VICTOR BOKOVSKY, PETITIONER, VS. THE COMMISSIONER OP IMMIGRATION AND THE DIRECTOR OF PRISONS, RESPONDENTS.

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.