An appeal by certiorari, by the Solicitor General in behalf of the Director of Prisons and the Executive Secretary, from the decision of the Court of Appeals in CA-G. R. No. 39018-R of said Court, entitled "Ang Cho Kio (Ang Ming Huy) Petitioner-Appellee versus The Direc­tor of Prisons and the Executive Secretary, Respondents­-Appellees."^[1]  In his petition the Solicitor General prays this Court "to render judgment ordering the strik­ing out from said decision of the portions recommending to the Executive Secretary 'to allow the (petitioner) (respondent Ang Cho Kio @ Ang Ming Huy) to leave this country in the first available transportation abroad but otherwise affirming the dismissal of the petition for habeas corpus, with costs in all instances against respondent Ang Cho Kio @ Ang Ming Huy."

The pertinent facts for the purposes of this de­cision, as shown in the record, are as follows:

Respondent Ang Cho Kio @ Ang Ming Huy had been charged, tried and convicted of various offenses com­mitted in the Philippines and was sentenced to suffer penalties, to wit: a total of forty-five (45) years, ten (10) months and twenty one (21) days of imprison­ment, P6,000 indemnity, and P5,000 moral damages, plus life imprisonment and P6,000 indemnity.^[2]  After serving six and one-half (6) years of his sentence said res­pondent was granted conditional pardon on July 4, 1959 by the President of the Philippines.  The conditional pardon partly reads as follows:

"By virtue of the authority con­ferred upon me by the Constitution, and upon the recommendation of the Board of Pardons and Parole, the unexecuted portions of the prison terms of prisoner ANG CHO KI0 @ KIWA @ PHILIPP ANG @ ANG TIU CHIO @ KE WA @ LUCIO LEE @ GO ONG @ MR. ANG @ GO ANG @ MR. ONG is hereby remitted on condition that he will volun­tarily leave the Philippines upon his release and never to return to this country.  Should the above-named prisoner refuse to accept said condition, he shall continue serving his sentence and upon the expiration thereof, he shall be deport­ed from the Philippines for being an un­desirable alien."

Ang Cho Kio duly accepted the conditions of his pardon and actually left the Philippines for Taipeh, Nationalist China, on July 28, 1959.

In the evening of June 26, 1966 Ang Cho Kio ar­rived at the Manila International Airport on a Philip­pine Air Lines plane from Taipeh, travelling under the name "Ang Ming Huy".  He held a round-trip ticket from Taipeh to Honolulu,to San Francisco, to Los Angeles, to Chicago, to Washington D.C. to New York, to Van­couver, to Tokyo, to Seoul, to Osaka, to Taipeh to Bangkok, to Saigon, to Hongkong and back to Taipeh.  He was booked on Philippine Air Lines earliest connecting flight to Honolulu on June 29, 1966 at 6:30 p.m., or with a stop-over of about 72 hours in Manila.  He sur­rendered his passport to the immigration authorities at the Manila International Airport, and was issued a note that his departure was scheduled for June 29, 1966 at 6:30 p.m.  He left his luggage at the airport and was issued claim tags.  He registered for a three-day stay at the El Presidente Hotel at Parañaque, Rizal.  He contacted his two friends in Manila, Lim Pin and Go Bon Kim.  These two friends invited him to stay longer in the Philippines.  On June 28, 1966 he and his two friends went to the Bureau of Immigration, where his friend Lim Pin signed a letter addressed to the Commissioner of Immigration requesting for a fourteen-day extension of stay in the Philippines for him.  Ang Cho Kio was identified by inspector Mariano Cristi of the Immigra­tion Bureau as the Ang Cho Kio who was deported to Taipeh on July 28, 1959.  His identity having been established, Ang Cho Kio was arrested, and the immigration authorities conducted an investigation regarding his presence in the Philippines.  The immigration authorities did not allow him to proceed with his trip to Honolulu.  On July 5, 1966 the Executive Secretary, by authority of the President, ordered him recommitted to prison to serve the unexpired portion of the sentence that were imposed on him, for having violated the condition of his pardon.  The supplemental order of recommitment reads as follows:^[3]

"TO THE DIRECTOR OF PRISONS

MUNTINLUPA, RIZAL

"WHEREAS, ANG CHO KIO @ KIWA & PHILIPP ANG @ ANG TIU CHIO @ KI WA @ LUCIO DEE @ GO ONG @ MR. ANG @ GO ANG @ MR. ONG was granted conditional pardon by the President of the Philippines on July 4, 1959, upon the condition that he will voluntarily leave the Philippines upon his release and never to return to this country; and

"WHEREAS, said ANG CHO KIO has violated the condition of his pardon in that on June 26, 1966, he returned to this country from Taipei and gained entry under an assumed name, ANG MING HUY, failed to leave on the first available connecting flight to Honolulu, his alleged destination; instead requested a fourteen day extension of his 72-hour transient stop-over; and had in December 1965 applied for a temporary visitor's visa to Manila also under his assumed name, ANG MING HUY;

"NOW, THEREFORE, by virtue of the autho­rity conferred upon the President of the Philippines by Section 64(i) of the Revised Administrative Code, you are hereby ordered to recommit to prison said ANG CHO KIO @ KIWA @ PHILIPP ANG @ ANG TIU CHIO @ KI WA @ LUCIO DEE @ GO ONG @ MR. ANG @ GO ANG @ MR. ONG @ ANG MING HUY to serve the unexpired portion of the sentences for which he was originally committed to prison, and upon expiration thereof, to deliver said person to the custody of the Commissioner of Immigration for im­mediate deportation for being an undesirable alien.

"Manila, July 5, 1966.

By Authority of the President:

(Sgd.) RAFAEL M. SALAS

Executive Secretary

RS/ara"

Ang Cho Kio filed with the Executive Secretary a motion, dated August 29, 1966, for the reconsidera­tion of the supplemental order of recommitment.  The Executive Secretary failed to act on the motion for reconsideration, and so on October 5, 1966 Ang Cho Kio filed a petition for a writ of habeas corpus with the Court of First Instance of Rizal (Pasay Branch), making as respondents in said petition the Director of Prisons and the Executive Secretary.  Under date of October 10, 1966, the officer-in-charge of the Bureau of Prisons filed his return.  Under date of October 17, 1966, the Solicitor General filed a return for the Director of Prisons and the Executive Secretary.

After due hearing the Court of First Instance of Rizal, on January 31, 1967, rendered a decision dis­missing the petition for habeas corpus.  The Court of First Instance of Rizal held that Ang Cho Kio @ Ang Ming Huy was validly recommitted to prison by the Pre­sident of the Philippines in the exercise of his pre­rogatives pursuant to the provisions of Section 64(i) of the Revised Administrative Code.

Ang Cho Kio appealed to the Court of Appeals from the decision of the Court of First Instance of Rizal.  In the decision of a special division of five justices, with three justices concurring, and two justices concurring and dissenting, the Court of Appeals rendered a decision which in effect affirmed the decision of the Court of First Instance of Rizal dismissing Ang Cho Kio's petition for habeas corpus.

We read the following in the majority opinion:

"It having been settled that Sec­tion 64(i) of the Revised Administrative Code is still in force, and that the respondent Executive Secretary, in the name and by authority of the President, exercised the power of recommitment here­in under the provisions of said Code, and not under Art. 159 of the Revised Penal Code, it becomes apparent that any discussion regarding failure to file the corresponding indictment and the presence or absence of criminal intent, will be off-tangent.  On the contrary, the issue, in this connection, is whether the courts of justice may interfere in the exercise by the President, thru his Executive Sec­retary, of his administrative power of recommitment.  Again, it is settled jurisprudence that the Chief Executive may determine, alone and by himself, whether the condition attached to a pardon given by him has been violated; and in the exer­cise of this prerogative, the courts may not interfere, however erroneous the find­ings may be (Espuelas v. The Provincial Warden, supra; Tesoro v. Director of Prisons, 68 Phil. 154)."

The aforequoted portion of the majority opinion affirms the reasons of the Court of First Instance of Rizal in dismissing the petition for habeas corpus.  However, the majority opinion contains the recommenda­tion that Ang Cho Kio

".... be sent out at once from this country and that he be allowed to leave Muntinlupa Prisons under guard only when he has been booked for outward flight at the Manila International Airport so as to avoid the possibility of any further viola­tion of his conditional pardon.  At any rate it would be to the best interest of the security and peace of this country to have the petitioner expatriated from the Philippines, instead of being recommitted for a long duration of time to prison where his presence may constitute a constant menace to our country's welfare and bring about some sinister influence among the people with whom he will associate or come in contact."

Then the dispositive portion of the majority opinion reads as follows:

"FOR ALL OF THE FOREGOING REASONS, the petition herein filed is hereby dismissed, with costs against the peti­tioner, and with a reiteration of the recommendation to allow the petitioner to leave this country in the first available transportation abroad made in the course of this decision.  Let a copy of this decision be furnished the Executive Secretary."

The concurring and dissenting opinion of the two justices opens with the following statement:

"We concur with the majority opinion insofar as the dismissal of the petition for writ of habeas corpus of petitioner-appellant Ang Cho Kio is concerned, for such dismissal, in effect, is equivalent to an affirmance of the appealed decision. However, we beg to dissent from that por­tion of the majority opinion recommending that said petitioner-appellant be allowed to leave this country by the first avail­able transportation."

In due time the Solicitor General filed with the Court of Appeals a motion for reconsideration, praying for the deletion from the majority opinion of the recom­mendation to allow Ang Cho Kio to leave the country on the first available transportation abroad.  The Court of Appeals, by a vote of three to two in the special division which decided the case, denied the motion.  Hence this appeal by certiorari by the Solicitor General to this Court.

It is now contended by the Solicitor General that the majority of the special division of five justices of the Court of Appeals erred in making a recommendation to allow respondent Ang Cho Kio to leave this country on the first available transportation abroad.  The Soli­citor General maintains that the recommendation is not a part of the decision binding upon the parties, and is uncalled for; that it gives the decision a political complexion, because courts are not empowered to make such a recommendation, nor is it inherent or incidental in the exercise of judicial powers; that there is no law which gives the court the authority to recommend to the President the voluntary departure of an undesirable alien who is lawfully committed to jail; that the deporta­tion of aliens sentenced by the courts for violation of the laws of the land, and even the act of merely allowing such convicted aliens to voluntarily leave the country, is an act of state exercised solely in the discretion of the Chief Executive. It is urged by the Solicitor General that the act of sending an undesirable alien out of the country is political in character, and the courts should not interfere with, nor attempt to influence, the political acts of the Chief Executive.

In a motion dated April 7, 1969, Ang Cho Kio manifested that he waived his right to file an answer to any brief filed by the Solicitor General.^[4]

We agree with the Solicitor General.  The case before the Court of Appeals was for habeas corpus.  The only question to be resolved by the Court of Ap­peals was whether, or not, the Court of First Instate of Rizal, had rightly dismissed the petition of Ang Cho Kio for habeas corpus.  The Court of Appeals was not called upon to review any sentence imposed upon Ang Cho Kio.  The sentence against him had long become final, and, in fact, he had served part of the sentence when he was extended pardon on July 4, 1959, upon the condition that he should leave the country, never to return.  The opinion of the three justices of the special division of the Court of Appeals, to which the two other justices have concurred, found that the recommitment to prison of Ang Cho Kio was done in the exercise by the President of the Philippines of his power pursuant to the provision of Section 64(i) of the Revised Adminis­trative Code, and the courts should not interfere with the exercise of that power.  The majority opinion should have been limited to the affirmance of the de­cision of the lower court, and no more.

The recommendatory power of the courts in this jurisdiction are limited to those expressly provided in the law - and such law is the provision of Section 5 of the Revised Penal Code, as follows:

"Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of penal legislation.

"In the same way the court shall submit to the Chief Executive, through the Department of Justice such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense."

Certainly, the recommendation in the majority opinion of the special division of the Court of Appeals, now in question, is not authorized under the aforequoted provision of Article 5 of the Revised Penal Code.  The Court of Appeals was not called upon to review any sentence that was imposed on Ang Cho Kio.  It was simply called upon to determine whether Ang Cho Kio was illegal­ly confined, or not, in the insular penitentiary under the Director of Prisons.  We do not consider it proper that the majority of the justices in the special division make a recommendation that would suggest a modification or a correction of the act of the Chief Executive, after the same justices have said in their opinion "that the Chief Executive may determine, alone and by himself, whether the condition attached to a pardon given by him had been violated; and in the exercise of this prero­gative, the courts may not interfere, however erroneous the findings may be."  When the Chief Executive, exer­cising his powers pursuant to Section 64(i) of the Re­vised Administrative Code, ordered Ang Cho Kio recommit­ted to prison, it is assumed that the Chief Executive had decided that Ang Cho Kio should be dealt with that way under the circumstances.  For the court to suggest to the Chief Executive to modify his decision to recom­mit Ang Cho Kio to prison by allowing him to leave the country instead is indeed to interfere with the functions of the Chief Executive.  It would be, as urged by the Solicitor General, an interference on, or an attempt to influence, the exercise by the Chief Executive of the political powers of his office.  The matter of whether an alien who violated the laws in this country may remain or be deported is a political question that should be left entirely to the Chief Executive to de­cide.  Under the principle of separation of powers, it is not within the province of the judiciary to express an opinion, or express a suggestion, that would reflect on the wisdom or propriety of the action of the Chief Executive on matters purely political in nature.

It may be said that the recommendation embodied in the majority opinion of the special division of the Court of Appeals simply represents the private opinion of the three justices, and judges should be left free to express even their private opinions in judicial decisions.  We believe, however, that the better practice should be that the decision of a court should contain only opinion that is relevant to the question that is before the court for decision.  After all, courts are not concerned with the wisdom or mora­lity of laws, but only in the interpretation and appli­cation of the law.  We believe that judges should refrain from expressing irrelevant opinions in their decisions which may only reflect unfavorably upon their competence and the propriety of their judicial actuations.

However, of the ten members of the Court, as presently constituted, only five are of the opinion that the recommendation embodied in the decision of the majority of the special division of the Court of Appeals, now in question, should be deleted from the decision.^[5]  Two members of the Court are of a dif­ferent opinion^[6], and three others did not take part in the decision because of their official actuations relative to the case of respondent Ang Cho Kio before it reached this Court.^[7]  There is, therefore, one vote less than the majority of the Court that is neces­sary to grant the certiorari prayed for.

WHEREFORE, the petition for writ of certiorari is denied, and the decision of the special division of the Court of Appeals stands.  No costs.

IT IS SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., and Dizon, JJ., concur.
Fernando, J., concurs fully and in addition submits a brief concurring opinion.
Makalintal, J., dissents in a separate opinion.
Castro, J., concurs fully in the above dissenting opinion of Mr. Justice Makalintal.
Teehankee, Barredo, and Villamor, JJ., did not take part.

---

^[1] Decision of a Special Division of five Justices of the Court of Appeals; Villamor, Pres. J., Rodriguez and Cañizares, JJ. concurring; Nolasco and Mojica, JJ. concurring and dissenting.

^[2] He had been prosecuted for murder, frustrated murder, frustrated homicide, grave coercion with murder, illegal possession of explosives and ammunitions, grave coercion and illegal possession of firearm.  (Brief, Solicitor General in the Court of Appeals, p. 1 and 10). (page 22 of the rollo)

^[3] Appellant's Brief in the Court of Appeals, pp. 3­-4 (page 21 of the rollo).

^[4] Page 57 of the rollo.

^[5] Chief Justice Concepcion and Justices Reyes, Dizon, Zaldivar and Fernando.

^[6] Justices Makalintal and Castro.

^[7] Justice Teehankee, as Secretary of Justice, recommended to the President the recommitment to prison of Ang Cho Kio; Justice Barredo, as Solicitor General, appeared for the Executive Secretary and the Director of Prisons in the Court of Appeals; and Justice Villamor was one of the three justices that rendered the majority opinion of the special division of the Court of Appeals.

tags