CRIMINAL LAW —

WRIGHT vs CA G.R. No. 113213 August 15, 1994 Extradition, Ex post facto law
OCTOBER 25, 2017

FACTS:

Petitioner, an Australian Citizen, was sought by Australian authorities for indictable crimes in his country.
Extradition proceedings were filed against him which ordered the deportation of petitioner. Said decision
was sustained by the Court of Appeals; hence, petitioner came herein by way of review on certiorari, to set
aside the order of deportation, contending 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.

ISSUE:

Can extradition treaty be applied retroactively?

RULING:

NO. Early commentators understood ex post facto laws to include all laws of retrospective application,
whether civil or criminal. However, Chief Justice Salmon P. Chase, citing Blackstone, The Federalist and
other early U.S. state constitutions in Calder vs. Bull 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
prescribes 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.

“Applying the constitutional principle, the (Court) has held that the prohibition applies only to criminal
legislation which affects the substantial rights of the accused.” This being so, there is no 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.”

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 113213 August 15, 1994

1
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.

Rodrigo E. Mallari for petitioner.

Aurora Salva Bautista collaborating for petitioner.

KAPUNAN, J.:

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 imposed 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
2
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 offense 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 Properties 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 (215) life insurance proposals,
3
 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
4
 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, granting 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
for 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
5
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 dully submitted to the trial court in its proceedings a quo. For purposes of the 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." 19The 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 the
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 person 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

6
 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 prescribes 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 no 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
7
Senate in a Resolution dated September 10, 1990. Having been ratified in accordance with the
provision 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., is on leave.

#Footnotes

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.
8
 (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
to 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.
. . .(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.

9
 27 Rollo, pp. 39., C.A. DECISION, pp. 7.

G.R. No. 113213

KAPUNAN, J.:
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]
10
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.

11
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.
12
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

13
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
14
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).
See, TREATY OF EXTRADITION BETWEEN AUSTRALIA AND THE REPUBLIC OF THE
[6]

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.
Commission of fraud by means of false pretenses or fraudulent acts executed prior to or
[15]

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.
15
(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.
1 BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES 489
[26]

(1987), citing Mekin, Id.

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

16