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G.R. No. 186114

CHEVRON (PHILS.), INC., Petitioner

vs.
VITALIANO C. GALIT SJS AND SONS CONSTRUCTION CORPORATION and MR. REYNALDO
SALOMON, Respondents

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking the
reversal and setting aside of the Decision1 and Resolution2 of the Court of Appeals (CA), dated
December 8, 2008 and January 20, 2009., respectively, in CA-GR. SP No. 104713. The assailed CA

Decision reversed and set aside the Decision dateq January 31, 2008 and the Resolution dated May
27, 2008 of the National Labor Relations Commission (NLRC), Second Division in NLRC NCR (Case
No.) 00-03-02399-06 (CA No. 051468-07), while the questioned CA Resolution denied petitioner's
Motion for Reconsideration.

The factual and.procedural antecedents of the case are as follows:

On March 20, 2006, herein respondent (Gal it) filed against Caltex Philippines, Inc., now Chevron
(Phils.), Inc., SJS and Sons Construction Corporation (SJS), and its president, Reynaldo Salomon
(Salomon),3 a Complaint4 for illegal dismissal, underpayment/non-payment of 13th month pay,
separation pay and emergency cost of living allowance. The Complaint was filed with the NLRC
National Capital Region, North Sector Branch in Quezon City.

In his Position Paper,5 Galit alleged that: he is a regular and permanent employee of Chevron since
1982, having been assigned at the company's Pandacan depot; he is an "all-around employee"
whose job consists of cleaning the premises of the depot, changing malfunctioning oil gaskets,
transferring oil from containers and other tasks that management would assign to him; in the
performance of his duties, he was directly under the control and supervision of Chevron supervisors;
on January 15, 2005, he was verbally informed that his employment is terminated but was promised
that he will be reinstated soon; for several months, he followed up his reinstatement but was not
given back his job.

In its Position Paper,6 SJS claimed that: it is a corhpany which was established in 1993 and was
engaged in the business of providing manpower to its clients on a "per project/contract" basis; Galit
was hired by SJS in 1993 as a project employee and was assigned to Chevron, as a janitor, based
on a contract between the two companies; contrary to Galit's allegation, he started working for SJS
only in 1993; the manpower contract between SJS and Chevron eventually ended on November 30,
.2004 which resulted in the severance of Galit's employment; SJS finally closed its business
operations in December 2004; it retired from doing business in Manila on January 21, 2005; Galit
was paid separation pay of Pll,000.00.

On the other hand, petitioner contended in its Position Paper with Motion to Dismiss7 that: it entered
into two (2) contracts for. Janitorial services with SJS from May 1, 2001 to April 30, 2003 and from
June 1, 2003 to June 1, 2004; under these contracts, SJS undertook to "assign such number of its
employees, upon prior.agreement with [petitioner], as would be sufficient to fully and effectively
render the wdrk and services undertaken" and to "supply the equipment, tools and materials, which
shall, by all means, be effective and efficient, at its own expense, necessary for the performance"
of.janitorial services; Galit, who was employed by SJS, was assigned to petitioner's Pandacan depot
as a janitor; his wages and all employment benefits were paid by SJS; he was subject to the
supervision, discipline and control of SJS; on November 30, 2004,. the extended contract between
petitioner and SJS expired; subsequently, a new contract for janitorial services was awarded by
petitioner to another independent contractor; petitioner was surprised that Galit filed an action
impleading it; despite several conferences, the parties were not able to arrive at an amicable
settlement.

On October 31, 2006, the Labor Arbiter (LA) assigned to the case rendered a Decision,8 the
dispositive portion of which reads as follows:

WHEREFORE, judgment is, hereby rendered DISMISSING the Complaint against respondent
Chevron for lack of jurisdiction, and against

respondents SJS and Reynaldo Salomon for lack of merit. For equity and compassionate
consideration, however, respondent SJS is hereby ordered to pay the complainant a separation pay
at the rate of a half-month salary for every year of service that the complainant had with respondent
SJS.

SO ORDERED.9

The LA found that SJS is a legitimate contractor and that it was Galit's employer, not petitioner. The
LA dismissed Galit's complaint for illegal dismissal against petitioner for lack of jurisdiction on the
ground that there was no employer-employee relationship between petitioner and Galit. The LA
likewise dismissed the complaint against SJS and Salomon for lack of merit on the basis of his
finding that Galit's employment with SJS simply expired as a result of the completion of the project
for which he was engaged.

Aggrieved, herein respondent filed an appeal10 with the NLRC.

On January 31, 2008, the NLRC rendered its Decision11 and disposed as follows:

WHEREFORE, premises considered, the decision under review is hereby, MODIFIED.

Respondent SJS and Sons Construction Corporation is ordered to pay the complainant, severance
compensation, at the rate of one (1) month salary for every year of service. In all other respects, the
appealed decision so stands as AFFIRMED.

SO ORDERED.12

The NLRC affirmed the findings. of the LA that SJS was a legitimate job contractor and that it was
Galit's employer. However, the NLRC found that Galit was a regular, and not a project employee, of
SJS, whose employment was effectively terminated when SJS ceased to operate.

Herein respondent filed a Motion for Reconsideration,13 but the NLRC denied it in its
Resolution14 dated May 27, 2008.
Respondent then filed a petition for certiorari with the CA assailing the above NLRC Decision and
Resolution.

On December 8, 2008, the CA promulgated its assailed Decision, the dispositive portion of which
reads, thus:

WHEREFORE, premises considered, the petition is GRANTED.

The Decision dated January 31, 2008 and the Resolution dated May 27, 2008 of the NLRC, Second
Division in NLRC NCR [Case No.] 00-03-02399-06 (CA No. 051468-07) are REVERSED and SET
ASIDE.

Judgment is rendered declaring private respondent Chevron Phils. guilty of illegal dismissal and
ordering petitioner Galit's reinstatement without loss of seniority rights and other privileges and
payment of his full backwages, inclusive of allowances and to other benefits or their monetary
equivalents computed from the time compensation was withheld up to the time of actual
reinstatement. Private respondent Chevron Phils. is also hereby ordered to pay 10% of the amount
due petitioner Galit as attorney's fees.

SO ORDERED.15

Contrary to the. findings of the LA and the NLRC, the CA held that SJS was a labor-only contractor,
that petitioner is Galit's actual employer and that the latter was unjustly dismissed from his
employment.

Herein petitioner filed a motion, for reconsideration, but the CA denied it in its Resolution dated
January 20, 2009.

Hence, the present petition for review on certiorari based on the following grounds:

I.

WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN
DECLARING THAT .THE DISMISSAL OF RESPONDENT WAS ILLEGAL CONSIDERING THAT:

A. THE FINDINGS OF FACT OF THE LABOR ARBITER A QUO AND THE NATIONAL LABOR
RELATIONS COMMISSION ARE ALREADY BINDING UPON THE HONORABLE COURT OF
APPEALS.

B. THERE IS NO . EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN THE COMPANY AND

RESPONDENT HEREIN.

C. PETITIONER SJS IS A . LEGITIMATE INDEPENDENT CONTRACTOR.

II.

CONSIDERING THAT THERE IS NO EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN THE

COMPANY 'AND RESPONDENT HEREIN, THE HONORABLE COURT OF APPEALS' AWARD OF
REINSTATEMENT, BACKWAGES, AND ATTORNEY'S FEES AGAINST THE COMPANY HAS NO
LEGAL BASIS.16
On September 19, 2012, this Court issued a Resolution17 directing petitioner to implead SJS as
party-respondent on the ground that it is an indispensable party without whom no final determination
can be had of this case.

In a Motion18 dated November 21, 2012, petitioner manifested its compliance with this Court's
September 19, 2012 Resolution. In addition, it prayed that Salomon be also impleade'd as party-
respondent.

Acting orr petitioner's above Motion, this Court issued another Resolution19 on June 19, 2013, stating
that SJS and Salomon are impleaded as parties-respondents and are required to comment on the
petition for review on certiorari.

However, despite due notice sent to SJS and Salomon at their last known addresses, copies of the
above Resolution were returned unserved. Hence, on October 20, 2014, the Court, acting on Galit's
plea for early resolution of the case, promulgated a Resolution20 resolving to dispense with the filing
by SJS and 'Salomon of their respective comments.

The Court will, thus, proceed to resolve the instant petition.

At the outset, the Court notes that the first ground raised by petitioner consists of factual issues. It is
settled that this Court is not a trier of facts, and this applies with greater force in labor
cases.21 Corollary thereto, this Court has held in. a number of cases that factual findings of
administrative or quasi-judicial bodies, which are deemed to ha;ye acquired expertise in matters
within their respective jurisdictioJ1:S, are generally accorded not only respect but even finality, and
bind the Court when supported by substantial evidence.22 However, it is equally settled that
the.foregoing principles admit of certain exceptions, to wit: (1) the findings are grounded entirely on
speculation, surmises or conjectures; (2) the inference made is manifestly mistaken, absurd or
impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension
of facts; (5) the findings of fact are conflicting; (6) in making its findings, the Court of Appeals went
beyond the issues of the case, or its findings are contrary to the admissions of both appellant and
appellee; (7) the findings are contrary to those of the trial court; (8) the findings are conclusions
without citation of specific evidence on which they are based; (9) the facts set forth in the petition, as
well as in petitioners main and reply briefs, are not disputed by respondent; (10) the findings of fact
are premised on the supposed absence of evidence and contradicted by the evidence on record;
and (11) the Court of Appeals manifestly overlooked certain relevant facts not disputed by the
parties, which, if properly considered, would justify a different conclusion.23 In the instant case, the
Court gives due course to the instant petition considering that the findings of fact and conclusions of
law of the LA and the NLRC differ from those of the CA.

Thus, the primordial question that confronts the Court is whether there existed an employer-
employee relationship between petitioner and Galit, and whether the former ·is liable to the latter for
the termination of his employment. Corollary to this, is the issue of whether or not SJS is an
independent contractor or a labor only contractor.

To ascertain the existence of an employer-employee relationship, jurisprudence has invariably

adhered to the four-fold test, to wit: (1) the selection and engagement of the employee; (2) the
payment of wages; (3)

the power of dismissal; and (4) the power to control the employee's conduct, or the so-called "control
test."24 Of these four, the last one is the most important.25 The so-called "control test" is commonly
regarded as the most crucial and determinative indicator of the presence or absence of an employer-
employee relationship.26 Under the control test, an employer-employee relationship exists where the
person for whom the services are performed reserves the right to contrpl. not only the end achieved,
but also the manner and means to be used in reaching that end.27

In the instant case, the true nature of Galit's employment is evident from the Job Contract between
petitioner and SJS, pertinent portions of which are reproduced hereunder:

xxxx

1.1 The CONTRACTOR [SJS] shall provide the following specific services to the COMPANY
[petitioner]:

xxxx

1. Scooping of slop of oil water separator

2. Cleaning of truck parking area/drum storage area and pier

xxxx

4.1 In the fulfillment of its obligations to the COMPANY, the CONTRACTOR shall select and hire its
workers. The CONTRACTOR alone shall be responsible for the payment of their wages and other
employment benefits and likewise for the safeguarding of their health and safety in accordance with
existing laws and regulations. Likewise, the CONTRACTOR shall be responsible for the discipline
and/or dismissal of these workers.

4.2 The CONTRACTOR shall retain the right to control the manner and the means of performing the
work, with the COMPANY having the control or direction only as to the results to be accomplished.

xxxx

4.4 It is understood that, for the above reasons, these workers shall be considered as the employees
of the CONTRACTOR. Under no circumstances, shall these workers be deemed directly or indirectly
as the employees of the COMPANY.

xxxx

5.1 The CONTRACTOR shall maintain efficient and effective discipline over any and all employees it
may utilize in performing its obligations under this CONTRACT. x x x

5.2 The COMPANY shall in no manner be arrnwerable or accountable for any incident or injury
which may occur to any worker or personnel of.the CONTRACTOR during the time and consequent
upon the performance of the work and services under this Agreement, nor for any injury, loss or
damage arising from fault, negligence or carelessness of the CONTRACTOR or anyone of its
workers to any person or persons or to his or their property; and the CONTRACTOR covenants and
agrees to assume, as it does hereby assume, all liabilities for any such injury, loss or damage and to
make the COMPANY free and blameless therefrom.x x x

5.3. The CONTRACTOR shall be responsible for any loss or damage that may be incurred upon the
products, properties and installations of the COMPANY during the effectivity of this Contract which
are due to the unreasonable or negligent act of the CONTRACTOR, its agents or its workers.
 xxxx

6.1 The CONTRACTOR shall at its own expense maintain with a reputable insurance company,
acceptable to the CQMPANY, a comprehensive liability insurance in the amount required by the
COMPANY to cover claims for bodily injury, death or property damage caused to any person or
persons by an act or omission of the CONTRACTOR or any of its employees, agents or
representatives.

xxxx

x x x [T]he CONTRACTOR agrees and undertakes:

xxxx

b. To submit satisfactory proof to the COMPANY that it has registered its persqnnel/workers
assigned to perform the work and services herein required with the Social Security System,
Medicare and other appropriate agencies for purposes of the Labor Code as well as other laws,
decrees, rules and regulations.

c. To pay the wages or salaries of its personnel/workers as well as benefits, premia and protection in
accordance with the provisions of the Labor Code and other applicable laws, decrees, rules and
regulations promulgated by competent authority. x x x

d. To assign such number of its employees, upon prior agreement with the COMPANY, as would be
sufficient to fully and effectively render the work and services herein undertaken. x x x

e. To supply the equipment, tools and materials, which shall, by all means, be effective and efficient,
at its own expense, necessary for the performance of the services under this Contract.28

The foregoing provisions of the Job Contract between petitioner and SJS demonstrate that the fatter
possessed the following earmarks of an employer, to wit: (1) the power of selection and engagement
of employees, under Sections 4.1 and 6.l(d); (2) the payment of wages, under Sections 4.1 and
6.l(c); (3) the power to discipline and dismiss, under" Section 4.1; and,

(4) the power to control the employee's conduct, under Sections 4.1, 4.2, and 5.1.

As to SJS' power of selection and engagement, Galit himself admitted in his own affidavit that it was
SJS which assigned him to work at Chevron's Pandacan depot.29 As such, there is no question that it
was SJS which selected and engaged Galit as its employee.

With respect to the payment of wages, the Court finds no error in the findings of the LA that Galit
admitted that it was SJS which paid his wages.

While Galit claims that petitioner was the one which actually paid his wages and that SJS was
merely used as a conduit, Galit failed to present evidence to this effect. Galit, likewise, failed to
present sufficient proof to back up his claim that it was petitioner, and not SJS, which actually paid
his SSS, Philhealth and Pag-IBIG premiums. Ori the contrary, it is.unlikely that SJS would report
Galit as its worker, pay his SSS, Philhealth and Pag-IBIG premiums, as w~ll as his wages, if it were
not true that he was indeed its employee.30 In the same manner, the Quitclaim and Release,31 which
was
undisputedly signed by Galit, acknowledging receipt of his separation pay from SJS, is an indirect
admission or recognition of the fact that the latter was indeed his employer. Again, it would be
unlikely for SJS to pay Galit his separation pay if it is not the latter's employer.

Galit also did not dispute the fact that he was dismissed from employment by reason of the
termination of the service contract between SJS and petitioner. In other words, it was not petitioner
1âw phi 1

which ended his employment. He was dismissed therefrom because petitioner no longer renewed its
contract with SJS and that the latter subsequently ceased to operate.

Anent the power of control, the Court again finds no cogent reason to depart from the findings of the
NLRC that in case of matters that needed to be addressed with respect to employee performance,
petitioner dealt directly with SJS and not with the employee concerned. In any event, it is settled that
such power merely calls for the existence of the right to control and not necessarily the exercise
thereof. In the present case, the Job Contract between petitioner and SJS clearly provided that. SJS
"shall retain the right to control the manner and the means of performing the work, with [petitioner]
having the control or direction only as to the results to be accomplished."32

In addition, it would bear to point out that contrary to the ruling of the CA, the work performed by
Galit, which is the "scooping of slop of oil water separator,"33 has no direct relation to petitioner's
business, which is the importation, refining and manufacture of petroleum products. The Court
defers to the findings of both the LA and the NLRC that the job performed by Galit, which essentially
consists of janitorial services, may be incidental or desirable to petitioner's main activity but it is not
necessary and directly related to it.

As to whether or not SJS is an independent contractor, jurisprudence has invariably ruled that an
independent contractor carries on an independent business and undertakes the contract work on his
own account, under his own responsibility, according to his own manner and method, and free from
the control and direction of his employer or principal in all matters connected with the performance of
the work except as to the results thereof.34 This embodies what has long been jurisprudentially
recognized as the control test, as discussed above. In the instant case, SJS presented evidence to
show that it had an independent business by paying business taxes and fees and that it was
registered as an employer with the Social Security System. Moreover, there was no evidence to
show that SJS and its employees were ever subject to the control of petitioner. On the contrary, as
shown above, SJS possessed the right to control its employees' manner and means of performing
their work, including herein respondent Galit.

As to its capital, there is no dispute that SJS generated an income of ₱1,523,575.81 for the year
2004.35 In Neri v. National Labor Relations Commission,36 this Court held that a business venture
which had a capitalization of ₱1,000,000.00 was considered as highly capitalized and cannot be
deemed engaged in labor-only contracting. In the present case, while SJS' income of more than
₱1,500,000.00 was not shown to be equivalent to its authorized capital stock, such income is an
indication of how much capital was put into its business to generate such amount of revenue. Thus,
the Court finds no sufficient reason to disturb the findings of the LA and the NLRC that SJS had
substantial capital.

WHEREFORE, the instant petition is GRANTED. The assailed Decision and Resolution of the Court
of Appeals, dated December 8, 2008 and January 20, 2009, respectively, are REVERSED and SET
ASIDE. The Decision of the National Labor Relations Commission, dated January 31, 2008 in NLRC
NCR [Case No.] 00-03-02399-06 (CA No. 051468-07) is REINSTATED.

SO ORDERED.
DIOSDADO M. PERALTA*
Associate Justice

WE CONCUR:

MARTIN S. VILLARAMA, JR.

Associate Justice

ESTELA M. PERLAS-BERNABE** MARVIC M.V.F. LEONEN***

Associate Justice Associate Justice

FRANCIS H. JARDELEZA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decisionhad been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

DIOSDADO M. PERALTA
Associate Justice
Acting Chairperson, Third Division

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution and the Division Acting Chairperson’s
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

*
Per Special Order No. 2203 dated September 22, 2015.

Designated Actmg Member in lieu of Associate Justice Bienvenido L. Reyes per Special
**

Order No. 2245 dated October 5, 2015.

Designated Acting Member in lieu of Associate Justice Presbitero J. Velasco, Jr. per
***

Special Order No. 2204 dated September 22. 2015.

1
Penned by Associate .Justice Remedios A. Salazar-Fernando, with Associate Justices
Rosalinda Asuncion-Vicente and Ramon M. Bato, Jr., concurring; Annex '"A" to
Petition, rollo, pp. 36-51.

2
Annex "B" to Petition, id. at 52-54.
3
Also spelled as·"Solomon" in other parts of the rollo and records.

4
Records, vol. I, p. 2.

5
Id. at 8-26.

6
Id. at 29-34.

7
Id. at 67-87.

8
Id. at 125-134.

9
Id. at 134.

10
Id. at 143-165.

11
Id. at 209-217.

12
ld.at 216.

13
Id. at 219-245.

14
Id. at 247-249.

15
Rollo, p. 50. (Emphasis in the original)

16
Id. at 5-6. (Emphasis omitted)

17
Id. at 683-684.

18
Id. at 707-711.

19
Id. at 722.

20
Id. at last page (795).

21
New City Builders, Inc. v. NLRC, 499 Phil. 207. 211 (2005).

22
Merck Sharp and Dohme (Phils.), et al. v. Robles, et. al., 620·Phil. 505, 512 (2009).

23
Id.

24
Atok Big Wedge Co., Inc. v. Gison, 670 Phil. 615, 626-627 (2011).

25
Id. at 627.

26
Id.

27
Id.
 28
Rollo, pp. 76-80.

29
See records, vol. I, p. 27.

30
Corporal, Sr., v. NLRC, 395 Phil. 890, 90 I (2000); Escasinas, et al. v. Shangri-la's Mactan
Island Resort, et al., 599 Phil. 746, 757 (2009).

31
See rollo, p. 347.

32
See rollo, p. 77. 33 Id. at 93; 96.

Alilin v. Petron Corporation, G.R. No. 177592, June 9, 2014, 725 SCRA 342, 357; First
34

Philippine Industrial Corporation v. Calimbas, G.R. No. 179256, July 10, 2013, 701 SCRA I,
14.

35
See rollo, p. 127.

36
G.R. Nos. 97008-09, July 23, 1993, 224 SCRA 717, 720.

uly 30, 1996.--Ordered to be printedo. 209185 October 25, 2013

MARC DOUGLAS IV C. CAGAS, Petitioner,

vs.
COMMISSION ON ELECTIONS represented by its CHAIRMAN ATTY. SIXTO BRILLANTES JR.
and the PROVINCIAL ELECTION OFFICER OF DAVAO DEL SUR, represented by ATTY. MA.
FEBES BARLAAN,Respondents.

RESOLUTION

CARPIO, J.:

This Resolution resolves the Petition for Prohibition,1 filed by Marc Douglas IV C. Cagas (Cagas), in
his capacity as taxpayer, to prohibit the Commission on Elections (COMELEC) from conducting a
plebiscite for the creation of the province of Davao Occidental simultaneously with the 28 October
2013 Barangay Elections within the whole province of Davao del Sur, except in Davao City.

Cagas, while he was representative of the first legislative district of Davao del Sur, filed with Hon.
Franklin Bautista, then representative of the second legislative district of the same province, House
Bill No. 4451 (H.B. No. 4451), a bill creating the province of Davao Occidental. H.B. No. 4451 was
signed into law as Republic Act No. 10360 (R.A. No. 10360), the Charter of the Province of Davao
Occidental.

Sections 2 and 7 of R.A. No. 10360 provide for the composition of the new provinces of Davao
Occidental and Davao del Sur:
Sec. 2. Province of Davao Occidental. – There is hereby created a new province from the present
Province of Davao del Sur to be known as the Province of Davao Occidental, consisting of the
municipalities of Sta. Maria, Malita, Don Marcelino, Jose Abad Santos and Sarangani. The territorial
jurisdiction of the Province of Davao Occidental shall be within the present metes and bounds of all
the municipalities that comprise the Province of Davao Occidental.

xxxx

Sec. 7. Legislative District. – The Province of Davao Occidental shall have its own legislative district
to commence in the next national and local elections after the effectivity of this Charter. Henceforth,
the municipalities of Sta. Maria, Malita, Don Marcelino, Jose Abad Santos and Sarangani shall
comprise the Lone Legislative District of the Province of Davao Occidental while the City of Digos
and the municipalities of Malalag, Sulop, Kiblawan, Padada, Hagonoy, Sta. Cruz, Matanao,
Bansalan and Magsaysay shall comprise the Lone Legislative District of the Province of Davao del
Sur.

xxxx

Section 46 of R.A. No. 10360 provides for the date of the holding of a plebiscite.

Sec. 46. Plebiscite. – The Province of Davao Occidental shall be created, as provided for in this
Charter, upon approval by the majority of the votes cast by the voters of the affected areas in a
plebiscite to be conducted and supervised by the Commission on Elections (COMELEC) within sixty
(60) days from the date of the effectivity of this Charter.

The amount necessary for the conduct of the plebiscite shall be borne by the COMELEC.

R.A. No. 10360 was passed by the House of Representatives on 28 November 2012, and by the
Senate on 5 December 2012. President Benigno S. Aquino III approved R.A. No. 10360 on 14
January 2013.2 R.A. No. 10360 was published in the Philippine Star and the Manila Bulletin only on
21 January 2013. Considering that R.A. No. 10360 shall take effect 15 days after its publication in at
least two newspapers of general and local circulation,3COMELEC, therefore, only had until 6 April
2013 to conduct the plebiscite.4

As early as 27 November 2012, prior to the effectivity of R.A. No. 10360, the COMELEC suspended
the conduct of all plebiscites as a matter of policy and in view of the preparations for the 13 May
2013 National and Local Elections.5 On 9 July 2013, the COMELEC extended

the policy on suspension of the holding of plebiscites by resolving to defer action on the holding of all
plebiscites until after the 28 October 2013 Barangay Elections.6 During a meeting held on 31 July
2013, the COMELEC decided to hold the plebiscite for the creation of Davao Occidental
simultaneously with the 28 October 2013 Barangay Elections to save on expenses7 . The
COMELEC, in Minute Resolution No. 13-0926, approved the conduct of the Concept of Execution for
the conduct of the plebiscite on 6 August 2013.8 On 14 August 2013, Bartolome J. Sinocruz, Jr., the
Deputy Executive Director for Operations of the COMELEC, issued a memorandum furnishing a
copy of Minute Resolution No. 13-0926 to Atty. Remlane M. Tambuang, Regional Election Director
of Region XI; Atty. Ma. Febes M. Barlaan, Provincial Election Supervisor of Davao del Sur; and to all
election officers of Davao del Sur. On 6 September 2013, the COMELEC promulgated Resolution
Nos. 97719 and 9772.10Resolution No. 9771 provided for the following calendar of activities:

DATE/PERIOD ACTIVITIES PROHIBITED ACTS

SEPT. 09, 2013 Last day to constitute the Plebiscite
(MON) Board of Canvassers

SEPT. 28, 2013 PLEBISCITE PERIOD Bearing, carrying or transporting

(SAT) – NOV. 12, firearms or other deadly
2013 (TUE) (30 weapons in public places,
DAYS BEFORE including any building, street,
THE DATE OF park, private vehicle or public
PLEBISCITE AND conveyance, or even if licensed
15 DAYS to possess or carry the same,
THEREAFTER unless authorized in writing by
the Commission (Sec. 261 (p)
(q) OEC, as amended by Sec.
32, RA 7166);
Suspension of local elective
officials (Sec. 261 (x), OEC);
Transfer of officers and
employees in the civil service
(Sec. 261 (h), OEC);

Alteration of territory of a
precinct or establishment of a
new precinct (Sec. 5, R.A. 8189)

Organizing or maintaining
reaction/strike forces or similar
forces (Sec. 261, (u), OEC);
Illegal release of prisoners (Sec.
261 (n), OEC);
Use of security personnel or
bodyguards by candidates,
whether or not such bodyguards
are regular members or officers
of the Philippine National Police
or Armed Forces of the
Philippines or other law
enforcement agency (Sec. 261
(t), OEC, as amended by Sec.
33, RA 7166);

1
 Release, disbursement or
expenditures of public funds
(Sec. 261 (v), OEC);Construction
of public works, delivery of
materials for public works and
issuance of treasury warrants or
similar devices for a future
undertaking chargeable against
public funds (Sec. 261, (w)
OEC).

SEPTEMBER 28, INFORMATIONCAMPAIGN PERIOD Making any donation or gift in

2013 (SAT) to cash or in kind, etc. (Sec. 104,
OCTOBER 26, OEC);Use of armored/ land/
2013 (SAT) water/ air craft. (Sec. 261 (r),
OEC);Appointing or using
special policemen, special/
confidential agents or the like.
(Sec. 261 (m), OEC);
SEPTEMBER 28, Issuance of appointments,
2013 (SAT) to promotions, creation of new
OCTOBER 28, positions, or giving of salary
2013 (MON) increases.

OCTOBER 27, EVE OF PLEBISCITE DAY Campaigning (Sec. 3, OEC);

2013 (SUN)
Giving, accepting free
transportation, foods, drinks, and
things of value (Sec. 89, OEC);

Selling, furnishing, offering,

OCTOBER 28, PLEBISCITE DAYCasting of votes-
2013 (MON) (from 7:00 a.m. to 3:00 p.m.
simultaneous with the voting for the
Barangay and SK Elections)Counting
of votes shall be after the counting of
votes for Barangay and SK
Elections)Convening of the City
Plebiscite Board of Canvassers –
(6:00 p.m.)
buying, serving or taking
intoxicating liquor (Sec. 261 (dd),
(1), OEC).(NOTE: Acts
mentioned in the three (3)
preceding paragraphs are
prohibited until election day.)
Vote-buying and vote selling
(Sec. 261 (a), OEC);Voting more
than once or in substitution of
another (Sec. 261 (z) (2) and (3),
OEC);Campaigning (Sec. 3,
OEC);Soliciting votes or
undertaking any propaganda for
or against any candidate or any
political party within the polling
 place or within thirty (30) meters
thereof (Sec. 261 (cc) (6),
OEC);Selling, furnishing,
offering, buying, serving or
taking intoxicating liquor, etc.
(Sec. 261 (dd) (1),
OEC);Opening of booths or stalls
for the sale, etc., of wares,
merchandise or refreshments,
within thirty (30) meters radius
from the polling place. (Sec. 261
(dd) (2) OEC);Giving and/or
accepting free transportation,
food, drinks and things of value
(Sec. 89, OEC);Holding of fairs,
cockfights, boxing, horse races
or similar sports. (Sec. 261 (dd)
(3), OEC).

Resolution No. 9772, on the other hand, provided that copies of R.A. No. 10360 be posted11 and that
information campaigns be conducted prior to the plebiscite.12

On 9 October 2013, Cagas filed the present petition for prohibition. Cagas cites three causes of
action:

1. COMELEC is without authority or legal basis to AMEND or MODIFY Section 46 of Republic Act
No. 10360 by mere MINUTE RESOLUTION because it is only CONGRESS who can validly amend,
repel [sic] or modify existing laws, thus COMELEC [sic] act in suspending the holding of a plebiscite
is unconstitutional;13

2. COMELEC is without authority or legal basis to hold a plebiscite this coming October 28, 2013 for
the creation of the Province of Davao Occidental because Section 46 of Republic Act No. 10360 has
already lapsed;14 and

3. Petitioner has no other adequate remedy to prevent the COMELEC from holding the Plebiscite on
October 28, 2013 for the creation of the Province of Davao Occidental except through the issuance
of Temporary Restraining Order and Preliminary Injunction because COMELEC had already
commenced the preparation for holding of the Plebiscite for the creation of the Province of Davao
Occidental synchronizing it with that of the Barangay and SK elections this coming October 28,
2013.15

On 17 October 2013, we issued a Resolution requiring respondents COMELEC, represented by its

Chairperson, Hon. Sixto Brillantes, Jr., and the Provincial Election Officer of Davao del Sur,
represented by Atty. Ma. Febes Barlaan, to file their comment to Cagas’ petition not later than 21
October 2013.
The respondents, through the Office of the Solicitor General (OSG), filed their comment on 21
October 2013. The OSG raises the following arguments:

1. The 1987 Constitution does not fix the period to hold a plebiscite for the creation of a local
government unit;

2. There was logistical and financial impossibility for the COMELEC to hold a plebiscite at a
mere two months’ notice;

3. Legislative intent is for R.A. No. 10360 to be implemented;

4. Public interest demands that the plebiscite be conducted; and

5. The COMELEC did not abuse its discretion in issuing the questioned Resolutions.16

In this Resolution, we simplify the issues raised by the parties, thus: Did the COMELEC act without
or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction when it resolved to hold the plebiscite for the creation of the Province of Davao
Occidental on 28 October 2013, simultaneous with the Barangay Elections?

We answer in the negative.

The COMELEC’s power to administer elections

includes the power to conduct a plebiscite beyond the schedule

prescribed by law.

The conduct of a plebiscite is necessary for the creation of a province. Sections 10 and 11 of Article
X of the Constitution provide that:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or
its boundary substantially altered, except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected.

Sec. 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a
plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their
basic autonomy and shall be entitled to their own local executive and legislative assemblies. The
jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services
requiring coordination. Section 10, Article X of the Constitution emphasizes the direct exercise by the
people of their sovereignty. After the legislative branch’s enactment of a law to create, divide, merge
or alter the boundaries of a local government unit or units, the people in the local government unit or
units directly affected vote in a plebiscite to register their approval or disapproval of the change.17

The Constitution does not specify a date as to when plebiscites should be held. This is in contrast
with its provisions for the election of members of the legislature in Section 8, Article VI18 and of the
President and Vice-President in Section 4, Article VII.19 The Constitution recognizes that the power
to fix the date of elections is legislative in nature, which is shown by the exceptions in previously
mentioned Constitutional provisions, as well as in the election of local government officials.20

Section 10 of R.A. No. 7160 furnishes the general rule as to when a plebiscite may be held:

Sec. 10. Plebiscite Requirement. – No creation, division, merger, abolition, or substantial alteration
of boundaries of local government units shall take effect unless approved by a majority of the votes
cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite
shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120)
days from the date of effectivity of the law or ordinance effecting such action, unless said law or
ordinance fixed another date.

Section 46 of R.A. No. 10360, however, specifically provides that the plebiscite for the creation of the
province of Davao Occidental be held within 60 days from the effectivity of R.A. No. 10360, or until 6
April 2013.21 Cagas claims that R.A. No. 10360 "did not confer express or implied power to
COMELEC to exercise discretion when the plebiscite for the creation of the Province of Davao
Occidental will be held. On the contrary, said law provides a specific period when the COMELEC
should conduct a plebiscite."22 Cagas views the period "60 days from the effectivity" in R.A. No.
10360 as absolute and mandatory; thus, COMELEC has no legal basis to hold a plebiscite on 28
October 2013.

The Constitution, however, grants the COMELEC the power to "enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall."23 The
COMELEC has "exclusive charge of the enforcement and administration of all laws relative to the
conduct of elections for the purpose of ensuring free, orderly and honest elections."24 The text and
intent of Section 2(1) of Article IX(C) is to give COMELEC "all the necessary and incidental powers
for it to achieve the objective of holding free, orderly, honest, peaceful and credible elections."25

Sections 5 and 6 of Batas Pambansa Blg. 881 (B.P. Blg. 881) the Omnibus Election Code, provide
the COMELEC the power to set elections to another date.

Sec. 5. Postponement of election.- When for any serious cause such as violence, terrorism, loss or
destruction of election paraphernalia or records, force majeure, and other analogous causes of such
a nature that the holding of a free, orderly and honest election should become impossible in any
political subdivision, the Commission, motu proprio or upon a verified petition by any interested
party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity
to be heard, shall postpone the election therein to a date which should be reasonably close to the
date of the election not held, suspended or which resulted in a failure to elect but not later than thirty
days after the cessation of the cause for such postponement or suspension of the election or failure
to elect.

Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other
analogous causes the election in any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the voting and during
the preparation and the transmission of the election returns or in the custody or canvass thereof,
such election results in a failure to elect, and in any of such cases the failure or suspension of
election would affect the result of the election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and hearing, call for the holding or continuation
of the election not held, suspended or which resulted in a failure to elect on a date reasonably close
to the date of the election not held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause of such postponement or suspension of the election or
failure to elect.

The tight time frame in the enactment, signing into law, and effectivity of R.A. No. 10360 on 5
February 2013, coupled with the subsequent conduct of the National and Local Elections on 13 May
2013 as mandated by the Constitution, rendered impossible the holding of a plebiscite for the
creation of the province of Davao Occidental on or before 6 April 2013 as scheduled in R.A. No.
10360. We also take judicial notice of the COMELEC’s burden in the accreditation and registration of
candidates for the Party-List Elections.26 The logistic and financial impossibility of holding a plebiscite
so close to the National and Local Elections is unforeseen and unexpected, a cause analogous to
force majeure and administrative mishaps covered in Section 5 of B.P. Blg. 881. The COMELEC is
justified, and did not act with grave abuse of discretion, in postponing the holding of the plebiscite for
the creation of the province of Davao Occidental to 28 October 2013 to synchronize it with the
Barangay Elections.

The OSG illustrated the COMELEC’s predicament in this manner:

To be sure, at the time R.A. No. 10360 was approved, the COMELEC had to deliver and accomplish
the following, among many others, for the May 2013 National and Local Elections:

1. Preparation of the Project of Precincts indicating the total number of established precincts
and the number of registered voters per precincts [sic] in a city or municipality.

2. Constitution of the Board of Election Inspectors including the precincts where they will be
assigned and the barangay where the precinct is located.

3. Inspection, verification and sealing of the Book of Voters containing the approved voter
registration records of registered voters in the particular precinct which must be inspected,
verified, and sealed.

4. Finalization and printing of the computerized voters list for use on election day.

5. The preparation, bidding, printing and distribution of the voters’ information.

6. Configuration, testing, and demonstration of the PCOS machines and their distribution to
the different precincts.

To comply with the 60-day period to conduct the plebiscite then, as insisted, petitioner would have
the COMELEC hold off all of its above tasks. If COMELEC abandoned any of its tasks or did not
strictly follow the timetable for the accomplishment of these tasks then it could have put in serious
jeopardy the conduct of the May 2013 National and Local Elections. The COMELEC had to focus all
its attention and concentrate all its manpower and other resources on its preparation for the May
2013 National and Local Elections, and to ensure that it would not be derailed, it had to defer the
conduct of all plebiscites including that of R.A. No. 10360.

Parenthetically, for the COMELEC to hold the plebiscite for the ratification of R.A. No. 10360 within
the fixed period, it would have to reconfigure for said purpose some of the PCOS machines that
were already configured for the May 2013 National and Local Elections; or in the alternative, conduct
the plebiscite manually.

However, conducting the plebiscite manually would require another set of ballots and other election
paraphernalia. Besides, another set of election materials would also require additional logistics for
printing, checking, packing, and deployment thereof. Lest it be forgotten, that all of these things
should undergo public bidding.

Since the plebiscite would be a separate undertaking, the COMELEC would have to appoint
separate sets of boards of election inspectors, tellers, and other personnel to canvass the result of
the plebiscite – all of which would have entailed further cost for the COMELEC whose budget had
already been overly stretched to cover the May 2013 National and Local Elections.

More importantly, it bears stressing that the COMELEC was not given a special budget to defray the
cost of the plebiscite. In fact, the COMELEC had to take ₱11 million from its savings and from the
Barangay Elections budget to finance the plebiscite to ratify R.A. No. 10360 on October 28, 2013.

The COMELEC’s questioned Resolution then directing the holding of the plebiscite for the ratification
of R.A. No. 10360 simultaneously with the Barangay Elections was not an abuse of its discretion, as
alleged, but simply an exercise of prudence, because as the COMELEC itself noted, doing so "will
entail less expense than holding it separately." [p. 9, Resolution No. 13-0926, Annex B, Petition.]

The determination of the feasibility of holding a plebiscite on a given date is within the competence
and discretion of the COMELEC. Petitioner cannot therefore simply insist that the COMELEC should
have complied with the period specified in the law when doing so would be virtually impossible under
the circumstances.27

This Court has rejected a too literal interpretation of election laws in favor of holding free, orderly,
honest, peaceful and credible elections.

In Pangandaman v. COMELEC,28 Lining Pangandaman (Pangandaman) filed a petition for certiorari

and prohibition with prayer for temporary restraining order and preliminary injunction to challenge the
Omnibus Order of the COMELEC En Banc. The COMELEC En Banc ordered the conduct of special
elections in certain municipalities in Lanao del Sur on 18 and 25 July 1998, or more than 30 days
after the failure of elections on 11 May 1998. Like Cagas, Pangandaman insisted on a strict
compliance with the schedule of the holding of special elections. Pangandaman asserted that
COMELEC’s authority to call a special election was limited by the 30-day period and that Congress
had the power to call a special election after the 30th day. We admonished Pangandaman against a
too literal interpretation of the law, and protected COMELEC’s powers against the straitjacketing by
procedural rules.
It is a basic precept in statutory construction that a statute should be interpreted in harmony with the
Constitution and that the spirit, rather than the letter of the law determines its construction; for that
reason, a statute must be read according to its spirit and intent. Thus, a too literal interpretation of
the law that would lead to absurdity prompted this Court to —

x x x admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill its
purpose and defeat the intention of its authors. That intention is usually found not in ‘the letter that
killeth but in the spirit that vivifieth’ x x x

Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power to "enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall." There can hardly be any doubt that the text and intent of this constitutional
provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective
of holding free, orderly, honest, peaceful and credible elections.

Pursuant to this intent, this Court has been liberal in defining the parameters of the COMELEC’s
powers in conducting elections. As stated in the old but nevertheless still very much applicable case
of Sumulong v. COMELEC:

Politics is a practical matter, and political questions must be dealt with realistically — not from the
standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its
contacts with political strategists, and its knowledge derived from actual experience in dealing with
political controversies, is in a peculiarly advantageous position to decide complex political questions
x x x. There are no ready made formulas for solving public problems. Time and experience are
necessary to evolve patterns that will serve the ends of good government. In the matter of the
administration of laws relative to the conduct of election x x x we must not by any excessive zeal
take away from the Commission on Elections that initiative which by constitutional and legal
mandates properly belongs to it.

More pointedly, this Court recently stated in Tupay Loong v. COMELEC, et al., that "Our elections
are not conducted under laboratory conditions. In running for public offices, candidates do not follow
the rules of Emily Post. Too often, COMELEC has to make snap judgments to meet unforeseen
circumstances that threaten to subvert the will of our voters. In the process, the actions of
COMELEC may not be impeccable, indeed, may even be debatable. We cannot, however, engage
in a swivel chair criticism of these actions often taken under very difficult circumstances."

The purpose of the governing statutes on the conduct of elections —

x x x is to protect the integrity of elections to suppress all evils that may violate its purity and defeat
the will of the voters. The purity of the elections is one of the most fundamental requisites of popular
government. The Commission on Elections, by constitutional mandate, must do everything in its
power to secure a fair and honest canvass of the votes cast in the elections. In the performance of
its duties, the Commission must be given a considerable latitude in adopting means and methods
that will insure the accomplishment of the great objective for which it was created — to promote free,
orderly, and honest elections. The choice of means taken by the Commission on Elections, unless
they are clearly illegal or constitute grave abuse of discretion, should not be interfered with.
Guided by the above-quoted pronouncement, the legal compass from which the COMELEC should
take its bearings in acting upon election controversies is the principle that " clean elections control
the appropriateness of the remedy."

In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be later
than thirty (30) days after the cessation of the cause of the postponement or suspension of the
election or the failure to elect; and, 2.] it should be reasonably close to the date of the election not
held, suspended or which resulted in the failure to elect. The first involves a question of fact. The
1av vphi1

second must be determined in the light of the peculiar circumstances of a case. Thus, the holding of
elections within the next few months from the cessation of the cause of the postponement,
suspension or failure to elect may still be considered "reasonably close to the date of the election not
held."

In this case, the COMELEC can hardly be faulted for tardiness. The dates set for the special
elections were actually the nearest dates from the time total/partial failure of elections was
determined, which date fell on July 14, 1998, the date of promulgation of the challenged Omnibus
Order. Needless to state, July 18 and 25, the dates chosen by the COMELEC for the holding of
special elections were only a few days away from the time a total/partial failure of elections was
declared and, thus, these were "dates reasonably close" thereto, given the prevailing facts herein.
Furthermore, it bears stressing that in the exercise of the plenitude of its powers to protect the
integrity of elections, the COMELEC should not and must not be straitjacketed by procedural rules in
the exercise of its discretion to resolve election disputes.29

In Sambarani v. COMELEC,30 petitioners were candidates for punong barangay in different

barangays in Lanao del Sur. There was a failure of elections in the 15 July 2002 Synchronized
Barangay and Sangguniang Kabataan (SK) Elections, and special elections were set on 13 August
2002 in the affected barangays. No special elections were held on 13 August 2002, so petitioners
asked the COMELEC to declare a failure of elections in their barangays and to hold another special
election. The COMELEC, however, directed the Department of Interior and Local Government to
appoint the Barangay Captains, Barangay Kagawads, SK Chairmen, and SK

Kagawads in the affected barangays. The COMELEC stated that it is no longer in a position to call
for another special election since Section 6 of the Omnibus Election Code provides that "special
elections shall be held on a date reasonably close to the date of the election not held, but not later
than thirty days after cessation of the cause of such postponement."

We directed the COMELEC to conduct special elections and stated that the deadline cannot defeat
the right of suffrage of the people.

The prohibition on conducting special elections after thirty days from the cessation of the cause of
the failure of elections is not absolute. It is directory, not mandatory, and the COMELEC possesses
1âwphi1

residual power to conduct special elections even beyond the deadline prescribed by law. The
deadline in Section 6 cannot defeat the right of suffrage of the people as guaranteed by the
Constitution. The COMELEC erroneously perceived that the deadline in Section 6 is absolute. The
COMELEC has broad power or authority to fix other dates for special elections to enable the people
to exercise their right of suffrage. The COMELEC may fix other dates for the conduct of special
elections when the same cannot be reasonably held within the period prescribed by law.31
It is thus not novel for this Court to uphold the COMELEC’s broad power or authority to fix other
dates for a plebiscite, as in special elections, to enable the people to exercise their right of suffrage.
The COMELEC thus has residual power to conduct a plebiscite even beyond the deadline
prescribed by law. The date 28 October 2013 is reasonably close to 6 April 2013, and there is no
reason why the plebiscite should not proceed as scheduled by the COMELEC. The OSG points out
that public interest demands that the plebiscite be conducted.

At this point, there is nothing more for the COMELEC to do except to hold the plebiscite as
scheduled on October 18, [sic] 2013. In fact, the COMELEC already scheduled the shipment and
deployment of the election paraphernalia to all the precincts in Davao del Sur, except Davao City.

The COMELEC had put so much work and effort in its preparation for the conduct of the plebiscite. A
substantial amount of funds have also been defrayed for the following election undertakings:

1 Bidding for election paraphernalia;

2 Cleansing of voters registration list;

3 Preparation, bidding, printing and distribution of the voters information;

4 Preparation and completion of the projects of precincts;

5 Printing of ballots;

6 Constitution of the Board of Election Inspectors;

7 Training and assignment of personnel; and

8 Information dissemination campaign.

To demand now that the COMELEC desist from holding the plebiscite would be an utter waste of
time, effort and resources, not to mention its detriment to public interest given that public funds are
involved.32

In election law, the right of suffrage should prevail over mere scheduling mishaps in holding
elections or plebiscites. Indeed, Cagas insistence that only Congress can cure the alleged legal
infirmity in the date of holding the plebiscite for the creation of the Province of Davao Occidental fails
in light of the absence of abuse of discretion of the COMELEC. Finally, this Court finds it
unacceptable to utilize more of our taxpayers time and money by preventing the COMELEC from
holding the plebiscite as now scheduled.

WHEREFORE, we DISMISS the petition for lack of merit.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice
WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

(On official leave)

LUCAS P. BERSAMIN
MARIANO C. DEL CASTILLO*
Associate Justice
Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

(On official leave)

JOSE CATRAL MENDOZA
JOSE PORTUGAL PEREZ**
Associate Justice
Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

* On official leave.

** On official leave.
1 Under Rule 65, Section 2 of the Rules of Court.

2The history of H.B. No. 4451 is provided in

http://www.congress.gov.ph/legis/search/hist_show.
php?congress=15&save=1&journal=&switch=0&bill_no=HB04451 (accessed 23 October
2013) as follows:

NO. HB04451REPUBLIC ACT NO. RA10360

FULL TITLE: AN ACT CREATING THE PROVINCE OF DAVAO OCCIDENTAL

SHORT TITLE: Creating The Province Of Davao Occidental
BY CONGRESSMAN/WOMAN CAGAS, MARC DOUGLAS IV CHAN
DATE FILED ON 2011-03-23
CO-AUTHORS:
BAUTISTA, FRANKLIN PERALTA

REFERRAL ON 2011-03-23 TO THE COMMITTEE ON RULES

SIGNIFICANCE: LOCAL

DATE READ: 2011-03-23

COMMITTEE REPORT NO. 00827 submitted on 2011-03-23
SUBMITTED BY: LOCAL GOVERNMENT
RECOMMENDATIONS: approval
SUBSTITUTED BILLS: HB03644
DATE INCLUDED IN OB: 2011-03-23
BILL APPROVED ON SECOND READING: 2011-03-23
DATE DISTRIBUTED: 2011-05-09
REMARKS : On March 23, 2011, the Body approved to consider the Explanatory
Note of the bill as the sponsorship remarks on the measure; terminated the period of
sponsorship and debate; terminated the period of amendments and approved the
same on Second Reading.
DATE APPROVED BY THE HOUSE ON THIRD READING: 2011-05-16
HOUSE VOTES: YEAS: 219 NAYS: 0 ABSTAIN: 0
DATE TRANSMITTED TO THE SENATE: 2011-05-24
DATE RECEIVED BY THE SENATE: 2011-05-24
DATE PASSED BY THE SENATE: 2012-10-08
PASSED WITH AMENDMENTS(Y/N)?: Y

DATE REQUESTED TO FORM A CONFERENCE COMMITTEE(CC): 2012-10-17

CC REQUESTED BY: HOUSE
DATE AGREED TO FORM A CC: 2012-11-12
REMARKS :
DATE HOUSE AGREED ON CONCOM REPORT: 2012-11-28
DATE SENATE AGREED ON CONCOM REPORT: 2012-12-05
DATE TRANSMITTED TO THE PRESIDENT: 2012-12-21
 DATE ACTED UPON BY THE PRESIDENT: 2013-01-14
PRESIDENTIAL ACTION:(A)PPROVED/(V)ETOED/(L)APSED: A
REPUBLIC ACT NO.: RA10360
ORIGIN: HOUSE
REPUBLIC ACT TITLE: AN ACT CREATING THE PROVINCE OF DAVAO
OCCIDENTAL

3 Section 54 of R.A. No. 10360 provides:

Effectivity. – This Act shall take effect fifteen (15) days upon its publication in at least two (2)
newspapers of general and local circulation.

4
Fifteen days from 21 January 2013, the date of publication, is 5 February 2013. Sixty days
from 5 February 2013, the date of effectivity, is 6 April 2013.

5 Rollo, p. 53.

6 Id. at 54.

7 Id.

8 Id. at 57.

9 Calendar of Activities and Periods of Prohibited Acts in Connection With the Plebiscite for
the Creation of Davao Occidental out of the Province of Davao del Sur Consisting of the
Municipalities of Sta. Maria, Malita, Don Marcelino, Jose Abad Santos, and Sarangani,
Pursuant to Republic Act No. 10360 Dated July 23, 2012 and the Adoption of Pertinent
Resolutions in Connection Therewith. http://www.comelec.gov.ph/?r=Plebiscites/res9771
(accessed 23 October 2013).

10Rules and Regulations Governing the Conduct of the October 28, 2013 Plebiscite to Ratify
the Creation of the Province of Davao Occidental out of Davao del Sur Pursuant to Republic
Act No. 10360 Dated 23 July 2012. http://www.comelec.gov.ph/?r=Plebiscites/res9772
(accessed 23 October 2013).

11SEC. 3. Posting of Republic Act No. 10360. - At least ten (10) days prior to the day of the
plebiscite, the Election Officers (EOs) of the whole Province of Davao del Sur, except Davao
City, shall cause the posting of [a] copy of Republic Act No. 10360 in the bulletin boards of
their respective City/Municipal Halls.

12SEC. 4. Information campaign. - An objective information campaign shall be conducted in

the whole of Davao del Sur, except Davao City, to commence on September 28, 2013 to
October 26, 2013. During this period, civic, professional, religious, business, youth and any
other similar organizations may hold symposia, public rallies or meetings to enlighten the
voters of Davao del Sur on the plebiscite issues, and to campaign for or against the
ratification of Republic Act No. 10360. Constructive discussions and debates shall be
encouraged and the voters assured of the freedom to voice their opinion regarding the
issues, advantages or disadvantages thereof. The EOs in the Province of Davao del Sur,
under the supervision of the Provincial Election Supervisor of Davao del Sur and the
Regional Election Director of Region XI, in coordination with the local government officials,
mass media, NGOs and religious groups shall convene barangay assemblies or "pulong-
pulongs" for such constructive discussions and debates.

13 Rollo, p. 10.

14 Id. at 14-15.

15 Id. at 17.

16
Comment, p. 4.

17 See Miranda v. Hon. Aguirre, 373 Phil. 386 (1999).

18Section 8, Article VI of the Constitution reads: "Unless otherwise provided by law, the
regular election of the Senators and the Members of the House of Representatives shall be
held on the second Monday of May."

19The third paragraph of Section 4, Article VII of the Constitution reads: "Unless otherwise
provided by law, the regular election for President and Vice-President shall be held on the
second Monday of May."

20Section 3, Article X of the Constitution reads in part: "The Congress shall enact a local
government code which shall provide for the x x x election x x x of local officials x x x." In
turn, Section 42 of R.A. No. 7160, or the Local Government Code of 1991, reads: "Date of
Election. – Unless otherwise provided by law, the elections for local officials shall be held
every three (3) years on the second Monday of May."

21 Supra note 4.

22 Rollo, p. 12.

23 1987 CONSTITUTION, ART. IX-C, SEC. 2(1).

24 B.P. Blg. 881, Sec. 52.

25 Pangandaman v. COMELEC, 377 Phil. 297, 312 (1999).

See the consolidated cases under Atong Paglaum, Inc. v. COMELEC, G.R. No. 203766, 2
26

April 2013, 694 SCRA 477.

27 Comment, pp. 7-9.

28 Supra note 25.

 29 Id. at 312-314. Citations omitted. Italics in the original.

30 481 Phil. 661 (2004).

31 Id. at 671-672.

32 Comment, pp. 11-12.

Mr. Helms, from the Committee on Foreign Relations, submitted the following

REPORT

[To accompany Treaty Doc. 104-16]

The Committee on Foreign Relations to which was referred the Extradition Treaty between the
Government of the United States of America and the Government of the Republic of the Philippines,
signed at Manila on November 13, 1994, having considered the same, reports favorably thereon with
one proviso and recommends that the Senate give its advice and consent to the ratification thereof
as set forth in this report and the accompanying resolution of ratification.

I. Purpose

Modern extradition treaties (1) identify the offenses for which extradition will be granted, (2) establish
procedures to be followed in presenting extradition requests, (3) enumerate exceptions to the duty to
extradite, (4) specify the evidence required to support a finding of a duty to extradite, and (5) set
forth administrative provisions for bearing costs and legal representation.

II. Background

On November 13, 1994, the President signed an extradition treaty with the Philippines. The Treaty
was transmitted to the Senate for its advice and consent to ratification on September 5, 1995. In
recent years the Departments of State and Justice have led an effort to modernize U.S. bilateral
extradition treaties to better combat international criminal activity, such as drug trafficking, terrorism
and money laundering. The United States is a party to approximately 100 bilateral extradition
treaties. According to the Justice Department, during 1995 131 individuals were extradited to the
United States and 79 individuals were extradited from the United States.

The increase in international crime also has prompted the U.S. government to become a party to
several multilateral international conventions which, although not themselves extradition treaties,
deal with international law enforcement and provide that the offenses which they cover shall be
extraditable offenses in any extradition treaty between the parties. These include: the Convention for
the Suppression of Unlawful Seizure of Aircraft (Hague), art. 8; the Convention to Discourage Acts of
Violence Against Civil Aviation (Montreal), art 8; the Protocol Amending the Single Convention on
Narcotic Drugs of 1961, art. 14 amending art. 36(2)(b)(I) of the Single Convention; the Convention to
Prevent and Punish Acts of Terrorism Taking the Form of Crimes Against Persons and Related
Extortion that are of International Significance (Organization of American States), art. 3; the
Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents, art. 8; the International Convention against the Taking of Hostages, art.
10; the Convention on the Physical Protection of Nuclear Materials, art. 11; and the United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna). These
multilateral international agreements are incorporated by reference in the Untied States' bilateral
extradition treaties.

III. Summary

A. GENERAL

An extradition treaty is an international agreement in which the Requested State agrees, at the
request of the Requesting State and under specified conditions, to turn over persons who are within
its jurisdiction and who are charged with crimes against, or are fugitives from, the Requesting State.
Extradition treaties can be bilateral or multilateral, though until recently the United States showed
little interest in negotiating multilateral agreements dealing with extradition.

The contents of recent treaties follow a standard format. Article 1 sets forth the obligation of
contracting states to extradite to each other persons charged by the authorities of the Requesting
State with, or convicted of, an extraditable offense. Article 2, sometimes referred to as a dual
criminality clause, defines extraditable offenses as offenses punishable in both contracting states by
prison terms of more than one year. Attempts or conspiracies to commit an extraditable offense are
themselves extraditable. Several of the treaties provide that neither party shall be required to
extradite its own nationals. The treaties carve out an exception to extraditable crimes for political
offenses. The trend in modern extradition treaties is to narrow the political offense exceptions.

The treaties include a clause allowing the Requested State to refuse extradition in cases where the
offense is punishable by death in the Requesting State, unless the Requesting State provides
assurances satisfactory to the Requested State that the individual sought will not be executed.

In addition to these substantive provisions, the treaties also contain standard procedural provisions.
These specify the kinds of information that must be submitted with an extradition request, the
language in which documents are to be submitted, the procedures under which documents
submitted are to be received and admitted into evidence in the Requested State, the procedures
under which individuals shall be surrendered and returned to the Requesting State, and other related
matters.

B. MAJOR PROVISIONS

1. Extraditable Offenses: The dual criminality clause

Article 2 contains a standard definition of what constitutes an extraditable offense: an offense

is extraditable if it is punishable under the laws of both parties by a prison term of at least
one year. Attempts and conspiracies to commit such offenses, and participation in the
commission of such offenses, are also extraditable. If the extradition request involves a
fugitive, it shall be granted only if the remaining sentence to be served is more than six
months.

The dual criminality clause means, for example, that an offense is not extraditable if in the
United States it constitutes a crime punishable by imprisonment of more than one year, but is
not a crime in the treaty partner or is a crime punishable by a prison term of less than one
year. In earlier extradition treaties the definition of extraditable offenses consisted of a list of
specific categories of crimes. This categorizing of crimes has resulted in problems when a
specific crime, for example drug dealing, is not on the list, and is therefore not extraditable.
The result has been that as additional offenses become punishable under the laws of both
treaty partners the extradition treaties between them need to be renegotiated or
supplemented. A dual criminality clause obviates the need to renegotiate or supplement a
treaty when it becomes necessary to broaden the definition of extraditable offenses.

2. Extraterritorial offenses

In order to extradite individuals charged with extraterritorial crimes (offenses committed

outside the territory of the Requesting State) such as international drug traffickers and
terrorists, provision must be made in extradition treaties. The Philippine Treaty states that the
Requested State shall grant extradition for an offense committed outside the Requesting
State's territory if the Requested State's laws provide that an offense committed outside its
territory is punishable in similar circumstances (art. 2(4)). If the Requested State's laws do
not provide that an offense committed outside its territory is punishable in similar
circumstances, the executive branch of the Requested State has discretionary authority to
submit the extradition request to its courts for decision (art. 2(4b)).

In the proposed treaty an obligation to extradite depends mostly on whether the Requested
State also punishes offenses outside its territory ``in similar circumstances.'' This, in effect,
appears to be a dual criminality clause applied to extraterritorial offenses. The phrase ``in
similar circumstances'' is undefined in each of the treaties that have such a requirement and
in the Letters of Submittal from the Department of State to the President. The phrase
appears to be sufficiently vague to give a reluctant Requested State ``wiggle room'' to avoid
its possible obligation to extradite individuals for crimes committed outside its territory.

3. Political offense exception

In recent years the United States has been promoting a restrictive view of the political
offense exception in furtherance of its campaign against terrorism, drug trafficking, and
money laundering. The political offense exception in the Philippine Treaty is a broader
provision than is contained in other extradition treaties.

The exclusion of certain violent crimes, (i.e. murder, kidnapping, and others) from the
political offense exception has become standard in many U.S. extradition treaties, reflecting
the concern of the United States government and certain other governments with
international terrorism.
The exclusion from the political offense exception for crimes covered by multilateral
international agreements, and the obligation to extradite for such crimes or submit the case
to prosecution by the Requested State, is now a standard exclusion and is contained in the
proposed treaty. The incorporation by reference of these multilateral agreements is intended
to assure that the offenses with which they deal shall be extraditable under an extradition
treaty. But, extradition for such offenses is not guaranteed. A Requested State has the option
either to extradite or to submit the case to its competent authorities for prosecution. For
example, a Requested State could refuse to extradite and instead declare that it will itself
prosecute the offender.

4. The death penalty exception

The United States and other countries appear to have different views on capital punishment.
Under the proposed treaties, the Requested State may refuse extradition for an offense
punishable by the death penalty in the Requesting State if the same offense is not
punishable by the death penalty in the Requested State, unless the Requesting State gives
assurances satisfactory to the Requested State that the death penalty will not be imposed or
carried out.

5. The Extradition of nationals

The U.S. does not object to extraditing its own nationals and has sought to negotiate treaties
without nationality restrictions. Many countries, however, refuse to extradite their own
nationals. U.S. extradition treaties take varying positions on the nationality issue.

Unlike other extradition treaties, The Philippine Treaty unequivocally states that a party may
not refuse extradition on the ground the person sought is one of its citizens (art. 6).

6. Retroactivity

The proposed treaty states that it shall apply to offenses committed before as well as after it
enters into force (art. 19). These retroactivity provisions do not violate the Constitution's
prohibition against the enactment of ex post facto laws which applies only to enactments
making criminal acts that were innocent when committed, not to the extradition of a
defendant for acts that were criminal when committed but for which no extradition agreement
existed at the time.

7. The rule of speciality

The rule of speciality (or specialty), which prohibits a Requesting State from trying an
extradited individual for an offense other than the one for which he was extradited, is a
standard provision included in U.S. bilateral extradition treaties, including the six under
consideration. The Malaysia Treaty (art. 13) contains exceptions to the rule of specialty that
are designed to allow a Requesting State some latitude in prosecuting offenders for crimes
other than those for which they had been specifically extradited.

8. Lapse of time
 The Philippine Treaty has no provision denying extradition if barred by the statute of
limitations of either the Requesting or Requested State.

IV. Entry Into Force and Termination

a. entry into force

This Treaty shall enter into force upon the exchange of instruments of ratification.

b. termination

This Treaty shall terminate six months after receipt of notice that one Party intends to
terminate the Treaty.

V. Committee Action

The Committee on Foreign Relations held a public hearing on the proposed treaty on Wednesday,
July 17, 1996. The hearing was chaired by Senator Helms. The Committee considered the proposed
treaty on July 24, 1996, and ordered the proposed treaty favorably reported with one proviso by
voice vote, with the recommendation that the Senate give its advice and consent to the ratification of
the proposed treaty.

VI. Committee Comments

The Committee on Foreign Relations recommended favorably the proposed treaty. The Committee
believes that the proposed treaty is in the interest of the United States and urges the Senate to act
promptly to give its advice and consent to ratification. In 1996 and the years ahead, U.S. law
enforcement officers increasingly will be engaged in criminal investigations that traverse international
borders. Certainly, sovereign relationships have always been important to prosecution of suspected
criminals. The first recorded extradition treaty dates as far back as 1280 B.C. under Ramses II,
Pharoah of Egypt. The United States entered into its first extradition treaty in 1794 with Great Britain.
Like these early treaties, the basic premise of the treaties is to facilitate, under specified conditions,
the transfer of persons who are within the jurisdiction of one nation, and who are charged with
crimes against, or are fugitives from, the nation requesting extradition. Despite the long history of
such bilateral treaties, the Committee believes that these treaties are more essential than ever to
U.S. efforts to bring suspected criminals to justice.

In 1995, 131 persons were extradited to the U.S. for prosecution for crimes committed in the U.S.,
and the U.S. extradited 79 individuals to other countries for prosecution. After the Senate ratified an
extradition treaty with Jordan in 1995, the U.S. Attorney General was able to take into custody an
alleged participant in the bombing of the World Trade Center. His prosecution would not be possible
without an extradition treaty. Crimes such as terrorism, transhipment of drugs by international
cartels, and international banking fraud are but some of the international crimes that pose serious
problems to U.S. law enforcement efforts. The Committee believes that modern extradition treaties
provide an important law enforcement tool for combating such crimes and will advance the interests
of the United States.
The proposed resolution of ratification includes a proviso that reaffirms that ratification of this treaty
does not require or authorize legislation that is prohibited by the Constitution of the United States.
Bilateral extradition treaties rely on relationships between sovereign countries with unique legal
systems. In as much as U.S. law is based on the Constitution, this treaty may not require legislation
prohibited by the Constitution.

VII. Explanation of Proposed Treaty

The following is the Technical Analysis of the extradition Treaty submitted to the Committee on
Foreign Relations by the Departments of State and Justice prior to the Committee hearing to
consider pending extradition treaties.

technical analysis of the extradition treaty between the united states of america and the philippines

On November 13, 1994, the United States signed a treaty on extradition with the Republic of the
Philippines (``the Treaty''). In recent years, the United States has signed similar treaties with many
other countries as part of a highly successful effort to modernize our law enforcement relations. The
Treaty, which will be the first extradition treaty to enter into force between the United States and this
important ally in the Western Pacific,1 represents a major step forward in United States efforts to win
the cooperation of Asian countries in combating organized crime, transnational terrorism and
international drug trafficking.

It is anticipated that the Treaty will be implemented in the United States pursuant to the procedural
framework provided by Title 18, United States Code, Section 3184 et seq. No new implementing
legislation will be needed. The Philippines has its own internal law 2 that will apply to United States
requests under the Treaty.

The following technical analysis of the Treaty was prepared by the United States delegation that
conducted the negotiations.

Article 1--Obligation to extradite

This article, like the first article in every recent United States extradition treaty, formally obligates
each Contracting Party to extradite to the other Contracting Party persons charged with or convicted
of an extraditable offense, subject to the provisions of the Treaty. The article refers to charges
brought by authorities ``in'' the Requesting State rather than ``of'' the Requesting State because the
Philippine obligation to extradite to the United States involves state and local as well as federal
cases. The negotiators also agreed that the term ``convicted'' includes instances in which the person
has been found guilty but the sentence has not yet been imposed.3 The negotiators intended to
make it clear that the Treaty applies to persons who have been adjudged guilty but have fled prior to
sentencing.

Article 2--Extraditable offenses

his article contains the basic guidelines for determining what constitutes an extraditable offense. The
Treaty, similar to the recent United States extradition treaties with Jamaica, Italy, Ireland, Thailand,
Sweden (Supplementary Convention) and Costa Rica, does not list the offenses for which extradition
may be granted. Instead, paragraph 1 permit extradition for any offense punishable under the laws
of both Contracting Parties by deprivation of liberty (i.e, imprisonment or other form of detention) for
more than one year, or by a more severe penalty such as capital punishment. Defining extraditable
offenses in terms of ``dual criminality'' rather than attempting to list each extraditable crime obviates
the need to renegotiate the Treaty or supplement it if both Contracting Parties pass laws dealing with
a new type of criminal activity, or if the list inadvertently fails to cover an important type of criminal
activity punishable in both countries.

During the negotiations, the United States delegation received assurances from the Philippine
delegation that major United States offenses such as operating a continuing criminal enterprise 4 are
extraditable under the Treaty, and that offenses under the Racketeer Influenced and Corrupt
Organizations (``RICO'') statutes 5 are extraditable if the predicate offense is an extraditable offense.
The Philippine delegation also stated that the extradition is possible for offenses such as drug
trafficking, terrorism, money laundering, tax fraud or tax evasion, crimes against environmental law
and antitrust violations punishable by both Contracting Parties.

Paragraph 2 follows the practice of recent extradition treaties in providing that extradition be granted
for attempting or conspiring to commit, aiding or abetting, counseling, causing, or procuring, or
otherwise being an accessory to an extraditable offense. As conspiracy charges are frequently used
in United States criminal cases, particularly those involving complex transnational criminal activity, it
is especially important that the Treaty be clear on this point. The Philippines has no general
conspiracy statute similar to Title 18, United States Code, Section 371. Therefore, paragraph 2
creates an exception to the dual criminality rule of paragraph 1 by expressly making inchoate crimes
such as conspiracy extraditable offenses if the inchoate offense is punishable in the Requesting
State by deprivation of liberty for a period of more than one year, or by a more severe penalty, and if
the object of the inchoate offense is an extraditable offense pursuant to paragraph 1.

Paragraph 3 reflects the intention of the Contracting Parties to have the principles of this article
interpreted broadly. Judges in foreign countries often are confused by the fact that many United
States federal statutes require proof of certain elements (such as use of the mails or interstate
transportation) solely to establish jurisdiction in United States federal courts. Because these judges
know of no similar requirements in their own criminal law, they occasionally have denied the
extradition of fugitives sought by the United States on federal charges on this basis. This paragraph
requires that such elements be disregarded in applying the dual criminality principle. For example, it
will ensure that Philippine authorities treat United States mail fraud charges 6 in the same manner as
fraud charges under state laws, and view the federal crime of interstate transportation of stolen
property 7 in the same manner as unlawful possession of stolen property. This paragraph also
requires the Requested State to disregard differences in the categorization of the offense in
determining whether dual criminality exists, and to overlook mere differences in the terminology used
to define the offense under the laws of the Contracting Parties. A similar provision is contained in all
recent United States extradition treaties.

Paragraph 4 deals with the fact that federal crimes may involve acts committed wholly outside
United States territory. Our jurisprudence recognizes the jurisdiction of our courts to hear criminal
cases involving offenses committed outside the United States if the crime was intended to, or did,
have effects in this country, or if the legislative history of the statute shows clear Congressional
intent to assert such jurisdiction.8 In the Philippines, however, the government's ability to prosecute
extraterritorial offenses is much more limited.9 Paragraph 4 reflects the Philippine government's
agreement to recognize United States jurisdiction to prosecute offenses committed outside the
United States if Philippine law would permit the Philippines to prosecute similar offenses committed
abroad in corresponding circumstances. If the Requested State's law does not provide for such
punishment, paragraph 4(b) permits the executive authority of the Requested State to decide, in its
discretion, to submit the case to its courts for the purpose of extradition. For the United States, this
decision is made by the Secretary of State, and for the Philippines, by the Minister of Justice. A
similar provision appears in several recent United States extradition treaties.10 Paragraph 4(b) is
worded in terms of the executive authority's decision to submit the case to the courts for approval
because Philippine authorities need the approval of Philippine courts to extradite.

Paragraph 5 states that when extradition has been granted for an extraditable offense, it shall also
be granted for any other offense for which all of the requirements for extradition are met, except for
the requirement that the offense be punishable by more than one year of imprisonment. For
example, if the Philippines agrees to extradite to the United States a fugitive wanted for prosecution
on a felony charge, the United States may also obtain extradition for any misdemeanor offenses that
have been charged, as long as those misdemeanors are also recognized as criminal offenses in the
Philippines. Thus, the Treaty incorporates recent United States extradition practice by permitting
extradition for misdemeanors committed by a fugitive when the fugitive's extradition is granted for a
more serious extraditable offense. This practice is generally desirable from the standpoint of both the
fugitive and the Requesting State in that it permits all charges to be disposed of more quickly,
thereby facilitating trials while evidence is fresh and permitting the possibility of concurrent
sentences. Similar provisions are found in recent United States extradition treaties with Australia,
Ireland, Italy and Costa Rica.

Some recent treaties provide that persons who have been convicted of an extraditable offense and
sentenced to imprisonment may be extradited only if at least a certain specified portion of the
sentence (often six months) remains to be served. The Treaty contains no such requirement.
Provisions of this kind are an attempt to limit extradition to serious cases because of the significant
costs associated with the process. However, the negotiators of the Treaty felt that the particular
sentence imposed or outstanding is not necessarily an adequate measure of the seriousness of the
crime.11 The Contracting Parties concluded that the Treaty's goals can be better served by the
exercise of discretion and good judgment in the administration of the Treaty without arbitrary limits
imposed in its terms. This approach has been taken in some of our extradition treaties with other
countries, including Australia, Canada, Jamaica, New Zealand and the United Kingdom.

Article 3--Political and military offenses

Paragraph 1 prohibits extradition for political offenses. This is standard provision in recent United
States extradition treaties. Paragraph 2 describes three categories of offenses that shall not be
considered political offenses. First, the political offense exception does not apply to murder or other
willful crimes against the person of a Head of State of the Contracting Parties, or a member of the
Head of State's family.

Second, the political offense exception does not apply to offenses for which both Contracting Parties
have an obligation pursuant to a multilateral international agreement either to extradite the person
sought or to submit the case to their competent authorities for prosecution. The conventions to which
this clause applies at present include the Convention on Offenses and Certain Other Acts
Committed on Board Aircraft,12 the Convention for the Suppression of Unlawful Seizure of Aircraft
(Hijacking),13 the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation
(Sabotage),14 the Convention on the Prevention and Punishment of Crimes Against Internationally
Protected Persons, Including Diplomatic Agents,15 and the International Convention Against the
Taking of Hostages.16 In addition, the Philippines is expected to ratify the United Nations Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 17 in the near future. In the
interim, both the United States and the Philippines are parties to the Single Convention on Narcotic
Drugs 18 and the Amending Protocol to the Single Convention; 19 this provision applies to those
conventions as well.

Paragraph 2(c) states that the political offense exception does not apply to conspiring or attempting
to commit, or aiding or abetting the commission or attempted commission of, any of the foregoing
offenses.

Paragraph 3 provides that extradition shall not be granted if the executive authority of the Requested
State determines that the request is politically motivated.20 United States law and practice have been
that the Secretary of State has the sole discretion to determine whether an extradition request is
based on improper political motivation.21Paragraph 3 also permits denial of extradition if the
executive authority determines that the request relates to a military offense that is not punishable
under non-military penal legislation.22

Article 4--Prior prosecution

This article permits extradition when the person sought is charged by each Contracting Party with
different offenses arising out of the same basic transaction.

Paragraph 1, which prohibits extradition if the person sought has been convicted or acquitted in the
Requested State for the offense for that extradition is requested, is similar to language present in
many United States extradition treaties. This provision applies only when the person sought has
been convicted or acquitted in the Requested State of exactly the same crime that is charged in the
Requesting State. It is not enough that the same facts were involved. Thus, if the person sought is
accused by one Contracting Party of illegally smuggling narcotics into that country, and is charged
by the other Contracting Party with unlawfully exporting the same shipment of drugs, an acquittal or
conviction in one Contracting Party does not insulate that person from extradition because different
crimes are involved.

Paragraph 2 makes it clear that neither Contracting Party may refuse to extradite a person sought on
the basis that the Requested State's authorities declined to prosecute the person or instituted and
later discontinued proceedings against the person. This provision was included because a decision
of the Requested State to forego prosecution or to drop charges previously filed many be the result
of a failure to obtain sufficient evidence or witnesses for trial, whereas the Requesting State's
prosecution may not suffer from the same impediments. This provision should enhance the ability of
the Contracting Parties to extradite to the jurisdiction with the better chance of a successful
prosecution.

Article 5--Capital punishment

Paragraph 1 permits the Requested State to refuse extradition when the offense for which
extradition is sought is punishable by death in the Requesting State but not in the Requested State,
unless the Requesting State provides assurances the Requested State considers sufficient that if the
death penalty is imposed, it will not be carried out. Similar provisions are found in many recent
United States extradition treaties.23

Paragraph 2 provides that when the Requesting State gives assurances in accordance with
paragraph 1, the assurances shall be respected, and the death penalty, if imposed, shall not be
carried out.

Article 6--Extradition of nationals

Some countries refuse to extradite their own nationals for trial and/or punishment. The United States
does not deny extradition on the basis of the offenders' citizenship 24 and neither does the
Philippines. Accordingly, this article provides that each Contracting Party may not refuse extradition
on the basis that the person sought is a citizen of the Requested State.

Article 7--Extradition procedures and required documents

his article sets forth the documentary and evidentiary requirements for an extradition request. Similar
articles are present in most recent United States extradition treaties.

Paragraph 1 requires that each formal request for extradition be submitted through the diplomatic
channel. A formal extradition request may be preceded by a request for the provisional arrest of the
person sought pursuant to article 9. Provisional arrest requests need not be initiated through the
diplomatic channel provided that the requirements of article 9 are met.

Paragraph 2 outlines the information that must accompany every request for extradition under the
Treaty. Paragraph 3 describes the additional information needed when the person is sought for trial
in the Requesting State. Paragraph 4 describes the information needed, in addition to the
requirements of paragraph 2, when the person sought has already been tried and found guilty in the
Requesting State.

Most of the items listed in paragraph 2 enable the Requested State to determine quickly whether
extradition is appropriate under the Treaty. For example, paragraph 2(c) calls for ``a statement of the
provisions of law describing the essential elements of the offense for which extradition is requested,''
which enables the Requested State to determine easily whether a lack of dual criminality is an
appropriate basis for denying extradition. Some of the items listed in paragraph 2, however, are
required strictly for information purposes. Thus, paragraph 2(e) calls for ``a statement of the
provisions of the law describing any time limit on prosecution or the execution of the punishment for
the offense,'' even though the Treaty does not permit denial of extradition based on a lapse of time.
The United States and Philippine delegations agreed that paragraph 2(e) should require this
information so that the Requested State is fully informed about the charges brought in the
Requesting State.

Paragraph 3 requires that if the fugitive has not yet been convicted of the crime for which extradition
is requested, the Requesting State must provide such evidence as would provide probable cause for
the arrest and committal for trial of the person if the offense had been committed in the Requested
State. This is consistent with extradition law in the United States 25 and the Philippines,26 and is
similar to language in other United States extradition treaties.27

During the negotiations, the United States delegation told the Philippine delegation its concern about
the fact that serious criminal charges may be filed in the Philippines by a complainant without the
permission or support of a prosecutor. United States military personnel have reported that in the
past, criminal charges or the threat of criminal charges seem to have been used against United
States servicemen stationed in the Philippines for improper purposes such as extortion, harassment,
or to gain improper advantage in civil litigation for debt collection. The United States delegation
noted that United States courts generally do not attempt to evaluate the credibility of affiants in
extradition proceedings, but that the Department of Justice does carefully consider and weigh
credibility in assessing extradition requests, while the Department of State takes credibility into
account in deciding whether to issue the surrender warrant necessary to effect an extradition. If it
appears that complainants or key witnesses involved in a Philippine extradition request brought the
charges solely for improper motives, their tainted credibility could vitiate probable cause, thereby
compelling the United States to deny extradition under paragraph 3. The Philippine delegation
acknowledged this possibility.

Paragraph 4 lists the information needed to extradite a person who has been convicted of an offense
in the Requesting State. This paragraph makes it clear that once a conviction has been obtained, no
showing of probable cause is required. In essence, the fact of conviction speaks for itself, a position
taken in recent United States court decisions even absent a specific treaty provision.28 Subsection
(d) states that if the person sought was found guilty in absentia, the documentation required for
extradition includes both proof of conviction and the same documentation required in cases in which
no conviction has been obtained. This is consistent with the longstanding United States policy of
requiring such documentation in the extradition of persons convicted in absentia.

Paragraph 5 governs the authentication procedures for documents intended for use in extradition
proceedings. Paragraph 5(a) deals with evidence intended for use in extradition proceedings in
United States and Philippine courts; current United States and Philippine authentication
requirements are virtually identical.29 Paragraph 5(b) provides a second method for authenticating
evidence in an extradition proceeding by permitting such evidence to be admitted if it is
authenticated in any manner accepted by the laws of the Requested State. This paragraph should
ensure that relevant evidence that usually satisfies the evidentiary rules of the Requested State is
not excluded at the extradition hearing because of an inadvertent error or omission in the
authentication process.

Article 8--Language

The Philippines has two official languages, English and Pilipino (which is based on Tagalog).
Several other languages such as Cebuano, Bicol, Ilocano and Pampango are widely used. This
article requires that all extradition documents be translated into English.

Article 9--Provisional arrest

This article describes the process by which a person in one Contracting Party may be arrested and
detained while the formal extradition papers are being prepared.

Paragraph 1 expressly provides that a request for provisional arrest may be made through the
diplomatic channel or directly between the United States Department of Justice and the Philippine
Department of Justice.30 Experience has shown that the ability to use direct channels in emergency
situations can be crucial when a fugitive is poised to flee a jurisdiction.

Paragraph 2 sets forth the information that the Requesting State must provide in support of such a
request. Paragraph 3 states that the Requesting State must be advised without delay of the outcome
of the request and the reasons for its denial, if any. Paragraph 4 provides that a person who has
been provisionally arrested may be released from detention if the Requesting State does not submit
a fully documented request for extradition to the executive authority of the Requested State within 60
days of the provisional arrest.31 When the United States is the Requested State, the executive
authority includes the Secretary of State and the United States Embassy in Manila.32

Paragraph 4 establishes that the person provisionally arrested may be released from custody if the
formal extradition request, including supporting documentation, is not received within the 60-day
period. However, the proceedings against the person need not be dismissed; paragraph 5 makes it
clear that the person may be taken into custody and the extradition proceedings may be commenced
again if the formal request is presented at a later date.

Article 10--Decision and surrender

This article requires that the Requested State promptly notify the Requesting State through
diplomatic channels of its decision on the extradition request. If extradition is denied in whole or in
part, the Requested State must provide the reasons for the denial. If extradition is granted, this
article requires that authorities of the Contracting Parties agree on a time and place for surrender of
the person sought. The Requesting State must remove the person within the time prescribed by the
law of the Requested State or the person may be discharged from custody, and the Requested State
may subsequently refuse to extradite the person for the same offense. United States law requires
that surrender occur within two calendar months of a finding that the person is extraditable,33 or of
the conclusion of any litigation challenging that finding,\34\ whichever is later. According to the
Philippine delegation, the law in the Philippines does not specify the time in which the surrender
must take place.

Article 11--Temporary and deferred surrender

Occasionally, a person sought for extradition may be already facing prosecution or serving a
sentence on other charges in the Requested State. This article provides a means for the Requested
State to defer extradition in such circumstances until the conclusion of the proceedings against the
person and the full execution of any punishment imposed. Similar provisions appear in our recent
extradition treaties with countries such as the Bahamas and Australia.

Paragraph 1 provides for the temporary surrender of a person wanted for prosecution in the
Requesting State who is being prosecuted or is serving a sentence in the Requested State. A
person temporarily transferred pursuant to the Treaty will be returned to the Requested State at the
conclusion of the proceedings in the Requesting State. Such temporary surrender furthers the
interests of justice in that it permits trial of the person sought while evidence and witnesses are more
likely to be available, thereby increasing the likelihood of a successful prosecution. Such transfer
may also be advantageous to the person sought in that: (1) it permits resolution of the charges
sooner; (2) it makes it possible for any sentence to be served in the Requesting State concurrently
with the sentence in the Requested State; and (3) it permits defense against the charges while
favorable evidence is fresh and more likely to be available. Similar provisions are found in many
recent extradition treaties.

Paragraph 2 provides that the executive authority of the Requested State may postpone the
extradition proceedings against a person who is serving a sentence in the Requested State until the
full execution of any punishment that has been imposed.35 The provision allows the Requested State
to postpone the surrender of a person facing prosecution or serving a sentence, as well as the
initiation of extradition proceedings.

Article 12--Requests for extradition made by more than one State

This article reflects the practice of many recent United States extradition treaties in listing some of
the factors that the executive authority of the Requested State must consider when reviewing
requests from two or more countries for the extradition of the same person. For the United States,
the Secretary of State decides to which country the person should be surrendered; 36 for the
Philippines, the decision is made by the Secretary of Foreign Affairs in consultation with the
Secretary of Justice.37

Article 13--Rule of specialty

This article covers the rule of specialty, a standard principle of United States extradition law and
practice. Designed to ensure that a fugitive surrendered for one offense is not tried for other crimes,
the rule of specialty prevents a request for extradition from being used as a subterfuge to obtain
custody of a person for trial or execution of a sentence on different charges that are not extraditable
or properly documented in the request.

Exceptions to the rule have developed over the years. This article codifies the current formulation of
the rule by providing that a person extradited under the Treaty may only be detained, tried, or
punished in the Requesting State for: (1) the offense for which extradition was granted or a
differently denominated offense based on the same facts, provided the offense is extraditable or is a
lesser included offense; (2) an offense committed after the extradition; or (3) an offense for which the
executive authority of the Requested State consents.38 Paragraph 1(c)(ii) permits the Contracting
Party that is seeking consent to pursue new charges to detain the person extradited for 90 days or
for such longer period as the Requested State may authorize while the Requested State makes it
determination on the application.

Paragraph 2 prohibits the Requesting State from surrendering the person to a third state without the
consent of the Requested State.

Paragraph 3 permits the detention, trial or punishment of an extradited person for additional offenses
or extradition to a third state if: (1) the extradited person leaves the Requesting State after
extradition and voluntarily returns to it; or (2) the extradited person does not leave the Requesting
State within ten days of being free to do so.

Article 14--Voluntary return

Persons sought for extradition frequently elect to waiver their right to extradition proceedings in order
to expedite their return to the Requesting State. This article provides that when a fugitive consents to
surrender to the Requesting State, the person may be returned to the Requesting State as
expeditiously as possible without further proceedings. The negotiators anticipated that in such
cases, there will be no need for the formal documentation described in article 7, or further judicial or
administrative proceedings of any kind.

If the United States is the Requested State and the person sought elects to return voluntarily to the
Philippines before the United States Secretary of State signs a surrender warrant, the process is not
deemed an ``extradition.'' Longstanding United States policy has been that the rule of specialty as
described in article 13 does not apply to such cases.39

Article 15--Seizure and surrender of property

This article permits the seizure by the Requested State of all property--articles, documents and other
evidence--connected with the offense to the extent permitted by the Requested State's internal
law.40 Article 15 also provides that these objects may be surrendered to the Requesting State upon
the granting of the extradition or even if extradition cannot be effected due to the death,
disappearance or escape of the person sought. Paragraph 2 states that the Requested State may
condition its surrender of property upon satisfactory assurances that the property will be returned to
the Requested States as soon as practicable. Paragraph 2 also permits the surrender of property to
be deferred if it is needed as evidence in the Requested State. Surrender of property under this
provision is expressly made subject to due respect for the rights of third parties in such property.

Article 16--Transit

Paragraph 1 gives each Contracting Party the power to authorize transit through its territory of
persons being surrendered to the other Contracting Party by a third state. A person in transit may be
detained in custody during the transit period. Requests for transit are to contain a description of the
person whose transit is proposed and a brief statement of the facts of the case with respect to which
transit is sought. The transit request may be submitted through diplomatic channels or directly
between the United States and Philippine Departments of Justice. The negotiators agreed that
diplomatic channels will be employed as frequently as possible for requests of this nature.

Paragraph 2 describes the procedure each Contracting Party should follow when seeking to
transport a person in custody through the territory of the other. Under this provision, no advance
authorization is needed if the person in custody is in transit to one of the Contracting Parties and is
travelling by aircraft and no landing is scheduled in the territory of the other. Should an unscheduled
landing occur, a request for transit may be required at that time, and the Requested State may grant
the request if, in its discretion, it is deemed appropriate to do so. The Treaty ensures that the person
will be kept in custody for up to 96 hours until a request for transit is received and thereafter until it is
executed.
Article 17--Representation and expenses

Paragraph 1 provides that the United States represents the Philippines in connection with requests
from the Philippines for extradition before the courts in this country, and the Philippines Secretary of
Justice arranges for the representation of the United States in connection with United States
extradition requests to the Philippines.

Paragraph 2 requires that the Requested State bear all expenses of extradition except those
expenses relating to the ultimate transportation of the person surrendered to the Requesting State
and the translation of documents, which are to be paid by the Requesting State. Cases may arise in
which the Requesting State may wish to retain private counsel to assist in the presentation of the
extradition request. It is anticipated that in such cases the fees of private counsel retained by the
Requesting State must be paid by the Requesting State.

Paragraph 3 provides that neither Contracting Party shall make a pecuniary claim against the other
in connection with extradition proceedings, including arrest, detention, examination and surrender of
the person sought. This includes any claim by the person sought for damages or reimbursement of
legal fees or other expenses occasioned by the execution of the extradition request.

Article 18--Consultation

This article provides that the United States and Philippine Departments of Justice may consult with
each other with regard to an individual extradition case or extradition procedures in general. A
similar provision is found in other recent United States extradition treaties.41

Article 19--Application

This Treaty, like most United States extradition treaties negotiated in the past two decades, is
expressly made retroactive and covers offenses that occurred before as well as after the Treaty
enters into force.

Article 20--Ratification and entry into force

This article contains standard treaty language providing for the exchange of instruments of
ratification at Manila. The Treaty is to enter into force immediately upon the exchange.

Article 21--Termination

This article contains standard treaty language describing the procedure for termination of the Treaty
by either Contracting Party. Termination shall become effective six months after notice of termination
is received.

VIII. Text of the Resolution of Ratification

Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and
consent to the ratification of the Extradition Treaty Between the Government of the United States of
America and the Government of the Republic of the Philippines, signed at Manila on November 13,
1994. The Senate's advice and consent is subject to the following proviso, which shall not be
included in the instrument of ratification to be signed by the President:

Nothing in the Treaty requires or authorizes legislation or other action by the United States of
America that is prohibited by the Constitution of the United States as interpreted by the United
States.

Footnotes

1. The United States and the Philippines signed an extradition treaty on November 27, 1981,
but that treaty was not ratified.

2 See Philippines Presidential Decree No. 1069 of Jan. 13, 1977 (``Philippine Extradition
Law''). The key sections of the law that are germane to the interpretation and implementation
of the Treaty are discussed in more detail in this technical analysis. The Philippine delegation
stated that under the Philippine Constitution, treaties enjoy priority over municipal law. Thus,
if the terms of the Treaty conflict with the Extradition Law, the terms of the Treaty will prevail.

3. See Stanbrook and Stanbrook, ``Extradition: The Law and Practice'' 25-26 (1979).

4. See, e.g., 21 U.S.C. Sec. 848.

5. See 18 U.S.C. Sec. Sec. 1961-68.

6. See 18 U.S.C. Sec. 1341.

7. See 18 U.S.C. Sec. 2314.

8. Restatement (Third) of the Foreign Relations Law of the United States Sec. 402 (1987);
Blakesley, ``United States Jurisdiction over Extraterritorial Crime,'' 73 J. Crim. L. &
Criminology 1109 (1982).

9. Article 2 of the Philippine Penal Code states that the Code may apply to crimes committed
outside the Philippines only if the crime took place aboard a Philippine vessel; involved
forgery or passing of forged Philippine coin, currency, or obligations; was committed by a
Philippine public officer or employee in the exercise of official duties; or was a ``crime against
national security and the law of nations, as defined in Title One Book Two of this Code,'' i.e.,
treason, espionage, inciting war, corresponding with hostile countries, and piracy. The
Philippines does not appear to have extraterritorial jurisdiction to prosecute drug offenses. As
the Philippines cannot prosecute those who violate its drug laws outside the Philippines, it
would have difficulty extraditing to the United States drug traffickers who acted outside the
United States. The Philippine delegation assured the United States that it would recommend
that its government change Philippine law to remedy this situation.

10. See Protocol Amending U.S.-Canada Extradition Treaty, Jan. 11, 1988, art. I, T.I.A.S.
No. --; Protocol Amending U.S.-Australia Extradition Treaty, Sept. 4, 1990, art. III, T.I.A.S.
No. --.
11. Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979) (``Leniency in sentencing does
not give rise to a bar to extradition''). Reliance on the amount of the sentence remaining to
be served can also produce anomalous results. For instance, a murderer who escapes from
custody with less than six months to serve on a sentence can hardly resist extradition on the
basis that murder is not a serious offense.

12. Sept. 14, 1963, 20 U.S.T. 2941, T.I.A.S. No. 6768, 704 U.N.T.S. 219.

13. Dec. 16, 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192.

14. Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570.

15. Dec. 14, 1973, 28 U.S.T. 1975, T.I.A.S. No. 8532, 1035 U.N.T.S. 167.

16. Dec. 17, 1979, T.I.A.S. No. 11081.

17. Dec. 20, 1988, T.I.A.S. No.

18. Mar. 30, 1961, 18 U.S.T. 1407, T.I.A.S. No. 6298, 520 U.N.T.S. 204.

19. Mar. 25, 1972, 26 U.S.T. 1439, T.I.A.S. No. 8118, 976 U.N.T.S. 3.

20. There are similar provisions in many recent treaties. See U.S.-Jamaica Extradition
Treaty, June 14, 1983, art. III(3), T.I.A.S. No. ; U.S.-Spain Extradition Treaty, May 29, 1970,
art. 5(4), 22 U.S.T. 737, T.I.A.S. No. 7136, 796 U.N.T.S. 245; U.S.-Netherlands Extradition
Treaty, June 24, 1980, art. 4, T.I.A.S. No. 10733; and U.S.-Ireland Extradition Treaty, July
13, 1983, art. IV(c), T.I.A.S. No. 10813.

21. See Eain v. Wilkes, 641 F.2d 504, 513-518 (7th Cir.), cert. denied, 454 U.S. 894 (1981);
Koskotas v. Roche, 740 F. Supp. 904 (D. Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).

22. An example of such a crime is desertion. See ``Matter of the Extradition of Suarez-
Mason,'' 694 F. Supp. 676, 703 (N.D. Cal. 1988).

23. See, e.g., U.S.-Netherlands Extradition Treaty, June 24, 1980, art. 7, T.I.A.S. No. 10733;
U.S.-Ireland Extradition Treaty, July 13, 1983, art. 6, T.I.A.S. No. 10813.

24. See generally Shearer, ``Extradition in International Law'' 110-14 (1970); 6 Whiteman,
``Digest of International Law'' 871-76 (1968). Our policy of drawing no distinction between
United States nationals and others in extradition matters is underscored by Title 18, United
States Code, Section 3196, which authorizes the Secretary of State to extradite United
States citizens pursuant to a treaty that permits but does not expressly require surrender of
citizens as long as the other requirements of the treaty have been met. 18 U.S.C. Sec. 3196.

25. Courts applying Title 18, United States Code, Section 3184 long have required probable
cause for international extradition. Restatement (Third) of the Foreign Relations Law of the
United States Sec. 476 comment b (1987).
26. The Philippine Extradition Law does not specify the standard of proof in international
extradition matters; Philippine practice is to specify this in the treaty itself. The Philippine
Extradition Law provides: ``Upon conclusion of the [extradition] hearing, the court shall
render a decision granting extradition, and giving his reasons therefor upon showing the
existence of a prima facie case. Otherwise, it shall dismiss the petition.'' Philippine
Extradition Law Sec. 10. However, the Philippine delegation noted that the term ``prima facie
case'' merely means that all requirements of the Treaty appear to have been met, and the
Treaty itself must be consulted for the quantum of evidence needed for surrender.

27. See, e.g., U.S.-Bahamas Extradition Treaty, Mar. 9, 1990, art. 8(3)(b), T.I.A.S. No..

28. See Spatola v. United States, 741 F. Supp. 362, 374 (E.D.N.Y. 1990), aff'd, 925 F.2d 615
(2d Cir. 1991); Clark, 470 F. Supp. 976

29. Compare Philippine Extradition Law Sec. 9(2) with 18 U.S.C. Sec. 3190.

30. Many recent United States extradition treaties provide for transmission of provisional
arrest requests via the International Criminal Police Organization (INTERPOL), as well as
through diplomatic channels or directly between the Justice Departments of the two
Contracting Parties. At the request of the Philippine delegation, the Treaty does not provide a
role for INTERPOL in the provisional arrest process.

31. Under Section 20 of the Philippine Extradition Law, provisional arrest requests are
transmitted through the National Bureau of Investigation, and the fugitive must be released
from custody if the supporting documentation is not received within 20 days of provisional
arrest. Philippine Extradition Law Sec. 20. Article 9(4) of the Treaty is intended to take
precedence over this provision.

32. Clark,'' 470 F. Supp. 976.

33. 18 U.S.C. Sec. 3188.

34. See Jimenez v. U.S. District Court, 84 S. Ct. 14, 11 L. Ed. 2d 30 (1963) (decided by
Goldberg, J., in chambers); see also Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); in re
United States, 713 F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th Cir.
1978).

35. Under United States law and practice, the Secretary of State makes this decision.
Koskotas v. Roche, 740 F. Supp. 904 (D. Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).

36. Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), aff'd, 932 F.2d 977 (11th
Cir. 1991).

37. Philippine Extradition Law Sec. 15.

38. In the United States, the Secretary of State has the authority to consent to a waiver of the
rule of specialty. See Berenguer v. Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979).
39. Cf. U.S.-Netherlands Extradition Treaty, June 24, 1980, art. 16, T.I.A.S. No. 10733.

40. See Philippine Extradition Law Sec. 18.

41. See, e.g., U.S.-Belgium Extradition Treaty, Apr. 9, 1987, art. 19, T.I.A.S. No. --; U.S.-
Switzerland Extradition Treaty, Nov. 11, 1990, art. 24, T.I.A.S. No. --; U.S.-Hungary
Extradition Treaty, Dec. 1, 1994, art. 21, T.I.A.S. No.