TAN TONG ALIAS CHEOÑGA, PETITIONER AND APPELLANT, VS. THE DEPORTATION BOARD, RESPONDENT AND APPELLEE.

This is an appeal from a judgment of the Court of First Instance of Cebu
denying a petition for a writ of prohibition against the Deportation Board.
Petitioner Tan Tong was originally charged before the Bureau of Immigration with
being a communist, subject to deportation. The Board of Commissioners found that
Tan Tong was engaged in communistic activities and in smuggling, and so it
recommended that Tan Tong be deported to China and that his activities related
to smuggling be referred to the Office of the President for action under the
provisions of section 69 of the Revised Administrative Code. The order is dated
October 6, 1762. On November 7, 1752, special prosecutor Emilio L. Galang
charged Tan Tong before the Deportation Board with affiliation with the
communist party and with having fraudulently engaged in unlawful importation of
merchandise, especially American cigarettes. Tan Tong filed a motion to quash
the proceedings before the Board, first, on the ground that said charges had
already been investigated by the Bureau of Immigration, and second, that insofar
as the charge of smuggling is concerned, the proceedings are beyond the Board’s
jurisdiction, because no deportation proceedings for smuggling can be instituted
before his conviction by a competent court (in accordance with section 2702 of
the Revised Administrative Code). The motion to quash was denied and thereupon
Tan Tong instituted this action in the Court of First Instance of Cebu, alleging
that the respondent Deportation Board has no jurisdiction to consider the
charges which had been or were being investigated by the Bureau of Immigration,
and because it lacks jurisdiction to consider the charges of smuggling in
accordance with the provisions of section 2702 of the Revised Administrative
Code. The petition having been denied Tan Tong appealed to this Court, wherein
he makes and limits himself to the following assignment of error:

That the trial court erred in ruling that respondent board can subject the
petitioner to deportation for unlawful importation even without a preceding
court conviction for said offense.

The gist of appellant’s contention is contained in the following paragraph of
his brief:

“In view of the wordings of section 2702, it is obvious that our lawmaking
body has expressly imposed the requisites and conditions wherein the power to
deport in case of unlawful importation is to be exercised and from its clear
context Congress has prescribed that in this particular case, conviction of an
alien for said offense must first be had and only thereafter may the power to
deport be exercised.”

The fallacy of appellant’s argument is based on the failure to distinguish
between the power to deport and the proceedings necessary for the exercise of
said power. The power to deport aliens is lodged in the President of the
Republic of the Philippines. As an act of state, it is vested in the Executive
by virtue of his office, subject only to the regulations prescribed in section
69 of the Revised Administrative Code or to such future legislation as may be
promulgated on the subject. (In re McCulloch Dick, 38 Phil., 41.) There is no
provision in the Constitution nor act of the legislature denning the power, as
it is evident that it is the intention of the law to grant to the Chief
Executive full discretion to determine whether an alien’s residence in the
country is so undesirable as to affect or injure the security, welfare or
interest of the state. The adjudication of facts upon which deportation is
predicated also devolves on the Chief Executive whose decision is final and
executory. (In Re McCulloch Dick, supra.) The only provision of law
heretofore enacted by the legislature on deportation is section 69 of the
Revised Administrative Code which is as follows:

“Sec. 69. Deportation of subject to foreign power.—A subject of a
foreign power residing in the Philippines shall not be deported, expelled, or
excluded from said Islands or repatriated to his own country by the President of
the Philippines except upon prior investigation, conducted by said Executive or
his authorized agent, of the ground upon which such action is contemplated. In
such case the person concerned shall be informed of the charge or charges
against him and he shall be allowed not less than three days for the preparation
of his defense. He shall also have the right to be heard by himself or counsel,
to produce witnesses in his own behalf, and to cross-examine the opposing
witnesses.”

The above provision does not define the cases in which the Chief Executive
may exercise his power to deport; neither does it limit or curtail said power.
What it does is to prescribe the procedure necessary for the exercise of the
power that the alien may have his “day in court.”

By no form or manner of reasoning can the inference be made that by section
2702 of the Revised Administrative Code the Legislature, intended that an alien
can be deported for illegal importation only upon conviction therefor in a
competent court, and thereby deprived the Deportation Board of its power to
investigate charges of unlawful importation of merchandise against an alien,
especially, when as appears from the record, no criminal action for unlawful
importation has been filed against him. The language of the provision and the
chapter in which it is found do not justify petitioner’s contention. No
derogation of a power vested in the Chief Executive or a limitation thereof can
be presumed by implication from the mere addition of the clause “he may be
subject to deportation” at the end of section 2702. This section punishes
illegal importation and imposes, in addition to the penalty prescribed, the
liability to deportation if the person found guilty is an alien. Its sole import
is that if a competent court has found an alien guilty of a violation of section
2702 of the Revised Administrative Code, the proceedings outlined in section 69
of the said Code are no longer necessary for deportation. Beyond this it is un-
reasonable, if not absurd, to presume that the legislature intended more. It
could not have intended that if there is no conviction for a crime of unlawful
importation, or if no charges have been filed against an alien therefor, the
Deportation Board may not proceed to investigate said charges against him and
recommend deportation. The reason for the provision (Sec. 2702) is that if a
competent court has found the alien guilty of a violation of the law, it is no
longer necessary that the proceedings outlined in section 69 be resorted to
before his deportation may be ordered by the Chief Executive for that would be a
mere duplicity.

The appeal should be, as it is hereby, dismissed and the decision appealed
from affirmed, with costs against the petitioner-appellant.

Pablo, Acting C. J., Bengzon, Montemayor, Reyes, A., Bautista Angelo,
Concepcion, and Reyes, J. B. L., JJ., concur.

Appeal dismissed.