BORIS MEJOFF, PETITIONER.VS. THE DIEECTOR OF PRISONS, RESPONDENT.

This is a second petition for habeas corpus by Boris
Mejoff, the first having been denied in a decision of this Court of
July 30, 1949. The history of the petitioner’s detention was thus
briefly set .forth in that decision, written by Mr. Justice Bengzon:

“The petitioner Boris Mejoff is an alien of Kusaian
descent who was brought to this country from Shanghai as a secret
operative by ths Japanese forces during1 the latter’s regime in these
Islands. Upon liberation he was arrested as a Japanese spy, by U. S.
Army Counter Intelligence Corps. Later he was handed to the
Commonwealth Government for disposition in accordance with Commonwealth
Act No. 682. Thereafter the People’s Court ordered his release. But the
Deportation Board taking his case up, found that having no travel
documents Mejoff was. illegally, in “this, country, and consequently
referred the matter to the immigration authoi-ities. After the
corresponding investigation, tho Board of Commissioners of Immigration
on April 5, 1948, declared that Mejoff had entered the Philippines
illegally in 1944, without inspection and admission by the immigration
officials at a designation port of entry andf therefore, it ordered
that he be deported on the first available transportation to Russia.
The petitioner was then under custody, he having been arrested on March
1.8, 1948. In May 1948 he was transferred to the Cebu, Provincial Jail
together with three other Russians to await the arrival of some Russian
vessels. In July and August of that year two boats of Russian
nationality called at the ‘Cebu Port. But their masters refused to take
petitioner and his companions alleging lack of authority to do so. In
October 1948 after repeated failures to ship this deportee abroad, the
authorities removed him to Bilibid Prison at Muntinglupa where he has
been confined up to the present time, inasmuch as the Commissioner of
Immigration believes it is for the best interests of the country to
keep him under detention while arrangements for his departure are being
made.”

The Court held the petitioner’s detention temporary and said that
“temporary detention is a necessary step in the proeess of exclusion or
expulsion of undersirable aliens and that pending arrangements for his
deportation, the Government has the right to hold the undersirable
alien under confinement for a reasonable length of time.” It took note
of the fact, manifested by the Solicitor General’s representative in
the course of the oral argument, 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 should 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. 18, 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, that
foreign nationals, not enemy, against whom no charge has been made
other than that their permission to stay has expired, 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 a point we need not decide. The petitioner’s
entry into the Philippines was not unlawful; he was brought by the
armed and belligerent forces of a de facto government whose decrees were law during the occupation.

Moreover, 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 born 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 “Every one 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
lawTl-^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 offlcio and
the alien is being held without any authority of law.” The decision
cited several eases 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 F. 2d 955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F. 857; Moraitls 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 1911 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 coiyus, the Court released him upon his own recognizance. Judge
Lieibell, 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 of some
country that would receive him as a resident. lie 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 proper 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 P3 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 informthe 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
arrangefor his deportation in the manner provided by law.”

Although not binding upon this Court as a precedent, the case
aforecited affords 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
Governmerit’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 these 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 uneontrolable. 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 thiit 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 o£
persons 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 bo
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 m 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 Iroublemaking 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 Co circumstances roust 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 these men until it is finally decided that they should stay
jailed.”

If that case 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 case, 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 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, Reyes, and Jugo, JJ., concur.

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PABLO, M.,

Disiento.

En decision distada por este Tribunal en la primera causa de habeas corpus ineoada por el solicitante Boris Mejoff (G. E. No. L-2855, Mejoff vs. Director of Prisons) ^[*],
se declaro que el habia venido a Filipinas procedente de Shanghai como
espia del ejercito japones; en la liberacion, el ejercito americano le
arresto por ser espia, habiendo sido mas tarde entregado al Gobierno
del Commonwealth para ser tratado de acuerdo con la ley No. 682; pero
como bajo el Codigo Penal Revisado, antes de su enmienda por la Orden
Ejecutiva No. 44, (mayo SI, 1945) no se castiga al extranjero que
comete traicion, Mejoff fue puesto en libertad. Despues de una debida
investigacidn, la Junta de Deportacion encontro que el solicitante no
tenia permiso para entrar en Filipinas; fue entregado a la Junta de
Inmigracion, la cual ordeno su deportacion a Rusia por el primer
transporte disponible por haber venido aqui ilegalmente; fue enviado a
Cebu para que alii se embarcase, pero los dos bareos de nacionalidad
rusa que llegaron a dicho puerto en Julio y agosto de 1948 rehusaron
admitirle. Por no encontrar transportacion para su deportacion, Mejoff
fue enviado a la Prision de Muntinglupa, donde esta actualmente
detenido mientras el Gobierno no encuentra medio de transportarle a
Rusia. :

La mayoria contiende que “The Petitioner’s entry into the
Philippines was not unlawful; he was brought by the armed and
belligerent forces of a de facto government whose decrees
were law during the occupation.” Es tan ilegal la entrada del
solicitante como la del ejercito al que sirvio como espia. Ninguno
tiene dereeho a permanecer aqui. Puesto que fue veneido el ejereito
invasor que le trajo, el solicitante no tiene dereeho a permanecer aqui
ni un minuto mas. Si desea proteccion, debe acudir al Gobierno Japones
a cuyo ejereito el sirvio; el hecho de que ya esta aqui no le da titulo
para permanecer libre aqui. El que ha venido como espia del enemigo del
Pueblo de Filipinas no tiene dereeho a pedir igual trato que aquel que
ha entrado de buena fe. ¿Es que Filipinas tiene la obligation de acoger
a un ciudadano indeseable de Rusia? ¿Desde euando tiene que allanarse
una nacion a ser residencia de un extranjero que entro conio enemigo o,
peor aun, como espia? Un Estado tiene indiscutible dereeho a deportar y
expulsar de su territorio a todo extranjero indeseable.

El solicitante sostiene que ho tiene estado. Eso no es razon para
que tenga dereeho a permanecer aqui. Puede ser deportado a Rusia o a
Shanghai de donde vino. Si todos los rusos que, por alguno que otro
motivo, o por odio al coraunismo, dejasen su pais y emigrasen aqui
reclamando igual dereeho, no habria territorio suflciente para ellos.
Se puede decir otro tanto de los chinos que, so pretexto de no querer
someterse al regimen comunista, optasen por residir para siempre aqui.
Y si los mismos comunistas chinos viniesen clandestinamerite y despues
reelamasen igual proteccMn como la concedida a Mejoff, ¿tendremos que
darles por el gusto?

Se invoca la resolution aprobada por la Asamblea General de las
Naciones Unidas, titulada “Universal Declaration of Human Rights”, en
la que se establece, entre otras cosas, que “no one shall be subjected
to arbitrary arrest, detention or exile.” Yo soy de los que ereen
firmemente en lo sagrado de esta resolution; no puedo permitir que se
detenga y se arreste a alguien sin motivo justificado, de una manera
arbitraria; pero el solicitante no esta detenido de esta manera, lo
esta de una manera provisional. Tan pronto como haya barco disponible
para su deportacion o tan pronto como pueda embarcarse en algun barco
para el extranjero o para eualquier otro punto a donde quiera ir,
dejara de ser detenido. Conste que no esta preso eomo un criminal
condenado por un delito; esta tratado como eualquier otro extranjero
sujeto a deportacion. Si el solicitante no hubiera sido espia, si no
hubiera venido aqui para ayudar a las hordas japonesas en la
subyugaeion del pueblo fllipino, si hubiera venido como visitante, por
ejemplo, y, por azares de la fortuna, no pudo salir, yo seria el
primero en abogar por su liberacion inmediata.

Se cita el caso de Staniszewski vs. Watkins, (1948 A.M.C.
931, 42 American Journal of International Law, 732) en el cual el
recurrente estuvo detenido ya casi siete meses cuando se decreto su
libertad en uti recurso de habeas corpus. En nuestra opinion,
dicho caso no tiene similitud con la causa presente. Staniszewski era
residente de los Estados Unidos desde 1911; estuvo sirviendo como
marino en barcos mercantes amerieanos en tiempo de paz y en tiempo 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 no habia entrado en los Estados Unidos como espia, estuvo
residiendo en dicho pais por varios aiios, era ya habitante de los
Estados Unidos. La ocupacion de marino es honrosa, la del espia
mercenario, detestable. El espia es peor que el enemigo. Este luclia
cara a cara, y el espia, con disfmulo y arte engafiosa, escucha lo que
le interesa a su amo para comunicarselo. Es justo que a Staniszewski se
le haya puesto en libertad. Poner en iibertad a un espia es poner en
peligro la seguridad del Estado.

En cuante a la duracion de la detencion provisional del recurrente,
no hay regla fija; depende de la circunstancia de cada caso particular.
Es evidente que los medios de comunicaeion entre Filipinas y Rusia o
Shanghai, debido a falta de relaciones diplomaticas, son completamente
anormales. No es culpa del gobierno el que no encuentre medios de
transportacion para el.

La Comision de Inmigracion ha dado pasos para que la International
Refugee Organization of the United Nations (IRO) se hiciera cargo del
recurrente para que pusda ser repatriado o enviado a otro pals
extranjero; pero el Jefe de dicha organization contest6 que no estaba
en oondiciones para aceptar dicha recomendaeion.

William Martin Jurgans file arrestado en 9 de enero de 1920, en 20
de mayo se decreto su deportacion por el Sub Secretario del Trabajo por
violacion de la Ley de Inmigracion; solicito su libertad bajo el
recurso de Habeas Corpus, y en 16 de febrero de 1927 se denego su
petition; 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). Como se veri, la detention
provisional de William Martin Jurgans duro mas de seis afios; la de
Mejoff no ha sido mas que de 31 meses, y no porque el gobierno no
quiere deportarle, sino porque no hay medio disponible para realizarlo.

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 cases. 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 these present
conditions the court should be liberal indeed in aiding the executive
branch of the government in the strict enforcement of laws so vitally
necessary in the common defense. There is sound authority for this view
in United States ex. Tel. Sehlimre vs. Howe, D. C. N. T. 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 contiaty to our laws.”

No es arbitraria la detencion de Mejoff. Esta justincada por las circunstancias anormales.

La proposicion de vigilar al recurrente hasta que el gobierno
encuentre transporte para su deportacion, supone un gasto innecesario.

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^[*] 84 PHI., 218.