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Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 113213 August 15, 1994
PAUL JOSEPH WRIGHT, petitioner,
vs.
HON. COURT OF APPEALS, HON. JUDGE JOSE DE LA RAMA, RTC, BRANCH 139, MAKATI,
M.M. and HON. FRANK DRILON, SECRETARY OF JUSTICE, respondents.
Rodrigo E. Mallari for petitioner.
Aurora Salva Bautista collaborating for petitioner.
KAPUNAN, J.:
A paramount principle of the law of extradition provides that a State may not surrender any individual
for any offense not included in a treaty of extradition. This principle arises from the reality of
extradition as a derogation of sovereignty. Extradition is an intrusion into the territorial integrity of the
host State and a delimitation of the sovereign power of the State within its own territory. 1 The act of
extraditing amounts to a "delivery by the State of a person accused or convicted of a crime, to
another State within whose territorial jurisdiction, actual or constructive, it was committed and which
asks for his surrender with a view to execute justice." 2 As it is an act of "surrender" of an individual
found in a sovereign State to another State which demands his surrender 3 , an act of extradition,
even with a treaty rendered executory upon ratification by appropriate authorities, does not imposed
an obligation to extradite on the requested State until the latter has made its own determination of the
validity of the requesting State's demand, in accordance with the requested State's own interests.
The principles of international law recognize no right of extradition apart from that arising from treaty. 4
Pursuant to these principles, States enter into treaties of extradition principally for the purpose of
bringing fugitives of justice within the ambit of their laws, under conventions recognizing the right of
nations to mutually agree to surrender individuals within their jurisdiction and control, and for the
purpose of enforcing their respective municipal laws. Since punishment of fugitive criminals is
dependent mainly on the willingness of host State to apprehend them and revert them to the State
where their offenses were committed, 5 jurisdiction over such fugitives and subsequent enforcement
of penal laws can be effectively accomplished only by agreement between States through treaties of
extradition.
:
Desiring to make more effective cooperation between Australia and the Government of the
Philippines in the suppression of crime, 6 the two countries entered into a Treaty of Extradition on the
7th of March 1988. The said treaty was ratified in accordance with the provisions of Section 21,
Article VII of the 1987 Constitution in a Resolution adopted by the Senate on September 10, 1990
and became effective thirty (30) days after both States notified each other in writing that the
respective requirements for the entry into force of the Treaty have been complied with. 7
The Treaty adopts a "non-list, double criminality approach" which provides for broader coverage of
extraditable offenses between the two countries and (which) embraces crimes punishable by
imprisonment for at least one (1) year. Additionally, the Treaty allows extradition for crimes committed
prior to the treaty's date of effectivity, provided that these crimes were in the statute books of the
requesting State at the time of their commission.
Under the Treaty, each contracting State agrees to extradite. . . "persons
. . . wanted for prosecution of the imposition or enforcement of a sentence in the Requesting State for
an extraditable offense." 8 A request for extradition requires, if the person is accused of an offense,
the furnishing by the requesting State of either a warrant for the arrest or a copy of the warrant of
arrest of the person, or, where appropriate, a copy of the relevant charge against the person sought
to be extradited. 9
In defining the extraditable offenses, the Treaty includes all offenses "punishable under the Laws of
both Contracting States by imprisonment for a period of at least one (1) year, or by a more severe
penalty." 10 For the purpose of the definition, the Treaty states that:
(a) an offense shall be an extraditable offense whether or not the laws of the Contracting
States place the offense within the same category or denominate the offense by the same
terminology;
(b) the totality of the acts or omissions alleged against the person whose extradition is
requested shall be taken into account in determining the constituent elements of the
offense. 11
Petitioner, an Australian Citizen, was sought by Australian authorities for indictable crimes in his
country. Extradition proceedings were filed before the Regional Trial Court of Makati, which rendered
a decision ordering the deportation of petitioner. Said decision was sustained by the Court of Appeals;
hence, petitioner came to this Court by way of review on certiorari, to set aside the order of
deportation. Petitioner contends that the provision of the Treaty giving retroactive effect to the
extradition treaty amounts to an ex post facto law which violates Section 21 of Article VI of the
Constitution. He assails the trial court's decision ordering his extradition, arguing that the evidence
adduced in the court below failed to show that he is wanted for prosecution in his country. Capsulized,
all the principal issues raised by the petitioner before this Court strike at the validity of the extradition
proceedings instituted by the government against him.
The facts, as found by the Court of Appeals, 12 are undisputed:
On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the Department of Foreign
Affairs indorsed to the Department of Justice Diplomatic Note No. 080/93 dated February
19, 1993 from the Government of Australia to the Department of Justice through Attorney
General Michael Duffy. Said Diplomatic Note was a formal request for the extradition of
Petitioner Paul Joseph Wright who is wanted for the following indictable crimes:
1. Wright/Orr Matter — one count of Obtaining Property by Deception contrary to Section
:
81(1) of the Victorian Crimes Act of 1958; and
2. Wright/Cracker Matter — Thirteen (13) counts of Obtaining Properties by Deception
contrary to Section 81(1) of the Victorian Crimes Act of 1958; one count of attempting to
Obtain Property by Deception contrary to Section 321(m) of Victorian Crimes Act of 1958;
and one count of Perjury contrary to Section 314 of Victorian Crimes Act of 1958, which
crimes were allegedly committed in the following manner:
The one (1) count of Obtaining Property by Deception contrary to Section 81
(1) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright's and co-
offender, Herbert Lance Orr's, dishonesty in obtaining $315,250 from Mulcahy,
Mendelson and Round Solicitors (MM7R), secured by a mortgage on the
property in Bangholme, Victoria owned by Ruven Nominees Pty. Ltd., a
company controlled by a Rodney and a Mitchell, by falsely representing that all
the relevant legal documents relating to the mortgage had been signed by
Rodney and Janine Mitchell.
The thirteen (13) counts of Obtaining Property by Deception contrary to
Section 81(1) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright's
and co-offender Mr. John Carson Craker's receiving a total of approximately
11.2 in commission (including $367,044 in bonus commission) via Amazon
Bond Pty. Ltd., depending on the volume of business written, by submitting two
hundred fifteen (215) life insurance proposals, and paying premiums thereon
(to the acceptance of the policies and payment of commissions) to the
Australian Mutual Provident (AMP) Society through the Office of Melbourne
Mutual Insurance, of which respondent is an insurance agent, out of which life
proposals none are in existence and approximately 200 of which are alleged to
have been false, in one or more of the following ways:
( i ) some policy-holders signed up only because they were told the policies
were free (usually for 2 years) and no payments were required.
(ii) some policy-holders were offered cash inducements ($50 or $100) to sign
and had to supply a bank account no longer used (at which a direct debit
request for payment of premiums would apply). These policy-holders were also
told no payments by them were required.
(iii) some policy-holders were introduced through the "Daily Personnel
Agency", and again were told the policies were free for 2 years as long as an
unused bank account was applied.
(iv) some policy-holders were found not to exist.
The one count of Attempting to Obtain Property by Deception contrary to
Section 321(m) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright's
and Mr. Craker's attempting to cause the payment of $2,870.68 commission to
a bank account in the name of Amazon Bond Pty. Ltd. by submitting one
proposal for Life Insurance to the AMP Society, the policy-holder of which does
not exist with the end in view of paying the premiums thereon to insure
acceptance of the policy and commission payments.
The one count of Perjury contrary to Section 314 of Victorian Crimes Act of
:
1958 constitutes in Mr. Wright's and Mr. Craker's signing and swearing before
a Solicitor holding a current practicing certificate pursuant to the Legal
Profession Practice Act (1958), a Statutory Declaration attesting to the validity
of 29 of the most recent Life Insurance proposals of AMP Society and
containing three (3) false statements.
Pursuant to Section 5 of PD No. 1069, in relation to the Extradition Treaty concluded
between the Republic of the Philippines and Australia on September 10, 1990, extradition
proceedings were initiated on April 6, 1993 by the State Counsels of the Department of
Justice before the respondent court.
In its Order dated April 13, 1993, the respondent court directed the petitioner to appear
before it on April 30, 1993 and to file his answer within ten days. In the same order, the
respondent Judge ordered the NBI to serve summons and cause the arrest of the
petitioner.
The respondent court received return of the warrant of arrest and summons signed by NBI
Senior Agent Manuel Almendras with the information that the petitioner was arrested on
April 26, 1993 at Taguig, Metro Manila and was subsequently detained at the NBI
detention cell where petitioner, to date, continue to be held.
Thereafter, the petitioner filed his answer.
In the course of the trial, the petitioner testified that he was jobless, married to a Filipina,
Judith David, with whom he begot a child; that he has no case in Australia; that he is not a
fugitive from justice and is not aware of the offenses charged against him; that he arrived
in the Philippines on February 25, 1990 returned to Australia on March 1, 1990, then back
to the Philippines on April 11, 1990, left the Philippines again on April 24, 1990 for
Australia and returned to the Philippines on May 24, 1990, again left for Australia on May
29, 1990 passing by Singapore and then returned to the Philippines on June 25, 1990 and
from that time on, has not left the Philippines; and that his tourist visa has been extended
but he could not produce the same in court as it was misplaced, has neither produced any
certification thereof, nor any temporary working visa.
The trial court, in its decision dated 14 June 1993, granting the petition for extradition requested by
the Government of Australia, concluding that the documents submitted by the Australian Government
meet the requirements of Article 7 of the Treaty of Extradition and that the offenses for which the
petitioner were sought in his country are extraditable offenses under Article 2 of the said Treaty. The
trial court, moreover, held that under the provisions of the same Article, extradition could be granted
irrespective of when the offense — in relation to the extradition — was committed, provided that the
offense happened to be an offense in the requesting State at the time the acts or omissions
constituting the same were committed. 13
Petitioner challenged the decision of the Regional Trial Court before the Court of Appeals assigning
the following errors:
I. THAT THE HONORABLE RESPONDENT JUDGE GRAVELY ERRED IN GIVING
RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY DESPITE THE
FACT THAT THE EVIDENCE ADDUCED BY THE RESPONDENT SHOW THAT THE
ALLEGED OFFENSES FOR WHICH PETITIONER IS SOUGHT TO BE EXTRADITED
TOOK PLACE IN 1988-1989 AT THE TIME THERE WAS NO EXTRADITION TREATY
BETWEEN THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA.
:
II. THAT THE ACT OF THE HONORABLE RESPONDENT JUDGE IN GIVING
RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY BETWEEN THE
REPUBLIC OF THE PHILIPPINES AND AUSTRALIA AMOUNTS TO AN "EX POST
FACTO LAW" AND VIOLATES SECTION 21, ARTICLE VII OF THE 1987
CONSTITUTION.
III. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING THE
EXTRADITION OF PETITIONER DESPITE THE FACT THAT THE EVIDENCE
ADDUCED DO NOT SHOW THAT PETITIONER IS WANTED FOR PROSECUTION IN
AUSTRALIA.
IV. THAT THE HON. RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION,
AMOUNTING TO LACK OF JURISDICTION, IN MISINTERPRETING THE EXTENDED
STAY OF PETITIONER AS EVIDENCE OF PETITIONER'S DESIGN TO HIDE AND
EVADE PROSECUTION IN AUSTRALIA.
V. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING THE
EXTRADITION OF PETITIONER WITHOUT SPECIFYING IN HIS ORDER OR DECISION
THE SPECIFIC CHARGES FOR WHICH PETITIONER IS TO STAND TRIAL IN
AUSTRALIA.
The Court of Appeals affirmed the trial court's decision on September 14, 1993 and denied
petitioner's Motion for Reconsideration on December 16, 1993. 14 Reiterating substantially the same
assignments of error which he interposed in the Court of Appeals, petitioner challenges in this petition
the validity of the extradition order issued by the trial court as affirmed by the Court of Appeals under
the Treaty. Petitioner vigorously argues that the trial court order violates the Constitutional prohibition
against ex post facto laws. He avers that for the extradition order to be valid, the Australian
government should show that he "has a criminal case pending before a competent court" in that
country "which can legally pass judgement or acquittal or conviction upon him."
Clearly, a close reading of the provisions of the Treaty previously cited, which are relevant to our
determination of the validity of the extradition order, reveals that the trial court committed no error in
ordering the petitioner's extradition. Conformably with Article 2, Section 2 of the said Treaty, the
crimes for which the petitioner was charged and for which warrants for his arrest were issued in
Australia were undeniably offenses in the Requesting State at the time they were alleged to have
been committed. From its examination of the charges against the petitioner, the trial court correctly
determined that the corresponding offenses under our penal laws are Articles 315(2) and 183 of the
Revised Penal Code on swindling/estafa and false testimony/perjury, respectively. 15
The provisions of Article 6 of the said Treaty pertaining to the documents required for extradition are
sufficiently clear and require no interpretation. The warrant for the arrest of an individual or a copy
thereof, a statement of each and every offense and a statement of the acts and omissions which were
alleged against the person in respect of each offense are sufficient to show that a person is wanted
for prosecution under the said article. All of these documentary requirements were dully submitted to
the trial court in its proceedings a quo. For purposes of the compliance with the provisions of the
Treaty, the signature and official seal of the Attorney-General of Australia were sufficient to
authenticate all the documents annexed to the Statement of the Acts and Omissions, including the
statement itself. 16 In conformity with the provisions of Article 7 of the Treaty, the appropriate
documents and annexes were signed by "an officer in or of the Requesting State" 17 "sealed with . . .
(a) public seal of the Requesting State or of a Minister of State, or of a Department or officer of the
Government of the Requesting State," 18 and "certified by a diplomatic or consular officer of the
:
Requesting State accredited to the Requested State." 19 The last requirement was accomplished by
the certification made by the Philippine Consular Officer in Canberra, Australia.
The petitioner's contention that a person sought to be extradited should have a "criminal case
pending before a competent court in the Requesting State which can legally pass judgement of
acquittal or conviction" 20 stretches the meaning of the phrase "wanted for prosecution" beyond the
intended by the treaty provisions because the relevant provisions merely require "a warrant for the
arrest or a copy of the warrant for the arrest of the person sought to be extradited." 21 Furthermore,
the 'Charge and Warrant of Arrest Sheets' attest to the fact that petitioner is not only wanted for
prosecution but has, in fact, absconded to evade arrest and criminal prosecution. Since a charge or
information under the Treaty is required only when appropriate, i.e., in cases where an individual
charged before a competent court in the Requesting State thereafter absconds to the Requested
State, a charge or a copy thereof is not required if the offender has in fact already absconded before
a criminal complaint could be filed. As the Court of Appeals correctly noted, limiting the phrase
"wanted for prosecution" to person charged with an information or a criminal complaint renders the
Treaty ineffective over individuals who abscond for the purpose of evading arrest and prosecution. 22
This brings us to another point raised by the petitioner both in the trial court and in the Court of
Appeals. May the extradition of the petitioner who is wanted for prosecution by the government of
Australia be granted in spite of the fact that the offenses for which the petitioner is sought in his
country were allegedly committed prior to the date of effectivity of the Treaty.
Petitioner takes the position that under Article 18 of the Treaty its enforcement cannot be given
retroactive effect. Article 18 states:
ENTRY INTO FORCE AND TERMINATION
This Treaty shall enter into force thirty (30) days after the date on which the Contracting
States have notified each other in writing that their respective requirements for the entry
into force of this Treaty have been complied with.
Either contracting State may terminate this Treaty by notice in writing at any time and it
shall cease to be in force on the one hundred and eightieth day after the day on which
notice is given.
We fail to see how the petitioner can infer a prohibition against retroactive enforcement from this
provision. The first paragraph of Article 18 refers to the Treaty's date of effectivity; the second
paragraph pertains to its termination. Absolutely nothing in the said provision relates to, much less,
prohibits retroactive enforcement of the Treaty.
On the other hand, Article 2(4) of the Treaty unequivocally provides that:
4. Extradition may be granted pursuant to provisions of this Treaty irrespective of when the
offense in relation to which extradition is requested was committed, provided that:
(a) it was an offense in the Requesting State at the time of the acts or omissions
constituting the offense; and
(b) the acts or omissions alleged would, if they had taken place in the Territory of the
Requested State at the time of the making of the request for extradition, have constituted
an offense against the laws in force in that state.
Thus, the offenses for which petitioner is sought by his government are clearly extraditable under
:
Article 2 of the Treaty. They were offenses in the Requesting State at the time they were committed,
and, irrespective of the time they were committed, they fall under the panoply of the Extradition
Treaty's provisions, specifically, Article 2 paragraph 4, quoted above.
Does the Treaty's retroactive application violate the Constitutional prohibition against ex post facto
laws? Early commentators understood ex post facto laws to include all laws of retrospective
application, whether civil or criminal. 23 However, Chief Justice Salmon P. Chase, citing Blackstone,
The Federalist and other early U.S. state constitutions in Calder vs. Bull 24 concluded that the concept
was limited only to penal and criminal statutes. As conceived under our Constitution, ex post facto
laws are 1) statutes that make an act punishable as a crime when such act was not an offense when
committed; 2) laws which, while not creating new offenses, aggravate the seriousness of a crime; 3)
statutes which prescribes greater punishment for a crime already committed; or, 4) laws which alter
the rules of evidence so as to make it substantially easier to convict a defendant. 25 "Applying the
constitutional principle, the (Court) has held that the prohibition applies only to criminal legislation
which affects the substantial rights of the accused." 26 This being so, there is no absolutely no merit in
petitioner's contention that the ruling of the lower court sustaining the Treaty's retroactive application
with respect to offenses committed prior to the Treaty's coming into force and effect, violates the
Constitutional prohibition against ex post facto laws. As the Court of Appeals correctly concluded, the
Treaty is neither a piece of criminal legislation nor a criminal procedural statute. "It merely provides
for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime
was already committed or consummated at the time the treaty was ratified." 27
In signing the Treaty, the government of the Philippines has determined that it is within its interests to
enter into agreement with the government of Australia regarding the repatriation of persons wanted
for criminal offenses in either country. The said Treaty was concurred and ratified by the Senate in a
Resolution dated September 10, 1990. Having been ratified in accordance with the provision of the
1987 Constitution, the Treaty took effect thirty days after the requirements for entry into force were
complied with by both governments.
WHEREFORE, finding no reversible error in the decision of respondent Court of Appeals, we hereby
AFFIRM the same and DENY the instant petition for lack of merit.
SO ORDERED.
Davide, Jr., Bellosillo and Quiason, JJ., concur.
Cruz, J., is on leave.
#Footnotes
1 OPPENHEIM, INTERNATIONAL LAW: A TREATISE 362-369 (1912)
2 Cited in BISHOP, INTERNATIONAL LAW 471 (1962).
3 Terlindan v. Arnes, 184 U.S. 270, 289 (1902).
4 Factor v. Laubenheimer, 270 U.S. 276 (1933).
5 FENWICK, CASES OF INTERNATIONAL LAW 448 (1951).
6 See, TREATY OF EXTRADITION BETWEEN AUSTRALIA AND THE REPUBLIC OF
THE PHILIPPINES, cited Treaty.
:
7 See, Treaty, art. 18.
8 Id., art. 1. Emphasis supplied.
9 Id., art. 6.
10 Id., art. 2.
11 Id.
12 C.A. Decision, pp. 1-5, Rollo, pp. 33-37
13 Id.
14 Rollo, pp. 45-49.
15 Commission of fraud by means of false pretenses or fraudulent acts executed prior to
or simultaneous with the commission of fraud (Art. 315[2]):
(a) By using fictitious name or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions, or by
means of other similar deceits.
(b) By altering the quality, fineness or weight of anything pertaining to his art or
business.
(c) By pretending to have bribed any Government employee without prejudice to the
action for calumny, which the offended party may deem proper to bring against the
offender. In this case, the offender shall be punished by the maximum period of the
penalty.
(d) By postdating a check, or issuing a check in payment of an obligation when the
offender had no funds in the bank, or his funds deposited therein were not sufficient
to cover the amount of the check. The failure of the drawer to the check to deposit
the amount necessary to cover his check within three (3) days from receipt of notice
from the bank and/or the payee or holder that said check has been dishonored for
lack or insufficiency of funds shall be prima facie evidence of deceit constituting false
pretense or fraudulent act. (As amended by Rep. Act NO. 4885, approved June 17,
1967).
Art. 183. False testimony in other cases and perjury in solemn affirmation.
. . .(I)mposed upon any person who, knowingly making untruthful statements and not
being included in the provisions of the next preceding articles, shall testify under
oath, or make an affidavit, upon any material mater before a competent person
authorized to administer an oath in cases in which the law so requires.
Any person who, in case of a solemn affirmation made in lieu of an oath, shall
commit any of the falsehoods mentioned in this and the three preceding articles of
this section, shall suffer the respective penalties provided therein.
16 See, Art. 6.
17 Art. 7 (a).
18 Art. 7 (b).
:
19 Art. 7 (c).
20 Rollo, pp. 21.
21 Art. 6, sec. 2.
22 C.A. Decision, pp. 41, Rollo, pp. 41.
23 2 STORY, COMMENTARIES, Sec. 1345.
24 3 Dall. 3 U.S. 386 (1798).
25 Id. See Mekin v. Wolfe, 2 Phil. 74, 77-78 (1903). See also, In re Kay Villegas Kami
where the following two elements were added: 5) assumes to regulate civil rights and
remedies only but in effect imposes a penalty or deprivation of a right which when done
was lawful; 6) deprives a person accused of a crime some lawful protection to which he
has become entitled, such as the protection of the former conviction or acquittal, or a
proclamation of amnesty.
26 1 BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES 489
(1987), citing Mekin, Id.
27 Rollo, pp. 39., C.A. DECISION, pp. 7.
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