Government of USA vs Purganan & Jimenez : 148571 : September 24, 2002 : J. Bellosillo's Opinion

SEPARATE OPINION

BELLOSILLO, J.:

While I do not absolutely disagree with the well-reasoned ponencia of Mr. Justice Panganiban, I prefer nevertheless to surf with the reflections of Mr. Justice Puno expressed in his Separate Opinion which, in essence, espouse the balancing of the duty of the State to faithfully comply with its commitments under a treaty on one hand, and its responsibility to protect the fundamental rights of its citizens on the other.

I wish to express some concerns however, particularly the crucial issue of whether a potential extraditee may apply for and be released on bail during the pendency of the extradition proceedings. This to me should not be ignored.

In Northern PR Co. v. North Dakota,[1] Mr. Justice Frankfurter intoned: "The cardinal article of faith of our civilization is the inviolable character of the individual." Thus, fundamental rights and civil liberties, although not unlimited, occupy a place inferior to none in the hierarchy of constitutional values. These are among the most cherished privileges enjoyed by free men, of which it is the sacred duty of the State to maintain and protect against the erosion of possible encroachments, whether minute or extensive, foreign or domestic.

It is lamentable however that the position taken by the Government in the instant case amounts to an unpardonable abdication of the duty of protection which it owes to all within its territory under the expediency of a treaty.

The Government maintains that an extradition court has no power to authorize bail in the absence of any law conferring such power; and that the 1987 Constitution, as well as the Rules of Court, as amended, applies only to persons arrested and detained for violation of Philippine Laws, but not to extradition proceedings in which courts do not render judgments of conviction or acquittal.

The argument is as ingenious as it is fallacious. It is settled that the power to admit to bail exists in extradition proceedings, although as a matter of policy it may only be granted under "exceptional circumstances." This, quintessentially, has been the doctrine advocated in a cavalcade of American cases starting with Wright v. Henkel, 190 US 40 (1902); and worth mentioning, of course, are Paretti v. United States, 112 F.3d 1363 (1977), Bealieu v. Hartigan, 430 F. Supp. 915 (1977), and In re Kirby, et al., 106 F.3d 855(1996); which are also discussed extensively by Mr. Justice Puno.

Apart from these cases, there is likewise a considerable number of authorities which support the general view that the power to admit to bail is a necessary incident of the power to hear and determine cases.[2] In other words, one of the inherent powers of the judiciary with regard to proceedings before it has been the admission of a prisoner to bail where, in the exercise of his discretion, the judge deems it advisable. A fortiori, even in the absence of express statutory grant of authority to courts, judicial power to admit to bail parties properly within their jurisdiction must be deemed to exist. It must be mentioned, however, that this authority is not absolute for the Constitution, statutes and the Rules of Court render it readily subject to limitations.

Significantly, both the extradition treaty between the United States and the Philippines, and the Philippine Extradition Law (PD 1069) contain no provision expressly withholding from the courts the power to grant bail. Had the intention of the parties to the treaty been to totally nullify the pre-existing power of the extradition court on the matter of bail, they could have easily provided for it in the treaty. But since they had not done so, it would be reasonable to presume that they had not so intended. Indeed, the treaty fails to even remotely suggest such judicial limitation insisted upon by the Government.

Truly, there is neither logic nor persuasion to the suggestion that bail should only be allowed in criminal cases, or that class of cases where courts must "render judgments of conviction or acquittal." Bail as a remedy is available where there is deprivation of liberty prior or during trial. In the 1909 case of United States v. Go Siaco,[3] akin to the situation confronting us, but involving a deportation proceeding, this Court allowed the potential deportee to post bail although a deportation proceeding is not criminal in nature and there was then no law providing for bail in deportation cases -

x x x x we see no reason why bail should not be allowed in this class of cases. As is said by the Supreme Court, the defendant has committed no crime. In this particular case the defendant was born in this country, has lived here for more than 35 years and is now living here with his mother, a native of the Islands. There is no reason to think that his being at large will be any menace to the people in the locality where he resides, nor is there any reason to believe that his attendance at court abide the judgment which may be entered against him cannot be secured by the giving of bail as in ordinary cases. To refuse him bail is to treat him as a person is treated who has committed the most serious crime known to the law, and while we do not intend to say that this is a criminal proceeding, we do say that some of the machinery used for making the investigation required by Act No. 702 is the machinery of the criminal law, and to it are applicable those provisions of General Orders No. 58, relating to bail.

Were we to adopt the view pressed upon us by the Government, it would restrict the reciprocal operation of the treaty, and create a striking lack of symmetry between the rights of Filipinos subject of extradition and that of American extraditees. Filipino citizens sought to be extradited by the United States government will be absolutely denied of the chance at provisional liberty during the pendency of the extradition proceedings against them; while American fugitives from justice sought to be extradited by the Philippine government could always exercise the right to petition for bail, and consequently, enjoy better chances of avoiding the inconvenience of incarceration during the pendency of the extradition proceedings. Certainly, there is no warrant for the discrimination. The Philippines and the United States dealt with each other as equals. Their extradition treaty discloses the intention that they shall stand on the same footing. The governing principles should always be reciprocity and equality.

We cannot curtail a citizen's right to freedom on speculations and fears where there exist reasonable mechanisms appropriate to address them. To my mind, the risk of flight does not ipso facto call for denying his right to bail. Trial judges must henceforth weigh carefully and judiciously other methods to assure the presence of the accused during the proceedings and right after, when he ought to be deported already. Bail may be set at huge amounts or passports cancelled and hold-departure orders issued or border patrols heightened, in order that the extraditee may not flee from our jurisdiction. In this regard, while I agree that it is the extraditee's burden to prove the least likelihood of flight, the extradition court is also entitled to presume that the executive branch has done all it can to forestall his sudden disappearance. The executive branch cannot plead its helplessness and inutility to defeat the grant of bail to the extraditee.

In any event, all things being equal, the personal circumstances of respondent Jimenez would negate any idea of flight risk. He is a popular, even notorious, fellow whose face is more frequently than others plastered in the tri-media. His stature as representative for a congressional district in Manila makes escape from Philippine jurisdiction not only embarrassing for him but also constitutive of the offense of abandonment of duty. His family and business interests are said to be strategically placed in this country. Indeed, where respondent Jimenez has more to lose from flight, the possibility thereof appears remote and speculative.

Equity especially tilts in favor of respondent Jimenez in light of our ruling in Montano v. Ocampo[4] where we allowed bail to an elected senator of the country who was charged with the capital offenses of murder and frustrated murder. In resolving to grant bail in favor of Senator Montano, this Court took special notice of the accused's official and social standing as senator from which we concluded that flight was remote if not nil despite the capital crimes he had to face. In the same breath, respondent Jimenez is a duly elected Congressman with personal circumstances that will not risk the ignominy of flight, considering further the crimes he is charged with are far less severe and ignoble, since most of them had something to do with election campaign contributions than the seemingly serious indictment for murder and frustrated murder against Senator Montano.

If we grant for the sake of argument that the possibility of flight exists, still respondent Jimenez' detention would be unwarranted by law and the Constitution if the only purpose of the confinement is to eliminate a rare odd of danger that is by no means actual, present and uncontrollable. After all the Government is not powerless to deal with or prevent any threat by measures it has the ways and means to implement. The thought eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in connection with the application for bail of ten (10) communists convicted by a lower court for advocacy of a violent overthrow of the United States Government is pertinent and elucidating in principle -

The Government's alternative contention is that defendants, by misbehavior after conviction, have forfeited their claim to bail. Grave public danger is said to result from what they may be expected to do, in addition to what they have done since their conviction. If I assume that defendants are disposed to commit every opportune disloyal act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted x x x x If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there is a very practical aspect of this application which must not be overlooked or underestimated - that is the disastrous effect on the reputation of American justice if I should now send these men to jail and the full Court later decide that their conviction is invalid. All experience with litigation teaches that existence of a substantial question about a conviction implies a more than negligible risk of reversal. Indeed this experience lies hack of our rule permitting and practice of allowing bail where such questions exist, to avoid the hazard of unjustifiably imprisoning persons with consequent reproach to our system of justice x x x x Risks, of course, are involved in either granting or refusing bail. I am not naive enough to underestimate the troublemaking propensities of the defendants. But, with the Department of Justice alert to the dangers, the worst they can accomplish in the short time it will take to end the litigation is preferable to the possibility of national embarrassment from a celebrated case of unjustified imprisonment of Communist leaders. Under no circumstances must we permit their symbolization of an evil force in the world to be hallowed and glorified by any semblance of martyrdom. The way to avoid that risk is not to jail these men until it is finally decided that they should stay jailed.

If the commentary is not comparable with ours on the issues presented, its underlying principle is of universal application. If only to preserve our regime of civil liberties and stem a precedent where bail is unscrupulously disallowed, respondent Jimennez may be placed under the surveillance of the authorities or their agents in such form and manner as may be deemed adequate to insure that he will be available anytime when the Government is ready to extradite him, although the surveillance should be reasonable and the question of reasonableness should be submitted to the court a quo for remedial measures in case of abuse. He may also be required to put up a bond with sufficient surety or sureties to ensure that his extradition is not thwarted.

In our society - and even in the United States, I am sure - freedom from bodily restraint has always been at the core of the civil liberties protected by the Constitution. To unduly sacrifice the civil liberties of an individual by reason of an unfounded fear of being unable to fulfill treaty obligations, would be to render impotent the ideals of the dignity of the human person, thereby destroying something of what is noble in our way of life. Certainly, if civil liberties may be safely respected without imminently or actually impairing faithful compliance with treaty obligations, as in this case, then there is no valid reason for disregarding them.

I wish to emphasize, however, lest the best of my intentions be misconstrued, that it is not my purpose here to encourage, much less foment, dishonor of the treaty duly entered into by our Government. By all means we have to fulfill all our international commitments, for they are not mere moral obligations to be enforced at the whims and caprices of the State. They create legally binding obligations founded on the generally accepted principle in international law of pacta sunt servanda which has been adopted as part of the law of our land. But, in so doing, we must be ever conscious of the need to balance in one equation our commitments under the treaty, and the equally important right of the individual to freedom from unnecessary restraint.

As the vast powers and enormous resources of both the United States of America and the Republic of the Philippines are marshalled against a puny individual that is respondent Jimenez, he is certainly entitled to some measure of protection to ensure that no unwarranted intrusions or undue curtailment of his liberty is committed.

I vote to REMAND the petition to the court a quo to ensure that proper safeguards are afforded respondent in the course of the extradition proceedings.