Concurring Opinion

Carpio, J:

I concur with the well-written ponencia of Justice Panganiban. I write this concurring opinion to afford extraditees in this country the right to bail, in carefully limited exceptions, under the equity and rule making power of the Court. It is the constitutional duty and power of the Court to protect and enforce the fundamental rights[1] of all persons in this country. This should include, to the extent that the Court can grant under its power, the right of extraditees in this country to avail of the same or similar remedies that courts in the countries of our treaty partners have accorded to their own extraditees.

The right to bail is a constitutional right available to an accused in domestic criminal proceedings except in offenses punishable by reclusion perpetua or higher when evidence of guilt is strong.[2] An extraditee, however, cannot invoke this constitutional right in international extradition because extradition proceedings are not criminal proceedings. Extradition proceedings are like deportation and court martial proceedings where there is no constitutional right to bail.

Thus, in the leading case of Ong See Hang v. Commissioner of Immigration,[3] the Court held that:

“The right to bail guaranteed by the Constitution may not be invoked in favor of petitioners-appellees, considering that deportation proceedings do not constitute a criminal action (Lao Tang Bun v. Fabre, 81 Phil. 682; U. S. ex rel. Zapp, et al. v. District Director of Immigration and Naturalization, supra) and the order of deportation is not a punishment for a crime (U. S. v. Go-Siaco, 12 Phil. 490; Mahler v. Eby, 264 U. S. 32), it being merely for the return to his country of an alien who has broken the conditions upon which he could continue to reside within our borders (U. S. v. De los Santos, 33 Phil. 397, Lao Tang Bun v. Fabre, supra).”

This was reiterated in several cases, the most recent being In RE Andrew Harvey v. Santiago,[4] decided under the 1987 Constitution. Here, the Court ruled that:

“The denial by respondent Commissioner of petitioners' release on bail, also challenged by them, was in order because in deportation proceedings, the right to bail is not a matter of right but a matter of discretion on the part of the Commissioner of Immigration and Deportation. Thus, Section 37(e) of the Philippine Immigration Act of 1940 provides that "any alien under arrest in a deportation proceeding may be released under bond or under such other conditions as may be imposed by the Commissioner of Immigration." The use of the word "may" in said provision indicates that the grant of bail is merely permissive and not mandatory on the part of the Commissioner. The exercise of the power is wholly discretionary (Ong Hee Sang vs. Commissioner of Immigration, L-9700, February 28, 1962, 4 SCRA 442). "Neither the Constitution nor Section 69 of the Revised Administrative Code guarantees the right of aliens facing deportation to provisional liberty on bail." (Tiu Chun Hai, et al vs. Deportation Board, 104 Phil. 949 [1958]). As deportation proceedings do not partake of the nature of a criminal action, the constitutional guarantee to bail may not be invoked by aliens in said proceedings (Ong Hee Sang vs. Commissioner of Immigration, supra).”

In Commendador v. de Villa,[5] involving the court martial of military putschists against the Aquino Government, the Court held that:

“We find that the right to bail invoked by the private respondents in G.R. No(s). 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that `the right to a speedy trial is given more emphasis in the military where the right to bail does not exist’.”

The justification for this exception was well explained by the Solicitor General as follows:

`The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail.

Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system.

xxx

National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on “provisional” bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice.’

The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians.”

Finally, in Secretary of Justice v. Lantion,[6] the Court, speaking through Justice Reynato S. Puno, declared that:

“We are not persuaded. 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 especially by one whose extradition papers are still undergoing evaluation. As held by the US Supreme Court in United States v. Galanis:

`An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty.’

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.

As an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not necessarily apply to the former. This we hold for the procedural due process required by a given set of circumstances "must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action." The concept of due process is flexible for "not all situations calling for procedural safeguards call for the same kind of procedure."

Clearly, in this jurisdiction there is no constitutional or statutory right to bail in non-criminal proceedings like in extradition. This doctrine is so well-entrenched in this jurisdiction that there is no need to belabor this point. Courts in the countries of our treaty partners, however, have allowed bail to extraditees in their own countries even in the absence of a constitutional[7] or statutory[8] right to bail. This places our own citizens who face extradition proceedings in this country at a disadvantage in terms of available remedies. The United States, for example, allows bail to extraditees when “special circumstances”[9] are present. Canada also allows bail under a similar rule.[10]

This situation calls for equality in treatment by extending, in carefully limited exceptions, the right to bail to those facing extradition proceedings in this country. Nevertheless, we must insure that we do not cripple the ability of our Executive Department to comply in good faith with our treaty obligations under international law. This requires a calibrated balancing, on the one hand, of the State’s interest in cooperating with our treaty partners in international criminal law enforcement, and on the other hand, of the need to give our own citizens no lesser right and protection than what our treaty partners so zealously provide to their own citizens.

Thus, following the emerging trend in the United States,[11] and guided by our own experience in combating transnational crimes including international terrorism, the Court should rule that our extradition courts may, after the arrest of the extraditee, grant the extraditee bail if he establishes that he does not pose a flight risk or a danger to the community, and there is no other special circumstance that would warrant denial of bail. The burden of proving he is entitled to bail rests on the extraditee because by resisting the extradition to face a fair trial abroad, the extraditee is presumed to be a flight risk. This is why courts have consistently held that the presumption is against bail in extradition cases.[12]

The development of extradition law is still in its infancy in this country. We are fortunate that the present Constitution has empowered the Court to adopt rules to protect and enforce the fundamental rights of the people. In the United States, the grant of bail to extraditees is still largely governed by the 1903 case of Wright v. Henkel, with only the cryptic “special circumstances” as the standard prescribed by the U.S. Supreme Court for extradition courts in the U.S. to follow.[13] The instant case provides the opportunity for this Court to lay down a clear-cut guideline for our own extradition courts to follow. This will insure that our Executive Department can comply promptly with extradition requests as required by the nature of our treaty obligations while at the same time protecting the fundamental rights of our citizens.

In essence, extradition is police assistance extended by a state to arrest a person charged with a crime in another state and surrender him to the authorities of that state. The power to arrest by the assisting state is legitimized by a treaty, which has the force of a statute[14] and forms part of municipal law.[15] The benefit of extradition is the mutual assistance between states in criminal law enforcement across national boundaries. The assisting state acts as an arresting agent and in some jurisdictions the extradition process is mainly an executive function. Even under our extradition treaties, the final decision whether to extradite or not rests with the President of the Philippines, not with the courts.[16] Thus, ordinarily an assisting state does not grant bail to the extraditee whose recourse is to apply for bail before the court of the state where he is charged with a crime. The assisting state, however, for equity considerations may choose to accord bail to the extraditee. One equity consideration is to put extraditees in one country in equal footing with extraditees in the country of the treaty partner. Another equity consideration is to grant the right to bail, in carefully limited exceptions, to preserve and enforce fundamental rights.

This rule will not change the situation for extraditee Mark B. Jimenez in the instant case because Jimenez has failed to establish that he is not a flight risk. Having fled the United States just as he was about to be indicted for several serious crimes, Jimenez is presumed to be a flight risk for extradition purposes in this country. Jimenez has not successfully rebutted this presumption before the extradition court. Jimenez has also refused to honor his agreement with the U.S. Department of Justice, made in August 1998 through his U.S. counsel, to return to the United States[17] where he faces a maximum prison term of not less than 100 years if convicted on all counts.[18] Given his resources, and the gravity of the charges against him, Jimenez remains a serious flight risk.

The “special circumstances” that Jimenez has alleged do not inspire confidence that he will not likely flee. Jimenez claims that he has been admitted to the Witness Protection Program which shows his lack of intent to flee. The Department of Justice, however, has disowned issuing to Jimenez a Certificate of Admission to the Witness Protection Program. The Department of Justice should know who have been admitted to the Witness Protection Program because the Department itself administers the Program. Under the Witness Protection, Security and Benefit Act, the issuance of the Certificate of Admission is the operative act that establishes admission to the Program.[19] Unless he can present a Certificate of Admission, Jimenez’s claim should be rejected, and even taken as an act of misrepresentation to the extradition court, in view of the statement by the Department of Justice that there is no record of Jimenez’s admission to the Program.[20]

For the same reason, Jimenez’s claim that he is a state witness in the plunder case against ex-President Joseph Estrada, and that “his flight would strip him of (the) immunity he is entitled to,”[21] cannot be given credence. Under the Witness Protection, Security and Benefits Act, the Certificate of Admission is essential to the discharge of the accused and his utilization as a state witness.[22] Without the Certificate of Admission, Jimenez is not entitled to immunity under the Program.[23] The Department of Justice will issue the Certificate of Admission only if it is satisfied with the proposed testimony of the witness as disclosed in his sworn statement. Since until now the Department of Justice has not issued a Certificate of Admission to Jimenez, it could mean that the Department is either not satisfied with what Jimenez is bargaining to testify against ex-President Joseph Estrada, or that Jimenez may not be the least guilty.[24] Unless Jimenez presents to the extradition court the Certificate of Admission, and this he has not done, Jimenez’s claim of being a state witness against ex-President Estrada is baseless and self-serving.

Jimenez claims that the Department of Justice knows his whereabouts because he is under 24-hour PNP protection. Jimenez asserts in his Sworn Statement[25] that the Department of Justice has provided him police protection because he “was admitted into the Witness Protection Program of the DOJ on 2 March 2001.” This is patently false. The Department of Justice states that there is no record of Jimenez’s admission to the Witness Protection Program. Jimenez has not presented a Certificate of Admission to the Program which under the Witness Protection, Security and Benefits Act would entitle him to the benefits, protection and immunities of the Program.

That Jimenez enjoys the privilege of a 24-hour PNP security detail does not establish that he is a state witness under the Witness Protection Program. As a member of the House of Representatives, Jimenez may have requested the PNP to provide him a security detail for his own benefit and protection. In such a case, the PNP security detail takes instructions from Jimenez and not from the Department of Justice. The 24-hour PNP security detail would hardly be effective in preventing Jimenez from fleeing the country.

The other “special circumstances” alleged by Jimenez, like his seven children residing in the Philippines, and his lack of visas to travel to other countries, deserve scant consideration. Considering his age, Jimenez’s seven children are all probably of age by now, and even if they are all still minors, they would hardly become public charges if left behind in the Philippines. The lack of visas has never deterred the flight of fugitives from any country. Besides, any Filipino can travel to any of our nine ASEAN neighbors without need of a visa.

Accordingly, I vote to grant the petition.

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[1] Section 5 (5), Article VIII of the Constitution provides as follows: “The Supreme Court shall have the following powers: (1) x x x (5) Promulgate rules concerning the protection and enforcement of constitutional rights, x x x.”

[2] Section 13, Article III of the Constitution.

[3] 4 SCRA 442 (1962).

[4] 162 SCRA 840 (1988).

[5] 200 SCRA 80 (1991).

[6] 343 SCRA 377 (2000).

[7] The Eighth Amendment to the United States Constitution provides: “Excessive bail shall not be required.” The excessive bail clause did not establish a constitutional right to bail. In United States v. Salerno, 481 U.S. 739 (1987), attached as Annex “7”, Memorandum for Private Respondent, the U.S. Supreme Court declared: “The Eighth Amendment addresses pretrial release by providing merely that `[e]xcessive bail shall not be required.’ This Clause, of course, says nothing about whether bail shall be available at all.”

[8] The U.S. Bail Reform Act of 1984 does not grant the right to bail in extradition cases.

[9] Wright v. Henkel, 190 U.S. 40 (1903), attached as Annex “2”, Memorandum for Private Respondent.

[10] Canada v. Pitman, 1986 WL602917 (Ont. H.C.), Supreme Court of Ontario.

[11] Parretti v. United States, 122 F.3d 758 (9^th Cir. 1997), attached as Annex “5”, Memorandum for Private Respondent.

[12] United States v. Lui Kin-Hong, 83 F.3d 523 (1st Cir. 1996), attached as Annex “8”, Memorandum for Private Respondent.

[13] U.S. lower courts have differed in their interpretation of the “special circumstances” standard. See A Recommended Approach to Bail in International Extradition Cases, Jeffrey A. Hall, Michigan Law Review, December, 1987.

[14] La Chemise Lacoste v. Fernandez, 129 SCRA 373 (1984); Ram Singh v. Insular Collector of Customs, 38 Phil. 862. In Secretary of Justice v. Lantion, 322 SCRA 160 (2000), the Court stated: “Accordingly, the principle lex posterior derogat priori takes effect - a treaty may repeal a statute and a statute may repeal a treaty.”

[15] Guerrero’s Transport Services, Inc. v. Blaylock Trans. Services Employees Association-Kilusan, 71 SCRA 621 (1976).

[16] Paragraph 2, Article 2 of the RP-US Extradition Treaty.

[17] Letter dated August 23, 2001 written by Mr. John E. Harris, Director, Office of the International Affairs, U.S. Department of Justice, addressed to Undersecretary Merceditas Gutierrez of the Philippine Department of Justice, attached to Petitioner’s Memorandum.

[18] Page 17, Petition for Certiorari.

[19] Section 11 of R.A. No. 6981 provides as follows: “ x x x If after said examination of said person, his sworn statement and other relevant facts, the Department is satisfied that the requirement of this Act and its implementing rules are complied with, it may admit such person into the Program and issue the corresponding certificate.”

[20] Pages 28-29, Petitioner’s Memorandum.

[21] Page 46, Memorandum for Private Respondent.

[22] Section 12 of R.A. No. 6981 provides as follows: “The certificate of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is not required to include the Witness in the criminal complaint or information and if included therein, to petition the court for his discharge in order that he can be utilized as a state Witness. x x x.”

[23] Section 12 of R.A. No. 6981 provides that “[a]dmission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used x x x.”

[24] Section 10, R.A. No. 6981.

[25] Annex “A-1” of Private Respondent’s Comment.