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K. Treatment of aliens

1. Extradition

Extradition – means the surrender of any person who is sought by the requesting State for criminal prosecution for an extraditable offence or for the imposition or enforcement of a sentence in respect of such an offence. (Section 1, Part 1, 2014 United Nation’s Model Law on Extradition)

a. Fundamental principles

1) Obligation to Extradite

Each Party agrees to extradite to the other, upon request and subject to the provisions of the present Treaty, any person who is wanted in the requesting State for prosecution for an extraditable offence or for the imposition or enforcement of a sentence in respect of such an offence. (Article 1, United Nation’s Revised Manual on the Model Treaty on Extradition)

2) Extraditable offences

1) For the purposes of the present Treaty, extraditable offences are offences that are punishable under the laws of both Parties by imprisonment or other deprivation of liberty for a maximum period of at least [one/two] year(s), or by a more severe penalty. Where the request for extradition relates to a person who is wanted for the enforcement of a sentence of imprisonment or other deprivation of liberty imposed for such an offence, extradition shall be granted only if a period of at least [four/six] months of such sentence remains to be served. (Article 2[1], Ibid.)

2) In determining whether an offence is an offence punishable under the laws of both Parties, it shall not matter whether:

(a) The laws of the Parties place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology;

(b) Under the laws of the Parties the constituent elements of the offence differ, it being understood that the totality of the acts or omissions as presented by the requesting State shall be taken into account. (Article 2[2], Ibid.)

3) Where extradition of a person is sought for an offence against a law relating to taxation, customs duties, exchange control or other revenue matters, extradition may not be refused on the ground that the law of the requested State does not impose the same kind of tax or duty or does not contain a tax, customs duty or exchange regulation of the same kind as the law of the requesting State. (Article 2[3], Ibid.)

4) If the request for extradition includes several separate offences each of which is punishable under the laws of both Parties, but some of which do not fulfil the other conditions set out in paragraph 1 of the present article, the requested Party may grant extradition for the latter offences provided that the person is to be extradited for at least one extraditable offence. (Article 2[4], Ibid.)

3) Grounds for refusal

a) Mandatory grounds for refusal

Extradition shall not be granted in any of the following circumstances:

1) If the offence for which extradition is requested is regarded by the requested State as an offence of a political nature. Reference to an offence of a political nature shall not include any offence in respect of which the Parties have assumed an obligation, pursuant to any multilateral convention, to take prosecutorial action where they do not extradite, or any other offence that the Parties have agreed is not an offence of a political character for the purposes of extradition;

2) If the requested State has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, political opinions, sex or status, or that that person’s position may be prejudiced for any of those reasons;

3) If the offence for which extradition is requested is an offence under military law, which is not also an offence under ordinary criminal law;

4) If there has been a final judgment rendered against the person in the requested State in respect of the offence for which the person’s extradition is  requested;

5) If the person whose extradition is requested has, under the law of either Party, become immune from prosecution or punishment for any reason, including lapse of time or amnesty;

6) If the person whose extradition is requested has been or would be subjected in the requesting State to torture or cruel, inhuman or degrading treatment or punishment or if that person has not received or would not receive the minimum guarantees in criminal proceedings, as contained in the International Covenant on Civil and Political Rights, article 14;

7) If the judgment of the requesting State has been rendered in absentia, the convicted person has not had sufficient notice of the trial or the opportunity to arrange for his or her defence and he has not had or will not have the opportunity to have the case retried in his or her presence. (Article 3, Ibid.)

b) Optional grounds for refusal

Extradition may be refused in any of the following circumstances:

1) If the person whose extradition is requested is a national of the requested State. Where extradition is refused on this ground, the requested State shall, if the other State so requests, submit the case to its competent authorities with a view to taking appropriate action against the person in respect of the offence for which extradition had been requested;

2) If the competent authorities of the requested State have decided either not to institute or to terminate proceedings against the person for the offence in respect of which extradition is requested;

3) If a prosecution in respect of the offence for which extradition is requested is pending in the requested State against the person whose extradition is requested;

4) If the offence for which extradition is requested carries the death penalty under the law of the requesting State, unless that State gives such assurance as the requested State considers sufficient that the death penalty will not be imposed or, if imposed, will not be carried out. Where extradition is refused on this ground, the requested State shall, if the other State so requests, submit the case to its competent authorities with a view to taking appropriate action against the person in respect of the offence for which extradition had been requested;

5) If the offence for which extradition is requested has been committed outside the territory of either Party and the law of the requested State does not provide for jurisdiction over such an offence committed outside its territory in comparable circumstances;

6) If the offence for which extradition is requested is regarded under the law of the requested State as having been committed in whole or in part within that State. Where extradition is refused on this ground, the requested State shall, if the other State so requests, submit the case to its competent authorities with a view to taking appropriate action against the person for the offence for which extradition had been requested;

7) If the person whose extradition is requested has been sentenced or would be liable to be tried or sentenced in the requesting State by an extraordinary or ad hoc court or tribunal;

8) If the requested State, while also taking into account the nature of the offence and the interests of the requesting State, considers that, in the circumstances of the case, the extradition of that person would be incompatible with humanitarian considerations in view of age, health or other personal circumstances of that person. (Article 4, Ibid.)

b. Procedure

1) Channels of Communication and Required Documents

1) A request for extradition shall be made in writing. The request, supporting documents and subsequent communications shall be transmitted through the diplomatic channel, directly between the ministries of justice or any other authorities designated by the Parties. (Article 5[1], Ibid.)

2) A request for extradition shall be accompanied by the following:

(a) In all cases, (i) As accurate a description as possible of the person sought, together with any other information that may help to establish that person’s identity, nationality and location; (ii) The text of the relevant provision of the law creating the offence or, where necessary, a statement of the law relevant to the offence and a statement of the penalty that can be imposed for the offence;

(b) If the person is accused of an offence, by a warrant issued by a court or other competent judicial authority for the arrest of the person or a certified copy of that warrant, a statement of the offence for which extradition is requested and a description of the acts or omissions constituting the alleged offence, including an indication of the time and place of its commission;

(c) If the person has been convicted of an offence, by a statement of the offence for which extradition is requested and a description of the acts or omissions constituting the offence and by the original or certified copy of the judgement or any other document setting out the conviction and the sentence imposed, the fact that the sentence is enforceable, and the extent to which the sentence remains to be served;

(d) If the person has been convicted of an offence in his or her absence, in addition to the documents set out in paragraph 2 (c) of the present article, by a statement as to the legal means available to the person to prepare his or her defence or to have the case retried in his or her presence;

(e) If the person has been convicted of an offence but no sentence has been imposed, by a statement of the offence for which extradition is requested and a description of the acts or omissions constituting the offence and by a document setting out the conviction and a statement affirming that there is an intention to impose a sentence. (Article 5[2], Ibid.)

3) The documents submitted in support of a request for extradition shall be accompanied by a translation into the language of the requested State or in another language acceptable to that State. (Article 5[3], Ibid.)

2) Simplified extradition procedure

The requested State, if not precluded by its law, may grant extradition after receipt of a request for provisional arrest, provided that the person sought explicitly consents before a competent authority. (Article 6, Ibid.)

3) Certifictaion and authentication

Except as provided by the present Treaty, a request for extradition and the documents in support thereof, as well as documents or other material supplied in response to such a request, shall not require certification or authentication. (Article 7, Ibid.)

4) Additional information

If the requested State considers that the information provided in support of a request for extradition is not sufficient, it may request that additional information be furnished within such reasonable time as it specifies. (Article 8, Ibid.)

5) Provisional arrest

1) In case of urgency the requesting State may apply for the provisional arrest of the person sought pending the presentation of the request for extradition. The application shall be transmitted by means of the facilities of the International Criminal Police Organization, by post or telegraph or by any other means affording a record in writing. (Article 9[1], Ibid.)

2) The application shall contain a description of the person sought, a statement that extradition is to be requested, a statement of the existence of one of the documents mentioned in paragraph 2 of article 5 of the present Treaty, authorizing the apprehension of the person, a statement of the punishment that can be or has been imposed for the offence, including the time left to be served and a concise statement of the facts of the case, and a statement of the location, where known, of the person. (Article 9[2], Ibid.)

3) The requested State shall decide on the application in accordance with its law and communicate its decision to the requesting State without delay. (Article 9[3], Ibid.)

4) The person arrested upon such an application shall be set at liberty upon the expiration of [40] days from the date of arrest if a request for extradition, supported by the relevant documents specified in paragraph 2 of article 5 of the present Treaty, has not been received. The present paragraph does not preclude the possibility of conditional release of the person prior to the expiration of the [40] days. (Article 9[4], Ibid.)

5) The release of the person pursuant to paragraph 4 of the present article shall not prevent re-arrest and institution of proceedings with a view to extraditing the person sought if the request and supporting documents are subsequently received. (Article 9[5], Ibid.)

6) Decision on the request

1) The requested State shall deal with the request for extradition pursuant to procedures provided by its own law, and shall promptly communicate its decision to the requesting State. (Article 10[1], Ibid.)

2) Reasons shall be given for any complete or partial refusal of the request. (Article 10[2], Ibid.)

7) Surrender of the person

1) Upon being informed that extradition has been granted, the Parties shall, without undue delay, arrange for the surrender of the person sought and the requested State shall inform the requesting State of the length of time for which the person sought was detained with a view to surrender. (Article 11[1], Ibid.)

2) The person shall be removed from the territory of the requested State within such reasonable period as the requested State specifies and, if the person is not removed within that period, the requested State may release the person and may refuse to extradite that person for the same offence. (Article 11[2], Ibid.)

3) If circumstances beyond its control prevent a Party from surrendering or removing the person to be extradited, it shall notify the other Party. The two Parties shall mutually decide upon a new date of surrender, and the provisions of paragraph 2 of the present article shall apply. (Article 11[3], Ibid.)

8) Postponed or conditional surrender

1) The requested State may, after making its decision on the request for extradition, postpone the surrender of a person sought, in order to proceed against that person, or, if that person has already been convicted, in order to enforce a sentence imposed for an offence other than that for which extradition is sought. In such a case the requested State shall advise the requesting State accordingly.

2) The requested State may instead of postponing surrender, temporarily surrender the person sought to the requesting State in accordance with conditions to be determined between the Parties.  

9) Surrender of property

1) To the extent permitted under the law of the requested State and subject to the rights of third parties, which shall be duly respected, all property found in the requested State that has been acquired as a result of the offence or that may be required as evidence shall, if the requesting State so requests, be surrendered if extradition is granted. (Article 13[1], Ibid.)

2) The said property may, if the requesting State so requests, be surrendered to the requesting State even if the extradition agreed to cannot be carried out. (Article 13[2], Ibid.)

3) When the said property is liable to seizure or confiscation in the requested State, it may retain it or temporarily hand it over. (Article 13[3], Ibid.)

4) Where the law of the requested State or the protection of the rights of third parties so require, any property so surrendered shall be returned to the requested State free of charge after the completion of the proceedings, if that State so requests. (Article 13[4], Ibid.)

10) Rules of specialty

1) A person extradited under the present Treaty shall not be proceeded against, sentenced, detained, re-extradited to a third State, or subjected to any other restriction of personal liberty in the territory of the requesting State for any offence committed before surrender other than:

 (a) An offence for which extradition was granted;

 (b) Any other offence in respect of which the requested State consents.

Consent shall be given if the offence for which it is requested is itself subject to extradition in accordance with the present Treaty. (Article 14[1], Ibid.)

2) A request for the consent of the requested State under the present article shall be accompanied by the documents mentioned in paragraph 2 of article 5 of the present Treaty and a legal record of any statement made by the extradited person with respect to the offence. (Article 14[2], Ibid.)

 3) Paragraph 1 of the present article shall not apply if the person has had an opportunity to leave the requesting State and has not done so within [30/45] days of final discharge in respect of the offence for which that person was extradited or if the person has voluntarily returned to the territory of the requesting State after leaving it. (Article 14[3], Ibid.)

11) Transit

1) Where a person is to be extradited to a Party from a third State through the territory of the other Party, the Party to which the person is to be extradited shall request the other Party to permit the transit of that person through its territory. This does not apply where air transport is used and no landing in the territory of the other Party is scheduled. (Article 15[1], Ibid.)

2) Upon receipt of such a request, which shall contain relevant information, the requested State shall deal with this request pursuant to procedures provided by its own law. The requested State shall grant the request expeditiously unless its essential interests would be prejudiced thereby. (Article 15[2], Ibid.)

3) The State of transit shall ensure that legal provisions exist that would enable detaining the person in custody during transit. (Article 15[3], Ibid.)

4) In the event of an unscheduled landing, the Party to be requested to permit transit may, at the request of the escorting officer, hold the person in custody for [48] hours, pending receipt of the transit request to be made in accordance with paragraph 1 of the present article. (Article 15[4], Ibid.)

12) Concurent requests

If a Party receives requests for extradition for the same person from both the other Party and a third State it shall, at its discretion, determine to which of those States the person is to be extradited. (Article 16, Ibid.)

c. Distinguished from deportation

1) Concept

a) Power  to deport

The power to deport aliens is lodged in the President of the Republic of the Philippines. As an act of state, it is vested in the Executive by virtue of this office, subject only to the regulations prescribed in section 69 of the Revised Administrative Code or to such future legislation as may be promulgated on the subject. (Tan Tong vs. Deportation Board, GR No. L-7680, 30 April 1955)

b) How exercised

Deportation of an undesirable alien may be effected in two ways:

1) By order of the President, after due investigation, pursuant to Section 69 of the Revised Administrative Code; and,

2) By the Commissioner of Immigration, upon recommendation by the Board of Commissioners, under Section 37 of Commonwealth Act No. 613. (Qua Chee Gan v. The Deportation Board, En Banc, G.R. No. L-10280, 30 September 1963)

The Deportation Board has been legally constituted by the President of the Republic and vested with the power to issue warrants of arrest to apprehend undesirable aliens, and after investigation conducted in the manner prescribed in section 69 of the Revised Administrative Code, to recommend their deportation if found undesirable. The appellant has been taken into custody for the purpose of determining whether he is an undesirable alien. (Tan Sin v. The Deportation Board, En Banc, G.R. No. L-11511, 28 November 1958)

c) Not dependent on prior judicial conviction in a criminal case.

An executive order for exportation is not dependent on a prior judicial conviction in a criminal case. (Ang Beng v. Commissioner of Immigration, G.R. No. L-9621, 30 January 1957)

d) Administrative proceeding; Summary in nature

Deportation proceedings do not constitute a criminal action. The order of deportation is not a punishment, it being merely the return to his country of an alien who has broken the conditions upon which he could continue to reside within our borders. The deportation proceedings are administrative in character, summary in nature, and need not be conducted strictly in accordance with the ordinary court proceedings. It is essential, however, that the warrant of arrest shall give the alien sufficient information about the charges against him, relating the facts relied upon. (Lao Tang Bun vs. Fabre, G.R. No. L-1673, 22 Oct 1948)

Proceedings for the deportation of aliens are not criminal proceedings, and neither do they follow the rules established in criminal proceedings. Deportation proceedings are summary in nature and the proceedings prescribed in criminal cases for the protection of an accused are not present or followed in deportation proceedings. (Tin Chun Hai v. Commissioner of Immigration, En Banc, G.R. No. L-10009, 22 December 1958)

2) Grounds

The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien:

1) Any alien who enters the Philippines by means of false and misleading statements or without inspection and admission by the immigration authorities at a designated port of entry;

2) Any alien who enters the Philippines after the effective date of this Act, who was not lawfully admissible at the time of entry;

3) Any alien who, after the effective date of this Act, is convicted in the Philippines and sentenced for a term of one year or more for a crime involving moral turpitude committed within five years after his entry to the Philippines, or who, at any time after such entry, is so convicted and sentenced more than once;

4) Any alien who is convicted and sentenced for a violation of the law governing prohibited drugs;

5) Any alien who practices prostitution or is an inmate of a house of prostitution or is connected with the management of a house of prostitution, or is a procurer;

6) Any alien who becomes a public charge within five years after entry from causes not affirmatively shown to have arisen subsequent to entry;

7) Any alien who remains in the Philippines in violation of any limitation or condition under which he was admitted as a nonimmigrant;

8) Any alien who believes in, advises, advocates or teaches the overthrow by force and violence of the Government of the Philippines, or of constituted law and authority, or who disbelieves in or is opposed to organized government or who advises, advocates, or teaches the assault or assassination of public officials because of their office, or who advises, advocates, or teaches the unlawful destruction of property, or who is a member of or affiliated with any organization entertaining, advocating or teaching such doctrines, or who in any manner whatsoever lends assistance, financial or otherwise, to the dissemination of such doctrines. (Section 37[1], C.A. 613, The Philippine Immigration Act of 1940)

a) Not exhaustive

Section 37, Commonwealth Act No. 613, as amended, merely enumerates the grounds for which an alien may be arrested upon warrant of the Commissioner of Immigration or of any officer designated by him for the purpose: and after determination by the Board of Commissioners of the existence of the ground for deportation, an alien may be deported upon warrant issued by the Commissioner of Immigration. The fact that the ground upon which the appellant is sought to be deported is not among those mentioned in the law cited by him, does not mean that the power to deport an alien whose stay in the Philippines has become undesirable for causes not mentioned therein, has been withdrawn from the President or abrogated by the enactment of Commonwealth Act No. 613, as amended. Section 52 of the last mentioned Act expressly provides that section 69 of Act No. 2711 (Revised Administrative Code) shall continue to remain in force and effect. (Tan Sin v. The Deportation Board, supra.)

3) Due process

No alien shall be deported without being informed of the specific grounds for deportation nor without being given a hearing under rules of procedure. (Section 37[c], Ibid.)

In any deportation proceeding involving the entry of an alien the burden of proof shall be upon the alien to show that he entered the Philippines lawfully, and the time, place, and manner of such entry, and for this purpose he shall be entitled to a statement of the facts in connection with his arrival as shown by any record in the custody of the Bureau of Immigration. (Section 37[d], Ibid.)

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