INTERNATIONAL COOPERATION:
EXTRADITION AND MUTUAL LEGAL ASSISTANCE
Manuel T. Soriano, Jr.*I.

INTRODUCTION

Our Constitution declares that the Philippines adheres to the policy of cooperation withall nations.1 This cooperation necessarily includes assistance in other countries’ fights against
corruption, subject to Philippine domestic laws, treaty obligations and generally accepted
principles of international law. Like most countries, the Philippines abhors corruption
because of its devastating effect on the social and economic development of nations and theirpeople. As stressed in the Rationale of this seminar, “Corruption destroys nations. It
undermines democracy and the rule of law, distorts business activities and competition, andhinders sustainable development and prosperity. It is also a threat to the security of societies
as it creates environments in which organized crime, terrorism, and other forms of unlawful
activity may prosper.” The Philippines is committed to do its part in the fight against thiscommon enemy of nations, and has entered into several extradition and mutual legal
assistance treaties for that purpose. This paper will tackle the Philippine mechanism andprocedures concerning extradition and mutual legal assistance. It is hoped that this simple
presentation will give my fellow participants an opportunity to compare their systems andpractices with ours in the Philippines.
To be sure, participation in international seminars, such as this, helps us keep abreast ofdevelopments in the international arena and provides us with the essential opportunity tolearn from our peers and share good practices. I thus look forward to the presentations of myfellow participants in order to have an opportunity to gain broader understanding of theirrespective systems on extradition and mutual legal assistance which I can bring to my country.
II.

LEGAL AND INSTITUTIONAL FRAMEWORK FOR EXTRADITION AND
MUTUAL LEGAL ASSISTANCE

A. Agencies Involved
Before introducing mechanism and procedures relative to extradition and mutual legal
assistance, it may be worth mentioning and describing certain government agencies in thePhilippines which have roles in the matters under consideration. These agencies are the
Office of the Ombudsman, the Department of Justice, the Department of Foreign Affairs, and
the Anti-Money Laundering Council.
1.

Office of the Ombudsman
The Office of the Ombudsman is an independent constitutional body mandated to fightand prevent corruption. It is headed by an Ombudsman who has, among others, the power toinvestigate and prosecute, on his/her own or on complaint by any person, any act or omission*

Acting Director, Prosecution Bureau III, Office of the Special Prosecutor, Office of the Ombudsman,Philippines.
1
Article II, Section 2.

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of any public officer or employee, office or agency, when such act or omission appears to beillegal, unjust, improper or inefficient.2 The Office of the Ombudsman may request assistanceand information from any government agency in the Philippines.
According to the Philippine Notification relative to the ratification of the United Nations
Convention against Corruption (UNCAC), the Office of the Ombudsman, in the absence of abilateral treaty, serves as the Central Authority for mutual legal assistance. Should there be abilateral treaty between a state party to the UNCAC and the Philippines, it is the Departmentof Justice that functions as the Central Authority which shall have the power to receive
requests for execution or transmittal to competent authorities.
2.

Department of Justice
The Department of Justice (DOJ) investigates and prosecutes criminal offenders throughthe National Bureau of Investigation3 and the National Prosecution Service, respectively.4
The Department serves as the Philippine Central Authority for extradition and mutual legal
assistance on criminal matters and represents treaty partners before Philippine courts.5
3.

Department of Foreign Affairs
The Department of Foreign Affairs is the prime agency of government responsible forthe pursuit and implementation of the Philippine foreign policy. It pursues bilateral, regionaland multilateral relations with other states or governments to advance the interests of thePhilippines and the Filipinos.
4.

Anti-Money Laundering Council
The Anti-Money Laundering Council is the Philippines’ Financial Intelligence Unit.
Among its functions are to: (i) institute civil forfeiture proceedings through the Office of the
Solicitor General; (ii) cause the filing of complaints with the Department of Justice or the
Ombudsman for the prosecution of money laundering offenses; and (iii) investigate money
laundering activities and other violations of the Anti-Money Laundering Act.6
B. The Philippine Extradition Law7
1. Concept of Extradition
Extradition is defined in the law as “the removal of an accused from the Philippines withthe object of placing him at the disposal of foreign countries to enable the requesting state or
government to hold him in connection with any criminal investigation directed against him or
the execution of a penalty imposed on him under the penal or criminal law of the requestingstate or government.”8 It has been characterized as the right of a foreign power, created bytreaty, to demand the surrender of one accused or convicted of a crime within its territorial
jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.
It is not a criminal proceeding. Even if the potential extraditee is a criminal, an extradition
proceeding is not by its nature criminal, for it is not punishment for a crime, even thoughsuch punishment may follow extradition. It is sui generis, tracing its existence wholly to2

Republic Act No. 6770 (The Ombudsman Act of 1989).
http://www.doj.gov.ph/vision-mission-and-mandate.html.
4
http://www.doj.gov.ph/vision-mission-and-mandate.html.
5
Id.
6
http://www.amlc.gov.ph/amlc.html.
7
Presidential Decree No. 1069, entitled “Prescribing the Procedure for the Extradition of Persons Who Have
Committed Crimes in a Foreign Country.”
8
Sec. 2(a), PD 1069.
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treaty obligations between different nations. It is not a trial to determine the guilt or
innocence of the potential extraditee. Nor is it a full-blown civil action, but one that is merely
administrative in character. Its object is to prevent the escape of a person accused orconvicted of a crime and to secure his return to the state from which he fled, for the purposeof trial or punishment.9
2.

Basis and Purpose
Extradition may be granted only pursuant to a treaty or convention.10 In the Philippines,
for a treaty to be valid and effective, the same must be concurred in, or ratified by, at least 2/3
of all the members of the Senate,11 that is, at least 16 out of 24 Senators.12 At present, thePhilippines has extradition treaties with 13 countries, namely, Indonesia, 13 Thailand, 14
Australia, 15 Canada, 16 Switzerland, 17 South Korea, 18 Micronesia, 19 the United States ofAmerica,20 Hong Kong,21 Spain, India, China, and the United Kingdom.22
Extradition may be requested for the following purposes: (i) criminal investigation
instituted by authorities of the requesting state or government charging the accused with an
offense punishable under the laws both of the requesting state and the Republic of thePhilippines by imprisonment or other form of deprivation of liberty for a period stipulated in
the relevant extradition treaty or convention; or (ii) execution of the prison sentence imposedby a court of the requesting state, with such duration as that stipulated in the relevant
extradition treaty or convention, to be served within the territorial jurisdiction of therequesting state.23
The general conditions for extradition are set forth in the Extradition Law, while thespecific minimum requirements as well as the mandatory and discretionary grounds forrefusing a request for extradition are provided for in existing treaties.24
Under existing treaties, extradition of a Filipino national is one of the discretionary
grounds for refusing a request for extradition, with the exception of the treaties of thePhilippines with India, the United kingdom and the United States of America, which contain9

Govt. of Hong Kong, represented by the Phil. Dept. of Justice vs. Hon. Felixberto Olalia Jr., et al., G.R. No.
153675, April 9, 2007, jurisprudence cited in the case omitted here.
10
Sec. 3, PD 1069.
11
The Philippine Congress, which is the Legislative Department of the government, is composed of two (2)chambers, the Lower House (House of Representatives) and the Upper House (Senate).
12
Sec. 21, Art. VII, Philippine Constitution.
13
Date of Entry into Force: October 25, 1976.
14
Date of Entry into Force: December 7, 1984.
15
Date of Entry into Force: January 18, 1991.
16
Date of Entry into Force: November 12, 1990.
17
Date of Entry into Force: February 23, 1997.
18
Date of Entry into Force: November 30, 1996.
19
Based on the records of the Department of Foreign Affairs of the Philippines, the treaty between thePhilippines and Micronesia has not entered into force. No file found (Note Verbale on notification of completionof the requirements) on its entry into force.
20
Date of Entry into Force: November 22, 1996.
21
Date of Entry into Force: June 20, 1997.
22
Philippine treaties with Spain, India and the United Kingdom are pending before the Philippine Senate
Committee on Foreign Relations for concurrence.
23
Sec. 3 (a) (b), PD 1069.
24
Atty. Rafael G. Hipolito, UNCAC Review Focal Point, Office of the Ombudsman, “Inventory of Philippine
Compliance with the United Nations Convention Against Corruption (UNCAC), Chapter IV-International
Cooperation, page 5.

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an explicit provision that extradition shall not be refused on the ground that the person sought
is a citizen of the requested state. To date, the Philippines has not refused a request for
extradition on the sole ground that the person sought to be extradited is its own national.25
Moreover, the Extradition Law and the existing treaties do not impose as a condition for
the extradition of a Filipino national that the service of sentence, in case of conviction, be in
the Philippines. There is also no domestic law which would authorize the enforcement in thePhilippines of a sentence imposed under the domestic law of a foreign country.26
Extradition may be denied on the ground that the request is likely for the purpose ofprosecuting and punishing a person on account of that person’s sex, race, religion, nationality,
ethnic origin, or political opinions or that compliance with the request would cause prejudice
to the person’s position for any one of these reasons. This mandatory ground for denying arequest for extradition is present in all Philippine bilateral extradition treaties, except with
India, Indonesia, Thailand and the United States of America.27
With regard to UNCAC, the Philippine Notification states that, in view of therequirement of dual criminality under the Philippine Extradition Law, UNCAC cannot be
considered as a legal basis for extradition. However, subject to compliance with domestic
legal processes, the Philippines is considering the amendment of its declaration, so that it canuse the Convention as a basis for extradition provided that the dual criminality requirement issatisfied.28
3.

Requesting Officer; Requirements
Request for extradition may be made by any foreign state or government with which thePhilippines has an extradition treaty or convention in force. Such request may be made by the
diplomat of the foreign state, addressed to the Secretary of Foreign Affairs of the Philippines.
The request shall be accompanied by: (i) the original or an authentic copy of either- (a) thedecision or sentence imposed upon the accused by the court of the requesting state, or (b) the
criminal charge and the warrant of arrest issued by the authority of the requesting state or
government having jurisdiction of the matter or some other instruments having the equivalent
legal force; (ii) a recital of the acts for which extradition is requested, with the fullest
particulars as to the name and identity of the accused, his whereabouts in the Philippines, if
known, the acts or omissions complained of, and the time and place of the commission ofthese acts; (iii) the text of the applicable law or statement of the contents of said law, and thedesignation or description of the offense of the law, sufficient for the evaluation of therequest; and (iv) such other documents or information in support of the request.29
4.

Provisional Arrest; Right to BailIn case of urgency, the requesting state may, pursuant to the treaty or convention in force,
request the provisional arrest of the accused pending receipt of the request for extradition. A
request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation (NBI) of the Philippines, either through the Diplomatic Channels or direct bypost or telegraph. The Director of the NBI or any official acting on the Director’s behalf shall,
upon receipt of the request, immediately secure a warrant for the provisional arrest of the25

Id. at page 7.
Id. at page 8.
27
Id. at page 9.
28
Id. at page 4.
29Sec. 4, PD 1069.
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accused from the judge of the Regional Trial Court of the province or city having jurisdiction.
The NBI Director through the Secretary of Foreign Affairs shall inform the requesting stateof the result of its request. If within 20 days after the provisional arrest the Secretary ofForeign Affairs has not received the request for extradition and the required documents, theaccused shall be released from custody. Release from provisional arrest shall not prevent rearrest and extradition of the accused if a request for extradition is received subsequently inaccordance with a treaty or convention in force.30
Can a prospective extraditee post bail for his/her provisional liberty upon arrest? In a
2002 case, the Philippine Supreme Court held that, “The constitutional provision on bail does
not apply to extradition proceedings, as it is available only in criminal proceedings.” 31
However, in 2007, the Philippine Supreme Court held that, “Clearly, the right of aprospective extraditee to apply for bail in this jurisdiction must be viewed in the light of thevarious treaty obligations of the Philippines concerning respect for the promotion andprotection of human rights. Under these treaties, the presumption lies in favor of humanliberty. Thus, the Philippines should see to it that the right to liberty of every individual is
not impaired.”32 The Supreme Court added that, “Obviously, an extradition proceeding, whileostensibly administrative, bears all earmarks of a criminal process. A potential extraditee
may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to thedemanding state following the proceedings.”33
5.

Duty of Secretary of Foreign Affairs; Concurrent Request for Extradition
Unless it appears to the Secretary of Foreign Affairs that the request fails to meet therequirements of the Philippine law and the relevant treaty convention, the Secretary shallforward the request together with the related documents to the Secretary of Justice, who shallimmediately designate and authorize an attorney in the Justice Department to take charge ofthe case. The attorney so designated shall file a written petition, including all related
documents, with the proper Regional Trial Court of the province or city having jurisdiction of
the place, with a prayer that the court take the request under consideration. The filing of thepetition and the service of the summons to the accused shall be free from payment of docket
and sheriff’s fees. The court where the petition is filed shall continue to have exclusive
jurisdiction to hear and decide the case, regardless of the subsequent whereabouts of theaccused, or the change or changes of residence.34
In case extradition of the same person has been requested by two or more states, theSecretary of Foreign Affairs, after consultation with the Secretary of Justice, shall decide
which of the several requests shall be first considered, and copies of the former’s decision
thereon shall be promptly forwarded to the attorney having charge of the case, if there be one,through the Department of Justice.35
6.

Issuance of Summons; Temporary Arrest; Hearing, Service of Notices
Immediately upon receipt of the petition, the judge shall, as soon as practicable, summon
the accused to appear and answer the petition on the day and hour fixed in the order. The
30

Id. at Sec. 20.
Government of the United States of America vs. Hon. Guillermo Puruganan, et al., G.R. No. 148571,
September 24, 2002.
32
Id.
33
Govt. of Hong Kong, represented by the Phil. Dept. of Justice vs. Hon. Felixberto Olalia Jr., et al., supra.
34
Sec. 5, PD 1069.
35
Id. at Sec. 15.
31- 134 -

judge may issue a warrant for the immediate arrest of the accused which may be served
anywhere within the Philippines if it appears to the judge that the immediate arrest andtemporary detention of the accused will best serve the ends of justice. Upon receipt of theanswer to the petition, or should the accused after having received the summons fail toanswer within the time fixed, the judge shall hear the case or set another date for the hearing.
The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly
served each upon the accused and the attorney having charge of the case.36
7.

Appointment of Counsel de Officio; Hearing in Public; Exception; Legal Representation
If on the date set for the hearing the accused does not have legal counsel, the judge shallappoint any law practitioner residing within the court’s territorial jurisdiction as counsel deofficio to assist the accused in the hearing.37 The hearing shall be public unless the accused
requests, with the approval of the court, that it be conducted in chambers. The attorney
having charge of the case may upon request represent the requesting state throughout theproceedings. The requesting state may, however, retain private counsel to represent it forparticular extradition cases. Should the accused fail to appear on the date set for hearing, or if
the accused is not under detention, the court shall forthwith issue a warrant of arrest which
may be served upon the accused anywhere in the Philippines.38
8.

Nature and Conduct of Proceedings; Decision and Service Thereof.
In the hearing, the provisions of the Rules of Court, insofar as practicable and notinconsistent with the summary nature of the proceeding, shall apply to extradition cases, andthe hearing shall be conducted in such a manner to arrive at a fair and speedy disposition of
the case. Sworn statements offered in evidence at the hearing of any extradition case shall bereceived and admitted in evidence if properly and legally authenticated by the principal
diplomatic or consular officer of the Philippines residing in the requesting state.39
Upon conclusion of the hearing, the court shall render a decision granting extradition,and shall give his reason therefor upon showing of the existence of a prima facie case.
Otherwise, it shall dismiss the petition.40 The decision of the court shall be promptly servedon the accused if present at the hearing, and the clerk of court shall immediately forward twocopies thereof to the Secretary of Foreign Affairs through the Department of Justice.41
9.

Appeals by Accused; Stay of Execution
The accused may, within 10 days from receipt of the decision of the court granting theextradition, appeal to the Court of Appeals of the Philippines, whose decision in extradition
cases shall be final and immediately executory. The appeal shall stay the execution of thedecision.42 The provision of the Philippine Rules of Court governing appeals in criminalcases in the Court of Appeals shall apply.43 The accused and the Secretary of Foreign Affairs,
through the Department of Justice, shall each be promptly served with copies of the decisionof the Court of Appeals.44
36

Id. at Sec. 6.
Id. at Sec. 7.
38
Id. at Sec. 8.
39
Id. at Sec. 9.
40
Id. at Sec. 10.
41
Id. at Sec. 11.
42
Id. at Sec. 12.
43
Id. at Sec. 13.
44
Id. at Sec. 14.
37- 135 -

10. Surrender of Accused; Seizure and Turn Over of the Accused’s Properties
After the decision of the court in the extradition has become final and executory, theaccused shall be placed at the disposal of the authorities of the requesting state, at a time andplace to be determined by the Secretary of Foreign Affairs, after consultation with the foreign
diplomat of the requesting state. 45 If the extradition is granted, articles found in thepossession of the accused who has been arrested may be seized upon order of the court at the
instance of the requesting state, and such articles shall be delivered to the foreign diplomat of
the requesting state who shall issue the corresponding receipt.46
11. Costs and Expenses; By Whom Paid
Except when the relevant extradition treaty provides otherwise, all costs and expenses
incurred in any extradition proceeding and in apprehending, securing and transmitting an
accused shall be paid by the requesting state. The Secretary of Justice shall certify to theSecretary of Foreign Affairs the amount to be paid by the requesting state on account ofexpenses and cost, and the Secretary of the Foreign Affairs shall cause the amount to becollected and transmitted to the Secretary of Justice for deposit in the National Treasury.47
C. Mutual Legal
Assistancelegal assistance
1. No Domestic Legislation
The Philippines does not have a domestic law on mutual legal assistance. However, theabsence of domestic legislation concerning mutual legal assistance does not prohibit thePhilippine government from requesting or granting legal assistance to a foreign country. The
Philippines can request or provide legal assistance in criminal matters to other states using asbases, among others, the provisions of existing bilateral and regional mutual legal assistancetreaties (MLATs), as well as “mini-MLAs” contained in the various United Nations
Conventions to which the Philippines is a state party, such as the United Nations Convention
against Corruption (UNCAC). Mutual legal assistance may also be provided pursuant to R.A.
9160, the Philippine Anti-Money Laundering Act of 2001 (AMLA), as amended by R.A.
9194.48 Moreover, non-treaty-based requests for legal assistance may also be made on thebasis of reciprocity.
2.

Philippine MLATs With Other Countries
To date, the Philippines has 8 MLATs. These are with Australia, 49 China, 50 Hong
Kong,51 South Korea,52 Spain,53 Switzerland,54 the United Kingdom55 and the United Statesof America.56 The more recent MLATs in the list are with China and the United Kingdom,which were concurred in by the Philippine Senate in May 2012. The Philippines is also astate party to the “Treaty on Mutual Legal Assistance in Criminal Matters,” or the so-called“ASEAN MLAT” entered into by the governments of Brunei Darussalam, Cambodia,
45

Id. at Sec. 16.
Id. at Sec. 17.
47
Id. at Sec. 18.
48
Inventory of Philippine Compliance with the United Nations Convention Against Corruption (UNCAC),
Chapter IV-International Cooperation, supra, page 11.
49
Date of Entry into Force: December 19, 1993.
50
Date of Entry into Force: October 19, 2012.
51
Date of Entry into Force: March 24, 2004.
52
Date of Entry into Force: November 17, 2008.
53
Date of Entry into Force: December 18, 2008.
54
Date of Entry into Force: December 1, 2005.
55
Date of Entry into Force: June 1, 2012.
56
Date of Entry into Force: November 22, 1996.
46- 136 -

Indonesia, Lao People’s Democratic Republic, Malaysia, Philippines, Singapore, and theSocialist Republic of Vietnam.
The MLATs entered into by the Philippines contain a lot of common provisions, among
them are assistance in: (i) gathering of evidence; (ii) taking the testimonies or statements ofpersons; (iii) execution of requests for searches and seizures; (iv) facilitating the personal
appearance of witnesses; (v) transferring of persons in custody for testimony or otherpurposes; (vi) obtaining and production of judicial and official records; (vii) tracing,
restraining, forfeiting and confiscating the proceeds and instrumentalities of criminal activities,
including assisting in proceedings related to forfeiture of assets, restitution and collection offines; and (viii) providing and exchanging information on law, documents and records.57
3.

Grounds for Denial of Requests for Mutual Legal AssistanceThe grounds for the denial of a request for assistance may be mandatory or discretionary.
The mandatory grounds include those that involve: (i) political offenses; (ii) offenses under
military law; (iii) double jeopardy; (iv) offenses barred by prescription; or (v) requests madefor the purpose of prosecuting, punishing or otherwise causing prejudice to a person on
account of that person’s race, sex, religion, nationality, or political belief.58
In the ASEAN MLAT, it was stated that the following shall not be considered as politicaloffenses: (i) an offense against the life or person of a Head of State or a member of his/her
immediate family; (ii) an offense against the life or person of a Head of a central Government,
or of a minister of a central Government; (iii) an offense within the scope of any international
convention to which both the Requesting and Requested states or governments are parties
and which imposes on the parties thereto an obligation either to extradite or prosecute a
person accused of commission of that offense; and any attempt, abetment or conspiracy tocommit any of the offences referred to above.59
The discretionary grounds to deny a request for legal assistance include those: (i) where
the requesting party has, in respect of that request, failed to comply with any material termsof the treaty or other relevant arrangements; (ii) the provision of the assistance would, or
would be likely to prejudice the safety of any person, whether that person is within or outside
the territory of the requested party; or (iii) the provision of the assistance would impose an
excessive burden on the resources of the requested party. 60
Noteworthy, the Philippine MLATs with China, Republic of Korea, Switzerland, Spainand the United States provide as a discretionary ground for refusing a request for assistancethe fact that the execution of the request is likely to prejudice its sovereignty, security, publicorder, or other essential interests. On the other hand, the Philippine MLATs with Australia

57

Simeon Marcelo, Former Ombudsman of the Philippines, “Denying Safe Havens through Regional andWorldwide Judicial Cooperation: The Philippine Perspective,” Issue Paper (Workshop F), presented to the 5th
Anti-Corruption Conference, ADB/OECD Anti-Corruption Initiative for Asia and the Pacific (September 28-30,
2005).
58
In the Philippines and the United States of America MLAT, it was stipulated that the Requested State may
deny assistance if the request relates to a political offense; an offense under military law which would not be an
offense under ordinary criminal law; or if the execution of the request would prejudice its security or similar
essential interests, or made not in conformity with the Treaty. (Article 3 [1] of the Treaty).
59
Article 3(3), ASEAN MLAT.
60
Id., Article 3(2).

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and Hong Kong provide such as a mandatory ground for refusal.61
4.

Dual Criminality
Dual criminality relates to acts that are criminal in both the requesting and requested
states. Generally, the requirement of dual criminality is discretionary upon the requested state.
However, the Philippines has bilateral agreements wherein it is expressly stated thatassistance will be provided without regard to whether the alleged conduct constitutes anoffense under the laws of the requested party. As a rule, the Philippines does not decline
requests for mutual assistance, be they treaty or non-treaty based, on the ground of absence ofdual criminality. Likewise, dual criminality is not a requirement for providing assistance to aforeign state under Section 13 of the AMLA.62
5.

Central Authority
As previously stated, the Department of Justice serves as the Central Authority for treatybased requests for legal assistance. It acts on both incoming and outgoing MLA requests. The
Department of Justice, through its Office of the State Counsel, conducts the evaluation. If theJustice Department finds that the execution of the request belongs to another government
agency, said Department transmits the request to the agency competent to execute the same.
If the request involves production of bank records, the request will be referred to the AntiMoney Laundering Council.
In the absence of a treaty, the Office of the Ombudsman, through its Office of the Legal
Affairs, serves as the Central Authority for mutual legal assistance. So far, the Office of the
Ombudsman has received only one request, and it is pending.
6

Confidentiality
The Justice Department exerts its best efforts to keep MLA requests confidential,
including its contents and any action taken thereon. In case the confidentiality is breached,
the Department of Justice, or the Office of the Ombudsman in proper cases, will immediately
inform the requesting party of such breach to determine if it still wants to pursue the request.
However, where the request would involve filing an application in court for its execution, therequest and the information provided therein would be considered as public record once theapplication is filed in court.
7.

Limitation of Use
The information or evidence obtained may only be used in the criminal proceedingreferred to in the request for assistance. If the requesting state wishes to use the information
or evidence in a proceeding not mentioned in the request, it must first secure the consent of
the requested state. MLATs are intended solely for mutual assistance between the parties tothe treaty. The provisions of an MLAT will not give rise to any right on the part of any
private person to obtain, suppress or exclude any evidence or impede the execution of therequest.

61

Inventory of Philippine Compliance with the United Nations Convention Against Corruption (UNCAC),
Chapter IV-International Cooperation, supra., page 23.
62
Id. at page 16.

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III. CASE STUDIES
A. Turn-over of US$132,000, Representing Proceeds of the Forfeiture Sale ofProperty Registered in the Name of a Former Military Comptroller’s Wife
In 2005, the Office of the Ombudsman filed a forfeiture case before the Sandiganbayan63
against former military Comptroller and General Jacinto Ligot for amassing wealth grossly
disproportionate to his lawful income. Further investigation, in close cooperation with US
authorities, resulted in the identification of real property located in Buena Park, California,
registered in the name of the General’s wife. The property was promptly subjected toforfeiture proceedings and auctioned off for the amount of US$132,000.
In 2009, a request for the return of the proceeds of the forfeiture sale was made by the
Office of the Ombudsman, through the Department of Justice, under the auspices of the USPhilippines Mutual Legal Assistance Treaty. In 2011, the US Government, throughAmbassador Harry K. Thomas, Jr. turned over to Secretary of Justice Leila M. de Lima acheque, in the amount of US$132,000, representing the proceeds of the forfeiture sale.
Ambassador Thomas declared that it was the “first-ever return of funds in an asset-forfeiturecase,” demonstrating the benefits of the Mutual Legal Assistance Treaty between the twonations.
B. Return of US$100, 000 Seized from a Military Comptroller’s Sons
In December 2003, the sons of retired Armed Forces of the Philippines Comptroller andGeneral Carlos Garcia attempted to bring into the United States of America the undeclaredamount of US$100,000 (cash) but were caught by San Francisco airport authorities andcharged with conspiracy to commit bulk cash smuggling. The sons pleaded guilty and themoney was forfeited to the US Government.
In the Philippines, an investigation led to the filing of a Plunder charge and a forfeiturecase against General Garcia and his family. In 2010, the Office of the Ombudsman formally
informed the US authorities that the seized US$100,000 was part of the ill-gotten wealth ofGeneral Garcia and requested its return, under the auspices of the US-Philippines Mutual
Legal Assistance Treaty. In January 2012, the US Government, through Ambassador Harry K.
Thomas, Jr., turned over to Ombudsman Conchita Carpio Morales a cheque, in the amount of
US$ 100,000, representing the money seized from the General’s sons.
C. Extradition of Charlie Atong Ang, Co-accused in a Plunder Case Against a Former
Philippine President
Charlie Atong Ang, then consultant of the Philippine Amusement and Gaming
Corporation, fled to the United States when then Philippine President Joseph Estrada wasousted. Mr. Ang’s extradition was sought for prosecution of the crime of Plunder, inviolation of Republic Act No. 7080, specifically for conspiring with the President in theconversion of P130 million worth of tobacco excise tax for the latter’s personal use and inreceiving proceeds from the illegal numbers game jueteng. Finding that the evidence
established probable cause that Mr. Ang committed Plunder, the US District Court of theDistrict of Nevada granted the request for extradition.

63

Special Anti-Graft Court in the Philippines which has jurisdiction over offenses committed by high-ranking
public officers of the Philippines, as well as low-ranking employees and private persons who may haveconspired with the high-ranking public officers.

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IV. CONCLUSION
Extradition and mutual legal assistance may no longer be in their infancy stages in thePhilippines. However, more work should be done. There is no domestic legislation on mutual
legal assistance, hence, legislation in that regard should be enacted. Likewise, trainings on
extradition and mutual legal assistance for authorities responsible for extradition and mutual
assistance may be needed. Further, more treaties on extradition and mutual legal assistancewith other willing states should be entered into by the Philippines. To be sure, the moretreaties of that kind, the fewer places where corrupt people and other criminals can hide,
perpetrate their nefarious activities and evade investigation, prosecution and service ofsentences.

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INTERNATIONAL COOPERATION: MUTUAL LEGAL ASSISTANCEAND EXTRADITION
Mary Grace R. Quintana*

I. INTRODUCTION“With the advent of easier and faster means of international travel, the flight of affluent
criminals from one country to another for the purposes of committing crime and evadingprosecution has become more frequent. Accordingly, governments are adjusting their
methods of dealing with criminals and crime that transcend international boundaries.”1“More and more, crimes are becoming the concern of one world. Laws involving crimes
and crime prevention are undergoing universalization. One manifest purpose of this trend
towards globalization is to deny easy refuge to a criminal whose activities threaten the peace
and progress of civilized countries. It is to the great interest of the Philippines to be part ofthis irreversible movement in the light of its vulnerability to crimes, especially transnational
crimes.”2
II. LEGAL FRAMEWORK
A. Mutual Legal Assistance (MLA)
The Philippines does not have domestic legislation on mutual legal assistance (MLA).
The absence of a domestic law on mutual legal assistance, however, does not mean that wecannot seek or obtain assistance from and to a foreign government. We do so on the basis of
our existing bilateral Mutual Legal Assistance Treaties in Criminal Matters, commonly
known as MLATs, or on the basis of reciprocity.
In case of a request for assistance that is made on the basis of reciprocity, an undertaking
has to be made by the requesting State that it will provide the same type of cooperation to therequested State. The extent of assistance that the Philippines can seek or grant will, therefore,
depend on the nature of assistance being requested. A request for assistance requiring
compulsory processes or court intervention for its execution may not be made on the basis ofreciprocity; requests of this nature can only be made on the basis of a treaty.
The Philippines is party to eight (8) bilateral MLATs with the following countries:
Australia, China, Hong Kong, Korea, Spain, Switzerland, the United States of America(USA) and the United Kingdom (UK). It is also a party to the ASEAN MLAT.
Aside from the bilateral agreements earlier mentioned, the Philippines is also a Party tomultilateral treaties which contain provisions on extradition and mutual legal assistance.
These include the UN Convention Against Corruption (UNCAC), the UN Convention
Against Transnational Organized Crime (UNTOC), the UN International Convention for the*State Counsel IV, Philippine Department of Justice.
Government of the United States of America v. Purganan, 389 SCRA 623, 652.
2
Secretary of Justice v. Lantion, 343 SCRA 377, 393.
1

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Suppression of the Financing of Terrorism, the UN Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, and others.
B. Extradition
Presidential Decree No. (P.D.) 1069, “Prescribing the Procedure for the Extradition of
Persons Who Have Committed Crimes in a Foreign Country,” was issued by then President
Ferdinand E. Marcos on January 13, 1977. At present, the Philippines has thirteen (13)extradition treaties with the following countries: Indonesia (1976); Thailand (1981); Australia(1988); Canada (1989); Micronesia (1990); Korea (1993); the USA (1994); the Hong Kong
Special Administrative Region (1995); China (2001); Spain (2004); India (2004); the UK(2009). PD No. 1069 expressly states that extradition may be granted only pursuant to atreaty or convention.3
III. PHILIPPINE CENTRAL AUTHORITY
The designated Central Authority for the Republic of the Philippines in MLA and
Extradition is the Department of Justice (DOJ). Unless the treaty itself expressly states thatthe request be transmitted through diplomatic channels, all requests for extradition andmutual legal assistance may be directly transmitted to the DOJ.
The Office of the Chief State Counsel (OCSC), which assists the Secretary of Justice inthe performance of his/her duties as the Attorney General of the Philippines, performs therole of the DOJ as Central Authority in the processing and/or implementation of requests for
extradition and mutual legal assistance. The OCSC also represents our treaty partners before
the courts in extradition proceedings and requests for mutual legal assistance in criminal
matters.
IV. LEGAL PRECONDITIONS
A. Dual Criminality
For MLAs, the requirement of dual criminality is generally discretionary upon therequested State. However, we have bilateral agreements wherein it is expressly stated thatassistance will be provided without regard to whether the alleged conduct constitutes anoffense in the requested state. Under our MLATs with Australia, China, Hong Kong, andKorea, a request for legal assistance may be refused if the request relates to acts or omissions
which would not constitute an offense under the laws of the Requested State. A similar
provision is found in the ASEAN MLAT except that the Requested Party may provide
assistance even in the absence of dual criminality if permitted by its domestic laws.
For extradition to be granted, dual or double criminality is required. In determining
whether an offense is an offense punishable under the laws of both parties, it shall not matter
whether the laws of both States place the act or omission within the same category of offense
or denominate the offense by the same terminology (China).
B. Use Limitation/Rules of Specialty
The use of the limitation principle is standard in all of our MLATs. Under this principle,
the information or evidence obtained may only be used in the criminal proceeding referred toin the request for assistance. If the Requesting State wishes to use the information or evidence
3Sec. 3.

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in a proceeding not mentioned in the request, it must first secure the consent of the Requested
State.
In our MLAT with Switzerland, prior consent is not necessary if (a) the facts which are
the basis of the request constitute another offense for which mutual legal assistance would be
granted; or (b) the foreign criminal proceedings are directed against other persons having
participated in committing the offense.
The rule of specialty, while not provided in our Extradition Law, is found in all ourbilateral treaties. Under this principle, an extraditee will only be tried or punished by the
Requesting State for offenses in respect of which extradition has been granted unless theRequested State consents thereto. Before giving its consent, the Requested State may require
the submission of documents/statements under the Treaty. Our treaties expressly excluded
application of this rule (a) for conduct committed by an extraditee after his/her extradition;and (b) for lesser offenses, provided such lesser offense is an extraditable offense. In ourbilateral extradition treaties with UK and USA, the rule of specialty is extended to theextradition of a person to a third State.
C. Evidentiary Test
In requests for mutual legal assistance, the laws of the Requested State shall be observedin their implementation or execution. This requirement is essential to prevent “fishingexpeditions.” However, like dual criminality, evidentiary requirements are more relaxed for
MLA rather than for extradition, particularly for less intrusive measures such as the
production of documents or taking of statements of witnesses.
For extradition cases, the evidence submitted to the requested State should at least meetthe standard of probable cause. However, some jurisdictions, while agreeing on this standard,may, under their respective domestic laws, differ in meeting this standard.
Under PD No. 1069, the Department of Justice, as petitioner, must establish a prima
facie case. While the other treaties are silent as to the standard of evidence to be used in
extradition proceedings, our extradition treaties with Canada, Hong Kong, India, and the US
expressly provide that the conduct of extradition proceedings shall be in accordance with thelaws of the Requested State.
V. SCOPE OF OFFENSES
Affording the widest range of assistance possible under our MLATs, and subject to eachparties’ domestic laws, mutual legal assistance is rendered in the investigation andprosecution of offenses or to proceedings relating to criminal matters. Criminal matters
include matters connected with offenses against a law related to taxation, customs duties,
foreign exchange control or other revenue matters. Still other treaties include criminal
matters relating to forfeiture or confiscation of property in respect of an offense, imposition
or recovery of a pecuniary penalty and/or the freezing of assets that may be forfeited,confiscated or used to satisfy a pecuniary penalty imposed in respect of an offense.
P.D. 1069 provides that the person who is the subject of the request for extradition be
charged with an “offense punishable under the laws of both the requesting state or
government and the Republic of the Philippines by imprisonment or other form ofdeprivation of liberty for a period stipulated in the relevant extradition treaty or convention.”- 143 -

(Section 3) Except for our bilateral treaties with Hong Kong, Indonesia and Thailand, which
follow the list-approach, our treaties require that the offense must be penalized by
imprisonment for a period of at least one year, or by a more severe penalty. This may include
the attempt, conspiracy to commit, aid, abet, counsel, cause or procure the commission of or
being an accessory before or after the fact to, an offense to which the extradition relates (US,Thailand).
VI. GROUNDS FOR REFUSALAll extradition treaties and MLATs specify the grounds on which cooperation may bedenied. The ground for denying an extradition request or a request for mutual legal assistance
may be a mandatory or discretionary ground.
Mandatory grounds of refusal include requests that involve (a) political offenses; (b)offenses under military law; (c) double jeopardy; (d) prosecution is already barred byprescription; or (e) requests made for the purpose of prosecuting, punishing or otherwise
causing prejudice to a person on account of that person’s race, sex, religion, nationality, or
political belief.
In MLATs, discretionary grounds include requests where the Requesting Party cannot
comply with the conditions imposed by the Requested State relating to the confidentiality or
limitations as to the use of the evidence. A request for assistance may also be refused if its
implementation would prejudice an investigation or proceeding in the Requesting State, orendanger the safety of any person or impose an excessive burden on the resources of theRequested State or prejudice national interest.
Discretionary grounds for refusal of extradition include requests when the person sought
to be extradited is a national of the Requested State or if the extradition would be unjust or
incompatible with humanitarian considerations, taking into account the nature of the offense,
the interests of the Requested State, and the age or health of the person sought. The
extradition treaties with the United States and India contain a provision to the effect thatextradition shall not be refused on the ground that the person sought is a citizen of theRequested State.
VII. INTERNAL PROCEDURE
A. Transmission
Extradition requests are generally transmitted through diplomatic channels. Requests formutual legal assistance, on the other hand, are generally transmitted directly between theCentral Authorities of the two States.
B. Evaluation
In Sec. of Justice vs. Lantion4, the Supreme Court held that the executive authority given
the task of evaluating the sufficiency of the request and the supporting documents is the
Department of Foreign Affairs (DFA).
The DFA must also see to it that the accompanying request had been certified by theprincipal diplomatic or consular officer of the Requested State resident in the Requesting4

322 SCRA 160 (Jan. 18, 2000).

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State. It shall also determine if the request is politically motivated, or if the offense is amilitary offense which is not punishable under non-military penal legislation.
Should the DFA find that the request complies with the requirements of the law andapplicable treaty, the request and supporting documents are forwarded to the DOJ. The
Secretary of Justice shall then designate a panel of State Counsels to handle the extraditioncase. The designated State Counsels shall then file a written petition with the proper regional
trial court (RTC).
There are, however, instances when the person sought may waive the extradition
proceedings either before or after the filing of the petition for extradition. This process iscalled simplified extradition. In such a case, the person will be returned to the requesting
State as expeditiously as possible without further proceedings.
In case of requests for MLA, the DFA will only have the opportunity to evaluate therequest if the same is made on the basis of reciprocity. For MLA requests made on the basisof a treaty, the DOJ conducts the evaluation. If the execution of the request belongs toanother agency, the DOJ will transmit the request to the agency competent to execute thesame. For example, if the request involves production of bank records and the offense
involved is money laundering, the same will be referred to the Anti-Money Laundering
Council (AMLC). Where the request for mutual legal assistance involves a corruption case, it
shall be forwarded to the Office of the Ombudsman for implementation.
C. Extradition Hearing
PD No. 1069 does not specifically indicate whether the extradition proceeding is
criminal, civil or a special proceeding. Par. 1 of Sec. 9 thereof provides, however, that in the
hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicableand not inconsistent with the summary nature of the proceedings, shall apply (Section 9,
Paragraph 1). Thus, the extradition court shall, immediately upon receipt of the petition for
extradition and as soon as practicable, summon the accused to appear and answer the petition.
If in the court’s opinion, the immediate arrest and temporary detention of the personsought will best serve the ends of justice, the extradition court may issue a warrant of arrest.
It has been our practice to request the arrest of the person sought upon the filing of thepetition for extradition.
Upon conclusion of the hearing, the court shall render a decision granting the extradition
and giving the reasons therefore upon a showing of the existence of a prima facie case, or
dismiss the petition. 5 Said decision is appealable to the Court of Appeals (CA), whose
decision shall be final and immediately executory.6 The provisions of the Rules of Court
governing appeals in criminal cases in the CA shall apply in the aforementioned appeal,
except for the required 15-day period to a file brief.7
The person sought to be extradited may also be provisionally arrested pending receipt of
the formal request for extradition as long as it can be proven that there is urgency in theprovisional arrest such as when the subject person is a flight risk.
5Sec. 10, PD No. 1069.
Ibid. at Sec. 12.
7
Ibid. at Sec. 13.
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In this case, the DOJ, upon evaluation of the request for provisional arrest, indorses therequest to the INTERPOL Division of the National Bureau of Investigation, which shall thenfile the application for provisional arrest with the RTC. Upon receipt and evaluation of theformal request for extradition, the State Counsels assigned to the case shall thereafter file thecorresponding petition for extradition before the RTC.
Application with the RTC for the implementation of MLA requests will only be filed if
the request involves coercive measures such as search and seizure, freezing, confiscation orforfeiture of assets, or where the witness refuses to have his or her statement taken, etc.
D. Surrender of Fugitive/Implementation of MLA Request
After the decision of the extradition court granting the petition for extradition has
become final and executory, the person sought will be placed at the disposal of the authoritiesof the Requesting State, at a time and place to be determined by the Secretary of Foreign
Affairs, after consultation with the foreign diplomat of the Requesting State. Where thePhilippines is the Requesting State, at least two (2) INTERPOL agents of the NBI will escort
the fugitive back to the country. Where the Philippines is the Requested State, the extraditee
is normally turned over to the authorities of the Requesting State, the US Marshalls in case
the Requesting State is the US, at the NAIA. Documents or evidence produced pursuant to an
MLAT request are transmitted through the fastest possible means.
VIII. CHALLENGES
Extradition and mutual legal assistance, while already customarily used in internationallaw, are fairly new concepts in our jurisdiction. Expectedly, difficulties and challenges
abound in its implementation. Listed below are some of the common problems we encounter.
1. No organic law on MLA/outdated law on extradition.
While we have dutifully complied with our obligations under our MLATs, our ability toprovide the widest range of assistance to non-treaty partners is considerably hampered.
Without a domestic law on mutual legal assistance, we cannot grant requests for assistancethat require coercive measures for its execution, i.e. executing searches and seizures or
effecting service of judicial documents.
Our Extradition Law, on the other hand, was enacted thirty-five years ago before
criminals intensified their trans-border criminal activities. Understandably, there are alreadysome gaps in the law that have been legally attacked in court – rights afforded to an
extraditee, admissibility of evidence presented, among others – all of which has contributed
to delays in the proceeding. While we have, so far, successfully defended such issues, it has
lengthened the process contrary to the summary nature of an extradition hearing.
2. Lack of familiarity/awareness among law enforcers and prosecutors
3. Difficulty in gaining direct access to contact/focal points.
4. Differences on the evidentiary requirement rules.

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IX. MEASURES TO ADDRESS THE GAPSAs the primary implementing agency, the DOJ has taken steps to address the difficulties
in implementing or executing requests for mutual legal assistance or extradition. Amongthem –
1. Drafting of/amendments to domestic legislation.
2. Conducting trainings among stakeholders, i.e. law enforcers and prosecutors, tofamiliarize them with the use of MLATs and Extradition as a tool in investigation,evidence gathering, and case build-up.
3. Regular dialogue/meetings with Central Authorities to thresh out common issues
faced and to facilitate coordination.
X. CONCLUSION“Indeed, in this era of globalization, easier and faster international travel, and an
expanding ring of international crimes and criminals, we cannot afford to be an isolationist
state. We need to cooperate with other states in order to improve our chances of suppressing
crime in our country.”88Government of the United States of America v. Purganan, supra. p. 653.

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