Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 153675             April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine Department of Justice, Petitioner, vs.HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUÑOZ, Respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001 allowing Juan Antonio Muñoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders were issued by respondent judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there is no provision in the Constitution granting bail to a potential extraditee.

The facts are:

On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997.

On July 1, 1997, Hong Kong reverted back to the People’s Republic of China and became the Hong Kong Special Administrative Region.

Private respondent Muñoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge.

On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent.

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same day, the NBI agents arrested and detained him.

On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition andmandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest.

On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.

On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be reversed.

On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001.

Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,- a petition for bail which was opposed by petitioner.

After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk."

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge.

On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application for bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private respondent to post bail, thus:

In conclusion, this Court will not contribute to accused’s further erosion of civil liberties. The petition for bail is granted subject to the following conditions:

1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited in favor of the government;

2. Accused must surrender his valid passport to this Court;

3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure order before this Court even in extradition proceeding; and

4. Accused is required to report to the government prosecutors handling this case or if they so desire to the nearest office, at any time and day of the week; and if they further desire, manifest before this Court to require that all the assets of accused, real and personal, be filed with this Court soonest, with the condition that if the accused flees from his undertaking, said assets be forfeited in favor of the government and that the corresponding lien/annotation be noted therein accordingly.

SO ORDERED.

On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent judge in his Order dated April 10, 2002.

Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings.

In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of one’s liberty.

Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus:

Sec. 13. 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. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this Court has an occasion to resolve the question of whether a prospective extraditee may be granted bail.

In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition proceedings. It is "available only in criminal proceedings," thus:

x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal.

Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue.

The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpusfinds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature.

At first glance, the above ruling applies squarely to private respondent’s case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other.

The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law.

On a more positive note, also after World War II, both international organizations and states gave recognition and importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of Prisons,2 this Court, in granting bail to a prospective deportee, held that under the Constitution,3 the principles set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and

ratified. Fundamental among the rights enshrined therein are the rights of every person to life, liberty, and due process.

The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine authorities are under obligation to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of this Court’s ruling in Purganan is in order.

First, we note that the exercise of the State’s power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine,4 have likewise been detained.

Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights.

The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure to secure the necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation proceedings.

In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that foreign nationals against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in sustaining the detainee’s right to bail.

If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue.

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government."

Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to surrender him to the demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between

different nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is it a full-blown civil action, but one that is merely administrative in character.13 Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.14

But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently."

Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable.

Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for over two (2) years without having been convicted of any crime. By any standard, such an extended period of detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail.

While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution.

The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganancorrectly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail.

The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not necessarily mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditee’s rights to life, liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court.

In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk. Consequently, this case should be remanded to the trial court to determine whether private respondent may be granted bail on the basis of "clear and convincing evidence."

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZAssociate Justice

WE CONCUR:

REYNATO S. PUNOChief Justice

LEONARDO A. QUISUMBINGAssociate Justice

CONSUELO YNARES-SANTIAGOAsscociate Justice

ANTONIO T. CARPIOAssociate Justice

MA. ALICIA AUSTRIA-MARTINEZAsscociate Justice

RENATO C. CORONAAssociate Justice

CONCHITA CARPIO MORALESAsscociate Justice

ROMEO J. CALLEJO, SR.Associate Justice

ADOLFO S. AZCUNAAsscociate Justice

MINITA V. CHICO-NAZARIOAssociate Justice

DANTE O. TINGAAsscociate Justice

CANCIO C. GARCIAAssociate Justice

PRESBITERO J. VELASCO, JR.Asscociate Justice

ANTONIO EDUARDO B. NACHURAAssociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNOChief Justice

 The case of Republic vs. Sandoval, 220 SCRA 124, shall find application where it was ruled that:

          "An officer cannot shelter himself by the plea that he is a public agent acting under the color of his office when his acts are wholly without authority.

          While the Republic in this case is sued by name, the ultimate liability does not pertain to the government. Although the military officers and personnel, then party defendants, were discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority.

          Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic.

          The military and police forces were deployed to ensure that the rally would be peaceful and orderly as well as to guarantee the safety of the very people that they are duty-bound to protect. However, the facts as found by the trial court showed that they fired at the unruly crowd to disperse the latter.

          This court has made it quite clear that even a high position in the government does not confer a license to persecute or recklessly injure another.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 84607 March 19, 1993

REPUBLIC OF THE PHILIPPINES, GEN. RAMON MONTANO, GEN. ALFREDO LIM, GEN. ALEXANDER AGUIRRE, COL. EDGAR DULA TORRES, COL. CEZAR NAZARENO, MAJ. FILEMON GASMEN, PAT. NICANOR ABANDO, PFC SERAFIN CEBU, JR., GEN. BRIGIDO PAREDES, COL. ROGELIO MONFORTE, PFC ANTONIO LUCERO, PAT. JOSE MENDIOLA, PAT. NELSON TUASON, POLICE CORPORAL PANFILO ROGOS, POLICE LT. JUAN B. BELTRAN, PAT. NOEL MANAGBAO, MARINE THIRD CLASS TRAINEE (3CT) NOLITO NOGATO, 3CT ALEJANDRO B. NAGUIO, JR., EFREN ARCILLAS, 3CT AGERICO LUNA, 3CT BASILIO BORJA, 3CT MANOLITO LUSPO, 3CT CRISTITUTO GERVACIO, 3CT MANUEL DELA CRUZ, JR., MARINE (CDC) BN., (CIVIL DISTURBANCE CONTROL), MOBILE DISPERSAL TEAM (MDT), LT. ROMEO PAQUINTO, LT. LAONGLAANG GOCE, MAJ. DEMETRIO DE LA CRUZ, POLICE CAPTAIN RODOLFO NAVAL, JOHN DOE, RICHARD DOE, ROBERTO DOE AND OTHER DOES, petitioners, vs.HON. EDILBERTO G. SANDOVAL, Regional Trial Court of Manila, Branch IX, ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA BAUTISTA, CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL, MIGUEL ARABE, TERESITA ARJONA, RONALDO CAMPOMANES AND CARMENCITA ARDONI VDA. DE CAMPOMANES, ROGELIO DOMUNICO, in their capacity as heirs of the deceased (ROBERTO C. CAYLAO, SONNY "BOY" PEREZ, DIONESIO BAUTISTA, DANTE EVANGELIO, ADELFA ARIBE, DANILO ARJONA, VICENTE CAMPOMANES, RONILO DOMUNICO) respectively; and (names of sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO ALBASIA, NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE MENSOLA, ALBERT PITALBO, VICENTE ROSEL, RUBEN CARRIEDO, JOY CRUZ, HONORIO LABAMBA, JR., EFREN MACARAIG, SOLOMON MANALOTO, ROMEO DURAN, NILO TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE, GERARDO COYOCA, LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR FONTANILLA, WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS, TOMAS VALLOS, ARNOLD ENAJE, MARIANITA DIMAPILIS, FRANCISCO ANGELES, MARCELO ESGUERRA, JOSE FERRER, RODEL DE GUIA, ELVIS MENDOZA, VICTORIANO QUIJANO, JOEY ADIME, RESIENO ADUL, ALBERTO TARSONA, CARLOS ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE, BENILDA

ALONUEVO, EMMA ABADILLO, REYNALDO CABALLES, JR., JAIME CALDETO, FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE DELGADO, JUN DELOS SANTOS, MARIO DEMASACA, FRANCISCO GONZALES, ERNESTO GONZALES, RAMIRO JAMIL, JUAN LUCENA, PERLITO SALAYSAY, JOHNNY SANTOS, MARCELO SANTOS, EMIL SAYAO, BAYANI UMALI, REMIGIO MAHALIN, BONG MANLULO, ARMANDO MATIENZO, CARLO MEDINA, LITO NOVENARIO, and ROSELLA ROBALE, respondents.

G.R. No. 84645 March 19, 1993

ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA BAUTISTA, CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL, MIGUEL ARABE, TERESITA ARJONA, RONALDO CAMPOMANES AND CARMENCITA ARDONI VDA. DE CAMPOMANES, ROGELIO DOMUNICO, in their capacity as heirs of the deceased (ROBERTO C. CAYLAO, SONNY "BOY" PEREZ, DIONESIO GRAMPA, ANGELITO GUTIERREZ, BERNABE LAKINDANUM, ROBERTO YUMUL, LEOPOLDO ALONZO, ADELFA ARIBE, DANILO ARJONA, VICENTE CAMPOMANES, RONILO DOMUNICO) respectively; and (names of sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO ALBASIA, NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE MENSOLA, ALBERT PITALBO, VICENTE ROSEL, RUBEN CARRIEDO, JOY CRUZ, HONORIO LABAMBA, JR. EFREN MACARAIG, SOLOMON MANALOTO, ROMEO DURAN, NILO TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE, GERARDO COYOCA, LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR FONTANILLA, WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS TOMAS VALLOS, ARNOLD ENAJE, MARIANITA DIMAPILIS, FRANCISCO ANGELES, MARCELO ESGUERRA, JOSE FERRER, RODEL DE GUIA, ELVIS MENDOZA, VICTORINO QUIJANO, JOEY ADIME, RESIENO ADUL, ALBERTO TARSONA, CARLOS ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE, BENILDA ALONUEVO, EMMA ABADILLO, REYNALDO CABALLES, JR., JAIME CALDETO, FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE DELGADO, JUN DELOS SANTOS, MARIO DEMASACA, FRANCISCO GONZALES, ERNESTO GONZALES, RAMIRO JAMIL, JUAN LUCENA, PERLITO SALAYSAY, JOHNNY SANTOS, MARCELO SANTOS, EMIL SAYAO, BAYANI UMALI, REMIGIO MAHALIN, BONG MANLULO, ARMANDO MATIENZO, CARLO MEDINA, LITO NOVENARIO, ROSELLA ROBALE, petitioners, vs.REPUBLIC OF THE PHILIPPINES, and HONORABLE EDILBERTO G. SANDOVAL, Regional Trial Court of Manila, Branch 9, respondents.

The Solicitor General for the Republic of the Philippines.

Structural Alternative Legal Assistance for Grassroots for petitioners in 84645 & private respondents in 84607.

 

CAMPOS, JR., J.:

People may have already forgotten the tragedy that transpired on January 22, 1987. It is quite ironic that then, some journalists called it a Black Thursday, as a grim reminder to the nation of the misfortune that befell twelve (12) rallyists. But for most Filipinos now, the Mendiola massacre may now just as well be a chapter in our history books. For those however, who have become widows and orphans, certainly they would not settle for just that. They seek retribution for the lives taken that will never be brought back to life again.

Hence, the heirs of the deceased, together with those injured (Caylao group), instituted this petition, docketed as G.R. No. 84645, under Section 1 of Rule 65 of the Rules of Court, seeking the reversal and setting aside of the Orders of respondent Judge Sandoval, 1 dated May 31 and August 8, 1988, dismissing the complaint for damages of herein petitioners against the Republic of the Philippines in Civil Case No. 88-43351.

Petitioner, the Republic of the Philippines, through a similar remedy, docketed as G.R. No. 84607, seeks to set aside the Order of respondent Judge dated May 31, 1988, in Civil Case No. 88-43351 entitled "Erlinda Caylao, et al. vs. Republic of the Philippines, et al."

The pertinent portion of the questioned Order 2 dated May 31, 1988, reads as follows:

With respect however to the other defendants, the impleaded Military Officers, since they are being charged in their personal and official capacity, and holding them liable, if at all, would not result in financial responsibility of the government, the principle of immunity from suit can not conveniently and correspondingly be applied to them.

WHEREFORE, the case as against the defendant Republic of the Philippines is hereby dismissed. As against the rest of the defendants the motion to dismiss is denied. They are given a period of ten (10) days from receipt of this order within which to file their respective pleadings.

On the other hand, the Order 3, dated August 8, 1988, denied the motions filed by both parties, for a reconsideration of the abovecited Order, respondent Judge finding no cogent reason to disturb the said order.

The massacre was the culmination of eight days and seven nights of encampment by members of the militant Kilusang Magbubukid sa Pilipinas (KMP) at the then Ministry (now Department) of Agrarian Reform (MAR) at the Philippine Tobacco Administration Building along Elliptical Road in Diliman, Quezon City.

The farmers and their sympathizers presented their demands for what they called "genuine agrarian reform". The KMP, led by its national president, Jaime Tadeo, presented their problems and demands, among which were: (a) giving lands for free to farmers; (b) zero retention of lands by landlords; and (c) stop amortizations of land payments.

The dialogue between the farmers and the MAR officials began on January 15, 1987. The two days that followed saw a marked increase in people at the encampment. It was only on January 19, 1987 that Jaime Tadeo arrived to meet with then Minister Heherson Alvarez, only to be informed that the Minister can only meet with him the following day. On January 20, 1987, the meeting was held at the MAR conference room. Tadeo demanded that the minimum comprehensive land reform program be granted immediately. Minister Alvarez, for his part, can only promise to do his best to bring the matter to the attention of then President Aquino, during the cabinet meeting on January 21, 1987.

Tension mounted the following day. The farmers, now on their seventh day of encampment, barricaded the MAR premises and prevented the employees from going inside their offices. They hoisted the KMP flag together with the Philippine flag.

At around 6:30 p.m. of the same day, Minister Alvarez, in a meeting with Tadeo and his leaders, advised the latter to instead wait for the ratification of the 1987 Constitution and just allow the government to implement its comprehensive land reform program. Tadeo, however, countered by saying that he did not believe in the Constitution and that a genuine land reform cannot be realized under a landlord-controlled Congress. A heated discussion ensued between Tadeo and Minister Alvarez. This notwithstanding, Minister Alvarez suggested a negotiating panel from each side to meet again the following day.

On January 22, 1987, Tadeo's group instead decided to march to Malacañang to air their demands. Before the march started, Tadeo talked to the press and TV media. He uttered fiery words, the most telling of which were:". . . inalis namin ang barikada bilang kahilingan ng ating Presidente, pero kinakailangan alisin din niya ang barikada sa Mendiola sapagkat bubutasin din namin iyon at dadanak ang dugo . . . ."  4

The farmers then proceeded to march to Malacañang, from Quezon Memorial Circle, at 10:00 a.m. They were later joined by members of other sectoral organizations such as the Kilusang Mayo Uno (KMU), Bagong Alyansang Makabayan (BAYAN), League of Filipino Students (LFS) and Kongreso ng Pagkakaisa ng Maralitang Lungsod (KPML).

At around 1:00 p.m., the marchers reached Liwasang Bonifacio where they held a brief program. It was at this point that some of the marchers entered the eastern side of the Post Office Building, and removed the steel bars surrounding the garden. Thereafter, they joined the march to Malacañang. At about 4:30 p.m., they reached C.M. Recto Avenue.

In anticipation of a civil disturbance, and acting upon reports received by the Capital Regional Command (CAPCOM) that the rallyists would proceed to Mendiola to break through the police lines and rush towards Malacañang, CAPCOM Commander General Ramon E. Montaño inspected the preparations and adequacy of the government forces to quell impending attacks.

OPLAN YELLOW (Revised) was put into effect. Task Force Nazareno under the command of Col. Cesar Nazareno was deployed at the vicinity of Malacañang. The civil disturbance control units of the Western Police District under Police Brigadier General Alfredo S. Lim were also activated.

Intelligence reports were also received that the KMP was heavily infiltrated by CPP/NPA elements and that an insurrection was impending. The threat seemed grave as there were also reports that San Beda College and Centro Escolar University would be forcibly occupied.

In its report, the Citizens' Mendiola Commission (a body specifically tasked to investigate the facts surrounding the incident, Commission for short) stated that the government anti-riot forces were assembled at Mendiola in a formation of three phalanges, in the following manner:

(1) The first line was composed of policemen from police stations Nos. 3, 4, 6, 7, 8, 9 and 10 and the Chinatown detachment of the Western Police District. Police Colonel Edgar Dula Torres, Deputy Superintendent of the Western Police District, was designated as ground commander of the CDC first line of defense. The WPD CDC elements were positioned at the intersection of Mendiola and Legarda Streets after they were ordered to move forward from the top of Mendiola bridge. The WPD forces were in khaki uniform and carried the standard CDC equipment — aluminum shields, truncheons and gas masks.

(2) At the second line of defense about ten (10) yards behind the WPD policemen were the elements of the Integrated National Police (INP) Field Force stationed at Fort Bonifacio from the 61st and 62nd INP Field Force, who carried also the standard CDC equipment — truncheons, shields and gas masks. The INP Field Force was under the command of Police Major Demetrio dela Cruz.

(3) Forming the third line was the Marine Civil Disturbance Control Battalion composed of the first and second companies of the Philippine Marines stationed at Fort Bonifacio. The marines were all equipped with shields, truncheons and M-16 rifles (armalites) slung at their backs, under the command of Major Felimon B. Gasmin. The Marine CDC Battalion was positioned in line formation ten (10) yards farther behind the INP Field Force.

At the back of the marines were four (4) 6 x 6 army trucks, occupying the entire width of Mendiola street, followed immediately by two water cannons, one on each side of the street and eight fire trucks, four trucks on each side of the street. The eight fire trucks from Fire District I of Manila under Fire Superintendent Mario C. Tanchanco, were to supply water to the two water cannons.

Stationed farther behind the CDC forces were the two Mobile Dispersal Teams (MDT) each composed of two tear gas grenadiers, two spotters, an assistant grenadier, a driver and the team leader.

In front of the College of the Holy Spirit near Gate 4 of Malacañang stood the VOLVO Mobile Communications Van of the Commanding General of CAPCOM/INP, General Ramon E. Montaño. At this command post, after General Montaño had conferred with TF Nazareno Commander, Colonel Cezar Nazareno, about the adequacy and readiness of his forces, it was agreed that Police General Alfredo S. Lim would designate Police Colonel Edgar Dula Torresand Police Major Conrado Francisco as negotiators with the marchers. Police General Lim then proceeded to the WPD CDC elements already positioned at the foot of Mendiola bridge to relay to Police Colonel Torres and Police Major Francisco the instructions that the latter would negotiate with the marchers. 5 (Emphasis supplied)

The marchers, at around 4:30 p.m., numbered about 10,000 to 15,000. From C.M. Recto Avenue, they proceeded toward the police lines. No dialogue took place between the marchers and the anti-riot squad. It was at this moment that a clash occurred and, borrowing the words of the Commission "pandemonium broke loose". The Commission stated in its findings, to wit:

. . . There was an explosion followed by throwing of pillboxes, stones and bottles. Steel bars, wooden clubs and lead pipes were used against the police. The police fought back with their shields and truncheons. The police line was breached. Suddenly shots were heard. The demonstrators disengaged from the government forces and retreated towards C.M. Recto Avenue. But sporadic firing continued from the government forces.

After the firing ceased, two MDTs headed by Lt. Romeo Paquinto and Lt. Laonglaan Gocesped towards Legarda Street and lobbed tear gas at the remaining rallyist still grouped in the vicinity of Mendiola. After dispersing the crowd, the two MDTs, together with the two WPD MDTs, proceeded to Liwasang Bonifacio upon order of General Montaño to disperse the rallyists assembled thereat. Assisting the MDTs were a number of policemen from the WPD, attired in civilian clothes with white head bands, who were armed with long firearms.6 (Emphasis ours)

After the clash, twelve (12) marchers were officially confirmed dead, although according to Tadeo, there were thirteen (13) dead, but he was not able to give the name and address of said victim. Thirty-nine (39) were wounded by gunshots and twelve (12) sustained minor injuries, all belonging to the group of the marchers.

Of the police and military personnel, three (3) sustained gunshot wounds and twenty (20) suffered minor physical injuries such as abrasions, contusions and the like.

In the aftermath of the confrontation, then President Corazon C. Aquino issued Administrative Order No. 11, 7 (A.O. 11, for brevity) dated January 22, 1987, which created the Citizens' Mendiola Commission. The body was composed of retired Supreme Court Justice Vicente Abad Santos as Chairman, retired Supreme Court Justice Jose Y. Feria and Mr. Antonio U. Miranda, both as members. A.O. 11 stated that the Commission was created precisely for the "purpose of conducting an investigation of the disorder, deaths, and casualties that took place in the vicinity of Mendiola Bridge and Mendiola Street and Claro M. Recto Avenue, Manila, in the afternoon of January 22, 1987". The Commission was expected to have submitted its findings not later than February 6, 1987. But it failed to do so. Consequently, the deadline was moved to February 16, 1987 by Administrative Order No. 13. Again, the Commission was unable to meet this deadline. Finally, on February 27, 1987, it submitted its report, in accordance with Administrative Order No. 17, issued on February 11, 1987.

In its report, the Commission recapitulated its findings, to wit:

(1) The march to Mendiola of the KMP led by Jaime Tadeo, together with the other sectoral groups, was not covered by any permit as required under Batas Pambansa Blg. 880, the Public Assembly Act of 1985, in violation of paragraph (a) Section 13, punishable under paragraph (a), Section 14 of said law.

(2) The crowd dispersal control units of the police and the military were armed with .38 and .45 caliber handguns, and M-16 armalites, which is a prohibited act under paragraph 4(g), Section 13, and punishable under paragraph (b), Section 14 of Batas Pambansa Blg. 880.

(3) The security men assigned to protect the WPD, INP Field Force, the Marines and supporting military units, as well as the security officers of the police and military commanders were in civilian attire in violation of paragraph (a), Section 10, Batas Pambansa 880.

(4) There was unnecessary firing by the police and military crowd dispersal control units in dispersing the marchers, a prohibited act under paragraph (e), Section 13, and punishable under paragraph (b), Section 14, Batas Pambansa Blg. 880.

(5) The carrying and use of steel bars, pillboxes, darts, lead pipe, wooden clubs with spikes, and guns by the marchers as offensive weapons are prohibited acts punishable under paragraph (g), Section 13, and punishable under paragraph (e), Section 14 of Batas Pambansa Blg. 880.

(6) The KMP farmers broke off further negotiations with the MAR officials and were determined to march to Malacañang, emboldened as they are, by the inflammatory and incendiary utterances of their leader, Jaime Tadeo — "bubutasin namin ang barikada . . Dadanak and dugo . . . Ang nagugutom na magsasaka ay gagawa ng sariling butas. . .

(7) There was no dialogue between the rallyists and the government forces. Upon approaching the intersections of Legarda and Mendiola, the marchers began pushing the police lines and penetrated and broke through the first line of the CDC contingent.

(8) The police fought back with their truncheons and shields. They stood their ground but the CDC line was breached. There ensued gunfire from both sides. It is not clear who started the firing.

(9) At the onset of the disturbance and violence, the water cannons and tear gas were not put into effective use to disperse the rioting crowd.

(10) The water cannons and fire trucks were not put into operation because (a) there was no order to use them; (b) they were incorrectly prepositioned; and (c) they were out of range of the marchers.

(11) Tear gas was not used at the start of the disturbance to disperse the rioters. After the crowd had dispersed and the wounded and dead were being carried away, the MDTs of the police and the military with their tear gas equipment and components conducted dispersal operations in the Mendiola area and proceeded to Liwasang Bonifacio to disperse the remnants of the marchers.

(12) No barbed wire barricade was used in Mendiola but no official reason was given for its absence. 8

From the results of the probe, the Commission recommended 9 the criminal prosecution of four unidentified, uniformed individuals, shown either on tape or in pictures, firing at the direction of the marchers. In connection with this, it was the Commission's recommendation that the National Bureau of Investigation (NBI) be tasked to undertake investigations regarding the identities of those who actually fired their guns that resulted in the death of or injury to the victims of the incident. The Commission also suggested that all the commissioned officers of both the Western Police District and the INP Field Force, who were armed during the incident, be prosecuted for violation of paragraph 4(g) of Section 13, Batas Pambansa Blg. 880, the Public Assembly Act of 1985. The Commission's recommendation also included the prosecution of the marchers, for carrying deadly or offensive weapons, but whose identities have yet to be established. As for Jaime Tadeo, the Commission said that he should be prosecuted both for violation of paragraph (a), Section 13, Batas Pambansa Blg. 880 for holding the rally without a permit and for violation of Article 142, as amended, of the Revised Penal Code for inciting to sedition. As for the following officers, namely: (1) Gen. Ramon E. Montaño; (2) Police Gen. Alfredo S. Lim; (3) Police Gen. Edgar Dula Torres; (4) Police Maj. Demetrio dela Cruz; (5) Col. Cezar Nazareno; and (5) Maj. Felimon Gasmin, for their failure to make effective use of their skill and experience in directing the dispersal operations in Mendiola, administrative sanctions were recommended to be imposed.

The last and the most significant recommendation of the Commission was for the deceased and wounded victims of the Mendiola incident to be compensated by the government. It was this portion that petitioners (Caylao group) invoke in their claim for damages from the government.

Notwithstanding such recommendation, no concrete form of compensation was received by the victims. Thus, on July 27, 1987, herein petitioners, (Caylao group) filed a formal letter of demand for compensation from the Government. 10 This formal demand was indorsed by the office of the Executive Secretary to the

Department of Budget and Management (DBM) on August 13, 1987. The House Committee on Human Rights, on February 10, 1988, recommended the expeditious payment of compensation to the Mendiola victims. 11

After almost a year, on January 20, 1988, petitioners (Caylao group) were constrained to institute an action for damages against the Republic of the Philippines, together with the military officers, and personnel involved in the Mendiola incident, before the trial court. The complaint was docketed as Civil Case No. 88-43351.

On February 23, 1988, the Solicitor General filed a Motion to Dismiss on the ground that the State cannot be sued without its consent. Petitioners opposed said motion on March 16, 1988, maintaining that the State has waived its immunity from suit and that the dismissal of the instant action is contrary to both the Constitution and the International Law on Human Rights.

Respondent Judge Sandoval, in his first questioned Order, dismissed the complaint as against the Republic of the Philippines on the ground that there was no waiver by the State. Petitioners (Caylao group) filed a Motion for Reconsideration therefrom, but the same was denied by respondent judge in his Order dated August 8, 1988. Consequently, Caylao and her co-petitioners filed the instant petition.

On the other hand, the Republic of the Philippines, together with the military officers and personnel impleaded as defendants in the court below, filed its petition for certiorari.

Having arisen from the same factual beginnings and raising practically identical issues, the two (2) petitions were consolidated and will therefore be jointly dealt with and resolved in this Decision.

The resolution of both petitions revolves around the main issue of whether or not the State has waived its immunity from suit.

Petitioners (Caylao group) advance the argument that the State has impliedly waived its sovereign immunity from suit. It is their considered view that by the recommendation made by the Commission for the government to indemnify the heirs and victims of the Mendiola incident and by the public addresses made by then President Aquino in the aftermath of the killings, the State has consented to be sued.

Under our Constitution the principle of immunity of the government from suit is expressly provided in Article XVI, Section 3. The principle is based on the very essence of sovereignty, and on the practical ground that there can be no legal right as against the authority that makes the law on which the right depends. 12 It also rests on reasons of public policy — that public service would be hindered, and the public endangered, if the sovereign authority could be subjected to law suits at the instance of every citizen and consequently controlled in the uses and dispositions of the means required for the proper administration of the government. 13

This is not a suit against the State with its consent.

Firstly, the recommendation made by the Commission regarding indemnification of the heirs of the deceased and the victims of the incident by the government does not in any way mean that liability automatically attaches to the State. It is important to note that A.O. 11 expressly states that the purpose of creating the Commission was to have a body that will conduct an "investigation of the disorder, deaths and casualties that took place." 14 In the exercise of its functions, A.O. 11 provides guidelines, and what is relevant to Our discussion reads:

1 Its conclusions regarding the existence of probable cause for the commission of any offense and of the persons probably guilty of the same shall be sufficient compliance with the rules on preliminary investigation and the charges arising therefrom may be filed directly with the proper court. 15

In effect, whatever may be the findings of the Commission, the same shall only serve as the cause of action in the event that any party decides to litigate his/her claim. Therefore, the Commission is merely a preliminary venue. The Commission is not the end in itself. Whatever recommendation it makes cannot in

any way bind the State immediately, such recommendation not having become final and, executory. This is precisely the essence of it being a fact-finding body.

Secondly, whatever acts or utterances that then President Aquino may have done or said, the same are not tantamount to the State having waived its immunity from suit. The President's act of joining the marchers, days after the incident, does not mean that there was an admission by the State of any liability. In fact to borrow the words of petitioners (Caylao group), "it was an act of solidarity by the government with the people". Moreover, petitioners rely on President Aquino's speech promising that the government would address the grievances of the rallyists. By this alone, it cannot be inferred that the State has admitted any liability, much less can it be inferred that it has consented to the suit.

Although consent to be sued may be given impliedly, still it cannot be maintained that such consent was given considering the circumstances obtaining in the instant case.

Thirdly, the case does not qualify as a suit against the State.

Some instances when a suit against the State is proper are: 16

(1) When the Republic is sued by name;

(2) When the suit is against an unincorporated government agency;

(3) When the, suit is on its face against a government officer but the case is such that ultimate liability will belong not to the officer but to the government.

While the Republic in this case is sued by name, the ultimate liability does not pertain to the government. Although the military officers and personnel, then party defendants, were discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority. Based on the Commission findings, there was lack of justification by the government forces in the use of firearms. 17 Moreover, the members of the police and military crowd dispersal units committed a prohibited act under B.P. Blg. 880 18 as there was unnecessary firing by them in dispersing the marchers. 19

As early as 1954, this Court has pronounced that an officer cannot shelter himself by the plea that he is a public agent acting under the color of his office when his acts are wholly without authority. 20 Until recently in 1991, 21 this doctrine still found application, this Court saying that immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic. The military and police forces were deployed to ensure that the rally would be peaceful and orderly as well as to guarantee the safety of the very people that they are duty-bound to protect. However, the facts as found by the trial court showed that they fired at the unruly crowd to disperse the latter.

While it is true that nothing is better settled than the general rule that a sovereign state and its political subdivisions cannot be sued in the courts except when it has given its consent, it cannot be invoked by both the military officers to release them from any liability, and by the heirs and victims to demand indemnification from the government. The principle of state immunity from suit does not apply, as in this case, when the relief demanded by the suit requires no affirmative official action on the part of the State nor the affirmative discharge of any obligation which belongs to the State in its political capacity, even though the officers or agents who are made defendants claim to hold or act only by virtue of a title of the state and as its agents and servants. 22 This Court has made it quite clear that even a "high position in the government does not confer a license to persecute or recklessly injure another." 23

The inescapable conclusion is that the State cannot be held civilly liable for the deaths that followed the incident. Instead, the liability should fall on the named defendants in the lower court. In line with the ruling of this court in Shauf vs. Court of Appeals, 24 herein public officials, having been found to have acted beyond the scope of their authority, may be held liable for damages.

WHEREFORE, finding no reversible error and no grave abuse of discretion committed by respondent Judge in issuing the questioned orders, the instant petitions are hereby DISMISSED.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.

Gutierrez, Jr., J., is on leave.

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-69866 April 15, 1988

ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO NOEL ETABAG DANILO DE LA FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN, ALAN JAZMINEZ, EDWIN LOPEZ, ALFREDO MANSOS, ALEX MARCELINO, ELIZABETH PROTACIO-MARCELINO, JOSEPH OLAYER, CARLOS PALMA, MARCO PALO, ROLANDO SALUTIN, BENJAMIN SESGUNDO, ARTURO TABARA, EDWIN TULALIAN and REBECCA TULALIAN petitioners,

vs.

MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL. ROLANDO ABADILLA, COL. GERARDO B. LANTORIA, COL. GALILEO KINTANAR, 1ST LT. COL. PANFILO M. LACSON, MAJ. RODOLFO AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT. PEDRO TANGO, 1ST LT. ROMEO RICARDO, 1ST LT. RAUL BACALSO, MSGT BIENVENIDO BALABA and REGIONAL TRIAL COURT, National Capital Judicial Region, Branch XCV (95), Quezon City, respondents.

YAP, J.:

This petition for certiorari presents vital issues not heretofore passed upon by this Court. It poses the question whether the suspension of the privilege of the writ of habeas corpus bars a civil action for damages for illegal searches conducted by military personnel and other violations of rights and liberties guaranteed under the Constitution. If such action for damages may be maintained, who can be held liable for such violations: only the military personnel directly involved and/or their superiors as well.

This case stems from alleged illegal searches and seizures and other violations of the rights and liberties of plaintiffs by various intelligence units of the Armed Forces of the Philippines, known as Task Force Makabansa (TFM) ordered by General Fabian Ver "to conduct pre-emptive strikes against known communist-terrorist (CT) underground houses in view of increasing reports about CT plans to sow disturbances in Metro Manila," Plaintiffs allege, among others, that complying with said order, elements of the TFM raided several places, employing in most cases defectively issued judicial search warrants; that during these raids, certain members of the raiding party confiscated a number of purely personal items belonging to plaintiffs; that plaintiffs were arrested without proper warrants issued by the courts; that for some period after their arrest, they were denied visits of relatives and lawyers; that plaintiffs were interrogated in violation of their rights to silence and counsel; that military men who interrogated them employed threats, tortures and other forms of violence on them in order to obtain incriminatory information or confessions and in order to punish them; that all violations of plaintiffs constitutional rights were part of a concerted and deliberate plan to forcibly extract information and incriminatory statements from plaintiffs and to terrorize, harass and punish them, said plans being previously known to and sanctioned by defendants.

Plaintiffs sought actual/compensatory damages amounting to P39,030.00; moral damages in the amount of at least P150,000.00 each or a total of P3,000,000.00; exemplary damages in the amount of at least P150,000.00 each or a total of P3,000,000.00; and attorney's fees amounting to not less than P200,000.00.

A motion to dismiss was filed by defendants, through their counsel, then Solicitor-General Estelito Mendoza, alleging that (1) plaintiffs may not cause a judicial inquiry into the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas corpus is suspended; (2) assuming that the courts can entertain the present action, defendants are immune from liability for acts done in the performance of their official duties; and (3) the complaint states no cause of action against the defendants. Opposition to said motion to dismiss was filed by plaintiffs Marco Palo, Danilo de la Fuente, Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and Rolando Salutin on July 8, 1983, and by plaintiffs Edwin Lopez, Manuel Mario Guzman, Alan Jasminez, Nestor Bodino, Carlos Palma, Arturo Tabara, Joseph Olayer, Rodolfo Benosa, Belen Diaz, Flores, Rogelio Aberca, Alex Marcelino and Elizabeth Marcelino on July 21, 1983. On November 7, 1983, a Consolidated Reply was filed by defendants' counsel.

Then, on November 8, 1983, the Regional Trial Court, National Capital Region, Branch 95, Judge Willelmo C. Fortun, Presiding, 1 issued a resolution granting the motion to dismiss. I sustained, lock, stock and barrel, the defendants' contention (1) the plaintiffs may not cause a judicial inquiry into the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas corpus is suspended; (2) that assuming that the court can entertain the present action, defendants are immune from liability for acts done in the performance of their official duties; and (3) that the complaint states no cause of action against defendants, since there is no allegation that the defendants named in the complaint confiscated plaintiffs' purely personal properties in violation of their constitutional rights, and with the possible exception of Major Rodolfo Aguinaldo and Sergeant Bienvenido Balabo committed acts of torture and maltreatment, or that the defendants had the duty to exercise direct supervision and control of their subordinates or that they had vicarious liability as employers under Article 2180 of the Civil Code. The lower court stated, "After a careful study of defendants' arguments, the court finds the same to be meritorious and must, therefore, be granted. On the other hand, plaintiffs' arguments in their opposition are lacking in merit."

A motion to set aside the order dismissing the complaint and a supplemental motion for reconsideration was filed by the plaintiffs on November 18, 1983, and November 24, 1983, respectively. On December 9,

1983, the defendants filed a comment on the aforesaid motion of plaintiffs, furnishing a copy thereof to the attorneys of all the plaintiffs, namely, Attys. Jose W. Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Auguso Sanchez, Antonio L. Rosales, Pedro B. Ella Jr., Arno V. Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas Aquino.

On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting himself from further proceeding in the case and leaving the resolution of the motion to set aside the order of dismissal to Judge Lising, "to preclude any suspicion that he (Judge Fortun) cannot resolve [the] aforesaid pending motion with the cold neutrality of an impartial judge and to put an end to plaintiffs assertion that the undersigned has no authority or jurisdiction to resolve said pending motion." This order prompted plaintiffs to reesolve an amplificatory motion for reconsideration signed in the name of the Free Legal Assistance Group (FLAG) of Mabini Legal Aid Committee, by Attys. Joker P. Arroyo, Felicitas Aquino and Arno Sanidad on April 12, 1984. On May 2,1984, the defendants filed a comment on said amplificatory motion for reconsideration.

In an order dated May 11, 1984, the trial court, Judge Esteban Lising, Presiding, without acting on the motion to set aside order of November 8, 1983, issued an order, as follows:

It appearing from the records that, indeed, the following plaintiffs, Rogelio Aberca, Danilo de la Fuente and Marco Palo, represented by counsel, Atty. Jose W. Diokno, Alan Jasminez represented by counsel, Atty. Augusta Sanchez, Spouses Alex Marcelino and Elizabeth Protacio-Marcelino, represented by counsel, Atty. Procopio Beltran, Alfredo Mansos represented by counsel, Atty. Rene Sarmiento, and Rolando Salutin, represented by counsel, Atty. Efren Mercado, failed to file a motion to reconsider the Order of November 8, 1983, dismissing the complaint, nor interposed an appeal therefrom within the reglementary period, as prayed for by the defendants, said Order is now final against said plaintiffs.

Assailing the said order of May 11, 1984, the plaintiffs filed a motion for reconsideration on May 28,1984, alleging that it was not true that plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin failed to file a motion to reconsider the order of November 8, 1983 dismissing the complaint, within the reglementary period. Plaintiffs claimed that the motion to set aside the order of November 8, 1983 and the amplificatory motion for reconsideration was filed for all the plaintiffs, although signed by only some of the lawyers.

In its resolution of September 21, 1984, the respondent court dealt with both motions (1) to reconsider its order of May 11, 1984 declaring that with respect to certain plaintiffs, the resolution of November 8, 1983 had already become final, and (2) to set aside its resolution of November 8, 1983 granting the defendants' motion to dismiss. In the dispositive portion of the order of September 21, 1984, the respondent court resolved:

(1) That the motion to set aside the order of finality, dated May 11, 1984, of the Resolution of dismissal of the complaint of plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin is deed for lack of merit;

(2) For lack of cause of action as against the following defendants, to wit:

1. Gen Fabian Ver

2. Col. Fidel Singson

3. Col. Rolando Abadilla

4. Lt. Col. Conrado Lantoria, Jr.

5. Col. Galileo Montanar

6. Col. Panfilo Lacson

7. Capt. Danilo Pizaro

8. 1 Lt Pedro Tango

9. Lt. Romeo Ricardo

10. Lt. Raul Bacalso

the motion to set aside and reconsider the Resolution of dismissal of the present action or complaint, dated November 8, 1983, is also denied but in so far as it affects and refers to defendants, to wit:

1. Major Rodolfo Aguinaldo, and

2. Master Sgt. Bienvenido Balaba

the motion to reconsider and set aside the Resolution of dismissal dated November 3, 1983 is granted and the Resolution of dismissal is, in this respect, reconsidered and modified.

Hence, petitioners filed the instant petition for certiorari on March 15, 1985 seeking to annul and set aside the respondent court's resolution of November 8, 1983, its order of May 11, 1984, and its resolution dated September 21, 1984. Respondents were required to comment on the petition, which it did on November 9, 1985. A reply was filed by petitioners on August 26, 1986.

We find the petition meritorious and decide to give it due course.

At the heart of petitioners' complaint is Article 32 of the Civil Code which provides:

ART. 32. Any public officer or employee, or any private individual who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property without due process

(7) of law;

(8) The right to a just compensation when private property is taken for public use;

(9) The right to the equal protection of the laws;

(10) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures;

(11) The liberty of abode and of changing the same;

(12) The privacy of cmmunication and correspondence;

(13) The right to become a member of associations or societies for purposes not contrary to law;

(14) The right to take part in a peaceable assembly to petition the Government for redress of grievances;

(15) The right to be free from involuntary servitude in any form;

(16) The rigth of the accused against excessive bail;

(17) The rigth of the aaccused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in behalf;

(18) Freedom from being compelled to be a witness against ones self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness;

(19) Freedom from excessive fines or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

(20) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the against grieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.

It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield — borrowing the words of Chief Justice Claudio Teehankee — to the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community. "Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom it is made. Now this respect implies a maximum of faith, a minimum of Idealism. On going to the bottom of the matter, we discover that life demands of us a certain residuum of sentiment which is not derived from reason, but which reason nevertheless controls. 2

Seeking to justify the dismissal of plaintiffs' complaint, the respondents postulate the view that as public officers they are covered by the mantle of state immunity from suit for acts done in the performance of official duties or function In support of said contention, respondents maintain that —

Respondents are members of the Armed Forces of the Philippines. Their primary duty is to safeguard public safety and order. The Constitution no less provides that the President may call them "to prevent or supress lawless violence, invasion, insurrection or rebellion, or imminent danger thereof." (Constitution, Article VII, Section 9).

On January 17, 1981, the President issued Proclamation No. 2045 lifting martial law but providing for the continued suspension of the privilege of the writ of habeas corpus in view of the remaining dangers to the security of the nation. The proclamation also provided "that the call to the Armed Forces of the Philippines to prevent or suppress lawless violence, insuitection rebellion and subversion shall continue to be in force and effect."

Petitioners allege in their complaint that their causes of action proceed from respondent General Ver's order to Task Force Makabansa to launch pre-emptive strikes against communist terrorist underground houses in Metro Manila. Petitioners claim that this order and its subsequent implementation by elements of the task force resulted in the violation of their constitutional rights against unlawful searches, seizures and

arrest, rights to counsel and to silence, and the right to property and that, therefore, respondents Ver and the named members of the task force should be held liable for damages.

But, by launching a pre-emptive strike against communist terrorists, respondent members of the armed forces merely performed their official and constitutional duties. To allow petitioners to recover from respondents by way of damages for acts performed in the exercise of such duties run contrary to the policy considerations to shield respondents as public officers from undue interference with their duties and from potentially disabling threats of hability (Aarlon v. Fitzgerald 102 S. Ct. 2731-1 Forbes v. Chuoco Tiaco, 16 Phil. 634), and upon the necessity of protecting the performance of governmental and public functions from being harassed unduly or constantly interrupted by private suits (McCallan v. State, 35 Cal. App. 605; Metran v. Paredes, 79 Phil. 819).

xxx xxx xxx

The immunity of public officers from liability arising from the performance of their duties is now a settled jurisprudence Alzua v. Johnson, 21 Phil. 308; Zulueta v. Nicolas, 102 Phil. 944; Spalding v. Vilas, 161 US 483; 40 L. Ed. 780, 16 S. Ct. 631; Barr v. Mateo, 360; Butz v. Economon, 438 US 478; 57 L. Ed. 2d 895, 98 S. Ct. 2894; Scheuer v. Rhodes, 416 US 232; Forbes v. Chuoco Tiaco, supra; Miller v. de Leune, 602 F. 2d 198; Sami v. US, 617 F. 2d 755).

Respondents-defendants who merely obeyed the lawful orders of the President and his call for the suppression of the rebellion involving petitioners enjoy such immunity from Suit. 3

We find respondents' invocation of the doctrine of state immunity from suit totally misplaced. The cases invoked by respondents actually involved acts done by officers in the performance of official duties written the ambit of their powers. As held in Forbes, etc. vs. Chuoco Tiaco and Crossfield: 4

No one can be held legally responsible in damages or otherwise for doing in a legal manner what he had authority, under the law, to do. Therefore, if the Governor-General had authority, under the law to deport or expel the defendants, and circumstances justifying the deportation and the method of carrying it out are left to him, then he cannot be held liable in damages for the exercise of this power. Moreover, if the courts are without authority to interfere in any manner, for the purpose of controlling or interferring with the exercise of the political powers vested in the chief executive authority of the Government, then it must follow that the courts cannot intervene for the purpose of declaring that he is liable in damages for the exeercise of this authority.

It may be that the respondents, as members of the Armed Forces of the Philippines, were merely responding to their duty, as they claim, "to prevent or suppress lawless violence, insurrection, rebellion and subversion" in accordance with Proclamation No. 2054 of President Marcos, despite the lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch pre- emptive strikes against alleged communist terrorist underground houses. But this cannot be construed as a blanket license or a roving commission untramelled by any constitutional restraint, to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and protected by the Constitution. The Constitution

remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience and allegiance at all times.

Article 32 of the Civil Code which renders any public officer or employee or any private individual liable in damages for violating the Constitutional rights and liberties of another, as enumerated therein, does not exempt the respondents from responsibility. Only judges are excluded from liability under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute.

This is not to say that military authorities are restrained from pursuing their assigned task or carrying out their mission with vigor. We have no quarrel with their duty to protect the Republic from its enemies, whether of the left or of the right, or from within or without, seeking to destroy or subvert our democratic institutions and imperil their very existence. What we are merely trying to say is that in carrying out this task and mission, constitutional and legal safeguards must be observed, otherwise, the very fabric of our faith will start to unravel. In the battle of competing Ideologies, the struggle for the mind is just as vital as the struggle of arms. The linchpin in that psychological struggle is faith in the rule of law. Once that faith is lost or compromised, the struggle may well be abandoned.

We do not find merit in respondents' suggestion that plaintiffs' cause of action is barred by the suspension of the privilege of the writ of habeas corpus. Respondents contend that "Petitioners cannot circumvent the suspension of the privilege of the writ by resorting to a damage suit aimed at the same purpose-judicial inquiry into the alleged illegality of their detention. While the main relief they ask by the present action is indemnification for alleged damages they suffered, their causes of action are inextricably based on the same claim of violations of their constitutional rights that they invoked in the habeas corpus case as grounds for release from detention. Were the petitioners allowed the present suit, the judicial inquiry barred by the suspension of the privilege of the writ will take place. The net result is that what the courts cannot do, i.e. override the suspension ordered by the President, petitioners will be able to do by the mere expedient of altering the title of their action."

We do not agree. We find merit in petitioners' contention that the suspension of the privilege of the writ of habeas corpus does not destroy petitioners' right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights. The suspension does not render valid an otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek release from detention through the writ of habeas corpus as a speedy means of obtaining his liberty.

Moreover, as pointed out by petitioners, their right and cause of action for damages are explicitly recognized in P.D. No. 1755 which amended Article 1146 of the Civil Code by adding the following to its text:

However, when the action (for injury to the rights of the plaintiff or for a quasi-delict) arises from or out of any act, activity or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year.

Petitioners have a point in contending that even assuming that the suspension of the privilege of the writ of habeas corpus suspends petitioners' right of action for damages for illegal arrest and detention, it does not and cannot suspend their rights and causes of action for injuries suffered because of respondents' confiscation of their private belongings, the violation of their right to remain silent and to counsel and their right to protection against unreasonable searches and seizures and against torture and other cruel and inhuman treatment.

However, we find it unnecessary to address the constitutional issue pressed upon us. On March 25, 1986, President Corazon C. Aquino issued Proclamation No. 2, revoking Proclamation Nos. 2045 and 2045-A and lifting the suspension of the privilege of the writ of habeas corpus. The question therefore has become moot and academic.

This brings us to the crucial issue raised in this petition. May a superior officer under the notion of respondent superior be answerable for damages, jointly and severally with his subordinates, to the person whose constitutional rights and liberties have been violated?

Respondents contend that the doctrine of respondent superior is applicable to the case. We agree. The doctrine of respondent superior has been generally limited in its application to principal and agent or to master and servant (i.e. employer and employee) relationship. No such relationship exists between superior officers of the military and their subordinates.

Be that as it may, however, the decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person 'directly' or "indirectly" responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party.

By this provision, the principle of accountability of public officials under the Constitution 5 acquires added meaning and asgilrnes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be go naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no ones terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors.

In the case at bar, the trial court dropped defendants General Fabian Ver, Col. Fidel Singson, Col. Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col. Galileo Kintanar, Col. Panfilo Lacson, Capt. Danilo Pizarro, lst Lt. Pedro Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from the acts of their subordinates. Only Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba were kept as defendants on the ground that they alone 'have been specifically mentioned and Identified to have allegedly caused injuries on the persons of some of the plaintiff which acts of alleged physical violence constitute a delict or wrong that gave rise to a

cause of action. But such finding is not supported by the record, nor is it in accord with law and jurisprudence.

Firstly, it is wrong to at the plaintiffs' action for damages 5 Section 1, Article 19. to 'acts of alleged physical violence" which constituted delict or wrong. Article 32 clearly specifies as actionable the act of violating or in any manner impeding or impairing any of the constitutional rights and liberties enumerated therein, among others —

1. Freedom from arbitrary arrest or illegal detention;

2. The right against deprivation of property without due process of law;

3. The right to be secure in one's person, house, papers and effects against unreasonable searches and seizures;

4. The privacy of communication and correspondence;

5. Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make a confession, except when the person confessing becomes a state witness.

The complaint in this litigation alleges facts showing with abundant clarity and details, how plaintiffs' constitutional rights and liberties mentioned in Article 32 of the Civil Code were violated and impaired by defendants. The complaint speaks of, among others, searches made without search warrants or based on irregularly issued or substantially defective warrants; seizures and confiscation, without proper receipts, of cash and personal effects belonging to plaintiffs and other items of property which were not subversive and illegal nor covered by the search warrants; arrest and detention of plaintiffs without warrant or under irregular, improper and illegal circumstances; detention of plaintiffs at several undisclosed places of 'safehouses" where they were kept incommunicado and subjected to physical and psychological torture and other inhuman, degrading and brutal treatment for the purpose of extracting incriminatory statements. The complaint contains a detailed recital of abuses perpetrated upon the plaintiffs violative of their constitutional rights.

Secondly, neither can it be said that only those shown to have participated "directly" should be held liable. Article 32 of the Civil Code encompasses within the ambit of its provisions those directly, as well as indirectly, responsible for its violation.

The responsibility of the defendants, whether direct or indirect, is amply set forth in the complaint. It is well established in our law and jurisprudence that a motion to dismiss on the ground that the complaint states no cause of action must be based on what appears on the face of the complaint. 6 To determine the sufficiency of the cause of action, only the facts alleged in the complaint, and no others, should be considered. 7 For this purpose, the motion to dismiss must hypothetically admit the truth of the facts alleged in the complaint. 8

Applying this test, it is difficult to justify the trial court's ruling, dismissing for lack of cause of action the complaint against all the defendants, except Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba. The complaint contained allegations against all the defendants which, if admitted hypothetically, would be sufficient to establish a cause or causes of action against all of them under Article 32 of the Civil Code.

This brings us to the last issue. Was the trial court correct in dismissing the complaint with respect to plaintiffs Rogelio Aberca, Danilo de la Puente, Marco Palo, Alan Jazminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin, on the basis of the alleged failure of said plaintiffs to file a motion for reconsideration of the court's resolution of November 8, 1983, granting the respondent's motion to dismiss?

It is undisputed that a timely motion to set aside said order of November 8, 1983 was filed by 'plaintiffs, through counsel. True, the motion was signed only by Atty. Joker P. Arroyo, counsel for Benjamin Sesgulido; Atty. Antonio Rosales, counsel for Edwin Lopez and Manuel Martin Guzman; Atty. Pedro B. Ella, Jr., counsel for Nestor Bodino and Carlos Palma; Atty. Arno V. Sanidad, counsel for Arturo Tabara; Atty. Felicitas S. Aquino, counsel for Joseph Olayer; and Atty. Alexander Padilla, counsel for Rodolfo Benosa.

But the body of the motion itself clearly indicated that the motion was filed on behalf of all the plaintiffs. And this must have been also the understanding of defendants' counsel himself for when he filed his comment on the motion, he furnished copies thereof, not just to the lawyers who signed the motion, but to all the lawyers of plaintiffs, to wit: Attys. Jose Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Augusto Sanchez, Antonio Rosales, Pedro Efla Jr., Arno Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas S. Aquino.

In filing the motion to set aside the resolution of November 8, 1983, the signing attorneys did so on behalf of all the plaintiff. They needed no specific authority to do that. The authority of an attorney to appear for and in behalf of a party can be assumed, unless questioned or challenged by the adverse party or the party concerned, which was never done in this case. Thus, it was grave abuse on the part of respondent judge to take it upon himself to rule that the motion to set aside the order of November 8, 1953 dismissing the complaint was filed only by some of the plaintiffs, when by its very language it was clearly intended to be filed by and for the benefit of all of them. It is obvious that the respondent judge took umbrage under a contrived technicality to declare that the dismissal of the complaint had already become final with respect to some of the plaintiffs whose lawyers did not sign the motion for reconsideration. Such action tainted with legal infirmity cannot be sanctioned.

Accordingly, we grant the petition and annul and set aside the resolution of the respondent court, dated November 8, 1983, its order dated May 11, 1984 and its resolution dated September 21, 1984. Let the case be remanded to the respondent court for further proceedings. With costs against private respondents.

SO ORDERED.

Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.

Gutierrez, Jr., J., concur in the result.

Padilla, J., took no part.

Separate Opinions

TEEHANKEE, C.J., concurring:

The Court's judgment at bar makes clear that all persons, be they public officers or employees, or members of the military or police force or private individuals who directly or indirectly obstruct, defeat, violate or in any manner impede or impair the constitutional rights and civil liberties of another person, stand liable and may be sued in court for damages as provided in Art. 32 of the Civil Code.

The case at bar specifically upholds and reinstates the civil action for damages filed in the court below by petitioners-plaintiffs for illegal searches conducted by military personnel and other violations of their constitutional rights and liberties. At the same time it rejects the automatic application of the principle of respondeat superior or command responsibility that would hold a superior officer jointly and severally accountable for damages, including moral and exemplary, with his subordinates who committed such transgressions. However, the judgment gives the caveat that a superior officer must not abdicate his duty to properly supervise his subordinates for he runs the risk of being held responsible for gross negligence and of being held under the cited provision of the Civil Code as indirectly and solidarily accountable with the tortfeasor.

The rationale for this rule of law was best expressed by Brandeis in wise: "In a government of laws, existence of the government be imperilled following it fails to observe the law scrupulously. Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the government becomes the law breaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy. To declare that in the administration of criminal law the end justifies the means ... would bring terrible retribution." 1

As the writer stress in Hildawa vs. Enrile 2 Which Was an action to enjoin the operations of the dreaded secret marshals during the past regime, 'In a democratic state, you don't stoop to the level of criminals. If we stoop to what they do, then we're no better than they ... there would be no difference. ... The Supreme Court stands as the guarantor of the Constitutional and human rights of all persons within its jurisdiction and cannot abdicate its basic role under the Constitution that these rights be respected and enforced. The spirit and letter of the Constitution negates as contrary to the basic precepts of human rights and freedom that a person's life be snuffed out without due process in a split second even if he is caught in flagrante delicto — unless it was caned for as an act of self-defense by the law agents using reasonable means to prevent or repel an unlawful aggression on the part of the deceased.

Needless to say, the criminal acts of the "Sparrow Units" or death squads of the NPA which have infutrated the cities and suburbs and performed their despicable killings of innocent civilians and military and police officers constitute an equally perverse violation of the sanctity of human life and must be severely condemned by all who adhere tothe Rule of the Law.

It need only be pointed out that one of the first acts of the present government under President Corazon C. Aquino after her assumption of office in February, 1986 was to file our government's ratification and access to all human rights instruments adopted under the auspices of the United Nations, declaring thereby the government's commitment to observe the precepts of the United Nations Charter and the Universal Declaration of Human Rights. More than this, pursuant to our Constitution which the people decisively ratified on February 2, 1987, the independent office of the Commission on Human Rights hats been created and organized with ample powers to investigate human rights violations and take remedial measures against all such violations by the military as well as by the civilian groups.

Separate Opinions

TEEHANKEE, C.J., concurring:

The Court's judgment at bar makes clear that all persons, be they public officers or employees, or members of the military or police force or private individuals who directly or indirectly obstruct, defeat, violate or in any manner impede or impair the constitutional rights and civil liberties of another person, stand liable and may be sued in court for damages as provided in Art. 32 of the Civil Code.

The case at bar specifically upholds and reinstates the civil action for damages filed in the court below by petitioners-plaintiffs for illegal searches conducted by military personnel and other violations of their constitutional rights and liberties. At the same time it rejects the automatic application of the principle of respondeat superior or command responsibility that would hold a superior officer jointly and severally accountable for damages, including moral and exemplary, with his subordinates who committed such transgressions. However, the judgment gives the caveat that a superior officer must not abdicate his duty to properly supervise his subordinates for he runs the risk of being held responsible for gross negligence and of being held under the cited provision of the Civil Code as indirectly and solidarily accountable with the tortfeasor.

The rationale for this rule of law was best expressed by Brandeis in wise: "In a government of laws, existence of the government be imperilled following it fails to observe the law scrupulously. Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the government becomes the law breaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy. To declare that in the administration of criminal law the end justifies the means ... would bring terrible retribution." 1

As the writer stress in Hildawa vs. Enrile 2 Which Was an action to enjoin the operations of the dreaded secret marshals during the past regime, 'In a democratic state, you don't stoop to the level of criminals. If we stoop to what they do, then we're no better than they ... there would be no difference. ... The Supreme Court stands as the guarantor of the Constitutional and human rights of all persons within its jurisdiction and cannot abdicate its basic role under the Constitution that these rights be respected and enforced. The spirit and letter of the Constitution negates as contrary to the basic precepts of human rights and freedom that a person's life be snuffed out without due process in a split second even if he is caught in flagrante delicto — unless it was caned for as an act of self-defense by the law agents using reasonable means to prevent or repel an unlawful aggression on the part of the deceased.

Needless to say, the criminal acts of the "Sparrow Units" or death squads of the NPA which have infutrated the cities and suburbs and performed their despicable killings of innocent civilians and military and police officers constitute an equally perverse violation of the sanctity of human life and must be severely condemned by all who adhere tothe Rule of the Law.

It need only be pointed out that one of the first acts of the present government under President Corazon C. Aquino after her assumption of office in February, 1986 was to file our government's ratification and access to all human rights instruments adopted under the auspices of the United Nations, declaring thereby the government's commitment to observe the precepts of the United Nations Charter and the Universal Declaration of Human Rights. More than this, pursuant to our Constitution which the people decisively ratified on February 2, 1987, the independent office of the Commission on Human Rights hats been created and organized with ample powers to investigate human rights violations and take remedial measures against all such violations by the military as well as by the civilian groups.

Secretary of National Defense v. Manalo

G.R. No. 180906

07 October 2008

PONENTE: Puno, C.J.

PARTIES:

PETITIONERS: SECRETARY OF NATIONAL DEFENSE and CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES

RESPONDENTS: RAYMOND MANALO and REYNALDO MANALO

NATURE: Petition for Review on Certiorari

PROCEDURAL BACKGROUND:

Supreme Court: Petition for Prohibition, Injunction, and Temporary Restraining Order

Supreme Court: Manifestation and Omnibus Motion to treat their Existing Petition as Amparo Petition

Court of Appeals: Upon order of the Supreme Court, the Court of Appeals summarily heard the Petition of Amparo. Thereafter, the Court of Appeals issued a judgment which is the subject of the present Petition for Review on Certiorari.

FACTS:

On 14 February 2006, at past noon, Raymond Manalo (hereafter referred to as “Raymond”) and Reynaldo Manalo (hereafter referred to as “Reynaldo”) were abducted by military men belonging to the Citizen Armed Forces Geographical Unit (CAFGU) on the suspicion that they were members and supporters of the New People’s Army (NPA). After eighteen (18) months of detention and torture, the brothers escaped on 13 August 2007.

On 23 August 2007, Raymond and Reynaldo filed a Petition for Prohibition, Injunction, and Temporary Restraining Order before the Supreme Court to stop the military officers and agents from depriving them of their right to liberty and other basic rights. In a Resolution dated 24 August 2007, the Supreme Court ordered the Secretary of the Department of National Defense and the Chief of Staff of the Armed Forces of the Philippines (AFP), their agents, representatives, or persons acting in their stead, and further enjoined them from causing the arrest of Raymond and Reynaldo. Forthwith,

they filed a Manifestation and Omnibus Motion to Treat Existing Petition as Amparo Petition, to Admit Supporting Affidavits, and to Grant Interim and Final Amparo Reliefs.

While the aforementioned case was pending, the Rule on the Writ of Amparo took effect on 24 October 2007. Raymond and Reynaldo subsequently filed a manifestation and omnibus motion to treat their existing peti tion as amparo petition.

On 25 October 2007, the Supreme Court resolved to treat the 23 August 2007 Petition as a petition under the Amparo Rule. The Supreme Court likewise granted the Writ of Amparo and remanded the petition to the Court of Appeals to conduct the summary hearing and decide the petition.

On 26 December 2007, the Court of Appeals granted the privilege of the writ of amparo. The Court of Appeals ordered the Secretary of National Defense and the Chief of Staff of the AFP to furnish the Manalos and the court with all official and unofficial investigation reports as to the custody of Raymond and Reynaldo, confirm the present places of official assignment of two military officials involved, and produce all medical reports and records of Raymond and Reynaldo while under military custody.

Aggrieved, the Secretary of National Defense and the Chief of Staff of the AFP filed an appeal with the Supreme Court.

PERTINENT ISSUES:

Whether or not statements from the victims themselves is sufficient for amparo petitions.

Whether or not actual deprivation of liberty is necessary for the right to security of a person may be invoked.

ANSWER:

It depends on the credibility and candidness of the victims in their statements.

No.

SUPREME COURT RULINGS:

1. ON EVIDENCE REQUIRED ON AMPARO PETITIONS

Effect of the nature of enforced disappearance and torture to the quantum of evidence required – With the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds that

much of the information and evidence of the ordeal will come from the victims themselves, and the veracity of their account will depend on their credibility and candidness in their written and/or oral statements. Their statements can be corroborated by other evidence such as physical evidence left by the torture they suffered or landmarks they can identify in the places where they were detained. Where powerful military officers are implicated, the hesitation of witnesses to surface and testify against them comes as no surprise.

2. ON RIGHT TO SECURITY AS A GROUND FOR AMPARO PETITION

Permutations of the Right to Security – A closer look at the right to security of person would yield various permutations of the exercise of this right. First, the right to security of person is “freedom from fear.” In its “whereas” clauses, the Universal Declaration of Human Rights (UDHR) enunciates that “a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.” Some scholars postulate that “freedom from fear” is not only an aspirational principle, but essentially an individual international human right. It is the “right to security of person” as the word “security” itself means “freedom from fear.” Article 3 of the UDHR provides, viz: Everyone has the right to life, liberty and security of person.

xxx

Second, the right to security of person is a guarantee of bodily and psychological integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one’s body cannot be searched or invaded without a search warrant. Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person.

xxx

Third, the right to security of person is a guarantee of protection of one’s rights by the government. In the context of the writ of amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State “guarantees full respect for human rights” under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice.

Freedom from fear as a right – In the context of Section 1 of the Amparo Rule, “freedom from fear” is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from being baseless to well-founded as people react differently. The degree of fear can vary from one person to another with the variation of the prolificacy of their imagination, strength of character or past experience with the stimulus. Thus, in the amparo context, it is more correct to say that the “right to security” is actually the “freedom from threat.” Viewed in this light, the “threatened with violation” Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision.

Deprivation of liberty is not necessary before the right to security may be invoked – While the right to security of person appears in conjunction with the right to liberty under Article 9, the Committee has ruled that the right to security of person can exist independently of the right to liberty. In other words, there need not necessarily be a deprivation of liberty for the right to security of person to be invoked.

DISPOSITIVE:

The Supreme Court dismissed the petition and affirmed the Decision of the Court of Appeals dated 26 December 2007.

HUMAN RIGHTS COMMITTEE

Fortyninth session

VIEWS

Communication No. 469/1991

Submitted by: Charles Chitat Ng [represented by counsel]

Victim: The author

State party: Canada

Date of communication: 25 September 1991 (initial submission)

Documentation references:

Prior decisions

- Special Rapporteur's combined rule 86/rule 91 decision, transmitted to the State party on 26 September 1991 (not issued in document form)

- CCPR/C/46/D/469/1991 (Decision to join consideration of admissibility and merits, dated 28 October 1992)

Date of adoption of Views: 5 November 1993

On 5 November 1993, the Human Rights Committee adopted its Views under article 5, paragraph 4, of the Optional Protocol, in respect of communication No. 469/1991. The text of the Views is appended to the present document.

[Annex]

ANNEX

Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights

- Forty-ninth session -

concerning

Communication No. 469/1991 */

Submitted by: Charles Chitat Ng

[represented by counsel]

Victim: The author

State party: Canada

Date of communication: 25 September 1991 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 5 November 1993,

Having concluded its consideration of communication No. 469/1991, submitted to the Human Rights Committee on behalf of Mr. Charles Chitat Ng under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication, his counsel and the State party,

Adopts its Views under article 5, paragraph 4, of the Optional Protocol.

The facts as submitted by the author:

1. The author of the communication is Charles Chitat Ng, a British subject, born on 24 December 1960 in Hong Kong, and resident of the United States of America, at the time of his submission detained in a penitentiary in Alberta, Canada, and on 26 September 1991 extradited to the United States. He claims to be a victim of a violation of his human rights by Canada because of his extradition. He is represented by counsel.

2.1 The author was arrested, charged and convicted, in 1985, in Calgary, Alberta, following an attempted store theft and shooting of a security guard. In February 1987, the United States formally requested the author's extradition to stand trial in California on 19 criminal counts, including kidnapping and 12 murders, committed in 1984 and 1985. If convicted, the author could face the death penalty.

2.2 In November 1988, a judge of the Alberta Court of Queen's Bench ordered the author's extradition. In February 1989 the author's habeas corpus application was denied, and on 31 August 1989 the Supreme Court of Canada refused the author leave to appeal.

2.3 Article 6 of the Extradition Treaty between Canada and the United States provides:

"When the offence for which extradition is requested is punishable by death under the laws of the requesting State and the laws of the requested State do not permit such punishment for that offence, extradition may be refused unless the requesting State provides such assurances as the requested State considers sufficient that the death penalty shall not be imposed or, if imposed, shall not be executed."

Canada abolished the death penalty in 1976, except for certain military offences.

2.4 The power to seek assurances that the death penalty will not be imposed is discretionary, and is conferred on the Minister of Justice pursuant to section 25 of the Extradition Act. In October 1989, the Minister of Justice decided not to seek these assurances.

2.5 The author subsequently filed an application for review of the Minister's decision with the Federal Court. On 8 June 1990, the issues in the case were referred to the Supreme Court of Canada, which rendered judgement on 26 September 1991. It found that the author's extradition without assurances as to the imposition of the death penalty did not contravene Canada's constitutional protection for human rights nor the standards of the international community. The author was extradited on the same day.

The complaint:

3. The author claims that the decision to extradite him violates articles 6, 7, 9, 10, 14 and 26 of the Covenant. He submits that the execution of the death sentence by gas asphyxiation, as provided for under California statutes, constitutes cruel and inhuman treatment or punishment per se, and that the conditions on death row are cruel, inhuman and degrading. He further alleges that the judicial procedures in California, in as much as they relate specifically to capital punishment, do not meet basic requirements of justice. In this context, the author alleges that in the United States racial bias influences the imposition of the death penalty.

The State party's initial observations and the author's comments:

4.1 The State party submits that the communication is inadmissible ratione personae, loci and materiae.

4.2 It is argued that the author cannot be considered a victim within the meaning of the Optional Protocol, since his allegations are derived from assumptions about possible future events, which may not materialize and which are dependent on the law and actions of the authorities of the United States. The State party refers in this connection to the Committee's Views in communication No. 61/1979 [ Leo Hertzberg et al. v. Finland , Views adopted on 2 April 1982, paragraph 9.3.] , where it was found that the Committee "has only been entrusted with the mandate of examining whether an individual has suffered an actual violation of his rights. It cannot review in the abstract whether national legislation contravenes the Covenant".

4.3 The State party indicates that the author's allegations concern the penal law and judicial system of a country other than Canada. It refers to the Committee's inadmissibility decision in communication No. 217/1986 [ H.v.d.P. v. the Netherlands , declared inadmissible on 8 April 1987, paragraph 3.2.] , where the Committee observed "that it can only receive and consider communications in respect of claims that come under the jurisdiction of a State party to the

Covenant". The State party submits that the Covenant does not impose responsibility upon a State for eventualities over which it has no jurisdiction.

4.4 Moreover, it is submitted that the communication should be declared inadmissible as incompatible with the provisions of the Covenant, since the Covenant does not provide for a right not to be extradited. In this connection, the State party quotes from the Committee's inadmissibility decision in communication No. 117/1981 [ M.A. v. Italy , declared inadmissible on 10 April 1984, paragraph 13.4.] : "There is no provision of the Covenant making it unlawful for a State party to seek extradition of a person from another country." It further argues that even if extradition could be found to fall within the scope of protection of the Covenant in exceptional circumstances, these circumstances are not present in the instant case.

4.5 The State party further refers to the United Nations Model Treaty on Extradition [ Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 1990; see General Assembly resolution 45/116, annex.] , which clearly contemplates the possibility ofextradition without conditions by providing for discretion in obtaining assurances regarding the death penalty in the same fashion as is found in article 6 of the CanadaUnited States Extradition Treaty. It concludes that interference with the surrender of a fugitive pursuant to legitimate requests from a treaty partner would defeat the principles and objects of extradition treaties and would entail undesirable consequences for States refusing these legitimate requests. In this context, the State party points out that its long, unprotected border with the United States would make it an attractive haven for fugitives from United States justice. If these fugitives could not be extradited because of the theoretical possibility of the death penalty, they would be effectively irremovable and would have to be allowed to remain in the country, unpunished and posing a threat to the safety and security of the inhabitants.

4.6 The State party finally submits that the author has failed to substantiate his allegations that the treatment he may face in the United States will violate his rights under the Covenant. In this connection, the State party points out that the imposition of the death penalty is not per se unlawful under the Covenant. As regards the delay between the imposition and the execution of the death sentence, the State party submits that it is difficult to see how a period of detention during which a convicted prisoner would pursue all avenues of appeal, can be held to constitute a violation of the Covenant.

5.1 In his comments on the State party's submission, counsel submits that the author is and was himself actually and personally affected by the decision of the State party to extradite him and that the communication is therefore admissible ratione personae. In this context, he refers to the Committee's Views in communication No. 35/1978 [ S. Aumeeruddy-Cziffra et al. v. Mauritius , Views adopted on 9 April 1981, paragraph 9.2.] , and argues that an individual can claim to be a victim within the meaning of the Optional Protocol if the laws, practices, actions or decisions of a State party raise a real risk of violation of rights set forth in the Covenant.

5.2 Counsel further argues that, since the decision complained of is one made by Canadian authorities while the author was subject to Canadian jurisdiction, the communication is admissible ratione loci. In this connection, he refers to the Committee's Views in communication No. 110/1981 [ Antonio Viana Acosta v. Uruguay , Views adopted on 29 March

1984, paragraph 6.] , where it was held that article 1 of the Covenant was "clearly intended to apply to individuals subject to the jurisdiction of the State party concerned at the time of the alleged violation of the Covenant" (emphasis added).

5.3 Counsel finally stresses that the author does not claim a rightnot to be extradited; he only claims that he should not have been surrendered without assurances that the death penalty would not be imposed. He submits that the communication is therefore compatible with the provisions of the Covenant. He refers in this context to the Committee's Views on communication No. 107/1981 [ Almeida de Quinteros v. Uruguay , Views adopted on 21 July 1983, paragraph 14.] , where the Committee found that anguish and stress can give rise to a breach of the Covenant; he submits that this finding is also applicable in the instant case.

The Committee's admissibility considerations and decision:

6.1 During its 46th session in October 1992, the Committee considered the admissibility of the communication. It observed that extradition as such is outside the scope of application of the Covenant [ Communication No. 117/1981 ( M.A. v. Italy ), paragraph 13.4: "There is no provision of the Covenant making it unlawful for a State party to seek extradition of a person from another country".] , but that a State party's obligations in relation to a matter itself outside the scope of the Covenant may still be engaged by reference to other provisions of the Covenant [ Aumeeruddy-Cziffra et al. v. Mauritius (No. 35/1978, Views adopted on 9 April 1981) and Torres v. Finland (No. 291/1988, Views adopted on 2 April 1990).] . The Committee noted that the author does not claim that extradition as such violates the Covenant, but rather that the particular circumstances related to the effects of his extradition would raise issues under specific provisions of the Covenant. Accordingly, the Committee found that the communication was thus not excluded ratione materiae.

6.2 The Committee considered the contention of the State party that the claim is inadmissible ratione loci. Article 2 of the Covenant requires States parties to guarantee the rights of persons within their jurisdiction. If a person is lawfully expelled or extradited, the State party concerned will not generally have responsibility under the Covenant for any violations of that person's rights that may later occur in the other jurisdiction. In that sense a State party clearly is not required to guarantee the rights of persons within another jurisdiction. However, if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that this person's rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant. That follows from the fact that a State party's duty under article 2 of the Covenant would be negated by the handing over of a person to another State (whether a State party to the Covenant or not) where treatment contrary to the Covenant is certain or is the very purpose of the handing over. For example, a State partywould itself be in violation of the Covenant if it handed over a person to another State in circumstances in which it was foreseeable that torture would take place. The foreseeability of the consequence would mean that there was a present violation by the State party, even though the consequence would not occur until later on.

6.3 The Committee therefore considered itself, in principle, competent to examine whether the State party is in violation of the Covenant by virtue of its decision to extradite the author under the Extradition Treaty of 1976 between the United States and Canada, and the Extradition Act of 1985.

6.4 The Committee observed that pursuant to article 1 of the Optional Protocol the Committee may only receive and consider communications from individuals subject to the jurisdiction of a State party to the Covenant and to the Optional Protocol "who claim to be victims of a violation by that State party of any of their rights set forth in the Covenant". It considered that in the instant case, only the consideration on the merits of the circumstances under which the extradition procedure, and all its effects, occurred, would enable the Committee to determine whether the author is a victim within the meaning of article 1 of the Optional Protocol. Accordingly, the Committee found it appropriate to consider this issue, which concerned the admissibility of the communication, together with the examination of the merits of the case.

7. On 28 October 1992, the Human Rights Committee therefore decided to join the question of whether the author was a victim within the meaning of article 1 of the Optional Protocol to the consideration of the merits. The Committee expressed its regret that the State party had not acceded to the Committee's request under rule 86, to stay extradition of the author.

The State party's further submission on the admissibility and the merits of the communication:

8.1 In its submission, dated 14 May 1993, the State party elaborates on the extradition process in general, on the Canada-United States extradition relationship and on the specifics of the present case. It also submits comments with respect to the admissibility of the communication, in particular with respect to article 1 of the Optional Protocol.

8.2 The State party recalls that "extradition exists to contribute to the safety of the citizens and residents of States. Dangerous criminal offenders seeking a safe haven from prosecution or punishment are removed to face justice in the State in which their crimes were committed. Extradition furthers international cooperation in criminal justice matters and strengthens domestic law enforcement. It is meant to be a straightforward and expeditious process. Extradition seeks to balance the rights of fugitives with the need for the protection of the residents of the two States parties to any given extradition treaty.The extradition relationship between Canada and the United States dates back to 1794.... In 1842, the United States and Great Britain entered into the Ashburton-Webster Treaty which contained articles governing the mutual surrender of criminals.... This treaty remained in force until the present Canada-United States Extradition Treaty of 1976."

8.3 With regard to the principle aut dedere aut judicare the State party explains that while some States can prosecute persons for crimes committed in other jurisdictions in which their own nationals are either the offender or the victim, other States, such as Canada and certain other States in the common law tradition, cannot.

8.4 Extradition in Canada is governed by the Extradition Act and the terms of the applicable treaty. The Canadian Charter of Rights and Freedoms, which forms part of the constitution of Canada and embodies many of the rights protected by the Covenant, applies. Under Canadian law extradition is a two step process, the first involving a hearing at which a judge considers whether a factual and legal basis for extradition exists. The person sought for extradition may submit evidence at the judicial hearing. If the judge is satisfied on the evidence that a legal basis for extradition exists, the fugitive is ordered committed to await surrender to the requesting State. Judicial review of a warrant of committal to await surrender can be sought by means of an application for a writ of habeas corpus in a provincial court. A decision of the judge on the habeas corpus application can be appealed to the provincial court of appeal and then, with leave, to the Supreme Court of Canada. The second step in the extradition process begins following the exhaustion of the appeals in the judicial phase. The Minister of Justice is charged with the responsibility of deciding whether to surrender the person sought for extradition. The fugitive may make written submissions to the Minister and counsel for the fugitive, with leave, may appear before the Minister to present oral argument. In coming to a decision on surrender, the Minister considers a complete record of the case from the judicial phase, together with any written and oral submissions from the fugitive, and while the Minister's decision is discretionary, the discretion is circumscribed by law. The decision is based upon a consideration of many factors, including Canada's obligations under the applicable treaty of extradition, facts particular to the person and the nature of the crime for which extradition is sought. In addition, the Minister must consider the terms of the Canadian Charter of Rights and Freedoms and the various instruments, including the Covenant, which outline Canada's international human rights obligations. Finally, a fugitive may seek judicial review of the Minister's decision by a provincial court and appeal a warrant of surrender, with leave, up to the Supreme Court of Canada. In interpreting Canada's human rights obligations under the Canadian Charter, the Supreme Court of Canada is guided by international instruments to which Canada is a party, including the Covenant.

8.5 With regard to surrender in capital cases, the Minister of Justice decides whether or not to request assurances to the effect that the death penalty should not be imposed or carried out on the basis of anexamination of the particular facts of each case. The Canada-United States Extradition Treaty was not intended to make the seeking of assurances a routine occurrence but only in circumstances where the particular facts of the case warrant a special exercise of discretion.

8.6 With regard to the abolition of the death penalty in Canada, the State party notes that "certain States within the international community, including the United States, continue to impose the death penalty. The Government of Canada does not use extradition as a vehicle for imposing its concepts of criminal law policy on other States. By seeking assurances on a routine basis, in the absence of exceptional circumstances, Canada would be dictating to the requesting State, in this case the United States, how it should punish its criminal law offenders. The Government of Canada contends that this would be an unwarranted interference with the internal affairs of another State. The Government of Canada reserves the right ... to refuse to extradite without assurances. This right is hold in reserve for use only where exceptional circumstances exist. In the view of the Government of Canada, it may be that evidence showing that a fugitive would face certain of foreseeable violations of the Covenant would be one example of exceptional circumstances which would warrant the special measure of seeking assurances under article 6. However, the evidence presented by Ng during the extradition process in Canada (which evidence has been submitted by counsel for Ng in this communication) does not support the allegations that the use of the death penalty in the United States generally, or in the State of California in particular, violates the Covenant."

8.7 The State party also refers to article 4 of the United Nations Model Treaty on Extradition, which lists optional, but not mandatory, grounds for refusing extradition: "(d) If the offence for which extradition is requested carries the death penalty under the law of the Requesting State, unless the State gives such assurance as the Requested State considers sufficient that the death penalty will not be imposed or, if imposed, will not be carried out." Similarly, article 6 of the Canada-United States Extradition Treaty provides that the decision with respect to obtaining assurances regarding the death penalty is discretionary.

8.8 With regard to the link between extradition and the protection of society, the State party submits that Canada and the United States share a 4,800 kilometre unguarded border, that many fugitives from United States justice cross that border into Canada and that in the last twelve years there has been a steadily increasing number of extradition requests from the United States. In 1980 there were 29 such requests; by 1992 the number had increased to 88. "Requests involving death penalty cases are a new and growing problem for Canada ... a policy of routinely seeking assurances under article 6 of the Canada-United States Extradition Treaty will encourage even more criminal law offenders, especially those guilty of the most serious crimes, to flee the United States for Canada. Canada does not wish to become a haven for the most wanted and dangerous criminals from the United States. If the Covenant fetters Canada's discretion not to seek assurances,increasing numbers of criminals may come to Canada for the purpose of securing immunity from capital punishment."

9.1 With regard to Mr. Ng's case, the State party recalls that he challenged the warrant of committal to await surrender in accordance with the extradition process outlined above, and that his counsel made written and oral submissions to the Minister to seek assurances that the death penalty would not be imposed. He argued that extradition to face the death penalty would offend his rights under section 7 (comparable to articles 6 and 9 of the Covenant) and section 12 (comparable to article 7 of the Covenant) of the Canadian Charter of Rights and Freedoms. The Supreme Court heard Mr. Ng's case at the same time as the appeal by Mr. Kindler, an American citizen who also faced extradition to the United States on a capital charge [ See communication No. 470/1991, Kindler v. Canada , Views adopted on 30 July 1993.] , and decided that their extradition without assurances would not violate Canada's human rights obligations.

9.2 With regard to the admissibility of the communication, the State party once more reaffirms that the communication should be declared inadmissible ratione materiae because extradition per se is beyond the scope of the Covenant. A review of the travaux préparatoires reveals that the drafters of the Covenant specifically considered and rejected a proposal to deal with extradition in the Covenant. In the light of the negotiating history of the Covenant, the State party submits that "a decision to extend the Covenant to extradition treaties or to individual decisions pursuant thereto, would stretch the principles governing the interpretation of human rights instruments in unreasonable and unacceptable ways. It would be unreasonable because the principles of interpretation which recognize that human rights instruments are living documents and that human rights evolve over time cannot be employed in the face of express limits to the application of a given document. The absence of extradition from the articles of the Covenant when read with the intention of the drafters must be taken as an express limitation."

9.3 The State party further contends that Mr. Ng has not submitted any evidence that would suggest that he was a victim of any violation in Canada of rights set forth in the Covenant. In this context, the State party notes that the author merely claims that his extradition to the United States was in violation of the Covenant, because he faces charges in the

United States which may lead to his being sentenced to death if found guilty. The State party submits that it satisfied itself that the foreseeable treatment of Mr. Ng in the United States would not violate his rights under the Covenant.

10.1 On the merits, the State party stresses that Mr. Ng enjoyed a full hearing on all matters concerning his extradition to face the death penalty. "If it can be said that the Covenant applies to extradition at all ... an extraditing State could be said to be in violation of theCovenant only where it returned a fugitive to certain or foreseeable treatment or punishment, or to judicial procedures which in themselves would be a violation of the Covenant." In the present case, the State party submits that since Mr. Ng's trial has not yet begun, it was not reasonably foreseeable that he would be held in conditions of incarceration that would violate rights under the Covenant or that he would in fact be put to death. The State party points out that if convicted and sentenced to death, Mr. Ng is entitled to many avenues of appeal in the United States and that he can petition for clemency; furthermore, he is entitled to challenge in the courts of the United States the conditions under which he is held while his appeals with respect to the death penalty are outstanding.

10.2 With regard to the imposition of the death penalty in the United States, the State party recalls that article 6 of the Covenant did not abolish capital punishment under international law:

"In countries which have not abolished the death penalty, the sentence of death may still be imposed for the most serious crimes in accordance with law in force at the time of the commission of the crime, not contrary to the provisions of the Covenant and not contrary to the Convention on the Prevention and Punishment of the Crime of Genocide. The death penalty can only be carried out pursuant to a final judgment rendered by a competent court. It may be that Canada would be in violation of the Covenant if it extradited a person to face the possible imposition of the death penalty where it was reasonably foreseeable that the requesting State would impose the death penalty under circumstances which would violate article 6. That is, it may be that an extraditing State would be violating the Covenant to return a fugitive to a State which imposed the death penalty for other than the most serious crimes, or for actions which are not contrary to a law in force at the time of commission, or which carried out the death penalty in the absence of or contrary to the final judgment of a competent court. Such are not the facts here ... Ng did not place any evidence before the Canadian courts, before the Minister of Justice or before the Committee which would suggest that the United States was acting contrary to the stringent criteria established by article 6 when it sought his extradition from Canada.... The Government of Canada, in the person of the Minister of Justice, was satisfied at the time the order of surrender was issued that if Ng is convicted and executed in the State of California, this will be within the conditions expressly prescribed by article 6 of the Covenant."

10.3 Finally, the State party observes that it is "in a difficult position attempting to defend the criminal justice system of the United States before the Committee. It contends that the Optional Protocol process was never intended to place a State in the position of having to defend the laws or practices of another State before the Committee."

10.4 With respect to the issue whether the death penalty violates article 7 of the Covenant, the State party submits that "article 7cannot be read or interpreted without reference to article 6. The Covenant must be read as a whole and its articles as being in harmony.... It may be that certain forms of execution are contrary to article 7. Torturing a person to death would seem to fall into this category as torture is a violation of article 7. Other forms of execution may be in

violation of the Covenant because they are cruel, inhuman or degrading. However, as the death penalty is permitted within the narrow parameters set by article 6, it must be that some methods of execution exist which would not violate article 7."

10.5 As to the method of execution, the State party submits that there is no indication that execution by cyanide gas asphyxiation, the chosen method in California, is contrary to the Covenant or to international law. It further submits that no specific circumstances exist in Mr. Ng's case which would lead to a different conclusion concerning the application of this method of execution to him; nor would execution by gas asphyxiation be in violation of the Safeguards Guaranteeing Protection of Those Facing the Death Penalty, adopted by the Economic and Social Council in Resolution 1984/50.

10.6 Concerning the "death row phenomenon", the State party submits that each case must be examined on its specific facts, including the conditions in the prison in which the prisoner would be held while on "death row", the age and the mental and physical condition of the prisoner subject to those conditions, the reasonably foreseeable length of time the prisoner would be subject to those conditions, the reasons underlying the length of time and the avenues, if any, for remedying unacceptable conditions. It is submitted that the Minister of Justice and the Canadian courts examined and weighed all the evidence submitted by Mr. Ng as to the conditions of incarceration of persons sentenced to death in California:

"The Minister of Justice ... was not convinced that the conditions of incarceration in the State of California, considered together with the facts personal to Ng, the element of delay and the continuing access to the courts in the State of California and to the Supreme Court of the United States, would violated Ng's rights under the Canadian Charter of Rights and Freedoms or under the Covenant. The Supreme Court of Canada upheld the Minister's decision in such a way as to make clear that the decision would not subject Ng to a violation of his rights under the Canadian Charter of Rights and Freedoms."

10.7 With respect to the question of the foreseeable length of time Mr. Ng would spend on death row if sentenced to death, "[t]here was no evidence before the Minister or the Canadian courts regarding any intentions of Ng to make full use of all avenues for judicial review in the United States of any potential sentence of death. There was no evidence that either the judicial system in the State of California or the Supreme Court of the United States had serious problems of backlogs or other forms of institutional delay which would likely be a continuing problem when and if Ng is held to await execution." In this connection, the State party refers to the Committee's jurisprudencethat prolonged judicial proceedings to not per se constitute cruel, inhuman or degrading treatment even if they can be a source of mental strain for the convicted prisoners [ Communications Nos. 210/1986 and 225/1987 ( Earl Pratt and Ivan Morgan v. Jamaica ), Views adopted on 6 April 1989; and Nos. 270/1988 and 271/1988 ( Randolph Barrett and Clyde Sutcliffe v. Jamaica ), Views adopted on 30 March 1992.] . The State party contends that it was not reasonably foreseeable on the facts presented by Mr. Ng during the extradition process in Canada that any possible period of prolonged detention upon his return to the United States would result in a violation of the Covenant, but that it was more likely that any prolonged detention on death row would be attributable to Mr. Ng pursuing the many avenues for judicial review in the United States.

Author's and counsel's comments on the State party's submission:

11.1 With regard to the extradition process in Canada, counsel points out that a fugitive is ordered committed to await surrender when the Judge is satisfied that a legal basis for extradition exists. Counsel emphasizes, however, that the extradition hearing is not a trial and the fugitive has no general right to cross-examine witnesses. The extradition judge does not weigh evidence against the fugitive with regard to the charges against him, but essentially determines whether a prima facie case exists. Because of this limited competence, no evidence can be called pertaining to the effects of the surrender on the fugitive.

11.2 As regards article 6 of the Extradition Treaty, counsel recalls that when the Treaty was signed in December 1971, the Canadian Criminal Code still provided for capital punishment in cases of murder, so that article 6 could have been invoked by either contracting State. Counsel submits that article 6 does not require assurances to be sought only in particularly "special" death penalty cases. He argues that the provision of the possibility to ask for assurances under article 6 of the Treaty implicitly acknowledges that offences punishable by death are to be dealt with differently, that different values and traditions with regard to the death penalty may be taken into account when deciding upon an extradition request, and that an actual demand for assurances will not be perceived by the other party as unwarranted interference with the internal affairs of the requesting State. In particular, article 6 of the Treaty is said to "... allow the requested State ... to maintain a consistent position: if the death penalty is rejected within its own borders ... it could negate any responsibility for exposing a fugitive through surrender, to the risk of imposition of that penalty or associated practices and procedures in the other State". It is further submitted that "it is very significant that the existence of the discretion embodied in article 6, in relation to the death penalty, enables the contracting parties to honour both their own domestic constitutions and their international obligations without violating their obligations under the bilateral Extradition Treaty".

11.3 With regard to the link between extradition and the protection of society, counsel notes that the number of requests for extradition by the United States in 1991 was 17, whereas the number in 1992 was 88. He recalls that at the end of 1991, the Extradition Treaty between the United States and Canada was amended to the effect that inter alia taxation offences became extraditable; ambiguities with regard to the rules of double jeopardy and reciprocity were removed. Counsel contends that the increase in extradition requests may be attributable to these 1991 amendments. In this context, he submits that at the time of the author's surrender, article 6 of the Treaty had been in force for 15 years, during which the Canadian Minister of Justice had been called upon to make no more than three decisions on whether or not to ask for assurances that the death penalty would not be imposed or executed. It is therefore submitted that the State party's fear that routine requests for assurances would lead to a flood of capital defendants is unsubstantiated. Counsel finally argues that it is inconceivable that the United States would have refused article 6 assurances had they been requested in the author's case.

11.4 As regards the extradition proceedings against Mr. Ng, counsel notes that his Federal Court action against the Minister's decision to extradite the author without seeking assurances never was decided upon by the Federal Court, but was referred to the Supreme Court to be decided together with Mr. Kindler's appeal. In this context, counsel notes that

the Supreme Court, when deciding that the author's extradition would not violate the Canadian constitution, failed to discuss criminal procedure in California or evidence adduced in relation to the death row phenomenon in California.

11.5 As to the State party's argument that extradition is beyond the scope of the Covenant, counsel argues that the travaux préparatoires do not show that the fundamental human rights set forth in the Covenant should never apply to extradition situations: "Reluctance to include an express provision on extradition because the Covenant should 'lay down general principles' or because it should lay down 'fundamental human rights and not rights which are corollaries thereof' or because extradition was 'too complicated to be included in a single article' simply does not bespeak an intention to narrow or stultify those 'general principles' or 'fundamental human rights' or evidence a consensus that these general principles should never apply to extradition situations."

11.6 Counsel further argues that, already during the extradition proceedings in Canada, the author suffered from anxiety because of the uncertainty of his fate, the possibility of being surrendered to California to face capital charges, the likelihood that he would be "facing an extremely hostile and high security reception by California law enforcement agencies", and that he must therefore be considered a victim within the meaning of article 1 of the Optional Protocol. In this context, the author submits that he was aware "that the California Supreme Court had, since 1990, become perhaps the most rigid court in the country in rejecting appeals from capital defendants".

11.7 The author refers to the Committee's decision of 28 October 1992 and submits that, in the circumstances of his case, the very purpose of his extradition without seeking assurances was to foreseeably expose him to the imposition of the death penalty and consequently to the death row phenomenon. In this connection, counsel submits that the author's extradition was sought upon charges which carry the death penalty, and that the prosecution in California never left any doubt that it would indeed seek the death penalty. He quotes the Assistant District Attorney in San Francisco as saying that: "there is sufficient evidence to convict and send Ng to the gas chamber if he is extradited...".

11.8 In this context, counsel quotes from the judgment of the European Court of Human Rights in the Soering case: "In the independent exercise of his discretion, the Commonwealth's attorney has himself decided to seek and persist in seeking the death penalty because the evidence, in his determination, supports such action. If the national authority with responsibility for prosecuting the offence takes such a firm stance, it is hardly open to the court to hold that there are no substantial grounds for believing that the applicant faces a real risk of being sentenced to death and hence experiencing the 'death row phenomenon'." Counsel submits that, at the time of extradition, it was foreseeable that the author would be sentenced to death in California and therefore be exposed to violations of the Covenant.

11.9 Counsel refers to several resolutions adopted by the General Assembly of the United Nations [ GA Res. 2857(XXVI), GA Res. 32/61, GA Res. 37/192.] in which the abolition of the death penalty was considered desirable. He further refers to Protocol 6 of the European Convention on Human Rights and to the Second Optional Protocol to the International Covenant on Civil and Political Rights: "[O]ver the last fifty years there has been a progressive and increasingly rapid evolution away from the death penalty. That evolution has led almost all Western democracies to abandon it". He argues that this development should be taken into account when interpreting the Covenant.

11.10 As to the method of execution in California, cyanide gas asphyxiation, counsel argues that it constitutes inhuman and degrading punishment within the meaning of article 7 of the Covenant. He notes that asphyxiation may take up to twelve minutes, during which condemned persons remain conscious, experience obvious pain and agony, drool and convulse and often soil themselves (reference is made to the execution of Robert F. Harris at San Quentin Prison in April 1992). Counsel further argues that, given the cruel character of this method of execution, a decision of Canada not to extradite without assurances would not constitute a breach of its Treaty obligations with the United States or undue interference with the latter's internal law and practices. Furthermore, counsel notes that cyanide gas execution is the sole method of execution in only three States in the United States (Arizona, Maryland and California) and that there is no evidence tosuggest that it is an approved means of carrying out judicially mandated executions elsewhere in the international community.

11.11 As to the death row phenomenon, the author emphasizes that he intends to make full use of all avenues of appeal and review in the United States, and that his intention was clear to the Canadian authorities during the extradition proceedings. As to the delay in criminal proceedings in California, counsel refers to estimates that it would require the Californian Supreme Court 16 years to clear the present backlog in hearing capital appeals. The author reiterates that the judgments of the Supreme Court in Canada did not in any detail discuss evidence pertaining to capital procedures in California, conditions on death row at San Quentin Prison or execution by cyanide gas, although he presented evidence relating to these issues to the Court. He refers to his Factum to the Supreme Court, in which it was stated: "At present, there are approximately two hundred and eighty inmates on death row at San Quentin. The cells in which inmates are housed afford little room for movement. Exercise is virtually impossible. When a condemned inmate approaches within three days of an execution date, he is placed under twenty-four hour guard in a range of three stripped cells. This can occur numerous times during the review and appeal process.... Opportunity for exercise is very limited in a small and crowded yard. Tension is consistently high and can escalate as execution dates approach. Secondary tension and anguish is experienced by some as appeal and execution dates approach for others. There is little opportunity to relieve tension. Programs are extremely limited. There are no educational programs. The prison does little more than warehouse the condemned for years pending execution.... Death row inmates have few visitors, and few financial resources, increasing their sense of isolation and hopelessness. Suicides occur and are attributable to the conditions, lack of programs, extremely inadequate psychiatric and physiological care and the tension, apprehension, depression and despair which permeate death row".

11.12 Finally, the author describes the circumstances of his present custodial regime at Folsom Prison, California, conditions which he submits would be similar if convicted. He submits that whereas the other detainees, all convicted criminals, have a proven track record of prison violence and gang affiliation, he, as a pre-trial detainee, is subjected to far more severe custodial restraints than any of them. Thus, when moving around in the prison, he is always put in full shackles (hand, waist and legs); forced to keep leg irons when showering; not allowed any social interaction with the other detainees; given less than five hours per week of yard exercise; and continuously facing hostility from the prison staff, in spite of good behaviour. Mr. Ng adds that unusual and very onerous conditions have been imposed on visits from his lawyers and others working on his case; direct face-to-face conversations with investigators have been made impossible, and conversations with them, conducted over the telephone or through a glass window, may be overheard by prison staff. These restrictions are said to seriously undermine the preparation of his trial defence. Moreover, his appearances in Calaveras County Court are accompanied by exceptional security measures: for example, during every court recess,the author is taken from the courtroom to an adjacent jury room and placed, still shackled, into a three foot

by four foot cage, specially built for the case. The author contends that no pre-trial detainee has ever been subjected to such drastic security measures in California.

11.13 The author concludes that the conditions of confinement have taken a heavy toll on him, physically and mentally. He has lost much weight, suffers from sleeplessness, anxiety, and other nervous disorders. This situation, he emphasizes, has foreclosed "progress toward preparation of a reasonably adequate defence".

Further submission from the author and State party's reaction thereto:

12.1 In an affidavit dated 5 June 1993, signed by Mr. Ng and submitted by his counsel, the author provides detailed information about the conditions of his confinement in Canada between 1985 and his extradition in September 1991. He notes that following his arrest on 6 July 1985, he was kept at the Calgary Remand Center in solitary confinement under a so-called "suicide watch", which meant 24 hour camera supervision and the placement of a guard outside the bars of the cell. He was only allowed one hour of exercise each day in the Center's "mini-yard", on "walk alone status" and accompanied by two guards. As the extradition process unfolded in Canada, the author was transferred to a prison in Edmonton; he complains about "drastically more severe custodial restrictions" from February 1987 to September 1991, which he links to the constant and escalating media coverage of the case. Prison guards allegedly began to tout him, he was kept in total isolation, and contact with visitors was restricted.

12.2 Throughout the period 1987-1991, the author was kept informed about progress in the extradition process; his lawyers informed him about the "formidable problems" he would face if returned to California for prosecution, as well as about the "increasingly hostile political and judicial climate in California towards capital defendants generally". As a result, he experienced extreme stress, sleeplessness and anxiety, all of which were heightened as the dates of judicial decisions in the extradition process approached.

12.3 Finally, the author complains about the deceptions committed by Canadian prison authorities following the release of the decision of the Canadian Supreme Court on 26 September 1991. Thus, instead of being allowed to contact counsel after the release of the decision and to obtain advice about the availability of any remedies, as agreed between counsel and a prison warden, he claims that he was lured from his cell, in the belief that he would be allowed to contact counsel, and thereafter told that he was being transferred to the custody of United States marshals.

12.4 The State party objects to these new allegations as they "are separate from the complainant's original submission and can only serve to delay consideration of the original communication by the Human Rights Committee". It accordingly requests the Committee not to takethese claims into consideration.

Review of admissibility and consideration of merits:

13.1 In his initial submission, author's counsel alleged that Mr. Ng was a victim of violations of articles 6, 7, 9, 10, 14, and 26 of the Covenant.

13.2 When the Committee considered the admissibility of the communication during its 46th session and adopted a decision relating thereto (decision of 28 October 1992), it noted that the communication raised complex issues with regard to the compatibility with the Covenant, ratione materiae, of extradition to face capital punishment, in particular with regard to the scope of articles 6 and 7 of the Covenant to such situations and their application in the author's case. It noted however that questions about the issue of whether the author could be deemed a "victim" within the meaning of article 1 of the Optional Protocol remained, but considered that only consideration on the merits of all the circumstances under which the extradition procedure, and all its effects, occurred, would enable the Committee to determine whether Mr. Ng was indeed a victim within the meaning of article 1. The State party has made extensive new submissions on both admissibility and merits and reaffirmed that the communication is inadmissible because "the evidence shows that Ng is not the victim of any violation in Canada of rights set out in the Covenant". Counsel, in turn, has filed detailed objections to the State party's affirmations.

13.3 In reviewing the question of admissibility, the Committee takes note of the contentions of the State party and of counsel's arguments. It notes that counsel, in submissions made after the decision of 28 October 1992, has introduced entirely new issues which were not raised in the original communication, and which relate to Mr. Ng's conditions of detention in Canadian penitentiaries, the stress to which he was exposed as the extradition process proceeded, and alleged deceptive manoeuvres by Canadian prison authorities.

13.4 These fresh allegations, if corroborated, would raise issues under articles 7 and 10 of the Covenant, and bring the author within the ambit of article 1 of the Optional Protocol. While the wording of the decision of 28 October 1992 would not have precluded counsel from introducing them at this stage of the procedure, the Committee, in the circumstances of the case, finds that it need not address the new claims, as domestic remedies before the Canadian courts were not exhausted in respect of them. It transpires from the material before the Committee that complaints about the conditions of the author's detention in Canada or about alleged irregularities committed by Canadian prison authorities were not raised either during the committal or the surrender phase of the extradition proceedings. Had it been argued that an effective remedy for the determination of these claims is no longer available, the Committee finds that it was incumbent upon counsel to raise them before the competent courts, provincial orfederal, at the material time. This part of the author's allegations is therefore declared inadmissible under article 5, paragraph 2(b), of the Optional Protocol.

13.5 It remains for the Committee to examine the author's claim that he is a "victim" within the meaning of the Optional Protocol because he was extradited to California on capital charges pending trial, without the assurances provided for in Article 6 of the Extradition Treaty between Canada and the United States. In this connection, it is to be recalled that (a) California had sought the author's extradition on charges which, if proven, carry the death penalty; (b) the United States requested NG's extradition on those capital charges; (c) the extradition warrant documents the existence of a prima facie case against the author; (d) United States prosecutors involved in the case have stated that they would ask for the death penalty to be imposed; and (e) the State of California, when intervening before the Supreme Court of Canada, did not disavow the prosecutors' position. The Committee considers that these facts raise questions with regard to the

scope of articles 6 and 7, in relation to which, on issues of admissibility alone, the Committee's jurisprudence is not dispositive. As indicated in the case of Kindler v. Canada [ See communication 470/1991, Views adopted on 30 July 1993, paragraph 12.3.] , only an examination on the merits of the claims will enable the Committee to pronounce itself on the scope of these articles and to clarify the applicability of the Covenant and Optional Protocol to cases concerning extradition to face the death penalty.

14.1 Before addressing the merits of the communication, the Committee observes that what is at issue is not whether Mr. Ng's rights have been or are likely to be violated by the United States, which is not a State party to the Optional Protocol, but whether by extraditing Mr. Ng to the United States, Canada exposed him to a real risk of a violation of his rights under the Covenant. States parties to the Covenant will also frequently be parties to bilateral treaty obligations, including those under extradition treaties. A State party to the Covenant must ensure that it carries out all its other legal commitments in a manner consistent with the Covenant. The starting point for consideration of this issue must be the State party's obligation, under article 2, paragraph 1, of the Covenant, namely, to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant. The right to life is the most essential of these rights.

14.2 If a State party extradites a person within its jurisdiction in such circumstances that as a result there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant.

15.1 With regard to a possible violation by Canada of article 6 of the Covenant by its decision to extradite Mr. Ng, two related questionsarise:

(a) Did the requirement under article 6, paragraph 1, to protect the right to life prohibit Canada from exposing a person within its jurisdiction to the real risk (i.e. a necessary and foreseeable consequence) of being sentenced to death and losing his life in circumstances incompatible with article 6 of the Covenant as a consequence of extradition to the United States?

(b) Did the fact that Canada had abolished capital punishment except for certain military offences require Canada to refuse extradition or request assurances from the United States, as it was entitled to do under article 6 of the Extradition Treaty, that the death penalty would not be imposed against Mr. Ng?

15.2 Counsel claims that capital punishment must be viewed as a violation of article 6 of the Covenant "in all but the most horrendous cases of heinous crime; it can no longer be accepted as the standard penalty for murder." Counsel, however, does not substantiate this statement or link it to the specific circumstances of the present case. In reviewing the facts submitted by author's counsel and by the State party, the Committee notes that Mr. Ng was convicted of committing murder under aggravating circumstances; this would appear to bring the case within the scope of article 6, paragraph 2, of the Covenant. In this connection the Committee recalls that it is not a "fourth instance" and that it is not

within its competence under the Optional Protocol to review sentences of the courts of States. This limitation of competence applies a fortiori where the proceedings take place in a State that is not party to the Optional Protocol.

15.3 The Committee notes that article 6, paragraph 1, must be read together with article 6, paragraph 2, which does not prohibit the imposition of the death penalty for the most serious crimes. Canada did not itself charge Mr. Ng with capital offences, but extradited him to the United States, where he faces capital charges and the possible [and foreseeable] imposition of the death penalty. If Mr. Ng had been exposed, through extradition from Canada, to a real risk of a violation of article 6, paragraph 2, in the United States, this would have entailed a violation by Canada of its obligations under article 6, paragraph 1. Among the requirements of article 6, paragraph 2, is that capital punishment be imposed only for the most serious crimes, under circumstances not contrary to the Covenant and other instruments, and that it be carried out pursuant to a final judgment rendered by a competent court. The Committee notes that Mr. Ng was extradited to stand trial on 19 criminal charges, including 12 counts of murder. If sentenced to death, that sentence, based on the information which the Committee has before it, would be based on a conviction of guilt in respect of very serious crimes. He was over eighteen years when the crimes of which he stands accused were committed. Finally, while the author has claimed before the Supreme Court of Canada and before the Committee that his right to a fair trial would not be guaranteed in the judicial process in California, because of racial bias in the jury selection process and in the imposition of the death penalty, theseclaims have been advanced in respect of purely hypothetical events, and nothing in the file supports the contention that the author's trial in the Calaveras County Court would not meet the requirements of article 14 of the Covenant.

15.4 Moreover, the Committee observes that Mr. Ng was extradited to the United States after extensive proceedings in the Canadian courts, which reviewed all the charges and the evidence available against the author. In the circumstances, the Committee concludes that Canada's obligations under article 6, paragraph 1, did not require it to refuse Mr. Ng's extradition.

15.5 The Committee notes that Canada has itself, except for certain categories of military offences, abolished capital punishment; it is not, however, a party to the Second Optional Protocol to the Covenant. As to issue (b) in paragraph 15.1 above, namely whether the fact that Canada has generally abolished capital punishment, taken together with its obligations under the Covenant, required it to refuse extradition or to seek the assurances it was entitled to seek under the Extradition Treaty, the Committee observes that abolition of capital punishment does not release Canada of its obligations under extradition treaties. However, it should be expected that, when exercising a permitted discretion under an extradition treaty (namely, whether or not to seek assurances that the death penalty would not be imposed) a State party which itself abandoned capital punishment gives serious consideration to its own chosen policy. The Committee notes, however, that Canada has indicated that the possibility to seek assurances would normally be exercised where special circumstances existed; in the present case, this possibility was considered and rejected.

15.6 While States must be mindful of their obligation to protect the right to life when exercising their discretion in the application of extradition treaties, the Committee does not find that the terms of article 6 of the Covenant necessarily require Canada to refuse to extradite or to seek assurances. The Committee notes that the extradition of Mr. Ng would have violated Canada's obligations under article 6 of the Covenant, if the decision to extradite without assurances had been taken summarily or arbitrarily. The evidence before the Committee reveals, however, that the Minister of Justice

reached his decision after hearing extensive arguments in favour of seeking assurances. The Committee further takes note of the reasons advanced by the Minister of Justice, in his letter dated 26 October 1989 addressed to Mr. Ng's counsel, in particular, the absence of exceptional circumstances, the availability of due process and of appeal against conviction, and the importance of not providing a safe haven for those accused of murder.

15.7 In the light of the above, the Committee concludes that Mr. Ng is not a victim of a violation by Canada of article 6 of the Covenant.

16.1 In determining whether, in a particular case, the imposition of capital punishment constitutes a violation of article 7, the Committee will have regard to the relevant personal factors regarding the author,the specific conditions of detention on death row, and whether the proposed method of execution is particularly abhorrent. In the instant case, it is contented that execution by gas asphyxiation is contrary to internationally accepted standards of humane treatment, and that it amounts to treatment in violation of article 7 of the Covenant. The Committee begins by noting that whereas article 6, paragraph 2, allows for the imposition of the death penalty under certain limited circumstances, any method of execution provided for by law must be designed in such a way as to avoid conflict with article 7.

16.2 The Committee is aware that, by definition, every execution of a sentence of death may be considered to constitute cruel and inhuman treatment within the meaning of article 7 of the Covenant; on the other hand, article 6, paragraph 2, permits the imposition of capital punishment for the most serious crimes. Nonetheless, the Committee reaffirms, as it did in its General Comment 20[44] on article 7 of the Covenant (CCPR/C/21/Add.3, paragraph 6) that, when imposing capital punishment, the execution of the sentence "... must be carried out in such a way as to cause the least possible physical and mental suffering".

16.3 In the present case, the author has provided detailed information that execution by gas asphyxiation may cause prolonged suffering and agony and does not result in death as swiftly as possible, as asphyxiation by cyanide gas may take over 10 minutes. The State party had the opportunity to refute these allegations on the facts; it has failed to do so. Rather, the State party has confined itself to arguing that in the absence of a norm of international law which expressly prohibits asphyxiation by cyanide gas, "it would be interfering to an unwarranted degree with the internal laws and practices of the Unites States to refuse to extradite a fugitive to face the possible imposition of the death penalty by cyanide gas asphyxiation".

16.4 In the instant case and on the basis of the information before it, the Committee concludes that execution by gas asphyxiation, should the death penalty be imposed on the author, would not meet the test of "least possible physical and mental suffering", and constitutes cruel and inhuman treatment, in violation of article 7 of the Covenant. Accordingly, Canada, which could reasonably foresee that Mr. Ng, if sentenced to death, would be executed in a way that amounts to a violation of article 7, failed to comply with its obligations under the Covenant, by extraditing Mr. Ng without having sought and received assurances that he would not be executed.

16.5 The Committee need not to pronounce itself on the compatibility, with article 7, of methods of execution other than that which is at issue in this case.

17. The Human Rights Committee, acting under article 5, paragraph 4, of the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee reveal a violation by Canada of article 7 of the Covenant.

18. The Human Rights Committee requests the State party to make such representations as might still be possible to avoid the imposition of the death penalty and appeals to the State party to ensure that a similar situation does not arise in the future.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly.]

APPENDIX

Individual opinions under rule 94, paragraph 3, of the Human Rights Committee's rules of procedure, concerning the Committee's Views on communication No. 469/1991 (Charles Chitat Ng v. Canada)

A. Individual opinion by Mr. Fausto Pocar (partly dissenting, partly concurring and elaborating)

I cannot agree with the finding of the Committee that in the present case, there has been no violation of article 6 of the Covenant. The question whether the fact that Canada had abolished capital punishment except for certain military offences required its authorities to refuse extradition or request assurances from the United States to the effect that the death penalty would not be imposed on Mr. Charles Chitat Ng, must in my view receive an affirmative answer.

Regarding the death penalty, it must be recalled that, although article 6 of the Covenant does not prescribe categorically the abolition of capital punishment, it imposes a set of obligations on States parties that have not yet abolished it. As the Committee pointed out in its General Comment 6(16), "the article also refers generally to abolition in terms which strongly suggest that abolition is desirable". Furthermore, the wording of paragraphs 2 and 6 clearly indicates that article 6 tolerates - within certain limits and in view of future abolition - the existence of capital punishment in States parties that have not yet abolished it, but may by no means be interpreted as implying for any State party an authorization to delay its abolition or, a fortiori, to enlarge its scope or to introduce or reintroduce it. Accordingly, a State party that has abolished the death penalty is in my view under the legal obligation, under article 6 of the Covenant, not to reintroduce it. This obligation must refer both to a direct reintroduction within the State party's jurisdiction, as well as to an indirect one, as is the case when the State acts -through extradition, expulsion or compulsory return - in such a way that an

individual within its territory and subject to its jurisdiction may be exposed to capital punishment in another State. I therefore conclude that in the present case there has been a violation of article 6 of the Covenant.

Regarding the claim under article 7, I agree with the Committee that there has been a violation of the Covenant, but on different grounds. I subscribe to the observation of the Committee that "by definition, every execution of a sentence of death may be considered to constitute cruel and inhuman treatment within the meaning of article 7 of the Covenant". Consequently, a violation of the provisions of article 6 that may make such treatment, in certain circumstances, permissible, entails necessarily, and irrespective of the way in which the execution may be carried out, a violation of article 7 of theCovenant. It is for these reasons that I conclude in the present case there has been a violation of article 7 of the Covenant.

Fausto Pocar

[English original]

B. Individual opinion by Messrs. A. Mavrommatis and W. Sadi (dissenting)

We do not believe that, on the basis of the material before us, execution by gas asphyxiation could constitute cruel and inhuman treatment within the meaning of article 7 of the Covenant. A method of execution such as death by stoning, which is intended to and actually inflicts prolonged pain and suffering, is contrary to article 7.

Every known method of judicial execution in use today, including execution by lethal injection, has come under criticism for causing prolonged pain or the necessity to have the process repeated. We do not believe that the Committee should look into such details in respect of execution such as whether acute pain of limited duration or less pain of longer duration is preferable and could be a criterion for a finding of violation of the Covenant.

A. Mavrommatis

W. Sadi

[English original]

C. Individual opinion by Mr. Rajsoomer Lallah (dissenting)

For the reasons I have already given in my separate opinion in the case of J. J. Kindler v. Canada (communication No. 470/1991) with regard to the obligations of Canada under the Covenant, I would conclude that there has been a violation of article 6 of the Covenant. If only for that reason alone, article 7 has also, in my opinion, been violated.

Even at this stage, Canada should use its best efforts to provide a remedy by making appropriate representations, so as to ensure that, if convicted and sentenced to death, the author would not be executed.

Rajsoomer Lallah

[English original]

D.Individual opinion by Mr. Bertil Wennergren (partly dissenting, partly concurring)

I do not share the Committee's Views with respect to a non-violation of article 6 of the Covenant, as expressed in paragraphs 15.6 and 15.7 of the Views. On grounds that I have developed in detail in my individual opinion concerning the Committee's Views on communication No.470/1991 (Joseph John Kindler v. Canada) Canada did, in my view, violate article 6, paragraph 1, of the Covenant by consenting to extradite Mr. Ng to the United States without having secured assurances that he would not, if convicted and sentenced to death, be subjected to the execution of the death sentence.

I do share the Committee's Views, formulated in paragraphs 16.1 to 16.5, that Canada failed to comply with its obligations under the Covenant by extraditing Mr. Ng to the United States where, if sentenced to death, he would be executed by means of a method that amounts to a violation of article 7. In my view, article 2 of the Covenant obliged Canada not merely to seek assurances that Mr. Ng would not be subjected to the execution of a death sentence but also, if it decided nonetheless to extradite Mr. Ng without such assurances, as was the case, to at least secure assurances that he would not be subjected to the execution of the death sentence by cyanide gas asphyxiation.

Article 6, paragraph 2, of the Covenant permits courts in countries which have not abolished the death penalty to impose the death sentence on an individual if that individual has been found guilty of a most serious crime, and to carry out the death sentence by execution. This exception from the rule of article 6, paragraph 1, applies only vis-à-vis the State party in question, not vis-à-vis other States parties to the Covenant. It therefore did not apply to Canada as it concerned an execution to be carried out in the United States.

By definition, every type of deprivation of an individual's life is inhuman. In practice, however, some methods have by common agreement been considered as acceptable methods of execution. Asphyxiation by gas is definitely not to be

found among them. There remain, however, divergent opinions on this subject. On 21 April 1992, the Supreme Court of the United States denied an individual a stay of execution by gas asphyxiation in California by a 7:2 vote. One of the dissenting justices, Justice John Paul Stevens, wrote: "The barbaric use of cyanide gas in the Holocaust, the development of cyanide agents as chemical weapons, our contemporary understanding of execution by lethal gas, and the development of less cruel methods of execution all demonstrate that execution by cyanide gas is unnecessarily cruel. In light of all we know about the extreme and unnecessary pain inflicted by execution by cyanide gas", Justice Stevens found that the individual's claim had merit.

In my view, the above summarizes in a very convincing way why gas asphyxiation must be considered as a cruel and unusual punishment that amounts to a violation of article 7. What is more, the State of California, in August 1992, enacted a statute law that enables anindividual under sentence of death to choose lethal injection as the method of execution, in lieu of the gas chamber. The statute law went into effect on 1 January 1993. Two executions by lethal gas had taken place during 1992, approximately one year after the extradition of Mr. Ng. By amending its legislation in the way described above, the State of California joined 22 other states in the United States. The purpose of the legislative amendment was not, however, to eliminate an allegedly cruel and unusual punishment, but to forestall last-minute appeals by condemned prisoners who might argue that execution by lethal gas constitutes such punishment. Not that I consider execution by lethal injection acceptable either from a point of view of humanity, but - at least - it does not stand out as an unnecessarily cruel and inhumane method of execution, as does gas asphyxiation. Canada failed to fulfil its obligation to protect Mr. Ng against cruel and inhuman punishment by extraditing him to the United States (the State of California), where he might be subjected to such punishment. And Canada did so without seeking and obtaining assurances of his non-execution by means of the only method of execution that existed in the State of California at the material time of extradition.

Bertil Wennergren

[English original]

E.Individual opinion by Mr. Kurt Herndl (dissenting)

1. While I do agree with the Committee's finding that there is no violation of article 6 of the Covenant in the present case, I do not share the majority's findings as to a possible violation of article 7. In fact, I completely disagree with the conclusion that Canada which - as the Committee's majority argue in paragraph 16.4 of the Views -"could reasonably foresee that Mr. Ng, if sentenced to death, would be executed in a way that amounts to a violation of article 7", has thus "failed to comply with its obligations under the Covenant by extraditing Mr. Ng without having sought and received guarantees that he would not be executed".

2. The following are the reasons for my dissent:

I. Mr. Ng cannot be regarded as victim in the sense of article 1 of the Optional Protocol.

3. The issue of whether Mr. Ng can or cannot be regarded as a victim was left open in the decision on admissibility (decision of 28 October 1992). There the Committee observed that pursuant to article 1 of the Optional Protocol it may only receive and consider communications from individuals subject to the jurisdiction of a State party to the Covenant and to the Optional Protocol "who claim to be victims of a violation by that State party of any of their rights set forth in the Covenant". In the present case, the Committee concluded that only the consideration on the merits of the circumstances under which the extradition procedure, and all its effects, occurred, would enable it to determine whether the author was a victim within the meaning of article 1 of the Optional Protocol. Accordingly the Committee decided to join the question of whether the author is a victim to the consideration of the merits. So far so good.

4. In its Views, however, the Committee does no longer address the issue of whether Mr. Ng is a victim. In this connection the following reasoning has to be made.

5. As to the concept of victim, the Committee has in recent decisions recalled its established jurisprudence, based on the admissibility decision in the case of E.W. et al. v. the Netherlands (case No. 429/1990) where the Committee declared the relevant communication inadmissible under the Optional Protocol. In the case mentioned the Committee held that "for a person to claim to be a victim of a violation of a right protected by the Covenant, he or she must show either that an act or an omission of a State party has already adversely affected his or her enjoyment of such right, or that such an effect is imminent".

6. In the Kindler case (No. 470/1991) the Committee has, in its admissibility decision (decision of 31 July 1992), somewhat expandedon the notion of victim by stating that while a State party clearly is not required to guarantee the rights of persons within another jurisdiction, if such a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that this person's rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant. To illustrate this the Committee referred to the "handing over of a person to another State ... where treatment contrary to the Covenant is certain or is the very purpose of the handing over" (paragraph 6.4). In the subsequent decision on the merits of the Kindler case (decision of 30 July 1993) the Committee introduced the concept of "real risk". The Committee stated that "if a State party extradites a person within its jurisdiction in circumstances such that as a result there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party may be in violation of the Covenant" (paragraph 13.2).

7. The case of Mr. Ng apparently meets none of these tests: neither can it be argued that torture or cruel, inhuman or degrading treatment or punishment (in the sense of article 7 of the Covenant) in the receiving state is the necessary and foreseeable consequence of Mr. Ng's extradition, nor can it be maintained that there would be a real risk of such a treatment.

8. Mr. Ng is charged in California with 19 criminal counts, including kidnapping and 12 murders, committed in 1984 and 1985. However, he has so far not been tried, convicted or sentenced. If he were convicted, he would still have various opportunities to appeal his conviction and sentence through state and federal appeals instances, up to the Supreme Court of the United States. Furthermore, given the nature of the crimes allegedly committed by Mr. Ng it is completely open at this stage whether or not the death penalty will be imposed, as a plea of insanity could be entered and might be successful.

9. In their joint individual opinion on the admissibility of a similar case (not yet made public) several members of the Committee, including myself, have again emphasized that the violation that would affect the author personally in another jurisdiction must be a necessary and foreseeable consequence of the action of the defendant State. As the author in that case had not been tried and, a fortiori, had not been found guilty or recommended to the death penalty, the dissenting members of the Committee were of the view that the test had not been met.

10. In view of what is explained in the preceding paragraphs the same consideration would hold true for the case of Mr. Ng who thus cannot be regarded as victim in the sense of article 1 of the Optional Protocol.

II. There are no secured elements to determine that execution by gas asphyxiation would in itself constitute a violation of article 7 of the Covenant.

11. The Committee's majority is of the view that judicial execution by gas asphyxiation, should the death penalty be imposed on Mr. Ng, would not meet the test of the "least possible physical and mental suffering", and thus would constitute cruel and inhuman treatment in violation of article 7 of the Covenant (paragraph 16.4). The Committee's majority thus attempts to make a distinction between various methods of execution.

12. The reasons for the assumption that the specific method of execution currently applied in California would not meet the above mentioned test of the "least possible physical and mental suffering" - this being the only reason given to substantiate the finding of a violation of article 7 - is that "execution by gas asphyxiation may cause prolonged suffering and agony and does not result in death as swiftly as possible, as asphyxiation by cyanide gas may take over 10 minutes" (paragraph 16.3).

13. No scientific or other evidence is quoted in support of this dictum. Rather, the onus of proof is placed on the defendant State which, in the majority's view, had the opportunity to refute the allegations of the author on the facts, but failed to do so. This view is simply incorrect.

14. As the fact sheets of the case show, the remarks by the Government of Canada on the sub-issue "Death Penalty as a Violation of Article 7" total two and a half pages. In those remarks the Government of Canada states i.a. the following:

"While it may be that some methods of execution would clearly violate the Covenant, it is far from clear from a review of the wording of the Covenant and the comments and jurisprudence of the Committee, what point on the spectrum separates those methods of judicial execution which violate article 7 and those which do not".

15. This argument is in line with the view of Prof. Cherif Bassiouni who, in his analysis of what treatment could constitute "cruel and unusual punishment", comes to the following conclusion:

"The wide divergence in pennological theories and standards of treatment of offenders between countries is such that no uniform standard exists ... the prohibition against cruel and unusual punishment can be said to constitute a general principle of international law because it is so regarded by the legal system of civilized nations, but that alone does not give it a sufficiently defined content bearing on identifiable applications capable of more than general recognition" (Cherif Bassiouni, International Extradition and World Public Order: Leyden-Dobbs Ferry, 1974, p. 465).

16. In its submission the Government of Canada furthermore stressed that "none of the methods currently in use in the United States is of such a nature as to constitute a violation of the Covenant or any other norm of international law. In particular, there is no indication that cyanide gas asphyxiation, which is the method of judicial execution in the State of California, is contrary to the Covenant or international law". Finally, the Government of Canada stated that it had examined "the method of execution for its possible effect on Ng on facts specified to him" and that it came to the conclusion that "there are no facts with respect to Ng which take him out of the general application outlined". In this context the Government made explicit reference to the "Safeguards Guaranteeing Protection of Those Facing the Death Penalty" adopted by the Economic and Social Council in resolution 1984/50 and endorsed by the General Assembly in resolution 39/118. The Government of Canada has thus clearly taken into account a number of important elements in its assessment of whether the method of execution in California might constitute inhuman or degrading treatment.

17. It is also evident from the foregoing that the defendant State has examined the whole issue in depth and did not deal with it in the cursory manner suggested in paragraph 16.3 of the Committee's Views. The author and his counsel were perfectly aware of this. Already in his letter of 26 October 1989 addressed to the author's counsel the Minister of Justice of Canada stated as follows:

"You have argued that the method employed to carry out capital punishment in California is cruel and inhuman, in itself. I have given consideration to this issue. The method used by California has been in place for a number of years and has found acceptance in the courts of the United States".

18. Apart from the above considerations which in my view demonstrate that there is no agreed or scientifically proven standard to determine that judicial execution by gas asphyxiation is more cruel and inhuman than other methods of judicial execution, the plea of the author's counsel contained in his submission to the Supreme Court of Canada (prior to Ng's extradition) which was made available to the Committee, in favour of "lethal injection" (as opposed to "lethal gas") speaks for itself.19. The Committee observes in the present Views (paragraph 15.3) - and it has also held in the Kindler

case (paragraph 6.4) - that the imposition of the death penalty (although, if I may add my personal view on this matter, capital punishment is in itself regrettable under any point of view and is obviously not in line with fundamental moral and ethic principles prevailing throughout Europe and other parts of the world) is still legally permissible under the Covenant. Logically, therefore, there must be methods of execution that are compatible with the Covenant. Although any judicial execution must be carried out in such a way as to cause the least possible physical and mental suffering (see the Committee's General Comment 20(44) on article 7 of the Covenant), physical and mental suffering will inevitably be one of the consequences of the imposition of the death penalty and its execution. To attempt to establish categories of methods of judicial executions, as long as such methods are not manifestly arbitrary and grossly contrary to the moral values of a democratic society, and as long as such methods are based on a uniformly applicable legislation adopted by democratic processes, is futile, as it is futile to attempt to quantify the pain and suffering of any human being subjected to capital punishment. In this connection I should also like to refer to the considerations advanced in paragraph 9 of the joint individual opinion submitted by Mr. Waleed Sadi and myself in the Kindler case (decision of 30 July 1993, Appendix).

20. It is therefore only logical that I also agree with the individual opinion expressed by a number of members of the Committee and attached to the present Views. Those members conclude that the Committee should not go into details in respect of executions as to whether acute pain of limited duration or less pain of longer duration is preferable and could be a criterion for the finding of a violation.

21. The Committee's finding that the specific method of judicial execution applied in California is tantamount to cruel and inhuman treatment and that accordingly Canada violated article 7 of the Covenant by extraditing Mr. Ng to the United States, is therefore in my view without a proper basis.

III. In the present case the defendant State, Canada, has done its level best to respect its obligations under the Covenant.

22. A final word ought to be said as far as Canada's obligations under the Covenant are concerned.

23. While recent developments in the jurisprudence of international organs entrusted with the responsibility of ensuring that individuals' human rights are fully respected by state authorities, suggest an expansion of their monitoring role (see e.g. the judgment of the European Court of Human Rights in the Soering case, paragraph 85; see in this context also the remarks on the expanded notion of "victim", paragraph 6 supra), the issue of the extent to which in the area of extradition a State party to an international human rights treaty must take into account the situation in a receiving state, still remains an open question. I should, therefore, like to repeat what I statedtogether with Mr. Waleed Sadi in the joint individual opinion in the Kindler case (decision of 30 July 1993, Appendix). The same considerations are applicable in the present case.

24. We observed in paragraph 5 of the joint individual opinion that as the allegations of the author concerned hypothetical violations of his rights in the United States (after the legality of the extradition had been tested in Canadian

Courts, including the Supreme Court of Canada), and unreasonable responsibility was being placed on Canada by requiring it to defend, explain or justify before the Committee the United States system of administration of justice. I continue to believe that such is indeed unreasonable. Both at the level of the judiciary as well as at the level of administrative proceedings, Canada has given all aspects of Mr. Ng's case the consideration they deserve in the light of its obligations under the Covenant. It has done what can reasonably and in good faith be expected from a State party.

Kurt Herndl

[English original]

F.Individual opinion by Mr. Nisuke Ando (dissenting)

I am unable to concur with the views of the Committee that "execution by gas asphyxiation ... would not meet the test of 'least possible physical and mental suffering' and constitutes cruel and inhuman [punishment] in violation of article 7 of the Covenant" (paragraph 16.4). In the view of the Committee "the author has provided detailed information that execution by gas asphyxiation may cause prolonged suffering and agony and does not result in death as swiftly as possible, as asphyxiation by cyanide gas may take over ten minutes" (paragraph 16.3). Thus, the swiftness of death seems to be the very criterion by which the Committee has concluded that execution by gas asphyxiation violates article 7.

In many of the States parties to the Covenant where death penalty has not been abolished, other methods of execution such as hanging, shooting, electrocution or injection of certain materials are used. Some of them may take longer time and others shorter than gas asphyxiation, but I wonder if, irrespective of the kind and degree of suffering inflicted on the executed, all those methods that may take over ten minutes are in violation of article 7 and all others that take less are in conformity with it. In other words I consider that the criteria of permissible suffering under article 7 should not solely depend on the swiftness of death.

The phrase "least possible physical and mental suffering" comes from the Committee's General Comment 20 on article 7, which states that the death penalty must be carried out in such a way as to cause the least possible physical and mental suffering. This statement, in fact, implies that there is no method of execution which does not cause any physical or mental suffering and that every method of execution is bound to cause some suffering.

However, I must admit that it is impossible for me to specify which kind of suffering is permitted under article 7 and what degree of suffering is not permitted under the same article. I am totally incapable of indicating any absolute criterion as to the scope of suffering permissible under article 7. What I can say is that article 7 prohibits any method of execution which is intended for prolonging suffering of the executed or causing unnecessary pain to him or her. As I do

not believe that gas asphyxiation is so intended, I cannot concur with the Committee's view that execution by gas asphyxiation violates article 7 of the Covenant.

Nisuke Ando

[English original]

G. Individual opinion by Mr. Francisco José AGUILAR URBINA (dissenting)

I. Extradition and the protection afforded by the Covenant

1. In analysing the relationship between the Covenant and extradition, I cannot agree with the Committee that "extradition as such is outside the scope of application of the Covenant" [ Views, para. 6.1.] . I consider that it is remiss - and even dangerous, as far as the full enjoyment of the rights set forth in the Covenant is concerned - to make such a statement. In order to do so, the Committee relies on the pronouncement in the Kindler case to the effect that since "it is clear from the travaux préparatoires that it was not intended that article 13 of the Covenant, which provides specific rights relating to the expulsion of aliens lawfully in the territory of a State party, should detract from normal extradition arrangements", [ Views on communication No. 470/1991, Joseph John Kindler v. Canada, para. 6.6 (emphasis added).] extradition would remain outside the scope of the Covenant. In the first place, we have to note that extradition, even though in the broad sense it would amount to expulsion, in a narrow sense would be included within the procedures regulated by article 14 of the Covenant. Although the procedures for ordering the extradition of a person to the requesting State vary from country to country, they can roughly be grouped into three general categories: (1) a purely judicial procedure, (2) an exclusively administrative procedure, or (3) a mixed procedure involving action by the authorities of two branches of the State, the judiciary and the executive. This last procedure is the one followed in Canada. The important point, however, is that the authorities dealing with the extradition proceedings constitute, for this specific case at least, a "tribunal" that applies a procedure which must conform to the provisions of article 14 of the Covenant.

2.1. The fact that the drafters of the International Covenant on Civil and Political Rights did not include extradition in article 13 is quite logical, but on that account alone it cannot be affirmed that their intention was to leave extradition proceedings outside the protection afforded by the Covenant. The fact is, rather, that extradition does not fit in with the legal situation defined in article 13. The essential difference lies, in my opinion, in the fact that this rule refers exclusively to the expulsion of "an alien lawfully in the territory of a State party". [ International Covenant on Civil and Political Rights, art. 13.]

2.2. Extradition is a kind of "expulsion" that goes beyond what is contemplated in the rule. Firstly, extradition is a specific procedure, whereas the rule laid down in article 13 is of a generalnature; however article 13 merely stipulates that

expulsion must give rise to a decision in accordance with law, and even - in cases where there are compelling reasons of national security - it is permissible for the alien not to be heard by the competent authority or to have his case reviewed. Secondly, whereas expulsion constitutes a unilateral decision by a State, grounded on reasons that lie exclusively within the competence of that State - provided that they do not violate the State's international obligations, such as those under the Covenant -extradition constitutes an act based upon a request by another State. Thirdly, the rule in article 13 relates exclusively to aliens who are in the territory of a State party to the Covenant, whereas extradition may relate both to aliens and to nationals; indeed, on the basis of its discussions the Committee has considered the practice of expelling nationals (for example, exile) in general (other than under extradition proceedings) to be contrary to article 12. [ In this connection, see the summary records of the Committee's recent discussions regarding Zaire and Burundi, in relation to the expulsion of nationals, and Venezuela in relation to the continuing existence, in criminal law, of exile as a penalty2.] Fourthly, the rule in article 13 relates to persons who are lawfully in the territory of a country; in the case of extradition, the individuals against whom the proceedings are initiated are not necessarily lawfully within the jurisdiction of a country; on the contrary - and especially if it is borne in mind that article 13 leaves the question of the lawfulness of the alien's presence to national law - in a great many instances persons who are subject to extradition proceedings have entered the territory of the requested State illegally, as in the case of the author of the communication.

3. Although extradition cannot be considered to be a kind of expulsion within the meaning of article 13 of the Covenant, this does not imply that it is excluded from the scope of the Covenant. Extradition must be strictly adapted in all cases to the rules laid down in the Covenant. Thus the extradition proceedings must follow the rules of due process as required by article 14 and, furthermore, their consequences must not entail a violation of any other provision. Therefore, a State cannot allege that extradition is not covered by the Covenant in order to evade the responsibility that would devolve upon it for the possible absence of protection of the possible victim in a foreign jurisdiction.

II. The extradition of the author to the United States of America

4. In this particular case, Canada extradited the author of the communication to the United States of America, where he was to stand trial on 19 criminal counts, including 12 murders. It will have to be seen - as the Committee stated in its decision on the admissibility of the communication - whether Canada, in granting Mr. Ng's extradition, exposed him, necessarily and foreseeably, to a violation of the Covenant.

5. The same State party argued that "the author cannot be considered a victim within the meaning of the Optional Protocol, since his allegations are derived from assumptions about possible future events, which may not materialize and which are dependent on the law and actions of the authorities of the United States". [ Views, para. 4.2 (emphasis added).] Although it is impossible to predict a future event, it must be understood that whether or not a person is a victim depends on whether that event is foreseeable - or, in other words, on whether, according to common sense, it may happen, in the absence of exceptional events that prevent it from occurring - or necessary - in other words, it will inevitably occur, unless exceptional events prevent it from happening. The Committee itself, in concluding that Canada had violated article 7, [ Views, para. 17.] found that the author of the communication would necessarily and foreseeably be executed. For that reason, I shall not discuss the issue of foreseeability and necessity except to say that I agree with the views of the majority.

6. Now, with regard to the exceptional circumstances mentioned by the State party, [ Views, para. 4.4.] the most important aspect is that, according to the assertions of the State party itself, they refer to the application of the death penalty. In my opinion, the vital point is the link between the application of the death penalty and the protection given to the lives of persons within the jurisdiction of the Canadian State. For those persons, the death penalty constitutes in itself a special circumstance. For that reason - and in so far as the death penalty can be considered as being necessarily and foreseeably applicable - Canada had a duty to seek assurances that Charles Chitat Ng would not be executed.

7. The problem that arises with the extradition of the author of the communication to the United States without any assurances having been requested is that he was deprived of the enjoyment of his rights under the Covenant. Article 6, paragraph 2, of the Covenant, although it does not prohibit the death penalty, cannot be understood as an unrestricted authorization for it. In the first place, it has to be viewed in the light of paragraph 1, which declares that every human being has the inherent right to life. It is an unconditional right admitting of no exception. In the second place, it constitutes - for those States which have not abolished the death penalty - a limitation on its application, in so far as it may be imposed only for the most serious crimes. For those States which have abolished the death penalty it represents an insurmountable barrier. The spirit of this article is to eliminate the death penalty as a punishment, and the limitations which it imposes are of an absolute nature.

8. In this connection, when Mr. Ng entered Canadian territory healready enjoyed an unrestricted right to life. By extraditing him without having requested assurances that he would not be executed, Canada denied him the protection which he enjoyed and exposed him necessarily and foreseeably to being executed in the opinion of the majority of the Committee, which I share in this regard. Canada has therefore violated article 6 of the Covenant.

9. Further, Canada's misinterpretation of the rule in article 6, paragraph 2, of the International Covenant on Civil and Political Rights raises the question of whether it has also violated article 5, specifically paragraph 2 thereof. The Canadian Government has interpreted article 6, paragraph 2, as authorizing the death penalty. For that reason it has found that Mr. Charles Chitat Ng's extradition, even though he will necessarily be sentenced to death and will foreseeably be executed, would not be prohibited by the Covenant, since the latter would authorize the application of the death penalty. In making such a misinterpretation of the Covenant, the State party asserts that the extradition of the author of the communication would not be contrary to the Covenant. In this connection, Canada has denied Mr. Charles Chitat Ng a right which he enjoyed under its jurisdiction, adducing that the Covenant would give a lesser protection than internal law in other words, that the International Covenant on Civil and Political Rights would recognize the right to life in a lesser degree than Canadian legislation. In so far as the misinterpretation of article 6, paragraph 2, has led Canada to consider that the Covenant recognizes the right to life in a lesser degree than its domestic legislation and has used that as a pretext to extradite the author to a jurisdiction where he will certainly be executed, Canada has also violated article 5, paragraph 2, of the Covenant.

10. I have to insist that Canada has misinterpreted article 6, paragraph 2, and that, when it abolished the death penalty, it became impossible for it to apply that penalty directly in its territory, except for the military offences for which it is still in force, or indirectly through the handing over to another State of a person who runs the risk of being executed or who

will be executed. Since it abolished the death penalty, Canada has to guarantee the right to life of all persons within its jurisdiction, without any limitation.

11. With regard to the possible violation of article 7 of the Covenant, I do not concur with the Committee's finding that "In the instant case and on the basis of the information before it, the Committee concludes that execution by gas asphyxiation, should the death penalty be imposed on the author, would not meet the test of least possible physical and mental suffering' and constitutes cruel and inhuman treatment, in violation of article 7 of the Covenant". [ Views, para. 16.4.] I cannot agree with the view that the execution of the death penalty constitutes cruel and inhuman treatment only in these circumstances. On the contrary, I consider that the death penalty as such constitutes treatment that is cruel, inhuman and degrading and hence contrary toarticle 7 of the International Covenant on Civil and Political Rights. Nevertheless, in the present case, it is my view that the consideration of the application of the death penalty is subsumed by the violation of article 6 and I do not find that article 7 of the Covenant has been specifically violated.

12. One final aspect to be dealt with is the way in which Mr. Ng was extradited. No notice was taken of the request made by the Special Rapporteur on New Communications, under rule 86 of the rules of procedure of the Human Rights Committee, that the author should not be extradited while the case was under consideration by the Committee. [ Rules of procedure of the Human Rights Committee, rule 86.] On ratifying the Optional Protocol, Canada undertook, with the other States parties, to comply with the procedures followed in connection therewith. In extraditing Mr. Ng without taking into account the Special Rapporteur's request, Canada failed to display the good faith which ought to prevail among the parties to the Protocol and the Covenant.

13. Moreover, this fact gives rise to the possibility that there may also have been a violation of article 26 of the Covenant. Canada has given no explanation as to why the extradition was carried out so rapidly once it was known that the author had submitted a communication to the Committee. By its action in failing to observe its obligations to the international community, the State party has prevented the enjoyment of the rights which the author ought to have had as a person under Canadian jurisdiction in relation to the Optional Protocol. In so far as the Optional Protocol forms part of the Canadian legal order, all persons under Canadian jurisdiction enjoy the right to submit communications to the Human Rights Committee so that it may hear their complaints. Since it appears that Mr. Charles Chitat Ng was extradited on account of his nationality [ The various passages in the Reply which refer to the relations between Canada and the United States, the 4,800 kilometres of unguarded frontier between the two countries and the growing number of extradition applications by the United States to Canada should be taken into account. The State party has indicated that United States fugitives cannot be permitted to take the non-extradition of the author in the absence of assurances as an incentive to flee to Canada. In this connection, the arguments of the State party were identical to those put forward in relation to communication No. 470/1991.] and in so far as he has been denied the possibility of enjoying its protection in accordance with the Optional Protocol, I find that the State party has also violated article 26 of the Covenant.

14. In conclusion, I find Canada to be in violation of article 5, paragraph 2, and articles 6 and 26 of the International Covenant on Civil and Political Rights.

San Rafael de Escazú, Costa Rica

1 December 1993

[Spanish original]

H. Individual opinion of Ms. Christine Chanet (dissenting)

As regards the application of article 6 in the present case, I can only repeat the terms of my separate opinion expressed in the Kindler case (No. 470/1991).

Consequently, I am unable to accept the statement, in paragraph 16.2 of the decision, that "article 6, paragraph 2, permits the imposition of capital punishment". In my view, the text of the Covenant "does not authorize" the imposition, or restoration, of capital punishment in those countries which have abolished it; it simply sets conditions with which the State must necessarily comply when capital punishment exists.

Drawing inferences from a de facto situation cannot in law be assimilated to an authorization.

As regards article 7, I share the Committee's conclusion that this provision has been violated in the present case.

However, I consider that the Committee engages in questionable discussion when, in paragraph 16.3, it assesses the suffering caused by cyanide gas and takes into consideration the duration of the agony, which it deems unacceptable when it lasts for over 10 minutes.

Should it be concluded, conversely, that the Committee would find no violation of article 7 if the agony lasted nine minutes?

By engaging in this debate, the Committee finds itself obliged to take positions that are scarcely compatible with its role as a body monitoring an international human rights instrument.

A strict interpretation of article 6 along the lines I have set out previously which would exclude any "authorization" to maintain or restore the death penalty, would enable the Committee to avoid this intractable debate on the ways in which the death penalty is carried out in the States parties.

Christine Chanet

[French original]