Lecture before the Integrated Bar of the Philippines 9th National Convention, PICC Manila 23 May 2003 MCLE

Session 5 (Cluster A)

EXTRADITION LAWS AND TREATIES

Raul C. Pangalangan Dean, U.P. College of Law
I. International Sources of State Obligations Statute of the International Court of Justice, art. 38 (Sources of Law) (a) international conventions, or treaties; (b) international custom, as evidence of a general practice accepted as law; (c) general principles of law recognized by civilized nations. 1969 Vienna Convention on the Law of Treaties Pacta sunt servanda. Every treaty in force is binding upon the parties to it and must be performed by them in good faith. (art. 26) Good faith obligation for treaties signed but not ratified. Prior to the entry into force of a treaty, a State must refrain from acts that would defeat the object and purpose of the treaty. (art. 18) Internal law. A party may not invoke its internal law as justification for its failure to perform a treaty. (art. 27). II. Context of Discussion: Recent International Developments Availability of Head of State Immunity vis--vis Human Rights Violations Decision of the High Court of Justice for England and Wales (28 October 1998); Judgment in the Bow Street Magistrates Court, The Kingdom of Spain v. Augusto Pinochet Ugarte (8 October 1999); Decision of the High Court of Justice for England and Wales, R. v. Secretary of State for Home Department, ex parte The Kingdom of Belgium (15 February 2000). Pinochet, former dictator of Chile and at the time of his arrest Senator-for-life in Chile entitled to immunities, was in London for medical care. Spain sought his extradition, under an Extradition Treaty with the UK, for charges of torture alleged to have been committed by Pinochet against Spanish nationals in Chile. He raised the defense of Head of State immunity and sovereign immunity. Prosecutor v. Slobodan Milosevic et al., Indictment for Crimes Against Humanity And Violations Of The Laws Or Customs Of War, (International Criminal Tribunal for Yugoslavia, The Hague, The Netherlands) (Louise Arbour, Prosecutor, 22 May 1999). Milosevic was the President of the Republic of Serbia during the ethnic wars in the former Yugoslavia, leading to genocidal attacks against whole populations. He was surrendered to the jurisdiction of the Yugoslavia War Crimes Tribunal established by the U.N. Security Council and sitting at The Hague. Head of State immunity was not available as a defense under the ICTY Statute.

Measures of Judicial Cooperation; Mutual Respect for Judicial Systems Rome Statute of the International Criminal Court (signed by the Philippine President in December 2000, not yet ratified by the Philippine Senate). Measures of judicial cooperation include the mutual obligation of arrest and surrender of accused. Preclude international jurisdiction unless national jurisdictions are unable or unwilling to prosecute. See In re Nkatirutimana (warrant issued by the International Criminal Tribunal for Rwanda was initially rejected by a U.S. federal court for failing to meet U.S. constitutional requirements for valid arrest). The European Warrant of Arrest. The members of the European Union have recently agreed to enable national courts to have their warrants of arrest automatically recognized and enforced in the jurisdictions of other member states. But see, e.g. DOJ Opinion No. 218, s. 1950 (Sec. Jose P. Bengzon). The DOJ critiqued a US proposal to exclude from a proposed extradition treaty US nationals indicted in the Philippines for crimes committed during the Japanese Occupation as guerilla officers because Philippine courts might fail to understand or appreciate the motivations of American guerilla officers who ordered the liquidation of certain individuals deemed inimical to the cause. The DOJ said: This impression is derogatory to the integrity and ability of the judges presiding the courts of the Philippines and reflects upon the capacity of the Filipino people to administer justice. Pacificador v. Canada (Minister of Justice). Rodolfo Pacificador, Applicant and The Minister of Justice for Canada, Respondent, 1999CarswellOnt 117 (18 January 1999); Pacificador v. Canada (Minister of Citizenship and Immigration). Rodolfo Pacificador (Applicant) and The Minister of Citizenship and Immigration (Respondent), 2001 CarswellNat 934 (2 May 2001). The Philippines sought the extradition of the Applicant, who was charged in the Philippines with the murder of Evelio Javier. The Applicant claimed that if extradited, his prosecution will be for purely political motives, and that the Philippine judicial system cannot grant him a fair trial or ensure his safety. He also applied for refugee status. Canada did not agree that the prosecution was not politically motivated, and determined that a prima facie case existed against him. Canada however sought, and received, assurances from the Philippines that he will not face the death penalty if convicted. III. Constitutional Law Framework for Municipal Law Enforcement of Treaty Obligations Existing Extradition Treaties between the Philippines and Other Countries 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Indonesia (1976); Thailand (1984); Australia (1991); Canada (1990); Korea (1993); Micronesia (1994); Switzerland (1997); United States (1996); Hong Kong (1997); and China (2001).

Constitutional Provisions

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Incorporation Clause (Const. art. II 2): The Philippines adopts the generally accepted principles of international law as part of the law of the land .

Treaty Ratification Clause (Const. art. VII 21): No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of the Members of the Senate. Justiceability (Const. art. VIII 5.2.) The Supreme Court shall have the [power to review] All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, . is in question. Secretary of Justice v. Hon. Lantion, 322 SCRA 160 (January 2000). The process for evaluating an extradition request is akin to a criminal investigation, the consequences of which are essentially criminal since such technical assessment commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. The notice and hearing requirements of administrative due process must therefore apply. Secretary of Justice v. Hon. Lantion (on Motion for Reconsideration), 343 SCRA 377 (October 2000). Extradition proceeding is sui generis. It is not a criminal proceeding, and does not determine the guilt or innocence of an accused. Constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee. The accused is not entitled to the right to notice and hearing during the evaluation stage of an extradition process. Government of the United States v. Hon. Purganan, G.R. 148571 (On Motion for Reconsideration) (December 2002), Vitug, J., dissenting. International law principles are incorporated merely as statute law and do not rise to the level of the Constitution. Treaty obligations are therefore subordinate to the Constitution. See also Abbas v. COMELEC. In the eyes of municipal law, a treaty is a legislative act, and has the status of law. As such, it can be amended by subsequent laws and legislative acts. The 1987 Constitution has superseded the Tripoli Agreement, and moreover, is not a mere statute. Treaties are subject to the separation of powers. (a) The executive branch negotiates and SIGNS the treaty. Secretary of Justice v. Hon. Lantion (on Motion for Reconsideration), supra. The Court emphasizes the primacy of the executive branch and of the President in foreign relations, and the need to give effect to the object and purpose of the Extradition treaty. (b) The legislative branch RATIFIES the treaty (by 2/3 of the Senate, under Const. art. VII 21). See also Guerreros Transport v. Blaylock (treaty ratification partakes of a legislative act, whereby a treaty becomes effective as municipal law for the people to observe) But see Tolentino v. Secretary of Finance (not the exercise of legislative power but only a check on the executive power)

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(c) The judicial branch reviews the constitutionality of the treaty. Even after ratification, the Supreme Court has the power of judicial review over the constitutionality of any treaty, international or executive agreement (Const. art. VIII 5.2.a), and must hear such cases en banc (4.2). See Taada v. Angara, upholding the validity of the Senate ratification of the WTO.

IV. Philippine Interpretation of Extradition Treaty Obligations General Considerations Philippine Extradition Law, PD 1069 (Prescribing the Procedure for the Extradition of Persons who may have committed crimes in a Foreign Country) (1977). DOJ Opinion No. 216 s. 1988 (Sec. Sedfrey Ordonez). Absent a valid extradition with Austria, there is no legal basis for the extradition of an Austrian citizen with pending charges before an Austrian court. But see DOJ Opinion 072, s. 1959 (Sec. Jesus G. Barrera). Since the Philippines had no extradition treaty at that time, we can request extradition only on the basis of international comity. DOJ Opinion No. 20 s. 1978 (Sec. Vicente Abad Santos). Demonstrates the need for an extradition treaty. Request for extradition by Government of the Northern Mariana Islands. DOJ said that accused cannot be arrested or detained without due process of law, and that Philippine law guarantees that he can be arrested only for crimes committed in Philippine territory (under the principle of territoriality). RPG denies any customary law obligation imposing the duty to extradite. Right to bail Government of the United States v. Hon. Purganan, G.R. No.148571 (September 2002 and December 2002). The constitutional right to bail is available only in criminal proceedings, but not in extradition proceedings because these are not criminal in nature. DOJ Opinion No. 156 s. 1998 (Sec. Serafin Cuevas). Red Notice by Interpol is issued by the Interpol on the basis of a valid national warrant of arrest or court decision, and allows the warrant to be circulated worldwide with a request that the wanted person be arrested with a view to extradition. Valid basis for request for provisional arrest, provided there is an existing extradition treaty with the state that requested the Red Notice. See also Defensor-Santiago, Procedural Aspects of the Political Offence Doctrine, 51 Phil. L.J. 238 (July 1976). Political Offenses DOJ Opinion No. 128 s. 1986 (Sec. Neptali Gonzales). In applying the political offense exception, the state of asylum or refuge is granted the sovereign right to decide according to its municipal law and practice whether or not an offense is political (see DEFENSOR-SANTIAGO, POLITICAL OFFENCES IN INTERNATIONAL LAW (1977)). Proposed that, in the pending RP-Australia Extradition Treaty, the determination of whether extradition will be granted or denied should be made in accordance with the law of the requested state. RP objected to a provision that requested state may refuse on humanitarian grounds (age, health or personal circumstances of extraditee). Extraditable Offenses; Double Criminality

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Wright v. Court of Appeals, 235 SCRA 341 (August 1994). The duty to extradite is an intrusion into the territorial integrity of the host state and a delimitation of the sovereign power. The obligation of a state is limited to extraditable offenses designated by treaty. The RP-Australia Extradition Treaty adopts the non-list, double criminality approach. DOJ Opinion No. 128 s. 1986 (Sec. Neptali Gonzales). Preference for conservative type or list type of extradition treaty, so that parties can readily determine extraditable offenses, instead of having to rely on penal laws of parties to determine the applicable penalty (vis--vis the modern type which merely refers to all crimes punishable under both laws with a certain degree of severity (punishable for one year of more). But see DOJ Opinion No. 183 s. 1974 (Sec. Vicente Abad Santos). Preference for general system by which extraditable offenses are defined only in terms of a definite minimum penalty, to avoid the difficulty of formulating catch-all terms or description of offenses satisfactory to both countries with different legal systems. See also DOJ Opinion 154 s. 1972 (Sec. Vicente Abad Santos). Preference for general system Cuevas v. Munoz, 348 SCRA 542 (December 2000). P.D. 1609 requires that the offense be punishable under the laws of both the requesting and the requested state. Retroactive Scope of Extradition Treaty Wright v. Court of Appeals, supra. The application of the Extradition Treaty to offenses committed prior to the Treatys entry into force does not violate the constitutional prohibition against ex post facto laws. The Treaty merely provides for the extradition of persons wanted for prosecution of an offense which was already committed or consummated at the time the treaty was ratified. DOJ Opinion No. 218, s. 1950 (Sec. Jose P. Bengzon). US proposal to exclude US nationals indicted in the Philippines for crimes committed during the Japanese Occupation as guerilla officers because Philippine courts might fail to understand or appreciate the motivations of American guerilla officers who ordered the liquidation of certain individuals deemed inimical to the cause. Specialty Rule Evangelista v. Court of First Instance, 59 Phil. 45 (December 1933) and Evangelista v. Director of Prisons, 59 Phil. 416 (January 1934). An extraditee cannot be punished for an offense other than that for which his extradition had been requested.