SECOND DIVISION
[G.R. No.
140520. December 18, 2000]
JUSTICE SERAFIN R. CUEVAS,
substituted by ARTEMIO G. TUQUERO in his capacity as Secretary of Justice, petitioner,
vs. JUAN ANTONIO MUÑOZ, respondent.
D E C I S I O N
DE LEON, JR.,
J.:
Before us is a
petition for review on certiorari of the Decision[1] of the Court of Appeals, dated
November 9, 1999, directing the immediate release of respondent Juan Antonio
Muñoz from the custody of law upon finding the Order[2] of provisional arrest dated September
20, 1999 issued by Branch 19 of the Regional Trial Court of Manila to be null
and void.
The antecedent
facts:
On August 23,
1997, the Hong Kong Magistrate’s Court at Eastern Magistracy issued a warrant
for the arrest of respondent for seven (7) counts of accepting an advantage as
an agent contrary to Section 9(1)(a) of the Prevention of Bribery Ordinance,
Cap. 201 of Hong Kong, and seven (7) counts of conspiracy to defraud, contrary
to the common law of Hong Kong.[3] Said warrant remains in full force
and effect up to the present time.[4]
On September 13,
1999, the Philippine Department of Justice (hereafter, “Philippine DOJ”)
received a request for the provisional arrest of the respondent from the Mutual
Legal Assistance Unit, International Law Division of the Hong Kong Department
of Justice (hereafter, “Hong Kong DOJ”)[5] pursuant to Article 11(1) of the
“Agreement Between The Government Of The Republic Of The Philippines And The
Government Of Hong Kong For The Surrender Of Accused And Convicted Persons”
(hereafter, “RP-Hong Kong Extradition Agreement”).[6] The Philippine DOJ forwarded the
request for provisional arrest to the Anti-Graft Division of the National
Bureau of Investigation (NBI).
On September 17,
1999, for and in behalf of the government of Hong Kong, the NBI filed an
application for the provisional arrest of respondent with the Regional Trial
Court (RTC) of Manila.
On September 20,
1999, Branch 19 of the RTC of Manila issued an Order granting the application
for provisional arrest and issuing the corresponding Order of Arrest.[7]
On September 23,
1999, respondent was arrested pursuant to the said order, and is currently
detained at the NBI detention cell.[8]
On October 14,
1999, respondent filed with the Court of Appeals, a petition for certiorari,
prohibition and mandamus with application for preliminary mandatory injunction
and/or writ of habeas corpus assailing the validity of the Order of
Arrest. The Court of Appeals rendered a
decision declaring the Order of Arrest null and void on the following grounds:
(1) that there was no urgency to warrant the request for provisional
arrest under Article 11(1) of the RP-Hong Kong Extradition Agreement;[9]
(2) that the request for provisional arrest and the accompanying warrant
of arrest and summary of facts were unauthenticated and mere facsimile copies
which are insufficient to form a basis for the issuance of the Order of Arrest;[10]
(3) that the twenty (20) day period for provisional arrest under Section
20(d) of Presidential Decree No. 1069 otherwise known as the Philippine
Extradition Law, was not amended by Article 11(3) of the RP-Hong Kong
Extradition Agreement which provides for a forty-five (45) day period for
provisional arrest;[11]
(4) that the Order of Arrest was issued without the Judge having
personally determined the existence of probable cause;[12] and
(5) that the requirement of dual criminality under Section 3(a) of P.D.
No. 1069 has not been satisfied as the crimes for which respondent is wanted in
Hong Kong, namely accepting an advantage as an agent and conspiracy to commit
fraud, are not punishable by Philippine laws.[13]
Thus, petitioner
Justice Serafin R. Cuevas, in his capacity as the Secretary of the Department
of Justice, lost no time in filing the instant petition.[14]
On November 17,
1999, respondent filed an Urgent Motion For Release Pending Appeal. He primarily contended that, since Section
20(d) of P.D. No. 1069 sets the maximum period of provisional arrest at twenty
(20) days, and he has been detained beyond the said period, without both a
request for extradition having been received by the Philippine DOJ and the
corresponding petition for extradition having been filed in the proper RTC, he
should be released from detention. [15]
On December 16,
1999, petitioner filed a Manifestation with this Court stressing the fact that
as early as November 5, 1999, the Philippine DOJ had already received from the
Hong Kong DOJ, a formal request for the surrender of respondent. Petitioner also informed this Court that
pursuant to the said request for extradition, the Philippine DOJ, representing
the Government of Hong Kong, filed on November 22, 1999, a verified petition
for the extradition of respondent docketed as Case No. 99-95733 and currently
pending in Branch 10 of the RTC of Manila.[16]
Petitioner
submits that the Court of Appeals erred in nullifying the Order of provisional
arrest against respondent.
Petitioner
imputes the following errors in the subject Decision of the Court of Appeals,
to wit:
I
The Court of
Appeals gravely erred in holding that:
A. there was no urgency for the provisional arrest of respondent;
B. the
municipal law (P.D. No. 1069) subordinates an international agreement
(RP-Hongkong Agreement);
C. the supporting documents for a request for provisional
arrest have to be authenticated;
D. there was lack of factual and legal bases in the
determination of probable cause; and
E. the offense of
accepting an advantage as an agent is not an offense under the Anti-Graft and
Corrupt Practices Act, as amended.
II
The Court of Appeals seriously
erred in declaring as null and void the trial court’s Order of Arrest dated
September 20, 1999 despite that (sic) respondent waived the right to assail the
order of arrest by filing in the trial court a motion for release on
recognizance, that (sic) the issue of legality of the order of arrest was being
determined by the trial court, and respondent mocked the established rules of
procedure intended for an orderly administration of justice.[17]
Petitioner takes
exception to the finding of the Court of Appeals that the offense of accepting
an advantage as an agent is not punishable under Republic Act (R.A.) No. 3019
otherwise known as the Anti-Graft and Corrupt Practices Act, thus, obviating
the application of P.D. No. 1069[18] that requires the offense to be
punishable under the laws both of the requesting state or government and the
Republic of the Philippines.[19]
However, the
issue of whether or not the rule of double criminality applies was not for the
Court of Appeals to decide in the first place.
The trial court in which the petition for extradition is filed is vested
with jurisdiction to determine whether or not the offenses mentioned in the
petition are extraditable based on the application of the dual criminality rule
and other conditions mentioned in the applicable treaty. In this case, the presiding Judge of Branch
10 of the RTC of Manila has yet to rule on the extraditability of the offenses
for which the respondent is wanted in Hong Kong. Therefore, respondent has prematurely raised this issue before
the Court of Appeals and now, before this Court.
Petitioner’s
other arguments, however, are impressed with merit.
First. There was urgency for the provisional arrest of the respondent.
Section 20(a) of
P.D. No. 1069 reads as follows:
Provisional Arrest. - (a) In case of urgency, the requesting state may,
pursuant to the relevant treaty or convention and while the same remains in
force, request for the provisional arrest of the accused, pending receipt of
the request for extradition made in accordance with Section 4 of this Decree;
and Article 11 of the Extradition Agreement between the Philippines and
Hong Kong provides in part that:
(1) In urgent cases, the person
sought may, in accordance with the law of the requested Party, be provisionally
arrested on the application of the requesting Party. x x x.
Nothing in
existing treaties or Philippine legislation defines the meaning of “urgency” as
used in the context of a request for provisional arrest. Using reasonable standards of
interpretation, however, we believe that “urgency” connotes such conditions
relating to the nature of the offense charged and the personality of the
prospective extraditee which would make him susceptible to the inclination to
flee or escape from the jurisdiction if he were to learn about the impending
request for his extradition and/or likely to destroy the evidence pertinent to
the said request or his eventual prosecution and without which the latter could
not proceed.[20]
We find that
such conditions exist in respondent’s case.
First.
It should be noted that at the time the request for provisional arrest
was made, respondent’s pending application for the discharge of a restraint
order over certain assets held in relation to the offenses with which he is
being charged, was set to be heard by the Court of First Instance of Hong Kong
on September 17, 1999. The Hong Kong
DOJ was concerned that the pending request for the extradition of the
respondent would be disclosed to the latter during the said proceedings, and
would motivate respondent to flee the Philippines before the request for
extradition could be made.[21]
There is also
the fact that respondent is charged with seven (7) counts of accepting an
advantage as an agent and seven (7) counts of conspiracy to defraud, for each
count of which, if found guilty, he may be punished with seven (7) and fourteen
(14) years imprisonment, respectively.
Undoubtedly, the gravity of the imposable penalty upon an accused is a
factor to consider in determining the likelihood that the accused will abscond
if allowed provisional liberty. It is, after all, but human to fear a lengthy,
if not a lifetime, incarceration.
Furthermore, it has also not escaped the attention of this Court that
respondent appears to be affluent and possessed of sufficient resources to
facilitate an escape from this jurisdiction.[22]
The arguments
raised by the respondent in support of his allegation that he is not a flight
risk, are, to wit:
a) He did not flee or hide when the Central Bank and the NBI
investigated the matter alleged in the request for extradition of the Hongkong
Government during the second half of 1994; he has since been cleared by the
Central Bank;
b) He did not flee or hide when the Hongkong Government’s Independent
Commission Against Corruption (ICAC)
issued a warrant for his arrest in August 1997; he has in fact filed a case in
Hongkong against the Hongkong Government for the release of his frozen assets;
c) He never changed his address nor his identity, and has sought
vindication of his rights before the courts in Hongkong and in the Philippines;
d) He has never evaded arrest by any lawful authority, and certainly
will never fly away now that his mother is on her death bed.[23]
do not convince this Court. That
respondent did not flee despite the investigation conducted by the Central Bank
and the NBI way back in 1994, nor when the warrant for his arrest was issued by
the Hong Kong ICAC in August 1997, is not a guarantee that he will not flee now
that proceedings for his extradition are well on the way. Respondent is about to leave the protective
sanctuary of his mother state to face criminal charges in another
jurisdiction. It cannot be denied that
this is sufficient impetus for him to flee the country as soon as the
opportunity to do so arises.
Respondent also
avers that his mother’s impending death makes it impossible for him to leave
the country. However, by respondent’s
own admission, his mother finally expired at the Cardinal Santos Hospital in Mandaluyong
City last December 5, 1999.[24]
Second.
Twelve (12) days after respondent was provisionally arrested, the
Philippine DOJ received from the Hong Kong DOJ, a request for the surrender or
extradition of respondent.
On one hand,
Section 20(d) of P.D. No. 1069 reads as follows:
(d) If within a period of twenty
(20) days after the provisional arrest the Secretary of Foreign Affairs has not
received the request for extradition and the documents mentioned in Section 4
of this Decree, the accused shall be released from custody.
On the other
hand, Article 11(3) of the RP-Hong Kong Extradition Agreement provides that:
(3) The provisional arrest of the
person sought shall be terminated upon the expiration of forty-five days from
the date of arrest if the request for surrender has not been received, unless
the requesting Party can justify continued provisional arrest of the person
sought in which case the period of provisional arrest shall be terminated upon
the expiration of a reasonable time not being more than a further fifteen
days. This provision shall not prevent
the re-arrest or surrender of the person sought if the request for the person’s
surrender is received subsequently.
Petitioner
contends that Article 11(3) of the RP-Hong Kong Extradition Agreement which
allows a period of forty-five (45) days for provisional arrest absent a formal
request for extradition has amended Section 20(d) of P.D. No. 1069 which
provides only a twenty (20) day period for the same.[25]
Petitioner’s
argument on this point, however, has been rendered moot and academic by the
fact that as early as November 5, 1999 or twelve (12) days after respondent’s
arrest on September 23, 1999, the Philippine DOJ already received from the Hong
Kong DOJ, a request for the surrender of respondent. The crucial event, after all, which tolls the provisional
detention period is the transmittal of the request for the extradition or
surrender of the extraditee. Hence, the
question as to whether the period for provisional arrest stands at twenty (20)
days, as provided for in P.D. No. 1069, or has been extended to forty-five (45)
days under the Extradition Agreement between Hong Kong and the Philippines is
rendered irrelevant by the actual request made by the Hong Kong DOJ for the
extradition of respondent twelve (12) days after the request for the
latter’s provisional arrest.
Likewise,
respondent’s contention in his motion for release pending appeal, that his
incarceration cannot continue beyond the twenty (20) day period without a
petition for his extradition having been filed in court, is simply
bereft of merit. It is clear from the
above-cited provisions, that for the provisional arrest of an accused to
continue, the formal request for extradition is not required to be filed in
court. It only need be received by the
requested state within the periods provided for by P.D. No. 1069 and the
RP-Hong Kong Extradition Agreement. By
no stretch of imagination may we infer from the required receipt of the request
for extradition and its accompanying documents, the additional requisite that
the same be filed in the court within the same periods.
Third.
The request for provisional arrest of respondent and its accompanying
documents are valid despite lack of authentication.
Section 20(b) of
P.D. No. 1069 reads as follows:
(b) A request for
provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post
or telegraph.
and Article 11(1) of the RP-Hong Kong Extradition Agreement provides in
part that:
x x x. The application for provisional arrest shall contain an
indication of intention to request the
surrender of the person sought and the text of a warrant of arrest or a judgment
of conviction against that person, a statement of the penalty for that offense,
and such further information, if any, as would be necessary to justify the
issue of a warrant of arrest had the offense been committed, or the person
convicted, within the jurisdiction of the requested Party.
The language of
the abovequoted provisions is clear.
There is no requirement for the authentication of a request for
provisional arrest and its accompanying documents.
We also note
that under Section 20(d) of P.D. No. 1069, viz:
(d) If within a period of 20 days after the request for
provisional arrest the Secretary of
Foreign Affairs has not received the request for extradition and the
documents mentioned in Section 4 of this Decree,[26] the accused shall be
released from custody.[27]
the original or authenticated copies of the decision or sentence imposed
upon the accused by the requesting state or the criminal charge and the warrant
of arrest issued by the authority of the requesting state, need not accompany
the request for provisional arrest and may, in fact, be transmitted after the
said request has already been received by the requested state.
Furthermore, the
pertinent provision of the RP-Hong Kong Extradition Agreement enumerates the
documents that must accompany the request, as follows: (1) an indication of the intention to
request the surrender of the person sought; (2) the text of a warrant of arrest
or judgment of conviction against that person; (3) a statement of penalty for
that offense; and (4) such further information as would justify the issue of a
warrant of arrest had the offense been committed, or the person convicted,
within the jurisdiction of the requested party.[28] That the enumeration does not
specify that these documents must be authenticated copies, is not a mere
omission of law. This may be gleaned from the fact that while Article 11(1)
does not require the accompanying documents of a request for provisional
arrest to be authenticated, Article 9 of the same Extradition Agreement
makes authentication a requisite for admission in evidence of any document
accompanying a request for surrender or extradition.[29] In other words, authentication is
required for the request for surrender or extradition but not for the
request for provisional arrest.
We must also
state that the above mentioned provisions of P.D. No. 1069 and the RP-Hong Kong
Extradition Agreement, as they are worded, serve the purpose sought to be
achieved by treaty stipulations for provisional arrest.
The process of
preparing a formal request for extradition and its accompanying documents, and
transmitting them through diplomatic channels, is not only time-consuming but
also leakage-prone. There is naturally
a great likelihood of flight by criminals who get an intimation of the pending
request for their extradition. To solve
this problem, speedier initial steps in the form of treaty stipulations for
provisional arrest were formulated.[30] Thus, it is an accepted practice
for the requesting state to rush its request in the form of a telex or
diplomatic cable, the practicality of the use of which is conceded.[31] Even our own Extradition Law (P.D.
No. 1069) allows the transmission of a request for provisional arrest via telegraph.[32] In the advent of modern technology,
the telegraph or cable have been conveniently replaced by the facsimile
machine. Therefore, the transmission by the Hong Kong DOJ of the request for
respondent’s provisional arrest and the accompanying documents, namely, a copy
of the warrant of arrest against respondent, a summary of the facts of the case
against him, particulars of his birth and address, a statement of the intention
to request his provisional arrest and the reason therefor, by fax machine, more
than serves this purpose of expediency.
Respondent’s
reliance on Garvida v. Sales, Jr.[33] is misplaced. The proscription against the admission of a
pleading that has been transmitted by facsimile machine has no application in
the case at bar for obvious reasons.
First, the instant case does not involve a pleading; and second, unlike
the COMELEC Rules of Procedure which do not sanction the filing of a pleading
by means of a facsimile machine, P.D. No. 1069 and the RP Hong Kong Extradition
Agreement do not prohibit the transmission of a request for provisional arrest
by means of a fax machine.
In a futile
attempt to convince this Court, respondent cites our ruling in the recent case
of Secretary of Justice v. Hon. Lantion, et al.[34], where we held that the right of an extraditee to due
process necessarily includes the right to be furnished with copies of the
extradition request and supporting papers, and to file a comment thereto during
the evaluation stage of the extradition proceedings.
Respondent
posits that, in the same vein, the admission by the RTC of the request for
provisional arrest and its supporting documents despite lack of authentication
is a violation of the respondent’s right to due process. This contention fails to impress us.
Respondent’s
contention is now a non-issue, in view of our Resolution dated October 17, 2000
in the said case of Secretary of Justice v. Hon. Lantion, et al.
reconsidering and reversing our earlier decision therein. Acting on therein petitioner’s Motion for
Reconsideration, we held that therein respondent is bereft of the right to
notice and hearing during the evaluation stage of the extradition process.[35] Worthy to reiterate is the
following concluding pronouncement of this Court in the said case:[36]
In tilting the balance in favor
of the interests of the State, the Court stresses that it is not ruling that
the private respondent has no right to due process at all throughout the length
and breath of the extrajudicial proceedings. Procedural due process
requires a determination of what process is due, when it is due and the degree
of what is due. Stated otherwise, a
prior determination should be made as to whether procedural protections are at
all due and when they are due, which in turn depends on the extent to which an
individual will be ‘condemned to suffer grievous loss.’[37] We have explained why an extraditee has no right to notice
and hearing during the evaluation stage of the extradition process. As aforesaid, P.D. 1069 xxx affords an
extraditee sufficient opportunity to meet the evidence against him once
the petition is filed in court. The
time for the extraditee to know the basis of the request for his
extradition is merely moved to the filing in court of the formal
petition for extradition. The
extraditee’s right to know is momentarily withheld during the evaluation
stage of the extradition process to accommodate the more compelling
interest of the State to prevent escape of potential extraditees which can be
precipitated by premature information of the basis of the request for his
extradition. No less compelling at
that stage of the extradition proceedings is the need to be more
deferential to the judgment of a co-equal branch of the government, the
Executive, which has been endowed by our Constitution with greater power over
matters involving our foreign relations.
Needless to state, this balance of interests is not a static but a
moving balance which can be adjusted as the extradition process moves from
the administrative stage to the judicial stage and to the execution stage
depending on factors that will come into play.
In sum, we rule that the temporary hold on private respondent’s
privilege of notice and hearing is a soft restraint on his right to due
process which will not deprive him of fundamental fairness should he
decide to resist the request for his extradition to the United States. There is no denial of due process as long
as fundamental fairness is assured a party.
Respondent also
contends that the request for his provisional arrest was rendered defective by
the fact that the person who made the request was not a foreign diplomat as
provided for in Section 4 (2) of P.D. No. 1069, to wit:
SEC. 4. Request; By Whom Made; Requirements.-
(1) Any foreign state or government
with which the Republic of the Philippines has entered into extradition treaty
or convention, and only when the relevant treaty or convention, remains in
force, may request for the extradition of any accused who is suspected
of being in the territorial jurisdiction of the Philippines.
(2) The request shall be made by
the Foreign Diplomat of the requesting state or government, addressed to the
Secretary of Foreign Affairs, x x x.
This contention
deserves scant consideration. The
foregoing refers to the requirements for a request for extradition and not
for a request for provisional arrest.
The pertinent provisions are Article 11(2) which states:
An application for provisional
arrest may be forwarded through the same channels as a request for surrender
or through the International Criminal Police Organization (INTERPOL);[38]
and Article 8(1) which provides:
Requests for surrender and related
documents shall be conveyed through the appropriate authority as may be
notified from time to time by one party to another.[39]
Hence, there is
sufficient compliance with the foregoing if the request for provisional arrest
is made by an official who is authorized by the government of the requesting
state to make such a request and the authorization is communicated to the
requested state.
The request for
provisional arrest of respondent was signed by Wayne Walsh, Senior Government
Counsel of the Mutual Legal Assistance Unit, International Law Division of the
Hong Kong DOJ who stated in categorical terms that:
The Department of Justice (Mutual
Legal Assistance Unit) of the HKSAR is the appropriate authority under the
Agreement to make requests for provisional arrest and surrender. I confirm that as a member of the Mutual
Legal Assistance Unit, I am authorized (sic) to make this request for
provisional arrest.[40]
Last.
There was sufficient factual and legal basis for the determination of
probable cause as a requisite for the issuance of the Order of Arrest.[41]
We have defined
probable cause for the issuance of a warrant of arrest as “the existence of
such facts and circumstances that would lead a reasonably discreet and prudent
person to believe that an offense has been committed by the person sought to be
arrested.”[42] The determination of probable cause
is a function of the Judge. Such is the
mandate of our Constitution which provides that a warrant of arrest shall issue
only 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.[43] In the case of Allado v. Diokno,[44] we stated that personal
determination by the Judge of the existence of probable cause means that he -
(a) shall personally evaluate the
report and the supporting documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof, issue a warrant of
arrest; or, (b) if on the basis thereof he finds no probable cause, may
disregard the fiscal’s report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion on the existence
of probable cause.[45]
The Judge
cannot, therefore, merely rely on the certification issued by the
prosecutor. He is, however, not
required to personally examine ipso facto the complainant and his
witnesses. He sufficiently complies
with the requirement of personal determination if he reviews the information
and the documents attached thereto, and on the basis thereof forms a belief
that the accused is probably guilty of the crime with which he is being
charged.[46] The Judge determines the existence
of probable cause to pass upon whether a warrant of arrest should be issued
against the accused, that is, whether there is a necessity for placing him
under immediate custody in order not to frustrate the ends of justice.[47]
The request for
the respondent’s provisional arrest was accompanied by facsimile copies of the outstanding
warrant of arrest issued by the Hong Kong government, a summary of the facts of
the case against respondent, particulars of his birth and address, an intention
to request his provisional arrest and the reason therefor. The said documents were appended to the
application for respondent’s provisional arrest filed in the RTC,[48] and formed the basis of the judge’s
finding of probable cause for the issuance of the warrant of arrest against
respondent.
Respondent
alleges the contrary and surmises that all that the trial judge did was to
interview NBI agent Saunar who filed the application for the issuance of the
warrant of provisional arrest, and that “her honor did not probably even notice
that the supporting documents were not authenticated.”[49] The allegation, baseless and purely
speculative, is one which we cannot countenance in view of the legal
presumption that official duty has been regularly performed.[50]
That the
Presiding Judge of RTC Manila, Branch 19, made a personal determination of the
existence of probable cause on the basis of the documents forwarded by the Hong
Kong DOJ is further supported by the Order of Arrest against respondent which
states:
ORDER
This treats of the Application For
Provisional Arrest of Juan Antonio Muñoz, for the purpose of extradition from
the Republic of the Philippines.
This application was filed in
behalf of the Government of Hong Kong Special Administrative Region for the
provisional arrest of Juan Antonio Muñoz, pursuant to Section 20 of
Presidential Decree No. 1069, in relation to paragraph 1, Article 11 of the
Agreement for the Surrender of Accused and Convicted Persons between the
Republic of the Philippines and Hong Kong on provisional arrest. The application alleged that Juan Antonio
Muñoz is wanted in Hong Kong for seven (7) counts of the offense of “accepting
an advantage as an agent”, contrary to Section 9(1) (9) of the Prevention of
Bribery Ordinance Cap. 201 of Hong Kong and seven (7) counts of the offense of
“conspiracy to defraud”, contrary to the Common Law of Hong Kong.
That a warrant of arrest was
issued by the Magistrate’s Court at Eastern Magistracy, Hong Kong on August 23,
1997, pursuant to the 14 charges filed against him before the issuing
Court. Juan Antonio Muñoz is now alleged
to be in the Philippines. He was born on June 24, 1941, a holder of
Philippines Passport No. 2K 934808, formerly an employee of the Central Bank of
the Philippines and with address at Phase 3, BF Homes, No. 26 D C Chuan Street,
Metro Manila.
That there is an urgency in the
issuance of the provisional arrest warrant for the reason that the application
to discharge the restraint over the funds, subject of the offenses, in his
Citibank Account in Hong Kong was set for hearing on September 17, 1999 and
that his lawyer in Hong Kong will be notified of the request of the Hong Kong
Government for his provisional arrest (sic) and Juan Antonio E. Muñoz upon
knowledge of the request.
Considering that the Extradition
treaty referred to is part of our systems of laws and recognized by
Presidential Decree No. 1069 and the Constitution itself by the adoption of
international laws, treaties and conventions as parts (sic) of the law of the
land, the application for provisional arrest of Juan Antonio Muñoz is hereby
GRANTED. Let a warrant for his
provisional arrest therefore issue.
SO ORDERED.[51] (Underscoring supplied.)
Finally,
petitioner also avers that the respondent has waived his right to assail the
validity of his provisional arrest when
he filed a motion for release on recognizance. Considering that we find petitioner’s other contentions to be
impressed with merit, there is no need to delve further into this particular
issue.
WHEREFORE, the petition is GRANTED, and the
assailed Decision of the Court of Appeals, dated November 9, 1999, in CA-G.R.
SP No. 55343 is hereby REVERSED and SET ASIDE.
Respondent’s “Urgent Motion For Release Pending Appeal” is hereby
DENIED.
SO ORDERED.
Bellosillo,
Mendoza, Quisumbing, and Buena,
JJ., concur.
[1] Penned by Associate Justice
Bernardo Ll. Salas and concurred in by Associate Justices Cancio C. Garcia and
Candido V. Rivera, Third Division, in CA-G.R. SP No. 55343, Rollo,
pp. 32-51.
[2] Penned by Judge Zenaida R.
Daguna in Case No. 99-176691, Id., pp.80-81.
[3] Rollo, p. 55.
[4] Id., p. 54.
[5] Id.,p. 8.
[6] Id., p. 72.
[7] See Note No. 3, supra at
p. 9.
[8] Ibid.
[9] Rollo, p. 38.
[10] Id., p. 42.
[11] Id., p. 41.
[12] Id., p. 48.
[13] Id., p. 49.
[14] See Note No. 3, supra at
p. 4.
[15] Respondent’s Urgent Motion
For Release Pending Appeal, Rollo, p. 94.
[16] Petitioner’s Manifestation
dated December 15, 1999, Rollo, p.110.
[17] See Note No. 3, supra at p. 13.
[18] See Note No. 3, supra at p. 22.
[19] Section
3(a), P.D. No. 1069 provides, viz.:
“A criminal investigation instituted by authorities of the requesting
state or government charging the accused with an offense punishable under the
laws both of the requesting state or government and the Republic of the
Philippines by imprisonment or other form of deprivation of liberty for a
period stipulated in the relevant extradition treaty or convention.”
[20] Bassiouni, International
Extradition United States Law and Practice, Vol. II, 1987 ed., p. 526.
[21] See Note No. 1, supra
at p. 52.
[22] People v. Berg, 79
Phil. 842 (1947).
[23] See Note No. 13, supra at
pp. 96-97.
[24] Respondent’s Urgent
Manifestation/Motion dated December 6, 1999, Rollo, p. 108.
[25] See Note No. 3, supra at
pp. 16-17.
[26] SEC. 4. Request;
By Whom Made; Requirements.-
(1) Any foreign state or government with which the Republic of
the Philippines has entered into extradition treaty or convention, and only
when the relevant treaty or convention, remains in force, may request for the
extradition of any accused who is or suspected of being in the territorial
jurisdiction of the Philippines.
(2) The request shall be made by the Foreign Diplomat of the
requesting state or government, addressed to the Secretary of Foreign Affairs,
and shall be accompanied by:
(a) The original or authentic copy of either-
(1) the decision or sentence imposed upon the accused by the
court of the requesting state or government; or
(2) the criminal charge and the warrant of arrest issued by
the authority of the requesting state or government or having jurisdiction of
the matter or some other instruments having the equivalent legal force.
(b) 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;
(c) 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
(d) Such other documents or information in support of the request.
(Underscoring supplied.)
[27] Underscoring supplied.
[28] Article 11(1) of the
RP-Hong Kong Extradition Agreement.
[29] Article
9(1) of the RP-Hong Kong Extradition Agreement provides, viz.:
“Any document that, in accordance with Article 8 of this Agreement,
accompanies a request for surrender shall be admitted in evidence, if
authenticated, in any proceedings in the jurisdiction of the requested party.”
[30] Shearer, Extradition in
International Law, 1971 Ed., p. 200.
[31] See Note No. 19, supra at
p. 526.
[32] Section
20(b) of P.D. No. 1069 provides, viz.:
“A request for provisional arrest shall be sent to the Director of the
National Bureau of Investigation, Manila, either through the diplomatic
channels or direct by post or telegraph.”
[33] 271 SCRA 767 (1997).
[34] Decision, G.R. No. 139465,
January 18, 2000.
[35] Resolution, G.R. No.
139465, October 17, 2000.
[36] Id., at pp. 14-15.
[37] Morrisey v. Brewer,
408 U.S. 471, 481 (1972), citing Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U.S. 123, 168, 95 L. Ed. 817, 852, 71 S. Ct. 624 (1951)
(Frankfurter, J., Concurring), quoted in Goldberg v. Kelly, 397
U.S. 254, 263, 25 L. Ed. 2d 287, 296, 90 S. Ct. 1011 (1970).
[38] Underscoring supplied.
[39] Underscoring supplied.
[40] See Note No. 4, supra at p. 73.
[41] See Note No. 3, supra
at p. 21.
[42] Allado v. Diokno,
232 SCRA 192, 199-200 (1994); Ho v. People, 280 SCRA 365, 377 (1997).
[43] Section 2, Article III of
the 1987 Philippine Constitution.
[44] Supra.
[45] Id., p. 205.
[46] Ho v. People, supra
at p. 381.
[47] Id., p. 380.
[48] See Note No. 3, supra at
p. 21.
[49] Respondent’s Comment, p.
23.
[50] Factoran v. Court of
Appeals, G.R. No. 93540, December 13, 1999, p. 12, citing Beautifont Inc., v.
Court of Appeals, et. al., 157 SCRA 481, 493 (1988).
[51] Rollo, pp. 80-81.