IN THE MATTER OF THE PETITION FOR DECLARATORY RELIEF REGARDING STATUS AS PERMANENT RESIDENT. THEODORE LEWIN, PETITIONER, VS. EMILIO GALANG, IN HIS OFFICIAL CAPACITY AS COMMISSIO…

This is an appeal against a decision of the Court of First Instance of
Manila, Hon. Bienvenido A. Tan, presiding, rendered in its Civil Case No. 35758,
entitled Theodore Lewin, petitioner, vs. Emilio Galang, respondent, on a
“Petition for Declaratory Relief Regarding Status as Permanent Resident,”
declaring that petitioner has not lost his status as permanent resident, which
status he had enjoyed since 1951; that respondent has no right or authority to
limit the stay of petitioner in this country, classifying him as a temporary
visitor; and issuing a writ of preliminary injunction against the respondent,
directing him to desist from arresting and deporting petitioner.

The petition which originated the action contains these material allegations:
that petitioner is a citizen of the United States, classified as an alien
permanent resident, with Immigration Certificate of Residence issued at Manila
on April 16, 1951; on September 16, 1953, preparatory to his visit to the United
States he was given a Bureau of Immigration Re-entry Permit to re-enter the
Philippines with expiry date of March 16, 1954; that he went to the United
States but upon arrival there his American passport was taken by the United
States authorities by reason of which he could not leave the mainland of the
United States, making it impossible for him to return to the Philippines under
his re-entry permit; that it was only in August, 1955 that his American passport
was returned to him and another American passport was issued him in 1956; that
after the return of his passport he could not return to the Philippines because
his re-entry permit had expired on March 16, 1954 and also because the
Department of Foreign Affairs had issued instructions prohibiting the issuance
of a Philippine visa to him without its prior authorization, such prohibition
having been issued during his stay in the United States and without notice to
him; that he never abandoned his intention to return to the Philippines; that as
his efforts to return failed he was forced to secure admission as a temporary
visitor for nine days, although he never gave up intention to reside permanently
in the Philippines; that petitioner has never been classified as an undesirable
alien and his permit was renewed many times; that he never committed any
violation of the law and on the contrary he had helped many civic organizations;
that no reason exist3 for depriving him of his permanent status as a permanent
resident and no proceedings have been instituted against him for the purpose;
that respondent threatens to order his arrest upon the expiration of the period
of his temporary stay; that his arrest and deportation would cause him
irreparable injury. He prays for a declaratory judgment declaring that he has
not lost his status as permanent resident and that a preliminary-injunction
issue during the pendency of the case.

Respondent opposed the petition for the issuance of a preliminary injunction,
but this opposition was overruled and a writ of preliminary injunction was
issued.

The answer of the respondent (1) denies that petitioner is a permanent
resident of the Philippines and claims that he has never been considered as
such; (2) alleges that there are various confidential reports to the effect that
petitioner is an undesirable alien, engaged in dollar smuggling, gunrunning and
arms smuggling, and large-scale gambling, and his stay in the Philippines is a
danger to the security of the country; (3) argues that the stay of aliens in the
country is a mere privilege subject to the control of respondent and the
latter’s discretion can not be made subject to the control of the courts; (4)
argues that there is no cause of declaratory relief, there being no deed, will,
contract or written instrument, statute or ordinance which is sought to be
construed or the validity of which is sought to be impugned; (5) argues that a
declaratory relief can not be used to determine one’s status; (6) alleges that
petitioner has always been a temporary visitor; (7) argues that to allow
petitioner to change his status from temporary visitor to permanent resident,
without first leaving the country is to permit an unwise policy; (8) alleges
that the same court on December 23, 1955 dismissed petitioner’s petition for the
writ of habeas corpus (Spec. Proc. No. 28409) and on January 3, 1956, denied
petitioner’s motion to reconsider said decision; and (9) claims that
respondent’s duty is to carry out the deportation unless petitioner seeks
further extention of his stay as temporary visitor, and the Court has no
jurisdiction to restrain respondent therefrom.

Upon the above issues the parties went to trial on February 3, 1959, and
respondent’s counsel manifested thereat that he was submitting the case “on the
basis of our arguments contained in our answer. * * *” (t.s.n. pp. 73-74).

One of the special defenses raised in the court below is that of res
judicata. This special defense is contained in the following paragraph of
the answer:

* * * * * * *

“12. That as a matter of fact, the very same branch of this Honorable Court
in its order dated*January 3, 1956, denying the motion for reconsideration of
its decision dated December 23, 1955, dismissing the petition for habeas corpus
filed with this Court by the very same petitioner herein (Spec. Proc. No.
28409), applied the ruling of our Supreme Court in the case of Chang Yung Fu vs.
Gianzon, 97 Phil., 913; 52 Off. Gaz. 235, to the effect that the right of the
Commissioner of Immigration to limit the stay in this country of a temporary
alien visitor and to expel him after the expiration of such time limit may not
be interfered with or restrained by the courts, (par. 12, p. 40
ROA)

In view of this special defense, the court below should have taken judicial
notice of the habeas corpus proceedings instituted by petitioner before the same
Court of First Instance of Manila and before the same judge, Case No. 28409, Ted
Lewin vs. Commissioner of Immigration and Commissioner of Customs, and
we find that practically the same facts relied upon in petitioner’s present
petition for declaratory judgment are the very facts upon which petitioner based
his request for the issuance of the writ of habeas corpus in the previous case.
Herein below are quoted the most important allegations of the ultimate and
material facts in the habeas corpus case:

* * * * * * *

“8. As already stated above, your petitioner has been a permanent resident of
the Philippines since in or about 1937. In September 1953, he left for the
United States on a temporary visit, but always intending to return. He never
relinquished his residence in the Philippines wherein his wife remained and
continues to be; where his business and property are located, and which he has,
since his arrival herein, considered his home]

“9. As soon as the purpose of his temporary visit to the United States had
been accomplished, he wanted and prepared to return home to the Philippines, and
made every effort to do so, but, due to circumstances beyond his control and
completely without fault on his part, he was not able to arrive in the port of
Manila, Philippines, until October 25, 1954;

“10. He arrived in the Philippines with a passport issued by the United
States Government and a seaman’s visa issued by the Philippine consul in
Hongkong;

“11. Upon arrival in the Philippines on October 25, 1955, your petitioner was
prevented by the herein respondents from leaving the vessel in which he came,
the “Maria Ines”, a private vessel registered in the Republic of Panama;

* * * * * * *

“19. Pursuant to Article VI of the; 1946 Trade Agreement between the Republic
of the Philippines and the United States of America, quoted in paragraph 2,
above, your petitioner has acquired a permanent residence for purposes of the
immigration and naturalization laws. The same constitutes a vested right of
which respondents cannot arbitrarily deprive your petitioner,, but such
deprivation necessarily results from the illegal and arbitrary imprisonment and
detention of your petitioner for reasons unknown and without a prior hearing.
The action of respondents is not only an unconscionable violation of the
constitution but also unauthorized and arbitrary repudiation of treaty
obligations:

‘Aside from the duty imposed by the Constitution to respect treaty
stipulations when they become the subject of judicial proceedings, the court
cannot be unmindful of the fact that the honor of the government and the people
of the United States is involved in every inquiry whether rights secured by such
stipulations shall be recognized and protected.’ (U.S. vs. Gue Lim, 176
U.S. 459; 44 L. ed. 544, 547).

* * * * * * *

“22. No proceedings have been instituted against petitioner for his
deportation or exclusion, and there is no legal provision or principle
whatsoever which would justify the action of respondents in, by themselves, or
by their agents, imprisoning, detaining, reporting, or excluding your
petitioner without cause and without hearing;

* * * * * * *

“24. As well settJed is the rule that habeas corpus lies when a
person is illegally detained and confined and is thus deprived of his liberty
(Rule 102, Sec. 1, Rules of Court);

* * * * * * *

“26. By their arbitrary and illegal action, respondents are breaking up a
family and dissolving a union, which the laws of this country seek zealously to
preserve and protect. Respondents have, by their arbitrary and illegal action
prevented your petitioner to even come and see—much less join—his sick wife who,
fer her part, cannot join her husband on account of her serious
illness.”

The following defenses were presented against the petitioner.

II

“That the respondents specifically deny the allegations in paragraph 2 of the
petition regarding petitioner’s supposed ‘permanent residence’ in the
Philippines^ the truth of the matter being as stated in the next preceding
paragraph hereof; that the 1946 Trade Agreement does not grant petitioner any
right of permanent residence in the Philippines; and that the respondents have
no knowledge or information, sufficient to form a belief as to the truth of the
rest of the averments of fact in the same paragraph of the petition;

* * * * * * *

IV

“That the respondents admit the allegation in paragraph 8 of the petition
that the petitioner was formerly a resident of this country; but they
specifically deny that he has established a permanent residence here for
purposes of the naturalization or immigration laws; that the respondents admit
the allegation in the same paragraph of the petition that the petitioner left
the Philippines some time in 1953; and that they have no information or
knowledge sufficient to form a belief as to the truth of the rest of; the
averments] in said paragraph of the petition;

* * * * * * *

XVI

“That the respondents admit the allegation in paragraph 22 of the petition
that they have not instituted deportation or exclusion proceedings against the
petitioner; they aver that such proceedings are not necessary or required
because, as stated in the preceding paragraphs hereof, the1 petitioner is not
now residing in the Philippines; that the respondents specifically deny the rest
of the averments contained in the same paragraph of the petition, and they
further allege that the petitioner is neither under imprisonment or detention
nor is being subjected to deportation or exclusion proceedings, but is simply
not allowed to enter the Philippines for lack of documentation;

* * * * * * *

“2. That conceding arguendo that the petitioner was a former
resident in this country, as alleged in paragraphs 1 and 2 of the petition, he
cannot as a matter of right reenter the country for permanent residence without
proper documentation therefor (Sec. 15, Commonwealth Act No. 613), because the
return of an alien from a foreign country constitutes new entry, with right of
exclusion on the same conditions as original entry (Ex-parte Rodriguez,
15 F. 2nd 878);

“3. That, as may be gleaned from the instant petition, the petitioner seeks
to enter the Philippines for a permanent residence; that in trying to gain
admission to the country for such permanent residence by enlisting as a seaman
of a foreign vessel (Pars. 10 and 11 of the petition), the petitioner is not
only estopped from claiming rights as non-quota or returning resident (U.S. ex
rel. Thomas vs. Day, 29 F. 2nd. 485) but also ceased to be a bona fide
seaman and, therefore, has no right to be admitted even temporarily only as such
seaman (Rule 17, par. 93 Immigration Rules and Regulations; Section 34,
Commonwealth Act No. 613);

In its decision in said habeas corpus proceeding the court made the following
findings of fact and pronouncements.

“The evidence in this case shows that the petitioner Theodore (Ted) Lewin, a
former resident of the City of Manila, left the Philippines in September, 1953,
after furnishing a bond for his return. A re-entry permit dated September 16,
1953, was issued in his favor. The validity of said re-entry permit expired on
March 16, 1954. After the expiration of his permission to re-enter the
Philippines, the petitioner arrived in Manila Bay on October 25, 1955, on board
the motorboat “Maria Ines” which belongs to a corporation of which he is the
President. He arrived in the said boat as a Second Mate, or member of the crew
seven months after the expiration of his re-entry permit. Since his arrival in
Manila Bay, he was prevented by the respondent Commissioner of Immigration and
his agents to land. When interviewed bv the counsel for the petitioner, the
Commissioner of Immigration informed the petitioner, thru his counsel, that he
could only be landed in Manila by securing the proper permit. The petitioner
never formally or in writing asked the Commissioner of Immigration for this
permit to land. All that he had done during his stay in the motorboat was to ask
some of the agents of the Commisioner of Immigration to allow him to land as a
permanent resident of the City of Manila and not as member of the crew of the
“Maria Ines” under which classification he came or returned to this country. The
petitioner carried with him an American passport but said American passport does
not have any Philippine visa.

“In his testimony, the petitioner admitted that he did not make any attempt
to secure a Philippine visa before returning to this country. On the other hand,
when he reached Hongkong, he secured from the Philippines Consulate in the said
city a visa as member of the crew of the motorboat “Maria Ines” and said visa
does not appear in his passport.

* * * * * * *

“We may say, therefore, without fear of contradiction that the detention in
cases of habeas corpus must be illegal. But when such detention is legal, the
writ of habeas corpus does not apply. In the case before us, the petitioner in
this case is not provided with the proper documentation for his re-entry to the
Philippines. His re-entry permit has expired seven months before his arrival in
Manila Bay. He is not provided with the proper consular visa and he completely
disregarded the authorized representatives of the Government of these Islands in
the United States when he left that country without securing the visa of our
consular representatives. He came here as a member of the crew of the “Maria
Ines”. The visa that he carried is the visa of a crew and not of a permanent
resident. Yet he comes now and wish to be admitted as a permanent resident of
this City and not as member of the crew whose visa he is carrying. He seeks
admission to land without securing the proper permit from the Commissioner of
Immigration and in contradiction to the permit formerly granted to him as
appearing in his re-entry permit. He came to these Islands, knowing fully well
that he was not provided with the necessary papers to make his entry legal. He
sent a letter to the President of this Republic asking permission to enter and
then when that letter was indorsed to the Secretary of Justice, instead of
waiting for the answer to his letter to the President, he presented this writ of
habeas corpus. In the same way that he disregarded completely our foreign
embassy in the United States and did not have the patience to wait for the
answer of the President to his letter, he now tries to enter these Islands
without the permission and against the will of the Commissioner of Immigration,
one of the respondents in this case.

“After disregarding and challenging the rights of our embassies and
consulates; after without having waited for the answer to his petition to the
President; after ignoring the Commissioner of Immigration to grant or not to
grant him permission to re-enter; he comes to the Court and asks that he be
allowed to land in defiance of our constituted authorities in the Executive
Branch of our Government. While this court, with pleasure and patience, will
hear any petition for the vindication of human rights and will gladly, not
begrudgingly render its full influence and might for the preservation of said
rights, it cannot sanction an act which questions or put in jeopardy the
sovereign right of this Republic to admit to its shores aliens of its own
choosing.

“The right to exclude or to expel from its territory an alien is one of the
attributes of a sovereign state which the Republic has the right to claim and
exercise. The President, or his representatives, can legally refuse the landing
of any foreigner who, in their opinion, is subversive to the peace of the
country, or that his presence might undermine our democractic way of life. The
Court will not intervene in the exercise of this right of the Executive, nor
will it question the wisdom of its action unless it is demonstrated and proven
in a clear and conclusive manner that said powers have been
abused.”

The petitioner started perfecting his appeal from the above decision and from
the order denying the motion for reconsideration. However, the appeal was later
withdrawn, so the judgment became final.

It can readily be seen from a perusal of the material allegations of the
petition in each case that the parties are the same; that in either case
petitioner Ted Lewin asserts his right of entry into the Philippines,
predicating such right on the alleged fact of his permanent residence in the
Philippines prior to his leaving the same in the year 1951; in the case at bar
the supposed violation of petitioner’s right is the refusal of Philippine
consular officials to issue visas to him although petitioner is not guilty of
any violation of law such as to render him an undesirable alien and the similar
refusal of the respondent to admit him into the islands, while in the previous
case the petitioner alleged that he is prevented from leaving the boat in which
he came and is being excluded from the country without justification. The
alleged breach of petitioner’s right in both cases is the same, that is, the
refusal of the respondent to allow petitioner to land and enter the country as a
permanent resident.

The remedies prayed for are different because of the different circumstances
surrounding each case. In the previous case petitioner came into the Philippines
arriving in the port of Manila in a private vessel registered in Panama and the
prohibition for him to land is alleged to be an exclusion of petitioner without
cause or hearing, said prohibition giving rise to the right of petitioner to the
issuance of the writ of habeas corpus. In the case at bar the petitioner dubs
his petition & “complaint for declaratory relief” and seeks a judicial
declaration to the effect that as a permanent resident he is entitled to enter
the Philippines. The difference between the remedy applied for in the previous
case, and that sought in the case at bar does not render the previous suit or
action for habeas corpus different, for purposes of the defense of bar by prior
judgment, from the case for declaratory relief, because the right of the
petitioner alleged to have been violated in both cases are the same. (Juan
vs. Go Cotay, 26 Phil., 328; Chua Tan vs. Del Rosario, 57
Phil., 411; Aguirre vs. Atienza, 104 Phil., 477; Geronimo vs.
Nava, 105 Phil., 145; 57 Off. Gaz. 4417; Cayco vs. Cruz, 106 Phil., 65;
57 Off. Gaz. 260.)

We are, therefore, led to the conclusion that the previous proceeding for
habeas corpus filed in the Court of First Instance of Manila before the same
judge, Case No. 28409, Ted Lewin vs. Commissioner of Immigration and
Commissioner of Customs, in which the judgment has already become final because
petitioner did not appeal from the decision of the Court of First Instance
denying the petition for habeas corpus, is a bar to the present action for
declaratory judgment. It strikes us that the parties in this case have
overlooked either the existence of the previous final judgment between the same
parties and for the same cause, or its importance in the case at bar. Although
the Solicitor General made mention of it in his answer to the complaint for
declaratory judgment, no error is assigned by him on this appeal, that the
present action is barred by a former judgment. The distinguished counsel for
petitioner in this Court is, in most likelihood, unaware of the existence of the
previous judgment.

In view of the above circumstances, one point needs clarification on our
part. It is the fact that while respondent-appellant raised the defense of bar
by former judgment in his answer, this defense has not been touched upon and is
not assigned as an error in his brief before us. Is it proper for us to consider
this defense which has not been raised on appeal?

There is a rule of law to the effect that the rights of a State may not be
waived by mistakes of officers entrusted with the exercise of such rights. This
rule has been applied by us in taxation cases. (Pineda vs. Court of
First Instance of Tayabas, 52 Phil., 803; Canlubang Sugar Estate vs.
Standard Alcohol Co. [Phil.], Inc., G. R. No. L-10887, April 16, 1958;
Philippine American Drug Co. vs. Collector of Internal Revenue and
Court of Tax Appeals, 106 Phil., 161; 57 Off. Gaz. [21] 3915.) This principle
has been applied in similar cases in the United States.

“Unless duly authorized by law, a board or officer may not waive the state’s
immunity from suit; nor may an officer of the United States, without statutory
authority, waive conditions or limitations imposed by statute in respect of
suits against the United States. And as a general rule, the government is not
bound by the action of its officers where, by misconstruction of the law under
which they have assumed to act, unauthorized payments are made.” (48 Am. Jur.,
p. 72.)

The present suit is against the Commissioner of Immigration, who represents
the Republic of the Philippines in matters involving admission of aliens into
the country, a matter directly affecting the sovereignty of the State. If in tax
cases the errors of public officers entrusted with the administration of the
collection of revenue may not prejudice the right of the Government to said
taxes, with more reason should the mistakes of the Solicitor General in trials
of immigration cases involving the right of an alien to enter the Philippines,
which affects the sovereignty of the States, not have the effect of waiving such
sovereignty. Especially will this principle hold true in trials before courts of
justice where the representative of the Government commits an error in procedure
only, as in this case (the Solicitor General failed to raise the issue of
res judicata in his brief although the same was raised in his pleadings
in the lower court). Furthermore, a reason of public policy demands that the
error of procedure committed by the Solicitor General be overlooked. It is to
the interest of the administration of justice that there be unformity of
decisions. Were we allowed to overlook the previous decision of the Court of
First Instance of Manila in the habeas corpus case we would have two
contradicting final decisions, because a subsequent decision of the same Court
of First Instance presided over by the same judge, is entirely opposite to his
decision in a previous case on the same issues and between the same parties.
This Court cannot tolerate such an anomaly. The purpose behind the
constitutional provision requiring all appeals involving questions of law to be
brought before the Supreme Court is to insure uniformity of decisions in matters
of law. In accordance with this purpose it is our bounden duty to take into
account a decision already rendered by the same Court of First Instance, a
decision which has already become final; otherwise we will be faced with the
anomalous spectacle of two conflicting final decisions on the same set of
facts.

For the above considerations, the judgment appealed from is hereby reversed
and the complaint dismissed. Without costs. So ordered.

Paras, C.J., Bengzon, Padilla, Reyes, J.B.L., Barrera, Gutierrez
David, and Paredes, JJ., concur.

Judgment reversed.