VICTOR BOROVSKY, Petitioner, v.

THE
COMMISSIONER OF IMMIGRATION and THE
DIRECTOR OF PRISONS, Respondents.

Victor Borovsky in his own behalf.

First Assistant Solicitor General Roberto

Gianzon and Solicitor Florencio Villamor,
for Respondents.

SYLLABUS

1. ALIENS; STATELESS ALIENS HABEAS CORPUS.

Aliens illegally staying in the Philippines have no
right of asylum therein (Soewapadji v. Wixon, Sept.
13, 1946, 157 F. ed., 289, 290) even if they are
"stateless." It is no less true however 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 as
long as the Government is unable to deport him, is
beside the point. Therefore, the writ of habeas
corpus 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.
DECISION

TUASON, J.:

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."cralaw virtua1aw
library

In this Courts majority decision on the first

application it was observed that the applicants
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 peoples 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."cralaw virtua1aw library

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 v. 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 Courts
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 petitioners
entry into the Philippines was not lawful; on the
contrary, the inference from the pleadings and the
Deportation Boards findings is that he came to and
lived in this 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 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 "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. v. 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. Ross v. Wallis, 2 Cir. 279 F. 401, 404;
Caranica v. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky
v. Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex
parte Matthews, D.C.W.D. Wash., 277 F. 857;
Moraitis v. 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 v. 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 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:jgc:chanrobles.com.ph

"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 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 seamans papers
issued by the United States Coast Guard, is paying
$3.00 a day for petitioners 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
petitioners 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."cralaw virtua1aw library

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 Governments 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
petitioners 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 petitioners 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:jgc:chanrobles.com.ph

"The Governments 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 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 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.

x x x

"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.

x x x

"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 judical 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."cralaw virtua1aw library

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 P5,000.00 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.

Separate Opinions

PABLO, M., disidente:chanrob1es virtual 1aw library

La primera causa de Habeas Corpus (G. R. No. L-

2852) presentada por el hoy recurrente ha sido
denegada por este Tribunal en 30 de junio de 1949.
Las conclusiones de hecho de dicha decision son las
siguientes:jgc:chanrobles.com.ph

"In December, 1946, the President of the Philippines

ordered petitioners deportation as undesirable alien,
after a proper investigation by the Deportation Board
upon charges of being a vagrant and habitual
drunkard, engaged in espionage activities, whose
presence and conduct endangered the public
interest. Pursuant to such order, Borovsky was
placed aboard a vessel bound for Shanghai; but the
authorities there declined to admit him for lack of the
proper visa, which the Chinese consulate in this
country had refused to give. Wherefore he was
brought back to the Philippines. Thereafter he was
temporarily released pending further arrangements
for his banishment. And when subsequently a
Russian boat called at Cebu, Borovsky was re-
arrested and transported to Cebu for deportation;
however, the captain of the boat declined to take
him, explaining he had no permission from his
government to do so. Wherefore the petitioner is
now confined in the premises of the New Bilibid
Prisons not exactly as a prisoner while the
Government is exerting efforts to ship him to a
foreign country."cralaw virtua1aw library

Por segunda vez el recurrente reclama que tiene

derecho a ser puesto in libertad. En mi opinion, esta
segunda solicitud debe denegarse. Hay una orden de
deportacion contra el y si esa orden no se ha
realizado an, no es porque el gobierno no lo quiera,
sino porque no ha encontrado hasta ahora medios
para efectuarlo.

Un vago, borracho y espia no debe permanecer ni un

minuto en Filipinas; es un elemento indeseable no
solamente aqui sino tal vez en su propio pais. Si las
autoridades de Shanghai de donde el habia
procedido al venir aqui, le habian rechazado cuando
alli fue deportado, debian tener buenas razones; y si
el capitan del barco ruso no quiso recibir al
recurrente alegando que no tenia permiso de su
gobierno, sera porque el recurrente no debia
merecer ninguna clase de consideracion. El capitan
del barco hubiera podido ingeniar cualquier medio
para repatriar al recurrente si este merecia la pena
de tal esfuerzo.

El recurrente no tiene derecho a estar aqui libre por

sus defectos personales, especialmente hoy en que
elementos malguiados desean destruir la sociedad
matando a mansalva viejos, nios y mujeres
embarazadas. El recurrente seria otro elemento mas
que empeoraria la situacion. Si esta hoy detenido
provisionalmente en Muntinglupa no es porque lo
quiera el Gobierno; tan pronto como haya transporte
disponible o en cuanto el encuentre medios de salir
de Filipinas, se le pondria en libertad.

Citaremos un caso hipotetico: Si al anochecer, el

dueo de una casa encuentra en el portico de ella un
borracho, vago y andrajoso, suplicando se le de pan
y, por compasion, se le alimenta y se le cede una
habitacion en la cochera, y durante su estancia se
dedica a actividades de espia, se emborracha y da
mal ejemplo a la servidumbre, esta obligado el
dueo de la casa a retenerle y dejarle libre a
deambular por donde quiera? Creemos que el intruso
ha abusado de los privilegios de un huesped. El
dueo de la casa tiene perfecto derecho a echarle y
que vaya con sus impertinencias a otra parte. La
hospitalidad nacional no debe ser menos que la
domestica o individual. El extranjero puede
permanecer en un territorio mientras se porta bien,
pero en cuanto se dedica a actividades de espionaje,
en cuanto se deja llevar por el vicio de la borrachera
y no busca trabajo honrado, desde ese momento
pierde su derecho a permanecer. De ahi es que el
ingenio humano invento la deportacion como un
instrumento de que se vale el gobierno para expulsar
del territorio a extranjeros indeseables.

Se invoca la "Universal Declaration of Human

Rights", una de cuyas disposiciones establece que
"no one shall be subjected to arbitrary arrest,
detention or exile." (Art. 9). El recurrente no tiene
derecho a invocar a su favor esta disposicion puesto
que no se le arresto arbitrariamente ni se le detiene
sin ningn motivo. Su arresto y detencion estan
justificados por su conducta. Un beodo empedernido,
un espia, un vago, es peor que un microbio del
colera morbo; debe ser desechado para que no
cause males a la sociedad. Su deportacion es un
medio necesario e indispensable para preservar la
salud de la nacion.

Se cita el caso de U. S. contra Nichols, en el cual se

dice que el Juzgado tiene poder para liberar a un
extranjero que ha sido detenido por un tiempo
irrazonablemente largo por el Departamento de
Justicia, aunque se haya expedido una orden de
deportacion, cuando aparece que esta no se puede
efectuar (47 Fed. Rep. 201). No existen pruebas de
que ya es imposible encontrar barcos para la
deportacion del recurrente. Las condiciones pueden
mejorar. El recurrente solamente fue detenido desde
diciembre de 1946; no han transcurrido cinco aos.
En cambio, William Martin Jurgans fue arrestado en
9 de marzo de 1920; en 20 de mayo se decreto su
deportacion por el Secretario del Trabajo por sus
actividades comunistas; solicito su libertad por
medio del recurso de habeas corpus, que se denego
en 16 de febrero de 1927; transcurrieron mas de
seis aos y 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).

La duracion de la detencion no tiene importancia en

casos de la misma naturaleza; depende de muchas
circunstancias. Asi en Moraitis v. Delany, 46 F. Supp.
425, se dijo:jgc:chanrobles.com.ph

"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 this 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. rel. Schlimm v. Howe,
D.C.N.Y. 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:jgc:chanrobles.com.ph

"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.

x x x

"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 contrary to
our laws."cralaw virtua1aw library