EXPLAINER: Can the Philippines extradite the Napoleses to U.S.?

MANILA, Philippines –  Will the Philippines exrtradite Janet Lim-Napoles to the United States while corruption cases against her are still pending before the anti-graft court Sandiganbayan?

The more important question is: Can that be done, and which government body has the authority? 

The United States Attorney’s Office in California indicted Janet, her 3 children and 2 others of domestic and international money laundering, as well as conspiracy for multi-year bribery and fraud, and expressed interest in extraditing them to the US to put them on trial there.

Justice Secretary Menardo Guevarra said on Wednesday, August 1, that the “pending cases in Philippine courts must first be terminated” before an extradition is possible.

Janet has 5 counts of plunder pending before the anti-graft court Sandiganbayan, and dozens of graft and malversation cases related to the multi-billion pork barrel scam, the earnings from which she allegedly transferred to California accounts to buy assets and business shares.

Janet’s children Jo Christine and James Cristopher, who were also indicted by the US, are facing a hundred counts of graft and malversation before the Sandiganbayan over their connection to the P900-million Malampaya fund scam.

Early extradition? 

But on Friday, August 3, Guevarra said that waiting for the termination of Sandiganbayan cases is only one of two legal options.

“The other is temporarily surrendering her to the US for the money-laundering cases,” said Guevarra.

Contrary to Guevarra’s opinion, however, Sandiganbayan Presiding Justice Amparo Cabotaje Tang said that the anti-graft court has jurisdiction over the Napoles defendants until the termination of their cases.

“The rule in our jurisdiction is that once a court acquires jurisdiction over a case, it continues to do so until the termination of the case. This includes jurisdiction over the person of the accused in a criminal case,” Tang said in a text message to Rappler on Friday.

Now, the extradition treaty is an agreement between the United States and our executive branch. Presidential Decree 1069 or the Philippine Extradition Law names two executive departments in charge of implementing the treaty: the DOJ and the Department of Foreign Affairs (DFA).

What will happen should the DOJ – or any executive department for that matter insist on extraditing the Napoleses ahead of the termination of their cases?

The executive department would still have to get the Sandiganbayan’s permission, according to former DOJ undersecretary Jose Justiniano, who was also deputized as a special prosecutor by the Office of the Ombudsman during the investigation of the pork barrel scam.

Ang mangyayari diyan kung gusto ng DOJ na ma-extradite, ‘yung Solicitor General ang magfa-file sa Sandiganbayan, and siyempre itong Ombudsman naman likely ay mago-oppose,” Justiniano told Rappler over the phone on Friday.

(What will happen there is if the DOJ wants to extradite, the Solicitor General would file the petition at the Sandiganbayan, after which the Ombudsman would likely oppose.) 

Of course, the probability of opposition by the Ombudsman will depend on the policy and vision of new Ombudsman Samuel Martires.

In the case of a standoff, it will be up to, who else but the Supreme Court.

"There is no SC decision yet on that issue that can guide us," Tang said.

Good idea or not?

"Anyone who gets extradited will be held in custody in the requesting state (the US) until the completion of the court proceedings therein," said Guevarra.

For Justinianio, it is better to wait for the Sandiganbayan to be finished with all the judgments in the Napoles cases before they can be extradited.

“Aba eh 'pag pinapunta mo na sa Amerika 'yan, ang magkaka jurisdiction na niyan ay US court hindi na mababawi yun, hintayin na lang ang resulta ng Sandiganbayan,” Justiniano warned. 

(If you let them go to America, the US would take over jurisdiction of them and we cannot get them back, so let’s just wait for the results of Sandiganbayan.)

Others 

Also indicted is Janet’s youngest daughter Jeane Catherine, who was previously cleared of a P17-million tax evasion case by the Court of Tax Appeals.

Janet’s brother Reynald Lim was also indicted by the US but he has been evading arrest for 4 years now or since 2014. A certain Ana Marie Lim was also indicted.

There is a civil forfeiture case in the US against the Napoles family’s $12.5 million worth of Southern California real estate properties.

“If the court orders the assets forfeited, the United States will work with Philippine officials in an attempt to return the stolen funds back to the Philippine government,” said the US Attorney’s Office. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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