G.R. No. L-9700. February 28, 1962
ONG HEE SANG, ETC., ET AL., PETITIONERS AND APPELLEES, VS. THE HON. COMMISSIONER OF IMMIGRATION AND RICARDO PORTUGAL, RESPONDENTS AND APPELLANTS.
BARRERA, J.:
the decision of the Court of First Instance of Manila (in Spec. Proc.
No. 22953), insofar as it orders the release (pending their
deportation) of petitioners Ong See Sang, Go Siok Chuio, Go Kipt See
(represented by Go Seng Kue), Qua Siok Ting, Lim Eng King, Lim Eng
Sing, Lim Eng Suan (represented by Lim Giok Tim), Li Kua Hua, Tan Chee
Pick (represented by Yu Hua), Ong Siok Ting, and Wang Pong (represented
by Ong Si), upon their filing of a bond, conditioned upon their
presentation to the Bureau of Immigration, when the latter is in a
position to effectuate their deportation, and subject to such other
conditions as may be imposed by respondent Commissioner of Immigration.
The facts of the case are succinctly stated in the decision of the trial court, to wit:
“Petitioners who are Chinese nationals are natives
of Amoy, China. They left Amoy to live in Hongkong but with intentions
to return to their native place. Their desire to return to Amoy was,
however, frustrated when the Chinese communists took over the Chinese
mainland.“While in Hongkong, they made a trip to Japan and
on their return to Hongkong, they passed through the port of Manila
where they arrived on November 3, 1952 on board the S.S. Cleveland.
They were allowed by the Philippine Immigration authorities to
disembark from the S.S. Cleveland for the purpose of taking another
means of transportation to Hongkong, for which they were given up to
November 28, 1952. Despite the period of time given them within which
to leave the Philippines, and notwithstanding the availability of
surface and air transportation to Hongkong, petitioners failed to
comply with the condition imposed for their temporary stay in the
Philippines. On November 29, 1952, warrants for their arrest were
accordingly issued by the Immigration authorities, but the warrants
were, subsequently, lifted upon representations made that petitioners
would leave for Formosa, through the Chinese Embassy in the
Philippines, but up to this date no action had been taken on the said
application by the Chinese Nationalist government in Taipei.“The
records disclose that on August 20, 1953, petitioner Ong Hee Sang gave
birth to a child, Bernard Go (Exh. B); that on September 1, 1953,
petitioner Qua Siok Ting gave birth to a girl, Lily Lim (Exh. A); that
on Sept. 20, 1953, petitioner Lee Kim Hue gave birth to a boy, Johnny
Yu (Exh. D); and that on January 29, 1954, petitioner Ong Siok Tan gave
birth to a girl, Linda Ngo (Exh. C). These four children who have been
separated from their respective mothers are now under the care of
friends of petitioners.“Not having heard anything from the
Taipei government as to the result of their visa application, and as
their reentry visas to Hongkong had expired on April 21, 1953, herein
petitioners on April 6, 1954 applied for reentry visas to Hongkong
through the British Legation in Manila (Exhs. E, F, G, H, and I).
Notwithstanding the telegraphic advice from a friend in Hongkong that
their reentry visas would soon be granted (Exh. I), petitioners and
respondents are agreed that the issuance of reentry visas to Hongkong
depends solely on the will and pleasure of the authorities there. Ang
Go San Kue testified that he could not be sure when the said visas were
forthcoming, if they were to be granted at all by the Immigration
authorities of the Crown Colony.“Petitioners having failed
to leave the Philippines pursuant to the condition under which they
were allowed to disembark from the S.S. Cleveland, the Immigration
authorities, on April 20, 1953, issued warrants for their arrests.
After due investigation, during which they were allowed to bail, the
Board of Commissioners of Immigration found that petitioners had
violated the condition of their temporary stay, thus rendering
themselves subject to deportation under Section 37 (a) (7) of the
Philippine Immigration Act of 1940 and, accordingly, the Board rendered
a decision ordering their deportation. Pursuant to the said decision,
the First Deputy Commissioner of Immigration issued warrants of
deportation against petitioners who are presently confined in the
Detention Station of the Bureau of Immigration, Engineer Island,
Manila, under the custody of the said detention station. Petitioners
Tan Chi Pick and Lee Kim Hua have been under detention since April 21,
1954, and the rest of the petitioners since April 12, 1954.“On
May 11, 1954, Lim Giok Tim, Go Seng Kue, Yu Hue, and Ong Si, filed, on
behalf of the petitioners, a request with the Bureau of Immigration
that petitioners be released under bail pending their deportation (Exh.
K). Said petition was, however, denied by the First Deputy Commissioner
on May 29, 1954 (Exhs. K-1 and K-2).”
In its decision (dated June 11, 1954), the trial court denied petitioners’ petition for habeas corpus, but allowed their provisional release on bail pending their actual deportation, stating:
“The right to bail is guaranteed by the
Constitution. It is one of the most fundamental and sacred rights. Even
in capital offenses, the accused may be released on bail, unless the
evidence of guilt is strong, the burden of proof being on the
government. By analogy, therefore, once a petition for bail is filed by
an alien subject to deportation, it is incumbent upon the authorities
to show the existence of potent reasons why the alien should not be
released on bail pending his actual deportation. In the instant case,
respondents have not made any showing why petitioners should not be
released on bail pending their deportation. There is no derogatory
information against the petitioners. Four of them are wives of
permanent residents and businessmen in the Philippines, and have
nursing babies who are now only under the care of friends. According to
Article 363 of the Civil Code of the Philippines, a child below seven
years of age shall not be separated from the mother unless there be
compelling reasons therefor. Not only infant children are being
deprived of their care, but their husbands are deprived of their
company at least before their actual deportation. The Court feels that,
if they are to be deported, they should at least be allowed to take
care of their children and keep their husbands company pending their
deportation.“Even in cases involving capital offenses, for
the purpose of a bail petition, the probability of flight is one
important factor to be taken into consideration. The sole purpose of
confining an accused before conviction is to assure his presence at the
trial. If a denial of bail in capital offenses, is authorized, it is
only on the theory that the proof of guilt being strong, the defendant
would flee, if he has the opportunity, rather than face trial. Hence,
exception to the fundamental right to bail should be applied in direct
ratio to the probability of evasion of prosecution. (Montano vs.
Ocampo, G. R. No. L-6352, January 29, 1953.) By analogy, the only
justification for the detention of an alien who is ordered deported, is
to assure that he will be available at the time of deportation. If bail
in a deportation proceeding is to be denied, it must be, therefore,
based on the theory that if given the opportunity, the alien may
abscond himself and thus avoid deportation. But no such danger exists
in the instant case. Petitioners are women and children of tender age.
The four adult female petitioners are married to permanent residents of
the Philippines. They have nursing babies to take care of. Aside from
their husbands, petitioners have no connections in the Philippines
which could facilitate their evation of deportation. They are not
unwilling to be deported. In fact they have expressed thedr desire to
go to Formosa or to return to Hongkong, as shown by the fact that they
have applied for visas from the Taipeh government and for reentry to
Hongkong. “Considering the above circumstances, the court feels that
respondents have committed a grave abuse of discretion in denying
petitioners to bail pending their deportation.”
Respondents-appellants claim that the trial court erred in granting
bail to petitioners-appellees who were at the time under detention by
the immigration authorities pending their deportation pursuant to
orders of deportation issued against them.
We find the claim meritorious. Aliens in deportation proceedings, as a rule, have no inherent right to bail (Prentis vs. Manoogian, 16 F. 2d. 422; U. S. ex. rel. Papis vs. Tomlinson, 45 F. Supp. 447; U. S. ex rel. Iaonnis vs.
Garfinkle, 44 F. Suppl. 518); and it has been held that a person
arrested or detained cannot be released on bail, unless that right is
granted expressly by law (Bengzon vs. Ocampo, et al., 84
Phil. 611). Section 37(9) (e) of the Philippine Immigration Act of 1940
(Com. Act No. 613, as amended), provides that
“Any alien under arrest in a deportation proceeding
may be released under bond or under such other conditions as may be
imposed by the Commissioner of Immigration.”
Note that this provision confers upon the Commissioner of
Immigration the power and discretion to grant bail in deportation
proceedings, but does not grant to aliens the right to be released on
bail. The use of the word “may” in said provision indicates that the
grant of bail is merely permissive and not mandatory or obligatory on
the part of the Commissioner. The exercise of the power is wholly
discretionary (U. S. ex rel. Zapp. et al. vs. District Director of Immigration and Naturalization, 120 F. 2d. 762; Ex parte Perkov, 45 F. Supp. 864; Colyer vs.
Skeffington, 265 F. 17). The determination as to the propriety of
allowing an alien, subject to deportation under the Immigration Act, to
be released temporarily on bail, as well as the conditions thereof,
falls within the exclusive jurisdiction of the Commissioner, and not in
the courts of justice. The reason for this is that the courts do not
administer immigration laws. Thus, this Court in the habeas corpus case of Chirskoff vs.
Commissioner of Immigration, et al. (G. R. No. L-2838, res. of August
22, 1949) denied the petitioner’s petition for bail, and held that the
Commissioner of Immigration is the one who has the jurisdiction to
entertain such a petition, in this wise:
“Acting upon the petition for bail filed by the petitioner in L-2838 (Vadim N. Chirskoff vs. The Commissioner of Immigration, et al.), the Court ordered that said petition be denied as the same is hereby denied, without prejudice to its presentation before the Commissioner of Immigration who has jurisdiction and manifested willingness to grant bail to petitioner.” (Italics supplied.)
Even so, the power to grant bail, it seems, has to be exercised by
the Commissioner while the alien is still under investigation, for
there is no provision of law expressly authorizing such release after
the order of deportation has been issued by the Board of Immigration
(See Bengzon vs. Ocampo, et al., supra.)
The right to bail guaranteed by the Constitution may not be invoked
in favor of petitioners-appellees, considering that deportation
proceedings do not constitute a criminal action (Lao Tang Bun vs. Fabre, 81 Phil., 682; U. S. ex rel. Zapp, et al. vs. District Director of Immigration and Naturalization, supra) and the order of deportation is not a punishment for a crime (U. S. vs. Go-Siaco, 12 Phil., 490; Mahler vs.
Eby, 264 U, S. 32), it being merely for the return to his country of an
alien who has broken the conditions upon which he could continue to
reside within our borders (U. S. vs. De los Santos, 33 Phil., 397, Lao Tang Bun vs. Fabre, supra).
The case of U. S. vs. Go-Siaco (12 Phil., 490) is not in
point, because said case was a proceeding brought under the provisions
of Act No. 702 which falls, by provision of said law, under the
jurisdiction of the courts of justice. The case at bar is a deportation
proceeding under the Philippine Immigration Act of 1940, which
expressly vests in the Commissioner of Immigration the exclusive and
full discretion to determine whether an alien subject to deportation
should or should not be granted bail. And the fact that
petitioners-appellees herein instituted the present habeas corpus
proceeding before the Court of First Instance of Manila does not place
them in the custody of said court, so as to deprive the Commissioner of
Immigration of his supervision over them and of his discretionary power
to grant bail. As we pointed out in Collector of Customs vs. Harvey, et al. (34 Phil., 503):
“The writ of habeas corpus, which was
presented in the lower court did not put the relator into the custody
of the court. The courts can not enlarge the rights of Chinese aliens
simply because they have presented a writ of habeas corpus. If they are not entitled to bail during the pendency of the petition for the writ of habeas corpus, they are much less entitled to it after the court has denied theif petition.”
And in the instant case, the lower court denied the petition for a writ of habeas corpus.
It is true that in the cases of Boris Mejoff (90 Phil., 70) and
Victor Borovsky (90 Phil., 107) both decided in September, 1951,
Chirskoff vs. Commissioner of Immigration (90 Phil., 256) and Andreu vs. Commissioner of Immigration (90 Phil, 347), this Court, after having denied their petitions for habeas corpus
in 1949, granted their second petition and ordered their release from
custody by the immigration authorities on the ground that petitioners
being stateless and there being no country to which they could legally
be deported or willing to receive them, their indefinite detention
would constitute an unwarranted deprivation of their liberty. This
Court also took into account the fact that therein petitioners had been
under detention for over 2 years. In the case at bar, it should be
noted, the herein petitioners at the time their release on bail was
ordered by the lower court, had been in detention for only 2 months and
while they themselves and the government were about to terminate
negotiations for their departure to Hongkong, from whence they came, or
to Taipeh, their own country. It appears from all indications, that
were it not for the order of release obtained from the trial court,
petitioners herein would have already gone out of the Philippines of
their own volition as promised by them they were first ordered
deported. The case of the petitioners, therefore, is different from
those of Borovsky, Mejoff and Andreu who, being stateless, could not,
through no fault of their own, be legally deported from the
Philippines. Also in the cases of Borovsky and Mejoff, they did not
come to the Philippines voluntarily, but were brought here by the
Japanese Army, in all appearance against their own wishes. In the
present case, petitioners came to the Philippines on their way from
Japan to Hongkong, their place of residence to where they were
returning. They, however, were allowed to disembark here upon the
pretext of changing boat and upon promise of continuing their trip to
Hongkong within a period of 2 weeks. However, when once here, instead
of taking advantage of the availability of both sea and air
transportation, petitioners did not depart within the promised period
and allowed their reentry permit to Hongkong to lapse in April, 1953.
There is, therefore, absolutely no question that herein petitioners are
here in the Philippines unlawfully and in violation and defiance of our
immigration laws, and continue to stay illegally not because of
impossibility of their deportation but of circumstances of their own
making.
In a recent case,[1] we had occasion to state the following:
“* * *. In the instant case, petitioner is a Chinese
citizen and not a stateless alien, and has a known country, Formosa
(from whence he came), to which he may be removed. If there is any
delay in the shipment of petitioners from this country, it is not due
to the fault or negligence of the Government or of its officers. If
diplomatic negotiations which have been pursued relentlessly by our
Government have not yielded tangible results leading to the immediate
or early removal of petitioner and other aliens similarly situated, the
delay should not be considered a ground for declaring the order of
deportation functus oficio. Otherwise, it would be within the
power of the countries of undesirable aliens ordered deported from this
country to render ineffective or unenforceable warrants of deportation,
by simply frustrating all diplomatic efforts aimed at their removal
from this country.“In conclusion, we hold and declare that,
as long as the continued detention of a deportee is not attributable to
the fault or negligence of the government or of its officers, and his
deportation is not rendered impossible by his citizenship status by
reason of which no country or ship will accept him, warrant for his
deportation should stand in all its force and vigor, rather than be
declared functus oficio.”
Following the rationale of this cited case, we find that
the lower court, under the facts and circumstances of the case at bar,
committed an error in ordering petitioners’ release on bail after it
denied their petition for a writ of habeas corpus.
Wherefore, the decision appealed from is hereby reversed and set
aside, insofar as it orders petitioners-appellees’ release pending
their actual deportation. In all other respects, said decision is
affirmed, without costs.
So ordered.
Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Paredes, Dizon, and De Leon JJ., concur.
[1] Originally appealed to the Court of Appeals but later certified to us because it involves questions of law.
[1] Tan Seng Pao vs. Commissioner of Immigration, 107 Phil., 742; 57 Off. Gaz. [38] 6790.