Monday, June 9, 2008

International Law (The Law on Extradition [Part 2])

Extradition vis-a-vis constitutional rights of individuals

A) Due Process Rights of Notice and Hearing
The seminal case of Secretary of Justice v. Lantion[1] was the first case decided by the Philippine Supreme Court dealing with extradition. This case was bound to be controversial for it involves due process rights of notice and hearing guaranteed by the constitution. The main issue to be resolved in this case was whether or not the private respondent is entitled to notice and hearing during the evaluation stage of the extradition process. The Secretary of Justice for its part argued that such demand for notice and hearing was premature because the Philippine government was still evaluating the American request and no complaint for extradition has yet been filed against the prospective extraditee. The Supreme Court speaking through Justice AR Melo ruled in favor of private respondent. The court in sustaining the two basic due process rights of private respondent, considered the evaluation process akin to an administrative agency conducting an investigative proceeding the consequences of which, according to the court, are essentially criminal. As such jurisprudence dictates that the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Hence, private respondent is entitled to these indispensable basic rights during the evaluation stage of extradition proceedings. However, upon motion for reconsideration the court reversed its previous decision. This time, the court speaking through Mr. Justice Reynato Puno held that extradition is a sui generis proceeding. [2]According to the court, the determination as to whether an individual should be extradited is not a criminal proceeding where a suspect is entitled to all the constitutional rights of an accused. 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. Then the court proceeded to say, that 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. To further support its theory the court cited the differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceeding 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 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.
This latest pronouncement of the court signifies the intention of the Philippine government to comply with its treaty obligations under international law. Obviously, the court is confronted with a very delicate situation involving two equally important competing interests, and that is, citizen’s basic rights of due process vis a vis ironclad duties under a treaty. The court in tilting the balance in favor of the interests of the State, had this to say, “ 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 extradites which can be precipitated by premature information of the basis for his request for extradition. x x x 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.”[3]

B) The Right to Bail
The right to bail flows from the right to be presumed innocent. In general, the right to bail is a constitutional right which properly belongs to the accused in criminal proceedings, utilize as a means to obtain immediate liberty. The constitutional foundation of this right is found under Article III, Section 13 of the 1987 Constitution which states that, "All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable..." From the wordings of the Constitution, it seems that the right to bail only applies to cases which are criminal in nature. Thus, the provision speaks of "before conviction" presupposing conviction in criminal cases and is clearly unavailable in proceedings which are administrative in nature i.e. deportation proceedings. (Tiu Chan v. Board of Deportation, 99 Phil. 1028 [1956]) As discussed above, extradition proceeding is neither criminal nor administrative in nature but a sui generis proceeding meaning, a class of its own. More importantly, extradition involves treaty obligations and commitments with other contracting states thus making it more delicate if not complicated. To settle the issue once and for all, the Supreme Court has taken a hollistic approach to strike the proper balance between two competing interests, the constitutional right to bail of a prospective extraditee and compelling treaty obligations of the State.
In the case of Government of the United States v. Hon. Purganan[4] the court had the occasion to resolve the issue as to whether or not extraditees are entitled to the right to bail and provisional liberty while the extradition proceedings are pending. Private respondent (extraditee) invoked the constitutional provision under the 1987 Constitution, that persons are entitled to bail except those charged with offenses punishable by reclusion perpetua or death when evidence of guilt is strong.[5] The court, in rejecting the claim of private respondent held that said constitutional provision is applicable only in criminal cases but not to extradition proceedings. Again, the court reiterated its pronouncement in the Lantion case that 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.”[6] Equally important, is the pronouncement that the court of the requested state has the discretion to grant or deny bail and that as a rule bail is not a matter of right in extradition cases. But the court enunciated that there are exceptions to this rule if only to serve the ends of justice, (1) once granted bail, the applicant will not be a flight risk or danger to the community; (2) that there exist special, humanitarian and compelling circumstances. Having no statutory basis the applicant bears the burden of proving these exceptions with clarity and precision. Unfortunately, the court exercised its discretion in denying bail to private respondent who considered him as a “flight risk” when he fled the United States after learning of the criminal charges filed against him. However in the recent case of Government of Hong kong v. Olalia (G.R. No. 153675, April 19,2007) the Supreme Court proposed a more stringent standard in determining the right to bail in extradition cases. Thus, culling from the Separate Opinion of then Justice Reynato Puno in Purganan, the court ruled in this wise, "...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 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." What is more significant in the Olalia case is the straightforward ruling of the court extending the right to bail even to proceedings which are not criminal in nature. In justifying its ruling, the court cited inter alia, the age-old case case of US v. Sioco where the right to bail was recognized in a deportation proceeding because "while deportation is not a criminal proceeding, some of the machinery used is the machinery of criminal law." The court also cited relevant customary international laws such as The Universal Declaration of Human Rights and the International Covenant of Civil and Political rights, to further strenghten the right to liberty of individuals against the vast power of the State.

The Supreme Court decisions cited above are considered landmark decisions in Philippine jurisprudence pertaining to extradition. What is more important to note is the fact that the issues involve are issues of paramount importance, a controversy that strikes at the very heart of the nation. True, it is difficult to reconcile conflicting interests especially when constitutional rights of individuals and state’s treaty obligation under international law clash with each other. The usual approach of the Supreme Court when the conflict is irreconcilable and apparent is to apply the so-called “balance- of- interest test.” This approach traditionally applies to freedom of expression cases involving for example, national security matters against improvident exercise of freedom of expression. Obviously the latter right must yield. This test has not found favor with many libertarians because in effect it allows the court to decide what freedom may not be enforced unless they believe it is reasonable to do so.[7] Ironically, the Supreme Court in Lantion used this yardstick in determining what interests should be upheld, whether the constitutional rights of individuals or treaty obligation under international law. This development in Philippine constitutional law must be re-examined in the light of Lantion ruling. It is not difficult to perceive that the court will tend to favor authority by applying the “balancing of interest test” in resolving constitutional issues. This is a dangerous path if left unchecked.
The decision in Lantion enunciating that extradition proceeding is a sui generis one is a clear circumvention of the safeguards enshrined under the Bill of rights. It is a panacea to all constitutional questions pertaining to extradition involving basic due process rights of notice and hearing. It is the contention of this writer that for the sake of preserving the integrity of the constitutional rights embodied in the fundamental law, due process rights of notice and hearing should be recognized even during the evaluation stage of the extradition proceeding. The court in ruling against private respondent failed to discern that extradition is part of the international criminal process whose sole purpose is to punish the guilty. In the same vein, extradition is a sovereign state’s cooperation in the criminal process of another sovereign state. Clearly, extradition is a mechanism or tool of criminal justice in the international scale. Having said this it is hard to agree with the decision of the court that basic rights and safeguards embodied in the bill of rights do not become operative in an extradition proceeding. Likewise, it is a settled principle of constitutional law that within the domain of municipal law, the Constitution is the supreme law of the land. Under the doctrine of incorporation treaties are given a standing equal, and not superior to national legislative enactments. In fact in the case of Philip Morris, Inc v. Court of Appeals[8] the Philippine Supreme Court ruled that the fact that international law has been made part of the law of the land does not by any means imply the primacy of the international law over the national law in the municipal sphere. Clearly therefore, extradition treaty as domestic law cannot be superior to the Constitution. In interpreting provisions of a treaty one cannot depart from the constraints and limitations of the Constitution by saying, like in the case of extradition, that extradition rules are sui generis. Finally, the government should always bear in mind that the cherished liberties guaranteed by the Constitution are non-negotiable rights. In the words of Justice Isagani Cruz, “ while authority and liberty must co-exist, the highest function of authority is to exalt liberty.” In light of the recent Olalia case, this writer respectfully posits that the original ruling laid down in Lantion should be reinstated for being in consonance with the libertarian principle of justice.
[1] G.R. No. 139465, January 18, 2000
[2] Secretary of Justice v. Lantion 343 SCRA 377 (2000)
[3] Ibid.
[4] 389 SCRA 623 (2002)
[5] Art.3 sec.3 of the 1987 Constitution
[6] Ibid.
[7] Cruz, Constitutional Law, 2000 ed.
[8] 234 SCRA 576