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[MARTINIANO P. VIVO v. GAUDENCIO CLORIBEL](https://lawyerly.ph/juris/view/c49cf?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. L-25411, Oct 26, 1968 ]

MARTINIANO P. VIVO v. GAUDENCIO CLORIBEL +

DECISION

134 Phil. 609

[ G.R. No. L-25411, October 26, 1968 ]

HON. MARTINIANO P. VIVO, AS (ACTING) COMMISSIONER OF IMMIGRATION, PETITIONER, VS. HON. GAUDENCIO CLORIBEL, AS JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, BRANCH VI, CHUA PIC LUAN, UY KOC SIONG AND UY TIAN SIONG, RESPONDENTS.

D E C I S I O N

REYES, J.B.L., J.:

This is another case involving Chinese nationals who came to the Philippines allegedly for a visit but thereafter refuse to leave.  And one where the improvident issuance of an ex-parte preliminary injunction, followed by judicial inaction, actually extended the stay of aliens beyond the period authorized by law, and even beyond what the visitors had asked for.

The private respondents herein, Chua Pic Luan, a Chinese mother, and her minor children, Uy Koc Siong and Uy Tian Siang, arrived from Hongkong, and were admitted in the Philippines as temporary visitors on 16 October 1960, with an initial authorized stay of three (3) months.  The husband and father of these aliens, Uy Pick Tuy, had applied for naturalization, and the Court of First Instance of Manila (in its Civil Case No. 43163) granted his petition therefor only on 11 April 1961.  Meanwhile, said temporary visitors petitioned for an indefinite extension of their stay.  Acting thereon, and purportedly in accordance with a Cabinet Resolution on 29 February 1956 granting them concurrent jurisdiction to act on petitions for extension of stay of temporary visitors, the Secretary of Foreign Affairs, Felixberto Serrano, on 16 May 1961, authorized the change in category from temporary visitors to that of special non-immigrants under Section 47(a) (2) of the Immigration Law for a period of stay extending up to 11 April 1963; and the Secretary of Justice, Alejo Mabanag, on 8 June 1961, approved the extension thus authorized, subject to the condition that Chua Pic Luan, Uy Koc Siong, and Uy Tian Siong shall secure reentry permits to Hongkong valid at least two months over and beyond their extended stay, and that they shall maintain their cash bonds filed with the Bureau of Immigration and to pay the corresponding fees.  But the herein petitioner, Commissioner of Immigration, refused to recognize the said extension further than 16 June 1962, and denied acceptance of payment of the extension fees.

Thereupon, the respondents, on 4 June 1962, requested the Office of the President of the Philippines to extend their stay up to 11 April 1963 in order to coincide with their hoped - for and forthcoming oath-taking of allegiance of Uy Pick Tuy.  The request was referred to the Immigration Commissioner.  The latter, on 11 June 1962, informed the respondents, through counsel, that the new Secretary of Justice, Jose Diokno, had ruled in January, 1962 that the Cabinet Resolution of 29 February 1956 had no force and effect, and forthwith denied the request for extension of stay of the respondents and advised them to leave the country voluntarily not later than 16 June 1962; otherwise, they would be proceeded against, in accordance with law.

The respondents did not leave the country on the date specified, but instead filed a petition for mandamus with injunction, docketed as Civil Case No. 50671 in the Court of First Instance of Manila, to restrain the Commissioner of Immigration from issuing a warrant for their arrest and from confiscating their bond for their temporary stay and to order the Commissioner to implement the extension previously authorized and approved by Secretaries Serrano and Mabanag.

His Honor, Judge Federico Alikpala, to whose sala the case was assigned, denied the prayer for preliminary injunction for lack of a prima facie showing and set the case for hearing on 13 July 1962.  On the said date, which was pre-­selected with the conformity of petitioner's counsel, said counsel did not appear but another lawyer appeared to ask for postponement.  Judge Alikpala denied the postponement and dismissed the case without prejudice.

On 19 July 1962, the herein respondents re-filed the same petition with the same court, which was docketed as Civil Case No. 50993.  The petition alleged three grounds therefor, namely:  (1) the extension of the stay of the petitioners (herein respondents) up to 11 April 1963 was authorized and approved by the Sec­retaries of Foreign Affairs and of Justice; (2) they were due for eventual conversion into Filipino citizens by virtue of the granting of Uy Pick Tuy's petition for natural­ization, which had not been appealed, and he was due to take his oath of al­legiance on 11 April 1963; and (3) their departure from the Philippines would work great injury and injustice to themselves.  As before, the petition prayed for a preliminary injunction.  This time, the case was assigned to the sala of herein co-respondent Judge Gaudencio Cloribel.

On 21 July 1962, respondent judge, ex-parte and without hearing, issued an order granting preliminary injunction, and, on a bond of P3,000.00, issued the writ on 24 July 1962.

On 3 August 1962, the Immigration Commissioner filed his answer (as respondent therein) stating, in defense, inter alia, that the visitors' authorized stay expired on 16 June 1962; that their change in category from temporary visitors to special non-immigrants and the extension of their stay up to 11 April 1963 by the Secretaries of Foreign Affairs and of Justice was invalid, as subsequently ruled by their successors in office, and that it is the Commissioner of Immigration who is vested by law with power to grant extensions of stay; that the petition filed was not the proper remedy; that the Solicitor-General will oppose the oath-taking of Uy Pick Tuy; and that, even if Tuy will become a Filipino citizen, his wife would not automatically become a Filipino citizen, as she has yet to show that she, herself, can be lawfully naturalized.

Three (3) years passed without the case having been heard.

Then, on 14 September 1965, the Commissioner filed a motion to dismiss the case for the unreasonable length of time that the petitioners had failed to prosecute their case, and that even the final relief that they sought, which was to implement the extension up to 11 April 1963, had already expired.  But, on opposition of herein respondents, the court, on 26 October 1965, denied the motion to dismiss for being "not well taken".

On 9 December 1965, the Immigration Commissioner filed with the Supreme Court the present original action of certiorari and prohibition with preliminary injunction, contesting the respondent court's order of 21 July 1962 granting preliminary injunction ex-parte, the writ of preliminary injunction of 24 July 1962, and the order of 26 October 1965 denying the motion to dismiss.

This Court required the respondents to answer, and on 16 December 1966, on motion of the petitioning Commissioner, it restrained the private respondents from representing themselves to be Filipinos and from exercising any of the rights and privileges of Filipino citizens, until further orders from the Court.

The conclusions derivable from the foregoing chain of uncontested facts are:  that herein private respondents secured admission to the Philippines as tem­porary visitors by falsely pretending to come for a visit but, actually, with the intent to stay permanently; that, knowing that their authorized stay would expire on 16 June 1962, private respondents filed their petition in court for injunction, then delayed its adjudication, the better to prolong their stay; and that private respondents have thus succeeded in prolonging their stay in the country even beyond the date that they had originally sought and asked for, which was 11 April 1963, upon the respondent court's compounded abuse of discretion, inaction and excess of jurisdiction.

Which was, in law, the expiry date of the respondents' stay:  the 16th of June 1962, as fixed by the Immigration Commissioner, or 11 April 1963, as author­ized and approved by the Serrano-Mabanag indorsements?  This question, as well as the question of whether temporary visitors may change their status to special non-immigrants without first departing from the country, were specifically answered by this Court in Lim Chiok, et al., vs. Vivo, L-20513, 26 December 1963, in the following manner:

". . . The so-called Cabinet Resolution of February 29, 1956 did not specifically authorize the Secretaries of Foreign Affairs and of Justice to extend the stay of temporary visitors.  It could not legally do so because under the express provi­sions of the Immigration Law, it is the Commis­sioner of Immigration who is vested with the power and authority to grant such extensions.  And, the Cabinet has no power to amend or modify the law.  We so declared in Ang Liong vs. Commissioner of Immigration (51 O. G. 2893)[1] when we said:  'The Secretary of Foreign Affairs is not authorized to admit into the Philippines aliens for temporary stay, or extend the period authorized by the Commissioner of Immigration for their stay in the Philippines.'
"Neither can the two Secretaries authorize the change of status from temporary visitors to special non-immigrants.  The law and our decisions on the matter are clear on this point:  temporary visi­tors can not have their status changed to special non-immigrants without first departing from the country." (citing authorities)

As early as 1956, in fact, this Court had already ruled that the period of stay of alien temporary visitors could not be extended without first departing from the Islands; and in Chiong Tiao Bing vs. Commissioner of Immigration (28 Sept­ember 1956), 99 Phil. 1021, 1023, we ruled:

"No officer can relieve him of the departure requirements of Section 9 of the Immigration Act, under the guise of 'change' or 'correction', for the law makes no distinctions, and no officer is above the law.  Any other ruling would, as stated in our previous decision, encourage aliens to enter the Islands on false pretenses; every alien, so permitted to enter for a limited time, might then claim a right to permanent admission, however flimsy such claim should be, and thereby compel our government to spend time, money and effort to examining and verifying whether or not every such alien really has a right to take up permanent residence here.  In the meanwhile, the alien would be able to prolong his stay and evade his return to the port whence he came, contrary to what he promised to do when he entered.  The damages inherent in such ruling are self-evident."

That the Cabinet Secretaries acted as alter egos of the President, as now claimed by the respondents, is not true; because the President, when a request for ex­tension was made directly to him, did not affirm the acts of the Secretaries but referred the matter to the Commissioner.  The respondents knew that said Secre­taries did not act as alter egos of the President; otherwise, they would not have written the President after they received the Secretaries' indorsements.  And when the Immigration Commissioner insisted upon private respondents departing from the Islands, they did not dare ask the President for relief.

The other reason given by the respondents do support their petition filed with the court below is their expectation to follow the citizenship of Uy Pick Tuy when he should take his oath of allegiance as a Filipino citizen.[2] Such ex­pectation is legally baseless.

As to the wife, Chua Pic Luan, she does not, under Section 15 of the Revised Naturalization Law, automatically become a Filipino citizen on account of her marriage to a naturalized Filipino citizen, since she must first prove that she possesses all the qualifications and none of the disqualifications for naturaliza­tion.[3]

By having misrepresented before Philippine consular and administrative authorities that she came to the country for only a temporary visit when, in fact, her intention was to stay permanently; and for having intentionally delayed court processes the better to prolong her stay, respondent Chua Pic Luan demonstrated her incapacity to satisfy the qualifications exacted by the third paragraph of Section 2 of the Revised Naturalization Law, that she must be of good moral character and must have conducted herself in a proper and irreproachable manner during the entire period of her residence in the Philippines in her relation with the constitu­ted government.

And, having lawfully resided in the Philippines only from her arrival on 16 October 1960 to 16 June 1962, she (Chua Pic Luan) also failed to meet the required qualification of continuous residence in the Philippines for ten (10) years, her stay beyond 16 June 1962 being illegal.

As to the foreign born minors, Uy Koc Siong and Uy Tian Siong, our pronouncement in Vivo vs. Cloribel, L-23239, 23 November 1966, 18 SCRA 713, applies to them:

"As to foreign-born minor children, they are extended citizenship 'if dwelling in the Philippines at the time of the naturalization of the parent.' 'Dwelling' means lawful residence.  Since prior to the time the father of respondents visitors was supposed to have taken his oath of citizenship . . . their lawful period of stay had expired and they had already been required to leave, they were no longer lawfully residing here (Kua Suy, et al. v. The Commissioner of Immigration, L-13790, October 31, 1963)."

Nor can these temporary visitors claim any right to a stay coterminous with the result of the naturalization proceeding of their husband and father, Uy Pick Tuy, because their authorized stay was for a definite period, up to a fixed day, a circumstance incompatible with the termination of the naturalization pro­ceeding, which is uncertain and can not be set at a definite date.[4]

It is contended for the respondents that two-year old respondent Uy Tian Siong cannot, under Article 363 of the Civil Code, be separated from his mother; that husband Uy Pick Tuy has the right to fix the residence of the family (Article 110), to the company of his wife (Article 109) and those of his minor children (Article 316), and said wife and children are obliged to obey and live with him (Articles 109, 311, 357); and that to make said wife and children depart from the Philippines is destructive of family solidarity (Articles 218-221).  These arguments are beside the point.  Said laws govern the relations between husband and wife inter se or between private persons,[5] not the relations between visiting aliens and the sovereign host-country.  Respondents seem to have forgotten that they came here for a visit, and, as visitors, they have no right to impose upon their host a period of stay of their own choosing.  Furthermore, being still aliens,[6] they are not in a position to invoke the provisions of the Civil Code of the Philippines, for that Code cleaves to the principle that family rights and duties are governed by their personal law, i.e., the laws of the nation to which they belong even when staying in a foreign country (cf. Civil Code, Article 15).

The date insisted upon by the Commissioner as the terminal date of stay of the respondents (16 June 1962) had already passed when respondent judge issued his writ of preliminary injunction (24 July 1962).  This fact should have cautioned him to issue notice to the Immigration Commissioner and hold a hearing before issuing the writ.  But respondent judge never did hold a hearing, either on the preliminary injunction or on the merits, so that it is mild to say that his ex-parte preliminary injunction was improvidently issued.

The date insisted on by the respondents as their terminal date of stay (11 April 1963) had, likewise, long expired when the Commissioner filed his motion to dismiss (14 September 1965) in the court below.  Plainly, the case had by then become moot and academic,[7] and the court was left with no further controversy to adjudicate.  Hence, the respondent, Judge Cloribel, whimsically and arbitrarily denied the motion, in open disregard of the public interest and of the national policy expressed in the Immigration Act.

Thus, the respondent judge, by refusing to dismiss the case, allowed these alien visitors to remain in the country for as long as the case remained pending in his docket; in effect, he abusively arrogated unto himself the power to grant ex­tensions of stay to temporary visitors, a faculty that, under the law, belongs to the Commissioner.  Thus, respondent judge, instead of applying and interpreting the law, has effectively disregarded the same and violated its policy. 

WHEREFORE, the order granting preliminary injunction on 21 July 1962, the writ of preliminary injunction on 24 July 1962, and the order of 26 October 1965, all issued in Civil Case No. 50993 of the Court of First Instance of Manila, are all hereby set aside, and the respondent judge is hereby permanently restrained from taking cognizance and assuming jurisdiction over said Civil Case No. 50993, except to dismiss it as moot and academic.  The preliminary injunction heretofore issued by this Court is hereby made permanent.  Costs against private respondents.

Concepcion, C.J., Dizon, Makalintal, Sanchez, Castro, Angeles, Fernando, and Capistrano, JJ., concur.
Zaldivar, J., did not take part.



[1] 106 Phil. 793, at pages 799-800, promulgated 29 December 1959.  Ruling reiterated in Vivo vs. Arca, L-21728, 27 December 1963, and in Vivo vs. Cloribel, (23 November 1966) 18 SCRA 713.

[2] Uy Pick Tuy took his oath of allegiance in August, 1963 but the Solicitor-General moved for the cancellation of his naturalization certificate on 16 March 1966 (Rollo, pages 68-69).

[3] Lee Suan Ay, et al. vs. Galang, et al., 106 Phil. 706; Austria, et al. vs. Conchu, L-20716, 22 June 1965; Lo Beng Ha Ong vs. Republic, L-24503, 28 September 1968.

[4] Vivo vs. Arca, L-21728, 27 December 1963.

[5] Lo Bang Ha Ong vs. Republic, supra.

[6] Vivo vs. Cloribel, supra.

[7] Kua Suy vs. Commissioner of Immigration, L-13790, 31 October 1963; Vivo vs. Cloribel (1966) 18 S.C.R.A., 713, 722; Vivo vs. Cloribel (1958) 22 S.C.R.A., 159, 164.

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