Pil Prelims Cases

On July 1, 1997, Hong Kong reverted back to the People’s Republic of China and became the Hong Kong Special Administrative Region.

Republic of the Philippines 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 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 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 convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge.

EN BANC G.R. No. 153675

April 19, 2007p

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine Department of Justice, Petitioner, vs. HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUÑOZ, Respondents.

On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent.

DECISION SANDOVAL-GUTIERREZ, J.:

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same day, the NBI agents arrested and detained him.

For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders 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) the Order dated December 20, 2001 allowing Juan Antonio Muñoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee.

On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition and mandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest. On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.

The facts are:

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 of Appeals be reversed.

On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997.

On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001.

1

Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,- a petition for bail which was opposed by petitioner.

assets of accused, real and personal, be filed with this Court soonest, with the condition that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that the corresponding lien/annotation be noted therein accordingly.

After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk."

On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent judge in his Order dated April 10, 2002.

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge.

Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in 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 right being limited solely to criminal proceedings.

SO ORDERED.

On October 30, 2001, private respondent filed a motion for reconsideration 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 post bail, thus:

In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of one’s liberty.

In conclusion, this Court will not contribute to accused’s further erosion of 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 proceedings and will at all times hold himself amenable to orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the government; 2. Accused must surrender his valid passport to this Court;

Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be 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 required.

3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order before this Court even in extradition proceeding; and

Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this Court has an occasion to resolve the question of whether a prospective extraditee may be granted bail.

4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest office, at any time and day of the week; and if they further desire, manifest before this Court to require that all the

In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio 2

V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus:

balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law.

x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It follows that the 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. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail to a prospective deportee, held that under the Constitution,3 the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process.

The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. At first glance, the above ruling applies squarely to private respondent’s case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to

The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained 3

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 justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of this Court’s ruling in Purganan is in order.

If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue. Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired.

First, we note that the exercise of the State’s power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine,4 have likewise been detained.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government."

Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights.

Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different nations.11 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 administrative in character.13 Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.14

The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure to secure the necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation proceedings. In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that foreign nationals against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainee’s right to bail.

But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential 4

extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently."

bears the onus probandi of showing that he or she is not a flight risk and should be granted bail. The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with 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 treaty obligations, the Philippines should diminish a potential extraditee’s rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met.

Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. "Temporary detention" may be 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 in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court.

Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for over two (2) years without having been convicted of any crime. By any standard, such an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail. While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. 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 premised on the presumption of innocence of the accused. As Purganan correctly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice.15 Given the foregoing, the prospective extraditee thus

In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence." WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the 5

cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch.

charges for which he would be tried in Hong Kong due to non-compliance with the double criminality rule. Also being challenged is the resolution promulgated on May 29, 2013 by the CA (denying the motion for reconsideration of the petitioner).5chanrobleslaw

SO ORDERED 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, respondentappellant, as Head of the Treasury Department of the Central Bank of the Philippines (CBP), was instructed by its Governor to raise Seven Hundred 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, respondentappellant recommended that the amount be obtained through gold loans/swaps, for which, seven (7) contracts of about One Hundred Million US 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 were rolled over as they matured, hence, totaling five (5) gold loan/swap agreements in Mocatta, London's favor.

GOVERNMENT OF HONGKONG SPECIAL ADMINISTRATIVE REGION, REPRESENTED BY THE PHILIPPINE DEPARTMENT OF JUSTICE, Petitioner, v. JUAN ANTONIO MUNOZ, Respondent. DECISION BERSAMIN, J.: This case is the third in the trilogy of cases that started with the 2000 case of Cuevas v. Muñoz,1 which dealt with respondent Juan Antonio Munoz's 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 of Muñoz's right to bail as a potential extraditee. Both rulings dealt with and resolved incidents arising during the process of having Munoz extradited to Hong Kong under and pursuant to the Agreement Between the Government of the Republic of the Philippines and the Government of Hong Kong for the Surrender of Accused and Convicted Persons (RP-HK Agreement).

In relation to this, petitioner-appellee narrates: xxxx 2. At all material times, Mr. Juan Antonio E. MUÑOZ ("MUÑOZ") was the Head of the Treasury Department of the Central Bank of the Philippines ("CBP"). In 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 the extradition request of the Government of Hong Kong Special Administrative Region (HKSAR) sufficiently complied with the RP-HK Agreement and Presidential Decree No. 1069 (Philippine Extradition Law): On 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 ruled that Munoz could be tried in Hong Kong for the crimes of conspiracy to defraud and accepting an advantage as an agent, it granted his motion for reconsideration and promulgated the now assailed amended decision on March 1, 2013 in CA-G.R. CV No. 88610,4 in which it pronounced that the crime of accepting an advantage as an agent should be excluded from the

3. At all material times, Mr. Ho CHI ("CHI") was the Chief Executive of Standard Chartered Bank – The Mocatta Group (Hong Kong) ("MHK"), MHK was a branch of the Mocatta Group in London ("Mocatta London") which was a division of the Standard Chartered Bank. 4. CBP and MHK had been dealing in small gold transactions for several years prior to 1991. During the latter part of 1991, MUÑOZ and CHI began negotiating larger deals up to US$100 M. CBP were (sic) reluctant to deal with MHK for such large amounts and wanted to deal 'directly with Mocatta (London). 6

5. CHI approached Philip WILSON ("WILSON"), the then Chief Dealer of Mocatta (London) about the proposed deals. CHI indicated that to get business it would be necessary for Mocatta (London) to pay rebates to an unnamed group of people at CBP. WILSON told CHI that that was wrong in principal (sic). CHI, however, approached Keith SMITH, the then Managing Director of Mocatta (London), who approved the payments.

14. On 12 October 1993, this US$1,625,000 was transferred to the Sundry Creditors Account. Funds from this Sundry Creditors Account were subsequently disbursed to the benefit of CHI and MUÑOZ personally (xxx). xxxx 15. Apart from the aforesaid, there were other payments made by MHK to the Sundry Creditors Account, ostensibly for CBP, namely: commission on gold location swaps US$227,086.18 commission on silver location swaps US$ 47,524.69 commission on options US$ 9,750.00 interest US$ 32,889.61 16. None of the above payments were known to CBP and none of them ever reached CBP. Funds from this Sundry Creditors Account were subsequently disbursed to the benefit of CHI and MUÑOZ personally (x x x).

xxxx 6. Between February 1992 to March 1993, there were a series of "gold swaps" and gold backed loans between CBP (sic) and Mocatta (London) through MHK in Hong Kong. The transactions were a means for CBP to raise finance. xxxx 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 MHK for onward transmission by MHK to destinations as instructed by CHI. Funds from this Sundry Creditors Account were subsequently disbursed to the benefit of CHI and MUÑOZ personally (x x x).

xxxx On the other hand, respondent-appellant gives his version, thus: chanRoblesvirtualLawlibraryx x x the Central Bank executed all these gold loan/swap agreements with the same counter party, namely, Mocatta London. Munoz signed in behalf of the Central Bank while Phil Wilson signed for Mocatta London.

xxxx 10. In addition to the gold swaps and the gold backed loans referred to above, 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) the option to buy gold at a fixed price on a fixed date.

xxxx In late 1992 (around November or December), Munoz received a note from Mocatta London requesting that their accreditation as official counter party of the Central Bank be transferred to Standard Chartered Bank (SCB) in view of an ongoing reorganization which will result in Mocatta London being a mere division of SCB. Before such reorganization, both Mocatta London and Mocatta Hong Kong operated as independent subsidiaries of SCB.

11. As a result, between 27 July 1992 and 6 May 1993, MHK paid US$4,026,000 into the Sundry Creditors Account, ostensibly for CBP, as premiums for these options, xxx xxxx 13. CHI operated an account at Mocatta Hong Kong, called the MHK No. 3 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 profits were unknown to CBP.

xxxx As mentioned earlier, the Monetary Board approved the transfer of the 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 Mocatta Group London, while Mocatta became known as SCB-the Mocatta Group Hong Kong. Phil Wilson was the Chief Executive Officer for London, while Ho Chi was the Chief Executive for Hong Kong. The Group Chief Executive Officer was Ron Altringham.

Invoking the Agreement Between the Government of the Republic of the Philippines and the Government of Hong Kong for the Surrender of Accused and Convicted Persons (RP-HK Agreement), which was signed in Hong Kong on January 30, 1995, the Hong Kong Special Administrative Region (HKSAR) 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 Government should handle a request for extradition under the RP-HK Agreement. The Philippine Consulate General replied through Note No. 7897 dated October 16, 1997 that the proper agency was the Department of Justice (DOJ).7 On September 13, 1999, therefore, the DOJ received the request for the provisional arrest of Muñoz pursuant to Article 11(1) of the RP-HK Agreement. On September 17, 1999, the National Bureau of Investigation (NBI), acting for and in behalf of HKSAR, initiated the proceedings for his arrest in the RTC, whose Branch 19 then issued on September 3, 1999 the order granting the application for the provisional arrest of Muñoz. Branch 19 consequently issued the corresponding order of arrest. On October 14, 1999, Muñoz challenged through certiorari, prohibition and mandamus the validity of the order for his arrest in the CA, which declared the order of arrest null and void in its judgment promulgated on November 9, 1999. DOJ Secretary Serafin R. Cuevas consequently appealed the decision of the CA to this Court, which reversed the CA on December 18, 2000 in Cuevas v. Muñoz, 8 disposing: WHEREFORE, the petition is GRANTED, and the assailed Decision of the Court of Appeals, dated November 9, 1999, in CA-G.R. SP No. 55343 is hereby REVERSED and SET ASIDE. Respondent's "Urgent Motion For Release Pending Appeal" is hereby DENIED.

As can be seen in Annex 'C', even with the SCB reorganization, the gold [loan]/swap agreements continued to be contracted with Mocatta London. As shown, both the gold loan/swap agreements dated March 25, 1993 and June 30, 1993 were signed by Phil Wilson for Mocatta London (SCB-The Mocatta Group London). With the accreditation of SCB as the official counter party of the bank, however, CB did allow the dealers to transact minor trading transactions with Mocatta Hong Kong. CB also allowed Mocatta Hong Kong to quote on the gold and silver location swaps CB periodically did to decongest its vaults at the gold plant in Quezon City. The gold swap/loan agreements, however, as shown in the Annex, continued to be rolled over with Mocatta London. During Muñoz's stay in Treasury at the bank as its Head, he did not involve himself in the details of work done by the Dealing Group, Treasury Service Group (TSG) and Accounting which were all headed by either Director or a Deputy Director who could clarify any issue that may arise, and who consult with him on matters they were unsure. The department had been operational over 6 years when Muñoz joined, and the Treasury transactions had already become routine for majority of the staff. Muñoz meet (sic) weekly with senior officers to inform of development and discuss problems of the department. In respect to the five gold loan/swap agreements with Mocatta London (as well as the agreements contracted with other official counter parties), upon the signing of each agreement, a copy of the agreement was forwarded to the Dealing Group for proper implementation. The Treasury dealers usually coordinated with dealers of the counter party involved in effecting the necessary transactions. These agreements are the subject often (10) criminal cases filed against respondent-appellant in Hong Kong - i.e., three (3) counts of accepting an advantage as an agent, contrary to Section 9(1) (a) of the Prevention of Bribery Ordinance, Cap. 201 and seven (7) counts of conspiracy to defraud, contrary to the common law of HKSAR.6

SO ORDERED. Meantime, on November 22, 1999,9 the DOJ, representing the HKSAR, filed a petition in the RTC for the surrender of Munoz to the HKSAR to face the criminal charges against him in Hong Kong. He filed a petition for bail. Initially, on October 8, 2001, the RTC, through Presiding Judge Ricardo Bernardo, Jr. of Branch 10, denied the petition for bail after hearing on the ground that there was no Philippine law that allowed bail in extradition cases, and that he was a high "flight risk." But after the case was re-assigned to Branch 8, presided by Judge Felixberto T. Olalia, Jr., following the inhibition of Judge Bernardo, Jr., Muñoz filed his motion for reconsideration against the denial 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 of bail to Muñoz as a potential extraditee by petition for certiorari directly filed in this Court. The matter of bail for Muñoz was ultimately settled by the Court in Government of Hong Kong Special Administrative Region v. Olalia, Jr., 11viz. : While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution.

our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court.

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 premised on the presumption of innocence of the accused. As Purganan correctly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice. Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail.

In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence." WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch. SO ORDERED.12chanroblesvirtuallawlibrary Eventually, on November 28, 2006, the RTC ruled on the main case of extradition by holding that the extradition request sufficiently complied with the RP-HK Agreement and Presidential Decree No. 1069.13chanrobleslaw

The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with 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 treaty obligations, the Philippines should diminish a potential extraditee's rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met.

In due course, Muñoz elevated the adverse decision of November 28, 2006 to the CA upon the following issues, namely: (1) the enforceability of the RPHK Agreement, including the HKSAR's personality to institute the petition under its current status as a special administrative region; (2) the DOJ's authority to receive the request for extradition and to file the petition despite Presidential Decree No. 1069 naming the Secretary of Foreign Affairs for that purpose; (3) the extraditability of the offense, considering the nature of the crimes charged and the pieces of evidence presented in support of the petition; and (4) the limits of the jurisdiction of the extradition court, i.e., whether or not it included passing upon the defenses of the person to be extradited.14chanrobleslaw

An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing

In its decision promulgated on August 30, 2012,15 the CA opined that 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 enter into international agreements in its own name, including extradition 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 the Government of the People's Republic of China on the Question of Hong 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 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 provided that international agreements to which the People's Republic of China was not a party but which were implemented in Hong Kong could continue to be implemented in the HKSAR; that an Exchange of Notes between the Governments of China and the Philippines confirmed the 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 RPHong 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, the reliance by Muñoz on the provision of Presidential Decree No. 1069 that only the Secretary of Foreign Affairs had the authority to receive requests for extradition should be rejected.

agent should be excluded from the charges under which Muñoz would be tried due to non-compliance with the double criminality rule. After the HKSAR's motion for reconsideration was denied on May 29, 2013,23 it has appealed by petition for review on certiorari. Issue The sole issue raised by the HKSAR relates to the propriety of the CA's conclusion that the crime of accepting an advantage as an agent did not comply with the double criminality rule.24chanrobleslaw Ruling of the Court Upon thorough consideration, we DENY the petition for review. Extradition is "the surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender."25cralawred It is not- part of customary international law, although the duty to extradite exists only for some international crimes.26 Thus, a state must extradite only when obliged by treaty to do so.27 The right of a state to successfully request the extradition of a criminal offender arises from a treaty with the requested state.28 Absent the treaty, the duty to surrender a person who has sought asylum within its boundaries does not inhere in the state, which, if it so wishes, can extend to him a refuge and protection even from the state that he has fled. Indeed, in granting him asylum, the state commits no breach of international law. But by concluding the treaty, the asylum state imposes limitations on itself, because it thereby agrees to do something it was free not to do.29 The extradition treaty creates the reciprocal obligation to surrender persons from the requested state's jurisdiction charged or convicted of certain crimes committed within the requesting state's territory, and is of the same level as a law passed by the Legislatures of the respective parties.

The CA affirmed the RTC's conclusion that the crimes of conspiracy to defraud and accepting an advantage as an agent were extraditable offenses; that not only was conspiracy to defraud explicitly included in the offenses covered by the RP-HK Agreement, but also that both crimes satisfied the double criminality rule, or the principle to the effect that extradition was available only when the act was an offense in the jurisdictions of both parties; and that it was not for the Philippine court to determine the extent of the criminal jurisdiction of the foreign court because entering into questions that were the prerogative of that other jurisdiction was the function of the assisting authorities.20chanrobleslaw On September 14, 2012,21 Muñoz sought the reconsideration of the August 30, 2012 decision. On March 1, 2013,22 the CA promulgated its assailed amended decision by partially granting Muñoz's motion for reconsideration. Although affirming its previous ruling, it concluded that the crime of accepting an advantage as an

Presidential Decree No. 1069 defines the general procedure for the extradition of persons who have committed crimes in a foreign country, and 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 by the Philippine Government with other countries primarily govern the relationship between the parties.

crime of accepting an advantage as an agent was also punished as a crime in the Philippines. As such, the applicability of the double criminality rule became the issue.

The RP-HK Agreement is still in full force and effect as an extradition treaty. The procedures therein delineated regulate the rights and obligations of the Republic of the Philippines and the HKSAR under the treaty in the handling of extradition requests.

Under the double criminality rule, the extraditable offense must be criminal under the laws of both the requesting and the requested states".37 This simply means that the requested state comes under no obligation to 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 extradition treaty in force between the HKSAR and the Philippines; (2) the criminal charges that are pending in the HKSAR against the person to be extradited;31 (3) the crimes for which the person to be extradited is charged 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 establishes probable cause to believe that the person to be extradited committed the offenses charged;34 and (6) the offenses are criminal in both the HKSAR and the Philippines (double criminality rule).

The HKS AR defines the crime of accepting an advantage as an agent under Section 9(1)(a) of the Prevention of Bribery Ordinance (POBO), Cap. 201,39 to wit: Section 9. Corrupt transactions with agents. (1) Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his – (a) doing or forbearing to do, or having done or forborne to do, any act in relation to his principal's affairs or business; or

The first five of the elements inarguably obtain herein, as both the RTC and 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 10 criminal cases filed against Muñoz in Hong Kong, specifically: three counts of accepting an advantage as an agent and seven counts of conspiracy to defraud 35 Thirdly, the crimes of accepting an advantage as an agent and of conspiracy to defraud were extraditable under the terms of the RP-Hong Kong Agreement. Fourthly, Muñoz was the very same person charged with such offenses based on the documents relied upon by the DOJ, and the examination and determination of probable cause by the RTC that led to the issuance of the order for the arrest of Muñoz. And, lastly, there is probable cause to believe that Muñoz committed the offenses charged.

xxxx A perusal of the decision of the RTC and the original decision of the CA show that said courts determined that the crime of accepting an advantage as an agent was analogous to the crime of corrupt practices of public officers as defined under Section 340 of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). In its assailed amended decision, however, the CA reversed itself, and agreed with Muñoz to the effect that Section 9(1)(a) of the POBO referred only to private individuals, not to persons belonging to the public sector. It revised its determination by taking into consideration the expert 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 Kong Bar Association, in behalf of Muñoz, and Ian Charles Me Walters, Senior Assistant Director of Public Prosecutions in the Department of Justice of the HKSAR, testifying on behalf of the HKSAR. Said experts shared the opinion that the POBO was a two-part statute concerned with corruption by public officials and corruption in the private sector.41 However, Me Walters gave

However, it was as to the sixth element that the CA took exception as not having been established. Although the crime of conspiracy to defraud was included among the offenses covered by the RP-Hong Kong Agreement, and the RTC and the CA have agreed that the crime was analogous to the felony of estafa through false pretense as defined and penalized under Article 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: 8. A person can be guilty of a POBO bribery offense if he offers an advantage 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. Proof of corruption comes from establishing that the advantage was offered, solicited or accepted "as an inducement to, reward for or otherwise on account of the agent doing inter alia "an act in his capacity as a public servant" (public sector bribery) or "an act in relation to his principal's affairs or business" (private sector bribery). The private sector bribery offence is section 9 of the POBO and its language is derived from section 1 of the United Kingdom's Prevention of Corruption Act of 1906. 42 Based on the foregoing, the CA ultimately concluded that the crime of accepting an advantage as an agent did not have an equivalent in this jurisdiction considering that when the unauthorized giving and receiving of benefits happened in the private sector, the same was not a crime because there was no law that defined and' punished such act as criminal in this jurisdiction.43chanrobleslaw

(a) doing or forbearing to do or having done or forborne to do, any act in relation to his principal's affairs or business; or Section 4. BRIBERY, x x x x. (2) Any public servant who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his – (Amended 28 of 1980 s. 3) a. performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant; xxxx shall be guilty of an offence. Considering that the transactions were entered into by and in behalf of the Central Bank of the Philippines, an instrumentality of the Philippine 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 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 with private sector bribery, the conditions for the application of the double criminality rule are obviously not met. Accordingly, the crime of accepting an advantage as an agent must be dropped from the request for extradition. Conformably with the principle of specialty embodied in Article 17 of the RPHK Agreement, Muñoz should be proceeded against only for the seven counts of conspiracy to defraud. As such, the HKSAR shall hereafter arrange for Muñoz's surrender within the period provided under Article 15 of the RP-HK Agreement.

We uphold the conclusion and observation by the CA. A careful reading shows that the foreign law subject-matter of this controversy deals with bribery in both public and private sectors. However, it is also quite evident that the particular provision of the POBO allegedly violated by Muñoz, i.e., Section 9(1 )(a), deals with private sector bribery this, despite the interpretation under Section 2 of the POBO that an "agent includes a public servant and any person employed by or acting for another." The POBO clearly states that the interpretation shall apply unless the context otherwise requires. It cannot be argued that Section 9(1)(a) of the POBO encompasses both private individuals and public servants. A Section 9(1)(a) offense has a parallel POBO provision applicable to public servants, to wit:44 Private Sector Bribery Public Sector Bribery Section 9. Corrupt transactions with agents.

WHEREFORE, the Court DENIES the petition for review on certiorari; and AFFIRMS the amended decision promulgated on March 1, 2013 in CA-G.R. SP No. 88610.

(1) Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his –

SO ORDERED

No pronouncement on costs of suit.

12

EN BANC

- versus HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES Promulgated: TO THE UNITED NATIONS, Respondents. July 16, 2011 x -----------------------------------------------------------------------------------------x

PROF. MERLIN M. MAGALLONA, G.R No. 187167 AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY C. Present: ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF CORONA, C.J., LAW STUDENTS, ALITHEA CARPIO, BARBARA ACAS, VOLTAIRE VELASCO, JR., ALFERES, CZARINA MAY LEONARDO-DE CASTRO, ALTEZ, FRANCIS ALVIN ASILO, BRION, SHERYL BALOT, RUBY AMOR PERALTA, BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN, ROMINA BERNARDO, VALERIE DEL CASTILLO, PAGASA BUENAVENTURA, EDAN ABAD, MARRI CAETE, VANN ALLEN VILLARAMA, JR., DELA CRUZ, RENE DELORINO, PEREZ, PAULYN MAY DUMAN, SHARON MENDOZA, and ESCOTO, RODRIGO FAJARDO III, SERENO, JJ. GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners,

DECISION CARPIO, J.: The Case This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No. 95221 (RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline regime of nearby territories. The Antecedents 13

In addition, petitioners contend that RA 9522s treatment of the KIG as regime of islands not only results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.14 To buttress their argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded and included its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal.

In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties over their territorial sea, the breadth of which, however, was left undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo.

Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions compliance with the case or controversy requirement for judicial review grounded on petitioners alleged lack of locus 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 9522 as the countrys compliance with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not undermine the countrys security, environment and economic interests or relinquish the Philippines claim over Sabah.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as regimes of islands whose islands generate their own applicable maritime zones.

Respondents also question the normative force, under international law, of petitioners assertion that what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found within the boundaries of the rectangular area drawn under the Treaty of Paris. We left unacted petitioners prayer for an injunctive writ. 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 may be, assail the constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the 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 ancillary treaties,12 and (2) RA 9522 opens the countrys waters landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the countrys nuclear-free policy, and damaging marine resources, in violation of relevant constitutional provisions.13

The petition raises the following issues: 1. Preliminarily 1. Whether petitioners possess locus standi to bring this suit; and 2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of RA 9522. 2. On the merits, whether RA 9522 is unconstitutional. The Ruling of the Court 14

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522 unconstitutional.

sometimes crafted out of statutes which, while having no bearing on the personal interests of the petitioners, carry such relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance of 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 one such law. RA 9522 is Not Unconstitutional

On the Threshold Issues Petitioners Possess Locus Standi as Citizens

RA 9522 is a Statutory Tool to Demarcate the Countrys Maritime Zones and Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory

Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition alleges neither infringement of legislative prerogative15 nor misuse of public funds,16 occasioned by the passage and implementation of RA 9522. Nonetheless, we recognize 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 peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing a more direct and specific interest to bring the suit, thus satisfying one of the requirements for granting citizenship standing.17

Petitioners submit that RA 9522 dismembers a large portion of the national territory21 because it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively encoded 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 over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue 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 Treaty of Paris.22

The Writs of Certiorari and Prohibition Are Proper Remedies to Test the Constitutionality of Statutes In praying for the dismissal of the petition on preliminary grounds, 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 grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on the part of petitioners.18

Petitioners theory fails to persuade us. UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long negotiations among United Nations members to codify norms regulating the conduct of States in the worlds oceans and submarine areas, recognizing

Respondents submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of other branches of government.20 Issues of constitutional import are 15

coastal and archipelagic States graduated authority over a limited span of waters and submarine lands along their coasts.

statutes to comply with the treatys terms to delimit maritime zones and 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 baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:

RA 9522s Use of the Framework of Regime of Islands to Determine the Maritime Zones of the KIG and the Scarborough Shoal, not Inconsistent 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 continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. (Emphasis supplied) Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77).

Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG, weakens our territorial claim over that area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the Philippine archipelagic baselines results in the loss of about 15,000 square nautical miles of territorial waters, prejudicing the livelihood of subsistence fishermen.28 A comparison of the configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this view. The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS IIIs limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over the KIG, assuming that baselines are relevant for this purpose.

Even under petitioners theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but from the outermost islands and drying reefs of the archipelago.24 UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and prescription,25 not by executing multilateral treaties on the regulations of sea-use rights or enacting

Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increased the Philippines total maritime space (covering its internal waters, territorial 16

sea and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29 Extent of maritime area using RA 3046, as amended, taking into account the Treaty of Paris delimitation (in square nautical miles) Extent of maritime area using RA 9522, taking into account UNCLOS III (in square nautical miles) Internal or archipelagic waters

continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal: SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as Regime of Islands under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS): a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

166,858 171,435 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 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 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 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

274,136 32,106 Exclusive Economic Zone 382,669 TOTAL 440,994 586,210

Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago,33 such that any straight baseline loped around them from the nearest basepoint will inevitably depart to an appreciable extent from the general configuration of the archipelago.

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will have to be a delineation of maritime boundaries in accordance with UNCLOS III.30

The principal sponsor of RA 9522 in the Senate, Senator Miriam DefensorSantiago, took pains to emphasize the foregoing during the Senate 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 because if we put them inside our baselines we might be accused of violating the provision of international law which states: The drawing of such baseline shall not depart to any appreciable extent from the general configuration of the archipelago. So sa loob ng ating baseline, dapat magkalapit ang mga

Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines 17

islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as our own.

to be located either inland or on water, not on low-water line and drying reefs as prescribed by Article 47.35

This is called contested islands outside our configuration. We see that our archipelago is defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should follow the natural configuration of the archipelago.34 (Emphasis supplied)

Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress decision to classify the KIG and the Scarborough Shoal as Regime[s] of Islands under the Republic of the Philippines consistent with Article 12136 of UNCLOS III manifests the Philippine States responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any naturally formed area of land, surrounded by water, which is above water at high tide, such as portions of the KIG, qualifies under the category of regime of islands, whose islands generate their own applicable maritime zones.37

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. The need to shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became imperative as discussed by respondents:

Statutory Claim Over Sabah under RA 5446 Retained Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS 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 the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. (Emphasis supplied)

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III], which states that The 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 skipped or deleted from the baselines system. This will enclose an additional 2,195 nautical miles of water. 3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic survey methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to Palawan were later found

UNCLOS III and RA 9522 not Incompatible with the Constitutions Delineation of Internal Waters As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally converts internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes 18

passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the Constitution.38

or archipelagic waters, subject to the treatys limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a customary international law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community. The fact that for archipelagic States, their archipelagic waters are subject to 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 their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47

Whether referred to as Philippine internal waters under Article I of the Constitution39 or as archipelagic waters under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this: Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil. 1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast. 2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein. xxxx 4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over 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 (Declaration of Principles and State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative guides, which, absent enabling legislation, do not embody judicially enforceable constitutional rights x x x.49 Article II provisions serve as guides in formulating and interpreting implementing legislation, as well as in interpreting executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII, Section 2, paragraph 251) and subsistence fishermen (Article XIII, Section 752), are not violated by RA 9522.

The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress.41 In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent passage rights over the territorial sea 19

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the international community since the delineation is in 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.

WHEREFORE, we DISMISS the petition. SO ORDERED.

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. 20