Extradition is the formal process whereby a State requests from the requested State the return of a

person accused or convicted of a crime to stand trial or serve a sentence in the requesting State.
Historically, there was no general duty to extradite. Extradition was often based on informal relations
between leaders of sovereign States. The increasing numbers of such cases created the need for more
formal agreements.

Article 16 of the Organized Crime Conventions deals with extradition. This article is 17 paragraphs in
length, making it the second longest article of the Convention, after article 18 on mutual legal
assistance. This shows, on one hand, the complexity of international cooperation and, on the other, its
importance in the context of fighting transnational organized crime.

In the extradition process, the challenges are similar to those for mutual legal assistance. Different legal
systems and frameworks need to be reconciled. Despite the legal differences, there are several
principles on extradition that are common to most countries. The Organized Crime Convention draws
on these principles to build a comprehensive framework for extradition.

According to the principle of non-extradition of nationals, many States decline any obligation to
surrender their own citizens. In some countries, there are even constitutional provisions which prohibit
the extradition of the respective country's nationals. Nonetheless, despite this general principle, public
international law dictates that States have the legal obligation to either extradite or prosecute ( aut
dedere aut judicare) persons who commit serious international crimes. This obligation is predicated on
the extraterritorial nature of international crimes and reflects an attempt of the international community
to ensure that perpetrators are prosecuted either by the national authorities of that State or by another
State which indicates that it is willing to prosecute the case by requesting extradition.

Article 16. Extradition

A State Party in whose territory an alleged offender is found, if it does not extradite such person in
respect of an offence to which this article applies solely on the ground that he or she is one of its
nationals, shall, at the request of the State Party seeking extradition, be obliged to submit the case
without undue delay to its competent authorities for the purpose of prosecution. Those authorities shall
take their decision and conduct their proceedings in the same manner as in the case of any other
offence of a grave nature under the domestic law of that State Party. The States Parties concerned shall
cooperate with each other, in particular on procedural and evidentiary aspects, to ensure the efficiency
of such prosecution.

Among other principles is the non-discrimination clause, which stipulates that requested States have no
obligation to extradite if there are reasons to believe that the person would be persecuted in the
requesting State on account of gender, race, religion, nationality, ethnic origin, or political opinion.
It should be added that the political offense exception for extradition has been one of the most
controversial features of the extradition process. While in theory this principle provides the requested
State with the right to refuse extradition for political crimes, the practical obligation of this principle is
far from settled as there is no universally accepted definition of "political crime". Recent developments
also suggest that attempts are being made to restrict the scope of the political offence exception or even
abolish it. The increase, for example, in international terrorism has led to the willingness of States to
limit the extent of the political offence exception, which is generally no longer applicable to crimes
against international law.

Simplifying and improving the surrendering procedure between EU countries was made possible by a
high level of mutual trust and cooperation between countries

Extradition is not a new concept of international cooperation, as it dates as far back as 1280 B.C. when
Ramses II of Egypt and Prince Hattusili III of the Hittites concluded a peace treaty providing for the
exchange of criminals of one nation found in the territory of another. The same is true with mutual
legal assistance to each other. Countries have long been providing legal assistance to each other.
However, it was mostly done through informal channels and between the law enforcement authorities
of two States. As for transfer of sentenced persons, this is still relatively new to us. Extradition, mutual
legal assistance in criminal matters and transfer of sentenced persons are just three of the effective tools
of international legal cooperation. I will not discuss judicial cooperation, which is included in the title

of this session, as the same pertains to the judicial branch of our government, although the
implementation of certain types of international legal cooperation necessarily involves judicial process.
I. Extradition Extradition is the surrender, upon request of a State, of an accused or convicted person,
found in the territory of another state. Extradition process in the Philippines is primarily governed by
Presidential Decree (P.D.) No. 1069 or the Philippine Extradition Law, the applicable extradition
treaty, and if not inconsistent with the summary nature of extradition proceedings, also the Rules of
Court. Unlike other jurisdictions which allow extradition on the basis of national legislation, treaty or
reciprocity, the Philippines, as provided under P.D. No. 1069, may grant extradition only on the basis
of a treaty or convention. Allowing extradition on the basis of law or reciprocity is one of the policy
issues confronting the Department of Justice as it works on the amendment of P.D. No. 1069.

At present, we have extradition treaties with 14 countries, namely: Australia, Canada, China, Hong
Kong Special Administrative Region, India, Indonesia, Korea, Micronesia, Spain, Switzerland,
Thailand, UK, US, and the most recent one, with Russia, which was signed in October 2017 on the
occasion of the 31st ASEAN Summit in Manila. The Philippines is also a State Party to multilateral
treaties containing the so-called mini-extradition provisions, and this includes the UN Convention
Against Corruption (UNCAC), the UN Convention against Transnational Organized Crime (UNTOC),
the ASEAN Convention on Counter-Terrorism (ACCT), and the ASEAN Convention Against
Trafficking in Persons (ACTIP). While both UNCAC and UNTOC can serve as legal basis for making
a request for extradition, the Philippines cannot however utilize the same as legal basis because a
request for extradition under UNCAC may be granted even if the dual criminality requirement is not
met. Our extradition law on the other hand, requires dual criminality; hence, the Philippines entered a
declaration to UNCAC whereby the latter Convention cannot be made a basis for a request for
extradition. Likewise, UNTOC cannot be a basis for a request for extraditionbecause Section 5(A) of
the Convention requires a declaration from a State that it will take the Convention as the legal basis for
cooperation on extradition with the other State Parties of the Convention. The Philippines did not make
such declaration when we acceded to the Convention. We may therefore have to look into our
accession to other multilateral treaties allowing extradition, as being a State Party thereto may not be a
sufficient legal basis for making or granting extradition request. The benefit of extradition treaties for
ordinary Filipinos is that if they are victims of crimes, the perpetrators of these crimes cannot evade
prosecution by fleeing from the Philippines, because they can be brought back here to face trial, if they
are found in the territory of a treaty partner. II. Mutual Legal Assistance Treaty in Criminal Matters
Mutual legal assistance is the formal process of seeking legal assistance to and from a foreign
government in criminal and related proceedings. It is a formal process of intergovernmental legal
cooperation in the investigation, prosecution and punishment of criminal offenders. I mention here that
it is a formal process because it has to be distinguished from the informal process of cooperation such
as law enforcement-to-law enforcement cooperation. Mutual Legal Assistance as a tool of international
legal cooperation cannot be utilized in administrative or civil proceedings or actions unless the civil
action is closely linked or related to a criminal proceeding. An example of this is the request for
assistance submitted by the Philippines to the United States to recover the proceeds of corruption of
two former generals of the Armed Forces of the Philippines. The nature of the action subject of the
request for assistance was a civil action for forfeiture, not a criminal proceeding. The request must be
able to establish the relation of a civil action to a criminal proceeding, such as graft and corruption.

Bangladesh also recently requested us for legal assistance under UNTOC to recover US$15 million
surrendered by Kim Wong, which was part of the US$81 million bank heist from the Bangladesh
Central Bank through the hacking of the bank’s SWIFT code. We successfully filed a third-party claim
in the civil forfeiture proceedings and recovered the said amount for them. What was &--153 recovered
was only a small part of the amount stolen, and recovery of the remaining amount may take
considerable time. Please note that in making a request for legal assistance, the law enforcement
agency or prosecution office initiating the request has to be stated and the US does not consider a
Senate or Blue Ribbon investigation to be a proper basis for a request, as an investigation conducted in
aid of legislation or investigation by a congressional committee, such as the Senate Blue Ribbon
Committee, is not the investigation or criminal proceeding contemplated under MLATs.

It must be emphasized that there is no surrender of fugitives in the Mutual Legal Assistance process, as
it is mainly used in gathering evidence to assist the investigation or prosecution that is being conducted
in the requesting State. Unlike extradition, the Philippines does not have a stand-alone legislation on
mutual legal assistance in criminal matters. It is able to provide assistance on the basis of a treaty, law
or reciprocity. At present, the Philippines has MLATs with nine (9) countries, namely: Australia,
China, Hong Kong, South Korea, Russia, Spain, Switzerland, UK and the US. It also has a regional
MLAT with the other nine ASEAN Member States. These MLATs allow a wide range of assistance,
from the provision of documents, taking of evidence or obtaining statements of witnesses, effecting
service of documents, executing requests for search and seizure, ocular inspections, tracing, forfeiture
and confiscation of property derived from the commission of an offense, to appearance of witnesses
before the courts of the requesting state. The UNCAC, UNTOC, ACCT and ACTIP contain provisions
on mutual legal assistance; hence, it can be the basis for a request for assistance. The Philippines will
also be able to seek or provide assistance on the basis of reciprocity. For this, an undertaking has to be
made by the requesting State that it would provide the same type of cooperation to the requested State.
This is quite similar to the request for letter rogatory under our Rules of Court. However, a request for
assistance may be made even at the investigation stage, when law enforcement authorities are still
gathering evidence or determining the identity of the possible perpetrators which is not so in the case of
a letter rogatory as it requires that there be a case already filed in court.

A request for assistance requiring compulsory processes or court intervention for its execution may not
be made on the basis of reciprocity, as the request of this nature may only be made on the basis of a
treaty or a law, such as Republic Act No. 9160, as amended (“Anti-Money Laundering Act of 2001”).
There are challenges that we face in the implementation of MLATs, one of which is the lack of rules on
hearing via videoconference. Recently, a request for assistance submitted by way of letter rogatory was
not implemented by a Philippine court because the procedure sought in taking the statement of the
witness was to be done via videoconference. There are a lot of issues to be considered in taking a
statement of a witness in the Philippines via videoconference. These include the costs, the laws and
rules to be observed, rights to be invoked by the witness, etc. Perhaps this is one aspect of international
legal cooperation that needs to be addressed. We also filed a request for legal assistance with Indonesia
to take the deposition of Mary Jane Veloso inside the Yogyakarta Jail in Indonesia in the presence of
the judge hearing the case against Veloso’s recruiters in Santo Domingo, Nueva Ecija, the recruiters
Sergio and Lacanilao. For ordinary Filipinos, the benefit of being able to request for legal assistance
from other States, be it under a treaty or based on reciprocity, is that crimes committed against them
need not necessarily be left without redress if the evidences for these crimes are found in other States.
The Philippines can obtain this evidence from an MLAT treaty partner or based on reciprocity.
III. Transfer of Sentenced Persons Agreement (TSPA) When all the frenzy and media hype has died
down, with the conviction of the accused, it is now our responsibility to provide for the effective
rehabilitation of the offender, so that he would go back to the fold of the law and he is prevented from
committing further transgressions of the law. Thus, transfer of sentenced persons or transfer of foreign
prisoners is one of the measures of strengthening international legal cooperation in the field of crime
prevention and criminal justice reform. It allows a person convicted and serving a final sentence in a
foreign land to serve his remaining sentence in his or her country of nationality or residence, where his
or her rehabilitation may be properly monitored and within the reach of his family and relatives. &--
155 The Philippines does not have a law on transfer of sentenced persons. In the absence of such
domestic law, transfer of sentenced persons may be carried out through the bilateral agreements of the
Philippines with other countries. The transfer of sentenced persons (TSPA) would serve as the legal
framework for the transfer of sentenced persons to their countries of nationality in order to serve the
remaining portion of their sentence.

At present, the Philippines has TSPAs with Canada, Hong Kong, Spain and Thailand. Only the TSPA
with Hong Kong, Spain and Thailand are enforced, as the TSPA with Canada has yet to be given
Senate concurrence. The Philippines is not a party of the Strasbourg Convention on Transfer of
Sentenced Persons, for the main reason that its accession thereto might violate the constitutional
provision that only the Philippine President can grant pardon, amnesty and commutation of sentence.
The Strasbourg Convention allows the State to which the Philippines has transferred a sentenced
person to grant pardon, amnesty or commutation of sentence, contrary to the Constitution. On
December 6, 2010, the Department of Justice issued a Circular prescribing the rules on the
implementation of the TSPA. The Circular serves as our guide in the implementation of our TSPAs.
The TSPAs and DOJ Circular provide conditions for the transfer, and these include dual criminality,
nationality or residence of the sentenced person, finality of judgment, consents of the sentencing State,
administering State, and the sentenced person or the so-called three-fold consent, minimum service of
sentence, and payment of fines, court costs, and civil indemnities. Overseas Filipino Workers (OFWs)
may have brushes with the law of their host country and may land in jail. The rehabilitation of foreign
prisoners may be more effective if done in their country of nationality or residence as they would be
close to their families and friends, speak the same language and observe the same customs and
traditions as the people working on their rehabilitation. Hence, for OFWs who are in prison abroad,
TSPAs benefit them immensely in this regard.

I have to stress, however, that TSPA is not intended to give special treatment to foreign detainees. It is
only intended to afford foreign prisoners the opportunity to serve their sentence in their country of
nationality or residence. 2017 COLLOQUIUM ON INTERNATIONAL LAW ISSUES 156--&--
PHILIPPINE YEARBOOK OF INTERNATIONAL LAW Foreign prisoners may, in fact, choose not
to serve their sentence in their country of nationality or residence. IV. Recommendations The following
are my recommendations. First, with ten percent (10%) of our population abroad in order to earn a
living and being exposed to falling prey to criminal elements, I believe we should include in our
criminal statutes provisions on their extra-territorial application, especially under the Passive
Personality Principle, which recognizes that a sovereign can adopt laws that apply to foreign nationals
who commit crimes against the sovereign’s nationals outside the sovereign’s territory. Our amended
Anti-Trafficking Law has such extraterritorial application already. In doing so, we can resort to tools of
international cooperation like extradition to extradite the accused to the Philippines for prosecution and
service of sentence.

Second, our Extradition Law, P.D. No. 1069, is antiquated and outmoded. I suggest that it be amended
or repealed and that we consider allowing extradition on the basis of reciprocity. However, I
understand the pros and cons will have to be discussed first as what would work best because
reciprocity may not be as strong a basis for extradition as under a treaty because the other party can
give several reasons to refuse extradition on the basis of reciprocity. Third, we should likewise retract
our declaration in our accession to UNCAC and UNTOC and allow these multilateral conventions to
serve as basis for extradition. The revocation of the declaration does not make it automatically
obligatory on our part to extradite since we still have to be convinced that the human rights of the
potential extraditee shall be respected much in the same way that we have laws which grant
complimentary protection, similar to nonrefoulement under the Anti-Torture and the Anti-
Disappearance Acts. It is also to be noted that the full implementation of UNCAC would only be
possible if the Philippine Extradition Law is amended to include all relevant provisions on extradition
because both UNCAC and P.D. No. 1069 lack a lot of important provisions on extradition, such as
when a requested State Party may consider a request seeking the extradition of its national. The
alternative to this is to make our UNCAC declaration to include all the important provisions required
for its full implementation

Fourth, we should adopt our own law on mutual legal assistance to widen the scope of request for
investigations and aid prosecution in cases. And, finally, on TSPA, we have always encountered
deadlocks in negotiations on the authority to grant pardon or executive clemency as we have to abide
by the constitutional provision, which vests solely in the President the exercise of such power. To make
our stand more palatable in the negotiating table, I suggest that we study a counter proposal of allowing
the other State to grant pardon or executive clemency, provided that it be concurred in by the authority/
authorities of the Philippines. If the result of the study is to consider such a counter proposal, I would
propose to the Office of the President such a course of action.

Between countries, extradition is normally regulated by treaties. Where extradition is compelled by

laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition.
It is an ancient mechanism, dating back to at least the 13th century BCE, when an
Egyptian pharaoh, Ramesses II, negotiated an extradition treaty with a Hittite king, Hattusili III.[2]

In law, rendition is a "surrender" or "handing over" of persons or property, particularly from

one jurisdiction to another. For criminal suspects, extradition is the most common type of rendition.
Rendition can also be seen as the act of handing over, after the request for extradition has taken place.

Rendition can also mean the act of rendering, i.e. delivering, a judicial decision, or of explaining a
series of events, as a defendant or witness. It can also mean the execution of a judicial order by the
directed parties. But extraordinary rendition is distinct from both deportation and extradition, being
inherently illegal.[1]

Each state has a presumptive duty to render suspects on the request of another state, as under the full
faith and credit clause.

The consensus in international law is that a state does not have any obligation to surrender an alleged
criminal to a foreign state, because one principle of sovereignty is that every state has legal authority
over the people within its borders. Such absence of international obligation, and the desire for the right
to demand such criminals from other countries, have caused a web of extradition treaties or agreements
to evolve.

When no applicable extradition agreement is in place, a state may still request the expulsion or lawful
return of an individual pursuant to the requested state's domestic law.[2] This can be accomplished
through the immigration laws of the requested state or other facets of the requested state's domestic
law. Similarly, the codes of penal procedure in many countries contain provisions allowing for
extradition to take place in the absence of an extradition agreement.[2] States may, therefore, still
request the expulsion or lawful return of a fugitive from the territory of a requested state in the absence
of an extradition treaty

No country in the world has an extradition treaty with all other countries; for example, the United
States lacks extradition treaties with China, Russia, Namibia, the United Arab Emirates, North Korea,
Bahrain, and many other countries.[3]