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[ GR No. L-24530, Oct 31, 1968 ]



134 Phil. 901

[ G.R. No. L-24530, October 31, 1968 ]




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.


Concepcion, C.J., Reyes, J.B.L., Makalintal, Sanchez, Castro, Fernando, and Capistrano, JJ., concur.
Zaldivar and Angeles, JJ., took no part.