RESOURCE MATERIAL SERIES No. 57

EXTRADITION AND LEGAL ASSISTANCE: THE PHILIPPINEEXPERIENCE
Severino H. Gaña, Jr.*,**
I. INTRODUCTION
Before embarking on a discussion ofsubstantive extradition law issues andprocedures in the Philippines, I would liketo describe briefly the International Affairs
Division (IAD) of the Philippine
Department of Justice. The Division iscomposed of State Prosecutors and State
Counsels. The Division is responsible forinternational extradition submitted by
local authorities and is the principal officehandling all requests for extradition ofindividuals who have fled to thePhilippines. The IAD is also the central
office in charge of all matters relating tomutual legal assistance in criminal
matters. In addition, within the IAD wehave the Refugee Processing Unit (RPU)
which implements our obligations
pursuant to the 1951 Refugee Convention
and its 1967 Protocol. A fourth function of
IAD is to assist in handling requests fortransfer of sentenced persons/prisoners,
although at the moment the Philippines
has only two treaties - one with Hong Kongand another with Thailand - but neither
have been ratified to date. Finally, the IAD
also participates in treaty negotiations.
At present the Philippines has
extradition treaties with Australia,
Canada, the Federated States ofMicronesia, Hong Kong, Indonesia,
Republic of Korea, Switzerland, the UnitedStates of America, and the Kingdom ofThailand, and treaties on mutual legal* Senior State Prosecutor, Department of Justice,
Philippines.
**International Director, Asia Crime Prevention
Foundation

50

assistance on criminal matters with
Australia and the United States ofAmerica.
As already mentioned, the Philippines
has two treaties on Transfer of Sentenced
Persons, one with Hong Kong and another
Thailand, but both are still pending in the
Senate.
The IAD is not a big office. All in all
there are about fifteen (15) of us. We are
directly under an Undersecretary ofJustice. So far this small group is sufficientconsidering the low number of cases being
handled.
The year 1999 was a challenging year
for the IAD. The year saw most of thelawyers of the IAD battling cases from theRegional Trial Court, Court of Appeals andthe Supreme Court. Foremost among thesecases was the United States appeal for the
extradition of Mark Jimenez, a presidential
adviser. This case put extradition in thelimelight and awareness to its importance
was focused as it saw publicity in theheadlines.
With this brief introduction about the
IAD, I would now like to begin a discussion
about the extradition experience in thePhilippines. I will not discuss the legal
principles applicable to extradition, except
maybe in passing, since numerous
materials abound in this area. Instead, mydiscussion will be limited to sharing ourpractical experiences in extradition andcooperation and some of the problems
facing us. My discussion will be divided
into two, namely, our experience in thosecases where we have treaties, which I

114TH INTERNATIONAL TRAINING COURSE
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would label as “formal extradition
procedures”, and those where we do nothave any formal treaties, which I call,“informal cooperation”.
II. FORMAL EXTRADITIONPROCEDURES
A. The Philippine Extradition Law
In the Philippines extradition isgoverned by Presidential Decree No. 1069,“The Philippine Extradition Law”, and by
the applicable extradition treaty in force.
PD No. 1069 was enacted by then President
Ferdinand Marcos in 1977, shortly after thePhilippines concluded its first extradition
treaty with the Republic of Indonesia. As
can be seen the law is more than twenty(20) years old, and has not been amended
since. PD No. 1069 is intended to “guidethe executive department and the courtsin the proper implementation of theextradition treaties to which thePhilippines is a signatory”. Under the law
extradition is defined as :“The removal of an accused from thePhilippines with the object of placing
him at the disposal of foreignauthorities to enable the requestingstate 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 lawof the requesting state or
government.”
The definition approximates theinternational definition of extradition
which is:... the process by which persons
charged with or convicted of crime
against the law of a State and foundin a foreign State are returned by thelatter to the former for trial or
punishment. It applies to those whoare merely charged with an offense

but have not been brought to trial; tothose who have been tried andconvicted and have subsequently
escaped from custody; and to those
who have been convicted in absentia.”
Philippine law provides that the
Secretary of Foreign Affairs has the firstopportunity to make a determination onwhether the request complies with therequirements of the law and the relevant
treaty, such as the submission of theoriginal or authenticated copy of thedecision or sentence imposed upon an
accused; or the criminal charge and thewarrant of arrest; a recital of the acts forwhich extradition is requested containing
the name and identity of the accused; hiswhereabouts in the Philippines; the acts
or omissions complained of; the time andplace of the commission of those acts; thetext of the applicable law or a statement of
the contents; and such other documents orinformation in support thereof. Once allof these are complied with, the request andsupporting documents are forwarded to theSecretary of Justice who shall thendesignate a panel of attorneys from the IAD
to handle the case.
In practice, the role of the Departmentof Justice (DOJ) is not limited to filing andhandling the case in court. If it deems
necessary, the DOJ may also request theforeign state to submit additional
supporting documents particular toPhilippine procedures. This is done to
make sure that only those requests thatcomply with both treaty and domestic
requirements are processed. For example,
we usually request for certified copies of
the affidavit of witnesses and do not merely
rely on the affidavit of the prosecuting
attorney which merely synthesizes thestatements of the witnesses. Relying solely
on the affidavit of the prosecuting attorney
may be dangerous because it would beconsidered already a double hearsay under

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RESOURCE MATERIAL SERIES No. 57
Philippine laws.
Once all the supporting documents are
in order, the State Counsel will prepare theextradition petition which is then filed witha Regional Trial Court. The judge may thenissue a warrant of arrest if in the court’s
opinion the immediate arrest andtemporary detention of the accused will
best serve the ends of justice. It has been
the practice of the IAD to request for thearrest of an accused upon the filing of an
extradition petition/application.
Under Section 20, provisional arrest canbe granted but the period of detention is
only twenty (20) days. The law also
contains a provision for the appointmentof a counsel de oficio if on the date set for
the hearing the accused does not have alegal counsel.
In addition to PD No. 1069, thePhilippine Rules of Court, although not alaw, apply in extradition cases but only
insofar as practicable and when notinconsistent with the summary nature of
the proceedings.
On the issue of the degree of evidence
required, under PD No. 1069, what thepetitioner must establish is a prima faciecase. The standard generally used intreaties is probable cause. An issue arises
on which standard is higher. Under
Philippine jurisdiction there is somedistinction between the two but it is a thinline that is often blurred. It would appear
however, that probable cause is a higher
standard.
Decisions of the Regional Trial Courts
are appealable to the Court of Appeals, andmay also be raised by certiorari to theSupreme Court.

52

B. Crimes Covered by Treaty
For crimes covered by treaty, thePhilippines adopts both the listing
approach - where specific crimes are
enumerated, and the dual criminality, or
what I would call the conduct approach,where what is important is the underlying
conduct of an accused.
To satisfy dual criminality, the name bywhich the crime is described in the twocountries need not be the same, nor should
the scope of liability for the crimes besimilar. As to the period when dual
criminality must exist, it may be worth
noting that in the recent case of Regina vs.
Bartle and the Commissioner of Police,
more commonly known as the Pinochet
extradition appeal case, the House of Lords
opined that dual criminality must exist at
the time of the commission of the act andnot at the time of the request.
The listing approach is adopted in theextradition treaties with Hong Kong,
Indonesia, and Thailand. While thosetreaties with Australia, Canada, theRepublic of Korea, Micronesia,
Switzerland, and the United States ofAmerica adopt the dual criminality
approach.
C. Jurisprudence on Extradition
To my mind, there is only one (1) casedecided by the Philippine Supreme Court
regarding extradition. This is the case of
Wright vs. Court of Appeals. This caseinvolved the extradition of an Australian,
Mr. Paul Wright, back to Australia to facecharges of obtaining property by deception.
The case is significant because ourSupreme Court, in upholding theconclusion of the Honorable Court ofAppeals, held that the RP-Australia
Extradition Treaty is neither a piece ofcriminal legislation nor a criminal
procedure. The Honorable Supreme Court
stated that extradition “merely provides for114TH INTERNATIONAL TRAINING COURSE
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the extradition of persons wanted forprosecution of an offense or a crime ...” Thedecision states in categorical terms thatextradition is not a criminal procedure in
the Philippines. Consequently, all the strict
safeguard measures attendant in acriminal case are not readily applicable inextradition.
It is accurate to state that extradition is
not a criminal procedure. The purpose ofan extradition hearing is not to determine
the guilt of the accused - that is the role ofthe court where the primary case ispending - but merely to determine whether
there is probable cause to believe that theaccused committed the offenses charged in
the requesting country. As such, theextradition court is not the venue to raise
defenses against the offense/s charged.

• Requesting State: Australia 3 (3extradited)• Requesting State: Hong Kong 1(detained)
CHART 1

• Requested State: USA, 12• Requested State: Canada, 2• Requested State; Indonesia, 1
CHART 2The case also made it clear that theprovisions of an extradition treaty whichmake it applicable to offenses committed
prior to its entry into force are not in thenature of an ex post facto law.
Finally, the decision holds that thephrase “wanted for prosecution” which isused in the treaties does not mean that
there is a criminal case pending against
the accused in the requesting State. Thisrequirement is complied with as long as
there is a warrant for the arrest of theaccused. In that instance the person canbe said to be “wanted for prosecution”.
Holding otherwise, it would be very easy
for an accused to render an extradition
treaty ineffective by the mere fact of
absconding before a case is actually filed.
D. Breakdown of Extradition
Requests
The breakdown of the extradition
requests is as follows:• Requesting State: USA, 10 (4detained, 1 extradited)

The data show that the Philippines
receives most requests from the UnitedStates. Correspondingly, the Philippines
sends most of its requests to the UnitedStates. This may be due in part to the large
number of Filipinos who reside in the
United States. It can also be seen that outof a total of 14 foreign requests, thePhilippines already extradited the subjects
in four (4) of these cases. That would
translate to 29% extradition rate. All theother cases are still pending.
For requests made pursuant to treaties
on mutual legal assistance, the breakdown
is as follows :• Requesting State: USA, 4• Requesting State: Australia 2

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RESOURCE MATERIAL SERIES No. 57
E. Current Major Issues
EncounteredGenerally, most of the objections raised
against extradition are constitutional ones.
This is understandable considering theinfancy of the proceedings in thePhilippines. Grounds for arguing thatextradition/extradition treaties areunconstitutional are the following:
1. It violates human rights
2. It is ex post facto
3. It is a denial of due process
4. It does not supersede domestic law
and that it in effect allows
extraterritorial application of foreignlaws.
In ordinary cases these issues could
easily be resolved. However, as this isconnected with a novel matter, there issome difficulty in resolving theconstitutional issues because of the dearthof jurisprudence on the subject.
Additionally, extradition and mutual legal
assistance are topics that are generally new
to both bench and bar. We therefore, often
rely on US jurisprudence, which have beenof great assistance to us. Hopefully, we willsoon have our own jurisprudence on thematter.
Some of the specific issues weencountered are the following:a. Provisional Arrest
When an alleged fugitive has been
located in a foreign country it is often
important to effect his arrest at once toprevent his further flight. For this purpose,most extradition laws and treaties providethat the alleged fugitive may be arrested
and temporarily detained for a period oftime to enable the requesting State tofurnish the necessary documentation in
support of its request for his extradition.
It is therefore, standard for extradition
treaties to contain a provision on
provisional arrest. Considering the time

54

factor, our implementing law, PD No. 1069
allows a request for provisional arrest to
be sent either through diplomatic channels
or by post or telegraph. Through practicethis has evolved to include requests sent
through fax. This is not without problems.
In a couple of cases, the accused hasquestioned the validity of requests that aresent through fax arguing that there is no
guarantee that fax copies are certified
copies of the original. Basically, theargument hinges on the issue ofauthentication and certification. It is the
position of the IAD that if the law allows
telegraph, which are often brief statements
then with more reason should fax copies,
which are reproductions of the original, be
allowed.
Also under PD No. 1069, the period for
detention under a provisional arrest
pending the receipt of the extradition
request is twenty (20) days. The treaties
however, provide generally from 45 to 60
days detention. There is a case now
pending before our Supreme Court on theissue of whether later treaties are deemed
to have amended the period so provided
under the domestic statute. It is the
position of the IAD that, where there is a
conflict, a later treaty prevails over an
earlier enacted statute. This is so because
under Philippine jurisprudence, a treaty
once ratified is on equal footing with adomestic law.
b. Issue of BailAn issue that arises once an accused has
been provisionally arrested is the questionof bail. Individual’s interest in pre-hearing
liberty has been recognized under the
principle of due process and consequently,
have been denied only in limitedc i r c u m s t a n c e s . M o r e o v e r, i n t h ePhilippines, the right to bail is enshrinedin our constitution.

114TH INTERNATIONAL TRAINING COURSE
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It has been commented that inextradition cases, the individual interestin pre-hearing liberty is arguably evenstronger than in domestic cases, because
in addition to the imprisonment, there isalso present the transportation of theindividual to another jurisdiction. Despite
this interest, most extradition treaties are
silent on the provision of bail. In the
Harvard Research in International Law,
Draft Convention on Extradition, the issueof the right to bail was deliberately left out.
At that time it seemed best to “leave to themunicipal law of each State to determine
whether enlargement upon bail is a safemeans of detention under any
circumstances, and, if so, the circumstances
which shall justify such action.”In the cases pending now in various
courts in the Philippines, the IAD puts
forward the argument that theConstitutional Right to Bail is not an
absolute right. This argument hinges on
the principle that as a general rule theconstitutional right to bail is available only
in criminal proceedings committed against
the state. This is supported by the text of
Section 13, Article 3 , of the 1987
Constitution which states that:All persons, except those charged
with offenses punishable by reclusion
perpetua when evidence of guilt isstrong, shall, before conviction, bebailable by sufficient sureties, or bereleased on recognizance as may beprovided by law. The right to bailshall not be impaired even when theprivilege of the writ of Habeas Corpus
is suspended. Excessive bail shall not
be required. (underscoring supplied)
Since, extradition is not a criminal
proceeding, bail as a matter of right does
not exist, if at best, it may exist only as amatter of discretion. Or to put indifferently, in extradition proceedings,

there is a presumption against bail.
The absence of a right to bail does notmean that the accused would be left
unprotected. It has been noted that inthose situations where the right to bail does
not exist, emphasis has been given to theright to speedy trial. It would appear that
this counterbalancing of rights would
reduce whatever harshness may exist by
the absence of a right to bail. It is notablethat both in the Philippine Extradition Law
and the extradition treaties entered intoby the Philippines there are no provisions
on bail. What the Philippine Extradition
Law provides is that the extradition
proceedings are summary in nature.
However, as lawyers, we always have analternative argument. Assuming that the
courts have the authority to grant bail inextradition proceedings even in the absenceof specific provision in PD 1069 and the
RP-US Extradition Treaty, this power must
be exercised only for the most special of
circumstances.
In Philippine
jurisprudence there are examples of special
circumstances; that is: to prolong detention
under a protracted trial with no indicationof early termination; or health reasonsnecessitating special hospitalization.
We are also arguing that if bail exists asa matter of discretion, the showing of areasonable risk of flight is sufficient groundfor denying bail. In the Philippine setting,this argument is novel since the practiceis that the risk of flight is not a ground for
denial, the remedy being to merely increase
the amount of bail. The reason for thepresumption against bail in extradition
proceedings is one that carriesinternational repercussions for therequested state. As enunciated in the caseof Wright vs. Henkel:
the demanding government, when it
has done all that the treaty and the55

RESOURCE MATERIAL SERIES No. 57
law require it to do, is entitled to thedelivery of the accused on the issue ofthe proper warrant, and the othergovernment is under obligation to
make the surrender; an obligation
which it might deem impossible tofulfill if release on bail were permitted.
The enforcement of the bond, if
forfeited, would hardly meet theinternational demand; and theregaining of the custody of the accusedobviously would be surrounded withserious embarrassment.
Unlike in ordinary domestic cases
wherein the damage caused by an accused
who absconds is contained within thedomestic plane, in extradition, releasing an
extraditee on bail, which provides anopportunity to abscond, puts at risk theinterest of the government to comply withinternational obligations. This is a very
real danger. We have a case wherein aforeigner out on bail had fled to thePhilippines.
There is still no definitive Philippine
jurisprudence on this issue as all the cases
regarding bail in extradition are pending
in different courts.
c. Politically Motivated
I understand that in the United States
the determination of whether a crime is ofa political nature rests with the courts,
while the question of the politicalmotivation of the country requesting
extradition is to be made by the executive
branch. In the Philippines there is still noclear jurisprudence on this matter although
there is a case pending in court which may
indirectly address this issue. In that casethe person sought to be extradited
requested the IAD for copies of the request
and supporting documents. The IAD
refused him access on the ground that it
was still processing the request and thatat that stage there is still no right of access,56

and at any rate he will be furnished all the
documents once the petition for extraditionis filed in court. The stand of the subject
person was that he had a right of access tothe documents at anytime in order that hewould be able to show before the executive
authorities that the request was politicallymotivated. The issue therefore, appears
to be whether the government is duty
bound to notify a person at the soonest
possible time, even prior to filing a petitionin court, that his extradition is sought. One
danger we see in this is that this would
give such person an opportunity to flee
since the executive authorities at this stage
do not yet have access to any judicial
safeguards that would prevent flight.
I noticed that the tenor of the provisions
on politically motivated requests/politicaloffenses are similar to that which is usedin International Refugee Law, particularly
the 1951 Convention Relating to the Status
of Refugees, and the 1967 Protocol relating
to the Status of Refugees, to which thePhilippines acceded to in July 22, 1981.
Consequently, the issue of politicalmotivated requests should be understoodin the context that it is used inInternational Refugee law, as referring toan ordinary criminal offence applied inpolitically suspicious circumstances .
d. Extradition of Nationals
Philippine law allows the extradition of
its nationals subject to the usual exceptions
as contained in the relevant treaties. Outof the four cases wherein extradition was
granted, one of them was a Filipino.
F. MLAT
Unlike in extradition, mutual legal
assistance in the Philippines does not have
any implementing laws for the treaties.
Through practice we have considered both
treaties to be self-executory and therefore,
even in the absence of any local law, thesetreaties have been enforced. MLAT are

114TH INTERNATIONAL TRAINING COURSE
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used in order to aid government
prosecutors in gathering evidence locatedoverseas even at the investigatory stage.
In a way this would substitute for lettersrogatory.
At present, most requests for legal
assistance involve having to examine bankrecords. Legally, this is a problem because
the Philippines has a strict bank secrecy
law. This is particularly true of foreign
currency deposits. It may be argued thatthe treaties supersede the bank secrecy
deposit law as the treaties came at a muchlater time. However, in the treaties there
is no express repeal made and therefore,
counter-arguments are made that there is
no repeal or amendment on the banksecrecy law.
We have a theory, following the case of
Salvacion vs. Central Bank of thePhilippines, that the bank secrecy laws do
not protect “illegitimate” deposits or
fraudulent investments. As the Solicitor
General argued:
It is evident from the above [Whereas
clauses] that the Offshore Banking
System and the Foreign Currency
Deposit System were designed to draw
deposits from foreign lenders andinvestors (Vide second Whereas of PD
No. 1034; third Whereas of PD No.
1035). It is these deposits that are
induced by the two laws and given
protection and incentives by them.
Obviously, the foreign currency deposit
made by a transient or a tourist is not
the kind of deposit encouraged by PD
Nos. 1034 and 1035 and given
incentives and protection by said laws
because such depositor stays only fora few days in the country and,
therefore, will maintain his deposit in
the bank only for a short time.

The reason for the protection was toincrease our links with foreign lenders andto facilitate the flow of desired investments
into the Philippines. Therefore, if the funds
or the accounts can be identified by anoutside source as not being used for
legitimate purposes, then the bank secrecy
laws do not apply.
At any rate, once a request for legal
assistance is received, the IAD files anapplication in court with a prayer toexamine the documents requested, and to
freeze the target accounts. We have been
fortunate that the banks we sought togather evidence and freeze accounts fromwere cooperative, and immediately
complied with the court orders. To date,
we have recovered approximately thirteen
million pesos (P 13,000,000.00) fromlaundered drug money. Probably, it will
be easier to target laundered drug money
as we could then use the 1988 Conventionof Psychotropic Substances also as a legal
basis as it has provisions on mutual legal
assistance and on extradition.
We are cautious in the implementationof MLATs as we are walking a tight rope
because of the absence of any definitive
jurisprudence. Slowly, however, we aregathering materials and formulating
possible arguments against the banksecrecy laws.
Regrettably however, and maybe due tolack of adequate information and resources,
the Philippines has not taken advantageof the MLATs. As the data shows, therequests have been one sided, with thePhilippines being the requested State.

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RESOURCE MATERIAL SERIES No. 57
III. INFORMAL PROCEDURES:
COOPERATION WITH JAPANAs mentioned earlier, we have had anumber of requests from Japan forassistance in gathering testimonial
evidence, and sometimes object evidence as
well. We have also in a number of instances
deported Japanese nationals who fled to
the Philippines in the hope of avoiding
prosecution in Japan.
There are no hard and fast rules
governing our cooperation with Japan.
While the requests are normally coursed
through the appropriate diplomaticchannels, it is not unusual for an advancecopy to be sent directly to my office so thatby the time we receive the official request,
the documents requested or person sought
is already available or in custody.
To better illustrate the workings of this“informal procedure” I would like to narrate
a few actual examples.
ACTUAL CASES A.
On January 18, 1993, defendants
Kosumi Yoshimi and Pablito Franco Barlis
conspired with William Gallardo Bueno
and Joemarie Baldemero Chua, and withmurderous intent, knocked down Kosumi
Shozaburo, defendant Kosumi Yoshimi’s
father (87 years old) on his back, pushed
beddings against his face, tightened anelectrical cord around his neck and stabbed
Shozaburo in the neck with a sharp blade
thereby causing Shozaburo to die fromexcessive bleeding due to punctured
wounds in his neck at the victim’s residence
at Nagoya-shi, Japan. Furthermore, thedefendants sprinkled kerosene from theheater found in the living room over the
bedding etc., ignited the kerosene with alighter one of them was carrying andallowed the fire to spread through aJapanese foot warmer (Kotatsu) to thehouse, thereby causing the entire house to58

be burned down.
The applicable provisions of law violated
werea) Article 199, Penal Code of Japan,
which states that:
A person who kills other person (s)shall be liable to death or
imprisonment with labor for life or
imprisonment with labor for aminimum period of three yearsb) Article 108:
A person who sets fire to and burns
an architectural structure used as aresidence or inhabited by otherperson(s) steam train, electric train,
ship or more shall be liable to death
penalty or imprisonment with laborfor life or imprisonment with forcedlabor for a minimum period of five
years.
c) Article 60:
Two or more persons who act jointly
in the commission of a crime are all
principals.
In February 1994, the Japanese Police
requested the Philippine National Police
through the International Criminal Police
Organization (ICPO) to interrogate
Joemarie Baldemero Chua an accomplice
who had fled to the Philippines. During
the course of the trial proceedings,
accomplice William Gallardo Bueno’s
testimony at Nagoya District Court
conflicted with Joemarie’s statement taken
by an investigator of the Criminal
Investigation Unit of the Philippine
National Police on the following crucial
matters :1. The time when the conspiracy tocommit murder and arson wasformed;2. The details of the conspiracy;

114TH INTERNATIONAL TRAINING COURSE
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3. The person(s) among the three
Filipino accomplices including
Joemarie, who actually murdered
Shozaburo by winding and tightening
an electrical cord around his neck andstabbing Shozaburo in the neck witha sharp blade.
4. The person who sprinkled kerosene
from a heater set fire to the house andso on.
Due to the above-mentioned
discrepancies, it was difficult to determine
whose statement was true. Therefore, it
became necessary to request a Public
Prosecutor in the Philippines to interrogate
Joemarie again, in the presence of aJapanese Public Prosecutor, about theparticulars and circumstances of theconspiracy to commit murder and arson
including the roles of the three Filipino
accomplices, the reward and the details of
the actual execution of above-mentioned
crimes.
On February 5, 1996, Mr. Hirosi Shimizu
Chief Prosecutor of the Nagoya District
Public Prosecutors Office of Japan wrote a
letter to the judicial authorities of the
Republic of the Philippines requesting forassistance in criminal investigation for thecriminal cases of Murder and Arson to
Inhabited Structure against Mr. Kosumi
Yoshimi and Pablito Franco Barlis, whichwere all under trial procedure at Nagoya
District Court.
A note verbale, no. 88-96, was issued by
the Embassy of Japan in Manila to the
Department of Foreign Affairs requesting
the cooperation of the authorities of thePhilippine Government in the said
investigation. Philippine Department of
Foreign Affairs endorsed all documents to
the Department of Justice. On March 25,
1996, then Secretary of Justice Teofisto T.
Guingona Jr., issued a Department Order
designating this representation to assist

the Japanese Public Prosecutor in Iloilo
City on March 26 to 28, 1996 ininterviewing one Joemarie Baldemero
Chua in relation to the said criminal cases.
Immediately, we all proceeded to Iloilo
City and I personally conducted
clarificatory questioning on the person of
Joemarie Baldemero Chua. He wasassisted by a lawyer from the Public
Attorney’s Office. Joemarie Chua
voluntarily and freely narrated the incident
that happened on January 18, 1993. The
Japanese Public Prosecutor and his
assistant went back to Japan with thesworn statement of Joemarie Chua.
Kosumi Yoshimi was sentenced to life
imprisonment for Murder and Arson to
Inhabited Structure at Nagoya District
Court on November 11, 1997 and his Kosoappeal was dismissed at Nagoya High
Court on November 19, 1998. His Jokokuappeal is pending at the Supreme Court.
Pablito Franco Barlis was sentenced to
imprisonment with labour of thirteen years
for Murder and Arson to Inhabited
Structure at Nagoya District Court on
February 26, 1998 which judgment has
now become final. William Gallardo Bueno
was sentenced to imprisonment withlabour of fifteen years for Murder andArson to Inhabited Structure at Nagoya
District Court on May 11, 1995 which
judgment has now become final.
ACTUAL CASES B.
On January 12, 1990, the Osaka
Maritime Police and the Osaka Customs
Police arrested Akira Fujita in Manila who
had been wanted for purchasing andshipping handguns from the Philippines inconnection with the smuggling of 40
handguns by a Yamaguchi-gumi (Yakuza)
syndicate member from the Philippines.
Police investigation revealed that Fujita
conspired with one Hironori Takenouchi,
of lzumi City, a Yakuza member. Fujita

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RESOURCE MATERIAL SERIES No. 57
allegedly purchased 40 handguns and 800
rounds of ammunition with one million andseveral hundred thousand yen he received
from Takenouchi and concealed the guns
and ammunition inside the furniture heshipped to Japan. Fujita was subsequently
convicted and was sentenced to seven years
imprisonment on July 19, 1990.
On October 8, 1997, Interpol Tokyo
informed Interpol Manila that Akira Fujita
departed from Japan on the Pakistan
Airlines flight bound for Manila on October
7, 1997. An official of the Japanese
Embassy in Manila requested thisrepresentation for assistance with theinformation on the whereabouts of Fujita.
I immediately referred the case of Fujita
to the Chief of the Intelligence Division of
the Bureau of Immigration, and two days
later, or on October 9, 1997, at about 6:30
PM of the same date, Fujita was arrested
by Immigration agents. After one week,
he was deported back to Japan.
ACTUAL CASES C.
On March 8, 1999, Mr. Norio Ishibe, theChief Prosecutor of the Akita District
Public Prosecutors’ Office requested the
judicial authorities of the Republic of thePhilippines for assistance in a criminal
investigation. The facts of the case are as
follows:
Defendants Akihito Ishiyama was apostmaster of Tokiwa Post Office in Akita,Japan. He handled and was in charge ofhandling cash at the Tokiwa Post Office aspart of his work responsibilities. At around6:00 P.M., October 23, 1998, the defendant
appropriated cash in the amount of
32,305,500 yen from Tokiwa Post Office forhis own use.
The applicable provisions of law
violated :Penal Code of Japan
Article 253
60

A person who wrongfully
appropriates another property which
has come into his possession in thecourse of business shall be punishedwith imprisonment with labor for not
more than 10 years.
Article 235
A person who steals the property of
another commits the crime of larceny
and shall be punished withimprisonment with labor for not morethan 10 years.
Defendant Ishiyama stated before an
investigator that he left Japan for thePhilippines with cash totaling about
33,000,000 yen and gave 970,000 yen to
Lody’s sister, Mina, and left 30,000,000 yen
with Sunny Laxa, the common-law
husband of Mina.
In order to confirm the defendant’ sstatement and to ascertain how the money
he got was spent, one Japanese Public
Prosecutor and an assistant weredispatched to conduct interviews of
witnesses. This representation was
designated by the Chief State Prosecutorof the Philippines to assist them. With thisdesignation, this representation together
with the Japanese Public Prosecutor andhis assistant found the witnesses in one ofthe provinces. They voluntarily and freely
gave their respective sworn statements.
Akihito Ishiyama was sentenced to
imprisonment with labour of four years andsix months for embezzlement, larceny andfraud by the Akita District Court on
September 1, 1999 which judgment has
now become final.
ACTUAL CASES D.
On September 1, 1998, Mr. Hideo Iida,
the Chief Public Prosecutor of the Osaka
District Public Prosecutors’ Office wrote a
letter to the Judicial authorities of the
Republic of the Philippines requesting for114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
assistance in criminal cases of
Abandonment of Corpse and Violation of
the Firearms and Swords Control Law
against Chow On Park who intended toabandon the body of one Haruo Nishikawa
murdered by Ho Ji Chong alias Hiroshi
Matsuda by shooting, and placed the corpse
into the trunk of the victim’s passenger car
parked in the parking lot on the first floorof Dainichi Building at Kadoma-shi, Osaka
at around 6:00 PM on November 28, 1997
and drove that car to the parking lot of
Hoshigaoka Kosei Nenkin Hospital locatedat Hirakata-shi, Osaka and left the bodythere.

Japanese Public Prosecutor HaruhikoFujimoto and his assistant were dispatched
to Manila. This representation was
designated by the Chief State Prosecutor
to assist them. I was able to persuade Ruby
Marcilla Arai to turn over the money kept
in the safe deposit box of China Bank
Corporation. She personally handed to me¥24,480,000. I delivered the said amountto the Department of Foreign Affairs (DFA).
The DFA turned over the money to theofficials of the Japanese Embassy in
Manila who turned over the said amountto the Osaka District Public Prosecutors
Office.

The defendant received about 30 million
Japanese yen in cash as a reward for thecriminal act from the accomplice Ho Ji
Chong alias Hiroshi Matsuda on November
28, 1997. The defendant’s wife, MarucillaPark Ruby Cristina alias Ruby Arai,entered the Philippines with the said cashon December 6, 1997 upon defendant’sorder. Said Marucilla asked her cousin
Bernardo Marilou y Rivera to keep
¥5,480,000 in the safe-deposit box atWestmont Bank and ¥19,000,000 in a safedeposit box at China Banking Corporation.
Since the defendant got the said money inreward for the criminal act of this case, themoney had to be seized and confiscated as
evidence.

Chow On Park alias Haruhiko Arai wassentenced to imprisonment with labour to
two years for Abandonment of Corpse andviolation of the Firearms and Swords
Control Law as well as the confiscation of
24,480,000 yen and a hand gun at Osaka
District Court on April 30, 1999, and his
Koso-appeal was dismissed on November
4, 1999. His Jokoku-appeal is pending at
the Supreme Court.

The applicable provisions of law
violated :Penal Code of Japan
Article 190 and Article 60
Abandonment of Corpse
Article 31-3 paragraph 1 and Article 3
paragraph 1 of the Firearms and Swords
Control Law and Article 60 of the Penal
Code shall be applied to the offense
described above as a violation of theFirearms and Swords Control Law.

It may be worth noting that the averagetime it took us to comply with requests forassistance is about one (1) week. The
absence of any procedure in these cases
helped reduce bureaucratic red tape andthereby, cut down on the time element.
Also, it appears that most witnesses werewilling to cooperate once it was explained
to them that only their testimony would
be needed and that they would not be
extradited or charged. Furthermore, after
explaining to potential witnesses oraccessories that only the proceeds of thecrimes would be confiscated but no charges
will be brought against them, they willingly
gave up the proceeds.
It is important therefore, that those
involved in legal assistance be able to meetpotential witnesses in order to be able toallay their fears. Once this initial fear was

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RESOURCE MATERIAL SERIES No. 57
properly addressed, the witnesses became
cooperative.
On the aspect of “surrender”, theprocedure used was basically deportation.
The legal justifications for deportation
would be their illegal entry, i.e. usually
through falsified documents; or that they
were previously blacklisted and therefore,
even if they were able to enter, they arestill legally subject to deportation whenfound.
Probably, this cooperation setup with theJapanese government works because of thepeculiarities of the Japanese legal system
whereby affidavits executed overseas areadmissible as evidence. But what thesecases show is that even outside a formal
framework, where two governments arewilling to share resources and expertise,and have developed close working
relations, real feasible solutions can occur.
It will be noticed that the Philippines
does not have any extradition or mutual
legal assistance treaty with Japan. This
however, has not stopped us fromcooperating with Japan in the effort toenforce criminal law. If we factor thenumber of cases we cooperated with Japan(both for legal assistance, and fordeportation) the statistics would be as
follows:
CHART 362

IV. CONCLUSION
Extradition and Mutual Legal
Assistance in the Philippines is still at the
infancy stage. There is little local
jurisprudence or writings on the subject.
This may be a reason why we still use
informal approaches.
We still have a long way to go. Being adeveloping country we are still way behind.
However, this will give us the unique
opportunity to develop the law and blaze
new trails. Often, we are mere players ina field that has been set by our forebears,
but here, as we play we make the rules.
Very few are given this opportunity.
We are fortunate that we have seminars
such as this one, whereby government
officials are exposed to the experiences ofdifferent countries. We can benefit fromknowing the laws and legal systems thatwork, and can adopt the same to fit our own
country’s legal peculiarities as we develop
the law. More important, fora such as thesehelp foster lasting friendships among those
who will one day be involved in extraditionand legal assistance. In my personal
experience, my friendship with UNAFEI
Director Kitada, has been a positive factor
in Philippine-Japanese cooperation. Let us
then use these opportunities to work formore effective and lasting solutions to the
problems facing us. It is precisely here
where we can mutually benefit by sharing
our resources, ideas and expertise andthereby contribute to world peace andharmony. And may the product of the work
we do here contribute to a better generationin the future with less crime and more
prosperity and justice.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSREFERENCES• Marjorie M. Whiteman, 6 DIGEST OF
INTERNATIONAL IAW, p. 727,
{1968}, hereinafter 6 WHITEMAN.
• Presidential Decree No. 1069,
Philippine Extradition Law• 235 Supreme Court Reports
Annotated (SCRA) 341, 354 {1994}.
• Marubeni Corporation vs.
Commissioner of Internal Revenue(117 SCRA 500) {1989}.
• Michigan vs. Doran, 439 US 282, 296{1978}.
• Joaquin G. Bernas, S.J., THE 1987
CONSTITUTION OF THE
REPUBLIC OF THE PHILIPPINES: A COMMENTARY, 1996 ed., p.429430; see also Wright vs. Henkel, 23
Supreme Court Reporter 781, 787.
• People vs. Alano, 81 Phil. 19, 21{1948}; see also Mejoff vs. Director of
Prisons, 90 Phil. 70 {1951}.
• De la Rama vs. People’s Court, 77 Phil
461 {1946}.
• Salvacion vs. Central bank of thePhilippines, 278 SCRA 27, 45 (1997).
• Whereas Clause of Presidential
Decree No. 1034.

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