EN BANC

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

GOVERNMENT OF THE UNITED STATES OF AMERICA, represented

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

RESOLUTION

Before the Court are private respondent's Motion for Reconsideration dated 10 October
2002, petitioner's Comment thereon dated 05 November 2002, private respondent's
Motion for Leave of Court to File and to Admit Additional Arguments in Support of Motion
for Reconsideration dated November 6, 2002, and Reply (to petitioner's Comment) dated
November 26, 2002.
First, private respondent insists that the Extradition Court acted properly in granting bail to
him. We have already exhaustively discussed this issue in our Decision and in the
Concurring Opinion of Mr. Justice Antonio T. Carpio. Thus, we will not belabor our ruling on
this point. Suf ce it to say that petitioner's repeated invocation of the Extradition Court's
grant of bail has not convinced us that he deserves bail under the exception laid down in
our Decision, namely, "(1) that, once granted bail, the applicant will not be a ight risk or a
danger to the community; and (2) that there exists special, humanitarian and compelling
circumstances including, as matter of reciprocity, those cited by the highest court in the
requesting state when it grants provisional liberty in extradition cases therein."
There has been no clear and convincing showing as to the absence of ight risk and the
non-endangerment of the community, or as to the existence of special, humanitarian and
compelling circumstances justifying grant of bail.
Second, private respondent claims that our Decision did not make an express nding of
grave abuse of discretion on the part of the lower court. This is incorrect. On page 24 of
our Decision, we plainly stated: "Hence, after having already determined therefrom that a
prima facie nding did exist, respondent judge gravely abused his discretion when he set
the matter for hearing upon motion of Jimenez." Such grave abuse continued to
characterize the subsequent actions of Judge Purganan in illegally granting bail to private
respondent. Again, we will not repeat here why respondent does not deserve temporary
liberty. This point has been already exhaustively taken up in our Decision and in the
Opinions individually written by the members of the Court.
Further, contrary to Jimenez's claims, the Extradition Court did not negate the ight risk
posed by him. It did not make a nding on ight risk as it considered the issue irrelevant,
having already determined bail to be a matter of right. Without making any nding on ight
risk, it found the capacity to ee subservient to "the bene ts that respondent may be able
to deliver to his constituents" despite the absence from the records of evidence showing
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 the existence of such benefits.
And in any event, in his Memorandum, private respondent submitted factual issues — i.e.,
existence of special circumstances and absence of ight risk — for the consideration of
this Court. He even reiterated some of those factual submissions in his Motion for
Reconsideration. He is therefore deemed estopped to claim that this Court cannot, on
certiorari, address factual issues and review and reverse the factual ndings of the
Extradition Court.
Third, private respondent's arguments (1) that the Extradition Court exercised due
discretion in its grant of bail and (2) that our "ruling that bail is not a matter of right in
extradition cases is contrary to prevailing law and jurisprudence" are neither novel nor
deserving of further rebuttal. Again, they have been extensively taken up in Decision as well
as in Concurring, Separate and Dissenting Opinions.
Fourth, private respondent argues that allegedly our Decision violates his due process
rights. Again, we have discussed this matter in our Decision saying that, in its simplest
concept, due process is merely the opportunity to be heard — which opportunity need not
always be a prior one. In point of fact, private respondent has been given more than
enough opportunity to be heard in this Court as well as in the Extradition Court. Even his
Motion for Reconsideration has been given all the chances to persuade by way of allowing
"additional arguments" in his Motion dated November 6, 2002 and Reply. These latter
pleadings are normally not allowed, but precisely because this Court wanted to give him
more than enough opportunity to be heard and to argue, we have bent backwards and
admitted these additional pleadings.
Finally, private respondent contends that as a member of Congress, he is immune from
arrest "arising from offenses punishable by not more than six (6) years imprisonment,"
saying that he cannot be prevented from performing his legislative duties because his
constituents would be disenfranchised. He perorates that a member of Congress may be
suspended or removed from of ce only by two thirds vote of the House of
Representatives. TaEIAS

C i t i n g People v. Jalosjos , our Decision (pp. 38-40) has already debunked the
disenfranchisement argument. Furthermore, our Decision does not in any manner suspend
or remove him from of ce. Neither his arrest or detention arising from the extradition
proceeding will constitute his suspension or removal from office. That is clear enough.
While equal protection and reasonable classi cations are not directly in issue in this case,
we nevertheless stress, paraphrasing Jalosjos, that respondent's election to the position
of congressman, with the concomitant duty to discharge legislative functions, does not
constitute a substantial differentiation which warrants placing him in a classi cation or
category apart from all other persons con ned and deprived of their liberty pending
resolution of their extradition cases. We reiterate that lawful arrest and temporary
con nement of a potential extraditee are germane to the purposes of the law and apply to
all those belonging to the same class.
As we have stated, the procedure adopted by the Extradition Court of rst notifying and
hearing a prospective extraditee before the actual issuance of the warrant for his arrest, is
tantamount to giving notice to ee and avoid extradition. Whether a candidate for
extradition does in fact go into hiding or not is beside the point. In the nal analysis, the
method adopted by the lower court was completely at loggerheads with the purpose,
object and rationale of the law, and overlooked the evils to be remedied.
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 As already suggested in our Decision (p. 32), private respondent can avoid arrest and
detention which are the consequences of the extradition proceeding simply by applying for
bail before the courts trying the criminal cases against him in the USA. He himself has
repeatedly told us that the indictments against him in the United States are bailable.
Furthermore, he is capable, nancially and otherwise, of producing the necessary bail in the
US. Why then has he not done so?
Otherwise stated, Respondent Jimenez has the actual power to lift his arrest and detention
arising from his extradition by simply and voluntarily going to and filing bail in the USA.
AT BOTTOM, private respondent's Motion for Reconsideration presents no new or
substantial arguments which have not been presented in his prior pleadings and which
have not been taken up in our Decision. His present allegations and asseverations are mere
rehashes of arguments previously presented to us or are mere restatements of the
Separate and Dissenting Opinions which were already adequately discussed in our
Decision. In short, private respondent has not given any compelling reason to warrant a
reversal or modification of our earlier rulings.
WHEREFORE, the Motion for Reconsideration is hereby DENIED with finality.
SO ORDERED.
Davide, Jr., C .J ., Mendoza, Panganiban, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr., and Azcuna, JJ ., concur.
Bellosillo and Puno JJ ., the latter joined by Quisumbing, J ., reiterate their Separate
Opinions.
Vitug and Ynares-Santiago, JJ ., both joined by Sandoval-Gutierrez, J ., led their Dissenting
Opinions.

Separate Opinions
VITUG , J : p

I vote to grant the motion for reconsideration and maintain my dissent.

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

Extradition, nevertheless, does

not find basis in Customary
International Law
International customary law is, as its name suggests, created by custom. It is one of the
two (the other being treaties) primary law-creating processes of international law. Its
evolution, according to Schwarzenberger, 6 can be traced to the early development of a
global society when international law consisted primarily of express agreements, which
the parties freely accepted as legally binding between or among themselves. Little was
taken for granted, and everything that was considered if only remotely relevant had been
incorporated into the text of these treaties. Some of the rules were found to be so
convenient and generally acceptable that their inclusion in the succeeding agreements
gradually became non-essential. Time hardened them into international customary law.
International customary law has two constitutive elements: (1) a general practice of
sovereign states and (2) the acceptance by the states of this general practice as law. 7 In
t h e Lotus (1927) and Asylum (1950) cases, the World Court ruled that to prove the
existence of a rule in international customary law, it is necessary to establish not only that
States act a certain way but that they do so because they recognize a legal obligation to
this effect, i.e., with or without a treaty. 8
Despite its ancient roots, extradition, as it is presently exercised by states, adopts the view
represented by Puffendorf who argues that the duty to extradite is only an imperfect
obligation which requires an explicit agreement in order to become fully binding under
international law and secure reciprocal rights and duties of the contracting states. 9 The
exception would be with respect to international crimes, such as terrorism and genocide,
in which extradition is seen as being a de nite legal duty. As D.W. Grieg so bluntly puts it,
there exists no duty to extradite under customary international law. 1 0 Prevailing practice
among states indeed supports the conclusion that the duty to extradite can be demanded
only by virtue of a treaty, whether bilateral or multilateral; 1 1 conversely, in its absence,
there is no legal right to demand and no corresponding obligation to extradite. Once, of
course, an extradition treaty is concluded, respect for and compliance with the treaty
obligation is, under the international principle of pacta sunt servanda, expected from the
states that enter into the agreement.
Neither can extradition be
considered a generally accepted
principle of international law
Article 38 (1) (c) of the Statute of the International Court of Justice refers to the "general
principles of law" recognized by civilized nations as being a source of law which comes
after customary law, international conventions and treaties, all of which are based on the
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 consent of nations. 1 2 Article 38 (1) (c) is identi ed as being a "secondary source" of
international law and, therefore, not ranked at par with treaties and customary international
law. 1 3 The phrase is innately vague; and its exact meaning still eludes any general
consensus. The widely preferred opinion, however, appears to be that of Oppenheim which
views "general principles of law" as being inclusive of principles of private or municipal law
when these are applicable to international relations. 1 4 Where, in certain cases, there is no
applicable treaty nor a generality of state practice giving rise to customary law, the
international court is expected to rely upon certain legal notions of justice and equity in
order to deduce a new rule for application to a novel situation. 1 5 This reliance or
"borrowing" by the international tribunal from general principles of municipal jurisprudence
is explained in many ways by the fact that municipal or private law has a higher level of
development compared to international law. Brownlie submits that the term "generally-
accepted principles of international law" could also refer to rules of customary law, to
general principles of law, or to logical propositions resulting from judicial reasoning on the
basis of existing international law and municipal law analogies. 1 6
In order to qualify as a product of the subsidiary law-creating process, a principle of law
must ful ll three requirements: (1) it must be a general principle of law as distinct from a
legal rule of more limited functional scope, (2) it must be recognized by civilized nations,
and (3) it must be shared by a fair number of states in the community of nations. 1 7
Examples of these principles, most of which are drawn from Roman law, encompasses
rules on prescription, estoppel, res judicata, 1 8 consent and pacta sunt servanda. It can
also include generally accepted principles enshrined under the Universal Declaration of
Human Rights, such as the basic human right to life and liberty without distinction as to
race, color, sex, race language or religion, political or other opinion, nationality, social origin,
property, birth or other status. 1 9 At the moment, extradition, at most a process resorted to
by states under the policy of cooperation and comity with each other, does not qualify as a
generally accepted principle of international law nor as being thereby incorporated and
deemed part of the law of the land under Section 11, Article II, of the 1987 Philippine
Constitution. 2 0
Clarifying the term "generally-accepted principles of international law" during the
deliberations of the 1987 Constitutional Commission, Commissioner Adolfo S. Azcuna
points out that "(w)hen we talk of generally-accepted principles of international law as part
of the law of the land, we mean that it is part of the statutory part of laws, not of the
Constitution. 2 1
The remark is shared by Professor Merlin M. Magallona who expresses that the phrase "as
part of the law of the land" in the incorporation clause refers to the levels of legal rules
below the Constitution such as legislative acts and judicial decisions. Thus, he contends, it
is incorrect to so interpret this phrase as including the Constitution itself because it would
mean that the "generally-accepted principles of international law" falls in parity with the
Constitution. 2 2
A treaty being the primary source
of the obligation to extradite has
given occasion to a lack of
cohesive and uniform standards
on extradition
Not nding basis in customary law and failing to qualify as a generally-accepted principles
of international law, the present state of international law on the return of fugitives for trial
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 is hypothesized by Brownlie: "With the exception of alleged crimes under international law,
surrender of an alleged criminal cannot be demanded of right in the absence of treaty." 2 3
The result has been a failure of consistency in extradition practice among states. Indeed,
the reality is that there is to date no uniform standard applicable to all states. D.W. Gregg
2 4 attributes this lack of "universal" and cohesive standards in the extradition process to
the adoption of a variety of procedures which can be as diverse as the contracting states
would want them to be. In formulating their extradition treaties, contracting states insert
particular provisions and stipulations to address speci c particularities in their
relationships. Thus, extradition under American law is different from that under English
law; to illustrate, the English Extradition Act of 1870 requires that the offense, for which a
fugitive is to be extradited, be also considered a crime under English law. No such
requirement, upon the other hand, exists under the US Extradition Act, which limits
"extraditable crimes" to those enumerated under the treaty, regardless of whether the
same are considered crimes under its laws. While both England and the United States are
amenable to extraditing their own nationals, France and Belgium absolutely refuse to do
so. This refusal to surrender one's own nationals is likewise adopted by most states in
Continental Europe which, under their own municipal laws, are obliged to unconditionally
reject any request for the surrender of their own nationals, preferring to try them under
their own laws even though the offense is committed abroad. While Common Law
countries require a prima facie showing of guilt before they surrender a fugitive, almost all
other legal systems require only that the offense be committed in the jurisdiction of the
demanding state. 2 5 In the United States, extradition is demanded with an opportunity for a
judicial hearing, while in other countries, extradition is exclusively an administrative
function. 2 6 It may also happen that a single state may have as many extradition processes
as the number of extradition treaties it has with other countries. Thus, while the general
extradition process with England is governed by the Extradition Act of 1870, any
extradition it may undertake with member states of the British Commonwealth is governed
by the Fugitive Act of 1967. 2 7 Fenwick, another recognized authority in international law,
concludes — "Since extradition is effected as the result of the provisions of treaties
entered into by the nations two by two, it is impossible to formulate any general rule of law
upon the subject." 2 8
The elevated status of a treaty
over that of an ordinary statute is
taking ground
The International Tribunal, has consistently held that, in consonance with the Vienna
Convention, a state cannot plead provisions of its own laws or de ciencies in that law in an
answer to a claim against it for an alleged breach of its obligations under international law.
2 9 From the standpoint of International Law and of the International Court, municipal laws
are merely expressions of the will and constitute the activities of the states within its
boundaries in the same manner as do ordinary legal decisions or administrative measures.
3 0 But, viewed domestically, reactions have been varied. Differing internal laws among the
members of the international community has resulted in the divergence of responses
when treaty law clashes with ordinary municipal law.

In the United Kingdom, despite pronouncements that the law of nations is "adopted in its
full extent by common law and is held to be part of the law of the land," cases decided
since 1876 point to the displacement of the doctrine of incorporation by that of
transformation, viz.: customary law is part of the law of England only insofar as the rules
have been clearly adopted and made part of England by legislation, judicial decision, or
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 established usage. 3 1 In the United States there has not been much hesitation in
recognizing the priority of legislative enactment when passed not only in contravention of
established custom but even of the provisions of a speci c treaty. 3 2 Meeting objection to
the validity of a tax on immigrants as a violation of the "numerous treaties of the US
government with friendly nations," the United States Supreme Court, in the Head Money
Cases (112 US 580 [1884]), observed: A treaty, then, is a law of the land as an act of
Congress whenever its provisions prescribe a rule by which the rights of the private citizen
or subject may be determined, and when such rights are of a nature to be enforced in a
court of justice, courts resort to treaties for a rule of decision of the case as it would to a
statute. Nevertheless, added the Court, "so far as a treaty made by the US with any foreign
nation can become subject of judicial cognizance in the courts of this country, it is subject
to such acts as Congress may pass for its enforcement, modi cation or repeal." In France,
a treaty has supremacy over an inconsistent prior statute as long as the other state party
to the agreement accords a similar superiority in its domestic forum. French precedent
also exists for treaty supremacy over a subsequent inconsistent statute. 3 3 The European
Court once ruled that the European Economic Community Treaty has precedence over
national law, even if the national law were later in time. 3 4
This ambivalent attitude towards the relationship between international and municipal law
exempli es the still on-going debate between two schools of thought — "monism" and
"dualism". Monists believe that international law and domestic law are part of a single legal
order; international law is automatically incorporated into each nation's legal system and
that international law is supreme over domestic law. 3 5 Monism requires that domestic
courts "give effect to international law, notwithstanding inconsistent domestic law, even
constitutional law of a constitutional character." 3 6 Dualists, however, contend that
international law and domestic law are distinct, each nation ascertaining for itself and to
what extent international law is incorporated into its legal system, and that the status of
international law in the domestic system is determined by domestic law. 3 7 Under this
view, "when municipal law provides that international law applies in whole or in part within
our jurisdiction, it is but an exercise of the authority of municipal law, an adoption or
transformation of the rules of international law. 3 8
In the Philippines, while speci c rules on how to resolve con icts between a treaty law and
an act of Congress, whether made prior or subsequent to its execution, have yet to be
succinctly de ned, the established pattern, however, would show a leaning towards the
dualist model. The Constitution exempli ed by its incorporation clause (Article II, Section
2), as well as statutes such as those found in some provisions of the Civil Code and of the
Revised Penal Code, 3 9 would exhibit a remarkable textual commitment towards
"internalizing" international law. The Supreme Court itself has recognized that "the principle
of international law" are deemed part of the law of the land as a condition and as a
consequence of our admission in the society of nations. 4 0
The principle being that treaties create rights and duties only for those who are parties
thereto — pacta tertiis nec nocre nec prodesse possunt — it is considered necessary to
transform a treaty into a national law in order to make it binding upon affected state
organs, like the courts, and private individuals who could, otherwise, be seen as non-
parties. 4 1 The US-RP Extradition Treaty in particular, undoubtedly affects not only state
organs but also private individuals as well. It is said that, in treaties of this nature, it should
behoove the state to undertake or adopt the necessary steps to make the treaty binding
upon said subjects either by incorporation or transformation. 4 2 Article 2, Section 2, of the
1987 Philippine Constitution provides for an adherence to general principles of
international law as part of the law of the land. One of these principles is the basic rule of
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 pacta sunt servanda or the performance in good faith of a state's treaty obligations. Pacta
sunt servanda is the foundation of all conventional international law, for without it, the
superstructure of treaties, both bilateral and multilateral, which comprise a great part of
international law, could well be inconsequential . Existing legislation contrary to the
provisions of the treaty becomes invalid, but legislation is necessary to put the treaty into
effect. 4 3 The constitutional requirement that the treaty be concurred in by no less than
two-thirds of all members of the Senate (Article 21, Article VII) is, for legal intent and
purposes, an equivalent to the required transformation of treaty law into municipal law.
In preserving harmony between treaty law and municipal law, it is submitted — 1) That
treaty law has the effect of amending, or even repealing an inconsistent municipal statute,
a later enactment being controlling, 2) but that an inconsistent municipal statute
subsequently passed cannot modify treaty law, without the concurrence of the other state
party thereto, following the generally accepted principle of pacta sunt servanda. As so
observed by Fenwick: "Legislation passed, or administrative action taken subsequent to
the adoption of the treaty and in violation of its provisions is invalid, but this should be
declared so by the appropriate agency of national government. In like manner, in doubtful
cases where the national legislation or administrative ruling is open to different
interpretations, the courts of the state will give the benefit of the doubt to the provisions of
the treaty.
A treaty, nevertheless, cannot
override the Constitution; in case
of conflict, the Constitution must
prevail
When a controversy calls for a determination of the validity of a treaty in the light of the
Constitution, there is no question but that the Constitution is given primary consideration.
4 4 The deference to the interpretation of the national law by competent organs of a state,
was exhibited by the Permanent Court of International Justice in the case of Serbian Loans
4 5 where it held that the construction given by the Highest Court of France on French law
should be followed. When a state, through its government, concludes a treaty with another
state, the government of the latter has no reason and is not entitled to question the
constitutionality of the act of the former. 4 6 But this rule does not prevent the government
of a state, after having concluded a treaty with another state, from declaring the treaty null
and void because it is made in violation of its own constitution. 4 7
In the United States, treaties are regarded as part of the law of the land but this general
rule is quali ed by the stipulation that a treaty must not be violative of the Constitution. 4 8
The United States government, in carrying out its treaty obligations, must conform its
conduct to the requirements of the Constitution which override the provisions of a treaty
that may be contrary to any speci c constitutional right. 4 9 In Reyes vs. Bagatsing 5 0 this
Court has had the occasion to resolve the see-sawing interests of preserving fundamental
freedoms such as free speech and assembly, as espoused by the members of the Anti-
Bases Coalition seeking permit to hold a rally in front of the American Embassy and the
corresponding international obligation of the state to protect the integrity and safety of
diplomatic mission and premises under the Vienna Convention. While holding that the
prohibition against holding rallies within a 500 meter radius from any foreign mission is
valid, the ponencia sees a possible scenario — that in case a treaty or a general principle of
international law is found to be in irreconcilable con ict with Constitutional mandates, the
Court would uphold the latter every time, even to the possible detriment of its obligations
under international law. This preeminence of the Constitution over any treaty is not hard to
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 explain. The Constitution is the act of the people from whom sovereignty emanates. It
re ects the popular will. A treaty, on the other end, is merely negotiated by the treaty-
making authority. Surely a few good men, themselves mere delegates of the sovereign
people, cannot be permitted to thwart the intent of the Constitution. An agent could never
go beyond the mandate of the agency under whose authority he acts.
The 1987 Philippine Constitution
has its own standards for the
grant of bail
No country is under any legal obligation to adopt, or blindly be in conformity with,
procedures from other jurisdictions. The proposed solution of developing a "special
circumstances standard" in determining whether bail should be granted or not, following
what could be considered to be mere pro hac vice pronouncements of some foreign
courts, might not be apropos. Indeed, setting up the so-called "special circumstances
standard" would be to ignore our own constitutional mandate on bail.
Section 13, Article III, of the 1987 Constitution clearly sets the parameters for the judicial
exercise of the grant of bail —
"All persons, except those charged with offenses punishable by reclusion
perpetua, when evidence of guilt is strong, shall, before conviction, be bailable by
suf cient sureties, or be released on recognizance as may be provided by law.
The right to bail shall not be impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail shall not be required."

Starting with the declaration that the right to bail is available to all persons, the
Constitution proceeds to de ne its exceptions and quali cations — 1) when a criminal
offense is a capital one and the evidence of guilt is strong, and 2) when granted the bail
shall not be excessive. The circumstance of "high risk of ight" upon which the main
decision anchors its refusal to grant bail is conspicuously absent from the recital. The
Eighth Amendment of the US Federal Constitution, unlike the Philippine Constitution
does not categorically provide for bail as a matter of right. Thus, wrestling with the
compatibility of the grant of bail in extradition proceedings with basic constitutional
guarantees, which US judges have been faced with, should not be our dilemma. TaCEHA

Extradition proceedings are

part of the criminal process
Verily, an extradition proceeding before the extradition court forms part of the criminal
process. It is predicated on criminal indictment of an extraditee. Like any criminal
proceeding, it ultimately ends in either conviction or acquittal for the potential extraditee.
Except for the reality that it involves two sovereign states, at least, extradition proceedings
before the extradition court can be likened to the preliminary investigation conducted
before an investigating scal. Like the investigating scal, the judge acting in an extradition
proceeding does not rule on the issue of guilt or innocence of the potential extraditee, his
main concern being the determination of whether a prima facie case exists against the
potential extraditee. 5 1 Stated otherwise, both proceedings are an inquiry into whether a
person should stand trial. 5 2 The right to a preliminary investigation is a component part of
due process in the criminal justice system. The initial ndings of the investigating scal,
which may result in a dismissal of the case, could spare the respondent from hasty
malicious prosecution, as well as the resultant prolonged anxiety, aggravation and
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 humiliation, that a protracted trial brings. In the same vein, the extradition process can
result in an extended restraint of liberty following arrest that can even be more severe than
the accompanying detention within a single state. 5 3 Extradition involves, at minimum,
administrative processings in both the asylum state and the demanding state and a forced
transportation in between. 5 4 Thus, the rules governing the extradition process should not
be viewed as existing in a vacuum, totally divergent and isolated from the entire criminal
process of which it, in fact, forms part. Indubitably, bail is available in this country even in
the preliminary investigation stage. The eligibility for bail exists once the person is placed
under legal custody regardless of whether a complaint or information has been led or yet
to be filed in court against him. 5 5
In sum, I yield to the following submissions:
a) The obligation to extradite does not nd basis in customary international
law, nor is it a generally accepted principle of international law, the
commitment to extradite being dependent, by and large, on an
extradition treaty between two sovereign states.
b) There is an absence of a "universal" or "uniform" extradition practice
applicable to all states. This lack of a "standard" extradition procedure
should mean that the Philippines is not obligated to follow extradition
practices from other jurisdictions, particularly when its own
Constitution itself has provided for such standards.
c) A treaty, entered into by the delegated authority although occupying an
elevated status in the hierarchy of laws predicated on the principle of
pacta servanda, cannot override the Constitution, the latter being the
ultimate expression of the will of the People from whom all
sovereignty emanates. In case con ict, the of Constitution must
prevail.
WHEREFORE, I vote to grant the motion for reconsideration.

YNARES-SANTIAGO , J ., dissenting :

I maintain my stand regarding the issues raised in the main decision of this case, as laid
out in my original dissent. However, the ponente raised several points which compel
further comment and discussion on my part.
If the majority's overriding concern is upholding "the government's interest in ful lling its
Extradition Treaty obligations and in cooperating with the world community in the
suppression of crime," 1 then I submit that this policy is adequately served by the denial to
a potential extraditee of any notice or hearing during the evaluation stage of the extradition
process. 2 This procedure is peculiar to the extradition process and must be implemented
with goals of extradition in mind. However, once the extradition petition is led with the
extradition court, the threat of deprivation of liberty becomes imminent, and it is submitted
that the Constitutional rights of the accused — including the right to bail — begin to attach
similarly to the extraditee. SCDaHc

The draft resolution has reasserted its position that admission to bail in extradition cases
is reserved to certain exceptions; it is not the general rule. 3 It has effectively reiterated its
formalistic stand that the constitutional provision on bail will not apply to a case of
extradition, where the presumption of innocence is not at issue. 4 It is interesting to note
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 that, in making such a stand, the ponente cited former Chief Justice Enrique Fernando. The
eminent jurist spoke thus:
[The right to bail] ows from the presumption of innocence in favor of every
accused who should not be subjected to the loss of freedom as thereafter he
would be entitled to acquittal, unless his guilt be proved beyond reasonable
doubt. 5 (emphasis supplied)

True, the determination of guilt or innocence is not in issue in extradition proceedings.

However, the loss of precious freedom of the accused most certainly is. Mr. Justice Vitug,
in his separate opinion, made the following apt observations:
The draft ponencia would assume that the Constitution con nes the grant of
provisional liberty to criminal cases, and that it has no application to extradition
proceedings. This assumption would have reason for being if it was solely in
criminal cases that a person could face an imminent threat of deprivation of his
right to life or liberty, for indeed, it is this threat, rather than case nomenclature,
that must be the focus and it would be super cial to think otherwise. While
defying a neat de nition, extradition has all the earmarks of a criminal process —
an extraditee would suffer deprivations, be denied his freedom and restricted in
his movements, not much unlike a criminal indictee. Extradition proceedings
involve an extended restraint of liberty following arrest, peculiar to an accused in
a criminal case, which can even be more severe than an accompanying detention
in a single state, for at a minimum, it can mean protracted proceedings in both the
asylum state and the demanding state and a forced transportation in between. In
Herras Teehankee vs. Rovira , the Court observed that bail is constitutionally
available to all persons, even those against whom no formal charges are filed. 6

It should be borne in mind that the private respondent has most de nitely been indicted, 7
and the threat to the loss of his freedom is very real. If the purpose of bail is to relieve an
accused from the rigors of imprisonment until his conviction and yet secure his
appearance at trial, 8 then by analogy, an extraditee, who may or may not yet have been
charged, and who is threatened with temporary imprisonment in both the requested and
requesting states, should also bene t from the right to bail. Due to the striking similarity in
their circumstances, there is therefore no suf cient basis for distinguishing between an
accused person and a potential extraditee in terms of their entitlement to bail. This
occasion calls for the adherence to the well-entrenched principle ubi lex non distinguit nec
nos distinguere debemos. 9 The Constitutional grant of bail should, as a matter of right, be
made available to the accused and the extraditee alike.
The main decision seems to have brushed away the facts entirely, content in making
distinctions where they are not warranted. The majority sought to draw a distinction by
characterizing its stand as one that is consistent with and in implementation of the
Philippines' obligations under the RP-U.S. Extradition treaty. It further reads thus:
In the absence of any provision — in the Constitution, the law or the treaty —
expressly guaranteeing the right to bail in extradition proceedings, adopting the
practice of not granting them bail, as a general rule, would be a step towards
deterring fugitives from coming to the Philippines to hide from or evade their
prosecutors. 1 0 (emphasis supplied)

In answer to this sweeping policy statement, I submit that it is our Constitution itself that
governs the right to bail in extradition eases. As the majority has conceded, the RP-U.S.
Extradition Treaty and P.D. 1069 are silent with regard to the question of bail. In case of
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 omissions such as these, Article 31, paragraph 3 of the Vienna Convention on the Law of
Treaties authorizes reference to secondary sources as aids to interpretation. One of these
devices is subsequent practice of a state party in interpreting said treaty, 1 1 and the U.S.
has resorted to this device on several occasions. 1 2 The grant of bail by the U.S. District
Court of Las Vegas, Nevada to Mr. Charlie "Atong" Ang, a fugitive whose extradition from
the United States is sought by the Philippine government, 1 3 can therefore aid in the
interpretation of the RP-U.S. Extradition Treaty, being an example of subsequent state
practice. In our jurisdiction, no case has been decided which lls this gap in the RP-U.S.
Extradition Treaty. This area should then be considered outside the coverage of the treaty
and, therefore, covered by municipal law. In our jurisdiction, the supreme law governing the
question of bail is the Constitution, and its hallowed provisions dictate the general rule that
bail is granted as a matter of right, with its denial reserved to very few and very speci c
instances. Being the subject of an extradition request is not one of these exceptions. CacHES

The draft resolution cites once more my ponencia in People v. Jalosjos 1 4 as the basis for
countering private respondent's concern that the constituents of his district will be
effectively disenfranchised by his forced absence from of ce. I must once again reiterate
that said case is not on all fours with the case before us. Simply put, a convicted rapist
awaiting nal judgment and a man accused of several non-capital crimes, whose
extradition is sought by the state that has made the accusations, involve two very different
sets of circumstances, meriting different treatments. Furthermore, the question of
disenfranchisement should be considered in light of the U.S. Federal Rules of Criminal
Procedure, which grant a judicial of cer wide latitude in imposing conditions for the grant
of bail, including limitations on the right to travel. 1 5 A member of the House of
Representatives of the Republic of the Philippines who is indicted in the U.S. and admitted
to bail therein may not be returning to his district and his constituents any time soon.
It is unfortunate that the draft resolution proposes to summarily deny petitioner's Motion
for Reconsideration. This case could have provided this Court with the opportunity to pass
upon a novel issue and, in the process, uphold the supremacy of Constitutional rights.
Instead, the right to bail has been reduced to a hollow promise and has lost its ef cacy as
a fundamental right of the individual.
I vote to GRANT the motion for reconsideration.

Footnotes

Vitug, J ., separate opinion:

1 . Jeffrey A. Hall, "A Recommended Approach to Bail in International Extradition Cases,"
Michigan Law Review, December 1987.

2. M. Cherif Bassiouni, "International Extradition," Oceana Publications Inc., 2nd Edition, (1987),
Vol. 1, p. 5.
3. Ibid.

4. Ibid., p. 6. The history of extradition can be divided into four periods — (1) ancient times to
seventeenth century — a period revealing almost exclusive concern for political and
religious offenders, (2) the eighteenth century and half of the nineteenth century — a
period of treaty-making chie y concerned with military offenders characterizing the
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 condition of Europe during the period, (3) from 1833 to 1948 — a period of collective
concern in suppressing common criminality, (4) post 1948 developments which ushered
in a greater awareness of the need to have international due process of law regulate
international relations. (Ibid., p. 7)

5. Ibid., 8-9.
6 . Georg Schwarzenberger, "A Manual of International Law," 5th Edition, Stevens and Sons
Limited (1967), p. 28.

7. Ibid. p. 32.
8. Ibid.

9. Bassiounni, supra, p.10

10. D.W. Greig, M.A., LL.B., "International Law," London, (1970), p. 322.
11. Ibid.

12. Ian Brownlie, "Principles of Public International Law," Claredon Press, Oxford, 5th Edition,
(1998), p. 15.
13 RESTATEMENT (THIRD), OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES S102
(2) (1987)

14 J.L. Brierly, "The Law of Nations", Oxford University Press, (1963), 6th Ed. pp. 62-63.
15. D.W. Greig, supra, p. 26.

16. Brownlie, supra, pp. 18-19.

17. Schwarzenberger, supra, p. 34.

18. Brierly, supra.

19. Mejoff vs. Director of Prisons, 90 Phil. 70 (1951).

20. Section II, Article II of the 1987 Constitution provides: "The Philippines denounces war as an
instrument of national policy, adopts the generally-accepted principles of international
law as part of the law of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations.

21. Ibid.
22. Merlin M. Magallona, A Primer in International Law in Relation to Philippine Law (1997), p.
47.

23. Browlie, Principles of Public International Law, 4th Edition, 315-316, cited in Fr. Ranhilio C.
Aquino, "International Law and the International Legal Processes, The Law on
Extradition."

24. D.W. Greig, supra, pp. 323-348.

25. Charles Rhyne, International Law," CLB Publishers, (1971), 119.

26. Ibid.

27 D.W. Grieg, supra, 323-247

2 8 Charles G. Fenwick, "International Law," Appleton-Century-Crofts, Inc., New York, 3rd Ed,
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 (1948), p. 331.

29. Brownlie, supra, p. 34.

30. See Certain German Interests in Polish Upper Silesia, PCIJ, Ser. A, no. 7, p. 17.

31. Brownlie, supra, 43.

32. D.P. O'Connell, supra, p. 92

33. See In re Rekhov, 1981, cited in Maris, ibid.

34. Stein, 1981; 11, 13, quoting the Costa, 1964, and Simmenthal, 1978 cases, cited in Maris,
Ibid.
35. Rosalyn Higgins, Problems and Process: International Law and How We Use It. (1994), p.
205.

36. Louis Henkin, International Law: Politics and Values (1995) p. 280.
37. Higgins, supra, p. 19.

38. Brownlie, supra, p. 33

39. Article 14 of the Civil Code provides: "[p]enal laws and those of public security and safety
shall be obligatory upon all who live and sojourn in the Philippine territory, subject to the
principles of public international law and to treaty stipulations. The Revised Penal Code
provides: "Except as provided in the treaties and laws of preferential application, the
provisions of this Code shall be enforced not only within the Philippine Archipelago,
including its atmosphere, its interior waters and maritime zone but also outside of its
jurisdiction . . . (. . . )
40. US vs. Guinto 182 SCRA 644.

41. Kelsen, supra, pp. 351-352.

42. Ibid.

43. Fenwick, supra, pp. 95-96.

44. Hans Kelsen, "Basic Principles of International Law," Rinehart & Company, Inc., New York
(1956 Ed.) p. 324.

45. From the Publications of the Permanent Court of Justice, 1929, Series A, Nos. 20-21, p. 41.
In this case, the Permanent Court of International Justice, after having decided that
French law was to be applied in the case, stated: "The Court, having in these
circumstances to decide as to the meaning and scope of a municipal law, makes the
following observations: For the Court itself to undertake its own construction of
municipal law, leaving on one side existing judicial decisions, with the ensuing danger of
contradicting the construction which has been placed in such law by the highest
national tribunal and which, in its results, seems to the Court reasonable, would not be in
conformity with the task for which the Court has been established and would not be
compatible with the principles governing the selection of its Members. It would be a
most delicate matter to do so, especially in cases concerning public policy — a
conception of the de nition of which particular country is largely dependent on the
opinion prevailing at any given time in such country itself — and in cases where to
relevant provisions directly relate to the question at issue. It is French legislation, as
applied in France, which really constitutes French law." (Ibid., f. 26)

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 46. Ibid.

47. Ibid.

48. Gary L. Maris, "International Law, An Introduction," University Press of America, (1984), p.
224, citing the US federal cases of Missouri vs. Holland (1920), Reid vs. Covert (1957).

49. Bassiounni, supra, p. 73.

50. 125 SCRA 553 (1983).

5 1 . Preliminary investigation is de ned as an inquiry or proceeding for the purpose of
determining whether there is suf cient ground to engender a well-founded belief that a
crime cognizable by the Regional Trial Court has been committed and that the
respondent is probably guilty thereof, and should be held for trial. (Section 1, Rule 112,
Rules of Court).
52. Bassiuonni, supra, p. 562.

53. Jeffrey Hall, supra.

54. Ibid.
55. Section 14, Rule 114 of the Rules of Criminal Procedure provides —

Sec. 14. Bail, where led. . . . (c) Any person in custody who is not charged in court may apply
for bail with any court, in the province, city, or municipality where he is held.
Ynares-Santiago, J ., dissenting:

1 . Government of the United States of America, et al. v. Hon. Guillermo G. Purganan, et al.,
supra.
2. Resolution, Secretary of Justice v. Lantion, G.R. No. 139465, October 17, 2000.

3. Resolution, Government of the United States of America, et al. v. Hon. Guillermo G. Purganan,
et al., G.R. No. 148571, December 17, 2002.
4. Government of the United States of America, et al. v. Hon. Guillermo G. Purganan, et al. , G.R.
No. 148571, September 24, 2002.

5. De la Camara v. Enage, G.R. No. 32951-2, September 17, 1971, 41 SCRA 1, 6.

6 . Separate Opinion of Vitug, J., Government of the United States of America, et al. v. Hon.
Guillermo G. Purganan, et al., G.R. No. 148571, September 24, 2002, citing Hall, A
Recommended Approach to Bail in International Extradition Cases, MICHIGAN L. REV,
December 1987.

7. Indictment No. 99-00281 CR-SEITZ.

8. Paderanga v. Court of Appeals , G.R. No. 115407, August 28, 1995, 247 SCRA 741, 749, citing
Almeda v. Villaluz, G.R. No. 31665, August 6, 1965, 66 SCRA 38.
9. Where the law does not distinguish, we should not distinguish.
10. Government of the United States of America, et al. v. Hon. Guillermo G. Purganan, et al.,
supra.
11. VIENNA CONVENTION ON THE LAW OF TREATIES, art 31 (3).
12. Husserl v. Swiss Air Transport, Co., Ltd ., 351 F. Supp. 702 (S.D.N.Y. 1972), Day v. Trans
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 World Airlines, Inc., 528 F. 2d 31 (2d Cir. 1975).
13. U.S. Judge rejects bid to increase Ang's bail, Manila Bulletin, December 8, 2002.

14. G.R. No. 132875-132876, February 3, 2000, 324 SCRA 689.

15. 18 U.S.C.A. § 3146.

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