FIRST DIVISION

[A.M. No. MTJ-93-783.  July 29, 1996]

OFFICE OF THE COURT ADMINISTRATOR, petitioner, vs. JUDGE FILOMENO PASCUAL, respondent.

D E C I S I O N

HERMOSISIMA, JR., J.:

Intimating as to what the ideals of a good judge should be, Sir Francis Bacon wants judges “to remember that their office is jus dicere and not jus dare, to interpret law, and not to make law or give law.”  They ought to be “more learned than witty, more revered than plausible, and more advised 3than confident.  Above all things, INTEGRITY is their portion and proper virtue.[1]

The Constitution and the statutes, however, limit the legal qualifications of judges to only three bare essentials: citizenship, age and experience.  The virtues of probity, honesty, temperance, impartiality and integrity, most often used to measure an aspirant to the bench, lose their meaning in individual perception.

While people perceive judges to be above the ordinary run of men, they know that a perfect judge, like a perfect priest, exists only in fantasy.

Thus, it does not come as a surprise that the integrity of respondent judge in this administrative case stands challenged for committing acts of extortion or bribery.

The following antecedent facts appear on record:

Sometime in February, 1993, a certain Ceferino Tigas wrote a letter, addressed to Hon. Reynaldo Suarez of the Office of the Court Administrator of the Supreme Court, charging that irregularities and corruption were being committed by the respondent Presiding Judge of the Municipal Trial Court of Angat, Bulacan.

On March 10, 1993, the letter was referred to the National Bureau of Investigation in order that an investigation on the alleged illegal and corrupt practices of the respondent may be conducted.  Ordered[2] to conduct a “discreet investigation” by the then NBI Director Epimaco Velasco were: SA Edward Villarta, team leader, SI Reynaldo Olazo, HA Teofilo Galang, SI Florino Javier and SI Jose Icasiano.  They proceeded to Angat, Bulacan, in order to look for Ceferino Tigas, the letter writer.  Tigas, the NBI team realized was a fictitious character.  In view of their failure to find Tigas, they proceeded to the residence of Candido Cruz, an accused in respondent’s sala.

In his affidavit[3] executed on March 23, 1993 before SA Edward Villarta, Cruz declared that he was the accused in Criminal Case No. 2154, charged with the crime of Frustrated Murder.  Respondent judge, after conducting the preliminary investigation of the case, decided that the crime he committed was only physical injuries and so, respondent judge assumed jurisdiction over the case.  Cruz believed that he was made to understand by the respondent that, in view of his favorable action, Cruz was to give to respondent the sum of P2,000.00. Respondent judge is believed to be a drunkard and, in all probability, would need money to serve his vice.

In view of this statement, the NBI agents assigned to the case caused respondent judge to be entrapped, for which reason, the judge was thought to have been caught in flagrante delicto.  NBI agents Villarta and Olazo filed the following report:

“On 25 March 1993, at about 4:00 in the afternoon, CANDIDO CRUZ met with Judge PASCUAL at the Colegio de Sta. Monica, near the Municipal Building of Angat, Bulacan, where Subject is attending the graduation of his daughter.  CANDIDO CRUZ told Judge PASCUAL that he already had the P2,000.00 which he (Judge PASCUAL) is asking him.  However, Judge PASCUAL did not receive the money because according to him there were plenty of people

around.  He then instructed CANDIDO CRUZ to see him (Judge PASCUAL) at his office the following day.

At about 8:30 in the morning of the following day (26 March 1993), CANDIDO CRUZ proceeded to the office of Judge PASCUAL at the Municipal Trial Court of Angat, Bulacan, and thereat handed to him four (4) pieces of P500.00 bills contained in a white mailing envelope previously marked and glazed with fluorescent powder.

In the meantime, the Undersigned stayed outside the court room and after about 15 minutes, CANDIDO CRUZ came out of the room and signaled to the Undersigned that Judge PASCUAL had already received the marked money.  The Undersigned immediately entered the room and informed Subject about the entrapment.  Subject denied having received anything from CANDIDO CRUZ, but after a thorough search, the marked money was found inserted between the pages of a blue book on top of his table.

Subject was invited to the Office of the NBI-NCR, Manila wherein he was subjected to ultra violet light examination.  After finding Subject’s right hand for the presence of fluorescent powder, he was booked, photographed and fingerprinted in accordance with our Standard Operating Procedure (S.O.P.).

On even date, the results of our investigation together with the person of Judge FILOMENO PASCUAL was referred to the Inquest Prosecutor of the Office of the Special Prosecutor, Ombudsman, with the recommendation that he be charged and prosecuted for Bribery as defined and penalized under Article 210 of the Revised Penal Code of the Philippines.” (Rollo, pp. 47-48.)

On May 11, 1994, by resolution of the Third Division of this Court, this case was referred to Executive Judge Natividad G. Dizon for investigation, report and recommendation.[4]

In connection with this investigation, respondent filed a Memorandum, dated July 28, 1995, wherein respondent presented his version of the case:

“Sometime in February 1993, one Ceferino Tigas, a fictitious person according to the NBI, wrote a letter to Court Administrator Ernani Paño of the Supreme Court, alleging irregularities committed by the accused.  Deputy Court Administrator Reynaldo L. Suarez endorsed the letter to the NBI Director requesting `discreet’ investigation of the Tigas letter.  An NBI tandem of Agents Edward Villarta and Reynaldo Olazo proceeded to Angat, Bulacan, to investigate.  Said tandem’s assignment was merely to conduct discreet investigation supposedly, but it led to incriminatory machinations, planting evidence, unlawful arrest, illegal search and seizure.  They contacted Candido Cruz who was mentioned in the letter.  They, however, discovered that Ceferino Tigas, the alleged letter writer, was an inexistent person, fictitious as shown by the synopsis report of the NBI agents (Exhibit 8).  Having contacted Candido Cruz, the NBI agents persuaded him to participate in what they called `entrapment operation.’  The NBI agents prepared an affidavit, then a supplementary affidavit and had them signed by Candido Cruz.  They also went to the NBI Headquarters and had four (4) P500 bills dusted with fluorescent powder which they used in the‘operation’ against the accused.

In the afternoon of March 25, 1993, the NBI, along with Candido Cruz, proceeded to the municipal building of Angat, Bulacan, where the accused judge was holding office.  However, they learned that the accused judge was not in his office but was then attending the graduation rites of his son at the nearby Colegio de Sta. Monica, and so they decided to move their ‘operation’ to the school grounds.  The ceremonies had not yet begun.  Candido Cruz saw the accused in one corner of the compound and approached him.  He tried to give the accused an envelope allegedly containing money, but the judge refused to accept it and angrily drove Candido Cruz away.  Rebuffed, the NBI agents decided to reset their ‘operation’ the following day.

At around 9:30 in the morning of March 26, 1993, the NBI agents and Candido Cruz arrived at the municipal building of Angat, Bulacan.  Cruz, as planned, entered the accused judge’s chambers and placed an envelope, allegedly containing marked money, right on his (judge’s) desk.  He thought it was a pleading for filing and he told Candido Cruz to file it with the office of the clerk of court at the adjacent room.  Cruz replied that it was the money the

judge was asking for.  Upon hearing the reply, the accused suddenly erupted in anger, he grabbed the envelope on the desk and hurled it to Cruz.  The envelope fell on the floor, the accused picked it up and inserted it inside the pocket of Cruz’s polo shirt and drove him out of the chamber.

Just seconds thereafter, agents Villarta and Olazo entered the door of the chamber which door was open at that time.  They introduced themselves and told the accused that the money that Cruz gave him was marked.  Accused told them that he did not receive or accept money from Cruz.  But they proceeded to search the room, the table, its drawers, and every nook and cranny of his room, including the pockets of the accused’s pants.   After scouring the place, the agents failed to find the envelope with the marked money.  And so, one of the agents called for Candido Cruz who was waiting outside at a waiting shed fronting the municipal building, and asked him where the envelope was.  Cruz came back to the room and, together with agent Olazo, approached the cabinet and said ‘heto pala.’

Then, the accused’s humiliating experience began.  Thereafter, despite the strident protestations of the accused, the envelope, which came from the pocket of Cruz’s polo shirt, was placed on top of the table of the judge, pictures were taken, and the accused was arrested by the NBI agents.”[5]

On August 11, 1995, Executive Judge Natividad G. Dizon submitted the following report and recommendation:

“The Investigating Judge respectfully submits her findings based on the evidence at hand.

As against the respondent judge’s denials, the undersigned submits that the sworn affidavits of complainants and NBI Agents and documentary proofs attached to the records are more convincing and nearer to the truth.  They have no motive for fabricating this charge, except to bring justice.  Credence should be given to the testimony of the NBI Agents coming as it does from an unpolluted source.  These Agents had no reason to testify falsely against the respondent judge.  They were just doing their duty.  On the other hand, the respondent judge had to protect himself against the testimonial and technical/scientific evidence that he had received the envelope and to reject its implications of such evidence.

Furthermore, his defense that he was just instigated to commit a crime is likewise untenable.  The principle evolved from the cases appears to be that in a prosecution for an offense against the public welfare, such as accepting bribe, the defense of entrapment cannot be successfully interposed; x x x.

One may well wonder over the manner the envelope containing the money was proffered to the respondent judge as he narrated his story on how he got mad at Candido Cruz when he proffered the said envelope, how he threw, picked it up and placed it in the pocket of the latter and how he drove him away.  He even testified that it was just ‘planted’ by the NBI Agents when the latter allegedly placed the envelope inside a directory which was placed on top of a cabinet.

x x x. Why was he not surprised that somebody barged into his chamber or was he really accustomed with people directly dealing or negotiating at his chamber, as what Cruz did, instead of dealing with his staff.  His ‘angry words’ and his actuations, according to his testimony, were not convincing at all to show that he was that fuming mad at Candido Cruz’s offer. More so, his claim that NBI Agents connived with Candido Cruz just for their own personal glory was not even persuasive.  His excuse of the presence of fluorescent powder on his hand was flimsy and incredible.

The act of the respondent shows that he can be influenced by monetary considerations.  This act of the respondent of demanding and receiving money from a party-litigant before his court constitutes serious misconduct in office.  It is this kind of gross and flaunting misconduct, no matter how nominal the amount involved on the part of those who are charged with the responsibility of administering the law that will surely erode the people’s respect for law and lose faith and trust in the courts which are expected to render fair and equal justice to all.

Such act go against Canons 2 and 3 of the Code of Judicial Conduct which state: A Judge should avoid impropriety and the appearance of impropriety in all activities and a judge should perform official duties honestly, and with impartiality and diligence.

xxx             xxx        xxx

With the above, the Investigating Judge respectfully recommends that appropriate penalty be imposed upon the respondent.”

We find that the evidence on record does not warrant conviction.

We note that the only bases for the Report and Recommendation submitted by Executive Judge Natividad G. Dizon consist of:  The Complaint, the Answer, the Memorandum of the respondent, and the transcript of stenographic notes of the hearing of the bribery case of respondent judge at the Sandiganbayan.  The respondent was, therefore, not afforded the right to open trial wherein respondent can confront the witnesses against him and present evidence in his defense.

This lapse in due process is unfortunate.  The Rules, even in an administrative cases, demand that, if the respondent judge should be disciplined for grave misconduct or any graver offense, the evidence against him should be competent and should be derived from direct knowledge.[6] The Judiciary to which respondent belongs demands no less.  Before any of its members could be faulted, it should be only after due investigation and after presentation of competent evidence, especially since the charge is penal in character.[7] The above-quoted Report and Recommendation of the investigating judge had fallen short of the requirements of due process.

The evidence aforesaid admits of irreconcilable inconsistencies in the testimonies of principal witness, Candido Cruz, and NBI Agent SI Reynaldo Olazo on several material points.

It will be remembered that the charge was intimated by someone who must have had an ax to grind against the respondent judge but who, by reason of cowardice or lack of evidence to put up a righteous case, did not come out in the open and instead wrote an anonymous letter.  The letter-writer, naming himself as Ceferino Tigas, did not specify crimes committed or illegal acts perpetrated but charged respondent with anomalies in general terms.  Respondent judge could not have been expected to make a valid answer or to otherwise defend himself from such vague accusations.

While then NBI Director Epimaco Velasco, upon being apprised of the Tigas letter, ordered the NBI investigating team to make a “discreet investigation” of respondent, the NBI team had instead caused an instigation or the entrapment of respondent judge.  Not having found letter-writer Tigas and concluding that no such person exists, they sought out an accused before respondent’s court who could possibly be respondent judge’s virtual victim.  Approached by the NBI team was Candido Cruz, a person who had been brought before the Municipal Trial Court of Angat, Bulacan, for preliminary investigation on the charge of Frustrated Murder.  Respondent judge gave judgment to the effect that the crime committed by Candido Cruz was that of physical injuries merely.  He declared then that he had original jurisdiction to try the case.

But, respondent’s action in this regard was perpetrated some time before Candido Cruz was “persuaded to participate in what they (the NBI agents) called ‘entrapment operation.’” The opportune time to bribe the respondent should have been before he acted in reducing Cruz’ criminal liability from Frustrated Murder to Physical Injuries.  No bribe was asked then.  It was unlikely that respondent would ask for it on the date of the entrapment on March 26, 1993, the favorable verdict having been rendered already.

It is significant to note that NBI Agent Olazo admitted [8] that, despite the fact that he “scoured” the table of the respondent in search of the envelope, with marked money in it, no envelope was found and so he had to call Candido Cruz who was already outside so that Cruz can locate the envelope.

In view of these antecedents, we find reason to favorably consider the allegations of respondent judge in his defense that, at around 9:30 o’clock in the morning of March 26, 1993, Candido Cruz, along with the NBI agents, went to the Municipal Building of Angat,

Bulacan.  Candido Cruz, alone, went inside respondent judge’s chambers, located thereat, and placed before respondent judge an envelope containing marked money.  Respondent judge thought that what was placed before him was a pleading for filing and so, he told Candido Cruz to file it with the Office of the Clerk of Court, that is, in a room adjacent to his chambers.  Candido Cruz replied that it was the money the judge was asking for.   Upon hearing this reply, respondent judge suddenly erupted in anger.  He grabbed the envelope on the desk and hurled it at Candido Cruz.  The envelope fell on the floor.  Respondent judge then picked it up and inserted it inside the pocket of Cruz’ polo shirt and drove him out of his chambers.  NBI Agents Villarta and Olazo immediately entered the door of the judge’s chambers, introduced themselves, and told respondent judge that the money that Cruz gave him was marked.  Respondent judge told them that he did not receive or accept money from Candido Cruz.  After respondent judge said this, the NBI Agents nevertheless proceeded to search the room, examined tables, drawers, and every nook and cranny of respondent’s chambers, and the pockets of the pants of respondent judge.  Even after rigid search of the chambers of respondent, the NBI Agents failed to find the envelope containing marked money allegedly given by Candido Cruz to respondent judge.

Candido Cruz, who had gone down to the waiting shed, was called for by one of the agents.  Candido Cruz was asked as to the whereabouts of the envelope containing money. Candido Cruz went back to the judge’s chambers and made the motions of conducting a search.  Eventually, he went straight to the top of a cabinet and, in the manner of a magician, produced the envelope with marked money, saying, “heto pala”.

Thereafter, photographs were taken of respondent judge who was humiliated no end by the fact that the envelope with marked money was placed on top of his desk with respondent judge in front of it.

In his testimony before the Sandiganbayan, NBI Agent SI Reynaldo Olazo stated that the marked money used in their entrapment operation actually came from Candido Cruz and not from the NBI;[9] and he was not able to see what actually transpired between Candido Cruz and respondent judge inside the chambers of the judge.  He was outside the judge’s chambers and entered it only after Candido Cruz gave the signal that the money was already delivered by him to the respondent.[10] Candido Cruz, on the other hand, testified that the marked money used in the alleged entrapment operation was given to him by the NBI [11] and, when he went out of the judge’s chambers after giving the money, he signaled to one, Col. Javier, who was then positioned immediately outside the chambers.[12]

In view of the foregoing facts, it is easy to conclude that the acts of the NBI agents which triggered the incident that transpired inside respondent judge’s chambers constituted instigation and not entrapment as claimed by the prosecution.  It is evident that Candido Cruz was induced to act as he did in order to place respondent judge in a compromising situation, a situation which was not brought about by any request of respondent judge.  It is surprisingly strange that an accused in a case would simply barge into the judge’s chambers without rhyme or reason, place bribe money on top of the judge’s desk without so much as explaining what the money was for.  Respondent judge’s action on Candido Cruz’s case which favored Cruz was effected long before.  We can believe the fact that, under the circumstances, respondent judge did react in anger and threw the envelope at the accused Candido Cruz.  The judge must have given back the money to Candido Cruz and literally drove Cruz out of his chambers bringing the money with him.  This explains the reason why the NBI Agents notwithstanding a relentless search did not find the money inside the chambers.  Four (4) NBI Agents made the search and they were unable to find the envelope with the marked money in it.  This fact NBI Agent Olazo in effect admitted because he had to call back Candido Cruz in order to make Cruz divulge as to where the bribe money was placed.  When, after all, Candido Cruz produced the money when he went back to the judge’s chambers, it became obvious that the money when offered to respondent judge was not received by the latter.

The foregoing set of facts smacks of unlawful prosecution and planting of evidence amounting to persecution.  It is reprehensible to say the least that NBI agents should entrap the respondent judge by illegal means, besmirch his reputation by the planting of evidence against him and make public the foregoing charges of bribery against him in the face of the unjustified and illegal incriminatory machinations perpetrated by the NBI agents in connivance with Candido Cruz.

We, thus, hold respondent Judge Filomeno Pascual blameless of the charge of bribery against him.

It should be noted that Candido Cruz insisted that he had participated in the alleged entrapment operation only because of the fact that the NBI agents made him believe that there was an order therefor from the Supreme Court.[13] Considering that he is illiterate and is already more than 70 years of age, it is understandable why he was easily persuaded by the NBI agents to cooperate without need of any threat whatsoever.  Inconsistencies in his testimony is likewise attributed to his aforesaid personal circumstances for it does not jibe with practical experience that a person telling the truth will still have to struggle to remember everything that transpired, he having been a participant in the operation.  Gross mistakes on very important points not easily forgotten are very strong indicia of the falsity of the story given by a witness.[14]

We reiterate the ruling in the case of Raquiza v. Castaneda, Jr.,[15] that:

“The ground for the removal of a judicial officer should be established beyond reasonable doubt.  Such is the rule where the charges on which the removal is sought is misconduct in office, willful neglect, corruption, incompetency, etc.  The general rules in regard to admissibility of evidence in criminal trials apply.”

Reasonable doubt is the inability to let the judicial mind rest easy upon the certainty of guilt after a thorough investigation of the whole evidence. [16] The principle of reasonable doubt being applicable in the instant case, therefore, we find that the alleged act of bribery committed by respondent has not been sufficiently and convincingly proven to warrant the imposition of any penalty against respondent.

WHEREFORE, in view of the foregoing, respondent judge is hereby exonerated and the administrative case against him is DISMISSED.

SO ORDERED.

THIRD DIVISION

[Adm. Matter No. MTJ-00-1241. January 20, 2000]

ATTY. NAPOLEON S. VALENZUELA, complainant vs. JUDGE REYNALDO B. BELLOSILLO, respondent

D E C I S I O N

PURISIMA, J.:

The Affidavit-Complaint dated October 17, 1997 of Attorney Napoleon S. Valenzuela charged respondent Judge Reynaldo Blanco Bellosillo of Branch 34 of the Metropolitan Trial Court of Quezon City with gross violation of the constitutional right of subject accused to assistance by counsel of her own choice, gross misconduct, oppression, partiality and violation of the Code of Judicial Ethics; averring:

"2. That on September 4, 1997, I was hired as counsel for the accused in Criminal Case No. 65382-86 entitled ‘People of the Philippines vs. Ms. Meriam V. Colapo’ for Violation of B.P. 22 which case is being heard before Quezon City Metropolitan Trial Court Branch 34, presided by Hon. Judge Reynaldo Blanco Bellosillo;

3. That subsequently, I then filed a Manifestation praying for the Honorable Court to allow the accused to post bail; a copy of the

Manifestation is hereto attached as ‘Annex A and A-1’ and made as integral parts hereof;

4. That Judge Reynaldo Bellosillo as was his custom, talked to my client before granting bail for her provisional liberty inside his chambers and in my absence;

5. That the next day, September 5, 1997, my client Meriam Colapo informed me that Judge Reynaldo B. Bellosillo had angrily ordered her to remove me as counsel and even suggested one Atty. Puhawan of the PALAO QUEZON CITY as my replacement; xxx

6. That as a consequence thereof, the undersigned had no recourse but to file a Notice of Withdrawal with the conformity of my client Meriam V. Colapo xxx;

7. That although I was aghast and flabbergasted with the unfathomable actuation of Judge Bellosillo, I can think of no reason what impelled him with anger to order my client for my replacement;

7. [sic] That the actuation of Judge Reynaldo Blanco Bellosillo is certainly oppressive, arrogant, and a gross misconduct affecting his integrity and efficiency which merits a dismissal from the service;

8. That such despotic act of Judge Bellosillo is likewise indicative of partiality and gross ignorance of the Constitution and the constitutional right of accused Meriam Colapo to choose her own counsel to defend her in court;

9. That such arrogant act of Judge Bellosillo would certainly violate and kill my right to earn and practice law;

xxx."[1]

The Answer, dated February 16, 1998, of respondent Judge denied the allegations of the complaint, branded the same without any legal and factual basis; theorizing:

"1. That when Complainant’s Accused Client and Witness, Meriam J. [sic] Colapo, appeared before the undersigned respondent to post Bail she was unassisted by Complainant-Counsel and upon inquiry informed that she is allegedly changing him not having liked the idea of being referred by a Metro-TC Branch 34 Personnel to its PAO Lawyer Joseph B. Sia, who rejected her due to the Prohibitive policy of his office to represent an Accused in BP 22 Cases and instead referred her to the Complainant-Lawyer, Napoleon S. Valenzuela, a former PAO Employee, who allegedly changed [sic] her unreasonably for the preparation of a mere Manifestation To Post Bail;

2. That respondent could not have referred Complainant’s Accused Client Witness to tha [sic] PALAO knowing its Prohibitive Policy to also represent Accused in BP 22 Cases as previously made clear by its Chief, Atty. Jose Puhawan;

3. That out of delicadeza and in recognition of Complainant’s right to practice the law profession, respondent never talked to him about it;

4. That the Motion to Withdraw filed by Complainant with the Conformity of his Accused Client Witness, Meriam V. Colapo, is a matter strictly just between the two of them, to which respondent was never a privy;

5. That had Complainant been more prudent, he could have just verified from the respondent the veracity of his client’s statements which for legal intents and purposes are inadmissible for being hearsay, thus, this unfounded time consuming Complaint could have been avoided;

6. That respondent discharges his functions with all integrity and good faith and without fear or favor knowing that justice must never be distorted as to do so would make even the wise blind and subvert tha [sic] cause of the innocent;

xxx"[2]

In the Resolution[3] issued on June 16, 1999, this Third Division referred the Complaint to the Executive Judge of the Regional Trial Court of Quezon City, for investigation, report and recommendation.

On September 22, 1999, Executive Judge Perlita J. Tria Tirona sent in the following Report and Recommendation, to wit:

"Complainant alleged that: on September 4, 1997, he filed a motion praying that his client Meriam V. Colapo accused in a BP 22 case then pending in Metropolitan Trial Court, Branch 34, Quezon City, presided over at that time by respondent, be allowed to post bail for her provisional liberty. Respondent before acting on the Motion allegedly talked to the accused and ordered her to replace her counsel, herein complainant, with Atty. Puhawan from PALAO, Quezon City. Accused Colapo informed him of this incident and told him she was terminating his services pursuant to the instructions of the respondent.

In deference to his client’s wishes, complainant filed a Notice of Withdrawal of his appearance with his client’s (Colapo’s) conformity.

According to complainant, he could not think of any reason for respondent to order his client to replace him.

On cross examination, complainant stated that he worked with the Public Attorney’s Office for seven (7) to eight (8) years. He resigned in 1995. Complainant’s wife used to be an officemate of respondent at the Public Attorney’s Office in Makati in 1988.

Complainant admitted that his client Colapo was referred to him by Atty. Sia, his friend, who is with the Public Attorney’s Office (PAO) where he used to work. He is aware of the PAO/PALAO policy not to represent any person charged with BP 22. Complainant likewise admitted that he filed his notice of withdrawal on the basis of what his client Colapo told him. However, he did not confront the respondent about it. He believed his client because she was agitated. According to his client Colapo,

respondent recommended Atty. Puhawan and he right away filed his withdrawal as counsel.

At first, complainant stated that the affidavit of his client Colapo was prepared by the Notary Public Lino Soriano. Then he stated that he assisted her in the preparation of the same.

Complainant further alleged that it was also on September 5, 1997 (when his client’s bond was approved) that Colapo informed him that respondent wanted him changed as counsel.

However, in his Notice of Withdrawal as counsel which he filed in Court, he stated that he was informed by his client Colapo on September 7, 1997, which complainant again claims to be a typographical error.

Complainant further admitted that his Notice of Withdrawal was with the conformity of his client Colapo.

No other witness was presented by the complainant.

Respondent Judge Bellosillo, testified that he does not personally know Miriam [sic] Colapo. He first met her when she appeared before him in his Court for the approval of her bail bond. She was allowed to post bail on the basis of the manifestation filed by her counsel on record, complainant Atty. Napoleon S. Valenzuela. At that time she was notassisted [sic] by her counsel (complainant was absent) but he (respondent) allowed her just the same to post bail because according to him he personally knows Colapo’s counsel complainant Atty. Valenzuela.

Respondent further stated that when he inquired from Ms. Colapo where her lawyer was, Ms. Colapo, in a very ‘disappointing mood’ said that she was going to change her counsel because she did not like the idea of paying somebody who could not appear for her at the time she needed him most. Later on he was informed of the notice of withdrawal filed by complainant Napoleon Valenzuela with the conformity of his client Colapo. He did not bother to read the withdrawal anymore because anyway it contained the conformity of his client Colapo. It was only when he received the 1st indorsement of the Court Administrator which contained the complaint and the annexes to the complaint of Atty. Valenzuela that he came to read the notice of withdrawal. Had he read the notice of withdrawal earlier, he could have called them for a conference, and confront both of them, considering that the information given to him (complainant) by Colapo is different from what appeared in the notice of withdrawal as counsel, filed by herein complainant. Respondent likewise stated that in all honesty and good faith, he honored the entry of appearance of the new counsel and dismissed the case against Ms. Colapo on the basis of the Affidavit of Desistance filed by the complaining witness in the case against Colapo.

On cross examination, respondent admitted that he talked to accused Colapo before he approved the bail, who was then not assisted by her counsel, to find out if she is the one who appears in the picture attached to the bail bond, and to inform her of her undertaking under the bail, and when he inquired from Colapo where her lawyer was, she answered in a very disappointed manner that she was going to change her counsel because she did not like the idea of paying somebody who could not represent her at the time she needed him most and because of the fact

that she was referred to one Atty. Sia of the PAO Office who in turn referred her (Colapo) to complainant who allegedly charged her (complainant) so much for the preparation of the manifestation.

Respondent likewise denied that he ever referred Ms. Colapo, complainant’s client to the PALAO knowing fully well that the PALAO does not represent an accused in a BP 22 case. Besides, according to respondent, it was none of his business whether Colapo would want to change her counsel. He (respondent) stated that he is not aware whether Atty. Gusapos, the lawyer who replaced the complainant, is a PALAO lawyer since he used his private or residential address when he entered his appearance."

Prescinding from the foregoing, Judge Tirona concluded:

"The undersigned finds the evidence adduced by the complainant insufficient to substantiate his charges against respondent Judge Bellosillo.

The basis of complainant’s complaint is the affidavit of his client Meriam Colapo to the effect that respondent Judge suggested to her (Meriam Colapo) that she should change her counsel (herein complainant), and that respondent recommended Atty. Puhawan of the PALAO.

However, Meriam Colapo was not presented by complainant to testify because she is presently in Brunei. While complainant claims that Meriam Colapo is willing to testify, said willingness is not sufficient to lend credence to the present charge since respondent has every right to cross examine said witness.

It should likewise be noted that the lawyer who replaced complainant as counsel for Meriam Colapo was not Atty. Puhawan, the lawyer allegedly suggested by respondent but one Atty. Gusapos allegedly of the PALAO, although no evidence was presented by complainant to show that indeed Atty. Gusapos is also with PALAO notwithstanding the fact that he promised to submit a certification from PALAO that Atty. Gusapos is indeed an employee of said office.

If Meriam Colapo has to discharge complainant as allegedly suggested by respondent so as not to antagonize said respondent judge, why did they not engage the services of Atty. Puhawan, the lawyer allegedly suggested by respondent to take complainant’s place as counsel?

On the other hand, respondent in denying the charge, stated that he could not have even suggested Atty. Puhawan of PALAO to take complainant’s place as counsel since PALAO lawyers are not allowed to represent an accused in a BP 22 case.

Besides, even complainant himself could see no reason why respondent would suggest to Meriam Colapo to change complainant as counsel and instead to engage the services of Atty. Puhawan.

Thus, the only evidence of the complainant, which is the Affidavit of his client Meriam Colapo, cannot be the basis of a finding of guilt even in an administrative case.

In view of the foregoing, the undersigned respectfully recommends that the charges against respondent Judge Reynaldo B. Bellosillo be dismissed for lack of evidence."

All the facts of the case studiedly considered, with a thorough evaluation of the records on hand, the Court finds merit in the findings and recommendations of Executive Judge Tirona, absent any discernible basis for adjudging respondent Judge Bellosillo liable under the premises.

Apart from his testimony and affidavit-complaint, complainant did not adduce enough evidence to prove his charges. He did not even present his primary witness, Meriam Colapo, to support the charge that respondent Judge Bellosillo pressured the latter to replace him as defense counsel. The affidavit[4] of Meriam Colapo cannot be given credence and is inadmissible without the said affiant placed on the witness stand to give the respondent Judge an opportunity to test the veracity of affiant’s allegations.[5] An affidavit is hearsay unless the affiant is presented for cross-examination.[6]

Sans the testimony of witness Meriam Colapo, to corroborate complainant’s allegations and submission, the case against the respondent judge cannot prosper. The employment or profession of a person is a property right within the constitutional guaranty of due process of law.[7] Respondent judge cannot therefore be adjudged guilty of the charges against him without affording him a chance to confront the said witness, Meriam Colapo; otherwise, his right to due process would be infringed.

WHEREFORE, for insufficiency of evidence, the Complaint at bar against respondent Judge Reynaldo Blanco Bellosillo is hereby DISMISSED.

SO ORDERED.

EN BANC

[G.R. No. 117565.  November 18, 1997]

ARSENIO P. LUMIQUED (deceased), Regional Director, DAR – CAR, Represented by his Heirs, Francisca A. Lumiqued, May A. Lumiqued, Arlene A. Lumiqued and Richard A. Lumiqued, petitioners, vs. Honorable APOLINIO G. EXEVEA, ERDOLFO V. BALAJADIA and FELIX T. CABADING, ALL Members of Investigating Committee, created by DOJ Order No. 145 on May 30, 1992; HON. FRANKLIN M. DRILON, SECRETARY OF JUSTICE, HON. ANTONIO T. CARPIO, CHIEF Presidential Legal Adviser/Counsel; and HON. LEONARDO A. QUISIMBING, Senior Deputy Executive Secretary of the Office of the President, and JEANNETTE OBAR-ZAMUDIO, Private Respondent, respondents.

D E C I S I O N

ROMERO, J.:

Does the due process clause encompass the right to be assisted by counsel during an administrative inquiry?

Arsenio P. Lumiqued was the Regional Director of the Department of Agrarian Reform – Cordillera Autonomous Region (DAR-CAR) until President Fidel V. Ramos dismissed him from that position pursuant to Administrative Order No. 52 dated May 12, 1993.  In view of Lumiqued’s death on May 19, 1994, his heirs instituted this petition for certiorari and mandamus, questioning such order.

The dismissal was the aftermath of three complaints filed by DAR-CAR Regional Cashier and private respondent Jeannette Obar-Zamudio with the Board of Discipline of the DAR. The first affidavit-complaint dated November 16, 1989,[1] charged Lumiqued with malversation through falsification of official documents. From May to September 1989, Lumiqued allegedly committed at least 93 counts of falsification by padding gasoline receipts.  He even submitted a vulcanizing shop receipt worth P550.00 for gasoline bought from the shop, and another receipt for P660.00 for a single vulcanizing job.  With the use of falsified receipts, Lumiqued claimed and was reimbursed the sum of P44,172.46. Private respondent added that Lumiqued seldom made field trips and preferred to stay in the office, making it impossible for him to consume the nearly 120 liters of gasoline he claimed everyday.

In her second affidavit-complaint dated November 22, 1989,[2] private respondent accused Lumiqued with violation of Commission on Audit (COA) rules and regulations, alleging that during the months of April, May, July, August, September and October, 1989, he made unliquidated cash advances in the total amount of P116,000.00.  Lumiqued purportedly defrauded the government “by deliberately concealing his unliquidated cash advances through the falsification of accounting entries in order not to reflect on `Cash advances of other officials’ under code 8-70-600 of accounting rules.”

The third affidavit-complaint dated December 15, 1989,[3] charged Lumiqued with oppression and harassment. According to private respondent, her two previous complaints prompted Lumiqued to retaliate by relieving her from her post as Regional Cashier without just cause.

The three affidavit-complaints were referred in due course to the Department of Justice (DOJ) for appropriate action. On May 20, 1992, Acting Justice Secretary Eduardo G. Montenegro issued Department Order No. 145 creating a committee to investigate the complaints against Lumiqued. The order appointed Regional State Prosecutor Apolinario Exevea as committee chairman with City Prosecutor Erdolfo Balajadia and Provincial Prosecutor Felix Cabading as members. They were mandated to conduct an investigation within thirty days from receipt of the order, and to submit their report and recommendation within fifteen days from its conclusion.

The investigating committee accordingly issued a subpoena directing Lumiqued to submit his counter-affidavit on or before June 17, 1992. Lumiqued, however, filed instead an urgent motion to defer submission of his counter-affidavit pending actual receipt of two of private respondent’s complaints. The committee granted the motion and gave him a five-day extension.

In his counter-affidavit dated June 23, 1992,[4] Lumiqued alleged, inter alia, that the cases were filed against him to extort money from innocent public servants like him, and were initiated by private respondent in connivance with a certain Benedict Ballug of Tarlac and a certain Benigno Aquino III. He claimed that the apparent weakness of the charge was bolstered by private respondent’s execution of an affidavit of desistance.[5]

Lumiqued admitted that his average daily gasoline consumption was 108.45 liters. He submitted, however, that such consumption was warranted as it was the aggregate consumption of the five service vehicles issued under his name and intended for the use of the Office of the Regional Director of the DAR. He added that the receipts which were issued beyond his region were made in the course of his travels to Ifugao Province, the DAR Central Office in Diliman, Quezon City, and Laguna, where he attended a seminar. Because these receipts were merely turned over to him by drivers for reimbursement, it was not his obligation but that of auditors and accountants to determine whether they were falsified. He affixed his signature on the receipts only to signify that the same were validly issued by the establishments concerned in order that official transactions of the DAR-CAR could be carried out.

Explaining why a vulcanizing shop issued a gasoline receipt, Lumiqued said that he and his companions were cruising along Santa Fe, Nueva Vizcaya on their

way to Ifugao when their service vehicle ran out of gas. Since it was almost midnight, they sought the help of the owner of a vulcanizing shop who readily furnished them with the gasoline they needed. The vulcanizing shop issued its own receipt so that they could reimburse the cost of the gasoline.  Domingo Lucero, the owner of said vulcanizing shop, corroborated this explanation in an affidavit dated June 25, 1990.[6] With respect to the accusation that he sought reimbursement in the amount of P660.00 for one vulcanizing job, Lumiqued submitted that the amount was actually only P6.60. Any error committed in posting the amount in the books of the Regional Office was not his personal error or accountability.

To refute private respondent’s allegation that he violated COA rules and regulations in incurring unliquidated cash advances in the amount of P116,000.00, Lumiqued presented a certification[7] of DAR-CAR Administrative Officer Deogracias F. Almora that he had no outstanding cash advances on record as of December 31, 1989.

In disputing the charges of oppression and harassment against him, Lumiqued contended that private respondent was not terminated from the service but was merely relieved of her duties due to her prolonged absences. While admitting that private respondent filed the required applications for leave of absence, Lumiqued claimed that the exigency of the service necessitated disapproval of her application for leave of absence. He allegedly rejected her second application for leave of absence in view of her failure to file the same immediately with the head office or upon her return to work. He also asserted that no medical certificate supported her application for leave of absence.

In the same counter-affidavit, Lumiqued also claimed that private respondent was corrupt and dishonest because a COA examination revealed that her cash accountabilities from June 22 to November 23, 1989, were short by P30,406.87.  Although private respondent immediately returned the amount on January 18, 1990, the day following the completion of the cash examination, Lumiqued claimed that she should be relieved from her duties and assigned to jobs that would not require handling of cash and money matters.

Committee hearings on the complaints were conducted on July 3 and 10, 1992, but Lumiqued was not assisted by counsel.  On the second hearing date, he moved for its resetting to July 17, 1992, to enable him to employ the services of counsel. The committee granted the motion, but neither Lumiqued nor his counsel appeared on the date he himself had chosen, so the committee deemed the case submitted for resolution.

On August 12, 1992, Lumiqued filed an urgent motion for additional hearing,[8] alleging that he suffered a stroke on July 10, 1992. The motion was forwarded to the Office of the State Prosecutor apparently because the investigation had already been terminated.  In an order dated September 7, 1992,[9] State Prosecutor Zoila C. Montero denied the motion, viz:

“The medical certificate given show(s) that respondent was discharged from the Sacred Heart Hospital on July 17, 1992, the date of the hearing, which date was upon the request of respondent (Lumiqued). The records do not disclose that respondent advised the Investigating committee of his confinement and inability to attend despite his discharge, either by himself or thru counsel. The records likewise do not show that efforts were exerted to notify the Committee of respondent’s condition on any reasonable date after July 17, 1992. It is herein noted that as early as June 23, 1992, respondent was already being assisted by counsel.

Moreover an evaluation of the counter-affidavit submitted reveal(s) the sufficiency, completeness and thoroughness of the counter-affidavit together with the documentary evidence annexed thereto, such that a judicious determination of the case based on the pleadings submitted is already possible.

Moreover, considering that the complaint-affidavit was filed as far back as November 16, 1989 yet, justice can not be delayed much longer.”

Following the conclusion of the hearings, the investigating committee rendered a report dated July 31, 1992,[10] finding Lumiqued liable for all the charges against him. It made the following findings:

“After a thorough evaluation of the evidences (sic) submitted by the parties, this committee finds the evidence submitted by the complainant sufficient to establish the guilt of the respondent for Gross Dishonesty and Grave Misconduct.

That most of the gasoline receipts used by the respondent in claiming for the reimbursement of his gasoline expenses were falsified is clearly established by the 15 Certified Xerox Copies of the duplicate receipts (Annexes G-1 to G-15) and the certifications issued by the different gasoline stations where the respondent purchased gasoline. Annexes `G-1’ to `G-15’ show that the actual average purchase made by the respondent is about 8.46 liters only at a purchase price of P50.00, in contrast to the receipts used by the respondent which reflects an average of 108.45 liters at a purchase price of P550.00. Here, the greed of the respondent is made manifest by his act of claiming reimbursements of more than 10 times the value of what he actually spends. While only 15 of the gasoline receipts were ascertained to have been falsified, the motive, the pattern and the scheme employed by the respondent in defrauding the government has, nevertheless, been established.

That the gasoline receipts have been falsified was not rebutted by the respondent. In fact, he had in effect admitted that he had been claiming for the payment of an average consumption of 108.45 liters/day by justifying that this was being used by the 4 vehicles issued to his office. Besides he also admitted having signed the receipts.

Respondent’s act in defrauding the government of a considerable sum of money by falsifying receipts constitutes not only Dishonesty of a high degree but also a criminal offense for Malversation through Falsification of Official Documents.

This committee likewise finds that the respondent have (sic) unliquidated cash advances in the year 1989 which is in violation of established office and auditing rules. His cash advances totalling to aboutP116,000.00 were properly documented. The requests for obligation of allotments and the vouchers covering the amounts were all signed by him. The mere certification issued by the Administrative Officer of the DAR-CAR cannot therefore rebut these concrete evidences (sic).

On the third complaint, this committee likewise believes that the respondent’s act in relieving the complainant of her functions as a Regional Cashier on December 1, 1989 was an act of harassment. It is noted that this was done barely two weeks after the complainant filed charges against her (sic). The recommendation of Jose G. Medina of the Commission on Audit came only on May 11, 1990 or almost six months after the respondent’s order relieving the complainant was issued. His act in harassing a subordinate employee in retaliation to a complaint she filed constitute(s) Gross Misconduct on the part of the respondent who is a head of office.

The affidavits of Joseph In-uyay and Josefina Guting are of no help to the respondent. In fact, this only show(s) that he is capable of giving bribes if only to have the cases against him dismissed. He could not have given a certain Benigno Aquino III the sum of P10,000.00 for any other purpose.”

Accordingly, the investigating committee recommended Lumiqued’s dismissal or removal from office, without prejudice to the filing of the appropriate criminal charges against him.

Acting on the report and recommendation, former Justice Secretary Franklin M. Drilon adopted the same in his Memorandum to President Fidel V. Ramos dated October 22, 1992.  He added that the filing of the affidavit of desistance [11] would not prevent the issuance of a resolution on the matter considering that what was at

stake was not only “the violation of complainant’s (herein private respondent’s) personal rights” but also “the competence and fitness of the respondent (Lumiqued) to remain in public office.”  He opined that, in fact, the evidence on record could call for “a punitive action against the respondent on the initiative of the DAR.”

On December 17, 1992, Lumiqued filed a motion for reconsideration of “the findings of the Committee” with the DOJ.[12] Undersecretary Ramon S. Esguerra indorsed the motion to the investigating committee.[13] In a letter dated April 1, 1993, the three-member investigating committee informed Undersecretary Esguerra that the committee “had no more authority to act on the same (motion for reconsideration) considering that the matter has already been forwarded to the Office of the President” and that their authority under Department Order No. 145 ceased when they transmitted their report to the DOJ. [14] Concurring with this view, Undersecretary Esguerra informed Lumiqued that the investigating committee could no longer act on his motion for reconsideration.  He added that the motion was also prematurely filed because the Office of the President (OP) had yet to act on Secretary Drilon’s recommendation.[15]

On May 12, 1993, President Fidel V. Ramos himself issued Administrative Order No. 52 (A.O. No. 52),[16] finding Lumiqued administratively liable for dishonesty in the alteration of fifteen gasoline receipts, and dismissing him from the service, with forfeiture of his retirement and other benefits.  Thus:

“That the receipts were merely turned over to him by his drivers and that the auditor and accountant of the DAR-CAR should be the ones to be held liable is untenable. The receipts in question were signed by respondent for the purpose of attesting that those receipts were validly issued by the commercial establishments and were properly disbursed and used in the official business for which it was intended.

This Office is not about to shift the blame for all these to the drivers employed by the DAR-CAR as respondent would want us to do.”

The OP, however, found that the charges of oppression and harassment, as well as that of incurring unliquidated cash advances, were not satisfactorily established.

In a “petition for appeal”[17] addressed to President Ramos, Lumiqued prayed that A.O. No. 52 be reconsidered and that he be reinstated to his former position “with all the benefits accorded to him by law and existing rules and regulations.” This petition was basically premised on the affidavit dated May 27, 1993, of a certain Dwight L. Lumiqued, a former driver of the DAR-CAR, who confessed to having authored the falsification of gasoline receipts and attested to petitioner Lumiqued’s being an “honest man” who had no “premonition” that the receipts he (Dwight) turned over to him were “altered.”[18]

Treating the “petition for appeal” as a motion for the reconsideration of A.O. No. 52, the OP, through Senior Deputy Executive Secretary Leonardo A. Quisumbing, denied the same on August 31, 1993.

Undaunted, Lumiqued filed a second motion for reconsideration, alleging, among other things, that he was denied the constitutional right to counsel during the hearing.[19] On May 19, 1994,[20] however, before his motion could be resolved, Lumiqued died.  On September 28, 1994,[21] Secretary Quisumbing denied the second motion for reconsideration for lack of merit.

Hence, the instant petition for certiorari and mandamus praying for the reversal of the Report and Recommendation of the Investigating Committee, the October 22, 1992, Memorandum of then Justice Secretary Drilon, A.O. No. 52 issued by President Ramos, and the orders of Secretary Quisumbing. In a nutshell, it prays for the “payment of retirement benefits and other benefits accorded to deceased Arsenio Lumiqued by law, payable to his heirs; and the backwages from the period he was dismissed from service up to the time of his death on May 19, 1994.”[22]

Petitioners fault the investigating committee for its failure to inform Lumiqued of his right to counsel during the hearing. They maintain that his right to counsel could not be waived unless the waiver was in writing and in the presence of counsel. They assert that the committee should have suspended the hearing and granted Lumiqued a reasonable time within which to secure a counsel of his own. If suspension was not possible, the committee should have appointed a counsel de oficio to assist him.

These arguments are untenable and misplaced. The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or an accused during custodial investigation.[23]  It is not an absolute right and may, thus, be invoked or rejected in a criminal proceeding and, with more reason, in an administrative inquiry. In the case at bar, petitioners invoke the right of an accused in criminal proceedings to have competent and independent counsel of his own choice. Lumiqued, however, was not accused of any crime in the proceedings below. The investigation conducted by the committee created by Department Order No. 145 was for the purpose of determining if he could be held administratively liable under the law for the complaints filed against him.  The order issued by Acting Secretary of Justice Montenegro states thus:

“In the interest of the public service and pursuant to the provisions of existing laws, a Committee to conduct the formal investigation of the administrative complaint for oppression, dishonesty, disgraceful and immoral conduct, being notoriously undesirable and conduct prejudicial to the best interest of the service against Mr. ARSENIO P. LUMIQUED, Regional Director, Department of Agrarian Reform, Cordillera Autonomous Region, is hereby created x x x.”[24]

As such, the hearing conducted by the investigating committee was not part of a criminal prosecution. This was even made more pronounced when, after finding Lumiqued administratively liable, it hinted at the filing of criminal case for malversation through falsification of public documents in its report and recommendation.

Petitioners’ misconception on the nature of the investigation [25] conducted against Lumiqued appears to have been engendered by the fact that the DOJ conducted it. While it is true that under the Administrative Code of 1987, the DOJ shall “administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system,”[26] conducting criminal investigations is not its sole function.  By its power to “perform such other functions as may be provided by law,” [27] prosecutors may be called upon to conduct administrative investigations. Accordingly, the investigating committee created by Department Order No. 145 was duty-bound to conduct the administrative investigation in accordance with the rules therefor.

While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondent’s capacity to represent himself and no duty rests on such a body to furnish the person being investigated with counsel.[28] In an administrative proceeding such as the one that transpired below, a respondent (such as Lumiqued) has the option of engaging the services of counsel or not.  This is clear from the provisions of Section 32, Article VII of Republic Act No. 2260[29] (otherwise known as the Civil Service Act) and Section 39, paragraph 2, Rule XIV (on discipline) of the Omnibus Rules Implementing Book V of Executive Order No. 292[30] (otherwise known as the Administrative Code of 1987). Excerpts from the transcript of stenographic notes of the hearings attended by Lumiqued [31] clearly show that he was confident of his capacity and so opted to represent himself. Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service.

Furthermore, petitioners’ reliance on Resolution No. 94-0521 of the Civil Service Commission on the Uniform Procedure in the Conduct of Administrative Investigation stating that a respondent in an administrative complaint must be “informed of his right to the assistance of a counsel of his choice,” [32] is inappropriate.  In the first place, this resolution is applicable only to cases brought before the Civil Service Commission.[33]Secondly, said resolution, which is dated January 25, 1994, took effect fifteen days following its publication in a newspaper of general circulation,[34] much later than the July 1992 hearings of the investigating committee created by Department Order No. 145.  Thirdly, the same committee was not remiss in the matter of reminding Lumiqued of his right to counsel. Thus at the July 3, 1992, hearing, Lumiqued was repeatedly appraised of his option to secure services of counsel:

“RSP EXEVEA:

This is an administrative case against Director Lumiqued.  Director Lumiqued is present.  The complainant is present, Janet Obar-Zamudio.  Complainant has just been furnished with a copy of the counter-affidavit of the respondent.  Do you have a counsel, Director?

DIR. LUMIQUED:

I did not bring anybody, Sir, because when I went to see him, he told me, Sir, that he has already set a hearing, morning and afternoon today.

RSP EXEVEA:

So, we will proceed with the hearing even without your counsel? You are willing to proceed with the hearing even without your counsel?

DIR. LUMIQUED:

Yes, I am confident . . .

CP BALAJADIA:

You are confident that you will be able to represent yourself?

DIR. LUMIQUED:

That is my concern.”[35] (Underscoring supplied)

In the course of private respondent’s damaging testimony, the investigating committee once again reminded Lumiqued of his need for a counsel. Thus:

“CP BALAJADIA:

Q. (To Director Lumiqued)  You really wish to go through with this even without your counsel?

DIRECTOR LUMIQUED:

A.  I think so, Sir.

CP BALAJADIA:

Let us make it of record that we have been warning you to proceed with the assistance of counsel but you said that you can take care of yourself so we have no other alternative but to proceed.”[36]

(Underscoring supplied)

Thereafter, the following colloquies transpired:

“CP BALAJADIA:

We will suspend in the meantime that we are waiting for the supplemental affidavit you are going to present to us. Do you have any request from the panel of investigators, Director Lumiqued?

DIRECTOR LUMIQUED:

I was not able to bring a lawyer since the lawyer I requested to assist me and was the one who prepared my counter-affidavit is already engaged for a hearing and according to him he is engaged for the whole month of July.

RSP EXEVEA:

We cannot wait . . .

CP BALAJADIA:

Why don’t you engage the services of another counsel. The charges against you are quite serious. We are not saying you are guilty already. We are just apprehensive that you will go through this investigation without a counsel. We would like you to be protected legally in the course of this investigation. Why don’t you get the services of another counsel. There are plenty here in Baguio...

 DIRECTOR LUMIQUED:

I will try to see, Sir . . .

CP BALAJADIA:

Please select your date now, we are only given one month to finish the investigation, Director Lumiqued.

RSP EXEVEA:

We will not entertain any postponement. With or without counsel, we will proceed.

CP BALAJADIA:

Madam Witness, will you please submit the document which we asked for and Director Lumiqued, if you have other witnesses, please bring them but reduce their testimonies in affidavit form so that we can expedite with the proceedings.”[37]

At the hearing scheduled for July 10, 1992, Lumiqued still did not avail of the services of counsel. Pertinent excerpts from said hearing follow:

“FISCAL BALAJADIA:

I notice also Mr. Chairman that the respondent is not being represented by a counsel. The last time he was asked to invite his lawyer in this investigation. May we know if he has a lawyer to represent him in this investigation?

DIR. LUMIQUED:

There is none Sir because when I went to my lawyer, he told me that he had set a case also at 9:30 in the other court and he told me if there is a possibility of having this case postponed anytime next week, probably Wednesday so we will have good time (sic) of presenting the affidavit.

FISCAL BALAJADIA:

Are you moving for a postponement Director? May I throw this to the panel. The charges in this case are quite serious and he should be given a chance to the assistance of a counsel/lawyer.

RSP EXEVEA:

And is (sic) appearing that the supplemental-affidavit has been furnished him only now and this has several documents attached to it so I think we could grant him one last postponement considering that he has already asked for an extension.

DIR. LUMIQUED:

Furthermore Sir, I am now being bothered by my heart ailment.”[38]

The hearing was reset to July 17, 1992, the date when Lumiqued was released from the hospital.  Prior to said date, however, Lumiqued did not inform the committee of his confinement.  Consequently, because the hearing could not push through on said date, and Lumiqued had already submitted his counter-affidavit, the committee decided to wind up the proceedings. This did not mean, however, that Lumiqued was short-changed in his right to due process.

Lumiqued, a Regional Director of a major department in the executive branch of the government, graduated from the University of the Philippines (Los Baños) with the degree of Bachelor of Science major in Agriculture, was a recipient of various scholarships and grants, and underwent training seminars both here and abroad.[39] Hence, he could have defended himself if need be, without the help of counsel, if truth were on his side.  This, apparently, was the thought he entertained during the hearings he was able to attend.  In his statement, “That is my concern,” one could detect that it had been uttered testily, if not exasperatedly, because of the doubt or skepticism implicit in the question, “You are confident that you will be able to represent yourself?” despite his having positively asserted earlier, “Yes, I am confident.”  He was obviously convinced that he could ably represent himself.  Beyond repeatedly reminding him that he could avail himself of counsel and as often receiving the reply that he is confident of his ability to defend himself, the investigating committee could not do more.  One can lead a horse to water but cannot make him drink.

The right to counsel is not indispensable to due process unless required by the Constitution or the law. In Nera v. Auditor General,[40] the Court said:

“x x x. There is nothing in the Constitution that says that a party in a non-criminal proceeding is entitled to be represented by counsel and that, without such representation, he shall not be bound by such proceedings. The assistance of lawyers, while desirable, is not indispensable. The legal profession was not engrafted in the due process clause such that without the participation of its members, the safeguard is deemed ignored or violated. The ordinary citizen is not that helpless that he cannot validly act at all except only with a lawyer at his side.”

In administrative proceedings, the essence of due process is simply the opportunity to explain one’s side. One may be heard, not solely by verbal presentation but also, and perhaps even much more creditably as it is more practicable than oral arguments, through pleadings.[41] An actual hearing is not always an indispensable aspect of due process. [42] As long as a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process.[43] Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of the action or ruling complained of.[44] Lumiqued’s appeal and his subsequent filing of motions for reconsideration cured whatever irregularity attended the proceedings conducted by the committee.[45]

The constitutional provision on due process safeguards life, liberty and property.[46] In the early case of Cornejo v. Gabriel and Provincial Board of Rizal   [47] the Court held that a public office is not property within the sense of the constitutional guarantee of due process of law for it is a public trust or agency.  This jurisprudential pronoucement has been enshrined in the 1987 Constitution under Article XI, Section 1 on accountability of public officers, as follows:

“Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.”

When the dispute concerns one’s constitutional right to security of tenure, however, public office is deemed analogous to property in a limited sense; hence, the right to due process could rightfully be invoked. Nonetheless, the right to security of tenure is not absolute. Of equal weight is the countervailing mandate of the Constitution that all public officers and employees must serve with responsibility, integrity, loyalty and efficiency.[48] In this case, it has been clearly shown that Lumiqued did not live up to this constitutional precept.

The committee’s findings pinning culpability for the charges of dishonesty and grave misconduct upon Lumiqued were not, as shown above, fraught with procedural mischief.  Its conclusions were founded on the evidence presented and evaluated as facts.  Well-settled in our jurisdiction is the doctrine that findings of fact of administrative agencies must be respected as long as they are supported by substantial evidence, even if such evidence is not overwhelming or preponderant.[49] The quantum of proof necessary for a finding of guilt in administrative cases is only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[50]

Consequently, the adoption by Secretary Drilon and the OP of the committee’s recommendation of dismissal may not in any way be deemed tainted with arbitrariness amounting to grave abuse of discretion. Government officials are presumed to perform their functions with regularity. Strong evidence is not necessary to rebut that presumption,[51] which petitioners have not successfully disputed in the instant case.

Dishonesty is a grave offense penalized by dismissal under Section 23 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987.   Under Section 9 of the same Rule, the penalty of dismissal carries with it “cancellation of eligibility, forfeiture of leave credits and retirement benefits, and the disqualification for reemployment in the government service.” The instant petition, which is aimed primarily at the “payment of retirement benefits and other benefits” plus backwages from the time of Lumiqued’s dismissal until his demise, must, therefore, fail.

WHEREFORE, the instant petition for certiorari and mandamus is hereby DISMISSED and Administrative Order No. 52 of the Office of the President is AFFIRMED.  Costs against petitioners.

SO ORDERED.

THIRD DIVISION

[G.R. No. 110379.  November 28, 1997]

HON. ARMAND FABELLA, in his capacity as SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS; DR. NILO ROSAS, in his capacity as REGIONAL DIRECTOR, DECS-NCR; DR. BIENVENIDO ICASIANO, in his capacity as the SUPERINTENDENT OF THE QUEZON CITY SCHOOLS and DIVISION; ALMA BELLA O. BAUTISTA, AURORA C. VALENZUELA and TERESITA V. DIMAGMALIW, petitioners, vs. THE COURT OF APPEALS, ROSARITO A. SEPTIMO, ERLINDA B. DE LEON, CLARISSA T. DIMAANO, WILFREDO N. BACANI, MARINA R. VIVAR, VICTORIA S. UBALDO, JENNIE L. DOGWE, NORMA L. RONGCALES, EDITA C. SEPTIMO, TERESITA E. EVANGELISTA, CATALINA R. FRAGANTE, REBECCA D. BAGDOG, MARILYNNA C. KU, MARISSA M. SAMSON, HENEDINA B.CARILLO, NICASIO C. BRAVO, RUTH F. LACANILAO, MIRASOL C. BALIGOD, FELISA S. VILLACRUEL, MA. VIOLETA ELIZABETH Y. HERNANDEZ, ANTONIO C. OCAMPO, ADRIANO S. VALENCIA and ELEUTERIO S. VARGAS, respondents.

D E C I S I O N

PANGANIBAN, J.:

Due process of law requires notice and hearing.  Hearing, on the other hand, presupposes a competent and impartial tribunal.  The right to be heard and, ultimately, the right to due process of law lose  meaning in the absence of an independent, competent and impartial tribunal.

Statement of the Case

This principium is explained by this Court as it resolves this petition for review on certiorari assailing the May 21, 1993 Decision [1] of the Court of Appeals[2] in CA-G.R. SP No. 29107 which affirmed the trial court’s decision,[3] as follows:

“WHEREFORE, the decision appealed from is AFFIRMED and the appeal is DISMISSED.

The Hon. Armand Fabella is hereby ORDERED substituted as respondent-appellant in place of former Secretary Isidro Cariño and henceforth this fact should be reflected in the title of this case.

SO ORDERED.”[4]

The Antecedent Facts

The facts, as found by Respondent Court, are as follows:

“On September 17, 1990, then DECS Secretary Cariño issued a return-to-work order to all public school teachers who had participated in talk-outs and strikes on various dates during the period September 26, 1990 to October 18, 1990.  The mass action had been staged to demand payment of 13th month differentials, clothing allowances and passage of a debt-cap bill in Congress, among other things.

On October 18, 1990, Secretary Cariño filed administrative cases against herein petitioner-appellees, who are teachers of the Mandaluyong High School.  The charge sheets

required petitioner-appellees to explain in writing why they should not be punished for having taken part in the mass action in violation of civil service laws and regulations, to wit:

1.       grave misconduct;

2.       gross neglect of duty;

3.       gross violation of Civil Service Law and rules on reasonable office regulations;

4.       refusal to perform official duty;

5.       conduct prejudicial to the best interest of the service;

6.       absence without leave (AWOL)

At the same time, Secretary Cariño ordered petitioner-appellee to be placed under preventive suspension.

The charges were subsequently amended by DECS-NCR Regional Director Nilo Rosas on November 7, 1990 to include the specific dates when petitioner-appellees allegedly took part in the strike.

Administrative hearings started on December 20, 1990.  Petitioner-appellees’ counsel objected to the procedure adopted by the committee and demanded that he be furnished a copy of the guidelines adopted by the committee for the investigation and imposition of penalties.  As he received no response from the committee, counsel walked out.  Later, however, counsel, was able to obtain a copy of the guidelines.

On April 10, 1991, the teachers filed a an injunctive suit (Civil Case No. 60675) with the Regional Trial Court in Quezon City, charging the committee appointed by Secretary Cariño with fraud and deceit and praying that it be stopped from further investigating them and from rendering any decision in the administrative case.  However, the trial court denied them a restraining order.

They then amended their complaint and made it one for certiorari and  mandamus.  They alleged that the investigating committee was acting with grave abuse of discretion because its guidelines for investigation place the burden of proof on them by requiring them to prove their innocence instead of requiring Secretary Cariño and his staff to adduce evidence to prove the charges against the teachers.

On May 30, 1991, petitioner-appellee Adriano S. Valencia of the Ramon Magsaysay High School filed a motion to intervene, alleging that he was in the same situation as petitioners since he had likewise been charged and preventively suspended by respondent-appellant Cariño for the same grounds as the other petitioner-appellees and made to shoulder the burden of proving his innocence under the committee’s guidelines.  The trial court granted his motion on June 3, 1991 and allowed him to intervene.

On June 11, 1991, the Solicitor General answered the petitioner for certiorari and mandamus in behalf of respondent DECS Secretary.  In the main he contended that, in accordance with the doctrine of primary resort, the trial court should not interfere in the administrative proceedings.

The Solicitor General also asked the trial court to reconsider its order of June 3, 1991, allowing petitioner-appellee Adriano S. Valencia to intervene in the case.

Meanwhile, the DECS investigating committee rendered a decision on August 6, 1991, finding the petitioner-appellees guilty, as charged and ordering their immediate dismissal.

On August 15, 1991, the trial court dismissed the petition for certiorari and mandamus for lack of merit.  Petitioner-appellees moved for a reconsideration, but their motion was denied on September 11, 1991.

The teachers then filed a petition for certiorari with the Supreme Court which, on February 18, 1992, issued a resolution en banc declaring void the trial court’s order of dismissal and reinstating petitioner-appellees’ action, even as it ordered the latter’s reinstatement pending decision of their case.

Accordingly, on March 25, 1992, the trial court set the case for hearing.  June 8, 1992, it issued a pre-trial order which reads:

“As prayed for by Solicitor Bernard Hernandez, let this case be set for pre-trial conference on June 17, 1992 at 1:30 p.m., so as to expedite the proceedings hereof.  In which case, DECS Secretary Isidro Cariño, as the principal respondent, is hereby ordered to PERSONALLY APPEAR before this Court on said date and time, with a warning that should he fail to show up on said date, the Court will declare him as IN DEFAULT.  Stated otherwise, for the said Pre-Trial Conference, the Court will not recognize any representative of his.”

By agreement of the parties, the trial conference was reset on June 26, 1992.  However, Secretary Cariño failed to appear in court on the date set.   It was explained that he had to attend a conference in Maragondon, Cavite.  Instead, he was represented by Atty. Reno Capinpin, while the other respondents were represented by Atty. Jocelyn Pili.   But the court just the same declared them as in default.  The Solicitor General moved for a reconsideration, reiterating that Cariño could not personally come on June 26, 1992 because of prior commitment in Cavite.  It was pointed out that Cariño was represented by Atty. Reno Capinpin, while the other respondents were represented by Atty. Jocelyn Pili, both of the DECS-NCR and that both had special powers of attorney.  But the Solicitor General’s motion for reconsideration was denied by the trial court.  In its order of July 15, 1992, the court stated:

“The “Motion For Reconsideration” dated July 3, 1992 filed by the respondents thru counsel, is hereby DENIED for lack of merit.  It appears too obvious that respondents simply did not want to comply with the lawful orders of the Court.

The respondents having lost their standing in Court, the “Manifestation and Motion,” dated July 3, 1992 filed by the Office of the Solicitor General is hereby DENIED due course.

SO ORDERED.”

On July 3, 1992, the Solicitor General informed the trial court that Cariño had ceased to be DECS Secretary and asked for his substitution.  But the court failed to act on his motion.

The hearing of the case was thereafter conducted ex parte with only the teachers allowed to present their evidence.

On August 10, 1992, the trial court rendered a decision, in which it stated:

“The Court is in full accord with petitioners’ contention that Rep. Act No. 4670 otherwise known as the “Magna Carta for Public School Teachers” is the primary law that governs the conduct of investigation in administrative cases filed against public school teachers, with Pres. Decree No. 807 as its supplemental law.  Respondents erred in believing and contending that Rep. Act. No. 4670 has already been superseded by the applicable provisions of Pres. Decree No. 807 and Exec. Order No. 292.  Under the Rules of Statutory Construction, a special law, Rep. Act. No. 4670 in the case at bar, is not regarded as having been replaced by a general law, Pres. Decree No. 807, unless the intent to repeal or alter the same is manifest.  A perusal of Pres. Decree No. 807 reveals no such intention exists, hence, Rep. Act No. 4670 stands.  In the event that there is conflict between a special and a general law, the former shall prevail since it evidences the legislator’s intent more clearly than that of the general statute and must

be taken as an exception to the General Act.  The provision of Rep. Act No. 4670 therefore prevails over Pres. Decree No. 807 in the composition and selection of the members of the investigating committee. Consequently, the committee tasked to investigate the charges filed against petitioners was illegally constituted, their composition and appointment being violative of Sec. 9 of Rep. Act. No. 4670 hence all acts done by said body possess no legal color whatsoever.

Anent petitioners’ claim that their dismissal was effected without any formal investigation, the Court, after consideration of the circumstances surrounding the case, finds such claim meritorious.  Although it cannot be gain said that respondents have a cause of action against the petitioner, the same is not sufficient reason to detract from the necessity of basic fair play.  The manner of dismissal of the teachers is tainted with illegality.  It is a dismissal without due process.  While there was a semblance of investigation conducted by the respondents their intention to dismiss petitioners was already manifest when it adopted a procedure provided for by law, by shifting the burden of proof to the petitioners, knowing fully well that the teachers would boycott the proceedings thereby giving them cause to render judgment ex-parte.

The DISMISSAL therefore of the teachers is not justified, it being arbitrary and violative of the teacher’s right to due process.  Due process must be observed in dismissing the teachers because it affects not only their position but also their means of livelihood.

WHEREFORE, premises considered, the present petition is hereby GRANTED and all the questioned orders/decisions of the respondents are hereby declared NULL and VOID and are hereby SET ASIDE.

The reinstatement of all the petitioners to their former positions without loss of seniority and promotional rights is hereby ORDERED.

The payment, if any, of all the petitioners’ back salaries, allowances, bonuses, and other benefits and emoluments which may have accrued to them during the entire period of their preventive suspension and/or dismissal from the service is hereby likewise ORDERED.

SO ORDERED.”[5]

From this adverse decision of the trial court, former DECS Secretary Isidro Cariño filed an appeal with the Court of Appeals raising the following grounds:

“I.  The trial court seriously erred in declaring appellants as in default.

II.  The trial court seriously erred in not ordering the proper substitution of parties.

III.  The trial court seriously erred in holding that R.A. No. 4670, otherwise known as ‘Magna Carta for Public School Teachers’, should govern the conduct of the investigations conducted.

IV. The trial court seriously erred in ruling that the dismissal of the teachers are without due process.”[6]

As mentioned earlier, the Court of Appeals affirmed the RTC decision, holding in the main that private respondents were denied due process in the administrative proceedings instituted against them.

Hence, this petition for review.[7]

The Issues

Before us, petitioners raise the following issues:

“I

Whether or not Respondent Court of Appeals committed grave abuse of discretion in holding in effect that private respondents were denied due process of law.

II

Whether or not Respondent Court of Appeals seriously erred and committed grave abuse of discretion in applying strictly the provision of R.A. No. 4670 in the composition of the investigating committee.

III

Whether or not Respondent Court of Appeals committed grave abuse of discretion in dismissing the appeal and in affirming the trial court’s decision.”[8]

These issues, all closely related, boil down to a single question: whether private respondents were denied due process of law.

The Court’s Ruling

The petition is bereft of merit.  We agree with the Court of Appeals that private respondents were denied due process of law.

Denial of Due Process

At the outset, we must stress that we are tasked only to determine whether or not due process of law was observed in the administrative proceedings against herein private respondents.  We note the Solicitor General’s extensive disquisition that government employees do not have the right to strike.[9] On this point, the Court, in the case of Bangalisan vs. Court of Appeals,[10] has recently pronounced, through Mr. Justice Florenz D. Regalado:

“It is the settled rule in this jurisdiction that employees in the public service may not engage in strikes.  While the Constitution recognizes the right of government employees to organize, they are prohibited from staging strikes, demonstrations mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public services.  The right of government employees to organize is limited only to the formation of unions or associations, without including the right to strike.”

More recently, in Jacinto vs. Court of Appeals,[11] the Court explained the schoolteachers’ right to peaceful assembly vis-a-vis their right to mass protest:

“Moreover, the petitioners here, except Merlinda Jacinto, were not penalized for the exercise of their right to assemble peacefully and to petition the government for a redress of grievances.  Rather, the Civil Service Commission found them guilty of conduct prejudicial to the best interest of the service for having absented themselves without proper authority, from their schools during regular school days, in order to participate in the mass protest, their absence ineluctably resulting in the non-holding of classes and in the deprivation of students of education, for which they were responsible.  Had petitioners availed themselves of their free time -- recess, after classes, weekends or holidays -- to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one -- not the DECS, the CSC

or even this Court -- could have held them liable for the valid exercise of their constitutionally guaranteed rights.  As it was, the temporary stoppage of classes resulting from their activity necessarily disrupted public services, the very evil sought to be forestalled by the prohibition against strikes by government workers. Their act by its nature was enjoined by the Civil Service law, rules and regulations, for which they must, therefore, be made answerable.[12]

In the present case, however, the issue is not whether the private respondents engaged in any prohibited activity which may warrant the imposition of disciplinary sanctions against them as a result of administrative proceedings.  As already observed, the resolution of this case revolves around the question of due process of law, not on the right of government workers to strike.  The issue is not whether private respondents may be punished for engaging in a prohibited action but whether, in the course of the investigation of the alleged proscribed activity, their right to due process has been violated.  In short, before they can be investigated and meted out any penalty, due process must first be observed.

In administrative proceedings, due process has been recognized to include the following: (1)  the right to actual or constructive notice of the institution of proceedings which may affect a respondent’s legal rights;  (2)  a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in one’s favor, and to defend one’s rights;  (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality;  and  (4)  a finding by said  tribunal  which is  supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected.[13]

The legislature enacted a special law, RA 4670 known as the Magna Carta for Public School Teachers, which specifically covers administrative proceedings involving public schoolteachers.  Section 9 of said law expressly provides that the committee to hear public schoolteachers’ administrative cases should be composed of the school superintendent of the division as chairman, a representative of the local or any existing provincial or national teachers’ organization and a supervisor of the division.  The pertinent provisions of RA 4670 read:

“Sec. 8.         Safeguards in Disciplinary Procedure. – Every teacher shall enjoy equitable safeguards at each stage of any disciplinary procedure and shall have:

a.       the right to be informed, in writing, of the charges;

b.       the right to full access to the evidence in the case;

c.       the right to defend himself and to be defended by a representative of his choice and/or by his organization, adequate time being given to the teacher for the preparation of his defense; and

c.       the right to appeal to clearly designated authorities.  No publicity shall be given to any disciplinary action being taken against a teacher during the pendency of his case.

Sec. 9.          Administrative Charges. – Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who would at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teacher’s organization and a supervisor of the Division,  the  last two  to be designated by the Director of Public Schools.  The committee shall submit its findings, and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education.”

The foregoing provisions implement the Declaration of Policy of the statute; that is, to promote the “terms of employment and career prospects” of schoolteachers.

In the present case,  the various committees formed by DECS to hear the administrative charges against private respondents did not include “a representative of the local or, in its absence, any existing provincial or national teacher’s organization” as required by Section 9 of RA 4670.  Accordingly, these committees were deemed to have no competent jurisdiction. Thus, all proceedings undertaken by them were necessarily void.  They could not provide any basis for the suspension or dismissal of private respondents.  The inclusion of a representative of a teachers’ organization in these committees was indispensable to ensure an impartial tribunal.  It was this requirement that would have given substance and meaning to the right to be heard.  Indeed, in any proceeding, the essence of procedural due process is embodied in the basic requirement of notice and a real opportunity to be heard.[14]

Petitioners argue that the DECS complied with Section 9 of RA 4670, because “all the teachers who were members of the various committees are members of either the Quezon City Secondary Teachers Federation or the Quezon City Elementary Teachers Federation”[15] and are deemed to be the representatives of a teachers’ organization as required by Section 9 of RA 4670.

We disagree.  Mere membership of said teachers in their respective teachers’ organizations does not ipso facto make them authorized representatives of such organizations as contemplated by Section 9 of RA 4670.  Under this section, the teachers’ organization possesses the right to indicate its choice of representative to be included by the DECS in the investigating committee.  Such right to designate cannot be usurped by the secretary of education or the director of public schools or their underlings.  In the instant case, there is no dispute that none of the  teachers appointed by the DECS as members of its investigating committee was ever designated or authorized by a teachers’ organization as its representative in said committee.

Contrary to petitioners’ asseverations,[16] RA 4670 is applicable to this case.  It has not been expressly repealed by the general law PD 807, which was enacted later, nor has it been shown to be inconsistent with the latter. It is a fundamental rule of statutory construction that “repeals by implication are not favored.  An implied repeal will not be allowed unless it is convincingly and unambiguously demonstrated that the two laws are so clearly repugnant and patently inconsistent that they cannot co-exist.  This is based on the rationale that the will of the legislature cannot be overturned by the judicial function of construction and interpretation.  Courts cannot take the place of Congress in repealing statutes.  Their function is to try to harmonize, as much as possible, seeming conflicts in the laws and resolve doubts in favor of their validity and co-existence.”[17] Thus, a subsequent general law does not repeal a prior special law, “unless the intent to repeal or alter is manifest, although the terms of the general law are broad enough to include the cases embraced in the special law.”[18]

The aforementioned Section 9 of RA 4670, therefore, reflects the legislative intent to impose a standard and a separate set of procedural requirements in connection with administrative proceedings involving public schoolteachers.  Clearly, private respondents’ right to due process of law requires compliance with these requirements laid down by RA 4670.  Verba legis non est recedendum.

Hence, Respondent Court of Appeals, through Mr. Justice Vicente V. Mendoza who is now a member of this Court, perceptively and correctly stated:

“Respondent-appellants argue that the Magna Carta has been superseded by the Civil Service Decree (P.D. No. 807) and that pursuant to the latter law the head of a department, like the DECS secretary, or a regional director, like the respondent-appellant Nilo Rosas, can file administrative charges against a subordinate, investigate him and take disciplinary action against him if warranted by his findings. Respondent-appellants cite in support of their argument the following provisions of the Civil Service Decree (P.D. No. 807):

Sec. 37. Disciplinary Jurisdiction. --

xxx    xxx       xxx

b)           The heads of departments, agencies and instrumentalities xxx shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction xxx .

Sec. 38,. Procedure in Administrative Cases Against Non-Presidential Appointees. -

a)           Administrative Proceedings may be commenced against a subordinate officer or the employee by the head of department or officer of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other persons.

There is really no repugnance between the Civil Service Decree and the Magna Carta for Public School Teachers.  Although the Civil Service Decree gives the head of department or the regional director jurisdiction to investigate and decide disciplinary matters, the fact is that such power is exercised through committees.  In cases involving public school teachers, the Magna Carta provides that the committee be constituted as follows:

Sec. 9. Administrative Charges. - Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who would at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teacher’s organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools.  The committee shall submit its findings, and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, that where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education.

Indeed, in the case at bar, neither the DECS [s]ecretary nor the DECS-NCR regional director personally conducted the investigation but entrusted it to a committee composed of a division supervisor, secondary and elementary school teachers, and consultants.  But there was no representative of a teachers organization.  This is a serious flaw in the composition of the committee because the provision for the representation of a teachers organization is intended by law for the protection of the rights of teachers facing administrative charges.

There is thus nothing in the Magna Carta that is in any way inconsistent with the Civil Service Decree insofar as procedures for investigation is concerned.  To the contrary, the Civil Service Decree, [S]ec. 38(b) affirms the Magna Carta by providing that the respondent in an administrative case may ask for a “formal investigation,” which was what the teachers did in this case by questioning the absence of a representative of a teachers organization in the investigating committee.

The administrative committee considered the teachers to have waived their right to a hearing after the latter’s counsel walked out of the preliminary hearing.  The committee should not have made such a ruling because the walk out was staged in protest against the procedures of the committee and its refusal to give the teachers’ counsel a copy of the guidelines.  The committee concluded its investigation and ordered the dismissal of the teachers without giving the teachers the right to full access of the evidence against them and the opportunity to defend themselves.  Its predisposition to find petitioner-appellees guilty of the charges was in fact noted by the Supreme Court when in its resolution in G.R. No. 101943 (Rosario Septimo v. Judge Martin Villarama, Jr.) it stated:

The facts and issues in this case are similar to the facts and issues in Hon. Isidro Cariño, et al. v. Hon. Carlos C. Ofilada, et al. G.R. No. 100206, August 22, 1961.

As in the Cariño v. Ofilada case, the officials of the Department of Culture and Education are predisposed to summarily hold the petitioners guilty of the charges against them.  In fact, in

this case Secretary Cariño, without awaiting formal administrative procedures and on the basis of reports and “implied admissions” found the petitioners guilty as charged and dismissed them from the service in separate decisions dated May 16, 1991 and August 6, 1991.  The teachers went to court.  The Court dismissed the case.”[19]

Furthermore, this Court sees no valid reason to disregard the factual findings and conclusions of the Court of Appeals.  It is not our function “to assess and evaluate all over again the evidence, testimonial and documentary, adduced by the parties particularly where, such as here, the findings of both the trial court and the appellate court coincide.”[20]

It is as clear as day to us that the Court of Appeals committed no reversible error in affirming the trial court’s decision setting aside the questioned orders of petitioners; and ordering the unqualified reinstatement of private respondents and the payment to them of salaries, allowances, bonuses and other benefits that accrued to their benefit during the entire duration of their suspension or dismissal.[21] Because the administrative proceedings involved in this case are void, no delinquency or misconduct may be imputed to private respondents.  Moreover, the suspension or dismissal meted on them is baseless.  Private respondents should, as a consequence, be reinstated [22] and awarded all monetary benefits that may have accrued to them during the period of their unjustified suspension or dismissal.[23] This Court will never countenance a denial of the fundamental right to due process, which is a cornerstone of our legal system.

WHEREFORE, premises considered, the petition is hereby DENIED for its utter failure to show any reversible error on the part of the Court of Appeals.  The assailed Decision is thusAFFIRMED.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 130442             April 6, 2000

THE SUMMARY DISMISSAL BOARD AND THE REGIONAL APPELLATE BOARD, PNP, REGION VI, ILOILO CITY, petitioners, vs.C/INSP. LAZARO TORCITA, respondent.

GONZAGA-REYES, J.:

Before us is a Petition for Review by way of Certiorari of the Decision of the Court of Appeals1 in CA-G.R. SP No. 43872, which set aside the Decision of the Regional Director (RD) of the Philippine National Police (PNP) of Iloilo City, through its Summary Dismissal Board (SDB), suspending herein respondent C/Insp. Lazaro Torcita from the service for twenty (20) days for "Simple Irregularity in the Performance of Duty under Section 41 of R.A. 6975."

The antecedents are as follows:

On July 6, 1994, the following verified complaints were filed against C/Insp. Lazaro Torcita, herein respondent, by Manuel Puey, Jesus Puey, Alex Edwin del Rosario:

1) Administrative Case Nr. SDHB "B6"-94-01- for Conduct Unbecoming of a Police Officer filed by Jesus H. Puey in a complaint dated June 25, 1994;

2) Admin. Case Nr. SDHB "B6"-94-02- for Grave Threats filed by Jesus H. Puey;

3) Admin. Case Nr. SDHB "B6"-94-03 for Abuse of Authority and Illegal Search filed by Jesus H. Puey;

4) Admin. Case Nr. SDHB "B6"-94-04 for Abuse of Authority and Violation of Domicile filed by Jesus H. Puey;

5) Admin. Case Nr. SDHB "B6"-94-05 for Abuse of Authority and Violation of COMELEC Gun Ban filed by Jesus H. Puey;

6) Admin. Case Nr. SDHB "B6" -94-06 for Conduct Unbecoming of a Police Officer filed by Manuel H. Puey;

7) Admin. Case Nr. SDHB "B6" -94-07 for Illegal Search filed by Manuel H. Puey;

8) Admin. Case Nr. SDHB "B6" -94-08 for Grave Abuse of Authority and Violation of Domicile filed by Manuel Puey;

9) Admin. Case Nr. SDHB "B6" -94-09 for Abuse of Authority and Violation of COMELEC Gun Ban filed by Manuel Puey;

10) Admin. Case Nr. SDHB "B6" -94-10 for Conduct Unbecoming of a Police Officer filed by Alex Edwin del Rosario;

11) Admin. Case Nr. SDHB "B6" -94-11 for Abuse of Authority and Grave Threats filed by Alex Edwin del Rosario;

12) Admin. Case Nr. SDHB "B6" -94-12 for Abuse of Authority and Violation of COMELEC Gun Ban filed by Alex Edwin del Rosario.

The twelve administrative complaints were the subject of administrative hearings before the Summary Dismissal Board of the PNP. At the pre-trial, the parties and their respective counsels agreed that the twelve cases shall be consolidated into one "major complaint" for "conduct unbecoming of a police officer" under Par. e, Sec. 3, Rule II, Memorandum Circular No. 92-006 pursuant to RA 69752 . The statement of the case by the Summary Dismissal Board is as follows:

That sometime last April 26, 1994, after attending the birthday party of Miss Jessie Vasquez Alex Edwin del Rosario, together with Rosita Bistal, Carmen Braganza and Cristita Dawa boarded Mazda pick up with plate nr. HHP-808 and driven by Reynaldo Consejo, proceeded towards the direction of Cadiz City.

While nearing Crossing Cadiz in the vicinity of Sitio Puting Tubig, the aforementioned Mazda pick-up driven by Consejo overtook a red Cortina Ford driven by Major Lazaro Torcita; That on board the motor vehicle driven by Torcita were three females sitted at the back;

That Major Lazaro Torcita signaled the passengers of the Mazda pick-up to stop, however, the driver of the Mazda pick-up refused to abide by the signal and instead accelerated and proceeded to Hda. Aimee without stopping.

That upon reaching Hda. Aimee Major Lazaro Torcita, entered the compound and was approached by two persons in civilian clothes which prevented him from further proceeding; Moments after, the patrol car of Cadiz PNP arrived and together with Major Torcita, approached Jesus H. Puey and Alex Edwin del Rosario, inquiring as to the identity of the persons who accosted him;

The complainants alleged that Major Torcita approached and entered the compound of Hda. Aimee, very drunk, with back-up vehicle full of armed policemen, confronted Jesus H. Puey and Alex Edwin del Rosario as who stopped him at the gate, shouting in a very, very loud voice, invectives and remarks;

That such act of Major Lazaro Torcita constitute Conduct Unbecoming of an Officer not worth of respect;

In his answer, the respondent, Lazaro R. Torcita, while admitting that he entered the premises of the complainants, the same was done on a regular, lawful and proper way for he was in the performance of his official duties in pursuing the suspect who committed a crime in his presence;

From the affidavits of the witnesses and testimonies presented by the complainants and the counter affidavits and the counter testimonies of the respondent, the ISSUE before the Board is whether the respondent is guilty of Conduct Unbecoming of a Police Officer under Republic Act 6975 as implemented by Memorandum Circular 92-006 of the National Police Commission under Rule II Section 3, Paragraph C, committed thru a series of illegal acts consisting of Grave Threats, Illegal Search, Abuse of Authority, Violation of Domicile and Violation of COMELEC Gun Ban.

The complainant presented documentary evidence and witnesses Congressman Manuel Puey, Rosita Bistal, Alex Edwin del Rosario and Reynaldo Consejo. Respondent Torcita testified in his behalf and presented Nehru Java, a member of the PNP Cadiz, who was with him during the incident in question.

The Summary Dismissal Board made the following findings of facts:

That sometime last April 26, 1994, at about 10:30 in the evening, a red Cortina Ford, driven by C/Insp. Lazaro H. Torcita, with his aide, PO2 Nehru Java, in the front seat and his wife with two ladies at the backseat, were overtaken by a mazda pick-up, in the vicinity of Sitio Puting Tubig, about 10 kilometers from crossing Cadiz, owned by Congressman Manuel Puey and driven Reynaldo Consejo with four (4) passengers in the persons of Alex Edwin del Rosario, the executive assistant and financial analyst of Congressman Puey, three (3) helpers employed under the Congressman, namely, Rosita Bistal, Carmen Braganza and Cristina Dawa;

That both parties came from the Municipality of Victorias where they attended some social functions on the occasion of the town fiesta;

After the mazda pick-up has overtaken the red Cortina Ford, it accelerated speed and proceeded to Hda. Aimee, a sugarcane plantation in Cadiz City, also owned by Congressman Manuel Puey; The red Cortina Ford followed also at high speed until it reached Hda. Aimee where C/Insp. Torcita and PO2 Java alighted and the confrontation with Alex Edwin del Rosario and Jesus Puey, occurred;

The Complainant tried to establish the fact that nothing unusual occurred or transpired between the parties in the vicinity of Sitio Puting Tubig and that Torcita has no business pursuing them; However the Board is more inclined to give credence to the affidavits (exhibit 5 & 6) and the testimony of C/Insp. Torcita that a

vehicular collision almost took place due to reckless driving of the driver of the mazda pick-up;

That it was the duty inherent to the position as Chief of Police of Cadiz City and as deputy of the Land Transportation Office to enforce traffic rules and regulation to prevent chaos and accidents in roads and highways of the country (exhibit 13); This observation is further bolstered by the testimony of Reynaldo Consejo, the driver of the mazda pick-up, that he was able to overtake the red Cortina Ford only after the latter car hit the shoulder of the road and after overtaking he increased his speed (tsn page 131, August 30, 1994);

This sudden increase in speed of a driver involved in a vehicular accident is a classic move for one who wants a fast get away from the scene, to escape responsibility;

Further, Alex Edwin del Rosario testified that upon reaching Hda. Aimee, he instructed the guard to be on look-out for a car might be following them and might enter the compound (TSN page 70 August 30, 1994 ). This conduct would show that witness is anticipating that red Cortina Ford would follow them because of the incident in Sitio Puting Tubig which could have ended in a vehicular collision and finally no proof was presented to show that no other reason exist as to why C/Insp. Torcita would pursue the Mazda pick up other than near occurrence of a vehicular collision;

The Complainant presented the Joint-Affidavit of Rosita Bistal and Reynaldo Consejo and the Affidavit of Alex Edwin del Rosario, jointly taken, may be considered as proof that C/Insp. Torcita has committed act or series of acts that would constitute Grave Threat, Illegal Search, Abuse of Authority, Violation of Domicile and Violation of COMELEC Resolutions regarding the gun ban, thus CONDUCT UNBECOMING OF A POLICE OFFICER;

That in the Joint-Affidavit of Rosita Bistal and Reynaldo Consejo (exhibit c; exhibit 2), Bistal attempted to establish the fact that C/Insp. Torcita and PO2 Java illegally entered the gate of the compound but were stopped by the guards armed with cane stick or batuta, however in her testimony given during the hearing (tsn page 32, August 30, 1994) she stated that she did not know what transpired between the two men approaching and the guards near the gate because she, together with her companions, were busy unloading kitchen utensil from the pick-up to the kitchen and Consejo categorically stated that this portion of their affidavit, specifically paragraph 7, is NOT TRUE; Alex Edwin del Rosario, in his testimony given in the hearing, corroborated this fact that he also did not see or hear what happened for he was in some distance away and he cannot see them clearly (TSN page 73, August 30, 1994);

The only piece of evidence presented in connection with the incident which happened near the gate of the compound is the affidavit of C/Insp. Torcita and his testimony given in the hearing of the case that when he was walking towards the compound together with his aide, PO2 Nehru Java, two armed civilian guards stopped and threatened him; He identified himself however, the same had no effect, and PO2 Java whispered that there are armed men around them and that it is dangerous for them to continue. That at this point, they radioed for back-up; Since no proof to the contrary was presented by the Complainant nor was there any witness or witnesses presented to rebut this allegations, the Board had no other choice except to consider these allegations as proof; (Exhibit 5 & 6); The Board also resolve to take note that a metropolitan newspaper with nationwide circulation and with unquestionable credential, had published a news item about the presence of armed security personnel of Congressman Manuel Puey exhibit 14); This evidence give more credence to the fact that there were really armed men in the premises where the aforementioned incident happened; That this is corroborated further by the affidavit of PO2 Nehru Java (exhibit 17);

This observation of the Board that there were really armed men in the premises of Hda. Aimee, is further enhance by the fact that Major Torcita felt their presence when he desisted from further entering the compound, a feeling which was developed and nurtured by years of living under combat conditions and finally the Board also feels that the presence of armed persons in the offices and properties of high government officials is accepted as a necessary consequence for their protection due to the greater risks they are expose to;

That because of the incident in Sitio Puting Tubig which was further aggravated by the confrontation near the gate of the compound of Hda. Aimee, C/Insp. Torcita upon the arrival of the back-up force of PNP Cadiz City, proceeded to the place where Capt. Jesus Puey and Alex Edwin del Rosario were; This fact is not disputed by the parties;

x x x           x x x          x x x

Chief Insp. Lazaro Torcita does not deny having taken alcoholic drink; However, not to the point of drunkness; The Board is more inclined to believe this allegation for no sane person will risks the life of a member of his family by deliberately driving when he is mentally and physically incapable; Further, C/Insp. Torcita was able to drive from Victorias to Cadiz City, a distance of forty kilometers, on a dark night and raining and was able to avoid collision of the vehicles involved by sheer reflex action despite the admitted fact that his tire hit the shoulder of the road;

Further, at the time Chief Inspector Torcita entered the compound he was fully aware of the presence of armed men and reacted to this by exercising prudence while approaching the compound of Hda. Aimee; The foregoing facts would show that C/Insp. Torcita was in full command of his senses and was not affected by the numbing effect of alcohol for a drunk person does not show any caution and behaves irrationaly.

The Board did not find sufficient evidence to establish that Torcita threatened anybody with a gun, nor that a serious confrontation took place between the parties. The Board also found that there was no sufficient evidence that the urinating incident took place, and held that the charges of violation of domicile and illegal search were not proven. The Board found that Lazaro Torcita was "in the performance of his official duties when the incident happened; however, he committed a breach of internal discipline by taking alcoholic drinks while in the performance of same. The dispositive portion of the decision of the Board reads:

WHEREFORE, in view of the foregoing, the Complaint for CONDUCT UNBECOMING OF A POLICE OFFICER under Memo Cir. Nr. 92-006 pursuant to Sec. 42, RA 6975, be DISMISSED for lack of sufficient evidence, however finds C/Insp. Lazaro R. Torcita to have committed SIMPLE IRREGULARITY IN THE PERFORMANCE OF DUTY under Sec. 41, RA 6975, in relation to NAPOLCOM Memo Cir. Nr. 91-002 and is hereby ORDERED SUSPENDED for twenty days (20) and forfeiture of salary for the same period of time effective upon receipt of this Decision under Rule 7, Section 2, Sub-par. b of the same Memo Circular.

Torcita appealed his conviction to the Regional Appellate Board of the PNP, Region VI, Iloilo City, but the appeal was dismissed for lack of jurisdiction; Thus,

Under the applicable provisions of Section 45 of R. A. 6975, however, the disciplinary action imposed by the Regional Director upon a PNP member shall be final and executory except those involving demotion in rank or dismissal from the service. The appealed decision being that of suspension from the service with corresponding forfeiture of pay only the same is not subject to review by this Board.3

Whereupon, C/Insp. Torcita filed a petition for certiorari in the regional trial court of Iloilo City, Branch 31, questioning the legality of the conviction of an offense for which he was not charged, "which conviction is a nullity because of the lack of procedural due process of law."

Public respondent filed a motion to dismiss, which was denied. The regional trial court granted the petition forcertiorari and annulled the dispositive portion of the questioned decision insofar as it found Torcita guilty of simple irregularity in the performance of duty.

Public respondent appealed from the above-mentioned decision of the regional trial court, by petition of review to the Court of Appeals, which affirmed the same for the reason that the respondent could not have been guilty of irregularity considering that "the twelve (12) cases treated as Conduct Unbecoming of a Police Officer were eventually dismissed."

The instant petition for review on certiorari under Rule 45 seeks the reversal of the aforesaid decision of the Court of Appeals on the following grounds:

1 THE OFFENSE OF "SIMPLE IRREGULARITY IN THE PERFORMANCE OF DUTY" IS NECESSARILY INCLUDED IN THE CHARGE OF "CONDUCT UNBECOMING OF A POLICE OFFICER."

2 THE DECISION OF THE SUMMARY DISMISSAL BOARD (SDB) AND THE NAPOLCOM REGIONAL APPELLATE BOARD HAS BECOME FINAL AND EXECUTORY.4

The petitioners submit that the offense of "Conduct Unbecoming of a Police Officer" is broad enough to include any act of an officer which tends to bring dishonor and disgrace to the PNP organization, and Simple Irregularity in the Performance of Duty is one act which brings such disgrace and dishonor as contemplated by law. Moreover, the dismissal has become final and executory and the trial court erred when it proceeded with the petition in violation of the doctrine of primary jurisdiction.

In his comment, respondent Torcita insists that his right to due process of law was "corrosively abridged and impaired", and pleads for an affirmance of the decision of the Court of Appeals.

The appeal has no merit. The Court of Appeals did not err in affirming the decision of the trial court granting the petition for certiorari.

The administrative disciplinary machinery for dealing with complaints or charges against any member of the Philippine National Police (PNP) is laid down in Republic Act No. 6975, otherwise known as the "Department of the Interior and Local Government Act of 1990." This law defines the summary dismissal powers of the PNP Chief and Regional Directors, among others in cases, "where the respondent is guilty of conduct unbecoming of a police officer."5 Memorandum Circular No. 92-006 prescribes the "Rules and Regulations in the conduct of summary dismissal proceedings against erring PNP members" and defines conduct unbecoming of a police officer under Section 3 (c), Rule II, as follows:

"Conduct unbecoming of a police officer" refers to any behavior or action of a PNP member, irrespective of rank, done in his official capacity, which, in dishonoring or otherwise disgracing himself as a PNP member, seriously compromise his character and standing as a gentleman in such a manner as to indicate his vitiated or corrupt state of moral character; it may also refer to acts or behavior of any PNP member in an unofficial or private capacity which, in dishonoring or disgracing himself personally as a gentleman, seriously compromises his position as a PNP member and exhibits himself as morally unworthy to remain as a member of the organization.

On the other hand, the acts constituting "simple irregularity in the performance of duty" are defined in Memorandum Circular No. 91-002. It is a light offense, incurred, among others, by a member of the PNP who shall, among others, be found to "have the odor or smell of alcohol on his breath while on duty, or possess alcoholic beverages on his person, police vehicle, post or office." (Sec. 2. A, Rule VI).

As above-stated, the Summary Dismissal Board absolved the C/Insp. Torcita of the consolidated charge of "conduct unbecoming of a police officer" but found him guilty of simple irregularity in the performance of duty under Sec. 41, R.A. No. 6975, in relation to Napolcom Memorandum Circular No. 91-002 and imposed a penalty of suspension for twenty (20) days and forfeiture of salary for the same period.

We are unable to sustain the theory of the petitioners that the definition of "conduct unbecoming of a police officer" as earlier granted, is broad enough to include any act of an officer which tends to bring dishonor and disgrace to the PNP organization, and that there is "no legal prohibition" which would prevent the Summary Dismissal Board from finding petitioner guilty of the lesser offense. While the definition of the more serious offense is broad, and almost all-encompassing a finding of guilt for an offense, no matter how light, for which one is not properly charged and tried cannot be countenanced without violating the rudimentary requirements of due process.

The series of twelve complaints filed against C/Insp. Torcita were solely based on the incident that occurred on April 26, 1994 at about 11:00 o'clock in the evening, wherein Torcita, who was off-duty and was in civilian clothes, riding in his private vehicle with members of his family, chased another vehicle which overtook his car in a reckless manner and in violation of the Traffic Code; the hot pursuit ended at the Hacienda Aimee, where he allegedly entered the place without lawful warrant and while inside, belligerently shouted invectives, challenging everyone to a fight, pointed his gun at somebody and urinated in full view of the persons therein. The Dismissal Board found the above charges unsubstantiated and held that Torcita was in the performance of official duty when the incidents happened. "However, he committed breach of internal discipline by taking alcoholic drinks while in the performance of same."

It is glaringly apparent from a reading of the titles of the twelve administrative cases filed against C/Insp. Torcita, earlier quoted, that none of the charges or offenses mentioned or made reference to the specific act of being drunk while in the performance of official duty. The records do not bear out the specific acts or conduct constituting the charge/offense in the twelve cases which were consolidated at the pre-hearing conference into a single case of "Conduct Unbecoming of a Police Officer." Thus, the Board defined the issue before the Board as "whether the respondent is guilty of conduct unbecoming of a police officer under Republic Act 6975, as implemented by Memorandum Circular No. 92-006 of the National Police Commission under Rule II, Section 3, Paragraph c, committed though a series of illegal acts consisting of grave threats, illegal search, abuse of authority, violation of domicile or violation of Comelec Gunban." Notably, there is no indication or warning at all in the summary dismissal proceedings that C/Insp. Torcita was also being charged with breach of internal discipline consisting of taking alcoholic drinks while in the performance of his duties.

The omission is fatal to the validity of the judgment finding him guilty of the offense for which he was not notified nor charged.1a\^/phi1 Summary dismissal proceedings are governed by specific requirements of notification of the charges together with copies of affidavits and other attachments supporting the complaints, and the filing of an answer, together with supporting documents. It is true that consistent with its summary nature, the duration of the hearing is limited, and the manner of conducting the hearing is summary, in that sworn statements may take the place of oral testimonies of witnesses, cross-examination is confined only to material and relevant matters, and prolonged arguments and dilatory proceedings shall not be entertained. (Section 4, Memorandum Circular No. 92-006). However, notification of the charges contemplates that respondent be informed of the specific charges against him. Torcita was entitled to know that he was being charged with being drunk while in the performance of duty, so that he could traverse the accusation squarely and adduce evidence in his defense. Although he was given an opportunity to be heard on the multiple and broad charges initially

filed against him, the absence of specification of the offense for which he was eventually found guilty is not a proper observance of due process. There can be no short-cut to the legal process (Alonte vs. Savellano Jr., 287 SCRA 245).

It is a requirement of due process that the parties be informed of how the litigation was decided with an explanation of the factual and legal reasons that led to the conclusions of the Court (ABD Overseas Manpower Corp. vs. NLRC, 286 SCRA 454). Memorandum Circular No. 92-006 specifically prescribes that the decision shall contain "a brief statement of the material facts and the findings of the summary dismissal authority as well as the disposition thereof" (Sec. 6). The cursory conclusion of the Dismissal Board that Torcita "committed breach of internal discipline by taking drinks while in the performance of same" should have been substantiated by factual findings referring to this particular offense. As it turned out, the dismissal Board believed his allegation that he was not drunk and found that he was in full command of his senses where he tried to apprehend the driver of the maroon Mazda pick-up. Although Torcita did not deny that he had taken a shot of alcoholic drink at the party which he attended before the incident, the records show that he was then off-duty and the party was at the Municipality of Victorias, which was outside of his area of police jurisdiction. On the other hand, the hot pursuit incident occurred while he was on in his way home to Cadiz City with the members of his family. As observed by the Dismissal Board itself, the hot pursuit was motivated by the duty "inherent to the position as Chief of Police of Cadiz City and as Deputy of the Land Transportation Office to enforce traffic rules and regulations, to prevent chaos and accidents in roads and highways" (Decision, p. 76). The Court of Appeals correctly pointed out that even if he was prosecuted for irregular performance of duty, he could not have been found to have the odor or smell of alcohol while in the performance of duty because he was not on duty at the time that he had a taste of liquor; he was on a private trip fetching his wife.

Premises considered, we hold that the Court of Appeals correctly found that the decision of the petitioners Board was rendered without or in excess of jurisdiction, as respondent Torcita was found guilty of an offense for which he was not properly charged. A decision is void for lack of due process if, as a result, a party is deprived of the opportunity of being heard (Palu-ay vs. CA, 293 SCRA 358). A void judgment never acquires finality (Heirs of Mayor Nemencio Galvez vs. CA 255 SCRA 672; Fortich vs. Corona, 298 SCRA 678). Hence, aforementioned decision cannot be deemed to have become final and executory.

WHEREFORE, the assailed decision dated September l, 1997 of the Court of Appeals is AFFIRMED and the instant petition is DISMISSED.

SO ORDERED.1â

 FIRST DIVISION

                        

OFFICE OF THE OMBUDSMAN,                      G.R. No. 164460 Represented by Hon. SIMEON V.MARCELO,                                                                      Present:                                                Petitioner,                                                                                                               Panganiban, CJ,

                                       Chairman,

                Ynares-Santiago,

- versus -                                                 Austria-Martinez,                                        Callejo, Sr. and

                                                                                                    Chico-Nazario, JJ                                     Promulgated:

CARMENCITA D. CORONEL,                                    Respondent.                  June 27, 2006

 x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x

   

DECISION   PANGANIBAN, CJ:  

n administrative cases, a finding of guilt must be supported by substantial evidence.  In

the present case, an unauthenticated photocopy of an alleged receipt does not constitute

substantial evidence to show that respondent is guilty of dishonesty.  In fact, absent any

authentication, the photocopy is inadmissible in evidence; at the very least, it has no

probative value.

The Case   

       Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, assailing

the August 28, 2003 Decision[2] and the June 28, 2004 Resolution of the Court of Appeals (CA)

in CA-GR SP No. 77047.[3]  The CA Decision nullified petitioner’s Order of Disapproval

dated March 23, 2001,[4] while the CA Resolution denied petitioner’s Motion for

Reconsideration.[5] The challenged Decision disposed thus:           “WHEREFORE, premises considered, and in view of all the foregoing, the petition is GIVEN DUE COURSE.  The Disapproval by [Petitioner] Ombudsman on the March 23, 200[1] [[6]] Order of Graft Investigation Officer I Grace H. Morales, granting the motion for reconsideration of [Respondent]Carmencita D. Coronel is ANNULLED and SET ASIDE for having been done with grave abuse of discretion amounting to lack or excess of jurisdiction. Consequently, the March [7], 200[1][[7]] Order of Graft Investigation Officer I Grace H. Morales exonerating [Respondent] Carmencita D. Coronel is herebyREINSTATED and AFFIRMED.”[8]

 

I

The Facts

 

          According to the CA, the facts are as follows:         

“[Respondent] Carmencita D. Coronel is a Senior Accounting Processor B with Salary Grade 10 of the Linamon Water District, Lanao del Norte.  OnSeptember 26, 1997, the Board of Directors of Linamon Water District, by virtue of Resolution No. 056[,] Series of 1997, designated [respondent] as Officer-in-Charge, effective October 1, 1997 until a General Manager shall have been appointed.           “In the morning of October 14, 1998, [respondent] called for a meeting the officers of the different Water Districts in Lanao del Norte and Lanao del Sur, as well as their advisors from the Local Water Utilities Administration (LWUA).  Since it was nearing lunchtime, the group opted to continue their meeting atMarvilla’s Store at Barangay Bunu-un, Iligan City.  The luncheon meeting, attended by more or less ten (10) persons, was presided over by Advisor RhodoraGumban of the LWUA.  As the host of the said meeting, [respondent] paid for the lunch in the amount of One Thousand Two [H]undred Thirteen [P]esos(P1,213.00), as shown in cash Invoice No. 0736 dated October 14, 1998.           “On November 13, 1998, [respondent] claimed for reimbursement of her expenses covered by Voucher No. 98-11-23, chargeable against the representation and entertainment account of her office.  That very same day, the voucher was approved and [respondent] got her reimbursement in the amount of One Thousand Two [H]undred Thirteen [P]esos (P1,213.00).            “On November 17, 1998, Pedro C. Sausal, Jr. was appointed General Manager of Linamon Water District.  On February 1999, he filed with the Office of the Ombudsman-Mindanao a sworn letter-complaint against herein [respondent] for dishonesty.  The case was docketed as Case No. OMB-MIN-ADM 99-044. The complaint alleges that [respondent] falsified the cash invoice she submitted for reimbursement by making it appear that the luncheon bill was for One Thousand Two [H]undred Thirteen [P]esos (P1,213.00) when in fact, it was only Two [H]undred Thirteen [P]esos (P213.00), as reflected in the photocopy of the original duplicate of cash invoice No. 0736 dated October 14, 1998.           “On November 27, 2000, Grace H. Morales, Graft Investigation Officer I of the OMB-Mindanao, Davao City, rendered a decision, approved by the then Ombudsman Aniano A. Desierto on December 29, 2000, the dispositive portion of which reads- 

‘WHEREFORE, premises considered, this office finds and so holds that respondent CARMENCITA D. CORONEL is guilty of DISHONESTY and is hereby DISMISSED from the service, with forfeiture of all leave credits and retirement benefits, pursuant to Section 22 (a) in relation to Sec. 9 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987.  She is disqualified from re-employment in the national and local governments, as well as in any agency, including government-owned or controlled corporations.  Let a copy of this decision be entered in the personal records of respondent. 

‘SO DECIDED.’ “On January 10, 2001, the Office of the Ombudsman, Manila,

issued an order directing the General Manager of Linamon Water District, Lanao del Norte, to implement the decision dated November 27, 2000. 

 “[Respondent] filed her motion for reconsideration

dated February 2, 2001.  On March 7, 2001, Graft Investigation Officer I Grace H. Morales issued an Order, the decretal portion of which states-

 ‘WHEREFORE, premises considered, the

Motion for reconsideration is granted and the Decision of this Office dated November 27, 2000 dismissing from the service respondent Carmencita D. Coronel is hereby SET ASIDE.’

                x x x                             x x x                             x x x “On March 23, 2001, [Petitioner]

Ombudsman Aniano Desierto DISAPPROVED the above order with a marginal note, ‘the original decision stands.’”[9]

   

          Originally, Respondent Coronel filed before this Court a Rule 65 Petition, [10] seeking the

nullification of petitioner’s Disapproval Order for having deprived her of due process.  In that

case,[11]  we said that the Petition should have been denied outright. After all, in Fabian

v. Desierto,[12] this Court held that appeals from the decisions of the Office of the Ombudsman

(OMB) in administrative disciplinary cases should be taken to the CA under Rule 43 of the

Rules of Court.  In that case, though, we ruled that in the interest of justice,  there was a need

to suspend the application of Fabian and Circular AM No. 99-2-02-SC.  We considered

respondent’s Petition then as a petition for review under Rule 43 and referred it to the CA for

adjudication on the merits.[13]

         

Ruling of the Court of Appeals

 

The appellate court nullified petitioner’s Disapproval Order and reinstated the March

7, 2001 Order of Graft Investigation Officer I Grace H. Morales, who exonerated respondent

from the charge of dishonesty.

The CA took cognizance of the corroborating Affidavits[14] submitted by respondent

for the first time through her Motion for Reconsideration[15] before the ombudsman.  The CA

held that those pieces of evidence adequately supported her innocence.  The court a

quo reiterated the investigating officer’s finding that her administrative liability for dishonesty

had not been proven.

 

Further, the appellate court said that the OMB’s disapproval was tainted with grave

abuse of discretion.[16]  First, petitioner ombudsman did not consider the credible evidence

presented by respondent in her Motion for Reconsideration.  Second, he did not give any

justification for his disapproval of the investigating officer’s ruling.  This shortcoming was in

contravention of the constitutional mandate that all decisions, even if rendered by quasi-

judicial and administrative bodies, should clearly and distinctly state the facts and the law on

which they are based.  The CA cited Eballa v. Paas,[17] in which the Supreme Court had

denounced some judges’ practice of merely noting down their orders on the margin of the

motions before them.[18] 

 

Hence, this Petition.[19] 

 

Issues

           Petitioner raises the following issues in its Memorandum: 

 “I

 Whether or not the Court of Appeals erred in holding that respondent was not guilty of falsifying the amount written in the receipt. 

“II 

Whether or not the Court of Appeals erred in holding that it was grave injustice for then Ombudsman Desierto not to have considered the evidence presented by respondent in her Motion for Reconsideration.

 “III 

Whether or not the Court of Appeals erred in holding that respondent was denied due process. 

“IV 

Whether or not the Court of Appeals erred in holding that it was grave injustice for then Ombudsman Desierto not to give any justification in disapproving the Order of Dismissal by GIO Grace H. Morales.”[20]

    

            Going over petitioner’s arguments, the issues may be reduced to the following:

 

1.      Whether petitioner’s Disapproval Order, expressed as a marginal notation, was

a valid decision or order

2.      Whether the investigating officer committed an error in admitting respondent’s

“new” evidence

3.      Whether respondent was guilty of dishonesty.

  

The Court’s Ruling

 

          The Petition is partly meritorious.  

First Issue:Validity of the Disapproval Order

  

          Respondent maintains that Ombudsman Desierto’s marginal notation -- which reads,

“The original decision stands” -- was violative of her right to due process for failing to state the

basis for the action.[21] 

 

On the other hand, petitioner counters that the marginal notation met constitutional

standards. Citing Olivarez v. Sandiganbayan,[22] the OMB maintains that by referring to the

original Decision, the notation adopts the findings of fact and law already discussed. [23] 

         

          We agree with petitioner.  We held in Olivarez[24] that the ombudsman’s disapproval

orders written as marginal notations were valid, even if they did not specifically spell out their

factual and evidentiary basis.[25]  Indeed, this doctrine was first established in Cruz v.

People[26] and has consistently been followed in recent cases.[27]  In the present controversy, it

is worthwhile to quote a relevant portion of our ruling in Olivarez: 

       “It may be true that, on the face thereof, the marginal notes seem to lack any factual or evidentiary basis for failure to specifically spell out the same.  However, that is not all there is to it.  What is actually involved here is a situation wherein, on the bases of the same findings of fact of the investigating prosecutors, respondent special prosecutors were of the opinion that, contrary to the former’s recommendation, petitioner is probably guilty of the offense charged.  Obviously, therefore, since it is merely a review of the conclusions arrived at by the investigating prosecutor, another or a new preliminary investigation is no longer necessary.”[28]

 

 

 The subject notation, “The original decision stands,” was a valid resolution.  It

actually adopted the factual and legal conclusions of the original Decision.  Hence, respondent

should find her bearings from that holding. 

 

The notation does not deny respondent of her right to due process.  In

administrative proceedings, the essence of due process lies simply in the opportunity to

explain one’s side or to seek reconsideration of the action or ruling complained of.  What is

proscribed is the absolute lack of notice or hearing.[29] 

 

In this case, respondent was given every opportunity to be heard.  Significantly, her

intelligible pleadings before the CA and this Court indicate that she knew the bases for the

ombudsman’s Decision.  In fact, she very ably pinpointed its alleged errors that she thought

would merit our review.  Not having been left in the dark as to how it was reached,

respondent’s insistence on a denial of due process has no legal leg to stand on.  

Second Issue:Admission of “New” Evidence

  

          Petitioner cites Section 8 of Rule III of the Office of the Ombudsman’s Rules of Procedure

(Administrative Order No. 07), which provides that a motion for reconsideration may be filed

if a newly discovered evidence would materially affect the order or decision.  He then posits

that the Affidavits of the restaurant proprietor and the members of the luncheon meeting, as

well as the Certification of the barangay captain, could not qualify as newly discovered

evidence.  These were allegedly available and could have been readily produced by

respondent with reasonable diligence during the administrative adjudication of the case.[30] 

 

          On the other hand, respondent cites Samala v. CA[31] to support her claim that rules of

procedure must not be strictly applied to frustrate substantial justice.[32]

 

Newly discovered evidence refers to that which already exists prior to or during a

trial, but whose existence is not known to the offering litigant; or, though known, could not

have been secured and presented during the trial despite reasonable diligence.[33] What is

essential for a particular piece of evidence to be properly regarded as “newly discovered” is

that the offering party exercised reasonable diligence in seeking to locate the evidence before

or during the trial, but nonetheless failed to secure it. Thus, a party who knows of the

existence of specific pieces of evidence cannot offer them as “newly discovered” without any

explanation for not presenting them earlier.[34]

 

Petitioner is correct in saying that the evidence presented by respondent in support

of her Motion for Reconsideration should not have been considered. Her Motion for

Reconsideration[35] did not explain the belated presentation of her corroborating affidavits, but

it merely contained the following statements: “2.  On the basis of the aforecited decision, the respondent hereby

invoke (sic) this Motion for Reconsideration, anchored  principally on the ground that, this Office committed serious errors in [its] findings of fact and law, which if left uncorrected will be prejudicial to the interest of the herein respondent.  The respondent has also discovered new evidence, which if considered, will materially affect the decision, which is being sought to be reconsidered.”[36] 

 “The seriousness and the adverse consequential impact of the

decision of this Office as against the herein respondent, compelled the latter to clarify facts and things with MR. MARIANO MARZO[,] JR., who is the owner of Marvilla’s By the Sea, the same business establishment who (sic) issued Cash Invoice Receipt No. 0736, dated October 14, 1998, which is the gist (sic) of the complainant’s cause on the alleged tampering of receipt which (sic) he accused respondent to have committed the same.

 “After some initial backgrounder of the case, MR. MARIANO

MARZO[,] JR., personally volunteered to execute and sign a ‘SWORN STATEMENT’, before the Office of the City Prosecutor, of the City of Iligan, detailing every fact as to the real truth of the matter, the substance of which is reflected in his SWORN STATEMENT x x x[.]”[37]

 “Additionally, in support and in order to corroborate the Sworn

Statement of Mr. Mariano Marzo, Jr., the affidavits of MR. CEDRIC D. LAGUERTA, General Manager of Kauswagan Water District, Lanao del Norte, MR. ROMEO J. ANGELES, General Manager of Wao Water District, Lanao del Sur, MR. BEDE G. GATA, of the Local Water Utilities Administration, of Balara, Quezon City, and that of MS. RHODORA V. GUMBAN, also of LWUA, Quezon City, Philippines, [a] Certification issued by the Punong Barangay of Buru-un, Iligan City, certifying as to the

reasonableness of the price paid by the respondent, in relation to the number of persons present during that luncheon meeting, in relation to the prevailing price then for meals in that area which is a tourist destination in the City ofIligan.  The aforecited documents are herein simultaneously appended and marked as Annexes ‘C’, ‘D’, ‘E’, ‘F’, and ‘G’, respectively.”[38] 

   

We are convinced that the Affidavits do not constitute “newly discovered evidence.”

Respondent did not prove that, even with reasonable diligence, she could not have obtained

them during the investigation.  There is no showing whatsoever that her corroborating

witnesses hesitated or declined to give their testimonies. 

 

As it is, the additional evidence offered by Coronel amount to no more than

“forgotten” evidence, the belated uncovering of which would not have justified a

reconsideration of the case. Forgotten evidence refers to evidence already in existence or

available before or during a trial; known to and obtainable by the party offering it; and could

have been presented and offered in a seasonable manner, were it not for the sheer oversight

or forgetfulness of the party or the counsel. [39]  Presentation of forgotten evidence is

disallowed, because it results in a piecemeal presentation of evidence, a procedure that is not

in accord with orderly justice[40] and serves only to delay the proceedings.  A contrary ruling

may open the floodgates to an endless review of decisions, whether through a motion for

reconsideration or for a new trial, in the guise of newly discovered evidence.    

Third Issue:Absence of Substantial Evidence

  

          Notwithstanding the inadmissibility of the forgotten evidence of respondent, there is a

basis for reversing the ombudsman’s November 27, 2000Decision[41] and for affirming the CA

Decision[42] exonerating her.  We find the evidence presented by the complainant insufficient

to support his serious charge that she was dishonest. 

 

Although sufficiency or insufficiency of evidence is a question of fact and is not

generally subject to review by this Court, the instant 

case falls under the recognized exceptions.  The original Decision of the ombudsman

was not supported by the evidence, but was grounded entirely on speculations, surmises and

conjectures. 

 

The evidence of the prosecution consisted merely of the original Official Receipt

(OR) No. 0736, and a photocopy of the original duplicate of that receipt. The first was a bill

for P1,213; and the latter, for P213.  Both pieces of evidence refer to one and the same Official

Receipt; yet, they contain different amounts. Obviously, one of them was

falsified.  Unfortunately, Complainant Sausal, Jr., failed to prove that it was indeed

respondent’s receipt that was falsified.  As it stands, we do not know for certain if the number

“1” was inserted in OR No. 0736 or was deleted from the unauthenticated photocopy of the

original duplicate. The evidence is equivocal.  Besides, given that there were 8 to 10 attendees

in the luncheon meeting, a bill of P1,213 for meals was not entirely improbable, even in 1998. 

 

 

In administrative cases, the quantum of proof necessary for a finding of guilt is

substantial evidence;[43] that is, such relevant evidence that a reasonable mind might accept

as adequate to support a conclusion.[44] In the instant case, the complainant did not present

evidence to support his theory that the photocopy of the original duplicate reflected the true

amount, or that OR No. 0736 had indeed been falsified.  That oversight was fatal to the

discharge of his burden of proof.  A reasonable mind will not carelessly jump to the conclusion

that respondent is the guilty party.

 

The complainant’s evidence to prove falsification consisted of an

unauthenticated[45] photocopy of the original duplicate.  He could have obtained an affidavit

from the restaurant proprietor or employee who had issued the receipt, in order to attest to its

due execution and authenticity.  Absent any proof of due execution and authenticity, the

alleged photocopy of the original duplicate of OR No. 0736 does not convince us that it is an

accurate reflection of the actual bill incurred. 

 

While this Court adheres to a liberal view of the conduct of proceedings before

administrative agencies, it also consistently requires some proof of authenticity or reliability as

a condition for the admission of documents.  Absent any such proof of authenticity, the

photocopy of the original duplicate should be considered inadmissible and, hence, without

probative value.[46] 

 

          Given the flimsy charge and the paucity of the evidence against respondent, there is no

need for her to present additional evidence to vindicate herself. The Office of the Ombudsman

should have dismissed the Administrative Complaint against her in the first place.  Clearly, her

guilt was not proven by substantial evidence. 

         

WHEREFORE, the Petition is DENIED.  Respondent Carmencita D. Coronel is

hereby EXONERATED of the charge against her for lack of substantial evidence. No pronouncement as

to costs.            SO ORDERED.

 

EN BANC

[G.R. No. 139465. January 18, 2000]

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ,respondents.

D E C I S I O N

MELO, J.:

The individual citizen is but a speck of particle or molecule vis-à-vis the vast and overwhelming powers of government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen’s basic due process rights, or the government’s ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ.

The petition at our doorstep is cast against the following factual backdrop:

On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of crime both in the state where it was committed and the state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the executive department and the courts in the proper implementation of said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in the Requesting State).

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U. S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private respondent appears to be charged in the United States with violation of the following provisions of the United States Code (USC):

A)......18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty – 5 years on each count);

B)......26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty – 5 years on each count);

C)......18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty – 5 years on each count);

D)......18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty – 5 years on each count);

E)......2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty – less than one year).

(p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed" (p. 15, Rollo).

Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U. S. Government, as well as all documents and papers submitted therewith; and that he be given ample time to comment on the request after he shall have received copies of the requested papers. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime.

Later, private respondent requested that preliminarily, he be given at least a copy of, or access to, the request of the United States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify on his request.

In response to private respondent’s July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests for the following reasons:

1. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government, pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and establishes the procedures under which the documents submitted shall be received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in Section 4 of P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available.

It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition, request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents.

2. The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by strict secrecy rules under United States law. The United States had to secure orders from the concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United States District Courts. In this particular

extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. This Department’s denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the interests of the United States in any proceedings arising out of a request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition requests.

3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of accused or convicted persons must be processed expeditiously.

(pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private respondent the extradition documents, to give him access thereto, and to afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and objectively); certiorari (to set aside herein petitioner’s letter dated July 13, 1999); and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States), with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo).

The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion.

After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved that he be given ample time to file a memorandum, but the same was denied.

On August 10, 1999, respondent judge issued an order dated the previous day, disposing:

WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with a Regional Trial court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.

The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00 o’clock in the morning. The respondents are,

likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date.

SO ORDERED.

(pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE: 

I.

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF, I. E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;

II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;

III.

THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND

IV.

PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.

(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a temporary restraining order (TRO) providing:

NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case No. 99-94684.

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th day of August 1999.

(pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective memoranda.

From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and academic (the issues of which are substantially the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict between private respondent’s basic due process rights and the provisions of the RP-US Extradition Treaty?

The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court.

To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual, are abstracted as follows:

The Extradition Request

The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and shall be accompanied by:

1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal force;

2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts;

3. The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and

4. Such other documents or information in support of the request.

(Section 4, Presidential Decree No. 1069.)

Section 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides:

. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention, he shall forward the request together with the related documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case.

The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain whether or not the request is supported by:

1. Documents, statements, or other types of information which describe the identity and probable location of the person sought;

2. A statement of the facts of the offense and the procedural history of the case;

3. A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested;

4. A statement of the provisions of law describing the punishment for the offense;

5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense;

6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as applicable.

(Paragraph 2, Article 7, Presidential Decree No. 1069.)

7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal for trial if the offense had been committed there;

8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and

9. A copy of the charging document.

(Paragraph 3, ibid.)

The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).

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

The Extradition Petition

Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5, P. D. No. 1069). The lawyer designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer that the court take the extradition request under consideration (Paragraph [2], ibid.).

The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective extraditee.

The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the case may, upon application by the Requesting State, represent the latter throughout the proceedings.

Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.).

The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).

With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings?

A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers.

However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following: (1) the right to be furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable period of time to oppose the request, and to present evidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request.

The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation.

Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination?

The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body’s quasi-judicial power.

In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one of the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means of accounts, records, reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64).

The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency’s performance of its rule-making or quasi-judicial functions. Notably, investigation is indispensable to prosecution.

In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and making findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment.

The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body’s power is limited to an initial finding of whether or not the extradition petition can be filed in court.

It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is

forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069).

Clearly, there is an impending threat to a prospective extraditee’s liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one.

Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135;Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).

In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one’s license as a medical practitioner, is an even greater deprivation than forfeiture of property.

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case ofAlmeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature.

The cases mentioned above refer to an impending threat of deprivation of one’s property or property right. No less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense.

By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result – the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary

investigation, which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty.

Petitioner’s reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, Petitioner’s Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not well-taken. Wright is not authority for petitioner’s conclusion that his preliminary processing is not akin to a preliminary investigation. The characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information, and hearing.

As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance with treaty commitments.

The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens.

The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner’s Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366).

Due process is comprised of two components – substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).

True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).

In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent’s basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant.

These twin rights may, however, be considered dispensable in certain instances, such as:

1. In proceedings where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B. P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution;

2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and

3. Where the twin rights have previously been offered but the right to exercise them had not been claimed.

Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described situations mentioned above?

Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U.S. Government.

American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S. Constitution (Art. IV, §2 cl 2), and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation that the person demanded was in the demanding state at the time the offense charged was committed, and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers and documents prescribed by statute, which essentially include a copy of the instrument charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the governor of the asylum state to effect the extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d 853).

In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand for the return of the alleged offender, and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815).

In petitioner’s memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing

the U.S. extradition procedures and principles, which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit:

1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the provisional arrest of an individual may be made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is transmitted subsequently through the diplomatic channel.

2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing.

3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. §3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid.)

4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid.)

5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath, charging any person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]

6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual findings and conclusions of law and certifies the person’s extraditability. The court then forwards this certification of extraditability to the Department of State for disposition by the Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. §3186).

7. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. However, a person facing extradition may present whatever information he deems relevant to the Secretary of State, who makes the final determination whether to surrender an individual to the foreign government concerned.

From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity – the Department of State – which has the power to evaluate the request and the extradition documents in the beginning, and, in the person of the Secretary of State, the power to act or not to act on the court’s determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of Justice which has taken over the

task of evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition.

Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner’s primary concern is the possible delay in the evaluation process.

We agree with private respondent’s citation of an American Supreme Court ruling:

The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.

(Stanley vs. Illinois, 404 U.S. 645, 656)

The United States, no doubt, shares the same interest as the Philippine Government that no right – that of liberty – secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed at the altar of expediency.

(pp. 40-41, Private Respondent’s Memorandum.)

In the Philippine context, this Court’s ruling is invoked:

One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual’s rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).

There can be no dispute over petitioner’s argument that extradition is a tool of criminal law enforcement. To be effective, requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are, however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered liberty."

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he may hold that federal and statutory requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an

extradition treaty, the executive authority of the requested state has the power to deny the behest from the requesting state. Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the extradition.

In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements of the law and the treaty since it even informed the U.S. Government of certain problems in the extradition papers (such as those that are in Spanish and without the official English translation, and those that are not properly authenticated). In fact, petitioner even admits that consultation meetings are still supposed to take place between the lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in an abbreviated period of time due to its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can be dispensed with?

Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand, there is yet no extraditee, but ironically on the other, it results in an administrative determination which, if adverse to the person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus blatant and manifest.

Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside.

Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III which reads:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to information on matters of public concern, and (2) the corollary right of access to official records and documents. The general right guaranteed by said provision is the right to information on matters of public concern. In its implementation, the right of access to official records is likewise conferred. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can protect the values of democratic government (Ibid.).

Petitioner argues that the matters covered by private respondent’s letter-request dated July 1, 1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. On the other hand, private respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only becomes material when a third person, who is not directly affected by the matters requested, invokes the right to information. However, if the person

invoking the right is the one directly affected thereby, his right to information becomes absolute.

The concept of matters of public concern escapes exact definition. Strictly speaking, every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has "standing".

When the individual himself is involved in official government action because said action has a direct bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause of the accusation against him.

The right to information is implemented by the right of access to information within the control of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be contained in official records, and in documents and papers pertaining to official acts, transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to official government action from the U. S. Government. No official action from our country has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U. S. Government. Consequently, if a third party invokes this constitutional provision, stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no official governmental action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would already fall under matters of public concern, because our government by then shall have already made an official decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming.

We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent’s entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution?

First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations.

The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations." Under the doctrine of incorporation, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect – a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.).

In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these two components of the law of the land are not pitted against each other. There is no occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of extradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence.

Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents.

We disagree.

In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right (35 C.J.S. 410).

Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioner’s revelation that everything it refuses to make available at this stage would be obtainable during trial. The Department of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial.

A libertarian approach is thus called for under the premises.

One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to consider similar situations in jurisprudence for an application by analogy.

Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner’s theory, because there is no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner’s theory would also infer that bail is not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended …" Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto?

The basic principles of administrative law instruct us that "the essence of due process in administrative proceedings is an opportunity to explain one’s side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997];Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner’s fears that the Requesting State may have valid objections to the Requested State’s non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration.

How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 1069?

Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary dismissals may be effected without the necessity of a formal investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals:

... [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred against him, and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural

requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses against the charges levelled against him and to present evidence in support of his defenses. …

(at p. 671)

Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent.

In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The convergence of petitioner’s favorable action on the extradition request and the deprivation of private respondent’s liberty is easily comprehensible.

We have ruled time and again that this Court’s equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent’s due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised.

Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to grant him a reasonable period within which to file his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed.

SO ORDERED.

EN BANC

[G.R. No. 148571.  September 24, 2002]

GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the Philippine Department of Justice, petitioner, vs. Hon. GUILLERMO G. PURGANAN, Morales, and Presiding Judge, Regional Trial Court of Manila, Branch 42; and MARK B. JIMENEZ a.k.a. MARIO BATACAN CRESPO,respondents.

D E C I S I O N

PANGANIBAN, J.:

In extradition proceedings, are prospective extraditees entitled to notice and hearing before warrants for their arrest can be issued?  Equally important, are they entitled to the right to bail and provisional liberty while the extradition proceedings are pending?  In general, the answer to these two novel questions is “No.”  The explanation of and the reasons for, as well as the exceptions to, this rule are laid out in this Decision.

The Case

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void and set aside the Orders dated May 23, 2001[1] and July 3, 2001[2] issued by the Regional Trial Court (RTC) of Manila, Branch 42.[3] The first assailed Order set for hearing petitioner’s application for the issuance of a warrant for the arrest of Respondent Mark B. Jimenez.

The second challenged Order, on the other hand, directed the issuance of a warrant, but at the same time granted bail to Jimenez.  The dispositive portion of the Order reads as follows:

“WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against respondent Mark Jimenez.  Accordingly let a Warrant for the arrest of the respondent be issued.  Consequently and taking into consideration Section 9, Rule 114 of the Revised Rules of Criminal Procedure, this Court fixes the reasonable amount of bail for respondent’s temporary liberty at ONE MILLION PESOS (Php 1,000,000.00), the same to be paid in cash.

“Furthermore respondent is directed to immediately surrender to this Court his passport and the Bureau of Immigration and Deportation is likewise directed to include the name of the respondent in its Hold Departure List.”[4]

Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the taking of Jimenez into legal custody.

The Facts

This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C. Lantion.[5]

Pursuant to the existing RP-US Extradition Treaty,[6] the United States Government, through diplomatic channels, sent to the Philippine Government Note Verbale No. 0522 dated June 16, 1999, supplemented by Note Nos. 0597, 0720 and 0809 and accompanied by duly authenticated documents requesting the extradition of Mark B. Jimenez, also known as Mario Batacan Crespo.  Upon receipt of the Notes and documents, the secretary of foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action, pursuant to Section 5 of Presidential Decree (PD) No. 1069, also known as the Extradition Law.

Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary Restraining Order (TRO) by the RTC of Manila, Branch 25. [7] The TRO prohibited the Department of Justice (DOJ) from filing with the RTC a petition for his extradition.  The validity of the TRO was, however, assailed by the SOJ in a Petition before this Court in the said GR No. 139465.   Initially,  the Court -- by a vote of 9-6 -- dismissed the Petition.  The SOJ was ordered

to furnish private respondent copies of the extradition request and its supporting papers and to grant the latter a reasonable period within which to file a comment and supporting evidence.[8]

Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, 2000 Resolution.[9] By an identical vote of 9-6 -- after three justices changed their votes -- it reconsidered and reversed its earlier Decision.  It held that private respondent was bereft of the right to notice and hearing during the evaluation stage of the extradition process.  This Resolution has become final and executory.

Finding no more legal obstacle, the Government of the United States of America, represented by the Philippine DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Extradition which was docketed as Extradition Case No. 01192061.  The Petition alleged, inter alia, that Jimenez was the subject of an arrest warrant issued by the United States District Court for the Southern District of Florida on April 15, 1999.  The warrant had been issued in connection with the following charges in Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to defraud the United States and to commit certain offenses in violation of Title 18 US Code Section 371; (2) tax evasion, in violation of Title 26 US Code Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections 1343 and 2; (4) false statements, in violation of Title 18 US Code Sections 1001 and 2; and (5) illegal campaign contributions, in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title 18 US Code Section 2.  In order to prevent the flight of Jimenez, the Petition prayed for the issuance of an order for his “immediate arrest” pursuant to Section 6 of PD No. 1069.

Before the RTC could act on the Petition, Respondent Jimenez filed before it an “Urgent Manifestation/Ex-Parte Motion,”[10] which prayed that petitioner’s application for an arrest warrant be set for hearing.

In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on June 5, 2001.  In that hearing, petitioner manifested its reservations on the procedure adopted by the trial court allowing the accused in an extradition case to be heard prior to the issuance of a warrant of arrest.

After the hearing, the court a quo required the parties to submit their respective memoranda.  In his Memorandum, Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post bail in the amount of P100,000.

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

Hence, this Petition.[13]

Issues

Petitioner presents the following issues for the consideration of this Court:

I.

“The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an arrest warrant under Section 6 of PD No. 1069.

II.

“The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go on provisional liberty because:

‘1.  An extradition court has no power to authorize bail, in the absence of any law that provides for such power.

‘2.  Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and Section 4, Rule 114 (Bail) of the Rules of Court, as amended, which [were] relied upon, cannot be used as bases for allowing bail in extradition proceedings.

‘3.  The presumption is against bail in extradition proceedings or proceedings leading to extradition.

‘4.  On the assumption that bail is available in extradition proceedings or proceedings leading to extradition, bail is not a matter of right but only of discretion upon clear showing by the applicant of the existence of special circumstances.

‘5.  Assuming that bail is a matter of discretion in extradition proceedings, the public respondent received no evidence of ‘special circumstances’ which may justify release on bail.

‘6.  The risk that Jimenez will flee is high, and no special circumstance exists that will engender a well-founded belief that he will not flee.

‘7.  The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the Philippines with its obligations under the RP-US Extradition Treaty.

‘8.  The Court of Appeals Resolution promulgated on May 10, 2001 in the case entitled ‘Eduardo T. Rodriguez et al. vs. The Hon. Presiding Judge, RTC, Branch 17, Manila,’ CA-G.R. SP No. 64589, relied upon by the public respondent in granting bail, had been recalled before the issuance of the subject bail orders.’”[14]

In sum, the substantive questions that this Court will address are: (1) whether Jimenez is entitled to notice and hearing before a warrant for his arrest can be issued, and (2) whether he is entitled to bail and to provisional liberty while the extradition proceedings are pending.  Preliminarily, we shall take up the alleged prematurity of the Petition for Certiorari arising from petitioner’s failure to file a Motion for Reconsideration in the RTC and to seek relief in the Court of Appeals (CA), instead of in this Court.[15] We shall also preliminarily discuss five extradition postulates that will guide us in disposing of the substantive issues.

The Court’s Ruling

The Petition is meritorious.

Preliminary Matters

Alleged Prematurity of Present Petition

Petitioner submits the following justifications for not filing a Motion for Reconsideration in the Extradition Court: “(1) the issues were fully considered by such court after requiring the parties to submit their respective memoranda and position papers on the matter and thus, the filing of a reconsideration motion would serve no useful purpose; (2) the assailed orders are a patent nullity, absent factual and legal basis therefor; and (3) the need for relief is extremely urgent, as the passage of sufficient time would give Jimenez ample opportunity to escape and avoid extradition; and (4) the issues raised are purely of law.”[16]

For resorting directly to this Court instead of the CA, petitioner submits the following reasons: “(1) even if the petition is lodged with the Court of Appeals and such appellate court takes cognizance of the issues and decides them, the parties would still bring the matter to this Honorable Court to have the issues resolved once and for all [and] to have a binding precedent that all lower courts ought to follow; (2) the Honorable Court of Appeals had in one case[17] ruled on the issue by disallowing bail but the court below refused to recognize the decision as a judicial guide and all other courts might likewise adopt the same attitude of refusal; and (3) there are pending issues on bail both in the extradition courts and the Court of Appeals, which, unless guided by the decision that this Honorable Court will render in this case, would resolve to grant bail in favor of the potential extraditees and would give them opportunity to flee and thus, cause adverse effect on the ability of the Philippines to comply with its obligations under existing extradition treaties.”[18]

As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior court has been given, through a motion for reconsideration, a chance to correct the errors imputed to it.  This rule, though, has certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved, or (3) in case of urgency.[19] As a fourth exception, the Court has also ruled that the filing of a motion for reconsideration before availment of the remedy of certiorari is not a sine qua non, when the questions raised are the same as those that have already been squarely argued and exhaustively passed upon by the lower court.[20] Aside from being of this nature, the issues in the present case also involve pure questions of law that are of public interest.  Hence, a motion for reconsideration may be dispensed with.

Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of certiorari when there are special and important reasons therefor. [21] In Fortich v. Corona [22] we stated:

“[T]he Supreme Court has the full discretionary power to take cognizance of the petition filed directly [before] it if compelling reasons, or the nature and importance of the issues raised, warrant.   This has been the judicial policy to be observed and which has been reiterated in subsequent cases, namely: Uy vs. Contreras, et. al., Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs. Legaspi, et. al.  As we have further stated in Cuaresma:

‘x x x.  A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition.  This is established policy.  x x x.’

“Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the interest of speedy justice and to avoid future litigations so as to promptly put an end to the present controversy which, as correctly observed by petitioners, has sparked national interest because of the magnitude of the problem created by the issuance of the assailed resolution.  Moreover, x x x requiring the petitioners to file their petition first with the Court of Appeals would only result in a waste of time and money. 

“That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in our jurisprudence.  We reiterate what we said in Piczon vs. Court of Appeals:[23]

‘Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice.  Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided.  Time and

again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require.  In the instant petition, we forego a lengthy disquisition of the proper procedure that should have been taken by the parties involved and proceed directly to the merits of the case.’

In a number of other exceptional cases,[24] we held as follows:

“This Court has original jurisdiction, concurrent with that of Regional Trial Courts and the Court of Appeals, over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus, and we entertain direct resort to us in cases where special and important reasons or exceptional and compelling circumstances justify the same.”

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

Five Postulates of Extradition

The substantive issues raised in this case require an interpretation or construction of the treaty and the law on extradition.  A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its intent.[25] Since PD 1069 is intended as a guide for the implementation of extradition treaties to which the Philippines is a signatory, [26] understanding certain postulates of extradition will aid us in properly deciding the issues raised here.

1. Extradition Is a Major Instrument for the Suppression of Crime.

First, extradition treaties are entered into for the purpose of suppressing crime [27] by facilitating the arrest and the custodial transfer[28] of a fugitive[29] from one state to the other.

With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent.  Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries.

Today, “a majority of nations in the world community have come to look upon extradition as the major effective instrument of international co-operation in the suppression of crime.”[30] It is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law.[31]

“An important practical effect x x x of the recognition of the principle that criminals should be restored to a jurisdiction competent to try and punish them is that the number of criminals seeking refuge abroad will be reduced.  For to the extent that efficient means of detection and the threat of punishment play a significant role in the deterrence of crime within the territorial limits of a State, so the existence of effective extradition arrangements and the consequent certainty of return to the locus delicti commissi play a corresponding role in the deterrence of flight abroad in order to escape the consequence of crime. x x x.  From an absence of extradition arrangements flight abroad by the ingenious criminal receives direct encouragement and thus indirectly does the commission of crime itself.”[32]

In Secretary v. Lantion[33] we explained:

“The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate the extradition of persons covered by treaties duly entered [into] by our government.  More and more, crimes are becoming the concern of one world.  Laws involving crimes and crime prevention are undergoing universalization.  One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal whose activities threaten the peace and progress of civilized countries.  It is to the great interest of the Philippines to be

part of this irreversible movement in light of its vulnerability to crimes, especially transnational crimes.”

Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international crimes and criminals, we cannot afford to be an isolationist state.  We need to cooperate with other states in order to improve our chances of suppressing crime in our own country.

2. The Requesting State Will Accord Due Process to the  Accused

Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each other’s legal system and judicial process. [34] More pointedly, our duly authorized representative’s signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited.[35] That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality.

3. The Proceedings Are Sui Generis

Third, as pointed out in Secretary of Justice v. Lantion,[36] extradition proceedings are not criminal in nature.  In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis -- in a class by itself -- they are not.

“An extradition [proceeding] is sui generis.  It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights.  To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused.  His guilt or innocence will be adjudged in the court of the state where he will be extradited.  Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x.

x x x  x x x     x x x

“There are other differences between an extradition proceeding and a criminal proceeding.  An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial.  In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards.  In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited ‘upon showing of the existence of a prima facie case.’  Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him.  The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nation’s foreign relations before making the ultimate decision to extradite.”

Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited. [37] Such determination during the extradition proceedings will only result in needless duplication and delay.  Extradition is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person.  It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction.[38] The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable.[39]

4. Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch ratified it.  Hence, the Treaty carries the presumption that its implementation will serve the national interest.

Fulfilling our obligations under the Extradition Treaty promotes comity[40]with the requesting state.  On the other hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world community.   Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity.[41]

Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty.[42] This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied.  In other words, “[t]he demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender.” [43] Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be found proper.

5. There Is an Underlying Risk of Flight

Fifth, persons to be extradited are presumed to be flight risks.  This prima facie presumption finds reinforcement in the experience[44] of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state.

The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee.  Indeed, extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting country. [45] Prior acts of herein respondent -- (1) leaving the requesting state right before the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he  is  charged with are bailable -- eloquently  speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost.  These circumstances point to an ever-present, underlying high risk of flight.  He has demonstrated that he has the capacity and the will to flee.  Having fled once, what is there to stop him, given sufficient opportunity, from fleeing a second time?

First Substantive Issue:Is Respondent Entitled to Notice and Hearing  Before the Issuance of a Warrant of Arrest?

Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice, that an Extradition Petition has been filed against him, and that petitioner is seeking his arrest -- gives him notice to escape and to avoid extradition.  Moreover, petitioner pleads that such procedure may set a dangerous precedent, in that those sought to be extradited -- including terrorists, mass murderers and war criminals -- may invoke it in future extradition cases.

On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily deprived of his constitutional right to liberty without due process.  He further asserts that there is as yet no specific law or rule setting forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has been filed in court; ergo, the formulation of that procedure is within the discretion of the presiding judge.

Both parties cite Section 6 of PD 1069 in support of their arguments.  It states:

“SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour

fixed in the order.  [H]e may issue a warrant for the immediate arrest of the accused which may be served any where within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice.  Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof.

“(2)  The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case.”  (Emphasis ours)

Does this provision sanction RTC Judge Purganan’s act of immediately setting for hearing the issuance of a warrant of arrest? We rule in the negative.

1.  On the Basis of the Extradition Law

It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word “immediate” to qualify the arrest of the accused.  This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant.   Hearing entails sending notices to the opposing parties,[46] receiving facts and arguments[47] from them,[48] and giving them time to prepare and present such facts and arguments.  Arrest subsequent to a hearing can no longer be considered “immediate.”  The law could not have intended the word as a mere superfluity but, on the whole, as a means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should be issued.

By using the phrase “if it appears,” the law further conveys that accuracy is not as important as speed at such early stage.  The trial court is not expected to make an exhaustivedetermination to ferret out the true and actual situation, immediately upon the filing of the petition.  From the knowledge and the material then available to it, the court is expected merely to get a good first impression -- a prima facie finding -- sufficient to make a speedy initial determination as regards the arrest and detention of the accused.

Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial attorney in the Campaign Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex BB, the Exhibit I “Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers” and enclosed Statements in two volumes;  (4) Annex GG, the Exhibit J “Table of Contents for Supplemental Evidentiary Appendix” with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L “Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward” and enclosed Statements in two volumes.[49]

It is evident that respondent judge could have already gotten an impression from these records adequate for him to make an initial determination of whether the accused was someone who should immediately be arrested in order to “best serve the ends of justice.”  He could have determined whether such facts and circumstances existed as would lead a reasonably discreet and prudent person to believe that the extradition request was prima facie meritorious.  In point of fact, he actually concluded from these supporting documents that “probable cause” did exist.  In the second questioned Order, he stated:

“In the instant petition, the documents sent by the US Government in support of [its] request for extradition of herein respondent are enough to convince the Court of the existence of probable cause to proceed with the hearing against the extraditee.”[50]

We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already evident from the Petition itself and its supporting documents.  Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez.[51]

Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the accused to answer after receiving the summons.  In connection with the matter of immediate arrest, however, the word “hearing” is notably absent from the provision.  Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided.  It also bears emphasizing at this point that extradition proceedings are summary[52]in nature.  Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings.

“It is taken for granted that the contracting parties intend something reasonable and something not inconsistent with generally recognized principles of International Law, nor with previous treaty obligations towards third States.  If, therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to be preferred to the unreasonable, the more reasonable to the less reasonable x x x .”[53]

Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law could have intended that consequence, for the very purpose of both would have been defeated by the escape of the accused from the requested state.

2.  On the Basis of the Constitution

Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest.  It provides: 

“Sec. 2.  The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.”

To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination -- under oath or affirmation -- of complainants and the witnesses they may produce.  There is no requirement to notify and hear the accused before the issuance of warrants of arrest. 

In Ho v. People[54] and in all the cases cited therein, never was a judge required to go to the extent of conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest.  All we required was that the “judge must have sufficient supporting documents upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause.”[55]

In Webb v. De Leon,[56] the Court categorically stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest:

“Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an accused.  In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause.  They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence.”

At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses.[57] In the present case, validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system.  If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination

for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort to negate a  prima facie finding?  Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous.  This scenario is also anathema to the summary nature of extraditions.

That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption of a set of procedures more protective of the accused.  If a different procedure were called for at all, a more restrictive one -- not the opposite -- would be justified in view of respondent’s demonstrated predisposition to flee.

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

Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they show compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable.  At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner.  If, in spite of this study and examination, no prima facie finding[58] is possible, the petition may be dismissed at the discretion of the judge.

On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings.  Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings.  In our opinion, the foregoing procedure will “best serve the ends of justice” in extradition cases.

Second Substantive Issue:Is Respondent Entitled to Bail?

Article III, Section 13 of the Constitution, is worded as follows:

“Art. III, Sec. 13.  All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.  The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.  Excessive bail shall not be required.”

Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of all persons, including those sought to be extradited.  Supposedly, the only exceptions are the ones charged with offenses punishable with reclusion perpetua, when evidence of guilt is strong.  He also alleges the relevance to the present case of Section 4 [59] of Rule 114 of the Rules of Court which, insofar as practicable and consistent with the summary nature of extradition proceedings, shall also apply according to Section 9 of PD 1069.

On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the right to bail to a person who is the subject of an extradition request and arrest warrant.

Extradition Different from Ordinary Criminal Proceedings

We agree with petitioner.  As suggested by the use of the word “conviction,” the constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine

criminal laws.  It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal.

Moreover, the constitutional right to bail “flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt.”[60] It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue.

The provision in the Constitution stating that the “right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended” does not detract from the rule that the constitutional right to bail is available only in criminal proceedings.  It must be noted that the suspension of the privilege of the writ of habeas corpus finds application “only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.”[61] Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses.  It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature.

That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case.  To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged.  He should apply for bail before the courts trying the criminal cases against him, not before the extradition court.

No Violation of Due Process

Respondent Jimenez cites the foreign case Paretti[62] in arguing that, constitutionally, “[n]o  one  shall  be  deprived of x x x liberty x x x without due process of law.”

Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not amount to a violation of his right to due process. We iterate the familiar doctrine that the essence of due process is the opportunity to be heard[63] but, at the same time, point out that the doctrine does not always call for a prior opportunity to be heard.[64] Where the circumstances -- such as those present in an extradition case --  call for it, a subsequent opportunity to be heard is enough.[65] In the present case, respondent will be given full opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition.  Hence, there is no violation of his right to due process and fundamental fairness.

Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of his liberty prior to his being heard.  That his arrest and detention will not be arbitrary is sufficiently ensured by (1) the DOJ’s filing in court the Petition with its supporting documents after a determination that the extradition request meets the requirements of the law and the relevant treaty; (2) the extradition judge’s independent prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest; and (3) his opportunity, once he is under the court’s custody, to apply for bail as an exception to the no-initial-bail rule.

It is also worth noting that before the US government requested the extradition of respondent, proceedings had already been conducted in that country.  But  because he left the jurisdiction of the requesting state before those proceedings could be completed, it was hindered from continuing with the due processes prescribed under its laws.  His invocation of due process now has thus become hollow.  He already had that opportunity in the requesting state; yet, instead of taking it, he ran away.

In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations in order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve the Petition for Extradition?  His supposed immediate deprivation of liberty without the due process that he had previously shunned pales against the government’s interest in fulfilling its Extradition Treaty obligations and in cooperating with the world community in the suppression of crime.   Indeed, “[c]onstitutional liberties do not exist in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and palpable government interests.”[66]

Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the consequences of their actions, choose to run and hide.   Hence, it would not be good policy to increase the risk of violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to be extradited are able to evade arrest or escape from our custody.  In the absence of any provision -- in the Constitution, the law or the treaty -- expressly guaranteeing the right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors.

The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14[67] of the Treaty,  since this practice would encourage the accused to voluntarily surrender to the requesting state to cut short their detention here.   Likewise, their detention pending the resolution of extradition proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases and the need for their speedy disposition. 

Exceptions to the “No Bail” Rule

The rule, we repeat, is that bail is not a matter of right in extradition cases.  However, the judiciary has the constitutional duty to curb grave abuse of discretion[68] and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights.[69] Furthermore, we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees.   Indeed, the right to due process extends to the “life, liberty or property” of every person.  It is “dynamic and resilient, adaptable to every situation calling for its application.”[70]

Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances [71] including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein.

Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness.  The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations.  In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised.  In short, while this Court is ever protective of “the sporting idea of fair play,” it also recognizes the limits of its own prerogatives and the need to fulfill international obligations.

Along this line, Jimenez contends that there are special circumstances that are compelling enough for the Court to grant his request for provisional release on bail.  We have carefully examined these circumstances and shall now discuss them.

1.  Alleged Disenfranchisement

While his extradition was pending, Respondent Jimenez was elected as a member of the House of Representatives.  On that basis, he claims that his detention will disenfranchise his Manila district of 600,000 residents.  We are not persuaded.  In People v. Jalosjos,[72] the Court has already debunked the disenfranchisement argument when it ruled thus:

“When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action.  They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison.  To give a more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office.

“In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.

“The Constitution guarantees:  ‘x x x nor shall any person be denied the equal protection of laws.’  This simply means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed.  The organs of government may not show any undue favoritism or hostility to any person.  Neither partiality nor prejudice shall be displayed.

“Does being an elective official result in a substantial distinction that allows different treatment?  Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law?

“The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly [from] prison.  The duties imposed by the ‘mandate of the people’ are multifarious.  The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government.  The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation.  Congress continues to function well in the physical absence of one or a few of its members.  Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty.  The importance of a function depends on the need for its exercise.  The duty of a mother to nurse her infant is most compelling under the law of nature.  A doctor with unique skills has the duty to save the lives of those with a particular affliction.  An elective governor has to serve provincial constituents.  A police officer must maintain peace and order.  Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law.

“A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals.

“The Court cannot validate badges of inequality.  The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded.

“We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement.  The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement.  Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class.”[73]

It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was already of public knowledge that the United States was requesting his extradition.  Hence, his constituents were or should have been prepared for the consequences of the extradition case against their representative, including his detention pending the final resolution of the case.  Premises considered and in line with Jalosjos, we are constrained to rule against his claim that his election to public office is by itself a compelling reason to grant him bail.

2.  Anticipated Delay

Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be unfair to confine him during the pendency of the case.  Again we are not convinced.  We must emphasize that extradition cases are summary in nature.  They are resorted to merely to determine whether the extradition petition and its annexes conform to the Extradition Treaty, not to determine guilt or innocence.  Neither is it, as a rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal action.

We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is quite another matter that is not at issue here. Thus, any further discussion of this point would be merely anticipatory and academic.

However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail not be justified.  Giving premium to delay by considering it as a special circumstance for the grant of bail would be tantamount to giving him the power to grant bail to himself.  It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more.  This we cannot allow.

3.  Not a Flight Risk?

Jimenez further claims that he is not a flight risk.  To support this claim, he stresses that he learned of the extradition request in June 1999; yet, he has not fled the country.   True, he has not actually fled during the preliminary stages of the request for his extradition.  Yet, this fact cannot be taken to mean that he will not flee as the process moves forward to its conclusion, as he hears the footsteps of the requesting government inching closer and closer.  That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be within reach of our government if and when it matters; that is, upon the resolution of the Petition for Extradition.

In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the applicant has been taken into custody and prior to judgment, even after bail has been previously denied.  In the present case, the extradition court may continue hearing evidence on the application for bail, which may be granted in accordance with the guidelines in this Decision.

Brief Refutation of Dissents

The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact, it is a cop-out.  The parties -- in particular, Respondent Jimenez -- have been given more than sufficient opportunity both by the trial court and this Court to discuss fully and exhaustively private respondent’s claim to bail.  As already stated, the RTC set for hearing not only petitioner’s application for an arrest warrant, but also private respondent’s prayer for temporary liberty.  Thereafter required by the RTC were memoranda on the arrest, then position papers on the application for bail, both of which were separately filed by the parties.

This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy Memoranda and the Position Papers of both parties.  Additionally, it has patiently heard them in Oral Arguments, a procedure not normally observed in the great majority of cases in this Tribunal.  Moreover, after the Memos had been submitted, the parties -- particularly the potential extraditee -- have bombarded this Court with additional pleadings -- entitled “Manifestations” by both parties and “Counter-Manifestation” by private respondent -- in which the main topic was Mr. Jimenez’s plea for bail.

A remand would mean that this long, tedious process would be repeated in its entirety.  The trial court would again hear factual and evidentiary matters.  Be it noted, however, that, in all his voluminous pleadings and verbal propositions, private respondent has not asked for a remand.  Evidently, even he realizes that there is absolutely no need to rehear factual matters. Indeed, the inadequacy lies not in the factual presentation of Mr.

Jimenez.  Rather, it lies in his legal arguments.  Remanding the case will not solve this utter lack of persuasion and strength in his legal reasoning.

In short, this Court -- as shown by this Decision and the spirited Concurring, Separate and Dissenting Opinions written by the learned justices themselves -- has exhaustively deliberated and carefully passed upon all relevant questions in this case.  Thus, a remand will not serve any useful purpose; it will only further delay these already very delayed proceedings,[74] which our Extradition Law requires to be summary in character.  What we need now is prudent and deliberate speed, not unnecessary and convoluted delay.  What is needed is a firm decision on the merits, not a circuitous cop-out.

Then, there is also the suggestion that this Court is allegedly “disregarding basic freedoms when a case is one of extradition.”  We believe that this charge is not only baseless, but also unfair.  Suffice it to say that, in its length and breath, this Decision has taken special cognizance of the rights to due process and fundamental fairness of potential extraditees.

Summation

As we draw to a close, it is now time to summarize and stress these ten points:

1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes and the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; and whether the person sought is extraditable.  The proceedings are intended merely to assist the requesting state in bringing the accused -- or the fugitive who has illegally escaped -- back to its territory, so that the criminal process may proceed therein.

2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein.

3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined.  Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available.  It is more akin, if at all, to a court’s request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail.  Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity.

4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the Extradition Treaty and Law, and whether the person sought is extraditable.  The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the affiants or witnesses.   If convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition.

5. After being taken into custody, potential extraditees may apply for bail.  Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community; and (b) there exist special, humanitarian or compelling circumstances.  The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special circumstance.  In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case.

6. Potential extraditees are entitled to the rights to due process and to fundamental fairness.  Due process does not always call for a prior opportunity to be heard.  A subsequentopportunity is sufficient due to the flight risk involved.  Indeed, available

during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition.

7. This Court will always remain a protector of human rights,  a bastion of liberty, a bulwark of democracy and the conscience of society.  But it is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-equal and co-independent organs of government.

8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties.  Thus, the Executive Department of government has broad discretion in its duty and power of implementation.

9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or excise grave abuse and tyranny.  They should not allow contortions, delays and “over-due process” every little step of the way, lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partner’s simple request to return a fugitive.  Worse, our country should not be converted into a dubious haven where fugitives and escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and international cooperation.

10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic  contortions,  delays  and  technicalities  that  may  negate  that  purpose.

WHEREFORE, the Petition is GRANTED.  The assailed RTC Order dated May 23, 2001 is hereby declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it granted bail to Respondent Mark Jimenez.  The bail bond posted by private respondent is CANCELLED.  The Regional Trial Court of Manila is directed to conduct the extradition proceedings before  it, with all deliberate speed pursuant to the spirit and the letter of our Extradition Treaty with the United States as well as our Extradition Law.  No costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 153675             April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine Department of Justice, Petitioner, vs.HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUÑOZ, Respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muñoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special

Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee.

The facts are:

On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997.

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

Private respondent Muñoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge.

On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent.

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same day, the NBI agents arrested and detained him.

On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition andmandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest.

On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.

On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed.

On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001.

Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,-a petition for bail which was opposed by petitioner.

After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk."

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge.

On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application for bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private respondent to post bail, thus:

In conclusion, this Court will not contribute to accused’s further erosion of civil liberties. The petition for bail is granted subject to the following conditions:

1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the government;

2. Accused must surrender his valid passport to this Court;

3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order before this Court even in extradition proceeding; and

4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest office, at any time and day of the week; and if they further desire, manifest before this Court to require that all the assets of accused, real and personal, be filed with this Court soonest, with the condition that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that the corresponding lien/annotation be noted therein accordingly.

SO ORDERED.

On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent judge in his Order dated April 10, 2002.

Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings.

In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of one’s liberty.

Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus:

Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this Court has an occasion to resolve the question of whether a prospective extraditee may be granted bail.

In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus:

x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal.

Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando,J., later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue.

The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpusfinds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature.

At first glance, the above ruling applies squarely to private respondent’s case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other.

The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law.

On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now

recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail to a prospective deportee, held that under the Constitution,3 the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process.

The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of this Court’s ruling in Purganan is in order.

First, we note that the exercise of the State’s power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine,4 have likewise been detained.

Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights.

The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure to secure the necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation proceedings.

In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that foreign nationals against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainee’s right to bail.

If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue.

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for

the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government."

Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is it a full-blown civil action, but one that is merely administrative in character.13 Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.14

But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently."

Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable.

Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for over two (2) years without having been convicted of any crime. By any standard, such an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail.

While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution.

The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganancorrectly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice.15 Given the foregoing, the

prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail.

The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditee’s rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court.

In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence."

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-68288 July 11, 1986

DIOSDADO GUZMAN, ULYSSES URBIZTONDO, and ARIEL RAMACULA, petitioners, vs.NATIONAL UNIVERSITY and DOMINGO L. JHOCSON in his capacity as President of National University,respondents.

Efren H. Mercado and Haydee Yorac for petitioners.

Samson S. Alcantara for respondents.

 

NARVASA, J.:

Petitioners Diosdado Guzman, Ulysses Urbiztondo and Ariel Ramacula, students of respondent National University, have come to this Court to seek relief from what they describe as their school's "continued and persistent refusal to allow them to enrol." In their petition "for extraordinary legal and equitable remedies with prayer for preliminary mandatory injunction" dated August 7, 1984, they allege:

1) that respondent University's avowed reason for its refusal to re-enroll them in their respective courses is "the latter's participation in peaceful mass actions within the premises of the University.

2) that this "attitude of the (University) is simply a continuation of its cavalier if not hostile attitude to the student's exercise of their basic constitutional and human rights already recorded in Rockie C. San Juan vs. National University, S.C. G.R. No. 65443 (1983) and its utter contempt for the principle of due process of law to the prejudice of petitioners;" and

3) that "in effect petitioners are subjected to the extreme penalty of expulsion without cause or if there be any, without being informed of such cause and without being afforded the opportunity to defend themselves. Berina v. Philippine Maritime Institute (117 SCRA 581 [1983]).

In the comment filed on September 24, 1986 for respondent University and its President pursuant to this Court's requirement therefor 1 , respondents make the claim:

1) that "petitioners' failure to enroll for the first semester of the school year 1984-1985 is due to their own fault and not because of their allegedexercise of their constitutional and human rights;"

2) that petitioner Urbiztondo, sought to re-enroll only on July 5, 1986 "when the enrollment period was already closed;"

3) that as regards petitioner Guzman, his "academic showing" was "poor", "due to his activities in leading boycotts of classes"; that when his father was notified of this development sometime in August, 1982, the latter had demanded that his son "reform or else we will recall him to the province"; that Guzman was one of the petitioners in G.R. No. 65443 entitled "Rockie San Juan, et al. vs. National University, et al.," at the hearing of which on November 23, 1983 this Court had admonished "the students involved (to) take advantage and make the most of the opportunity given to them to study;" that Guzman "however continued to lead or actively participate in activities within the university premises, conducted without prior permit from school authorities, that disturbed or disrupted classes therein;" that moreover, Guzman "is facing criminal charges for malicious mischief before the Metropolitan Trial Court of Manila (Crim. Case No. 066446) in connection with the destruction of properties of respondent University on September 12, 1983 ", and "is also one of the defendants in Civil Case No. 8320483 of the Regional Trial Court of Manila entitled 'National University, Inc. vs. Rockie San Juan et al.' for damages arising from destruction of university properties

4) that as regards petitioner Ramacula, like Guzman "he continued to lead or actively participate, contrary to the spirit of the Resolution dated November 23, 1983 of this ... Court (in G.R. No. 65443 in which he was also one of the petitioners) and to university rules and regulations, within university premises but without permit from university officials in activities that disturbed or disrupted classes;" and

5) that petitioners have "failures in their records, (and) are not of good scholastic standing. "

Respondents close their comment with the following assertions, to wit:

1) By their actuations, petitioners must be deemed to have forfeited their privilege, if any, to seek enrollment in respondent university. The rights of respondent university, as an institution of higher learning, must also be respected. It is also beyond comprehension why petitioners, who continually despise and villify respondent university and its officials and faculty members, should persist in seeking enrollment in an institution that they hate.

2) Under the circumstances, and without regard to legal technicalities, it is not to the best interest of all concerned that petitioners be allowed to enroll in respondent university.

3) In any event, petitioners' enrollment being on the semestral basis, respondents cannot be compelled to enroll them after the end of the semester.

On October 2, 1984 this Court issued a resolution reading as follows:

... Acting on the Comment submitted by respondent, the Court Resolved to NOTE the same and to require a REPLY to such Comment. The Court further Resolved to ISSUE a MANDATORY INJUNCTION, enjoining respondent to allow the enrolment of petitioners for the coming semester without prejudice to any disciplinary proceeding to which any or all of them may be subjected with their right to lawful defense recognized and respected. As regards petitioner Diosdado Guzman, even if it be a fact that there is a pending criminal charge against him for malicious mischief, the Court nonetheless is of the opinion that, as above-noted, without prejudice to the continuation of any disciplinary proceeding against him, that he be allowed to resume his studies in the meanwhile. As shown in Annex 2 of the petition itself, Mr. Juan P. Guzman, father of said petitioner, is extending full cooperation with petitioners to assure that whatever protest or grievance petitioner Guzman may have would be ventilated in a lawful and peaceful manner.

Petitioners' REPLY inter alia—

1) denied that Urbiztondo attempted to enroll only on July 5, 1984 (when enrollment was already closed), it being alleged that "while he did try to enroll that day, he also attempted to do so several times before that date, all to no avail, because respondents ... persistently refused to allow him to do so" respondents' ostensible reason being that Urbiztondo (had) participated in mass actions ... within the school premises," although there were no existing disciplinary charge against petitioner Urbiztondo" at the time;

2) asserted that "neither the text nor the context of the resolution 2 justifies the conclusion that "petitioners' right to exercise their constitutional freedoms" had thereby been restricted or limited; and

3) alleged that "the holding of activities (mass action) in the school premises without the permission of the school ... can be explained by the fact that the respondents persistently refused to issue such permit repeatedly sought by the students. "

On November 23, 1984, this Court promulgated another resolution, this time reading as follows:

... The Court, after considering the pleadings filed and deliberating on the issues raised in the petition for extraordinary legal and equitable remedies with prayer for preliminary mandatory injunction as well as the respondents' comment on the petition and the reply of counsel for petitioners to the respondents' comment, Resolved to (a) give DUE COURSE to the petition; (b)

consider the respondents' comment as ANSWER to the petition; and (c) require the parties to file their respective MEMORANDA within twenty (20) days from notice. ... .

Immediately apparent from a reading of respondents' comment and memorandum is the fact that they had never conducted proceedings of any sort to determine whether or not petitioners-students had indeed led or participated "in activities within the university premises, conducted without prior permit from school authorities, that disturbed or disrupted classes therein" 3 or perpetrated acts of "vandalism, coercion and intimidation, slander, noise barrage and other acts showing disdain for and defiance of University authority." 4 Parenthetically, the pendency of a civil case for damages and a criminal case for malicious mischief against petitioner Guzman, cannot, without more, furnish sufficient warrant for his expulsion or debarment from re-enrollment. Also apparent is the omission of respondents to cite this Court to any duly published rule of theirs by which students may be expelled or refused re-enrollment for poor scholastic standing.

Under the Education Act of 1982, 5 the petitioners, as students, have the right among others "to freely choose their field of study subject to existing curricula and to continue their course therein up to graduation, except in case of academic deficiency, or violation of disciplinary regulations." 6Petitioners were being denied this right, or being disciplined, without due process, in violation of the admonition in the Manual of Regulations for Private Schools 7 that "(n)o penalty shall be imposed upon any student except for cause as defined in ... (the) Manual and/or in the school rules and regulations as duly promulgated and only after due investigation shall have been conducted." 8 This Court is therefore constrained, as in Berina v. Philippine Maritime Institute, 9 to declare illegal this act of respondents of imposing sanctions on students without due investigation.

Educational institutions of course have the power to "adopt and enforce such rules as may be deemed expedient for ... (its) government, ... (this being)" incident to the very object of incorporation, and indispensable to the successful management of the college." 10 The rules may include those governing student discipline. Indeed, the maintenance of "good school discipline" is a duty specifically enjoined on "every private school" by the Manual of Regulations for Private Schools; 11 and in this connection, the Manual further provides that-

... The school rules governing discipline and the corresponding sanctions therefor must be clearly specified and defined in writing and made known to the students and/or their parents or guardians. Schools shall have the authority and prerogative to promulgate such rules and regulations as they may deem necessary from time to time effective as of the date of their promulgation unless otherwise specified. 12

But, to repeat, the imposition of disciplinary sanctions requires observance of procedural due process. And it bears stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may be summary; and cross-examination is not, 'contrary to petitioners' view, an essential part thereof. There are withal minimum standards which must be met to satisfy the demands of procedural due process; and these are, that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shag have the right to answer the charges against them, with the assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.

WHEREFORE, the petition is granted and the respondents are directed to allow the petitioners to re-enroll or otherwise continue with their respective courses, without prejudice to any

disciplinary proceedings to which any or all of them may be subjected in accordance with the standards herein set forth.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No.76353 September 29,1989

SOPHIA ALCUAZ, MA. CECILIA ALINDAYU, BERNADETTE ANG, IRNA ANONAS, MA. REMEDIOS BALTAZAR, CORAZON BUNDOC, JOHN CARMONA, ANNA SHEILA DINOSO, RAFAEL ENCARNACION, ANNALIZA EVIDENTE, FRANCIS FERNANDO, ZENNY GUDITO, EDGAR LIBERATO, JULIET LIPORADA, GABRIEL MONDRAGON, JOSE MARIA PACKING, DOMINIC PETILLA, MA. SHALINA PITOY, SEVERINO RAMOS, VICTOR SANTIAGO, CAROLINA SARMIENTO, FERDINAND TORRES, RICARDO VENTIGAN and other students of the PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION (Q.C.) similarly situated,petitioners, vs.PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, Quezon City Branch (PSBA), DR. JUAN D. LIM, in his capacity as President and Chairman of the Board of Trustees of PSBA, ATTY. BENJAMIN P. PAULINO, in his capacity as Vice- President for Admission and Registration, MR. RUBEN ESTRELLA, in his capacity as Officer-in-Charge, MR. RAMON AGAPAY, in his capacity as Director of the Office of Student Affairs and MR. ROMEO RAFER, in his capacity as Chief Security of PSBA, respondents.

R E S O L U T I O N

PARAS, J.:

On May 2, 1988, this Court through its Second Division rendered a Decision in the instant case which prodded the Intervenor Union (hereinafter referred to as the Union) to file a motion for reconsideration. Its argument hinges on the pronouncement that —

x x x. Likewise, it is provided in the Manual, that the "written contracts" required for college teachers are for one semester. It is thus evident that after the close of the first semester, the PSBA-QC no longer has any existing contract either with the students or with intervening teachers. Such being the case, charge of denial of due process is untenable. It is time-honored principle that contracts are respected as the law between the contracting parties. x x x (p. 12, Decision, italics supplied).(p. 874-875, Rollo)

with the allegedly inevitable consequence of extenuating the pernicious practice of management to arbitrarily and wantonly terminate teachers simply because their contracts of employment have already lapsed.

The motion likewise points out the fact that two of the faculty members, namely Mr. Asser (Bong) Tamayo, and Mr. Rene Encarnacion, supposedly found guilty by the Investigating Committee headed by Mr. Antonio M. Magtalas (p. 342, Rollo), had been issued permanent appointments (not mere temporary contracts) by no less than the President of the School

himself. The appointment of Mr. Asser (Bong) Tamayo dated August 9, 1986 (p. 887, Rollo) can attest to this claim.

It is on the basis of the foregoing that We hereby amend Our previous statements on the matter.

In a recent Decision, 1 this Court had the opportunity to quite emphatically enunciate the precept that full-time teachers who have rendered three (3) years of satisfactory service shall be considered permanent (par. 75 of the Manual of Regulations for Private Schools). Thus, having attained a permanent status, they cannot be removed from office except for just cause and after due process.

Now applying the same principle in the case at bar, Mr. Asser (Bong) Tamayo having stayed in the Philippine School of Business Administration, Quezon City Branch (PSBA, for brevity) for three and one-half (3 1/2) years (in a full-time capacity) may be deemed a permanent faculty member provided, of course, the services rendered have been satisfactory to the school. However, because the investigation showed that Mr. Tamayo had participated in the unlawful demonstration, his services cannot be deemed satisfactory.

In the case of Mr. Rene Encarnacion, and Mr. Severino Cortes, Jr. who taught in PSBA for two and one-half (2 1/2) years and one and one-half (1 1/2) years respectively, to them a permanent status cannot be accorded for failure to meet the minimum requirement of three (3) years set by the aforementioned Manual of Regulations. Of equal importance, at this point, is the fact that the letter of appointment had been extended only to Mr. Tamayo and not to Mr. Encarnacion, neither to Mr. Cortes, Jr.

WHEREFORE, for the reasons adverted to hereinabove, the motion for reconsideration, except insofar as We have made the aforementioned clarificatory statements about the tenure of full-time teachers and professors, is hereby DENIED.

In conclusion, We wish to reiterate that while We value the right of students to complete their education in the school or university of their choice, and while We fully respect their right to resort to rallies and demonstrations for the redress of their grievances and as a part of their freedom of speech and their right to assemble, still such rallies, demonstrations, and assemblies must always be conducted peacefully, and without resort to intimidation, coercion, or violence. Academic freedom in all its forms, demands the full display of discipline. To hold otherwise would be to subvert freedom into degenerate license.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

 

G.R. No. 89317 May 20, 1990

ARIEL NON, REX MAGANA, ALVIN AGURA, NORMANDY OCCIANO, JORGE DAYAON, LOURDES BANARES, BARTOLOME IBASCO, EMMANUEL BARBA, SONNY MORENO, GIOVANI PALMA, JOSELITO VILLALON, LUIS SANTOS, and DANIEL TORRES, petitioners, 

vs.HON. SANCHO DANES II, in his capacity as the Presiding Judge of 5th Regional Trial Court, Br. 38, Daet, Camarines Norte; and MABINI COLLEGES, INC., represented by its president ROMULO ADEVA and by the chairman of the Board of Trustees, JUSTO LUKBAN, respondents.

Antonio A. Ayo Jr. and Soliman M. Santos, Jr., for petitioners

Pedro A. Venida Agustin A. Ferrer and Gil F. Echaro for private respondents.

 

CORTES, J.:

Petitioners urge the Court en banc to review and reverse the doctrine laid down in Alcuaz, et al. v. Philippine School of Business Administration, et al., G.R. No. 76353, May 2, 1988, 161 SCRA 7, to the effect that a college student, once admitted by the school, is considered enrolled only for one semester and, hence, may be refused readmission after the semester is over, as the contract between the student and the school is deemed terminated.

Petitioners, students in private respondent Mabini Colleges, Inc. in Daet, Camarines Norte, were not allowed to re-enroll by the school for the academic year 1988-1989 for leading or participating in student mass actions against the school in the preceding semester. The subject of the protests is not, however, made clear in the pleadings.

Petitioners filed a petition in the court a quo seeking their readmission or re-enrollment to the school, but the trial court dismissed the petition in an order dated August 8, 1988; the dispositive portion of which reads:

WHEREFORE, premises considered, and the fact that the ruling in the Alcuaz vs. PSBA is exactly on the point at issue in this case but the authority of the school regarding admission of students, save as a matter of compassionate equity — when any of the petitioners would, at the least, qualify for re-enrollment, this petition is hereby DISMISSED.

SO ORDERED. [Rollo, p. 12-A.]

A motion for reconsideration was filed, but this was denied by the trial court on February 24, 1989 in this wise:

Perhaps many will agree with the critical comment of Joaquin G. Bernas S.J., and that really there must be a better way of treating students and teachers than the manner ruled (not suggested) by the Supreme Court, the Termination of Contract at the end of the semester, that is.

But applicable rule in the case is that enunciated by the Supreme Court in the case of Sophia Alcuaz, et al. vs. Philippine School of Business Administration, Quezon City Branch (PSBA), et al., G.R. No. 76353, May 2, 1988; that of the termination at the end of the semester, reason for the critical comments of Joaquin G. Bernas and Doods Santos, who both do not agree with the ruling.

Petitioners' claim of lack of due process cannot prosper in view of their failure to specifically deny respondent's affirmative defenses that "they were given all the chances to air their grievances on February 9, 10, 16, and 18, 1988, and also on February 22, 1988 during which they were represented by Atty. Jose L. Lapak" and that on February 22, 1988, the date of the

resumption of classes at Mabini College, petitioners continued their rally picketing, even though without any renewal permit, physically coercing students not to attend their classes, thereby disrupting the scheduled classes and depriving a great majority of students of their right to be present in their classes.

Against this backdrop, it must be noted that the petitioners waived their privilege to be admitted for re-enrollment with respondent college when they adopted, signed, and used its enrollment form for the first semester of school year 1988-89. Said form specifically states that:

The Mabini College reserves the right to deny admission of students whose scholarship and attendance are unsatisfactory and to require withdrawal of students whose conduct discredits the institution and/or whose activities unduly disrupts or interfere with the efficient operation of the college. Students, therefore, are required to behave in accord with the Mabini College code of conduct and discipline.

In addition, for the same semester, petitioners duly signed pledges which among others uniformly reads:

In consideration of my admission to the Mabini College and of my privileges as student of this institution, I hereby pledge/ promise under oath to abide and comply with all the rules and regulations laid down by competent authorities in the College Department or School in which I am enrolled. Specifically:

xxx xxx xxx

3. I will respect my Alma Matter the Mabini College, which I represent and see to it that I conduct myself in such a manner that the college wig not be put to a bad light;

xxx xxx xxx

9. I will not release false or unauthorized announcement which tend to cause confusion or disrupt the normal appreciation of the college.

Moreover, a clear legal right must first be established for a petition for mandamus to prosper (Sec. 3, Rule 65). It being a mere privilege and not a legal right for a student to be enrolled or reenrolled, respondent Mabini College is free to admit or not admit the petitioners for re-enrollment in view of the academic freedom enjoyed by the school in accordance with the Supreme Court rulings in the cases of Garcia vs. Faculty [Admission Committee] (G.R. No. 40779, November 28, 1975) and Tangonon vs. Pano, et al. (L-45157, June 27, 1985).

WHEREFORE, premises and jurisprudence considered, and for lack of merit, the motion for reconsideration of the order of this Court dated August 8, 1988 is hereby DENIED.

SO ORDERED. [Rollo pp. 15-16.]

Hence, petitioners filed the instant petition for certiorari with prayer for preliminary mandatory injunction.

The case was originally assigned to the Second Division of the Court, which resolved on April 10, 1989 to refer the case to the Court of Appeals for proper determination and disposition. The Court of Appeals ordered respondents to comment on the petition and set the application for issuance of a writ of preliminary mandatory injunction for hearing. After considering the comment and hearing the injunction application, the Court of Appeals resolved on May 22,

1989 to certify the case back to the Supreme Court considering that only pure questions of law were raised.

The case was assigned to the Third Division of the Court, which then transferred it to the Court en banc on August 21, 1989 considering that the issues raised are jurisdictional. On September 14, 1989, the Court en bancaccepted the case and required respondents to comment.

Respondents filed their comment on November 13, 1989. Petitioners were required to reply. As reply, they filed a pleading entitled "Counter-Comment," to which respondents filed a rejoinder entitled "Reply to Counter-Comment To this petitioners filed a "Rejoinder to Reply."

The issues having been joined, the case was deemed submitted.

At the heart of the controversy is the doctrine encapsuled in the following excerpt from Alcuaz:

It is beyond dispute that a student once admitted by the school is considered enrolled for one semester. It is provided in Paragraph 137 Manual of Regulations for Private Schools, that when a college student registers in a school, it is understood that he is enrolling for the entire semester. Likewise, it is provided in the Manual, that the "written contracts" required for college teachers are for "one semester." It is thus evident that after the close of the first semester, the PSBA-QC no longer has any existing contract either with the students or with the intervening teachers. Such being the case, the charge of denial of due process is untenable. It is a time-honored principle that contracts are respected as the law between the contracting parties (Henson vs. Intermediate Appellate Court, et al., G.R. No. 72456, February 19, 1987, citing: Castro vs. Court of Appeals, 99 SCRA 722; Escano vs. Court of Appeals, 100 SCRA 197). The contract having been terminated, there is no more contract to speak of. The school cannot be compelled to enter into another contract with said students and teachers. "The courts, be they the original trial court or the appellate court, have no power to make contracts for the parties.' (Henson vs. Intermediate Appellate Court, et al., supra). [At 161 SCRA 17-18; Emphasis supplied.]

In Alcuaz, the Second Division of the Court dismissed the petition filed by the students, who were barred from re-enrolling after they led mass assemblies and put up barricades, but it added that "in the light of compassionate equity, students who were, in view of the absence of academic deficiencies, scheduled to graduate during the school year when this petition was filed, should be allowed to re-enroll and to graduate in due time." [At 161 SCRA 22.] Mr. Justice Sarmiento dissented from the majority opinion.

A motion for reconsideration was filed by the dismissed teachers in Alcuaz. The students did not move for reconsideration. The Court en banc, to which the case had been transferred, denied the motion for reconsideration in a Resolution dated September 29, 1989, but added as an obiter dictum:

In conclusion, We wish to reiterate that while We value the right of students to complete their education in the school or university of their choice, and while We fully respect their right to resort to rallies and demonstrations for the redress of their grievances and as part of their freedom of speech and their right to assemble, still such rallies, demonstrations, and assemblies must always be conducted peacefully, and without resort to intimidation, coercion, or violence. Academic freedom in all its forms, demands the full display of discipline. To hold otherwise would be to subvert freedom into degenerate license.

The majority's failure to expressly repudiate the "termination of contract" doctrine enunciated in the decision provoked several dissents on that issue. Although seven (7) members of the

Court * disagreed with the Second Division's dismissal of the students petition, a definitive ruling on the issue could not have been made because no timely motion for reconsideration was filed by the students. (As stated above, the motion for reconsideration was filed by the dismissed teachers.)

Be that as it may, the reassessment of the doctrine laid down in Alcuaz, insofar as it allowed schools to bar the readmission or re-enrollment of students on the ground of termination of contract, shall be made in this case where the issue is squarely raised by petitioners [Petition, p. 4; Rollo, p. 5].

Initially, the case at bar must be put in the proper perspective. This is not a simple case of a school refusing readmission or re-enrollment of returning students. Undisputed is the fact that the refusal to readmit or re-enroll petitioners was decided upon and implemented by school authorities as a reaction to student mass actions directed against the school. Petitioners are students of respondent school who, after leading and participating in student protests, were denied readmission or re-enrollment for the next semester. This is a case that focuses on the right to speech and assembly as exercised by students vis-a-vis the right of school officials to discipline them.

Thus, although respondent judge believed himself bound by the ruling in Alcuaz [Order dated August 8, 1988;Rollo, pp. 1212-A], he actually viewed the issue as a conflict between students' rights and the school's power to discipline them, to wit:

Students should not be denied their constitutional and statutory right to education, and there is such denial when students are expelled or barred from enrollment for the exercise of their right to free speech and peaceable assembly and/or subjected to disciplinary action without abiding with the requirements of due process. Also, it is understandable for student leaders to let loose extremely critical and, at times, vitriolic language against school authorities during a student rally.

But the right of students is no license and not without limit . . . [Order of February 24, 1989; Rollo, p. 13.]

1. The Student Does Not Shed His Constitutionally Protected Rights at the Schoolgate.

Central to the democratic tradition which we cherish is the recognition and protection of the rights of free speech and assembly. Thus, our Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. [Art. III.]

This guarantee is not peculiar to the 1987 Constitution. A similar provision was found in the 1973 Constitution, as amended [Art. VI, sec. 9], the 1935 Constitution, as amended [Art. III, sec. 81, the Philippine Autonomy Act (Jones Law) [Sec. 3, para. 13], and the Philippine Bill of 1902 [Sec. 15, para. 13]. Thus, as early as 1907, the Court inPeople v. Apurado, 7 Phil. 422, upheld the right to speech and assembly to overturn a conviction for sedition. It said:

Section 5 of the Act No. 292 is as follows:

All persons who rise publicly and tumultuously in order to attain by force or outside of legal methods any of the following objects are guilty of sedition:

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2. To prevent the Insular Government, or any provincial or municipal government or any public official, from freely exercising its or his duties or the due execution of any judicial or administrative order.

But this law must not be interpreted so as to abridge "the freedom of speech" or "the right of the people peaceably to assemble and petition the Government for redress of grievances" guaranteed by the express provisions of section 5 of "the Philippine Bill."

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It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercise in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising. [At pp. 424, 426.]

That the protection to the cognate rights of speech and assembly guaranteed by the Constitution is similarly available to students is well-settled in our jurisdiction. In the leading case of Malabanan v. Ramento, G.R. No. 62270, May 21, 1984, 129 SCRA 359, the Court, speaking through Mr. Chief Justice Fernando in an en bancdecision, declared:

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4. Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so. They enjoy like the rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." While therefore, the authority of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional safeguards. [At pp. 367-368.]

The facts in Malabanan are only too familiar in the genre of cases involving student mass actions:

. . . Petitioners were officers of the Supreme Student Council of respondent [Gregorio Araneta] University. They sought and were granted by the school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M. on August 27, 1982. Pursuant to such permit, along with other students, they held a general assembly at the Veterinary Medicine and Animal Science (VMAS) the place indicated in such permit, not in the basketball court as therein stated but at the respond floor lobby. At such gathering they manifested in vehement and vigorous language their opposition to the proposed merger of the Institute of Animal Science with the Institute of Agriculture. At 10:30 A.M., the same day, they marched toward the Life Science building and continued their rally. It was outside the area covered by their permit. They continued their

demonstration, giving utterance to language severely critical of the University authorities and using megaphones in the process. There was, as a result, disturbance of the classes being held. Also, the non-academic employees, within hearing distance, stopped their work because of the noise created. They were asked to explain on the same day why they should not be held liable for holding an illegal assembly. Then on September 9, 1982, they were informed through a memorandum that they were under preventive suspension for their failure to explain the holding of an illegal assembly in front of the Life Science Building. The validity thereof was challenged by petitioners both before the Court of First Instance of Rizal in a petition for mandamuswith damages against private respondents and before the Ministry of Education, Culture, and Sports. On October 20, 1982, respondent Ramento, as Director of the National Capital Region, found petitioners guilty of the charge of having violated par. 146(c) of the Manual for Private Schools more specifically their holding of an illegal assembly which was characterized by the violation of the permit granted resulting in the disturbance of classes and oral defamation. The penalty was suspension for one academic year. . . . [At pp. 363-364.]

The Court found the penalty imposed on the students too severe and reduced it to a one-week suspension.

The rule laid down in Malabanan was applied with equal force in three other en banc decisions of the Court.

In Villar v. Technological Institute of the Philippines, G.R. No. 69198, April 17, 1985, 135 SCRA 706, the Court reiterated that the exercise of the freedom of assembly could not be a basis for barring students from enrolling. It enjoined the school and its officials from acts of surveillance, blacklisting, suspension and refusal to re-enroll. But the Court allowed the non-enrollment of students who clearly incurred marked academic deficiency, with the following caveat:

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4. The academic freedom enjoyed by ''institutions of higher learning" includes the right to set academic standards to determine under what circumstances failing grades suffice for the expulsion of students. Once it has done so, however, that standard should be followed meticulously. It cannot be utilized to discriminate against those students who exercise their constitutional rights to peaceable assembly and free speech. If it does so, then there is a legitimate grievance by the students thus prejudiced, their right to the equal protection clause being disregarded. [At p. 711.]

In Arreza v. Gregorio Araneta University Foundation, G.R. No. 62297, June 19, 1985, 137 SCRA 94, a case arising from almost the same facts as those in Malabanan, the Court rejected "the infliction of the highly- disproportionate penalty of denial of enrollment and the consequent failure of senior students to graduate, if in the exercise of the cognate rights of free speech and peaceable assembly, improper conduct could be attributed to them. [At p. 98].

In Guzman v. National University, G.R. No. 68288, July 11, 1986, 142 SCRA 699, respondent school was directed to allow the petitioning students to re-enroll or otherwise continue with their respective courses, without prejudice to any disciplinary proceedings that may be conducted in connection with their participation in the protests that led to the stoppage of classes.

2. Permissible Limitations on Student Exercise of Constitutional Rights Within the School.

While the highest regard must be afforded the exercise of the rights to free speech and assembly, this should not be taken to mean that school authorities are virtually powerless to discipline students. This was made clear by the Court in Malabanan, when it echoed Tinker

v. Des Moines Community School District, 393 US 503, 514: "But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech."

Thus, in Malabanan, the Court said:

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8. It does not follow, however, that petitioners can be totally absolved for the events that transpired. Admittedly, there was a violation of the terms of the permit. The rally was held at a place other than that specified, in the second floor lobby, rather than the basketball court, of the (VMAS) building of the University. Moreover, it was continued longer than the period allowed. According to the decision of respondent Ramento, the "concerted activity [referring to such assembly went on until 5:30 p.m." Private respondents could thus, take disciplinary action. . . . [ At pp. 370-371].

But, as stated in Guzman, the imposition of disciplinary sanctions requires observance of procedural due process. Thus:

. . . There are withal minimum standards which must be met to satisfy the demands of procedural due process; and these are, that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them, with the assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. [At pp. 706-707].

Moreover, the penalty imposed must be proportionate to the offense committed. As stated in Malabanan, "[i]f the concept of proportionality between the offense committed and sanction imposed is not followed, an element of arbitrariness intrudes." [At p. 371].

3. Circumventing Established Doctrine.

Malabanan was decided by the Court in 1984. Since then, student mass actions have escalated not only because of political events that unfurled but also because of the constantly raging controversy over increases in tuition fees. But the over-eager hands of some school authorities were not effectively tied down by the ruling inMalabanan. Instead of suspending or expelling student leaders who fell into disfavor with school authorities, a new variation of the same stratagem was adopted by the latter: refusing the students readmission or re-enrollment on grounds not related to, their alleged misconduct of "illegal assembly" in leading or participating in student mass actions directed against the school. Thus, the spate of expulsions or exclusions due to "academic deficiency."

4. The Nature of the Contract Between a School and its Student.

The Court, in Alcuaz, anchored its decision on the "termination of contract" theory. But it must be repeatedly emphasized that the contract between the school and the student is not an ordinary contract. It is imbued with public interest, considering the high priority given by the Constitution to education and the grant to the State of supervisory and regulatory powers over all educational institutions [See Art. XIV, secs. 1-2, 4(1)].

Respondent school cannot justify its actions by relying on Paragraph 137 of the Manual of Regulations for Private Schools, which provides that "[w]hen a student registers in a school, it is understood that he is enrolling . . . for the entire semester for collegiate courses," which the Court in Alcuaz construed as authority for schools to refuse enrollment to a student on the ground that his contract, which has a term of one semester, has already expired.

The "termination of contract" theory does not even find support in the Manual. Paragraph 137 merely clarifies that a college student enrolls for the entire semester. It serves to protect schools wherein tuition fees are collected and paid on an installment basis, i.e. collection and payment of the downpayment upon enrollment and the balance before examinations. Thus, even if a student does not complete the semester for which he was enrolled, but has stayed on for more than two weeks, he may be required to pay his tuition fees for the whole semester before he is given his credentials for transfer. This is the import of Paragraph 137, subsumed under Section VII on Tuition and Other Fees, which in its totality provides:

137. When a student registers in a school, it is understood that he is enrolling for the entire school year for elementary and secondary courses, and for the entire semester for collegiate courses. A student who transfers or otherwise withdraws, in writing, within two weeks after the beginning of classes and who has already paid the pertinent tuition and other school fees in full or for any length of time longer than one month may be charged ten per cent of the total amount due for the term if he withdraws within the first week of classes, or twenty per cent if within the second week of classes, regardless of whether or not he has actually attended classes. The student may be charged all the school fees in full if he withdraws anytime after the second week of classes. However, if the transfer or withdrawal is due to a justifiable reason, the student shall be charged the pertinent fees only up to and including the last month of attendance.

Clearly, in no way may Paragraph 137 be construed to mean that the student shall be enrolled for only one semester, and that after that semester is over his re-enrollment is dependent solely on the sound discretion of the school. On the contrary, the Manual recognizes the right of the student to be enrolled in his course for the entire period he is expected to complete it. Thus, Paragraph 107 states:

Every student has the right to enrol in any school, college or university upon meeting its specific requirement and reasonable regulation: Provided, that except in the case of academic delinquency and violation of disciplinary regulation, the student is presumed to be qualified for enrolment for the entire period he is expected to complete his course without prejudice to his right to transfer.

This "presumption" has been translated into a right in Batas Pambansa Blg. 232, the "Education Act of 1982." Section 9 of this act provides:

Sec. 9. Rights of Students in School. — In addition to other rights, and subject to the limitations prescribed by law and regulations, students and pupils in all schools shall enjoy the following rights:

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2. The right to freely choose their field of study subject to existing curricula and to continue their course therein up to graduation, except in cases of academic deficiency, or violation of disciplinary regulations.

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5. Academic Freedom Not a Ground for Denying Students' Rights.

Respondent judge, in his order dated February 24, 1989, stated that "respondent Mabini College is free to admit or not admit the petitioners for re-enrollment in view of the academic freedom enjoyed by the school" [Rollo, p. 16]. To support this conclusion, he cited the cases of Garcia v. The Faculty Admission Committee, Loyola School of Theology, G.R. No. L-40779, November 28, 1975, 68 SCRA 277, and Tangonan v. Pano, G.R. No. L-45157, June 27, 1985, 137 SCRA 245, where the Court emphasized the institutions' discretion on the admission and enrollment of students as a major component of the academic freedom guaranteed to institutions of higher learning.

These cases involve different facts and issues. In Garcia, the issue was whether a female lay student has a clear legal right to compel a seminary for the priesthood to admit her for theological studies leading to a degree. InTangonan, the issue was whether a nursing student, who was admitted on probation and who has failed in her nursing subjects, may compel her school to readmit her for enrollment.

Moreover, respondent judge loses sight of the Court's unequivocal statement in Villar that the right of an institution of higher learning to set academic standards cannot be utilized to discriminate against students who exercise their constitutional rights to speech and assembly, for otherwise there win be a violation of their right to equal protection [At p. 711]

6. Capitol Medical Center and Licup.

In support of the action taken by respondent judge, private respondents cite the recent cases of Capitol Medical Center, Inc. v. Court of Appeals, G.R. No. 82499, October 13, 1989, and Licup v. University of San Carlos, G.R. No. 85839, October 19, 1989, both decided by the First Division of the Court.

We find the issues raised and resolved in these two decisions dissimilar from the issues in the present case.

In Capitol Medical Center, the Court upheld the decision of the school authorities to close down the school because of problems emanating from a labor dispute between the school and its faculty. The Court ruled that the students had no clear legal right to demand the reopening of the school.

On the other hand, in Licup the issue resolved was whether or not the students were afforded procedural due process before disciplinary action was taken against them. Thus, the Court stated:

The Court finds no cogent basis for the protestations of petitioners that they were deprived of due process of law and that the investigation conducted was far from impartial and fair. On the contrary, what appear from the record is that the charges against petitioners were adequately established in an appropriate investigation. The imputation of bias and partiality is not supported by the record. . . .

Moreover, Licup, far from adopting the "termination of contract" theory in Alcuaz, impliedly rejected it, to wit:

While it is true that the students are entitled to the right to pursue their education, the USC as an educational institution is also entitled to pursue its academic freedom and in the process has the concommitant right to see to it that this freedom is not jeopardized.

True, an institution of learning has a contractual obligation to afford its students a fair opportunity to complete the course they seek to pursue. However, when a student commits a serious breach of discipline or fails to maintain the required academic standard, he forfeits his contractual right; and the court should not review the discretion of university authorities. (Emphasis supplied.)

7. The Instant Case.

To justify the school's action, respondents, in their Comment dated November 12, 1989, quoting from their answer filed in the trial court, allege that of the thirteen (13) petitioners eight (8) have incurred failing grades, to wit:

a) Ariel Non has not only failed in four (4) subjects but also failed to cause the submission of Form 137 which is a pre-requisite to his re- enrollment and to his continuing as a student of Mabini;

b) Rex Magana not only has failed in one (1) subject but also has incomplete grades in four (4) subjects as well as no grades in two (2) subjects;

c) Elvin Agura failed in two (2) subjects and has three (3) incomplete grades;

d) Emmanuel Barba has failed in one (1) subject, and has to still take CMT 1 1 to 22. He is already enrolled at Ago Foundation;

e) Joselito Villalon has incomplete grades in nine (9) subjects;

f) Luis Santos has failed in one (1) subject;

g) George Dayaon has failed in four (4) subjects and has to remove the incomplete grade in one (1) subject;

h) Daniel Torres has failed in five (5) subjects, has to remove incomplete grades in five (5) more objects and has no grade in one (1) subject. [Rollo, p. 79.]

Petitioners have not denied this, but have countered this allegation as follows:

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(11) Petitioners were and are prepared to show, among others, that:

a) Three of the 13 of them were graduating. (Admitted in the Answer.)

b) Their academic deficiencies, if any, do not warrant non- readmission. (The Answer indicates only 8 of the 13 as with deficiencies.)

c) Their breach of discipline, if any, was not serious.

d) The improper conduct attributed to them was during the exercise of the cognate rights of free speech and peaceable assembly, particularly a February 1988 student rally. (The crux of the matter, as shown even in the Answer.)

e) There was no due investigation that could serve as basis for disciplinary action. (In effect, admitted in the Answer; even Alcuaz required due process.)

f) Respondents admit students with worse deficiencies — a clear case of discrimination against petitioners for their role in the student rally. (An equal protection question.)

g) Respondent school is their choice institution near their places of residence which they can afford to pay for tertiary education, of which they have already lost one-and-a-half school-years — in itself punishment enough. [Rollo, p. 86].

Clearly, the five (5) students who did not incur failing marks, namely, Normandy Occiano, Lourdes Banares, Bartolome Ibasco, Sonny Moreno and Giovani Palma, were refused re-enrollment without just cause and, hence, should be allowed to re-enroll.

On the other hand, it does not appear that the petitioners were afforded due process, in the manner expressed inGuzman, before they were refused re-enrollment. In fact, it would appear from the pleadings that the decision to refuse them re-enrollment because of failing grades was a mere afterthought. It is not denied that what incurred the ire of the school authorities was the student mass actions conducted in February 1988 and which were led and/or participated in by petitioners. Certainly, excluding students because of failing grades when the cause for the action taken against them undeniably related to possible breaches of discipline not only is a denial of due process but also constitutes a violation of the basic tenets of fair play.

Moreover, of the eight (8) students with failing grades, some have only one or two failures, namely, Rex Magana, Elvin Agura, Emmanuel Barba, and Luis Santos. Certainly, their failures cannot be considered marked academic deficiency within the context of the Court's decision in Villar.

Then, as to the students who incurred several failing grades, namely, Ariel Non, Joselito Villalon, George (Jorge) Dayaon, and Daniel Torres, it is not clear from respondents' enumeration whether the failures were incurred in only one semester or through the course of several semesters of study in the school. Neither are the academic standards of respondent school, from which we can gauge whether or not these students are academically deficient, alleged by respondents. Thus, while the prerogative of schools to set academic standards is recognized, we cannot affirm respondent school's action as to petitioners Non, Villalon, Dayaon and Torres because of insufficient information.

With regard to petitioner Emmanuel Barba who respondents claim has enrolled in Ago Foundation, such fact alone, if true, will not bar him from seeking readmission in respondent school.

However, these should not be taken to mean that no disciplinary action could have been taken against petitioners for breach of discipline if the facts had so warranted. In line with the Court's ruling in Malabanan, petitioners could have been subjected to disciplinary proceedings in connection with the February 1988 mass actions. But the penalty that could have been imposed must be commensurate to the offense committed and, as set forth inGuzman, it must be imposed only after the requirements of procedural due process have been complied with. This is explicit from the Manual of Regulations for Private Schools, which provides in Paragraph 145 that "[n]o penalty shall be imposed upon any student, except for cause as defined in this Manual and/or in the school's rules and regulations duly promulgated and only after due investigation shall have been conducted."

But this matter of disciplinary proceedings and the imposition of administrative sanctions have become moot and academic. Petitioners, who have been refused readmission or re-enrollment and who have been effectively excluded from respondent school for four (4) semesters, have already been more than sufficiently penalized for any breach of discipline they might have

committed when they led and participated in the mass actions that, according to respondents, resulted in the disruption of classes. To still subject them to disciplinary proceedings would serve no useful purpose and would only further aggravate the strained relations between petitioners and the officials of respondent school which necessarily resulted from the heated legal battle here, in the Court of Appeals and before the trial court.

WHEREFORE, the petition is GRANTED. The orders of respondent judge dated August 8, 1988 and February 24, 1989 are hereby ANNULLED. Respondent Mabini College is ORDERED to readmit and to allow the re- enrollment of petitioners, if they are still so minded, without prejudice to its taking the appropriate action as to petitioners Ariel Non, Joselito Villalon, George (Jorge) Dayaon and Daniel Torres, if it is shown by their records (Form 137) that they have failed to satisfy the school's prescribed academic standards.

SO ORDERED.

SECRETARY OF JUSTICE v. LANTION

October 26, 2012 §   1 Comment

FACTS:Secretary Of Justice Franklin Drilon, representing the Government of the Republic of the Philippines, signed in Manila the “extradition Treaty Between the Government of the Philippines and the Government of the U.S.A. The Philippine Senate ratified the said Treaty.On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jiminez to the United States.On the same day petitioner designate and authorizing a panel of attorneys to take charge of and to handle the case. Pending evaluation of the aforestated extradition documents, Mark Jiminez through counsel, wrote a letter to Justice Secretary requesting copies of the official extradition request from the U.S Government and that he be given ample time to comment on the request after he shall have received copies of the requested papers but the petitioner denied the request for the consistency of Article 7 of the RP-US Extradition Treaty stated in Article 7 that the Philippine Government must present the interests of the United States in any proceedings arising out of a request for extradition.

ISSUE: Whether or not to uphold a citizen’s basic due process rights or the governments ironclad duties under a treaty.

RULING: Petition dismissed.The human rights of person, whether citizen or alien , and the rights of the accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting state. The duties of the government to the individual deserve preferential consideration when they collide with its treaty obligations to the government of another state. This is so although we recognize treaties as a source of binding obligations under generally accepted principles of international law incorporated in our Constitution as part of the law of the land.The doctrine of incorporation is applied whenever municipal tribunals are confronted with

situation in which there appears to be a conflict between a rule of international law and the provision of the constitution or statute of the local state.

Petitioner (Secretary of Justice) is ordered to furnish Mark Jimenez copies of the extradition request and its supporting papers, and to grant him (Mark Jimenez) a reasonable period within which to file his comment with supporting evidence.

“Under the Doctrine of Incorporation, rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere.

“The doctrine of incorporation is applied whenever municipal tribunals are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state.

“Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the incorporation clause in the above cited constitutional provision.

“In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and a municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts, for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances.

“The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogate priori takes effect – a treaty may repeal a statute and a statute may repeal a treaty. In states where the Constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution

Government of the USA v. Hon. PurgananGR. NO. 148571 Sept. 24 2002PANGANIBAN, J.

Lessons: Extradition Process, Bail on Extradition, Right of Due Process and Fundamental Fairness in Extradition

Laws: Bill of Rights, PD 1069, US-Phil Extradition Treaty 

FACTS:

    Petition is a sequel to the case “Sec. of Justice v. Hon. Lantion”.  The Secretary was ordered to furnish Mr. Jimenez copies of the extradition request and its supporting papers and to grant the latter a reasonable period within which to file a comment and supporting evidence.  But, on motion for reconsideration by the Sec. of Justice, it reversed its decision but held that the Mr. Jimenez was bereft of the right to notice and hearing during the evaluation stage of the extradition process.  On May 18, 2001, the Government of the USA, represented by the Philippine Department of Justice, filed with the RTC, the Petition for Extradition praying for the

issuance of an order for his “immediate arrest” pursuant to Sec. 6 of PD 1069 in order to prevent the flight of Jimenez.  Before the RTC could act on the petition, Mr. Jimenez filed before it an “Urgent Manifestation/Ex-Parte Motion” praying for his application for an arrest warrant be set for hearing.  After the hearing, as required by the court, Mr. Jimenez submitted his Memorandum.  Therein seeking an alternative prayer that in case a warrant should issue, he be allowed to post bail in the amount of P100,000.  The court ordered the issuance of a warrant for his arrest and fixing bail for his temporary liberty at P1M in cash.  After he had surrendered his passport and posted the required cash bond, Jimenez was granted provisional liberty.  

    Government of the USA filed a petition for Certiorari under Rule 65 of the Rules of Court to set aside the order for the issuance of a warrant for his arrest and fixing bail for his temporary liberty at P1M in cash which the court deems best to take cognizance as there is still  no local jurisprudence to guide lower court.    ISSUES: i.    Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an arrest warrant under Section 6 of PD No. 1069ii.    Whether or NOT Hon. Purganan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in granting the prayer for bailiii.    Whether or NOT there is a violation of due process

HELD: Petition is GRANTED. Bail bond posted is CANCELLED.  Regional Trial Court of  Manila is directed to conduct the extradition proceedings before it. 

i.    YES. 

By using the phrase “if it appears,” the law further conveys that accuracy is not asimportant as speed at such early stage.  From the knowledge and the material then available to it, the court is expected merely to get a good first impression or a prima facie finding sufficient to make a speedy initial determination as regards the arrest and detention of the accused.  The prima facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already evident from the Petition itself and its supporting documents.  Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez.  The silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings.  It also bears emphasizing at this point that extradition proceedings are summary in nature.  Sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute an escape which neither the Treaty nor the Law could have intended.

    Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest.   To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination under oath or affirmation of complainants and the witnesses they may produce.

The Proper Procedure to “Best Serve The Ends Of Justice” In Extradition Cases    Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whethera)    they are sufficient in form and substanceb)    they show compliance with the Extradition Treaty and Lawc)    the person sought is extraditable

At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner.  If, in spite of this study and examination, no prima facie finding is possible, the petition may be dismissed at the discretion of the judge.  On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and to appear at scheduledsummary hearings.  Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings.  

ii.    Yes.

The constitutional provision on bail on Article III, Section 13 of the Constitution, as wellas Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws.  It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal.  Moreover, the constitutional right to bail “flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt.  In extradition, the presumption of innocence is not at issue.  The provision in the Constitution stating that the “right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended” finds application “only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.”   

    That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case.  Extradition proceedings are separate and distinct from the trial for the offenses for which he is charged.  He should apply for bail before the courts trying the criminal cases against him, not before the extradition court.

Exceptions to the “No Bail” Rule    Bail is not a matter of right in extradition cases.  It is subject to judicial discretion in the context of the peculiar facts of each case.  Bail may be applied for and granted as an exception, only upon a clear and convincing showing1)    that, once granted bail, the applicant will not be a flight risk or a danger to the community; and2)    that there exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein

    Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. 

    It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was already of public knowledge that the United States was requesting his extradition.  Therefore, his constituents were or should have been prepared for the consequences of the extradition case.  Thus, the court ruled against his claim that his election to public office is by itself a compelling reason to grant him bail.    

    Giving premium to delay by considering it as a special circumstance for the grant of bail would be tantamount to giving him the power to grant bail to himself.  It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more.   Extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and, while safeguarding basic individual

rights, to avoid the legalistic contortions,  delays and technicalities that may negate that purpose.        That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be within reach of our government if and when it matters; that is, upon the resolution of the Petition for Extradition.    iii.    NO.

    Potential extraditees are entitled to the rights to due process and to fundamental fairness.  The doctrine of right to due process and fundamental fairness does not always call for a prior opportunity to be heard.   A subsequent opportunity to be heard is enough.  He will be given full opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition.  Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition.

    It is also worth noting that before the US government requested the extradition of respondent, proceedings had already been conducted in that country.  He already had that opportunity in the requesting state; yet, instead of taking it, he ran away.

Other Doctrines:

Five Postulates of Extradition1)    Extradition Is a Major Instrument for the Suppression of Crime

In this era of globalization, easier and faster international travel, and an expanding ring of international crimes and criminals, we cannot afford to be an isolationist state.  We need to cooperate with other states in order to improve our chances of suppressing crime in our own country.

2)    The Requesting State Will Accord Due Process to the  Accused

By entering into an extradition treaty, the Philippines is deemed to have reposed its trustin the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein.

3)    The Proceedings Are Sui Generis

An extradition proceeding is sui generis:a)    It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights.  It does not involve the determination of the guilt or innocence of an accused.  His guilt or innocence will be adjudged in the court of the state where he will be extradited.b)    An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial.c)    In terms of the quantum of evidence to be satisfied, a criminal case requires proof “beyond reasonable doubt” for conviction while a fugitive may be ordered extradited “upon showing of the existence of a prima facie case”d)    Unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him.

Extradition is merely a measure of international judicial assistance through which a person

charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person.  The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable.

4)    Compliance Shall Be in Good Faith.

We are bound by pacta sunt servanda to comply in good faith with our obligationsunder the Treaty.  Accordingly, the Philippines must be ready and in a position to deliver theaccused, should it be found proper

5)    There Is an Underlying Risk of Flight

Indeed, extradition hearings would not even begin, if only the accused werewilling to submit to trial in the requesting country. Prior acts of herein respondent:a)    leaving the requesting state right before the conclusion of his indictment proceedings there; and b)    remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable

Extradition is Essentially ExecutiveExtradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties.  Thus, the Executive Department of government has broad discretion in its duty and power of implementation.

 

Hong Kong v. OlaliaG.R. No. 153675Facts

The

 

Philippines and Hong Kong signed an “Agreement for the Surrender of Accused andConvicted Persons.”Private respondent Muñoz was charged before the Hong Kong Court. Department of Justice(DOJ) received from the Hong Kong Department of Justice a request for the provisional arrest of privaterespondent Muñoz. The DOJ then forwarded the request to the National Bureau of Investigation (NBI)which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of privaterespondent. The NBI agents arrested and detained him.Muñoz filed a petition for bail which was denied by Judge Bernardo, Jr.

 

holding that there is noPhilippine law granting bail in extradition cases and that private respondent is a high “flight risk.” After Judge Bernardo, Jr. inhibited himself from further hearing the case, it was then raffled off to Branch 8 presided by respondent judge. Private respondent filed a motion for reconsideration of the Order denyinghis application for bail and this was granted by respondent judge.

ISSUE

Whether or not the trial court committed grave abuse of discretion amounting to lack or excess of  jurisdiction in allowing private respondent to bail?

HELD

 No, the trial court did not commit grave abuse of discretion amounting to lack or excess of  jurisdiction in allowing private respondent to bail.Accordingly, although the time-honored principle of 

 pacta sunt servanda

demands that thePhilippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong SpecialAdministrative Region it does not necessarily mean that in keeping with its treaty obligations, thePhilippines should diminish a potential extraditee’s rights to life, liberty, and due process

guaranteed bythe Constitution

. More so, where these rights are guaranteed, not only by our Constitution, but also byinternational conventions, particularly

the Universal Declaration of Human Rights

, to which thePhilippines is a party.

We should not, therefore, deprive an extraditee of his right to apply for bail, provided that acertain standard for the grant is satisfactorily met.

In his Separate Opinion in

 Purganan

, thenAssociate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed“clear and convincing evidence” should be used in granting bail in extradition cases. According to him,this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by “clear and convincing evidence” that he is not a flightrisk and will abide with all the orders and processes of the extradition court.In this case, there is no showing that private respondent presented evidence to show that he is nota flight risk. Consequently, this case should be remanded to the trial court to determine whether privaterespondent may be granted bail on the basis of “clear and convincing evidence.”

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determinewhether private respondent is entitled to bail on the basis of “clear and convincing evidence.” If not, thetrial court should order the cancellation of his bail bond and his immediate detention; and thereafter,conduct the extradition proceedings with dispatch.