PAUL JOSEPH WRIGHT, PETITIONER, VS. HON. COURT OF APPEALS, HON. JUDGE JOSE DE LA RAMA, RTC, BRANCH 139, MAKATI, M.M. AND HON. FRANK DRILON, SECRETARY OF JUSTICE, RESPONDENTS.

A paramount principle of
the law of extradition provides that a State may not surrender any individual
for any offense not included in a treaty of extradition. This principle arises from the reality of
extradition as a derogation of sovereignty. Extradition is an intrusion into the territorial integrity of the host
State and a delimitation of the sovereign power of the State within its
own territory.^[1]
The act of extraditing amounts to a “delivery by the State of a person accused
or convicted of a crime, to another State within whose territorial
jurisdiction, actual or constructive, it was committed and which asks for his
surrender with a view to execute justice.”^[2] As it
is an act of “surrender” of an individual found in a sovereign State to another
State which demands his surrender^[3], an
act of extradition, even with a treaty rendered executory upon ratification by
appropriate authorities, does not impose an obligation to extradite on the
requested State until the latter has made its own determination of the validity
of the requesting State’s demand, in accordance with the requested State’s own
interests.

The principles of international law recognize no right of
extradition apart from that arising from treaty.^[4]
Pursuant to these principles, States enter into treaties of extradition
principally for the purpose of bringing fugitives of justice within the ambit
of their laws, under conventions recognizing the right of nations to mutually
agree to surrender individuals within their jurisdiction and control, and for
the purpose of enforcing their respective municipal laws. Since punishment of fugitive criminals is
dependent mainly on the willingness of host State to apprehend them and revert
them to the State where their offenses were committed,^[5]
jurisdiction over such fugitives and subsequent enforcement of penal laws can
be effectively accomplished only by agreement between States through treaties
of extradition.

Desiring to make more effective cooperation between Australia and
the Government of the Philippines in the suppression of crime,^[6]
the two countries entered into a Treaty of Extradition on the 7th of March
1988. The said treaty was ratified in
accordance with the provisions of Section 21, Article VII of the 1987
Constitution in a Resolution adopted by the Senate on September 10, 1990 and
became effective thirty (30) days after both States notified each other in
writing that the respective requirements for the entry into force of the Treaty
have been complied with.^[7]

The Treaty adopts a “non-list, double criminality approach” which
provides for broader coverage of extraditable offenses between the two
countries and (which) embraces crimes punishable by imprisonment for at least
one (1) year. Additionally, the Treaty
allows extradition for crimes committed prior to the treaty’s date of
effectivity, provided that these crimes were in the statute books of the
requesting State at the time of their commission.

Under the Treaty, each contracting State agrees to extradite…
“persons…wanted for prosecution of the imposition or enforcement of a
sentence in the Requesting State for an extraditable offense.”^[8]
A request for extradition requires, if the person is accused of an offense, the
furnishing by the requesting State of either a warrant for the arrest or a copy
of the warrant of arrest of the person, or, where appropriate, a copy of the
relevant charge against the person sought to be extradited.^[9]

In defining the extraditable offenses, the Treaty includes all
offenses “punishable under the Laws of both Contracting States by imprisonment
for a period of at least one (1) year, or by a more severe penalty.”^[10]
For the purpose of the definition, the Treaty states that:

(a)  an offense shall be an extraditable offense
whether or not the laws of the Contracting States place the offence within the
same category or denominate the offense by the same terminology;

(b)  the totality of the acts or omissions alleged
against the person whose extradition is requested shall be taken into account
in determining the constituent elements of the offense.^[11]

Petitioner, an Australian Citizen, was sought by Australian
authorities for indictable crimes in his country. Extradition proceedings were filed before the Regional Trial
Court of Makati, which rendered a decision ordering the deportation of
petitioner. Said decision was sustained
by the Court of Appeals; hence, petitioner came to this Court by way of review
on certiorari, to set aside the order of deportation. Petitioner contends that the provision of
the Treaty giving retroactive effect to the extradition treaty amounts to an ex post facto law which violates Section 21 of
Article VI of the Constitution. He
assails the trial court’s decision ordering his extradition, arguing that the
evidence adduced in the court below failed to show that he is wanted for
prosecution in his country. Capsulized,
all the principal issues raised by the petitioner before this Court strike at
the validity of the extradition proceedings instituted by the government against
him.

The facts, as found by the Court of Appeals,^[12]
are undisputed:

On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the
Department of Foreign Affairs indorsed to the Department of Justice Diplomatic
Note No. 080/93 dated February 19, 1993 from the Government of Australia to the
Department of Justice through Attorney General Michael Duffy. Said Diplomatic Note was a formal request
for the extradition of Petitioner Paul Joseph Wright who is wanted for the
following indictable crimes:

1.   Wright/Orr Matter – one count of Obtaining
Property by Deception contrary to Section 81(1) of the Victorian Crimes Act of
1958; and

2. Wright/Cracker Matter – Thirteen (13) counts
of Obtaining Property by Deception contrary to Section 81(1) of the Victorian
Crimes Act of 1958; one count of attempting to Obtain Property by Deception
contrary to Section 321(m) of Victorian Crimes Act of 1958; and one count of
Perjury contrary to Section 314 of Victorian Crimes Act of 1958, which crimes
were allegedly committed in the following manner:

The one (1) count of Obtaining Property by Deception contrary to
Section 81 (1) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright’s
and co-offender, Herbert Lance Orr’s, dishonesty in obtaining $315,250 from
Mulcahy, Mendelson and Round Solicitors (MM7R), secured by a mortgage on the
property in Bangholme, Victoria owned by Ruven Nominees Pty. Ltd., a company
controlled by a Rodney and a Mitchell, by falsely representing that all the
relevant legal documents relating to the mortgage had been signed by Rodney and
Janine Mitchell.

The thirteen (13) counts of Obtaining Property by Deception
contrary to Section 81(1) of the Victorian Crimes Act of 1958 constitutes in
Mr. Wright’s and co?offender Mr. John Carson Craker’s receiving a total
of approximately 11.2 in commission (including $367,044 in bonus commission)
via Amazon Bond Pty. Ltd., depending on the volume of business written, by
submitting two hundred fifteen (15) life insurance proposals, and paying
premiums thereon (to the acceptance of the policies and payment of commissions)
to the Australian Mutual Provident (AMP) Society through the Office of
Melbourne Mutual Insurance, of which respondent is an insurance agent, out of
which life proposals none are in existence and approximately 200 of which are
alleged to have been false, in one or more of the following ways:

(i)    some policy-holders signed up only because
they were told the policies were free (usually for 2 years) and no payments
were required.

(ii)   some policy-holders were offered cash
inducements ($50 or $100) to sign and had to supply a bank account no longer
used (at which a direct debit request for payment of premiums would
apply). These policy­-holders were also
told no payments by them were required.

(iii) some policy-holders were introduced through
the ‘Daily Personnel Agency’, and again were told the policies were free for 2
years as long as an unused bank account was applied.

(iv)  some policy-holders were found not to exist.

The one count of Attempting to Obtain Property by Deception
contrary to Section 321(m) of the Victorian Crimes Act of 1958 constitutes in
Mr. Wright’s and Mr. Craker’s attempting to cause the payment of $2,870.68
commission to a bank account in the name of Amazon Bond Pty. Ltd. by submitting
one proposal for Life Insurance to the AMP Society, the policy-holder of which
does not exist with the end in view of paying the premiums thereon to insure
acceptance of the policy and commission payments.

The one count of Perjury contrary to Section 314 of Victorian Crimes
Act of 1958 constitutes in Mr. Wright’s and Mr. Craker’s signing and swearing
before a Solicitor holding a current practicing certificate pursuant to the
Legal Profession Practice Act (1958), a Statutory Declaration attesting to the
validity of 29 of the most recent Life Insurance proposals of AMP Society and
containing three (3) false statements.

Pursuant to Section 5 of PD No. 1069, in
relation to the Extradition Treaty concluded between the Republic of the
Philippines and Australia on September 10, 1990, extradition proceedings were
initiated on April 6, 1993 by the State Counsels of the Department of Justice
before the respondent court.

In its Order dated April 13, 1993, the respondent court directed
the petitioner to appear before it on April 30, 1993 and to file his answer
within ten days. In the same order, the
respondent Judge ordered the NBI to serve summons and cause the arrest of the
petitioner.

The respondent court received return of the warrant of arrest and
summons signed by NBI Senior Agent Manuel Almendras with the information that
the petitioner was arrested on April 26, 1993 at Taguig, Metro Manila and was
subsequently detained at the NBI detention cell where petitioner, to date,
continue to be held.

Thereafter, the petitioner filed his answer.

In the course of the trial, the petitioner testified that he was
jobless, married to a Filipina, Judith David, with whom he begot a child; that
he has no case in Australia; that he is not a fugitive from justice and is not
aware of the offenses charged against him; that he arrived in the Philippines
on February 25, 1990 returned to Australia on March 1, 1990, then back to the
Philippines on April 11, 1990, left the Philippines again on April 24, 1990 for
Australia and returned to the Philippines on May 24, 1990, again left for
Australia on May 29, 1990 passing by Singapore and then returned to the
Philippines on June 25, 1990 and from that time on, has not left the
Philippines; and that his tourist visa has been extended but he could not
produce the same in court as it was misplaced, has neither produced any
certification thereof, nor any temporary working visa.

The trial court, in its decision dated 14 June 1993, granted the
petition for extradition requested by the Government of Australia, concluding
that the documents submitted by the Australian Government meet the requirements
of Article 7 of the Treaty of Extradition and that the offenses or which the
petitioner were sought in his country are extraditable offenses under Article 2
of the said Treaty. The trial court,
moreover, held that under the provisions of the same Article, extradition could
be granted irrespective of when the offense – in relation to the extradition –
was committed, provided that the offense happened to be an offense in the
requesting State at the time the acts or omissions constituting the same were
committed.^[13]

Petitioner challenged the decision of the Regional Trial Court
before the Court of Appeals assigning the following errors:

I. THAT THE HONORABLE RESPONDENT JUDGE GRAVELY
ERRED IN GIVING RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY DESPITE
THE FACT THAT THE EVIDENCE ADDUCED BY THE RESPONDENT SHOW THAT THE ALLEGED
OFFENSES FOR WHICH PETITIONER IS SOUGHT TO BE EXTRADITED TOOK PLACE IN
1988-1989 AT THE TIME THERE WAS NO EXTRADITION TREATY BETWEEN THE REPUBLIC OF
THE PHILIPPINES AND AUSTRALIA.

II. THAT THE ACT OF THE HONORABLE RESPONDENT
JUDGE IN GIVING RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY BETWEEN
THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA AMOUNTS TO AN ‘EX POST FACTO LAW’
AND VIOLATES SECTION 21, ARTICLE VII OF THE 1987 CONSTITUTION.

III. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED
IN ORDERING THE EXTRADITION OF PETITIONER DESPITE THE FACT THAT THE EVIDENCE
ADDUCED DO NOT SHOW THAT PETITIONER IS WANTED FOR PROSECUTION IN AUSTRALIA.

IV. THAT THE HON. RESPONDENT JUDGE GRAVELY
ABUSED HIS DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN MISINTERPRETING
THE EXTENDED STAY OF PETITIONER AS EVIDENCE OF PETITIONER’S DESIGN TO HIDE AND
EVADE PROSECUTION IN AUSTRALIA.

V. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED
IN ORDERING THE EXTRADITION OF PETITIONER WITHOUT SPECIFYING IN HIS ORDER OR
DECISION THE SPECIFIC CHARGES FOR WHICH PETITIONER IS TO STAND TRIAL IN
AUSTRALIA.

The Court of Appeals affirmed the trial court’s decision on
September 14, 1993 and denied petitioner’s Motion for Reconsideration on
December 16, 1993.^[14]
Reiterating substantially the same assignments of error which he interposed in
the Court of Appeals, petitioner challenges in this petition the validity of
the extradition order issued by the trial court as affirmed by the Court of
Appeals under the Treaty. Petitioner
vigorously argues that the trial court order violates the Constitutional prohibition
against ex post facto laws. He avers that for the extradition order to be valid, the
Australian government should show that he “has a criminal case pending before a
competent court” in that country “which can legally pass judgement or acquittal
or conviction upon him.”

Clearly, a close reading of the provisions of the Treaty
previously cited, which are relevant to our determination of the validity of
the extradition order, reveals that the trial court committed no error in
ordering the petitioner’s extradition. Conformably with Article 2, Section 2 of the said Treaty, the crimes for
which the petitioner was charged and for which warrants for his arrest were
issued in Australia were undeniably offenses in the Requesting State at the
time they were alleged to have been committed. From its examination of the charges against the petitioner, the trial
court correctly determined that the corresponding offenses under our penal laws
are Articles 315(2) and 183 of the Revised Penal Code on swindling/estafa and
false testimony/perjury, respectively.^[15]

The provisions of Article 6 of the said Treaty pertaining to the
documents required for extradition are sufficiently clear and require no
interpretation. The warrant for the
arrest of an individual or a copy thereof, a statement of each and every offense
and a statement of the acts and omissions which were alleged against the person
in respect of each offense are sufficient to show that a person is wanted for
prosecution under the said article. All
of these documentary requirements were duly submitted to the trial court in its
proceedings a quo. For purposes
of compliance with the provisions of the Treaty, the signature and official
seal of the Attorney-General of Australia were sufficient to authenticate all
the documents annexed to the Statement of the Acts and Omissions, including the
statement itself.^[16] In
conformity with the provisions of Article 7 of the Treaty, the appropriate
documents and annexes were signed by “an officer in or of the Requesting State”^[17],
“sealed with…(a) public seal of the Requesting State or of a Minister of
State, or of a Department or officer of the Government of the Requesting
State,”^[18]
and “certified by a diplomatic or consular officer of the Requesting State
accredited to the Requested State.”^[19] The
last requirement was accomplished by the certification made by the Philippine
Consular Officer in Canberra, Australia.

The petitioner’s contention that a person sought to be extradited
should have a “criminal case pending before a competent court in the Requesting
State which can legally pass judgement of acquittal or conviction”^[20]
stretches the meaning of the phrase “wanted for prosecution” beyond that
intended by the treaty provisions because the relevant provisions merely
require “a warrant for the arrest or a copy of the warrant for the arrest of
the person sought to be extradited.”^[21]
Furthermore, the ‘Charge and Warrant of Arrest Sheets’ attest to the fact that
petitioner is not only wanted for prosecution but has, in fact, absconded to
evade arrest and criminal prosecution. Since a charge or information under the Treaty is required only when
appropriate, i.e., in cases where an individual charged before a competent
court in the Requesting State thereafter absconds to the Requested State, a
charge or a copy thereof is not required if the offender has in fact already
absconded before a criminal complaint could be filed. As the Court of Appeals correctly noted, limiting the phrase
“wanted for prosecution” to persons charged with an information or a criminal
complaint renders the Treaty ineffective over individuals who abscond for the
purpose of evading arrest and prosecution.^[22]

This brings us to another point raised by the petitioner both in
the trial court and in the Court of Appeals. May the extradition of the petitioner who is wanted for prosecution by
the government of Australia be granted in spite of the fact that the offenses
for which the petitioner is sought in his country were allegedly committed
prior to the date of effectivity of the Treaty.

Petitioner takes the position that under Article 18 of the Treaty
its enforcement cannot be given retroactive effect. Article 18 states:

ENTRY
INTO FORCE AND TERMINATION

This Treaty shall enter into force thirty (30) days after the date
on which the Contracting States have notified each other in writing that their
respective requirements for the entry into force of this Treaty have been
complied with.

Either contracting State may terminate this Treaty by notice in
writing at any time and it shall cease to be in force on the one hundred and
eightieth day after the day on which notice is given.

We fail to see how the petitioner can infer a prohibition against
retroactive enforcement from this provision. The first paragraph of Article 18 refers to the Treaty’s date of
effectivity; the second paragraph pertains to its termination. Absolutely nothing in the said provision
relates to, much less, prohibits retroactive enforcement of the Treaty.

On the other hand, Article 2(4) of the Treaty unequivocally
provides that:

4. Extradition may be granted pursuant to
provisions of this Treaty irrespective of when the offense in relation to which
extradition is requested was committed, provided that:

(a)   it was an offense in the Requesting State at
the time of the acts or omissions constituting the offense; and

(b)   the acts or omissions alleged would, if they
had taken place in the Territory of the Requested State at the time of the
making of the request for extradition, have constituted an offense against the
laws in force in that state.

Thus, the offenses for which petitioner is sought by his
government are clearly extraditable under Article 2 of the Treaty. They were offenses in the Requesting State
at the time they were committed, and, irrespective of the time they were
committed, they fall under the panoply of the Extradition Treaty’s provisions,
specifically, Article 2 paragraph 4, quoted above.

Does the Treaty’s retroactive application violate the
Constitutional prohibition against ex
post facto laws? Early commentators understood ex post facto laws to include all laws of
retrospective application, whether civil or criminal.^[23]
However, Chief Justice Salmon P. Chase, citing Blackstone, The Federalist and
other early U.S. state constitutions in Calder vs Bull^[24]
concluded that the concept was limited only to penal and criminal
statutes. As conceived under our
Constitution, ex post facto laws are 1) statutes that make an act
punishable as a crime when such act was not an offense when committed; 2) laws
which, while not creating new offenses, aggravate the seriousness of a crime;
3) statutes which prescribe greater punishment for a crime already committed;
or, 4) laws which alter the rules of evidence so as to make it substantially
easier to convict a defendant.^[25]
“Applying the constitutional principle, the (Court) has held that the
prohibition applies only to criminal legislation which affects the substantial
rights of the accused.”^[26] This
being so, there is absolutely no merit in petitioner’s contention that the
ruling of the lower court sustaining the Treaty’s retroactive application with
respect to offenses committed prior to the Treaty’s coming into force and
effect, violates the Constitutional prohibition against ex post facto
laws. As the Court of Appeals correctly
concluded, the Treaty is neither a piece of criminal legislation nor a criminal
procedural statute. “It merely provides
for the extradition of persons wanted for prosecution of an offense or a crime
which offense or crime was already committed or consummated at the time the
treaty was ratified.”^[27]

In signing the Treaty, the government of the Philippines has
determined that it is within its interests to enter into agreement with the
government of Australia regarding the repatriation of persons wanted for
criminal offenses in either country. The said Treaty was concurred and ratified by the Senate in a Resolution
dated September 10, 1990. Having been
ratified in accordance with the provisions of the 1987 Constitution, the Treaty
took effect thirty days after the requirements for entry into force were
complied with by both governments.

WHEREFORE, finding no reversible error in the decision of
respondent Court of Appeals, we hereby AFFIRM the same and DENY the instant petition for lack of
merit.

SO ORDERED.

Davide, Jr., Bellosillo, and
Quiason, JJ., concur.

Cruz, J., (Chairman), on
official leave.

^[1]
OPPENHEIM, INTERNATIONAL LAW: A TREATISE 362-369 (1912)

^[2]
Cited in BISHOP, INTERNATIONAL LAW 471
(1962).

^[3]
Terlindan v. Arnes, 184 U.S. 270, 289 (1902).

^[4]
Factor v. Laubenheimer, 270 U.S. 276 (1933).

^[5]
FENWICK, CASES OF INTERNATIONAL LAW 448
(1951).

^[6]
See, TREATY OF EXTRADITION BETWEEN
AUSTRALIA AND THE REPUBLIC OF THE PHILIPPINES, cited Treaty.

^[7]
See, Treaty, art. 18.

^[8]
Id., art. 1. Emphasis supplied.

^[9]
Id., art. 6.

^[10]
Id., art. 2.

^[11]
Id.

^[12]
C.A. Decision, pp. 1-5, Rollo, pp. 33-37

^[13]
Id.

^[14]
Rollo, pp. 45-49.

^[15]
Commission of fraud by means of false pretenses or fraudulent acts executed
prior to or simultaneous with the commission of fraud (Art. 315[2]):

(a)    
By using fictitious name or falsely pretending to possess
power, influence, qualifications, property, credit, agency, business or
imaginary transactions, or by means of other similar deceits.

(b)    
By altering the quality, fineness or weight of anything
pertaining to his art or business.

(c)    
By pretending to have bribed any Government employee without
prejudice to the action for calumny, which the offended party may deem proper
to bring against the offender. In this
case, the offender shall be punished by the maximum period of the penalty.

(d)    
By postdating a check, or issuing a check in payment of an
obligation when the offender had no funds in the bank, or his funds deposited
therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to
deposit the amount necessary to cover his check within three (3) days from
receipt of notice from the bank and/or the payee or holder that said check has
been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent
act. (As amended by Rep. Act NO. 4885,
approved June 17, 1967).

Art. 183. False testimony in
other cases and perjury
in solemn affirmation. xxx (I)mposed upon any person who,
knowingly making untruthful statements and not being included in the provisions
of the next preceding articles, shall testify under oath, or make an affidavit,
upon any material mater before a competent person authorized to administer an
oath in cases in which the law so requires.

Any person who, in case of a solemn
affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned
in this and the three preceding articles of this section, shall suffer the
respective penalties provided therein.

^[16]
See, Art. 6.

^[17]
Art. 7(a).

^[18]
Art. 7(b).

^[19]
Art. 7(c).

^[20]
Rollo, pp. 21.

^[21]
Art. 6, sec. 2.

^[22]
C.A. Decision, pp. 41, Rollo, pp. 41.

^[23]
2 STORY, COMMENTARIES, Sec. 1345.

^[24]
3 Dall. 3 U.S. 386 (1798).

^[25]
Id. See Mekin v.
Wolfe, 2 Phil.74, 77-78(1903). See also, In re Kay Villegas Kami where the following two elements were
added: 5) assumes to regulate civil
rights and remedies only but in effect imposes a penalty or deprivation of a
right which when done was lawful; 6) deprives a person accused of a crime some
lawful protection to which he has become entitled, such as the protection of
the former conviction or acquittal, or a proclamation of amnesty.

^[26]
1 BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES 489 (1987), citing
Mekin, Id.

^[27]
Rollo, pp. 39., C.A. DECISION, pp. 7.