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[BORIS MEJOFF v. THE DIRECTOR OF PRISONS](http://lawyerly.ph/juris/view/c3197?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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90 Phil. 70

[ G. R. No. L-4254, September 26, 1951 ]

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

D E C I S I O N

TUASON, J.:

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.


DISIDENTE


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.



[*] 84 PHI., 218.

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