H. Treatment of Aliens

Things to Consider in Extradition

• Bail is the security given for the release of a person in custody of the law.
• PD 1069 has no provision regarding bail
• Section 13, Article 3, of the 1987 Constitution which states that: All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.
• In extradition proceedings, bail may be granted if the extraditee shows, by clear and convincing evidence, that he or she is not a flight risk or a danger to the community (Government of Hong Kong SAR v. Olalia, Jr., G.R. No. 153675, April 19, 2007).

The requested person has no right to notice, copies of the extradition request, or an opportunity to comment during the executive evaluation stage; due-process protections apply in the ensuing judicial extradition proceedings (Secretary of Justice v. Lantion, G.R. No. 139465, resolution on reconsideration, October 17, 2000).

In Secretary of Justice vs. Judge Lantion, the human rights of person and the rights of the accused guaranteed in the Constitution should take precedence over treaty rights claimed by a contracting party, the doctrine of incorporation is applied whenever municipal tribunals are confronted with a situation where there is a conflict between a rule of the international law and the constitution. Efforts must first be made in order to harmonize the provisions so as to give effect to both but if the conflict is irreconcilable, the municipal law must be upheld.

DOUBLE CRIMINALITY requires that the conduct for which extradition is sought be punishable under the laws of both the requesting and requested states, subject to the applicable treaty. Right to due process extends not only to citizens but to aliens as well, hence, if the alien has not committed any act punishable within the State’s criminal justice system, then subjecting him to extradition without any treaty authorizing the same is tantamount to violation of his right to due process.

Requesting State - A requesting state must be one with whom the Philippines has an existing treaty with. Otherwise, the State, in the exercise of its Sovereignty cannot be compelled to surrender a person to another State.

DEPORTATION

Deportation is the process of arresting and expelling a foreign national (usually but not always back to the country of origin) for violations of Territorial State’s immigration laws. These are measures undertaken by the competent national authority to bring about the expulsion of aliens.

Deportation is proper when:

• When an alien has violated the terms and conditions of his stay
• When an alien’s permission to stay has expired
• When an alien constitutes a menace to the State
• When an alien’s entry was illegal

RECONDUCTION

Reconduction is not materially different from expulsion.

Reconduction is a form or a manner by which a State expels an undesirable alien. It is the forcible return of undesirable aliens to their home state. Vagabonds, destitute aliens, undocumented aliens, alien criminals and any other undesirables can be arrested and sent back with little to no formality.

Like expulsion in the restricted sense used in French legislation, reconduction to the frontier is subject to the issue of an order, the difference being that the order is issued, not by the Minister of the Interior, but by the Commissioner of the Republic.

STATE RESPONSIBILITY

From the perspective of the state of their nationality, aliens are “nationals abroad”, hence, are important for the state of their nationality. Correlatively, states protect aliens within their jurisdiction in the expectation that their own nationals will be properly treated when residing or sojourning abroad.

Treatment of Aliens is commonly viewed in relation to the Doctrine of State Responsibility. Every State, by virtue of its membership in the international community, has a legal interest in the protection of certain basic rights and the fulfillment of certain essential obligations including the proper treatment of aliens.

This is basically what Article I of the Draft articles on Responsibility of States for Internationally Wrongful Act says. No state can escape this responsibility once it has committed an act which satisfies the requirement of an “internationally wrongful act (Article 2).”

Under this doctrine a state maybe held responsible for:

• an international delinquency;
• directly or indirectly imputable to it; and
• which cause injury to the national of another state. (Cruz, 2020)

NOTE: Liability will attach to the state where its treatment falls below the international standard of justice or where it is remiss that is warranted by circumstances. (Cruz, 2020)

INTERNATIONALLY WRONGFUL ACT

Mistreatment of aliens is an internationally wrongful act.

There is an internationally wrongful act when an act or omission constitutes a breach of an international obligation and is attributable to a State.

Attribution to State - While the State is the real organized entity, a legal person with full authority to act under international law, the State cannot act of itself.

For the purposes of determining State responsibility under international law, State is treated as a unity, consistent with its recognition as a single legal person in international law.

General Rule: Only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e., as agents of the State.

The autonomy of persons acting on their own account and not at the instigation of a public authority is recognized.

BREACH OF INTERNATIONAL OBLIGATION

Whether there has been an internationally wrongful act depends on the requirements of the obligation which is said to have been breached which is either actions or omissions.

In the Corfu Channel case, ICJ held that it was a sufficient basis for Albanian responsibility that it knew, or must have known, of the presence of the mines in its territorial waters and did nothing to warn the third State of their presence.

Albania’s liability comes from the State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.

The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them.

STANDARD OF TREATMENT OF ALIENS

When aliens are admitted into a country, the country is obliged to accord them that degree of protection of life liberty and property consistent with the standard of justice recognized by the law of nations.

The first standard is called the doctrine of “National treatment” or “equality of treatment.” Aliens are treated in the same manner as nationals of the state where they reside.

There is a bright side and a dark side to this doctrine. The bright side is that aliens would enjoy the same benefits as local nationals. The dark side is that, if the state is tyrannical and its municipal laws are harsh and violative of human rights even of its own citizens, then aliens would likewise be subject to such harsh laws.

The state is not an insurer of life or property of the alien when he is within its territory. A State is not automatically responsible for injury to an alien caused by a private person; it may, however, be responsible for its own attributable failure to provide the protection or redress required by an international obligation (ILC Articles on Responsibility of States for Internationally Wrongful Acts, Arts. 2, 4 and 11; Neer Claim (United States v. Mexico), 1926). (Cruz, 2020)

The relation between him and the state in these cases is too tenuous to make the latter liable for the injury he has sustained. (Cruz, 2020)

MINIMUM INTERNATIONAL STANDARD

The other standard is called the “minimum international standard” which says that, however harsh the municipal laws might be against a state’s own citizens, aliens should be protected by certain minimum standards of humane protection.

Execution without trial is considered as a violation of the international standard justice. Equality of treatment will not apply if both nationals and aliens are treated equally and below the international standard of justice.

The problem with this particular standard is it obviously abstract and it is not easy to determine what its contents are.

An elaboration of this abstract standard may be seen in a quotation from the resolution of the Neer Claim? Mr. Neer was a US national working in Mexico.

Definition

Statelessness is the condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another (Cruz)

Under the Convention Relating to the Status of Stateless Persons (1954), a stateless person is entitled to, among others, the right to religion and religious instruction, access to courts, elementary education, public relief and assistance and rationing of products in short supply, as well as treatment of no less favorable than that accorded to aliens.

Neer Claim:

• He was stopped by armed men and shot to death. It was claimed that the Mexican government had been negligent in their investigation of the murder. This was rejected by the Joint Claims Commission.
• It is the opinion of the Commission that the treatment of an alien, in order to constitute an international delinquency should amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency.
• Whether the insufficiency proceeds from deficient execution of an intelligent law or from the fact that the laws of the country do not empower the authorities to measure up to international standards is immaterial.

2021 BLUE NOTES

EXTRADITION

Procedure for Extradition

• Foreign diplomat of the Requesting State or Government requests for extradition with Secretary of Foreign Affairs.
• DFA forwards request to DOJ.
• DOJ files a petition for extradition with RTC.
• RTC issues summons or Warrant of Arrest to compel the appearance of the individual.
• Hearing (provide for counsel de officio if the accused does not have a legal counsel at the day of the hearing).
• Appeal to CA within 10 days whose decision shall be final and executory
• Decision forwarded to DFA through the DOJ
• Individual placed at the disposal of authorities of the requesting State. The costs and expenses is to be shouldered by the Requesting State. (Philippine Extradition Law, §§ 4-8, 12, 16 & 18).

Distinguished from deportation

Extradition is the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities. (PD 1069, §2(a)). It is a form of international judicial assistance designed to deny criminals a safe haven abroad. It is a formal procedure whereby an individual, accused or convicted of a crime under the laws of one State, is arrested in another State and handed over to the former State, at that State’s request, for trial or punishment. (Boczek, The A to Z of International Law, 60, 2010).

Deportation is the act or an instance of removing a person to another country. (Black’s Law Dictionary, 504, 2004). It is exercised by the President to expel or deport aliens whose presence is deemed inimical to the public interest. Deportation is based on the fact that, since aliens are not part of the nation, their admission to its territory is a matter of permission and simple tolerance which creates no obligation on the part of the government to permit them to stay. (Djumantan v. Domingo, G.R. No. 99358, Jan. 30, 1995)

Extradition v. Deportation

Aliens may be deported under the Philippine Immigration Act of 1940, as amended, or by the President under Chapter 3, Book III of the Administrative Code of 1987, subject to due process and judicial review. (Sec. of Justice v. Koruga, G.R. No. 166199, Apr. 24, 2009).

EXPROPRIATION

Deportation of Undesirable Aliens

The President may deport an alien on grounds not expressly enumerated in the immigration statute, provided the exercise of that power is not arbitrary or unreasonable and observes applicable legal safeguards [Qua Chee Gan v. Deportation Board, G.R. No. L-10280 (1963)].

Indirect

Any act which deprives a foreigner indefinitely of all benefit from his property is regarded by international law as an expropriation, even though a formal change of ownership may not have occurred. It is the treatment rendering property rights useless even if not actually involving expropriation of the property. (Akehurst, Modern Introduction to International Law, 2019)

Two (2) Ways of Deporting an Undesirable Alien

• By order of the President after due investigation [Chapter 3, Book III, Admin. Code of 1987];
• By the Commissioner of Immigration under Section 37 of the Immigration Law [Qua Chee Gan v. Deportation Board, supra]

Fair and Equitable Treatment

the precise formulation of these promises of fair and equitable treatment and the conditions attached thereto vary considerably among treaties, fair and equitable treatment is a core concept embedded in nearly all international investment agreements.

Its undefined and potentially elastic nature has made it a favourite of aggrieved investors and their lawyers when seeking compensation for the allegedly injurious acts of host country governments. Indeed, some have claimed that a majority of successful claims in investor state arbitrations have been based on the fair and equitable clause. The concept of fair and equitable treatment in investment treaties has its origins in the post-World War II era. It arose within international efforts to foster international investment specifically.(Salacuse, The Law of Investment Treaties (3rd Edition)

Scope of the Power

• The President’s power to deport aliens and to investigate them subject to deportation are provided in Chapter 3, Book III, of the Admin. Code of 1987.
• The President has broad discretion to determine whether an alien’s residence in the country is so undesirable as to affect the security, welfare or interest of the state, but must observe due process in exercising that power.
• The Chief Executive has broad discretion to determine the existence of facts which would warrant the deportation of aliens, but the exercise of that power is subject to judicial review for legality and constitutional compliance [Go Tek v. Deportation Board, G.R. No. L-23846 (1977); 1987 Constitution, Art. VIII, Sec. 1].