FIRST DIVISION
JEANY-VI G. KIANI, G.R. No. 160922
Petitioner,
Present:
PANGANIBAN, C.J., Chairperson,
-
versus - YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO,* JJ.
THE BUREAU OF IMMIGRATION
and DEPORTATION (BID);
EDGARDO CABRERA, ELISEO Promulgated:
EXCONDE and JOSE VALE, JR.,
Respondents. February
27, 2006
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CALLEJO, SR., J.:
This is a Petition
for Review on Certiorari for the
nullification of the decision[1]
of the Court of Appeals (CA) in CA-G.R. No. 74484, dismissing the appeal of Jeany-Vi G. Kiani, which assailed
the Order of the Regional Trial Court (RTC) of
On
Singh and Balbir Singh, had been forcibly taken by
four (4) armed men from their residence at Balita,
Rodriguez, Rizal.[3] A couple of days later, then Commissioner
Andrea D. Domingo of the Bureau of Immigration and Deportation (BID) issued Mission
Order No. ADD-02-203 based on Executive Order No. 287 of former President Joseph
Estrada. In said Order, appropriate officers of the Bureau were
directed to conduct verification/validation of the admission status and
activities of Javed Kiani,
and, if found to have violated the Philippine Immigration Act of 1940, as
amended, to immediately place him under arrest.[4] Per records of the BID, Javed
Kiani was married to a Filipina, Jeany-Vi
Kiani, on
A week
later, on
On July 1,
2002, the BID Prosecutor filed a Charge Sheet[7]
against “Javed Kiani alias Ahmad Singh” before the Board of Special
Inquiry (BSI) for violation of the Philippine Immigration Act of 1940, as
amended, particularly Section 37(a)(7) and Section 45 thereof. The case was docketed as D.C. No. ADD-02-080. The Charge Sheet reads:
Records
show that the above-named subject was arrested on
Records
also show that subject national was positively identified by Indian nationals Balbir Singh and Iqbal Singh when
they were arrested by the same operatives on June 18, 2002 as the person who
gave them spurious immigration documents and as their protector evidenced by
copies of the ACRs and ICRs
of Balbir and Iqbal Singh,
which were certified by Mr. Reynaldo Joson as “fake.”
Additionally, Mr. Joson certified that the forms used
in the forgery/falsification are not official forms of this Bureau.
Contrary
to law.[8]
On the same day,
Considering
the seriousness of the charge/s and the evidence in support thereof,
respondent, whose Temporary Residence Visa is hereby ordered cancelled and
revoked, is hereby ordered summarily deported to his country of origin, subject
to PNP, Court and NBI clearances and payment of an administrative fine in the
amount of P50,000.00.[9]
The next day,
On P50,000.00,
and ordered respondent BID Intelligence Officers to file their return on the writ. The respondents complied, and alleged in their
return that Javed Kiani had
already been charged before the BOC and ordered deported; hence, the petition
had become moot and academic. They
refused to release Kiani although the bond had
already been posted.[15]
Instead, the respondents, through the Office of the Solicitor General (OSG),
filed an Omnibus Motion[16]
for the reconsideration of the Order on the following grounds: (1) under
Section 37(9)(e) of Commonwealth Act 613, as amended, it is the Commissioner of Immigration,
and not the court, who has authority to grant bail in a deportation proceeding;
(2) the court has no authority to grant the petition considering that Javed Kiani was lawfully charged
with violation of the Philippine Immigration Act of 1940, as amended, before
the BSI; and (3) the BOC has subsequently issued a Summary Deportation Order.
On
The RTC
also ruled that the proper remedy of Javed Kiani from the
Summary Deportation Order of the BOC was to file a petition for review with the
CA under Rule 43 of the Rules of Court (and not a petition for a writ of habeas corpus before it), as it had no
jurisdiction to take cognizance of and reverse the Summary Deportation Order
issued by the BOC.
Jeany-Vi appealed the RTC’s Order
of
A.
WHETHER OR NOT
THE ARREST OF JAVED KIANI ON
B.
WHETHER OR NOT
THE SUPPOSED ISSUANCE OF A SUMMARY DEPORTATION ORDER AGAINST JAVED KIANI HAS
THE EFFECT OF LEGALIZING AND/OR VALIDATING HIS CONTINUED DETENTION, THEREBY
RENDERING THE HABEAS CORPUS PETITION DISMISSIBLE.[18]
On
Jeany-Vi received a copy of the CA Decision on
On
On
A. THE COURT OF APPEALS ERRED IN FAILING TO NULLIFY AND
TO DECLARE AS ILLEGAL THE ACTUAL ARREST AND SUBSEQUENT DETENTION OF JAVED
KIANI.
B.
THE COURT OF
APPEALS ERRED IN FAILING TO DECLARE AS NULL AND VOID AB INITIO THE PUTATIVE SUMMARY DEPORTATION ORDER AGAINST JAVED
KIANI.
C. THE COURT OF APPEALS ERRED IN CONCLUDING THAT THE
SUMMARY DEPORTATION ORDER AGAINST JAVED KIANI HAS ALREADY BECOME FINAL AND
EXECUTORY.
D. THE COURT OF APPEALS ERRED IN CONCLUDING THAT HABEAS
CORPUS IS NOT THE CORRECT OR PROPER REMEDY AVAILABLE TO THE HEREIN PETITIONER.[22]
Petitioner
avers that the Mission Order issued by the Immigration Commissioner for the
investigation and arrest of her husband, Javed Kiani, is null and void.
She points out that when said Order was issued, the BOC had not yet made
a determination as to the existence of a lawful ground for his deportation. She further avers that the Immigration
Commissioner has no power to issue a Mission Order or Warrant of Arrest solely
for the purpose of investigation, and before a final order for deportation is
issued by the BOC. She insists that an
order of arrest is proper only if the BOC has already issued an Order of
deportation. She cites the rulings of
this Court in
Qua Chee Gan v. Deportation Board,[23]
Ang Ngo Chiong v. Galang,[24] and Board
of Commissioners v. Dela Rosa.[25]
Petitioner
further maintains that the filing of the Charge Sheet against Javed Kiani by the BOC did not
render the issue of the illegality of arrest and detention moot and
academic. She asserts that there is no
factual and legal basis for the deportation of her husband because he had been
issued a permanent visa and his passport is yet to expire. She avers that a warrant for the arrest of
her husband may be issued only after a Summary Deportation Order shall have
become final and executory. Considering
that there was no showing in the records that said Order had already been
promulgated by the BSI, it could not have become final and executory. She
avers that the ruling of this Court in Velasco
v. Court of Appeals[26]
is not applicable in this case.
In its Comment on the petition filed on
The OSG also alleges that Javed Kiani had filed an Omnibus
Motion Ad Cautelam[28] dated
In reply, petitioner asserts that during
the pendency of this case, Immigration Commissioner Alipio F. Fernandez, Jr. granted her husband’s Omnibus
Motion Ad Cautelam
in an Order[29] dated
P50,000.00. The Commissioner also
declared that the Summary Deportation Order against her husband had been improvidently
issued, and ruled that there was no factual and legal basis for his summary
deportation. Moreover, Javed Kiani
was deprived of his right to due process when the Order was issued on the same
day the Charge Sheet was filed with the BSI.
The Court
is posed to resolve the following issues: (1) whether petitioner engaged in
forum shopping; and (2) whether the CA erred in (a) holding that the Petition
for a Writ of Habeas Corpus before
the RTC was not the proper remedy of petitioner; (b) upholding the validity of the
Summary Deportation Order issued by the BOC; and (c) declaring that such Order had
become final and executory.
On the first issue, we agree with the
contention of the OSG that the petitioner indulged in forum shopping. Forum shopping is the institution of two or
more actions or proceedings grounded on the same cause on the supposition that
one or the other court would make a favorable disposition. Section 6, Rule 43
of the Revised Rules of Court provides that a petition for review on certiorari must contain a sworn
certification against forum
shopping as provided in the last paragraph of Section 2, Rule 42 of said Rules,
to wit:
The
petitioner shall also submit together with the petition a certification under
oath that he has not theretofore commenced any other action involving the same
issues in the Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he should thereafter
learn that a similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or different divisions thereof, or any
other tribunal or agency, he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days therefrom.
Under Section 5, Rule 45 of said
Rules, the failure of the petitioner to comply with any of the foregoing requirements
shall be sufficient ground for the dismissal of the petition.
In Balite v. Court of Appeals,[30]
the Court held that there is forum shopping when a party seeks to obtain
remedies in an action in one court, which had already been solicited, and in
other courts and other proceedings in other tribunals. While a party may avail of the remedies prescribed
by the Rules of Court, such party is not free to resort to them simultaneously
or at his/her pleasure or caprice. A
party should not be allowed to present simultaneous remedies in two different
forums, for it degrades and wreaks havoc to the rule on orderly procedure. A party must follow the sequence and
hierarchical order in availing such remedies and not resort to shortcuts in
procedure or playing fast and loose with the said rules. Forum shopping, an act of malpractice, is
considered as trifling with the courts and abusing their processes. It is improper conduct and degrades the administration
of justice.
In this case, petitioner seeks not
only the reversal of the Order of the RTC dismissing her Petition for a Writ of Habeas Corpus filed in behalf of her
husband (where it was also declared that he had been legally deported), as well
as the decision of the CA affirming the RTC’s Order; she
also prays that the Court render judgment nullifying the Summary Deportation
Order of the BOC and order her husband’s release from detention. However, Javed Kiani himself, during the pendency
of this case, filed an Omnibus Motion Ad Cautelam with the BID, seeking the same reliefs, which his
wife prayed for in this case. By filing
said motion, Javed Kiani
sought to preempt the decision of this Court.
Petitioner and her husband even failed to inform the Court of the filing
of such motion, and did so only after the OSG had already informed the Court of
such petition, and after petitioner had been ordered to reply to the Comment of
the OSG.
Petitioner and her husband were
represented by the same law firm, the Cruz Cruz and Neria Law Offices.
The instant petition and said motion were signed by the same lawyer,
Atty. Marlon Alexandre C. Cruz. That the instant petition was filed by Jeany-Vi Kiani while the Omnibus Motion
was filed by Javed Kiani
himself is of no moment; after all, the petition was filed for and in behalf of
the latter, who is the real party-in-interest.[31] In effect, the Petition for Writ of Habeas Corpus was filed by him, as the
beneficiary, through his wife as his representative. Worse, the Immigration
Commissioner took cognizance of and granted the same, despite the pendency of the instant petition, thereby preempting the
ruling of this Court.
The Immigration Commissioner and
Atty. Marlon Alexandre C. Cruz ought to be
reprimanded for their acts.
On the
merits of the petition, we find and so rule that the CA acted in accord with
jurisprudence when it affirmed the assailed Order of the RTC dismissing the Petition
for Habeas Corpus. As the Court held in Caballes v. Court of Appeals,[32]
Habeas corpus is not in the nature of a writ of error; nor intended
as substitute for the trial court’s function.
It cannot take the place of appeal, certiorari or writ of error. The writ cannot be used to investigate and
consider questions of error that might be raised relating to procedure or on
the merits. The inquiry in a habeas corpus proceeding is addressed to
the question of whether the proceedings and the assailed order are, for any
reason, null and void. The writ is not
ordinarily granted where the law
provides for other remedies in the regular course, and
in the absence of exceptional circumstances.
Moreover, habeas corpus should
not be granted in advance of trial. The
orderly course of trial must be pursued and the usual remedies exhausted before
resorting to the writ where exceptional circumstances are extant. In another case, it was held that habeas corpus cannot be issued as a writ
of error or as a means of reviewing errors of law and irregularities not
involving the questions of jurisdiction occurring during the course of the
trial, subject to the caveat that constitutional safeguards of human life and
liberty must be preserved, and not destroyed.
It has also been held that where restraint is under legal process, mere
errors and irregularities, which do not render the proceedings void, are not
grounds for relief by habeas corpus
because in such cases, the restraint is not illegal.[33]
In this
case, when petitioner filed her Petition for Habeas Corpus with the RTC in behalf of her husband, a Charge Sheet
had already been filed against him for violation of Section 37(a)(7) and
Section 45 of the Philippine Immigration Act of 1940, as amended. The filing of the Charge Sheet before the BSI
cured whatever irregularities or infirmities were attendant to his arrest. The
remedy of petitioner was to file a motion for the dismissal of the Charge Sheet
and the Mission Order of the Immigration Commissioner, not a petition for a
writ of habeas corpus before the RTC.
The RTC had no authority to nullify the Mission Order issued by the
Immigration Commissioner, much less set
aside the arrest of Javed Kiani. As held by this Court in Commissioner Rodriguez v. Judge Bonifacio:[34]
Be that as it may, there was a valid judicial process
justifying Ma Jing’s detention even before respondent
judge rendered his decision as shown by the Return of the Writ which averred,
among others, that a Charge Sheet was filed against Ma Jing. Even granting that the arrest of Ma Jing was initially illegal, the filing of the Charge Sheet
cured whatever incipient infirmity there was in her arrest. Respondent judge therefore had no authority
to release the party who was thus committed.
Section 4, Rule 102 of the Rules of Court provides:
SEC. 4. When writ not allowed or discharge
authorized. — If it appears that the person to be restrained of his liberty
is in the custody of an officer under process issued by a court or judge; or by
virtue of a judgment or order of a court of record, and that court or judge had
jurisdiction to issue the process, render the judgment, or make the order, the
writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the
person shall not be discharged by reason of any informality or defect in the
process, judgment or order. Nor shall
anything in this rule be held to authorize the discharge of a person charged
with or convicted of an offense in the
Once a person detained is duly charged in court, he
may no longer question his detention through a petition for issuance of a writ
of habeas corpus. His remedy would be to quash the
information and/or the warrant of arrest duly issued. The writ of habeas corpus should not be allowed after the party sought to be
released had been charged before any court.
The term “court” includes quasi-judicial bodies like the Deportation
Board of the Bureau of Immigration.[35]
The CA acted in accord with
jurisprudence when it affirmed the ruling of the RTC declaring that it had no
jurisdiction over petitioner’s plea to set aside the Summary Deportation Order
issued by the BOC against her husband Javed Kiani. Under Section
8, Chapter 3, Title I, Book III of Executive Order No. 292, the power to deport
aliens is vested on the President of the
In case
such motion for reconsideration is denied by the BOC, the aggrieved party may
appeal to the Secretary of Justice[38]
and, if the latter denies the appeal, to the Office of the President of the
In this
case, the petitioner did not file any motion with the BOC for reconsideration of
the Summary Deportation Order or appeal therefrom; neither did she appeal to the Secretary of
Justice or to the Office of the President or file a petition for certiorari under Rule 65.
We note
that under Section 3, Rule XIII[41]
of the Rules of Procedure to Govern
Deportation Proceedings, the decision of the BOC shall be returned to the BSI for
promulgation, and shall become final and executory after thirty (30) days from
promulgation unless within such period, the President of the
This rule, however, is not applicable
in this case. What the petitioner assailed
before the RTC was a Summary Deportation
Order of the BOC, not a BOC decision based on the recommendation of the BSI
after due hearing as mandated by Rule IX of the said Rules of Procedure.
IN LIGHT OF ALL THE FOREGOING, the
petition is DENIED for lack of
merit. Costs against the petitioner.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
WE
CONCUR:
Chief Justice
Chairperson
CONSUELO
YNARES-
Associate Justice
Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the conclusions in the above
decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
ARTEMIO V. PANGANIBAN
`
Chief Justice
* On leave.
[1]
Penned by Associate Justice Mercedes Gozo-Dadole
(Retired), with Associate Justices Conrado M.
Vasquez, Jr. and Rosmari D. Carandang,
concurring; rollo, pp. 30-37.
[2] Rollo, p. 39.
[3]
[4]
[5]
[6]
[7] Records, p. 31.
[8]
[9]
[10]
[11] 274 Phil. 1156 (1991).
[12] Records, pp. 1-8.
[13]
[14] Rollo, p. 42.
[15]
[16] Records, pp. 42-49.
[17] Rollo, pp. 44-49.
[18] CA rollo, p.19.
[19]
[20] 315 Phil. 757 (1995).
[21] CA rollo, p. 65.
[22] Rollo, pp. 14-15.
[23] 118 Phil. 868 (1963).
[24] G.R.
No. L-21426,
[25] Supra note 11.
[26] Supra note 20.
[27] G.R.
No. 153454,
[28] The prayer in the Omnibus Motion reads:
WHEREFORE, respondent Javed Kiani respectfully prays
that this Honorable Office issue an order for his immediate release from
custody or at the very least, allowing respondent to post bail for his
temporary liberty and, thereafter, issue another order setting aside the
Summary Deportation Order (SDO), dated 1 July 2002, issued against him.
The
respondent also prays for such other or further reliefs as may be deemed just
and equitable under the premises. (Rollo, p. 95).
[29]
[30] G.R.
No. 140931,
[31] Rule 3, Section 3, Rules of Court, as amended.
[32] G.R.
No. 163108,
[33]
[34] 398 Phil. 441 (2000).
[35]
[36] G.R.
No. 154745,
[37]
[38] Caoile v. Vivo, 210 Phil. 67 (1983) .
[39] Go Kiong Ochura v. Commissioner of Immigration,130 Phil. 443
(1968); Board of Commissioners v. Dela
[40] The provision reads in full:
SECTION 1. Scope.—This
Rule shall apply to appeals from judgments or final orders of the Court of Tax
Appeals and from awards, judgments, final orders or resolutions of or
authorized by any quasi-judicial agency in the exercise of its quasi-judicial
functions. Among these agencies are the
Civil Service Commission, Central Board of Assessment Appeals, Securities and
Exchange Commission, Office of the President, Land Registration Authority,
Social Security Commission, Civil Aeronautics Board, Bureau of Patents,
Trademarks and Technology Transfer, National Electrification Administration,
Energy Regulatory Board, National Telecommunications Commission, Department of
Agrarian Reform under Republic Act No. 6657, Government Service Insurance
System, Employees Compensation Commission, Agricultural Inventions Board,
Insurance Commission, Philippine Atomic Energy Commission, Board of
Investments, Construction Industry Arbitration Commission, and voluntary
arbitrators authorized by law.
[41] SECTION
3. Promulgation
of Decision. Finality.— The decision of the Board shall be returned to the
Board of Special Inquiry for promulgation.
Service of a copy of the decision at
the last known or given address of the respondent or at the office of his
counsel shall be deemed promulgation.
The decision shall become final and executory after thirty (30) days
from promulgation, unless within such period, the President shall order the
contrary.