In one of the Senate hearings in relation to the NBN investigation, a point was raised regarding a request for extradition of potential witnessess allegedly in the United States of America. Extradition is a big word for non-lawyers who watched the Senate investigation, so it may be helpful to have a brief discussion on this subject.

Extradition, as applied in the Philippines, is “the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities 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 requesting state or government.” (Sec. 2[a], Presidential Decree No. 1069, “Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country”). In general, extradition is “characterized as the right of a foreign power, created by treaty, 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. ” (Government of Hongkong Special Administrative Region vs. Judge Olalia, Jr., G.R. No. 153675, 19 April 2007)

The Philippines and the United States has a treaty on extradition, also known as the “RP-US Extradition Treaty,” which was executed on 13 November 1994. The pertinent Philippine law, on the other hand, is Presidential Decree No. 1069, issued by President Ferdinand Marcos on 13 January 1977.

Extradition is a two-way street, so to speak. The Philippines could issue a request for extradition with the proper authorities of the United States, and vice versa. Since the dicussion in the Senate concerns a Philippine request, let’s first discuss the extradition procedure in the United States. Luckily, this procedure was noted in the case of Secretary of Justice vs. Lantion ([G.R. No. 139465, 18 January 2000), wherein the petitioner attached a letter from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and principles, which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions:

1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the provisional arrest of an individual may be made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is transmitted subsequently through the diplomatic channel.

2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing.

3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. §3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid.)

4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid.)

5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a “complaint made under oath, charging any person found within his jurisdiction” with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]

6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual findings and conclusions of law and certifies the person’s extraditability. The court then forwards this certification of extraditability to the Department of State for disposition by the Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. §3186).

7. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. However, a person facing extradition may present whatever information he deems relevant to the Secretary of State, who makes the final determination whether to surrender an individual to the foreign government concerned.

The same case also discussed the Philippine extradition procedure, which will be the subject of another post.