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Republicof the Philippines
SUPREMECOURT
Manila
EN BANC
G.R. No. 87193June 23, 1989
JUAN GALLANOSAFRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS AND THELEAGUEOF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN
REPRESENTED BY ITS PRESIDENT, SALVADOR NEEESTUYE, respondents.
J.L. Misa &Associates for petitioner.
Lladoc,Huab & Associates for privaterespondent.
CRUZ, J.:
Petitioner JuanG. Frivaldowas proclaimed governor-electoftheprovinceofSorsogonon January 22,
1988, and assumed office induetime. On October 27, 1988, the LeagueofMunicipalities,
Sorsogon Chapter(hereafter, League), representedby its President,Salvador Estuye, who was also
suing in his personalcapacity, filedwith theCommission on Elections a petitionfor theannulment
of Frivaldo; election and proclamationon the groundthat hewas nota Filipino citizen, having
been naturalized intheUnitedStates on January 20, 1983.In his answer datedMay 22, 1988,
Frivaldo admitted thathewas naturalized intheUnitedStates as alleged but pleadedthespecial
and affirmativedefenses that hehad sought American citizenship only to protect himselfagainst
PresidentMarcos. His naturalization, hesaid,was "merely forced upon himselfas a means of
survivalagainst the unrelenting persecutionby theMartial LawDictator's agents abroad."He
added that hehad returnedto thePhilippines after theEDSArevolutionto helpin the restoration
ofdemocracy. Healso argued that thechallenge tohis title shouldbe dismissed, being in reality a
quo warrantopetition thatshould havebeenfiled withintendays from his proclamation, in
accordance withSection 253ofthe Omnibus ElectionCode.The League, moreover, was nota
proper party becauseitwas not a voter and so could notsue under thesaid section.
Frivaldo moved for a preliminary hearing on his affirmativedefenses but the respondentCommissionon
Elections decided instead by its OrderofJanuary20,1988, to set thecasefor hearing onthe
merits.His motion for reconsideration was deniedin another Order datedFebruary 21,1988. He
then cameto this Courtin a petition for certiorari andprohibitionto ask that thesaidorders beset
aside ontheground thatthey had been renderedwith graveabuse ofdiscretion. Pending
resolutionofthepetition, weissued a temporary order against thehearing onthemerits
scheduledby theCOMELEC and at the sametimerequiredcomments from therespondents.
In their Comment,theprivaterespondents reiterated their assertionthat Frivaldo was a naturalized
Americancitizen and hadnot reacquired Philippinecitizenship onthedayofthe election on
January18,1988. Hewas therefore not qualified to run for and beelected governor. They also
argued that their petitionin the Commission on Elections was not really for quo warranto under
Section 253 oftheOmnibus ElectionCode. Theultimatepurposewas toprevent Frivaldo from
continuing as governor,his candidacy andelection being null andvoidabinitio becauseofhis
alienage. Eveniftheir petitionwere tobe considered as one for quo warranto, itcould not have
been filedwithin ten days from Frivaldo's proclamation because itwas onlyin September 1988
that they received proofofhis naturalization. Andassuming that the Leagueitselfwas nota
proper party, Estuye himself,who was suing not only for theLeague but also inhis personal
capacity,could nevertheless institutethesuitby himselfalone.
Speaking for the publicrespondent, the SolicitorGeneral supportedthecontention thatFrivaldowas
not a citizen ofthePhilippines andhadnotrepatriated himselfafterhis naturalization as an
Americancitizen. As an alien, hewas disqualified frompublic office inthePhilippines.His election
did not curethis defect because the electorate ofSorsogon could not amend theConstitution, the
Local GovernmentCode, andtheOmnibus Election Code.He alsojoined in theprivate
respondent's argument that Section253 oftheOmnibus Election Codewas not applicable because
what the Leagueand Estuyewereseeking was not only theannulment oftheproclamationand
election ofFrivaldo. Heagreed thatthey werealso asking for the terminationofFrivaldo's
incumbency as governor ofSorsogonon the groundthat hewas nota Filipino.
In his Reply, Frivaldo insisted thathewas a citizen ofthePhilippines because his naturalization as an
Americancitizen was not"impressed with voluntariness."In supporthe cited theNottebohmCase,
[(1955 I.C.J.4; 49A.J.I.L.396(1955)]where a German national's naturalization inLiechtenstein was
not recognized because ithad been obtainedfor reasons ofconvenienceonly. Hesaid hecould
not have repatriated himselfbeforethe1988elections becausetheSpecialCommitteeon
Naturalizationcreated for thepurposeby LOI No. 27C had not yetbeenorganized then. His oath in
his certificateofcandidacythat hewas a natural-borncitizen shouldbe a sufficient actof
repatriation. Additionally, his activeparticipationin the 1987 congressionalelections had divested
him ofAmerican citizenship underthelaws oftheUnited States, thus restoring his Philippine
citizenship. Heended by reiterating his prayerfor therejectionofthe moveto disqualify him for
being time-barred under Section253oftheOmnibus Election Code.
Considering theimportance andurgencyofthe question hereinraised, the Courthas decidedto resolve
it directly insteadofallowing thenormal circuitous routethat willafter all eventuallyendwith this
Court, albeit only after a,long delay. Wecannot permitthis delay. Such delaywill beinimicalto
the publicinterestand thevital principles ofpublic office tobe hereapplied.](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-1-320.jpg)
![ENTRY INTO FORCEAND TERMINATION
This Treaty shall enter intoforcethirty(30) days after the date on whichtheContracting States have
notified each other in writing that their respectiverequirements for theentry intoforceofthis
Treaty havebeencomplied with.
Either contracting Statemayterminatethis Treatyby notice inwriting atany timeand it shall cease to
be in force on the one hundredand eightiethday after the dayon whichnoticeis given.
We fail to seehow thepetitioner can infer a prohibition againstretroactiveenforcementfrom this
provision. Thefirst paragraph ofArticle18refers to theTreaty's dateofeffectivity; thesecond
paragraph pertains toits termination.Absolutely nothing in thesaid provisionrelates to, much
less, prohibits retroactiveenforcement oftheTreaty.
On the other hand, Article2(4) oftheTreaty unequivocally provides that:
4. Extradition may begranted pursuant to provisions ofthis Treaty irrespectiveofwhentheoffensein
relation towhich extradition is requestedwas committed, provided that:
(a) it was anoffensein the Requesting State at the timeof theacts or omissions constituting the
offense; and
(b) the acts or omissions allegedwould,ifthey had taken placein the Territory oftheRequestedStateat
the time of themaking oftherequest for extradition, haveconstituted an offenseagainstthe laws
in force in that state.
Thus, the offenses for which petitioner is soughtby his governmentare clearly extraditableunder Article
2 of the Treaty.They wereoffenses in the Requesting Stateat thetime theywerecommitted, and,
irrespectiveof thetimethey were committed,they fall under thepanoply oftheExtradition
Treaty's provisions, specifically, Article2 paragraph4, quotedabove.
Does the Treaty's retroactiveapplication violate the Constitutionalprohibition against ex post facto
laws? Early commentators understood ex post factolaws to include alllaws ofretrospective
application, whether civilor criminal. 23 However, ChiefJusticeSalmon P.Chase,citing Blackstone,
The Federalistand other early U.S. state constitutions in Caldervs. Bull 24 concludedthat the
concept was limited only topenal and criminal statutes. As conceived underour Constitution, ex
post facto laws are 1) statutes that make an actpunishableas a crime whensuchact was not an
offense whencommitted; 2) laws which, while not creating new offenses,aggravate the
seriousness of a crime; 3) statutes which prescribes greater punishmentfor a crimealready
committed; or, 4) laws which alter the rules ofevidenceso as tomake it substantially easier to
convict a defendant. 25 "Applying theconstitutional principle,the(Court) has held thatthe
prohibitionapplies onlyto criminallegislation which affects the substantialrights ofthe
accused." 26 This being so, thereis no absolutely no merit in petitioner's contention thattheruling
of the lower courtsustaining theTreaty's retroactiveapplication with respectto offenses
committed priorto the Treaty's coming intoforceand effect, violates theConstitutional
prohibitionagainst ex post facto laws. As the CourtofAppeals correctly concluded,theTreaty is
neither a piece ofcriminallegislation nora criminalprocedural statute. "It merely provides for the
extradition of persons wanted for prosecution ofan offenseor a crime which offenseor crime was
already committedor consummated at the timethe treaty was ratified." 27
In signing theTreaty, the governmentofthePhilippines has determined that itis withinits interests to
enter intoagreementwith the governmentofAustralia regarding therepatriationofpersons
wanted for criminaloffenses in either country. Thesaid Treaty was concurred and ratified by the
Senate ina Resolutiondated September10,1990. Having beenratifiedin accordance withthe
provision of the1987Constitution, theTreaty took effect thirty days aftertherequirements for
entry into force werecompliedwithby both governments.
WHEREFORE, finding no reversibleerror inthedecisionofrespondentCourt ofAppeals, wehereby
AFFIRMthe sameand DENYtheinstantpetition for lackofmerit.
SO ORDERED.
Davide, Jr.,Bellosilloand Quiason, JJ., concur.
Cruz, J., is on leave.
EN BANC
[G.R. No. 148571. September24,2002]
GOVERNMENTOF THE UNITED STATES OF AMERICA, represented by thePhilippineDepartment of
Justice, petitioner,vs. Hon. GUILLERMOG. PURGANAN, Morales, and Presiding Judge,Regional
Trial Court ofManila, Branch 42; and MARK B. JIMENEZ a.k.a. MARIOBATACAN
CRESPO, respondents.
D E C I S I ON
PANGANIBAN, J.:
In extraditionproceedings,areprospectiveextraditees entitled tonotice andhearing before warrants
for their arrest canbe issued? Equallyimportant,arethey entitled to therightto bail and
provisional liberty whilethe extradition proceedings are pending? In general, theanswer to these
two novel questions is “No.” The explanation ofand the reasons for, as wellas the exceptions to,
this rulearelaid outin this Decision.
The Case
Before us is a Petitionfor CertiorariunderRule65oftheRules ofCourt, seeking tovoidandset aside
the Orders datedMay 23,2001[1] and July3, 2001[2] issuedby theRegional TrialCourt (RTC) of
Manila, Branch42.[3] Thefirst assailed Orderset for hearing petitioner’s applicationfor the
issuanceofa warrant for the arrest ofRespondent Mark B. Jimenez.
The secondchallenged Order,on theother hand, directed theissuanceofa warrant,butat thesame
time grantedbailto Jimenez. The dispositiveportion oftheOrder reads as follows:
“WHEREFORE, in the lightofthe foregoing,the[Court]finds probablecauseagainst respondentMark
Jimenez. Accordingly let a Warrant for the arrest oftherespondent beissued. Consequently and
taking intoconsideration Section9, Rule 114oftheRevisedRules ofCriminal Procedure, this Court
fixes the reasonableamount ofbailfor respondent’s temporary liberty atONEMILLION PESOS
(Php 1,000,000.00), thesameto bepaid in cash.
“Furthermorerespondent is directedto immediatelysurrender tothis Court his passport andthe
Bureau ofImmigrationand Deportation is likewisedirected toincludethenameoftherespondent
in its HoldDepartureList.”[4]
Essentially, thePetitionprays for thelifting ofthe bail Order, thecancellation ofthebond, andthe
taking ofJimenez into legal custody.
The Facts
This Petition is really a sequel toGR No. 139465 entitled Secretary ofJustice v. RalphC. Lantion.[5]
Pursuant to theexisting RP-US Extradition Treaty,[6] theUnited States Government, through diplomatic
channels, sentto the PhilippineGovernmentNoteVerbaleNo. 0522 datedJune 16, 1999,
supplemented by NoteNos. 0597, 0720 and 0809 andaccompanied by duly authenticated
documents requesting theextraditionofMark B. Jimenez, alsoknownas MarioBatacan
Crespo. UponreceiptoftheNotes anddocuments, the secretaryofforeign affairs (SFA)
transmittedthem tothesecretary ofjustice (SOJ) for appropriateaction, pursuantto Section5 of
PresidentialDecree(PD) No. 1069, alsoknownas theExtradition Law.
Upon learning ofthe requestfor his extradition, Jimenez sought and was granteda Temporary
Restraining Order (TRO) by theRTC ofManila, Branch25.[7] TheTRO prohibited the Department of
Justice(DOJ) fromfiling with the RTC a petition for his extradition. The validity oftheTRO was,
however, assailedby theSOJ ina Petition before this Court in thesaid GR No.
139465. Initially, theCourt --by a vote of9-6--dismissedthePetition. The SOJ was ordered to
furnish privaterespondent copies oftheextraditionrequest and its supporting papers andto grant
the latter a reasonable periodwithin whichto file a commentandsupporting evidence.[8]
Acting on the Motionfor Reconsiderationfiled by theSOJ, this Court issuedits October 17, 2000
Resolution.[9] By an identicalvote of9-6 --after threejustices changed their votes --it
reconsidered and reversed its earlier Decision. It heldthat private respondentwas bereft ofthe
right to noticeandhearing during the evaluation stageofthe extradition process. This Resolution
has becomefinalandexecutory.
Finding no morelegal obstacle, theGovernmentoftheUnitedStates ofAmerica,representedby the
PhilippineDOJ, filed withtheRTC on May18,2001, theappropriate Petitionfor Extraditionwhich
was docketed as ExtraditionCaseNo. 01192061. The Petition alleged, inter alia,thatJimenez was
the subjectofan arrest warrant issuedby theUnited States DistrictCourt for theSouthernDistrict
ofFlorida on April 15, 1999.The warrant hadbeen issuedin connection withthefollowing charges
in Indictment No. 99-00281CR-SEITZ: (1) conspiracy to defraudtheUnited States and tocommit](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-6-320.jpg)
![certainoffenses in violation ofTitle 18US Code Section371; (2) tax evasion, inviolationofTitle26
US Code Section 7201; (3) wire fraud, inviolationofTitle18US CodeSections 1343 and 2; (4) false
statements, in violationofTitle18US CodeSections 1001 and2; and (5) illegal campaign
contributions, inviolationofTitle2 US Code Sections 441b,441fand 437g(d) andTitle 18US Code
Section 2. In order to prevent theflight ofJimenez, the Petitionprayed for the issuanceofan
order for his “immediatearrest” pursuantto Section6 ofPD No. 1069.
Before the RTC couldact on thePetition, RespondentJimenez filed beforeit an “Urgent
Manifestation/Ex-ParteMotion,”[10] which prayed that petitioner’s application for an arrest
warrantbe setfor hearing.
In its assailed May 23, 2001Order, the RTC granted theMotionofJimenez and set thecasefor hearing
on June 5, 2001. In thathearing, petitioner manifested its reservations ontheprocedure adopted
by the trialcourt allowing theaccusedin an extradition case tobe heardprior totheissuance ofa
warrantof arrest.
After the hearing, the courta quo required the parties to submit their respectivememoranda. In his
Memorandum,Jimenez sought an alternativeprayer: thatin casea warrant should issue, hebe
allowedto postbailin the amount of P100,000.
The alternative prayerofJimenez was also setfor hearing onJune 15, 2001. Thereafter, the courtbelow
issuedits questionedJuly 3,2001Order, directing the issuanceofa warrant for his arrestand
fixing bailfor his temporary liberty at onemillion pesos in cash.[11] After hehad surrendered his
passport andposted the requiredcashbond, Jimenez was granted provisional liberty via the
challenged Order datedJuly 4, 2001.[12]
Hence, this Petition.[13]
Issues
Petitioner presents thefollowing issues for the considerationofthis Court:
I.
“The publicrespondent actedwithout or in excess ofjurisdiction orwith graveabuse ofdiscretion
amounting to lack or excess ofjurisdictionin adopting a procedureoffirst hearing a potential
extraditee beforeissuing an arrest warrant under Section6 ofPD No. 1069.
II.
“The publicrespondent actedwithout or in excess ofjurisdiction orwith graveabuse ofdiscretion
amounting to lack or excess ofjurisdictionin granting theprayer for bailand inallowing Jimenez to
go on provisionalliberty because:
‘1. An extraditioncourt has no power to authorizebail, in theabsence ofany lawthat provides for such
power.
‘2. Section 13,ArticleIII (right tobailclause) ofthe1987Philippine Constitution andSection 4,Rule114
(Bail) of the Rules ofCourt, as amended, which [were]relied upon, cannot beusedas bases for
allowing bailin extradition proceedings.
‘3. The presumption is againstbailin extradition proceedings or proceedings leading to extradition.
‘4. On the assumption thatbailis availablein extradition proceedings or proceedings leading to
extradition,bailis not a matterofrightbut only ofdiscretionuponclear showing by theapplicant
of the existenceofspecialcircumstances.
‘5. Assuming that bail is a matterofdiscretionin extradition proceedings, the publicrespondent
received no evidenceof‘specialcircumstances’ which may justify release onbail.
‘6. The risk that Jimenez willfleeis high, andno specialcircumstanceexists thatwill engendera well-
founded belief that hewillnot flee.
‘7. The conditions attachedto the grantofbailareineffectual and donotensure compliance by the
Philippines with its obligations under the RP-US ExtraditionTreaty.
‘8. The Court of Appeals Resolutionpromulgated onMay 10, 2001 inthecase entitled ‘EduardoT.
Rodriguez et al.vs. The Hon.PresidingJudge,RTC, Branch 17, Manila,’ CA-G.R.SP No. 64589, relied
upon by the public respondentin granting bail, had been recalled beforetheissuanceofthe
subjectbailorders.’”[14]
In sum, the substantivequestions that this Court willaddress are: (1) whether Jimenez is entitled to
notice and hearing beforea warrant for his arrestcan beissued, and (2) whether heis entitled to
bail andto provisionallibertywhiletheextraditionproceedings arepending. Preliminarily, weshall
take up thealleged prematurityofthe Petitionfor Certiorariarising from petitioner’s failureto file
a Motion for Reconsiderationin theRTC and toseek reliefin the CourtofAppeals (CA), instead of
in this Court.[15] We shall also preliminarily discuss fiveextraditionpostulates that willguideus in
disposing ofthesubstantiveissues.
The Court’sRuling
The Petition is meritorious.
Preliminary Matters
Alleged Prematurity ofPresent Petition
Petitioner submits the following justifications for not filing a Motionfor Reconsiderationin the
Extradition Court: “(1) the issues werefullyconsidered by such courtafter requiring the parties to
submit their respectivememoranda and position papers on the matter andthus, thefiling ofa
reconsiderationmotionwould serveno useful purpose; (2) theassailed orders area patent nullity,
absentfactualandlegal basis therefor; and (3) theneedfor reliefis extremelyurgent,as the
passage ofsufficienttime would giveJimenez ample opportunity to escapeand avoid extradition;
and (4) the issues raised arepurely oflaw.”[16]
For resorting directly tothis Courtinsteadofthe CA, petitionersubmits the following reasons: “(1) even
ifthe petitionis lodgedwith theCourt ofAppeals andsuch appellate courttakes cognizanceofthe
issues and decides them, theparties would stillbring thematter to this HonorableCourt tohave
the issues resolvedonce andfor all [and]to havea binding precedentthat alllower courts ought
to follow; (2) the HonorableCourtofAppeals hadin one case[17] ruledon the issueby disallowing
bail but the courtbelowrefused torecognizethedecisionas a judicial guideand allother courts
might likewiseadoptthesame attitudeofrefusal; and (3) thereare pending issues on bailboth in
the extradition courts and theCourtofAppeals,which, unless guided by the decision thatthis
Honorable Courtwill renderin this case,would resolveto grant bail in favor ofthepotential
extraditees and would givethemopportunity tofleeand thus, cause adverseeffect on theability
ofthe Philippines to comply with its obligations under existing extraditiontreaties.”[18]
As a general rule, a petitionfor certiorari beforea higher courtwillnot prosper unless the inferior court
has beengiven,through a motion for reconsideration,a chanceto correct theerrors imputed to
it. This rule, though,has certainexceptions: (1) whentheissueraised is purely oflaw, (2) when
public interestis involved,or (3) in caseofurgency.[19] As a fourthexception, the Courthas also
ruled that thefiling ofa motionfor reconsideration beforeavailment oftheremedy ofcertiorariis
not a sine qua non,when the questions raisedare the sameas those that havealready been
squarely argued andexhaustively passed upon by the lower court.[20] Asidefrombeing ofthis
nature, theissues inthepresent casealsoinvolve purequestions oflaw that are ofpublic
interest. Hence,a motion for reconsiderationmaybe dispensed with.
Likewise,this Courthas allowed a directinvocation ofits original jurisdictionto issuewrits ofcertiorari
when thereare special andimportant reasons therefor.[21] In Fortich v. Corona[22]westated:
“[T]he Supreme Courthas thefull discretionary power to takecognizanceofthepetition filed directly
[before]it ifcompelling reasons, orthenature andimportanceoftheissues raised, warrant. This
has beenthejudicialpolicy to beobserved andwhich has beenreiteratedin subsequent cases,
namely: Uy vs. Contreras, et. al.,Torres vs. Arranz,Bercerovs. De Guzman, and, Advinculavs.
Legaspi, et. al. As we havefurther stated inCuaresma:
‘x x x. Adirect invocationofthe SupremeCourt’s originaljurisdiction to issuethesewrits should be
allowedonly when there arespecialand importantreasons therefor,clearly and specifically set
out in the petition. This is established policy. x x x.’
“Pursuantto said judicial policy,we resolve totake primary jurisdiction over thepresentpetition inthe
interest ofspeedy justiceand toavoidfuture litigations so as topromptly put an end tothe
presentcontroversy which, as correctlyobserved by petitioners,has sparked nationalinterest
because ofthemagnitudeoftheproblem created by theissuanceoftheassailed
resolution. Moreover, x x x requiring the petitioners to filetheir petitionfirstwith the Courtof
Appeals would only result ina wasteoftime andmoney.
“That the Courthas the power to setasideits own rules inthehigherinterests ofjusticeis well-
entrenchedin our jurisprudence. We reiteratewhatwe saidin Piczon vs. CourtofAppeals:[23]
‘Be it remembered that rules ofprocedurearebut meretools designed tofacilitate theattainmentof
justice. Their strictandrigid application, whichwould result intechnicalities that tend tofrustrate
rather thanpromote substantial justice, mustalways beavoided. Timeand again,this Courthas](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-7-320.jpg)
![suspended its own rules andexcepted a particularcasefromtheir operation wheneverthehigher
interests of justice so require. In theinstantpetition, weforego a lengthy disquisitionofthe
proper procedurethatshould havebeentakenby theparties involvedandproceeddirectly to the
merits of thecase.’
In a number of other exceptional cases,[24] weheld as follows:
“This Court has original jurisdiction, concurrentwith thatofRegional Trial Courts andtheCourt of
Appeals, over petitions for certiorari, prohibition,mandamus,quowarrantoand habeas corpus,
and we entertaindirect resortto us in cases wherespecialandimportantreasons orexceptional
and compelling circumstances justify thesame.”
In the interestof justiceand to settleonceand for alltheimportantissueofbail in extradition
proceedings, wedeemit best totake cognizanceofthepresent case. Suchproceedings constitute
a matterof firstimpressionover whichthereis, as yet, nolocal jurisprudenceto guidelower
courts.
FivePostulates ofExtradition
The substantive issues raised in this caserequirean interpretation or construction ofthe treaty and the
law on extradition. Acardinal rulein theinterpretation ofa treatyor a lawis to ascertain and give
effect to its intent.[25] Since PD1069is intended as a guidefor theimplementationofextradition
treaties to which thePhilippines is a signatory,[26] understanding certainpostulates ofextradition
will aid us inproperly deciding theissues raisedhere.
1. Extradition IsaMajor Instrument for the Suppression ofCrime.
First, extraditiontreaties are entered intofor thepurposeofsuppressing crime[27] by facilitating the
arrest andthecustodial transfer[28] ofa fugitive[29] from one state totheother.
With the adventof easierand faster means ofinternational travel, the flightofaffluentcriminals from
one countryto another for thepurposeofcommitting crime andevading prosecution has become
more frequent. Accordingly,governments are adjusting their methods ofdealing with criminals
and crimes that transcendinternationalboundaries.
Today, “a majority ofnations intheworld community havecometolookupon extraditionas the major
effective instrument of international co-operationin the suppression ofcrime.”[30] It is theonly
regular system thathas been devisedto return fugitives to the jurisdictionofa court competent to
try them in accordancewith municipalandinternational law.[31]
“An importantpractical effect x x x oftherecognition oftheprinciple thatcriminals shouldbe restored
to a jurisdictioncompetent totry andpunish themis that the numberofcriminals seeking refuge
abroad willbe reduced. For to theextentthat efficient means ofdetectionand the threatof
punishment playa significant rolein the deterrenceofcrimewithin the territorial limits ofa State,
so the existenceofeffectiveextradition arrangements and theconsequent certainty ofreturnto
the locusdelicticommissi play a corresponding rolein thedeterrenceofflight abroadin order to
escapetheconsequence ofcrime. x x x. From anabsenceofextradition arrangements flight
abroad by the ingenious criminalreceives direct encouragement and thus indirectly does the
commission of crimeitself.”[32]
In Secretary v. Lantion[33] weexplained:
“The Philippines also has a national interest to help insuppressing crimes and oneway to doit is to
facilitate the extradition ofpersons covered by treaties dulyentered[into]by our
government. Moreandmore,crimes arebecoming theconcernofone world. Laws involving
crimes andcrime preventionareundergoing universalization. One manifest purpose ofthis trend
towards globalizationis to deny easyrefugeto a criminalwhoseactivities threatenthepeaceand
progress of civilizedcountries. It is to the great interest ofthePhilippines tobe partofthis
irreversiblemovement inlight ofits vulnerability to crimes,especially transnationalcrimes.”
Indeed, inthis era of globalization, easier and fasterinternationaltravel,and an expanding ring of
internationalcrimes and criminals, wecannot afford to bean isolationist state. Weneedto
cooperatewith otherstates inorder toimprove our chances ofsuppressing crimein our own
country.
2. The Requesting State WillAccord Due Processto the Accused
Second, an extradition treaty presupposes that both parties theretohaveexamined, and that both
accept andtrust, each other’s legal system and judicial process.[34] Morepointedly,our duly
authorized representative’s signature onanextradition treaty signifies our confidenceinthe
capacity andthewillingness oftheother state toprotect the basic rights ofthepersonsoughtto
be extradited.[35] That signature signifies ourfull faith thattheaccusedwill begiven,upon
extradition totherequesting state, allrelevant andbasic rights in thecriminalproceedings that
will takeplace therein;otherwise, thetreatywould not havebeensigned, orwould havebeen
directlyattacked for its unconstitutionality.
3. The ProceedingsAreSui Generis
Third, as pointed out in Secretary ofJustice v. Lantion,[36] extradition proceedings arenotcriminalin
nature. In criminalproceedings, theconstitutionalrights oftheaccused areatfore; in extradition
which is suigeneris --in a class by itself --they are not.
“An extradition[proceeding]is sui generis. It is nota criminalproceeding which willcallinto operation
all the rights ofanaccused as guaranteed bytheBillofRights. To begin with,theprocess of
extradition does not involve the determinationoftheguilt or innocence ofanaccused. His guilt or
innocence will beadjudged in thecourt ofthestatewherehe willbeextradited. Hence,as a rule,
constitutional rights thatare only relevant to determinetheguilt or innocence ofan accused
cannot beinvoked by an extraditeex x x.
x x x x x x x x x
“There areotherdifferences between anextraditionproceeding anda criminalproceeding. An
extradition proceeding is summary innature whilecriminal proceedings involve a full-blown
trial. In contradistinctionto a criminal proceeding, therules ofevidence inanextradition
proceeding allowadmission ofevidenceunderless stringentstandards. In terms ofthequantum
ofevidenceto besatisfied,a criminalcase requires proof beyondreasonable doubt for conviction
while a fugitivemay beorderedextradited ‘uponshowing oftheexistenceofa prima facie
case.’ Finally, unlikein a criminal casewherejudgmentbecomes executoryuponbeing rendered
final, in anextraditionproceeding, ourcourts may adjudgeanindividual extraditable but the
Presidenthas thefinal discretionto extradite him. The United States adheres to a similar practice
whereby theSecretary ofState exercises widediscretionin balancing the equities ofthe caseand
the demands ofthenation’s foreign relations beforemaking theultimatedecisionto extradite.”
Given the foregoing, it is evidentthattheextraditioncourt is not called upon toascertaintheguilt or
the innocenceofthe person soughtto beextradited.[37] Such determination during theextradition
proceedings willonly result in needless duplicationand delay. Extradition is merelya measureof
internationaljudicialassistancethroughwhicha personcharged withor convicted ofa crimeis
restored to a jurisdiction with the best claimto try thatperson. It is not partofthe functionofthe
assisting authorities to enter into questions thataretheprerogative ofthat
jurisdiction.[38] Theultimate purpose ofextradition proceedings in court is onlyto determine
whether the extraditionrequestcomplies withthe Extradition Treaty, andwhether the person
sought is extraditable.[39]
4. Compliance ShallBe in Good Faith.
Fourth, our executive branchofgovernment voluntarily enteredintotheExtradition Treaty, and our
legislativebranch ratified it. Hence, the Treaty carries thepresumptionthatits implementation
will serve the national interest.
Fulfilling our obligations undertheExtraditionTreatypromotes comity[40]with therequesting state. On
the other hand, failureto fulfillourobligations thereunderpaints a badimageofour country
before the worldcommunity. Suchfailure would discourage other states from entering into
treaties with us, particularly anextradition treaty thathinges on reciprocity.[41]
Verily, we arebound by pacta sunt servanda tocomply in good faithwithour obligations under the
Treaty.[42] This principlerequires that wedelivertheaccusedto therequesting country ifthe
conditions precedentto extradition, as set forth intheTreaty, are satisfied. In otherwords, “[t]he
demanding government, when it has doneallthat the treaty and the lawrequireit todo, is
entitled tothedelivery ofthe accused ontheissueofthe proper warrant,and theother
governmentis underobligationto makethesurrender.”[43] Accordingly, the Philippines must be
ready andin a position todeliver theaccused,should itbe found proper.
5. There Isan Underlying Risk ofFlight
Fifth, persons to beextraditedare presumed to beflight risks. This prima faciepresumption finds
reinforcement in theexperience[44] oftheexecutivebranch:nothing short ofconfinement can](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-8-320.jpg)
![ensure that theaccusedwill not flee thejurisdictionoftherequested statein order to thwarttheir
extradition totherequesting state.
The present extradition casefurther validates the premisethatpersons sought to beextraditedhave a
propensity to flee. Indeed,extraditionhearings would noteven begin, ifonly the accused were
willing to submit to trialin the requesting country.[45] Prioracts ofherein respondent-- (1) leaving
the requesting staterightbeforetheconclusion ofhis indictment proceedings there; and(2)
remaining intherequested statedespitelearning thattherequesting stateis seeking his return
and that the crimes he is chargedwith arebailable -- eloquently speakofhis aversion tothe
processes in therequesting state, as well as his predispositionto avoid thematall cost. These
circumstances point to an ever-present, underlying highrisk offlight. Hehas demonstrated that
he has thecapacity and thewillto flee. Having fled once, whatis thereto stophim, given
sufficientopportunity, from fleeing a secondtime?
First Substantive Issue:
Is Respondent Entitled to Noticeand Hearing
Before theIssuanceofa Warrant ofArrest?
Petitioner contends that the procedureadopted by the RTC --informing theaccused, a fugitivefrom
justice, thatanExtraditionPetition has beenfiled againsthim, and that petitioner is seeking his
arrest --gives him noticeto escapeand to avoid extradition. Moreover,petitioner pleads that
such proceduremay set a dangerous precedent, in that thosesought tobeextradited -- including
terrorists, mass murderers and war criminals -- may invokeit in future extradition cases.
On the other hand, RespondentJimenez argues thathe shouldnotbe hurriedlyandarbitrarily deprived
of his constitutional right toliberty withoutdueprocess. He furtherasserts thatthereis as yet no
specificlaw or rulesetting forththeprocedure priorto theissuanceofa warrant ofarrest, after
the petition for extraditionhas been filedin court; ergo, the formulation ofthatprocedure is
within thediscretion ofthepresiding judge.
Both parties citeSection 6ofPD 1069in supportoftheirarguments. It states:
“SEC. 6. Issuance of Summons; TemporaryArrest; Hearing,Service ofNotices.-(1) Immediately upon
receiptof the petition, thepresiding judge ofthecourtshall,as soonas practicable, summon the
accused toappearand to answer the petitionon the day andhourfixed in theorder. [H]e
may issue awarrant for the immediate arrest ofthe accused which may be served any where
within the Philippinesifit appearsto the presiding judgethat theimmediate arrest and
temporary detention ofthe accused will best serve the endsofjustice. Uponreceiptofthe
answer,or shouldtheaccused after having receivedthesummons fail toanswerwithin thetime
fixed, the presiding judge shallhearthecase orset another datefor thehearing thereof.
“(2) The order andnoticeas well as a copy ofthewarrantofarrest, ifissued, shall bepromptly served
each upontheaccused andtheattorney having charge ofthecase.” (Emphasis ours)
Does this provisionsanctionRTC JudgePurganan’s actofimmediately setting for hearing theissuance of
a warrant of arrest? Weruleinthenegative.
1. On the Basisof the Extradition Law
It is significant to notethatSection 6 ofPD1069, ourExtraditionLaw, uses theword“immediate”to
qualify thearrestoftheaccused. This qualification wouldbe renderednugatory bysetting for
hearing the issuanceofthe arrestwarrant. Hearing entails sending notices totheopposing
parties,[46] receiving facts and arguments[47] fromthem,[48] and giving themtimeto prepareand
presentsuch facts andarguments. Arrestsubsequentto a hearing canno longer beconsidered
“immediate.” The law couldnothave intendedthewordas a mere superfluity but,on thewhole,
as a means of imparting a senseofurgency andswiftness in thedeterminationofwhether a
warrantof arrest shouldbe issued.
By using the phrase “ifit appears,” thelawfurther conveys thataccuracy is not as important as speed at
such early stage. The trial courtis notexpected tomakean exhaustive determinationto ferret out
the true and actual situation, immediatelyuponthefiling ofthepetition. From theknowledge and
the materialthen availableto it,thecourt is expected merelyto geta goodfirst impression --
a prima facie finding -- sufficientto makea speedy initialdeterminationas regards thearrest and
detention of theaccused.
Attachedto thePetition for Extradition, with a Certificate ofAuthenticationamong others, werethe
following: (1) Annex H, the Affidavit executed on May 26, 1999by Mr. Michael E. Savage --trial
attorneyin the CampaignFinancing Task ForceoftheCriminal Divisionofthe US Department of
Justice; (2) Annexes H to G, evidentiary Appendices ofvarious exhibits that constituted evidenceof
the crimes charged intheIndictment, withExhibits 1to 120 (duly authenticatedexhibits that
constituted evidenceofthecrimes charged in theIndictment); (3) Annex BB, the ExhibitI
“AppendixofWitness [excerpts]Statements Referenced intheAffidavitofAngela Byers” and
enclosed Statements intwovolumes; (4) AnnexGG, the Exhibit J“TableofContents for
SupplementalEvidentiary Appendix”with enclosed Exhibits 121to 132; and(5) AnnexMM, the
Exhibit L “AppendixofWitness [excerpts]Statements Referenced intheAffidavitofBetty Steward”
and enclosedStatements in two volumes.[49]
It is evidentthat respondentjudge could havealready gotten an impression from theserecords
adequatefor himto makeaninitial determination ofwhether theaccusedwas someonewho
should immediately bearrested inorder to“best serve the ends ofjustice.” He could have
determined whether such facts andcircumstances existed as would lead a reasonablydiscreetand
prudent personto believe that theextradition request was prima faciemeritorious. In pointof
fact, he actually concluded fromthese supporting documents that“probablecause”didexist. In
the second questioned Order, hestated:
“In the instantpetition,thedocuments sentby theUS Government in supportof[its]request for
extradition ofhereinrespondent areenough toconvincetheCourt oftheexistenceofprobable
cause toproceedwiththehearing against the extraditee.”[50]
We stress that the prima facieexistence ofprobablecause for hearing the petitionand, a priori, for
issuing an arrest warrant was alreadyevidentfrom thePetitionitselfand its supporting
documents. Hence, after having already determined therefrom that a primafacie finding did exist,
respondentjudge gravelyabusedhis discretionwhen heset the matter for hearing upon motion of
Jimenez.[51]
Moreover, thelawspecifies thatthecourt sets a hearing upon receipt oftheanswer or upon failureof
the accused toanswerafter receiving thesummons. In connection withthematterofimmediate
arrest,however,theword“hearing”is notably absentfrom theprovision. Evidently,hadthe
holding ofa hearing at that stagebeen intended, the lawcould have easily so provided. It also
bears emphasizing at this point thatextraditionproceedings aresummary[52]in nature. Hence, the
silenceoftheLaw andtheTreatyleans tothemore reasonableinterpretation that thereis no
intention topunctuatewith a hearing every littlestepin theentireproceedings.
“It is taken for granted thatthecontracting parties intend something reasonable andsomething not
inconsistent withgenerally recognizedprinciples ofInternational Law, norwithprevious treaty
obligations towards third States. If, therefore, the meaning ofa treaty is ambiguous, the
reasonablemeaning is to bepreferred to the unreasonable, the morereasonable totheless
reasonablex x x .”[53]
Verily, as argued by petitioner, sending to persons sought tobe extradited a noticeoftherequest for
their arrest andsetting it for hearing atsomefuturedatewouldgivethem ampleopportunityto
prepareandexecute an escape. NeithertheTreatynor the Lawcould have intendedthat
consequence, for the very purposeofboth wouldhave been defeatedby theescape ofthe
accused fromtherequested state.
2. On the Basisof the Constitution
Even Section2 ofArticleIII ofour Constitution, which is invoked by Jimenez, does not requirea noticeor
a hearing before the issuanceofa warrant ofarrest. It provides:
“Sec. 2. The rightofthepeople tobe secure intheir persons,houses, papers, andeffects against
unreasonablesearches andseizures ofwhatevernatureand for any purpose shall beinviolable,
and no search warrant orwarrantofarrest shall issueexceptuponprobable cause tobe
determined personally by thejudge after examinationunder oath or affirmation ofthe
complainantand thewitnesses hemay produce, and particularly describing theplaceto be
searchedand thepersons orthings to beseized.”
To determine probablecausefor theissuance ofarrest warrants, theConstitutionitselfrequires only
the examination --under oathor affirmation--of complainants andthewitnesses they may
produce. There is norequirement tonotify and hear the accused beforetheissuanceofwarrants
ofarrest.](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-9-320.jpg)
![In Ho v. People[54] and inall the cases citedtherein, never was a judgerequiredto go totheextent of
conducting a hearing justfor thepurposeofpersonally determining probablecausefor the
issuanceof a warrant ofarrest. All werequired was thatthe“judgemusthave sufficient
supporting documents upon which to makehis independent judgment,or atthevery least, upon
which to verify thefindings oftheprosecutor as to theexistenceofprobablecause.”[55]
In Webb v. De Leon,[56] the Courtcategorically stated thata judgewas not supposed to conducta
hearing beforeissuing a warrantofarrest:
“Again, we stress that beforeissuing warrants ofarrest, judges merely determinepersonally the
probability, not thecertainty ofguilt ofanaccused. In doing so,judges donotconducta de novo
hearing to determine the existence ofprobable cause. They justpersonally reviewtheinitial
determinationofthe prosecutor finding a probablecauseto seeifitis supported by substantial
evidence.”
At most, in cases of clear insufficiency ofevidence onrecord, judges merely further
examinecomplainants and theirwitnesses.[57] In thepresent case, validating the actofrespondent
judge and instituting thepracticeofhearing theaccusedand his witnesses atthis earlystage
would be discordant withtherationale for the entiresystem. Iftheaccused wereallowed to be
heard and necessarily to presentevidenceduring the primafacie determinationfor theissuanceof
a warrant of arrest, whatwould stop himfrom presenting his entireplethora ofdefenses atthis
stage --if he so desires --in his effortto negatea prima facie finding? Such a procedure could
convert thedetermination ofa prima facie caseinto a full-blown trialofthe entireproceedings
and possibly maketrial ofthe main casesuperfluous. This scenario is also anathema to the
summarynatureofextraditions.
That the caseunder consideration is anextraditionand nota criminal actionis notsufficientto justify
the adoptionofa setofprocedures moreprotectiveoftheaccused. Ifa different procedurewere
calledfor at all, a more restrictive one --not theopposite--wouldbe justifiedin viewof
respondent’s demonstratedpredisposition toflee.
Since this is a matter offirst impression,we deem itwiseto restatetheproper procedure:
Upon receipt of a petition for extradition and its supporting documents,thejudgemuststudythem and
make, as soon as possible, a primafacie finding whether (a) they aresufficient inform and
substance,(b) they show compliancewith the Extradition Treaty and Law, and (c) theperson
sought is extraditable. At his discretion, thejudgemay requirethesubmission offurther
documentation or maypersonally examinetheaffiants and witnesses ofthe petitioner. If, in spite
of this study and examination, no prima facie finding[58] is possible, the petitionmay bedismissed
at the discretion ofthejudge.
On the other hand, ifthepresenceofa prima facie caseis determined,then the magistrate must
immediately issuea warrant for the arrest oftheextraditee,who is at the sametime summoned
to answer thepetition andto appear at scheduled summary hearings. Priorto theissuanceofthe
warrant, thejudge must not inform ornotify thepotential extraditeeofthependency ofthe
petition, lest the latter begiven the opportunity to escapeand frustratetheproceedings. In our
opinion, the foregoing procedurewill“best serve the ends ofjustice”in extradition cases.
Second Substantive Issue:
Is Respondent Entitled to Bail?
Article III,Section 13oftheConstitution, is worded as follows:
“Art. III, Sec. 13. Allpersons, except those charged with offenses punishableby reclusion perpetua when
evidenceof guilt is strong, shall,before conviction, bebailableby sufficient sureties,or bereleased
on recognizance as may be provided by law. The right tobailshallnot beimpairedeven whenthe
privilegeof thewritofhabeas corpus is suspended. Excessivebailshallnotbe required.”
RespondentMarkB. Jimenez maintains that this constitutionalprovision secures theright tobail
ofall persons, including thosesoughtto beextradited. Supposedly, theonlyexceptions arethe
ones charged with offenses punishable withreclusion perpetua, when evidenceofguilt is
strong. He also alleges therelevance tothepresent caseofSection4[59] ofRule 114ofthe Rules of
Court which, insofaras practicable andconsistentwith thesummary natureof extradition
proceedings, shall also apply according to Section9 ofPD 1069.
On the other hand, petitionerclaims thatthereis no provision in thePhilippineConstitutiongranting
the right to bail to a person who is the subjectofan extradition request andarrestwarrant.
Extradition Different from Ordinary Criminal Proceedings
We agree withpetitioner. As suggested by theuseofthe word “conviction,”theconstitutional
provision on bail quoted above, as wellas Section 4 ofRule 114ofthe Rules of Court, applies only
when a personhas been arrested anddetainedfor violation ofPhilippinecriminallaws. It does not
apply to extraditionproceedings,becauseextraditioncourts do not render judgments of
conviction or acquittal.
Moreover, theconstitutionalright to bail “flows fromthepresumptionofinnocence in favor ofevery
accused who should not besubjected totheloss offreedomas thereafter hewould beentitledto
acquittal, unless his guilt beproved beyond reasonabledoubt.”[60] It follows thattheconstitutional
provision on bail willnotapplyto a caselike extradition,wherethepresumptionofinnocence is
not at issue.
The provision in the Constitution stating thatthe“rightto bailshallnotbe impaired evenwhen the
privilegeofthewritof habeas corpus is suspended”does notdetractfrom the rulethatthe
constitutional right tobailis availableonly in criminal proceedings. It mustbe noted that the
suspensionofthe privilegeofthewritofhabeas corpus finds application“only topersons judicially
charged for rebellion or offenses inherentin or directlyconnected withinvasion.”[61] Hence, the
second sentence intheconstitutionalprovision on bail merely emphasizes theright tobailin
criminal proceedings for theaforementionedoffenses. It cannot betaken tomeanthat therightis
availableeven inextraditionproceedings that are not criminalin nature.
That the offenses for which Jimenez is sought to beextraditedarebailablein the United States is not an
argumentto grant him onein thepresent case. To stress, extradition proceedings are separate
and distinct fromthetrial for the offenses for whichheis charged. He should apply for bail before
the courts trying the criminal cases against him, not beforetheextraditioncourt.
No ViolationofDueProcess
RespondentJimenez cites the foreigncase Paretti[62] in arguing that, constitutionally,
“[n]o one shall be deprivedofx x x liberty x x x without due process oflaw.”
Contrary tohis contention, his detentionprior to theconclusion oftheextraditionproceedings does not
amount to a violationofhis right to due process. Weiterate thefamiliar doctrine that theessence
ofdue process is theopportunity tobeheard[63] but, at thesame time,point out thatthedoctrine
does not always call for a prioropportunity tobeheard.[64] Where the circumstances --such as
those present inan extradition case -- callfor it, a subsequent opportunity to beheard is
enough.[65] In thepresent case, respondentwill begiven full opportunity to beheard subsequently,
when the extraditioncourt hears thePetitionfor Extradition. Hence, thereis no violation ofhis
right to due process andfundamentalfairness.
Contrary tothecontentionofJimenez, wefindno arbitrariness, either, intheimmediatedeprivation of
his liberty prior to his being heard.Thathis arrest and detention willnotbe arbitrary is sufficiently
ensuredby (1) theDOJ’s filing in courtthePetition withits supporting documents after a
determinationthat the extradition requestmeets the requirements ofthelaw and therelevant
treaty; (2) theextraditionjudge’s independent prima faciedeterminationthat his arrestwill best
serve theends ofjusticebeforetheissuance ofa warrantfor his arrest; and (3) his opportunity,
once he is under the court’s custody, to apply for bail as anexceptionto theno-initial-bail rule.
It is also worth noting thatbeforetheUS governmentrequested the extradition ofrespondent,
proceedings had already beenconducted inthat country. But becausehe left the jurisdictionof
the requesting statebefore thoseproceedings could becompleted, itwas hinderedfrom
continuing with the due processes prescribed underits laws. His invocationofdue process now
has thus become hollow. He alreadyhadthatopportunity intherequesting state; yet, instead of
taking it, heran away.
In this light, would itbe proper and just for the governmentto increase therisk ofviolating its treaty
obligations inorder toaccord RespondentJimenez his personalliberty in thespan oftimethat it
takes to resolvethePetition for Extradition? His supposed immediatedeprivation ofliberty
without thedueprocess that hehad previously shunned pales againstthegovernment’s interest in
fulfilling its Extradition Treaty obligations and in cooperating withtheworld communityin the
suppression ofcrime. Indeed, “[c]onstitutionalliberties donot existin a vacuum; the due process
rights accorded to individuals must becarefully balancedagainst exigentand palpable government
interests.”[66]](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-10-320.jpg)
![Too, we cannot allow our country tobe a havenfor fugitives, cowards andweaklings who,instead of
facing the consequences oftheir actions, chooseto runandhide. Hence, it would not begood
policy to increase the risk ofviolating ourtreaty obligations if, through overprotection or
excessively liberaltreatment, persons sought to beextradited areableto evadearrestor escape
from our custody. In the absence ofany provision--in the Constitution,thelaw or thetreaty --
expressly guaranteeing theright tobailin extradition proceedings, adopting thepracticeofnot
granting them bail,as a generalrule, would bea step towards deterring fugitives from coming to
the Philippines to hidefrom orevadetheir prosecutors.
The denialof bailas a matter ofcourse in extradition cases falls intoplace withand gives lifeto Article
14[67] of the Treaty, since this practicewouldencourage theaccused tovoluntarily surrender to
the requesting stateto cutshorttheirdetentionhere. Likewise, their detention pending the
resolutionof extradition proceedings wouldfall into placewith the emphasis oftheExtradition
Law on the summary natureofextraditioncases and the need for their speedy disposition.
Exceptionsto the “No Bail”Rule
The rule, we repeat,is that bail is not a matter ofright inextraditioncases. However,thejudiciaryhas
the constitutional duty tocurbgrave abuseofdiscretion[68] andtyranny, as well as thepower to
promulgate rules to protectand enforce constitutionalrights.[69] Furthermore,we believethat the
right to due process is broad enough toincludethegrant ofbasicfairness to extraditees. Indeed,
the right to dueprocess extends to the “life, liberty or property” of every person. It is “dynamic
and resilient,adaptableto everysituation calling for its application.”[70]
Accordingly andto best serve the ends ofjustice,we believeand sohold that, aftera potential
extraditee has beenarrested or placed under thecustodyofthe law, bail may beapplied for and
granted as an exception, only upona clearandconvincing showing (1) that, oncegrantedbail, the
applicant willnot bea flightrisk or a danger to thecommunity; and (2) thatthereexist special,
humanitarianandcompelling circumstances[71]including,as a matter ofreciprocity,thosecited by
the highest courtin therequesting statewhen itgrants provisionallibertyin extradition cases
therein.
Since this exception has no express or specific statutory basis, andsince itis derivedessentially from
general principles ofjustice andfairness,theapplicant bears theburden ofproving theabovetwo-
tiered requirementwith clarity, precisionandemphaticforcefulness. The Court realizes that
extradition is basically an executive, not a judicial, responsibility arising from thepresidential
power to conduct foreignrelations. In its barestconcept, itpartakes ofthenatureofpolice
assistanceamongststates,whichis not normallya judicialprerogative. Hence,anyintrusion by
the courts into the exercise ofthis powershould becharacterizedby caution, so thatthevital
internationaland bilateralinterests ofour country willnot beunreasonably impeded or
compromised. In short,whilethis Court is ever protective of“thesporting idea offair play,”italso
recognizes thelimits ofits own prerogatives and the need tofulfill internationalobligations.
Along this line, Jimenez contends that therearespecialcircumstances that arecompelling enough for
the Court to granthis request for provisional releaseon bail. Wehave carefullyexaminedthese
circumstances and shall now discuss them.
1. Alleged Disenfranchisement
While his extradition was pending, RespondentJimenez was electedas a member oftheHouseof
Representatives. On thatbasis, heclaims thathis detention willdisenfranchise his Manila district
of 600,000residents. We are not persuaded. In People v. Jalosjos,[72] the Courthas already
debunked thedisenfranchisement argument whenit ruled thus:
“When thevoters of his districtelected theaccused-appellantto Congress,they did sowith full
awareness of thelimitations onhis freedom ofaction. They did sowith the knowledge that he
could achieveonly such legislativeresults which hecouldaccomplishwithin theconfines of
prison. To give a more drasticillustration, ifvoters electa personwith fullknowledgethathe is
suffering from a terminal illness,they do so knowing thatat anytime,he may nolongerservehis
full term in office.
“In the ultimate analysis, the issue beforeus boils down toa questionofconstitutional equalprotection.
“The Constitution guarantees: ‘x x x nor shallany person bedeniedtheequal protection oflaws.’ This
simply means thatall persons similarly situated shallbetreated alike bothin rights enjoyedand
responsibilities imposed. Theorgans ofgovernment may notshow any undue favoritism or
hostility toany person. Neither partialitynor prejudiceshallbedisplayed.
“Does being an electiveofficialresult in a substantialdistinctionthat allows differenttreatment? Is
being a Congressman a substantial differentiationwhichremoves theaccused-appellant as a
prisoner from the sameclass as allpersons validly confinedunder law?
“The performanceoflegitimate and even essential duties by publicofficers has neverbeen an excuse to
free a person validly [from]prison. The duties imposed by the ‘mandate ofthe people’ are
multifarious. The accused-appellant asserts thatthedutyto legislateranks highestin the
hierarchy ofgovernment. The accused-appellant is only one of250 members oftheHouseof
Representatives, not tomentionthe24 members oftheSenate,charged withtheduties of
legislation. Congress continues tofunction wellin thephysical absence ofoneor a few ofits
members. Depending ontheexigencyof Government thathas tobeaddressed,thePresident or
the SupremeCourt canalso bedeemedthehighestfor that particular duty. The importanceofa
function depends on theneed for its exercise. The duty ofa motherto nurseher infant is most
compelling under the lawofnature. Adoctor withuniqueskills has theduty to save the lives of
those with a particular affliction. An electivegovernor has to serveprovincialconstituents. A
police officer must maintain peaceand order. Never has thecall ofa particular duty lifted a
prisoner into a different classification fromthoseothers who arevalidlyrestrainedby law.
“Astrict scrutiny ofclassifications is essential lest[,]wittingly or otherwise,insidious discriminations are
made in favor ofor againstgroups ortypes ofindividuals.
“The Court cannot validate badges ofinequality. The necessities imposedby public welfaremay justify
exerciseofgovernmentauthority toregulateevenifthereby certain groups may plausibly assert
that their interests are disregarded.
“We, therefore,find that electionto thepositionofCongressman is not a reasonableclassification in
criminal lawenforcement. The functions andduties ofthe office arenotsubstantialdistinctions
which lift him fromtheclass ofprisoners interrupted intheirfreedomand restrictedin liberty of
movement. Lawfularrestandconfinement aregermaneto thepurposes ofthelaw and apply to
all those belonging tothesameclass.”[73]
It must be noted thateven beforeprivaterespondent ranfor andwona congressional seatin Manila, it
was alreadyofpublicknowledgethat theUnitedStates was requesting his extradition. Hence, his
constituents wereor shouldhave been preparedfor theconsequences oftheextraditioncase
against their representative, including his detentionpending the finalresolution ofthe
case. Premises consideredand inline withJalosjos,we areconstrained to ruleagainst his claim
that his election topublicofficeis by itselfa compelling reason togrant him bail.
2. AnticipatedDelay
RespondentJimenez further contends thatbecausetheextraditionproceedings arelengthy, itwould be
unfair to confinehimduring thependency ofthecase. Again weare not convinced. We must
emphasizethat extradition cases aresummary innature. They are resorted to merely to
determinewhether theextradition petitionand its annexes conform to theExtraditionTreaty,not
to determineguilt orinnocence. Neitheris it,as a rule, intendedto address issues relevant tothe
constitutional rights available totheaccused in a criminal action.
We are not overruling thepossibility thatpetitioner may, in bad faith, unduly delay the proceedings.
This is quiteanothermatter that is notatissuehere.Thus, any furtherdiscussion ofthis point
would be merely anticipatoryandacademic.
However, ifthe delayis dueto maneuverings ofrespondent,with allthemorereason wouldthe grant
ofbail not bejustified. Giving premium todelay by considering it as a specialcircumstancefor the
grant ofbailwould betantamountto giving him the power to grant bailto himself. It would also
encourage him tostretchout andunreasonablydelay theextraditionproceedings even more. This
we cannotallow.
3. Not a Flight Risk?
Jimenez further claims that heis not a flight risk. To supportthis claim,he stresses thathelearned of
the extradition requestin June1999; yet, hehas not fled the country. True,he has notactually
fled during thepreliminary stages oftherequest for his extradition. Yet, this fact cannotbe taken
to mean thathe willnotfleeas the process moves forwardto its conclusion, as he hears the
footsteps oftherequesting governmentinching closerand closer. Thathe has notyetfledfrom](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-11-320.jpg)
![the Philippines cannot betaken tomeanthat hewillstand his ground and stillbe withinreach of
our governmentifandwhenit matters; thatis, upon theresolutionofthe Petitionfor Extradition.
In any event, itis settled thatbailmay beapplied for and granted by the trial court at anytimeafterthe
applicant has been takeninto custodyandprior tojudgment,even after bailhas been previously
denied. In the presentcase, theextraditioncourt may continue hearing evidenceon the
application for bail, which may begranted in accordancewith the guidelines in this Decision.
BriefRefutation ofDissents
The proposalto remandthis caseto the extradition court, webelieve, is totally unnecessary; infact, itis
a cop-out. The parties --in particular, RespondentJimenez --have been given morethan sufficient
opportunity both by thetrialcourt andthis Courtto discuss fully and exhaustively private
respondent’s claimto bail. As already stated, theRTC setfor hearing not only petitioner’s
application for anarrestwarrant, but also privaterespondent’s prayer for temporary
liberty. Thereafter requiredby theRTC were memoranda on the arrest,then positionpapers on
the application for bail, both ofwhich wereseparately filed bytheparties.
This Court has meticulously poredover thePetition, theComment, theReply, thelengthy Memoranda
and the Position Papers ofboth parties. Additionally, it has patiently heard them inOral
Arguments,a procedurenot normally observed inthegreatmajority ofcases in this
Tribunal. Moreover,after theMemos hadbeen submitted, theparties --particularly thepotential
extraditee --have bombarded this Court withadditionalpleadings --entitled“Manifestations” by
both parties and “Counter-Manifestation”by privaterespondent --in whichthemaintopicwas
Mr. Jimenez’s plea for bail.
A remandwould mean that this long, tedious process would berepeated inits entirety. Thetrialcourt
would again hear factual and evidentiary matters. Be itnoted, however, that, in allhis voluminous
pleadings and verbal propositions, privaterespondenthas not askedfor a remand. Evidently,even
he realizes thatthereis absolutelyno needto rehear factualmatters. Indeed, theinadequacy lies
not in the factualpresentationofMr. Jimenez. Rather,it lies in his legalarguments. Remanding
the casewillnot solvethis utter lack ofpersuasionand strength inhis legal reasoning.
In short, this Court --as shown bythis Decision and thespirited Concurring,SeparateandDissenting
Opinions written by the learnedjustices themselves -- has exhaustively deliberated andcarefully
passed upon all relevant questions in this case. Thus,a remandwill not serve any usefulpurpose;
it will onlyfurther delay these already very delayed proceedings,[74] which ourExtraditionLaw
requires to be summary incharacter. What weneed now is prudentanddeliberatespeed, not
unnecessary and convoluted delay. What is needed is a firm decisionon the merits, not a
circuitous cop-out.
Then, thereis alsothesuggestion thatthis Courtis allegedly “disregarding basic freedoms when a case
is one of extradition.” We believethat this charge is not only baseless,butalsounfair. Sufficeit to
say that, in its lengthand breath, this Decisionhas takenspecialcognizance oftherights to due
process and fundamentalfairness ofpotentialextraditees.
Summation
As we draw to a close,it is nowtimeto summarizeand stress theseten points:
1. The ultimate purpose ofextradition proceedings is to determinewhether therequest expressed in
the petition, supported by its annexes andtheevidence that may beadduced during thehearing
of the petition, complies with the Extradition Treaty and Law; and whether thepersonsoughtis
extraditable. The proceedings areintendedmerely to assist the requesting state in bringing the
accused --or thefugitivewho has illegally escaped --backto its territory,sothat the criminal
process may proceedtherein.
2. By entering into an extradition treaty,thePhilippines is deemed to have reposed its trustin the
reliabilityor soundness of the legalandjudicialsystemofits treaty partner,as wellas in theability
and the willingness ofthelatterto grantbasic rights totheaccusedin the pending criminal case
therein.
3. By naturethen, extradition proceedings are not equivalentto a criminal caseinwhich guiltor
innocence is determined. Consequently, an extradition caseis not one in whichtheconstitutional
rights of the accused are necessarily available. It is moreakin, ifatall,to a court’s requestto
police authorities for thearrest ofthe accused whois atlargeor has escaped detention orjumped
bail. Having onceescapedthejurisdiction oftherequesting state, the reasonableprima facie
presumption is thatthepersonwould escapeagain ifgiven the opportunity.
4. Immediately upon receipt ofthepetitionfor extradition andits supporting documents, thejudgeshall
make a prima faciefinding whether the petitionis sufficient inform and substance,whether it
complies withtheExtraditionTreatyand Law,andwhetherthe person sought is extraditable. The
magistrate has discretionto requirethepetitioner tosubmit further documentation, orto
personally examinetheaffiants or witnesses. Ifconvinced thata prima facie caseexists, thejudge
immediately issues a warrant for the arrest ofthepotential extraditee andsummons himor her to
answer andto appear at scheduledhearings on thepetition.
5. After being taken intocustody, potentialextraditees may apply for bail. Since the applicants havea
history ofabsconding, theyhave the burdenofshowing that (a) thereis noflight risk andno
danger to thecommunity;and(b) there existspecial, humanitarian orcompelling
circumstances. The grounds usedby thehighestcourt intherequesting statefor thegrantofbail
therein maybe considered, under theprincipleofreciprocity as a specialcircumstance. In
extradition cases, bailis nota matter ofright; itis subjectto judicialdiscretionin the context ofthe
peculiar facts ofeach case.
6. Potential extraditees areentitled totherights to due process and to fundamental fairness. Due
process does notalways callfor a prioropportunity tobe heard. Asubsequent opportunity is
sufficientdueto the flightrisk involved. Indeed,availableduring the hearings on the petitionand
the answeris thefull chance tobe heardand to enjoy fundamentalfairness that is compatible with
the summary nature ofextradition.
7. This Court willalways remain a protector ofhumanrights, a bastionofliberty, a bulwark of
democracy andtheconscienceofsociety. But it is alsowell awareofthelimitations ofits
authority and oftheneedfor respect for theprerogatives oftheother co-equaland co-
independent organs ofgovernment.
8. We realizethat extradition is essentially an executive,nota judicial, responsibility arising outofthe
presidentialpower toconduct foreignrelations andto implement treaties. Thus, theExecutive
Department ofgovernment has broaddiscretion in its duty andpower ofimplementation.
9. On the otherhand,courts merely perform oversightfunctions and exercisereviewauthority to
prevent or excisegraveabuseand tyranny.They should notallow contortions,delays and “over-
due process” every littlestepoftheway, lest these summary extraditionproceedings becomenot
only inutilebut alsosources ofinternational embarrassment due toour inability tocomply in good
faith with a treaty partner’s simple requestto return a fugitive. Worse, our country should not be
converted into a dubious havenwherefugitives and escapees can unreasonably delay,mummify,
mock, frustrate,checkmateand defeatthequest for bilateraljustice andinternational
cooperation.
10. At bottom, extraditionproceedingsshould beconductedwith all deliberate speed todetermine
compliance with theExtradition Treaty and Law; and, whilesafeguarding basic individual rights,
to avoid the legalistic contortions, delays and technicalities that may negate that purpose.
WHEREFORE, the Petitionis GRANTED. The assailed RTC Order datedMay 23, 2001 is hereby
declared NULL andVOID, while the challenged Order datedJuly 3, 2001 is SETASIDE insofar as it
granted bailto RespondentMarkJimenez. The bailbondposted byprivaterespondent
is CANCELLED. The Regional TrialCourt ofManila is directed toconduct the extradition
proceedings before it, withall deliberate speed pursuant to thespiritandtheletterofour
Extradition Treaty withtheUnited States as wellas our ExtraditionLaw. No costs.
SO ORDERED.
Republicofthe Philippines
SUPREMECOURT
Manila
EN BANC
G.R. No. 153675 April 19, 2007
GOVERNMENTOF HONG KONG SPECIAL ADMINISTRATIVEREGION, representedby the Philippine
Department ofJustice,Petitioner,](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-12-320.jpg)
!["temporary detention"is the possibilityofflightofthe potentialextraditee. This is basedon the
assumptionthat such extraditeeis a fugitive fromjustice.15 Giventheforegoing, theprospective
extraditee thus bears the onus probandi ofshowing that heor sheis not a flight risk andshould be
granted bail.
The time-honored principleof pactasuntservandademands that the Philippines honor its obligations
under the Extradition Treaty itenteredinto with theHong Kong Special Administrative Region.
Failure tocomply with theseobligations is a setbackin ourforeign relations and defeats the
purpose of extradition. However, itdoes not necessarily mean that inkeeping with its treaty
obligations,thePhilippines shoulddiminish a potential extraditee’s rights tolife, liberty, and due
process. Moreso, wheretheserights are guaranteed, not only by our Constitution, but also by
internationalconventions,to which thePhilippines is a party. Weshould not, therefore,deprivean
extraditee of his rightto apply for bail, provided thata certainstandardfor thegrant is
satisfactorily met.
An extradition proceeding being sui generis,thestandardofproofrequired in granting ordenying bail
can neitherbe theproofbeyond reasonabledoubt in criminalcases northestandardofproofof
preponderance ofevidencein civil cases.Whileadministrativeincharacter, thestandardof
substantialevidence used inadministrativecases cannotlikewiseapplygiven theobject of
extradition lawwhichis to preventtheprospective extraditee fromfleeing ourjurisdiction. Inhis
Separate Opinionin Purganan, then AssociateJustice,now ChiefJustice Reynato S. Puno,
proposedthat a new standard whichhe termed "clear and convincing evidence"should beused
in granting bail in extradition cases. According to him, this standard shouldbelower than proof
beyond reasonabledoubtbut higher thanpreponderanceofevidence. Thepotential extraditee
must proveby "clear and convincing evidence"thathe is not a flightrisk and will abidewith allthe
orders and processes oftheextraditioncourt.
In this case, there is noshowing thatprivaterespondent presentedevidence toshow that heis not
a flight risk. Consequently, this case shouldbe remanded tothetrialcourtto determine whether
private respondentmay begranted bail onthebasis of"clearand convincing evidence."
WHEREFORE, we DISMISS the petition. This caseis REMANDED to the trialcourt todeterminewhether
private respondentis entitledto bailon the basis of"clear andconvincing evidence."Ifnot, the
trial court shouldorder the cancellationofhis bailbondand his immediate detention; and
thereafter, conduct the extradition proceedings with dispatch.
The Corfu ChannelCase(United Kingdom ofGreat Britain and NorthernIrelandv. People's Republic of
Albania)
From Wikipedia,thefreeencyclopedia
The Corfu Channel Case (UnitedKingdomofGreat Britain and Northern Irelandv. People'sRepublicof
Albania) was a casebrought against Albania by the UK,suing for compensation after, on22
October 1946, twoBritish destroyers hit sea-mines in Albanianwaters atthe straits ofCorfu,
damaging them and killing naval personnel during the Corfu ChannelIncident.
The InternationalCourt ofJustice ordered Albania topay theUK £843,947 incompensation.
This was the firstcase brought beforetheICJ.
[edit]Implications for InternationalLaw
[edit]Decision
The Corfu Channelcase established that states mustmeet a preponderanceoftheevidence standard to
prevailbefore the ICJ.
The Paquete Habana
From Wikipedia,thefreeencyclopedia
PaqueteHabana v. UnitedStates
Supreme Court of theUnited States
Argued November 7–8, 1899
DecidedJanuary 8, 1900
Full casename PaqueteHabana.; The Lola.
Citations 175 U.S. 677(more)
20 S. Ct. 290; 44L. Ed.320; 1900U.S. LEXIS 1714
Prior history Appeals From the District Court ofthe United States for the Southern DistrictofFlorida
Subsequenthistory None
Holding
Federalcourts couldlook to customary international lawbecauseit is an integratedpart ofAmerican
law
Court membership
ChiefJustice
MelvilleFuller
AssociateJustices
John M. Harlan · HoraceGray
David J. Brewer · Henry B. Brown
George Shiras, Jr. · EdwardD. White
Rufus W. Peckham · JosephMcKenna
Case opinions
Majority Gray, joined byBrewer, Brown, Shiras, White, Peckham
Dissent Fuller, joined by Harlan,McKenna
PaqueteHabana.; The Lola,175 U.S. 677(1900),was a landmark United States SupremeCourt casethat
reversed an earlier court decisionallowing thecapture offishing vessels under Prize (law).Its
importancerests on thefact thatit integratedCustomary internationallaw withAmericanlaw,
perhaps thequintessentialposition ofthosewhohold a monist perspective ofinternational law.
Contents [hide]
1 Backgroundofthecase
2 The court's decision and merits
2.1 Fuller's dissent
3 See also
4 References
[edit]Background ofthecase
In April 1898twofishing vessels, the PaqueteHabana and theLola,separately left Cuban ports in
Havana in orderto fish.The twovessels wereeventually capturedby US Navalvessels as partof
Admiral WilliamT. Sampson's blockade ofCuba, whowas ordered to executetheblockade 'in
pursuanceofthelaws oftheUnitedStates, and the lawofnations applicable tosuch cases.'The
vessels were placed within Cuba's territorial waters at the onsetoftheSpanish-American War and
then taken to Key West,where bothvessels wereeventually auctioned bythedistrict court. Both
vessels were valuedunderthepriceof2000$(US) and werethus not originally thoughtto be
exempt fromseizure.
Admiral Sampson justifiedtheseizures by stating that most fishing vessels, flying under the Spanish
banner weremanned byexcellent seamen, "liablefor furtherservice"as naval reserves, anasset
that could eventually beused againstUS interests intheSpanish-American War.
The owners ofthe vessels however madeanappeal to thecircuit courts, citing a long held tradition by
nations ofexempting fishing vessels fromprize capture intimes ofwar. This "tradition", a primary
exampleofcustomary international law,dates back froman order by HenryIV in 1403, andhas
more or less been observedby a large majority ofStates eversince.
At the time ofcaptureboth vessels hadno evidenceofaiding theenemy, and wereunaware ofthe US
naval blockade.No arms were found onboard, and noattempts were made toeither run the
blockadeor resist capture.
[edit]The court's decision andmerits
The United SupremeCourt, which cited lengthy legalprecedents establishedto supporttheexistenceof
a customary international lawthat exempted fishing vessels fromprizecapture, dating all the way
back to ancienttimes andoccuring repeatedly between Great Britain and France. In 1403,King
Henry IV ofEngland issuedhis officers leavefishermanalone during times ofwar. Hethensigned a
treaty with Francereaffirming this act between both parties. Againin 1521between Emperor
Charles V andFrancis I ofFrancea treaty was assigned. This treatywas invokeddueto a desperate](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-15-320.jpg)
![rise in themarkets for herring.With the war betweenthetwocountries raging on, fisherman
dared not ventureoutto sea.Therefor,a treatywas necessary on bothaccounts to prevent
starvation among those who relieduponcheap herring,namelythelower classes. Situations
similar tothis continued to crop upthroughouthistory prior to the Paquetecase.Using this as a
basis for customary law, the courtthen eventually foundthecaptureofbothvessels as "unlawful
and without probablecause", reversed the District Court's decision, and ordered theproceeds of
the auctionas wellas any profits made fromhercargo tobe restoredto the claimant, "with
damages and costs".
Nicaragua v.UnitedStates
From Wikipedia,thefreeencyclopedia
The Republic of Nicaragua v. The UnitedStates ofAmerica[1]was a 1984 caseofthe InternationalCourt
of Justice(ICJ) inwhich the ICJ ruled infavorofNicaragua andagainst the UnitedStates and
awarded reparations toNicaragua. TheICJ held thattheU.S. hadviolated internationallaw by
supporting theContras intheirrebellionagainst the Nicaraguangovernment and bymining
Nicaragua's harbors. TheUnited States refused toparticipate in theproceedings after the Court
rejected its argumentthat the ICJ lacked jurisdiction tohear thecase. TheU.S. laterblocked
enforcementofthe judgment by the UnitedNations Security Council and thereby prevented
Nicaragua fromobtaining any actualcompensation.[2]The Nicaraguangovernment finally
withdrew thecomplaintfrom the courtin September 1992(under thelater, post-FSLN,
governmentof Violeta Chamorro), following a repealofthe lawrequiring thecountry toseek
compensation.[3]
The Court found inits verdictthat the UnitedStates was "inbreach ofits obligations under customary
internationallaw not to useforceagainstanotherState", "not tointervenein its affairs", "notto
violateits sovereignty", "notto interruptpeacefulmaritimecommerce", and"in breachofits
obligations under Article XIX oftheTreaty ofFriendship, Commerce andNavigationbetweenthe
Parties signedat Managua on21 January 1956."
The Court had16 finaldecisions uponwhichit voted. In Statement 9, theCourt statedthat theU.S.
encouragedhumanrights violations bytheContras by themanual entitledPsychological
Operations in Guerrilla Warfare. However, this did notmakesuch acts attributable totheU.S.[4]
Contents [hide]
1 Background
2 Arguments
2.1 Nicaragua
2.2 UnitedStates
3 Judgment
3.1 Findings
3.2 The ruling
3.3 Legalclarification andimportance
3.4 How the judges voted
4 Third-party interpretations
5 Certainwitnesses against theUS
5.1 First witness: Commander Luis Carrion
5.2 Secondwitness: Dr. David MacMichael
5.3 Third witness: ProfessorMichaelGlennon
5.4 Fourth witness: Father Jean Loison
5.5 Fifth witness: WilliamHupper
6 UN voting
7 See also
8 Notes
9 References
10 External links
[edit]Background
The first armedinterventionby theUnited States in Nicaragua occurred under PresidentTaft. In1909,
he orderedtheoverthrowofNicaraguan President José Santos Zelaya. During August and
September 1912, a contingentof2300 US Marines landed at theport ofCorinto and occupied
León and the railwayline toGranada.Apro-US government was formed under the occupation.
The 1914 Bryan-Chamorro Treaty granted perpetual canalrights to theUS in Nicaragua and was
signed ten days beforetheUS operated Panama Canal opened for use,thus preventing anyone
from building a canalin Nicaragua without US permission.[5]
In 1927, underAugustoCésar Sandino, a majorpeasantuprising was launched againstboththeUS
occupationand theNicaraguanestablishment. In 1933,theMarines withdrewand left the
National Guard inchargeofinternal security and elections. In 1934, Anastasio Somoza García, the
head ofthe NationalGuard, orderedhis forces to captureand murder Sandino. In 1937,Somoza
assumed thepresidency, whilestillincontroloftheNationalGuard,and established a dictatorship
that his family controlleduntil 1979.[6]
The downfalloftheregimeis attributed toits embezzlementofmillions ofdollars inforeign aidthatwas
given to the country in responseto the devastating 1972earthquake.Manymoderate supporters
ofthe dictatorshipbeganabandoning itin favour ofthe growing revolutionary sentiment.The
Sandinista (FLSN) movementorganizedrelief, began to expand its influenceand assumed the
leadershipofthe revolution.[7]Apopular uprising broughttheFSLN topower in1979. The United
States hadlong been opposed tothesocialistFSLN and after the revolution theCarter
administration moved quickly tosupport theSomocistas withfinancialand material aid. When
Ronald Reagan took office, heaugmented thedirect supportto ananti-Sandinista group, called
Contras,whichincluded factions loyal totheformer dictatorship. WhenCongress prohibited
further funding to theContras,Reagan continuedthefunding through arms sales that werealso
prohibited byCongress.[8]
There havebeen noreportedcases ofNicaraguan armedinterventionagainst theUnited States.
[edit]Arguments
[edit]Nicaragua
Nicaragua charged that
(a) That the UnitedStates, inrecruiting,training, arming, equipping, financing, supplying andotherwise
encouraging,supporting,aiding, anddirecting military andparamilitaryactions inand against
Nicaragua,had violatedits treatyobligations toNicaragua under:
Article 2 (4) ofthe UnitedNations Charter;
Articles 18 and20 ofthe Charter oftheOrganization ofAmericanStates;
Article 8 oftheConvention onRights and Duties ofStates;
Article I, Third, oftheConventionconcerning theDuties andRights ofStates intheEvent ofCivil Strife.
(b) That the United States hadbreached internationallaw by
1. violating the sovereigntyofNicaragua by:
armed attacks against Nicaragua by air,landandsea;
incursions into Nicaraguanterritorialwaters;
aerialtrespass into Nicaraguan airspace;
efforts by directand indirect means tocoerceand intimidate the Government ofNicaragua.
2. using forceand thethreatofforceagainst Nicaragua.
3. intervening intheinternal affairs ofNicaragua.
4. infringing upon thefreedomofthehigh seas andinterrupting peaceful maritime commerce.
5. killing,wounding and kidnapping citizens ofNicaragua.
Nicaragua demanded that allsuch actions ceaseand that theUnited States hadan obligation topay
reparations to the government for damageto their people, property, and economy.
[edit]United States
The U.S. arguedthat its actions were"primarily for the benefitofEl Salvador, and tohelp itto respond
to an alleged armed attack by Nicaragua,that theUnitedStates claims to beexercising a right of
collectiveself-defense, whichit regards as a justificationofits own conducttowards Nicaragua. El
Salvadorjoined theU.S.in their DeclarationofIntervention whichit submittedon 15August 1984,
where it alleged itselfthevictim ofanarmed attack by Nicaragua, andthat ithad askedtheUnited
States toexercisefor its benefittheright ofcollective self-defence."[1]](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-16-320.jpg)
![The CIAclaimedthat the purpose ofthePsychologicalOperations inGuerrilla Warfaremanualwas to
"moderate"theexisting Contra activities.[9]
The United States argued that theCourt did not havejurisdiction, withU.S. ambassador to theUnited
Nations Jeane Kirkpatrickdismissing theCourt as a "semi-legal, semi-juridical, semi-politicalbody,
which nations sometimes acceptandsometimes don't."[9]
It is noteworthy thattheUnited States, thedefaulting party, was theonly Member thatputforward
arguments againstthevalidity ofthejudgmentoftheCourt, arguing that itpassed a decisionthat
it 'had neither thejurisdiction nor thecompetenceto render'. Members thatsided withtheUnited
States inopposing Nicaragua's claims didnot challengetheCourt's jurisdiction, norits findings, nor
the substantivemerits ofthecase.[10]
[edit]Judgment
The very long judgment firstlisted291 points. Among them that theUnited States hadbeen involved in
the "unlawful useofforce."The alleged violations included attacks on Nicaraguan facilities and
naval vessels, themining ofNicaraguanports,theinvasionofNicaraguanair space, andthe
training,arming, equipping, financing and supplying offorces (the"Contras") andseeking to
overthrow Nicaragua's Sandinista government.This was followed by the statements thatthe
judges voted on.[11]
[edit]Findings
The court found evidenceof anarms flow between Nicaragua andinsurgents inEl Salvador between
1979-81.However, therewas not enoughevidence toshow that theNicaraguangovernment was
imputablefor this or that theUS response was proportional. Thecourt alsofound that certain
transborder incursions into the territory ofGuatemala and Costa Rica, in 1982,1983and1984,
were imputable totheGovernmentofNicaragua.However,neitherGuatemala nor Costa Rica had
made any requestfor US intervention; El Salvador didin 1984,well after theUS had intervened
unilaterally.[2]
"As regards El Salvador,theCourt considers that in customary international lawtheprovision ofarms to
the oppositionin another State does not constituteanarmedattack on thatState. As regards
Honduras and Costa Rica,theCourt states that,in the absence ofsufficient informationas to the
transborder incursions into the territory ofthose two States fromNicaragua, it is difficultto decide
whether theyamount, singly orcollectively, toanarmedattack by Nicaragua. TheCourt finds that
neither theseincursions nor the allegedsupply ofarms may berelied onas justifying theexercise
of the right of collectiveself-defence."[12]
Regarding human rights violations by the Contras, "The Court has todeterminewhethertherelationship
of the contras totheUnited States Governmentwas such thatit would beright to equate the
Contras,for legal purposes, with an organoftheUnitedStates Government, or as acting on behalf
of that Government. The Courtconsiders thattheevidenceavailableto itis insufficient to
demonstratethetotal dependenceofthecontras on UnitedStates aid. Apartial dependency, the
exact extent of which theCourt cannot establish, maybe inferredfrom the factthat the leaders
were selected bytheUnitedStates, and fromotherfactors suchas the organisation, training and
equipping of theforce, planning ofoperations, thechoosing oftargets and theoperationalsupport
provided.Thereis no clear evidence that the United States actually exercised sucha degree of
control as tojustify treating thecontras as acting on its behalf...Having reached the above
conclusion, the Courttakes the viewthat the Contras remain responsiblefor their acts, in
particular the allegedviolations by them ofhumanitarianlaw. For theUnited States to belegally
responsible, itwouldhave tobe proved that thatStatehad effectivecontrol oftheoperations in
the courseof whichthealleged violations were committed."[12]
The Court concluded thattheUnited States, despiteits objections, was subject to theCourt's
jurisdiction. The Courthad ruled on 26November by 11votes to one that ithadjurisdiction inthe
case on the basis ofeitherArticle36(i.e. compulsory jurisdiction) or the 1956 Treaty ofFriendship,
Commerceand Navigation between the United States andNicaragua. TheCharter provides that,in
case of doubt, it is for theCourt itselfto decidewhether it has jurisdiction,and thateachmember
of the United Nations undertakes tocomply with thedecision oftheCourt. TheCourt alsoruled by
unanimity that thepresent casewas admissible.[10]TheUnitedStates then announced that ithad
"decided not to participateinfurther proceedings inthis case."Abouta year aftertheCourt's
jurisdictional decision, the UnitedStates took thefurther,radical step ofwithdrawing its consent
to the Court's compulsoryjurisdiction, ending its previous 40year legalcommitmentto binding
internationaladjudication. The Declaration ofacceptanceofthegeneralcompulsory jurisdiction of
the InternationalCourt ofJustice terminated aftera 6-month noticeoftermination delivered by
the Secretary ofStateto the UnitedNations on October 7,1985. [13]
Although the Courtcalled on the UnitedStates to "cease and to refrain"from theunlawfuluse offorce
against Nicaragua and stated that the US was in "inbreach ofits obligation under customary
internationallaw not to useforceagainstanotherstate"and ordered itto pay reparations, the
United States refused tocomply. [3]As a permanent member oftheSecurityCouncil, theU.S. has
been able toblock any enforcement mechanism attemptedby Nicaragua.[14]On November 3,
1986 the UnitedNations General Assembly passed, bya vote of94-3 (El Salvador, IsraelandtheUS
voted against), a non-binding resolutionurging theUS to comply.[4]
[edit]The ruling
On June 27, 1986, the Courtmadethefollowing ruling:
The Court
Decides thatin adjudicating thedisputebroughtbeforeit by the Applicationfiled bytheRepublicof
Nicaragua on9 April 1984, theCourt is required toapplythe"multilateraltreaty
reservation"containedin proviso (c) to thedeclarationofacceptanceofjurisdictionmadeunder
Article 36, paragraph2, ofthe StatuteoftheCourt by theGovernment oftheUnited States of
America depositedon 26August 1946;
Rejects thejustificationofcollectiveself-defencemaintained by the UnitedStates ofAmerica in
connectionwiththemilitary andparamilitaryactivities in andagainst Nicaragua the subject ofthis
case;
Decides thattheUnited States ofAmerica, by training, arming, equipping,financing andsupplying the
contra forces or otherwise encouraging,supporting and aiding military andparamilitary activities
in and againstNicaragua, has acted,against the RepublicofNicaragua,in breachofits obligation
under customary international lawnotto intervenein theaffairs ofanotherState;
Decides thattheUnited States ofAmerica, by certain attacks on Nicaraguanterritory in 1983-1984,
namely attacks on Puerto Sandino on 13 September and 14October 1983, an attack onCorintoon
10 October 1983; an attack onPotosi Naval Baseon 4/5January 1984, anattack on San Juan del
Sur on 7 March 1984; attacks on patrol boats atPuerto Sandinoon 28and 30March 1984; andan
attack onSanJuan delNorteon 9April1984; and further by those acts ofintervention referred to
in subparagraph(3) hereofwhichinvolve the useofforce, has acted,against the Republic of
Nicaragua,in breach ofits obligation under customary international lawnot touse force against
another State;
Decides thattheUnited States ofAmerica, by directing orauthorizing over Rights ofNicaraguan
territory,and by the acts imputableto the UnitedStates referred toin subparagraph(4) hereof,
has acted, against theRepublicofNicaragua, in breach ofits obligation under customary
internationallaw not to violatethesovereignty ofanotherState;
Decides that, by laying mines in theinternal orterritorial waters ofthe RepublicofNicaragua during the
first months of1984, the UnitedStates ofAmerica has acted,against theRepublic ofNicaragua, in
breach ofits obligations under customary international lawnot touse force againstanother State,
not to intervene in its affairs, not to violateits sovereignty and not tointerrupt peaceful maritime
commerce;
Decides that, by the acts referred toin subparagraph(6) hereofthe United States ofAmerica has acted,
against theRepublic ofNicaragua, in breachofits obligations under ArticleXIXofthe Treaty of
Friendship, Commerce andNavigation betweentheUnited States ofAmerica andtheRepublic of
Nicaragua signedatManagua on 21January 1956;
Decides thattheUnited States ofAmerica, by failing tomake knowntheexistence andlocation ofthe
mines laid by it, referredto insubparagraph (6) hereof, has acted inbreach ofits obligations under
customary internationallaw inthis respect;
Finds that theUnited States ofAmerica, by producing in1983 a manual entitled'Operaciones sicológicas
en guerra deguerrillas', anddisseminating itto contra forces, has encouragedthecommissionby
them ofacts contrary to general principles ofhumanitarianlaw; but does notfind a basis for](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-17-320.jpg)
![concluding thatany such acts which mayhave been committed are imputableto the United States
of America as acts ofthe United States ofAmerica;
Decides thattheUnited States ofAmerica, by theattacks on Nicaraguanterritoryreferred toin
subparagraph (4) hereof, and by declaring a generalembargo ontradewith Nicaragua on1 May
1985, has committed acts calculatedto depriveofits object andpurposetheTreatyofFriendship,
Commerceand Navigation between the Parties signed at Managua on21 January1956;
Decides thattheUnited States ofAmerica, by theattacks on Nicaraguanterritoryreferred toin
subparagraph (4) hereof, and by declaring a generalembargo ontradewith Nicaragua on1 May
1985, has actedin breach ofits obligations under Article XIX oftheTreaty ofFriendship,
Commerceand Navigation between the Parties signed at Managua on21 January1956;
Decides thattheUnited States ofAmerica is under a dutyimmediately to ceaseand to refrainfrom all
such acts as may constitute breaches ofthe foregoing legalobligations;
Decides thattheUnited States ofAmerica is under an obligation tomake reparation to theRepublicof
Nicaragua for allinjury caused to Nicaragua by thebreaches ofobligations under customary
internationallaw enumerated above;
Decides thattheUnited States ofAmerica is under an obligation tomake reparation to theRepublicof
Nicaragua for allinjury caused to Nicaragua by thebreaches oftheTreatyofFriendship,
Commerceand Navigation between the Parties signed at Managua on21 January1956;
Decides thattheform andamount ofsuchreparation,failing agreement between the Parties, willbe
settled by the Court, and reserves for this purposethesubsequent procedurein the case;
Recalls tobothParties their obligation toseek a solutionto their disputes by peacefulmeans in
accordance withinternational law.[12]
[edit]Legal clarificationand importance
The ruling didin manyways clarify issues surrounding prohibition ofthe useofforceand theright of
self-defence.[15]Arming and training theContra was foundto bein breach withprinciples ofnon-
intervention andprohibitionofuseofforce, as was laying mines in Nicaraguanterritorialwaters.
Nicaragua's dealings with the armedoppositionin El Salvador,althoughit mightbe considered a breach
with the principleofnon-intervention and theprohibitionofuseofforce, did not constitute"an
armed attack", which is the wording in article 51 justifying the rightofself-defence.
The Court considered also the United States claimto beacting incollective self-defenceof El Salvador
and found theconditions for this notreached as El Salvador never requestedtheassistanceofthe
United States on thegrounds ofself-defence.
In regards to laying mines, "...thelaying ofmines inthewaters ofanother Statewithout any warning or
notification is notonly anunlawfulact butalso a breach oftheprinciples ofhumanitarianlaw
underlying theHagueConvention No. VIII of1907."
Summary of theSummary oftheJudgmentof15 June1962
CASECONCERNING THETEMPLEOF PREAH VIHEAR
(MERITS)
Judgment of 15June 1962
Proceedings inthecase concerning theTempleofPreah Vihear, between Cambodia and Thailand, were
instituted on 6October1959by anApplication oftheGovernmentofCambodia; theGovernment
of Thailandhaving raisedtwopreliminary objections, the Court, by its Judgment of26May 1961,
found that ithadjurisdiction.
In its Judgment on the merits the Court, by ninevotes to three,foundthat the TempleofPreahVihear
was situated interritory underthesovereignty ofCambodia and, inconsequence, that Thailand
was under anobligationto withdraw any military or policeforces, or other guards orkeepers,
stationed by her at theTemple,or in its vicinityon Cambodian territory.
By seven votes to five, the Courtfoundthat Thailandwas under an obligation torestoreto Cambodia
any sculptures,stelae,fragments ofmonuments, sandstonemodeland ancientpottery which
might, sincethedateoftheoccupation oftheTempleby Thailandin 1954, havebeenremoved
from the Templeor the Templearea by the Thai authorities.
Judge Tanaka and JudgeMorelliappendedto the Judgment a JointDeclaration. Vice-President Alfaro
and Judge Sir Gerald FitzmauriceappendedSeparate Opinions;Judges MorenoQuintana,
Wellington Koo and Sir Percy Spender appended Dissenting Opinions.
*
* *
In its Judgment, the Courtfoundthat thesubjectofthedisputewas sovereigntyovertheregionofthe
Temple ofPreahVihear. This ancientsanctuary,partially in ruins,stoodon a promontoryofthe
Dangrek rangeofmountains which constituted the boundary betweenCambodia andThailand.
The disputehad its fons et origoin theboundary settlements madeintheperiod 1904-1908
betweenFrance, then conducting the foreign relations ofIndo-China, and Siam. Theapplication of
the Treaty of13February1904was,in particular, involved. That Treaty establishedthegeneral
character ofthefrontier theexact boundary ofwhichwas to bedelimitedby a Franco-Siamese
Mixed Commission
In the easternsector oftheDangrek range,in which Preah Vihearwas situated,thefrontier was to
follow the watershedline.For thepurposeofdelimiting thatfrontier, itwas agreed, at a meeting
held on 2 December 1906,that the MixedCommissionshould travelalong theDangrek range
carrying outall the necessary reconnaissance, andthat a survey officer ofthe French section ofthe
Commission shouldsurvey thewholeoftheeastern part oftherange. It hadnot been contested
that the Presidents oftheFrench and Siamesesections duly made this journey, in thecourseof
which they visitedtheTempleofPreah Vihear.In January-February 1907, the Presidentofthe
French sectionhad reported to his Governmentthat the frontier-linehadbeendefinitely
established. It therefore seemedclear that a frontierhad beensurveyed and fixed, although there
was no recordofany decision and noreference totheDangrek region inanyminutes ofthe
meetings oftheCommissionafter 2 December 1906. Moreover, atthetimewhen the Commission
might havemetfor thepurposeofwinding up its work,attentionwas directedtowards the
conclusionofa further Franco-Siameseboundary treaty,theTreaty of23March 1907.
The final stageofthedelimitationwas the preparationofmaps.The SiameseGovernment, whichdid
not disposeofadequatetechnical means,hadrequested thatFrenchofficers shouldmap the
frontier region. Thesemaps werecompletedin the autumn of1907by a team ofFrenchofficers,
some ofwhom hadbeen members ofthe Mixed Commission, and theywere communicatedto the
Siamese Government in1908.Amongstthem was a mapoftheDangrek rangeshowing Preah
Vihear on the Cambodian side.It was on thatmap (filed as Annex I to its Memorial) that Cambodia
had principally relied insupport ofher claimto sovereignty over the Temple. Thailand,on the
other hand, had contended that themap,notbeing the work oftheMixed Commission, hadno
binding character; thatthefrontier indicatedon itwas not thetruewatershed lineand thatthe
true watershed linewouldplace the Templein Thailand, thatthemap had never been accepted by
Thailandor, alternatively, thatifThailand had accepted it she haddoneso only becauseofa
mistaken beliefthat the frontierindicated corresponded withthewatershed line.
The Annex I map was never formallyapprovedby theMixed Commission, which hadceased to function
some months beforeits production. While there could beno reasonabledoubt that it was based
on the work ofthe surveying officers in the Dangrek sector,theCourt nevertheless concluded that,
in its inception,it had nobinding character.It was clear fromtherecord, however, thatthemaps
were communicatedto theSiameseGovernmentas purporting to representtheoutcomeofthe
work ofdelimitation; since there was no reaction onthepart oftheSiameseauthorities,either
then or for manyyears, they must beheldto haveacquiesced. Themaps weremoreover
communicated to theSiamese members oftheMixed Commission, whosaid nothing. tothe
Siamese Minister ofthe Interior, PrinceDamrong,who thanked the French Minister in Bangkok for
them, andto theSiameseprovincial governors, some ofwhom knew ofPreah Vihear. Ifthe
Siamese authorities acceptedtheAnnex I map withoutinvestigation, they could notnow plead any
error vitiating therealityoftheir consent.
The SiameseGovernment andlater the Thai Government had raisedno queryabouttheAnnex I map
prior to its negotiations with Cambodia inBangkokin 1958. Butin 1934-1935 a survey had
establisheda divergencebetween the mapline andthetrue lineofthewatershed,and othermaps
had been produced showing theTempleas being inThailand: Thailandhadnevertheless continued
also to useandindeed topublish maps showing Preah Vihear as lying in Cambodia. Moreover, in](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-18-320.jpg)
![In the course of public hearings heldon May16thand17th,1951, theCourtheardstatements byM.
José Gabrielde la Vega,Agent, on behalfofthe Government ofColombia,and by M. G. Gidel,
Counsel, on behalfofthe governmentofPeru; furthermore, in accordance withArticle66,
paragraph 5, of theRules ofCourt, itheard a statement ontheinterpretation oftheHavana
Convention, presentedon behalfof the Government ofCuba by Mme. Flora Díaz Parrado,Agent.
At the end of the written proceedings, theParties presented the following Submissions:
On behalf of the Government ofColombia (Submissions in theMemorial):
"May it pleasetheCourt,
To state inwhat manner theJudgment ofNovember 20th, 1950,shall beexecutedby Colombia and
Peru, and furthermore, toadjudgeanddeclare that Colombia is not bound, inexecutionofthesaid
Judgment of November 20th,1950, to deliver M. VíctorRaúl Haya dela Torreto the Peruvian
authorities.
In the eventof theCourt notdelivering judgment ontheforegoing Submission,mayit pleasetheCourt
to adjudgeanddeclare,in the exerciseofits ordinarycompetence,that Colombia is notbound to
deliver the politicallyaccused M. VíctorRaúl Haya dela Torreto the Peruvianauthorities."
On behalf of the Government ofPeru (Submissions intheCounter-Memorial):
"May it pleasetheCourt,
I. To statein whatmanner theJudgment ofNovember 20th, 1950, shallbeexecuted by Colombia;
II. To dismiss theSubmissions ofColombia by whichtheCourt is asked to statesolely ["sans plus"]
that Colombia is not bound to deliver Víctor Raúl Haya dela Torreto thePeruvian authorities;
III. In the event oftheCourt not delivering judgmenton SubmissionNo. I, toadjudge anddeclare
that the asylum grantedto SeñorVíctor RaúlHaya de la Torre onJanuary 3rd, 1949, and
maintainedsincethatdate, having been judgedto becontrary to Article2, paragraph 2,ofthe
Havana Convention of1928, ought tohaveceased immediatelyafter the delivery oftheJudgment
of November 20th,1950, and must inanycasecease forthwithin order thatPeruvian justicemay
resume its normal coursewhichhas been suspended."
In the course of his oral statement on May 16th,1951, theAgent oftheGovernmentofColombia re-
statedtheSubmissions oftheMemorial with thefollowing additionrelating to the Submissions of
the Counter-Memorial ofPeru:
"To statein what mannertheJudgmentofNovember 20th, 1950, shall beexecutedby Colombia,when
stating, in accordance withthefirst pointofour principal claim, 'in what mannertheJudgmentof
November 20th, 1950, shall beexecutedby Colombia andPeru';
On SubmissionII of thesame Counter-Memorial: To rejectit; And, should occasion arise,to reject
SubmissionIII ofthe said Counter-Memorial."
On the other hand, Counsel for the Government ofPeru requestedtheCourt to decide inits favour
upon the Submissions set out inits Counter-Memorial.
Finally,theAgentof the Government ofCuba presentedherGovernment's interpretation oftheHavana
Convention sofar as concerns the surrender oftherefugeeto the Peruvianauthorities.
***
The GovernmentofCuba, availing itself oftheright which Article 63 oftheStatuteoftheCourt confers
on States parties toa convention, filed a Declaration ofIntervention withtheRegistry onMarch
13th, 1951,andattached thereto a Memorandum inwhichit stated its views in regardto the
interpretationoftheHavana Convention of1928ratified by itand also its generalattitudetowards
asylum.The Court considered thatthis Memorandum was regarded by theGovernment ofCubaas
constituting the written observations providedfor in paragraph 4 ofArticle 66 oftheRules of
Court.
The GovernmentofPerucontendedthat the intervention oftheGovernmentofCuba was inadmissible,
owing to the DeclarationofIntervention being out oftime, and tothefact thattheDeclaration and
the Memorandum accompanying it didnotconstitute an intervention inthetruemeaning ofthe
term, but anattempt by a third Stateto appeal againsttheJudgmentdelivered by theCourton
November 20th, 1950.
In regard to thatquestion, theCourt observes thatevery intervention is incidental totheproceedings in
a case;it follows that a declaration filedas aninterventiononly acquires thatcharacter, in law,ifit
actually relates tothesubject-matter ofthepending proceedings. Thesubject-matterofthe
presentcasediffers from that ofthecase which was terminatedby theJudgmentofNovember
20th, 1950: it concerns a question-the surrender ofHaya dela TorretothePeruvian authorities -
which in theprevious casewas completelyoutsidetheSubmissions ofthe Parties, and which was
in consequence inno way decided bytheabove-mentioned Judgment.
In these circumstances, theonlypoint which itis necessary to ascertainis whethertheobject ofthe
intervention oftheGovernmentofCuba is infacttheinterpretation oftheHavana Conventionin
regard to thequestionwhether Colombia is underanobligationto surrendertherefugeeto the
Peruvianauthorities.
On that point, the Courtobserves that the Memorandum attached totheDeclaration ofInterventionof
the Government ofCuba is devoted almost entirely to a discussionofthequestions whichthe
Judgment ofNovember 20th,1950, had already decided with the authority ofres judicata, and
that, to thatextent, it dos not satisfy theconditions ofa genuine intervention.However, at the
public hearing on May 15th, 1951,theAgentofthe Government ofCuba statedthat the
intervention was basedon the fact that theCourtwas required tointerpreta new aspect ofthe
Havana Convention,an aspectwhichtheCourt had not beencalled on toconsider inits Judgment
ofNovember 20th,1950.
Reduced inthis way, and operating within theselimits, theintervention oftheGovernmentofCuba
conformed totheconditions ofArticle63oftheStatute, and the Court, having deliberatedon the
matter,decidedon May16th toadmittheintervention in pursuanceofparagraph 2ofArticle66
ofthe Rules ofCourt.
***
In its Judgment ofNovember20th, 1950,theCourt defined'the legalrelations between Colombia and
Peru with regard tomatters.referred toit by themrelating todiplomatic asylum ingeneraland
particularly to the asylum grantedto Víctor RaúlHaya dela Torreby the Ambassador ofColombia
in Lima on January3rd-4th, 1949. On theday ofthedelivery ofthis Judgment theGovernment of
Colombia submitted to theCourta Requestfor Interpretation, whichby theJudgment of
November 27th, 1950, was declared to beinadmissible.
On the following day, the Ministerfor Foreign Affairs and PublicWorshipofPeru, relying onthe
Judgment ofNovember 20th,addresseda noteto theChargé d'Affaires ofColombia atLima,
stating in particular:](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-22-320.jpg)
!["The moment has come tocarry out the Judgment delivered by the InternationalCourt ofJustice by
terminating theprotection which thatEmbassyis improperly granting to Víctor Raúl Haya dela
Torre. It is no longer possible further to. prolong anasylumwhich is being maintained inopen
contradiction to the Judgment which has beendelivered. The Colombian Embassy cannotcontinue
to protect therefugee, thus barring theactionofthenationalcourts.
You must takethenecessary steps, Sir, with a view to terminating this protection, which is being
improperly granted, by delivering the refugee Víctor RaúlHaya dela Torre, so that hemay be
placed at the disposaloftheexamining magistrate who summonedhimto appear for judgment, in
accordance withwhat I haverecited above."
In a Note datedDecember 6th,1950, addressed to theMinisterfor ForeignAffairs and PublicWorship
of Peru, the Minister for Foreign Affairs ofColombia refused tocomply with this request; herelied
in particularon thefollowing considerations:
"Consequently,theCourt formally rejected thecomplaintmadeagainst the Government ofColombia in
the counter-claimoftheGovernment ofPeru, namely, thatit had granted asylum to persons
accused of or condemned for common crimes. Should Colombia proceedto thedelivery ofthe
refugee, as requested byYour Excellency, [it]wouldnotonly disregardtheJudgmentto whichwe
are now referring, but wouldalso violate Article1, paragraph 2,oftheHavana Convention which
provides that:'Persons accused ofor condemned for common crimes taking refugein a legation
shall besurrenderedupon request ofthelocal government.'"
These arethecircumstances giving riseto the presentcasewhich has been brought beforetheCourt by
the Government ofColombia byApplication ofDecember 13th, 1950.
The Parties have inthepresent caseconsented to the jurisdictionoftheCourt. Allthequestions
submittedto ithave been argued by themon the merits,andno objection has been made toa
decision onthemerits. This conductofthe Parties is sufficient toconfer jurisdictionon theCourt.
***
In the first partof its principalSubmission theGovernment ofColombia requests theCourt
"to state in whatmanner the Judgment ofNovember20th,1950, shallbe executed by Colombia and
Peru....".
On the other hand, the Government ofPeru inits first Submission requests theCourt
"to state in whatmanner the Judgment ofNovember20th,1950, shallbe executed by Colombia".
These Submissions areboth designedto obtaina decision fromtheCourt as tothemannerin whichthe
asylum shouldbe terminated.The portion ofthe Judgment ofNovember20th, 1950, to which they
refer is thepassagewhere, inpronouncing onthequestion oftheregularity oftheasylum, it
declares thatthegrant ofasylumwas not made inconformitywith Article 2, paragraph2 ("First"),
of the Havana Convention on Asylum of1928. TheCourt observes thattheJudgmentconfined
itself, inthis connection, to defining thelegalrelations which the Havana Convention had
establishedbetweentheParties. It did not giveany directions to theParties, and entails for them
only the obligationofcompliance therewith. Theinterrogativeformin whichthey haveformulated
their Submissions shows thatthey desirethattheCourt shouldmake a choiceamongst thevarious
courses by whichtheasylummay beterminated.But thesecourses areconditioned byfacts and
by possibilities which,to a verylargeextent, theParties arealone ina positionto appreciate.A
choice amongstthem could not bebasedon legal considerations, but only onconsiderations of
practicability or ofpolitical expediency; it is not partoftheCourt's judicial functionto makesuch a
choice.
In the secondpart ofits principal Submission, theGovernment ofColombia requests the Court
"to adjudge anddeclarethatColombia is not bound, in execution ofthe said Judgment ofNovember
20th, 1950,to deliver M. Víctor RaúlHaya dela Torreto thePeruvian authorities".
This part oftheprincipalSubmission ofColombia is strictly limited by the words "inexecution ofthe said
Judgment ofNovember 20th,1950". Thesewords serveto confine the requestthus formulated,as
in the first part ofthesame Submission, to theexecutionofthe Judgment ofNovember20th,
1950.
As was statedbothin that Judgmentand intheJudgmentofNovember 27th, 1950, theGovernment of
Peru had notdemandedthesurrenderofthe refugee. This questionwas not submitted tothe
Court and consequently was notdecided by it. It is not therefore possible todeduce fromthe
Judgment ofNovember 20th any conclusionas totheexistence ornon-existence ofanobligation
to surrendertherefugee. In thesecircumstances, the Courtis not ina positionto state, merely on
the basis ofthe Judgment ofNovember 20th,whetherColombia is or is not boundto surrender
the refugeeto thePeruvian authorities.
For these reasons,theCourt cannotgiveeffectto the above-mentionedSubmissions.
The alternative Submission oftheGovernment ofColombia is as follows:
"In the event ofthe Courtnot delivering judgment on theforegoing Submission, may it pleasetheCourt
to adjudgeanddeclare,in the exerciseofits ordinarycompetence,that Colombia is notbound to
deliver the politicallyaccused M. VíctorRaúl Haya dela Torreto the Peruvianauthorities."
In its secondSubmission the Government ofPeru requests theCourt
"to dismiss theSubmissions ofColombia by which theCourtis asked to state solely ("sans plus") that
Colombia is notbound todeliver Víctor RaúlHaya de la Torre tothePeruvian authorities".
The GovernmentofPerustates in this Submission that the Court is asked by theSubmissions of
Colombia "to states solely that Colombia is not bound…". By using this word "solely"("sans plus")
the Government ofPeru wishes to convey thatthelegalposition which the Judgment ofNovember
20th created for it mustin any casebe preserved;it refers thus to the statement setforth in its
third Submission, whichwill beexamined later.
As mentionedabove, thequestionofthesurrender ofthe refugee was notdecidedby theJudgment of
November 20th. This questionis new; itwas raised byPeru inits NotetoColombia ofNovember
28th, 1950,andwas submittedto the Courtby theApplication ofColombia ofDecember 13th,
1950. Thereis consequently nores judicata upon the question ofsurrender.
According to the Havana Convention, diplomatic asylum is a provisional measure for the temporary
protection ofpolitical offenders. Even ifregularly granted itcannot beprolongedindefinitely,but
must be terminatedas soon as possible. Itcan, according to Article 2, paragraph 2, onlybe granted
"for the period oftimestrictly indispensable for the person whohas sought asylum toensure in
some other way his safety".
The Court finds that theConvention does notgivea completeanswer to thequestion ofthemannerin
which an asylumshallbe terminated.](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-23-320.jpg)
![petitioners alleged thatprivaterespondent has property accountability and an outstanding
obligation toSEAFDEC-AQD in the amountofP27,532.11.Furthermore, privaterespondent is not
entitled toaccruedsick leavebenefits amounting to P44,000.00dueto his failure toavail ofthe
same during his employment with the SEAFDEC-AQD (Annex "D", Id.).
On January12,1988, thelabor arbiter rendereda decision, the dispositiveportion ofwhichreads:
WHEREFORE, premises considered, judgment is hereby renderedordering respondents:
1. To pay complainantP126,458.89, plus legal interest thereon computed fromMay 16, 1986 until
full payment thereofis made,as separation pay andother post-employment benefits;
2. To pay complainantactualdamages in theamountofP50,000, plus 10% attorney's fees.
All other claims are hereby dismissed.
SO ORDERED. (Rollo, p. 51, Annex "E")
On July 26, 1988, said decision was affirmed by the Fifth Divisionofthe NLRC exceptas to theaward of
P50,000.00 as actualdamages andattorney's fees for being baseless. (Annex "A", p. 28,id.)
On September 3,1988, petitioners fileda Motionfor Reconsideration(Annex"G", id.) whichwas denied
on January 9, 1989.Thereafter,petitioners instituted this petitionfor certiorarialleging thatthe
NLRC has no jurisdiction tohearand deciderespondent Lazaga's complaint sinceSEAFDEC-AQD is
immune from suit owing toits internationalcharacter and the complaintis in effect a suitagainst
the Statewhich cannot bemaintainedwithout its consent.
The petition is impressed with merit.
Petitioner Southeast Asian Fisheries Development Center-Aquaculture Department(SEAFDEC-AQD) is an
internationalagency beyond thejurisdiction ofpublic respondentNLRC.
It was establishedby theGovernments ofBurma, KingdomofCambodia, RepublicofIndonesia, Japan,
Kingdom of Laos, Malaysia. Republicofthe Philippines, Republic ofSingapore,KingdomofThailand
and RepublicofVietnam(Annex"H", Petition).
The Republic of thePhilippines becamea signatory totheAgreement establishing SEAFDEC on January
16,1968. Its purpose is as follows:
The purposeof theCenter is to contribute tothepromotion ofthefisheries developmentin Southeast
Asia by mutualco-operation among the member governments oftheCenter,hereinafter called
the "Members", and through collaboration withinternationalorganizations andgovernments
external totheCenter. (Agreement Establishing theSEAFDEC, Art. 1;Annex "H"Petition) (p.310,
Rollo)
SEAFDEC-AQD was organizedduring the SixthCouncil Meeting ofSEAFDEC on July 3-7,1973in Kuala
Lumpur, Malaysia as one oftheprincipal departments ofSEAFDEC (Annex "I", id.) to beestablished
in Iloilo for the promotionof research in aquaculture.Paragraph1, Article6 oftheAgreement
establishing SEAFDEC mandates:
1. The Councilshall bethesupreme organ oftheCenter and allpowers ofthe Centershall bevested
in the Council.
Being an intergovernmentalorganization,SEAFDEC including its Departments (AQD), enjoys functional
independenceand freedomfrom controlofthe state inwhoseterritory its officeis located.
As Senator Jovito R.Salonga andFormer ChiefJustice Pedro L. Yap stated intheirbook, Public
InternationalLaw (p. 83, 1956ed.):
Permanentinternational commissions and administrative bodies havebeencreated by the agreement
ofa considerablenumber ofStates for a variety ofinternationalpurposes, economic orsocialand
mainly non-political.Among the notableinstances arethe International Labor Organization,the
InternationalInstituteofAgriculture, theInternational DanubeCommission. In so faras they are
autonomous and beyond the controlofany oneState, they havea distinct juridical personality
independent ofthe municipal law oftheStatewherethey aresituated. As such, according to one
leading authority "they mustbe deemed topossess a species ofinternationalpersonality oftheir
own."(Salonga and Yap, Public InternationalLaw, 83[1956ed.])
Pursuant to its being a signatory totheAgreement, the Republicofthe Philippines agreed tobe
representedby oneDirector inthegoverning SEAFDEC Council(Agreement Establishing SEAFDEC,
Art. 5, Par. 1, Annex"H", ibid.) and that its national laws andregulations shallapplyonlyinsofar as
its contribution toSEAFDEC of"an agreedamount ofmoney,movableand immovable property
and services necessaryfor theestablishmentand operation oftheCenter"are concerned (Art. 11,
ibid.). It expressly waivedtheapplication ofthePhilippinelaws on the disbursement offunds of
petitionerSEAFDEC-AQD (Section2, P.D.No. 292).
The then MinisterofJusticelikewiseopined thatPhilippine Courts have nojurisdiction over SEAFDEC-
AQD in Opinion No. 139, Series of1984 —
4. One ofthe basicimmunities ofan international organizationis immunity from localjurisdiction,
i.e., thatit is immunefrom thelegalwrits and processes issued by thetribunals ofthecountry
where it is found. (SeeJenks,Id., pp. 37-44) The obvious reasonfor this is that the subjection of
such an organization totheauthority ofthe localcourts wouldafforda convenient mediumthru
which the hostgovernment may interferein there operations or even influence orcontrol its
policies anddecisions oftheorganization; besides, suchsubjection tolocal jurisdiction would
impair the capacity ofsuchbody todischargeits responsibilities impartially on behalfofits
member-states. In thecaseatbar, for instance, theentertainment by theNational Labor Relations
Commission ofMr. Madamba's reinstatementcases would amount to interference by the
PhilippineGovernmentin the management decisions oftheSEARCAgoverning board; even worse,
it could compromise the desiredimpartialityofthe organizationsince itwill have tosuit its
actuations to therequirements ofPhilippinelaw,whichmay not necessarily coincidewith the
interests oftheothermember-states. Itis precisely to forestall thesepossibilities thatin cases
where the extent oftheimmunity is specifiedin the enabling instruments ofinternational
organizations, jurisdictionalimmunity from the hostcountry is invariably among the firstaccorded.
(See Jenks,Id.;SeealsoBowett, TheLaw ofInternationalInstitutions,pp. 284-1285).
RespondentLazaga's invocation ofestoppelwith respect totheissueofjurisdictionis unavailing
because estoppel does not apply to confer jurisdiction toa tribunal that has none over a causeof
action. Jurisdictionis conferredby law.Wherethereis none,no agreement oftheparties can
provide one. Settled is therulethat the decision ofa tribunalnotvestedwithappropriate
jurisdictionis null and void.Thus, inCalimlimvs. Ramirez, this Court held:
A rule, that hadbeen settled by unquestionedacceptanceand upheldin decisions sonumerous tocite is
that the jurisdiction ofa court over the subjectmatter ofthe action is a matter oflaw andmaynot
be conferred by consent oragreementofthe parties. Thelackofjurisdiction of a court may be
raisedatanystageoftheproceedings,even onappeal. This doctrinehas been qualifiedby recent
pronouncements which it stemmed principally fromtheruling in the cited caseofSibonghanoy. It
is to be regretted, however, thattheholding insaid case hadbeen appliedto situations which
were obviously not contemplated therein. Theexceptional circumstances involvedin Sibonghanoy
which justifiedthedeparturefrom the acceptedconcept ofnon-waivability ofobjection to](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-26-320.jpg)
![jurisdictionhas been ignored and, insteada blanket doctrine hadbeen repeatedly upheldthat
renderedthesupposedruling in Sibonghanoynot as theexception, butrather thegeneralrule,
virtually overthrowing altogether the time-honoredprinciple that the issueofjurisdiction is not
lost by waiver or by estoppel. (Calimlim vs. Ramirez, G.R.No. L-34362, 118 SCRA399; [1982])
RespondentNLRC'S citation oftheruling ofthis Court inLacanilao v. DeLeon (147 SCRA286[1987]) to
justify its assumption ofjurisdiction over SEAFDEC is misplaced. On the contrary, theCourtin said
case explained why it took cognizanceofthecase.Said the Court:
We would note,finally, that the presentpetition relates to a controversy between twoclaimants to the
same position; this is not a controversybetweentheSEAFDEC on the one hand, andan officer or
employee, ora personclaiming to bean officer oremployee,ofthe SEAFDEC,on theother hand.
There is beforeus noquestion involving immunity fromthejurisdiction oftheCourt, there being
no plea for suchimmunitywhether byor on behalfofSEAFDEC, or by anofficial ofSEAFDEC with
the consentof SEAFDEC (Id., at300; emphasis supplied).
WHEREFORE, finding SEAFDEC-AQD to be an internationalagency beyondthejurisdiction ofthecourts
or local agency ofthePhilippinegovernment, thequestioned decision and resolutionoftheNLRC
dated July 26, 1988 and January9, 1989, respectively, arehereby REVERSED and SETASIDEfor
having been renderedwithout jurisdiction.No costs.
SO ORDERED.
Melencio-Herrera, Paras, Padilla andRegalado, JJ., concur.
Republicof the Philippines
SUPREMECOURT
Manila
EN BANC
G.R. No. 101538 June 23, 1992
AUGUSTO BENEDICTO SANTOS III, represented by his fatherand legal guardian, AugustoBenedicto
Santos, petitioner,
vs.
NORTHWEST ORIENT AIRLINES and COURT OF APPEALS, respondents.
CRUZ, J.:
This caseinvolves the Properinterpretation ofArticle28(1) oftheWarsaw Convention, reading as
follows:
Art. 28. (1) An action for damagemustbe brought attheoption oftheplaintiff, inthe
territory of one oftheHigh Contracting Parties, eitherbefore thecourt ofthedomicileofthe
carrier orof his principalplace ofbusiness, or where hehas a placeofbusiness throughwhich the
contracthas been made,or beforethecourt at the placeofdestination.
The petitioner is a minor anda residentofthePhilippines. Private respondentNorthwest Orient Airlines
(NOA) is a foreign corporationwith principal office in Minnesota, U.S.A. and licensed todo
business and maintain a branch office in thePhilippines.
On October 21,1986, thepetitioner purchasedfrom NOAa round-tripticket inSanFrancisco. U.S.A., for
his flight from San Francisco toManila via Tokyo and back. Thescheduled departuredatefrom
Tokyo was December 20, 1986.No datewas specified for his returnto San Francisco. 1
On December 19, 1986, thepetitioner checkedin at the NOAcounter in theSan Francisco airportfor his
scheduleddepartureto Manila. Despitea previous confirmation and re-confirmation, hewas
informed thathe hadno reservation for his flightfrom Tokyoto Manila. Hethereforehad to be
wait-listed.
On March 12, 1987, the petitionersuedNOAfor damages in the RegionalTrial CourtofMakati. On April
13, 1987,NOAmoved to dismiss the complainton theground oflack ofjurisdiction. Citing the
above-quoted article,it contended thatthecomplaint couldbeinstituted only intheterritory of
one ofthe High Contracting Parties, before:
1. the court ofthedomicileof the carrier;
2. the court ofits principal placeofbusiness;
3. the court whereithas a place ofbusiness through which the contracthadbeenmade;
4. the court oftheplace ofdestination.
The privaterespondent contended thatthePhilippines was notits domicilenor was this its principal
place ofbusiness.Neither was thepetitioner's ticket issued in this country nor was his destination
Manila but San Francisco in theUnitedStates.
On February 1,1988, thelower court granted themotion anddismissedthecase.2 The petitioner
appealedto the CourtofAppeals, whichaffirmed thedecision ofthelowercourt.3 On June 26,
1991, thepetitioner fileda motion for reconsideration,butthesamewas denied. 4 Thepetitioner
then cameto this Court, raising substantially thesame issues itsubmittedin the CourtofAppeals.
The assignmentoferrors may begroupedinto two major issues, viz:
(1) the constitutionality ofArticle 28(1) ofthe Warsaw Convention; and
(2) the jurisdictionofPhilippine courts over thecase.
The petitioner also invokes Article24 oftheCivilCode ontheprotectionofminors.
I
THEISSUEOF CONSTITUTIONALITY
A. The petitioner claims that the lower courterredin not ruling that Article28(1) oftheWarsaw
Convention violates the constitutionalguarantees ofdueprocess and equalprotection.
The Republic ofthePhilippines is a party totheConventionfor theUnificationofCertainRules Relating
to InternationalTransportationby Air,otherwiseknown as the WarsawConvention.It took effect
on February13,1933. The Convention was concurred inby theSenate, throughits ResolutionNo.
19, on May 16, 1950.The Philippineinstrument ofaccession was signed by PresidentElpidio
Quirino on October 13, 1950, andwas depositedwiththePolishgovernment onNovember 9,
1950. The Conventionbecameapplicable tothePhilippines onFebruary 9, 1951. On September
23, 1955,President Ramon Magsaysay issued Proclamation No.201, declaring ourformal](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-27-320.jpg)
![A. The petitioner claims that the lower courterredin not ruling that Article28(1) of theWarsaw
Convention is a rulemerely ofvenueand was waivedby defendant whenit did not move to
dismiss ontheground ofimproper venue.
By its own terms, the Conventionapplies to allinternational transportationofpersons performedby
aircraftfor hire.
Internationaltransportation is defined in paragraph (2) ofArticle1 as follows:
(2) For the purposes ofthis convention, the expression "international transportation"shall meanany
transportation in which,according to the contractmadeby theparties, theplaceofdeparture and
the placeof destination,whether ornot therebe a break in the transportationor a transshipment,
are situated [either]within the territories oftwo HighContracting Parties . . .
Whether the transportation is "international"is determined by thecontractoftheparties,which in the
case of passengers is theticket.When the contractofcarriageprovides for the transportationof
the passenger between certaindesignated terminals "within theterritories oftwoHigh
Contracting Parties,"the provisions oftheConvention automatically apply and exclusively govern
the rights andliabilities oftheairline and its passenger.
Since the flightinvolved in thecaseat baris international, the samebeing fromtheUnited States tothe
Philippines and backto theUnited States, it is subject totheprovisions oftheWarsaw Convention,
including Article28(1), which enumerates thefour places where an action for damages may be
brought.
Whether Article28(1) refers to jurisdiction oronly to venueis a question over which authorities are
sharplydivided.Whilethepetitioner cites severalcases holding thatArticle28(1) refers tovenue
rather thanjurisdiction, 9 there arelater cases citedby theprivaterespondent supporting the
conclusionthattheprovision is jurisdictional. 10
Venue and jurisdictionareentirely distinct matters. Jurisdiction may not beconferredby consent or
waiver upon d courtwhich otherwisewould haveno jurisdictionoverthesubject-matter ofan
action; but thevenueofanaction as fixed by statutemay bechanged bytheconsentoftheparties
and an objection that theplaintiffbroughthis suitin the wrong county may bewaivedby the
failure of thedefendant to makea timelyobjection.In eithercase, the court may render a valid
judgment. Rules as to jurisdictioncan never beleftto theconsent or agreementofthe parties,
whether or not a prohibition exists againsttheiralteration. 11
A number of reasons tends to support thecharacterization ofArticle28(1) as a jurisdiction andnot a
venue provision. First, the wording ofArticle 32, which indicates theplaces wheretheaction for
damages "must"be brought, underscores the mandatory natureofArticle28(1). Second,this
characterizationis consistentwith oneoftheobjectives ofthe Convention, which is to "regulatein
a uniform manner the conditions ofinternationaltransportation byair."Third, the Convention
does not contain any provisionprescribing rules ofjurisdiction other thanArticle 28(1), which
means that thephrase"rules as to jurisdiction"usedin Article32 must refer only to Article 28(1).
In fact, the lastsentenceofArticle32specifically deals with the exclusiveenumeration in Article
28(1) as "jurisdictions,"which,as such, cannot beleft tothewill oftheparties regardless ofthe
time whenthedamageoccurred.
This issue was analyzed in theleading caseofSmithv. Canadian PacificAirways,Ltd., 12 whereitwas
held:
. . . Of more, but still incomplete, assistanceis thewording ofArticle28(2), especially whenconsidered
in the lightof Article32.Article28(2) provides that "questions ofprocedure shall begoverned by
the law of thecourt towhich thecaseis submitted"(Emphasis supplied). Section(2) thus may be
read to leave for domestic decisionquestions regarding the suitability and locationofa particular
WarsawConvention case.
In other words,wherethematter is governed by the WarsawConvention,jurisdictiontakes ona dual
concept.Jurisdiction in the internationalsensemustbe establishedin accordancewith Article
28(1) ofthe Warsaw Convention, following whichthejurisdiction ofa particular courtmust be
establishedpursuant totheapplicabledomesticlaw.Only after thequestionofwhich courthas
jurisdictionis determined willtheissueofvenue betaken up. This secondquestion shall be
governed by the lawofthe court to which the caseis submitted.
The petitioner submits that sinceArticle 32 states thattheparties areprecluded"beforethe damages
occurred"fromamending therules ofArticle 28(1) as to theplacewheretheactionmaybe
brought, it wouldfollow that theWarsawConvention was notintended toprecludethemfrom
doing so "after thedamages occurred."
Article 32provides:
Art. 32. Any clausecontained inthecontract and allspecialagreements enteredinto beforethe
damage occurred by which the parties purport to infringetherules laid down by this convention,
whether by deciding thelaw to beapplied,or by altering therules as tojurisdiction, shallbenull
and void. Nevertheless for thetransportationofgoods, arbitration clauses shall beallowed,
subjectto this convention, ifthearbitration is to takeplacewithin oneofthejurisdictions referred
to in the firstparagraphofArticle28.
His point is that sincetherequirements ofArticle28(1) canbe waived "after thedamages (shallhave)
occurred,"thearticleshouldbe regarded as possessing thecharacter ofa "venue"and not ofa
"jurisdiction"provision. Hence, in moving to dismiss on the groundoflack ofjurisdiction, the
private respondenthas waived improper venueas a ground todismiss.
The foregoing examination ofArticle28(1) in relationto Article 32 does notsupportthis conclusion. In
any event,we agreethat evengranting arguendo that Article 28(1) is a venueandnota
jurisdictional provision, dismissal ofthe casewas stillin order. Therespondent courtwas correct in
affirming theruling ofthe trialcourt on this matter, thus:
Santos'claim thatNOAwaived venueas a ground ofits motion todismiss is notcorrect. True itis that
NOA averredin its MOTION TO DISMISS that the groundthereofis "theCourt has no subject
matter jurisdiction toentertain the Complaint"whichSANTOS considers as equivalentto "lack of
jurisdictionoverthesubject matter . . ."However, the gistofNOA's argument inits motion is that
the Philippines is nottheproperplace where SANTOS couldfiletheaction — meaning that the
venue ofthe actionis improperlylaid. Even assuming thenthatthespecifiedground ofthemotion
is erroneous,thefactis theproper ground ofthemotion — improper venue — has beendiscussed
therein.
Waiver cannotbe lightlyinferred. Incase ofdoubt,it must beresolved infavor ofnon-waiver ifthere
are specialcircumstances justifying this conclusion, as in thepetitionat bar. As weobserved in
Javier vs. IntermediateCourt ofAppeals: 13
Legally,ofcourse, the lack ofproper venuewas deemed waived by the petitioners whenthey failed to
invoke it in their originalmotionto dismiss. Even so, the motivation ofthe private respondent
should havebeen takeninto accountby both the trialjudgeand the respondentcourt in arriving
at their decisions.
The petitioner also invokes KLMRoyal Dutch Airlines v. RTC,14 a decisionofour CourtofAppeals,
where it was held that Article 28(1) is a venueprovision. However, the private respondentavers
that this was in effect reversed by the caseofAranas v. United Airlines, 15wherethesame court](https://image.slidesharecdn.com/89124073-pil-cases-150908151654-lva1-app6892/85/89124073-pil-cases-29-320.jpg)
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89124073 pil-cases
- 1. Homework Help https://www.homeworkping.com/ Research Paperhelp https://www.homeworkping.com/ Online Tutoring https://www.homeworkping.com/ Republicof the Philippines SUPREMECOURT Manila EN BANC G.R. No. 87193June 23, 1989 JUAN GALLANOSAFRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS AND THELEAGUEOF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEEESTUYE, respondents. J.L. Misa &Associates for petitioner. Lladoc,Huab & Associates for privaterespondent. CRUZ, J.: Petitioner JuanG. Frivaldowas proclaimed governor-electoftheprovinceofSorsogonon January 22, 1988, and assumed office induetime. On October 27, 1988, the LeagueofMunicipalities, Sorsogon Chapter(hereafter, League), representedby its President,Salvador Estuye, who was also suing in his personalcapacity, filedwith theCommission on Elections a petitionfor theannulment of Frivaldo; election and proclamationon the groundthat hewas nota Filipino citizen, having been naturalized intheUnitedStates on January 20, 1983.In his answer datedMay 22, 1988, Frivaldo admitted thathewas naturalized intheUnitedStates as alleged but pleadedthespecial and affirmativedefenses that hehad sought American citizenship only to protect himselfagainst PresidentMarcos. His naturalization, hesaid,was "merely forced upon himselfas a means of survivalagainst the unrelenting persecutionby theMartial LawDictator's agents abroad."He added that hehad returnedto thePhilippines after theEDSArevolutionto helpin the restoration ofdemocracy. Healso argued that thechallenge tohis title shouldbe dismissed, being in reality a quo warrantopetition thatshould havebeenfiled withintendays from his proclamation, in accordance withSection 253ofthe Omnibus ElectionCode.The League, moreover, was nota proper party becauseitwas not a voter and so could notsue under thesaid section. Frivaldo moved for a preliminary hearing on his affirmativedefenses but the respondentCommissionon Elections decided instead by its OrderofJanuary20,1988, to set thecasefor hearing onthe merits.His motion for reconsideration was deniedin another Order datedFebruary 21,1988. He then cameto this Courtin a petition for certiorari andprohibitionto ask that thesaidorders beset aside ontheground thatthey had been renderedwith graveabuse ofdiscretion. Pending resolutionofthepetition, weissued a temporary order against thehearing onthemerits scheduledby theCOMELEC and at the sametimerequiredcomments from therespondents. In their Comment,theprivaterespondents reiterated their assertionthat Frivaldo was a naturalized Americancitizen and hadnot reacquired Philippinecitizenship onthedayofthe election on January18,1988. Hewas therefore not qualified to run for and beelected governor. They also argued that their petitionin the Commission on Elections was not really for quo warranto under Section 253 oftheOmnibus ElectionCode. Theultimatepurposewas toprevent Frivaldo from continuing as governor,his candidacy andelection being null andvoidabinitio becauseofhis alienage. Eveniftheir petitionwere tobe considered as one for quo warranto, itcould not have been filedwithin ten days from Frivaldo's proclamation because itwas onlyin September 1988 that they received proofofhis naturalization. Andassuming that the Leagueitselfwas nota proper party, Estuye himself,who was suing not only for theLeague but also inhis personal capacity,could nevertheless institutethesuitby himselfalone. Speaking for the publicrespondent, the SolicitorGeneral supportedthecontention thatFrivaldowas not a citizen ofthePhilippines andhadnotrepatriated himselfafterhis naturalization as an Americancitizen. As an alien, hewas disqualified frompublic office inthePhilippines.His election did not curethis defect because the electorate ofSorsogon could not amend theConstitution, the Local GovernmentCode, andtheOmnibus Election Code.He alsojoined in theprivate respondent's argument that Section253 oftheOmnibus Election Codewas not applicable because what the Leagueand Estuyewereseeking was not only theannulment oftheproclamationand election ofFrivaldo. Heagreed thatthey werealso asking for the terminationofFrivaldo's incumbency as governor ofSorsogonon the groundthat hewas nota Filipino. In his Reply, Frivaldo insisted thathewas a citizen ofthePhilippines because his naturalization as an Americancitizen was not"impressed with voluntariness."In supporthe cited theNottebohmCase, [(1955 I.C.J.4; 49A.J.I.L.396(1955)]where a German national's naturalization inLiechtenstein was not recognized because ithad been obtainedfor reasons ofconvenienceonly. Hesaid hecould not have repatriated himselfbeforethe1988elections becausetheSpecialCommitteeon Naturalizationcreated for thepurposeby LOI No. 27C had not yetbeenorganized then. His oath in his certificateofcandidacythat hewas a natural-borncitizen shouldbe a sufficient actof repatriation. Additionally, his activeparticipationin the 1987 congressionalelections had divested him ofAmerican citizenship underthelaws oftheUnited States, thus restoring his Philippine citizenship. Heended by reiterating his prayerfor therejectionofthe moveto disqualify him for being time-barred under Section253oftheOmnibus Election Code. Considering theimportance andurgencyofthe question hereinraised, the Courthas decidedto resolve it directly insteadofallowing thenormal circuitous routethat willafter all eventuallyendwith this Court, albeit only after a,long delay. Wecannot permitthis delay. Such delaywill beinimicalto the publicinterestand thevital principles ofpublic office tobe hereapplied.
- 2. It is truethattheCommissionon Elections has the primary jurisdiction over this questionas the sole judge of all contests relating to theelection, returns and qualifications ofthemembers ofthe Congress and electiveprovincialand cityofficials. However, thedecision on Frivaldo's citizenship has alreadybeen made by theCOMELEC throughits counsel,theSolicitor General,who categorically claims that Frivaldo is a foreigner.We assumethis stancewas taken by him after consultation with thepublicrespondent andwithits approval. It thereforerepresents thedecision of the COMELEC itselfthat wemay now review.Exercising ourdiscretion tointerpret the Rules of Court and theConstitution, weshallconsiderthepresentpetition as having been filedin accordance withArticleIX-ASection7, oftheConstitution, tochallengetheaforementioned Orders of the COMELEC. The basicquestion wemustresolveis whetheror notJuan G.Frivaldowas a citizen ofthePhilippines at the time of his election on January18,1988, as provincialgovernorofSorsogon. All theother issues raised inthis petition are merely secondary to this basicquestion. The reason for this inquiry is theprovisionin Article XI, Section9, oftheConstitution thatall public officials and employees owe theStateand theConstitution "allegianceatall times"and the specificrequirementin Section42 ofthe LocalGovernment Codethata candidatefor local elective office must beinter alia a citizen ofthePhilippines anda qualified voter ofthe constituency where he is running. Section 117 oftheOmnibus Election Codeprovides thata qualified votermust be, among other qualifications,a citizenofthePhilippines, this being an indispensablerequirement for suffrage under ArticleV, Section 1,ofthe Constitution. In the certificateof candidacyhe filedon November 19, 1987, Frivaldo described himselfas a "natural- born"citizenof the Philippines, omitting mentionofanysubsequentloss ofsuch status.The evidenceshows,however,that hewas naturalizedas a citizenoftheUnitedStates in 1983 per the following certification fromtheUnited States DistrictCourt, NorthernDistrict ofCalifornia,as duly authenticated by Vice ConsulAmado P. Cortez ofthePhilippineConsulateGeneral in San Francisco,California, U.S.A. OFFICEOF THE CLERK UNITED STATES DISTRICTCOURT NORTHERN DISTRICT OF CALIFORNIA September 23, 1988 TO WHOMIT MAY CONCERN: Our records show thatJUAN GALLANOSAFRIVALDO,bornon October 20, 1915,was naturalized inthis Court on January 20, 1983,and issued CertificateofNaturalizationNo. 11690178. Petition No. 280225. Alien Registration No.A23 079270. Very truly yours, WILLIAML. WHITTAKER Clerk by: (Sgd.) ARACELI V. BAREN Deputy Clerk This evidence is not deniedby thepetitioner.In fact, heexpressly admitted itin his answer. Nevertheless,as earliernoted,he claims it was "forced"on him as a measureofprotectionfrom the persecutionofthe Marcos government through his agents intheUnited States. The Court sees no reason not to believethat thepetitioner was oneofthe enemies oftheMarcos dictatorship. Even so, itcannot agree that as a consequencethereofhe was coercedinto embracing American citizenship. His feeblesuggestion thathis naturalization was nottheresultof his own free andvoluntary choiceis totally unacceptableand mustbe rejected outright. There were many otherFilipinos in the United States similarly situated as Frivaldo,andsomeofthem subjectto greater risk than he, whodidnot find itnecessary — nor do theyclaim tohave been coerced — toabandon their cherished status as Filipinos. They didnot takethe oath ofallegiance to the United States, unlikethepetitioner whosolemnly declared "on oath,that I absolutely and entirely renounceand abjureallallegianceand fidelity to any foreignprince, potentate, stateor sovereigntyofwhom orwhich I haveheretoforebeen a subject or citizen,"meaning in his case the Republicofthe Philippines. ThemartyredNinoy Aquino heads the impressive list ofthose Filipinos in exile who, unlikethepetitioner,held fastto their Philippine citizenship despitetheperils oftheir resistanceto theMarcos regime. The Nottebohm casecitedby thepetitioner invokedtheinternational lawprinciple ofeffective nationalitywhich is clearlynot applicableto the caseatbar. This principleis expressedin Article5 ofthe Hague Conventionof1930 ontheConflict ofNationality Laws as follows: Art. 5. Within a third Statea person having more than onenationality shall betreated as ifhe had only one. Withoutprejudiceto theapplicationofits law inmatters ofpersonalstatus andof any convention inforce, a third Stateshall,ofthe nationalities which any such personpossesses, recognize exclusively inits territory either thenationality ofthecountry inwhich heis habitually and principally resident orthenationality ofthecountry with whichin the circumstances he appears tobe in fact mostclosely connected. Nottebohmwas a German bybirth but a resident ofGuatemala for 34years whenhe appliedfor and acquired naturalization in Liechtensteinonemonth beforetheoutbreak ofWorldWar II. Many members ofhis family and his business interests were inGermany. In 1943, Guatemala,whichhad declared war onGermany, arrested Nottebohm andconfiscated allhis properties on the ground that he was a Germannational. Liechtensteinthereupon filedsuit onhis behalf, as its citizen, against Guatemala. TheInternationalCourt ofJusticeheld Nottebohm tobe stilla national of Germany,withwhichhe was more closelyconnectedthan withLiechtenstein. That caseis notrelevant tothepetition beforeus becauseit dealtwith a conflict betweenthe nationalitylaws oftwo states as decided bya thirdstate. No thirdstate is involved inthecase at bar; in fact,even the UnitedStates is not actively claiming Frivaldo as its national. Thesole question presented tous is whether ornot Frivaldo is a citizen ofthePhilippines under ourown laws, regardless ofother nationalitylaws. Wecan decidethis question aloneas sovereignofour own territory,conformably toSection 1 ofthe said Convention providing that"it is for eachState to determineunderits law who areits nationals."
- 3. It is alsoworth noting thatNottebohm was invoking his naturalizationin Liechtensteinwhereas in the presentcaseFrivaldo is rejecting his naturalization intheUnited States. Ifhe really wanted todisavowhis American citizenship and reacquire Philippinecitizenship, the petitionershould havedone so inaccordancewith thelaws ofourcountry. UnderCANo. 63 as amended by CANo. 473andPD No.725, Philippinecitizenshipmay be reacquired by directactof Congress, by naturalization, or by repatriation. While Frivaldodoes not invokeeitherofthefirst twomethods, henevertheless claims he has reacquired Philippinecitizenship by virtue ofa validrepatriation. He claims thatby actively participating intheelections in this country, heautomatically forfeited American citizenshipunder the laws of theUnitedStates. Such laws donot concern us here.The allegedforfeiture is between him and theUnited States as his adoptedcountry. It should beobvious that evenifhe did losehis naturalized American citizenship, such forfeituredidnotandcouldnot havetheeffectof automatically restoring his citizenship in thePhilippines that hehad earlierrenounced.At best, what might have happened as a resultofthe loss ofhis naturalized citizenship was that hebecame a stateless individual. Frivaldo's contentionthathe could nothaverepatriated himselfunderLOI 270 because the Special Committee provided for therein hadnot yet been constitutedseems to suggest thatthelackof that body rendered his repatriationunnecessary. Thatis far-fetchedifnot specious Such a conclusionwould open thefloodgates, as it were. It would allow allFilipinos who have renounced this country toclaim back theirabandoned citizenshipwithout formally rejecting their adoptedstateand reaffirming their allegiance tothePhilippines. It does not appearthat Frivaldo has taken thesecategoricalacts. Hecontends that by simply filing his certificate of candidacy hehad, without more,already effectivelyrecovered Philippinecitizenship. But that is hardly theformaldeclaration thelaw envisions — surely, Philippinecitizenship previously disowned is notthat cheaplyrecovered.Ifthe SpecialCommitteehadnotyet been convened, whatthat meantsimply was thatthepetitioner had towaituntilthis was done,or seek naturalizationby legislative orjudicial proceedings. The argument thatthepetition filedwith theCommissionon Elections should bedismissed for tardiness is not well-taken. Thehereinprivaterespondents are seeking toprevent Frivaldo from continuing to dischargehis office ofgovernor because heis disqualified fromdoing soas a foreigner. Qualifications for publicofficeare continuing requirements andmustbe possessednot only at the time of appointmentor electionor assumption ofofficebutduring theofficer's entiretenure. Once any of the requiredqualifications is lost, his titlemay beseasonably challenged. If, say, a female legislatorwere tomarry a foreigner during her term andby her act or omission acquires his nationality, wouldshehavea rightto remainin office simply becausethechallenge tohertitle may no longerbe made withintendays from her proclamation? It has beenestablished, and not even denied, thattheevidence ofFrivaldo's naturalization was discovered only eightmonths after his proclamation andhis title was challengedshortly thereafter. This Court willnot permittheanomaly ofa personsitting as provincial governor inthis country while owing exclusiveallegiance toanothercountry. Thefactthat hewas elected by thepeopleof Sorsogon does not excuse this patent violationofthesalutaryrulelimiting publicofficeand employmentonly to thecitizens ofthis country. Thequalifications prescribed for electiveoffice cannot beerased by the electorate alone. Thewill ofthepeopleas expressedthroughtheballot cannot cure the viceofineligibility,especially ifthey mistakenly believed,as inthis case, that the candidatewas qualified. Obviously, this rule requires strictapplication whenthedeficiency is lack of citizenship. Ifa personseeks toserveintheRepublic ofthePhilippines,he mustowehis total loyalty tothis country only,abjuring and renouncing all fealty and fidelity to any other state. It is true as the petitioner points out thatthestatus ofthenatural-borncitizen is favored by the Constitution andour laws, whichis all the morereasonwhy itshould betreasured likea pearlof great price.But onceit is surrendered and renounced, the gift is goneand cannotbe lightly restored. This countryofours, for allits difficulties andlimitations,is likea jealous andpossessive mother. Oncerejected, itis not quick to welcomeback with eager arms its prodigalifrepentant children. Thereturning renegademustshow,by anexpress andunequivocal act, the renewalofhis loyalty and love. WHEREFORE, the petition is DISMISSED andpetitioner JUAN G.FRIVALDO is herebydeclarednot a citizen ofthePhilippines and therefore DISQUALIFIED fromserving as Governor oftheProvinceof Sorsogon. Accordingly, heis orderedto vacate his officeand surrender thesame totheduly elected Vice-Governorofthesaidprovinceonce this decision becomes final and executory. The temporary restraining order datedMarch 9,1989, is LIFTED. SO ORDERED. Fernan, C.J.,Narvasa,Melencio-Herrera, Paras,Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea and Regalado, JJ., concur. Sarmiento,J., took nopart. Cortes J.,concurs in theresult. Separate Opinions GUTIERREZ, JR., J., concurring: I concur in thepragmaticapproachtakenby theCourt.I agreethat whenthehigherinterests ofthe State areinvolved, the publicgood shouldsupersedeany proceduralinfinities which may affecta petitionfiled withtheCommission onElections. I failto see how theCourt could allowa person who by his own admissions is indubitably analien tocontinueholding the office ofGovernorof any province. It is an establishedrule oflong standing that theperiod fixedby law for the filing ofa protest — whether quo warranto orelection contest — is mandatory andjurisdictional.1 As a rule, thequowarranto petitionseeking to annul the petitioner's electionand proclamationshould have been filed withtendays after the proclamation ofelectionresults. 2The purposeofthelaw in not allowing thefiling ofprotests beyond theperiod fixedby law is tohave a certain and definite timewithin which petitions against theresults ofan election should befiledand to provide summary proceedings for thesettlementofsuch disputes.3 The Rules ofCourtallow the Republicofthe Philippines to file quo warrantoproceedings againstany public officerwho performs an act which works a forfeiture ofhis office. 4However, wheretheSolicitor General or the Presidentfeel thatthereare nogood reasons tocommence quo warrantoproceedings, 5the Court should allowa personlikerespondentEstuye orhis leagueto bring theaction. I must emphasize,however,that my concurrenceis limited toa clearcaseofanalien holding an elective public office. And perhaps in a clear caseofdisloyalty to theRepublicofthePhilippines. 6 Where the disqualification is basedon age,residence,or any ofthemany grounds for ineligibility, 7 I believethat theten-day period shouldbe appliedstrictly. The pragmaticapproachis alsoshownby thefact thattheCourt found itinexpedientto wait for the final decision ofCOMELEC. This step is mostunusual but considering thetotallackofany serious
- 4. grounds for thepetitioner'sclaim ofhaving regained his Philippinecitizenship, I amconstrained to concur in theprocedurepro hacvice. Republicof the Philippines SUPREMECOURT Manila FIRSTDIVISION G.R. No. 113213August 15, 1994 PAUL JOSEPH WRIGHT, petitioner, vs. HON. COURT OF APPEALS, HON. JUDGEJOSEDELA RAMA, RTC, BRANCH 139,MAKATI, M.M. and HON. FRANK DRILON, SECRETARY OF JUSTICE, respondents. Rodrigo E. Mallari forpetitioner. Aurora SalvaBautista collaborating forpetitioner. KAPUNAN, J.: A paramountprincipleofthelaw ofextraditionprovides thata State may not surrender any individual for any offense not includedin a treaty ofextradition. This principlearises from the reality of extradition as a derogation ofsovereignty. Extradition is an intrusioninto the territorial integrity of the host State and a delimitationofthesovereign power oftheStatewithin its own territory. 1 The act of extraditing amounts toa "delivery by the State ofa person accused or convictedofa crime, to another Statewithin whose territorial jurisdiction, actual or constructive,it was committed and which asks for his surrenderwith a viewto executejustice." 2 As it is anact of"surrender"ofan individualfoundin a sovereign State toanother Statewhichdemands his surrender 3, an act of extradition,even witha treaty renderedexecutory uponratificationby appropriateauthorities, does not imposed an obligation toextraditeon the requestedStateuntilthe latterhas made its own determination ofthevalidity oftherequesting State's demand, inaccordancewith the requestedState's own interests. The principles of internationallaw recognizeno right ofextradition apartfrom thatarising from treaty. 4 Pursuant to theseprinciples, States enter into treaties ofextradition principally for the purpose of bringing fugitives ofjusticewithin theambitoftheirlaws, under conventions recognizing therightofnations to mutually agreeto surrender individuals withintheir jurisdiction and control, andfor thepurposeofenforcing their respectivemunicipallaws. Since punishmentof fugitive criminals is dependent mainly on thewillingness ofhostStateto apprehend themand revert them totheStatewheretheiroffenses werecommitted, 5 jurisdictionover suchfugitives and subsequentenforcementofpenal laws canbe effectively accomplished only by agreement betweenStates through treaties ofextradition. Desiring to makemore effectivecooperationbetween Australia andtheGovernment ofthe Philippines in the suppressionofcrime,6 thetwocountries entered into a TreatyofExtradition onthe7thof March 1988. Thesaid treaty was ratified inaccordancewith theprovisions ofSection21,Article VII of the 1987 Constitution ina Resolutionadoptedby theSenateon September 10, 1990and becameeffective thirty (30) days after both States notifiedeachotherin writing that the respective requirements for theentryintoforceoftheTreatyhave been compliedwith. 7 The Treaty adopts a "non-list, double criminality approach"which provides for broadercoverageof extraditableoffenses betweenthetwocountries and(which) embraces crimes punishable by imprisonmentfor atleastone(1) year. Additionally, the Treaty allows extradition for crimes committed priorto the treaty's dateofeffectivity, provided that thesecrimes wereinthestatute books of the requesting State at the timeoftheircommission. Under the Treaty, each contracting Stateagrees to extradite.. . "persons . . . wanted for prosecutionoftheimposition or enforcementofa sentenceintheRequesting State for an extraditable offense." 8 Arequest for extradition requires, ifthe personis accusedofan offense, thefurnishing by the requesting Stateofeither a warrant for thearrestor a copy ofthe warrantof arrest oftheperson, or, where appropriate, a copy ofthe relevantcharge againstthe person sought to beextradited. 9 In defining theextraditable offenses, theTreaty includes alloffenses "punishable under the Laws of both Contracting States by imprisonment for a period ofatleast one(1) year, or bya more severe penalty." 10 Forthepurposeofthedefinition,theTreaty states that: (a) an offense shall beanextraditableoffensewhetheror notthelaws oftheContracting States place the offensewithinthesame category ordenominate the offenseby thesame terminology; (b) the totality ofthe acts oromissions allegedagainst the person whoseextradition is requested shall be taken intoaccountin determining theconstituentelements oftheoffense. 11 Petitioner, an AustralianCitizen, was sought by Australianauthorities for indictablecrimes in his country. Extraditionproceedings werefiledbefore the RegionalTrial CourtofMakati, which rendereda decision ordering thedeportationofpetitioner. Said decision was sustained by the Court ofAppeals; hence, petitionercameto this Court bywayofreviewon certiorari, to setaside the order ofdeportation. Petitioner contends thattheprovision oftheTreaty giving retroactive effect to the extradition treatyamounts to an ex post facto lawwhichviolates Section 21ofArticle VI ofthe Constitution. Heassails thetrial court's decision ordering his extradition, arguing that the evidenceadduced inthecourt below failedto showthat heis wantedfor prosecutionin his country. Capsulized,all the principal issues raised by the petitioner beforethis Courtstrike at the validity oftheextradition proceedings institutedby thegovernment against him. The facts, as found bytheCourt ofAppeals, 12 are undisputed: On March 17, 1993, AssistantSecretary SimeD. HidalgooftheDepartment ofForeign Affairs indorsed to the DepartmentofJusticeDiplomaticNoteNo. 080/93dated February 19,1993from the Government ofAustralia to theDepartment ofJusticethrough Attorney GeneralMichaelDuffy. Said DiplomaticNotewas a formalrequest for the extradition ofPetitioner Paul Joseph Wright who is wantedfor thefollowing indictable crimes: 1. Wright/Orr Matter — onecountofObtaining Property by Deception contrary toSection 81(1) ofthe VictorianCrimes Act of1958; and 2. Wright/CrackerMatter— Thirteen (13) counts ofObtaining Properties by Deceptioncontrary to Section 81(1) oftheVictorian Crimes Act of1958; onecountofattempting to Obtain Property by Deception contrary toSection 321(m) ofVictorianCrimes Act of1958; and onecountofPerjury contrary toSection 314ofVictorianCrimes Act of1958, whichcrimes wereallegedly committed in the following manner: The one (1) count ofObtaining Property by Deception contrary to Section81(1) ofthe VictorianCrimes Act of1958 constitutes in Mr. Wright's andco-offender,Herbert LanceOrr's,dishonesty in obtaining $315,250from Mulcahy, Mendelson and RoundSolicitors (MM7R), secured by a mortgage on theproperty inBangholme,Victoria owned byRuven Nominees Pty.Ltd., a company controlledby a Rodney and a Mitchell, by falsely representing that alltherelevantlegaldocuments relating to the mortgagehad been signed by Rodney andJanineMitchell. The thirteen (13) counts ofObtaining Propertyby Deceptioncontraryto Section81(1) ofthe Victorian Crimes Act of1958 constitutes in Mr. Wright's andco-offender Mr. John Carson Craker's receiving a total ofapproximately 11.2in commission (including $367,044 inbonus commission) via Amazon Bond Pty. Ltd., depending onthevolumeofbusiness written, by submitting two hundredfifteen (215) life insuranceproposals,and paying premiums thereon (totheacceptanceofthepolicies and payment ofcommissions) to theAustralianMutualProvident (AMP) Society throughtheOfficeof MelbourneMutualInsurance, ofwhichrespondent is an insuranceagent, outofwhich life proposals none arein existenceand approximately 200ofwhich arealleged to havebeenfalse, in one or more ofthefollowing ways: ( i ) some policy-holders signed up only because theywere toldthepolicies were free (usually for 2 years) andno payments wererequired. (ii) some policy-holders wereoffered cash inducements ($50or $100) to sign andhadto supplya bank account nolongerused(at which a directdebitrequest for payment ofpremiums would apply). These policy-holders were alsotold no payments by themwere required. (iii) some policy-holders wereintroduced through the"Daily Personnel Agency", andagainweretoldthe policies werefreefor 2 years as long as an unusedbank account was applied. (iv) some policy-holders werefound notto exist. The one countofAttempting toObtain Property by Deceptioncontrary to Section321(m) ofthe VictorianCrimes Act of1958constitutes inMr. Wright's and Mr. Craker's attempting to cause the
- 5. payment of $2,870.68commissiontoa bank accountin the name ofAmazon Bond Pty. Ltd.by submitting one proposal for Life Insurance totheAMP Society, the policy-holder ofwhichdoes not exist with the end inview ofpaying thepremiums thereonto insureacceptanceofthepolicy and commission payments. The one countof Perjurycontraryto Section 314ofVictorian Crimes Act of1958constitutes inMr. Wright's andMr. Craker's signing and swearing before a Solicitor holding a current practicing certificate pursuantto the Legal ProfessionPractice Act(1958), a Statutory Declarationattesting to the validity of 29 ofthemostrecent Life Insuranceproposals ofAMP Society and containing three (3) false statements. Pursuant to Section 5 ofPD No. 1069, inrelation totheExtradition Treaty concluded betweenthe Republicof the Philippines and Australia onSeptember 10, 1990,extraditionproceedings were initiatedon April 6, 1993by theState Counsels oftheDepartmentofJusticebeforethe respondentcourt. In its Order datedApril13, 1993, the respondentcourt directedthepetitioner to appearbeforeit on April 30, 1993and to file his answer within ten days. Inthesame order, the respondentJudge ordered the NBI toservesummons andcausethearrestofthe petitioner. The respondent courtreceived return ofthe warrant ofarrest and summons signed by NBI Senior Agent Manuel Almendras with theinformation thatthepetitioner was arrested on April26,1993at Taguig, Metro Manila and was subsequentlydetainedat theNBI detentioncellwherepetitioner, to date, continue tobe held. Thereafter, the petitionerfiled his answer. In the course of the trial, thepetitioner testified thathewas jobless, married toa Filipina, JudithDavid, with whom hebegot a child;that hehas no casein Australia; that heis nota fugitivefromjustice and is not awareoftheoffenses charged against him; thathearrived in thePhilippines on February 25, 1990 returned toAustralia on March1, 1990,then backto thePhilippines onApril11, 1990, left thePhilippines again onApril24, 1990for Australia and returnedto thePhilippines on May 24, 1990, againleftfor Australia on May 29,1990passing by Singaporeandthen returned to the Philippines on June25, 1990and fromthat timeon,has not left the Philippines; and thathis tourist visa has beenextended but hecouldnot producethesamein courtas itwas misplaced, has neither produced any certificationthereof, nor any temporaryworking visa. The trial court, inits decisiondated 14June1993, granting the petitionfor extraditionrequested by the Government of Australia, concluding thatthedocuments submitted by the AustralianGovernment meet the requirements ofArticle7 oftheTreaty ofExtraditionand thattheoffenses for which the petitionerwere sought in his country areextraditableoffenses underArticle2 ofthesaid Treaty. The trial court, moreover, held thatunder the provisions ofthesameArticle,extraditioncouldbe granted irrespectiveofwhentheoffense — in relation totheextradition— was committed, provided that theoffensehappened to beanoffensein therequesting Stateatthetimetheacts or omissions constituting the samewere committed. 13 Petitioner challenged thedecision ofthe Regional Trial Court before the CourtofAppeals assigning the following errors: I. THAT THE HONORABLERESPONDENTJUDGEGRAVELYERRED IN GIVING RETROACTIVEFORCEAND EFFECT TO THE EXTRADITION TREATYDESPITETHEFACT THAT THEEVIDENCEADDUCED BY THE RESPONDENT SHOW THATTHEALLEGED OFFENSES FOR WHICH PETITIONER IS SOUGHTTO BE EXTRADITED TOOK PLACEIN 1988-1989 ATTHETIMETHERE WAS NO EXTRADITION TREATY BETWEEN THE REPUBLIC OF THEPHILIPPINES AND AUSTRALIA. II. THAT THE ACT OF THE HONORABLERESPONDENTJUDGEIN GIVING RETROACTIVEFORCEAND EFFECT TO THEEXTRADITION TREATY BETWEEN THE REPUBLIC OF THEPHILIPPINES AND AUSTRALIA AMOUNTS TO AN "EX POST FACTO LAW"AND VIOLATES SECTION 21, ARTICLEVII OF THE1987 CONSTITUTION. III. THAT THEHON. RESPONDENTJUDGEGRAVELYERRED IN ORDERING THEEXTRADITION OF PETITIONER DESPITETHEFACTTHAT THE EVIDENCEADDUCED DO NOTSHOW THATPETITIONER IS WANTED FOR PROSECUTION IN AUSTRALIA. IV. THAT THE HON. RESPONDENTJUDGEGRAVELYABUSED HIS DISCRETION,AMOUNTING TO LACK OF JURISDICTION, IN MISINTERPRETING THEEXTENDED STAYOF PETITIONER AS EVIDENCEOF PETITIONER'S DESIGN TO HIDEAND EVADEPROSECUTION IN AUSTRALIA. V. THAT THEHON. RESPONDENTJUDGEGRAVELYERRED IN ORDERING THEEXTRADITION OF PETITIONER WITHOUTSPECIFYING IN HIS ORDER OR DECISION THESPECIFIC CHARGES FOR WHICH PETITIONER IS TO STAND TRIAL IN AUSTRALIA. The Court ofAppeals affirmed thetrialcourt's decisionon September14, 1993and deniedpetitioner's Motion for Reconsideration on December 16, 1993. 14 Reiterating substantially thesame assignments oferror which heinterposedin theCourtofAppeals,petitioner challenges inthis petitionthevalidity oftheextradition orderissuedby thetrial courtas affirmedby theCourt of Appeals under the Treaty.Petitioner vigorously argues thatthetrialcourtorder violates the Constitutionalprohibition againstex post factolaws. Heavers that for the extradition orderto be valid, theAustraliangovernment shouldshow thathe"has a criminal casepending beforea competent court"in thatcountry "which canlegally pass judgementor acquittalor conviction upon him." Clearly,a closereading ofthe provisions ofthe Treaty previously cited,whicharerelevantto our determinationofthe validityofthe extradition order, reveals thatthetrial courtcommittedno error in ordering thepetitioner's extradition. Conformablywith Article 2, Section 2ofthe said Treaty, thecrimes for which the petitioner was charged and for which warrants for his arrest were issuedin Australia wereundeniably offenses intheRequesting Stateat thetimethey werealleged to have been committed. From its examination ofthecharges againstthepetitioner,thetrialcourt correctly determined that thecorresponding offenses underour penallaws areArticles 315(2) and 183 ofthe RevisedPenal Codeon swindling/estafa and false testimony/perjury, respectively. 15 The provisions ofArticle 6 ofthe saidTreaty pertaining to thedocuments required for extradition are sufficientlyclear and requireno interpretation. Thewarrantfor thearrestofan individualor a copy thereof, a statement ofeach and every offenseand a statement ofthe acts andomissions which werealleged againsttheperson inrespect ofeach offenseare sufficientto showthata person is wantedfor prosecution under the said article. Allofthesedocumentaryrequirements were dully submittedto the trialcourt inits proceedings a quo. Forpurposes ofthecompliance with the provisions oftheTreaty, the signature andofficialsealofthe Attorney-Generalof Australia were sufficientto authenticate allthedocuments annexed totheStatement oftheActs and Omissions, including thestatementitself. 16 In conformity withtheprovisions ofArticle7 of the Treaty,theappropriatedocuments and annexes weresigned by "anofficer inor ofthe Requesting State" 17 "sealedwith. . . (a) publicseal ofthe Requesting Stateor ofa Minister of State, or ofa Department or officerofthe Government oftheRequesting State," 18 and "certified by a diplomaticor consularofficer oftheRequesting State accredited to theRequested State." 19 Thelast requirement was accomplishedby thecertification made bythePhilippine Consular Officer inCanberra,Australia. The petitioner's contentionthata personsoughtto beextradited shouldhavea "criminal casepending before a competentcourt intheRequesting Statewhichcan legally pass judgement ofacquittal or conviction" 20 stretches the meaning ofthe phrase "wantedfor prosecution"beyond the intended by the treaty provisions because therelevant provisions merely require"a warrant for the arrest or a copy ofthe warrant for thearrest oftheperson sought tobe extradited." 21 Furthermore, the 'Charge and WarrantofArrest Sheets'attest to the factthat petitioneris not only wanted for prosecution but has, infact, absconded toevade arrestandcriminal prosecution.Since a chargeor information under the Treaty is required only whenappropriate, i.e., incases wherean individual charged beforea competent courtin the Requesting Statethereafter absconds to the Requested State, a chargeor a copy thereofis not requirediftheoffender has infactalready absconded before a criminal complaintcould befiled. As theCourtofAppeals correctly noted, limiting the phrase "wanted for prosecution"to person charged with an information ora criminalcomplaint renders theTreaty ineffective over individuals who abscondfor thepurposeofevading arrest and prosecution. 22 This brings us toanother pointraisedby thepetitioner bothin thetrial court and intheCourt of Appeals. May the extradition ofthe petitionerwho is wanted for prosecutionby thegovernment ofAustralia begrantedin spiteofthe factthat the offenses for which thepetitioner is sought in his country wereallegedly committed priorto thedateofeffectivity oftheTreaty. Petitioner takes theposition thatunder Article18ofthe Treaty its enforcementcannot begiven retroactive effect. Article 18 states:
- 6. ENTRY INTO FORCEANDTERMINATION This Treaty shall enter intoforcethirty(30) days after the date on whichtheContracting States have notified each other in writing that their respectiverequirements for theentry intoforceofthis Treaty havebeencomplied with. Either contracting Statemayterminatethis Treatyby notice inwriting atany timeand it shall cease to be in force on the one hundredand eightiethday after the dayon whichnoticeis given. We fail to seehow thepetitioner can infer a prohibition againstretroactiveenforcementfrom this provision. Thefirst paragraph ofArticle18refers to theTreaty's dateofeffectivity; thesecond paragraph pertains toits termination.Absolutely nothing in thesaid provisionrelates to, much less, prohibits retroactiveenforcement oftheTreaty. On the other hand, Article2(4) oftheTreaty unequivocally provides that: 4. Extradition may begranted pursuant to provisions ofthis Treaty irrespectiveofwhentheoffensein relation towhich extradition is requestedwas committed, provided that: (a) it was anoffensein the Requesting State at the timeof theacts or omissions constituting the offense; and (b) the acts or omissions allegedwould,ifthey had taken placein the Territory oftheRequestedStateat the time of themaking oftherequest for extradition, haveconstituted an offenseagainstthe laws in force in that state. Thus, the offenses for which petitioner is soughtby his governmentare clearly extraditableunder Article 2 of the Treaty.They wereoffenses in the Requesting Stateat thetime theywerecommitted, and, irrespectiveof thetimethey were committed,they fall under thepanoply oftheExtradition Treaty's provisions, specifically, Article2 paragraph4, quotedabove. Does the Treaty's retroactiveapplication violate the Constitutionalprohibition against ex post facto laws? Early commentators understood ex post factolaws to include alllaws ofretrospective application, whether civilor criminal. 23 However, ChiefJusticeSalmon P.Chase,citing Blackstone, The Federalistand other early U.S. state constitutions in Caldervs. Bull 24 concludedthat the concept was limited only topenal and criminal statutes. As conceived underour Constitution, ex post facto laws are 1) statutes that make an actpunishableas a crime whensuchact was not an offense whencommitted; 2) laws which, while not creating new offenses,aggravate the seriousness of a crime; 3) statutes which prescribes greater punishmentfor a crimealready committed; or, 4) laws which alter the rules ofevidenceso as tomake it substantially easier to convict a defendant. 25 "Applying theconstitutional principle,the(Court) has held thatthe prohibitionapplies onlyto criminallegislation which affects the substantialrights ofthe accused." 26 This being so, thereis no absolutely no merit in petitioner's contention thattheruling of the lower courtsustaining theTreaty's retroactiveapplication with respectto offenses committed priorto the Treaty's coming intoforceand effect, violates theConstitutional prohibitionagainst ex post facto laws. As the CourtofAppeals correctly concluded,theTreaty is neither a piece ofcriminallegislation nora criminalprocedural statute. "It merely provides for the extradition of persons wanted for prosecution ofan offenseor a crime which offenseor crime was already committedor consummated at the timethe treaty was ratified." 27 In signing theTreaty, the governmentofthePhilippines has determined that itis withinits interests to enter intoagreementwith the governmentofAustralia regarding therepatriationofpersons wanted for criminaloffenses in either country. Thesaid Treaty was concurred and ratified by the Senate ina Resolutiondated September10,1990. Having beenratifiedin accordance withthe provision of the1987Constitution, theTreaty took effect thirty days aftertherequirements for entry into force werecompliedwithby both governments. WHEREFORE, finding no reversibleerror inthedecisionofrespondentCourt ofAppeals, wehereby AFFIRMthe sameand DENYtheinstantpetition for lackofmerit. SO ORDERED. Davide, Jr.,Bellosilloand Quiason, JJ., concur. Cruz, J., is on leave. EN BANC [G.R. No. 148571. September24,2002] GOVERNMENTOF THE UNITED STATES OF AMERICA, represented by thePhilippineDepartment of Justice, petitioner,vs. Hon. GUILLERMOG. PURGANAN, Morales, and Presiding Judge,Regional Trial Court ofManila, Branch 42; and MARK B. JIMENEZ a.k.a. MARIOBATACAN CRESPO, respondents. D E C I S I ON PANGANIBAN, J.: In extraditionproceedings,areprospectiveextraditees entitled tonotice andhearing before warrants for their arrest canbe issued? Equallyimportant,arethey entitled to therightto bail and provisional liberty whilethe extradition proceedings are pending? In general, theanswer to these two novel questions is “No.” The explanation ofand the reasons for, as wellas the exceptions to, this rulearelaid outin this Decision. The Case Before us is a Petitionfor CertiorariunderRule65oftheRules ofCourt, seeking tovoidandset aside the Orders datedMay 23,2001[1] and July3, 2001[2] issuedby theRegional TrialCourt (RTC) of Manila, Branch42.[3] Thefirst assailed Orderset for hearing petitioner’s applicationfor the issuanceofa warrant for the arrest ofRespondent Mark B. Jimenez. The secondchallenged Order,on theother hand, directed theissuanceofa warrant,butat thesame time grantedbailto Jimenez. The dispositiveportion oftheOrder reads as follows: “WHEREFORE, in the lightofthe foregoing,the[Court]finds probablecauseagainst respondentMark Jimenez. Accordingly let a Warrant for the arrest oftherespondent beissued. Consequently and taking intoconsideration Section9, Rule 114oftheRevisedRules ofCriminal Procedure, this Court fixes the reasonableamount ofbailfor respondent’s temporary liberty atONEMILLION PESOS (Php 1,000,000.00), thesameto bepaid in cash. “Furthermorerespondent is directedto immediatelysurrender tothis Court his passport andthe Bureau ofImmigrationand Deportation is likewisedirected toincludethenameoftherespondent in its HoldDepartureList.”[4] Essentially, thePetitionprays for thelifting ofthe bail Order, thecancellation ofthebond, andthe taking ofJimenez into legal custody. The Facts This Petition is really a sequel toGR No. 139465 entitled Secretary ofJustice v. RalphC. Lantion.[5] Pursuant to theexisting RP-US Extradition Treaty,[6] theUnited States Government, through diplomatic channels, sentto the PhilippineGovernmentNoteVerbaleNo. 0522 datedJune 16, 1999, supplemented by NoteNos. 0597, 0720 and 0809 andaccompanied by duly authenticated documents requesting theextraditionofMark B. Jimenez, alsoknownas MarioBatacan Crespo. UponreceiptoftheNotes anddocuments, the secretaryofforeign affairs (SFA) transmittedthem tothesecretary ofjustice (SOJ) for appropriateaction, pursuantto Section5 of PresidentialDecree(PD) No. 1069, alsoknownas theExtradition Law. Upon learning ofthe requestfor his extradition, Jimenez sought and was granteda Temporary Restraining Order (TRO) by theRTC ofManila, Branch25.[7] TheTRO prohibited the Department of Justice(DOJ) fromfiling with the RTC a petition for his extradition. The validity oftheTRO was, however, assailedby theSOJ ina Petition before this Court in thesaid GR No. 139465. Initially, theCourt --by a vote of9-6--dismissedthePetition. The SOJ was ordered to furnish privaterespondent copies oftheextraditionrequest and its supporting papers andto grant the latter a reasonable periodwithin whichto file a commentandsupporting evidence.[8] Acting on the Motionfor Reconsiderationfiled by theSOJ, this Court issuedits October 17, 2000 Resolution.[9] By an identicalvote of9-6 --after threejustices changed their votes --it reconsidered and reversed its earlier Decision. It heldthat private respondentwas bereft ofthe right to noticeandhearing during the evaluation stageofthe extradition process. This Resolution has becomefinalandexecutory. Finding no morelegal obstacle, theGovernmentoftheUnitedStates ofAmerica,representedby the PhilippineDOJ, filed withtheRTC on May18,2001, theappropriate Petitionfor Extraditionwhich was docketed as ExtraditionCaseNo. 01192061. The Petition alleged, inter alia,thatJimenez was the subjectofan arrest warrant issuedby theUnited States DistrictCourt for theSouthernDistrict ofFlorida on April 15, 1999.The warrant hadbeen issuedin connection withthefollowing charges in Indictment No. 99-00281CR-SEITZ: (1) conspiracy to defraudtheUnited States and tocommit
- 7. certainoffenses in violationofTitle 18US Code Section371; (2) tax evasion, inviolationofTitle26 US Code Section 7201; (3) wire fraud, inviolationofTitle18US CodeSections 1343 and 2; (4) false statements, in violationofTitle18US CodeSections 1001 and2; and (5) illegal campaign contributions, inviolationofTitle2 US Code Sections 441b,441fand 437g(d) andTitle 18US Code Section 2. In order to prevent theflight ofJimenez, the Petitionprayed for the issuanceofan order for his “immediatearrest” pursuantto Section6 ofPD No. 1069. Before the RTC couldact on thePetition, RespondentJimenez filed beforeit an “Urgent Manifestation/Ex-ParteMotion,”[10] which prayed that petitioner’s application for an arrest warrantbe setfor hearing. In its assailed May 23, 2001Order, the RTC granted theMotionofJimenez and set thecasefor hearing on June 5, 2001. In thathearing, petitioner manifested its reservations ontheprocedure adopted by the trialcourt allowing theaccusedin an extradition case tobe heardprior totheissuance ofa warrantof arrest. After the hearing, the courta quo required the parties to submit their respectivememoranda. In his Memorandum,Jimenez sought an alternativeprayer: thatin casea warrant should issue, hebe allowedto postbailin the amount of P100,000. The alternative prayerofJimenez was also setfor hearing onJune 15, 2001. Thereafter, the courtbelow issuedits questionedJuly 3,2001Order, directing the issuanceofa warrant for his arrestand fixing bailfor his temporary liberty at onemillion pesos in cash.[11] After hehad surrendered his passport andposted the requiredcashbond, Jimenez was granted provisional liberty via the challenged Order datedJuly 4, 2001.[12] Hence, this Petition.[13] Issues Petitioner presents thefollowing issues for the considerationofthis Court: I. “The publicrespondent actedwithout or in excess ofjurisdiction orwith graveabuse ofdiscretion amounting to lack or excess ofjurisdictionin adopting a procedureoffirst hearing a potential extraditee beforeissuing an arrest warrant under Section6 ofPD No. 1069. II. “The publicrespondent actedwithout or in excess ofjurisdiction orwith graveabuse ofdiscretion amounting to lack or excess ofjurisdictionin granting theprayer for bailand inallowing Jimenez to go on provisionalliberty because: ‘1. An extraditioncourt has no power to authorizebail, in theabsence ofany lawthat provides for such power. ‘2. Section 13,ArticleIII (right tobailclause) ofthe1987Philippine Constitution andSection 4,Rule114 (Bail) of the Rules ofCourt, as amended, which [were]relied upon, cannot beusedas bases for allowing bailin extradition proceedings. ‘3. The presumption is againstbailin extradition proceedings or proceedings leading to extradition. ‘4. On the assumption thatbailis availablein extradition proceedings or proceedings leading to extradition,bailis not a matterofrightbut only ofdiscretionuponclear showing by theapplicant of the existenceofspecialcircumstances. ‘5. Assuming that bail is a matterofdiscretionin extradition proceedings, the publicrespondent received no evidenceof‘specialcircumstances’ which may justify release onbail. ‘6. The risk that Jimenez willfleeis high, andno specialcircumstanceexists thatwill engendera well- founded belief that hewillnot flee. ‘7. The conditions attachedto the grantofbailareineffectual and donotensure compliance by the Philippines with its obligations under the RP-US ExtraditionTreaty. ‘8. The Court of Appeals Resolutionpromulgated onMay 10, 2001 inthecase entitled ‘EduardoT. Rodriguez et al.vs. The Hon.PresidingJudge,RTC, Branch 17, Manila,’ CA-G.R.SP No. 64589, relied upon by the public respondentin granting bail, had been recalled beforetheissuanceofthe subjectbailorders.’”[14] In sum, the substantivequestions that this Court willaddress are: (1) whether Jimenez is entitled to notice and hearing beforea warrant for his arrestcan beissued, and (2) whether heis entitled to bail andto provisionallibertywhiletheextraditionproceedings arepending. Preliminarily, weshall take up thealleged prematurityofthe Petitionfor Certiorariarising from petitioner’s failureto file a Motion for Reconsiderationin theRTC and toseek reliefin the CourtofAppeals (CA), instead of in this Court.[15] We shall also preliminarily discuss fiveextraditionpostulates that willguideus in disposing ofthesubstantiveissues. The Court’sRuling The Petition is meritorious. Preliminary Matters Alleged Prematurity ofPresent Petition Petitioner submits the following justifications for not filing a Motionfor Reconsiderationin the Extradition Court: “(1) the issues werefullyconsidered by such courtafter requiring the parties to submit their respectivememoranda and position papers on the matter andthus, thefiling ofa reconsiderationmotionwould serveno useful purpose; (2) theassailed orders area patent nullity, absentfactualandlegal basis therefor; and (3) theneedfor reliefis extremelyurgent,as the passage ofsufficienttime would giveJimenez ample opportunity to escapeand avoid extradition; and (4) the issues raised arepurely oflaw.”[16] For resorting directly tothis Courtinsteadofthe CA, petitionersubmits the following reasons: “(1) even ifthe petitionis lodgedwith theCourt ofAppeals andsuch appellate courttakes cognizanceofthe issues and decides them, theparties would stillbring thematter to this HonorableCourt tohave the issues resolvedonce andfor all [and]to havea binding precedentthat alllower courts ought to follow; (2) the HonorableCourtofAppeals hadin one case[17] ruledon the issueby disallowing bail but the courtbelowrefused torecognizethedecisionas a judicial guideand allother courts might likewiseadoptthesame attitudeofrefusal; and (3) thereare pending issues on bailboth in the extradition courts and theCourtofAppeals,which, unless guided by the decision thatthis Honorable Courtwill renderin this case,would resolveto grant bail in favor ofthepotential extraditees and would givethemopportunity tofleeand thus, cause adverseeffect on theability ofthe Philippines to comply with its obligations under existing extraditiontreaties.”[18] As a general rule, a petitionfor certiorari beforea higher courtwillnot prosper unless the inferior court has beengiven,through a motion for reconsideration,a chanceto correct theerrors imputed to it. This rule, though,has certainexceptions: (1) whentheissueraised is purely oflaw, (2) when public interestis involved,or (3) in caseofurgency.[19] As a fourthexception, the Courthas also ruled that thefiling ofa motionfor reconsideration beforeavailment oftheremedy ofcertiorariis not a sine qua non,when the questions raisedare the sameas those that havealready been squarely argued andexhaustively passed upon by the lower court.[20] Asidefrombeing ofthis nature, theissues inthepresent casealsoinvolve purequestions oflaw that are ofpublic interest. Hence,a motion for reconsiderationmaybe dispensed with. Likewise,this Courthas allowed a directinvocation ofits original jurisdictionto issuewrits ofcertiorari when thereare special andimportant reasons therefor.[21] In Fortich v. Corona[22]westated: “[T]he Supreme Courthas thefull discretionary power to takecognizanceofthepetition filed directly [before]it ifcompelling reasons, orthenature andimportanceoftheissues raised, warrant. This has beenthejudicialpolicy to beobserved andwhich has beenreiteratedin subsequent cases, namely: Uy vs. Contreras, et. al.,Torres vs. Arranz,Bercerovs. De Guzman, and, Advinculavs. Legaspi, et. al. As we havefurther stated inCuaresma: ‘x x x. Adirect invocationofthe SupremeCourt’s originaljurisdiction to issuethesewrits should be allowedonly when there arespecialand importantreasons therefor,clearly and specifically set out in the petition. This is established policy. x x x.’ “Pursuantto said judicial policy,we resolve totake primary jurisdiction over thepresentpetition inthe interest ofspeedy justiceand toavoidfuture litigations so as topromptly put an end tothe presentcontroversy which, as correctlyobserved by petitioners,has sparked nationalinterest because ofthemagnitudeoftheproblem created by theissuanceoftheassailed resolution. Moreover, x x x requiring the petitioners to filetheir petitionfirstwith the Courtof Appeals would only result ina wasteoftime andmoney. “That the Courthas the power to setasideits own rules inthehigherinterests ofjusticeis well- entrenchedin our jurisprudence. We reiteratewhatwe saidin Piczon vs. CourtofAppeals:[23] ‘Be it remembered that rules ofprocedurearebut meretools designed tofacilitate theattainmentof justice. Their strictandrigid application, whichwould result intechnicalities that tend tofrustrate rather thanpromote substantial justice, mustalways beavoided. Timeand again,this Courthas
- 8. suspended its ownrules andexcepted a particularcasefromtheir operation wheneverthehigher interests of justice so require. In theinstantpetition, weforego a lengthy disquisitionofthe proper procedurethatshould havebeentakenby theparties involvedandproceeddirectly to the merits of thecase.’ In a number of other exceptional cases,[24] weheld as follows: “This Court has original jurisdiction, concurrentwith thatofRegional Trial Courts andtheCourt of Appeals, over petitions for certiorari, prohibition,mandamus,quowarrantoand habeas corpus, and we entertaindirect resortto us in cases wherespecialandimportantreasons orexceptional and compelling circumstances justify thesame.” In the interestof justiceand to settleonceand for alltheimportantissueofbail in extradition proceedings, wedeemit best totake cognizanceofthepresent case. Suchproceedings constitute a matterof firstimpressionover whichthereis, as yet, nolocal jurisprudenceto guidelower courts. FivePostulates ofExtradition The substantive issues raised in this caserequirean interpretation or construction ofthe treaty and the law on extradition. Acardinal rulein theinterpretation ofa treatyor a lawis to ascertain and give effect to its intent.[25] Since PD1069is intended as a guidefor theimplementationofextradition treaties to which thePhilippines is a signatory,[26] understanding certainpostulates ofextradition will aid us inproperly deciding theissues raisedhere. 1. Extradition IsaMajor Instrument for the Suppression ofCrime. First, extraditiontreaties are entered intofor thepurposeofsuppressing crime[27] by facilitating the arrest andthecustodial transfer[28] ofa fugitive[29] from one state totheother. With the adventof easierand faster means ofinternational travel, the flightofaffluentcriminals from one countryto another for thepurposeofcommitting crime andevading prosecution has become more frequent. Accordingly,governments are adjusting their methods ofdealing with criminals and crimes that transcendinternationalboundaries. Today, “a majority ofnations intheworld community havecometolookupon extraditionas the major effective instrument of international co-operationin the suppression ofcrime.”[30] It is theonly regular system thathas been devisedto return fugitives to the jurisdictionofa court competent to try them in accordancewith municipalandinternational law.[31] “An importantpractical effect x x x oftherecognition oftheprinciple thatcriminals shouldbe restored to a jurisdictioncompetent totry andpunish themis that the numberofcriminals seeking refuge abroad willbe reduced. For to theextentthat efficient means ofdetectionand the threatof punishment playa significant rolein the deterrenceofcrimewithin the territorial limits ofa State, so the existenceofeffectiveextradition arrangements and theconsequent certainty ofreturnto the locusdelicticommissi play a corresponding rolein thedeterrenceofflight abroadin order to escapetheconsequence ofcrime. x x x. From anabsenceofextradition arrangements flight abroad by the ingenious criminalreceives direct encouragement and thus indirectly does the commission of crimeitself.”[32] In Secretary v. Lantion[33] weexplained: “The Philippines also has a national interest to help insuppressing crimes and oneway to doit is to facilitate the extradition ofpersons covered by treaties dulyentered[into]by our government. Moreandmore,crimes arebecoming theconcernofone world. Laws involving crimes andcrime preventionareundergoing universalization. One manifest purpose ofthis trend towards globalizationis to deny easyrefugeto a criminalwhoseactivities threatenthepeaceand progress of civilizedcountries. It is to the great interest ofthePhilippines tobe partofthis irreversiblemovement inlight ofits vulnerability to crimes,especially transnationalcrimes.” Indeed, inthis era of globalization, easier and fasterinternationaltravel,and an expanding ring of internationalcrimes and criminals, wecannot afford to bean isolationist state. Weneedto cooperatewith otherstates inorder toimprove our chances ofsuppressing crimein our own country. 2. The Requesting State WillAccord Due Processto the Accused Second, an extradition treaty presupposes that both parties theretohaveexamined, and that both accept andtrust, each other’s legal system and judicial process.[34] Morepointedly,our duly authorized representative’s signature onanextradition treaty signifies our confidenceinthe capacity andthewillingness oftheother state toprotect the basic rights ofthepersonsoughtto be extradited.[35] That signature signifies ourfull faith thattheaccusedwill begiven,upon extradition totherequesting state, allrelevant andbasic rights in thecriminalproceedings that will takeplace therein;otherwise, thetreatywould not havebeensigned, orwould havebeen directlyattacked for its unconstitutionality. 3. The ProceedingsAreSui Generis Third, as pointed out in Secretary ofJustice v. Lantion,[36] extradition proceedings arenotcriminalin nature. In criminalproceedings, theconstitutionalrights oftheaccused areatfore; in extradition which is suigeneris --in a class by itself --they are not. “An extradition[proceeding]is sui generis. It is nota criminalproceeding which willcallinto operation all the rights ofanaccused as guaranteed bytheBillofRights. To begin with,theprocess of extradition does not involve the determinationoftheguilt or innocence ofanaccused. His guilt or innocence will beadjudged in thecourt ofthestatewherehe willbeextradited. Hence,as a rule, constitutional rights thatare only relevant to determinetheguilt or innocence ofan accused cannot beinvoked by an extraditeex x x. x x x x x x x x x “There areotherdifferences between anextraditionproceeding anda criminalproceeding. An extradition proceeding is summary innature whilecriminal proceedings involve a full-blown trial. In contradistinctionto a criminal proceeding, therules ofevidence inanextradition proceeding allowadmission ofevidenceunderless stringentstandards. In terms ofthequantum ofevidenceto besatisfied,a criminalcase requires proof beyondreasonable doubt for conviction while a fugitivemay beorderedextradited ‘uponshowing oftheexistenceofa prima facie case.’ Finally, unlikein a criminal casewherejudgmentbecomes executoryuponbeing rendered final, in anextraditionproceeding, ourcourts may adjudgeanindividual extraditable but the Presidenthas thefinal discretionto extradite him. The United States adheres to a similar practice whereby theSecretary ofState exercises widediscretionin balancing the equities ofthe caseand the demands ofthenation’s foreign relations beforemaking theultimatedecisionto extradite.” Given the foregoing, it is evidentthattheextraditioncourt is not called upon toascertaintheguilt or the innocenceofthe person soughtto beextradited.[37] Such determination during theextradition proceedings willonly result in needless duplicationand delay. Extradition is merelya measureof internationaljudicialassistancethroughwhicha personcharged withor convicted ofa crimeis restored to a jurisdiction with the best claimto try thatperson. It is not partofthe functionofthe assisting authorities to enter into questions thataretheprerogative ofthat jurisdiction.[38] Theultimate purpose ofextradition proceedings in court is onlyto determine whether the extraditionrequestcomplies withthe Extradition Treaty, andwhether the person sought is extraditable.[39] 4. Compliance ShallBe in Good Faith. Fourth, our executive branchofgovernment voluntarily enteredintotheExtradition Treaty, and our legislativebranch ratified it. Hence, the Treaty carries thepresumptionthatits implementation will serve the national interest. Fulfilling our obligations undertheExtraditionTreatypromotes comity[40]with therequesting state. On the other hand, failureto fulfillourobligations thereunderpaints a badimageofour country before the worldcommunity. Suchfailure would discourage other states from entering into treaties with us, particularly anextradition treaty thathinges on reciprocity.[41] Verily, we arebound by pacta sunt servanda tocomply in good faithwithour obligations under the Treaty.[42] This principlerequires that wedelivertheaccusedto therequesting country ifthe conditions precedentto extradition, as set forth intheTreaty, are satisfied. In otherwords, “[t]he demanding government, when it has doneallthat the treaty and the lawrequireit todo, is entitled tothedelivery ofthe accused ontheissueofthe proper warrant,and theother governmentis underobligationto makethesurrender.”[43] Accordingly, the Philippines must be ready andin a position todeliver theaccused,should itbe found proper. 5. There Isan Underlying Risk ofFlight Fifth, persons to beextraditedare presumed to beflight risks. This prima faciepresumption finds reinforcement in theexperience[44] oftheexecutivebranch:nothing short ofconfinement can
- 9. ensure that theaccusedwillnot flee thejurisdictionoftherequested statein order to thwarttheir extradition totherequesting state. The present extradition casefurther validates the premisethatpersons sought to beextraditedhave a propensity to flee. Indeed,extraditionhearings would noteven begin, ifonly the accused were willing to submit to trialin the requesting country.[45] Prioracts ofherein respondent-- (1) leaving the requesting staterightbeforetheconclusion ofhis indictment proceedings there; and(2) remaining intherequested statedespitelearning thattherequesting stateis seeking his return and that the crimes he is chargedwith arebailable -- eloquently speakofhis aversion tothe processes in therequesting state, as well as his predispositionto avoid thematall cost. These circumstances point to an ever-present, underlying highrisk offlight. Hehas demonstrated that he has thecapacity and thewillto flee. Having fled once, whatis thereto stophim, given sufficientopportunity, from fleeing a secondtime? First Substantive Issue: Is Respondent Entitled to Noticeand Hearing Before theIssuanceofa Warrant ofArrest? Petitioner contends that the procedureadopted by the RTC --informing theaccused, a fugitivefrom justice, thatanExtraditionPetition has beenfiled againsthim, and that petitioner is seeking his arrest --gives him noticeto escapeand to avoid extradition. Moreover,petitioner pleads that such proceduremay set a dangerous precedent, in that thosesought tobeextradited -- including terrorists, mass murderers and war criminals -- may invokeit in future extradition cases. On the other hand, RespondentJimenez argues thathe shouldnotbe hurriedlyandarbitrarily deprived of his constitutional right toliberty withoutdueprocess. He furtherasserts thatthereis as yet no specificlaw or rulesetting forththeprocedure priorto theissuanceofa warrant ofarrest, after the petition for extraditionhas been filedin court; ergo, the formulation ofthatprocedure is within thediscretion ofthepresiding judge. Both parties citeSection 6ofPD 1069in supportoftheirarguments. It states: “SEC. 6. Issuance of Summons; TemporaryArrest; Hearing,Service ofNotices.-(1) Immediately upon receiptof the petition, thepresiding judge ofthecourtshall,as soonas practicable, summon the accused toappearand to answer the petitionon the day andhourfixed in theorder. [H]e may issue awarrant for the immediate arrest ofthe accused which may be served any where within the Philippinesifit appearsto the presiding judgethat theimmediate arrest and temporary detention ofthe accused will best serve the endsofjustice. Uponreceiptofthe answer,or shouldtheaccused after having receivedthesummons fail toanswerwithin thetime fixed, the presiding judge shallhearthecase orset another datefor thehearing thereof. “(2) The order andnoticeas well as a copy ofthewarrantofarrest, ifissued, shall bepromptly served each upontheaccused andtheattorney having charge ofthecase.” (Emphasis ours) Does this provisionsanctionRTC JudgePurganan’s actofimmediately setting for hearing theissuance of a warrant of arrest? Weruleinthenegative. 1. On the Basisof the Extradition Law It is significant to notethatSection 6 ofPD1069, ourExtraditionLaw, uses theword“immediate”to qualify thearrestoftheaccused. This qualification wouldbe renderednugatory bysetting for hearing the issuanceofthe arrestwarrant. Hearing entails sending notices totheopposing parties,[46] receiving facts and arguments[47] fromthem,[48] and giving themtimeto prepareand presentsuch facts andarguments. Arrestsubsequentto a hearing canno longer beconsidered “immediate.” The law couldnothave intendedthewordas a mere superfluity but,on thewhole, as a means of imparting a senseofurgency andswiftness in thedeterminationofwhether a warrantof arrest shouldbe issued. By using the phrase “ifit appears,” thelawfurther conveys thataccuracy is not as important as speed at such early stage. The trial courtis notexpected tomakean exhaustive determinationto ferret out the true and actual situation, immediatelyuponthefiling ofthepetition. From theknowledge and the materialthen availableto it,thecourt is expected merelyto geta goodfirst impression -- a prima facie finding -- sufficientto makea speedy initialdeterminationas regards thearrest and detention of theaccused. Attachedto thePetition for Extradition, with a Certificate ofAuthenticationamong others, werethe following: (1) Annex H, the Affidavit executed on May 26, 1999by Mr. Michael E. Savage --trial attorneyin the CampaignFinancing Task ForceoftheCriminal Divisionofthe US Department of Justice; (2) Annexes H to G, evidentiary Appendices ofvarious exhibits that constituted evidenceof the crimes charged intheIndictment, withExhibits 1to 120 (duly authenticatedexhibits that constituted evidenceofthecrimes charged in theIndictment); (3) Annex BB, the ExhibitI “AppendixofWitness [excerpts]Statements Referenced intheAffidavitofAngela Byers” and enclosed Statements intwovolumes; (4) AnnexGG, the Exhibit J“TableofContents for SupplementalEvidentiary Appendix”with enclosed Exhibits 121to 132; and(5) AnnexMM, the Exhibit L “AppendixofWitness [excerpts]Statements Referenced intheAffidavitofBetty Steward” and enclosedStatements in two volumes.[49] It is evidentthat respondentjudge could havealready gotten an impression from theserecords adequatefor himto makeaninitial determination ofwhether theaccusedwas someonewho should immediately bearrested inorder to“best serve the ends ofjustice.” He could have determined whether such facts andcircumstances existed as would lead a reasonablydiscreetand prudent personto believe that theextradition request was prima faciemeritorious. In pointof fact, he actually concluded fromthese supporting documents that“probablecause”didexist. In the second questioned Order, hestated: “In the instantpetition,thedocuments sentby theUS Government in supportof[its]request for extradition ofhereinrespondent areenough toconvincetheCourt oftheexistenceofprobable cause toproceedwiththehearing against the extraditee.”[50] We stress that the prima facieexistence ofprobablecause for hearing the petitionand, a priori, for issuing an arrest warrant was alreadyevidentfrom thePetitionitselfand its supporting documents. Hence, after having already determined therefrom that a primafacie finding did exist, respondentjudge gravelyabusedhis discretionwhen heset the matter for hearing upon motion of Jimenez.[51] Moreover, thelawspecifies thatthecourt sets a hearing upon receipt oftheanswer or upon failureof the accused toanswerafter receiving thesummons. In connection withthematterofimmediate arrest,however,theword“hearing”is notably absentfrom theprovision. Evidently,hadthe holding ofa hearing at that stagebeen intended, the lawcould have easily so provided. It also bears emphasizing at this point thatextraditionproceedings aresummary[52]in nature. Hence, the silenceoftheLaw andtheTreatyleans tothemore reasonableinterpretation that thereis no intention topunctuatewith a hearing every littlestepin theentireproceedings. “It is taken for granted thatthecontracting parties intend something reasonable andsomething not inconsistent withgenerally recognizedprinciples ofInternational Law, norwithprevious treaty obligations towards third States. If, therefore, the meaning ofa treaty is ambiguous, the reasonablemeaning is to bepreferred to the unreasonable, the morereasonable totheless reasonablex x x .”[53] Verily, as argued by petitioner, sending to persons sought tobe extradited a noticeoftherequest for their arrest andsetting it for hearing atsomefuturedatewouldgivethem ampleopportunityto prepareandexecute an escape. NeithertheTreatynor the Lawcould have intendedthat consequence, for the very purposeofboth wouldhave been defeatedby theescape ofthe accused fromtherequested state. 2. On the Basisof the Constitution Even Section2 ofArticleIII ofour Constitution, which is invoked by Jimenez, does not requirea noticeor a hearing before the issuanceofa warrant ofarrest. It provides: “Sec. 2. The rightofthepeople tobe secure intheir persons,houses, papers, andeffects against unreasonablesearches andseizures ofwhatevernatureand for any purpose shall beinviolable, and no search warrant orwarrantofarrest shall issueexceptuponprobable cause tobe determined personally by thejudge after examinationunder oath or affirmation ofthe complainantand thewitnesses hemay produce, and particularly describing theplaceto be searchedand thepersons orthings to beseized.” To determine probablecausefor theissuance ofarrest warrants, theConstitutionitselfrequires only the examination --under oathor affirmation--of complainants andthewitnesses they may produce. There is norequirement tonotify and hear the accused beforetheissuanceofwarrants ofarrest.
- 10. In Ho v.People[54] and inall the cases citedtherein, never was a judgerequiredto go totheextent of conducting a hearing justfor thepurposeofpersonally determining probablecausefor the issuanceof a warrant ofarrest. All werequired was thatthe“judgemusthave sufficient supporting documents upon which to makehis independent judgment,or atthevery least, upon which to verify thefindings oftheprosecutor as to theexistenceofprobablecause.”[55] In Webb v. De Leon,[56] the Courtcategorically stated thata judgewas not supposed to conducta hearing beforeissuing a warrantofarrest: “Again, we stress that beforeissuing warrants ofarrest, judges merely determinepersonally the probability, not thecertainty ofguilt ofanaccused. In doing so,judges donotconducta de novo hearing to determine the existence ofprobable cause. They justpersonally reviewtheinitial determinationofthe prosecutor finding a probablecauseto seeifitis supported by substantial evidence.” At most, in cases of clear insufficiency ofevidence onrecord, judges merely further examinecomplainants and theirwitnesses.[57] In thepresent case, validating the actofrespondent judge and instituting thepracticeofhearing theaccusedand his witnesses atthis earlystage would be discordant withtherationale for the entiresystem. Iftheaccused wereallowed to be heard and necessarily to presentevidenceduring the primafacie determinationfor theissuanceof a warrant of arrest, whatwould stop himfrom presenting his entireplethora ofdefenses atthis stage --if he so desires --in his effortto negatea prima facie finding? Such a procedure could convert thedetermination ofa prima facie caseinto a full-blown trialofthe entireproceedings and possibly maketrial ofthe main casesuperfluous. This scenario is also anathema to the summarynatureofextraditions. That the caseunder consideration is anextraditionand nota criminal actionis notsufficientto justify the adoptionofa setofprocedures moreprotectiveoftheaccused. Ifa different procedurewere calledfor at all, a more restrictive one --not theopposite--wouldbe justifiedin viewof respondent’s demonstratedpredisposition toflee. Since this is a matter offirst impression,we deem itwiseto restatetheproper procedure: Upon receipt of a petition for extradition and its supporting documents,thejudgemuststudythem and make, as soon as possible, a primafacie finding whether (a) they aresufficient inform and substance,(b) they show compliancewith the Extradition Treaty and Law, and (c) theperson sought is extraditable. At his discretion, thejudgemay requirethesubmission offurther documentation or maypersonally examinetheaffiants and witnesses ofthe petitioner. If, in spite of this study and examination, no prima facie finding[58] is possible, the petitionmay bedismissed at the discretion ofthejudge. On the other hand, ifthepresenceofa prima facie caseis determined,then the magistrate must immediately issuea warrant for the arrest oftheextraditee,who is at the sametime summoned to answer thepetition andto appear at scheduled summary hearings. Priorto theissuanceofthe warrant, thejudge must not inform ornotify thepotential extraditeeofthependency ofthe petition, lest the latter begiven the opportunity to escapeand frustratetheproceedings. In our opinion, the foregoing procedurewill“best serve the ends ofjustice”in extradition cases. Second Substantive Issue: Is Respondent Entitled to Bail? Article III,Section 13oftheConstitution, is worded as follows: “Art. III, Sec. 13. Allpersons, except those charged with offenses punishableby reclusion perpetua when evidenceof guilt is strong, shall,before conviction, bebailableby sufficient sureties,or bereleased on recognizance as may be provided by law. The right tobailshallnot beimpairedeven whenthe privilegeof thewritofhabeas corpus is suspended. Excessivebailshallnotbe required.” RespondentMarkB. Jimenez maintains that this constitutionalprovision secures theright tobail ofall persons, including thosesoughtto beextradited. Supposedly, theonlyexceptions arethe ones charged with offenses punishable withreclusion perpetua, when evidenceofguilt is strong. He also alleges therelevance tothepresent caseofSection4[59] ofRule 114ofthe Rules of Court which, insofaras practicable andconsistentwith thesummary natureof extradition proceedings, shall also apply according to Section9 ofPD 1069. On the other hand, petitionerclaims thatthereis no provision in thePhilippineConstitutiongranting the right to bail to a person who is the subjectofan extradition request andarrestwarrant. Extradition Different from Ordinary Criminal Proceedings We agree withpetitioner. As suggested by theuseofthe word “conviction,”theconstitutional provision on bail quoted above, as wellas Section 4 ofRule 114ofthe Rules of Court, applies only when a personhas been arrested anddetainedfor violation ofPhilippinecriminallaws. It does not apply to extraditionproceedings,becauseextraditioncourts do not render judgments of conviction or acquittal. Moreover, theconstitutionalright to bail “flows fromthepresumptionofinnocence in favor ofevery accused who should not besubjected totheloss offreedomas thereafter hewould beentitledto acquittal, unless his guilt beproved beyond reasonabledoubt.”[60] It follows thattheconstitutional provision on bail willnotapplyto a caselike extradition,wherethepresumptionofinnocence is not at issue. The provision in the Constitution stating thatthe“rightto bailshallnotbe impaired evenwhen the privilegeofthewritof habeas corpus is suspended”does notdetractfrom the rulethatthe constitutional right tobailis availableonly in criminal proceedings. It mustbe noted that the suspensionofthe privilegeofthewritofhabeas corpus finds application“only topersons judicially charged for rebellion or offenses inherentin or directlyconnected withinvasion.”[61] Hence, the second sentence intheconstitutionalprovision on bail merely emphasizes theright tobailin criminal proceedings for theaforementionedoffenses. It cannot betaken tomeanthat therightis availableeven inextraditionproceedings that are not criminalin nature. That the offenses for which Jimenez is sought to beextraditedarebailablein the United States is not an argumentto grant him onein thepresent case. To stress, extradition proceedings are separate and distinct fromthetrial for the offenses for whichheis charged. He should apply for bail before the courts trying the criminal cases against him, not beforetheextraditioncourt. No ViolationofDueProcess RespondentJimenez cites the foreigncase Paretti[62] in arguing that, constitutionally, “[n]o one shall be deprivedofx x x liberty x x x without due process oflaw.” Contrary tohis contention, his detentionprior to theconclusion oftheextraditionproceedings does not amount to a violationofhis right to due process. Weiterate thefamiliar doctrine that theessence ofdue process is theopportunity tobeheard[63] but, at thesame time,point out thatthedoctrine does not always call for a prioropportunity tobeheard.[64] Where the circumstances --such as those present inan extradition case -- callfor it, a subsequent opportunity to beheard is enough.[65] In thepresent case, respondentwill begiven full opportunity to beheard subsequently, when the extraditioncourt hears thePetitionfor Extradition. Hence, thereis no violation ofhis right to due process andfundamentalfairness. Contrary tothecontentionofJimenez, wefindno arbitrariness, either, intheimmediatedeprivation of his liberty prior to his being heard.Thathis arrest and detention willnotbe arbitrary is sufficiently ensuredby (1) theDOJ’s filing in courtthePetition withits supporting documents after a determinationthat the extradition requestmeets the requirements ofthelaw and therelevant treaty; (2) theextraditionjudge’s independent prima faciedeterminationthat his arrestwill best serve theends ofjusticebeforetheissuance ofa warrantfor his arrest; and (3) his opportunity, once he is under the court’s custody, to apply for bail as anexceptionto theno-initial-bail rule. It is also worth noting thatbeforetheUS governmentrequested the extradition ofrespondent, proceedings had already beenconducted inthat country. But becausehe left the jurisdictionof the requesting statebefore thoseproceedings could becompleted, itwas hinderedfrom continuing with the due processes prescribed underits laws. His invocationofdue process now has thus become hollow. He alreadyhadthatopportunity intherequesting state; yet, instead of taking it, heran away. In this light, would itbe proper and just for the governmentto increase therisk ofviolating its treaty obligations inorder toaccord RespondentJimenez his personalliberty in thespan oftimethat it takes to resolvethePetition for Extradition? His supposed immediatedeprivation ofliberty without thedueprocess that hehad previously shunned pales againstthegovernment’s interest in fulfilling its Extradition Treaty obligations and in cooperating withtheworld communityin the suppression ofcrime. Indeed, “[c]onstitutionalliberties donot existin a vacuum; the due process rights accorded to individuals must becarefully balancedagainst exigentand palpable government interests.”[66]
- 11. Too, we cannotallow our country tobe a havenfor fugitives, cowards andweaklings who,instead of facing the consequences oftheir actions, chooseto runandhide. Hence, it would not begood policy to increase the risk ofviolating ourtreaty obligations if, through overprotection or excessively liberaltreatment, persons sought to beextradited areableto evadearrestor escape from our custody. In the absence ofany provision--in the Constitution,thelaw or thetreaty -- expressly guaranteeing theright tobailin extradition proceedings, adopting thepracticeofnot granting them bail,as a generalrule, would bea step towards deterring fugitives from coming to the Philippines to hidefrom orevadetheir prosecutors. The denialof bailas a matter ofcourse in extradition cases falls intoplace withand gives lifeto Article 14[67] of the Treaty, since this practicewouldencourage theaccused tovoluntarily surrender to the requesting stateto cutshorttheirdetentionhere. Likewise, their detention pending the resolutionof extradition proceedings wouldfall into placewith the emphasis oftheExtradition Law on the summary natureofextraditioncases and the need for their speedy disposition. Exceptionsto the “No Bail”Rule The rule, we repeat,is that bail is not a matter ofright inextraditioncases. However,thejudiciaryhas the constitutional duty tocurbgrave abuseofdiscretion[68] andtyranny, as well as thepower to promulgate rules to protectand enforce constitutionalrights.[69] Furthermore,we believethat the right to due process is broad enough toincludethegrant ofbasicfairness to extraditees. Indeed, the right to dueprocess extends to the “life, liberty or property” of every person. It is “dynamic and resilient,adaptableto everysituation calling for its application.”[70] Accordingly andto best serve the ends ofjustice,we believeand sohold that, aftera potential extraditee has beenarrested or placed under thecustodyofthe law, bail may beapplied for and granted as an exception, only upona clearandconvincing showing (1) that, oncegrantedbail, the applicant willnot bea flightrisk or a danger to thecommunity; and (2) thatthereexist special, humanitarianandcompelling circumstances[71]including,as a matter ofreciprocity,thosecited by the highest courtin therequesting statewhen itgrants provisionallibertyin extradition cases therein. Since this exception has no express or specific statutory basis, andsince itis derivedessentially from general principles ofjustice andfairness,theapplicant bears theburden ofproving theabovetwo- tiered requirementwith clarity, precisionandemphaticforcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from thepresidential power to conduct foreignrelations. In its barestconcept, itpartakes ofthenatureofpolice assistanceamongststates,whichis not normallya judicialprerogative. Hence,anyintrusion by the courts into the exercise ofthis powershould becharacterizedby caution, so thatthevital internationaland bilateralinterests ofour country willnot beunreasonably impeded or compromised. In short,whilethis Court is ever protective of“thesporting idea offair play,”italso recognizes thelimits ofits own prerogatives and the need tofulfill internationalobligations. Along this line, Jimenez contends that therearespecialcircumstances that arecompelling enough for the Court to granthis request for provisional releaseon bail. Wehave carefullyexaminedthese circumstances and shall now discuss them. 1. Alleged Disenfranchisement While his extradition was pending, RespondentJimenez was electedas a member oftheHouseof Representatives. On thatbasis, heclaims thathis detention willdisenfranchise his Manila district of 600,000residents. We are not persuaded. In People v. Jalosjos,[72] the Courthas already debunked thedisenfranchisement argument whenit ruled thus: “When thevoters of his districtelected theaccused-appellantto Congress,they did sowith full awareness of thelimitations onhis freedom ofaction. They did sowith the knowledge that he could achieveonly such legislativeresults which hecouldaccomplishwithin theconfines of prison. To give a more drasticillustration, ifvoters electa personwith fullknowledgethathe is suffering from a terminal illness,they do so knowing thatat anytime,he may nolongerservehis full term in office. “In the ultimate analysis, the issue beforeus boils down toa questionofconstitutional equalprotection. “The Constitution guarantees: ‘x x x nor shallany person bedeniedtheequal protection oflaws.’ This simply means thatall persons similarly situated shallbetreated alike bothin rights enjoyedand responsibilities imposed. Theorgans ofgovernment may notshow any undue favoritism or hostility toany person. Neither partialitynor prejudiceshallbedisplayed. “Does being an electiveofficialresult in a substantialdistinctionthat allows differenttreatment? Is being a Congressman a substantial differentiationwhichremoves theaccused-appellant as a prisoner from the sameclass as allpersons validly confinedunder law? “The performanceoflegitimate and even essential duties by publicofficers has neverbeen an excuse to free a person validly [from]prison. The duties imposed by the ‘mandate ofthe people’ are multifarious. The accused-appellant asserts thatthedutyto legislateranks highestin the hierarchy ofgovernment. The accused-appellant is only one of250 members oftheHouseof Representatives, not tomentionthe24 members oftheSenate,charged withtheduties of legislation. Congress continues tofunction wellin thephysical absence ofoneor a few ofits members. Depending ontheexigencyof Government thathas tobeaddressed,thePresident or the SupremeCourt canalso bedeemedthehighestfor that particular duty. The importanceofa function depends on theneed for its exercise. The duty ofa motherto nurseher infant is most compelling under the lawofnature. Adoctor withuniqueskills has theduty to save the lives of those with a particular affliction. An electivegovernor has to serveprovincialconstituents. A police officer must maintain peaceand order. Never has thecall ofa particular duty lifted a prisoner into a different classification fromthoseothers who arevalidlyrestrainedby law. “Astrict scrutiny ofclassifications is essential lest[,]wittingly or otherwise,insidious discriminations are made in favor ofor againstgroups ortypes ofindividuals. “The Court cannot validate badges ofinequality. The necessities imposedby public welfaremay justify exerciseofgovernmentauthority toregulateevenifthereby certain groups may plausibly assert that their interests are disregarded. “We, therefore,find that electionto thepositionofCongressman is not a reasonableclassification in criminal lawenforcement. The functions andduties ofthe office arenotsubstantialdistinctions which lift him fromtheclass ofprisoners interrupted intheirfreedomand restrictedin liberty of movement. Lawfularrestandconfinement aregermaneto thepurposes ofthelaw and apply to all those belonging tothesameclass.”[73] It must be noted thateven beforeprivaterespondent ranfor andwona congressional seatin Manila, it was alreadyofpublicknowledgethat theUnitedStates was requesting his extradition. Hence, his constituents wereor shouldhave been preparedfor theconsequences oftheextraditioncase against their representative, including his detentionpending the finalresolution ofthe case. Premises consideredand inline withJalosjos,we areconstrained to ruleagainst his claim that his election topublicofficeis by itselfa compelling reason togrant him bail. 2. AnticipatedDelay RespondentJimenez further contends thatbecausetheextraditionproceedings arelengthy, itwould be unfair to confinehimduring thependency ofthecase. Again weare not convinced. We must emphasizethat extradition cases aresummary innature. They are resorted to merely to determinewhether theextradition petitionand its annexes conform to theExtraditionTreaty,not to determineguilt orinnocence. Neitheris it,as a rule, intendedto address issues relevant tothe constitutional rights available totheaccused in a criminal action. We are not overruling thepossibility thatpetitioner may, in bad faith, unduly delay the proceedings. This is quiteanothermatter that is notatissuehere.Thus, any furtherdiscussion ofthis point would be merely anticipatoryandacademic. However, ifthe delayis dueto maneuverings ofrespondent,with allthemorereason wouldthe grant ofbail not bejustified. Giving premium todelay by considering it as a specialcircumstancefor the grant ofbailwould betantamountto giving him the power to grant bailto himself. It would also encourage him tostretchout andunreasonablydelay theextraditionproceedings even more. This we cannotallow. 3. Not a Flight Risk? Jimenez further claims that heis not a flight risk. To supportthis claim,he stresses thathelearned of the extradition requestin June1999; yet, hehas not fled the country. True,he has notactually fled during thepreliminary stages oftherequest for his extradition. Yet, this fact cannotbe taken to mean thathe willnotfleeas the process moves forwardto its conclusion, as he hears the footsteps oftherequesting governmentinching closerand closer. Thathe has notyetfledfrom
- 12. the Philippines cannotbetaken tomeanthat hewillstand his ground and stillbe withinreach of our governmentifandwhenit matters; thatis, upon theresolutionofthe Petitionfor Extradition. In any event, itis settled thatbailmay beapplied for and granted by the trial court at anytimeafterthe applicant has been takeninto custodyandprior tojudgment,even after bailhas been previously denied. In the presentcase, theextraditioncourt may continue hearing evidenceon the application for bail, which may begranted in accordancewith the guidelines in this Decision. BriefRefutation ofDissents The proposalto remandthis caseto the extradition court, webelieve, is totally unnecessary; infact, itis a cop-out. The parties --in particular, RespondentJimenez --have been given morethan sufficient opportunity both by thetrialcourt andthis Courtto discuss fully and exhaustively private respondent’s claimto bail. As already stated, theRTC setfor hearing not only petitioner’s application for anarrestwarrant, but also privaterespondent’s prayer for temporary liberty. Thereafter requiredby theRTC were memoranda on the arrest,then positionpapers on the application for bail, both ofwhich wereseparately filed bytheparties. This Court has meticulously poredover thePetition, theComment, theReply, thelengthy Memoranda and the Position Papers ofboth parties. Additionally, it has patiently heard them inOral Arguments,a procedurenot normally observed inthegreatmajority ofcases in this Tribunal. Moreover,after theMemos hadbeen submitted, theparties --particularly thepotential extraditee --have bombarded this Court withadditionalpleadings --entitled“Manifestations” by both parties and “Counter-Manifestation”by privaterespondent --in whichthemaintopicwas Mr. Jimenez’s plea for bail. A remandwould mean that this long, tedious process would berepeated inits entirety. Thetrialcourt would again hear factual and evidentiary matters. Be itnoted, however, that, in allhis voluminous pleadings and verbal propositions, privaterespondenthas not askedfor a remand. Evidently,even he realizes thatthereis absolutelyno needto rehear factualmatters. Indeed, theinadequacy lies not in the factualpresentationofMr. Jimenez. Rather,it lies in his legalarguments. Remanding the casewillnot solvethis utter lack ofpersuasionand strength inhis legal reasoning. In short, this Court --as shown bythis Decision and thespirited Concurring,SeparateandDissenting Opinions written by the learnedjustices themselves -- has exhaustively deliberated andcarefully passed upon all relevant questions in this case. Thus,a remandwill not serve any usefulpurpose; it will onlyfurther delay these already very delayed proceedings,[74] which ourExtraditionLaw requires to be summary incharacter. What weneed now is prudentanddeliberatespeed, not unnecessary and convoluted delay. What is needed is a firm decisionon the merits, not a circuitous cop-out. Then, thereis alsothesuggestion thatthis Courtis allegedly “disregarding basic freedoms when a case is one of extradition.” We believethat this charge is not only baseless,butalsounfair. Sufficeit to say that, in its lengthand breath, this Decisionhas takenspecialcognizance oftherights to due process and fundamentalfairness ofpotentialextraditees. Summation As we draw to a close,it is nowtimeto summarizeand stress theseten points: 1. The ultimate purpose ofextradition proceedings is to determinewhether therequest expressed in the petition, supported by its annexes andtheevidence that may beadduced during thehearing of the petition, complies with the Extradition Treaty and Law; and whether thepersonsoughtis extraditable. The proceedings areintendedmerely to assist the requesting state in bringing the accused --or thefugitivewho has illegally escaped --backto its territory,sothat the criminal process may proceedtherein. 2. By entering into an extradition treaty,thePhilippines is deemed to have reposed its trustin the reliabilityor soundness of the legalandjudicialsystemofits treaty partner,as wellas in theability and the willingness ofthelatterto grantbasic rights totheaccusedin the pending criminal case therein. 3. By naturethen, extradition proceedings are not equivalentto a criminal caseinwhich guiltor innocence is determined. Consequently, an extradition caseis not one in whichtheconstitutional rights of the accused are necessarily available. It is moreakin, ifatall,to a court’s requestto police authorities for thearrest ofthe accused whois atlargeor has escaped detention orjumped bail. Having onceescapedthejurisdiction oftherequesting state, the reasonableprima facie presumption is thatthepersonwould escapeagain ifgiven the opportunity. 4. Immediately upon receipt ofthepetitionfor extradition andits supporting documents, thejudgeshall make a prima faciefinding whether the petitionis sufficient inform and substance,whether it complies withtheExtraditionTreatyand Law,andwhetherthe person sought is extraditable. The magistrate has discretionto requirethepetitioner tosubmit further documentation, orto personally examinetheaffiants or witnesses. Ifconvinced thata prima facie caseexists, thejudge immediately issues a warrant for the arrest ofthepotential extraditee andsummons himor her to answer andto appear at scheduledhearings on thepetition. 5. After being taken intocustody, potentialextraditees may apply for bail. Since the applicants havea history ofabsconding, theyhave the burdenofshowing that (a) thereis noflight risk andno danger to thecommunity;and(b) there existspecial, humanitarian orcompelling circumstances. The grounds usedby thehighestcourt intherequesting statefor thegrantofbail therein maybe considered, under theprincipleofreciprocity as a specialcircumstance. In extradition cases, bailis nota matter ofright; itis subjectto judicialdiscretionin the context ofthe peculiar facts ofeach case. 6. Potential extraditees areentitled totherights to due process and to fundamental fairness. Due process does notalways callfor a prioropportunity tobe heard. Asubsequent opportunity is sufficientdueto the flightrisk involved. Indeed,availableduring the hearings on the petitionand the answeris thefull chance tobe heardand to enjoy fundamentalfairness that is compatible with the summary nature ofextradition. 7. This Court willalways remain a protector ofhumanrights, a bastionofliberty, a bulwark of democracy andtheconscienceofsociety. But it is alsowell awareofthelimitations ofits authority and oftheneedfor respect for theprerogatives oftheother co-equaland co- independent organs ofgovernment. 8. We realizethat extradition is essentially an executive,nota judicial, responsibility arising outofthe presidentialpower toconduct foreignrelations andto implement treaties. Thus, theExecutive Department ofgovernment has broaddiscretion in its duty andpower ofimplementation. 9. On the otherhand,courts merely perform oversightfunctions and exercisereviewauthority to prevent or excisegraveabuseand tyranny.They should notallow contortions,delays and “over- due process” every littlestepoftheway, lest these summary extraditionproceedings becomenot only inutilebut alsosources ofinternational embarrassment due toour inability tocomply in good faith with a treaty partner’s simple requestto return a fugitive. Worse, our country should not be converted into a dubious havenwherefugitives and escapees can unreasonably delay,mummify, mock, frustrate,checkmateand defeatthequest for bilateraljustice andinternational cooperation. 10. At bottom, extraditionproceedingsshould beconductedwith all deliberate speed todetermine compliance with theExtradition Treaty and Law; and, whilesafeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose. WHEREFORE, the Petitionis GRANTED. The assailed RTC Order datedMay 23, 2001 is hereby declared NULL andVOID, while the challenged Order datedJuly 3, 2001 is SETASIDE insofar as it granted bailto RespondentMarkJimenez. The bailbondposted byprivaterespondent is CANCELLED. The Regional TrialCourt ofManila is directed toconduct the extradition proceedings before it, withall deliberate speed pursuant to thespiritandtheletterofour Extradition Treaty withtheUnited States as wellas our ExtraditionLaw. No costs. SO ORDERED. Republicofthe Philippines SUPREMECOURT Manila EN BANC G.R. No. 153675 April 19, 2007 GOVERNMENTOF HONG KONG SPECIAL ADMINISTRATIVEREGION, representedby the Philippine Department ofJustice,Petitioner,
- 13. vs. HON. FELIXBERTO T.OLALIA, JR. and JUAN ANTONIOMUÑOZ, Respondents. D E C I S I O N SANDOVAL-GUTIERREZ, J.: For our resolutionis theinstant Petitionfor Certiorariunder Rule 65ofthe1997Rules ofCivil Procedure, as amended,seeking tonullify thetwoOrders ofthe RegionalTrial Court(RTC), Branch 8, Manila (presided by respondentJudge Felixberto T. Olalia, Jr.) issued inCivilCaseNo. 99-95773. These are: (1) theOrder dated December 20, 2001 allowing Juan Antonio Muñoz, private respondent, topost bail; and(2) the Orderdated April 10, 2002 denying the motionto vacatethe said Order of December 20, 2001 filedby theGovernmentofHong Kong Special Administrative Region, representedby thePhilippineDepartment ofJustice(DOJ), petitioner.The petitionalleges that both Orders wereissued by respondentjudge withgraveabuseofdiscretion amounting to lack or excess ofjurisdictionas thereis no provision in theConstitutiongranting bailto a potential extraditee. The facts are: On January30,1995, theRepublic ofthePhilippines andthethen British Crown Colony ofHong Kong signed an"Agreement for theSurrenderofAccused and ConvictedPersons."It took effecton June 20, 1997. On July 1, 1997, Hong Kong reverted backto thePeople’s Republic ofChina and becametheHong Kong SpecialAdministrativeRegion. Privaterespondent Muñoz was chargedbefore theHong Kong Court withthree(3) counts oftheoffense of "accepting anadvantageas agent,"inviolationofSection 9 (1) (a) ofthePreventionofBribery Ordinance, Cap. 201 ofHong Kong.He alsofaces seven (7) counts oftheoffenseofconspiracy to defraud, penalized by the common lawofHong Kong. On August23,1997and October 25, 1999, warrants of arrest wereissued against him.Ifconvicted, hefaces a jailterm ofseven (7) to fourteen (14) years for eachcharge. On September 13, 1999, theDOJ receivedfrom the Hong Kong Department ofJusticea request for the provisional arrest ofprivaterespondent.The DOJthen forwarded the requestto theNational Bureau of Investigation (NBI) which, in turn, filed withtheRTC ofManila,Branch19an application for the provisional arrest ofprivaterespondent. On September 23, 1999, theRTC, Branch 19, Manila issued an Order ofArrestagainst private respondent. That sameday, the NBI agents arrested anddetainedhim. On October 14,1999, privaterespondent filedwith the CourtofAppeals a petition for certiorari, prohibitionandmandamus withapplication for preliminary mandatory injunction and/orwrit ofhabeas corpus questioning thevalidity oftheOrder ofArrest. On November 9,1999, theCourt ofAppeals renderedits Decision declaring theOrder ofArrestvoid. On November 12, 1999,theDOJ filedwith this Court a petition for review oncertiorari, docketedas G.R. No. 140520, praying that the Decision oftheCourt ofAppeals bereversed. On December 18, 2000, this Courtrendered a Decision granting thepetition oftheDOJand sustaining the validity of theOrderofArrest againstprivaterespondent.The Decision became finaland executory on April 10,2001. Meanwhile,as early as November 22, 1999,petitioner Hong Kong SpecialAdministrativeRegionfiled with the RTC of Manila a petition for theextradition ofprivaterespondent,docketedas CivilCase No. 99-95733,raffled offto Branch10,presided byJudge Ricardo Bernardo, Jr. For his part,private respondentfiled,in thesame case,-apetitionfor bail whichwas opposed by petitioner. After hearing, or onOctober 8, 2001,Judge Bernardo,Jr. issuedanOrderdenying thepetition for bail, holding that there is noPhilippine lawgranting bail inextraditioncases and thatprivate respondentis a high "flight risk." On October 22,2001, JudgeBernardo, Jr.inhibitedhimselffrom furtherhearing Civil Case No. 99-95733. It was then raffledoffto Branch8 presidedby respondent judge. On October 30,2001, privaterespondent fileda motion for reconsiderationofthe Orderdenying his application for bail. This was grantedby respondent judgein an Order datedDecember 20, 2001 allowing privaterespondent to post bail, thus: In conclusion, this Courtwill not contributeto accused’s further erosion ofcivilliberties.The petition for bail is granted subject tothefollowing conditions: 1. Bail is set at Php750,000.00 incash with the condition thataccused herebyundertakes that hewill appearandanswer theissues raisedin theseproceedings andwill at alltimes holdhimself amenableto orders and processes ofthis Court, willfurtherappearfor judgment.Ifaccused fails in this undertaking,thecash bond willbe forfeitedin favor ofthe government; 2. Accusedmust surrender his validpassportto this Court; 3. The Department ofJustice is givenimmediate noticeand discretionoffiling its ownmotion for hold departure order beforethis Court even in extradition proceeding; and 4. Accusedis requiredto report tothegovernment prosecutors handling this case orifthey sodesireto the nearest office,atany time andday oftheweek; and iftheyfurther desire,manifest beforethis Court to requirethatall the assets ofaccused, real andpersonal, befiled with this Courtsoonest, with the condition that iftheaccusedflees from his undertaking, said assets beforfeitedin favor ofthe governmentand thatthecorresponding lien/annotation benoted therein accordingly. SO ORDERED. On December 21, 2001, petitioner filed an urgent motion to vacatetheaboveOrder, but itwas denied by respondent judge in his Orderdated April 10, 2002. Hence, theinstantpetition. Petitioneralleged thatthe trial courtcommittedgraveabuseofdiscretion amounting to lack or excess ofjurisdictionin admitting privaterespondent tobail; that thereis nothing in theConstitution or statutory lawproviding that a potentialextraditeehas a right to bail, the right being limitedsolely tocriminal proceedings. In his comment on the petition, privaterespondentmaintainedthattherightto bail guaranteedunder the Bill ofRights extends to a prospectiveextraditee; and thatextraditionis a harshprocess resulting ina prolonged deprivationofone’s liberty. Section 13, ArticleIII oftheConstitutionprovides thattheright tobailshall not beimpaired, thus: Sec. 13. All persons, exceptthosechargedwithoffenses punishableby reclusionperpetua when evidenceofguilt is strong, shall,before conviction, bebailableby sufficient sureties,or bereleased on recognizance as may be provided by law. Therightto bail shallnotbe impaired evenwhen the privilegeofthewritof habeas corpus is suspended.Excessivebailshall not berequired. Jurisprudence onextraditionis but in its infancyin this jurisdiction. Nonetheless, this is notthefirst time that this Court has anoccasionto resolve the question ofwhethera prospectiveextraditeemay be granted bail. In Government ofUnited States ofAmericav. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. MarioBatacan Crespo,1 this Court, speaking through thenAssociate JusticeArtemio V. Panganiban, later ChiefJustice,held thatthe constitutional provisionon baildoes notapplyto extraditionproceedings.It is "availableonly in criminal proceedings,"thus: x x x. As suggestedby theuse oftheword "conviction,"theconstitutionalprovision on bail quoted above, as wellas Section4, Rule114 oftheRules ofCourt,applies onlywhen a person has been arrested anddetainedfor violationofPhilippinecriminallaws. It does not apply to extradition proceedings becauseextradition courts donot renderjudgments ofconvictionor acquittal. Moreover, theconstitutionalright to bail "flows from thepresumptionofinnocencein favor ofevery accused who should not be subjected totheloss offreedomas thereafter hewould beentitledto acquittal, unless his guilt beproved beyond reasonabledoubt"(De la Camarav. Enage, 41SCRA 1, 6, September17,1971, per Fernando, J., laterCJ). Itfollows thattheconstitutional provision on bail willnotapply to a caselikeextradition, wherethepresumptionofinnocenceis not at issue. The provision in theConstitution stating thatthe"rightto bail shallnotbe impaired evenwhen the privilegeofthewritof habeas corpus is suspended"does notdetract from therulethatthe constitutional right tobailis availableonly in criminal proceedings. It must benotedthat the suspensionofthe privilegeofthewritof habeas corpusfinds application "only to persons judicially charged for rebellion or offenses inherentin or directlyconnected withinvasion"(Sec. 18, Art.VIII, Constitution).Hence, thesecondsentenceintheconstitutional provisionon bail merely emphasizes therightto bail incriminal proceedings for the aforementioned offenses. Itcannot be taken to mean thattheright is availableevenin extradition proceedings that arenotcriminal in nature. At first glance,theaboveruling applies squarely toprivaterespondent’s case. However,this Court cannot ignorethefollowing trends in internationallaw: (1) the growing importance ofthe
- 14. individualperson in publicinternationallaw who, inthe20th century, has gradually attainedglobal recognition;(2) the higher valuenow being given tohumanrights in the internationalsphere; (3) the corresponding duty ofcountries toobservethese universalhumanrights in fulfilling their treaty obligations; and (4) theduty ofthis Courtto balancetherights oftheindividual under our fundamental law, on one hand, andthe law on extradition,on theother. The modern trend inpublic international law isthe primacy placedon theworth oftheindividual person and the sanctity ofhuman rights.Slowly,therecognitionthat theindividualperson may properly bea subjectofinternationallaw is nowtaking root. The vulnerabledoctrine that the subjects of internationallaw are limitedonly to states was dramaticallyeroded towards the second half of the past century. For one,theNuremberg and Tokyo trials after WorldWar II resulted intheunprecedentedspectacleofindividualdefendants for acts characterized as violations of thelaws ofwar, crimes againstpeace,and crimes against humanity. Recently,under the Nuremberg principle,Serbian leaders havebeenpersecutedfor war crimes and crimes against humanity committedin the formerYugoslavia. Thesesignificant events showthat the individual person is nowa valid subjectofinternationallaw. On a more positivenote,alsoafter World War II, both international organizations and states gave recognition andimportance tohumanrights. Thus, onDecember10,1948, theUnited Nations GeneralAssembly adopted the Universal Declaration ofHumanRights in which theright tolife, liberty and alltheotherfundamentalrights ofevery person wereproclaimed. While not a treaty, theprinciplescontained in thesaid Declaration are now recognizedascustomarily binding upon the membersofthe international community. Thus,in Mejoffv. Director of Prisons,2 thisCourt,in granting bail to aprospectivedeportee, held that underthe Constitution,3 theprinciples set forth inthat Declarationare partofthelaw oftheland. In 1966, the UN GeneralAssembly also adopted theInternationalCovenanton Civiland PoliticalRights which the Philippines signed and ratified.Fundamentalamong therights enshrined therein are the rights of every person tolife, liberty, and due process. The Philippines,along withtheothermembers ofthefamily ofnations, committed to upholdthe fundamental human rights as well as valuetheworthanddignity ofevery person. This commitmentis enshrined in Section II,ArticleII ofourConstitutionwhich provides: "The State values thedignity ofevery human personand guarantees fullrespect for human rights."The Philippines, therefore,has the responsibility ofprotecting and promoting the rightofevery person to liberty anddueprocess,ensuring that thosedetainedor arrested can participatein the proceedings beforea court, toenableit todecide without delay onthelegality ofthedetention and order their release ifjustified. In other words, thePhilippineauthorities areunderobligation to make availableto every person under detention suchremedies whichsafeguard their fundamental right toliberty.Theseremedies includetheright tobe admitted tobail. Whilethis Court in Purgananlimited theexercise oftheright tobailto criminalproceedings,however,in light of the various internationaltreaties giving recognition andprotectionto human rights, particularly the right to life and liberty, a reexaminationofthis Court’s ruling inPurganan is inorder. First, we notethat theexerciseoftheState’s power todeprivean individualofhis libertyis not necessarily limitedto criminalproceedings.Respondents in administrative proceedings, such as deportation and quarantine,4 havelikewisebeendetained. Second, to limit bailto criminal proceedings would betocloseoureyes to ourjurisprudentialhistory. Philippinejurisprudencehas not limited theexerciseoftherightto bail to criminal proceedings only. This Court has admittedto bail persons who arenotinvolved in criminalproceedings.In fact, bail has beenallowed inthis jurisdictionto persons in detention during thependency of administrativeproceedings, taking intocognizance the obligationofthe Philippines under internationalconventions touphold human rights. The 1909 case of US v. Go-Sioco5 is illustrative. Inthis case, a Chinesefacing deportationfor failureto secure the necessary certificateofregistration was granted bail pending his appeal.After noting that the prospectivedeporteehadcommittedno crime,theCourt opined that "To refusehimbail is to treat him as a person who has committedthemost serious crimeknown tolaw;"and that while deportation is not a criminal proceeding, some ofthe machinery used "is themachinery of criminal law."Thus, theprovisions relating to bail was applied todeportation proceedings. In Mejoffv. Director ofPrisons6 andChirskoffv. CommissionofImmigration,7 this Courtruledthat foreign nationals against whomno formalcriminalcharges have been filedmay bereleased onbail pending thefinality ofan order ofdeportation.As previously stated,theCourt in Mejoff relied upon the Universaldeclaration ofHuman Rights insustaining the detainee’s right tobail. Ifbail can begrantedin deportation cases,we seeno justification whyit shouldnot alsobe allowedin extradition cases. Likewise, considering that theUniversalDeclaration ofHuman Rights applies to deportation cases,thereis no reason why it cannotbeinvokedin extradition cases. After all, both are administrativeproceedings wheretheinnocenceor guilt ofthe persondetainedis notin issue. Clearly,theright ofa prospectiveextraditeetoapplyfor bail in this jurisdiction mustbe viewedin the light ofthe various treaty obligations ofthePhilippines concerning respect for the promotionand protection ofhuman rights.Under thesetreaties, the presumption lies in favor ofhumanliberty. Thus, the Philippines shouldseeto it that the right to libertyofevery individual is not impaired. Section 2(a) ofPresidentialDecree (P.D.) No.1069 (ThePhilippine Extradition Law) defines "extradition" as "the removalofan accusedfrom the Philippines with the objectofplacing him at thedisposalof foreign authorities toenabletherequesting stateor governmentto hold him in connection with any criminal investigation directedagainst him or the execution ofa penaltyimposed on him under the penalor criminallaw oftherequesting stateor government." Extradition has thus beencharacterized as theright ofa foreignpower,created by treaty, todemand the surrender ofoneaccusedor convictedofa crimewithin its territorial jurisdiction, and the correlative duty oftheother stateto surrender himto the demanding state.8 It is not a criminal proceeding.9 Evenifthepotentialextraditeeis a criminal,an extradition proceeding is not by its nature criminal, for itis not punishment for a crime, even though suchpunishment may follow extradition.10 It is suigeneris, tracing its existencewholly to treaty obligations betweendifferent nations.11 It isnotatrial to determinetheguilt orinnocenceofthe potential extraditee.12 Nor is it a full-blown civilaction, butonethatis merely administrative in character.13 Its object is to prevent theescapeofa person accused or convicted ofa crime and to securehis return tothe state fromwhich hefled, for thepurpose oftrial orpunishment.14 But while extradition is nota criminal proceeding, itis characterizedby thefollowing: (a) it entails a deprivation ofliberty onthepart ofthe potentialextraditeeand(b) the meansemployedto attain the purpose ofextradition isalso "themachinery ofcriminal law." This is shown by Section 6 of P.D. No. 1069(The PhilippineExtraditionLaw) whichmandates the "immediatearrest and temporary detention ofthe accused"ifsuch"willbestservethe interest ofjustice."We further note thatSection 20allows the requesting state "incaseofurgency"to ask for the "provisional arrest ofthe accused, pending receiptofthe request for extradition;"andthatreleasefrom provisional arrest "shallnotprejudicere-arrest and extradition ofthe accused ifa requestfor extradition is receivedsubsequently." Obviously,anextraditionproceeding,whileostensiblyadministrative, bears all earmarks ofa criminal process. A potential extraditee may be subjectedto arrest,to aprolonged restraint ofliberty, and forced to transfer to the demanding state following theproceedings. "Temporary detention" may be a necessarystep in theprocess ofextradition,but the length oftimeofthedetention should bereasonable. Records showthatprivaterespondent was arrestedon September23, 1999, and remained incarcerated until December 20, 2001, whenthetrial courtordered his admissionto bail. In otherwords, he had been detainedfor over two (2)yearswithout having been convicted ofany crime. By any standard,suchan extended period ofdetention is a serious deprivationofhis fundamental rightto liberty. Infact, itwas this prolonged deprivationofliberty which prompted theextradition courtto grant him bail. While our extradition lawdoes not providefor thegrant ofbailto an extraditee,however,thereis no provision prohibiting himor her from filing a motion for bail,a right todueprocess under the Constitution. The applicable standard ofdueprocess, however,should not bethesame as that incriminal proceedings. Inthelatter, thestandard ofdueprocess is premised onthepresumption of innocence ofthe accused. As Purganancorrectly points out, it is from this major premisethat the ancillary presumptionin favor ofadmitting to bailarises.Bearing inmind the purpose of extradition proceedings, the premisebehind the issuanceofthearrestwarrant and the
- 15. "temporary detention"is thepossibilityofflightofthe potentialextraditee. This is basedon the assumptionthat such extraditeeis a fugitive fromjustice.15 Giventheforegoing, theprospective extraditee thus bears the onus probandi ofshowing that heor sheis not a flight risk andshould be granted bail. The time-honored principleof pactasuntservandademands that the Philippines honor its obligations under the Extradition Treaty itenteredinto with theHong Kong Special Administrative Region. Failure tocomply with theseobligations is a setbackin ourforeign relations and defeats the purpose of extradition. However, itdoes not necessarily mean that inkeeping with its treaty obligations,thePhilippines shoulddiminish a potential extraditee’s rights tolife, liberty, and due process. Moreso, wheretheserights are guaranteed, not only by our Constitution, but also by internationalconventions,to which thePhilippines is a party. Weshould not, therefore,deprivean extraditee of his rightto apply for bail, provided thata certainstandardfor thegrant is satisfactorily met. An extradition proceeding being sui generis,thestandardofproofrequired in granting ordenying bail can neitherbe theproofbeyond reasonabledoubt in criminalcases northestandardofproofof preponderance ofevidencein civil cases.Whileadministrativeincharacter, thestandardof substantialevidence used inadministrativecases cannotlikewiseapplygiven theobject of extradition lawwhichis to preventtheprospective extraditee fromfleeing ourjurisdiction. Inhis Separate Opinionin Purganan, then AssociateJustice,now ChiefJustice Reynato S. Puno, proposedthat a new standard whichhe termed "clear and convincing evidence"should beused in granting bail in extradition cases. According to him, this standard shouldbelower than proof beyond reasonabledoubtbut higher thanpreponderanceofevidence. Thepotential extraditee must proveby "clear and convincing evidence"thathe is not a flightrisk and will abidewith allthe orders and processes oftheextraditioncourt. In this case, there is noshowing thatprivaterespondent presentedevidence toshow that heis not a flight risk. Consequently, this case shouldbe remanded tothetrialcourtto determine whether private respondentmay begranted bail onthebasis of"clearand convincing evidence." WHEREFORE, we DISMISS the petition. This caseis REMANDED to the trialcourt todeterminewhether private respondentis entitledto bailon the basis of"clear andconvincing evidence."Ifnot, the trial court shouldorder the cancellationofhis bailbondand his immediate detention; and thereafter, conduct the extradition proceedings with dispatch. The Corfu ChannelCase(United Kingdom ofGreat Britain and NorthernIrelandv. People's Republic of Albania) From Wikipedia,thefreeencyclopedia The Corfu Channel Case (UnitedKingdomofGreat Britain and Northern Irelandv. People'sRepublicof Albania) was a casebrought against Albania by the UK,suing for compensation after, on22 October 1946, twoBritish destroyers hit sea-mines in Albanianwaters atthe straits ofCorfu, damaging them and killing naval personnel during the Corfu ChannelIncident. The InternationalCourt ofJustice ordered Albania topay theUK £843,947 incompensation. This was the firstcase brought beforetheICJ. [edit]Implications for InternationalLaw [edit]Decision The Corfu Channelcase established that states mustmeet a preponderanceoftheevidence standard to prevailbefore the ICJ. The Paquete Habana From Wikipedia,thefreeencyclopedia PaqueteHabana v. UnitedStates Supreme Court of theUnited States Argued November 7–8, 1899 DecidedJanuary 8, 1900 Full casename PaqueteHabana.; The Lola. Citations 175 U.S. 677(more) 20 S. Ct. 290; 44L. Ed.320; 1900U.S. LEXIS 1714 Prior history Appeals From the District Court ofthe United States for the Southern DistrictofFlorida Subsequenthistory None Holding Federalcourts couldlook to customary international lawbecauseit is an integratedpart ofAmerican law Court membership ChiefJustice MelvilleFuller AssociateJustices John M. Harlan · HoraceGray David J. Brewer · Henry B. Brown George Shiras, Jr. · EdwardD. White Rufus W. Peckham · JosephMcKenna Case opinions Majority Gray, joined byBrewer, Brown, Shiras, White, Peckham Dissent Fuller, joined by Harlan,McKenna PaqueteHabana.; The Lola,175 U.S. 677(1900),was a landmark United States SupremeCourt casethat reversed an earlier court decisionallowing thecapture offishing vessels under Prize (law).Its importancerests on thefact thatit integratedCustomary internationallaw withAmericanlaw, perhaps thequintessentialposition ofthosewhohold a monist perspective ofinternational law. Contents [hide] 1 Backgroundofthecase 2 The court's decision and merits 2.1 Fuller's dissent 3 See also 4 References [edit]Background ofthecase In April 1898twofishing vessels, the PaqueteHabana and theLola,separately left Cuban ports in Havana in orderto fish.The twovessels wereeventually capturedby US Navalvessels as partof Admiral WilliamT. Sampson's blockade ofCuba, whowas ordered to executetheblockade 'in pursuanceofthelaws oftheUnitedStates, and the lawofnations applicable tosuch cases.'The vessels were placed within Cuba's territorial waters at the onsetoftheSpanish-American War and then taken to Key West,where bothvessels wereeventually auctioned bythedistrict court. Both vessels were valuedunderthepriceof2000$(US) and werethus not originally thoughtto be exempt fromseizure. Admiral Sampson justifiedtheseizures by stating that most fishing vessels, flying under the Spanish banner weremanned byexcellent seamen, "liablefor furtherservice"as naval reserves, anasset that could eventually beused againstUS interests intheSpanish-American War. The owners ofthe vessels however madeanappeal to thecircuit courts, citing a long held tradition by nations ofexempting fishing vessels fromprize capture intimes ofwar. This "tradition", a primary exampleofcustomary international law,dates back froman order by HenryIV in 1403, andhas more or less been observedby a large majority ofStates eversince. At the time ofcaptureboth vessels hadno evidenceofaiding theenemy, and wereunaware ofthe US naval blockade.No arms were found onboard, and noattempts were made toeither run the blockadeor resist capture. [edit]The court's decision andmerits The United SupremeCourt, which cited lengthy legalprecedents establishedto supporttheexistenceof a customary international lawthat exempted fishing vessels fromprizecapture, dating all the way back to ancienttimes andoccuring repeatedly between Great Britain and France. In 1403,King Henry IV ofEngland issuedhis officers leavefishermanalone during times ofwar. Hethensigned a treaty with Francereaffirming this act between both parties. Againin 1521between Emperor Charles V andFrancis I ofFrancea treaty was assigned. This treatywas invokeddueto a desperate
- 16. rise in themarketsfor herring.With the war betweenthetwocountries raging on, fisherman dared not ventureoutto sea.Therefor,a treatywas necessary on bothaccounts to prevent starvation among those who relieduponcheap herring,namelythelower classes. Situations similar tothis continued to crop upthroughouthistory prior to the Paquetecase.Using this as a basis for customary law, the courtthen eventually foundthecaptureofbothvessels as "unlawful and without probablecause", reversed the District Court's decision, and ordered theproceeds of the auctionas wellas any profits made fromhercargo tobe restoredto the claimant, "with damages and costs". Nicaragua v.UnitedStates From Wikipedia,thefreeencyclopedia The Republic of Nicaragua v. The UnitedStates ofAmerica[1]was a 1984 caseofthe InternationalCourt of Justice(ICJ) inwhich the ICJ ruled infavorofNicaragua andagainst the UnitedStates and awarded reparations toNicaragua. TheICJ held thattheU.S. hadviolated internationallaw by supporting theContras intheirrebellionagainst the Nicaraguangovernment and bymining Nicaragua's harbors. TheUnited States refused toparticipate in theproceedings after the Court rejected its argumentthat the ICJ lacked jurisdiction tohear thecase. TheU.S. laterblocked enforcementofthe judgment by the UnitedNations Security Council and thereby prevented Nicaragua fromobtaining any actualcompensation.[2]The Nicaraguangovernment finally withdrew thecomplaintfrom the courtin September 1992(under thelater, post-FSLN, governmentof Violeta Chamorro), following a repealofthe lawrequiring thecountry toseek compensation.[3] The Court found inits verdictthat the UnitedStates was "inbreach ofits obligations under customary internationallaw not to useforceagainstanotherState", "not tointervenein its affairs", "notto violateits sovereignty", "notto interruptpeacefulmaritimecommerce", and"in breachofits obligations under Article XIX oftheTreaty ofFriendship, Commerce andNavigationbetweenthe Parties signedat Managua on21 January 1956." The Court had16 finaldecisions uponwhichit voted. In Statement 9, theCourt statedthat theU.S. encouragedhumanrights violations bytheContras by themanual entitledPsychological Operations in Guerrilla Warfare. However, this did notmakesuch acts attributable totheU.S.[4] Contents [hide] 1 Background 2 Arguments 2.1 Nicaragua 2.2 UnitedStates 3 Judgment 3.1 Findings 3.2 The ruling 3.3 Legalclarification andimportance 3.4 How the judges voted 4 Third-party interpretations 5 Certainwitnesses against theUS 5.1 First witness: Commander Luis Carrion 5.2 Secondwitness: Dr. David MacMichael 5.3 Third witness: ProfessorMichaelGlennon 5.4 Fourth witness: Father Jean Loison 5.5 Fifth witness: WilliamHupper 6 UN voting 7 See also 8 Notes 9 References 10 External links [edit]Background The first armedinterventionby theUnited States in Nicaragua occurred under PresidentTaft. In1909, he orderedtheoverthrowofNicaraguan President José Santos Zelaya. During August and September 1912, a contingentof2300 US Marines landed at theport ofCorinto and occupied León and the railwayline toGranada.Apro-US government was formed under the occupation. The 1914 Bryan-Chamorro Treaty granted perpetual canalrights to theUS in Nicaragua and was signed ten days beforetheUS operated Panama Canal opened for use,thus preventing anyone from building a canalin Nicaragua without US permission.[5] In 1927, underAugustoCésar Sandino, a majorpeasantuprising was launched againstboththeUS occupationand theNicaraguanestablishment. In 1933,theMarines withdrewand left the National Guard inchargeofinternal security and elections. In 1934, Anastasio Somoza García, the head ofthe NationalGuard, orderedhis forces to captureand murder Sandino. In 1937,Somoza assumed thepresidency, whilestillincontroloftheNationalGuard,and established a dictatorship that his family controlleduntil 1979.[6] The downfalloftheregimeis attributed toits embezzlementofmillions ofdollars inforeign aidthatwas given to the country in responseto the devastating 1972earthquake.Manymoderate supporters ofthe dictatorshipbeganabandoning itin favour ofthe growing revolutionary sentiment.The Sandinista (FLSN) movementorganizedrelief, began to expand its influenceand assumed the leadershipofthe revolution.[7]Apopular uprising broughttheFSLN topower in1979. The United States hadlong been opposed tothesocialistFSLN and after the revolution theCarter administration moved quickly tosupport theSomocistas withfinancialand material aid. When Ronald Reagan took office, heaugmented thedirect supportto ananti-Sandinista group, called Contras,whichincluded factions loyal totheformer dictatorship. WhenCongress prohibited further funding to theContras,Reagan continuedthefunding through arms sales that werealso prohibited byCongress.[8] There havebeen noreportedcases ofNicaraguan armedinterventionagainst theUnited States. [edit]Arguments [edit]Nicaragua Nicaragua charged that (a) That the UnitedStates, inrecruiting,training, arming, equipping, financing, supplying andotherwise encouraging,supporting,aiding, anddirecting military andparamilitaryactions inand against Nicaragua,had violatedits treatyobligations toNicaragua under: Article 2 (4) ofthe UnitedNations Charter; Articles 18 and20 ofthe Charter oftheOrganization ofAmericanStates; Article 8 oftheConvention onRights and Duties ofStates; Article I, Third, oftheConventionconcerning theDuties andRights ofStates intheEvent ofCivil Strife. (b) That the United States hadbreached internationallaw by 1. violating the sovereigntyofNicaragua by: armed attacks against Nicaragua by air,landandsea; incursions into Nicaraguanterritorialwaters; aerialtrespass into Nicaraguan airspace; efforts by directand indirect means tocoerceand intimidate the Government ofNicaragua. 2. using forceand thethreatofforceagainst Nicaragua. 3. intervening intheinternal affairs ofNicaragua. 4. infringing upon thefreedomofthehigh seas andinterrupting peaceful maritime commerce. 5. killing,wounding and kidnapping citizens ofNicaragua. Nicaragua demanded that allsuch actions ceaseand that theUnited States hadan obligation topay reparations to the government for damageto their people, property, and economy. [edit]United States The U.S. arguedthat its actions were"primarily for the benefitofEl Salvador, and tohelp itto respond to an alleged armed attack by Nicaragua,that theUnitedStates claims to beexercising a right of collectiveself-defense, whichit regards as a justificationofits own conducttowards Nicaragua. El Salvadorjoined theU.S.in their DeclarationofIntervention whichit submittedon 15August 1984, where it alleged itselfthevictim ofanarmed attack by Nicaragua, andthat ithad askedtheUnited States toexercisefor its benefittheright ofcollective self-defence."[1]
- 17. The CIAclaimedthat thepurpose ofthePsychologicalOperations inGuerrilla Warfaremanualwas to "moderate"theexisting Contra activities.[9] The United States argued that theCourt did not havejurisdiction, withU.S. ambassador to theUnited Nations Jeane Kirkpatrickdismissing theCourt as a "semi-legal, semi-juridical, semi-politicalbody, which nations sometimes acceptandsometimes don't."[9] It is noteworthy thattheUnited States, thedefaulting party, was theonly Member thatputforward arguments againstthevalidity ofthejudgmentoftheCourt, arguing that itpassed a decisionthat it 'had neither thejurisdiction nor thecompetenceto render'. Members thatsided withtheUnited States inopposing Nicaragua's claims didnot challengetheCourt's jurisdiction, norits findings, nor the substantivemerits ofthecase.[10] [edit]Judgment The very long judgment firstlisted291 points. Among them that theUnited States hadbeen involved in the "unlawful useofforce."The alleged violations included attacks on Nicaraguan facilities and naval vessels, themining ofNicaraguanports,theinvasionofNicaraguanair space, andthe training,arming, equipping, financing and supplying offorces (the"Contras") andseeking to overthrow Nicaragua's Sandinista government.This was followed by the statements thatthe judges voted on.[11] [edit]Findings The court found evidenceof anarms flow between Nicaragua andinsurgents inEl Salvador between 1979-81.However, therewas not enoughevidence toshow that theNicaraguangovernment was imputablefor this or that theUS response was proportional. Thecourt alsofound that certain transborder incursions into the territory ofGuatemala and Costa Rica, in 1982,1983and1984, were imputable totheGovernmentofNicaragua.However,neitherGuatemala nor Costa Rica had made any requestfor US intervention; El Salvador didin 1984,well after theUS had intervened unilaterally.[2] "As regards El Salvador,theCourt considers that in customary international lawtheprovision ofarms to the oppositionin another State does not constituteanarmedattack on thatState. As regards Honduras and Costa Rica,theCourt states that,in the absence ofsufficient informationas to the transborder incursions into the territory ofthose two States fromNicaragua, it is difficultto decide whether theyamount, singly orcollectively, toanarmedattack by Nicaragua. TheCourt finds that neither theseincursions nor the allegedsupply ofarms may berelied onas justifying theexercise of the right of collectiveself-defence."[12] Regarding human rights violations by the Contras, "The Court has todeterminewhethertherelationship of the contras totheUnited States Governmentwas such thatit would beright to equate the Contras,for legal purposes, with an organoftheUnitedStates Government, or as acting on behalf of that Government. The Courtconsiders thattheevidenceavailableto itis insufficient to demonstratethetotal dependenceofthecontras on UnitedStates aid. Apartial dependency, the exact extent of which theCourt cannot establish, maybe inferredfrom the factthat the leaders were selected bytheUnitedStates, and fromotherfactors suchas the organisation, training and equipping of theforce, planning ofoperations, thechoosing oftargets and theoperationalsupport provided.Thereis no clear evidence that the United States actually exercised sucha degree of control as tojustify treating thecontras as acting on its behalf...Having reached the above conclusion, the Courttakes the viewthat the Contras remain responsiblefor their acts, in particular the allegedviolations by them ofhumanitarianlaw. For theUnited States to belegally responsible, itwouldhave tobe proved that thatStatehad effectivecontrol oftheoperations in the courseof whichthealleged violations were committed."[12] The Court concluded thattheUnited States, despiteits objections, was subject to theCourt's jurisdiction. The Courthad ruled on 26November by 11votes to one that ithadjurisdiction inthe case on the basis ofeitherArticle36(i.e. compulsory jurisdiction) or the 1956 Treaty ofFriendship, Commerceand Navigation between the United States andNicaragua. TheCharter provides that,in case of doubt, it is for theCourt itselfto decidewhether it has jurisdiction,and thateachmember of the United Nations undertakes tocomply with thedecision oftheCourt. TheCourt alsoruled by unanimity that thepresent casewas admissible.[10]TheUnitedStates then announced that ithad "decided not to participateinfurther proceedings inthis case."Abouta year aftertheCourt's jurisdictional decision, the UnitedStates took thefurther,radical step ofwithdrawing its consent to the Court's compulsoryjurisdiction, ending its previous 40year legalcommitmentto binding internationaladjudication. The Declaration ofacceptanceofthegeneralcompulsory jurisdiction of the InternationalCourt ofJustice terminated aftera 6-month noticeoftermination delivered by the Secretary ofStateto the UnitedNations on October 7,1985. [13] Although the Courtcalled on the UnitedStates to "cease and to refrain"from theunlawfuluse offorce against Nicaragua and stated that the US was in "inbreach ofits obligation under customary internationallaw not to useforceagainstanotherstate"and ordered itto pay reparations, the United States refused tocomply. [3]As a permanent member oftheSecurityCouncil, theU.S. has been able toblock any enforcement mechanism attemptedby Nicaragua.[14]On November 3, 1986 the UnitedNations General Assembly passed, bya vote of94-3 (El Salvador, IsraelandtheUS voted against), a non-binding resolutionurging theUS to comply.[4] [edit]The ruling On June 27, 1986, the Courtmadethefollowing ruling: The Court Decides thatin adjudicating thedisputebroughtbeforeit by the Applicationfiled bytheRepublicof Nicaragua on9 April 1984, theCourt is required toapplythe"multilateraltreaty reservation"containedin proviso (c) to thedeclarationofacceptanceofjurisdictionmadeunder Article 36, paragraph2, ofthe StatuteoftheCourt by theGovernment oftheUnited States of America depositedon 26August 1946; Rejects thejustificationofcollectiveself-defencemaintained by the UnitedStates ofAmerica in connectionwiththemilitary andparamilitaryactivities in andagainst Nicaragua the subject ofthis case; Decides thattheUnited States ofAmerica, by training, arming, equipping,financing andsupplying the contra forces or otherwise encouraging,supporting and aiding military andparamilitary activities in and againstNicaragua, has acted,against the RepublicofNicaragua,in breachofits obligation under customary international lawnotto intervenein theaffairs ofanotherState; Decides thattheUnited States ofAmerica, by certain attacks on Nicaraguanterritory in 1983-1984, namely attacks on Puerto Sandino on 13 September and 14October 1983, an attack onCorintoon 10 October 1983; an attack onPotosi Naval Baseon 4/5January 1984, anattack on San Juan del Sur on 7 March 1984; attacks on patrol boats atPuerto Sandinoon 28and 30March 1984; andan attack onSanJuan delNorteon 9April1984; and further by those acts ofintervention referred to in subparagraph(3) hereofwhichinvolve the useofforce, has acted,against the Republic of Nicaragua,in breach ofits obligation under customary international lawnot touse force against another State; Decides thattheUnited States ofAmerica, by directing orauthorizing over Rights ofNicaraguan territory,and by the acts imputableto the UnitedStates referred toin subparagraph(4) hereof, has acted, against theRepublicofNicaragua, in breach ofits obligation under customary internationallaw not to violatethesovereignty ofanotherState; Decides that, by laying mines in theinternal orterritorial waters ofthe RepublicofNicaragua during the first months of1984, the UnitedStates ofAmerica has acted,against theRepublic ofNicaragua, in breach ofits obligations under customary international lawnot touse force againstanother State, not to intervene in its affairs, not to violateits sovereignty and not tointerrupt peaceful maritime commerce; Decides that, by the acts referred toin subparagraph(6) hereofthe United States ofAmerica has acted, against theRepublic ofNicaragua, in breachofits obligations under ArticleXIXofthe Treaty of Friendship, Commerce andNavigation betweentheUnited States ofAmerica andtheRepublic of Nicaragua signedatManagua on 21January 1956; Decides thattheUnited States ofAmerica, by failing tomake knowntheexistence andlocation ofthe mines laid by it, referredto insubparagraph (6) hereof, has acted inbreach ofits obligations under customary internationallaw inthis respect; Finds that theUnited States ofAmerica, by producing in1983 a manual entitled'Operaciones sicológicas en guerra deguerrillas', anddisseminating itto contra forces, has encouragedthecommissionby them ofacts contrary to general principles ofhumanitarianlaw; but does notfind a basis for
- 18. concluding thatany suchacts which mayhave been committed are imputableto the United States of America as acts ofthe United States ofAmerica; Decides thattheUnited States ofAmerica, by theattacks on Nicaraguanterritoryreferred toin subparagraph (4) hereof, and by declaring a generalembargo ontradewith Nicaragua on1 May 1985, has committed acts calculatedto depriveofits object andpurposetheTreatyofFriendship, Commerceand Navigation between the Parties signed at Managua on21 January1956; Decides thattheUnited States ofAmerica, by theattacks on Nicaraguanterritoryreferred toin subparagraph (4) hereof, and by declaring a generalembargo ontradewith Nicaragua on1 May 1985, has actedin breach ofits obligations under Article XIX oftheTreaty ofFriendship, Commerceand Navigation between the Parties signed at Managua on21 January1956; Decides thattheUnited States ofAmerica is under a dutyimmediately to ceaseand to refrainfrom all such acts as may constitute breaches ofthe foregoing legalobligations; Decides thattheUnited States ofAmerica is under an obligation tomake reparation to theRepublicof Nicaragua for allinjury caused to Nicaragua by thebreaches ofobligations under customary internationallaw enumerated above; Decides thattheUnited States ofAmerica is under an obligation tomake reparation to theRepublicof Nicaragua for allinjury caused to Nicaragua by thebreaches oftheTreatyofFriendship, Commerceand Navigation between the Parties signed at Managua on21 January1956; Decides thattheform andamount ofsuchreparation,failing agreement between the Parties, willbe settled by the Court, and reserves for this purposethesubsequent procedurein the case; Recalls tobothParties their obligation toseek a solutionto their disputes by peacefulmeans in accordance withinternational law.[12] [edit]Legal clarificationand importance The ruling didin manyways clarify issues surrounding prohibition ofthe useofforceand theright of self-defence.[15]Arming and training theContra was foundto bein breach withprinciples ofnon- intervention andprohibitionofuseofforce, as was laying mines in Nicaraguanterritorialwaters. Nicaragua's dealings with the armedoppositionin El Salvador,althoughit mightbe considered a breach with the principleofnon-intervention and theprohibitionofuseofforce, did not constitute"an armed attack", which is the wording in article 51 justifying the rightofself-defence. The Court considered also the United States claimto beacting incollective self-defenceof El Salvador and found theconditions for this notreached as El Salvador never requestedtheassistanceofthe United States on thegrounds ofself-defence. In regards to laying mines, "...thelaying ofmines inthewaters ofanother Statewithout any warning or notification is notonly anunlawfulact butalso a breach oftheprinciples ofhumanitarianlaw underlying theHagueConvention No. VIII of1907." Summary of theSummary oftheJudgmentof15 June1962 CASECONCERNING THETEMPLEOF PREAH VIHEAR (MERITS) Judgment of 15June 1962 Proceedings inthecase concerning theTempleofPreah Vihear, between Cambodia and Thailand, were instituted on 6October1959by anApplication oftheGovernmentofCambodia; theGovernment of Thailandhaving raisedtwopreliminary objections, the Court, by its Judgment of26May 1961, found that ithadjurisdiction. In its Judgment on the merits the Court, by ninevotes to three,foundthat the TempleofPreahVihear was situated interritory underthesovereignty ofCambodia and, inconsequence, that Thailand was under anobligationto withdraw any military or policeforces, or other guards orkeepers, stationed by her at theTemple,or in its vicinityon Cambodian territory. By seven votes to five, the Courtfoundthat Thailandwas under an obligation torestoreto Cambodia any sculptures,stelae,fragments ofmonuments, sandstonemodeland ancientpottery which might, sincethedateoftheoccupation oftheTempleby Thailandin 1954, havebeenremoved from the Templeor the Templearea by the Thai authorities. Judge Tanaka and JudgeMorelliappendedto the Judgment a JointDeclaration. Vice-President Alfaro and Judge Sir Gerald FitzmauriceappendedSeparate Opinions;Judges MorenoQuintana, Wellington Koo and Sir Percy Spender appended Dissenting Opinions. * * * In its Judgment, the Courtfoundthat thesubjectofthedisputewas sovereigntyovertheregionofthe Temple ofPreahVihear. This ancientsanctuary,partially in ruins,stoodon a promontoryofthe Dangrek rangeofmountains which constituted the boundary betweenCambodia andThailand. The disputehad its fons et origoin theboundary settlements madeintheperiod 1904-1908 betweenFrance, then conducting the foreign relations ofIndo-China, and Siam. Theapplication of the Treaty of13February1904was,in particular, involved. That Treaty establishedthegeneral character ofthefrontier theexact boundary ofwhichwas to bedelimitedby a Franco-Siamese Mixed Commission In the easternsector oftheDangrek range,in which Preah Vihearwas situated,thefrontier was to follow the watershedline.For thepurposeofdelimiting thatfrontier, itwas agreed, at a meeting held on 2 December 1906,that the MixedCommissionshould travelalong theDangrek range carrying outall the necessary reconnaissance, andthat a survey officer ofthe French section ofthe Commission shouldsurvey thewholeoftheeastern part oftherange. It hadnot been contested that the Presidents oftheFrench and Siamesesections duly made this journey, in thecourseof which they visitedtheTempleofPreah Vihear.In January-February 1907, the Presidentofthe French sectionhad reported to his Governmentthat the frontier-linehadbeendefinitely established. It therefore seemedclear that a frontierhad beensurveyed and fixed, although there was no recordofany decision and noreference totheDangrek region inanyminutes ofthe meetings oftheCommissionafter 2 December 1906. Moreover, atthetimewhen the Commission might havemetfor thepurposeofwinding up its work,attentionwas directedtowards the conclusionofa further Franco-Siameseboundary treaty,theTreaty of23March 1907. The final stageofthedelimitationwas the preparationofmaps.The SiameseGovernment, whichdid not disposeofadequatetechnical means,hadrequested thatFrenchofficers shouldmap the frontier region. Thesemaps werecompletedin the autumn of1907by a team ofFrenchofficers, some ofwhom hadbeen members ofthe Mixed Commission, and theywere communicatedto the Siamese Government in1908.Amongstthem was a mapoftheDangrek rangeshowing Preah Vihear on the Cambodian side.It was on thatmap (filed as Annex I to its Memorial) that Cambodia had principally relied insupport ofher claimto sovereignty over the Temple. Thailand,on the other hand, had contended that themap,notbeing the work oftheMixed Commission, hadno binding character; thatthefrontier indicatedon itwas not thetruewatershed lineand thatthe true watershed linewouldplace the Templein Thailand, thatthemap had never been accepted by Thailandor, alternatively, thatifThailand had accepted it she haddoneso only becauseofa mistaken beliefthat the frontierindicated corresponded withthewatershed line. The Annex I map was never formallyapprovedby theMixed Commission, which hadceased to function some months beforeits production. While there could beno reasonabledoubt that it was based on the work ofthe surveying officers in the Dangrek sector,theCourt nevertheless concluded that, in its inception,it had nobinding character.It was clear fromtherecord, however, thatthemaps were communicatedto theSiameseGovernmentas purporting to representtheoutcomeofthe work ofdelimitation; since there was no reaction onthepart oftheSiameseauthorities,either then or for manyyears, they must beheldto haveacquiesced. Themaps weremoreover communicated to theSiamese members oftheMixed Commission, whosaid nothing. tothe Siamese Minister ofthe Interior, PrinceDamrong,who thanked the French Minister in Bangkok for them, andto theSiameseprovincial governors, some ofwhom knew ofPreah Vihear. Ifthe Siamese authorities acceptedtheAnnex I map withoutinvestigation, they could notnow plead any error vitiating therealityoftheir consent. The SiameseGovernment andlater the Thai Government had raisedno queryabouttheAnnex I map prior to its negotiations with Cambodia inBangkokin 1958. Butin 1934-1935 a survey had establisheda divergencebetween the mapline andthetrue lineofthewatershed,and othermaps had been produced showing theTempleas being inThailand: Thailandhadnevertheless continued also to useandindeed topublish maps showing Preah Vihear as lying in Cambodia. Moreover, in
- 19. the courseof thenegotiationsfor the 1925 and1937Franco-SiameseTreaties,whichconfirmed the existing frontiers, andin 1947 inWashington beforetheFranco-SiameseConciliation Commission, it wouldhave been naturalfor Thailand to raise the matter: shedidnot doso. The naturalinference was thatshe had acceptedthefrontier atPreah Vihear as it was drawn on the map, irrespectiveofits correspondencewith thewatershed line. Thailandhad stated thathaving been, at allmaterial times, inpossession ofPreah Vihear, shehadhad no need toraise thematter; she had indeedinstancedtheacts ofher administrativeauthorities on the groundas evidencethat she had never accepted theAnnex I lineat Preah Vihear. ButtheCourt foundit difficultto regard such localacts as negativing theconsistentattitudeofthe centralauthorities. Moreover, when in 1930 PrinceDamrong,on a visitto theTemple,was officially received thereby the French Resident for the adjoining Cambodian province,Siam failedto react. From thesefacts, the courtconcludedthat Thailandhad accepted theAnnex I map. Evenifthere were any doubt inthis connection,Thailand was notprecludedfrom asserting that shehad notaccepted it sinceFranceand Cambodia had relied upon her acceptanceandshe hadfor fifty years enjoyed such benefits as theTreatyof1904 has conferred on her.Furthermore,theacceptance ofthe Annex I map caused itto enter the treaty settlement; theParties had at thattimeadoptedan interpretationofthat settlement which caused themaplineto prevail over the provisions ofthe Treaty and, as there was no reason tothink thattheParties had attached any special importance to the lineof the watershed as such, as compared withtheoverriding importance ofa final regulationof their ownfrontiers, the Courtconsidered that the interpretationto begiven now would be thesame. The Court therefore felt bound to pronouncein favourofthe frontierindicated on theAnnexI map in the disputed area andit becameunnecessary toconsider whether thelineas mapped didin fact correspond tothetrue watershedline. For these reasons,theCourt upheld thesubmissions ofCambodia concerning sovereignty over Preah Vihear. Summary of theSummary oftheJudgmentof6 July 1957 CASEOF CERTAIN NORWEGIAN LOANS Judgment of 6 July1957 Proceedings inthecase ofcertain Norwegian loans, betweenFranceand Norway, hadbeen instituted by an ApplicationoftheFrenchGovernment which requested theCourt to adjudgethatcertain loans issued ontheFrenchmarket and onotherforeign markets bytheKingdomofNorway,the Mortgage Bank ofthe KingdomofNorway and theSmallholding andWorkers'Housing Bank, stipulatedin gold theamountofthe borrower's obligationandthattheborrower could only discharge thesubstance ofhis debt by the payment ofthegold value ofthecoupons and ofthe redeemed bonds.The Application expressly referred toArticle 36(2) oftheStatuteoftheCourt and to the Declarations ofAcceptanceofthe compulsory jurisdictionmadeby Franceand by Norway. For its part, the Norwegian Government raised certainPreliminaryObjections which, at the requestof theFrenchGovernment which theNorwegian Government did notoppose,the Court joined tothemerits. In its Judgment theCourt upheldoneofthegrounds relieduponby Norway, whichtheCourt considered more direct and conclusive: the Objectionto theeffect that Norway was entitled,by virtueofthe condition of reciprocity, toinvokethereservationrelating tonationaljurisdictioncontained inthe French Declaration, and that this reservation excludedfrom the jurisdictionofthe courtthe disputewhich has been referredto it bytheApplication oftheFrenchGovernment. Considering that it was not necessary to examinetheother Norwegian Objections or theother submissions of the Parties,theCourt found by twelvevotes to threethatit was withoutjurisdictionto adjudicate upon the dispute. Judge MorenoQuintana declared that he considered thattheCourt was without jurisdictionfor a reason different from that given in theJudgment. VicePresident Badawiand JudgeSir Hersch Lauterpachtappendedto theJudgment oftheCourt statements oftheir individualopinions. Judges Guerrero, BasdevantandReadappended totheJudgmentoftheCourt statements oftheir dissenting opinions. * * * In its Judgment theCourt recalledthefacts. The loans inquestion werefloated between1885and 1909; the French Government contended thatthebonds contained a gold clausewhichvaried inform from bond to bond, butwhich that Governmentregarded as sufficientin the caseofeachbond, this being disputed bytheNorwegian Government. The convertibility into gold ofnotes ofthe Bank ofNorway having beensuspended onvarious dates since 1914, a Norwegian lawof December 15th, 1923, provided that"wherea debtor has lawfully agreed topay in gold a pecuniary debtin kroner and where the creditor refuses toacceptpaymentin BankofNorway notes on thebasis oftheir nominal gold value,thedebtor may request a postponement of payment for such period as theBank is exemptedfrom its obligationto redeemits notes in accordance withtheirnominalvalue". Protracted diplomatic correspondence ensued which lasted from 1925 to 1955, in whichtheFrenchGovernmentcontended that itwould not seem that a unilateraldecision could berelieduponas againstforeign creditors and requestedtherecognition ofthe rights claimedby theFrench holders ofthebonds involved. TheNorwegianGovernment, being unprepared toagreeto the various proposals for international settlement put forward by France, maintained that the claims ofthe bondholders werewithin thejurisdiction ofthe Norwegiancourts and involved solely theinterpretation andapplication ofNorwegian law.The French bondholders refrained fromsubmitting their case totheNorwegian courts.It was in these circumstances that theFrench Governmentreferred the matter totheCourt. Such being thefacts, the Courtattheoutsetdirected its attentionto thePreliminary Objections ofthe NorwegianGovernment,beginning with thefirst oftheseObjections whichrelated directly tothe jurisdictionofthe Courtand whichhad two aspects. Inthefirst place, itwas contended thatthe Court, whose functionis to decidein accordance withinternationallaw such disputes as are submittedto it, can beseised bymeans ofa unilateralapplication,only oflegaldisputes falling within oneofthefour categories ofdisputes enumerated in paragraph2 ofArticle36ofthe Statute andrelating to internationallaw. Intheview oftheNorwegian Government, the loan contracts were governedby municipal lawandnotby international law. In the second place, the NorwegianGovernment declared that ifthereshouldstillbesomedoubt onthis point itwould rely upon thereservation madeinthefollowing terms by theFrenchGovernment in its Declaration accepting the compulsory jurisdictionofthe Court: "This declaration does notapply to differences relating to matters whichareessentially within the nationaljurisdictionas understood by the Government oftheFrenchRepublic". TheNorwegianGovernmentconsidered that by virtue ofthe clauseofreciprocity whichis embodied inArticle36, paragraph 3,ofthe Statute andcontainedin the corresponding NorwegianDeclaration,Norway hadtheright to relyupontherestrictions placed byFranceon her own undertakings. Convincedthat the disputewas withinthedomestic jurisdiction, the Norwegian Government requested theCourtto decline, on grounds that itlacked jurisdiction, thefunction which the French Government wouldhave it assume. The Court considered thesecondground ofthis Objection and noted thatthejurisdiction oftheCourt in the presentcase depended upon theDeclarations madeby theParties on condition ofreciprocity; and that sincetwounilateraldeclarations wereinvolvedsuch jurisdictionwas conferred upon the Court only to the extentto which theDeclarations coincided in conferring it.Consequently, the common will oftheParties, whichwas thebasis ofthe Court's jurisdiction, existed withinthe narrowerlimits indicatedby theFrench reservation.The Court reaffirmedthis methodofdefining the limits ofits jurisdictionwhichhadalready been adopted by the PermanentCourt of InternationalJustice. Inaccordancewith theconditionofreciprocityNorway,equally with France, was entitledto exceptfrom the compulsory jurisdictionofthe Courtdisputes understood by Norway to be essentially withinits national jurisdiction. The French Governmentpointed out thatbetween FranceandNorwaythereexisted a treaty which made thepaymentofany contractual debt a question ofinternational lawandthatin this connectionthetwo States could notthereforespeakofdomestic jurisdiction.But the aimofthe treaty referredto, the Second Hague Convention of1907respecting thelimitationofthe employmentofforce for therecovery ofcontract debts, was not tointroduce compulsory
- 20. arbitration;theonly obligationimposed bythe Convention was that an intervening power should not have recourseto forcebeforeit hadtriedarbitration. The Courtcould, therefore, find no reason why thefact thatthetwoParties weresignatories to theSecond HagueConventionshould deprive Norway oftheright to invoke the reservationin theFrench Declaration. The French Government also referred to theFrancoNorwegianArbitrationConvention of1904 and tothe GeneralAct of Geneva ofSeptember 26th,1928. Neither ofthesereferences,however,couldbe regardedas sufficient tojustify theview that theApplicationofthe French Government was based upon the Convention ortheGeneralAct: theCourt wouldnot bejustifiedin seeking a basis for its jurisdictiondifferent fromthat which the French Governmentitselfsetoutin its Application and by referenceto which the casehad beenpresented by bothParties totheCourt. The Court noted thatfrom one point ofview itmight besaid thattheground ofthefirst Objection which was basedon thereservation intheFrenchDeclaration was solely subsidiaryin character. But in the opinion oftheCourt,thesecondground couldnotbe regarded as subsidiaryin the sense that Norway wouldinvoketheFrenchreservationonly in the event ofthefirstground ofthis Objectionbeing held to belegally unfounded. The Court's competencewas challenged onboth grounds and theCourt was freeto baseits decision on the groundwhichin its judgment was more direct and conclusive. Not only did theNorwegianGovernment invoke the French reservation, but it maintained the second ground ofits first Objection throughout.Abandonmentcouldnot be presumed or inferred; ithad to bedeclared expressly. The Court did not considerthat itshould examinewhether theFrenchreservation was consistentwith the undertaking ofa legalobligation and was compatiblewith Article36,paragraph6, ofthe Statute.The validity ofthe reservation hadnot been questionedby theParties. It was clearthat France fully maintained its Declaration including the reservation, and thatNorwayrelied uponthe reservation. In consequence, theCourt hadbefore it a provision whichbothParties to thedispute regardedas constituting anexpressionoftheir common willrelating tothecompetence ofthe Court. The Courtgave effectto thereservation as it stood and as theParties recognisedit. For these reasons,theCourt found thatit was without jurisdictionto adjudicateupon the disputewhich had been brought beforeitby theApplication oftheFrench Government. Summary of theSummary oftheJudgmentof22 July 1952 ANGLO-IRANIAN OIL CO. CASE (PRELIMINARY OBJECTION) Judgment of 22July 1952 The Anglo-Iranian OilCompany casehad beensubmittedto the Courtby theUnited Kingdom Government onMay 26th, 1951, andhadbeenthesubjectofan Objectionon thegroundoflack of jurisdiction bytheGovernment ofIran. By nine votes againstfive,theCourt declared thatit lacked jurisdiction.The Judgment was followed bya separateopinionby Sir ArnoldMcNair, President oftheCourt,who whileconcurring in the conclusionreached intheJudgmentfor whichhe had voted, addedsomereasons ofhis own which had led himto that conclusion.The Judgment was also followedby four dissenting opinions by fudges Alvarez, Hackworth,ReadandLevi Carneiro. On July 5th, 1951, the Courthad indicated interim measures ofprotectionin this case,pending its final decision,stating expressly thatthequestionof the jurisdictionofthe merits was in noway prejudged. In its Judgment, theCourt declared that theOrder ofJuly 5th,1951, ceased to be operative andthat theprovisional measures lapsed at the sametime. * * * The Judgmentbegins by recapitulating the facts. InApril, 1933, an agreement was concludedbetween the Government ofIran andtheAnglo-Iranian OilCompany. InMarch,Apriland May, 1951, laws were passedin Iran, enunciating theprincipleofthe nationalisationofthe oil industry in Iran and establishing procedurefor theenforcement ofthis principle. The result oftheselaws was a dispute betweenIran and the Company. TheUnited Kingdom adopted the cause ofthelatter, andin virtue ofits right ofdiplomatic protection itinstituted proceedings beforetheCourt, whereupon Iran disputed theCourt's jurisdiction. The Judgmentrefers to the principle according to whichthewillofthe Parties is thebasis oftheCourt's jurisdiction, and itnotes thatin the presentcase the jurisdictiondepends on the Declarations accepting the compulsory jurisdictionofthe Courtmadeby Iran andby theUnited Kingdom under Article 36, paragraph2, ofthe Statute. These Declarations containtheconditionofreciprocity,and as that ofIranis morelimited,it is upon thatDeclaration that the Courtmust baseitself. According to this Declaration,theCourt has jurisdiction only whena dispute relates totheapplication of a treaty orconvention accepted byIran. But Iran maintains that, according to the actualwording ofthe text, thejurisdiction is limitedto treaties subsequent totheDeclaration.The United Kingdom maintains, on the contrary,that earlier treaties may alsocomeinto consideration. In the view ofthe Court, both contentions might, strictly speaking, beregarded as compatiblewiththe text. But theCourt cannotbase itselfon a purely grammaticalinterpretation: it mustseek the interpretationwhichis in harmonywith a naturaland reasonablewayofreading the text, having due regardto theintentionofIran atthetimewhen itformulatedtheDeclaration. Anatural and reasonableway ofreading thetext leads to the conclusionthatonly treaties subsequent to the ratificationcomeinto consideration. In order to reachan oppositeconclusion, specialand clearly establishedreasons would berequired: but theUnited Kingdomwas not ableto producethem. On the contrary,it may beadmitted thatIran had special reasons for drafting her Declaration in a very restrictive manner, andfor excluding the earliertreaties. For, at thattime,Iran had denounced all the treaties with other States relating totherégimeofcapitulations;shewas uncertainas to the legal effect ofthese unilateraldenunciations. In such circumstances, itis unlikely thatsheshould have been willing onherown initiative toagreeto submitto an international court disputes relating to allthese treaties. Moreover,theIranian law bywhich the Najlis approvedandadopted the Declaration, beforeitwas ratified,provides a decisiveconfirmation ofIran's intention,for it states thatthetreaties andconventions which comeinto consideration arethosewhich"the Government willhaveacceptedafter the ratification". The earlier treaties are thus excluded bytheDeclaration,andtheUnited Kingdom cannotthereforerely on them. It has invoked somesubsequent treaties: namely those of1934 with Denmark and Switzerland,and thatof1937 withTurkey, by which Iranhadundertaken to treatthenationals of those Powers inaccordancewith the principles and practiceofordinaryinternationallaw.The United Kingdomclaims thattheAnglo-Iranian OilCompany has notbeentreated in accordance with thoseprinciples and thatpractice; and in order to rely on theabove-mentioned treaties, though concludedwith thirdparties,it founds itselfon themost-favoured-nationclause contained in two instruments whichit concluded with Iran: thetreatyof1857 and thecommercial convention of1903. Butthetwolattertreaties, which form thesolelegal connection with the treaties of1934 and1937, are anterior to the Declaration: theUnited Kingdomcannot therefore rely on them, and,consequently, itcannot invoke the subsequent treaties concludedby Iran with third States. But did the settlement ofthedispute betweenIran and the UnitedKingdom, effectedin 1933through the mediationoftheLeague ofNations,result inanagreementbetween thetwo Governments which may beregarded as a treaty orconvention?The United Kingdom maintains that itdid: it claims that theagreementsigned in1933betweentheUnited Kingdom andtheCompany hada double character: being atonce a concessionary contractanda treaty between thetwoStates. In the view oftheCourt, that itnot thecase. TheUnited Kingdom is not a party tothecontract, which does notconstitute a link between the two Governments or inanywayregulatethe relations between them. Underthecontract, Irancannot claimfrom the UnitedKingdomany rights which itmay claim fromtheCompany, norcan it becalled upon toperformtowards the United Kingdomany obligations whichit is boundto performtowards theCompany. This juridical situationis notaltered by the fact that the concessionarycontract was negotiated throughthe good offices oftheCouncilofthe LeagueofNations, acting through its rapporteur. TheUnited Kingdom in submitting its disputewith Iranto theLeagueCouncil,was onlyexercising its rightof diplomatic protection infavour ofoneofits nationals. Thus the Courtarrives at theconclusionthat itlacks jurisdiction. Haya de la TorreCase (Colombia v. Peru)
- 21. The Court, deliversthe following Judgment: On December 13th, 1950, the Government ofColombia filedin the Registry oftheCourt an Application which referredto the judgments given by theCourton November 20th, 1950, intheAsylumCase, and on November 27th upontheRequestfor theInterpretation ofthat Judgment.After stating that Colombia and Peru wereunableto cometo an agreement onthemanner inwhicheffect should begiven to the saidJudgments as regards thesurrenderofthe refugee Víctor RaúlHaya de la Torre, theApplication made a request to theCourt in thefollowing terms: "(a) PRINCIPAL CLAIM: Requests theCourtto adjudgeand declare, whether the GovernmentoftheRepublicofPeru enters an appearanceor not, after suchtime-limits as theCourt may fixin the absence ofanagreement betweentheParties: In pursuanceof theprovisions ofArticle 7 ofthe Protocol ofFriendship and Co-operationbetween the Republicof Colombia and the Republic ofPerusigned on May 24th,1934, todeterminethe manner inwhich effectshallbe givento theJudgment ofNovember20th, 1950; And, furthermore, to stateinthis connection, particularly: Whether Colombia is, or is not, bound to deliver totheGovernmentofPeruM. Víctor RaúlHaya de la Torre, a refugee intheColombianEmbassy atLima." "(b) ALTERNATIVE CLAIM: In the eventof theabove-mentionedclaim being dismissed, May it pleasethe Court, in theexerciseofits ordinary competence,whethertheGovernment ofPeru enters an appearanceor not, and after suchtime-limits as theCourt may fixin the absence ofan agreementbetweentheParties, to adjudgeand declarewhether, inaccordancewiththe law in force betweentheParties and particularly Americaninternationallaw,theGovernment of Colombia is, or is not,bound to deliver M. Víctor Raúl Haya dela Torreto the Government of Peru." The Application was accompaniedby a certifiedtrueFrench translation ofArticle7 oftheProtocol of FriendshipandCooperation betweentheGovernments ofColombia andPeru signedatRio de Janeiro, May24th,1934, and also oftwonotes exchanged between those two Governments. Notice of the Applicationwas given underArticle40, paragraph 3,ofthe Statute oftheCourtto Members of theUnited Nations through the Secretary-General,and also totheother States, entitled toappearbefore the Court. It was also transmittedto the Secretary-General oftheUnited Nations. At the suggestion of theParties, the written proceedings were limitedto thesubmission ofa memorial and a counter-memorial, and thesepleadings werefiled withinthetime-limits prescribed inthe Order of January 3rd,1951. As the Court did notincludeupon theBenchany judges ofthenationality oftheParties, they availed themselves of therightprovidedby Article31, paragraph 3,oftheStatute.The Judges adhoc chosen wereM. JoséJoaquínCaicedo Castilla, Doctor ofLaw, Professor, formerDeputy and former Presidentof theSenate,Ambassador,for theGovernmentofColombia, and M. Luis Alayza y Paz Soldán, Doctor ofLaw, Professor, formerMinister, Ambassador, for the Government ofPeru. By a letter datedJanuary 22nd, 1951, the Colombian Agent informedtheRegistrar that his Government relied ontheConvention onAsylum signedatHavana on February 20th, 1928; herequested the Registrar togive effectto the provisions ofArticle63ofthe'Statute. Accordingly,theRegistrar, informed theStates whichwere parties to that Convention, other thanthoseconcernedin the case, ofthis fact. The Minister ofStateofCuba onFebruary 15th, 1951, addressed totheRegistrar, inreply,a letterand a Memorandum which contained the views ofhis Government concerning theconstruction ofthe Convention ofHavana of1928, as wellas this Government's general attitudeinregardto asylum. This letter,considered as a DeclarationofIntervention underArticle66, paragraph 1,ofthe Rules of Court, was, inaccordancewith paragraphs 2 and 3 ofthatArticle,communicated totheParties in the caseand totheMembers ofthe UnitedNations and otherStates entitled toappear beforethe Court. The Memorandum annexedto thatletterwas at the sametime communicated to the Parties. The pleadings and documents annexedhad alreadybeen placed at the disposalofthe Government of Cuba, at the requestofthat Governmentand with the consentofthe Parties. On March 28th,1951, theAgent oftheGovernmentofColombia stated thathe did not raiseany objection totheinterventionofCuba. On April 2nd,1951,theAgentoftheGovernment ofPeru addressed a letterto theRegistrarin which herequested theCourtto decidethat theintervention was not admissible. In application ofArticle 66, paragraph 2, oftheRules ofCourt, the Courtdecided to hear the observations oftheAgents oftheParties andofthe Government ofCuba ontheadmissibilityof that Government's intervention beforetheargument onthemerits. Apublichearing was heldfor that purposeon May 15th, 1951, during whichtheCourt heard statements submitted on behalfof the Government ofPeru byM. FelipeTudela y Barreda, Agent,and M. G. Gidel, Counsel;on behalf ofthe Government ofColombia by M. Camilode Brigard, Counsel; andon behalfofthe Government ofCuba byMme.Flora Díaz Parrado, Agent. At this public hearing the following Submissions relating totheRequest for Interventionwere presented to the Court: On behalfofthe Government ofPeru: "May it pleasetheCourt toadjudge: that the presentcasecannotgiverise totheconstruction ofa convention within the meaning ofArticle 63 ofthe StatuteoftheCourt, andin particular oftheHavana Convention, concerning the meaning ofwhichtheCourt gavejudgment onNovember20th, 1950; and that,therefore, the intervention oftheGovernmentofCuba is notadmissible." On behalfofthe Government ofColombia: "May it pleasetheCourt todecide that the Government ofCuba is entitled to intervene inthepresent case." On behalfofthe Government ofCuba: "May it pleasetheCourt todeclare that therequest tointerveneis admissible." On May 16th, 1951, theCourtdecided, for thereasons whichare stated below,to admit the intervention oftheGovernmentofCuba and toopen immediately theoral proceedings on the merits ofthecase.
- 22. In the courseof public hearings heldon May16thand17th,1951, theCourtheardstatements byM. José Gabrielde la Vega,Agent, on behalfofthe Government ofColombia,and by M. G. Gidel, Counsel, on behalfofthe governmentofPeru; furthermore, in accordance withArticle66, paragraph 5, of theRules ofCourt, itheard a statement ontheinterpretation oftheHavana Convention, presentedon behalfof the Government ofCuba by Mme. Flora Díaz Parrado,Agent. At the end of the written proceedings, theParties presented the following Submissions: On behalf of the Government ofColombia (Submissions in theMemorial): "May it pleasetheCourt, To state inwhat manner theJudgment ofNovember 20th, 1950,shall beexecutedby Colombia and Peru, and furthermore, toadjudgeanddeclare that Colombia is not bound, inexecutionofthesaid Judgment of November 20th,1950, to deliver M. VíctorRaúl Haya dela Torreto the Peruvian authorities. In the eventof theCourt notdelivering judgment ontheforegoing Submission,mayit pleasetheCourt to adjudgeanddeclare,in the exerciseofits ordinarycompetence,that Colombia is notbound to deliver the politicallyaccused M. VíctorRaúl Haya dela Torreto the Peruvianauthorities." On behalf of the Government ofPeru (Submissions intheCounter-Memorial): "May it pleasetheCourt, I. To statein whatmanner theJudgment ofNovember 20th, 1950, shallbeexecuted by Colombia; II. To dismiss theSubmissions ofColombia by whichtheCourt is asked to statesolely ["sans plus"] that Colombia is not bound to deliver Víctor Raúl Haya dela Torreto thePeruvian authorities; III. In the event oftheCourt not delivering judgmenton SubmissionNo. I, toadjudge anddeclare that the asylum grantedto SeñorVíctor RaúlHaya de la Torre onJanuary 3rd, 1949, and maintainedsincethatdate, having been judgedto becontrary to Article2, paragraph 2,ofthe Havana Convention of1928, ought tohaveceased immediatelyafter the delivery oftheJudgment of November 20th,1950, and must inanycasecease forthwithin order thatPeruvian justicemay resume its normal coursewhichhas been suspended." In the course of his oral statement on May 16th,1951, theAgent oftheGovernmentofColombia re- statedtheSubmissions oftheMemorial with thefollowing additionrelating to the Submissions of the Counter-Memorial ofPeru: "To statein what mannertheJudgmentofNovember 20th, 1950, shall beexecutedby Colombia,when stating, in accordance withthefirst pointofour principal claim, 'in what mannertheJudgmentof November 20th, 1950, shall beexecutedby Colombia andPeru'; On SubmissionII of thesame Counter-Memorial: To rejectit; And, should occasion arise,to reject SubmissionIII ofthe said Counter-Memorial." On the other hand, Counsel for the Government ofPeru requestedtheCourt to decide inits favour upon the Submissions set out inits Counter-Memorial. Finally,theAgentof the Government ofCuba presentedherGovernment's interpretation oftheHavana Convention sofar as concerns the surrender oftherefugeeto the Peruvianauthorities. *** The GovernmentofCuba, availing itself oftheright which Article 63 oftheStatuteoftheCourt confers on States parties toa convention, filed a Declaration ofIntervention withtheRegistry onMarch 13th, 1951,andattached thereto a Memorandum inwhichit stated its views in regardto the interpretationoftheHavana Convention of1928ratified by itand also its generalattitudetowards asylum.The Court considered thatthis Memorandum was regarded by theGovernment ofCubaas constituting the written observations providedfor in paragraph 4 ofArticle 66 oftheRules of Court. The GovernmentofPerucontendedthat the intervention oftheGovernmentofCuba was inadmissible, owing to the DeclarationofIntervention being out oftime, and tothefact thattheDeclaration and the Memorandum accompanying it didnotconstitute an intervention inthetruemeaning ofthe term, but anattempt by a third Stateto appeal againsttheJudgmentdelivered by theCourton November 20th, 1950. In regard to thatquestion, theCourt observes thatevery intervention is incidental totheproceedings in a case;it follows that a declaration filedas aninterventiononly acquires thatcharacter, in law,ifit actually relates tothesubject-matter ofthepending proceedings. Thesubject-matterofthe presentcasediffers from that ofthecase which was terminatedby theJudgmentofNovember 20th, 1950: it concerns a question-the surrender ofHaya dela TorretothePeruvian authorities - which in theprevious casewas completelyoutsidetheSubmissions ofthe Parties, and which was in consequence inno way decided bytheabove-mentioned Judgment. In these circumstances, theonlypoint which itis necessary to ascertainis whethertheobject ofthe intervention oftheGovernmentofCuba is infacttheinterpretation oftheHavana Conventionin regard to thequestionwhether Colombia is underanobligationto surrendertherefugeeto the Peruvianauthorities. On that point, the Courtobserves that the Memorandum attached totheDeclaration ofInterventionof the Government ofCuba is devoted almost entirely to a discussionofthequestions whichthe Judgment ofNovember 20th,1950, had already decided with the authority ofres judicata, and that, to thatextent, it dos not satisfy theconditions ofa genuine intervention.However, at the public hearing on May 15th, 1951,theAgentofthe Government ofCuba statedthat the intervention was basedon the fact that theCourtwas required tointerpreta new aspect ofthe Havana Convention,an aspectwhichtheCourt had not beencalled on toconsider inits Judgment ofNovember 20th,1950. Reduced inthis way, and operating within theselimits, theintervention oftheGovernmentofCuba conformed totheconditions ofArticle63oftheStatute, and the Court, having deliberatedon the matter,decidedon May16th toadmittheintervention in pursuanceofparagraph 2ofArticle66 ofthe Rules ofCourt. *** In its Judgment ofNovember20th, 1950,theCourt defined'the legalrelations between Colombia and Peru with regard tomatters.referred toit by themrelating todiplomatic asylum ingeneraland particularly to the asylum grantedto Víctor RaúlHaya dela Torreby the Ambassador ofColombia in Lima on January3rd-4th, 1949. On theday ofthedelivery ofthis Judgment theGovernment of Colombia submitted to theCourta Requestfor Interpretation, whichby theJudgment of November 27th, 1950, was declared to beinadmissible. On the following day, the Ministerfor Foreign Affairs and PublicWorshipofPeru, relying onthe Judgment ofNovember 20th,addresseda noteto theChargé d'Affaires ofColombia atLima, stating in particular:
- 23. "The moment hascome tocarry out the Judgment delivered by the InternationalCourt ofJustice by terminating theprotection which thatEmbassyis improperly granting to Víctor Raúl Haya dela Torre. It is no longer possible further to. prolong anasylumwhich is being maintained inopen contradiction to the Judgment which has beendelivered. The Colombian Embassy cannotcontinue to protect therefugee, thus barring theactionofthenationalcourts. You must takethenecessary steps, Sir, with a view to terminating this protection, which is being improperly granted, by delivering the refugee Víctor RaúlHaya dela Torre, so that hemay be placed at the disposaloftheexamining magistrate who summonedhimto appear for judgment, in accordance withwhat I haverecited above." In a Note datedDecember 6th,1950, addressed to theMinisterfor ForeignAffairs and PublicWorship of Peru, the Minister for Foreign Affairs ofColombia refused tocomply with this request; herelied in particularon thefollowing considerations: "Consequently,theCourt formally rejected thecomplaintmadeagainst the Government ofColombia in the counter-claimoftheGovernment ofPeru, namely, thatit had granted asylum to persons accused of or condemned for common crimes. Should Colombia proceedto thedelivery ofthe refugee, as requested byYour Excellency, [it]wouldnotonly disregardtheJudgmentto whichwe are now referring, but wouldalso violate Article1, paragraph 2,oftheHavana Convention which provides that:'Persons accused ofor condemned for common crimes taking refugein a legation shall besurrenderedupon request ofthelocal government.'" These arethecircumstances giving riseto the presentcasewhich has been brought beforetheCourt by the Government ofColombia byApplication ofDecember 13th, 1950. The Parties have inthepresent caseconsented to the jurisdictionoftheCourt. Allthequestions submittedto ithave been argued by themon the merits,andno objection has been made toa decision onthemerits. This conductofthe Parties is sufficient toconfer jurisdictionon theCourt. *** In the first partof its principalSubmission theGovernment ofColombia requests theCourt "to state in whatmanner the Judgment ofNovember20th,1950, shallbe executed by Colombia and Peru....". On the other hand, the Government ofPeru inits first Submission requests theCourt "to state in whatmanner the Judgment ofNovember20th,1950, shallbe executed by Colombia". These Submissions areboth designedto obtaina decision fromtheCourt as tothemannerin whichthe asylum shouldbe terminated.The portion ofthe Judgment ofNovember20th, 1950, to which they refer is thepassagewhere, inpronouncing onthequestion oftheregularity oftheasylum, it declares thatthegrant ofasylumwas not made inconformitywith Article 2, paragraph2 ("First"), of the Havana Convention on Asylum of1928. TheCourt observes thattheJudgmentconfined itself, inthis connection, to defining thelegalrelations which the Havana Convention had establishedbetweentheParties. It did not giveany directions to theParties, and entails for them only the obligationofcompliance therewith. Theinterrogativeformin whichthey haveformulated their Submissions shows thatthey desirethattheCourt shouldmake a choiceamongst thevarious courses by whichtheasylummay beterminated.But thesecourses areconditioned byfacts and by possibilities which,to a verylargeextent, theParties arealone ina positionto appreciate.A choice amongstthem could not bebasedon legal considerations, but only onconsiderations of practicability or ofpolitical expediency; it is not partoftheCourt's judicial functionto makesuch a choice. In the secondpart ofits principal Submission, theGovernment ofColombia requests the Court "to adjudge anddeclarethatColombia is not bound, in execution ofthe said Judgment ofNovember 20th, 1950,to deliver M. Víctor RaúlHaya dela Torreto thePeruvian authorities". This part oftheprincipalSubmission ofColombia is strictly limited by the words "inexecution ofthe said Judgment ofNovember 20th,1950". Thesewords serveto confine the requestthus formulated,as in the first part ofthesame Submission, to theexecutionofthe Judgment ofNovember20th, 1950. As was statedbothin that Judgmentand intheJudgmentofNovember 27th, 1950, theGovernment of Peru had notdemandedthesurrenderofthe refugee. This questionwas not submitted tothe Court and consequently was notdecided by it. It is not therefore possible todeduce fromthe Judgment ofNovember 20th any conclusionas totheexistence ornon-existence ofanobligation to surrendertherefugee. In thesecircumstances, the Courtis not ina positionto state, merely on the basis ofthe Judgment ofNovember 20th,whetherColombia is or is not boundto surrender the refugeeto thePeruvian authorities. For these reasons,theCourt cannotgiveeffectto the above-mentionedSubmissions. The alternative Submission oftheGovernment ofColombia is as follows: "In the event ofthe Courtnot delivering judgment on theforegoing Submission, may it pleasetheCourt to adjudgeanddeclare,in the exerciseofits ordinarycompetence,that Colombia is notbound to deliver the politicallyaccused M. VíctorRaúl Haya dela Torreto the Peruvianauthorities." In its secondSubmission the Government ofPeru requests theCourt "to dismiss theSubmissions ofColombia by which theCourtis asked to state solely ("sans plus") that Colombia is notbound todeliver Víctor RaúlHaya de la Torre tothePeruvian authorities". The GovernmentofPerustates in this Submission that the Court is asked by theSubmissions of Colombia "to states solely that Colombia is not bound…". By using this word "solely"("sans plus") the Government ofPeru wishes to convey thatthelegalposition which the Judgment ofNovember 20th created for it mustin any casebe preserved;it refers thus to the statement setforth in its third Submission, whichwill beexamined later. As mentionedabove, thequestionofthesurrender ofthe refugee was notdecidedby theJudgment of November 20th. This questionis new; itwas raised byPeru inits NotetoColombia ofNovember 28th, 1950,andwas submittedto the Courtby theApplication ofColombia ofDecember 13th, 1950. Thereis consequently nores judicata upon the question ofsurrender. According to the Havana Convention, diplomatic asylum is a provisional measure for the temporary protection ofpolitical offenders. Even ifregularly granted itcannot beprolongedindefinitely,but must be terminatedas soon as possible. Itcan, according to Article 2, paragraph 2, onlybe granted "for the period oftimestrictly indispensable for the person whohas sought asylum toensure in some other way his safety". The Court finds that theConvention does notgivea completeanswer to thequestion ofthemannerin which an asylumshallbe terminated.
- 24. As to personsaccused ofor condemned for common crimes whoseek refuge, Article1 prescribes that they shall besurrendered upon request ofthe localgovernment. For "politicaloffenders"another method of terminating asylum is prescribed, namely, thegrantofa safe-conduct for the departure from the country. But, under theterms ofthe Judgment ofNovember20th,a safe-conduct can only be claimedundertheHavana Convention ifthe asylum has beenregularly grantedand maintainedand iftheterritorialStatehas requiredthattherefugeeshould besentoutofthe country. For cases in whichtheasylumhas not been regularly granted or maintained,no provision is made as to the methodoftermination.Nor is any provision made in this matterin cases where the territorial Statehas not requested the departure ofthe refugee.Thus, though theConvention prescribes that the durationofthe asylum shallbelimitedto the time"strictly indispensable…", it is silent onthequestion how the asylum shouldbe terminated ina variety ofdifferent situations. As the Court pointed outin its JudgmentofNovember 20th, theHavana Convention, the firstarticle of which requires thatpersons accusedofor condemnedfor commoncrimes shall besurrendered to the territorial authorities, does notcontainany similarprovision inregardto political offenders. This silence cannotbeinterpreted as imposing anobligationto surrender therefugeeincasethe asylum was grantedto him contrary to the provisions ofArticle2 oftheConvention.Suchan interpretationwould berepugnantto thespiritwhich animatedthat Convention inconformity with the Latin-Americantradition in regard to asylum,a tradition in accordance withwhich politicalrefugees should not besurrendered. There is nothing inthattradition toindicatethat an exception should bemadewhereasylumhas been irregularly granted. Ifit hadbeen intendedto abandonthat tradition,anexpress provisionto thateffect wouldhavebeen needed, andthe Havana Convention contains nosuch provision. Thesilence oftheConventionimplies that itwas intended to leavetheadjustment oftheconsequences ofthis situationto decisions inspiredby considerations ofconvenienceor ofsimplepolitical expediency. To infer fromthis silencethat there is an obligation tosurrendera personto whom asylum has beenirregularly granted would be to disregard boththerôleofthese extra-legalfactors in the development ofasylumin Latin America,andthespiritofthe Havana Convention itself. In its Judgment of November20th the Courtpointed out that, inprinciple, asylumcannot beopposed to the operation ofjustice. The safety which arises outofasylum cannot beconstruedas a protection against theregularapplication ofthelaws and against thejurisdiction oflegally constituted tribunals. Protection thus understoodwould authorizethediplomaticagentto obstruct the application of thelaws ofthecountry, whereas it is his duty to respectthem. The Court further said that it couldnotadmitthattheStates signatories to the Havana Convention intendedto substitute for the practice oftheLatin-Americanrepublics a legalsystemwhich would guarantee to their own nationals accused ofpolitical offences theprivilege ofevading nationaljurisdiction. But it would beanentirely differentthing to say thattheStategranting an irregularasylum is obliged to surrender the refugee tothelocal authorities. Suchanobligationto render positive assistanceto theseauthorities intheirprosecution ofa politicalrefugeewouldfar exceed the above-mentionedfindings oftheCourt and could not berecognized without an express provision to that effectin theConvention. Thus, the Havana Conventiondoes not justify theview thattheobligationincumbenton a Stateto terminateanasylumirregularly granted toa politicaloffender, imposes a duty upon thatStateto surrender the personto whom asylum has beengranted. In its Judgment of November20th the Court, in examining whether the asylum was regularly granted, found that theGovernmentofPeru had not proved thattheacts ofwhich Haya dela Torrewas accused,before asylum was granted tohim, constituted common crimes.Moreover, whenthe Court considered theprovisions ofArticle2, paragraph 2, relating topolitical offenders, itheld,on the basis of theseprovisions,that the asylum hadnot been grantedin conformity with the Convention. Itfollows fromtheseconsiderations that, so faras thequestionofsurrender is concerned,therefugeemust betreated as a personaccused ofa politicaloffence. TheCourthas, consequently, arrived attheconclusion that the Government ofColombia is under no obligation to surrender Haya dela Torreto the Peruvianauthorities. The third Submission oftheGovernmentofPeruis as follows: "In the event ofthe Courtnot delivering judgment on SubmissionNo. I, toadjudgeand declare that the asylum granted to SeñorVíctor RaúlHaya dela Torreon January 3rd, 1949,andmaintained since that date, having been judged to becontrary to Article2, paragraph 2,oftheHavana Convention of1928, it ought tohave ceasedimmediately after thedelivery oftheJudgmentofNovember 20th, 1950,andmustin any caseceaseforthwith,in order thatPeruvian justice mayresume its normal coursewhich has beensuspended." The GovernmentofColombia has requested theCourt toreject this Submission. In its Judgment ofNovember20th, theCourtheldthat the grantofasylum bytheGovernment of Colombia to Haya dela Torrewas not made in conformity with Article 2, paragraph 2 ("First"), of the Convention. This decision entails a legal consequence, namelythat ofputting an end toan illegalsituation: the Government ofColombia which had granted theasylum irregularly is boundto terminateit.As theasylumis still being maintained,theGovernment ofPeruis legally entitled to claim thatit shouldcease. But the latter Governmentadds in its Submission a demand that the asylum shouldcase"in order that Peruvianjustice may resume its normal coursewhichhas been suspended". This addition appears to involve,indirectly, a claim for thesurrender oftherefugee. For thereasons givenabove, this part ofthe Submission oftheGovernmentofPeru cannot beaccepted. The Court has thus arrived at the conclusionthattheasylummust cease,butthat the Government of Colombia is underno obligation to bring this about bysurrendering the refugee tothePeruvian authorities. Thereis no contradiction betweenthese two findings,since surrender is nottheonly way ofterminating asylum. Having thus defined in accordancewith the Havana Convention the legal relations between the Parties with regardto the matters referredto it,theCourt has completed its task.It is unableto giveany practicaladviceas to thevarious courses whichmight befollowedwitha viewto terminating the asylum,since,by doing so, itwould depart from its judicialfunction. Butit canbe assumedthat the Parties,now that their mutuallegalrelations have been madeclear,will beable tofind a practicaland satisfactory solution by seeking guidancefrom those considerations ofcourtesy and good-neighbourliness which, inmatters ofasylum, havealways held a prominent placein the relations between the Latin-American republics. For these reasons, The Court, on the principalSubmission ofthe Government ofColombia and thefirstSubmission oftheGovernment ofPeru, unanimously, finds thatit cannotgiveeffect to theseSubmissions andconsequently rejects them; on the alternative SubmissionoftheGovernment ofColombia andthesecondSubmission ofthe Government ofPeru, by thirteen votes to one,
- 25. finds thatColombia isunder no obligation tosurrender Víctor RaúlHaya de la Torre tothePeruvian authorities; on the third Submission oftheGovernmentofPeru, unanimously, finds thattheasylumgranted toVíctor RaúlHaya de la Torre onJanuary 3rd-4th, 1949,and maintained since thattime,oughtto have ceasedafter the delivery oftheJudgment ofNovember20th,1950, and should terminate. Monetary Gold Removedfrom Romein 1943 (Italy v. France,UnitedKingdom and UnitedStates) From Wikipedia,thefreeencyclopedia The MonetaryGoldRemoved fromRome in1943Case(Italyv. France, UnitedKingdomand United States) was part ofa long-running disputeover thefate ofNazi goldthatwas originally seizedfrom Rome. On 17 September 1943, 2,338 kg ofgoldwere seizedby theGermans fromRome. After the war,bothItalyandAlbania claimedthat this gold was theirs,and thattheCommissionfor the Restitution of MonetaryGoldshould return it to them. On 17 November 1950, the commission informedtheirforming governments (France,theUK and USA) that they could not resolvethe issue. On 25 April 1951,thethreegovernments, having failedto reach an agreement,agreed torequestthat the InternationalCourt ofJustice appoint an independent arbitrator, who, on 20February 1953, decidedthat the gold belonged toAlbania. However, the UKandItaly still laid claimto the gold: the UKas partial payment towards the(still unsettled) compensation that Albania was orderedto pay themagainst damageto UKnavy vessels and loss of lifeduring the Corfu Channel Incident, caused by an undisclosedAlbanian mine-field in Corfu (see theCorfu ChannelCase), whilstItaly claimed that mostofthegold was originally Italian, seized by theAlbaniangovernment whenit took control ofthe National Bank ofAlbania (which Italy hadthemajority ofshares in), and additionally that theItalian PeaceTreaty specifically gave them claimto thegold. On 19 May 1953, Italy requested that theICJdeterminehowmuch ofthegoldItaly had claim to, and whether the UK's or the Italian's claimshould take precedence, stating that the three countries responsiblefor theredistribution ofthegoldshould give itall toItaly in partialcompensationfor the Albanian seizureoftheNational BankofAlbania,and thatthis claim should over-ride the UK's claim. On 15 June 1953, theICJdecided that, as thefirst issueto beaddressed was theresolution ofthelegal disputebetween Italy and Albania over the seizureoftheNationalBank ofAlbania, and as Albania had not deferred totheICJ in this case,theICJhadno jurisdiction in this matter. Republicof the Philippines SUPREMECOURT Manila SECOND DIVISION G.R. No. 86773February 14, 1992 SOUTHEAST ASIAN FISHERIES DEVELOPMENTCENTER-AQUACULTURE DEPARTMENT(SEAFDEC-AQD), DR. FLOR LACANILAO (CHIEF), RUFIL CUEVAS (HEAD, ADMINISTRATIVEDIV.), BEN DELOS REYES (FINANCEOFFICER), petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and JUVENAL LAZAGA, respondents. Ramon Encarnacionfor petitioners. Caesar T. Corpus for privaterespondent. NOCON, J.: This is a petition for certiorarito annul andset asidetheJuly 26,1988decision ofthe NationalLabor Relations Commissionsustaining thelaborarbiter, inholding herein petitioners SoutheastAsian Fisheries DevelopmentCenter-AquacultureDepartment (SEAFDEC-AQD), Dr.Flor Lacanilao, Rufil Cuevas andBen delos Reyes liableto pay private respondentJuvenalLazaga theamount of P126,458.89plus interest thereon computedfrom May16,1986until full payment thereofis made, as separation pay andother post-employment benefits, and the resolutiondenying the petitioners'motion for reconsiderationofsaiddecision datedJanuary 9, 1989. The antecedent facts ofthecaseareas follows: SEAFDEC-AQD is a department ofaninternational organization, theSoutheast Asian Fisheries Development Center, organized throughanagreemententeredinto inBangkok,Thailand on December 28, 1967 by the governments ofMalaysia, Singapore,Thailand, Vietnam,Indonesia and the Philippines with Japan as the sponsoring country (Article1, Agreement Establishing the SEAFDEC). On April 20, 1975, privaterespondent JuvenalLazaga was employed as a Research Associate an a probationary basis bytheSEAFDEC-AQD andwas appointed Senior External Affairs Officer on January5, 1983with a monthly basicsalary ofP8,000.00 and a monthly allowanceofP4,000.00. Thereafter, hewas appointedto thepositionofProfessionalIII anddesignated as HeadofExternal Affairs Office with thesame payandbenefits. On May 8, 1986,petitioner Lacanilao inhis capacity as ChiefofSEAFDEC-AQD senta noticeof termination toprivaterespondent informing himthat due tothefinancialconstraints being experiencedby thedepartment, his services shall beterminatedat thecloseofofficehours on May 15, 1986and that heis entitled toseparation benefits equivalent to one (1) monthofhis basic salary for every yearofserviceplus other benefits (Rollo, p. 153). Upon petitionerSEAFDEC-AQD's failureto pay privaterespondent his separation pay, thelatter filed on March 18, 1987a complaintagainst petitioners for non-payment ofseparation benefits plus moral damages and attorney's fees with theArbitration Branch oftheNLRC(Annex"C"ofPetition for Certiorari). Petitioners in their answer withcounterclaim alleged that the NLRC has no jurisdiction over the case inasmuch as theSEAFDEC-AQD is an internationalorganization and that private respondentmust first secureclearances from theproper departments for property or money accountabilitybefore any claim for separation pay willbepaid,and whichclearances hadnotyet been obtained by the private respondent. A formal hearing was conductedwhereby private respondentalleged thatthenon-issuance ofthe clearances by the petitioners was politically motivated andin bad faith. On the other hand,
- 26. petitioners alleged thatprivaterespondenthas property accountability and an outstanding obligation toSEAFDEC-AQD in the amountofP27,532.11.Furthermore, privaterespondent is not entitled toaccruedsick leavebenefits amounting to P44,000.00dueto his failure toavail ofthe same during his employment with the SEAFDEC-AQD (Annex "D", Id.). On January12,1988, thelabor arbiter rendereda decision, the dispositiveportion ofwhichreads: WHEREFORE, premises considered, judgment is hereby renderedordering respondents: 1. To pay complainantP126,458.89, plus legal interest thereon computed fromMay 16, 1986 until full payment thereofis made,as separation pay andother post-employment benefits; 2. To pay complainantactualdamages in theamountofP50,000, plus 10% attorney's fees. All other claims are hereby dismissed. SO ORDERED. (Rollo, p. 51, Annex "E") On July 26, 1988, said decision was affirmed by the Fifth Divisionofthe NLRC exceptas to theaward of P50,000.00 as actualdamages andattorney's fees for being baseless. (Annex "A", p. 28,id.) On September 3,1988, petitioners fileda Motionfor Reconsideration(Annex"G", id.) whichwas denied on January 9, 1989.Thereafter,petitioners instituted this petitionfor certiorarialleging thatthe NLRC has no jurisdiction tohearand deciderespondent Lazaga's complaint sinceSEAFDEC-AQD is immune from suit owing toits internationalcharacter and the complaintis in effect a suitagainst the Statewhich cannot bemaintainedwithout its consent. The petition is impressed with merit. Petitioner Southeast Asian Fisheries Development Center-Aquaculture Department(SEAFDEC-AQD) is an internationalagency beyond thejurisdiction ofpublic respondentNLRC. It was establishedby theGovernments ofBurma, KingdomofCambodia, RepublicofIndonesia, Japan, Kingdom of Laos, Malaysia. Republicofthe Philippines, Republic ofSingapore,KingdomofThailand and RepublicofVietnam(Annex"H", Petition). The Republic of thePhilippines becamea signatory totheAgreement establishing SEAFDEC on January 16,1968. Its purpose is as follows: The purposeof theCenter is to contribute tothepromotion ofthefisheries developmentin Southeast Asia by mutualco-operation among the member governments oftheCenter,hereinafter called the "Members", and through collaboration withinternationalorganizations andgovernments external totheCenter. (Agreement Establishing theSEAFDEC, Art. 1;Annex "H"Petition) (p.310, Rollo) SEAFDEC-AQD was organizedduring the SixthCouncil Meeting ofSEAFDEC on July 3-7,1973in Kuala Lumpur, Malaysia as one oftheprincipal departments ofSEAFDEC (Annex "I", id.) to beestablished in Iloilo for the promotionof research in aquaculture.Paragraph1, Article6 oftheAgreement establishing SEAFDEC mandates: 1. The Councilshall bethesupreme organ oftheCenter and allpowers ofthe Centershall bevested in the Council. Being an intergovernmentalorganization,SEAFDEC including its Departments (AQD), enjoys functional independenceand freedomfrom controlofthe state inwhoseterritory its officeis located. As Senator Jovito R.Salonga andFormer ChiefJustice Pedro L. Yap stated intheirbook, Public InternationalLaw (p. 83, 1956ed.): Permanentinternational commissions and administrative bodies havebeencreated by the agreement ofa considerablenumber ofStates for a variety ofinternationalpurposes, economic orsocialand mainly non-political.Among the notableinstances arethe International Labor Organization,the InternationalInstituteofAgriculture, theInternational DanubeCommission. In so faras they are autonomous and beyond the controlofany oneState, they havea distinct juridical personality independent ofthe municipal law oftheStatewherethey aresituated. As such, according to one leading authority "they mustbe deemed topossess a species ofinternationalpersonality oftheir own."(Salonga and Yap, Public InternationalLaw, 83[1956ed.]) Pursuant to its being a signatory totheAgreement, the Republicofthe Philippines agreed tobe representedby oneDirector inthegoverning SEAFDEC Council(Agreement Establishing SEAFDEC, Art. 5, Par. 1, Annex"H", ibid.) and that its national laws andregulations shallapplyonlyinsofar as its contribution toSEAFDEC of"an agreedamount ofmoney,movableand immovable property and services necessaryfor theestablishmentand operation oftheCenter"are concerned (Art. 11, ibid.). It expressly waivedtheapplication ofthePhilippinelaws on the disbursement offunds of petitionerSEAFDEC-AQD (Section2, P.D.No. 292). The then MinisterofJusticelikewiseopined thatPhilippine Courts have nojurisdiction over SEAFDEC- AQD in Opinion No. 139, Series of1984 — 4. One ofthe basicimmunities ofan international organizationis immunity from localjurisdiction, i.e., thatit is immunefrom thelegalwrits and processes issued by thetribunals ofthecountry where it is found. (SeeJenks,Id., pp. 37-44) The obvious reasonfor this is that the subjection of such an organization totheauthority ofthe localcourts wouldafforda convenient mediumthru which the hostgovernment may interferein there operations or even influence orcontrol its policies anddecisions oftheorganization; besides, suchsubjection tolocal jurisdiction would impair the capacity ofsuchbody todischargeits responsibilities impartially on behalfofits member-states. In thecaseatbar, for instance, theentertainment by theNational Labor Relations Commission ofMr. Madamba's reinstatementcases would amount to interference by the PhilippineGovernmentin the management decisions oftheSEARCAgoverning board; even worse, it could compromise the desiredimpartialityofthe organizationsince itwill have tosuit its actuations to therequirements ofPhilippinelaw,whichmay not necessarily coincidewith the interests oftheothermember-states. Itis precisely to forestall thesepossibilities thatin cases where the extent oftheimmunity is specifiedin the enabling instruments ofinternational organizations, jurisdictionalimmunity from the hostcountry is invariably among the firstaccorded. (See Jenks,Id.;SeealsoBowett, TheLaw ofInternationalInstitutions,pp. 284-1285). RespondentLazaga's invocation ofestoppelwith respect totheissueofjurisdictionis unavailing because estoppel does not apply to confer jurisdiction toa tribunal that has none over a causeof action. Jurisdictionis conferredby law.Wherethereis none,no agreement oftheparties can provide one. Settled is therulethat the decision ofa tribunalnotvestedwithappropriate jurisdictionis null and void.Thus, inCalimlimvs. Ramirez, this Court held: A rule, that hadbeen settled by unquestionedacceptanceand upheldin decisions sonumerous tocite is that the jurisdiction ofa court over the subjectmatter ofthe action is a matter oflaw andmaynot be conferred by consent oragreementofthe parties. Thelackofjurisdiction of a court may be raisedatanystageoftheproceedings,even onappeal. This doctrinehas been qualifiedby recent pronouncements which it stemmed principally fromtheruling in the cited caseofSibonghanoy. It is to be regretted, however, thattheholding insaid case hadbeen appliedto situations which were obviously not contemplated therein. Theexceptional circumstances involvedin Sibonghanoy which justifiedthedeparturefrom the acceptedconcept ofnon-waivability ofobjection to
- 27. jurisdictionhas been ignoredand, insteada blanket doctrine hadbeen repeatedly upheldthat renderedthesupposedruling in Sibonghanoynot as theexception, butrather thegeneralrule, virtually overthrowing altogether the time-honoredprinciple that the issueofjurisdiction is not lost by waiver or by estoppel. (Calimlim vs. Ramirez, G.R.No. L-34362, 118 SCRA399; [1982]) RespondentNLRC'S citation oftheruling ofthis Court inLacanilao v. DeLeon (147 SCRA286[1987]) to justify its assumption ofjurisdiction over SEAFDEC is misplaced. On the contrary, theCourtin said case explained why it took cognizanceofthecase.Said the Court: We would note,finally, that the presentpetition relates to a controversy between twoclaimants to the same position; this is not a controversybetweentheSEAFDEC on the one hand, andan officer or employee, ora personclaiming to bean officer oremployee,ofthe SEAFDEC,on theother hand. There is beforeus noquestion involving immunity fromthejurisdiction oftheCourt, there being no plea for suchimmunitywhether byor on behalfofSEAFDEC, or by anofficial ofSEAFDEC with the consentof SEAFDEC (Id., at300; emphasis supplied). WHEREFORE, finding SEAFDEC-AQD to be an internationalagency beyondthejurisdiction ofthecourts or local agency ofthePhilippinegovernment, thequestioned decision and resolutionoftheNLRC dated July 26, 1988 and January9, 1989, respectively, arehereby REVERSED and SETASIDEfor having been renderedwithout jurisdiction.No costs. SO ORDERED. Melencio-Herrera, Paras, Padilla andRegalado, JJ., concur. Republicof the Philippines SUPREMECOURT Manila EN BANC G.R. No. 101538 June 23, 1992 AUGUSTO BENEDICTO SANTOS III, represented by his fatherand legal guardian, AugustoBenedicto Santos, petitioner, vs. NORTHWEST ORIENT AIRLINES and COURT OF APPEALS, respondents. CRUZ, J.: This caseinvolves the Properinterpretation ofArticle28(1) oftheWarsaw Convention, reading as follows: Art. 28. (1) An action for damagemustbe brought attheoption oftheplaintiff, inthe territory of one oftheHigh Contracting Parties, eitherbefore thecourt ofthedomicileofthe carrier orof his principalplace ofbusiness, or where hehas a placeofbusiness throughwhich the contracthas been made,or beforethecourt at the placeofdestination. The petitioner is a minor anda residentofthePhilippines. Private respondentNorthwest Orient Airlines (NOA) is a foreign corporationwith principal office in Minnesota, U.S.A. and licensed todo business and maintain a branch office in thePhilippines. On October 21,1986, thepetitioner purchasedfrom NOAa round-tripticket inSanFrancisco. U.S.A., for his flight from San Francisco toManila via Tokyo and back. Thescheduled departuredatefrom Tokyo was December 20, 1986.No datewas specified for his returnto San Francisco. 1 On December 19, 1986, thepetitioner checkedin at the NOAcounter in theSan Francisco airportfor his scheduleddepartureto Manila. Despitea previous confirmation and re-confirmation, hewas informed thathe hadno reservation for his flightfrom Tokyoto Manila. Hethereforehad to be wait-listed. On March 12, 1987, the petitionersuedNOAfor damages in the RegionalTrial CourtofMakati. On April 13, 1987,NOAmoved to dismiss the complainton theground oflack ofjurisdiction. Citing the above-quoted article,it contended thatthecomplaint couldbeinstituted only intheterritory of one ofthe High Contracting Parties, before: 1. the court ofthedomicileof the carrier; 2. the court ofits principal placeofbusiness; 3. the court whereithas a place ofbusiness through which the contracthadbeenmade; 4. the court oftheplace ofdestination. The privaterespondent contended thatthePhilippines was notits domicilenor was this its principal place ofbusiness.Neither was thepetitioner's ticket issued in this country nor was his destination Manila but San Francisco in theUnitedStates. On February 1,1988, thelower court granted themotion anddismissedthecase.2 The petitioner appealedto the CourtofAppeals, whichaffirmed thedecision ofthelowercourt.3 On June 26, 1991, thepetitioner fileda motion for reconsideration,butthesamewas denied. 4 Thepetitioner then cameto this Court, raising substantially thesame issues itsubmittedin the CourtofAppeals. The assignmentoferrors may begroupedinto two major issues, viz: (1) the constitutionality ofArticle 28(1) ofthe Warsaw Convention; and (2) the jurisdictionofPhilippine courts over thecase. The petitioner also invokes Article24 oftheCivilCode ontheprotectionofminors. I THEISSUEOF CONSTITUTIONALITY A. The petitioner claims that the lower courterredin not ruling that Article28(1) oftheWarsaw Convention violates the constitutionalguarantees ofdueprocess and equalprotection. The Republic ofthePhilippines is a party totheConventionfor theUnificationofCertainRules Relating to InternationalTransportationby Air,otherwiseknown as the WarsawConvention.It took effect on February13,1933. The Convention was concurred inby theSenate, throughits ResolutionNo. 19, on May 16, 1950.The Philippineinstrument ofaccession was signed by PresidentElpidio Quirino on October 13, 1950, andwas depositedwiththePolishgovernment onNovember 9, 1950. The Conventionbecameapplicable tothePhilippines onFebruary 9, 1951. On September 23, 1955,President Ramon Magsaysay issued Proclamation No.201, declaring ourformal
- 28. adherencethereto. "to theend that thesameandevery articleand clausethereofmay be observedand fulfilledin good faithby theRepublic ofthePhilippines andthecitizens thereof."5 The Conventionis thus a treaty commitment voluntarily assumedby thePhilippinegovernment and,as such, has the force andeffect oflaw inthis country. The petitioner contends thatArticle28(1) cannot beapplied in thepresent casebecauseit is unconstitutional. Heargues that there is nosubstantialdistinctionbetweena personwho purchases a ticket in Manila and a personwho purchases his ticketin San Francisco. The classificationof the places in which actions for damages may bebroughtis arbitraryandirrational and thus violates the dueprocess and equalprotectionclauses. It is well-settled thatcourts willassumejurisdictionover a constitutional questiononly ifit is shown that the essentialrequisites ofa judicial inquiry intosucha questionarefirst satisfied. Thus,theremust be an actual caseor controversy involving a conflictoflegalrights susceptibleofjudicial determination; theconstitutional question musthave been opportunely raised bytheproper party; andtheresolution ofthequestionis unavoidably necessary to thedecision ofthe caseitself. 6 Courts generally avoid having todecidea constitutionalquestion.This attitude is based onthedoctrine of separation ofpowers, whichenjoins upon the departments ofthegovernment a becoming respectfor eachother's acts. The treaty which is the subject matter ofthis petition was a joint legislative-executiveact. The presumption is thatit was firstcarefully studied and determined to beconstitutionalbefore it was adoptedandgiven the force oflawin this country. The petitioner's allegations arenotconvincing enoughto overcome this presumption. Apparently, the Convention consideredthefour places designated in Article 28 the most convenient forums for the litigationof any claimthatmay arisebetweentheairline andits passenger, as distinguished from all otherplaces. At any rate,we agree withtherespondent courtthat this casecan bedecided on other grounds withoutthenecessityofresolving theconstitutional issue. B. The petitioner claims that the lower courterredin not ruling that Art. 28(1) of theWarsaw Convention is inapplicable because ofa fundamental changein the circumstances thatservedas its basis. The petitioner goes atgreat lengths toshow that theprovisions in theConventionwere intendedto protect airlinecompanies under "theconditions prevailing thenand whichhave long ceasedto exist."Heargues thatin viewofthesignificant developments in the airlineindustry throughthe years, the treaty has becomeirrelevant. Hence, to theextentthat ithas lost its basis for approval, it has become unconstitutional. The petitioner is invoking the doctrineofrebus sicstantibus. According toJessup, "this doctrine constitutes anattempt to formulatea legalprinciple which wouldjustify non-performanceofa treaty obligation iftheconditions withrelation towhichtheparties contractedhave changed so materially andsounexpectedly as to create a situation in whichtheexactionofperformance would be unreasonable."7 Thekey elementofthis doctrineis thevitalchange inthecondition of the contracting parties that they could not haveforeseen atthetimethetreaty was concluded. The Court notes in this connection thefollowing observationmadein Day v. Trans WorldAirlines, Inc.:8 The Warsaw drafters wished tocreatea system ofliability rules that wouldcover allthehazards ofair travel . . . The Warsawdelegates knew that, in theyears to come, civilaviationwould changein ways that they could notforesee. Theywished todesign a systemofairlaw thatwouldbe both durableandflexibleenoughto keeppacewith thesechanges . . . The ever-changing needs ofthe system ofcivilaviationcan beservedwithintheframework they created. It is true thatatthetimetheWarsaw Conventionwas drafted, theairlineindustrywas stillin its infancy. However, that circumstancealone is not sufficientjustification for the rejection ofthetreaty at this time. Thechanges recited by the petitionerwere,realistically, notentirely unforeseen although theywere expected ina general senseonly. Infact, the Convention itself, anticipating such developments, contains thefollowing significant provision: Article 41. Any High Contracting Party shallbeentitled not earlierthan two years after the coming into force ofthis convention tocallfor theassembling ofa new internationalconference inorder to consider any improvements whichmaybe made inthis convention. To this end,it will communicatewith theGovernmentoftheFrenchRepublicwhichwill takethenecessary measures to make preparations for such conference. But the moreimportant considerationis that the treaty has not been rejectedby thePhilippine government. Thedoctrineofrebus sic stantibus does notoperateautomatically to render the treaty inoperative. Thereis a necessity for a formal act ofrejection, usually madeby thehead of State, with a statement ofthe reasons why compliancewiththetreaty is nolongerrequired. In lieu thereof, thetreatymay be denounced evenwithout an expressedjustification for this action. Such denunciationis authorizedunder its Article39, viz: Article 39. (1) Any one ofthe High Contracting Parties may denounce this convention by a notification addressed totheGovernment oftheRepublic ofPoland, which shallatonceinform the Government ofeach oftheHighContracting Parties. (2) Denunciation shalltakeeffectsix months after the notification ofdenunciation,and shalloperate only as regards thepartywhich shall haveproceededto denunciation. Obviously.rejectionofthe treaty, whether on the groundofrebus sic stantibus or pursuantto Article 39, is not a function ofthecourts but oftheotherbranches ofgovernment. This is a politicalact. The conclusion andrenunciation oftreaties is theprerogative ofthe politicaldepartments and may not be usurped by thejudiciary. Thecourts areconcerned only withtheinterpretation and application oflaws and treaties in forceand not withtheir wisdom or efficacy. C. The petitioner claims that the lower courterredin ruling thattheplaintiffmust suein the United States,becausethis would deny him the rightto access to our courts. The petitioner alleges thattheexpenses anddifficulties hewill incur infiling a suit intheUnited States would constitutea constructive denial ofhis rightto access to ourcourts for the protection ofhis rights. He would consequently bedeprived ofthis vitalguaranty as embodiedin the BillofRights. Obviously,theconstitutional guaranty ofaccess to courts refers only to courts with appropriate jurisdictionas defined bylaw. Itdoes not mean that a person can go toany court for redress ofhis grievances regardless ofthenature orvalueofhis claim. Ifthepetitioner is barred fromfiling his complaintbefore our courts,it is becausethey arenotvested withtheappropriatejurisdiction under the WarsawConvention,which is partofthelaw ofour land. II THEISSUEOF JURISDICTION.
- 29. A. The petitionerclaims that the lower courterredin not ruling that Article28(1) of theWarsaw Convention is a rulemerely ofvenueand was waivedby defendant whenit did not move to dismiss ontheground ofimproper venue. By its own terms, the Conventionapplies to allinternational transportationofpersons performedby aircraftfor hire. Internationaltransportation is defined in paragraph (2) ofArticle1 as follows: (2) For the purposes ofthis convention, the expression "international transportation"shall meanany transportation in which,according to the contractmadeby theparties, theplaceofdeparture and the placeof destination,whether ornot therebe a break in the transportationor a transshipment, are situated [either]within the territories oftwo HighContracting Parties . . . Whether the transportation is "international"is determined by thecontractoftheparties,which in the case of passengers is theticket.When the contractofcarriageprovides for the transportationof the passenger between certaindesignated terminals "within theterritories oftwoHigh Contracting Parties,"the provisions oftheConvention automatically apply and exclusively govern the rights andliabilities oftheairline and its passenger. Since the flightinvolved in thecaseat baris international, the samebeing fromtheUnited States tothe Philippines and backto theUnited States, it is subject totheprovisions oftheWarsaw Convention, including Article28(1), which enumerates thefour places where an action for damages may be brought. Whether Article28(1) refers to jurisdiction oronly to venueis a question over which authorities are sharplydivided.Whilethepetitioner cites severalcases holding thatArticle28(1) refers tovenue rather thanjurisdiction, 9 there arelater cases citedby theprivaterespondent supporting the conclusionthattheprovision is jurisdictional. 10 Venue and jurisdictionareentirely distinct matters. Jurisdiction may not beconferredby consent or waiver upon d courtwhich otherwisewould haveno jurisdictionoverthesubject-matter ofan action; but thevenueofanaction as fixed by statutemay bechanged bytheconsentoftheparties and an objection that theplaintiffbroughthis suitin the wrong county may bewaivedby the failure of thedefendant to makea timelyobjection.In eithercase, the court may render a valid judgment. Rules as to jurisdictioncan never beleftto theconsent or agreementofthe parties, whether or not a prohibition exists againsttheiralteration. 11 A number of reasons tends to support thecharacterization ofArticle28(1) as a jurisdiction andnot a venue provision. First, the wording ofArticle 32, which indicates theplaces wheretheaction for damages "must"be brought, underscores the mandatory natureofArticle28(1). Second,this characterizationis consistentwith oneoftheobjectives ofthe Convention, which is to "regulatein a uniform manner the conditions ofinternationaltransportation byair."Third, the Convention does not contain any provisionprescribing rules ofjurisdiction other thanArticle 28(1), which means that thephrase"rules as to jurisdiction"usedin Article32 must refer only to Article 28(1). In fact, the lastsentenceofArticle32specifically deals with the exclusiveenumeration in Article 28(1) as "jurisdictions,"which,as such, cannot beleft tothewill oftheparties regardless ofthe time whenthedamageoccurred. This issue was analyzed in theleading caseofSmithv. Canadian PacificAirways,Ltd., 12 whereitwas held: . . . Of more, but still incomplete, assistanceis thewording ofArticle28(2), especially whenconsidered in the lightof Article32.Article28(2) provides that "questions ofprocedure shall begoverned by the law of thecourt towhich thecaseis submitted"(Emphasis supplied). Section(2) thus may be read to leave for domestic decisionquestions regarding the suitability and locationofa particular WarsawConvention case. In other words,wherethematter is governed by the WarsawConvention,jurisdictiontakes ona dual concept.Jurisdiction in the internationalsensemustbe establishedin accordancewith Article 28(1) ofthe Warsaw Convention, following whichthejurisdiction ofa particular courtmust be establishedpursuant totheapplicabledomesticlaw.Only after thequestionofwhich courthas jurisdictionis determined willtheissueofvenue betaken up. This secondquestion shall be governed by the lawofthe court to which the caseis submitted. The petitioner submits that sinceArticle 32 states thattheparties areprecluded"beforethe damages occurred"fromamending therules ofArticle 28(1) as to theplacewheretheactionmaybe brought, it wouldfollow that theWarsawConvention was notintended toprecludethemfrom doing so "after thedamages occurred." Article 32provides: Art. 32. Any clausecontained inthecontract and allspecialagreements enteredinto beforethe damage occurred by which the parties purport to infringetherules laid down by this convention, whether by deciding thelaw to beapplied,or by altering therules as tojurisdiction, shallbenull and void. Nevertheless for thetransportationofgoods, arbitration clauses shall beallowed, subjectto this convention, ifthearbitration is to takeplacewithin oneofthejurisdictions referred to in the firstparagraphofArticle28. His point is that sincetherequirements ofArticle28(1) canbe waived "after thedamages (shallhave) occurred,"thearticleshouldbe regarded as possessing thecharacter ofa "venue"and not ofa "jurisdiction"provision. Hence, in moving to dismiss on the groundoflack ofjurisdiction, the private respondenthas waived improper venueas a ground todismiss. The foregoing examination ofArticle28(1) in relationto Article 32 does notsupportthis conclusion. In any event,we agreethat evengranting arguendo that Article 28(1) is a venueandnota jurisdictional provision, dismissal ofthe casewas stillin order. Therespondent courtwas correct in affirming theruling ofthe trialcourt on this matter, thus: Santos'claim thatNOAwaived venueas a ground ofits motion todismiss is notcorrect. True itis that NOA averredin its MOTION TO DISMISS that the groundthereofis "theCourt has no subject matter jurisdiction toentertain the Complaint"whichSANTOS considers as equivalentto "lack of jurisdictionoverthesubject matter . . ."However, the gistofNOA's argument inits motion is that the Philippines is nottheproperplace where SANTOS couldfiletheaction — meaning that the venue ofthe actionis improperlylaid. Even assuming thenthatthespecifiedground ofthemotion is erroneous,thefactis theproper ground ofthemotion — improper venue — has beendiscussed therein. Waiver cannotbe lightlyinferred. Incase ofdoubt,it must beresolved infavor ofnon-waiver ifthere are specialcircumstances justifying this conclusion, as in thepetitionat bar. As weobserved in Javier vs. IntermediateCourt ofAppeals: 13 Legally,ofcourse, the lack ofproper venuewas deemed waived by the petitioners whenthey failed to invoke it in their originalmotionto dismiss. Even so, the motivation ofthe private respondent should havebeen takeninto accountby both the trialjudgeand the respondentcourt in arriving at their decisions. The petitioner also invokes KLMRoyal Dutch Airlines v. RTC,14 a decisionofour CourtofAppeals, where it was held that Article 28(1) is a venueprovision. However, the private respondentavers that this was in effect reversed by the caseofAranas v. United Airlines, 15wherethesame court
- 30. held thatArticle28(1) isa jurisdictional provision. Neitherofthesecases is binding on this Court, of course, norwas either ofthem appealedto us. Nevertheless,we hereexpress our own preference for the later case ofAranas insofar as its pronouncements onjurisdictionconformto the judgment wenowmake in this petition. B. The petitioner claims that the lower courterredin not ruling that under Article28(1) ofthe WarsawConvention,this casewas properly filed in thePhilippines, because Manila was the destination of theplaintiff. The Petitioner contends thatthefacts ofthis caseareanalogous tothoseinAanestad v.Air Canada. 16 In that case, Mrs. Silverberg purchaseda round-trip ticket fromMontrealto Los Angeles and back to Montreal. Thedateandtimeofdeparture werespecifiedbutnot ofthe return flight. The plane crashed whileon route fromMontrealto Los Angeles, killing Mrs. Silverberg. Her administratrix filed an actionfor damages againstAir Canada intheU.S. District Court ofCalifornia. The defendant movedto dismiss for lack ofjurisdictionbutthemotionwas denied thus: . . . It is evident that thecontract enteredinto between Air Canada and Mrs. Silverberg as evidencedby the ticketbooklets and theFlight Coupon No. 1, was a contract for AirCanada to carry Mrs. Silverberg to Los Angeles on a certain flight,a certain timeand a certain class,but that the timefor her to returnremainedcompletely inherpower.Coupon No. 2 was only a continuing offer by Air Canada to giveher a ticketto return toMontrealbetween certain dates. . . . The only conclusion that can bereachedthen, is that "theplace ofdestination"as usedin theWarsaw Convention is consideredby both theCanadian C.T.C. andtheUnitedStates C.A.B.to describeat least two "places ofdestination,"viz., the "placeofdestination"ofa particularflighteither an "outward destination"fromthe"point oforigin"or fromthe"outward point ofdestination"to any place inCanada. Thus the placeof destination under Art. 28 and Art. 1 oftheWarsaw Convention oftheflight on which Mrs. Silverberg was killed, was Los Angeles according to the ticket, whichwas thecontract betweentheparties andthesuitis properly filedin this Court which has jurisdiction. The Petitioner avers thatthepresentcase falls squarely under theabove ruling becausethedateand time of his return flight toSanFranciscowere,as intheAanestadcase, alsoleftopen. Consequently, Manila and notSanFranciscoshould be consideredthepetitioner's destination. The privaterespondent for its part invokes theruling in Butz v. BritishAirways, 17 where the United States DistrictCourt (Eastern District ofPennsylvania) said: . . . Although the authorities which addressed this preciseissue arenotextensive, boththecases and the commentators arealmostunanimous inconcluding thatthe"place ofdestination"referredto in the Warsaw Convention "in a trip consisting ofseveralparts . . . is theultimatedestination that is accorded treaty jurisdiction.". . . But apart fromthatdistinguishing feature, I cannotagreewith the Court's analysis inAanestad;whether the returnportion oftheticket is characterizedas an option or a contract, thecarrierwas legally bound to transport the passenger back totheplace oforiginwithin the prescribedtimeand. the passenger for her part agreed to pay the fareand, infact, did pay the fare. Thus therewas mutuality of obligation and a binding contract ofcarriage, The factthat the passenger couldforego her rights under the contractdoes not makeitanyless a binding contract. Certainly,iftheparties did not contemplate thereturnleg ofthe journey, thepassengerwould not havepaidfor it and the carrierwould not haveissued a round trip ticket. We agree withthelattercase. Theplace ofdestination, within the meaning oftheWarsaw Convention, is determined by the terms ofthe contractofcarriageor,specifically inthis case, the ticket betweenthepassenger andthecarrier. Examinationofthe petitioner's ticketshows thathis ultimate destination is SanFrancisco. Although thedateofthereturn flight was left open,the contractofcarriagebetween the parties indicates thatNOAwas bound totransport thepetitioner to San Franciscofrom Manila. Manila should thereforebe considered merely an agreedstopping place and not thedestination. The petitioner submits that theButz case could not haveoverruled the Aanestad casebecausethese decisions arefrom different jurisdictions. But that is neither herenor there. In fact,neitherof these cases is controlling onthis Court. Ifwe havepreferred the Butz case, it is because, exercising our own freedom ofchoice,we havedecided thatit represents thebetter, andcorrect, interpretationofArticle28(1). Article 1(2) also draws a distinction between a "destination"and an "agreed stopping place."It is the "destination"andnot an "agreed stopping place"that controls for purposes ofascertaining jurisdictionunder theConvention. The contract is a single undividedoperation, beginning with the placeofdepartureand ending with the ultimate destination. Theuseofthesingular in this expressionindicates theunderstanding ofthe parties to theConvention thateverycontractofcarriage has oneplaceofdeparture andoneplace ofdestination. An intermediateplace where the carriagemay bebrokenis not regardedas a "place ofdestination." C. The petitioner claims that the lower courterredin not ruling that under Art.28(1) ofthe Warsaw Convention, this casewas properly filedin the Philippines becausethedefendant has its domicile in the Philippines. The petitioner argues thattheWarsaw Conventionwas originally written inFrench andthat in interpreting its provisions, American courts have takenthebroadview thattheFrenchlegal meaning must govern. 18In French, hesays, the"domicile"ofthe carriermeans every place where it has a branchoffice. The privaterespondent notes, however, thatin Compagnie Nationale Air Francevs.Giliberto,19it was held: The plaintiffs'firstcontentionis that AirFranceis domiciled intheUnitedStates. They say that the domicileofa corporationincludes anycountrywheretheairline carries on its business on "a regular and substantial basis,"andthattheUnitedStates qualifies undersuch definition. The meaning ofdomicilecannot,however,be so extended. The domicileofa corporationis customarily regardedas theplacewhereit is incorporated,andthecourts havegiven themeaning to the term as it is used inarticle28(1) oftheConvention.(SeeSmith v. Canadian Pacific Airways, Ltd. (2d Cir. 1971), 452 F2d 798,802; Nudo v. SocieteAnonymeBelged'Exploitation dela Navigation Aerienne Sabena Belgian World Airlines (E.D. pa.1962).207F. Supp, 191;Karfunkelv. CompagnieNationaleAir France(S.D.N.Y. 1977), 427F. Suppl. 971, 974). Moreover, the structure ofarticle28(1), viewed as a whole, is alsoincompatible withtheplaintiffs'claim. The article, in stating that places ofbusiness are among thebases ofthejurisdiction,sets outtwoplaces where an action for damages may be brought; thecountrywherethecarrier's principal placeofbusiness is located, and the countryin whichit has a place ofbusiness through which theparticular contract in questionwas made,that is,wheretheticket was bought,Adopting theplaintiffs'theory would at a minimumblur thesecarefully drawndistinctions by creating a third intermediatecategory. It would obviously introduceuncertainty into litigation under thearticlebecauseofthe necessity of having to determine, andwithout standards or criteria, whether the amountofbusiness done bya carrier in a particular country was "regular"and "substantial."Theplaintiff's request toadoptthis basis ofjurisdiction is in effect a request to create a new jurisdictionalstandardfor the Convention.
- 31. Furthermore,it was arguedinanothercase 20that: . . . In arriving at aninterpretation ofa treaty whosesoleofficial languageis French, arewe boundto apply French law? . . . We think this question and theunderlying choice oflawissue warrantsome discussion . . . We do not thinkthis statement can beregarded as a conclusionthat internalFrench law is tobe "applied"in thechoice oflawsense, to determinethemeaning andscopeoftheConvention's terms. Of course, French legal usagemust beconsideredin arriving at anaccurateEnglish translation of theFrench. Butwhen an accurateEnglish translationis madeand agreed upon, as here, the inquiry into meaning does notthen revert toa questfor a past or presentFrenchlaw to be "applied"for revelationofthe proper scopeoftheterms. It does not followfrom thefact that the treaty is writtenin French thatin interpreting it, weareforever chained toFrenchlaw, either as it existedwhen the treaty was written or in its presentstate ofdevelopment. Thereis no suggestion in thetreatythat French lawwas intendedto governthemeaning ofWarsaw's terms, nor have we found any indication to this effect in its legislativehistory orfrom our studyofits application and interpretation byother courts. Indeed, analysis ofthe cases indicates that the courts, ininterpreting andapplying theWarsaw Convention, have, notconsidered themselves bound to apply French lawsimply becausethe Convention is writtenin French. . . . We agree withthese rulings. Notably, the domicileofthecarrier is only oneoftheplaces wherethe complaint is allowedto befiled under Article28(1). By specifying thethree other places,to wit, the principalplaceofbusiness of the carrier, its placeofbusiness wherethecontractwas made,andtheplaceofdestination, the articleclearly meantthat thesethreeotherplaces werenot comprehendedin the term"domicile." D. The petitioner claims that the lower courterredin not ruling that Art. 28(1) oftheWarsaw Convention does notapply to actions based ontort. The petitioner alleges thatthegravamen ofthecomplaint is thatprivaterespondent actedarbitrarily and in bad faith, discriminatedagainst thepetitioner, and committed a willful misconductbecause it canceled his confirmed reservationand gave his reserved seatto someone who had nobetter right to it. In short. the private respondentcommitteda tort. Such allegation,he submits, removes the presentcasefrom thecoverageoftheWarsaw Convention. He argues thatin at least two American cases,21it was held that Article 28(1) ofthe Warsaw Convention does notapply if theaction is based on tort. This position is negated by Husserlv. Swiss Air TransportCompany, 22 where the articlein question was interpreted thus: . . . Assuming for thepresent that plaintiff's claimis "covered"by Article 17,Article24clearly excludes any relief not provided for intheConvention as modified bytheMontrealAgreement. It does not, however, limit thekindofcause ofactionon whichthereliefmay befounded; rather it provides that any actionbasedon theinjuries specifiedin Article17 "howeverfounded,"i.e.,regardless of the type of action onwhich reliefis founded,can only bebroughtsubjectto the conditions and limitations established by the WarsawSystem. Presumably, thereasonfor theuseofthephrase "however founded,"in two-fold: to accommodateall ofthe multifarious bases onwhicha claim might be founded in different countries,whetherunder codelaw orcommonlaw, whether under contractor tort, etc.; and toincludeall bases on whicha claimseeking relieffor aninjury mightbe founded in any onecountry. Inother words,iftheinjury occurs as described in Article 17, any relief availableis subjectto the conditions and limitations establishedby theWarsaw System, regardless of the particular causeofaction which forms the basis onwhicha plaintiffcouldseek relief . . . The privaterespondent correctlycontends that theallegation ofwillfulmisconduct resulting ina tort is insufficientto exclude the casefrom the comprehension oftheWarsaw Convention. The petitionerhas apparently misconstruedtheimport ofArticle25(l) oftheConvention,whichreads as follows: Art. 25 (1). The carrier shallnot beentitledto availhimselfoftheprovisions ofthis Convention which exclude orlimithis liability.ifthedamageis causedby his willfulmisconduct or by such default on his part as, inaccordance withthelaw ofthecourtto whichthecase is submitted, is considered to beequivalentto willfulmisconduct. It is understoodunderthis articlethatthecourt called upon todeterminetheapplicability ofthe limitation provisionmust firstbe vested withtheappropriatejurisdiction. Article28(1) is the provision in theConvention which defines thatjurisdiction. Article22 23merelyfixes the monetary ceiling for the liability ofthe carrier incases coveredby theConvention. Ifthecarrier is indeed guilty ofwillful misconduct,it canavail itselfofthelimitations setforth in this article.But this can be done onlyiftheaction has first been commenced properly undertherules on jurisdictionset forth in Article28(1). III THEISSUEOF PROTECTION TO MINORS The petitioner calls ourattention to Article24 ofthe CivilCode,which states: Art. 24. In all contractual property or other relations, when one ofthe parties is ata disadvantage onaccountofhis moral dependence, ignorance, indigence, mental weakness, tender age or otherhandicap, thecourts must bevigilantfor his protection. Applicationofthis articleto the presentcaseis misplaced. Theaboveprovision assumes that thecourt is vested withjurisdictionto rulein favor ofthedisadvantagedminor,As already explained, such jurisdictionis absentin the caseatbar. CONCLUSION A number ofcountries have signifiedtheirconcern over theproblem ofcitizens being deniedaccess to their own courts because oftherestrictiveprovisionofArticle28(1) ofthe WarsawConvention. Among theseis theUnited States, which has proposed anamendment that wouldenablethe passenger to suein his own domicileifthecarrier does business in thatjurisdiction. Thereasonfor this proposalis explained thus: In the eventa US citizentemporarily residing abroad purchases a Rometo New York toRometicket ona foreign air carrier which is generally subject tothejurisdictionoftheUS, Article 28wouldprevent that personfrom suing thecarrier intheUS in a "WarsawCase"even thoughsuch a suitcould be brought in theabsenceoftheConvention. The proposalwas incorporated intheGuatemala Protocolamending the WarsawConvention,which was adopted at Guatemala City onMarch 8, 1971. 24 But itis still ineffectivebecauseit has notyetbeen ratifiedby therequired minimumnumber ofcontracting parties. Pending such ratification, the petitioner willstillhave tofilehis complaint only in any ofthefour places designated byArticle28(1) oftheWarsaw Convention. The proposed amendmentbolsters theruling ofthis Court that a citizen does notnecessarily have the right to suein his own courts simply becausethedefendantairlinehas a placeofbusiness inhis country.
- 32. The Court canonlysympathizewith the petitioner, whomust prosecutehis claims intheUnited States rather thanin his own country at least inconvenience. But weareunableto granthimthereliefhe seeks becauseweare limited bytheprovisions oftheWarsaw Conventionwhichcontinues to bind us. It may notbe amiss to observeatthis point that the merefact thathe willhaveto litigatein the Americancourts does notnecessarilymeanhe willlitigatein vain. Thejudicial system ofthat country in known for its senseoffairness and,generally, its strictadherence totherule oflaw. WHEREFORE, the petition is DENIED, withcosts againstthepetitioner. Itis so ordered. Narvasa, C.J., Gutierrez, Jr., Paras,Feliciano, Padilla, Bidin, Griño-Aquino,Medialdea,Regalado, Davide, Jr., Romero, Nocon and Bellosillo,JJ., concur. Republicof the Philippines SUPREMECOURT Manila EN BANC G.R. No. L-35131 November 29, 1972 THEWORLD HEALTH ORGANIZATION and DR. LEONCEVERSTUYFT, petitioners, vs. HON. BENJAMIN H. AQUINO, as Presiding JudgeofBranch VIII,Court ofFirstInstanceofRizal, MAJOR WILFREDO CRUZ, MAJOR ANTONIO G. RELLEVE, and CAPTAIN PEDRO S. NAVARRO of the Constabulary Offshore Action Center (COSAC), respondents. Sycip, Salazar, Luna, Manalo and Feliciano for petitioners. Emilio L. Baldia for respondents. TEEHANKEE, J.:p An original action for certiorari andprohibition to setasiderespondent judge's refusal toquash a search warrantissuedby himattheinstanceofrespondents COSAC (Constabulary OffshoreAction Center) officers for thesearch and seizureofthepersonaleffects ofpetitioner officialofthe WHO (World HealthOrganization) notwithstanding his being entitledto diplomaticimmunity, as duly recognizedby theexecutivebranch ofthePhilippineGovernment andto prohibit respondent judge from further proceedings in the matter. Upon filing of the petition, the Courtissued on June6, 1972 a restraining order enjoining respondents from executing thesearchwarrantin question. Respondents COSAC officers filed their answer joining issueagainst petitioners andseeking tojustify their actof applying for andsecuring from respondentjudgethe warrant for the searchand seizure of ten crates consignedto petitionerVerstuyft and stored attheEternit Corporation warehouseon the groundthat they "containlargequantities ofhighly dutiablegoods"beyond the official needs ofsaid petitioner"andtheonly lawfulway to reachthese articles and effects for purposes of taxationis througha search warrant."1 The Court thereafter called for theparties'memoranda inlieuoforalargument, which werefiled on August 3, 1972 by respondents and on August21, 1972by petitioners, andthecase was thereafter deemed submitted for decision. It is undisputed intherecordthatpetitioner Dr.Leonce Verstuyft, whowas assignedon December6, 1971 by theWHO from his last stationin Taipeito theRegional OfficeinManila as Acting Assistant DirectorofHealth Services,is entitledto diplomaticimmunity, pursuant to theHostAgreement executed on July 22, 1951between the PhilippineGovernment andtheWorldHealth Organization. Such diplomatic immunity carries with it, among other diplomatic privileges andimmunities,personal inviolability, inviolability oftheofficial's properties,exemptionfrom localjurisdiction, and exemption fromtaxationand customs duties. When petitioner Verstuyft's personal effects containedin twelve(12) crates entered the Philippines as unaccompaniedbaggage onJanuary 10, 1972, they wereaccordingly allowedfreeentry from duties andtaxes.The crates weredirectly storedattheEternitCorporation's warehouseat Mandaluyong,Rizal,"pending his relocationinto permanent quarters upon theofferofMr. Berg, Vice President ofEternitwhowas oncea patientofDr. Verstuyft in theCongo."2 Nevertheless,as abovestated,respondent judgeissuedon March3, 1972 upon applicationon the same date ofrespondents COSAC officers searchwarrant No. 72-138for alleged violationofRepublicAct 4712 amending section 3601oftheTariffandCustoms Code 3 directing thesearch and seizureof the dutiable items in saidcrates. Upon protest ofMarch6, 1972ofDr. Francisco Dy,WHO Regional Director for theWestern Pacificwith stationin Manila, Secretary ofForeignAffairs Carlos P. Romulo,personally wired onthesamedate respondentJudge advising that"Dr. Verstuyft is entitled to immunity fromsearch inrespect ofhis personal baggageas accordedto members ofdiplomaticmissions"pursuantto theHost Agreement andrequesting suspension ofthesearch warrant order "pending clarificationofthe matter fromtheASAC." Respondentjudge settheForeignSecretary's request for hearing and heard thesameon March16, 1972, butnotwithstanding theofficial plea ofdiplomaticimmunity interposedby a duly authorized representative ofthe DepartmentofForeignAffairs whofurnished therespondent judgewith alist ofthe articles brought inby petitioner Verstuyft, respondentjudgeissued his order ofthesame date maintaining theeffectivity ofthesearchwarrantissued by him,unless restrained by a higher court. 4 Petitioner Verstuyft's specialappearance onMarch 24, 1972 for the limitedpurposeofpleading his diplomatic immunity and motionto quash searchwarrantofApril12,1972failed to move respondentjudge. At the hearing thereofheld on May 8, 1972,theOffice ofthe Solicitor Generalappeared and filedan extended comment stating theofficialposition oftheexecutivebranch ofthePhilippine Government thatpetitioner Verstuyft is entitled todiplomatic immunity,he did not abusehis diplomatic immunity, 5andthatcourt proceedings in the receiving or hostStateare not the proper remedy in the caseofabuse ofdiplomaticimmunity. 6 The Solicitor Generalaccordinglyjoined petitioner Verstuyft's prayerfor thequashalofthe search warrant. Respondent judgenevertheless summarily deniedquashalofthesearchwarrantperhis order ofMay 9, 1972"for thesamereasons already statedin (his) aforesaid orderofMarch 16, 1972"disregarding ForeignSecretary Romulo's plea ofdiplomatic immunity onbehalfofDr. Verstuyft.
- 33. Hence, thepetition atbar.Petitioner Verstuyft has in this Court beenjoined by theWorld Health Organization (WHO) itselfin full assertion ofpetitioner Verstuyft's being entitled "to allprivileges and immunities, exemptions and facilities accorded todiplomatic envoys in accordancewith internationallaw"undersection 24oftheHost Agreement. The writs of certiorariand prohibitionshould issueas prayedfor. 1. The executivebranch ofthePhilippineGovernment has expresslyrecognizedthat petitioner Verstuyft is entitledto diplomaticimmunity, pursuantto theprovisions oftheHostAgreement. The DepartmentofForeign Affairs formally advisedrespondent judgeofthePhilippine Government's official positionthat accordingly "Dr.Verstuyft cannotbe thesubjectofa Philippine court summons withoutviolating an obligation ininternational lawofthe PhilippineGovernment" and asked for the quashal ofthesearch warrant,sincehis personal effects and baggages after having been allowedfreeentry fromall customs duties andtaxes,may notbe baselessly claimed to have been "unlawfullyimported"in violation ofthetariffand customs codeas claimed by respondents COSAC officers. TheSolicitor-General, as principal lawofficer oftheGovernment, 7 likewise expressly affirmed said petitioner's right todiplomatic immunity andasked for the quashal of thesearch warrant. It is a recognized principle ofinternational lawand underour system ofseparation ofpowers that diplomatic immunity is essentially a political questionand courts shouldrefuseto look beyond a determinationby theexecutivebranch ofthegovernment, 8 and where the plea ofdiplomatic immunity is recognizedandaffirmed by the executivebranch ofthegovernment as in thecaseat bar, it is then theduty ofthecourts toaccept theclaim ofimmunity upon appropriatesuggestion by the principallaw officerofthe government, the SolicitorGeneralin this case, or other officer acting under his direction. 9 Hence,in adherenceto thesettledprinciplethat courts may notso exercisetheirjurisdictionby seizureand detention ofproperty,as to embarrass the executivearm of the governmentin conducting foreign relations, itis accepteddoctrinethat"in suchcases the judicial departmentof(this) government follows theactionofthe politicalbranch and willnot embarrass thelatter byassuming an antagonistic jurisdiction."10 2. The unfortunatefact thatrespondent judgechoseto relyon thesuspicion ofrespondents COSAC officers "that the other remaining crates unopened contain contrabanditems"11rather than on the categoricalassuranceoftheSolicitor-Generalthat petitionerVerstuyft did notabusehis diplomatic immunity, 12 which was based in turn on theofficialpositions taken bythehighest executive officials with competenceand authorityto act onthematter, namely, theSecretaries of Foreign Affairs and ofFinance, could notjustify respondent judge's denial ofthequashal ofthe searchwarrant. As already stated above,and broughtto respondentcourt's attention, 13thePhilippineGovernment is bound by the procedurelaiddownin ArticleVII oftheConvention onthePrivileges and Immunities of theSpecializedAgencies ofthe UnitedNations 14 for consultations between the Host Stateand the UnitedNations agency concernedto determine,in the firstinstancethefact of occurrenceof the abusealleged,and ifso, to ensure that no repetitionoccurs and for other recourses. This is a treaty commitmentvoluntarily assumed by the PhilippineGovernmentandas such, has the force andeffect oflaw. Hence, even assuming arguendo as against the categorical assuranceoftheexecutivebranch of governmentthatrespondent judgehadsomeground toprefer respondents COSACofficers' suspicionthattherehadbeenan abuse ofdiplomaticimmunity, thecontinuation ofthesearch warrantproceedings beforehimwas not the proper remedy. Heshould,nevertheless, in deferenceto theexclusivecompetenceandjurisdiction oftheexecutivebranch ofgovernmentto act on the matter, haveaccededto the quashal ofthesearch warrant,andforwardedhis findings or grounds to believethat there hadbeen such abuseofdiplomatic immunity totheDepartment ofForeign Affairs for it to dealwith, inaccordancewith theaforementioned Convention, ifso warranted. 3. Finally,theCourt has notedwithconcerntheapparentlack ofcoordination between the various departments involvedin the subject-matterofthe caseatbar, which madeitpossiblefor a small unit, the COSAC,to whichrespondents officers belong,seeminglyto disregardand go againstthe authoritative determinationandpronouncements ofboththeSecretaries ofForeign Affairs andof Finance that petitionerVerstuyft is entitledto diplomatic immunity, as confirmed bytheSolicitor- Generalas theprincipal lawofficer oftheGovernment. Such executivedetermination properly implementedshould havenormally constrainedrespondents officers themselves toobtain the quashal ofthesearch warrant securedby them rather thanoppose such quashalup tothis Court, to the embarrassment ofsaid departmentheads,ifnot ofthePhilippineGovernment itselfvis a vis the petitioners. 15 The seriousness ofthematteris underscored when theprovisions ofRepublic Act75 enacted since October 21,1946to safeguardthejurisdictional immunityofdiplomaticofficials inthePhilippines are taken into account.Said Actdeclares as nulland void writs or processes sued out or prosecuted wherebyinter alia thepersonofan ambassador or publicminister is arrested or imprisoned or his goods or chattels areseizedor attached and makes it a penal offense for "every person by whom the sameis obtainedor prosecuted,whether as partyor as attorney,andevery officer concernedin executing it"to obtain or enforcesuch writ orprocess. 16 The Court, therefore, holds thatrespondent judgeacted withoutjurisdiction and withgrave abuseof discretion in not ordering thequashalofthesearchwarrantissued by him indisregardofthe diplomatic immunity ofpetitioner Verstuyft. ACCORDINGLY, the writs ofcertiorariandprohibition prayedfor arehereby granted, and the temporary restraining order heretofore issuedagainst execution or enforcementofthe questioned search warrant, whichis hereby declarednull andvoid, is hereby madepermanent.The respondentcourt is herebycommandedto desist fromfurtherproceedings inthematter. No costs, none having been prayedfor. The clerk ofcourtis hereby directedto furnish a copyofthis decision to the Secretary ofJustice for such action as hemay findappropriatewith regard tothematters mentioned in paragraph 3 hereof. So ordered. Concepcion,C.J., Makalintal, Zaldivar, Fernando, Barredo, Makasiar,AntonioandEsguerra, JJ., concur. Castro, J., reserves his vote. InternationalCatholic Migration Commissionvs.Calleja, GR No. 85750September28,1990 Posted onAugust 2, 2008 byasteroids08 FACTS: GR # 85750-theCatholicMigrationCommission (ICMC) case. ICMC was one ofthoseaccredited bythePhilippinegovernmentto operate the refugee processing center in Morong,Bataan. That comes from an argument between thePhilippinegovernmentand the UnitedNations HighCommissioner for refugees for eventual resettlement toother countries was to be established inBataan. ICMC was dulyregistered with the UnitedNations Economic andSocialCounciland enjoys consultative status. As an internationalorganization rendering voluntaryandhumanitarianservices inthe Philippines, its activities areparallel to thoseoftheinternational committeefor migration and the internationaloftheredcross. On July 14,1986, TradeUnions ofthePhilippines andAllied for certification withthethen Ministry of Labor andEmployment a petitionfor certification election among therank and filemembers
- 34. employedby ICMC.The latteropposed thepetition ontheground that itis an international organizationregistered withtheUnitedNations and hence, enjoys diplomatic immunity. The Med-ArbitersustainedICMC and dismissed the petitionfor eachofjurisdiction. On appeal by TUPAS, Director Calleja, reversedtheMed-arbiter’s decisionandorderedtheimmediate conduct of a certification election. ICMC then sought theimmediatedismissal oftheTUPAS petition for certificationelectioninvolving the immunity expressly granted but the samewas denied.With intervention of departmentofforeign affairs who was legal interest intheoutcome ofthis case, the second divisiongavedueto theICMC petition andrequiredthesubmittal ofmemoranda by the parties. GR # 89331-theIRRIcase The InternationalRiceResearchInstitutewas a fruitofmemorandumofunderstanding between the Philippinegovernment andtheFordandRochefeller Foundations. It was intendedto bean autonomous, philanthropictax-free,non-profit, non stock organization designedto carry outthe principal objective ofconducting “basic research ontherice plant.” It was organized andregistered with the SEC as a privatecorporation subjectto alllaws and regulations. However, by virtueofP.D no.1620, IRRIwas granted thestatus,prerogatives, privileges and immunities of an international organization. The Kapisanan fileda petitionfor directcertification election with regionaloffice oftheDepartment of Labor andEmployment. IRRI opposed thepetition invoking Pres.Decreeno.1620conferring upon it the status of an international organizationand granting it immunity fromall civil, criminal,and administrativeproceedings under Philippine laws. The Med-Arbiter upheldtheoppositionon the basis of PD1620and dismissed thepetitionfor directcertification. On appealby BLR Director,set aside the med-arbiter’s decisionand contends that immunities and privileges granted toIRRI donot includeexemption fromcoverageofour labor laws. ISSUES: GR # 85750-theICMCcase: Whether ornot the grant ofdiplomatic privileges and immunities to ICMCextends to immunity fromthe application of Philippinelabor laws. GR no. 89331-theIRRI case: Whether ornot the Secretary ofLabor committedgrave abuseofdiscretion indismissing thepetition for certificationelectionfiled by Kapisanan. RULING: The grant of diplomaticprivileges and immunities toICMC extends toimmunity from the application of Philippinelabor laws,becauseit is clearly necessitated by their internationalcharacter and respective purposes whichis to avoid thedanger ofpartiality and interferenceby the hostcountry in their internalworkings. Employees are not withoutrecourse whenevertherearedisputes tobe settledbecauseeachspecialized agency shall make provisionfor appropriatemodes ofsettlement ofdisputes outofcontracts or other disputes ofprivatecharacter towhichthespecialized agency is a party.Moreover, pursuant to article IV of memorandum ofabuseofprivilegeby ICMC,thegovernment is free towithdraw the privileges and immunities accorded. No grave abuseof discretion may beimputedto respondentsecretary oflaborin his assumptionof appelatejurisdiction,contrary toKapisanan’s allegation, hence, any party to an electionmay appealtheorderor results oftheelections as determinedby themed-arbiter directly tothe secretary of laborandemployment on the groundthattherules and regulations or parts thereof establishedby thesecretary oflabor and employment for theconduct oftheelectionhave been violated. Wherefore, petition granted inICMC case andin IRRI case,thepetition was dismissed.
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