Pre-empting the extradition court

As expected, the Supreme Court did not reconsider its decision in the Jimenez case. Voting was still according to the original positions taken by the justices in the main decision except the additional vote of the new justice appointed who sided with the majority thus making it 9-3-3 against Jimenez. Nine justices say that Jimenez should be arrested and detained without bail pending the hearing of the petition for extradition filed by the Department of Justice (DOJ) against him. Three justices affirmed the Regional Trial Court (RTC) ruling that Jimenez can post bail while it is still hearing the petition for extradition while three other justices voted to remand the case to the RTC to determine whether there are really enough grounds to grant him bail.

The difference in the opinion of the majority and the minority is more apparent than real. The majority did not absolutely sustain the contention of the government that the right to bail guaranteed by the Constitution is not applicable in extradition cases. The majority agreed with the stand of the government that the constitutional provision on bail applies only when a person has been arrested and detained for violation of Philippine criminal laws; that as a general rule, bail is not a matter of right in extradition cases. But according to the majority, to "best serve the ends of justice, after a potential extraditee has been arrested and placed under custody of the law, bail may be applied for and granted as an exception upon a clear and convincing showing that: there is no flight risk and no danger to the community; and there exist special humanitarian or compelling circumstances". Such ruling of the majority is no different from the declaration of the minority that "the power to admit bail exists in extradition cases although as a matter of policy it may be granted only under exceptional circumstances". Both therefore agree that bail may be granted in extradition cases under exceptional circumstances. The case of Jimenez however does not fall under any of the exception because according to the majority, he is a flight risk.

If there is any variance in the majority and minority opinion, it is only in the procedure. For the majority, the application for bail under those exceptional circumstances should be made only after the arrest and at the extradition proceeding itself while the minority is of the opinion that he need not be arrested as he could immediately apply for bail even before the start of the extradition hearing.

As Congressman, is Jimenez immune from arrest? The law (Art.VI sec.11 Constitution) provides that a Senator or Member of the House of Representatives cannot be arrested while Congress is in session for offenses punishable by not more than six years imprisonment. So he can be arrested for offenses punishable by more than six years imprisonment even while Congress is in session and even for offenses punishable by not more than six years imprisonment while Congress is not in session. It is easy to determine when Congress is in regular or special session as these are officially scheduled. As for the offenses and their corresponding penalties, the extradition request may be the primary source of information.

Even as the second or judicial phase of the extradition process is merely starting, Jimenez has already made a statement that he is willing to be extradited to the United States and face the music there. Such statement may be premature as the extradition court has yet to decide whether he is indeed extraditable under the Extradition Treaty with the US and Law (PD 1069). In deciding whether Jimenez is extraditable, the most difficult question facing the extradition court is whether the extradition request satisfies the principle of "double criminality", one of the common features of existing extradition treaties which the treaty with the U.S. "so vaguely defined", according to Fr. Joaquin Bernas, S.J., a noted constitutionalist. Fr. Bernas explains that "under the principle of double criminality or double extraditability, an act is extraditable if it is punishable as a crime according to the laws of both the requesting state and the requested state or according to international law. The purpose of this principle is to insure that a person will not suffer punishment for offenses not considered criminal by the requested state". Determining whether the requirement of this principle has been met entails a lot of questions like what kind of evidence is needed to satisfy the requirement. "Is it satisfied by a commonality of the name of the crime, or is the determination based on the substantive facts adduced in the request?" These are some of the disputed matters which the extradition court will have to decide in the hearing, Fr. Bernas said.

But all these issues have been rendered moot and academic in view of the two page motion filed by Jimenez in court reiterating his statement in media that he will no longer contest his extradition and will voluntarily surrender to the U.S. authorities. At the rate he is changing his mind however, it is possible that he may again withdraw this motion.

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