401 Phil. 752
DE LEON, JR., J.:
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]
(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]
- there was no urgency for the provisional arrest of respondent;
- the municipal law (P.D. No. 1069) subordinates an international agreement (RP-Hongkong Agreement);
- the supporting documents for a request for provisional arrest have to be authenticated;
- there was lack of factual and legal bases in the determination of probable cause; and
- the offense of accepting an advantage as an agent is not an offense under the Anti-Graft and Corrupt Practices Act, as amended.
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]
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]
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.
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]
(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:
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]
(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.
(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.
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.
(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]
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.-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:
(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.
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]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.
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]
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]
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]
(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]
This treats of the Application For Provisional Arrest of Juan Antonio Muñoz, for the purpose of extradition from the Republic of the Philippines.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.
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.)
"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.
(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.[27] Underscoring supplied.
(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.)
"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.
"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).