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On July 1, 1997, Hong Kong reverted back to the People’s Republic of China

Republic of the Philippines and became the Hong Kong Special Administrative Region.
SUPREME COURT
Manila Private respondent Muñoz was charged before the Hong Kong Court with
three (3) counts of the offense of "accepting an advantage as agent," in
EN BANC violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201
of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to
G.R. No. 153675 April 19, 2007p defraud, penalized by the common law of Hong Kong. On August 23, 1997
and October 25, 1999, warrants of arrest were issued against him. If
GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, convicted, he faces a jail term of seven (7) to fourteen (14) years for each
represented by the Philippine Department of Justice, Petitioner, charge.
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUÑOZ, On September 13, 1999, the DOJ received from the Hong Kong Department
Respondents. of Justice a request for the provisional arrest of private respondent. The DOJ
then forwarded the request to the National Bureau of Investigation (NBI)
DECISION which, in turn, filed with the RTC of Manila, Branch 19 an application for the
provisional arrest of private respondent.
SANDOVAL-GUTIERREZ, J.:
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest
For our resolution is the instant Petition for Certiorari under Rule 65 of the against private respondent. That same day, the NBI agents arrested and
1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders detained him.
of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent
Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) On October 14, 1999, private respondent filed with the Court of Appeals a
the Order dated December 20, 2001 allowing Juan Antonio Muñoz, private petition for certiorari, prohibition and mandamus with application for
respondent, to post bail; and (2) the Order dated April 10, 2002 denying the preliminary mandatory injunction and/or writ of habeas corpus questioning
motion to vacate the said Order of December 20, 2001 filed by the the validity of the Order of Arrest.
Government of Hong Kong Special Administrative Region, represented by the
Philippine Department of Justice (DOJ), petitioner. The petition alleges that On November 9, 1999, the Court of Appeals rendered its Decision declaring
both Orders were issued by respondent judge with grave abuse of discretion the Order of Arrest void.
amounting to lack or excess of jurisdiction as there is no provision in the
Constitution granting bail to a potential extraditee. On November 12, 1999, the DOJ filed with this Court a petition for review on
certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court
The facts are: of Appeals be reversed.

On January 30, 1995, the Republic of the Philippines and the then British On December 18, 2000, this Court rendered a Decision granting the petition
Crown Colony of Hong Kong signed an "Agreement for the Surrender of of the DOJ and sustaining the validity of the Order of Arrest against private
Accused and Convicted Persons." It took effect on June 20, 1997. respondent. The Decision became final and executory on April 10, 2001.

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Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special assets of accused, real and personal, be filed with this Court soonest, with the
Administrative Region filed with the RTC of Manila a petition for the condition that if the accused flees from his undertaking, said assets be
extradition of private respondent, docketed as Civil Case No. 99-95733, forfeited in favor of the government and that the corresponding
raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, lien/annotation be noted therein accordingly.
private respondent filed, in the same case,- a petition for bail which was
opposed by petitioner. SO ORDERED.

After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order On December 21, 2001, petitioner filed an urgent motion to vacate the above
denying the petition for bail, holding that there is no Philippine law granting Order, but it was denied by respondent judge in his Order dated April 10,
bail in extradition cases and that private respondent is a high "flight risk." 2002.

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further Hence, the instant petition. Petitioner alleged that the trial court committed
hearing Civil Case No. 99-95733. It was then raffled off to Branch 8 presided grave abuse of discretion amounting to lack or excess of jurisdiction in
by respondent judge. admitting private respondent to bail; that there is nothing in the Constitution
or statutory law providing that a potential extraditee has a right to bail, the
On October 30, 2001, private respondent filed a motion for reconsideration right being limited solely to criminal proceedings.
of the Order denying his application for bail. This was granted by respondent
judge in an Order dated December 20, 2001 allowing private respondent to In his comment on the petition, private respondent maintained that the right
post bail, thus: to bail guaranteed under the Bill of Rights extends to a prospective
extraditee; and that extradition is a harsh process resulting in a prolonged
In conclusion, this Court will not contribute to accused’s further erosion of deprivation of one’s liberty.
civil liberties. The petition for bail is granted subject to the following
conditions: Section 13, Article III of the Constitution provides that the right to bail shall
not be impaired, thus:
1. Bail is set at Php750,000.00 in cash with the condition that accused hereby
undertakes that he will appear and answer the issues raised in these Sec. 13. All persons, except those charged with offenses punishable by
proceedings and will at all times hold himself amenable to orders and reclusion perpetua when evidence of guilt is strong, shall, before conviction,
processes of this Court, will further appear for judgment. If accused fails in be bailable by sufficient sureties, or be released on recognizance as may be
this undertaking, the cash bond will be forfeited in favor of the government; provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not be
2. Accused must surrender his valid passport to this Court; required.

3. The Department of Justice is given immediate notice and discretion of filing Jurisprudence on extradition is but in its infancy in this jurisdiction.
its own motion for hold departure order before this Court even in extradition Nonetheless, this is not the first time that this Court has an occasion to
proceeding; and resolve the question of whether a prospective extraditee may be granted bail.

4. Accused is required to report to the government prosecutors handling this In Government of United States of America v. Hon. Guillermo G. Purganan,
case or if they so desire to the nearest office, at any time and day of the week; Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario
and if they further desire, manifest before this Court to require that all the Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio
2
V. Panganiban, later Chief Justice, held that the constitutional provision on balance the rights of the individual under our fundamental law, on one hand,
bail does not apply to extradition proceedings. It is "available only in criminal and the law on extradition, on the other.
proceedings," thus:
The modern trend in public international law is the primacy placed on the
x x x. As suggested by the use of the word "conviction," the constitutional worth of the individual person and the sanctity of human rights. Slowly, the
provision on bail quoted above, as well as Section 4, Rule 114 of the Rules of recognition that the individual person may properly be a subject of
Court, applies only when a person has been arrested and detained for international law is now taking root. The vulnerable doctrine that the subjects
violation of Philippine criminal laws. It does not apply to extradition of international law are limited only to states was dramatically eroded
proceedings because extradition courts do not render judgments of towards the second half of the past century. For one, the Nuremberg and
conviction or acquittal. Tokyo trials after World War II resulted in the unprecedented spectacle of
individual defendants for acts characterized as violations of the laws of war,
Moreover, the constitutional right to bail "flows from the presumption of crimes against peace, and crimes against humanity. Recently, under the
innocence in favor of every accused who should not be subjected to the loss Nuremberg principle, Serbian leaders have been persecuted for war crimes
of freedom as thereafter he would be entitled to acquittal, unless his guilt be and crimes against humanity committed in the former Yugoslavia. These
proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, significant events show that the individual person is now a valid subject of
September 17, 1971, per Fernando, J., later CJ). It follows that the international law.
constitutional provision on bail will not apply to a case like extradition, where
the presumption of innocence is not at issue. On a more positive note, also after World War II, both international
organizations and states gave recognition and importance to human rights.
The provision in the Constitution stating that the "right to bail shall not be Thus, on December 10, 1948, the United Nations General Assembly adopted
impaired even when the privilege of the writ of habeas corpus is suspended" the Universal Declaration of Human Rights in which the right to life, liberty
does not detract from the rule that the constitutional right to bail is available and all the other fundamental rights of every person were proclaimed. While
only in criminal proceedings. It must be noted that the suspension of the not a treaty, the principles contained in the said Declaration are now
privilege of the writ of habeas corpus finds application "only to persons recognized as customarily binding upon the members of the international
judicially charged for rebellion or offenses inherent in or directly connected community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail
with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in to a prospective deportee, held that under the Constitution,3 the principles
the constitutional provision on bail merely emphasizes the right to bail in set forth in that Declaration are part of the law of the land. In 1966, the UN
criminal proceedings for the aforementioned offenses. It cannot be taken to General Assembly also adopted the International Covenant on Civil and
mean that the right is available even in extradition proceedings that are not Political Rights which the Philippines signed and ratified. Fundamental among
criminal in nature. the rights enshrined therein are the rights of every person to life, liberty, and
due process.
At first glance, the above ruling applies squarely to private respondent’s case.
However, this Court cannot ignore the following trends in international law: The Philippines, along with the other members of the family of nations,
(1) the growing importance of the individual person in public international committed to uphold the fundamental human rights as well as value the
law who, in the 20th century, has gradually attained global recognition; (2) worth and dignity of every person. This commitment is enshrined in Section
the higher value now being given to human rights in the international sphere; II, Article II of our Constitution which provides: "The State values the dignity
(3) the corresponding duty of countries to observe these universal human of every human person and guarantees full respect for human rights." The
rights in fulfilling their treaty obligations; and (4) the duty of this Court to Philippines, therefore, has the responsibility of protecting and promoting the
right of every person to liberty and due process, ensuring that those detained
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or arrested can participate in the proceedings before a court, to enable it to
decide without delay on the legality of the detention and order their release If bail can be granted in deportation cases, we see no justification why it
if justified. In other words, the Philippine authorities are under obligation to should not also be allowed in extradition cases. Likewise, considering that the
make available to every person under detention such remedies which Universal Declaration of Human Rights applies to deportation cases, there is
safeguard their fundamental right to liberty. These remedies include the right no reason why it cannot be invoked in extradition cases. After all, both are
to be admitted to bail. While this Court in Purganan limited the exercise of administrative proceedings where the innocence or guilt of the person
the right to bail to criminal proceedings, however, in light of the various detained is not in issue.
international treaties giving recognition and protection to human rights,
particularly the right to life and liberty, a reexamination of this Court’s ruling Clearly, the right of a prospective extraditee to apply for bail in this
in Purganan is in order. jurisdiction must be viewed in the light of the various treaty obligations of the
Philippines concerning respect for the promotion and protection of human
First, we note that the exercise of the State’s power to deprive an individual rights. Under these treaties, the presumption lies in favor of human liberty.
of his liberty is not necessarily limited to criminal proceedings. Respondents Thus, the Philippines should see to it that the right to liberty of every
in administrative proceedings, such as deportation and quarantine,4 have individual is not impaired.
likewise been detained.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition
Second, to limit bail to criminal proceedings would be to close our eyes to our Law) defines "extradition" as "the removal of an accused from the Philippines
jurisprudential history. Philippine jurisprudence has not limited the exercise with the object of placing him at the disposal of foreign authorities to enable
of the right to bail to criminal proceedings only. This Court has admitted to the requesting state or government to hold him in connection with any
bail persons who are not involved in criminal proceedings. In fact, bail has criminal investigation directed against him or the execution of a penalty
been allowed in this jurisdiction to persons in detention during the pendency imposed on him under the penal or criminal law of the requesting state or
of administrative proceedings, taking into cognizance the obligation of the government."
Philippines under international conventions to uphold human rights.
Extradition has thus been characterized as the right of a foreign power,
The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing created by treaty, to demand the surrender of one accused or convicted of a
deportation for failure to secure the necessary certificate of registration was crime within its territorial jurisdiction, and the correlative duty of the other
granted bail pending his appeal. After noting that the prospective deportee state to surrender him to the demanding state.8 It is not a criminal
had committed no crime, the Court opined that "To refuse him bail is to treat proceeding.9 Even if the potential extraditee is a criminal, an extradition
him as a person who has committed the most serious crime known to law;" proceeding is not by its nature criminal, for it is not punishment for a crime,
and that while deportation is not a criminal proceeding, some of the even though such punishment may follow extradition.10 It is sui generis,
machinery used "is the machinery of criminal law." Thus, the provisions tracing its existence wholly to treaty obligations between different nations.11
relating to bail was applied to deportation proceedings. It is not a trial to determine the guilt or innocence of the potential
extraditee.12 Nor is it a full-blown civil action, but one that is merely
In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 administrative in character.13 Its object is to prevent the escape of a person
this Court ruled that foreign nationals against whom no formal criminal accused or convicted of a crime and to secure his return to the state from
charges have been filed may be released on bail pending the finality of an which he fled, for the purpose of trial or punishment.14
order of deportation. As previously stated, the Court in Mejoff relied upon
the Universal declaration of Human Rights in sustaining the detainee’s right But while extradition is not a criminal proceeding, it is characterized by the
to bail. following: (a) it entails a deprivation of liberty on the part of the potential
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extraditee and (b) the means employed to attain the purpose of extradition bears the onus probandi of showing that he or she is not a flight risk and
is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. should be granted bail.
1069 (The Philippine Extradition Law) which mandates the "immediate arrest
and temporary detention of the accused" if such "will best serve the interest The time-honored principle of pacta sunt servanda demands that the
of justice." We further note that Section 20 allows the requesting state "in Philippines honor its obligations under the Extradition Treaty it entered into
case of urgency" to ask for the "provisional arrest of the accused, pending with the Hong Kong Special Administrative Region. Failure to comply with
receipt of the request for extradition;" and that release from provisional these obligations is a setback in our foreign relations and defeats the purpose
arrest "shall not prejudice re-arrest and extradition of the accused if a request of extradition. However, it does not necessarily mean that in keeping with its
for extradition is received subsequently." treaty obligations, the Philippines should diminish a potential extraditee’s
rights to life, liberty, and due process. More so, where these rights are
Obviously, an extradition proceeding, while ostensibly administrative, bears guaranteed, not only by our Constitution, but also by international
all earmarks of a criminal process. A potential extraditee may be subjected to conventions, to which the Philippines is a party. We should not, therefore,
arrest, to a prolonged restraint of liberty, and forced to transfer to the deprive an extraditee of his right to apply for bail, provided that a certain
demanding state following the proceedings. "Temporary detention" may be standard for the grant is satisfactorily met.
a necessary step in the process of extradition, but the length of time of the
detention should be reasonable. An extradition proceeding being sui generis, the standard of proof required
in granting or denying bail can neither be the proof beyond reasonable doubt
Records show that private respondent was arrested on September 23, 1999, in criminal cases nor the standard of proof of preponderance of evidence in
and remained incarcerated until December 20, 2001, when the trial court civil cases. While administrative in character, the standard of substantial
ordered his admission to bail. In other words, he had been detained for over evidence used in administrative cases cannot likewise apply given the object
two (2) years without having been convicted of any crime. By any standard, of extradition law which is to prevent the prospective extraditee from fleeing
such an extended period of detention is a serious deprivation of his our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice,
fundamental right to liberty. In fact, it was this prolonged deprivation of now Chief Justice Reynato S. Puno, proposed that a new standard which he
liberty which prompted the extradition court to grant him bail. termed "clear and convincing evidence" should be used in granting bail in
extradition cases. According to him, this standard should be lower than proof
While our extradition law does not provide for the grant of bail to an beyond reasonable doubt but higher than preponderance of evidence. The
extraditee, however, there is no provision prohibiting him or her from filing a potential extraditee must prove by "clear and convincing evidence" that he is
motion for bail, a right to due process under the Constitution. not a flight risk and will abide with all the orders and processes of the
extradition court.
The applicable standard of due process, however, should not be the same as
that in criminal proceedings. In the latter, the standard of due process is In this case, there is no showing that private respondent presented evidence
premised on the presumption of innocence of the accused. As Purganan to show that he is not a flight risk. Consequently, this case should be
correctly points out, it is from this major premise that the ancillary remanded to the trial court to determine whether private respondent may
presumption in favor of admitting to bail arises. Bearing in mind the purpose be granted bail on the basis of "clear and convincing evidence."
of extradition proceedings, the premise behind the issuance of the arrest
warrant and the "temporary detention" is the possibility of flight of the WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial
potential extraditee. This is based on the assumption that such extraditee is court to determine whether private respondent is entitled to bail on the basis
a fugitive from justice.15 Given the foregoing, the prospective extraditee thus of "clear and convincing evidence." If not, the trial court should order the

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cancellation of his bail bond and his immediate detention; and thereafter, charges for which he would be tried in Hong Kong due to non-compliance
conduct the extradition proceedings with dispatch. with the double criminality rule. Also being challenged is the resolution
promulgated on May 29, 2013 by the CA (denying the motion for
SO ORDERED reconsideration of the petitioner).5chanrobleslaw

PHILIPPINE SUPREME COURT DECISIONS


EN BANC Antecedents

G.R. No. 207342, August 16, 2016 As factual antecedents, the CA narrated the following:
Bared to its essentials, the record shows that in late 1991, respondent-
GOVERNMENT OF HONGKONG SPECIAL ADMINISTRATIVE REGION, appellant, as Head of the Treasury Department of the Central Bank of the
REPRESENTED BY THE PHILIPPINE DEPARTMENT OF JUSTICE, Petitioner, v. Philippines (CBP), was instructed by its Governor to raise Seven Hundred
JUAN ANTONIO MUNOZ, Respondent. Million US Dollars (US$700M) in order to fund the buyback of Philippine debts
and the purchase of zero coupon US Treasury Bonds. To this end, respondent-
DECISION appellant recommended that the amount be obtained through gold
loans/swaps, for which, seven (7) contracts of about One Hundred Million US
BERSAMIN, J.: Dollars (US$100M) each were to be awarded to certain accredited parties.
Two (2) of these contracts were granted to Mocatta, London. These in turn
This case is the third in the trilogy of cases that started with the 2000 case of were rolled over as they matured, hence, totaling five (5) gold loan/swap
Cuevas v. Muñoz,1 which dealt with respondent Juan Antonio Munoz's agreements in Mocatta, London's favor.
provisional arrest as an extraditee, and the 2007 case of Government of Hong
Kong Special Administrative Region v. Olalia, Jr.,2 which resolved the question In relation to this, petitioner-appellee narrates:
of Muñoz's right to bail as a potential extraditee. Both rulings dealt with and xxxx
resolved incidents arising during the process of having Munoz extradited to
Hong Kong under and pursuant to the Agreement Between the Government 2. At all material times, Mr. Juan Antonio E. MUÑOZ ("MUÑOZ") was the Head
of the Republic of the Philippines and the Government of Hong Kong for the of the Treasury Department of the Central Bank of the Philippines ("CBP"). In
Surrender of Accused and Convicted Persons (RP-HK Agreement). July 1993, CBP changed its name to the Bangko Sentral ng Pilipinas.

Up for our consideration and resolution in the current case is whether or not 3. At all material times, Mr. Ho CHI ("CHI") was the Chief Executive of
the extradition request of the Government of Hong Kong Special Standard Chartered Bank – The Mocatta Group (Hong Kong) ("MHK"), MHK
Administrative Region (HKSAR) sufficiently complied with the RP-HK was a branch of the Mocatta Group in London ("Mocatta London") which was
Agreement and Presidential Decree No. 1069 (Philippine Extradition Law): On a division of the Standard Chartered Bank.
November 28, 2006, the Regional Trial Court (RTC), Branch 8, in Manila
granted the request for the extradition of Muñoz.3 Although the CA at first 4. CBP and MHK had been dealing in small gold transactions for several years
ruled that Munoz could be tried in Hong Kong for the crimes of conspiracy to prior to 1991. During the latter part of 1991, MUÑOZ and CHI began
defraud and accepting an advantage as an agent, it granted his motion for negotiating larger deals up to US$100 M. CBP were (sic) reluctant to deal with
reconsideration and promulgated the now assailed amended decision on MHK for such large amounts and wanted to deal 'directly with Mocatta
March 1, 2013 in CA-G.R. CV No. 88610,4 in which it pronounced that the (London).
crime of accepting an advantage as an agent should be excluded from the
6
5. CHI approached Philip WILSON ("WILSON"), the then Chief Dealer of 14. On 12 October 1993, this US$1,625,000 was transferred to the Sundry
Mocatta (London) about the proposed deals. CHI indicated that to get Creditors Account. Funds from this Sundry Creditors Account were
business it would be necessary for Mocatta (London) to pay rebates to an subsequently disbursed to the benefit of CHI and MUÑOZ personally (xxx).
unnamed group of people at CBP. WILSON told CHI that that was wrong in
principal (sic). CHI, however, approached Keith SMITH, the then Managing xxxx
Director of Mocatta (London), who approved the payments.
15. Apart from the aforesaid, there were other payments made by MHK to
xxxx the Sundry Creditors Account, ostensibly for CBP, namely:
commission on gold location swaps US$227,086.18
6. Between February 1992 to March 1993, there were a series of "gold swaps" commission on silver location swaps US$ 47,524.69
and gold backed loans between CBP (sic) and Mocatta (London) through MHK commission on options US$ 9,750.00
in Hong Kong. The transactions were a means for CBP to raise finance. interest US$ 32,889.61
16. None of the above payments were known to CBP and none of them ever
xxxx reached CBP. Funds from this Sundry Creditors Account were subsequently
disbursed to the benefit of CHI and MUÑOZ personally (x x x).
9. As a result of these transactions, Mocatta (London) paid out rebates of
US$1,703,304.87 to an account ("the Sundry Creditors Account") held with xxxx
MHK for onward transmission by MHK to destinations as instructed by CHI.
Funds from this Sundry Creditors Account were subsequently disbursed to On the other hand, respondent-appellant gives his version, thus:
the benefit of CHI and MUÑOZ personally (x x x).
chanRoblesvirtualLawlibraryx x x the Central Bank executed all these gold
xxxx loan/swap agreements with the same counter party, namely, Mocatta
London. Munoz signed in behalf of the Central Bank while Phil Wilson signed
10. In addition to the gold swaps and the gold backed loans referred to above, for Mocatta London.
there were option agreements created between CBP and MHK. Under an
option agreement, CBP granted a right to MHK to exercise (or not to exercise) xxxx
the option to buy gold at a fixed price on a fixed date.
In late 1992 (around November or December), Munoz received a note from
11. As a result, between 27 July 1992 and 6 May 1993, MHK paid Mocatta London requesting that their accreditation as official counter party
US$4,026,000 into the Sundry Creditors Account, ostensibly for CBP, as of the Central Bank be transferred to Standard Chartered Bank (SCB) in view
premiums for these options, xxx of an ongoing reorganization which will result in Mocatta London being a
mere division of SCB. Before such reorganization, both Mocatta London and
xxxx Mocatta Hong Kong operated as independent subsidiaries of SCB.

13. CHI operated an account at Mocatta Hong Kong, called the MHK No. 3 xxxx
Account, purportedly on behalf of CBP, for trading in gold. Profits from the
trading were accrued to the amount of US$1,625,000. The trading and the As mentioned earlier, the Monetary Board approved the transfer of the
profits were unknown to CBP. accreditation of Mocatta London as authorized counter party of the bank to
SCB sometime in February or March of 1993. Mocatta London became known
7
as SCB-The Mocatta Group, or SCB-The Mocatta Group (sic), or SCB-The Invoking the Agreement Between the Government of the Republic of the
Mocatta Group London, while Mocatta became known as SCB-the Mocatta Philippines and the Government of Hong Kong for the Surrender of Accused
Group Hong Kong. Phil Wilson was the Chief Executive Officer for London, and Convicted Persons (RP-HK Agreement), which was signed in Hong Kong
while Ho Chi was the Chief Executive for Hong Kong. The Group Chief on January 30, 1995, the Hong Kong Special Administrative Region (HKSAR)
Executive Officer was Ron Altringham. sent Note No. SBCR 11/1/2716/80 dated July 9, 1997 to the Philippine
Consulate General in Hong Kong to inquire on which agency of the Philippine
As can be seen in Annex 'C', even with the SCB reorganization, the gold Government should handle a request for extradition under the RP-HK
[loan]/swap agreements continued to be contracted with Mocatta London. Agreement. The Philippine Consulate General replied through Note No. 78-
As shown, both the gold loan/swap agreements dated March 25, 1993 and 97 dated October 16, 1997 that the proper agency was the Department of
June 30, 1993 were signed by Phil Wilson for Mocatta London (SCB-The Justice (DOJ).7 On September 13, 1999, therefore, the DOJ received the
Mocatta Group London). With the accreditation of SCB as the official counter request for the provisional arrest of Muñoz pursuant to Article 11(1) of the
party of the bank, however, CB did allow the dealers to transact minor trading RP-HK Agreement. On September 17, 1999, the National Bureau of
transactions with Mocatta Hong Kong. CB also allowed Mocatta Hong Kong Investigation (NBI), acting for and in behalf of HKSAR, initiated the
to quote on the gold and silver location swaps CB periodically did to proceedings for his arrest in the RTC, whose Branch 19 then issued on
decongest its vaults at the gold plant in Quezon City. The gold swap/loan September 3, 1999 the order granting the application for the provisional
agreements, however, as shown in the Annex, continued to be rolled over arrest of Muñoz. Branch 19 consequently issued the corresponding order of
with Mocatta London. arrest. On October 14, 1999, Muñoz challenged through certiorari,
prohibition and mandamus the validity of the order for his arrest in the CA,
During Muñoz's stay in Treasury at the bank as its Head, he did not involve which declared the order of arrest null and void in its judgment promulgated
himself in the details of work done by the Dealing Group, Treasury Service on November 9, 1999. DOJ Secretary Serafin R. Cuevas consequently
Group (TSG) and Accounting which were all headed by either Director or a appealed the decision of the CA to this Court, which reversed the CA on
Deputy Director who could clarify any issue that may arise, and who consult December 18, 2000 in Cuevas v. Muñoz, 8 disposing:
with him on matters they were unsure. The department had been operational WHEREFORE, the petition is GRANTED, and the assailed Decision of the Court
over 6 years when Muñoz joined, and the Treasury transactions had already of Appeals, dated November 9, 1999, in CA-G.R. SP No. 55343 is hereby
become routine for majority of the staff. Muñoz meet (sic) weekly with senior REVERSED and SET ASIDE. Respondent's "Urgent Motion For Release Pending
officers to inform of development and discuss problems of the department. Appeal" is hereby DENIED.

In respect to the five gold loan/swap agreements with Mocatta London (as SO ORDERED.
well as the agreements contracted with other official counter parties), upon Meantime, on November 22, 1999,9 the DOJ, representing the HKSAR, filed a
the signing of each agreement, a copy of the agreement was forwarded to petition in the RTC for the surrender of Munoz to the HKSAR to face the
the Dealing Group for proper implementation. The Treasury dealers usually criminal charges against him in Hong Kong. He filed a petition for bail. Initially,
coordinated with dealers of the counter party involved in effecting the on October 8, 2001, the RTC, through Presiding Judge Ricardo Bernardo, Jr.
necessary transactions. of Branch 10, denied the petition for bail after hearing on the ground that
These agreements are the subject often (10) criminal cases filed against there was no Philippine law that allowed bail in extradition cases, and that he
respondent-appellant in Hong Kong - i.e., three (3) counts of accepting an was a high "flight risk." But after the case was re-assigned to Branch 8,
advantage as an agent, contrary to Section 9(1) (a) of the Prevention of presided by Judge Felixberto T. Olalia, Jr., following the inhibition of Judge
Bribery Ordinance, Cap. 201 and seven (7) counts of conspiracy to defraud, Bernardo, Jr., Muñoz filed his motion for reconsideration against the denial
contrary to the common law of HKSAR.6 of his petition for bail. Granting the motion for reconsideration on December
20, 2001,10 Judge Olalia, Jr. allowed bail to Muñoz under the conditions
8
stated in the order of that date. Not satisfied, the DOJ assailed the granting our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice,
of bail to Muñoz as a potential extraditee by petition for certiorari directly now Chief Justice Reynato S. Puno, proposed that a new standard which he
filed in this Court. The matter of bail for Muñoz was ultimately settled by the termed "clear and convincing evidence" should be used in granting bail in
Court in Government of Hong Kong Special Administrative Region v. Olalia, extradition cases. According to him, this standard should be lower than proof
Jr., 11viz. : beyond reasonable doubt but higher than preponderance of evidence. The
While our extradition law does not provide for the grant of bail to an potential extraditee must prove by "clear and convincing evidence" that he is
extraditee, however, there is no provision prohibiting him or her from filing a not a flight risk and will abide with all the orders and processes of the
motion for bail, a right to due process under the Constitution. extradition court.

The applicable standard of due process, however, should not be the same as In this case, there is no showing that private respondent presented evidence
that in criminal proceedings. In the latter, the standard of due process is to show that he is not a flight risk. Consequently, this case should be
premised on the presumption of innocence of the accused. As Purganan remanded to the trial court to determine whether private respondent may
correctly points out, it is from this major premise that the ancillary be granted bail on the basis of "clear and convincing evidence."
presumption in favor of admitting to bail arises. Bearing in mind the purpose
of extradition proceedings, the premise behind the issuance of the arrest WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial
warrant and the "temporary detention" is the possibility of flight of the court to determine whether private respondent is entitled to bail on the basis
potential extraditee. This is based on the assumption that such extraditee is of "clear and convincing evidence." If not, the trial court should order the
a fugitive from justice. Given the foregoing, the prospective extraditee thus cancellation of his bail bond and his immediate detention; and thereafter,
bears the onus probandi of showing that he or she is not a flight risk and conduct the extradition proceedings with dispatch.
should be granted bail.
SO ORDERED.12chanroblesvirtuallawlibrary
The time-honored principle of pacta sunt servanda demands that the Eventually, on November 28, 2006, the RTC ruled on the main case of
Philippines honor its obligations under the Extradition Treaty it entered into extradition by holding that the extradition request sufficiently complied with
with the Hong Kong Special Administrative Region. Failure to comply with the RP-HK Agreement and Presidential Decree No. 1069.13chanrobleslaw
these obligations is a setback in our foreign relations and defeats the purpose
of extradition. However, it does not necessarily mean that in keeping with its In due course, Muñoz elevated the adverse decision of November 28, 2006
treaty obligations, the Philippines should diminish a potential extraditee's to the CA upon the following issues, namely: (1) the enforceability of the RP-
rights to life, liberty, and due process. More so, where these rights are HK Agreement, including the HKSAR's personality to institute the petition
guaranteed, not only by our Constitution, but also by international under its current status as a special administrative region; (2) the DOJ's
conventions, to which the Philippines is a party. We should not, therefore, authority to receive the request for extradition and to file the petition despite
deprive an extraditee of his right to apply for bail, provided that a certain Presidential Decree No. 1069 naming the Secretary of Foreign Affairs for that
standard for the grant is satisfactorily met. purpose; (3) the extraditability of the offense, considering the nature of the
crimes charged and the pieces of evidence presented in support of the
An extradition proceeding being sui generis, the standard of proof required petition; and (4) the limits of the jurisdiction of the extradition court, i.e.,
in granting or denying bail can neither be the proof beyond reasonable doubt whether or not it included passing upon the defenses of the person to be
in criminal cases nor the standard of proof of preponderance of evidence in extradited.14chanrobleslaw
civil cases. While administrative in character, the standard of substantial
evidence used in administrative cases cannot likewise apply given the object In its decision promulgated on August 30, 2012,15 the CA opined that
of extradition law which is to prevent the prospective extraditee from fleeing although the People's Republic of China resumed the exercise of jurisdiction
9
over the HKSAR, Article 9616 of the latter's Basic Law still empowered it to agent should be excluded from the charges under which Muñoz would be
enter into international agreements in its own name, including extradition tried due to non-compliance with the double criminality rule.
treaties;17 that despite the exception made in the Joint Declaration of the
Government of the United Kingdom of Great Britain and Northern Ireland and After the HKSAR's motion for reconsideration was denied on May 29, 2013,23
the Government of the People's Republic of China on the Question of Hong it has appealed by petition for review on certiorari.
Kong to the effect that the HKSAR would enjoy a high degree of autonomy,
except in foreign and defense affairs that were the responsibilities of the Issue
Central People's Government, there was a status quo as regards the laws
currently in force in Hong Kong; that Article 153 of the Basic Law explicitly The sole issue raised by the HKSAR relates to the propriety of the CA's
provided that international agreements to which the People's Republic of conclusion that the crime of accepting an advantage as an agent did not
China was not a party but which were implemented in Hong Kong could comply with the double criminality rule.24chanrobleslaw
continue to be implemented in the HKSAR; that an Exchange of Notes
between the Governments of China and the Philippines confirmed the Ruling of the Court
continuous enforceability of the RP-HK Agreement;18 that the DOJ had the
authority to receive the request for extradition by the HKSAR because the RP- Upon thorough consideration, we DENY the petition for review.
Hong Kong Agreement referred to the "appropriate authority" as would be
identified from time to time by one party to the other;19 and that, as such, Extradition is "the surrender by one nation to another of an individual
the reliance by Muñoz on the provision of Presidential Decree No. 1069 that accused or convicted of an offense outside of its own territory, and within the
only the Secretary of Foreign Affairs had the authority to receive requests for territorial jurisdiction of the other, which, being competent to try and to
extradition should be rejected. punish him, demands the surrender."25cralawred It is not- part of customary
international law, although the duty to extradite exists only for some
The CA affirmed the RTC's conclusion that the crimes of conspiracy to defraud international crimes.26 Thus, a state must extradite only when obliged by
and accepting an advantage as an agent were extraditable offenses; that not treaty to do so.27 The right of a state to successfully request the extradition
only was conspiracy to defraud explicitly included in the offenses covered by of a criminal offender arises from a treaty with the requested state.28 Absent
the RP-HK Agreement, but also that both crimes satisfied the double the treaty, the duty to surrender a person who has sought asylum within its
criminality rule, or the principle to the effect that extradition was available boundaries does not inhere in the state, which, if it so wishes, can extend to
only when the act was an offense in the jurisdictions of both parties; and that him a refuge and protection even from the state that he has fled. Indeed, in
it was not for the Philippine court to determine the extent of the criminal granting him asylum, the state commits no breach of international law. But
jurisdiction of the foreign court because entering into questions that were by concluding the treaty, the asylum state imposes limitations on itself,
the prerogative of that other jurisdiction was the function of the assisting because it thereby agrees to do something it was free not to do.29 The
authorities.20chanrobleslaw extradition treaty creates the reciprocal obligation to surrender persons from
the requested state's jurisdiction charged or convicted of certain crimes
On September 14, 2012,21 Muñoz sought the reconsideration of the August committed within the requesting state's territory, and is of the same level as
30, 2012 decision. a law passed by the Legislatures of the respective parties.

On March 1, 2013,22 the CA promulgated its assailed amended decision by Presidential Decree No. 1069 defines the general procedure for the
partially granting Muñoz's motion for reconsideration. Although affirming its extradition of persons who have committed crimes in a foreign country, and
previous ruling, it concluded that the crime of accepting an advantage as an lays down the rules to guide the Executive Department and the courts of the
Philippines on the proper implementation of the extradition treaties to which
10
the country is a signatory. Nevertheless, the particular treaties entered into crime of accepting an advantage as an agent was also punished as a crime in
by the Philippine Government with other countries primarily govern the the Philippines. As such, the applicability of the double criminality rule
relationship between the parties. became the issue.

The RP-HK Agreement is still in full force and effect as an extradition treaty. Under the double criminality rule, the extraditable offense must be criminal
The procedures therein delineated regulate the rights and obligations of the under the laws of both the requesting and the requested states".37 This
Republic of the Philippines and the HKSAR under the treaty in the handling of simply means that the requested state comes under no obligation to
extradition requests. surrender the person if its laws do not regard the conduct covered by the
request for extradition as criminal.38chanrobleslaw
For purposes of the extradition of Munoz, the HKSAR as the requesting state
must establish the following six elements,30 namely: (1) there must be an The HKS AR defines the crime of accepting an advantage as an agent under
extradition treaty in force between the HKSAR and the Philippines; (2) the Section 9(1)(a) of the Prevention of Bribery Ordinance (POBO), Cap. 201,39
criminal charges that are pending in the HKSAR against the person to be to wit:
extradited;31 (3) the crimes for which the person to be extradited is charged Section 9. Corrupt transactions with agents.
are extraditable within the terms of the treaty;32 (4) the individual before the
court is the same person charged in the HKSAR;33 (5) the evidence submitted (1) Any agent who, without lawful authority or reasonable excuse, solicits or
establishes probable cause to believe that the person to be extradited accepts any advantage as an inducement to or reward for or otherwise on
committed the offenses charged;34 and (6) the offenses are criminal in both account of his –
the HKSAR and the Philippines (double criminality rule).
(a) doing or forbearing to do, or having done or forborne to do, any act in
The first five of the elements inarguably obtain herein, as both the RTC and relation to his principal's affairs or business; or
the CA found. To start with, the RP-Hong Kong Agreement subsists and has
not been revoked or terminated by either parties. Secondly, there have been xxxx
10 criminal cases filed against Muñoz in Hong Kong, specifically: three counts A perusal of the decision of the RTC and the original decision of the CA show
of accepting an advantage as an agent and seven counts of conspiracy to that said courts determined that the crime of accepting an advantage as an
defraud 35 Thirdly, the crimes of accepting an advantage as an agent and of agent was analogous to the crime of corrupt practices of public officers as
conspiracy to defraud were extraditable under the terms of the RP-Hong defined under Section 340 of Republic Act No. 3019 (Anti-Graft and Corrupt
Kong Agreement. Fourthly, Muñoz was the very same person charged with Practices Act). In its assailed amended decision, however, the CA reversed
such offenses based on the documents relied upon by the DOJ, and the itself, and agreed with Muñoz to the effect that Section 9(1)(a) of the POBO
examination and determination of probable cause by the RTC that led to the referred only to private individuals, not to persons belonging to the public
issuance of the order for the arrest of Muñoz. And, lastly, there is probable sector. It revised its determination by taking into consideration the expert
cause to believe that Muñoz committed the offenses charged. opinions on the nature and attributes of the crime of accepting an advantage
as an agent tendered by Clive Stephen Grossman, Senior Counsel of the Hong
However, it was as to the sixth element that the CA took exception as not Kong Bar Association, in behalf of Muñoz, and Ian Charles Me Walters, Senior
having been established. Although the crime of conspiracy to defraud was Assistant Director of Public Prosecutions in the Department of Justice of the
included among the offenses covered by the RP-Hong Kong Agreement, and HKSAR, testifying on behalf of the HKSAR. Said experts shared the opinion
the RTC and the CA have agreed that the crime was analogous to the felony that the POBO was a two-part statute concerned with corruption by public
of estafa through false pretense as defined and penalized under Article officials and corruption in the private sector.41 However, Me Walters gave
315(2)36 of the Revised Penal Code, it was disputed whether or not the other
11
the following explanation regarding the nature of the offenses enumerated
in Section 9 of the POBO, to wit: (a) doing or forbearing to do or having done or forborne to do, any act in
8. A person can be guilty of a POBO bribery offense if he offers an advantage relation to his principal's affairs or business; or Section 4. BRIBERY, x x x x.
to an agent, or being an agent, he solicits or accepts an advantage. However,
there is no mention of the word corruption, or variants of it, in these offences. (2) Any public servant who, whether in Hong Kong or elsewhere, without
Proof of corruption comes from establishing that the advantage was offered, lawful authority or reasonable excuse, solicits or accepts any advantage as an
solicited or accepted "as an inducement to, reward for or otherwise on inducement to or reward for or otherwise on account of his – (Amended 28
account of the agent doing inter alia "an act in his capacity as a public servant" of 1980 s. 3)
(public sector bribery) or "an act in relation to his principal's affairs or
business" (private sector bribery). The private sector bribery offence is a. performing or abstaining from performing, or having performed or
section 9 of the POBO and its language is derived from section 1 of the United abstained from performing, any act in his capacity as a public servant;
Kingdom's Prevention of Corruption Act of 1906. 42
Based on the foregoing, the CA ultimately concluded that the crime of xxxx
accepting an advantage as an agent did not have an equivalent in this
jurisdiction considering that when the unauthorized giving and receiving of shall be guilty of an offence.
benefits happened in the private sector, the same was not a crime because Considering that the transactions were entered into by and in behalf of the
there was no law that defined and' punished such act as criminal in this Central Bank of the Philippines, an instrumentality of the Philippine
jurisdiction.43chanrobleslaw Government, Munoz should be charged for the offenses not as a regular
agent or one representing a private entity but as a public servant or employee
We uphold the conclusion and observation by the CA. of the Philippine Government. Yet, because the offense of accepting an
advantage as an agent charged against him in the HKSAR is one that deals
A careful reading shows that the foreign law subject-matter of this with private sector bribery, the conditions for the application of the double
controversy deals with bribery in both public and private sectors. However, it criminality rule are obviously not met. Accordingly, the crime of accepting an
is also quite evident that the particular provision of the POBO allegedly advantage as an agent must be dropped from the request for extradition.
violated by Muñoz, i.e., Section 9(1 )(a), deals with private sector bribery - Conformably with the principle of specialty embodied in Article 17 of the RP-
this, despite the interpretation under Section 2 of the POBO that an "agent HK Agreement, Muñoz should be proceeded against only for the seven counts
includes a public servant and any person employed by or acting for another." of conspiracy to defraud. As such, the HKSAR shall hereafter arrange for
The POBO clearly states that the interpretation shall apply unless the context Muñoz's surrender within the period provided under Article 15 of the RP-HK
otherwise requires. Agreement.

It cannot be argued that Section 9(1)(a) of the POBO encompasses both WHEREFORE, the Court DENIES the petition for review on certiorari; and
private individuals and public servants. A Section 9(1)(a) offense has a parallel AFFIRMS the amended decision promulgated on March 1, 2013 in CA-G.R. SP
POBO provision applicable to public servants, to wit:44 No. 88610.
Private Sector Bribery Public Sector Bribery
Section 9. Corrupt transactions with agents. No pronouncement on costs of suit.

(1) Any agent who, without lawful authority or reasonable excuse, solicits or SO ORDERED
accepts any advantage as an inducement to or reward for or otherwise on
account of his –
12
EN BANC - versus -
HON. EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE
PROF. MERLIN M. MAGALLONA, G.R No. 187167 SECRETARY, HON. ALBERTO
AKBAYAN PARTY-LIST REP. RISA ROMULO, IN HIS CAPACITY AS
HONTIVEROS, PROF. HARRY C. Present: SECRETARY OF THE DEPARTMENT
ROQUE, JR., AND UNIVERSITY OF OF FOREIGN AFFAIRS, HON.
THE PHILIPPINES COLLEGE OF CORONA, C.J., ROLANDO ANDAYA, IN HIS CAPACITY
LAW STUDENTS, ALITHEA CARPIO, AS SECRETARY OF THE DEPARTMENT
BARBARA ACAS, VOLTAIRE VELASCO, JR., OF BUDGET AND MANAGEMENT,
ALFERES, CZARINA MAY LEONARDO-DE CASTRO, HON. DIONY VENTURA, IN HIS
ALTEZ, FRANCIS ALVIN ASILO, BRION, CAPACITY AS ADMINISTRATOR OF
SHERYL BALOT, RUBY AMOR PERALTA, THE NATIONAL MAPPING &
BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN, RESOURCE INFORMATION
ROMINA BERNARDO, VALERIE DEL CASTILLO, AUTHORITY, and HON. HILARIO
PAGASA BUENAVENTURA, EDAN ABAD, DAVIDE, JR., IN HIS CAPACITY AS
MARRI CAETE, VANN ALLEN VILLARAMA, JR., REPRESENTATIVE OF THE
DELA CRUZ, RENE DELORINO, PEREZ, PERMANENT MISSION OF THE
PAULYN MAY DUMAN, SHARON MENDOZA, and REPUBLIC OF THE PHILIPPINES Promulgated:
ESCOTO, RODRIGO FAJARDO III, SERENO, JJ. TO THE UNITED NATIONS,
GIRLIE FERRER, RAOULLE OSEN Respondents. July 16, 2011
FERRER, CARLA REGINA GREPO, x -----------------------------------------------------------------------------------------x
ANNA MARIE CECILIA GO, IRISH
KAY KALAW, MARY ANN JOY LEE,
MARIA LUISA MANALAYSAY, DECISION
MIGUEL RAFAEL MUSNGI,
MICHAEL OCAMPO, JAKLYN HANNA
PINEDA, WILLIAM RAGAMAT, CARPIO, J.:
MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY
RIDON, JOHANN FRANTZ RIVERA IV, The Case
CHRISTIAN RIVERO, DIANNE MARIE
ROA, NICHOLAS SANTIZO, MELISSA This original action for the writs of certiorari and prohibition assails the
CHRISTINA SANTOS, CRISTINE MAE constitutionality of Republic Act No. 95221 (RA 9522) adjusting the countrys
TABING, VANESSA ANNE TORNO, archipelagic baselines and classifying the baseline regime of nearby
MARIA ESTER VANGUARDIA, and territories.
MARCELINO VELOSO III,
Petitioners,
The Antecedents
13
In addition, petitioners contend that RA 9522s treatment of the KIG as regime
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the of islands not only results in the loss of a large maritime area but also
maritime baselines of the Philippines as an archipelagic State.3 This law prejudices the livelihood of subsistence fishermen.14 To buttress their
followed the framing of the Convention on the Territorial Sea and the argument of territorial diminution, petitioners facially attack RA 9522 for
Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign what it excluded and included its failure to reference either the Treaty of Paris
right of States parties over their territorial sea, the breadth of which, or Sabah and its use of UNCLOS IIIs framework of regime of islands to
however, was left undetermined. Attempts to fill this void during the second determine the maritime zones of the KIG and the Scarborough Shoal.
round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for nearly five decades, save for Commenting on the petition, respondent officials raised threshold issues
legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting questioning (1) the petitions compliance with the case or controversy
typographical errors and reserving the drawing of baselines around Sabah in requirement for judicial review grounded on petitioners alleged lack of locus
North Borneo. standi and (2) the propriety of the writs of certiorari and prohibition to assail
the constitutionality of RA 9522. On the merits, respondents defended RA
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute 9522 as the countrys compliance with the terms of UNCLOS III, preserving
now under scrutiny. The change was prompted by the need to make RA 3046 Philippine territory over the KIG or Scarborough Shoal. Respondents add that
compliant with the terms of the United Nations Convention on the Law of the RA 9522 does not undermine the countrys security, environment and
Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6 economic interests or relinquish the Philippines claim over Sabah.
Among others, UNCLOS III prescribes the water-land ratio, length, and
contour of baselines of archipelagic States like the Philippines7 and sets the Respondents also question the normative force, under international law, of
deadline for the filing of application for the extended continental shelf.8 petitioners assertion that what Spain ceded to the United States under the
Complying with these requirements, RA 9522 shortened one baseline, Treaty of Paris were the islands and all the waters found within the
optimized the location of some basepoints around the Philippine archipelago boundaries of the rectangular area drawn under the Treaty of Paris.
and classified adjacent territories, namely, the Kalayaan Island Group (KIG)
and the Scarborough Shoal, as regimes of islands whose islands generate their We left unacted petitioners prayer for an injunctive writ.
own applicable maritime zones.
The Issues
Petitioners, professors of law, law students and a legislator, in their
respective capacities as citizens, taxpayers or x x x legislators,9 as the case The petition raises the following issues:
may be, assail the constitutionality of RA 9522 on two principal grounds,
namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the 1. Preliminarily
reach of the Philippine states sovereign power, in violation of Article 1 of the
1987 Constitution,10 embodying the terms of the Treaty of Paris11 and 1. Whether petitioners possess locus standi to bring this suit; and
ancillary treaties,12 and (2) RA 9522 opens the countrys waters landward of 2. Whether the writs of certiorari and prohibition are the proper remedies
the baselines to maritime passage by all vessels and aircrafts, undermining to assail the constitutionality of RA 9522.
Philippine sovereignty and national security, contravening the countrys
nuclear-free policy, and damaging marine resources, in violation of relevant 2. On the merits, whether RA 9522 is unconstitutional.
constitutional provisions.13

The Ruling of the Court


14
On the threshold issues, we hold that (1) petitioners possess locus standi to sometimes crafted out of statutes which, while having no bearing on the
bring this suit as citizens and (2) the writs of certiorari and prohibition are personal interests of the petitioners, carry such relevance in the life of this
proper remedies to test the constitutionality of RA 9522. On the merits, we nation that the Court inevitably finds itself constrained to take cognizance of
find no basis to declare RA 9522 unconstitutional. the case and pass upon the issues raised, non-compliance with the letter of
procedural rules notwithstanding. The statute sought to be reviewed here is
On the Threshold Issues one such law.
RA 9522 is Not Unconstitutional
Petitioners Possess Locus
Standi as Citizens
RA 9522 is a Statutory Tool
Petitioners themselves undermine their assertion of locus standi as to Demarcate the Countrys
legislators and taxpayers because the petition alleges neither infringement of Maritime Zones and Continental
legislative prerogative15 nor misuse of public funds,16 occasioned by the Shelf Under UNCLOS III, not to
passage and implementation of RA 9522. Nonetheless, we recognize Delineate Philippine Territory
petitioners locus standi as citizens with constitutionally sufficient interest in
the resolution of the merits of the case which undoubtedly raises issues of
national significance necessitating urgent resolution. Indeed, owing to the Petitioners submit that RA 9522 dismembers a large portion of the national
peculiar nature of RA 9522, it is understandably difficult to find other litigants territory21 because it discards the pre-UNCLOS III demarcation of Philippine
possessing a more direct and specific interest to bring the suit, thus satisfying territory under the Treaty of Paris and related treaties, successively encoded
one of the requirements for granting citizenship standing.17 in the definition of national territory under the 1935, 1973 and 1987
Constitutions. Petitioners theorize that this constitutional definition trumps
any treaty or statutory provision denying the Philippines sovereign control
The Writs of Certiorari and Prohibition over waters, beyond the territorial sea recognized at the time of the Treaty
Are Proper Remedies to Test of Paris, that Spain supposedly ceded to the United States. Petitioners argue
the Constitutionality of Statutes that from the Treaty of Paris technical description, Philippine sovereignty
over territorial waters extends hundreds of nautical miles around the
Philippine archipelago, embracing the rectangular area delineated in the
In praying for the dismissal of the petition on preliminary grounds, Treaty of Paris.22
respondents seek a strict observance of the offices of the writs of certiorari
and prohibition, noting that the writs cannot issue absent any showing of Petitioners theory fails to persuade us.
grave abuse of discretion in the exercise of judicial, quasi-judicial or
ministerial powers on the part of respondents and resulting prejudice on the UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
part of petitioners.18 multilateral treaty regulating, among others, sea-use rights over maritime
zones (i.e., the territorial waters [12 nautical miles from the baselines],
Respondents submission holds true in ordinary civil proceedings. When this contiguous zone [24 nautical miles from the baselines], exclusive economic
Court exercises its constitutional power of judicial review, however, we have, zone [200 nautical miles from the baselines]), and continental shelves that
by tradition, viewed the writs of certiorari and prohibition as proper remedial UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long
vehicles to test the constitutionality of statutes,19 and indeed, of acts of negotiations among United Nations members to codify norms regulating the
other branches of government.20 Issues of constitutional import are conduct of States in the worlds oceans and submarine areas, recognizing
15
coastal and archipelagic States graduated authority over a limited span of statutes to comply with the treatys terms to delimit maritime zones and
waters and submarine lands along their coasts. continental shelves. Territorial claims to land features are outside UNCLOS III,
and are instead governed by the rules on general international law.26
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III
States parties to mark-out specific basepoints along their coasts from which RA 9522s Use of the Framework
baselines are drawn, either straight or contoured, to serve as geographic of Regime of Islands to Determine the
starting points to measure the breadth of the maritime zones and continental Maritime Zones of the KIG and the
shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any Scarborough Shoal, not Inconsistent
clearer: with the Philippines Claim of Sovereignty
Over these Areas
Article 48. Measurement of the breadth of the territorial sea, the contiguous
zone, the exclusive economic zone and the continental shelf. The breadth of
the territorial sea, the contiguous zone, the exclusive economic zone and the Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands
continental shelf shall be measured from archipelagic baselines drawn in framework to draw the baselines, and to measure the breadth of the
accordance with article 47. (Emphasis supplied) applicable maritime zones of the KIG, weakens our territorial claim over that
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion
States parties to delimit with precision the extent of their maritime zones and from the Philippine archipelagic baselines results in the loss of about 15,000
continental shelves. In turn, this gives notice to the rest of the international square nautical miles of territorial waters, prejudicing the livelihood of
community of the scope of the maritime space and submarine areas within subsistence fishermen.28 A comparison of the configuration of the baselines
which States parties exercise treaty-based rights, namely, the exercise of drawn under RA 3046 and RA 9522 and the extent of maritime space
sovereignty over territorial waters (Article 2), the jurisdiction to enforce encompassed by each law, coupled with a reading of the text of RA 9522 and
customs, fiscal, immigration, and sanitation laws in the contiguous zone its congressional deliberations, vis--vis the Philippines obligations under
(Article 33), and the right to exploit the living and non-living resources in the UNCLOS III, belie this view.
exclusive economic zone (Article 56) and continental shelf (Article 77).
The configuration of the baselines drawn under RA 3046 and RA 9522 shows
Even under petitioners theory that the Philippine territory embraces the that RA 9522 merely followed the basepoints mapped by RA 3046, save for at
islands and all the waters within the rectangular area delimited in the Treaty least nine basepoints that RA 9522 skipped to optimize the location of
of Paris, the baselines of the Philippines would still have to be drawn in basepoints and adjust the length of one baseline (and thus comply with
accordance with RA 9522 because this is the only way to draw the baselines UNCLOS IIIs limitation on the maximum length of baselines). Under RA 3046,
in conformity with UNCLOS III. The baselines cannot be drawn from the as under RA 9522, the KIG and the Scarborough Shoal lie outside of the
boundaries or other portions of the rectangular area delineated in the Treaty baselines drawn around the Philippine archipelago. This undeniable
of Paris, but from the outermost islands and drying reefs of the cartographic fact takes the wind out of petitioners argument branding RA
archipelago.24 9522 as a statutory renunciation of the Philippines claim over the KIG,
assuming that baselines are relevant for this purpose.
UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under Petitioners assertion of loss of about 15,000 square nautical miles of
traditional international law typology, States acquire (or conversely, lose) territorial waters under RA 9522 is similarly unfounded both in fact and law.
territory through occupation, accretion, cession and prescription,25 not by On the contrary, RA 9522, by optimizing the location of basepoints, increased
executing multilateral treaties on the regulations of sea-use rights or enacting the Philippines total maritime space (covering its internal waters, territorial
16
sea and exclusive economic zone) by 145,216 square nautical miles, as shown continued claim of sovereignty and jurisdiction over the KIG and the
in the table below:29 Scarborough Shoal:
Extent of maritime area using RA 3046, as amended, taking into account the
Treaty of Paris delimitation (in square nautical miles) SEC. 2. The baselines in the following areas over which the Philippines
Extent of maritime area using RA 9522, taking into account UNCLOS III (in likewise exercises sovereignty and jurisdiction shall be determined as Regime
square nautical miles) of Islands under the Republic of the Philippines consistent with Article 121 of
Internal or archipelagic waters the United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No.
166,858 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
171,435

Territorial Sea Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part
of the Philippine archipelago, adverse legal effects would have ensued. The
274,136 Philippines would have committed a breach of two provisions of UNCLOS III.
First, Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines
32,106 shall not depart to any appreciable extent from the general configuration of
the archipelago. Second, Article 47 (2) of UNCLOS III requires that the length
Exclusive Economic Zone of the baselines shall not exceed 100 nautical miles, save for three per cent
(3%) of the total number of baselines which can reach up to 125 nautical
miles.31
382,669
TOTAL Although the Philippines has consistently claimed sovereignty over the KIG32
440,994 and the Scarborough Shoal for several decades, these outlying areas are
586,210 located at an appreciable distance from the nearest shoreline of the
Philippine archipelago,33 such that any straight baseline loped around them
Thus, as the map below shows, the reach of the exclusive economic zone from the nearest basepoint will inevitably depart to an appreciable extent
drawn under RA 9522 even extends way beyond the waters covered by the from the general configuration of the archipelago.
rectangular demarcation under the Treaty of Paris. Of course, where there
are overlapping exclusive economic zones of opposite or adjacent States, The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-
there will have to be a delineation of maritime boundaries in accordance with Santiago, took pains to emphasize the foregoing during the Senate
UNCLOS III.30 deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[]
the Spratlys and the Scarborough Shoal are outside our archipelagic baseline
Further, petitioners argument that the KIG now lies outside Philippine because if we put them inside our baselines we might be accused of violating
territory because the baselines that RA 9522 draws do not enclose the KIG is the provision of international law which states: The drawing of such baseline
negated by RA 9522 itself. Section 2 of the law commits to text the Philippines shall not depart to any appreciable extent from the general configuration of
the archipelago. So sa loob ng ating baseline, dapat magkalapit ang mga
17
islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit to be located either inland or on water, not on low-water line and drying reefs
sila sa atin although we are still allowed by international law to claim them as as prescribed by Article 47.35
our own.

This is called contested islands outside our configuration. We see that our Hence, far from surrendering the Philippines claim over the KIG and the
archipelago is defined by the orange line which [we] call[] archipelagic Scarborough Shoal, Congress decision to classify the KIG and the Scarborough
baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Shoal as Regime[s] of Islands under the Republic of the Philippines consistent
Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or with Article 12136 of UNCLOS III manifests the Philippine States responsible
the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang observance of its pacta sunt servanda obligation under UNCLOS III. Under
dating archipelagic baselines para lamang masama itong dalawang circles, Article 121 of UNCLOS III, any naturally formed area of land, surrounded by
hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations water, which is above water at high tide, such as portions of the KIG, qualifies
because of the rule that it should follow the natural configuration of the under the category of regime of islands, whose islands generate their own
archipelago.34 (Emphasis supplied) applicable maritime zones.37

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs Statutory Claim Over Sabah under
limits. The need to shorten this baseline, and in addition, to optimize the RA 5446 Retained
location of basepoints using current maps, became imperative as discussed
by respondents:
Petitioners argument for the invalidity of RA 9522 for its failure to textualize
[T]he amendment of the baselines law was necessary to enable the the Philippines claim over Sabah in North Borneo is also untenable. Section 2
Philippines to draw the outer limits of its maritime zones including the of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing
extended continental shelf in the manner provided by Article 47 of [UNCLOS the baselines of Sabah:
III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer
from some technical deficiencies, to wit: Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash the baselines of the territorial sea around the territory of Sabah, situated in
to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum North Borneo, over which the Republic of the Philippines has acquired
length allowed under Article 47(2) of the [UNCLOS III], which states that The dominion and sovereignty. (Emphasis supplied)
length of such baselines shall not exceed 100 nautical miles, except that up
to 3 per cent of the total number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be UNCLOS III and RA 9522 not
skipped or deleted from the baselines system. This will enclose an additional Incompatible with the Constitutions
2,195 nautical miles of water. Delineation of Internal Waters
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the points, As their final argument against the validity of RA 9522, petitioners contend
particularly along the west coasts of Luzon down to Palawan were later found that the law unconstitutionally converts internal waters into archipelagic
waters, hence subjecting these waters to the right of innocent and sea lanes
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passage under UNCLOS III, including overflight. Petitioners extrapolate that or archipelagic waters, subject to the treatys limitations and conditions for
these passage rights indubitably expose Philippine internal waters to nuclear their exercise.42 Significantly, the right of innocent passage is a customary
and maritime pollution hazards, in violation of the Constitution.38 international law,43 thus automatically incorporated in the corpus of
Philippine law.44 No modern State can validly invoke its sovereignty to
Whether referred to as Philippine internal waters under Article I of the absolutely forbid innocent passage that is exercised in accordance with
Constitution39 or as archipelagic waters under UNCLOS III (Article 49 [1]), the customary international law without risking retaliatory measures from the
Philippines exercises sovereignty over the body of water lying landward of international community.
the baselines, including the air space over it and the submarine areas The fact that for archipelagic States, their archipelagic waters are subject to
underneath. UNCLOS III affirms this: both the right of innocent passage and sea lanes passage45 does not place
them in lesser footing vis--vis continental coastal States which are subject, in
Article 49. Legal status of archipelagic waters, of the air space over their territorial sea, to the right of innocent passage and the right of transit
archipelagic waters and of their bed and subsoil. passage through international straits. The imposition of these passage rights
through archipelagic waters under UNCLOS III was a concession by
1. The sovereignty of an archipelagic State extends to the waters enclosed archipelagic States, in exchange for their right to claim all the waters
by the archipelagic baselines drawn in accordance with article 47, described landward of their baselines, regardless of their depth or distance from the
as archipelagic waters, regardless of their depth or distance from the coast. coast, as archipelagic waters subject to their territorial sovereignty. More
2. This sovereignty extends to the air space over the archipelagic waters, as importantly, the recognition of archipelagic States archipelago and the
well as to their bed and subsoil, and the resources contained therein. waters enclosed by their baselines as one cohesive entity prevents the
xxxx treatment of their islands as separate islands under UNCLOS III.46 Separate
islands generate their own maritime zones, placing the waters between
4. The regime of archipelagic sea lanes passage established in this Part shall islands separated by more than 24 nautical miles beyond the States territorial
not in other respects affect the status of the archipelagic waters, including sovereignty, subjecting these waters to the rights of other States under
the sea lanes, or the exercise by the archipelagic State of its sovereignty over UNCLOS III.47
such waters and their air space, bed and subsoil, and the resources contained
therein. (Emphasis supplied)
Petitioners invocation of non-executory constitutional provisions in Article II
The fact of sovereignty, however, does not preclude the operation of (Declaration of Principles and State Policies)48 must also fail. Our present
municipal and international law norms subjecting the territorial sea or state of jurisprudence considers the provisions in Article II as mere legislative
archipelagic waters to necessary, if not marginal, burdens in the interest of guides, which, absent enabling legislation, do not embody judicially
maintaining unimpeded, expeditious international navigation, consistent enforceable constitutional rights x x x.49 Article II provisions serve as guides
with the international law principle of freedom of navigation. Thus, in formulating and interpreting implementing legislation, as well as in
domestically, the political branches of the Philippine government, in the interpreting executory provisions of the Constitution. Although Oposa v.
competent discharge of their constitutional powers, may pass legislation Factoran50 treated the right to a healthful and balanced ecology under
designating routes within the archipelagic waters to regulate innocent and Section 16 of Article II as an exception, the present petition lacks factual basis
sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes to substantiate the claimed constitutional violation. The other provisions
passage are now pending in Congress.41 petitioners cite, relating to the protection of marine wealth (Article XII,
Section 2, paragraph 251) and subsistence fishermen (Article XIII, Section
In the absence of municipal legislation, international law norms, now codified 752), are not violated by RA 9522.
in UNCLOS III, operate to grant innocent passage rights over the territorial sea
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In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation WHEREFORE, we DISMISS the petition.
of all living and non-living resources within such zone. Such a maritime
delineation binds the international community since the delineation is in SO ORDERED.
strict observance of UNCLOS III. If the maritime delineation is contrary to
UNCLOS III, the international community will of course reject it and will refuse
to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III
creates a sui generis maritime space the exclusive economic zone in waters
previously part of the high seas. UNCLOS III grants new rights to coastal States
to exclusively exploit the resources found within this zone up to 200 nautical
miles.53 UNCLOS III, however, preserves the traditional freedom of
navigation of other States that attached to this zone beyond the territorial
sea before UNCLOS III.

RA 9522 and the Philippines Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III,
Congress was not bound to pass RA 9522.54 We have looked at the relevant
provision of UNCLOS III55 and we find petitioners reading plausible.
Nevertheless, the prerogative of choosing this option belongs to Congress,
not to this Court. Moreover, the luxury of choosing this option comes at a
very steep price. Absent an UNCLOS III compliant baselines law, an
archipelagic State like the Philippines will find itself devoid of internationally
acceptable baselines from where the breadth of its maritime zones and
continental shelf is measured. This is recipe for a two-fronted disaster: first,
it sends an open invitation to the seafaring powers to freely enter and exploit
the resources in the waters and submarine areas around our archipelago; and
second, it weakens the countrys case in any international dispute over
Philippine maritime space. These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an
internationally-recognized delimitation of the breadth of the Philippines
maritime zones and continental shelf. RA 9522 is therefore a most vital step
on the part of the Philippines in safeguarding its maritime zones, consistent
with the Constitution and our national interest.
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