BOARD OF COMMISSIONERS vs JUDGE DELA ROSA

READ CASE DIGEST HERE.

FELICIANO, J., dissenting:

I regret I am unable to join the opinion written by my distinguished brother in the Court, Mr. Justice A.A. Bidin, and I, therefore, undertake to submit this separate opinion.

For convenience, the following is a precis of the matters discussed in detail below.

1. I agree that the Warrant of Arrest dated 14 August 1990 is defective in its language. The surrounding facts, however, make quite clear that an amended warrant of arrest or mission order, or a new one correctly worded, may be issued by Immigration Commissioner Domingo for the purpose of carrying out an existing and valid Warrant of Exclusion covering respondent William Gatchalian and his co-applicants for admission.
2. The 6 July 1962 Decision of the Board of Commissioners (“BOC”) and Warrant of Exclusion remain valid and effective and enforceable against respondent William Gatchalian, and his co-applicants for that matter. That Decision reversed a 6 July 1961 decision of the Board of Special Inquiry (“BSI”) and held that respondent William Gatchalian and his co-applicants failed to subtantiate and prove their claim to Philippine citizenship in 1961. Respondent William Gatchalian does not claim Philippine citizenship by any mode of entitlement subsequent to his application for entry as a citizen of the Philippines in 1961, i.e., by any act or circumstance subsequent to his birth and supposed filiation as a legitimate son of Francisco Gatchalian, also a supposed citizen of the Philippines.
3. In its Decision in Arocha vs. Vivo,¹ the Supreme Court upheld the validity and legal effect of the 6 July 1962 Decision of the BOC and the Warrant of Exclusion not only against Pedro Gatchalian, the particular Gatchalian who was taken into custody by immigration authorities in 1965, but also against Pedro’s co-applicants, which include respondent William Gatchalian. The validity of the claim to Philippine citizenship by Pedro Gatchalian, as a supposed descendant of Santiago Gatchalian, allegedly a natural born citizen of the Philippines, was directly placed in issue in the 1961-1962 proceedings before the BSI and the BOC, and by the Solicitor General and Pedro Gatchalian in Arocha vs. Vivo (supra). In upholding the validity and legal effect of the 6 July 1962 BOC Decision that the Gatchalian applicants had not substantiated their claim to Philippine citizenship, this Court in effect ruled that the Gatchalian applicants were not Philippine citizens, whatever their true nationality might be.
4. Should this Court now determine to examine once more the claim to Philippine citizenship of respondent William Gatchalian, a detailed examination of the facts, including the supposed status of Santiago Gatchalian as a natural born Philippine citizenship, shows that those claims to Philippine citizenship were indeed not proven by respondent William Gatchalian and his co-applicants. Since respondent William Gatchalian does not claim to have been naturalized as a Philippine citizen after rendition of the 6 July 1962 BOC Decision, he must accordingly be held to be not a Philippine citizen.
5. Should the legal results thus reached seem harsh to some, I respectfully submit that the remedy lies not with this Court which is charged with the application of the law as it is in fact written, but with the political branches of the Government. It is those departments of Government which must consider the desirability and wisdom of enacting legislation providing for the legalization of the entry and stay of aliens who may be in the same situation as respondent William Gatchalian and his co-applicants.

I

1. Petitioner argues that respondent William Gatchalian’s arrest follows as a matter of “consequence” of the Warrant of Exclusion issued by the BOC on 6 July 1962. This is opposed by respondent Gatchalian upon the ground that the Mission Order or Warrant of Arrest does not mention that it is issued pursuant to a final order of deportation or Warrant of Exclusion.

The Mission Order or Warrant of Arrest dated 14 August 1990 issued by petitioner Commissioner Domingo, CID, reads in part as follows:

Intelligence Officers/Agents: All Teams

Team No.

Subject: William, Juan, Francisco, Jose, Benjamin, Jonathan, Pedro, Gloria, Elena, all surnamed Gatchalian

Address: Bgy. Canumay, Valenzuela, M.M.

x x x           x x x          x x x

1. 1. Make a warrantless arrest under the Rules of Criminal Procedure, Rule 113, Section 5, for violation of the Immigration Act, Section 37, para. a; Secs. 45 and 46 Administrative Code;
   2. Make a warrantless search as an incident to a lawful arrest under Rule 125, Section 12.
   3. Deliver the suspect to the Intelligence Division and immediately conduct custodial interrogation, after warning the suspect that he has a right to remain silent and a right to counsel;
   4. Prepare and file an affidavit of arrest with the Special Prosecutor’s Office and, in case of a search, prepare and file an inventory of the properties seized, verified under oath following Office Memorandum Order No. 45

x x x           x x x          x x x

The above Mission Order merely referred to Section 37 (a) of the Immigration Act, as amended, and to Sections 45 and 46 of the Administrative Code (should be Immigration Law), and that its wording suggests that the arrest is sought to be carried out for the purpose of carrying out a preliminary investigation or custodial interrogation rather than for the purpose of enforcing a final order of deportation or warrant of exclusion. More specifically, the Mission Order failed to mention the 6 July 1962 BOC Decision and Warrant of Exclusion. At the same time, there is no gainsaying the fact that the 6 July 1962 BOC Decision and Warrant of Exclusion do exist and became final and, as discussed in detail below, remain valid and effective.

It should be noted also that by 6 September 1990, Special Prosecutor Mabolo had filed a Manifestation or Motion before the Bureau of Immigration explicitly referring to the Warrant of Exclusion issued against respondent William Gatchalian and his original co-applicants for admission in 1961, which had been passed upon in Arocha vs. Vivo (supra), and argued that there was, therefore, no longer any need to adduce evidence in support of the charges against respondent William Gatchalian.

Thus it appears to me that the Warrant of Arrest or Mission Order dated 15 August 1990, ineptly worded as it is, may be amended so as to refer explicitly to the mentioned Warrant of Exclusion, or a new warrant of arrest or mission order issued similarly explicitly referring to the Warrant of Exclusion.

2. It is indispensably necessary to refer to the Warrant of Exclusion of 6 July 1962 which read as follows:

WHEREAS, upon review, motu proprio of the proceedings had on the application for admission as Philippine citizens of JOSE GATCHALIAN, ELENA GATCHALIAN, BENJAMIN GATCHALIAN, JUAN GATCHALIAN, PEDRO GATCHALIAN, GLORIA GATCHALIAN, FRANCISCO GATCHALIAN, WILLIAM GATCHALIAN, and JOHNSON GATCHALIAN, the Board of Commissioners found them not entitled to admission as Filipinos in a Decision, dated July 6, 1962, and ordered their exclusion as persons not properly documented;

AND WHEREAS, the Decision of the Board of Commissioners, dated 6 July 1962, ordering the exclusion of above-named applicants, has now become final and executory.

NOW THEREFORE, by virtue of the authority vested in the undersigned by law, you are hereby ordered to exclude the aforenamed individuals and cause their removal from this country to the port where they came or to the port of the country of which they are nationals, on the first available transportation, in accordance with law. (Emphasis supplied)

It should be noted that respondent William Gatchalian was a party to the 1961-1962 proceedings before the Bureau of Immigration which proceedings culminated in the 6 July 1962 Decision of the BOC and the aforequoted Warrant of Exclusion.

It is, however, insisted by respondent William Gatchalian that the Warrant of Exclusion may no longer be executed or implemented as against him in view of the passage of approximately twenty-eight (28) years since the issuance of such Warrant. Respondent Gatchalian here relies upon Section 37 (b) of the Immigration Act which states that:

Sec. 37 (b). Deportation may be effected under clauses 2, 3, 7, 8, 11 and 12 of the Par. (a) of this Section at any time after entry, but shall not be effected under any other clauses unless the arrest in the deportation proceedings is made within five (5) years after the cause for deportation arises . . . (Emphasis supplied)

Examination of the above quoted Section 37 (b) shows that the five (5) year-limitation is applicable only where deportation is sought to be effected under clauses of Section 37 (a) other than clauses 2, 7, 8, 11 and 12; that where deportation or exclusion is sought to be effected under clauses 2, 7, 8 11 and 12 of Section 37 (a), no period of limitation is applicable; and that, to the contrary, deportation or exclusion may be effected “at any time after entry.”

Examination of contemporaneous facts shows that the Government has sought to effect the exclusion and deportation of respondent William Gatchalian upon the ground that he had entered the country as a citizen of the Philippines when he was not lawfully admissible as such at the time of entry under Section 37 (a) (2), since the BOC had held him and the other Gatchalians there involved as not properly documented for admission, under Section 29 (a) (17) of the Immigration Act, as amended. On 7 July 1990, the Acting Director of the National Bureau of Investigation (“NBI”) initiated the proceedings immediately before us by writing to the Secretary of Justice recommending that respondent William Gatchalian, and his co-applicants covered by the Warrant of Exclusion dated 6 July 1962, be charged with: “Violation of Section 37 (a), paragraphs 1 and 2, in relation to Section 45 (c), (d) and (e) of Commonwealth Act 613 as amended, also known as the Immigration Act of 1940.” The Secretary of Justice endorsed this recommendation to Immigration Commissioner Domingo for investigation and immediate action. On 20 August 1990, Special Prosecutor Mabolo filed a charge sheet against respondent William Gatchalian which specified the following charges:

The respondent is an alien national who unlawfully gained entry into the Philippines without valid travel document in violation of the Immigration Act; Sec. 37 par. a, sub pars. (1) and (2);

That respondent being an alien misrepresented himself as Philippine Citizen by false statements and fraudulent documents in violation of the Immigration Act, Sec. 45, par. (c), (d) and (e).

That respondent being an alien national is an undocumented person classified as excludable under the Immigration Act, Sec. 29 (a) sub par. (17).

x x x           x x x          x x x

(Emphasis supplied)

Section 37 (a) (1) and (2), of Commonwealth Act No. 613, as amended, provides as follows:

Sec. 37 (a). The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien.

(1) Any alien who enters the Philippines after the effective date of this act by means of false and misleading statements or without inspection and admission by the Immigration authorities at a designated port of entry or at any place other than at a designated port of entry; (As amended by Republic Act No. 503).

(2) An alien who enters the Philippines after the effective date of this act, who was not lawfully admissible at the time of entry.

x x x           x x x          x x x

(Emphasis supplied)

Section 37 (a) (2), quoted above, relates back to Section 29 (a) of the Immigration Act, as amended, which lists the classes of alien excluded from entry in the Philippines, as follows:

Sec. 29. (a). The following classes of aliens shall be excluded from entry into the Philippines;

x x x           x x x          x x x

(17) Persons not properly documented for admission as may be required under the provisions of this act. (Emphasis supplied)

Thus, in the instant case, the net result is that no time limitation is applicable in respect of the carrying out of the Warrant of Exclusion issued in 1962.

A little reflection suffices to show why this must be so. What was involved in 1961 when the supposed children and grandchildren of Santiago Gatchalian first descended upon the Philippines, was the right of a person claiming to be a Philippine citizen to enter for the first time and reside in the Philippines. On the part of the Government, what was at stake was the right to exclude from the country persons who had claimed the right to enter the country as Philippine citizens but who had failed to substantiate such claimed status. Aliens seeking entry into the Philippines do not acquire the right to be admitted into the country by the simple passage of time. Exclusion of persons found not to be entitled to admission as Philippine citizens, must be distinguished from the deportation of aliens, who, after having been initially lawfully admitted into the Philippines, committed acts which rendered them liable to deportation.

Normally, aliens excluded are immediately sent back to their country of origin.² This is so in cases where the alien has not yet gained a foothold into the country and is still seeking physical admittance. However, when the alien had already physically gained entry but such entry is later found unlawful or devoid of legal basis, the alien can be excluded any time after it is found that he was not lawfully admissible at the time of his entry. Technically, the alien in this case is being excluded; however, the rules on deportation can be made to apply to him in view of the fact that the cause for his exclusion is discovered only after he had gained physical entry.

It is worth noting at this point that in Arocha vs. Vivo (supra), this Court upheld the 6 July 1962 Order of the BOC and the application of the Warrant of Exclusion, in respect of Pedro Gatchalian, even though more than five (5) years had elapsed by the time the Court’s Decision was promulgated on 26 October 1967.

Though respondent William Gatchalian is physically inside the country, it is the government’s basic position that he was never lawfully admitted into the country, having failed to prove his claim of Philippine citizenship, and hence the Warrant of Exclusion of 6 July 1962, or a new Warrant of Exclusion for that matter, may be executed “at any time” under Section 37 (b). It is the correctness of that basic position which must be ascertained and in that ascertainment, the mere passage of time is quite peripheral in relevance considering the express language of Section 37 (b).

My distinguished brother, Bidin, J., finally invokes Act No. 3326, and on the basis of Section 1 thereof, would hold that where the arrest for purpose of deportation is made more than five (5) years after the cause for deportation arose, the prescriptive period of eight (8) years should be applied. Act No. 3326 which took effect on 4 December 1926, establishes prescriptive periods in respect of criminal prosecutions for violations penalized not by the Revised Penal Code but rather by special acts which do not otherwise establish a period of prescription. In other words, Act No. 3326 establishes a statute of limitations for the institution of criminal proceedings. It is, however, quite settled that deportation proceedings cannot be assimilated to criminal prosecutions for violation either of the Revised Penal Code or of special statutes.³ Moreover, Act No. 3326 purports to be applicable only where the special act itself has not established an applicable statute of limitations for criminal proceedings. It cannot, however, be said that Article 37 (b) of the Immigration Act (quoted earlier) has not established an applicable statute of limitations. For, precisely, Section 37 (b) of the Immigration Act states that deportation may be effected under certain clauses of Section 37 (a) “at any time after entry.” One of those instances is, precisely, deportation upon the ground specified in Clause (2) of 37 (a) which relates to “any alien who enters the Philippines after the effective date of this act, who was not lawfully admissible at the time of entry.” Thus, the Immigration Act, far from failing to specify a prescriptive period for deportation under Section 37 (a) (2), expressly authorizes deportation under such ground “at any time after entry.” It is, thus, very difficult to see how Act No. 3326 could apply at all to the instant case.

Finally, we must recall once more that what is actually involved in the case at bar is exclusion, not deportation.

3. It is urged by the government that Arocha vs. Vivo (supra) has already resolved the claim to Philippine citizenship of respondent William Gatchalian adversely to him and that such ruling constitutes res judicata. Upon the other hand, respondent William Gatchalian vehemently argues that neither the 6 July 1962 BOC’s Decision nor Arocha definitely settled the question of his citizenship.

My respectful submission is that respondent William Gatchalian’s argument constitutes a highly selective reading of both the BOC Decision and the Decision in Arocha Written by J.B.L. Reyes, J. for a unanimous court. The 6 July 1962 Decision of the BOC, in its dispositive portion, reads as follows:

IN VIEW OF THE FOREGOING CONSIDERATIONS, this Board finds and hereby holds that the applicants [Jose Gatchalian, Elena Gatchalian, Benjamin Gatchalian, Juan Gatchalian, Pedro Gatchalian, Gloria Gatchalian, Francisco Gatchalian, William Gatchalian and Johnson Gatchalian] herein have not satisfactorily proved their claim to Philippine citizenship and therefore the Decision of the Board of Special Inquiry, dated July 6, 1961 admitting them as Filipinos is hereby reversed, and said applicants should be, as they are hereby ordered excluded as persons not properly documented.

SO ORDERED. (Emphasis supplied)

Since respondent William Gatchalian and his co-applicants in 1961 claimed the right to enter the country as Philippine citizens, determination of their right to enter the Philippines thus indispensably involved the resolution of their claim to Philippine citizenship. In other words, the determination of that citizenship in the instant case was not a mere incident of the case; it was rather the central and indeed the only issue that had to be resolved by the BOC. Review of the 1961 proceedings before the BSI shows that the sole issue before it was the supposed Philippine citizenship of the applicants. Thus, the very same issue of claimed Philippine citizenship was resolved by the BOC when it reversed the 6 July 1961 decision of the BSI. This case may be distinguished from other types of cases, e.g., applications for public utility franchises, petitions for change of name, applications for registration as voter, filing of certificates of candidacy for an elective position, etc., where the central issue is not citizenship although resolution of that issue requires a determination of the citizenship of the applicant, candidate or petitioner.

The ruling of the BOC that respondent William Gatchalian and his co-applicants for admission as Philippine citizens had not satisfactorily proved their claim to Philippine citizenship, can only be reasonably read as a holding that respondent William Gatchalian and his co-applicants were not Philippine citizens, whatever their true nationality or nationalities might be. Thus, it appears to be merely semantic play to argue, as respondent William Gatchalian argues, that the 1962 BOC Decision did not categorically hold him to be an “alien” and that the BOC had merely held him and his co-applicants as “not properly documented.” The phrase “not properly documented” was strictly and technically correct. For William Gatchalian and his co-applicants had presented themselves as Philippine citizens and as such entitled to admission into the country. Since the BOC rejected their claims to Philippine citizenship, William Gatchalian and his co-applicants were non-Filipinos “not properly documented for admission” under Section 29 (a) (17), Immigration Act as amended.

4. In Arocha vs. Vivo (supra), the Supreme Court had before it the following items:

(1) The 6 July 1961 Decision of the BSI which allowed the entry of respondent Gatchalian and his co-applicants as citizens of the Philippines;

(2) A split BOC Decision approving the 6 July 1961 BSI decision, which had been “noted” by two (2) Commissioners but rejected by Commissioner Galang on 14 and 26 July 1961 and 21 August 1961, respectively;

(3)The 6 July 1962 Decision of the BOC in which the BOC had reviewed motu proprio the Gatchalian proceedings before the BSI and reversed the BSI decision of 6 July 1961;

(4)The Warrant of Exclusion dated 6 July 1962 issued pursuant to the 6 July 1962 Decision of the BOC; and

(5) A decision of the Manila Court of First Instance dated 31 July 1965, rendered in a habeas corpus proceeding brought to effect the release of Pedro Gatchalian who had been taken into custody by immigration officials pursuant to the 6 July 1962 Warrant of Exclusion.

The Court of First Instance (“CFI”) decision ordered Pedro Gatchalian’s release upon the ground that the 6 July 1962 BOC Decision had been issued beyond the one (1) year period for review of the BSI decision of 6 July 1961. The CFI decision was reversed and nullified by the Supreme Court.

The Supreme Court held that the BOC Decision of 6 July 1962 had not been antedated and that it was valid and effective to reverse and nullify the BSI order granting admission to the Gatchalians as citizens of the Philippines.

The Court also held that the split BOC decision of July-August 1961 did not operate to confirm and render final the BSI decision of 6 July 1961, the split decision being null and void because it had not been rendered by the BOC as a body.

The Court further rejected Pedro Gatchalian’s argument that he was not bound by the 6 July 1962 BOC Decision:

It is argued for the appellee that the minutes in Exh. 5-A refer only to the cases of Gloria, Francisco and Benjamin Gatchalian. But the designation of the case is “Gloria Gatchalian, et al.” No reason is shown why the case of these three should be considered and voted upon separately, considering that the claims to citizenship and entry of all were based on the same circumstances, applicants being the descendants of one Santiago Gatchalian, a Filipino and that all their applications for entry were in fact jointly resolved by the Board of Inquiry in one single decision (Annex 1, petition, G.R. No. L-24844).⁴

I respectfully submit that the above-quoted ruling in Arocha disposes of the contention here being made by respondent William Gatchalian that he is not bound by the Decision in Arocha vs. Vivo, Arocha held that the 1962 BOC Decision was valid and effective and William was certainly one of the applicants for admission in the proceedings which began in 1961 before the BSI.

Respondent William Gatchalian contends that the Court in Arocha did not find him nor any of his co-applicants to be aliens and that all the Court did was to hold that the 6 July 1962 Board of Commissioners decision had not been antedated. This contention cannot be taken seriously. As has already been pointed out several times, the 1962 Board of Commissioners decision held that William Gatchalian and his eight (8) other co-applicants for admission had not proved their claim to Philippine citizenship; not being Filipinos, they must have been aliens, to be excluded as persons not properly documented. Moreover, a review of the Rollo in Arocha vs. Vivo shows that the parties there had expressly raised the issue of the citizenship of Pedro Gatchalian in their pleadings. The Solicitor General, in his fifth assignment of error, argued that the Court of First Instance had erred in declaring Pedro Gatchalian a Filipino, and simultaneously urged that the 6 July 1962 decision of the Board of Commissioners was quite correct. Pedro Gatchalian, upon the other hand, contended that precisely because he was a Filipino, the Bureau of Immigration had no jurisdiction to exclude him.⁵

The Court also said in Arocha:

Finally, it is well to note that appellee did not traverse the allegation of appellant Commissioners in their return to the writ of Habeas Corpus that appellee Pedro Gatchalian gained entry on the strength of a forged cablegram, purportedly signed by the former Secretary of Foreign Affairs Felixberto Serrano, and apparently authorizing appellee’s documentation as a Filipino (par. 3[a] of Return, C.F.I. Rec., pp. 15-16). Such failure to deny imports admission of its truth by the appellee, establishes that his entry was irregular. Neither has he appealed the decision of the Commissioners of Immigration to the Department Head.⁶

Since the physical entry of Pedro Gatchalian was effected simultaneously with that of Francisco and William Gatchalian, on exactly the same basis and on the strength of the same forged cablegram allegedly from then Secretary of Foreign Affairs Felixberto Serrano, it must follow that the entry of Francisco and William Gatchalian was similarly irregular. The applications for admission of the nine (9) Gatchalians were all jointly resolved by the BSI on 6 July 1961 on the identical basis that they were all descendants of Santiago Gatchalian, a supposed natural born Philippine citizen.

5. The purported reversal of the 1962 BOC Decision by Commissioner Nituda in 1973, cannot be given any effect. A close examination of the same reveals that such purported reversal was highly irregular.

Respondent William Gatchalian alleges that Mr. Nituda, being in 1973 Acting Commissioner of Immigration, had the authority to reverse the BOC Decision of 6 July 1962, since he (Nituda) had immediate control, direction and supervision of all officers, clerks and employees of the Bureau of Immigration. Control means, respondent Gatchalian continues, the power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.⁷

Respondent Gatchalian’s view is obviously flawed. The Commissioner’s power of control over the officers and employees of the Bureau of Immigration cannot be compared to the power of control and supervision vested by the Constitution in the President of the Philippines (which was what Ham was all about), for the Commissioner’s general power of control cannot be said to include the power to review and set aside the prior final decision reached by the BOC. The Commissioner of Immigration, acting alone, cannot be regarded as an authority higher than the BOC itself (constituted by the Commissioner and the two [2] Associate Commissioners), in respect of matters vested by the governing statute in such Board itself. One of these matters is precisely the hearing and deciding of appeals from decisions of the BSI, and the motu proprio review of the entire proceedings of a case within one (1) year from the promulgation of a decision by the BSI.⁸

Respondent Gatchalian points to Section 29 (b) of the Immigration Act as amended, as empowering Nituda to reverse the 1962 BOC Decision. Section 29 (b) reads as follows:

Section 29. . . .

x x x           x x x          x x x

(b) Notwithstanding the provisions of this section, the Commissioner of Immigration, in his discretion, may permit to enter (sic) any alien properly documented, who is subject to exclusion under this section, but who is —

(1) an alien lawfully resident in the Philippines who is returning from a temporary visit abroad;

(2) an alien applying for temporary admission.

It is difficult to understand respondent’s argument. For one thing, Section 29 (b) relates to an “alien properly documented” while respondent Gatchalian precisely claims to be a citizen of the Philippines rather than a resident alien returning from a temporary visit abroad or an alien applying for temporary admission.

It should be recalled that Nituda’s 1973 Decision approved a ruling rendered by a Board of Special Inquiry in 1973 that respondent Gatchalian was properly documented, a ruling which was precipitated by a “Petition for Rehearing” filed by respondent Gatchalian and his co-applicants in 8 March 1972 before the BSI. There are a number of obvious defects in the action of the BSI. Firstly, the motion for rehearing was filed way out of time. Rule 3, B 22 of the Immigration Rules and Regulations of 1 January 1941 provides as follows:

At any time before the alien is deported, but not later than seven days from the date he receives notice of the decision on appeal of the Board of Commissioners, the applicant or his attorney or counsel may file a petition for rehearing only on the ground of newly discovered evidence. Such petition shall be in writing and shall set forth the nature of the evidence discovered and the reason or reasons why it was not produced before. . . . (Emphasis supplied)

Respondent Gatchalian’s and his co-applicants’ motion for rehearing was filed, not seven (7) days but rather ten (10) years after notice of the 1962 BOC Decision had been received by them. Secondly, Rule 3, B 25 of the Immigration Rules and Regulations prescribed that any motion for rehearing shall be filed only with the Board of Commissioners; the Gatchalians’ motion for rehearing was filed with the BSI which then purported to reopen the case “without first securing the consent in writing of the Commissioner of Immigration” as required by Rule 2, D 20.

Furthermore, the purported reversal of the 1962 BOC Decision was made not by the duly constituted BOC in 1973, but only by its Chairman, then Acting Commissioner Nituda. Mr. Nituda’s action flew in the face of Rule 3, B 22 of the Immigration Rules and Regulation, which mandates that the decision of any two (2) members of the BOC shall prevail. It thus appears that Mr. Nituda purported to act as if he were the entire BOC. Indeed, even the BOC itself in 1973 could not have lawfully reversed a final decision rendered by the BOC ten (10) years ago.⁹

We must, finally, not lose sight of the ruling in Arocha vs. Vivo (supra) where the Supreme Court expressly outlined the procedure to be followed by the BOC in resolving cases before them. This court was very explicit in holding that individual actions of members of the BOC are legally ineffective:

. . . [T]he former Immigration Commissioners appeared to have acted individually in this particular instance and not as a Board. It is shown by the different dates affixed to their signatures that they did not actually meet to discuss and vote on the case. This was officially made to record by the Secretary of Justice in his Memorandum Order No. 9, on January 24, 1962, wherein he stated.

that for the past several years, the Board of Commissioners of Immigration has not met collectively to discuss and deliberate in the cases coming before it. [Citation omitted]

Individual action by members of a board plainly renders nugatory the purpose of its constitution as a Board. The Legislature organized the Board of Commissioners precisely in order that they should deliberate collectively and in order that their views and Ideas should be exchanged and examined before reaching a conclusion (See Ryan vs. Humphries, LRA 1915F 1047). This process is of the essence of a board’s action, save where otherwise provided by law, and the salutary effects of the rule would be lost were the members to act individually, without benefit of discussion.

The powers and duties of boards and commissions may not be exercised by the individual members separately. Their acts are official only when done by the members convened in sessions, upon a concurrence of at least a majority and with at least a quorum present. [Citation omitted]

Where the action needed is not of the individuals composing a board but of the official body, the members must be together and act in their official capacity, and the action should appear on the records of the board. [Citation omitted]

Where a duty is entrusted to a board, composed of different individuals, that board can act officially only as such, in convened sessions, with the members, or a quorum thereof, present. [Citation omitted]¹⁰ (Emphasis supplied)

The act of Mr. Nituda of reversing the 1962 Decision of the BOC could not hence be considered as the act of the BOC itself.

The pretended act of reversal 0of Mr. Nituda must, therefore, be stricken down and disregarded for having been made in excess of his lawful authority. The 1973 order of Nituda was ineffective to vest any right upon respondent Gatchalian who, it is worth nothing, did not pretend to submit any newly discovered evidence to support their claim to Philippine citizenship already rejected by the 1962 BOC. In essence, Mr. Nituda purported not merely to set aside the 1962 BOC Decision but also the 1967 Decision of this Court in Arocha vs. Vivo.

II

I turn to an examination of the underlying facts which make up the basis of the claim of William Gatchalian to Philippine citizenship. The most striking feature of this claim to Philippine citizenship is that it rests upon a fragile web constructed out of self-serving oral testimony, a total lack of official documentation whether Philippine or foreign, of negative facts and of invocation of presumptions without proof of essential factual premises. Put in summary terms, the claim of William Gatchalian to Philippine citizenship rests upon three (3) premises, to wit:

1. that Santiago Gatchalian was a Philippine citizen;
2. the supposed filiation of Francisco Gatchalian as a legitimate son of Santiago Gatchalian, which leads to the intermediate conclusion that Francisco was a Philippine citizen; and
3. the supposed filiation of William Gatchalian as a legitimate son of Francisco Gatchalian leading to the final conclusion that William Gatchalian is a Philippine citizen.

I respectfully submit that a careful examination of the facts made of record will show that the correctness and factual nature of each of these layered premises are open to very serious doubt, doubts which can only lead to the same conclusion which the BOC reached on 6 July 1962 when it reversed the BSI, that is, that there was failure to prove the Philippine citizenship of William Gatchalian and of his eight (8) alleged uncles, aunts and brother in 1961 when they first arrived in the Philippines.

1. The supposed Philippine citizenship of Santiago Gatchalian must be considered first. Santiago was allegedly born in Binondo, Manila, on 25 July 1905 to Pablo Pacheco and Marciana Gatchalian. The records do not disclose anything about Pablo Pacheco but everyone, including William Gatchalian, assumes that Pablo Pacheco was a Chinese subject and never became a citizen of the Philippine Islands. The basic claim of Santiago was that his mother Marciana Gatchalian was a Philippine citizen and that Marciana was not lawfully married to Pablo Pacheco and that consequently, he (Santiago) was an illegitimate son of Marciana Gatchalian.

The first point that should be made in respect of Santiago’s claim was that he had always regarded himself as a Chinese citizen until around 1958 or 1960, that is, when he reached the age of 53 or 55 years. Santiago, by his own testimony, lived the bulk of his adult life in China where he went in 1924 at age 19 and where he stayed for about 13 years returning to the Philippines for the first time in 1937. He returned in the same year to China, stayed there for another nine (9) years, and then came back to the Philippines again in 1946. He once more left the Philippines for China on 14 April 1947 and returned on 14 June 1947. Upon his second return to the Philippines in 1946, he documented himself as a Chinese national: he was holder of ICR No. 7501 dated 3 May 1946. He continued to be documented as such, the record showing that he was also holder of an ACR No. A-219003 dated 13 January 1951. Santiago, again by his own statement, married in China a Chinese woman. This Chinese wife, however, Santiago never brought or attempted to bring to the Philippines and she allegedly died in China in 1951, or four (4) years after Santiago had permanently returned to the Philippines.

In 1958, when he was 53 years of age, Santiago obtained a residence certificate where for the first time he described himself as a Filipino. It was also only in 1960, that is, when Santiago was 55 years of age, that he filed a petition for cancellation of his ACR obviously upon the theory that he had always been a Philippine citizen. It was at the hearing of his petition for cancellation of his ACR that Santiago made his oral statements concerning the supposed circumstances of his birth, parentage and marriage. Santiago’s petition to cancel his ACR was apparently made in preparation for efforts to bring in, the succeeding year, a whole group of persons as his supposed descendants.

The second point that needs to be made in respect of Santiago’s claim of citizenship resting on his supposed status as an illegitimate son of a Filipina woman, is that no birth certificate bearing the name of Santiago Gatchalian was ever presented.

Instead, a baptismal certificate bearing the name Santiago Gatchalian was presented showing the name of Marciana Gatchalian, Filipina, as mother, with the name of the father unknown. There was also presented a marriage certificate dated 1936 of Joaquin Pacheco, alleged brother of Santiago Gatchalian, also showing Marciana Gatchalian as mother with the name of the father similarly left blank. These two (2) pieces of paper, together with Santiago’s own statements to the Citizenship Evaluation Board as well as the statements of Joaquin Pacheco to the same Board, constituted the sum total of the evidence supporting Santiago’s claim to Philippine citizenship and on the basis of which an Order dated 12 July 1960, signed by Felix S. Talabis, Associate Commissioner, granted the petition to cancel Santiago’s alien registry.

In so issuing his Order granting cancellation of Santiago’s ACR, Commissioner Talabis disregarded Santiago’s failure to present a birth certificate, in obvious violation of rules of the Bureau of Immigration which expressly require the submission of a birth certificate, or a certified true copy thereof, in proceedings brought for cancellation of an ACR upon the ground that the petitioner is an illegitimate son of a Filipina mother.¹¹ It is well-settled that a baptismal certificate is proof only of the administration of baptism to the person named therein, and that such certificate is not proof of anything else and certainly not proof of parentage nor of the status of legitimacy or illegitimacy.¹²

That Order also casually disregarded a number of other things, one of which was a document dated 1902 signed by Maxima Gatchalian, the mother of Marciana Gatchalian, stating that Maxima —

. . . residing in the City of Manila, mother of Marciana Gatchalian, unmarried, of 18 years of age, her father being dead, do hereby freely consent to her marriage with Pablo C. Pacheco, of Manila, and that I know of no legal impediment to such marriage. (Emphasis supplied)

Such parental consent indicated that a marriage ceremony would have taken place shortly thereafter as a matter of course; otherwise, the consent would have been totally pointless. Even more importantly, Commissioner Talabis’ Order disregarded the testimony of Santiago Gatchalian himself in the same cancellation proceedings that he (Santiago) believed that his parents had been married by the Justice of the Peace of Pasig, Rizal.¹³ In his Order, Commissioner Talabis referred to the fact that Santiago Gatchalian had been “interchangeably using his parental and maternal surnames. In school, he was known as Santiago Pacheco (Class Card for 1920-1921, Meisic Manila; Certificates of Completion of Third and Fourth Grades, Meisic Primary School). But in his Special Cedula Certificate No. 676812 dated 17 September 1937, and in tax clearance certificate issued on 2 October 1937, he is referred to as Santiago Gatchalian; and in a Communication dated 6 June 1941, he was addressed to as Santiago Pacheco by the Philippine Charity Sweepstakes Office.” At the very least, such use of both paternal and maternal surnames indicated that Santiago was uncertain as to his supposed illegitimacy. In our case law, moreover, the use of a paternal surname may be regarded as an indication of possession of the status of a legitimate or acknowledged natural child.¹⁴

Perhaps the most important aspect of Commissioner Talabis Order granting cancellation of Santiago’s ACR, is that such Order failed to give any weight to the presumption in law in favor of marriage, a presumption significantly reinforced by the parental consent given by Maxima Gatchalian to the marriage of her daughter Marciana Gatchalian to one Pablo C. Pacheco. A related presumption is that in favor of the legitimacy of offspring born of a man and woman comporting themselves as husband and wife.¹⁵ I respectfully submit that these presumptions cannot be successfully overthrown by the simple self-serving testimony of Santiago and of his alleged brother Joaquin Pacheco and by the two (2) pieces of paper (the baptismal certificate of Santiago and the marriage certificate of Joaquin Pacheco). It seems relevant to point out that Joaquin Pacheco, too, was unable to present any birth certificate to prove his supposed common parentage with Santiago Gatchalian; Joaquin was allegedly born in 1902, the same year that Maxima Gatchalian gave her consent to the marriage of Marciana Gatchalian and Pablo C. Pacheco.

The third point that needs to be underscored is that Santiago Gatchalian did nothing to try to bring into the Philippines his supposed sons and daughters and grandchildren since 1947, when he returned permanently to the Philippines, and until 1960. The story given by the nine (9) supposed descendants of Santiago when they first arrived in the Philippines was that they had left the People’s Republic of China and had gone to Macao in 1952 and there they stayed until they moved to Hongkong in 1958. It should also be noted that the youngest supposed child of Santiago, Benjamin Gatchalian, was said to have been born in China in 1942 and was consequently only five (5) years old when Santiago returned permanently to the Philippines in 1947. In other words, Santiago Gatchalian behaved as if the nine (9) supposed descendants did not exist until 1960 when Commissioner Talabis’ Order cancelling Santiago’s ACR was issued.

It may also be noted that Santiago’s 1951 ACR application mentioned only two (2) children of Santiago: Jose and Elena. In 1961, however, Santiago stated before the immigration investigator that he had a total of five (5) children: Jose, Elena, Francisco, Gloria and Benjamin. Santiago’s explanation strongly echoes a common lawyer’s excuse for failure to seasonably file some pleading, and, it is respectfully submitted, is equally contrived and unpersuasive; that he had his clerk fill up the ACR; that he gave his clerk four (4) names (not five [5]); that the clerk had simply failed to fill up the ACR correctly. In its 6 July 1962 Decision, the BOC noted that “while the two (2) names listed in [Santiago’s] [ACR application] Jose and Elena, bear the same names as two of the [9] applicants, the difference in the ages of said persons compared to the said applicants, casts serious doubts on their Identity.”¹⁶

It is suggested in the majority opinion that the question of citizenship of Santiago Gatchalian is a closed matter which cannot be reviewed by this Court; that per the records of the Bureau of Immigration, as of 20 July 1960, Santiago Gatchalian had been declared to be a Filipino citizen and that this forecloses re-opening of that question thirty (30) years later. I must, with respect, disagree with this suggestion. The administrative determination by the Bureau of Immigration as of 20 July 1960 certainly does not constitute res adjudicata that forecloses this Court from examining the supposed Philippine citizenship of Santiago Gatchalian upon which private respondent William Gatchalian seeks to rely. The Court cannot avoid examining the Philippine nationality claimed by Santiago Gatchalian or, more accurately, claimed on his behalf by William Gatchalian, considering that one of the central issues here is the tenability or untenability of the claim of William Gatchalian to Philippine citizenship and hence to entry or admission to the Philippines as such citizen.

2. The second of the three (3) premises noted in the beginning of this section is: that Francisco Gatchalian was the legitimate son of Santiago Gatchalian and therefore followed the supposed Philippine citizenship of Santiago. This premise has in fact two (2) parts: (a) the physical filiation of Francisco Gatchalian as the son of Santiago Gatchalian; and (b) that Santiago Gatchalian was lawfully married to the Chinese mother of Francisco Gatchalian. This premise is remarkable for the total absence of documentary support for either of its two (2) parts. Francisco was born in Amoy, China in 1931, according to Santiago. The sum total of the evidence on this premise consists of Francisco Gatchalian’s own statement and that of Santiago. No birth certificate or certified true copy thereof, or comparable documentation under Chinese law, was submitted by either Santiago or by Francisco. No secondary evidence of any kind was submitted. No testimony of a disinterested person was offered.

Santiago Gatchalian claimed to have been married in China in 1926 to a Chinese woman, Chua Gim Tee, out of which marriage Francisco was allegedly born. No documentary proof of such marriage in China, whether primary or secondary, was ever submitted. Neither was there ever presented any proof of the contents of the Chinese law on marriage in 1926 and of compliance with its requirements.

It is firmly settled in our jurisdiction that he who asserts and relies upon the existence of a valid foreign marriage must prove not only the foreign law on marriage and the fact of compliance with the requisites of such law, but also the fact of the marriage itself. In Yao Kee vs. Sy-Gonzales,¹⁷ the issue before the Court was whether the marriage of petitioner Yao Kee to the deceased Sy Kiat in accordance with Chinese law and custom had been adequately proven. In rendering a negative answer, this Court, speaking through Cortes, J., said:

These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the same do not suffice to establish the validity of said marriage in accordance with Chinese law and custom.

Custom is defined as “a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory.” The law requires that “a custom must be proved as a fact, according to the rules of evidence” [Article 12, Civil Code]. On this score the Court had occasion to state that “a local custom as a source of right can not be considered by a court of justice unless such custom is properly established by competent evidence like any other fact” [Patriarca vs. Orato, 7 Phil. 390, 395 (1907)]. The same evidence, if not one of a higher degree, should be required of a foreign custom.

The law on foreign marriages is provided by Article 71 of the Civil Code which states that:

Art. 71. All marriages performed outside the Philippines in accordance with the laws in force in the country where they were performed, and valid there as such, shall also be valid in this country, except bigamous, polygamous, or incestuous marriages, as determined by Philippine law.

Construing this provision of law the Court has held that to establish a valid foreign marriage two things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged foreign marriage by convincing evidence [Adong vs. Cheong Seng Gee, 43 Phil. 43, 49 (1922).¹⁸ (Emphasis supplied)

In the instant case, there was absolutely no proof other than Santiago’s bare assertion that a marriage ceremony between Santiago and Chua Gim Tee had taken place in China in accordance with Chinese law. The contents of the relevant Chinese law on marriage at the time of the supposed marriage, was similarly not shown. Should it be assumed simply that the requirements of the 1926 Chinese law on marriage are identical with the requirements of the Philippine law on marriage, it must be pointed out that neither Santiago nor Francisco Gatchalian submitted proof that any of the requirements of a valid marriage under Philippine law had been complied with.

I respectfully urge, therefore, that the reliance in the majority opinion upon our conflicts rule on marriage embodied in Article 71 of the Civil Code (now Article 26 of the Family Code; then Section 19 of Act No. 3630) is unwarranted. The rule that a foreign marriage valid in accordance with the law of the place where it was performed shall be valid also in the Philippines, cannot begin to operate until after the marriage performed abroad and its compliant with the requirements for validity under the marriage law of the place where performed, are first shown as factual matters. There is, in other words, no factual basis for a presumption that a lawful marriage under Chinese law had taken place in 1926 in China between Santiago Gatchalian and Chua Gim Tee.

It must follow also that Francisco Gatchalian cannot simply rely upon a presumption of legitimacy of offspring of a valid marriage. As far as the record here is concerned, there could well have been no marriage at all in China between Santiago Gatchalian and Chua Gim Tee (just as Santiago had insisted that his father and mother had never married each other) and that consequently Francisco Gatchalian could just as well have followed the nationality of his admittedly Chinese mother.

3. The last premise noted earlier is the supposed filiation of William Gatchalian as a legitimate son of Francisco which resulted in William’s following the supposed Philippine citizenship of Francisco Gatchalian. William was, according to Santiago Gatchalian, born in Amoy, China in 1949. Here again, just in the case of Francisco Gatchalian, there is a complete absence of contemporaneous documentary evidence of the supposed filiation of William Gatchalian as a legitimate son of Francisco Gatchalian.¹⁹ The only support ever presented for such alleged filiation consisted of the oral statements of Santiago Gatchalian, Francisco Gatchalian and William Gatchalian. It is difficult to resist the impression that there took place here a pyramiding of oral statements, each resting upon another oral statement and all going back to the supposed bastardy of Santiago, a status suddenly discovered or asserted by Santiago in his 55th year in life. No birth certificate, or comparable documentation under Chinese law, exhibiting the name of William Gatchalian was submitted.

Francisco Gatchalian stated that he had married a Chinese woman, Ong Siu Kiok, in Amoy in 1947 according to Chinese custom. Once again, we must note that there was no proof submitted that a marriage ceremony satisfying the requirements of “Chinese custom” had ever taken place in China between Francisco and Ong Siu Kiok; neither was there any proof that a marriage “according to Chinese custom” was valid and lawful under Chinese law in 1947 and of factual compliance with the requirements of the law and custom in China concerning marriage.²⁰ Ong Siu Kiok was alleged to have died in Macau and never came to the Philippines. It must then follow, once again, that no presumption of a lawful marriage between Francisco Gatchalian and his alleged Chinese wife can be invoked by William Gatchalian. It follows still further that William Gatchalian cannot invoke any presumption of legitimacy in his own favor. As in the case of his putative father Francisco, William could as well have followed the nationality of his concededly Chinese mother.

One final note: it might be thought that the result I have reached is unduly harsh considering the prolonged physical stay of William Gatchalian in the country. But this Court must apply the law as it is in fact written. I respectfully submit that the appropriate recourse of respondent William Gatchalian, should he feel that he has some humanitarian claim to a right to stay in the Philippines, is to the political departments of Government. Those departments of Government may then consider the wisdom and desirability, in the light of the interests of the country, of legislation permitting the legalization of the entry and stay in the Philippines of respondent William Gatchalian and those similarly situated. Unless and until such legislation is enacted, this Court really has no choice save to apply and enforce our immigration law and regulations and our law on citizenship.

ACCORDINGLY, I vote to GRANT the Petition for Certiorari and Prohibition in G.R. Nos. 95122-23, and to SET ASIDE the Resolution/Temporary Restraining Order dated 7 September 1990 issued by respondent Judge Dela Rosa in Civil Case No. 90-5214, as well as the Order of respondent Judge Capulong dated 6 September 1990 in Civil Case No. 3431-V-90; and to RE-AFFIRM that respondent William Gatchalian is not a Philippine citizen.

Melencio-Herrera, Cruz, Paras, Padilla, Regalado, JJ., concur

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Footnotes

¹ 21 SCRA 532 (1967); 128 Phil. 566 (1967).

² Section 36, Commonwealth Act No. 613 as amended, or Immigration Law.

³ Tiu Chun Hai and Go Tam vs. Commission of Immigration and the Director of National Bureau of Investigation, 104 Phil. 949 (1958); La Tang Bun vs. Fabre, 81 Phil. 683 (1948).

⁴ 21 SCRA at 539.

⁵ Rollo of G.R. No. 24844, p. 32 (Brief for the Respondents-Appellants, p. 28); Rollo of G.R. No. 24844, p. 41 (Brief for the Petitioner-Appellee, p. 8).

⁶ 21 SCRA at 541.

⁷ Citing Ham vs. Bachrach, 109 Phil. 949 (1968).

⁸ Section 27 (d), Commonwealth Act No. 613, as amended.

⁹ See Commissioner of Immigration vs. Hon. Fernandez, et al., 120 Phil. 178 (1964).

¹⁰ 21 SCRA at 540.

¹¹ Memorandum Circular, Department of Justice, dated 28 August 1958; Administrative Memorandum, Bureau of Immigration, dated 17 March 1952, cited in E.F. Hernandez and O.A. Domingo, Philippine Immigration Law and Procedure, (1970 ed.,) p. 437.

¹² See, e.g., People vs. Villeza, 127 SCRA 349 (1984); Macadangdang vs. Court of Appeals, 100 SCRA 73 (1980); Fortus vs. Novero, 23 SCRA 1331 (1968); Cid vs. Burnaman, 24 SCRA 434 (1968); Vidaurraza vs. Court of Appeals, 91 Phil. 492 (1952); and Capistrano vs. Gabino, 8 Phil. 135 (1907).

¹³ The transcript of the investigation conducted on 12 February 1960 in CEB No. 3860-R, In Re Petition to Cancel Alien Registry, Santiago Gatchalian, petitioner, Annex “2” of private respondent Gatchalian’s “Comment with Counter-Petition” in G.R. Nos. 95612-13 states:

“[Immigration Investigator]

Q It says here, “this is to certify that I, the undersigned, residing in the City of Manila, mother of Marciana Gatchalian, unmarried, of 18 years of age, her father being dead, do hereby freely consent to her marriage with Pablo C. Pacheco, of Manila, and that I know of no legal impediment to such marriage.” Was your father, Pablo C. Pacheco, and mother, Marciana Gatchalian, ultimately or eventually married because of this consent of your grandmother?

[Santiago Gatchalian]

A Yes, I was informed by my brother Joaquin Pacheco that our parents were married by the justice of the peace of Pasig, Rizal.” (Emphasis supplied)

In his subsequent testimony in the same proceedings, Joaquin Pacheco, and a singularly accommodating immigration investigator who posed obviously leading questions, sought to soften the impact of Santiago’s admission that his parents were married:

“[Immigration Investigator]

Q Or is it because [Santiago] was ashamed to admit that he was a legitimate child and that is the reason why he said your parents were married?

[Joaquin Gatchalian]

A It may be also that he is ashamed to make it be known that he is a legitimate child that is why he said our parents are married.” (Annex “B-9” of private respondent Gatchalian’s “Comment with Counter-Petition” in G.R. Nos. 95612-13)

¹⁴ E.g., In Re Mallare, 59 SCRA 45 (1974); and Adriano vs. De Jesus, 23 Phil. 350 (1912).

¹⁵ See, in this connection, Rule 131, Section 5 (cc) and (dd) of the Rules of Court.

¹⁶ Annex “37” of Comment with Counter-Petition, G.R. Nos. 95612-13.

¹⁷ 167 SCRA 736 (1988).

¹⁸ 167 SCRA at 743-744.

¹⁹ William Gatchalian presented his own marriage contract executed in 1973, which showed as his parents Francisco Gatchalian and Ong Siu Kiok. This, of course, has no probative value for present purposes.

²⁰ Yao Kee vs. Sy-Gonzales, supra

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