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EN BANC

G.R. No. L-2518 May 28, 1949

DONATA 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 Commissions Bureau of Immigration, and ENGRACIO FABRE, Commissioners, of Immigration, Respondent.

Almacen, Almacen & Marquez for petitioner.
First Assistance Solicitor General Roberto A. Gianzon and Solicitor Lucas Lacson for respondents.

FERIA, J.:

This is a petition for certiorari and habeas corpus filed on September 7, 1948, against 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 filling of the present petition.chanroblesvirtualawlibrary chanrobles virtual law library

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

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 time of the filling of 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 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 present instance.chanroblesvirtualawlibrary chanrobles virtual law library

Besides, the Jurisdiction of the respondents to order the deportation of an undesirable alien from the Philippines under section 37 (a) of Philippines 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 application to the present case.chanroblesvirtualawlibrary chanrobles virtual law library

Wherefore the petition is denied with costs against the petitioner. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

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

Separate Opinions chanrobles virtual law library

PERFECTION, J., dissenting:chanrobles virtual law library

We vote to grant the petition.chanroblesvirtualawlibrary chanrobles virtual law library

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 respondent are amenable to the orders of this Court.chanroblesvirtualawlibrary chanrobles virtual law library

Whether respondents wound 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 litigant to perform the orders of 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 order of ideas that cannot be confused or identified with one another.chanroblesvirtualawlibrary chanrobles virtual law library

We are opinion that under the facts in this case the person in whose behalfthe petition for habeas corpus was filed was the victim of an illegal and arbitrary detention and deportation and, therefore is entitled to bereturned to the Philippines and ordered released by this Court.chanroblesvirtualawlibrary chanrobles virtual law library

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