90 Phil.

107

[ G. R. No. L-4352, September 28, 1951 ]

VICTOR BOKOVSKY, PETITIONER, VS. THE COMMISSIONER OP

IMMIGRATION AND THE DIRECTOR OF PRISONS, RESPONDENTS.

DECISION

TUASON, J.:

This is a second petition for habeas corpus filed by the petitioner with this Court, the first
having been denied in a decision promulgated on June 30, 1949.

Victor A. Borovsky, the petitioner, claims to be a stateless citizen, born in Shanghai, China, of
Russian parentage. He came to the Philippines in 1936 and had resided therein ever since, if
the period of his detention be included.

On June 24, 1946, by order of the Commissioner of Immigration, the petitioner was arrested
for investigation as to his past activities. Following his arrest, a warrant for his deportation
was issued by the Deportation Board, which is said to have found him an undesirable alien, a
vagrant and habitual drunkard. The petitioner protests that he was not given a hearing, nor
informed of the charges preferred against him. This point however is unimportant in this
proceeding.

In May, 1947, the petitioner was put on board a ship which took him to Shanghai, but he was
not allowed to land there because he was not a national of China and was not provided with
an entry visa. He was therefore brought back to Manila and was confined to the new Bilibid
Prison in Muntinlupa until December 8, 1947, when he was granted provisional release by
the President through the Secretary of Justice for a period of six months. Before the
expiration of that period, namely, on March 20, 1948, the Commissioner of Immigration
caused his rearrest and he has been in confinement in the abovementioned prison ever
since.

In his return to the writ, the Solicitor General in behalf of the respondents alleges that the
Commissioner of Immigration "has availed of every opportunity presented to carry out the
deportation order as shown by the fact that when the petitioner was enjoying his provisional
release after the unsuccessful attempt to deport him to Shanghai, China, he was again re-
arrested and flown to Cebu for the purpose of placing him on board a Russian vessel which
had called at the port, with a view to carrying out the deportation order issued against him,
but said deportation was not carried out for the reason that the captain of the said boat
refused to take on board the herein petitioner on the ground that he had no permission from
the Russian government to take on board the petitioner." It is further alleged that "the
immigration officials have taken steps regarding the disposition of those foreigners subject to
deportation while awaiting availability of transportation or arrangements to the place where
they may be sent."
In this Court's majority decision on the first application it was observed that the applicant's
detention was temporary, and it was held that "temporary detention is a necessary step in
the process of exclusion or expulsion of undesirable aliens and that pending arrangements
for his deportation, the Government has the right to hold the undesirable alien under
confinement for a reasonable length of time." It took note of the fact that "this Government
desires to expel the alien, and does not relish keeping him at the people's expense * * *
making efforts to carry out the decree of exclusion by the highest officer of the land." No
period was fixed within which the immigration authorities were to carry out the contemplated
deportation beyond the statement that "The meaning of 'reasonable time' depends upon the
circumstances, specially the difficulties of obtaining a passport, the availability of
transportation, the diplomatic arrangements with the governments concerned and the efforts
displayed to send the deportee away," but the Court warned that "under established
precedents, too long a detention may justify the issuance of a writ of habeas corpus."

Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of
this decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge
of the prisoner from custody. Mr. Justice Paras qualified his dissent by stating that he might
agree "to a further detention of the herein petitioner, provided that he be released if after six
months, the Government is still unable to deport him." This writer joined in the latter dissent
but thought that two months constituted reasonable time.

Over two years having elapsed since the decision aforesaid was promulgated, the
Government has not found ways and means of removing the petitioner out of the country,
and none are in sight, although, it should be said in justice to the deportation authorities, it
was through no fault of theirs that no ship or country would take the petitioner.

Aliens illegally staying in the Philippines have no right of asylum therein (Soewapadji vs.
Wixon, Sept. 13, 1946, 157 F. ed., 289, 290), even if they are "stateless," which the
petitioner claims to be. It is no less true however, as impliedly stated in this Court's decision,
supra, and numerous American decisons, that foreign nationals, not enemy, against whom
no. criminal charges have been formally made or judicial order issued, may not indefinitely
be kept in detention. The protection against deprivation of liberty without due process of law
and except for crimes committed against the laws of the land is not limited to Philippine
citizens but extends to all residents, except enemy aliens, regardless of nationality. Whether
an alien who entered the country in violation of its immigration laws may be detained for as
long as the Government is unable to deport him, is beside the point and we need not decide.
There is no allegation that the petitioner's entry into the Philippines was not lawful; on the
contrary, the inference. from the pleadings and the Deportation Board's findings is that he
came to and lived in Uiia country under legal permit.

Moroever, by its Constitution (Art. II, sec. 3) the Philippines "adopts the generally accepted
principles of international law as part of the law of Nation." And in a resolution entitled
"Universal Declaration of Human Rights" and approved by the General Assembly of the
United Nations of which the Philippines is a member, at its plenary meeting on December 10,
1948, the right to life and liberty and all other fundamental rights as applied to all human
beings were proclaimed. It was there resolved that "All human beings are bom free and
equal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and freedom
set forth in this Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, nationality or social origin, property, birth, or
other status (Art. 2); that "Everyone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted him by the Constitution or
by law" (Art. 8) ; that "No one shall be subjected to arbitrary arrest, detention or exile" (Art.
9) ; etc.

In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release
from custody an alien who has been detained an unreasonably long period of time by the
Department of Justice after it has become apparent that although a warrant for his
deportation has been issued, the warrant can not be effectuated;" that "the theory on which
the court is given the power to act is that the warrant of deportation, not having been able to
be executed, is functus officio and the alien is being held without any authority of law." The
decision cited several cases which, it said, settled the matter definitely in that jurisdiction,
adding that the same result had been reached in innumerable cases elsewhere. The cases
referred to were United States ex rel. Boss vs. Wallis, 2 Cir. 279 F. 401, 404; Caranica vs.
Nagle, 9 Cir., 28 P. 2d 955; Saksagansky vs. Weedin, 9 Cir.. 53 F. 2d IS, 16 last paragraph;
Ex parte Matthews, D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942,
46 F. Supp. 425.

The most recent case, as far as we have been able to find, was that of Staniszewski vs.
Watkins (1948), 80 Fed. Supp. 132, which is nearly foursquare with the case at hand. In that
case a stateless person, formerly a Polish national, resident in the United States since 191T
and many times serving as a seaman on American vessels both in peace and in war, was
ordered excluded from the United States and detained at Ellis Island at the expense of the
steamship company, when he returned from a voyage on which he had shipped from New
York for one or more European ports and return to the United States. The grounds for his
exclusion were that he had no passport or immigration visa, and that in 1937 had been
convicted of perjury because in certain documents he represented himself to be an American
citizen. Upon his application for release on habeas corpus, the Court released him upon his
own recognizance. Judge Leibell, of the United States District Court for the Southern District
of New York, said in part:

"When the return to the writ of habeas corpus came before this court, I suggested
that all interested parties * * * make an effort to arrange to have the petitioner
ship out to some country that would receive him as a resident. He is a native-born
Pole but the Polish Consul has advised him in writing that he is no longer a Polish
subject. This Government does not claim that he is a Polish citizen. His attorney
says he is stateless. The Government is willing that he go back to the ship, but if
he were sent back aboard ship and sailed to the port (Cherbourg, France) from
which he last sailed to the United States he would probably be denied permission
to land. There is no other country that would take him, without proper
documents.

"It seems to me that this is a genuine hardship case and that the petitioner
should be released from custody on propel" terms * * *

"What is to be done with the petitioner? The government has had him in custody
almost seven months and practically admits it has no place to send him out of this
country. The steamship company, which employed him as one of a group sent to
the ship by the Union, with proper seaman's papers issued by the United States
Coast Guard, is paying $3.00 a day for petitioner's board at Ellis Island. It is no
 fault of the steamship company that petitioner is an inadmissible alien as the
immigration officials describe him * * *

"I intend to sustain the writ of habeas corpus and order the release of the
petitioner on his own recognizance. He will be required to inform the immigration
officials at Ellis Island by mail on the 15th of each month stating where he is
employed and where he can be reached by mail. If the government does succeed
in arranging for petitioner's deportation to a country that will be ready to receive
him as a resident, it may then advise the petitioner to that effect and arrange for
his deportation in the manner provided by law."

Although not binding upon this Court as a precedent, the case aforecited offered a happy
solution to the quandary in which the parties here find themselves, solution which we think is
sensible, sound and compatible with law and the Constitution. For this reason, and since the
Philippine law on immigration was patterned after or copied from the American law and
practice, we choose to follow and adopt the reasoning and conclusions in the Staniszewski
decision with some modifications which, it is believed, are in consonance with the prevailing
conditions of peace and order in the Philippines.

It was said or insinuated at the hearing of the petition at bar, but not alleged in the return,
that the petitioner was engaged in subversive activities, and fear was expressed that he
might join or aid 'the disloyal elements if allowed to be at large. Bearing in mind the
Government's allegation in its answer that "the herein petitioner was brought to the
Philippines by the Japanese forces," and the fact that Japan is no longer at war with the
United States or the Philippines nor identified with the countries allied against those nations,
the possibility of the petitioner's entertaining or committing hostile acts prejudicial to the
interest and security of this country seems remote.

If we grant, for the sake of argument, that such a possibility exists, still the petitioner's
unduly prolonged detention would be unwarranted by law and the Constitution, if the only
purpose of the detention be to eliminate a danger that is by no means, actual, present, or
uncontrollable. After all, the Government is not impotent to deal with or prevent any threat
by such measure as that just outlined. The thought eloquently expressed by Mr. Justice
Jackson of the United States Supreme Court in connection with the application for bail of ten
Communists convicted by a lower court of advocacy of violent overthrow of the United States
Government is, in principle pertinent and may be availed of at this juncture. Said the learned
Jurist:

"The Government's alternative contention is that defendants, by misbehavior after

conviction, have forfeited their claim to bail. Grave public danger is said to result
from what they may be expected to do, in addition to what they have done since
their conviction. If I assume that defendants are disposed to commit every
opportune disloyal act helpful to Communist countries, it is still difficult to
reconcile with traditional American law the jailing of persona by the courts
because of anticipated but as yet uncommitted crimes. Imprisonment to protect
society from predicted but unconsummated offenses is so unprecedented in this
country and so fraught with danger of excesses and injustice that I am loath to
resort to it, even as a discretionary Judicial technique to supplement conviction of
such offenses as those of which defendants stand convicted.
 *******

"But the right.of every American to equal treatment before the law is wrapped up
in the same constitutional bundle with those of these Communists. If in anger or
disgust with these defendants we throw out the bundle, we also cast aside
protection for the liberties of more worthy critics who may be in opposition to the
government of some future day.

*******

"If, however, I were to be wrong on all of these abstract or theoretical matters of

principle, there is a very practical aspect of this application which must not be
overlooked or underestimated— that is the disastrous effect on the reputation of
American justice if I should now send these men to jail and the full Court later
decide that their conviction is invalid. All experience with litigation teaches that
existence of a substantial question about a conviction implies a more than
negligible risk of reversal. Indeed this experience lies back of our rule permitting
and practice of allowing bail where such questions exist, to avoid the hazard of
unjustifiably imprisoning persons with consequent reproach to our system of
justice. If that is prudent judicial practice in the ordinary case, how much, more
important to avoid every chance of handing to the Communist world such an
ideological weapon as it would have if this country should imprison this handful of
Communist leaders on a conviction that our own highest Court would confess to
be illegal. Risks, of course, are involved in either granting or refusing bail. I am
not naive enough to underestimate the troublemaking propensities of the
defendants. But, with the Department of Justice alert to the dangers, the worst
they can accomplish in the short time it will take to end the litigation is preferable
to the possibility of national embarrassment from a celebrated case of unjustified
imprisonment of Communist leaders. Under no circumstances must we permit
their symbolization of an evil force in the world to be hallowed and glorified by
any semblance of martyrdom. The way to avoid that risk is not to jail those men
until it is finally decided that they should stay jailed."

If that ease is not comparable with ours on the issues presented, its underlying principle is of
universal application. In fact, its ratio decidendi applies with greater force to the present
petition, since the right of accused to bail pending appeal of his ease, as in the case of the
ten Communists, depends upon the discretion of the court, whereas the right to be enlarged
before formal charges are instituted is absolute. As already noted, not only are there no
charges pending against the petitioner, but the prospects of bringing any against him are
slim and remote.

Premises considered, the writ will issue commanding the respondents to release the
petitioner from custody upon these terms: The petitioner shall be placed under the
surveillance of the immigration authorities or their agents in such form and manner as may
be deemed adequate to insure that he keep peace and be available when the Government is
ready to deport him. The surveillance shall be reasonable and the question of reasonableness
shall be submitted to this Court or to the Court of First Instance of Manila for decision in case
of abuse. He shall also put up a bond for the above purpose in the amount of P5,000.00 with
sufficient surety or sureties, which bond the Commissioner of Immigration is authorized to
exact by Section 40 of Commonwealth Act No. 613. No costs will be charged.
Paras, C. J., Feria, Bengzon, Padilla, and Reyes, JJ., concur.

Jugo, J., concurs in the result.

DISIDENTE

PABLO,M., disidente:

La primera causa de Habeas Corpus (G. R. No. L-2852) presentada por el hoy recurrente ha
sido denegada por este Tribunal en 30 de junio de 1949. Las conclusiones de hecho de dicha
decision son las siguientes:

"In December, 1946, the President of the Philippines ordered petitioner's

deportation as undesirable alien, after a proper investigation by the Deportation
Board upon charges of being a vagrant and habitual drunkard, engaged in
espionage activities, whose presence and conduct endangered the public interest.
Pursuant to such order, Borovsky was placed aboard a vessel bound for Shanghai;
but the authorities there declined to admit him for lack of the proper visa, which
the Chinese consulate in this country had refused to give. Wherefore he was
brought back to the Philippines. Thereafter he was temporarily released pending
further arrangements for his banishment. And when subsequently a .Russian boat
called at Cebu, Borovsky was re-arrested and transported to Cebu for
deportation; however, the captain of the boat declined to take him, explaining he
had no permission from his government to do so. Wherefore the petitioner is now
confined in the premises of the New Bilibid Prisons—not exactly as a prisoner—
while the Government is exerting efforts to ship him to a foreign country."

Por segunda vez el recurrente reclama que tiene derecho a ser puesto in libertad. En mi
opinion, esta segunda solicitud debe denegarse. Hay una orden de deportacion contra el y si
esa orden no se ha realizado aim, no es porque el gobierno no lo quiera, sino porque no ha
encontrado hasta ahora medios para efectuarlo.

Un vago, borracho y espia no debe permanecer ni un minuto en Filipinas; es un elemento

indeseable no solamente aqui sino tal vez en su propio pais. Si las autoridades de Shanghai
de donde el habia procedido al venir aqui, le habian rechazado cuando alii fue deportado,
debian tener buenas razones; y si el capitan del barco ruso no quiso recibir al recurrente
alegando que no tenia permiso de su gobierno, sera porque el recurrente no debia merecer
ninguna clase de consideracion. El capitan del barco hubiera podido ingeniar cualquier medio
para repatriar al recurrente si este merecia la pena de tal esfuerzo.

El recurrente no tiene derecho a estar aqui libre por sus defectos personales, especialmente
hoy en que elementos malguiados desean destruir la sociedad matando a mansalva viejos,
nifios y mujeres embarazadas. El recurrente seria otro elemento mas que empeoraria la
situacion. Si esta hoy detenido provisionalmente en Muntinglupa no es porque lo quiera el
Gobierno; tan pronto como haya transports disponible o en cuanto el encuentre medios de
salir de Filipinas, se le pondria en libertad.
Citaremos un caso hipotetico: Si al anochecer, el duefio de una casa encuentra en el portico
de ella un borracho, vago y andrajoso, suplicando se le de pan y, por compasion, se le
alimenta y se le cede una habitacion en la cochera, y durante su estaneia se dedica a
actividades de espia, se emborracha y da mal ejemplo a la servidumbre, esta obligado el
duefio de la casa a retenerle y dejarle libre a. deambular por donde quiera? Creemos que el
intruso ha abusado de los privilegios de un huesped. El duefio de la casa tiene perfecto
derecho a echarle y que vaya con sus unpertinencias a otra parte. La hospitalidad national no
debe ser menos que la domestica o individual. El extranjerq puede permanecer en un
territorio mientraa se porta Men, pero en cuanto se dedica a actividades de espionaje, en
cuanto se deja llevar por el vicio de la borrachera y no busca trabajo honrado, desde ese
momento pierde su derecho a permanecer. De ahi es que el ingenio humano invento la
deportacion eomo un instrumental de que se vale el gobierno para expulsar del territorio a
extranjeros indeseables.

Se invoca la "Universal Declaration of Human Rights", una de cuyas disposiciones establece

que "no one shall be subjected to. arbitrary arrest, detention or exile." (Art. 9). El recurrente
no tiene derecho a invocar a su favor esta disposition puesto que no se le arresto
arbitrariamente ni se le detiene sin ningun motivo. Su arresto y detention estan justificados
por su eonducta. Un beodo empedernido, un espia, un vago, es peor que un microbio del
colera.morbo; debe ser desechado para que no cause males a la sociedad. Su deportacion es
un medio necesario e indispensable para. preserver la salud de la nacion.

Se cita el caso de U. S. contra Nichols, en el cual se dice que el Juzgado tiene poder para
liberar a un extranjero que ha sido detenido por un tiempo irrazonablemente largo por el
Departaniento de Justicia, aunque se haya expedido una orden de deportacion, euando
aparece que esta no se puede efectuar (47 Fed. Rep. 201). No existen pruebas de que ya es
imposible eneontrar barcos para la deportation del recurrente. Las condiciones pueden
mejorar. El recurrente solamente fue detenido desde diciembre de 1946; no han transcurrido
cinco anos. En cambio, William Martin Jurgans fue arrestado en 9 de marzo de 1920; en 20
de mayo se decreto su deportacion por el Secretario del Trabajo por sus actividades
comunistas; solicito su libertad por medio del recurso de habeas corpus, que se denego en
16 de febrero de 1927; transcurrieron mas de seis anos y no se le pudo deportar porque "the
necessary arrangements for his deportation could obviously not be made." (District Court of
Minnesota, 17 F, 2nd Series, 507).

La duracion de la detencion no tiene importancia en casos de la misma naturaleza; depende

de muchas circunstancias. Asi en Moraitis vs. Delany, 46 F. Supp. 425, se dijo:

"What constitutes a reasonable time for the detention of the petitioner in custody for
deportation depends upon the facts and circumstances of particular eases. This court cannot
shut its eyes to the vitally important interests of this country at this time with respect to the
bottleneck of shipping, when every available ship, domestic and foreign, must be utilized to
the utmost without delay consequent upon the lack of available seamen. Under this present
conditions the court shouldbe liberal indeed in aiding the executive branch of the government
in the strict enforcement of laws so vitally necessary in the common defenser There is sound
authority for this view in United States ex. rel. Schlimm ve, Howe, D.C.N.Y. . 222 F. 96, 97,
where Circuit Judge Lacombe refused to release an alien who had come here from Germany
and was ordered deported in 1915 when, by reason of the then existing war between
Germany and England, his deportation to Germany was not possible. It was said:
" 'At the present time there is no regular passenger ocean service to German ports, so the
authorities are unable to -forward him, and are holding him until some opportunity of
returning him to Germany may present itself. His continual detention is unfortunate, but
certainly is not illegal. His present condition can be alleviated only ~by the action of the
executive branch of the government. A federal court would not be justified in discharging
him.'

*******

"If he is not really fit for sea service, it is not probable that he would be forced into it,
although he may be able to serve his government in some other capacity. But however that
may be, while this country has no power under existing legislation to impress him into sea
service against his will, he has no just cause to be relieved from the strict enforcement of our
deportation laws, and to remain at liberty in this country as a sanctuary contrary to our
laws."

Se invoca tambien el asunto de Staniszewski vs. Watkins (80 Fed. Supp., 132) que no tiene
similitud con la presente causa. Staniszewski habia estado residiendo en America desde
1911, trabajando como marino en barcos mercantes americanos en tiempos de paz y de
guerra, y se ordeno su detencion en Ellis Island cuando volvio a America procedente de un
viaje a Europa, por no tener papeles de inmigracion. Staniszewski ya era habitante de los
Estados Unidos por bastante tiempo; se dedicaba a la oeupacion de marino, que es un oficio
honroso y decente; pero el recurrente, como ya ha dicho este Tribunal, es un borracho
habitual, un vago, y se dedicaba al espionaje. No debe confundirse un marino con un vago;
el primero se alimenta con el producto del sudor de su frente, el segundo no haee nada,
explota la caridad publica, y, si no consigue alimento por las buenas, indudablemente tendra
que emplear recursos ilicitos. Un espia, especialmente en estos tiempos criticos por que
atraviesa el pais, pone en peligro la seguridad del estado; su libertad representa un peligro
para el estado y se le debe denegar. Opino que el recurrente debe ser detenido hasta que se
encuentren medios de deportarle.

Poner al recurrente bajo la vigilancia de las autoridades de inmigracion o de sus agentes es

aumentar las atenciones y gastos del gobierno por motivos baladies; el Estado no esta hoy
en condiciones de emplear policias para el uso exclusivo del recurrente. Tampoco estoy
eonforme con que se le exija que preste flanza de P5,000. Tal exigeneia equivale a una burla.
Quien se fiara de un beodo, "vago y espia? Si consigue prestar fianza, sera porque alguien
esta interesado en su libertad para que pueda continuar con sus actividades de espia.

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