G.R. No. L-24530. October 31, 1968
BOARD OF IMMIGRATION COMMISSIONERS AND COMMISSIONER OF IMMIGRATION, PETITIONERS, VS. BEATO GO CALLANO, MANUEL GO CALLANO, GONZALO GO CALLANO AND JULIO GO CALLANO AND THE COURT O…
DIZON, J.:
On July 13, 1962, the Department
of Foreign Affairs informed the Commissioner of Immigration that, on the basis
of the findings made by the
National Bureau of Investigation, the
signatures of former Secretary of Foreign Affairs, Felixberto
M. Serrano, on certain documents, amongst them cable authorization No. 2230-V
(File No. 23617) authorizing the documentation of Beato
Go Callano and others, were not authentic.
Thereupon, the Department declared several documents – amongst them the cable authorization just mentioned –
to be null, void and of no effect,
and the documentation made by the
Philippine Consulate General at Hongkong pursuant to said cable authorization consisting of the certificates of registration and identity issued to Beato Go Callano and his
brothers Manuel, Gonzalo and
Julio for travel to the Philippines were cancelled. All this was done without previous notice served nor hearing granted to said parties.
On August 21 of the same
year, the Board of Immigration Commissioners, exercising its power of review
under Section 27 (b) of Commonwealth Act No. 613, as amended, issued, also
without any previous notice and hearing, an order reversing the decision of the
Board of Special Inquiry dated January 4, 1962, admitting Beato
and his three brothers for entry as citizens; ordering their exclusion as
aliens not properly documented for admission pursuant to Section 27 (a)(17) of the Philippine Immigration Act of 1940, as
amended, and ordering that they be returned to the port whence they came or to
the country of which they were nationals, upon the ground that they had been
able “to enter this country and gain admission as Filipino citizens by the
fraudulently secured authorization.” On the same date (August 21, 1962)
the Commissioner of Immigration issued a warrant of exclusion commanding the deportation officer
“to carry out the exclusion of the above-named applicants (the Go Callano brothers) on the first available transportation and
on the same class of accommodation in which they arrived to the port whence
they came or to the country of which they are nationals.”
The warrant of exclusion, for one reason or another, was not
served immediately upon the parties ordered deported, who, on November 16,
1962, filed in the Court of First Instance of Manila an action for injunction to restrain the Board of Immigration
Commissioners and the Commissioner of
Immigration from executing the order of exclusion or deportation already
mentioned. They based their action on
the following grounds: (1) that the Board had no jurisdiction
to exclude them from the Philippines because they were not aliens but Filipino citizens,
and (2) that the order of exclusion was issued by the Board without due process
and in violation of the Constitution.
Months later, the Court of First Instance issued a writ of preliminary injunction restraining the respondents in the case from
deporting the petitioners. After trial,
the Court rendered judgment finding that, according to petitioners’ undisputed evidence, “the petitioners herein
are the illegitimate children of Emilia Callano, a Filipino citizen, with her common law husband –
a Chinese citizen”, and concluding that “until the petitioners left for China in 1947, they
must be considered as citizens of the Philippines as they were born of a
Filipino mother and an alien father who, however, was not married to their
mother.”
Notwithstanding the above finding and conclusion, however, the
Court dismissed the case holding that “the petitioners are citizens of the
Republic of China and not being properly documented for entry into the Philippines
as found by the Immigration Commissioner, the writ of preliminary injunction
heretofore issued by this Court shall be deemed dissolved upon finality of
this decision.” The grounds upon which the Court based its decision were: (1)
because petitioners stayed in China for a period of fifteen years before
returning to the Philippines, they must be considered as citizens of the Chinese Republic; (2) as petitioners were recognized by their
alien father as his children, they became Chinese citizens under the Chinese
law of nationality. While the Court also
found that the cable authorization mentioned heretofore was a forgery, it held
that, for the purpose of the petition before it, “it was immaterial to
determine the genuiness or falsity of the cable
authorization.”, “For if the petitioners are Filipino citizens, they
are entitled to remain within the territorial jurisdiction of the Republic in
whatever way they might have entered.”
After the denial of
herein respondents’ motion for reconsideration, they appealed to the Court of
Appeals where they raised the following issues:
(a) that being Filipino citizens by birth, they did not lose their
citizenship nor acquire Chinese citizenship, neither by their prolonged stay in
China nor by their alleged recognition by their Chinese father, and (b) that
the cablegram authorization was not a forgery.
In due
time the Court of Appeals rendered the decision now under review by certiorari, reversing that of the lower court.
Like the court of origin,
the Court of Appeals found that the herein respondents were the illegitimate
children of Go Chiao Lin, a Chinese citizen, and Emilia Callano, a Filipino
citizen, who started living maritally in Malitbog, Leyte, in 1934; that
out of their illegitimate union were born the following: Beato, in Sugod, Leyte, on September 28,
1936; Manuel, in Libagon, Leyte,
on June 17, 1941, Gonzalo, in Malitbog, Leyte, on April 17, 1943 and Julio, in Malitbog,
Leyte, on January 31, 1945. The Court of Appeals also found
that in 1946, Go Chiao Lin, Emilia
and their four sons went to Amoy, China, on vacation, but Go died there the same
year. In 1948, Emilia
had to return to the Philippines as the maid of Consul Eutiquio
Sta. Romana because she was penniless, leaving her
children behind. Subsequently the latter
were able to go to Hongkong where they sought and
obtained employment. In 1961, they
applied with the Philippine Consul General in Hongkong
for entry into the Philippines as Filipino citizens. On December 12 of that year, the Consulate
received a cablegram from the Department of Foreign Affairs authorizing it to
investigate whether the petitioners for entry were the illegitimate children of
Emilia Callano, a Filipino
citizen, and, if satisfied, after a thorough screening, to issue the
corresponding document certifying that they were Filipino citizens. The Consulate made thereafter the appropriate
investigation, and on the basis of the evidence presented consisting of the
sworn statements of the applicants, their birth certificates and blood test
reports, said office issued late that month a certificate of registration and
identity to the effect that the applicants had submitted sufficient evidence
of their citizenship and identity and had been allowed to register in
the Consulate as Filipino citizens and to travel directly to the Philippines.
On December 26 of the
same year 1961, they arrived in Manila by plane from Hongkong. As the Immigration Inspector at the
airport was of the opinion that their travel documents did not constitute
conclusive proof of citizenship, he referred their case to the Board of Special
Inquiry No. 2. Thereupon the latter
conducted an investigation at which the respondents presented oral and documentary
evidence to sustain their right to admission as Filipinos (Exhs.
B, D, E and H; pp. 93-98; 99-100; 101-102; 104 of the Record). Upon these evidence, the Board on January 4, 1962, promulgated a decision finding the Go Callano brothers to be the illegitimate children of Emilia Callano, a Filipino
citizen, and entitled to admission, as they were in fact admitted, as Filipino
citizens.
That Go Chiao Lin, a chinese citizen, and
Emilia Callano, a Filipina,
lived maritally in several municipalities of Leyte since 1934 and that out of their union the four
private respondents were born, are facts found, after appropriate proceedings,
first, by the Philippine Consulate General in HongKong;
second, by the Board of Special Inquiry who investigated their case in Manila
upon their arrival thereat in 1961; third, by the Court of First Instance of
Manila, and lastly, by the Court of Appeals.
These facts, according to well settled jurisprudence, are not reviewable by Us in this appeal by
certiorari.
In this appeal, the Board
of Immigration Commissioners and the Commissioner of Immigration maintain the
following propositions: (1) that, in
view of the fact that the cable authorization referred to heretofore is a
forgery, all the proceedings had in connection therewith are void and, as a
result, the private respondents must be deported as aliens not properly
documented; (2) that, granting that they were Filipino citizens when they left
the Philippines in 1946, they lost that
citizenship, firstly, by staying in China for a period of fifteen years, and
secondly, because they were recognized by their common-law father, they became
citizens of the Republic of China in accordance with the Chinese Nationality
Law.
The Court of First
Instance of Manila declared the cablegram authorization a forgery on the
strength of the testimony of Mr. Logan – a handwriting expert. This finding, however, was reversed by the
Court of Appeals, the pertinent portion of its decision being the following:
“The next question raised by the petitioners-appellants is
whether the Government has satisfactorily proved that the signature of the
Secretary of Foreign Affairs on the cable authorizations Exhibit 1, is a forgery.
Felipe P. Logan, chief of the questioned documents division of the National
Bureau of Investigation, testified
that he made a comparative examination of the signature of the Department
Secretary on Exhibit 1 and the signatures of the same official on the detail
orders, Exhibits 3-G to 3-L, and from the significant differences in the writing characteristics which
he observed he concluded that the signature on Exhibit 1 was not written by the
Department Secretary.
Before it can be said that the questioned signature is a forgery
there must be competent proof that the specimens are the genuine signature of
the Secretary. According to witness,
Logan, he knows that the signatures on the detail orders are “genuine
“because they were submitted to me by an agent who took them from the
files of the Department of Foreign Affairs.” (p. 52, transcript)
The foregoing testimony of the witness does not prove the genuineness of the specimen signatures, more
so because the agent who allegedly took the detail orders from the files of the
Foreign Affairs Department was not presented as a witness. The NBI expert concluded, from his
observation that there are significant differences between the questioned
signature and the specimen signatures on the detail orders, that the former is
a forgery. But the conclusion is
stultified by the admission of the same witness that even between the specimen
signatures there are variations in the handwriting characteristics of the
signatory. (p. 24,
transcript.) Our appreciation of the
evidence showed that there are variations indeed between the specimen signatures (Exhibits S-1 to S-5); there are distinct
similarities even between the questioned signature and the specimen signatures
(cf Q-5, S-4 and S-5). Upon the evidence presented by the
Government, it cannot be said that the forgery of the questioned signature has
been satisfactorily proven.
Even if the competent proofs were presented showing that the
questioned signature is a forgery, the forgery of the signature on the cable
authorization would not have nullified the documentation of the petitioners by
the consulate in Hongkong. We were not cited to any specific rule or
regulation of the Department of Foreign Affairs stating that the prior
authorization of this Department is necessary before the consular official
abroad can act in documentation cases.
On the other hand, as per resolution of the Cabinet of August 24, 1948,
the President suggested and the Cabinet “resolved to restore the prewar
practice of entrusting to our respective consular officials abroad the duty of
receiving all visa applications and investigating the qualifications of the
applicants.” (cited in Espina,
Immigration Laws, 1956 Ed., p. 142.) It is evident from the aforequoted
resolution that the Executive branch of the Government intended that the right
to screen applicants for entry into this country should be lodged in the
consular officials abroad. Giving
effect to this intention, the Supreme Court stated in Ng Gioc
Lin vs. The Secretary of the Department of Foreign Affairs G.R. No. L-2175,
March 31, 1950, “that although the foreign service has been placed under
the over-all direction and supervision of the Department of Foreign Affairs by
Executive Order No. 18 (42 Off. Gaz., 2064), this
does not necessarily mean that the Department Secretary takes the place of the
consular officers abroad in the matter of the issuance of passport visas, for
the Secretary cannot relieve those officers of their responsibility under the
law. x x x The reason of the law in
conferring upon the consuls themselves the duty and power to grant passports
and visas is obvious. The applicant for
visa is in a foreign country and the Philippine consular officer there is
naturally in a better position than the home office to determine through
investigation conducted on the spot whether or not the said applicant is
qualified to enter the Philippines.”
It can be deduced from the foregoing that the documentation of the petitioners
in Hongkong was not vitiated by a substantial defect
even assuming that it was done without prior authorization from the Foreign
Affairs Department.
It must be stated in this connection that the petitioners became
Philippine citizens because of their relation with their mother who is a
Filipino. Their status was conferred on
them neither by the documentation by the consulate in Hongkong
nor by the finding of the Board of Special Inquiry in Manila. Consequently, whatever defects there are in
the proceedings before the consulate and the board of inquiry cannot affect
their status. Therefore, even assuming
that the petitioners were not properly documented, there is no basis for the
finding of the respondent Board that they are aliens who can be excluded.”
Due, therefore, to the
pronouncement made by the Court of Appeals regarding the insufficiency of the
evidence presented by herein petitioners to prove the alleged
forgery – again, a matter not now within our power to review – the questioned
cablegram must be deemed to be authentic.
But be that as it may, we agree with both the Court of First Instance of
origin and the Court of Appeals that, even assuming that said document was
forged, this would not automatically render void all the proceedings had before
the Philippine Consulate in Hongkong and the Board of
Special inquiry, both of which ended with a definite finding that the Callanos were Filipino citizens. That these proceedings and finding can not be
nullified by the Department of Foreign Affairs summarily and without giving the
parties concerned an opportunity to be heard is too evident to require any
demonstration.
To the other questions
relied upon by herein petitioners, the following portions of the decision of
the Court of Appeals would seem to be sufficient answer:
“The question, whether petitioners who are admittedly Filipino
citizens at birth subsequently acquired Chinese citizenship under the
Chinese Law of Nationality by reason of recognition or a prolonged stay in
China, is a fit subject for the Chinese law and the Chinese court to determine,
which cannot be resolved by a Philippine court without encroaching on the legal
system of China. For, the settled rule
of international law, affirmed by the Hague Convention on Conflict of
Nationality Laws of April 12, 1930
and by the International Court of Justice, is that “Any question as to
whether a person possesses the nationality of a particular state should be
determined in accordance with
the law of that state.” (quoted in Salonga, Private International Law, 1957 Ed., p. 112.) There was no necessity of deciding that
question because so far as concerns the
petitioners’ status, the only question in this proceeding is: Did the petitioners lose their
Philippine citizenship upon the
performance of certain acts or the happening of certain events in China? In
deciding this question no foreign law can be applied. The petitioners are admittedly Filipino
citizens at birth, and their status must be governed by Philippine law wherever they may be, in conformity with Article 15
(formerly Article 9) of the Civil Code which provides as follows: “Laws relating to family rights and
duties, or to the status, conditions and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad.” Under Article IV, Section 2, of the Philippine Constitution, “Philippine
citizenship may be lost or reacquired in the manner provided by law.”,
which implies that the question of whether a Filipino has lost his Philippine
citizenship shall be determined by no other than the Philippine
law.
Section 1 of Commonwealth Act No. 63, as amended by Republic Act No.
106, provides that a Filipino citizen may lose his citizenship by
naturalization in a foreign country; express renunciation of citizenship;
subscribing to an oath of allegiance to support the constitution or laws of a
foreign country; rendering service to, or accepting a commission in, the armed
forces of a foreign country; cancellation of the certificate of naturalization;
declaration by competent authority that he is a deserter of the Philippine
armed forces in time of war; in the case of a woman, by marriage to a foreigner if, by virtue of laws in force in her
husband’s country, she acquires his nationality. Recognition of the petitioners by their alien father is not among the grounds for losing
Philippine citizenship under Philippine law, and it cannot be said that the petitioners
lost their former status by reason of such recognition. About the only mode of losing Philippine
citizenship which closely bears on the petitioners’ case is
renunciation. But even renunciation
cannot be cited in support of the conclusion that petitioners lost their
Philippine citizenship because the law requires an express renunciation,
which means a renunciation that is made known distinctly and explicitly and not
left to inference or implication; a renunciation manifested by direct and
appropriate language, as distinguished from that which is inferred from
conduct. (Opinion No.
69 of the Secretary of Justice, Series of 1940.) Indeed, as the Supreme
Court held in U.S. v. Ong Tianse,
29 Phil. 332, a case for deportation, where Ong, a
natural child of a Filipino mother and a Chinese father, born in the
Philippines, was brought by his parents to China when he was 4 years old, where
he remained for 18 or 19 years, returning to the Philippines at 25 years of
age, “The fact that a minor child in those conditions was taken to China
and remained there for several years is not sufficient ground upon which to
hold that he has changed his nationality, when, after reaching his majority, he
did not express his desire to choose the nationality of his father.” The
import of the foregoing pronouncement is that of itself a protracted stay in a
foreign country does not amount to renunciation. Moreover, herein petitioners were all minors when they were brought to China in 1946. They were without legal capacity to renounce their status.
Upon their return to the
Philippines only Beato Go Callano
had attained the age of majority, but even as to him there could not have been renunciation because he did not
manifest by direct and appropriate language that he was disclaiming Philippine
citizenship. On the contrary, after he
has attained the age of majority, he applied for registration as a Philippine
citizen and sought entry into this country, which are clear indicia of his
intent to continue his former status.
The foregoing shows that the petitioners have not lost their Philippine
citizenship.”
Lastly, petitioners claim
that the private respondents are barred from questioning the decision of the
Board of Immigration Commissioners dated August 21, 1962 and the warrant of exclusion issued by the
Commissioner of Immigration on the same date, because they did not appeal from
either to the Secretary of Justice.
We find this to be
without merit for the reason that, as
stated before, both orders were
issued without previous notice and hearing and were, therefore, in violation of
due process. As a matter of fact, even
in the case of an Alien, decisions of the Board of Immigration
Commissioners, like that of any other administrative body, do not constitute res judicata so as to bar a
re-examination of the alien’s right to enter or stay (Ong Se Lun et al., vs. Board of
Immigration, G.R. No. L-6017, September
16, 1954), and the courts can grant relief if said Board abused its
powers, or committed serious legal errors, or denied the alien a fair hearing (Lao Tang Bun vs. Fabre 81 Phil.
682).
WHEREFORE, the
decision under review is hereby affirmed, with costs.
IT IS SO ORDERED.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Sanchez, Castro, Fernando, and Capistrano, JJ., concur.
Zaldivar and Angeles, JJ., took no part.