocal operation of the treaty, and create a striking lack of symmetry between the rights of Filipinos subject of extradition and that of American extraditees. Filipino citizens sought to be extradited by the United States government will be absolutely denied of the chance at provisional liberty during the pendency of the extradition proceedings against them; while American fugitives from justice sought to be extradited by the Philippine government could always exercise the right to petition for bail, and consequently, enjoy better chances of avoiding the inconvenience of incarceration during the pendency of the extradition proceedings. Certainly, there is no warrant for the discrimination. The Philippines and the United States dealt with each other as equals. Their extradition treaty discloses the intention that they shall stand on the same footing. The governing principles should always be reciprocity and equality. We cannot curtail a citizen's right to freedom on speculations and fears where there exist reasonable mechanisms appropriate to address them. To my mind, the risk of flight does not ipso facto call for denying his right to bail. Trial judges must henceforth weigh carefully

and judiciously other methods to assure the presence of the accused during the proceedings and right after, when he ought to be deported already. Bail may be set at huge amounts or passports cancelled and hold-departure orders issued or border patrols heightened, in order that the extraditee may not flee from our jurisdiction. In this regard, while I agree that it is the extraditee's burden to prove the least likelihood of flight, the extradition court is also entitled to presume that the executive branch has done all it can to forestall his sudden disappearance. The executive branch cannot plead its helplessness and inutility to defeat the grant of bail to the extraditee. In any event, all things being equal, the personal circumstances of respondent Jimenez would negate any idea of flight risk. He is a popular, even notorious, fellow whose face is more frequently than others plastered in the tri-media. His stature as representative for a congressional district in Manila makes escape from Philippine jurisdiction not only embarrassing for him but also constitutive of the offense of abandonment of duty. His family and business interests are said to be strategically placed in this country. Indeed, where respondent Jimenez has more to lose from flight, the possibility thereof appears remote and speculative. Equity especially tilts in favor of respondent Jimenez in light of our ruling in Montano v. Ocampo 4 where we allowed bail to an elected senator of the country who was charged with the capital offenses of murder and frustrated murder. In resolving to grant bail in favor of Senator Montano, this Court took special notice of the accused's official and social standing as senator from which we concluded that flight was remote if not nil despite the capital crimes he had to face. In the same breath, respondent Jimenez is a duly elected Congressman with personal circumstances that will not risk the ignominy of flight, considering further the crimes he is charged with are far less severe and ignoble, since most of them had something to do with election campaign contributions than the seemingly serious indictment for murder and frustrated murder against Senator Montano. If we grant for the sake of argument that the possibility of flight exists, still respondent Jimenez' detention would be unwarranted by law and the Constitution if the only purpose of the confinement is to eliminate a rare odd of danger that is by no means actual, present and uncontrollable. After all the Government is not powerless to deal with or prevent any threat by measures it has the ways and means to implement. The thought eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in connection with the application for bail of ten (10) communists convicted by a lower court for advocacy of a violent overthrow of the United States Government is pertinent and elucidating in principle The Government's alternative contention is that defendants, by misbehavior after conviction, have forfeited their claim to bail. Grave public danger is said to result from what they may be expected to do, in addition to what they have done since their conviction. If I assume that defendants are disposed to commit every opportune disloyal act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted x x x x If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there is a very practical aspect of this application which must not be overlooked or underestimated - that is the disastrous effect on the reputation of American justice if I should now send these men to jail and the full Court later decide that their conviction is invalid. All experience with litigation teaches that existence of a substantial question about a conviction implies a more than negligible risk of reversal. Indeed this experience lies hack of our rule permitting and practice of allowing bail where such

questions exist, to avoid the hazard of unjustifiably imprisoning persons with consequent reproach to our system of justice x x x x Risks, of course, are involved in either granting or refusing bail. I am not naive enough to underestimate the troublemaking propensities of the defendants. But, with the Department of Justice alert to the dangers, the worst they can accomplish in the short time it will take to end the litigation is preferable to the possibility of national embarrassment from a celebrated case of unjustified imprisonment of Communist leaders. Under no circumstances must we permit their symbolization of an evil force in the world to be hallowed and glorified by any semblance of martyrdom. The way to avoid that risk is not to jail these men until it is finally decided that they should stay jailed. If the commentary is not comparable with ours on the issues presented, its underlying principle is of universal application. If only to preserve our regime of civil liberties and stem a precedent where bail is unscrupulously disallowed, respondent Jimennez may be placed under the surveillance of the authorities or their agents in such form and manner as may be deemed adequate to insure that he will be available anytime when the Government is ready to extradite him, although the surveillance should be reasonable and the question of reasonableness should be submitted to the court a quo for remedial measures in case of abuse. He may also be required to put up a bond with sufficient surety or sureties to ensure that his extradition is not thwarted. In our society - and even in the United States, I am sure - freedom from bodily restraint has always been at the core of the civil liberties protected by the Constitution. To unduly sacrifice the civil liberties of an individual by reason of an unfounded fear of being unable to fulfill treaty obligations, would be to render impotent the ideals of the dignity of the human person, thereby destroying something of what is noble in our way of life. Certainly, if civil liberties may be safely respected without imminently or actually impairing faithful compliance with treaty obligations, as in this case, then there is no valid reason for disregarding them. I wish to emphasize, however, lest the best of my intentions be misconstrued, that it is not my purpose here to encourage, much less foment, dishonor of the treaty duly entered into by our Government. By all means we have to fulfill all our international commitments, for they are not mere moral obligations to be enforced at the whims and caprices of the State. They create legally binding obligations founded on the generally accepted principle in international law of pacta sunt servanda which has been adopted as part of the law of our land. But, in so doing, we must be ever conscious of the need to balance in one equation our commitments under the treaty, and the equally important right of the individual to freedom from unnecessary restraint. As the vast powers and enormous resources of both the United States of America and the Republic of the Philippines are marshalled against a puny individual that is respondent Jimenez, he is certainly entitled to some measure of protection to ensure that no unwarranted intrusions or undue curtailment of his liberty is committed. I vote to REMAND the petition to the court a quo to ensure that proper safeguards are afforded respondent in the course of the extradition proceedings.

This is a case of first impression involving not only the states interest to comply with its extradition treaty with the United States but also its equally imperative duty to protect the constitutional rights of its citizens to liberty and to due process. Our decision will affect important rights of all our citizens facing extradition in foreign countries. Personalities should not therefore bend our decision one way or the other for the protection of the Bill of Rights extends indifferently to all alike. We begin with the unfudged facts. The records reveal that when the private respondent learned of the filing of the petition for extradition against him and before the extradition court could issue any summons, he filed a motion to be furnished a copy of the petition and to set for hearing petitioners request for the issuance of warrant of arrest. Alternatively, he prayed that he be allowed to post bail for his temporary liberty. Respondent judge granted private respondents motion. After hearing, he issued a warrant for the arrest of private respondent but allowed him to post bail. Petitioner assails the orders of the respondent judge and submits the following issues for resolution by this Court: I. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an arrest warrant under Section 6 of P.D. No. 1069. II. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go on provisional liberty because: 1. An extradition court has no power to authorize bail in the absence of any law that provides for such power. 2. Section 13, Article III (right to bail clause) of the 1987 Constitution and section 4, Rule 114 (Bail) of the Rules of Court, as amended, which were relied upon, cannot be used as bases for allowing bail in extradition proceedings. 3. The presumption is against bail in extradition proceedings or proceedings leading to extradition. 4. On the assumption that bail is available in extradition proceedings or proceedings leading to extradition, bail is not a matter of right but only of discretion upon clear showing by the applicant of the existence of special circumstances. 5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent received no evidence of special circumstances which may justify release on bail.

Separate Opinion PUNO, J:

6. The risk that Jimenez will flee is high, and no special circumstance exists that will engender a well-founded belief that he will not flee. 7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the Philippines with its obligations under the RP-US Extradition Treaty. 8. The Court of Appeals resolution promulgated on May 10, 2001 in the case entitled Eduardo T. Rodriguez, et al. vs. Hon. Presiding Judge, RTC, Branch 17 Manila, CA- G.R. SP No. 64589, relied upon by the public respondent in granting bail, had been recalled before the issuance of the subject bail orders." The substantive issues are shortlisted as follows: (1) whether or not the private respondent is entitled to notice and hearing before a warrant for his arrest can be issued; and (2) whether or not he is entitled to post bail for his provisional liberty while the extradition proceedings are pending. With due respect, I offer the following views on the issues as hewn above, viz: I. The right to notice and hearing of private respondent as an extraditee. The first issue demands a two-tiered analysis based on the following questions: (1) Can the private respondent, as potential extraditee, demand as a matter of right, that he be furnished a copy of the petition for extradition before the summons and/or the warrant of arrest are issued by the extraditing court? (2) Can he demand a hearing for the purpose of determining the necessity and propriety of the issuance of a warrant for his arrest? The majority opinion submits that neither P.D. No. 1069 nor the Constitution authorize respondent judge to give the private respondent a copy of the petition for extradition and immediately set for hearing the request for a warrant of arrest against the latter. I beg to disagree. There can be no disagreement that P.D. No. 1069 deserves an interpretation that would blend with the purpose of the RP-US Extradition Treaty, i.e., the minimization of flight risk and the facilitation of an extraditees surrender to the requesting state. But this stance should not be taken to mean that this Court can cast a blind eye to the private respondents constitutional rights to life, liberty and to due process. While this Court is obliged to accord due respect to the states interests to comply with its treaty obligations, it cannot also shirk from its duty to protect the fundamental rights of its citizens. Thus, a full and careful weighing of these warring interests is imperative as we did in its predecessor case Secretary of Justice vs. Lantion. 1 With due respect, it is my humble submission that the majority failed to allocate the proper weight due to the constitutional rights of the private respondent to life, liberty and to due process. These rights are now conceded in the civilized world as universal in character and it was never the intent of the RP-US Extradition Treaty to trivialize their significance.

It bears emphasis that this Courts ruling in Secretary of Justice vs. Lantion did not per se negate the constitutional rights of a potential extraditee to liberty and due process. If we rejected private respondents invocation of these rights in said case, it was only because (1) the threat to his liberty by provisional arrest has already passed; 2 and (2) the threat to his liberty upon the filing of the petition for extradition was merely hypothetical. 3 At that time, the government of the United States has not requested for the provisional arrest of the private respondent. Likewise, the petition for extradition has not yet been filed before the extradition court. Thus, after carefully balancing the conflicting interests of the parties at the evaluation stage of the extradition proceedings, we upheld the states interests under its extradition treaty with the United States, viz: To be sure, private respondents plea for due process deserves serious consideration, involving as it does his primordial right to liberty. His plea to due process, however, collides with important state interests which cannot also be ignored for they serve the interest of the greater majority. The clash of rights demands a delicate balancing of interests approach which is a fundamental postulate of constitutional law. The approach requires that we take conscious and detailed consideration of the interplay of interests observable in a given type of situation. These interests usually consist in the exercise of the individual of his basic freedoms on the one hand, and the governments promotion of fundamental public interests or policy objectives on the other. In the case at bar, on one end of the balancing pole is the private respondents claim to due process predicated on Section 1, Article III of the Constitution, which provides that No person shall be deprived of life, liberty, or property without due process of law Without a bubble of doubt, procedural due process of law lies at the foundation of a civilized society which accords paramount importance to justice and fairness. It has to be accorded the weight it deserves. This brings us to the other end of the balancing pole. Petitioner avers that the Court should give more weight to our national commitment under the RP-US Extradition Treaty to expedite the extradition of its laws. Petitioner also emphasized the need to defer to the judgment of the Executive on matters relating to foreign affairs in order not to weaken if not violate the principle of separation of powers. Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of the right being claimed by private respondent is nebulous and the degree of prejudice he will allegedly suffer is weak, we accord greater weight to the interests espoused by the government thru the petitioner Secretary of Justice." 4 We stressed that the denial of the private respondents privilege of notice and hearing during the evaluation stage of the extradition proceeding is merely a soft restraint on his right to due process, viz: In tilting the balance in favor of the interests of the State, we stress that it is not ruling that the private respondent has no right to due process at all throughout the length and breadth of the extrajudicial proceedings. Procedural due process requires a determination of what process is due, when it is due, and the degree of what is due. Stated otherwise, a prior determination should be made as to whether procedural protections are not at all due and when they are due, which in turn depends on the extent to which an individual will be condemned to suffer grievous loss." 5

The extradition process against the private respondent has, however, moved away from the stage of evaluation of documents by the executive officials of the Philippine government. A formal petition for the extradition of the private respondent has now been filed with our court of justice. With this development, the competing interests of our government and of the private respondent have developed new dimensions and they need to be rebalanced. In readjusting the balance, I respectfully submit the following propositions, viz. (a) A potential extraditee has the right to be notified of the filing of the petition for extradition. It is my humble submission that from the moment the petition for extradition is filed before the extradition court, a potential extraditee has the right to demand that he be furnished a copy of the petition. This right inheres from the duty imposed by P.D. No. 1069 to the extradition judge to summon a potential extraditee to appear and answer the petition "as soon as practicable." It is a mandatory duty that should be carried out by the extradition judge; the law does not give him any discretion. This submission is in accord with our ruling in Secretary of Justice vs. Lantion, 6 where we held that: "P.D. No. 1069 which implements the RP-US Extradition Treaty provides the time when an extraditee shall be furnished a copy of the petition for extradition as well as the supporting papers, i.e., after the filing of the extradition in the extradition court." (b) The need for a hearing to determine whether a warrant of arrest should be issued against an extraditee is addressed to the sound discretion of the extraditing judge. The majority opinion holds that the private respondent extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest. It relies on section 6 of P.D. No. 1069, which provides: Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of Notices.- (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will serve the ends of justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear the case or set another date for hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the accused." (emphasis supplied) The majority interprets this provision as follows: It is significant to note that section 6 of PD 1069, our Extradition Law, uses the word immediate to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, receiving facts and arguments from them, and giving them time to prepare and present such facts and arguments. Arrest subsequent to hearing can no longer be

considered immediate. The law could have intended the word as a mere superfluity but, on the whole, as means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should issue." Clearly, the opinion leans heavily on the use of the word "immediate" which qualified the arrest of an extraditee. It holds that "the qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant." Again, I beg to disagree. I submit that the decision whether to send notice to an extraditee and hear him before ordering his arrest should be left to the sound discretion of the extraditing judge. This is crystal clear from section 6 of P.D. No. 1069 which provides: x x x He may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will serve the ends of justice." (Italics supplied) Under this provision, the issuance of a warrant of arrest is dependent on a big "if," or to an all important condition - - - if it will serve the ends of justice. The determination of whether a warrant of arrest against an extraditee will serve the ends of justice is certainly not a cut and dried duty. It involves the appreciation of highly contentious facts, both objective and subjective in nature. Their appreciation requires a judicial mind honed in the law of evidence. The history of extradition will reveal that, initially, the task of determining whether an extraditee should be immediately arrested was given to the executive authorities of the extraditing state. The matter, in other words, was treated purely as an executive function but unfortunately, the practice was given to abuses. Recognizing that certain human rights are universal in nature and beyond violation, the task of adjudging whether a potential extraditee should be immediately arrested pending his extradition proceeding was transferred to judges. The office of the judge was called upon to insure that fundamental fairness is not denied to a potential extraditee. The extraditing judge is not to act as a stamp pad but has to exercise his sound discretion on whether to issue the warrant. Under our law on extradition, P.D. No. 1069, section 6, the discretion of the extradition judge on whether to order the arrest of the extraditee is guided by the following consideration - - - whether the arrest will serve the ends of justice. The grant of this judicial discretion will be rendered naught if we subject the action of the extraditing judge to unnecessary fetters. With due respect, the view that the extraditing judge has no discretion to determine whether to notify and hear a potential extraditee before ordering his arrest cuts too much on the freedom of action of the extraditing judge. I submit that we should give the extraditing judge more discretion on the matter. If the extraditing judge feels that the notice and hearing will allow an extraditee to flee, I have no doubt, he will immediately order his arrest. If, however, he believes that notice and hearing will not pose such danger and that he needs to hear the parties to make a better determination on whether the immediate arrest of an extraditee will serve the ends of justice, let us not deny him the discretion to do so. The essence of discretion is freedom of action and we negate that essence when we impose needless limits on the judges freedom of action. Prescinding from these premises, I cannot also subscribe to the submission of the majority that the phrase "if it appears" in section 6 of P.D. No. 1069 conveys the message that accuracy is not as important as speed in issuing a warrant of arrest against a potential extraditee. We are concerned here with the priceless right to life and liberty, with the right to due process before ones liberty is taken away. We are not dealing with chattels. We should not lay down the doctrine that speed should be preferred to accuracy for speed breeds recklessness and we cannot be reckless with our right to life and liberty.

I agree that the trial court should not be expected to make an exhaustive determination of the facts of the case before issuing a warrant of arrest. To be sure, that is not expected of any judge, not even from a judge of a criminal case. In the case at bar, however, the extraditing judge ordered the hearing only to have a better basis for determining whether the immediate arrest of the private respondent will best serve the ends of justice. A careful look at the petition for extradition will show that it does not provide enough basis for the extraditing judge to determine whether the immediate issuance of warrant of arrest will serve the ends of justice. I quote the opinion on the documents attached to the petition for extradition, viz: Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage trial attorney in the Campaign Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex BB, the Exhibit I Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers and enclosed Statements in two volumes; (4) Annex GG, the Exhibit J Table of Contents for Supplemental Evidentiary Appendix with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward and enclosed Statements in two volumes." Even a cursory reading of these documents will not sustain the thesis that "it is evident that the respondent could have already gotten an impression from these records adequate for him to make an initial determination of whether the accused was someone who should immediately be arrested in order to best serve the ends of justice. The documents are evidence tending to prove the guilt of the private respondent in regard to the cases filed against him in the United States. They are not evidence, however, to prove that the private respondent will flee the Philippine jurisdiction while his extradition petition is being heard. In other words, the petition for extradition may be in due form but it does not establish sufficient factual basis to justify the immediate issuance of warrant of arrest against the private respondent. The probability of his flight from our jurisdiction is central to the question of whether he should be arrested. In the absence of evidence establishing that private respondent will flee, I cannot join the ruling that the respondent extraditing judge gravely abused his discretion in calling for a hearing so that the parties can adduce evidence on the issue. Likewise, it is postulated: Moreover, the law specifies the courts setting a hearing upon receipt of the answer or upon failure of the accused to answer after receiving the summons. In connection with the matter of immediate arrest, however, the word hearing is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings." Once more, I beg to disagree from this reading of our law on extradition. The law, it is true, did not provide that the extraditing judge must hold a hearing before he issues a warrant of arrest. The call for a hearing is not mandatory but neither is it prohibited. Ergo, the matter

of whether there ought to be a hearing before issuance of warrant of arrest is addressed to the discretion of the extraditing judge. The exercise of this discretion depends on the configuration of the facts of each case. II. The right to bail of a potential extraditee during the pendency of the petition for extradition. I respectfully submit that a potential extraditee can hinge his right to bail in our Constitution. The mere silence of our extradition treaty with the Unites States and our extradition law (P.D. No. 1069) does not negate the right to bail of a potential extraditee. Our adherence to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, as well as international norms, customs and practices support an extraditees right to bail. But while an extraditee may apply for bail, its grant depends on presentation of clear and convincing evidence that the extraditee will not frustrate the ends of justice by fleeing from our jurisdiction. Again, I proffer the following propositions: First. The right to bail inheres from the rights to life, liberty and to due process. Our Constitution jealously guards every persons right to life and liberty against unwarranted state intrusion; indeed, no state action is permitted to invade this forbidden zone except upon observance of due process of law. 7 Like the privilege of the writ of habeas corpus, the right to bail gives flesh to the guarantee to liberty, without which, the right to liberty can prove meaningless, and due process will only be an empty slogan. However, unlike the privilege of habeas corpus which is principally a remedy against illegal restraint on liberty, 8 the right to bail is available even when the reason for the detention is lawful. The purpose of bail is to relieve a person the rigors of prolonged imprisonment until the main case against him is resolved, and at the same time, insure his attendance when required by the authorities. 9 It is the prospect of prolonged detention, not the detention itself, which offends the constitutional right to due process. In Teehankee vs. Rovira, 10 this Court rejected the view which limits the right to bail to persons charged with criminal offenses. We ruled that the constitutional right to bail applies to all persons, viz: "This constitutional mandate refers to all persons, not only to persons against whom a complaint or information has already been filed; it lays down the rule that all persons shall before conviction be bailable except those charged with capital offense and the evidence of his guilt is strong. Of course, only those persons who have either been arrested, detained or otherwise deprived of their liberty may have the occasion to seek the benefit of said provision. But in order that a person can invoke this constitutional precept, it is not necessary that he should wait until a formal complaint or information is filed against him. From the moment he is placed under arrest, detention or restraint by officers of the law, he can claim this guarantee of Bill of Rights, and this right he retains unless and until he is charged with a capital offense and the evidence against him is strong. Indeed, if, as admitted on all sides, the precept protects those already charged under a formal complaint or information, there seems to be no legal or just reason for denying its benefit to one against whom the proper authorities may yet conclude that there exists no sufficient evidence of guilt. To place the former in a more favored position than the latter would be, to say the least, anomalous and absurd. If there is

presumption of innocence in favor of one already formally charged with a criminal offense, a fortiori this presumption should be induced in favor of one yet so charged although arrested or detained." (emphasis supplied) In United States vs. Go-Siaco, 11 this Court held that while deportation proceedings are not criminal in nature, an alien deportee may avail of the constitutional right to bail, viz: The order of deportation is not a punishment for a crime. It is not a banishment, in the sense which that word is often applied to the expulsion of citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the Government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property without due process of law; and the provisions of the Constitution securing the right of trial by jury and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application. It will be seen that this declaration is not inconsistent with the view that while the proceeding is not a trial or sentence of a crime or offense, it may in so far use the machinery of the criminal law as to admit of application the provisions in such law relating to bail x x x. x x x We see no reason why bail should not be allowed in this class of cases. As is said by the Supreme Court, the defendant has committed no crime x x x To refuse him bail is to treat him as a person who has committed the most serious crime known to the law, and while we do not intend to say that this is a criminal proceeding, we do say that some of the machinery used for making the investigation required by Act No. 702 is the machinery of the criminal law x x x." This ruling is reiterated in United States vs. Benito
12

the exclusive and full discretion to determine whether an alien subject to deportation should or should not be granted." It is apparent, therefore, that the ruling in the Ong Hee Sang does not negate the right to bail. It merely meant that the standard for granting or denying bail under the Constitution is different in deportation proceedings. It is different because there is a specific law which provides for such standard in deportation proceedings, i.e., Commonwealth Act No. 613 or the Philippine Immigration Act of 1940. Neither did the case preclude the grant of bail on due process grounds as in the case Mejoff vs. Director of Prisons, 16 where this Court held that while "temporary detention is a necessary step in the process of exclusion and expulsion of undesirable aliens and that pending arrangements for his deportation, the Government has a right to hold the undesirable alien under confinement for a reasonable length of time, too long a detention may justify the issuance of a writ of habeas corpus" 17 and entitle an alien to be released on bail, viz: The protection against deprivation of liberty without due process of law and except for crimes committed against the laws of the land is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality x x x Moreover, by its Constitution (Art. II, sec. 3), the Philippines adopts the generally accepted principles of international law as part of the law of the Nation. And in a resolution entitled Universal Declaration of Human Rights and approved by the General Assembly of the United Nations of which the Philippines is a member at its plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed. It was there resolved that All human beings are born free and equal in degree and rights (Art. 1); that Everyone is equal and is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status (Art. 2); that Every one has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law (Art. 8); that No one shall be subjected to arbitrary arrest, detention or exile (Art. 9, etc.)" 18 It must be noted that the Mejoff case was decided when C.A. No. 613 was already in effect. Similarly, in Chirskoff vs. Commission of Immigration 19 the Court released the alien deportee on bail because his prolonged detention violates his right to liberty, viz: "[F]oreign nationals, not enemy, against whom no criminal charges have been formally made or judicial order issued, may not be indefinitely kept in detention; that in the Universal Declaration of Human Rights approved by the General Assembly of the United Nations of which the Philippines is a member, the right to life and liberty and all other fundamental rights as applied to human beings were proclaimed; that the theory on which the court is given power to act is that the warrant of deportation, not having been executed, is functus officio and the alien is being held without any authority of law; and that the possibility that the petitioner might join or aid disloyal elements if turned out at large does not justify prolonged detention, the remedy in that case being to impose conditions in the order of release and exact bail in reasonable amount with sufficient sureties." In the case of Lao Gi vs. Court of Appeals, 20 this Court again held that although a deportation proceeding does not partake of a criminal action, the constitutional right of a person to due process should be protected therein, viz:

and in Pagado vs. Aldanese.

13

The case of Ong Hee Sang, et al. vs. Commissioner of Immigration and Portugal 14 is not a departure from our previous rulings on the right to bail of a deportee. In said case, the Court ruled that the grant or denial of an aliens application for bail lies within the discretion of the Commissioner of Immigration and Deportation pursuant to section 37 (9) (e) of the Philippine Immigration Act of 1940, which states: "Any alien under arrest in a deportation proceeding may be released under a bond or under such other conditions as may be imposed by the Commissioner of Immigration." 15 The Court ratiocinated as follows: The right to bail guaranteed by the Constitution may not be invoked in favor of petitioners-appellees considering that deportation proceedings do not constitute a criminal action and the order of deportation is not a punishment for a crime, it being merely for the return to his country of an alien who has broken the conditions upon which he could continue to reside with our borders." The Court explained the difference of the Go Siaco case as follows: The case of U.S. vs. Go Siaco is not in point because said case was a proceeding brought under the provisions of Act No. 702 which falls, by provision of said law, under the jurisdiction of the courts of justice. The case at bar is deportation proceeding under the Philippine Immigration Act of 1940, which expressly vests in the Commissioner of Immigration

Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional right of such person to due process shall not be denied. Thus, the provisions of the Rules of Court of the Philippines particularly on criminal procedure are applicable to deportation proceedings. xxx xxx xxx

At present, there is no customary norm prohibiting bail in extradition cases. On the contrary, most countries, including Canada, Australia, the United Kingdom, South Africa and Pakistan, among others, allow a potential extraditee to be released on bail. Members of the European Union have recently ratified the European Convention on Extradition, which also provides a procedure for bail. Fourth. Even the United States grants bail to an extraditee, albeit in exceptional circumstances. In the United States, the ruling case law upholds the right of a potential extraditee to apply for bail. The US Supreme Court in the landmark case of Wright vs. Henckel, 32 recognized the authority of the circuit courts to receive application for and grant bail in certain exceptional case, thus: We are unwilling to hold that the circuit courts possess no power in respect of admitting to bail other than as specifically vested by statutes, or that, while bail should not be ordinarily granted in cases of foreign extradition, those courts may not in any case, and whatever the special circumstances, extend that relief." This dictum planted the seeds of the current federal common law on bail in international extradition proceedings. 33 It recognized the existence of the right to bail based on "exceptional circumstances" 34 which the extraditee must prove. The following are some of the instances which were considered "special circumstances" to warrant the grant of bail: (a) age, background of defendant, and lack of any suitable facility to hold him;
35

Before any charge should be filed in the CID a preliminary investigation must be conducted to determine if there is sufficient cause to charge respondent for deportation. The issuance of warrants of arrest, arrests without a warrant and service of warrant should be in accordance likewise with Rule 113 of the 1985 Rules of Criminal Procedure; search warrants issued by the CID shall be governed by Rule 126 of the 1985 Rules of Criminal Procedure; and so the matter of bail, motion to quash, trial, among others." 21 (emphasis supplied). There is no reason why an extraditee should be denied the right to apply for bail. While an extradition proceeding is not criminal in nature, it is a harsh and extraordinary process. It may involve a restraint of liberty that under some circumstances can be greater than in an ordinary criminal case. 22 For in extradition proceedings, the extraditee will be transported and tried to another jurisdiction of which laws he may be unfamiliar. 23 Second. The right of an extraditee to apply for bail should be treated in light of our other treaty obligations, especially those concerning the promotion and protection of human rights. 24 Under the Vienna Convention on the Law of Treaties, to which the Philippines is a party, a treaty shall be interpreted "in their context and in the light of its object and purpose," 25 taking into account the "relevant rules of international law applicable in the relations between the parties." 26 As members of the family of nations, the Philippines and the United States have the responsibility to uphold fundamental human rights, and the dignity and worth of the human person. They are mandated to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. 27 Being signatories to the Universal Declaration of Human Rights 28 and the International Covenant on Civil and Political Rights, 29 both countries are committed to protect and promote the right of every person to liberty and to due process, ensuring that those detained or arrested can take proceedings before a court, in order that such court may decide without delay on the lawfulness of his detention, and order his release if the detention is not lawful. 30 Although the right to liberty is a relative right and may be suspended or derogated in exceptional circumstances, 31 it is a generally accepted principle in international law that the presumption lies in favor of the existence of the right, and the burden lies with the authorities to justify the lawfulness of the arrest or detention. This presumption creates an obligation on state authorities to make effective remedies available to every person under detention for the enjoyment of his fundamental right to liberty. Third. There is no customary rule of international law prohibiting bail in extradition

(b) parity with other defendant on similar charge, granting bail would promote harmony among factions in x x x dispute, likelihood of delay, and pending constitutional challenge to the extradition statute; 36 (c) need to participate in litigation in which entire fortune depended; likelihood of delay and bailable offense in seeking extradition;
38 37

and

provisional arrest justifies grant of bail and disparity of treatment of persons on same charge. 39 The trend in recent years is for courts to liberalize the bail standard as they place primary emphasis on the accuseds risk of flight. 40 The rationale of this trend was succinctly laid down in Beaulieu vs. Hartigan, 41 to wit: "In none of the cases dealing with the issue of bail in an extradition setting was a district judge who granted bail subsequently reversed by a reviewing court. Analysis of these cases leads me to the conclusion that the special circumstances doctrine of Wright, though still viable, must be viewed, in the light of modern concepts of fundamental fairness, as providing a district judge with flexibility and discretion in considering whether bail should be granted in these extradition cases. The standard scrutiny and concern exercised by a district judge should be greater than in the typical bail situation, given the delicate nature of international relations. But one of the basic questions facing a district judge in either situation

cases.

is whether, under all circumstances, the petitioner is likely to return to court when directed to do so. Fundamentally, it is a judgment call by the district court based on the totality of circumstances, including extremely important consideration of the countrys treaty agreements with other nations; a district judge should approach the bail situation in an extradition case with an added degree of caution, given the additional factor of an international treaty." Fifth. While an extraditee may apply for bail, its grant is discretionary depending on whether it will frustrate the ends of justice. In extradition cases, the extradition court does not inquire into the guilt or innocence of the accused. Neither does the court measure the injury caused to the community, as the offense was not committed within its jurisdiction. The court, therefore, cannot base its decision to grant or deny bail on the gravity of the offense, as it could in criminal cases. Rather, it should base its decision on whether it will frustrate the ends of justice. The risk of flight of an extraditee is an important factor to consider in determining whether his bail will frustrate justice. Whether or not a potential extraditee is a flight risk is determined by two factors: (1) capacity to flee; and (2) intent to flee. The combination of these two factors determines the degree of risk that the trial court must assess and weigh. While there is no mathematical formula to guide the court in gauging the precise risk posed by a particular combination of these two factors, it is commonsensical to assume that one without the other would not result to any risk at all. For while one has the capacity to flee, if he does not intend to flee, the fear of flight would be for naught, and vice versa. Sixth. The burden of proof to justify the arrest and detention of the potential extraditee initially rests on the petitioning executive authorities. Under our extradition treaty and law, a potential extraditee may be arrested and detained under any of the following circumstances: (a) upon the receipt of the request for the arrest of the potential extraditee and even before the filing of the request for extradition; (b) upon the filing of the petition for extradition before the extradition court; or (c) during the hearing of the petition for extradition. In all the above circumstances, the issuance of a warrant of arrest depends on a showing that it will serve the ends of justice. Initially, it is the burden of the petitioning executive authorities to prove that the warrant against the extraditee will serve the ends of justice. Seventh. After the warrant of arrest is issued, the burden of proof on the right to be admitted to bail shifts on the potential extraditee. In criminal cases, the presumption lies in favor of granting bail. This is so because of the constitutional presumption of innocence, which is not overturned by the finding of probable cause upon which the warrant of arrest against the accused was issued. However, the presumption of innocence, from which the ordinary presumption in favor of granting bail emanates, is inoperative in extradition cases. The issuance of the warrant of arrest in extradition cases is not based on the finding that the accused is probably guilty of the offense for which he was charged in the requesting State. The warrant is predicated on the

finding that it will serve the ends of justice. Once issued, it raises a presumption of the continuing presence of the circumstances upon which the issuance of the warrant was based. More often than not, this circumstance is the probability that the extraditee will flee from the jurisdiction of the extraditing court. The burden of proving admittance to bail is thus shifted to the extraditee. It should be underscored that due process, which is the basis of bail in extradition proceeding, merely grants the potential extraditee the opportunity to avail of the remedy of bail; it does not give him the right to demand that he be released on bail under any circumstance. What the right to due process prohibits is the outright denial of the remedy of bail; it does not prohibit a reasonable denial of the application for bail after carefully weighing all the circumstances at hand. III. There is need to remand the case at bar to the extradition court in fairness to the parties. I respectfully submit that in fairness to both parties, the case should be remanded to the extradition court so that the proper procedure and standard to determine the right to bail can be complied with. I put no blame on the extradition court nor to the parties in this regard for we are still developing our jurisprudence on extradition. There is need for remand for the following reasons, viz: First. As aforediscussed, the petitioner has the burden of proof to show that the issuance of a warrant of arrest against the private respondent will serve the ends of justice. This burden of proof can not be satisfied by the petitioner in the case at bar by merely relying on the petition for extradition and its annexes. The petition and its annexes do not prove that the private respondent is a flight risk. They only show that he has been indicted in the court of the United States. Second. On the issue of whether the private respondent is entitled to bail, the petitioner cannot rely on the presumption against bail in extradition proceedings. The presumption against bail in extradition proceedings is founded on the assumption that the extraditee is a fugitive from justice. Thus, it was explained in Beaulieu vs. Hartigan, 42 viz: "The vast majority of fugitives from justice in foreign countries fled from those countries knowing that charges have been, or were likely to be, brought against them. Thus the typical subject of an extradition request has a demonstrated propensity to flee rather than face charges and in general is likely to continue his flight if released pending extradition." 43

The presumption against bail therefore arises only when the extraditee is a "fugitive from justice." To avail of this presumption, it is a condition sine qua non that competent evidence be proffered that the extraditee is a fugitive from justice.

In Marquez, Jr. vs. COMELEC, 44 we ruled that the term fugitive from justice "includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution."45 In Rodriguez vs. COMELEC, 46 we clarified that this definition indicates that "the intent to evade is the compelling factor that animates ones flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction." 47 From the records, it appears that the claim of the petitioner that the private respondent is a fugitive from justice is based on the following allegations: (a) that an investigation for the charges against him was then on going; and (b) that upon learning that he was about to be charged, he fled from the United States. Thus, petitioner alleged: Learning that an investigation involving his violations of United States federal laws was about to be terminated and that he was about to be charged, Jimenez fled the United States jurisdiction. Under United States law, he is therefore a fugitive from justice. A "fugitive from justice" is a person who commits a crime within a state and withdraws himself from such jurisdiction (Ex Parte Montoya, 135 P.2d 281, 282, 170 Or. 499). Because he has fled once, there is a greater likelihood that he will flee to another jurisdiction once more and frustrate extradition. Thus, he poses a serious risk flight. The interest of justice will be best served if he is arrested and detained pending extradition proceedings, which after all, is summary in nature." 48 It is clear, however, that the warrant of arrest in connection with Indictment No. 9900281-CR-SEITZ against the private respondent was issued on April 15, 1999. 49 Private respondent claims that he was already in the Philippines when the indictment against him was filed and the warrant for his arrest was issued. During the oral argument of the case at bar, the following exchange between the counsels of the parties took place, viz: USec Gutierrez: It may be mentioned that the proposed extraditee stands charge (sic) of several charges from the United States of America and a warrant of arrest was issued against him and he fled the jurisdiction of the United States of America to evade prosecution and there would again be another risk of plight (sic) and to ensure the proposed extraditee will be present during the extradition proceeding, therefore this request on the part of the petitioner for the issuance of warrant of arrest. 50 xxx xxx xxx

would be fatal for the petitioner to rely alone on the presumption against bail in extradition cases to justify the denial of bail of the private respondent. In Rodriguez, petitioner arrived in the Philippines on June 25, 1985 and the complaint in Los Angeles was filed on November 2, 1985. We ruled that "it was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant - much less conviction- to speak of yet at such time." We rejected the contention that Rodriguez would have known the on-going investigation, viz: It is acknowledged that there was an attempt by the private respondent to show Rodriguez intent to evade the law. This was done by offering for admission a voluminous copy of an investigation report on the alleged crimes committed which led to the filing of the charges against petitioner. It was offered for the sole purpose of establishing the fact that it was impossible for the petitioner not to have known of said investigation due to its magnitude. Unfortunately, such conclusion misleads because investigations of this nature, no matter how extensive or prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest of those who would be charged." 53 Furthermore, we held that "the circumstantial fact that it was seventeen (17) days after Rodriguez departure that charges against him were filed cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of events, which transpired. A subjective fact as that of petitioners purpose cannot be inferred from the objective data at hand in absence of further proof to substantiate that claim." Third. In granting bail to the private respondent, the standard used by the extraditing court is not clear. An extradition proceeding is sui generis, hence, neither the standard of proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases can apply. Thus, in Lantion, 54 we explained: We are not persuaded. An extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation. As held by the US Supreme Court in United States v. Galanis: An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty. There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while a criminal proceeding involve a full blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States

Atty. Bautista: The Honorable Counsel has declared gratuitously that Mr. Mark Jimenez is a fugitive from the United States, left the United States because of the indictment against him. That is totally false. The petition itself says that a warrant for the arrest of Mr. Jimenez was issued in the United States in April 1999. Mr. Jimenez was here in the Philippines on May 1998 and he has not left the country since then. So he left the United States long before, a year before the warrant of arrest was issued, so how can we say that he is a fugitive from justice?" 51 That private respondent arrived in the country on May 10, 1998 is evidenced by the records and is not contradicted by the petitioner. 52 On the other hand, petitioners claim that private respondent knew of the ongoing investigation as well as of the existence of the charges against him when he fled from the United States is devoid of evidence. Therefore, it

adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nations foreign relations before making the ultimate decision to extradite." With humility, I submit that the Court should fashion out a higher standard to govern the grant of bail to a possible extraditee. The higher standard is demanded by the fact that our extradition treaty obligates us to assure that an extraditee will not abscond from our jurisdiction. Failure to comply with this obligation will expose our country to international embarrassment. It will defeat the purpose of extradition treaties, i.e., the suppression of crimes, especially transnational crimes to which the Philippines is very vulnerable. The standard, I propose, is the standard of clear and convincing evidence which is higher than mere preponderance of evidence but lower than proof beyond reasonable doubt. If this new and stricter standard would be adopted, it ought to follow that the parties should be given a chance to offer evidence to meet the same. Contrary to the claim, the voluminous pleadings already filed by the parties are insufficient to resolve the issue of whether the private respondent is entitled to bail. These pleadings proffer legal arguments but not proof of facts. The remand of the case at bar is therefore not a cop-out but is proper and it will not delay the proceedings. The extradition court can be ordered to finish the hearing on the limited issue of bail within one (1) week. After all, extradition proceedings are summary in nature. CONCLUSION In conclusion, I offer the following views: First. The filing of a petition for extradition does not per se justify the issuance of a warrant of arrest against an extraditee. The petition, in some instances, may not contain sufficient allegations and proof on the issue of whether the possible extraditee will escape from the jurisdiction of the extraditing court. Second. When the petition for extradition does not provide sufficient basis for the arrest of the possible extraditee or the grant of bail as in the case at bar, it is discretionary for the extradition court to call for a hearing to determine the issue. Third. An extraditee has the right to apply for bail. The right is rooted in the due process clause of the Constitution. It cannot be denied simply because of the silence of our extradition treaty and law on the matter. The availability of the right to bail is buttressed by our other treaties recognizing civil and political rights and by international norms, customs and practices. Fourth. The extraditee may apply for bail but its grant depends on the discretion of the extraditing court. The court must satisfy itself that the bail will not frustrate the ends of justice. Fifth. In deciding whether to grant bail or not to a possible extraditee, the extraditing court must follow a higher and stricter standard. The extraditee must prove by clear and convincing evidence that he will not flee from the jurisdiction of the extraditing court and will respect all its processes. In fine, that he will not frustrate the ends of justice. As emphasized, the case at bar has entered a new stage and the competing interests of the state and the rights of the private respondent as an extraditee need to be rebalanced on the scale of justice. These competing rights and interests have to be rebalanced for they have

developed new dimensions and some facts may have to be accorded greater or lesser weights to meet the more paramount interest of our people. This paramount interest is always in motion as it is affected by the inexorable changes wrought in time both by man and machine. In rebalancing these conflicting interests, we should take care not to diminish to a disturbing degree an extraditees fundamental rights to life, liberty and due process. These rights have evolved as universal rights and extradition treaties for all their utility were never meant to disparage, let alone, derogate them to inutility. Likewise, in rebalancing these interests, we should not weaken the role of courts in tempering the harshness of extradition proceedings. We should not therefore dilute the discretionary power of courts to determine whether a hearing should be called before ordering the immediate arrest of a possible extraditee. In counter-balance, we should not be soft on extraditees who are facing charges in countries where we have extradition treaties. While rights are being universalized, so too are crimes being internationalized. We should not allow our country to be the sanctuary of criminals who demand rights but deny the rights of others. Thus, there is need to impose a higher and stricter standard before we grant bail to potential extraditees. We are in the difficult step by step process of developing our jurisprudence in extradition. In Lantion, our first extradition case, we held that an extraditee has no right to demand examination of the documents of extradition while the request for extradition is just being processed and evaluated by the Departments of Foreign Affairs and Justice. In the case at bar, our second extradition case, we have the opportunity to impose a higher and stricter standard that will govern a plea for bail of an extraditee. I urge the Court to seize the rare opportunity for this can well be our humble contribution to mans relentless search for elusive peace. Prescinding from all these premises, I vote to remand the case at bar to the extradition court so that it can follow the proper procedure and higher standard in determining the right to bail of the private respondent. Separate Opinion VITUG, J.: "The State values the dignity of every human person and guarantees full respect for human rights." 1 The proposal to curtail the right of an individual to seek bail from the courts of law, acting in extradition cases, as well as his right to notice and hearing before being arrested, brings to mind the not so distant past of the Spanish Inquisition and an uneasy realization that we have yet to totally free ourselves from the grip of a dark page in history. My reservation on the draft ponencia is premised on the following theses first, it would ignore constitutional safeguards to which all government action is defined, and second, it would overstep constitutional restraints on judicial power.

Treaty laws, particularly those which are self-executing, have equal stature as national statutes and, like all other municipal laws, are subject to the parameters set forth in the Constitution. The Constitution, being both a grant and a circumscription of government authority by the sovereign people, presents the ultimate yardstick of power and its limitation upon which an act of government is justly measured. This instrument contains a rule for all agencies of the government and any act in opposition thereto can only be struck down as being invalid and without effect. 2 When the great Charter gives a mandate, the government can do no less than to accept it; its rejection would be an act of betrayal. The edict in its Bill of Rights granting to all persons, without distinction, the fundamental right to bail, is clear. No statute or treaty can abrogate or discard its language and its intent. The draft ponencia would assume that the Constitution confines 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 were 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 superficial to think otherwise. While defying a neat definition, 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 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. 3 In Herras Teehankee vs. Rovira, 4 the Court observed that bail is constitutionally available to all persons, even those against whom no formal charges are filed. "Indeed, if, as admitted on all sides, the precept protects those already charged under a formal complaint or information, there seems no legal and just reason for denying its benefits to one against whom the proper authorities may not even yet conclude that there exists no sufficient evidence of guilt. To place the former in a more favored position than the latter would be, to say the least, anomalous and absurd. If there is a presumption of innocence in favor of one already formally charged with criminal offenses ... a fortiori, this presumption should be indulged in favor of one not yet so charged although arrested and detained." xxxxxxxxx "We reiterate now that under the Constitution, all persons, without distinction, whether formally charged or not yet so charged with any criminal offense, 'shall before conviction be bailable,' the only exception being when charge is for a capital offense and the court finds that the evidence of guilt is strong." Notably, our extradition law (P.D. 1069, paragraph. 1, Section 9 thereof), expressly 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. In this regard, Section 3, Rule 114, of our Rules of Criminal Procedure is unequivocal --"All persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with capital offenses or an offense which, under the law at the time of its commission and the time of the application for bail, is punished by reclusion perpetua, when evidence of guilt is strong."

Nowhere in the Extradition Treaty with the United States is the grant of bail mentioned but so also it is not prohibited. This obscurity must not be held to negate the right to bail; on the contrary, it should be viewed as allowing, at the very least, the evident intendment and spirit of the fundamental law to prevail. A Constitution does not deal with details, but only enunciates general tenets that are intended to apply to all facts that may come about and be brought within its directions. 5 Behind its conciseness is its encompassing inclusiveness. It is not skin-deep; beneath that surface is what gives it real life and meaning. It can truly be said that the real essence of justice does not emanate from quibbling over patchwork but proceeds from its gut consciousness and dynamic role as a brick in the ultimate development of the edifice. 6 Resort to overly rigid procedures is being justified as a need to keep in line with our treaty obligations. Verily, comity in our relations with sovereign states is important, but there are innate rights of individuals which no government can negotiate or, let alone, bargain away. Analogy between extradition process and proceedings where the right to bail is said to be unavailing, i.e., deportation proceedings and proceedings before a military tribunal, would not at all be apropos. Deportation proceedings are no more than inquiries and just involve the simple fact of whether or not an alien has an authorized entry within a named country or, if authorized, whether or not he has complied with the conditions for a continued stay thereat. A subject found to be illegally staying in a country is merely transported back to his place of origin. Most importantly, such a person is not considered to be under judicial custody. Proceedings before a military tribunal, upon the other hand, are confined to members of the military organization who give consent to its jurisdiction. The stringent proceedings before such tribunals place emphasis on summary procedures, a speedy resolution of the case being vital in maintaining discipline, obedience and fitness among the ranks 7 that cannot obviously be compromised in any sound military establishment. The draft ponencia would rely heavily on foreign jurisprudence, notably American cases, to belabor the point that the right to bail is extraneous to extradition proceedings. The citation, particularly of the jurisprudence obtaining in the United States, could be predicated on the Eighth Amendment of the US Federal Constitution. This amendment however, recognizes merely by implication the right to bail by simply disallowing excessive bail; it does not expressly provide for the grant of bail. 8 Individual states have incorporated into their own state constitutions various versions -- some give it as a matter of right and some do not a fact which partially explains the lack of uniformity in state jurisprudence on the matter. Where some states provide for a constitutional right to bail, the same is almost invariably viewed as affording a greater right than that provided in the federal charter. 9 In contrast, the Philippine Constitution strongly and clearly mandates that, except for those charged with offenses punishable by reclusion perpetua, when evidence of guilt is strong, bail is an undeniable right of every person --"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." 10

Thus, grappling in this jurisdiction with the compatibility of the grant of bail in extradition proceedings with basic constitutional guarantees has not been and should not be a predicament. Absent any standard, except for the constitutional limitation that the same be not excessive, the grant of bail in the United States largely rests on judicial discretion under the umbrella of judicial power. And so it has been so regarded in Wright v. Henkel, 11 the primary case governing access to bail in United States extradition proceedings, where the Court has held: "We are unwilling to hold that the Circuit Courts possess no power in respect of admitting bail other than as specifically vested by statute or that, while bail should not ordinarily be granted in cases of foreign extradition, those courts may not, in any case, and whatever the special circumstances, extend that relief." Henkel, decided by the US Supreme Court in 1903, has been criticized to have imposed an amorphous standard and has resulted in an incoherent and inconsistent approach to bail. 12 While the clamor for its re-examination appears to be getting persistent by the day, 13 it has nevertheless become the forerunner in the judicially-prescribed "special circumstances" standard in deciding whether the bail should be granted or denied.14 These "special circumstances" vary from reasons of ill-health to material prejudice depending on the peculiarities of the case. In In re Mitchel, 15 to cite an example, the court there caused the release of an extraditee who was charged with larceny by the requesting state based on the assertion that his continued detention rendered him incapable of consulting with his counsel. The court was careful to emphasize that it had become imperative for him to obtain advice of counsel because his entire fortune depended upon his doing so. The court then added that while he had knowledge for a long time of the extradition, he had made no attempt to flee. 16 But Philippine courts need not really bother borrowing from dicta in foreign jurisdictions. The absoluteness of the constitutional grant under Section 13, Article, III of the Constitution precludes any need for further standards than those explicitly expressed by it. Judicial discretion is confined to the issue of whether or not the offense charged is a capital crime and a determination of whether or not the evidence of guilt is strong. The rule may appear to be too simplistic but it is the correct approach. At all events, I would not be comfortable in developing a "special circumstances" standard on the basis of mere pro hac vice pronouncements from elsewhere. In Herras Teehankee vs. Director of Prisons 17 , this Court has expressed unqualified acquiescence to the deeply ingrained policy of restraint against unwarranted judicial adventurism that can otherwise easily get out of hand. 1wphi1.nt Given the foregoing, the trial court did not err, let alone commit a grave abuse of discretion, in the grant of bail to the extraditee. WHEREFORE, I vote to DENY the Petition. Dissenting Opinion YNARES-SANTIAGO, J.:

With all due respect, I am disturbed by the majority opinions disregard of basic freedoms when a case is one of extradition. The majority opinion is too sweeping and dogmatic for a case of first impression. I find the views on the indiscriminate denial of fundamental rights too open-ended and heedless of entrenched jurisprudence on Bill of Rights protections. The sheer novelty of the worlds only superpower asking that a Filipino be brought before it to face criminal prosecution seems to mesmerize policy makers and this Court alike into depriving that citizen of constitutional protections. The issue before the respondent court is a fairly innocuous one whether or not the petition for extradition is meritorious. We are not concerned with the guilt or innocence of the respondent. He is presumed innocent of the crimes charged until he is convicted by a foreign court. He is likewise presumed innocent of the demands found in the request for his extradition. But the majority opinion has chosen to adopt a presumption of guilt. It presumes that the petition calling for the forcible separation of the respondent from his homeland, family, occupation, and friends is correct even before the merits are ascertained. It presumes that he will flee. A person convicted of a crime, except for the most serious offenses, is allowed bail while an appeal is pending. Respondent Jimenez has not been convicted of any crime. His guilt or innocence is not in issue before the respondent court. The only legal affront he has committed is his refusal to leave the pleasures of life in his country and go to a place where he fears the reception to him would be disagreeable and much less pleasant. Eventually after trial in the respondent court, respondent may be compelled to undergo what he fears. But until that decision is rendered and becomes executory, he must be presumed innocent of any crime or any affront to law or treaty. There can be no deprivation of basic rights and freedoms merely because the case is one of extradition. I submit that we must consider the implications of a ruling that in criminal proceedings, the constitutional rights of the accused must be protected, but in a case neither criminal nor civil, one which we call "sui generis," basic freedoms become irrelevant and non-available. A non-criminal proceeding, less onerous and repulsive to society than prosecution for crime, and where the penalty is only to be brought for trial before the court with jurisdiction, is stripped of guarantees and protections given to hard-boiled recidivists pending arrest and trial. We have denied a prospective extraditee the right to be informed before trial of the nature and cause of the charges against him. 1 Due process is essential in all court proceedings criminal, civil, investigatory, administrative, or even sui generis, a class the Court uses as an excuse to justify deprivation of that most elemental of rights, the right of notice. 2 The Court has ruled that respondent Mark Jimenez or any other person sought to be extradited must first be exposed to the indignity, expense, and anxiety of a public denunciation in court before he may be informed of what the requesting State has against him. The right to notice before trial is denied. The majority opinion states that a prospective extraditee is not entitled to notice and hearing before a warrant of arrest can be issued against him. Worse, he is denied the right to bail and provisional liberty while the extradition proceedings are pending. All the jurisprudence explaining the parameters of the unreasonable searches and seizures provision of the Constitution 3 becomes inapplicable. The petition for extradition and its attachments take the place of probable cause. The right against unreasonable search and seizure is available to all persons including those not charged with any crime. 4 But now, we create an unusual exception. It is not available to one who may be seized against his will for

possible extradition to a country where his innocence or guilt will first be determined. Arrest and imprisonment will become virtually certain in extradition proceedings. The only thing required of the Court is to go over the request for extradition and its supporting documents. Arrest is virtually assured because of the absence of notice and hearing. It is inconceivable that the officials of a requesting State would be so dense or careless as to fail to include in the request for extradition a prima facie showing that the respondent deserves to be seized and forcibly brought to the foreign country for trial. According to the majority opinion, from the forwarded documents, we expect the trial court to "merely xxx xxx xxx get a good first impression sufficient to make a speedy initial determination as regards the arrest and detention of the accused." This novel doctrine justifying the near certainty of automatic arrest and detention goes against this Courts decisions, too numerous to mention, protecting citizens and aliens alike from unreasonable arrests or seizures. Can we expect anything other than a "good first impression" to arise from the mere reading of a request for extradition? In criminal prosecutions, the judge must personally determine probable cause for the arrest. Facts and circumstances must first be presented which would lead a reasonably discreet and prudent man to believe that an offense has been committed and the accused is probably guilty of the offense. 5 In the majority opinion, the request for extradition by the foreign country takes the place of a hearing for probable cause. After trial, it is possible that the petition for extradition may be denied. Under the majority opinion, the possibility of a judgment of denial does not influence the immediate arrest and indefinite detention of the respondent since notice and hearing before arrest are not required. He must be jailed while the grant or denial of the petition is being considered. The majority opinion gives five (5) postulates of extradition. With all due respect, I fail to see how compliance with these postulates should result in a disregard for constitutional liberties. I agree with the first postulate. It is a general proposition that extradition is a major instrument for the suppression of crime and the Philippines should cooperate in facilitating the arrest and custodial transfer of a fugitive from one State to another. However, I cannot see how compliance with the requirements for notice and hearing and the ascertainment of reasonable cause would hamper the suppression of crime. If they do, why should they appear in our laws and in the decisions of this Court? Does obedience to the dictates of due process and the prohibition against unreasonable seizures mean any lesser determination to eradicate crime? Effective extradition arrangements and deterrence of flight abroad by felons are not incompatible with fundamental liberties. The act of according due process and reasonable seizures does not make the Philippines an isolationist state. The employment of beneficial objectives to justify the repression of far more worthy values is pejorative in nature, one in which the Court should not engage. The second postulate is based on the apriorism that the two parties to an extradition treaty accept and trust each others legal system and judicial processes. We trust the fairness of the American system of justice. However, why should we assume that it is a breach of trust which the requesting country will look upon with disfavor if we accord notice and hearing to the respondent before a warrant of arrest is issued? If bail is allowed while the extradition petition is pending before the trial court, does this signify a lack of confidence on our part in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited? The Constitution of the United States provides that "(t)he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and

seizures shall not be violated and no warrants shall issue, but on probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized." 6 The offenses upon which the request for extradition is premised are relatively light. Undoubtedly, bail will be given by the American courts on the basis of a presumption of innocence and the lack of gravity of the offenses. If the alleged offenses themselves are bailable both here and in the United States, I see no connection between the grant of the right against unreasonable seizures or the right of bail and the gratuitous assertion of the majority opinion that this is an absence of trust and confidence in the American legal system and judicial process. The guarantees of the Philippine Bill of Rights are derived from American sources. Why should we withhold them out of a misplaced fear that their grant may be interpreted as a lack of faith in the American judicial system? The third postulate states that extradition proceedings are sui generis. It is a dogma pernicious in its consequences to declare that a classification of sui generis lifts a court proceeding beyond constitutional protections. The trial before the respondent court is not criminal in nature. It is less onerous than a criminal prosecution. Yet, the majority opinion confers upon one accused of grave crimes far greater rights than an extraditee whose guilt of lesser offenses is not even in issue. Classifying a proceeding as sui generis does not mean that procedural guarantees available in criminal prosecutions, civil trials, or administrative proceedings are thereby waived or become irrelevant. The classification should not mean exemption from notice or hearing for the issuance of a warrant of arrest. It cannot result in non-entitlement to bail. The process of extradition does not involve the determination of the guilt of an accused. The majority opinion states that extradition is merely a measure of international judicial assistance to restore a person charged with crime to the jurisdiction with the best claim to try him. If so why should the person sought to be extradited be imprisoned without bail while the grant of assistance is pending? With more reason should constitutional protections be given to him. The correctness of a decision to forcibly remove a person from his homeland, family, and friends should not be taken lightly. In determining whether the extradition request complies with the extradition treaty, the trial court should not be encouraged by a postulate to act in a cavalier manner or treat the proceedings as inconsequential in nature. The majority opinion states as its fourth postulate that compliance with treaties shall be in good faith. If the respondent court grants bail to the respondent in extradition proceedings, does this constitute a failure to fulfill our obligations under the extradition treaty? I am not aware of any treaty which requires the incarceration of a respondent while the court determines whether or not he falls under the treaty provisions. Why should the furnishing of notice and the holding of a hearing for an arrest warrant paint a bad picture of our country before the world community? There should be a contrary impression of adherence to fairness and justice. We cannot fault the trial court for adopting procedural safeguards which help insure the correctness of its decision. If compliance in good faith with the treaty requires that the respondent be immediately seized and confined in the national penitentiary, why should an extradition trial still be held? We might as well give full faith and credence to the request for extradition and without any trial or hearing, place the respondent in the next airplane leaving for the requesting country. The discussion in the majority opinion of the postulates of extradition implies that the implementation of an extradition treaty rarely or never results in a refusal to allow extradition and that the court proceedings do not amount to anything more than a formality. Otherwise, why should he languish in the penitentiary while his extradition case is pending?

The fifth and last postulate uses the underlying risk of flight. To say that all persons sought to be extradited have a propensity to flee is too sweeping a statement to be adopted as an axiom. In every criminal prosecution, the prosecution can, with greater reason, argue that the accused will escape and go into hiding. But never has the possibility of flight sufficed to always require incarceration while court proceedings are going on. The opposite practice is the one we have adopted. The right to bail has been elevated into a constitutional guarantee. Only for the most serious of offenses when evidence of guilt is strong may an accused be denied freedom upon the posting of bail prior to his conviction. 7 In fact, the Revised Rules of Criminal Procedure, as amended, provide that any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held. 8 The respondent is not charged of any crime before our courts. The five postulates of extradition outlined in the majority opinion are motherhood statements over which there can be no quarrel. However, these postulates should be interpreted in a manner that preserves procedural safeguards instead of being used to support the petitioner's intent to cut corners. Compliance with treaty obligations does not mean unquestioning obedience to everything stated in a petition for extradition. The allegations will still be proved, refuted, and determined. Much less does it result in instant seizure without notice and hearing or incarceration without any recourse to legal methods of gaining provisional liberty. Is the respondent entitled to notice and hearing before the issuance of a warrant of

extradition proceedings any and all constitutional protections. Methods of dealing with terrorists should not be used against suspected tax evaders or violators of election laws. The fact that terrorists are denied bail is not reason to deny this constitutional guarantee to persons being tried for offenses where no individual is a victim. It is error to expect that all persons against whom charges have been filed would voluntarily and cheerfully submit to trial. There are procedural safeguards such as preliminary investigation intended to secure a person presumed innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense, and anxiety of a public trial and also to protect the state from useless and expensive trials. 11 For both the State and the accused, there could be sound reasons to oppose or avoid prosecution. If there is reason in some cases for the State not to prosecute, there is greater reason for a prospective accused to take all steps that would prevent his having to go before a criminal court. We may assume that any fears of oppressive prosecution in the mind of the private respondent are unfounded and imagined. This should not lead the Court to conclude that a natural aversion to criminal prosecution is always based on ignoble or indefensible reasons. Neither should a natural desire to avoid unpleasant situations be used to deny basic rights and privileges. I submit that it is a dangerous precedent for this Court to rule that the prima facie existence of probable cause for a warrant of arrest can be derived from a mere reading of the petition for extradition and its supporting documents. The determination of probable cause is effectively taken away from the judge and transferred to the Department of Justice. Worse, the determination could come directly from an office not equipped to make it, namely the Department of Foreign Affairs. In either case, the Constitution is infringed. The majority opinion is overly influenced by the fear that a person sought to be extradited would be tempted to flee. Of course, it is natural for any person facing court litigation of any kind to try to avoid it. An accused already being tried in court or an appellant who appeals a judgment of conviction has greater reason to flee if possible. Yet, this is not cause to deny him notice of proceedings or the right of provisional liberty while his case is pending. If bail is going to be denied respondent Jimenez, it should be after a full hearing and with the application of all constitutional guarantees. The majority opinion states that under the Constitution only the complainants and the witnesses he may produce are required to be examined. 12 It overlooks that in this case no complainant and no witness has been examined. A warrant of arrest is ordered issued on the sole basis of documents. There may be no requirement to notify and hear the accused before a warrant of arrest is issued. But neither is there any prohibition against the judge hearing an accused before a warrant is issued; more so if he is already in court and strongly opposes his being arrested pending trial. In his search for the truth, the judge should not be restrained in the exercise of sound discretion. In this case, the petition has already been filed. The respondent has submitted himself to the jurisdiction of the trial court. The motion to have him arrested and detained is an incident of the pending case. There is no need to take him into custody in order to make him forthcoming for trial. 13 Mr. Jimenez appears to be more than willing and, in fact, is already answering the request for extradition. He is not before the court to answer for any crime. But he is there. Strangely, the court would deny him provisional liberty in a case not criminal in nature but which could make him answer for alleged offenses in another country if the court

arrest?

The majority opinion agrees with the Department of Justice that the Regional Trial Court committed grave abuse of discretion when it informed the respondent that an extradition petition had been filed against him and that petitioner was seeking his arrest. The opinion states that the exercise of discretion by the judge is a notice to escape and to avoid extradition. The truth is that long before January 18, 2000 when G.R. No. 139465 was decided, 9 respondent was fully aware of the information which this Court now declares should not have been given to him. Respondent could have fled but he did not do so. Instead, he made himself more visible; he ran for Congress and engaged in various civic activities always in the public eye. Paraphrasing the ruling in G.R. No. 139465 on the motion for reconsideration, the threat of private respondent's flight from the Philippines has passed. It is more imagined than real at this time. 10 Petitioner states that the procedure requiring notice and hearing will set a dangerous precedent. The Court agrees that those sought to be extradited including terrorists, mass murderers and war criminals may invoke it in future extradition cases. To lump up respondent Jimenez and all persons in extradition proceedings with terrorists, mass murderers, and war criminals is contrary to all rules of reasonable and valid classification. Respondent is charged before the district court of Florida with conspiracy to defraud, attempted tax evasion, fraud through the use of radio television, false statements, and unlawful election contributions. There is absolutely no indication of terrorism, mass murder, or war crimes against him. He is definitely not a candidate for confinement in the Guantanamo Prison Compound. The fear of terrorists is not reason to deprive all subjects of

should decide against him. What cannot be denied to him in the criminal prosecution is denied in a case which may or may not lead to such prosecution. The absence of logic behind the majority opinions denial of basic rights becomes clearer when it comes to the issue on the right to bail. The reason given for the denial of the right to bail is not merely deceptive; it has dangerous implications. It states that the constitutional provision on bail applies only when a person has been arrested and detained for violation of Philippine Criminal Law. The reasoning states, that ergo, the right to bail does not exist in non-criminal prosecutions. The absence of a constitutional provision on the right to bail of a person subject to extradition is simply based on the fact that the idea of incarcerating a person for something other than crime never occurred to the framers of the Constitution. There can be no forcible detention in non-criminal situations. Incarceration for something not related to crime would be arbitrary detention or illegal detention. It could even be slavery or involuntary servitude. In all these cases, the issue of bail does not arise. If we insist on classifying extradition as a proceeding not covered by the protections given to accused persons, we should rule that bail is not provided because the respondent is not supposed to be imprisoned. There is no need for bail because the detention is illegal in cases not related to crime. Extradition cases may not be criminal in nature. But they assist and precede criminal prosecutions. The petitioner twists the right to bail out of context when it argues that the right available during criminal prosecutions is irrelevant and should be disregarded when the court action is non-criminal in nature and, therefore, it is not available in civil, administrative, regulatory, and extradition proceedings. The fallacy of the argument is readily apparent. I cannot go along with the proposition that a person who tries to avoid criminal prosecution is always a criminal, coward, or weakling who prefers to run and hide. There are many reasons why people will fear trial in criminal cases. It is not overprotection or excessively liberal treatment to enforce constitutional guarantees in extradition cases. It is fairness and adherence to the rule of law. The judge has discretion on whether or not he should allow bail. He should have a sound basis for the probability or likelihood of flight. The majority opinion starts by asking two questions. (1) Are prospective extraditees entitled to notice and hearing before warrants for their arrest are issued? and (2) Are they entitled to bail and provisional liberty while extradition proceedings are pending? The answer is a curt "No". By the brevity and terse nature of the answer, it seems absolute and inflexible. Towards the end of the majority opinion, 14 however, two exceptions are allowed. First, the applicant is not a flight risk. Second, there exist special and compelling circumstances. To my mind, the issues in this case should be framed differently. On the first question, the present provisions of law and decisions of this Court on arrests and seizures should be assumed and followed. On the second question, the Court should apply the same principles on the right to bail found in the Constitution to persons facing trial for extradition. Thus, all persons, except those where the probability of flight is clear and present or the crimes for which extradition is sought are heinous, shall before judgment in the extradition proceedings, 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 where the requesting country is one with which the Philippines maintains strong ties. Excessive bail shall not be required. 15

The majority opinion cites my ponencia in People v. Jalosjos. 16 Jalosjos was already convicted and his appeal was pending when he was re-elected. The crime of statutory rape where a minor is involved is particularly heinous. The evidence of guilt was not merely strong; it was beyond reasonable doubt as found in our decision. Disenfranchisement of constituents is not reason for his release. The case of Congressman Jimenez is an entirely different one. Respondent has not even faced trial as yet. There can be no proof of strong evidence against him. All we have are still accusations. Respondent is not charged with heinous crimes. The alleged tax evasion is at the stage of attempt. The defraudation is part of a conspiracy. Perjury and illegal election contributions are relatively not so serious offenses as to support denial of the right to bail. The respondents being a Congressman should be viewed from the aspect of possibility of flight. Why should a person run for Congress, campaign all over his district, and expose himself regularly to newspaper media and television if he intends to flee the country? There is a hold-order against him found in all ports of exit and entry. When his constituents voted Jimenez to Congress knowing fully well that an extradition case was or could be filed against him, it was an expression of confidence that he would not run away. Their faith may be misplaced or proved wrong later, but today, it must be taken at face value as against mere suppositions, fears, and apprehensions. The rules on denial of bail where possibility of flight is established must be followed. The request for extradition comes from the United States. In the course of the most perilous period in the life of that nation, the American Supreme Court stated that "the constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. xxx xxx xxx no doctrine involving more pernicious consequences was ever invented by the next of man than that its provisions can be suspended during any of the great exigencies of government." 17 The extradition of respondent is not an exigency of government. The provisions of the Bill of Rights of the two States which entered into the treaty are fully applicable in extradition. If a person is to be arrested and detained, current laws and procedures for arrests and detentions should be employed. The novelty of extradition cases in the Philippines cannot result in any suspension or disregard of basic liberties whether here or in the United States. The mantle of constitutional protections should cover persons covered by extradition requests. I vote to dismiss the petition. Concurring Opinion Carpio, J: I concur with the well-written ponencia of Justice Panganiban. I write this concurring opinion to afford extraditees in this country the right to bail, in carefully limited exceptions, under the equity and rule making power of the Court. It is the constitutional duty and power of the Court to protect and enforce the fundamental rights 1 of all persons in this country. This should include, to the extent that the Court can grant under its power, the right of extraditees

in this country to avail of the same or similar remedies that courts in the countries of our treaty partners have accorded to their own extraditees. The right to bail is a constitutional right available to an accused in domestic criminal proceedings except in offenses punishable by reclusion perpetua or higher when evidence of guilt is strong. 2 An extraditee, however, cannot invoke this constitutional right in international extradition because extradition proceedings are not criminal proceedings. Extradition proceedings are like deportation and court martial proceedings where there is no constitutional right to bail. Thus, in the leading case of Ong See Hang v. Commissioner of Immigration, 3 the Court held that: The right to bail guaranteed by the Constitution may not be invoked in favor of petitioners-appellees, considering that deportation proceedings do not constitute a criminal action (Lao Tang Bun v. Fabre, 81 Phil. 682; U. S. ex rel. Zapp, et al. v. District Director of Immigration and Naturalization, supra) and the order of deportation is not a punishment for a crime (U. S. v. Go-Siaco, 12 Phil. 490; Mahler v. Eby, 264 U. S. 32), it being merely for the return to his country of an alien who has broken the conditions upon which he could continue to reside within our borders (U. S. v. De los Santos, 33 Phil. 397, Lao Tang Bun v. Fabre, supra)." This was reiterated in several cases, the most recent being In RE Andrew Harvey v. Santiago, 4 decided under the 1987 Constitution. Here, the Court ruled that: The denial by respondent Commissioner of petitioners' release on bail, also challenged by them, was in order because in deportation proceedings, the right to bail is not a matter of right but a matter of discretion on the part of the Commissioner of Immigration and Deportation. Thus, Section 37(e) of the Philippine Immigration Act of 1940 provides that "any alien under arrest in a deportation proceeding may be released under bond or under such other conditions as may be imposed by the Commissioner of Immigration." The use of the word "may" in said provision indicates that the grant of bail is merely permissive and not mandatory on the part of the Commissioner. The exercise of the power is wholly discretionary (Ong Hee Sang vs. Commissioner of Immigration, L-9700, February 28, 1962, 4 SCRA 442). "Neither the Constitution nor Section 69 of the Revised Administrative Code guarantees the right of aliens facing deportation to provisional liberty on bail." (Tiu Chun Hai, et al vs. Deportation Board, 104 Phil. 949 [1958]). As deportation proceedings do not partake of the nature of a criminal action, the constitutional guarantee to bail may not be invoked by aliens in said proceedings (Ong Hee Sang vs. Commissioner of Immigration, supra)." In Commendador v. de Villa, 5 involving the court martial of military putschists against the Aquino Government, the Court held that: We find that the right to bail invoked by the private respondents in G.R. No(s). 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that `the right to a speedy trial is given more emphasis in the military where the right to bail does not exist." The justification for this exception was well explained by the Solicitor General as follows:

`The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system. National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on "provisional" bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians." Finally, in Secretary of Justice v. Lantion, 6 the Court, speaking through Justice Reynato S. Puno, declared that: We are not persuaded. An extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation. As held by the US Supreme Court in United States v. Galanis: `An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty. There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited `upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in

balancing the equities of the case and the demands of the nation's foreign relations before making the ultimate decision to extradite. As an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not necessarily apply to the former. This we hold for the procedural due process required by a given set of circumstances "must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action." The concept of due process is flexible for "not all situations calling for procedural safeguards call for the same kind of procedure." Clearly, in this jurisdiction there is no constitutional or statutory right to bail in noncriminal proceedings like in extradition. This doctrine is so well-entrenched in this jurisdiction that there is no need to belabor this point. Courts in the countries of our treaty partners, however, have allowed bail to extraditees in their own countries even in the absence of a constitutional 7 or statutory 8 right to bail. This places our own citizens who face extradition proceedings in this country at a disadvantage in terms of available remedies. The United States, for example, allows bail to extraditees when "special circumstances" 9 are present. Canada also allows bail under a similar rule. 10 This situation calls for equality in treatment by extending, in carefully limited exceptions, the right to bail to those facing extradition proceedings in this country. Nevertheless, we must insure that we do not cripple the ability of our Executive Department to comply in good faith with our treaty obligations under international law. This requires a calibrated balancing, on the one hand, of the States interest in cooperating with our treaty partners in international criminal law enforcement, and on the other hand, of the need to give our own citizens no lesser right and protection than what our treaty partners so zealously provide to their own citizens. Thus, following the emerging trend in the United States, 11 and guided by our own experience in combating transnational crimes including international terrorism, the Court should rule that our extradition courts may, after the arrest of the extraditee, grant the extraditee bail if he establishes that he does not pose a flight risk or a danger to the community, and there is no other special circumstance that would warrant denial of bail. The burden of proving he is entitled to bail rests on the extraditee because by resisting the extradition to face a fair trial abroad, the extraditee is presumed to be a flight risk. This is why courts have consistently held that the presumption is against bail in extradition cases. 12 The development of extradition law is still in its infancy in this country. We are fortunate that the present Constitution has empowered the Court to adopt rules to protect and enforce the fundamental rights of the people. In the United States, the grant of bail to extraditees is still largely governed by the 1903 case of Wright v. Henkel, with only the cryptic "special circumstances" as the standard prescribed by the U.S. Supreme Court for extradition courts in the U.S. to follow. 13 The instant case provides the opportunity for this Court to lay down a clear-cut guideline for our own extradition courts to follow. This will insure that our Executive Department can comply promptly with extradition requests as required by the nature of our treaty obligations while at the same time protecting the fundamental rights of our citizens. In essence, extradition is police assistance extended by a state to arrest a person charged with a crime in another state and surrender him to the authorities of that state. The power to arrest by the assisting state is legitimized by a treaty, which has the force of a

statute 14 and forms part of municipal law. 15 The benefit of extradition is the mutual assistance between states in criminal law enforcement across national boundaries. The assisting state acts as an arresting agent and in some jurisdictions the extradition process is mainly an executive function. Even under our extradition treaties, the final decision whether to extradite or not rests with the President of the Philippines, not with the courts. 16 Thus, ordinarily an assisting state does not grant bail to the extraditee whose recourse is to apply for bail before the court of the state where he is charged with a crime. The assisting state, however, for equity considerations may choose to accord bail to the extraditee. One equity consideration is to put extraditees in one country in equal footing with extraditees in the country of the treaty partner. Another equity consideration is to grant the right to bail, in carefully limited exceptions, to preserve and enforce fundamental rights. This rule will not change the situation for extraditee Mark B. Jimenez in the instant case because Jimenez has failed to establish that he is not a flight risk. Having fled the United States just as he was about to be indicted for several serious crimes, Jimenez is presumed to be a flight risk for extradition purposes in this country. Jimenez has not successfully rebutted this presumption before the extradition court. Jimenez has also refused to honor his agreement with the U.S. Department of Justice, made in August 1998 through his U.S. counsel, to return to the United States 17 where he faces a maximum prison term of not less than 100 years if convicted on all counts. 18 Given his resources, and the gravity of the charges against him, Jimenez remains a serious flight risk. The special circumstances" that Jimenez has alleged do not inspire confidence that he will not likely flee. Jimenez claims that he has been admitted to the Witness Protection Program which shows his lack of intent to flee. The Department of Justice, however, has disowned issuing to Jimenez a Certificate of Admission to the Witness Protection Program. The Department of Justice should know who have been admitted to the Witness Protection Program because the Department itself administers the Program. Under the Witness Protection, Security and Benefit Act, the issuance of the Certificate of Admission is the operative act that establishes admission to the Program. 19 Unless he can present a Certificate of Admission, Jimenezs claim should be rejected, and even taken as an act of misrepresentation to the extradition court, in view of the statement by the Department of Justice that there is no record of Jimenezs admission to the Program. 2 20 For the same reason, Jimenezs claim that he is a state witness in the plunder case against ex-President Joseph Estrada, and that "his flight would strip him of (the) immunity he is entitled to," 2 21 cannot be given credence. Under the Witness Protection, Security and Benefits Act, the Certificate of Admission is essential to the discharge of the accused and his utilization as a state witness. 2 22 Without the Certificate of Admission, Jimenez is not entitled to immunity under the Program. 2 23 The Department of Justice will issue the Certificate of Admission only if it is satisfied with the proposed testimony of the witness as disclosed in his sworn statement. Since until now the Department of Justice has not issued a Certificate of Admission to Jimenez, it could mean that the Department is either not satisfied with what Jimenez is bargaining to testify against ex-President Joseph Estrada, or that Jimenez may not be the least guilty. 2 24 Unless Jimenez presents to the extradition court the Certificate of Admission, and this he has not done, Jimenezs claim of being a state witness against exPresident Estrada is baseless and self-serving. Jimenez claims that the Department of Justice knows his whereabouts because he is under 24-hour PNP protection. Jimenez asserts in his Sworn Statement 2 25 that the Department of Justice has provided him police protection because he "was admitted into the Witness Protection Program of the DOJ on 2 March 2001." This is patently false. The Department of Justice states that there is no record of Jimenezs admission to the Witness

Protection Program. Jimenez has not presented a Certificate of Admission to the Program which under the Witness Protection, Security and Benefits Act would entitle him to the benefits, protection and immunities of the Program. That Jimenez enjoys the privilege of a 24-hour PNP security detail does not establish that he is a state witness under the Witness Protection Program. As a member of the House of Representatives, Jimenez may have requested the PNP to provide him a security detail for his own benefit and protection. In such a case, the PNP security detail takes instructions from Jimenez and not from the Department of Justice. The 24-hour PNP security detail would hardly be effective in preventing Jimenez from fleeing the country. The other special circumstances" alleged by Jimenez, like his seven children residing in the Philippines, and his lack of visas to travel to other countries, deserve scant consideration. Considering his age, Jimenezs seven children are all probably of age by now, and even if they are all still minors, they would hardly become public charges if left behind in the Philippines. The lack of visas has never deterred the flight of fugitives from any country. Besides, any Filipino can travel to any of our nine ASEAN neighbors without need of a visa. Accordingly, I vote to grant the petition.

(3) The accused-appellant shall forthwith surrender his passport to the Division Clerk of Court for safekeeping until the court orders its return; G.R. No. 141529 June 6, 2001 (4) Any violation of the aforesaid conditions shall cause the forfeiture of accused-appellant's bail bond, the dismissal of appeal and his immediate arrest and confinement in jail. SO ORDERED.5 A motion for reconsideration was filed, seeking the reduction of the amount of bail fixed by respondent court, but was denied in a resolution issued on November 25, 1999. Hence, this petition. Petitioner sets out the following assignments of error: The respondent Court of Appeals committed grave abuse of discretion in fixing the bail of the provisional liberty of petitioner pending appeal in the amount of P5 .5 million. The respondent Court of Appeals committed grave abuse of discretion in basing the bail for the provisional liberty of the petitioner on his civil liability. The respondent Court of Appeals unduly restricted petitioner's constitutional liberty of abode and travel in imposing the other conditions for the grant of bail. Petitioner contends that the Court of Appeals, by setting bail at a prohibitory amount, effectively denied him his right to bail. He challenges the legal basis of respondent court for fixing bail at P5,500,000.00, which is equivalent to the amount of his civil liability to private complainant Manila Mahogany Marketing Corporation, and argues that the Rules of Court never intended for the civil liability of the accused to be a guideline or basis for determining the amount of bail. He prays that bail be reduced to at least P40,000.00, citing the maximum amount of bail that can be posted for the crime of estafa under the 1996 Bail Bond Guide, or P20,000.00, equivalent to the amount of bail he posted during the trial of the case.6 On the other hand, the Solicitor General maintains that no grave abuse of discretion could be ascribed to the Court of Appeals for fixing the amount of bail at P5,500,000.00 considering the severity of the penalty imposed, the weight of the evidence against petitioner, and the gravity of the offense of which petitioner was convicted by the RTC. He asserted that the P5,500,000.00 not only corresponded to civil liability but also to the amount of fraud imputed to petitioner. The Solicitor General further pointed out the probability of flight in case petitioner is released on bail, it having been established that petitioner was in possession of a valid passport and visa and had in fact left the country several times during the course of the proceedings in the lower court. It was also shown that petitioner used different names in his business transactions and had several abodes in different parts of the country. As for the conditions imposed by the bail bond, the Solicitor General advanced that all that the Court of Appeals requires is notice in case of change of address; it does not in any way impair petitioner's right to change abode for as long as the court is apprised of his change of residence during the pendency of the appeal.

FRANCISCO YAP, JR., aka EDWIN YAP, petitioner, vs. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. GONZAGA-REYES, J.: The right against excessive bail, and the liberty of abode and travel, are being invoked to set aside two resolutions of the Court of Appeals which fixed bail at P5,500,000.00 and imposed conditions on change of residence and travel abroad. For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted of estafa by the Regional Trial Court of Pasig City1 and was sentenced to four years and two months of prision correctional, as minimum to eight years of prision mayor as maximum, "in addition to one (1) year for each additional P10,000.00 in excess of P22,000.00 but in no case shall it exceed twenty (20) years."2 He filed a notice of appeal, and moved to be allowed provisional liberty under the cash bond he had filed earlier in the proceedings. The motion was denied by the trial court in an order dated February 17,1999. After the records of the case were transmitted to the Court of Appeals, petitioner filed with the said court a Motion to Fix Bail For the Provisional Liberty of Accused Appellant Pending Appeal, invoking the last paragraph of Section 5, Rule 114 of the 1997 Revised Rules of Court. Asked to comment on this motion, the Solicitor General opined that petitioner may be allowed to post bail in the amount of P5,500,000.00 and be required to secure "a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be so until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court and private complainant."3 Petitioner filed a Reply, contending that the proposed bail ofP5,500,000.00 was violative of his right against excessive bail. The assailed resolution of the Court of Appeals4, issued on October 6, 1999, upheld the recommendation of the Solicitor General; thus, its dispositive portion reads: WHEREFORE, premises considered, the "Motion to Fix Bail For Provisional Liberty of Accused-Appellant Pending Appeal" is hereby GRANTED. Accused-appellant Francisco Yap, Jr., a.k.a. Edwin Yap is hereby ALLOWED TO POST BAIL in the amount of Five Million Five Hundred Thousand (P5,500,000.00) Pesos, subject to the following conditions, viz. : (1) He (accused-appellant) secures a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court; (2) The Commission of lmmigration and Deportation (CID) is hereby directed to issue a hold departure order against accused-appellant; and

Petitioner's case falls within the provisions of Section 5, Rule 114 of the 1997 Rules of Court which states: SEC. 5. Bail, when discretionary. -- Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period to appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding six (6) years, but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification; (c) That the accused committed the offense while on probation, parole, or under conditional pardon; (d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime. The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party.7 There is no question that in the present case the Court of Appeals exercised its discretion in favor of allowing bail to petitioner on appeal. Respondent court stated that it was doing so for "humanitarian reasons", and despite a perceived high risk of flight, as by petitioner's admission he went out of the country several times during the pendency of the case, for which reason the court deemed it necessary to peg the amount of bail at P5,500,000.00. The prohibition against requiring excessive bail is enshrined in the Constitution.8 The obvious rationale, as declared in the leading case of De la Camara vs. Enage,9 is that imposing bail in an excessive amount could render meaningless the right to bail. Thus, in Villaseor vs. Abano,10 this Court made the pronouncement that it will not hesitate to exercise its supervisory powers over lower courts should the latter, after holding the accused entitled to bail, effectively deny the same by imposing a prohibitory sum or exacting unreasonable conditions. xxx There is grim irony in an accused being told that he has a right to bail but at the same time being required to post such an exorbitant sum. What aggravates the

situation is that the lower court judge would apparently yield to the command of the fundamental law. In reality, such a sanctimonious avowal of respect for a mandate of the Constitution was on a purely verbal level. There is reason to believe that any person in the position of petitioner would under the circumstances be unable to resist thoughts of escaping from confinement, reduced as he must have been to a state of desperation. In the same breath as he was told he could be bailed out, the excessive amount required could only mean that provisional liberty would be beyond his reach. It would have been more forthright if he were informed categorically that such a right could not be availed of. There would have been no disappointment of expectations then. It does call to mind these words of Justice Jackson, "a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will." XXX11 At the same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure advises courts to consider the following factors in the setting of the amount of bail: (a) Financial ability of the accused to give bail; (b) Nature and circumstances of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Age and health of the accused; (f) Weight of the evidence against the accused; (g) Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when arrested; and (j) Pendency of other cases where the accused is on bail. Thus, the court has wide latitude in fixing the amount of bail. Where it fears that the accused may jump bail, it is certainly not precluded from installing devices to ensure against the same. Options may include increasing the bail bond to an appropriate level, or requiring the person to report periodically to the court and to make an accounting of his movements.12 In the present case, where petitioner was found to have left the country several times while the case was pending, the Court of Appeals required the confiscation of his passport and the issuance of a hold-departure order against him. Under the circumstances of this case, we find that appropriate conditions have been imposed in the bail bond to ensure against the risk of flight, particularly, the combination of the holddeparture order and the requirement that petitioner inform the court of any change of residence and of his whereabouts. Although an increase in the amount of bail while the case is

on appeal may be meritorious, we find that the setting of the amount at P5,500,000.00 is unreasonable, excessive, and constitutes an effective denial of petitioner's right to bail. The purpose for bail is to guarantee the appearance of the accused at the trial,13 or whenever so required by the Court14. The amount should be high enough to assure the presence of the accused when required but no higher than is reasonably calculated to fulfill this purpose.15 To fix bail at an amount equivalent to the civil liability of which petitioner is charged (in this case, P5,500,000.00).is to permit the impression that the amount paid as bail is an exaction of the civil liability that accused is charged of; this we cannot allow because bail is not intended as a punishment, nor as a satisfaction of civil liability which should necessarily await the judgment of the appellate court. At the same time, we cannot yield to petitioner's submission that bail in the instant case be set at P40,000.00 based on the 1996 Bail Bond Guide. (The current Bail Bond Guide, issued on August 29, 2000, maintains recommended bail at P40,000.00 for estafa where the amount of fraud is P142,000.00 or over and the imposable penalty 20 years of reclusion temporal). True, the Court has held that the Bail Bond Guide, a circular of the Department of Justice for the guidance of state prosecutors, although technically not binding upon the courts, "merits attention, being in a sense an expression of policy of the Executive Branch, through the Department of Justice, in the enforcement of criminal laws."16 Thus, courts are advised that they must not only be aware but should also consider the Bail Bond Guide due to its significance in the administration of criminal justice.17 This notwithstanding, the Court is not precluded from imposing in petitioner's case an amount higher than P40,000.00 (based on the Bail Bond Guide) where it perceives that an appropriate increase is dictated by the circumstances. It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114 of the Revised Rules of Criminal Procedure is clear that although the grant of bail on appeal is noncapital offenses is discretionary, when the penalty imposed on the convicted accused exceeds six years and circumstances exist that point to the probability of flight if released on bail, then the accused must be denied bail, or his bail previously granted should be cancelled.18 In the same vein, the Court has held that the discretion to extend bail during the course of the appeal should be exercised with grave caution and for strong reasons, considering that the accused had been in fact convicted by the trial court.19 In an earlier case, the Court adopted Senator Vicente J. Francisco's disquisition on why bail should be denied after judgment of conviction as a matter of wise discretion; thus: The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the burden is upon the accused to show error in the conviction. From another point of view it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is much more likely to attempt to escape if liberated on bail than before conviction.xxx20 Petitioner is seeking bail on appeal. He was in fact declared guilty beyond reasonable doubt by the RTC, and due to the serious amount of fraud involved, sentenced to imprisonment for twenty years --the maximum penalty for estafa by false pretenses or fraudulent acts allowed by the Revised Penal Code. Although it cannot be controverted that the Court of Appeals, despite the foregoing considerations and the possibility of flight still wielded its discretion to

grant petitioner bail, the setting of bail in the amount of P5,500,000.00 is unjustified as having no legal nor factual basis. Guided by the penalty imposed by the lower court and the weight of the evidence against petitioner, we believe that the amount of P200,000.00 is more reasonable. Petitioner also contests the condition imposed by the Court of Appeals that he secure "a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court", claiming that the same violates his liberty of abode and travel. Notably, petitioner does not question the hold-departure order which prevents him from leaving the Philippines unless expressly permitted by the court which issued the order.21 In fact, the petition submits that "the hold-departure order against petitioner is already sufficient guarantee that he will not escape. Thus, to require him to inform the court every time he changed his residence is already unnecessary."22 The right to change abode and travel within the Philippines, being invoked by petitioner, are not absolute rights. Section 6, Article III of the 1987 Constitution states: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as contemplated by the above provision.23 The condition imposed by the Court of Appeals is simply consistent with the nature and function of a bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires his presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from changing abode; he is merely required to inform the court in case he does so. WHEREFORE, the petition is PARTIALLY GRANTED. Petitioner's bail pending appeal is reduced from P5,500,000.00 to P200,000.00. In all other respects, the resolutions of the Court of Appeals, dated October 6, 1999 and November 25, 1999, respectively, are AFFIRMED. No pronouncement as to costs. SO ORDERED. 1wphi1.nt

G.R. No. 129670

February 1, 2000

MANOLET O. LAVIDES, petitioner, vs. HONORABLE COURT OF APPEALS; HON. ROSALINA L. LUNA PISON, Judge Presiding over Branch 107, RTC, Quezon City; and PEOPLE OF THE PHILIPPINES, respondents. MENDOZA, J.: Petitioner Manolet Lavides was arrested on April 3, 1997 for child abuse under R.A. No. 7610 (AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, PROVIDING PENALTIES FOR ITS VIOLATION, AND OTHER PURPOSES). His arrest was made without a warrant as a result of an entrapment conducted by the police. It appears that on April 3, 1997, the parents of complainant Lorelie San Miguel reported to the police that their daughter, then 16 years old, had been contacted by petitioner for an assignation that night at petitioner's room at the Metropolitan Hotel in Diliman, Quezon City. Apparently, this was not the first time the police received reports of petitioner's activities. An entrapment operation was therefore set in motion. At around 8:20 in the evening of April 3, 1997, the police knocked at the door of Room 308 of the Metropolitan Hotel where petitioner was staying. When petitioner opened the door, the police saw him with Lorelie, who was wearing only a t-shirt and an underwear, whereupon they arrested him. Based on the sworn statement of complainant and the affidavits of the arresting officers, which were submitted at the inquest, an information for violation of Art. III, 5(b) of R.A. No. 7610 was filed on April 7, 1997 against petitioner in the Regional Trial Court, Quezon City, where it was docketed as Criminal Case No. Q-97-70550.1wphi1.nt On April 10, 1997, petitioner filed an "Omnibus Motion (1) For Judicial Determination of Probable Cause; (2) For the Immediate Release of the Accused Unlawfully Detained on an Unlawful Warrantless Arrest; and (3) In the Event of Adverse Resolution of the Above Incident, Herein Accused be Allowed to Bail as a Matter of Right under the Law on Which He is Charged.1 On April 29, 1997, nine more informations for child abuse were filed against petitioner by the same complainant, Lorelie San Miguel, and by three other minor children, Mary Ann Tardesilla, Jennifer Catarman, and Annalyn Talingting. The cases were docketed as Criminal Case Nos. Q97-70866 to Q-97-70874. In all the cases, it was alleged that, on various dates mentioned in the informations, petitioner had sexual intercourse with complainants who had been "exploited in prostitution and . . . given money [by petitioner] as payment for the said [acts of] sexual intercourse." No bail was recommended. Nonetheless, petitioner filed separate applications for bail in the nine cases. On May 16, 1997, the trial court issued an order resolving petitioner's Omnibus Motion, as follows: WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that:

1. In Crim. Case No. Q-97-70550, there is probable cause to hold the accused under detention, his arrest having been made in accordance with the Rules. He must therefore remain under detention until further order of this Court; 2. The accused is entitled to bail in all the above-entitled case. He is hereby granted the right to post bail in the amount of P80,000.00 for each case or a total of P800,000.00 for all the cases under the following conditions: a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall and must always be present at the hearings of these cases; b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trialin absentia; c) The hold-departure Order of this Court dated April 10, 1997 stands; and d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to immediately acquire jurisdiction over the accused; 3. Let these cases be set for arraignment on May 23, 1997 at 8:30 o'clock in the morning.2 On May 20, 1997, petitioner filed a motion to quash the informations against him, except those filed in Criminal Case No. Q-97-70550 or Q-97-70866. Pending resolution of his motion, he asked the trial court to suspend the arraignment scheduled on May 23, 1997.3 Then on May 22, 1997, he filed a motion in which he prayed that the amounts of bail bonds be reduced to P40,000.00 for each case and that the same be done prior to his arraignment.4 On May 23, 1997, the trial court, in separate orders, denied petitioner's motions to reduce bail bonds, to quash the informations, and to suspend arraignment. Accordingly, petitioner was arraigned during which he pleaded not guilty to the charges against him and then ordered him released upon posting bail bonds in the total amount of P800,000.00, subject to the conditions in the May 16, 1997 order and the "hold-departure" order of April 10, 1997. The pre-trial conference was set on June 7, 1997. On June 2, 1997, petitioner filed a petition for certiorari (CA-G.R. SP No. 44316) in the Court of Appeals, assailing the trial court's order, dated May 16, 1997, and its two orders, dated May 23, 1997, denying his motion to quash and maintaining the conditions set forth in its order of May 16, 1997, respectively. While the case was pending in the Court of Appeals, two more informations were filed against petitioner, bringing the total number of cases against him to 12, which were all consolidated. On June 30, 1997, the Court of Appeals rendered its decision, the dispositive portion of which reads:

WHEREFORE, considering that the conditions imposed under Nos. 2-a) and 2-b),5 of the May 23 [should be May 16], 1997 Order, are separable, and would not affect the cash bond which petitioner posted for his provisional liberty, with the sole modification that those aforesaid conditions are hereby ANNULLED and SET ASIDE, the May 16, May 23 and May 23, 1997 Orders are MAINTAINED in all other respects.6 The appellate court invalidated the first two conditions imposed in the May 16, 1997 order for the grant of bail to petitioner but ruled that the issue concerning the validity of the condition making arraignment a prerequisite for the approval of petitioner's bail bonds to be moot and academic. It noted "that petitioner has posted the cash bonds; that when arraigned, represented by lawyers, he pleaded not guilty to each offense; and that he has already been released from detention." The Court of Appeals thought that the aforesaid conditions in the May 16, 1997 order were contrary to Art. III, 14(2) of the Constitution which provides that "[a]fter arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable." With respect to the denial of petitioner's motion to quash the informations against him, the appellate court held that petitioner could not question the same in a petition for certiorari before it, but what he must do was to go to trial and to reiterate the grounds of his motion to quash on appeal should the decision be adverse to him. Hence this petition. Petitioner contends that the Court of Appeals erred7 1. In ruling that the condition imposed by respondent Judge that the approval of petitioner's bail bonds "shall be made only after his arraignment" is of no moment and has been rendered moot and academic by the fact that he had already posted the bail bonds and had pleaded not guilty to all the offenses; 2. In not resolving the submission that the arraignment was void not only because it was made under compelling circumstance which left petitioner no option to question the respondent Judge's arbitrary action but also because it emanated from a void Order; 3. In ruling that the denial of petitioner's motion to quash may not be impugned in a petition for certiorari; and 4. In not resolving the legal issue of whether or not petitioner may be validly charged for violation of Section 5(b) of RA No. 7610 under several informations corresponding to the number of alleged acts of child abuse allegedly committed against each private complainant by the petitioner. We will deal with each of these contentions although not in the order in which they are stated by petitioner.

b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in absentia; c) The hold-departure Order of this Court dated April 10, 1997 stands; and d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to immediately acquire jurisdiction over the accused; The Court of Appeals declared conditions (a) and (b) invalid but declined to pass upon the validity of condition (d) on the ground that the issue had become moot and academic. Petitioner takes issue with the Court of Appeals with respect to its treatment of condition (d) of the May 16, 1997 order of the trial court which makes petitioner's arraignment a prerequisite to the approval of his bail bonds. His contention is that this condition is void and that his arraignment was also invalid because it was held pursuant to such invalid condition. We agree with petitioner that the appellate court should have determined the validity of the conditions imposed in the trial court's order of May 16, 1997 for the grant of bail because petitioner's contention is that his arraignment was held in pursuance of these conditions for bail. In requiring that petitioner be first arraigned before he could be granted bail, the trial court apprehended that if petitioner were released on bail he could, by being absent, prevent his early arraignment and thereby delay his trial until the complainants got tired and lost interest in their cases. Hence, to ensure his presence at the arraignment, approval of petitioner's bail bonds should be deferred until he could be arraigned. After that, even if petitioner does not appear, trial can proceed as long as he is notified of the date of hearing and his failure to appear is unjustified, since under Art. III, 14(2) of the Constitution, trial in absentia is authorized. This seems to be the theory of the trial court in its May 16, 1997 order conditioning the grant of bail to petitioner on his arraignment. This theory is mistaken. In the first place, as the trial court itself acknowledged, in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. For if the information is quashed and the case is dismissed, there would then be no need for the arraignment of the accused. In the second place, the trial court could ensure the presence of petitioner at the arraignment precisely by granting bail and ordering his presence at any stage of the proceedings, such as arraignment. Under Rule 114, 2(b) of the Rules on Criminal Procedure, one of the conditions of bail is that "the accused shall appear before the proper court whenever so required by the court or these Rules," while under Rule 116, 1(b) the presence of the accused at the arraignment is required. On the other hand, to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. These scenarios certainly undermine the accused's constitutional right not to be put on trial except upon valid complaint or information sufficient to charge him with a crime and his right to bail.8

First. As already stated, the trial court's order, dated May 16, 1997, imposed four conditions
for the grant of bail to petitioner:

a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall and must always be present at the hearings of these cases;

It is the condition in the May 16, 1997 order of the trial court that "approval of the bail bonds shall be made only after arraignment," which the Court of Appeals should instead have declared void. The condition imposed in the trial court's order of May 16, 1997 that the accused cannot waive his appearance at the trial but that he must be present at the hearings of the case is valid and is in accordance with Rule 114. For another condition of bail under Rule 114, 2(c) is that "The failure of the accused to appear at the trial without justification despite due notice to him or his bondsman shall be deemed an express waiver of his right to be present on the date specified in the notice. In such case, trial shall proceed in absentia." Art. III, 14(2) of the Constitution authorizing trials in absentia allows the accused to be absent at the trial but not at certain stages of the proceedings, to wit: (a) at arraignment and plea, whether of innocence or of guilt,9 (b) during trial whenever necessary for identification purposes,10 and (c) at the promulgation of sentence, unless it is for a light offense, in which case the accused may appear by counsel or representative.11 At such stages of the proceedings, his presence is required and cannot be waived. As pointed out in Borja v. Mendoza,12 in an opinion by Justice, later Chief Justice, Enrique Fernando, there can be no trial in absentia unless the accused has been arraigned. Undoubtedly, the trial court knew this. Petitioner could delay the proceedings by absenting himself from the arraignment. But once he is arraigned, trial could proceed even in his absence. So it thought that to ensure petitioner's presence at the arraignment, petitioner should be denied bail in the meantime. The fly in the ointment, however, is that such court strategy violates petitioner's constitutional rights.

sexual intercourse with a child constitutes a separate offense, it will matter whether the other children are presented during the trial. The issue then should have been decided by the Court of Appeals. However, instead of remanding this case to the appellate court for a determination of this issue, we will decide the issue now so that the trial in the court below can proceed without further delay. Petitioner's contention is that the 12 informations filed against him allege only one offense of child abuse, regardless of the number of alleged victims (four) and the number of acts of sexual intercourse committed with them (twelve). He argues that the act of sexual intercourse is only a means of committing the offense so that the acts of sexual intercourse/lasciviousness with minors attributed to him should not be subject of separate informations. He cites the affidavits of the alleged victims which show that their involvement with him constitutes an "unbroken chain of events," i.e., the first victim was the one who introduced the second to petitioner and so on. Petitioner says that child abuse is similar to the crime of large-scale illegal recruitment where there is only a single offense regardless of the number of workers illegally recruited on different occasions. In the alternative, he contends that, at the most, only four informations, corresponding to the number of alleged child victims, can be filed against him. Art. III, 5 of R.A. No. 7160 under which petitioner is being prosecuted, provides: Sec. 5 Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: xxx xxx xxx

Second. Although this condition is invalid, it does not follow that the arraignment of petitioner
on May 23, 1997 was also invalid. Contrary to petitioner's contention, the arraignment did not emanate from the invalid condition that "approval of the bail bonds shall be made only after the arraignment." Even without such a condition, the arraignment of petitioner could not be omitted. In sum, although the condition for the grant of bail to petitioner is invalid, his arraignment and the subsequent proceedings against him are valid.

Third. Petitioner concedes that the rule is that the remedy of an accused whose motion to quash is denied is not to file a petition for certiorari but to proceed to trial without prejudice to
his right to reiterate the grounds invoked in his motion to quash during trial on the merits or on appeal if an adverse judgment is rendered against him. However, he argues that this case should be treated as an exception. He contends that the Court of Appeals should not have evaded the issue of whether he should be charged under several informations corresponding to the number of acts of child abuse allegedly committed by him against each of the complainants.

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse. The elements of the offense are as follows: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) that said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child,14 whether male or female, is or is deemed under 18 years of age. Exploitation in prostitution or other sexual abuse occurs when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate, or group. Each incident of sexual intercourse and lascivious act with a child under the circumstances mentioned in Air. III, 5 of R.A. No. 7160 is thus a separate and distinct offense. The offense is similar to rape or act of lasciviousness under the Revised Penal Code in which each act of rape or lascivious conduct should be the subject of a separate information. This conclusion is confirmed by Art. III, 5(b) of R.A. No. 7160, which provides: [t]hat when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case

In Tano v. Salvador,13 the Court, while holding that certiorari will not lie from a denial of a motion to quash, nevertheless recognized that there may be cases where there are special circumstances clearly demonstrating the inadequacy of an appeal. In such cases, the accused may resort to the appellate court to raise the issue decided against him. This is such a case. Whether petitioner is liable for just one crime regardless of the number of sexual acts allegedly committed by him and the number of children with whom he had sexual intercourse, or whether each act of intercourse constitutes one crime is a question that bears on the presentation of evidence by either party. It is important to petitioner as well as to the prosecution how many crimes there are. For instance, if there is only one offense of sexual abuse regardless of the number of children involved, it will not matter much to the prosecution whether it is able to present only one of the complainants. On the other hand, if each act of

may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; WHEREFORE, the decision of the Court of Appeals is SET ASIDE and another one is RENDERED declaring the orders dated May 16, 1997 and May 23, 1997 of the Regional Trial Court, Branch 107, Quezon City to be valid, with the exception of condition (d) in the second paragraph of the order of May 16, 1997 (making arraignment a prerequisite to the grant of bail to petitioner), which is hereby declared void.1wphi1.nt SO ORDERED.

G.R. No. 115407 August 28, 1995 MIGUEL P. PADERANGA, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. REGALADO, J.: The adverse decision in this case promulgated by respondent Court of Appeals in CA-G.R. SP No. 32233 on November 24, 1993, as well as its resolution of April 26, 1994 denying the motion for reconsideration thereof, are challenged by petitioner Miguel P. Paderanga in this appeal by certiorari through a petition which raises issues centering mainly on said petitioner's right to be admitted to bail. On January 28, 1990, petitioner was belatedly charged in an amended information as a coconspirator in the crime of multiple murder in Criminal Case No. 86-39 of the Regional Trial Court, Branch 18 of Cagayan de Oro City for the killing of members of the Bucag family sometime in 1984 in Gingoog City of which petitioner was the mayor at the time. The original information, filed on October 6, 1986 with the Regional Trial Court of Gingoog City, 1 had initially indicted for multiple murder eight accused suspect, namely, Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe And Richard Doe as the alleged conspirators in the indiscriminate slaying of the spouses Romeo and Juliet Bucag and their son, Romeo, Jr. However, only one of the accused, Felipe Galarion, was apprehended, tried and eventually convicted. Galarion later escaped from prison. The others have remained at large up to the present. 2 In a bizarre twist of events, one Felizardo ("Ely") Roxas was implicated in the crime. In an amended information dated October 6, 1988, he was charged as a co-accused therein. As herein petitioner was his former employer and thus knew him well, Roxas engaged the former's services as counsel in said case. Ironically, in the course of the preliminary investigation therein, said accused, in a signed affidavit dated March 30, 1989 but which he later retracted on June 20, 1990, implicated petitioner as the supposed mastermind behind the massacre of the Bucag family. 3 Then, upon the inhibition of the City Prosecutor of Cagayan de Oro City from the case per his resolution of July 7, 1989, the Department of Justice, at the instance of said prosecutor, designated a replacement, State Prosecutor Henrick F. Gingoyon, for purposes of both the preliminary investigation and prosecution of Criminal Case No. 86-39. Pursuant to a resolution of the new prosecutor dated September 6, 1989, petitioner was finally charged as a coconspirator in said criminal case in a second amended information dated October 6, 1992. Petitioner assailed his inclusion therein as a co-accused all the way to this Court in G.R. No. 96080 entitled "Atty. Miguel P. Paderanga vs. Hon. Franklin M. Drilon, Hon. Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca B. Tan." In an en banc decision promulgated on April 19, 1991, the Court sustained the filing of the second amended information against him. 4 Under this backdrop, the trial of the base was all set to start with the issuance of an arrest warrant for petitioner's apprehension but, before it could be served on him, petitioner through counsel, filed on October 28, 1992 a motion for admission to bail with the trial court which set the same for hearing on November 5, 1992. Petitioner duly furnished copies of the motion to State Prosecutor Henrick F. Gingoyon, the Regional State Prosecutor's Office, and the private

prosecutor, Atty. Benjamin Guimong. On November 5, 1992, the trial court proceeded to hear the application for bail. Four of petitioner's counsel appeared in court but only Assistant Prosecutor Erlindo Abejo of the Regional State Prosecution's Office appeared for the prosecution. 5 As petitioner was then confined at the Cagayan Capitol College General Hospital due to "acute costochondritis," his counsel manifested that they were submitting custody over the person of their client to the local chapter president of the integrated Bar of the Philippines and that, for purposes of said hearing of his bail application, he considered being in the custody of the law. Prosecutor Abejo, on the other hand, informed the trial court that in accordance with the directive of the chief of their office, Regional State prosecutor Jesus Zozobrado, the prosecution was neither supporting nor opposing the application for bail and that they were submitting the same to the sound discretion of the trail judge. 6 Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waiving any further presentation of evidence. On that note and in a resolution dated November 5, 1992, the trial court admitted petitioner to bail in the amount of P200,000.00. The following day, November 6, 1992, petitioner, apparently still weak but well enough to travel by then, managed to personally appear before the clerk of court of the trial court and posted bail in the amount thus fixed. He was thereafter arraigned and in the trial that ensued, he also personally appeared and attended all the scheduled court hearings of the case. 7 The subsequent motion for reconsideration of said resolution filed twenty (20) days later on November 26, 1992 by Prosecutor Gingoyon who allegedly received his copy of the petition for admission to bail on the day after the hearing, was denied by the trial court in its omnibus order dated March 29, 1993. On October 1, 1993, or more than six (6) months later, Prosecutor Gingoyon elevated the matter to respondent Court of Appeals through a special civil action for certiorari. Thus were the resolution and the order of the trial court granting bail to petitioner annulled on November 24, 1993, in the decision now under review, on the ground that they were tainted with grave abuse of discretion. 8 Respondent court observed in its decision that at the time of petitioner's application for bail, he was not yet "in the custody of the law," apparently because he filed his motion for admission to bail before he was actually arrested or had voluntarily surrendered. It further noted that apart from the circumstance that petitioner was charged with a crime punishable by reclusion perpetua, the evidence of guilt was strong as borne out by the fact that no bail was recommended by the prosecution, for which reasons it held that the grant of bail was doubly improvident. Lastly, the prosecution, according to respondent court, was not afforded an opportunity to oppose petitioner's application for bail contrary to the requirements of due process. Hence, this appeal. Petitioner argues that, in accordance with the ruling of this Court in Santiago vs. Vasquez etc., et al., 9 his filing of the aforesaid application for bail with the trial court effectively conferred on the latter jurisdiction over his person. In short, for all intents and purposes, he was in the custody of the law. In petitioner's words, the "invocation by the accused of the court's jurisdiction by filing a pleading in court is sufficient to vest the court with jurisdiction over the person of the accused and bring him within the custody of the law." Petitioner goes on to contend that the evidence on record negates the existence of such strong evidence as would bar his provisional release on bail. Furthermore, the prosecution, by reason of the waiver by Prosecutor Abejo of any further presentation of evidence to oppose the application for bail and whose representation in court in behalf of the prosecution bound the

latter, cannot legally assert any claim to a denial of procedural due process. Finally, petitioner points out that the special civil action for certiorari was filed in respondent court after an unjustifiable length of time. On the undisputed facts , the legal principles applicable and the equities involved in this case, the Court finds for petitioner. 1. Section 1 of Rule 114, as amended, defines bail as the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearing before any court as required under the conditions specified in said Rule. Its main purpose, then, is to relieve an accused from the rigors of imprisonment until his conviction and yet secure his appearance at the trial. 10 As bail is intended to obtain or secure one's provisional liberty, the same cannot be posted before custody over him has been acquired by the judicial authorities, either by his lawful arrest or voluntary surrender. 11 As this Court has put it in a case "it would be incongruous to grant bail to one who is free." 12 The rationale behind the rule is that it discourages and prevents resort to the former pernicious practice whereby an accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements therefor.13 Thus, in Feliciano vs. Pasicolan, etc., et al., 14 where the petitioner who had been charged with kidnapping with murder went into hiding without surrendering himself, and shortly thereafter filed a motion asking the court to fix the amount of the bail bond for his release pending trial, the Supreme Court categorically pronounced that said petitioner was not eligible for admission to bail. As a paramount requisite then, only those persons who have either been arrested, detained, or other wise deprived of their freedom will ever have occasion to seek the protective mantle extended by the right to bail. The person seeking his provisional release under the auspices of bail need not even wait for a formal complaint or information to be filed against him as it is available to "all persons" 15 where the offense is bailable. The rule is, of course, subject to the condition or limitation that the applicant is in the custody of the law. 16 On the other hand, a person is considered to be in the custody of the law (a) when he is arrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or by warrantless arrest under Section 5, Rule 113 in relation to Section 7, Rule 112 of the revised Rules on Criminal Procedure, or (b) when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities.17 in this light, the ruling, visa-vis the facts in Santiago vs. Vasquez, etc., et al., 18 should be explained. In said case, the petitioner who was charged before the Sandiganbayan for violation of the Anti-Graft and Corrupt Practices Act, filed through counsel what purported to be an "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond." Said petitioner was at the time confined in a hospital recuperating from serious physical injuries which she sustained in a major vehicular mishap. Consequently, she expressly sought leave "that she be considered as having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other proceedings." On the basis of said ex-partemotion and the peculiar circumstances obtaining in that incident, the Sandiganbayan authorized petitioner to post a cash bail bond for her provisional liberty without need of her personal appearance in view of her physical incapacity and as a matter of humane consideration.

When the Sandiganbayan later issued a hold departure order against her, she question the jurisdiction of that court over her person in a recourse before this Court, on the ground that "she neither been arrested nor has she voluntarily surrendered, aside from the fact that she has not validly posted bail since she never personally appeared before said court" In rejecting her arguments, the Court held that she was clearly estopped from assailing the jurisdiction of the Sandiganbayan for by her own representations in the urgent ex parte motion for bail she had earlier recognized such jurisdiction. Furthermore, by actually posting a cash bail was accepted by the court, she had effectively submitted to its jurisdiction over her person. Nonetheless, on the matter of bail, the Court took pains to reiterate that the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender. In the case of herein petitioner, it may be conceded that he had indeed filed his motion for admission to bail before he was actually and physically placed under arrest. He may, however, at that point and in the factual ambience therefore, be considered as being constructively and legally under custody. Thus in the likewise peculiar circumstance which attended the filing of his bail application with the trail court, for purposes of the hearing thereof he should be deemed to have voluntarily submitted his person to the custody of the law and, necessarily, to the jurisdiction of the trial court which thereafter granted bail as prayed for. In fact, an arrest is made either by actual restraint of the arrestee or merely by his submission to the custody of the person making the arrest. 19 The latter mode may be exemplified by the so-called "house arrest" or, in case of military offenders, by being "confined to quarters" or restricted to the military camp area. It should be stressed herein that petitioner, through his counsel, emphatically made it known to the prosecution and to the trail court during the hearing for bail that he could not personally appear as he was then confined at the nearby Cagayan Capitol College General Hospital for acute costochondritis, and could not then obtain medical clearance to leave the hospital. The prosecution and the trial court, notwithstanding their explicit knowledge of the specific whereabouts of petitioner, never lifted a finger to have the arrest warrant duly served upon him. Certainly, it would have taken but the slightest effort to place petitioner in the physical custody of the authorities, since he was then incapacitated and under medication in a hospital bed just over a kilometer away, by simply ordering his confinement or placing him under guard. The undeniable fact is that petitioner was by then in the constructive custody of the law. Apparently, both the trial court and the prosecutors agreed on that point since they never attempted to have him physically restrained. Through his lawyers, he expressly submitted to physical and legal control over his person, firstly, by filing the application for bail with the trail court; secondly, by furnishing true information of his actual whereabouts; and, more importantly, by unequivocally recognizing the jurisdiction of the said court. Moreover, when it came to his knowledge that a warrant for his arrest had been issued, petitioner never made any attempt or evinced any intent to evade the clutches of the law or concealed his whereabouts from the authorities since the day he was charged in court, up to the submission application for bail, and until the day of the hearing thereof. At the hearing, his counsel offered proof of his actual confinement at the hospital on account of an acute ailment, which facts were not at all contested as they were easily verifiable. And, as a manifestation of his good faith and of his actual recognition of the authority of trial court, petitioner's counsel readily informed the court that they were surrendering custody of petitioner to the president of the Integrated Bar of the Philippines, Misamis Oriental Chapter. 20 In other words, the motion for admission to bail was filed not for the purpose or in the manner of the former practice which the law proscribes for the being derogatory of the

authority and jurisdiction of the courts, as what had happened in Feliciano. There was here no intent or strategy employed to obtain bail in absentia and thereby be able to avoid arrest should the application therefore be denied. 2. Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees shall be allowed bail, except only those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. In pursuance thereof, Section 4 of Rule 114, as amended, now provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. The right to bail, which may be waived considering its personal nature 21 and which, to repeat, arises from the time one is placed in the custody of the law, springs from the presumption of innocence accorded every accused upon whom should not be inflicted incarceration at the outset since after trial he would be entitled to acquittal, unless his guilt be established beyond reasonable doubt. 22 Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, an accused is entitled to be released on bail as a matter of right, the present exceptions thereto being the instances where the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment 23and the evidence of guilt is strong. Under said general rule, upon proper application for admission to bail, the court having custody of the accused should, as a matter of course, grant the same after a hearing conducted to specifically determine the conditions of the bail in accordance with Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of bail becomes a matter of judicial discretion on the part of the court under the exceptions to the rule, a hearing, mandatory in nature and which should be summary or otherwise in the discretion of the court, 24 is required with the participation of both the defense and a duly notified representative of the prosecution, this time to ascertain whether or not the evidence of guilt is strong for the provisional liberty of the applicant. 25 Of course, the burden of proof is on the prosecution to show that the evidence meets the required quantum. 26 Where such a hearing is set upon proper motion or petition, the prosecution must be give an opportunity to present, within a reasonable time, all the evidence that it may want to introduce before the court may resolve the application, since it is equally entitled as the accused to due process. 27 If the prosecution is denied this opportunity, there would be a denial of procedural due process, as a consequence of which the court's order in respect of the motion or petition is void. 28 At the hearing, the petitioner can rightfully cross-examine the witnesses presented by the prosecution and introduce his own evidence in rebuttal. 29 When, eventually, the court issues an order either granting or refusing bail, the same should contain a summary of the evidence for the prosecution, followed by its conclusion as to whether or not the evidence of guilt is strong. 30 The court, though, cannot rely on mere affidavits or recitals of their contents, if timely objected to, for these represent only hearsay evidence, and thus are insufficient to establish the quantum of evidence that the law requires. 31 In this appeal, the prosecution assails what it considers to be a violation of procedural due process when the court below allowed Assistant Prosecutor Erlindo Abejo of the Regional State Prosecutor's Office to appear in behalf of the prosecution, instead of State Prosecutor Henrick P. Gingoyon who is claimed to be the sole government prosecutor expressly authorized to handle the case and who received his copy of the motion only on the day after the hearing had been conducted. Accordingly, the prosecution now insists that Prosecutor Abejo had no authority at all to waive the presentation of any further evidence in opposition to the application for bail and to submit the matter to the sound discretion of the trial court. In addition, they argue that the prosecution was not afforded "reasonable time" to oppose that application for bail.

We disagree. Firstly, it is undisputed that the Office of the Regional State Prosecutor acted as the collaborating counsel, with State Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the basis of an authority from then Chief State Prosecutor Fernando de Leon which was sent through radio message on July 10, 1992 and duly received by the Office of the Regional State Prosecutor on the same date. This authorization, which was to be continuing until and unless it was expressly withdrawn, was later confirmed and then withdrawn only on July 12, 1993 by then Secretary of Justice Franklin M. Drilon. This was done after one Rebecca Bucagtan questioned the authority of Regional State Prosecutor Jesus Zozobrado and State Prosecutor II Erlindo Abejo to enter their appearance as collaborating government prosecutors in said criminal case. 32 It was in fact by virtue of this arrangement that the same Prosecutor Zozobrado and Prosecutor Perseverando Arana entered their appearance as collaborating prosecutor in the previous hearing in said case. 33 Hence, on the strength of said authority and of its receipt of the notice of the hearing for bail, the Regional State Prosecutor's Office, through Prosecutor Abejo, could validly represent the prosecution in the hearing held on November 5, 1992. Secondly, although it is now claimed that Prosecutor Abejo was allegedly not familiar with the case, he nonetheless was explicitly instructed about the position of the Regional State Prosecutor's Office on the matter. Prosecutor Zozobrado, whose office received its copy of the motion on the very day when it was sent, that is, October 28, 1992, duly instructed Prosecutor Abejo to manifest to the court that the prosecution was neither supporting nor opposing the application for bail and that they were submitting the matter to its sound discretion. Obviously, what this meant was that the prosecution, at that particular posture of the case, was waiving the presentation of any countervailing evidence. When the court a quosought to ascertain whether or not that was the real import of the submission by Prosecutor Abejo, the latter readily answered in the affirmative. The following exchanges bear this out: PROSECUTOR ERLINDO ABEJO: I was informed to appear in this case just now Your Honor. COURT: Where is your Chief of Office? Your office received a copy of the motion as early as October 28. There is an element of urgency here. PROSECUTOR ABEJO: I am not aware of that, Your Honor, I was only informed just now. The one assigned here is State Prosecutor Perseverando Arena, Jr. who unfortunately is in the hospital attending to his sick son. I do not know about this but before I came I received an instruction from our Chief to relay to this court the stand of the office regarding the motion to admit bail. That office is neither supporting nor opposing it and we are submitting to the sound discretion of the Honorable Court. COURT:

Place that manifestation on record. For the record, Fiscal Abejo, would you like to formally enter your appearance in this matter? PROSECUTOR ABEJO: Yes, Your Honor. For the government, the Regional State Prosecutor's Office represented by State Prosecutor Erlindo Abejo. COURT: By that manifestation do you want the Court to understand that in effect, at least, the prosecution is dispensing with the presentation of evidence to show that the guilt of the accused is strong, the denial . . . PROSECUTOR ABEJO: I am amenable to that manifestation, Your Honor. COURT: Final inquiry. Is the Prosecution willing to submit the incident covered by this particular motion for resolution by this court? PROSECUTOR ABEJO: Yes, Your Honor. COURT: Without presenting any further evidence? PROSECUTOR ABEJO: Yes, Your Honor. 34 It is further evident from the foregoing that the prosecution, on the instructions of Regional State prosecutor Zozobrado, had no intention at all to oppose the motion for bail and this should be so notwithstanding the statement that they were "neither supporting nor opposing" the motion. What is of significance is the manifestation that the prosecution was "submitting (the motion) to the sound discretion of the Honorable Court." By that, it could not be any clearer. The prosecution was dispensing with the introduction of evidence en contra and this it did at the proper forum and stage of the proceedings, that is, during the mandatory hearing for bail and after the trial court had fully satisfied itself that such was the position of the prosecution.

3. In Herras Teehankee vs. Director of Prisons, 35 it was stressed that where the trial court has reasons to believe that the prosecutor's attitude of not opposing the application for bail is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court, in the interest of Justice, must inquire from the prosecutor concerned as the nature of his evidence to determine whether or not it is strong. And, in the very recent administrative matter Re: First Indorsement Dated July 21, 1992 of Hon.Fernando de Leon, Chief State Prosecutor, Department of Justice; Alicia A. Baylon, City Prosecutor of Dagupan City vs. Judge Deodoro Sison, 36 the Court, citing Tucay vs. Domagas, etc., 37 held that where the prosecutor interposes no objection to the motion of the accused, the trial court should nevertheless set the application for hearing and from there diligently ascertain from the prosecution whether the latter is really not contesting the bail application. No irregularity, in the context of procedural due process, could therefore be attributed to the trial court here as regards its order granting bail to petitioner. A review of the transcript of the stenographic notes pertinent to its resolution of November 5, 1992 and the omnibus order of March 29, 1993 abundantly reveals scrupulous adherence to procedural rules. As summarized in its aforementioned order, the lower court exhausted all means to convince itself of the propriety of the waiver of evidence on the part of the prosecution. Moreover, the omnibus order contained the requisite summary of the evidence of both the prosecution and the defense, and only after sifting through them did the court conclude that petitioner could be provisionally released on bail. Parenthetically, there is no showing that, since then and up to the present, petitioner has ever committed any violation of the conditions of his bail. As to the contention that the prosecutor was not given the opportunity to present its evidence within a reasonable period of time, we hold otherwise. The records indicate that the Regional State Prosecutor's Office duly received its copy of the application for bail on the very same day that the it was filed with the trial court on October 28, 1992. Counted from said date up to the day of the hearing on November 5, 1992, the prosecution had more than one (1) week to muster such evidence as it would have wanted to adduce in that hearing in opposition to the motion. Certainly, under the circumstances, that period was more than reasonable. The fact that Prosecutor Gingoyon received his copy of the application only on November 6, 1992 is beside the point for, as already established, the Office of the Regional State Prosecutor was authorized to appear for the People. 4. What finally militates against the cause of the prosecutor is the indubitably unreasonable period of time that elapsed before it questioned before the respondent court the resolution and the omnibus order of the trial court through a special civil action for certiorari. The Solicitor General submits that the delay of more than six (6) months, or one hundred eighty-four (184) days to be exact, was reasonable due to the attendant difficulties which characterized the prosecution of the criminal case against petitioner. But then, the certiorari proceeding was initiated before the respondent court long after trial on the merits of the case had ensued in the court below with the active participation of prosecution lawyers, including Prosecutor Gingoyon. At any rate, the definitive rule now in that the special civil action for certiorari should not be instituted beyond a period of the three months, 38 the same to be reckoned by taking into account the duration of time that had expired from the commission of the acts complained to annul the same. 39

ACCORDINGLY, the judgment of respondent Court of Appeals in CA-G.R. SP No. 32233, promulgated on November 24, 1993, annulling the resolution dated November 5, 1992 and the omnibus order dated March 29, 1993 of the Regional Trial Court of Cagayan de Oro City, as well as said respondent court's resolution of April 26, 1994 denying the motion for reconsideration of said judgment, are hereby REVERSED and SET ASIDE. The aforesaid resolution and omnibus order of the Regional Trail Court granting bail to petitioner Miguel P. Paderanga are hereby REINSTATED. SO ORDERED.

A.M. No. RTJ-93-983 August 7, 1995 GUILLERMA DE LOS SANTOS-REYES, complainant, vs. JUDGE CAMILO O. MONTESA, JR., Pairing Judge, Branch 18, Regional Trial Court, Malolos, Bulacan,respondent. PER CURIAM: In her complaint filed on 23 March 1993, Guillerma de los Santos-Reyes charges the respondent judge with gross ignorance of law and evident dishonesty in the performance of his work in that he granted bail to the accused in Criminal Cases Nos. 487-M-91, 488-M-91, and 488-M-91 without the required petition for bail and without conducting any hearing to accord the prosecution an opportunity to establish that the evidence of guilt of the accused was strong. In compliance with the resolution of 24 May 1993, the respondent judge filed his comment wherein he disclosed that the issue raised was the subject of G.R. Nos. 108478-79 1 pending before the Second Division of this Court. On 22 September 1993, this Court, upon the recommendation of the Office of the Court Administrator (OCA), dismissed this case, "the issues raised . . . being sub-judice but without prejudice to its revival should the Court in G.R. Nos. 108478-79 find the orders to have been issued with grave abuse of discretion." In the decision promulgated on 21 February 1994, 2 this Court dismissed G.R. Nos. 108478-79. The complainant then filed on 23 November 1994 a motion to revive this complaint. On 23 February 1995, the respondent judge filed an Additional Comment and Observation to stress that what he did was to quash the warrant of arrest, determine probable cause on the basis of the record and documents available, order the arrest of the accused, and grant bail to those against whom the evidence of guilt was weak. Issues having been joined and the revival of this complaint being in order, this Court required the parties to manifest whether they agree to submit this case for decision on the basis of the pleadings they have submitted. In their separate manifestations, the parties responded in the affirmative. The antecedent facts which gave rise to the instant complaint (as well as to G.R. Nos. 10847879) are summarized in the decision in G.R. Nos. 108478-79 as follows: On November 4, 1990, Patrolman Celso Reyes, Bgy. Captain Pedro Panganiban and Armando Vitug were ambushed along Ipo-road, Kay-Pian, San Juan del Monte, Bulacan, resulting in the untimely death of Reyes and Panganiban. The National Bureau of Investigation conducted an inquisition of the incident and after which charged petitioners Estelita Hipolito and Alfredo Bolsico, together with Romeo Adviento, Romeo Permejo, Rolando Gozum and four (4) John Does with the crimes of murder and frustrated murder before the Municipal Trial Court of San Jose del Monte, then presided over by Judge Virginia Pagarogon.

Judge Pagarogon conducted a preliminary investigation of the witnesses and on November 14, 1990 issued an order admitting the complaint and ordering the detention of all the accused after finding that the crimes charged have been committed and there is reasonable ground to believe that the accused are probably guilty thereof. No bail was recommended. Judge Pagarogon then forwarded the records of the cases to the Provincial Prosecutor's Office of Bulacan for appropriate action. The Investigating Prosecutor, without conducting a thorough investigation of the cases, concluded that there was no probable cause and ordered motu proprio the release of the accused from custody. So, the widow of Patrolman Reyes petitioned the Department of Justice to disqualify the Provincial Prosecutor's Office from conducting the preliminary investigation and prosecution of the cases. In due course, the DOJ acted favorably on the petition and designated State Prosecutor Santiago Turingan to take over and handle the cases. The State Prosecutor found probable cause for murder and frustrated murder against all the accused and consequently, they were formally charged with said crimes on March 13, 1991, before the Regional Trial Court of Malolos, Bulacan, docketed as Criminal Cases No. 487-M-91, 488-M-91 and 489-M-91. No bail was recommended and the corresponding warrants of arrest were issued. The accused were quick to learn of the filing of the informations. On the same day (March 13, 1991), they filed a "Manifestation and Motion to Defer the Issuance of Warrants of Arrest," praying for the suspension of court proceedings on the ground that they are filing a petition for review of the resolution of the State Prosecutor. On March 21, 1991, the accused, who were not yet arrested or placed under the jurisdiction of the trial court (after their precipitate release earlier), filed a "Petition to Grant Bail" in C.C. Nos. 487-M-91 and 488-M-91 and a "Petition to Reduce Bail in C.C. No. 489-M-91. On March 25, 1991, the trial court issued an order denying the petitions since the accused had not yet surrendered and/or apprehended and, therefore, the court has not acquired jurisdiction over their persons. On the same day (March 25, 1991), the accused filed another petition entitled "Reinstatement of the Petition to Grant Bail in the above entitled cases and Motion to Reduce Bail Bond and Motion to Set Petition for Hearing with Manifestation to Surrender the Accused on the Hearing of this Petition." On April 4, 1991, the trial court, apparently with a change of heart, issued an order consolidating the petitions for bail, set them for hearing on April 6, 1991, and directed the DOJ and/or the Office of the Provincial Prosecutor to forward to it the records of the preliminary investigation of the cases within ten (10) days from notice. On April 15, 1991, petitioners filed an urgent motion to quash the warrants of arrest alleging want of probable cause.

On April 22, 1991, the accused withdrew their motion for reinstatement of their petition for bail bond and opted to pursue their motion to quash the warrants of arrest. On May 2, 1991, the trial court quashed the warrants of arrest and set the hearing on May 15, 1991 for the purpose of determining the existence of probable cause. On May 17, 1991, after examining the records of the cases as forwarded to him by the prosecution, the trial court found the existence of probable cause but instead of issuing the corresponding warrants of arrest, for the purpose of acquiring jurisdiction over the persons of the accused upon their apprehension or voluntary surrender, it ex mero motu granted bail to them despite the absence of (because it was previously withdrawn) a petition for bail and, worse, the lack of a hearing wherein the prosecution could have been accorded the right to present evidence showing that the evidence of guilt is strong. On August 23, 1991, the prosecution filed an omnibus motion praying for the cancellation of the bail bonds as well as the issuance of warrants of arrest on the fundamental ground that the trial court could not legally grant bail in a capital offense without the prosecution being accorded the right to show that the evidence of guilt is strong. On October 28, 1991, the trial court denied the prosecution's motion on the principal ground that its questioned orders had become final and executory. On December 2, 1991, the motion for reconsideration was likewise denied. On March 3, 1992, the prosecution filed a petition for certiorari, prohibition and preliminary injunction with prayer for a temporary restraining order before respondent Court of Appeals, CA-G.R. S.P. No. 27430, assailing the following orders of the trial court: the May 17, 1991 order which granted bail to the accused; the October 28, 1991 order which denied the prosecution's omnibus motion praying for the issuance of warrants of arrest's as well as the cancellation of what it perceived to be irregularly posted bail bonds; and the December 2, 1991 order which denied the prosecution's motion for reconsideration. Upon the filing of said petition, respondent court issued the temporary restraining order. On the other hand, petitioners filed a petition for certiorari, mandamus and prohibition before the same court, CA-G.R. S.P. No. 27472, seeking: (a) to annul the orders of the trial court resetting the hearings on different dates for being dilatory and violative of their constitutional right to a speedy trial; (b) to command the trial court to dismiss with prejudice all the criminal cases; and (c) to perpetually prohibit the prosecution of the criminal cases. On July 31, 1992, respondent [Court of Appeals] ruled in favor of the prosecution. The dispositive portion of its consolidated decision reads: WHEREFORE, the instant petition (SP No. 27430) is hereby granted and the questioned orders of respondent Court dated May 17, 1991, October 28, 1991, and December 2, 1991 are annulled and set aside. Accordingly, the accused herein (private respondents) are ordered arrested/committed pending the trial of their cases, without prejudice on their part to file in

the proper court a petition for bail after the arrest, detention or deprivation of their liberty, wherein the prosecution is accorded the right to present evidence to prove that evidence of guilt is strong. SP No. 27472, on the other hand, is hereby DISMISSED for lack of merit, considering that the delays incurred herein were due to unavoidable circumstances and were therefore reasonable in nature. No costs in both instances. SO ORDERED. Their motion for reconsideration having been denied, petitioners Hipolito, et al. filed with this Court a petition for review, docketed as G.R. Nos. 108478-79, which, as earlier stated, was dismissed on 21 February 1994. Respondent judge asserts that he is not administratively liable for what he did because he was merely guided by the doctrine in Lim vs. Felix, 3 to the effect that the determination of probable cause for the issuance of a warrant of arrest should be personally determined by the judge. Since in these cases the issuance of the warrants of arrest was based solely on the certification of the state prosecutor, he granted the motion to quash the warrants of arrest and, considering that on the date of the hearing to determine probable cause the witnesses for the prosecution did not appear and the private prosecutor submitted the issue on the basis of the proceedings had at the preliminary investigation and the affidavits of witnesses, he formally resolved it on such basis. He further alleges that since he found the evidence purely circumstantial, except as against Romeo Permejo who was positively identified as the gunman, he believed that the evidence of guilt as against the others was not strong and, accordingly, admitted them to bail in the amount of P80,000.00 each. The explanation of the respondent judge is wholly unacceptable for, contrary to his belief that he has shown perfect knowledge of the rules on the issuance of warrants of arrest and grant of bail, he has demonstrated either gross ignorance of the constitutional and statutory principles and settled jurisprudence thereon or gross incompetence which no claim of good faith can exculpate or even mitigate. From the above recitals of the factual and procedural antecedents of the criminal cases before the trial court, it is obvious that the accused filed their petitions to grant bail and to reduce bail, motion to reinstate petition to grant bail and urgent motion to quash warrants of arrests before the court acquired jurisdiction over their persons either through the effective service and enforcement of the warrants of arrest or their voluntary surrender, i.e., before they were placed in the custody of the law or otherwise deprived of their liberty. Such being so, the trial court, initially, denied correctly the petition for grant of bail but subsequently disregarded law and jurisprudence when it favorably acted on the motion to reinstate the petition for grant of bail and set the motion for hearing on 6 April 1991, directing, for that purpose the Department of Justice and the Office of the Provincial Prosecutor to forward to it the records of the preliminary investigation. In this jurisdiction it is settled that a person applying for bail should be in the custody of the law or otherwise deprived of his liberty. 4 While it may be true that the disregard of this precept was not consummated, it was not because the respondent judge corrected himself, but because the accused withdrew their petition for the grant of bail and opted to pursue their urgent motion to quash the warrants of arrest grounded on want of probable cause. Instead of

retracing his steps back to the proper judicial path, the respondent judge, still forgetting that the accused remained scot-free, not only quashed the warrants of arrest, but, thereafter motu proprio converted, in effect, the "hearing" for the determination of probable cause for the issuance of the warrant of arrest, which he set on 15 May 1991, to a hearing on the matter of admission to bail, as his order of 17 May 1991 indisputably shows. In so doing, the respondent judge had either utterly confused the proceeding to determine probable cause for the issuance of a warrant of arrest from the proceeding on a petition for admission to bail, order deliberately ignored the basic requisites for the grant of bail. The determination of probable cause in the issuance of a warrant of arrest is mandated by Section 2, Article III of the Constitution. 5 Probable cause for the issuance of a warrant of arrest means such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 6 A hearing is not necessary therefor. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge, following the established doctrine and procedure, shall either (a) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest, or (b) if on the face of the information he finds no probable cause, he may disregard the prosecutor's certification and require the submission of the supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. 7 This procedure is dictated by sound public policy; otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. 8 At this stage of a criminal proceeding, the judge is not tasked to review in detail the evidence submitted during the preliminary investigation; it is sufficient that he personally evaluates the report and supporting documents submitted by the prosecution in determining probable cause. 9 This judicial function does not carry with it a motu proprio review of the recommendation of the prosecutor in a capital offense that no bail shall be granted. Such a recommendation is the exclusive prerogative of the prosecutor in the exercise of his quasi-judicial function during the preliminary investigation, which is executive in nature. 10 In such cases, once the court determines that probable cause exists for the issuance of a warrant of arrest, the warrant of arrest shall forthwith be issued and it is only after the accused is taken into the custody of the law and deprived of his liberty that, upon proper application for bail, the court on the basis of the evidence adduced by the prosecution at the hearing called for the purpose may, upon determination that such evidence is not strong, admit the accused to bail. 11 Since the accused unilaterally withdrew their petition for bail, there was then nothing to be heard or acted upon in respect thereof. Even if they did not withdraw their petition, they have no right to invoke the processes of the court since they have not been placed in the custody of the law or otherwise deprived of their liberty by reason or as a consequence of the filing of the information. For the same reason, the court had no authority to act on the petition. 12 Even if it be conceded for the sake of argument that the application for bail was regularly filed, the respondent judge wantonly ignored the due process requirement of hearing to afford the prosecution reasonable opportunity to prove that evidence of guilt of the applicants is strong. 13 To grant an application for bail and fix the amount thereof without such hearing duly called for the purpose of determining whether the evidence of guilt is strong constitutes ignorance or incompetence whose grossness cannot be excused by a claim of good faith or

excusable negligence 14 or constitutes inexcusable conduct which reflects either gross ignorance of the law or cavalier disregard of its requirements. 15 At the very least, the respondent judge exhibited gross incompetence. Gross ignorance of law and incompetence are characteristics and quirks impermissible in a judge. A judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles. 16 He should he studious of the principles of the law, 17 and he must be faithful to the law and must maintain professional competence. 18 The respondent judge does not have an enviable record as a living personification of justice and the rule of law. 19 In Administrative Matter No. RTJ-91-753, 20 for abuse of discretion, this Court censured the respondent judge for issuing an order granting bail to an accused without affording the prosecution the opportunity to present evidence to show that the evidence of guilt was strong. In Administrative Matter No. RTJ-91-742, 21 for gross ignorance of law and serious misconduct, the respondent judge was admonished to be more circumspect in the resolution of the cases before him and given a last warning that any form of infraction cases hereafter would be dealt with severely. The respondent judge has indisputably failed to comply with the strict and exacting demands of the public-trust character of his office. WHEREFORE, for gross ignorance of law or incompetence and conduct prejudicial to the best interest of the service, respondent Judge CAMILO O. MONTESA, JR., Presiding Judge of Branch 18 of the Regional Trial Court of Bulacan, is hereby ordered DISMISSED from the service with forfeiture of all benefits and with prejudice to re-employment in any branch or service of the government, including government-owned or controlled corporations. His dismissal shall take effect immediately upon his receipt of a copy of this decision which must be personally served by the Office of the Court Administrator. Let a copy of this decision be attached to the records of the respondent with this Court. SO ORDERED.

G.R. No. 79269 June 5, 1991 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents. DAVIDE, JR., J.:p The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, the City Fiscal of Manila and the Judge Advocate General, filed the instant petition for certiorari and prohibition, with a prayer for restraining order/preliminary injunction, to set aside the order of respondent Judge dated July 7, 1987 granting bail to the accused Rodolfo Salas alias "Commander Bilog" in Criminal Case No. 86-48926 for Rebellion, 1 and the subsequent Order dated July 30, 1987 granting the motion for reconsideration of 16 July 1987 by increasing the bail bond from P30,000.00 to P50,000.00 but denying petitioner's supplemental motion for reconsideration of July 17, 1987 which asked the court to allow petitioner to present evidence in support of its prayer for a reconsideration of the order of 7 July 1987. The pivotal issues presented before Us are whether the right to bail may, under certain circumstances, be denied to a person who is charged with an otherwise bailable offense, and whether such right may be waived. The following are the antecedents of this petition: In the original Information 2 filed on 2 October 1986 in Criminal Case No. 86-48926 of the Regional Trial Court of Manila, later amended in an Amended Information 3 which was filed on 24 October 1986, private respondent Rodolfo Salas, alias "Commander Bilog", and his coaccused were charged for the crime of rebellion under Article 134, in relation to Article 135, of the Revised Penal Code allegedly committed as follows: That in or about 1968 and for some time before said year and continuously thereafter until the present time, in the City of Manila and elsewhere in the Philippines, the Communist Party of the Philippines, its military arm, the New People's Army, its mass infiltration network, the National Democratic Front with its other subordinate organizations and fronts, have, under the direction and control of said organizations' leaders, among whom are the aforenamed accused, and with the aid, participation or support of members and followers whose whereabouts and identities are still unknown, risen publicly and taken arms throughout the country against the Government of the Republic of the Philippines for the purpose of overthrowing the present Government, the seat of which is in the City of Manila, or of removing from the allegiance to that government and its laws, the country's territory or part of it; That from 1970 to the present, the above-named accused in their capacities as leaders of the aforenamed organizations, in conspiracy with, and in support of the cause of, the organizations aforementioned, engaged themselves in war against the forces of the government, destroying property or committing serious violence, and other acts in the pursuit of their unlawful purpose, such as . . .

(then follows the enumeration of specific acts committed before and after February 1986). At the time the Information was filed the private respondent and his co-accused were in military custody following their arrest on 29 September 1986 at the Philippine General Hospital, Taft Ave., Manila; he had earlier escaped from military detention and a cash reward of P250,000.00 was offered for his capture. 4 A day after the filing of the original information, or on 3 October 1986, a petition for habeas corpus for private respondent and his co-accused was filed with this Court 5 which, as shall hereafter be discussed in detail, was dismissed in Our resolution of 16 October 1986 on the basis of the agreement of the parties under which herein private respondent "will remain in legal custody and will face trial before the court having custody over his person" and the warrants for the arrest of his co-accused are deemed recalled and they shall be immediately released but shall submit themselves to the court having jurisdiction over their person. On November 7, 1986 , private respondent filed with the court below a Motion to Quash the Information alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no jurisdiction over the offense charged; (c) the Court has no jurisdiction over the persons of the defendants; and (d) the criminal action or liability has been extinguished, 6 to which petitioner filed an Opposition 7 citing, among other grounds, the fact that in the Joint Manifestation and Motion dated October 14, 1986, in G.R. No. 76009, private respondent categorically conceded that: xxx xxx xxx Par. 2 (B) Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. In his Order of March 6, 1987, 8 respondent Judge denied the motion to quash. Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a petition for bail, 9which herein petitioner opposed in an Opposition filed on 27 May 1987 10 on the ground that since rebellion became a capital offense under the provisions of P.D. Nos. 1996, 942 and 1834, which amended Article 135 of the Revised Penal Code, by imposing the penalty of reclusion perpetua to death on those who promote, maintain, or head a rebellion the accused is no longer entitled to bail as evidence of his guilt is strong. On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos. 1996, 942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it existed before the amendatory decrees. Thus, the original penalty for rebellion, prision mayor and a fine not to exceed P20,000.00, was restored. Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83, No. 24) which was officially released for circulation on June 26, 1987. In his Order of 7 July 1987 11 respondent Judge, taking into consideration Executive Order No. 187, granted private respondent's petition for bail, fixed the bail bond at P30,000.00 and imposed upon private respondent the additional condition that he shall report to the court once

every two (2) months within the first ten (10) days of every period thereof. In granting the petition respondent Judge stated: . . . There is no more debate that with the effectivity of Executive Order No. 187, the offense of rebellion, for which accused Rodolfo Salas is herein charged, is now punishable with the penalty ofprision mayor and a fine not exceeding P20,000.00, which makes it now bailable pursuant to Section 13, Article III, 1986 Constitution and Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike the old rule, bail is now a matter of right in non-capital offenses before final judgment. This is very evident upon a reading of Section 3, Rule 114, aforementioned, in relation to Section 21, same rule. In view, therefore, of the present circumstances in this case, said accused-applicant is now entitled to bail as a matter of right inasmuch as the crime of rebellion ceased to be a capital offense. As to the contention of herein petitioner that it would be dangerous to grant bail to private respondent considering his stature in the CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe out all vestiges of our democracy and to replace it with their ideology, and that his release would allow his return to his organization to direct its armed struggle to topple the government before whose courts he invokes his constitutional right to bail, respondent Judge replied: True, there now appears a clash between the accused's constitutional right to bail in a non-capital offense, which right is guaranteed in the Bill of Rights and, to quote again the prosecution, "the existence of the government that bestows the right, the paramount interest of the state." Suffice to state that the Bill of Rights, one of which is the right to bail, is a "declaration of the rights of the individual, civil, political and social and economic, guaranteed by the Constitution against impairment or intrusion by any form of governmental action. Emphasis is placed on the dignity of man and the worth of individual. There is recognition of certain inherent and inalienable rights of the individual, which the government is prohibited from violating" (QuisumbingFernando, Philippine Constitutional Law, 1984 Edition, p. 77). To this Court, in case of such conflict as now pictured by the prosecution, the same should be resolved in favor of the individual who, in the eyes of the law, is alone in the assertion of his rights under the Bill of Rights as against the State. Anyway, the government is that powerful and strong, having the resources, manpower and the wherewithals to fight those "who oppose, threathen (sic) and destroy a just and orderly society and its existing civil and political institutions." The prosecution's fear may or may not be founded that the accused may later on jump bail and rejoin his comrades in the field to sow further disorders and anarchy against the duly constituted authorities. But, then, such a fear can not be a reason to deny him bail. For the law is very explicit that when it comes to bailable offenses an accused is entitled as a matter of light to bail. Dura est lex sed lex. In a motion to reconsider 12 the above order filed on 16 July 1987, petitioner asked the court to increase the bail from P30,000.00 to P100,000.00 alleging therein that per Department of Justice Circular No. 10 dated 3 July 1987, the bail for the, provisional release of an accused should be in an amount computed at P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense and explaining that it is recommending P100,000.00 because the private respondent "had in the past escaped from the custody of the military authorities and the offense for which he is charged is not an ordinary crime, like murder, homicide or robbery, where after the commission, the perpetrator has achieved his end" and that "the rebellious acts are not consummated until the well-organized plan to overthrow the

government through armed struggle and replace it with an alien system based on a foreign ideology is attained." On 17 July 1987, petitioner filed a supplemental motion for reconsideration 13 indirectly asking the court to deny bail to the private respondent and to allow it to present evidence in support thereof considering the "inevitable probability that the accused will not comply with this main condition of his bail to appear in court for trial," a conclusion it claims to be buttressed "by the following facts which are widely known by the People of the Philippines and which this Honorable Court may have judicial notice of: 1. The accused has evaded the authorities for thirteen years and was an escapee from detention when arrested; 2. He was not arrested at his residence as he had no known address; 3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and presented a Driver's License to substantiate his false identity; 4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address; 5. He and his companions were on board a private vehicle with a declared owner whose identity and address were also found to be false; 6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a reward of P250,000.00 was offered and paid for his arrest, which "clearly indicate that the accused does not entertain the slightest intention to appear in court for trial, if released." Petitioner further argues that the accused, who is the Chairman of the Communist Party of the Philippines and head of its military arm, the NPA, together with his followers, are now engaged in an open warfare and rebellion against this government and threatens the existence of this very Court from which he now seeks provisional release," and that while he is entitled to bail as a matter of right in view of Executive Order No. 187 which restored the original penalty for rebellion under Article 135 of the Revised Penal Code, yet, when the interest of the State conflicts with that of an individual, that of the former prevails for "the right of the State of self-preservation is paramount to any of the rights of an individual enshrined in the Bill of Rights of the Constitution." Petitioner further invokes precedents in the United States of America holding "that there is no absolute constitutional barrier to detention of potentially dangerous resident aliens pending deportation proceedings, 14and that an arrestee may be incarcerated until trial as he presents a risk of flight; 15 and sustaining a detention prior to trial of arrestee charged with serious felonies who are found after an adversary hearing to pose threat to the safety of individuals and to the community which no condition of release can dispel. 16 On 30 July 1987 respondent Judge handed down the Order 17 adverted to in the introductory portion of this decision the dispositive portion of which reads: WHEREFORE, in the light of the foregoing considerations, the Court finds the "supplemental" motion for reconsideration to be without merit and hereby denies it but finds the first motion for reconsideration to be meritorious only insofar as the

amount of bail is concerned and hereby reconsiders its Order of July 7, 1987 only to increase the amount of bail from P30,000.00 to P50,000.00, subject to the approval of this Court, and with the additional condition that accused Rodolfo Salas shall report to the court once every two (2) months within the first ten (10) days of every period thereof (Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66 SCRA 58). In denying the supplemental motion for reconsideration the respondent Judge took into account the "sudden turn-about" on the part of the petitioner in that a day earlier it filed a motion for reconsideration wherein it conceded the right of the private respondent to bail but merely asked to increase the amount of bail; observed that it is only a reiteration of arguments in its opposition to the petition for bail of 25 May 1987; asserted that the American precedents are not applicable since the cases involved deportation of aliens and, moreover, the U.S. Federal Constitution does not contain a proviso on the right of an accused to bail in bailable offenses, but only an injunction against excessive bail; and quoted the concurring opinion of the late Justice Pedro Tuason in the cases of Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90 Phil, 172. Unable to agree with said Order, petitioner commenced this petition submitting therein the following issues: THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND IN TOTAL DISREGARD OF THE PREVAILING REALITIES, WHEN HE DENIED PETITIONER'S SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENT RODOLFO SALAS. THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT RODOLFO SALAS. in support of which petitioner argues that private respondent is estopped from invoking his right to bail, having expressly waived it in G.R. No. 76009 when he agreed to "remain in legal custody and face trial before the court having custody of his person" in consideration of the recall of the warrant of arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail, even in non-capital offenses, is not absolute when there isprima facie evidence that the accused is a serious threat to the very existence of the State, in which case the prosecution must be allowed to present evidence for the denial of bail. Consequently, respondent Judge acted with grave abuse of discretion when he did not allow petitioner to present all the evidence it may desire to support its prayer for the denial of bail and when he declared that the State has forfeited its right to do so since during all the time that the petition for bail was pending, it never manifested, much less hinted, its intention to adduce such evidence. And that even if release on bail may be allowed, respondent judge, in fixing the amount of bail at P50,000.00 (originally P30,000.00 only), failed to take into account the lengthy record of private respondents' criminal background, the gravity of the pending charge, and the likelihood of flight. 18 In Our resolution of 11 August 1987 19 We required the respondents to comment on the petition and issued a Temporary Restraining Order ordering respondent Judge to cease and desist from implementing his order of 30 July 1987 granting bail to private respondent in the amount of P50,000.00.

In his Comment filed on 27 August 1987, 20 private respondent asks for the outright dismissal of the petition and immediate lifting of the temporary restraining order on the following grounds: I RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE ESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THE FIRST TIME ON APPEAL. II RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL. III RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE (RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS MANDATED BY THE CONSTITUTION. IV THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO PRESENT EVIDENCE IS CORRECT. PETITIONER'S ALLEGED RIGHT TO PRESENT EVIDENCE IS NON-EXISTENT AND/OR HAD BEEN WAIVED. V THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS. We required the petitioner to reply to the comment of private respondent. filed on 18 September 1987. 22
21

The reply was

In Our resolution of 15 October 1987 23 We gave due course to the petition and required the parties to file simultaneously their memoranda within twenty days from notice. In their respective manifestations and motions dated 5 November 24 and 23 November 1987 25 petitioner and private respondents asked to be excused from filing their Memoranda and that the petition and reply be considered as the Memorandum for petitioner and the Comment as the Memorandum for private respondent, which We granted in Our resolution of 19 November 1987 26 and 1 December 1987, 27 respectively. In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on the issues raised in this petitions, 28 which he complied with by filing his Manifestation on

30 May 1990 29 wherein he manifests that he supports the petition and submits that the Order of respondent Judge of July 7, July 17 and July 30, 1987 should be annulled and set aside asserting that private respondent had waived the light to bail in view of the agreement in G.R. No. 76009; that granting bail to him is accepting wide-eyed his undertaking which he is sure to break; in determining bail, the primary consideration is to insure the attendance of the accused at the trial of the case against him which would be frustrated by the "almost certainty that respondent Salas will lump bail of whatever amount"; and application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules on Criminal Procedure on the amount of bail dictates denial of bail to private respondent. The Solicitor General likewise maintains that the right of the petitioner to hearing on the application of private respondent for bail cannot be denied by respondent Judge. And now on the issues presented in this case. I. Unquestionably, at the time the original and the amended Informations for rebellion and the application for bail were filed before the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to death. During the pendency of the application for bail Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the governing law at the time the respondent court resolved the petition for bail. We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is attached the penalty ofprision mayor and a fine not exceeding P20,000.00. 30 It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution which provides thus: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be prescribed 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. Section 3, Rule 114 of the Rules of Court, as amended, also provides:

complex crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held: . . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom. The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit: The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection. Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to determining whether or not evidence of guilt is strong. 33 But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In Teehankee vs. Director of Prisons, supra., We held: The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that: The Constitution of the United States and the constitution of the many states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in cases of

Bail, a matter of right: exception. All persons in custody shall, before final

conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable byreclusion perpetua, when evidence of guilt is strong. Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua. 31 To that extent the right is absolute. 32 And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite the fact that the accused was already convicted, although erroneously, by the trial court for the

capital offenses, unless the proof of guilt is evident or the presumption thereof is great! 34

Accordingly, the prosecution does not have the right to present evidence for the denial of bail in the instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. 35

We agree, however, with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489, 495: Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other case. . . . In the instant case petitioner has sufficiently made out allegations which necessitate a grant of an opportunity to be heard for the purpose of determining the amount of bail, but not for the denial thereof because aforesaid Section 10 of Rule 114 does not authorize any court to deny bail. II. It must, however, be stressed that under the present state of the law, rebellion is no longer punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it now reads: Article 135. Penalty for rebellion, insurrection or coup d'etat. Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua. xxx xxx xxx This amendatory law cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.36 III. We agree with Petitioner that private respondent has, however, waived his right to bail in G.R. No. 76009. On 3 October 1986, or the day following the filing of the original information in Criminal Case No. 86-48926 with the trial court, a petition for habeas corpus for herein private respondent, and his co-accused Josefina Cruz and Jose Concepcion, was filed with this Court by Lucia Cruz,

Aida Concepcion Paniza and Beatriz Salas against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao, and Col. Saldajeno praying, among others, that the petition be given due course and a writ of habeas corpus be issued requiring respondents to produce the bodies of herein private respondent and his co-accused before the Court and explain by what authority they arrested and detained them. The following proceedings took place thereafter in said case: 1. In a resolution of 7 October 1986 We issued a writ of habeas corpus, required respondents to make a return of the writ on or before the close of office hours on 13 October and set the petition for hearing on 14 October 1986 at 10:00 o'clock in the morning. 2. On 13 October 1986 respondents, through the Office of the Solicitor General, filed a Return To The Writ ofHabeas Corpus alleging therein that private respondent and Josefina Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene Zamora" were apprehended by the military on September 29, 1986 in the evening at the Philippine General Hospital Compound at Taft Ave., Mangga being leaders or members of the Communist Party of the Philippines, New People's Army and National Democratic Front, organizations dedicated to the overthrow of the Government through violent means, and having actually committed acts of rebellion under Article 134 of the Revised Penal Code, as amended. After their arrest they were forthwith charged with rebellion before Branch XII of the Regional Trial Court, National Capital Region in Criminal Case No. 86-48926 and on 3 October warrants for their arrest were issued and respondents continue to detain them because of the warrants of arrest and the pendency of the criminal cases against them. Respondents further allege that, contrary to the allegation in the petition, herein private respondent was not a member of the NDF panel involved in peace negotiations with the Government; neither is he and his companions Cruz and Concepcion covered by any, safe conduct pass issued by competent authorities. 3. At the hearing on 14 October 1986 the parties informed the Court of certain agreements reached between them. We issued a resolution reading as follows: When this case was called for hearing this morning, Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado, Edgardo Pamin-tuan, Casiano Sabile, Ramon Cura, and William Chua appeared for the petitioners with Atty. Capulong arguing for the petitioners. Solicitor General Sedfrey Ordonez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva appeared for the respondents, with Solicitor General Ordoez arguing for the respondents. Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court that in conformity with the agreement reached with the government, the petition for habeas corpus will be withdrawn with detainee Rodolfo Salas to remain under custody, whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be released immediately. Solicitor General Sedfrey Ordoez, also in open Court, confirmed the foregoing statement made by petitioners' counsel regarding the withdrawal of the petition for habeas corpus, declaring that no objection will be interposed to the immediate release of detainees Josefina Cruz and Jose Milo Concepcion, and that no bond will be required of them, but they will continue to face trial with their co-accused, Rodolfo Salas; further, that they will not be rearrested on the basis of the warrants issued by the trial court provided that they manifest in open Court their willingness to subject themselves to the jurisdiction of the Court and to appear in court when their presence is required.

In addition, he stated that he is willing to confer with petitioners' counsel today relative to the compromise agreement that they have previously undertaken to submit. Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that on his oath as member of the Bar, the detainees Josefina Cruz and Jose Milo Concepcion have agreed to subject themselves to the jurisdiction of the trial court, the Court ordered their immediate release. Thereafter, the Court approved the foregoing manifestations and statements and required both parties to SUBMIT to the Court their compromise agreement by 4:00 o'clock this afternoon. Teehankee, C.J., is on official leave. 4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a Joint Manifestation and Motion duly signed by Atty. Romeo Capulong, counsel for petitioners, and Solicitor General Sedfrey Ordoez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva, counsel for respondents, which reads as follows: COME NOW petitioners and the respondents, assisted by their respective counsel, and to this Honorable Tribunal respectfully manifest: 1. That in the discussion between Romeo Capulong, petitioners' counsel, and Solicitor General Sedfrey A. Ordoez on October 13, 1986 exploratory talks were conducted to find out how the majesty of the law may be preserved and human considerations may be called into play. 2. That in the conference both counsel agreed to the following terms of agreement: a. The petition for habeas corpus will be withdrawn by petitioners and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion (People v. Rodolfo Salas, et al., Criminal Case No. 4886 [should be 86-48926], Regional Trial Court, National Capital Judicial Region) filed against them under their personal recognizance. b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of formal manifestation before the Supreme Court that they will submit themselves to the court having jurisdiction over their person. 3. That on October 14, the Solicitor General was able to obtain the conformity of the Government to the foregoing terms which were likewise accepted by petitioner (sic) and their counsel of record.

4. That the two counsel submitted their oral manifestation during the hearing on October 14 and the present manifestation in compliance with the resolution announced in court this morning. WHEREFORE, it is prayed that the petition for habeas corpus be dismissed. 5. On 16 October 1986 We issued the following resolution: G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao and Col. Virgilio Saldajeno] considering the Joint Manifestation and Motion dated October 14, 1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and Ricardo Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey A. Ordonez and Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva as counsel for respondents which states that they have entered into an agreement whereby: [a] the petition for habeas corpus will be withdrawn by petitioners, and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion [People vs. Rodolfo Salas, et al., Criminal Case No. 4886, Regional Trial Court, National Capital Judicial Region, Branch XII, Manila], filed against them, on their personal recognizance; [b] petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person; and [c] the warrant of arrest for the person of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of the formal manifestation before this Court that they will submit themselves to the court having jurisdiction over their person and in view of the said agreement, the petition for habeas corpus be dismissed, the Court Resolved to DISMISS the petition for habeas corpus but subject to the condition that petitioners' lead counsel, Atty. Capulong, upon his oath as member of the Bar, shall abide by his commitment to ensure the appearance of Josefina Cruz and Jose Milo Concepcion at the trial of the criminal case for rebellion filed against them. Teehankee, C.J., is on official leave. It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody even during the pendency of the trial of his criminal case, [he] has expressly waived his right to bail." 37 Upon the other hand, private respondent asserts that this claim is totally devoid of factual and legal basis, for in their petition forhabeas corpus they precisely questioned the legality of the arrest and the continued detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was not resolved by this Court or by the compromise agreement of the parties but left open for further determination in another proceeding. Moreover, the matter of the right to bail was neither raised by either party nor resolved by this Court, and the legal steps promptly taken by private respondent after the agreement was reached, like the filing of the motion to quash on 7 November 1986 and the petition for bail on 14 May 1987, were clear and positive assertions of his statutory and constitutional rights to be granted not only provisional but final and permanent liberty. Finally, private respondent maintains that the term "legal custody" as used in the Joint Manifestation and Motion simply means that private respondent agreed to continue to be in the custody of the law or in custodia legis and nothing else; it is not to be interpreted as waiver.

Interestingly, private respondent admits that: "Custody" has been held to mean nothing less than actual imprisonment. It is also defined as the detainer of a person by virtue of a lawful authority, or the "care and possession of a thing or person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306) He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for admission to bail should be in the custody of the law or otherwise deprived of his liberty." 38 When the parties in G.R. No. 76009 stipulated that: b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual confinement or detention, as distinguished from the stipulation concerning his co-petitioners, who were to be released in view of the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private respondent and his co-accused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only they shall be released, further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement. In defining bail as: . . . the security given for the release of a person in custody of the law, . . . Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. 39 It presupposes that the person applying for it should be in the custody of the law or otherwise deprived of liberty. 40 Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private respondent had unequivocably waived his right to bail. But, is such waiver valid?

Article 6 of the Civil Code expressly provides: Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it." 41 As to what rights and privileges may be waived, the authority is settled: . . . the doctrine of waiver extends to rights and privileges of any character, and, since the word "waiver" covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . . Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived. While it has been stated generally that all personal rights conferred by statute and guaranteed by constitution may be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of waiver. 42 In Commonwealth vs. Petrillo,
43

it was held:

Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, as well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be. It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will." 44

This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and seizures; 45 the right to counsel and to remain silent; 46 and the right to be heard. 47 Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(l) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states: . . . These rights cannot be waived except in writing and in the presence of counsel. This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code. We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the private respondent. WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal Case No. 86-48926 entitled People of the Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry, Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion, are hereby NULLIFIED and SET ASIDE. SO ORDERED.