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[G.R. No. 148428. July 18, 2001]

LOU PING et. al vs. BID COMMISSIONER DOMINGO et al.

SECOND DIVISION

Gentleman :

Quoted hereunder , for your information , is a resolution of this Court dated JULY 18 2001.

G.R. No. 148428(Lou Ping, Ewang Que, Wen Xiaofang, Yang Yang, Hu Li, Feng An, Flu Binyi, Xia Fang, and Tang Min vs. Bureau of Immigration and Deportation Commissioner Andrea Domingo and the Warden, BI Detention Center.)

Petitioners are nationals of the People's Republic of China. They were apprehended by the agents of the BID on May 1, 2001 on the basis of a surveillance report of two informants, Oscar Yama and Ma. Salome Jacobe, that they were working as the so-called "guest relations officers" in some bars on Mabini Street, Manila, without work permits. They were charged with violation of �37(a)(7) of the Philippine Immigration Act of 1940, as amended.

Upon their petition, the Regional Trial Court, Branch 70, Pasig City, issued on May 30, 2001 a writ of habeas corpus and ordered their release from the BID Detention Center in Intramuros, Manila. The trial court ruled that as the two BID informants were not presented as witnesses, it could not ascertain the truth of the allegations in their affidavits. It held that the Commissioner of the BID has the authority to issue warrant of arrest only for the purpose of executing a final order of deportation, but not for determining whether petitioners had violated immigrations laws.

Respondent Commissioner of Immigration filed a notice of appeal from the order granting the writ of habeas corpus. Petitioners countered with a motion for execution pending appeal, to which respondent filed an opposition.

On June 4, 2001, the RTC ordered the entire records of the case to be forwarded to the Court of Appeals and, on June 15, 2001, it likewise denied petitioners' motion for execution pending appeal.

Hence, this petition for certiorari.

The petition should be dismissed.

First. Petitioners allege that the appeal filed in behalf of respondent by the Office of the Solicitor General is defective because no record on appeal was also filed under Rule 41, �2 of the 1997 Rules of Civil Procedure. This is error. Nowhere in Rule 109, �1 is it provided that in appeals from orders granting a writ of habeas corpus the record on appeal should be filed by the appellant.

Second. No reason has shown for the execution of the order granting the writ of habeas corpus pending appeal by the government. The general rule is that appeal stays the finality of any decision.

Petitioners argue that the RTC gravely abused its discretion and acted without jurisdiction "when it unilaterally chose the venue for the appeal of respondent Commissioner."

The contention has no basis. The RTC correctly ordered the entire records of the case to be forwarded to the Court of Appeals in view of the appeal of the Solicitor General. To be sure, the Court of Appeals has jurisdiction over the appeal of respondent Commissioner of Immigration and Deportation. Rule 41, �2(a) of the 1997 Rules of Civil Procedure provides that in an appeal to the Court of Appeals from the decision of the Regional Trial Court, a notice of appeal with the court of origin is all that is required. Under �9, first paragraph thereof, such appeal is deemed perfected upon filing of the notice of appeal in due time, and, under the last paragraph of the same section, the court of origin is required to transmit the entire records of the case to the appellate court. Thus, the RTC simply followed legal procedures for appeal.

Indeed, the objections now raised against the government's appeal should be raised in the Court of Appeals instead of making them the subject of an independent petition for certiorari.

Moreover, the petition in this case should be dismissed for having been filed in violation of the hierarchy of courts. For although under �9(1) of Batas Pambansa Blg. 129, the Court of Appeals has concurrent original jurisdiction with the Supreme Court, petitioners should have observed that hierarchy especially because factual issues may be involved.

In addition, the petition should also be dismissed for petitioners' non-compliance with the requirements of Supreme Court Administrative Circular No. 28-91, as amended, regarding certifications against forum-shopping. This circular mandates that the certification must be made under oath by the principal party or parties to the case. In this case, only one out of nine petitioners executed the required certification. Accordingly, the petition should have been motu proprio dismissed in accordance with Rule 56, �5(e), in relation to Rule 7, �5, of the 1997 Rules on Civil Procedure.

WHEREFORE, the petition is DISMISSED for lack of showing that the Regional Trial Court, Branch 70, of Pasig City gravely abused its discretion.

Very truly yours,

(Sgd.)TOMASITA B. M.AGAY-DRIS

Clerk of Court

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