G.R. No. L-22257. May 25, 1977
GO YU TAK WAI, PLAINTIFF-APPELLEE, VS. MARTINIANO P. VIVO, VIRGILIO GASTON AND MARCIAL RAÑOLA, IN THEIR CAPACITY AS COMMISSIONER AND ASSOCIATE COMMISSIONERS, RESPECTIVELY, COMPO…
AQUINO, J.:
The Commissioners of Immigration appealed from the judgment of
the Court of First Instance of Manila, holding that their decision excluding Go
Yu Tak Wai for having
abandoned her permanent residence was void because it was allegedly promulgated
after the expiration of the statutory one-year period.
The lower court sustained the decision of the Board of Special
Inquiry that Go Yu Tak Wai
could be admitted as a returning resident in spite of her twenty-year
absence. The Solicitor General in his
notice of appeal indicated that the lower court’s decision is contrary to law
(Civil Case No. 54882).
Facts.- On November 8, 1961 Go Yu Tak
Wai (who was born in 1903 and is now seventy-two
years old) arrived in Manila on board a plane of the Cathay Pacific
Airways. She is a widow. She was provided with a passport issued by
the Commissioner of the Ministry of Foreign Affairs of the Republic of China
stationed at Macao (Exh. J).
Stamped on that passport was her immigration nonquota
visa issued by the Philippine consulate at Hongkong (Exh. J-1).
On March 22, 1962
a Board of Special Inquiry, composed of Jose Y. Lim, Filomeno
J. Soto and Gregorio de la Peña, investigated the
application of Go Yu Tak Wai
for admission as a returning resident.
The Board found that the applicant arrived in the Philippines
for the first time in 1930 with her late husband, Jose Go, a permanent resident
who operated a store at Villalobos Street,
Manila.
In 1941 the spouses left for China. Jose Go died in 1948 in Amoy,
China. Due to the war and the occupation of China
by the communists, the applicant was not able to return to the Philippines. Chua Guat, a
Chinese resident who allegedly managed Go’s store in
his absence, and Arsenio Clarin,
a Filipino who allegedly prepared the travel papers of the Go spouses in
October, 1941, corroborated the claim of Go Yu Tak Wai that she was a returning resident.
The Board of Special Inquiry concluded that Go Yu Tak Wai had satisfactorily proven
her right to admission as a returning resident notwithstanding her twenty-year
absence from the Philippines
and the fact that she had no reentry permit (Exh. A).
The decision of the Board of Special Inquiry was promulgated on March 27, 1962. It was reviewed motu
proprio in the afternoon of March 11, 1963 by Martiniano
P. Vivo, Acting Commissioner of Immigration, and by Virgilio
N. Gaston and Marcial O. Rañola,
Acting Associate Commissioners, all three sitting as a Board.
After due deliberation, they voted to exclude Go Yu Tak Wai (Exh.
7 and 7-A). That resolution is found in
the minutes of the meeting of the Board of Commissioners on March 11, 1963 as certified by its
Secretary. The certification, Exhibit 6,
page 149 of the record, reads:
“Republic of the Philippines
Department of
Justice
BUREAU OF
IMMIGRATION
M a n i l a
BOARD OF
COMMISSIONERS
“It is hereby certified that, in the admission, returning
resident case of Go Yu Tak Wai,
female, 59 yrs. (I.
C. No. 61-5271-C W. A. No. s. 196_) the Board of Commissioners voted as
follows:
Actg.
Commissioner Vivo …….. Exclude
Actg. Ass. Com. Rañola ………. Exclude
Actg. Ass. Com.
Gaston ……… Exclude
Manila,
March 11, 1963.
(SGD.)
PIO S. NOCHE
Secretary”
However, the Commissioners’ decision in extenso,
reversing the decision of the Board of Special Inquiry and excluding Go Yu Tak Wai by reason of her
twenty-year absence, was not immediately rendered and promulgated. Their decision, dated March 11, 1963, was received by Go Yu Tak Wai by mail on August 28, 1963. On page 2 of the decision, below the typed
name of Commissioner Gaston, there appear the following initials and date: “SE/al (8-13-63)” (Exh. H-1).
The initials “SE” were those of Sabino
Esplanada, the lawyer of the Law and Investigation
Division, Bureau of Immigration, who drafted the decision. The letters “al” were
the initials of Angel Levanza, the stenographer who
typed the draft. The figures “8-13-63” stand for the date, August 13, 1963, when the draft was
typed for the Commissioners’ signatures.
The draft and the record of the case were circulated among the
Commissioners during the period from August
13 to 26, 1963. On the
latter date, the decision and the record were sent to the Records Section.
A duplicate original of the Commissioners’ decision, together
with a letter of transmittal signed by the Board Secretary and also dated March 11, 1963, was mailed on August 27, 1963 to Go Yu Tak Wai, who, as already noted,
received it on August 28, 1963
(Exh. H to H-3).
In justifying the exclusion of Go Yu Tak
Wai, on the ground of abandonment of her permanent
residence, the Commissioners made the following observations:
“x x x it
is manifest that subject is not entitled to admission as a returning resident
after having been absent from this country for a period of twenty (20)
years. Her taking up residence abroad
cannot be considered as a temporary visit, which is a visit made by a departing
alien with the intention of returning within the period prescribed by the rules
and regulations of this Bureau.
“The allegations that Amoy was overrun by the communists in
1949, her failure to secure evidence for her application for a returning
resident visa on account of abnormal conditions and her having lost contact
with Chua Guat, are not satisfactory and cogent
reasons to warrant an exception or departure from the policy of this Bureau
requiring those applying for reentry to return within the five-year period from
their departure.
“The facts show that applicant had abandoned her permanent
residence in this country, considering the length of time since her husband
died in Amoy in 1948, that their business in the Philippines
had been wiped out, and that, moreover, she has no immediate relatives in the Philippines.”
(Exh. B
and H).
The law involved.- The Board of
Commissioners is empowered to reverse motu proprio the decision of the Board of Special Inquiry
within one year from the promulgation of the said decision. The Philippine Immigration Act of 1940,
Commonwealth Act No. 613, as amended, provides:
“SEC. 27. x x x x x x x x x
“(b) A board of special inquiry shall have
authority (1) to determine whether an alien seeking to enter or land in the
Philippines shall be allowed to enter or land or shall be excluded, and (2) to
make its findings and recommendations in all the cases provided for in section
twenty-nine of this Act wherein the Commissioner of Immigration may admit an
alien who is otherwise inadmissible. For
this purpose, the board or any member thereof, may administer oaths and take
evidence and in case of necessity may issue subpoena and/or subpoena
duces tecum. The hearing of all cases brought before a
board of special inquiry shall be conducted under rules of procedure to be
prescribed by the Commissioner of Immigration.
The decision of any two members of the board shall prevail and shall be
final unless reversed on appeal by the Board of Commissioners as hereafter
stated, or, in the absence of an appeal, unless reversed by the Board of
Commissioners after a review by it, motu proprio of the entire proceedings within one year
from the promulgation of said decision.
At the conclusion of the hearing of any case, the board of special
inquiry shall at once proceed to deliberate and decide on the merits thereof. The decision shall be promulgated and the
findings and recommendation, in proper cases, submitted not later than two days
from the date of the deliberation.
Should the board of special inquiry need more time to make a written
decision of findings and recommendation in view of the nature of the case, the
chairman thereof shall report the case to the Commissioner of Immigration who
may grant an extension of time if he considers it necessary.
“(c) An alien excluded by a board of special
inquiry or a dissenting member thereof may appeal to the Board of
Commissioners, whose decision in the case shall be final. The decision on appeal shall be put in
writing and promulgated not less than seven days from the time the case is
submitted for decision. In appeal cases,
the alien shall have the right to be represented by an attorney or counsel who
shall have access to the record of the board of special inquiry in the
particular case on appeal.” (As amended by Republic Act
No. 503, II Philippine Permanent and General Statutes 596-597).
Issue.- The legal question in
this appeal is whether, for purposes of section 27(b) of the Immigration Law, a
resolution of the Commissioners which reversed the decision of the Board of
Special Inquiry and which was adopted within one year from the
promulgation of the said decision is sufficient or whether it is necessary that
the Commissioners’ written decision in amplification of the resolution of
reversal or containing their findings, be promulgated within the said one-year
period. That question is not new.
Ruling.- This Court had already
held that “the operative date of the Commissioners’ action is that when
the resolution of exclusion was voted and adopted by them as a Board,
regardless of the date when the decision in extenso
was prepared, written and signed” because “the decision in extenso must relate back to the day when the resolution
to exclude was adopted.
Necessarily, the extended opinion had to be posterior to the day when
the Commissioners voted and resolved to reverse the findings of the Board of
Special Inquiry” (Arocha vs. Vivo, L-24844, and
Vivo vs. Arca, L-24853, both decided on October 26,
1967, and reported in 21 SCRA 532, 538, per Justice J. B. L. Reyes; Neria vs. Commissioner of Immigration, L-24800, May 27,
1968, 23 SCRA 806, 815. Go Oh vs. Vivo,
L-24898, March 31, 1971, 38
SCRA 228, 238).
Consequently, the Commissioners were justified in using March 11, 1963 as the date of their
written decision although it was actually prepared or drafted on August 13, 1963 and was mailed to Go
Yu Tak Wai on August 27, 1963 (Exh.
H-3). The decision (Exh. A or H) related
back to the date when the Commissioners deliberated on the decision of the
Board of Special Inquiry and voted or resolved to reverse it or to exclude Go Yu
Tak Wai.
Section 27(b) specifies that as a rule the decision of the Board
of Special Inquiry “shall be promulgated and the findings and
recommendations, in proper cases, submitted not later than two days from the
date of the deliberation”. The
absence of such a requirement with respect to the decision of the Board of
Commissioners supports the view that such decision need not be promulgated
within the one-year period. It suffices
that the Commissioners should review the decision of the Board of Special Inquiry
and deliberate upon it within one year from the promulgation of the Board of
Special Inquiry’s decision and that the minutes of their deliberation should
reflect the action which they took within the said statutory period.
Moreover, as noted by the Solicitor General, section 27(c)
expressly requires that the decision of the Commissioners in case of an
appeal from the decision of the Board of Special Inquiry, excluding an
alien, should “be put in writing and promulgated not less than seven days
from the time the case is submitted for decision”. In contrast, no such requirement is provided
for in section 27(b) with respect to the Commissioners’ decision in case they motu proprio review
the decision of the Board of Special Inquiry.
The trial court erred in holding that under section 27(b) a
written decision should be signed and promulgated by the Commissioners within
one year from the promulgation of the decision of the Board of Special Inquiry.
The thrust of the certiorari and prohibition case
instituted by Go Yu Tak Wai
in the lower court on September 3, 1963
was the alleged lack of power on the part of the Commissioners to review the
decision of the Board of Special Inquiry after the supposed expiration of the
one-year period. The merits of the Commissioners’
decision of exclusion are not in issue.*
Inasmuch as we have found that the review was effected
within the one-year period, it follows that the trial court’s decision should
be reversed. However, only six (6)
Justices (Fernando, Makasiar, Muñoz
Palma, Concepcion Jr., Martin, JJ. and the
writer) voted for reversal.
Justice Teehankee filed a dissenting
opinion in which the Chief Justice and Justice Antonio concurred. Justice Barredo
also dissented.
WHEREFORE, for lack of necessary votes to reverse the
trial court’s decision, the same is considered affirmed. The Court has found it unnecessary to hold a
rehearing. (Sec. 11, Rule 56, Rules of
Court). No costs.
SO ORDERED.
Fernando, Makasiar, Muñoz Palma, and Martin,
JJ., concur.
Castro, C.J., and Antonio,
J., concur in the dissent of Justice Teehankee.
Teehankee, J., see dissenting
opinion.
Barredo, J., dissents. He do not subscribe
to the view that the operative date of the decision of the Commission is that
when the members voted. His view is that
it is the date of promulgation, if not the date of notice to the party
aggrieved.
Aquino, J.,
certifies that Mr. Justice Concepcion Jr., who is on
leave, voted to reverse the trial court’s decision.
*
As to the finality of the findings of the Board of Commissioners when such
findings are in accordance with law, not vitiated by fraud or imposition and
are reasonably supported by the evidence, see Gonzaga
vs. Vivo, L-27030, March 6, 1968, 22 SCRA 971; Manabat
vs. De la Cruz, 103 Phil. 1127; Kaur vs.
Commissioner of Immigration, 104 Phil. 1060 and Singh vs. Board of
Commissioners of Immigration, 111 Phil. 143.
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SEPARATE DISSENTING OPINION
TEEHANKEE, J.:
I dissent on the ground that it is patent from section 27 (b) of
the Immigration Act as cited on pages 4-5 of the decision penned by Mr. Justice
Aquino that “the decision of any two members of
the Board [of Special Inquiry] shall prevail and shall be final unless reversed
on appeal by the Board of Commissioners as hereafter stated, or, in the absence
of an appeal, unless reversed by the Board of Commissioners after a review by
it, motu proprio
of the entire proceedings within one year from the promulgation of said
decision.”
Such review and reversal of the decision of the board of special
inquiry may be in two ways:
The first is a reversal on appeal by the Board of
Commissioners “as hereafter stated” – which refers to the provisions
of section 27 (c) of the Act. Said
section 27 (c) provides that an alien excluded by a board of special inquiry or
a dissenting member thereof [from a majority decision which either includes or
excludes the alien][1]
may appeal to the Board of Commissioners whose decision in the case shall be
final and that “the decision on appeal shall be put in writing and promulgated
not less[2]
than seven days from the time the case is submitted for decision”;
and
The second is by review motu proprio of the Board of Commissioners [of a decision
either for inclusion or exclusion] “within one year from the
promulgation of said decision.” Such a decision of reversal must be put in
writing and promulgated within the statutory one-year period and it
is not sufficient or valid, as the decision would hold, that the Commissioners voted
to reverse the special inquiry board’s decision of admission of March 27, 1962
as per their minutes of March 11, 1963 although the decision of reversal dated
March 11, 1963 was admittedly drafted only on August 13, 1963 and signed
sometime between then and August 26, 1963 by the commissioners and actually
promulgated and mailed on August 27, 1963, long after the expiration
on March 27, 1963 of the statutory one-year period.
The Act’s provisions as well as public policy support such a
construction that requires that a resolution or decision of the Board of
Commissioners on a review motu proprio of the special inquiry board’s decision
(whether of admission or exclusion) must be put in writing and promulgated
with due notice on the party affected within the statutory one-year
period of finality.
On the provisions of law involved, section 27 (b) of the Act
provides mandatorily that “the decision [of the
board of special inquiry] shall be promulgated and the findings and
recommendation, in proper cases, submitted not later than two days from
the date of deliberation.” Section 27 (c) likewise provides for a summary
period of seven days from submittal for decision within which the Board
of Commissioners shall put in writing and promulgate its decision on an appeal
of the alien or of a dissenting member of the board of special inquiry. Read in context, it seems obvious that the
decision on a review motu proprio
by the Board of Commissioners must be no less than a decision on appeal by
either party, viz, it must be duly put in
writing and promulgated within the more than adequate one-year
period fixed by the Act.
Public policy and due process buttress such a construction. Where the alien has appealed from an adverse
decision or a dissenting special inquiry board member has appealed a favorable
decision, the applicant for admission knows as mandated by the law that a final
decision must be handed down within seven days from submittal of the appeal for
decision. Where there has been no appeal
and the Board of Commissioners conducts a review motu
proprio of which the applicant is likely unaware,
both public policy and due process demand that where no adverse decision is
promulgated within the statutory one-year period of finality, the decision of
the special inquiry board shall have become final and beyond the Commissioners’
authority to reverse or set aside thereafter.
(Otherwise, such one-year period would be an elastic rather than a fixed
period and would have no meaning, as in this case where the appellee
would have been ordered excluded by a decision of reversal promulgated five
months after the lapse of the one-year period.)
Such a view is certainly in consonance with the law’s policy of a
definite date of fixed finality of the special inquiry board’s decision
– be it of inclusion or exclusion of an alien – and to reduce to the minimum
any opportunity or occasion for anomalies and irregularities in the admission
or exclusion of aliens and applicants for admission under the procedures for
appeal or review motu proprio
established by the Act. In Neria vs. Commissioner of Immigration,[3]
the Court through the now Chief Justice precisely noted a deliberate ante-dating
by six days of the Board of Commissioners’ action of reversal motu proprio of the
special inquiry board’s admission and declared the decision of reversal null
and void, ruling that “the said decision of the Board of Immigration
Commissioners, and the warrant of exclusion issued on the strength of such decision,
are therefore, as correctly found by the lower court, null and void, for ‘lack
of jurisdiction‘, since the decision of the Board of Special Inquiry No. 1
by that time had already become ‘final.'”
[1]
All notes in brackets supplied.
[2]
An obvious error – “not less” should read “not later”
as in sec. 27 (b).
[3]
23 SCRA 806, 816-818.