DONATO OLIVEROS DE TAN, ON BEHALF OF HER HUSBAND, CHENG SAN (ALIAS FRANCISCO TAN, ALIAS TAN KO), PETITIONER, VS. ENGRACIO FABRE, JESUS BAUTISTA, AND OSCAR ARANETA, BOARD OF COMM…

This is a petition for certiorari and habeas corpus filed on
September 27, 1948, against the respondents Commissioners of Immigration, who
after due investigation, ordered on September 3, 1948, the deportation of a
Chinaman by the name of Cheng San alias Francisco Tan, who was deported
by virtue of said order to China on September 8, 1948, before the filing of the
present petition.

The petitioner alleges that Cheng San alias Francisco
Tan was, at the time of the filing of the petition, being illegally detained by
teh respondents by virtue of a decision rendered by said respondents under the
provisions of section 37 (a), paragraph 8, of the Philippine Immigration
Act of 1940, which is not applicable to an alien who has already entered and is
residing in the Philippines, and therefore the respondents have no jurisdiction
to detain and order the deportation of said Cheng San alias Francisco
Tan.

The person in whose favor the petition for habeas corpus was
filed having been already deported to a place out of the Philippines, and being
therefore beyond the jurisdiction and control of the respondents at the time of
the filing of this petition for habeas corpus, this Court has no jurisdiction or
power to compel the respondents to produce the body of said person and order the
latter’s release. The ruling of this court in the case of Villavicencio vs.
Lucban, 39 Phil., 778, quoted by the petitioner is not applicable to the present
case, because the persons in whose behalf the petition was filed in that case
were within the Philippines and the respondent had it in his power to obey the
order of the court, which is not the case in the present instance.

Besides, the jurisdiction of the respondents to order the
deportation of an undesirable alien from the Philippines under section 37
(a) of the Philippine Immigration Act of 1940, has been upheld by this
Court in its decision in the case of Lao Tang Bun vs. Fabre (81 Phil., 682)
which is squarely applicable to the present case.

Wherefore, the petition is denied with costs against the
petitioner. So ordered.

Moran, C. J., Ozaeta, Paras, Pablo, Bengzon, Tuason,
Montemayor, and Reyes, JJ., concur.

---

DISSENTING

PERFECTO, J.:

We vote to grant the petition.

The fact that the person in whose favor the petition for habeas
corpus was filed has already been deported to a place out of the Philippines at
the time the petition was filed contrary to the majority’s position, did not and
does not deprive the Supreme Court of its jurisdiction to compel respondents to
produce the body of said person and order his release, as there cannot be any
question that respondents are amenable to the orders of this Court.

Whether respondents would be able or not to bring back to the
Philippines the person in whose favor the petition for habeas corpus was filed,
is a question that cannot affect the jurisdiction of the Supreme Court. The
ability or inability of a litigant to perform the orders of a court of justice
is absolutely alien to the question as to whether the court of justice has or no
jurisdiction to issue the orders. They are two orders of ideas that cannot be
confused or identified with one another.

We are of opinion that, under the facts in this case, the
person in whose behalf the petition for habeas corpus was filed was the victim
of an illegal and arbitrary detention and deportation and, therefore, is
entitled to be returned to the Philippines and ordered released by this
Court.

Of course, if, upon ordering the bringing back of said person,
respondents should be unable to bring him back for reasons beyond their control,
that fact will relieve respondents of responsibility for not complying with the
order.