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G.R. Nos. L-8895 and L-9191 April 30, 1957

SALVADOR A. ARANETA, ETC., ET AL., petitioners,

vs.
THE HON. MAGNO S. GATMAITAN, ETC., ET AL., respondents.

EXEQUIEL SORIANO, ET AL., petitioners-appellees,

vs.
SALVADOR ARANETA, ETC., ET AL., respondents-appellants.

Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Jose G. Bautista and Solicitor Troadio T.
Quiazon for petitioners.
San Juan, Africa and Benedicto for respondents.

FELIX, J.:

San Miguel Bay, located between the provinces of Camarines Norte and Camarines Sur, a part of the National waters of
the Philippines with an extension of about 250 square miles and an average depth of approximately 6 fathoms (Otter trawl
explorations in Philippine waters p. 21, Exh. B), is considered as the most important fishing area in the Pacific side of the
Bicol region. Sometime in 1950, trawl1 operators from Malabon, Navotas and other places migrated to this region most of
them settling at Sabang, Calabanga, Camarines Sur, for the purpose of using this particular method of fishing in said bay.
On account of the belief of sustenance fishermen that the operation of this kind of gear caused the depletion of the marine
resources of that area, there arose a general clamor among the majority of the inhabitants of coastal towns to prohibit the
operation of trawls in San Miguel Bay. This move was manifested in the resolution of December 18, 1953 (Exh. F),
passed by the Municipal Mayors' League condemning the operation of trawls as the cause of the wanton destruction of
the shrimp specie and resolving to petition the President of the Philippines to regulate fishing in San Miguel Bay by
declaring it closed for trawl fishing at a certain period of the year. In another resolution dated March 27, 1954, the same
League of Municipal Mayor, prayed the President to protect them and the fish resources of San Miguel Bay by banning
the operation of trawls therein (Exh. 4). The Provincial Governor also made proper presentations to this effect and
petitions in behalf of the non-trawl fishermen were likewise presented to the President by social and civic organizations as
the NAMFREL (National Movement for Free Elections) and the COMPADRE (Committee for Philippine Action in
Development, Reconstruction and Education), recommending the cancellation of the licenses of trawl operators after
investigation, if such inquiry would substantiate the charges that the operation of said fishing method was detrimental to
the welfare of the majority of the inhabitants (Exh. 2).

In response to these pleas, the President issued on April 5, 1954, Executive Order No. 22 (50 Off. Gaz., 1421) prohibiting
the use of trawls in San Miguel Bay, but said executive order was amended by Executive Order No. 66, issued on
September 23, 1954 (50 Off. Gaz., 4037), apparently in answer to a resolution of the Provincial Board of Camarines Sur
recommending the allowance of trawl fishing during the typhoon season only. On November 2, 1954, however, Executive
Order No. 80 (50 Off. Gaz., 5198) was issued reviving Executive Order No. 22, to take effect after December 31, 1954.

A group of Otter trawl operators took the matter to the court by filing a complaint for injunction and/or declaratory relief
with preliminary injunction with the Court of First Instance of Manila, docketed as Civil Case No. 24867, praying that a writ
of preliminary injunction be issued to restrain the Secretary of Agriculture and Natural Resources and the Director of
Fisheries from enforcing said executive order; to declare the same null and void, and for such other relief as may be just
and equitable in the premises.

The Secretary of Agriculture and Natural Resources and the Director of Fisheries, represented by the Legal Adviser of
said Department and a Special Attorney of the Office of the Solicitor General, answered the complaint alleging, among
other things, that of the 18 plaintiff (Exequiel Soriano, Teodora Donato, Felipe Concepcion, Venancio Correa, Santo
Gaviana, Alfredo General, Constancio Gutierrez, Arsenio de Guzman, Pedro Lazaro, Porfirio Lazaro, Deljie de Leon, Jose
Nepomuceno, Bayani Pingol, Claudio Salgado, Porfirio, San Juan, Luis Sioco, Casimiro Villar and Enrique Voluntad), only
11 were issued license to operate fishing boats for the year 1954 (Annex B, petition — L-8895); that the executive orders
in question were issued accordance with law; that the encouragement by the Bureau of Fisheries of the use of Otter trawls
should not be construed to mean that the general welfare of the public could be disregarded, and set up the defenses that
since plaintiffs question the validity of the executive orders issued by the President, then the Secretary of Agriculture and
Natural Resources and the Director of Fisheries were not the real parties in interest; that said executive orders do not
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constitute a deprivation of property without due process of law, and therefore prayed that the complaint be dismissed
(Exh. B, petition, L-8895).

During the trial of the case, the Governor of Camarines Sur appearing for the municipalities of Siruma, Tinambac,
Calabanga, Cabusao and Sipocot, in said province, called the attention of the Court that the Solicitor General had not
been notified of the proceeding. To this manifestation, the Court ruled that in view of the circumstances of the case, and
as the Solicitor General would only be interested in maintaining the legality of the executive orders sought to be
impugned, section 4 of Rule 66 could be interpreted to mean that the trial could go on and the Solicitor General could be
notified before judgement is entered.

After the evidence for both parties was submitted and the Solicitor General was allowed to file his memorandum, the
Court rendered decision on February 2, 1955, the last part of which reads as follows:

The power to close any definite area of the Philippine waters, from the fact that Congress has seen fit to define
under what conditions it may be done by the enactment of the sections cited, in the mind of Congress must be of
transcendental significance. It is primarily within the fields of legislation not of execution: for it goes far and says
who can and who can not fish in definite territorial waters. The court can not accept that Congress had intended to
abdicate its inherent right to legislate on this matter of national importance. To accept respondents' view would be
to sanction the exercise of legislative power by executive decrees. If it is San Miguel Bay now, it may be Davao
Gulf tomorrow, and so on. That may be done only by Congress. This being the conclusion, there is hardly need to
go any further. Until the trawler is outlawed by legislative enactment, it cannot be banned from San Miguel Bay by
executive proclamation. The remedy for respondents and population of the coastal towns of Camarines Sur is to
go to the Legislature. The result will be to issue the writ prayed for, even though this be to strike at public clamor
and to annul the orders of the President issued in response therefor. This is a task unwelcome and unpleasant;
unfortunately, courts of justice use only one measure for both the rich and poor, and are not bound by the more
popular cause when they give judgments.

IN VIEW WHEREOF, granted; Executive Order Nos. 22, 66 and 80 are declared invalid; the injunction prayed for
is ordered to issue; no pronouncement as to costs.

Petitioners immediately filed an ex-parte motion for the issuance of a writ of injunction which was opposed by the Solicitor
General and after the parties had filed their respective memoranda, the Court issued an order dated February 19, 1955,
denying respondents' motion to set aside judgement and ordering them to file a bond in the sum of P30,000 on or before
March 1, 1955, as a condition for the non-issuance of the injunction prayed for by petitioners pending appeal. The Solicitor
General filed a motion for reconsideration which was denied for lack of merit, and the Court, acting upon the motion for
new trial filed by respondents, issued another order on March 3, 1965, denying said motion and granting the injunction
prayed for by petitioners upon the latter's filing a bond for P30,000 unless respondents could secure a writ of preliminary
injunction from the Supreme Court on or before March 15, 1955. Respondents, therefore, brought the matter to this Court
in a petition for prohibition and certiorari with preliminary injunction, docketed as G.R. No. L-8895, and on the same day
filed a notice to appeal from the order of the lower court dated February 2, 1955, which appeal was docketed in this Court
as G.R. No. L-9191.

In the petition for prohibition and certiorari, petitioners (respondents therein) contended among other things, that the order
of, the respondent Judge requiring petitioners Secretary of Agriculture and Natural Resources and the Director of
Fisheries to post a bond in the sum of P30,000 on or before March 1, 1955, had been issued without jurisdiction or in
excess thereof, or at the very least with grave abuse of discretion, because by requiring the bond, the Republic of the
Philippines was in effect made a party defendant and therefore transformed the suit into one against the Government
which is beyond the jurisdiction of the respondent Judge to entertain; that the failure to give the Solicitor General the
opportunity to defend the validity of the challenged executive orders resulted in the receipt of objectionable matters at the
hearing; that Rule 66 of the Rules of Court does not empower a court of law to pass upon the validity of an executive
order in a declaratory relief proceeding; that the respondent Judge did not have the power to grant the injunction as
Section 4 of Rule 39 does not apply to declaratory relief proceedings but only to injunction, receivership and patent
accounting proceedings; and prayed that a writ of preliminary injunction be issued to enjoin the respondent Judge from
enforcing its order of March 3, 1955, and for such other relief as may be deem just and equitable in the premises. This
petition was given due course and the hearing on the merits was set by this Court for April 12, 1955, but no writ of
preliminary injunction was issued.
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Meanwhile, the appeal (G.R. No. L-9191) was heard on October 3, 1956, wherein respondents-appellants ascribed to the
lower court the commission of the following errors:

1. In ruling that the President has no authority to issue Executive Orders Nos. 22, 66 and 80 banning the
operation of trawls in San Miguel Bay;

2. In holding that the power to declare a closed area for fishing purposes has not been delegated to the President
of the Philippines under the Fisheries Act;

3. In not considering Executive Orders Nos. 22, 66 and 80 as declaring a closed season pursuant to Section 7,
Act 4003, as amended, otherwise known as the Fisheries Act;

4. In holding that to uphold the validity of Executive Orders Nos. 22 and 80 would be to sanction the exercise of
legislative power by executive decrees;

5. In its suggestion that the only remedy for respondents and the people of the coastal towns of Camarines Sur
and Camarines Norte is to go to the Legislature; and

6. In declaring Executive Orders Nos. 22, 66 and 80 invalid and in ordering the injunction prayed for to issue.

As Our decision in the prohibition and certiorari case (G.R. No. L-8895) would depend, in the last analysis, on Our ruling
in the appeal of the respondents in case G.R. No. L-9191, We shall first proceed to dispose of the latter case.

It is indisputable that the President issued Executive Orders Nos. 22, 66 and 80 in response to the clamor of the
inhabitants of the municipalities along the coastline of San Miguel Bay. They read as follows:

EXECUTIVE ORDER No. 22

PROHIBITING THE USE OF TRAWLS IN SAN MIGUEL BAY

In order to effectively protect the municipal fisheries of San Miguel Bay, Camarines Norte and Camarines Sur, and
to conserve fish and other aquatic resources of the area, I, RAMON MAGSAYSAY, President of the Philippines,
by virtue of the powers vested in me by law, do hereby order that:

1. Fishing by means of trawls (utase, otter and/or perenzella) of any kind, in the waters comprised within San
Miguel Bay, is hereby prohibited.

2. Trawl shall mean, for the purpose of this Order, a fishing net made in the form of a bag with the mouth kept
open by a device, the whole affair being towed, dragged, trailed or trawled on the bottom of the sea to capture
demersal, ground or bottom species.

3. Violation of the provisions of this Order shall subject the offender to the penalty provided under Section 83 of
Act 4993, or more than six months, or both, in the discretion of the Court.

Done in the City of Manila, this 5th day of April, nineteen hundred and fifty-four and of the Independence of the
Philippines, the eighth. (50 Off. Gaz. 1421)

EXECUTIVE ORDER No. 66

AMENDING EXECUTIVE ORDER No. 22, DATED APRIL 5, 1954, ENTITLED "PROHIBITING THE USE OF
TRAWLS IN SAN MIGUEL BAY"

By virtue of the powers voted in me by law, I, RAMON MAGSAYSAY, President of the Philippines, do hereby
amend Executive Order No. 22, dated April 5, 1954, so as to allow fishing by means of trawls, as defined in said
Executive Order, within that portion of San Miguel Bay north of a straight line drawn from Tacubtacuban Hill in the
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Municipality of Tinambac, Province of Camarines Sur. Fishing by means of trawls south of said line shall still be
absolutely prohibited.

Done in the City of Manila, this 23rd day of September, in the year of our Lord, nineteen hundred and fifty-four,
and of the Independence of the Philippines, the ninth." (50 Off. Gaz. 4037).

EXECUTIVE ORDER No. 80.

FURTHER AMENDING EXECUTIVE ORDER No. 22, DATED APRIL 5, 1954, AS AMENDED BY EXECUTIVE
ORDER No. 66, DATED SEPTEMBER 23, 1954.

By virtue of the powers vested in me by law, I, RAMON MAGSAYSAY, President of the Philippines, do hereby
amend Executive Order No. 66 dated September 23, 1954, so as to allow fishing by means of trawls, as defined
in Executive Order No. 22, dated April 5, 1954, within the portion of San Miguel Bay North of a straight line drawn
from Tacubtacuban Hill in the Municipality of Mercedes, Province of Camarines Norte to Balocbaloc Point in the
Municipality of Tinambac, Province of Camarines Sur, until December 31, 1954, only.

Thereafter, the provisions of said Executive Order No. 22 absolutely prohibiting fishing by means of trawls in all
the waters comprised within the San Miguel Bay shall be revived and given full force and effect as originally
provided therein.

Done in the City of Manila, this 2nd day of November, in the year of Our Lord, nineteen hundred and fifty-four and
of the Independence of the Philippines, the ninth. (50 Off. Gaz. 5198)

It is likewise admitted that petitioners assailed the validity of said executive orders in their petition for a writ of injunction
and/or declaratory relief filed with the Court of First Instance of Manila, and that the lower court, upon declaring Executive
Orders Nos. 22, 66 and 80 invalid, issued an order requiring the Secretary of Agriculture and Natural Resources and the
Director of Fisheries to post a bond for P30,000 if the writ of injunction restraining them from enforcing the executive
orders in question must be stayed.

The Solicitor General avers that the constitutionality of an executive order cannot be ventilated in a declaratory relief
proceeding. We find this untenable, for this Court taking cognizance of an appeal from the decision of the lower court in
the case of Hilado vs. De la Costa, et al., 83 Phil., 471, which involves the constitutionality of another executive order
presented in an action for declaratory relief, in effect accepted the propriety of such action.

This question being eliminated, the main issues left for Our determination with respect to defendants' appeal (G.R. No. L-
9191), are:

(1) Whether the Secretary of an Executive Department and the Director of a Bureau, acting in their capacities as such
Government officials, could lawfully be required to post a bond in an action against them;

(2) Whether the President of the Philippines has authority to issue Executive Orders Nos. 22, 66 and 80, banning the
operation of trawls in San Miguel Bay, or, said in other words, whether said Executive Orders Nos. 22, 66 and 80 were
issued in accordance with law; and.

(3) Whether Executive Orders Nos. 22, 66 and 80 were valid, for the issuance thereof was not in the exercise of legislative
powers unduly delegated to the President.

Counsel for both parties presented commendable exhaustive defenses in support of their respective stands. Certainly,
these cases deserve such efforts, not only because the constitutionality of an act of a coordinate branch in our tripartite
system of Government is in issue, but also because of the number of inhabitants, admittedly classified as "subsistence
fishermen", that may be affected by any ruling that We may promulgate herein.

I. As to the first proposition, it is an elementary rule of procedure that an appeal stays the execution of a judgment. An
exception is offered by section 4 of Rule 39 of the Rules of Court which provides that:
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SEC. 4. INJUNCTION, RECEIVERSHIP AND PATENT ACCOUNTING, NOT STAYED. — Unless otherwise
ordered by the court, a judgment in an action for injunction or in a receivership action, or a judgment or order
directing an accounting in an action for infringement of letter patent, shall not be stayed after its rendition and
before an appeal is taken or during the pendency of an appeal. The trial court, however, in its discretion, when an
appeal is taken from a judgement granting, dissolving or denying an injunction, may make an order suspending,
modifying, restoring, or granting such injunction during the pendency of an appeal, upon such terms as to bond or
otherwise as it may consider proper for the security of the rights of the adverse party.

This provision was the basis of the order of the lower court dated February 19, 1955, requiring the filing by the
respondents of a bond for P30,000 as a condition for the non-issuance of the injunction prayed for by plaintiffs therein,
and which the Solicitor General charged to have been issued in excess of jurisdiction. The State's counsel, however,
alleges that while judgment could be stayed in injunction, receivership and patent accounting cases and although the
complaint was styled "Injunction, and/or Declaratory Relief with Preliminary Injunction", the case is necessarily one for
declaratory relief, there being no allegation sufficient to convince the Court that the plaintiffs intended it to be one for
injunction. But aside from the title of the complaint, We find that plaintiffs pray for the declaration of the nullity of Executive
Order Nos. 22, 66 and 80; the issuance of a writ of preliminary injunction, and for such other relief as may be deemed just
and equitable. This Court has already held that there are only two requisites to be satisfied if an injunction is to issue,
namely, the existence of the right sought to be protected, and that the acts against which the injunction is to be directed
are violative of said right (North Negros Sugar Co., Inc. vs. Serafin Hidalgo, 63 Phil., 664). There is no question that at
least 11 of the complaining trawl operators were duly licensed to operate in any of the national waters of the Philippines,
and it is undeniable that the executive enactment's sought to be annulled are detrimental to their interests. And
considering further that the granting or refusal of an injunction, whether temporary or permanent, rests in the sound
discretion of the Court, taking into account the circumstances and the facts of the particular case (Rodulfa vs. Alfonso, 76
Phil,, 225, 42 Off. Gaz., 2439), We find no abuse of discretion when the trial Court treated the complaint as one for
injunction and declaratory relief and executed the judgment pursuant to the provisions of section 4 of Rule 39 of the Rules
of Court.

On the other hand, it shall be remembered that the party defendants in Civil Case No. 24867 of the Court of First Instance
of Manila are Salvador Araneta, as Secretary of Agriculture and Natural Resources, and, Deogracias Villadolid, as
Director of Fisheries, and were sued in such capacities because they were the officers charged with duty of carrying out
the statutes, orders and regulations on fishing and fisheries. In its order of February 19, 1955, the trial court denied
defendants' motion to set aside judgment and they were required to file a bond for P30,000 to answer for damages that
plaintiffs were allegedly suffering at that time, as otherwise the injunction prayed for by the latter would be issued.

Because of these facts, We agree with the Solicitor General when he says that the action, being one against herein
petitioners as such Government officials, is essentially one against the Government, and to require these officials to file a
bond would be indirectly a requirement against the Government for as regards bonds or damages that may be proved, if
any, the real party in interest would be the Republic of the Philippines (L. S. Moon and Co. vs. Harrison, 43 Phi., 39;
Salgado vs. Ramos, 64 Phil., 724-727, and others). The reason for this pronouncement is understandable; the State
undoubtedly is always solvent (Tolentino vs. Carlos 66 Phil., 140; Government of the P. I. vs. Judge of the Court of First
Instance of Iloilo, 34 Phil., 167, cited in Joaquin Gutierrez et al. vs. Camus et al. * G.R. No. L-6725, promulgated October
30, 1954). However, as the records show that herein petitioners failed to put up the bond required by the lower court,
allegedly due to difficulties encountered with the Auditor General's Office (giving the impression that they were willing to
put up said bond but failed to do so for reasons beyond their control), and that the orders subjects of the prohibition and
certiorari proceedings in G.R. No. L-8895, were enforced, if at all,2 in accordance with section 4 of Rule 39, which We hold
to be applicable to the case at bar, the issue as to the regularity or adequacy of requiring herein petitioners to post a bond,
becomes moot and academic.

II. Passing upon the question involved in the second proposition, the trial judge extending the controversy to the
determination of which between the Legislative, and Executive Departments of the Government had "the power to close
any definite area of the Philippine waters" instead of limiting the same to the real issue raised by the enactment of
Executive Orders No. 22, 26 and 80, especially the first and the last "absolutely prohibiting fishing by means trawls in all
the waters comprised within the San Miguel Bay", ruled in favor of Congress had not intended to abdicate its power to
legislate on the matter, he maintained as stated before, that "until the trawler is outlawed by legislative enactment, it
cannot be banned from San Miguel Bay by executive proclamation", and that "the remedy for respondents and population
of the coastal towns of Camarines Sur is to go to Legislature," and thus declared said Executive Orders Nos. 22, 66 and
80 invalid".
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The Solicitor General, on the contrary, asserts that the President is empowered by law to issue the executive enactment's
in question.

Sections 6, 13 and 75 of Act No. 4003, known as the Fisheries Law, the latter two sections as amended by section 1 of
Commonwealth Act No. 471, read as follows:

SEC. 6. WORDS AND PHRASES DEFINED. —Words and terms used in this Act shall be construed as follows:

xxx xxx xxx

TAKE or TAKING includes pursuing, shooting, killing, capturing, trapping, snaring, and netting fish and other
aquatic animals, and all lesser acts, such as disturbing, wounding, stupefying; or placing, setting, drawing, or
using any net or other device commonly used to take or collect fish and other aquatic animals, whether they result
in taking or not, and includes every attempt to take and every act of assistance to every other person in taking or
attempting to take or collect fish and other aquatic animals: PROVIDED, That whenever taking is allowed by law,
reference is had to taking by lawful means and in lawful manner.

xxx xxx xxx

SEC. 13. PROTECTION OF FRY OR FISH EGGS. — Except for scientific or educational purpose or for
propagation, it shall be unlawful to take or catch fry or fish eggs and the small fish, not more than three (3)
centimeters long, known as siliniasi, in the territorial waters of the Philippines. Towards this end, the Secretary of
Agriculture and Commerce shall be authorized to provide by regulations such restrictions as may be deemed
necessary to be imposed on THE USE OF ANY FISHING NET OR FISHING DEVICE FOR THE PROTECTION
OF FRY OR FISH EGGS; Provided, however, That the Secretary of Agriculture and Commerce shall permit the
taking of young of certain species of fish known as hipon under such restrictions as may be deemed necessary.

SEC. 75. FISH REFUGEES AND SANCTUARIES. — Upon the recommendation of the officer or chief of the
bureau, office or service concerned, the Secretary of Agriculture and Commerce may set aside and establish
fishery reservation or fish refuges and sanctuaries to be administered in the manner to be prescribed by him. All
streams, ponds and waters within the game refuge, birds, sanctuaries, national parks, botanical gardens,
communal forest and communal pastures are hereby declared fishing refuges and sanctuaries. It shall be
unlawful for any person, to take, destroy or kill in any of the places aforementioned, or in any manner disturb or
drive away or take therefrom, any fish fry or fish eggs.

Act No. 4003 further provides as follows:

SEC. 83. OTHER VIOLATIONS. — Any other violation of the provisions of this Act or any rules and regulations
promulgated thereunder shall subject the offender to a fine of not more than two hundred pesos, or imprisonment
for not more than six months, or both, in the discretion of the Court.

As may be seen from the just quoted provisions, the law declares unlawful and fixes the penalty for the taking (except for
scientific or educational purposes or for propagation), destroying or killing of any fish fry or fish eggs, and the Secretary of
Agriculture and Commerce (now the Secretary of Agriculture and Natural Resources) is authorized to promulgate
regulations restricting the use of any fish net or fishing device (which includes the net used by trawl fishermen) for the
protection of fry or fish eggs, as well as to set aside and establish fishery reservations or fish refuges and sanctuaries to
be administered in the manner prescribed by him, from which no person could lawfully take, destroy or kill in any of the
places aforementioned, or in any manner disturb or drive away or take therefrom any small or immature fish, fry or fish
eggs. It is true that said section 75 mentions certain streams, ponds and waters within the game refuges, . . . communal
forest, etc., which the law itself declares fish refuges and sanctuaries, but this enumeration of places does not curtail the
general and unlimited power of the Secretary of Agriculture and Natural Resources in the first part of section 75, to set
aside and establish fishery reservations or fish refuges and sanctuaries, which naturally include seas or bays, like the San
Miguel Bay in Camarines.

From the resolution passed at the Conference of Municipal Mayors held at Tinambac, Camarines Sur, on December 18,
1953 (Exh. F), the following manifestation is made:
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WHEREAS, the continuous operation of said trawls even during the close season as specified in said Executive
Order No. 20 caused the wanton destruction of the mother shrimps laying their eggs and the millions of eggs laid
and the inevitable extermination of the shrimps specie; in order to save the shrimps specie from eventual
extermination and in order to conserve the shrimps specie for posterity;

In the brief submitted by the NAMFREL and addressed to the President of the Philippines (Exh. 2), in support of the
petition of San Miguel Bay fishermen (allegedly 6, 175 in number), praying that trawlers be banned from operating in San
Miguel Bay, it is stated that:

The trawls ram and destroy the fish corrals. The heavy trawl nets dig deep into the ocean bed. They destroy the
fish foods which lies below the ocean floor. Their daytime catches net millions of shrimps scooped up from the
mud. In their nets they bring up the life of the sea: algea, shell fish and star fish . . .

The absence of some species or the apparent decline in the catch of some fishermen operating in the bay may be
due to several factors, namely: the indiscriminate catching of fry and immature sizes of fishes, the wide-spread
use of explosives inside as well as at the mouth and approaches of the bay, and the extensive operation of the
trawls. (p.9, Report of Santos B. Rasalan, Exh. A)

Extensive Operation of Trawls: — The strenuous effect of the operations of the 17 TRAWLS of the demersal
fisheries of San Miguel Bay is better appreciated when we consider the fact that out of its about 850 square
kilometers area, only about 350 square kilometers of 5 fathoms up could be trawled. With their continuous
operation, is greatly strained. This is shown by the fact that in view of the non-observance of the close season
from May to October, each year, majority of their catch are immature. If their operation would continue
unrestricted, the supply would be greatly depleted. (p. 11), Report of Santos B. Rasalan, Exh. A)

San Miguel Bay — can sustain 3 to 4 small trawlers (Otter Trawl Explorations in Philippine Waters, Research
Report 25 of the Fish and Wildlife Service, United States Department of the Interior, p. 9 Exhibit B).

According to Annex A of the complaint filed in the lower court in Civil Case No. 24867 — G.R. No. L-9191 (Exh. D, p. 53
of the folder of Exhibits), the 18 plaintiffs-appellees operate 29 trawling boats, and their operation must be in a big scale
considering the investments plaintiffs have made therefore, amounting to P387,000 (Record on Appeal, p. 16-17).

In virtue of the aforementioned provisions of law and the manifestation just copied, We are of the opinion that with or
without said Executive Orders, the restriction and banning of trawl fishing from all Philippine waters come, under the law,
within the powers of the Secretary of Agriculture and Natural Resources, who in compliance with his duties may even
cause the criminal prosecution of those who in violation of his instructions, regulations or orders are caught fishing with
trawls in the Philippine waters.

Now, if under the law the Secretary of Agriculture and Natural Resources has authority to regulate or ban the fishing by
trawl which, it is claimed, obnoxious for it carries away fish eggs and fry's which should be preserved, can the President of
the Philippines exercise that same power and authority? Section 10(1), Article VII of the Constitution of the Philippines
prescribes:

SEC. 10 (1). The President shall have control of all the executive departments, bureaus or offices, exercises
general supervision over all local governments as may be provided by law, and take care that the laws be
faithfully executed.

Section 63 of the Revised Administrative Code reads as follows:

SEC. 63. EXECUTIVE ORDERS AND EXECUTIVE PROCLAMATION. — Administrative acts and commands of
the President of the Philippines touching the organization or mode of operation of the Government or rearranging
or readjusting any of the district, divisions, parts or ports of the Philippines, and all acts and commands governing
the general performance of duties by public employees or disposing of issues of general concern shall be made in
executive orders.

xxx xxx xxx

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Regarding department organization Section 74 of the Revised Administrative Code also provides that:

All executive functions of the government of the Republic of the Philippines shall be directly under the Executive
Departments subject to the supervision and control of the President of the Philippines in matters of general policy.
The Departments are established for the proper distribution of the work of the Executive, for the performance of
the functions expressly assigned to them by law, and in order that each branch of the administration may have a
chief responsible for its direction and policy. Each Department Secretary shall assume the burden of, and
responsibility for, all activities of the Government under his control and supervision.

For administrative purposes the President of the Philippines shall be considered the Department Head of the
Executive Office.

One of the executive departments is that of Agriculture and Natural Resources which by law is placed under the direction
and control of the Secretary, who exercises its functions subject to the general supervision and control of the President of
the Philippines (Sec. 75, R. A. C.). Moreover, "executive orders, regulations, decrees and proclamations relative to
matters under the supervision or jurisdiction of a Department, the promulgation whereof is expressly assigned by law to
the President of the Philippines, shall as a general rule, be issued upon proposition and recommendation of the respective
Department" (Sec. 79-A, R.A.C.), and there can be no doubt that the promulgation of the questioned Executive Orders
was upon the proposition and recommendation of the Secretary of Agriculture and Natural Resources and that is why said
Secretary, who was and is called upon to enforce said executive Orders, was made a party defendant in one of the cases
at bar (G.R. No. L-9191).

For the foregoing reasons We do hesitate to declare that Executive Orders Nos. 22, 66 and 80, series of 1954, of the
President, are valid and issued by authority of law.

III. But does the exercise of such authority by the President constitute and undue delegation of the powers of Congress?

As already held by this Court, the true distinction between delegation of the power to legislate and the conferring of
authority or discretion as to the execution of law consists in that the former necessary involves a discretion as to what the
law shall be, wile in the latter the authority or discretion as to its execution has to be exercised under and in pursuance of
the law. The first cannot be done; to the latter no valid objection can be made (Cruz vs. Youngberg, 56 Phil., 234, 239.
See also Rubi, et al. vs. The Provincial Board of Mindoro, 39 Phil., 660).

In the case of U. S. vs. Ang Tang Ho, 43 Phil. 1, We also held:

THE POWER TO DELEGATE. — The Legislature cannot delegate legislative power to enact any law. If Act No.
2868 is a law unto itself, and it does nothing more than to authorize the Governor-General to make rules and
regulations to carry it into effect, then the Legislature created the law. There is no delegation of power and it is
valid. On the other hand, if the act within itself does not define a crime and is not complete, and some legislative
act remains to be done to make it a law or a crime, the doing of which is vested in the Governor-General, the act
is delegation of legislative power, is unconstitutional and void.

From the provisions of Act No. 4003 of the Legislature, as amended by Commonwealth Act No. 471, which have been
aforequoted, We find that Congress (a) declared it unlawful "to take or catch fry or fish eggs in the territorial waters of the
Philippines; (b) towards this end, it authorized the Secretary of Agriculture and Natural Resources to provide by the
regulations such restrictions as may be deemed necessary to be imposed on the use of any fishing net or fishing device
for the protection of fish fry or fish eggs (Sec. 13); (c) it authorized the Secretary of Agriculture and Natural Resources to
set aside and establish fishery reservations or fish refuges and sanctuaries to be administered in the manner to be
prescribed by him and declared it unlawful for any person to take, destroy or kill in any of said places, or, in any manner
disturb or drive away or take therefrom, any fish fry or fish eggs (See. 75); and (d) it penalizes the execution of such acts
declared unlawful and in violation of this Act (No. 4003) or of any rules and regulations promulgated thereunder, making
the offender subject to a fine of not more than P200, or imprisonment for not more than 6 months, or both, in the
discretion of the court (Sec. 83).

From the foregoing it may be seen that in so far as the protection of fish fry or fish egg is concerned, the Fisheries Act is
complete in itself, leaving to the Secretary of Agriculture and Natural Resources the promulgation of rules and regulations
to carry into effect the legislative intent. It also appears from the exhibits on record in these cases that fishing with trawls
causes "a wanton destruction of the mother shrimps laying their eggs and the millions of eggs laid and the inevitable
 9

extermination of the shrimps specie" (Exh. F), and that, "the trawls ram and destroy the fish corrals. The heavy trawl nets
dig deep into the ocean bed. They destroy the fish food which lies below the ocean floor. Their daytime catches net
millions of shrimps scooped up from the mud. In their nets they bring up the life of the sea" (Exh- 2).

In the light of these facts it is clear to Our mind that for the protection of fry or fish eggs and small and immature fishes,
Congress intended with the promulgation of Act No. 4003, to prohibit the use of any fish net or fishing device like trawl
nets that could endanger and deplete our supply of sea food, and to that end authorized the Secretary of Agriculture and
Natural Resources to provide by regulations such restrictions as he deemed necessary in order to preserve the aquatic
resources of the land. Consequently, when the President, in response to the clamor of the people and authorities of
Camarines Sur issued Executive Order No. 80 absolutely prohibiting fishing by means of trawls in all waters comprised
within the San Miguel Bay, he did nothing but show an anxious regard for the welfare of the inhabitants of said coastal
province and dispose of issues of general concern (Sec. 63, R.A.C.) which were in consonance and strict conformity with
the law.

Wherefore, and on the strength of the foregoing considerations We render judgement, as follows:

(a) Declaring that the issues involved in case G.R. No. L-8895 have become moot, as no writ of preliminary injunction has
been issued by this Court the respondent Judge of the Court of First Instance of Manila Branch XIV, from enforcing his
order of March 3, 1955; and

(b) Reversing the decision appealed from in case G. R. No. L-9191; dissolving the writ of injunction prayed for in the lower
court by plaintiffs, if any has been actually issued by the court a quo; and declaring Executive Orders Nos. 22, 66 and 80,
series of 1954, valid for having been issued by authority of the Constitution, the Revised Administrative Code and the
Fisheries Act.

Without pronouncement as to costs. It is so ordered.

Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.

Footnotes

1
Trawl is a fishing net made in the form of a bag with the mouth kept open by a device the whole affair being
towed, dragged, trailed or trawled on the bottom of the sea to capture demersal, ground or bottom species
(Executive Order No. 22, series of 1954).

*
96 Phil., 114.

2
Whether said orders were enforced is not clear from the record, for it does not appear certain therefrom that
plaintiffs furnished the bond required from them and that the writ of injunction was actually issued by the Court.

G.R. No. 101279 August 6, 1992

PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,

vs.
HON. RUBEN D. TORRES, as Secretary of the Department of Labor & Employment, and JOSE N. SARMIENTO, as
Administrator of the PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION, respondents.

De Guzman, Meneses & Associates for petitioner.

GRIÑO-AQUINO, J.:
 10

This petition for prohibition with temporary restraining order was filed by the Philippine Association of Service Exporters
(PASEI, for short), to prohibit and enjoin the Secretary of the Department of Labor and Employment (DOLE) and the
Administrator of the Philippine Overseas Employment Administration (or POEA) from enforcing and implementing DOLE
Department Order No. 16, Series of 1991 and POEA Memorandum Circulars Nos. 30 and 37, Series of 1991, temporarily
suspending the recruitment by private employment agencies of Filipino domestic helpers for Hong Kong and vesting in the
DOLE, through the facilities of the POEA, the task of processing and deploying such workers.

PASEI is the largest national organization of private employment and recruitment agencies duly licensed and authorized
by the POEA, to engaged in the business of obtaining overseas employment for Filipino landbased workers, including
domestic helpers.

On June 1, 1991, as a result of published stories regarding the abuses suffered by Filipino housemaids employed in Hong
Kong, DOLE Secretary Ruben D. Torres issued Department Order No. 16, Series of 1991, temporarily suspending the
recruitment by private employment agencies of "Filipino domestic helpers going to Hong Kong" (p. 30, Rollo). The DOLE
itself, through the POEA took over the business of deploying such Hong Kong-bound workers.

In view of the need to establish mechanisms that will enhance the protection for Filipino domestic helpers
going to Hong Kong, the recruitment of the same by private employment agencies is hereby temporarily
suspended effective 1 July 1991. As such, the DOLE through the facilities of the Philippine Overseas
Employment Administration shall take over the processing and deployment of household workers bound
for Hong Kong, subject to guidelines to be issued for said purpose.

In support of this policy, all DOLE Regional Directors and the Bureau of Local Employment's regional
offices are likewise directed to coordinate with the POEA in maintaining a manpower pool of prospective
domestic helpers to Hong Kong on a regional basis.

For compliance. (Emphasis ours; p. 30, Rollo.)

Pursuant to the above DOLE circular, the POEA issued Memorandum Circular No. 30, Series of 1991, dated July 10,
1991, providing GUIDELINES on the Government processing and deployment of Filipino domestic helpers to Hong Kong
and the accreditation of Hong Kong recruitment agencies intending to hire Filipino domestic helpers.

Subject: Guidelines on the Temporary Government Processing and Deployment of Domestic Helpers to
Hong Kong.

Pursuant to Department Order No. 16, series of 1991 and in order to operationalize the temporary
government processing and deployment of domestic helpers (DHs) to Hong Kong resulting from the
temporary suspension of recruitment by private employment agencies for said skill and host market, the
following guidelines and mechanisms shall govern the implementation of said policy.

I. Creation of a joint POEA-OWWA Household Workers Placement Unit (HWPU)

An ad hoc, one stop Household Workers Placement Unit [or HWPU] under the supervision of the POEA
shall take charge of the various operations involved in the Hong Kong-DH industry segment:

The HWPU shall have the following functions in coordination with appropriate units and other entities
concerned:

1. Negotiations with and Accreditation of Hong Kong Recruitment Agencies

2. Manpower Pooling

3. Worker Training and Briefing

4. Processing and Deployment

 11

5. Welfare Programs

II. Documentary Requirements and Other Conditions for Accreditation of Hong Kong Recruitment
Agencies or Principals

Recruitment agencies in Hong Kong intending to hire Filipino DHs for their employers may negotiate with
the HWPU in Manila directly or through the Philippine Labor Attache's Office in Hong Kong.

xxx xxx xxx

X. Interim Arrangement

All contracts stamped in Hong Kong as of June 30 shall continue to be processed by POEA until 31 July
1991 under the name of the Philippine agencies concerned. Thereafter, all contracts shall be processed
with the HWPU.

Recruitment agencies in Hong Kong shall submit to the Philippine Consulate General in Hong kong a list
of their accepted applicants in their pool within the last week of July. The last day of acceptance shall be
July 31 which shall then be the basis of HWPU in accepting contracts for processing. After the exhaustion
of their respective pools the only source of applicants will be the POEA manpower pool.

For strict compliance of all concerned. (pp. 31-35, Rollo.)

On August 1, 1991, the POEA Administrator also issued Memorandum Circular No. 37, Series of 1991, on the processing
of employment contracts of domestic workers for Hong Kong.

TO: All Philippine and Hong Kong Agencies engaged in the recruitment of Domestic helpers for Hong
Kong

Further to Memorandum Circular No. 30, series of 1991 pertaining to the government processing and
deployment of domestic helpers (DHs) to Hong Kong, processing of employment contracts which have
been attested by the Hong Kong Commissioner of Labor up to 30 June 1991 shall be processed by the
POEA Employment Contracts Processing Branch up to 15 August 1991 only.

Effective 16 August 1991, all Hong Kong recruitment agent/s hiring DHs from the Philippines shall recruit
under the new scheme which requires prior accreditation which the POEA.

Recruitment agencies in Hong Kong may apply for accreditation at the Office of the Labor Attache,
Philippine Consulate General where a POEA team is posted until 31 August 1991. Thereafter, those who
failed to have themselves accredited in Hong Kong may proceed to the POEA-OWWA Household
Workers Placement Unit in Manila for accreditation before their recruitment and processing of DHs shall
be allowed.

Recruitment agencies in Hong Kong who have some accepted applicants in their pool after the cut-off
period shall submit this list of workers upon accreditation. Only those DHs in said list will be allowed
processing outside of the HWPU manpower pool.

For strict compliance of all concerned. (Emphasis supplied, p. 36, Rollo.)

On September 2, 1991, the petitioner, PASEI, filed this petition for prohibition to annul the aforementioned DOLE and
POEA circulars and to prohibit their implementation for the following reasons:

1. that the respondents acted with grave abuse of discretion and/or in excess of their rule-making
authority in issuing said circulars;
 12

2. that the assailed DOLE and POEA circulars are contrary to the Constitution, are unreasonable, unfair
and oppressive; and

3. that the requirements of publication and filing with the Office of the National Administrative Register
were not complied with.

There is no merit in the first and second grounds of the petition.

Article 36 of the Labor Code grants the Labor Secretary the power to restrict and regulate recruitment and placement
activities.

Art. 36. Regulatory Power. — The Secretary of Labor shall have the power to restrict and regulate the
recruitment and placement activities of all agencies within the coverage of this title [Regulation of
Recruitment and Placement Activities] and is hereby authorized to issue orders and promulgate rules and
regulations to carry out the objectives and implement the provisions of this title. (Emphasis ours.)

On the other hand, the scope of the regulatory authority of the POEA, which was created by Executive Order No. 797 on
May 1, 1982 to take over the functions of the Overseas Employment Development Board, the National Seamen Board,
and the overseas employment functions of the Bureau of Employment Services, is broad and far-ranging for:

1. Among the functions inherited by the POEA from the defunct Bureau of Employment Services was the
power and duty:

"2. To establish and maintain a registration and/or licensing system to regulate private
sector participation in the recruitment and placement of workers, locally and
overseas, . . ." (Art. 15, Labor Code, Emphasis supplied). (p. 13, Rollo.)

2. It assumed from the defunct Overseas Employment Development Board the power and duty:

3. To recruit and place workers for overseas employment of Filipino contract workers on
a government to government arrangement and in such other sectors as policy may
dictate . . . (Art. 17, Labor Code.) (p. 13, Rollo.)

3. From the National Seamen Board, the POEA took over:

2. To regulate and supervise the activities of agents or representatives of shipping

companies in the hiring of seamen for overseas employment; and secure the best
possible terms of employment for contract seamen workers and secure compliance
therewith. (Art. 20, Labor Code.)

The vesture of quasi-legislative and quasi-judicial powers in administrative bodies is not unconstitutional, unreasonable
and oppressive. It has been necessitated by "the growing complexity of the modern society" (Solid Homes, Inc. vs.
Payawal, 177 SCRA 72, 79). More and more administrative bodies are necessary to help in the regulation of society's
ramified activities. "Specialized in the particular field assigned to them, they can deal with the problems thereof with more
expertise and dispatch than can be expected from the legislature or the courts of justice" (Ibid.).

It is noteworthy that the assailed circulars do not prohibit the petitioner from engaging in the recruitment and deployment
of Filipino landbased workers for overseas employment. A careful reading of the challenged administrative issuances
discloses that the same fall within the "administrative and policing powers expressly or by necessary implication
conferred" upon the respondents (People vs. Maceren, 79 SCRA 450). The power to "restrict and regulate conferred by
Article 36 of the Labor Code involves a grant of police power (City of Naga vs. Court of Appeals, 24 SCRA 898). To
"restrict" means "to confine, limit or stop" (p. 62, Rollo) and whereas the power to "regulate" means "the power to protect,
foster, promote, preserve, and control with due regard for the interests, first and foremost, of the public, then of the utility
and of its patrons" (Philippine Communications Satellite Corporation vs. Alcuaz, 180 SCRA 218).

The Solicitor General, in his Comment, aptly observed:

 13

. . . Said Administrative Order [i.e., DOLE Administrative Order No. 16] merely restricted the scope or
area of petitioner's business operations by excluding therefrom recruitment and deployment of domestic
helpers for Hong Kong till after the establishment of the "mechanisms" that will enhance the protection of
Filipino domestic helpers going to Hong Kong. In fine, other than the recruitment and deployment of
Filipino domestic helpers for Hongkong, petitioner may still deploy other class of Filipino workers either for
Hongkong and other countries and all other classes of Filipino workers for other countries.

Said administrative issuances, intended to curtail, if not to end, rampant violations of the rule against
excessive collections of placement and documentation fees, travel fees and other charges committed by
private employment agencies recruiting and deploying domestic helpers to Hongkong. [They are
reasonable, valid and justified under the general welfare clause of the Constitution, since the recruitment
and deployment business, as it is conducted today, is affected with public interest.

xxx xxx xxx

The alleged takeover [of the business of recruiting and placing Filipino domestic helpers in Hongkong] is
merely a remedial measure, and expires after its purpose shall have been attained. This is evident from
the tenor of Administrative Order No. 16 that recruitment of Filipino domestic helpers going to Hongkong
by private employment agencies are hereby "temporarily suspended effective July 1, 1991."

The alleged takeover is limited in scope, being confined to recruitment of domestic helpers going to
Hongkong only.

xxx xxx xxx

. . . the justification for the takeover of the processing and deploying of domestic helpers for Hongkong
resulting from the restriction of the scope of petitioner's business is confined solely to the unscrupulous
practice of private employment agencies victimizing applicants for employment as domestic helpers for
Hongkong and not the whole recruitment business in the Philippines. (pp. 62-65, Rollo.)

The questioned circulars are therefore a valid exercise of the police power as delegated to the executive branch of
Government.

Nevertheless, they are legally invalid, defective and unenforceable for lack of power publication and filing in the Office of
the National Administrative Register as required in Article 2 of the Civil Code, Article 5 of the Labor Code and Sections
3(1) and 4, Chapter 2, Book VII of the Administrative Code of 1987 which provide:

Art. 2. Laws shall take effect after fifteen (15) days following the completion of their publication in the
Official Gazatte, unless it is otherwise provided. . . . (Civil Code.)

Art. 5. Rules and Regulations. — The Department of Labor and other government agencies charged with
the administration and enforcement of this Code or any of its parts shall promulgate the necessary
implementing rules and regulations. Such rules and regulations shall become effective fifteen (15) days
after announcement of their adoption in newspapers of general circulation. (Emphasis supplied, Labor
Code, as amended.)

Sec. 3. Filing. — (1) Every agency shall file with the University of the Philippines Law Center, three (3)
certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are
not filed within three (3) months shall not thereafter be the basis of any sanction against any party or
persons. (Emphasis supplied, Chapter 2, Book VII of the Administrative Code of 1987.)

Sec. 4. Effectivity. — In addition to other rule-making requirements provided by law not inconsistent with
this Book, each rule shall become effective fifteen (15) days from the date of filing as above provided
unless a different date is fixed by law, or specified in the rule in cases of imminent danger to public health,
safety and welfare, the existence of which must be expressed in a statement accompanying the rule. The
agency shall take appropriate measures to make emergency rules known to persons who may be
affected by them. (Emphasis supplied, Chapter 2, Book VII of the Administrative Code of 1987).
 14

Once, more we advert to our ruling in Tañada vs. Tuvera, 146 SCRA 446 that:

. . . Administrative rules and regulations must also be published if their purpose is to enforce or implement
existing law pursuant also to a valid delegation. (p. 447.)

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be published. Neither is publication required of the so-
called letters of instructions issued by administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties. (p. 448.)

We agree that publication must be in full or it is no publication at all since its purpose is to inform the
public of the content of the laws. (p. 448.)

For lack of proper publication, the administrative circulars in question may not be enforced and implemented.

WHEREFORE, the writ of prohibition is GRANTED. The implementation of DOLE Department Order No. 16, Series of
1991, and POEA Memorandum Circulars Nos. 30 and 37, Series of 1991, by the public respondents is hereby
SUSPENDED pending compliance with the statutory requirements of publication and filing under the aforementioned laws
of the land.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Medialdea, Regalado, Davide, Jr., Romero, Nocon and
Bellosillo, JJ., concur.

G.R. No. L-29236 August 21, 1974

RADIO COMMUNICATIONS OF THE PHILIPPINES, INC., petitioner,

vs.
FRANCISCO SANTIAGO and ENRIQUE MEDINA, as Commissioner, Public Service Commission, respondents.

G.R. No. L-29247 August 21, 1974

RADIO COMMUNICATIONS OF THE PHILIPPINES, INC., petitioner,

vs.
CONSTANCIO JAUGAN and ENRIQUE MEDINA, Commissioner, Public Service Commission, respondents.

Jose B. Trenas & Cecero L. Aligaen for petitioner.

Generoso Almario for respondents.

FERNANDO, J.:p

It is a legal question of significance that was raised in these two petitions for review, to be decided jointly. It is whether the
Public Service Commission, no longer in existence by virtue of the Presidential Decree reorganizing the executive branch
of the national government 1 had the jurisdiction to act on complaints by dissatisfied customers of petitioner Radio
Communications of the Phil., Inc. and thereafter to penalize it with a fine. In Radio Communications of the Phil., Inc. v.
Francisco Santiago & Enrique Medina, as Commissioner, Public Service Commission 2 the dispositive portion of the
challenged order insofar as pertinent reads thus: "[Wherefore], under Section 21 of the Public Service Act as amended,
the respondent operator of Radio Communications of the Philippines, Inc. (RCPI) is hereby ordered to pay a fine of [two
 15

hundred pesos](P200.00) within fifteen (15) days from receipt hereof, with the warning that failure to pay the said fine
within the aforecited period of time, will leave the Commission no other alternative but to suspend the rates authorized for
the operation of respondent herein." 3 In Radio Communications of the Phil., Inc. v. Constancio Jaugan & Enrique Medina,
Commissioner, Public Service Commission, 4 the dispositive portion insofar as pertinent is worded as follows: "[For all the
foregoing considerations], under Section 21 of the Public Service Act as amended, the respondent, operator of Radio
Communications of the Philippines, Inc. (RCPI) is hereby ordered to pay a fine of Two Hundred Pesos (P200.00) within
fifteen (15) days from receipt hereof, with a warning that failure to pay the said fine within the aforecited period of time, will
leave the Commission no other alternative but to suspend and revoke the rates authorized, for the operation of
respondent herein." 5 The allegation by petitioner that it was devoid of such competence is based on the express limitation
found in the Public Service Act 6 expressly exempting radio companies from the jurisdiction, supervision and control of
such body "except with respect to the fixing of rates." 7 In the face of the provision itself, it is rather apparent that the Public
Service Commission lacked the required power to proceed against petitioner. There is nothing in Section 21 thereof which
impowers it to impose a fine that calls for a different conclusion. 8 We have to reverse.

There is no dispute as to the facts. The challenged order in Radio Communications of the Phil., Inc. v. Santiago and
Medina stated: "It is admitted by respondent [now petitioner] that on July 12, 1966, a telegram was filed with respondent-
company and the amount of P1.50 was paid for the transmission of said telegram to Zamboanga City .... The telegram,
however, was never transmitted until now. The respondent not only did not give any valid explanation, but did not present
any evidence to explain why the said telegram was not forwarded to the addressee until now. This is, therefore, a clear
case where the respondent, taking advantage of the rates fixed by this Commission collected the sum of P1.50 and
promised to render a service to the complainant, i.e. the transmission of his telegram filed on July 12, 1966; but, after
receiving the sum of P1.50, respondent failed to render the promised service," 9 in Radio Communications of the Phil., Inc.
v. Jaugan and Medina, the order sought to be reviewed had this to say: "The evidence presented shows that on August 1,
1967, complainant Constancio Jaugan filed a telegram at the branch office of respondent in Dumaguete City, ...
addressed to Commissioner Enrique Medina, PSC, Manila. The telegram was received by an employee of the
respondent, Mrs. Jesusa A. Orge, as shown by the receipt ... dated August 1, 1967, and the sum of P2.64 was collected
in payment of said telegram. The telegram, ... in effect, advised Commissioner Medina that the Land Registration Case
where he was cited by subpoena to testify before the CFI of Oriental Negros on August 14 and 15, 1967, was transferred
and, therefore, there was no necessity for the said Commissioner to proceed to Negros Oriental on those dates. It
appears that the said telegram received by Jesusa Orge at Dumaguete City on August 1, 1967, was transmitted to Manila,
on the same date, but was never delivered to the addressee, and on August 14 and 15, when Commissioner Medina
appeared before the Dumaguete Court, he was advised that the case was postponed since August 1 and that a telegram
was sent to the said Commissioner. Inquiries were made, why the telegram was not received by the Commissioner in
Manila; the Dumaguete Office communicated with the Manila Office, on the same date, August 14, 1967 and it was only
on August 15, 1967 that the telegram was relayed to the Public Service Commission and was received by one of the
employees of the Commission, in the absence of Commissioner Medina who was then in Negros Oriental. ... ." 10 It was
the manifest failure in both cases to render the service expected of a responsible operator that led to the imposition of the
penalty. The motions for reconsideration in both cases having proved futile, the matter was elevated to this Court.

As noted at the outset, a reversal is called for.

1. Except for constitutional officials who can trace their competence to act to the fundamental law itself, a public official
must locate in the statute relied upon a grant of power before he can exercise it. It need not be express. It may be implied
from the wording of the law. Absent such a requisite, however, no warrant exists for the assumption of authority. The act
performed, if properly challenged, cannot meet the test of validity. It must be set aside. So it must be in these two
petitions. That is to defer to a principle reiterated by this Court time and time again. 11 That doctrine goes back to a 1916
decision, Bautista v. Angeles, 12 where Chief Justice Arellano stated the following: "It devolves upon the judicial power to
convince the private individual, the party governed, that he has no right to do what he did in violating orders of the
administrative authorities issued by them in the exercise of their rights. Once he is convinced, the administrative
authorities, by virtue of their own powers, impose the weight of their authority upon him. If they, the administrative
authorities of public officials, exceed lawful limits in the exercise of their power of execution, the law provides what shall
be done before the judicial power can step in and repair the damage to the private interest, or apply the law by declaring
what was properly or improperly done in exercising public power." 13 There is likewise this relevant excerpt from Villegas
v. Subido: 14 "Nothing is better settled in the law than that a public official exercises power, not rights. The government
itself is merely an agency through which the will of the state is expressed and enforced. Its officers therefore are likewise
agents entrusted with the responsibility of discharging its functions. As such there is no presumption that they are
empowered to act. There must be a delegation of such authority, either express or implied. In the absence of a valid grant,
they are devoid of power. What they do suffers from a fatal infirmity. That principle cannot be sufficiently stressed. In the
appropriate language of Chief Justice Hughes: 'It must be conceded that departmental zeal may not be permitted to
 16

outrun the authority conferred by statute.' Neither the high dignity of the office nor the righteousness of the motive then is
an acceptable substitute. Otherwise the rule of law becomes a myth. Such an eventuality, we must take all pains to
avoid." 15 Such a fundamental postulate applies to the Executive itself. So it has been attested by a number of cases
involving the President of the Philippines. 16

There can be no justification then for the Public Service Commission imposing the fines in these two petitions. The law
cannot be any clearer. The only power it possessed over radio companies, as noted was the fix rates. 17 It could not take
to task a radio company for any negligence or misfeasance. It was bereft of such competence. It was not vested with such
authority. What it did then in these two petitions lacked the impress of validity.

2. The Public Service Commission having been abolished by virtue of a Presidential Decree, as set forth at the outset,
and a new Board of Communications having been created to take its place, nothing said in this decision has reference to
whatever powers are now lodged in the latter body. It is to be understood, likewise, that insofar as the complainants are
concerned, this decision goes no further than to rule adversely on the exercise of authority by the Public Service
Commission when it took disciplinary action against petitioner.

WHEREFORE, in L-29236, Radio Communications of the Phil., Inc. v. Francisco Santiago and Enrique Medina, the order
of former Commissioner Enrique Medina of October 13, 1967 as affirmed by the order of the Public Service Commission
en banc of May 3, 1968, is reversed and set aside, and in L-29247, Radio Communications of the Phil., Inc. v. Constancio
Jaugan and Enrique Medina, the order of former Commissioner Enrique Medina of October 10, 1967 as affirmed by the
order of the Public Service Commission en banc of April 4, 1968, is reversed and set aside. No costs.

Zaldivar (Chairman), Barredo, Antonio, Fernandez and Aquino, JJ., concur.

Footnotes

1 Presidential Decree No. 1 (September 24, 1972) and Letter of Implementation No. 1 activating the
Board of Transportation to take the place of the abolished Public Service Commission (September 24,
1972).

2 L-29236.

3 Annex B to Petition.

4 L-29247.

5 Annex C to Petition.

6 Commonwealth Act No. 146, as amended (1936).

7 The first paragraph of Section 13(a) of the Public Service Act reads in part: "The Commission shall have
jurisdiction, supervision and control over all public services and their franchises, equipment, and other
properties, and in the exercise of its authority, it shall have the necessary powers and the aid of the public
force: ... ." Section 14 of the same Act insofar as it refers to radio companies reads as follows: "The
following are exempted from the provisions of the preceding section: (e) Radio companies except with
respect to the fixing of rates; ...

8 The first paragraph of Section 21 of the Public Service Act reads: Every public service violating or failing
to comply with the terms and conditions of any certificate or any orders, decisions or regulations of the
Commission shall be subject to a fine of not exceeding two hundred pesos per day for every day during
which such default or violation continues; and the Commission is hereby authorized and empowered to
impose such fine, after due notice and hearing."

9 Annex B to Petition.
 17

10 Annex C to Petition.

11 Cf. Bautista v. Angeles, 34 Phil. 580 (1916); Chua Pua Hermanos v. Register of Deeds, 50 Phil. 670
(1927); Philippine Co-op Livestock Association v. Earnshaw, 59 Phil. 129 (1933); Aglipay v. Ruiz, 64 Phil.
201 (1937); Suanes v. Chief Accountant, 81 Phil. 818 (1948); Francia v. Pecson, 87 Phil. 100 (1950);
Atienza v. Phil. Charity Sweepstakes, 90 Phil. 478 (1951); Pagkanlungan v. De la Fuente, 92 Phil. 94
(1952); Palma v. Graciano, 99 Phil. 72 (1956); Tapales v. President of the University,
L-17523, March 30, 1963, 7 SCRA 553; Villaluz v. Zaldivar, L-22754, Dec. 31, 1965, 15 SCRA 710;
Sarcos v. Castillo, L-29755, Jan. 31, 1969, 26 SCRA 853; Villegas v. Subido, L-26534, Nov. 28, 1969, 30
SCRA 498.

12 34 Phil. 580 (1916).

13 Ibid, 583.

14 L-26534, November 28, 1969, 30 SCRA 498.

15 Ibid, 510-511.

16 Cf. Araneta v. Dinglasan, 84 Phil, 368 (1949); Lacson v. Romero, 84 Phil. 740 (1949); De los Santos v.
Mallare, 87 Phil. 289 (1950); Lacson v. Roque, 92 Phil. 456 (1953); Rodriguez v. Gella, 92 Phil. 603
(1953); Jover v. Borra, 93 Phil. 506 (1953); Hebron v. Reyes, 104 Phil. 179 (1958); Aytona v. Castillo, L-
19313, Jan 19, 1962, 4 SCRA 1; Climaco v. Macadaeg, L-19440, April 18, 1962, 4 SCRA 930; Garcia v.
Executive Secretary, L-19748, Sept. 13, 1962, 6 SCRA 1; Gonzales v. Hechanova,
L-21897, Oct. 22, 1963, 9 SCRA 230; Rodriguez v. Quirino, L-19800, Oct. 28, 1963, 9 SCRA 284; Ang-
Angco v. Castillo, L-17169, Nov. 30, 1963, 9 SCRA 619; Bolinao Electronics Corp. v. Valencia, L-20740,
June 30, 1964, 11 SCRA 486; Pelaez v. Auditor General, L-23825, Dec. 24, 1965, 15 SCRA 569;
Guevarra v. Inocentes, L-25577, March 15, 1966, 16 SCRA 379.

17 Commonwealth Act No. 146, as amended (1936).

G.R. No. 100127. April 23, 1993.

JOSE D. LINA, JR., petitioner,

vs.
ISIDRO D. CARINO, in his capacity as Secretary of Education, Culture and Sports, respondents.

Roberto N. Dio of Castillo, Laman, Tan and Pantaleon for petitioner.

The Solicitor General for public respondent.

Ulpiano P. Sarmiento III for intervenor Catholic Educational Association of Colleges and Universities (CEAP).

Antonio Abad of Abad, Leano and Associates for intervenor Philippine Association of Colleges and Universities (PACU).

SYLLABUS
 18

1. ADMINISTRATIVE LAW; BRIEF HISTORICAL NOTE ON THE POWER OF THE DECS SECRETARY TO REGULATE
TUITION AND OTHER FEES CHARGED BY PRIVATE SCHOOLS. — It may be instructive to recall the following brief
historical note set out in the Court's Decision on the Cebu Institute case: ". . . As early as March 10, 1917, the power to
inspect private schools, to regulate their activities, to give them official permits to operate under certain conditions and to
revoke such permits for cause was granted to the then Secretary of Public Instruction by Act No. 2706 as amended by Act
No. 3075 and Commonwealth Act No. 180. Republic Act No. 6139, enacted on August 31, 1970, provided for the
regulation of tuition and other fees charged by private schools in order to discourage the collection of exorbitant and
unreasonable fees. In an effort to simplify the 'cumbersome and time consuming' procedure prescribed under Rep. Act
No. 6139 and `to alleviate the sad plight of private schools,' Pres. Dec. No. 451 was enacted on May 11, 1974. While this
later statute was being implemented, the legislative body envisioned a comprehensive legislation which would introduce
changes and chart directions in the educational system, hence, the enactment of B.P. Blg. 232 . . ."

2. ID.; THE DECS SECRETARY HAS THE LEGAL AUTHORITY TO SET MAXIMUM PERMISSIBLE RATES OR LEVELS
OF TUITION AND OTHER SCHOOL FEES, AND TO ISSUE GUIDELINES FOR THE IMPOSITION AND COLLECTION
THEREOF, LIKE DECS ORDER NO. 30; REASONS.

a. THE COURT DID NOT RULE IN THE CEBU INSTITUTE CASE THAT THE POWER GRANTED TO THE DECS
SECRETARY TO FIX MAXIMUM PERMISSIBLE TUITION AND OTHER SCHOOL FEES BY SECTION 1 OF P.D. NO.
451 HAD BEEN ELIMINATED BY SECTION 42 OF B.P. BLG. 232. — We are unable to agree with intervenor CEAP that
Cebu Institute had the effect of withdrawing from respondent DECS Secretary the power to regulate, and to promulgate
rules and regulations relating to, the imposition and collection of tuition and other school fees. A close reading of the
opinion of this Court in the Cebu Institute case shows that the Court did not rule that the power granted to the DECS
Secretary to fix maximum permissible tuition and other school fees by Section 1 of P.D. No. 451 had been eliminated by
Section 42 of B.P. Blg. 232. What the Court dealt with in the Cebu Institute case was the matter of the detailed allocation
of the proceeds of increases in tuition and other school fees. In respect of this specific question, there is no dispute that
Section 42 of B.P. Blg. 232 did modify P.D. No. 451 by authorizing the DECS Secretary to issue rules and regulations
relating to the detailed allocation of funds raised by tuition and other fee increases to various categories of uses and
expenditures.

b. THERE IS NOTHING IN SECTION 42 OF B.P. BLG. 232 WHICH ELIMINATES THE POWER OF THE DECS
SECRETARY IN RESPECT OF THE FIXING OF MAXIMUM TUITION AND OTHER SCHOOL FEES VESTED IN HIM BY
P.D. NO. 451; UNDER SAID SECTION 42, THE RATE OF TUITION AND OTHER SCHOOL FEES OR CHARGES
DETERMINED BY THE PRIVATE SCHOOL ITSELF IS SUBJECT TO RULES AND REGULATIONS PROMULGATED BY
THE DECS. — An examination of the precise language of Section 42 of B.P. Blg. 232 shows that there is really nothing in
Section 42 which must be read as eliminating the power of the DECS Secretary in respect of the fixing of maximum tuition
and other school fees vested in him by P.D. No. 451. Under Section 42, a private school may determine for itself in the
first instance the rate of tuition and other school fees or charges that it deems appropriate. Such determination by the
private school is not, however, binding and conclusive as against the Secretary of Education, Culture and Sports. The
rates and charges adopted by such private school "shall be collectible, and their application or use authorized" provided
that such rates and charges are in accord with rules and regulations promulgated by the DECS . . . We do not read the
first sentence of Section 42 as granting an unlimited power to private schools to establish any rate of tuition and other
school fees and charges that it may desire and to enforce collection of such fees or charges from students. We think it
entirely clear that the second sentence of Section 42 is a limiting provision, that is, a provision which, far from authorizing
a private school to adopt any level of tuition and other school fees or charges no matter how exorbitant, subjects the
schedule of rates and charges adopted by a particular school to the rules and regulations promulgated by the DECS.
Thus, the rates and charges adopted by any given private school shall be "collectible," i.e., enforceable against the
students and their parents, to the extent that they are consistent with DECS rules and regulations. Put a little differently,
the second sentence of Section 42 deals with two (2) distinguishable subjects: (a) the enforceability of rates of fees and
charges adopted by private schools; and (b) the enforceability of proposed applications or uses of the proceeds of such
school fees or charges — and both are declared subject to rules and regulations promulgated by the DECS.

c. R.A NO. 6728 DEALS WITH GOVERNMENT ASSISTANCE TO STUDENTS AND TEACHERS IN PRIVATE
SCHOOLS; IT DOES NOT DEAL WITH THE QUESTION OF, NEITHER DOES IT VEST UPON THE SAC, AUTHORITY
TO FIX MAXIMUM COLLECTIBLE TUITION AND OTHER SCHOOL FEES. — We turn to the argument of petitioner Lina
that the DECS Secretary was divested of his authority to promulgate rules and regulations relating to the fixing of tuition
and other school fees, by R.A. No., 6728, and that such authority has been transferred instead to the SAC. The Court is
unable to agree with this contention. We do not see how R.A. No. 6728 could be regarded as vesting upon the SAC the
legal authority to establish maximum permissible tuition and other school fees for private schools. As earlier noted, R.A.
No. 6728 deals with government assistance to students and teachers in private schools; it does not, in other words,
 19

purport to deal at all with the question of authority to fix maximum collectible tuition and other school fees. R.A. No. 6728
did authorize the SAC to issue rules and regulations; but the rules and regulations which may be promulgated by the SAC
must relate to the authority granted by R.A. No. 6728 to the SAC. It is axiomatic that a rule or regulation must bear upon,
and be consistent with, the provisions of the enabling statute if such rule or regulation is to be valid. The SAC was
authorized to define the classes of students who may be entitled to claim government financial assistance. Under the
statute, students of schools charging tuition and other school fees in excess of certain identified rates or levels thereof
shall not be entitled to claim government assistance or subsidies. The specification of such levels of tuition and other
school fees for purposes of qualifying (or disqualifying) the students in such schools for government financial assistance is
one thing; this is the task SAC was authorized to carry out through the promulgation of rules and regulations. The
determination of the levels of tuition and other school fees which may lawfully be charged by any private school, is clearly
another matter; this task is vested in respondent Secretary.

3. ID.; THE CONSULTATION REQUIREMENT IN R.A. NO. 6728 APPLIES ONLY TO INCREASES IN TUITION FEES,
NOT TO INCREASES IN OTHER SCHOOL FEES. — In respect of the second principal issue, petitioner Lina contends
that Section 1(d) of DECS Order No. 30 is inconsistent with Section 10 of R.A. No. 6728. We have earlier pointed out that
petitioner's stand is inconsistent with the very language used in Section 10 of R.A. No. 6728 which states in relevant part
that: "in any proposed increase in the rate of tuition fees, there shall be appropriate consultations — " Petitioner Lina's
argument here is, however, essentially an invocation of "justice and equity." . . . The Court believes that petitioner's
argument — cogent though it may be as a social and economic comment -- is most appropriately addressed, not to a
court which must take the law as it is actually written, but rather to the legislative authority which can, if it wishes, change
the language and content of the law. As Section 10 of R.A. No. 6728 now stands, we have no authority to strike down
paragraph 1 (d) of DECS Order No. 30 as inconsistent with the requirements of Section 10.

DECISION

FELICIANO, J p:

This is a Petition for Prohibition and Mandamus filed by petitioner Senator Jose D. Lina, Jr., principally as taxpayer,
against respondent Isidro D. Cariño, in the latter's capacity as the then Secretary of the Department of Education, Culture
& Sports ("DECS"). Petitioner disputes the legal authority of respondent Cariño to issue DECS Order No. 30, series of
1991, dated 11 March 1991, entitled "Guidelines on Tuition and/or other School Fees in Private Schools, Colleges and
Universities for School Year 1991-1992." DECS Order No. 30 allows private schools to increase tuition and other school
fees, subject to the guidelines there set out. The complete text of DECS Order No. 30 is reproduced here for ready
reference.

"1. In response to the clamor from the regions for guidelines responsive to the needs and conditions peculiar to these
areas, and in consideration of the regional wage orders, schools may increase their tuition fees as approved by the State
Assistance Council (SAC) in accordance with the following guidelines:

a. Entering Freshmen. — The tuition fee rates for entering freshmen in all levels may be determined by the school itself,
subject to consultation. However, no consultation is required when the amount of increase will raise the tuition fee level to
not more than P80.00 per unit for the tertiary schools and to not more than P1,500 per year for the elementary and
secondary schools.

b. Upper Year Students. — Schools may increase their tuition fees for the upper year students in accordance with the
following prescribed rates:

Religion Prescribed Tuition Fee Increase:

Per Unit Per Year

(Tertiary) (Elem. & Sec.)

I 6.50 158.00

II 5.50 135.00
 20

III 7.50 180.00

IV 7.00 160.00

V 7.50 181.00

VI 7.00 175.00

VII 5.00 121.00

VIII 4.00 101.00

IX 5.50 132.00

X 6.00 141.00

XI 7.00 162.00

XII 6.50 157.00

NCR 9.50 226.50

CAR 5.50 133.00

Tuition fee increases within the prescribed rates above shall not require consultation and DECS approval provided that a
notice of increase is submitted to the DECS regional office not later than April 30, 1991. Schools may increase up to a
maximum rate of 25% for programs below Level II accreditation and up to a maximum of 30% for programs with Level II
and Level III accreditation based on approved tuition fee rates in school year 1990-1991, subject to consultation.

c. Emergency Tuition Fee Assessment. — To comply with the provisional emergency cost of living allowances mandated
by the Regional Tripartite Wages and Productivity Boards of Regions VI, VII, VIII, IX, X, XI, XII and the NCR, schools in
these regions may collect an emergency tuition fee assessment from both the entering freshmen and the upper year
students in all levels in accordance with the following schedule:

[Schedule of Fees follows]

The above Prescribed emergency tuition fee assessments shall be collected only in school year 1991-1992 and shall not
form part of the approved tuition fee rates. Consultation and DECS approval shall not be required. However, a notice of
collection shall be submitted to the DECS regional office not later than April 30, 1991.

(Note 1: The prescribed emergency tuition fee assessment for NCR will take effect only upon final resolution of a pending
petition for exemption.)

d. Other Fees. — Schools in all levels may increase the rates of other fees by not more than 10%. Consultation and
DECS approval shall not be required provided that a notice of increase is submitted to the DECS regional office not later
than April 30, 1991.

e. For schools desiring to increase their tuition and/or other fees beyond what are prescribed in sections a, b, and d but
whose programs are below Level II accreditation, the following must be submitted to DECS regional offices for evaluation
and approval/disapproval:

(1) A certification by the school head, properly notarized, stating (a) that the 70% share of tuition fee increases collected in
June 1990 was distributed to the teaching and non-teaching personnel in the form of salaries, wages, allowances, and
other benefits in compliance with Section 5.2.c of R.A. 6728, and (b) that the P25.00 mandated wage order in 1989 and
the applicable regional wage orders in November 1990 were implemented.
 21

(2) Schedule of tuition and other fees of the previous year.

(3) Schedule of proposed increase of tuition and fees for the current school year.

(4) Audited financial statements for two (2) years immediately preceding the current year.

No school may collect any increase in tuition and other fees prior to DECS approval. Deadline for filing of application is
May 30, 1991.

(f) Consultation. — As defined in this Order, consultation shall mean a conference conducted by the school administration
with duly organized parents-teachers associations and faculty associations with respect to elementary and secondary and
with student governments or councils, alumni and faculty associations with respect to tertiary schools as provided for in
Section 10 of R.A. 6728.

(1) The consultation process involves at least two weeks' notice to all the parties above-mentioned. A meeting of all
sectors is held during which views and positions on or reactions to the proposed increase in tuition and other fees shall be
discussed. Every sincere effort shall be exerted to allow all sectors concerned to express themselves freely in order to
arrive at an acceptable compromise. However, consultation does not necessarily mean agreement.

(2) In case of disagreement, parties involved may choose the alumni association of the school or any other impartial body
of their choice as arbiter.

(3) Any of the parties in disagreement with the decision of the arbiter may elevate the decision to DECS Central Office
which shall make the final decision.

g. Sanctions. — Sanctions as stipulated under DECS Order No. 50, s. 1990 still apply.

h. Government Tuition Fee Supplement. — Financial assistance for tuition of students in private schools, colleges and
universities shall be provided by the government as follows:

(1) For students enrolled in high schools which charge less than one thousand five hundred Pesos (P1,500.00) per year in
tuition and other fees during school year 1990-91, the government shall provide them with a voucher equal to two hundred
ninety pesos (P290.00) provided that the student pays in school year 1991-1992 tuition and other fees equal to the tuition
and other fees paid during the preceding academic year.

(2) For fourth and fifth year students enrolled in priority courses, as determined by DECS, in private schools, colleges and
universities that charge an effective per unit tuition rate of eighty pesos (P80.00) or less in SY 1990-91, the government
shall provide each student with a voucher to cover the tuition increase, up to twelve pesos (P12.00) per unit.

2. Guidelines on tuition and/or other school fees for the pre-elementary program will be covered by a separate DECS
Order.

3. This Order takes effect immediately and supersedes all other DECS issuances inconsistent herewith."

It is useful to summarize the positions taken respectively by the parties and the intervenors.

1. Petitioner

Petitioner basically denies the legal authority of respondent Secretary to issue DECS Order No. 30. It is the contention of
petitioner that respondent Secretary at the time of issuing DECS Order No. 30, no longer possessed legal authority to do
so, considering that authority to promulgate rules and regulations relating to the imposition of school fees had been
transferred to the State Assistance Council ("SAC") by Republic Act No. 67Z8. 1
 22

Earlier, i.e. in 1987, the DECS Secretary issued an Order authorizing private schools to increase their school fees by as
much as 10% to 15% of the preceding year's rates. The Philippine Consumers Foundation, Inc. initiated an action
questioning the legal authority of the DECS Secretary to issue such Order on the ground that the power of the DECS
Secretary to regulate school fees did not include the power to authorize an increase in school fees. In Philippine
Consumers Foundation, Inc. v. Secretary of Education, Culture & Sports, 2 the Court rejected the argument of Philippine
Consumers Foundation, Inc. ("Phil. Consumers") and held that since no other government agency was vested with the
authority to fix maximum school fees, that power should be considered lodged with the DECS Secretary.

It is claimed by petitioner, however, that the ruling in Phil. Consumers was superseded by R.A. No. 6728 which expressly
conferred authority to promulgate rules and regulations upon the SAC. Petitioner here relies on Section 14 of R.A. No.
6728 to sustain his position —

"Sec. 14. Program Administration-Rules and Regulations. — The State Assistance Council shall be responsible for policy
guidance and direction, monitoring and evaluation of new and existing programs, and the promulgation of rules and
regulations, while the Department of Education, Culture & Sports shall be responsible for the day to day administration
and program implementation. Likewise, it may engage the services and support of any qualified government or private
entity for its implementation.

xxx xxx xxx"

(Emphasis supplied).

Petitioner also contends that DECS Order No. 30 is inconsistent with Section 10 of R.A. No. 67Z8. In DECS Order No. 30
(Section 1 [d], supra), respondent Secretary exempted increases in school fees other than tuition fee (or "other school
fees" as distinguished from "tuition fee") from application of the consultation requirement. Upon the other hand, Section 10
of R.A. No. 6728 provides:

"Sec. 10. Consultation. — In any proposed increase in the rate of tuition fee, there shall be appropriate consultations
conducted by the school administration with the duly organized parents and teachers associations and faculty
associations with respect to secondary schools, and with student governments or councils, alumni and faculty
associations with respect to colleges. For this purpose, audited financial statements shall be made available to authorized
representatives of these sectors. Every effort shall be exerted to reconcile possible differences. In case of disagreement,
the alumni association of the school or any other impartial body of their choosing shall act as arbitrator." (Emphasis
supplied).

According to petitioner, Section 10 above notwithstanding its wording, covers increases in all types of school fees, which
increases must first comply with the requirement of consultation before promulgation in order that prohibitive and
burdensome fees (of any type) may be avoided. 3

In fine, petitioner asks us to declare DECS Order No. 30 null and void on two (2) grounds: (1) that respondent Secretary
does not have the legal authority to issue that Order, and (2) that DECS Order No. 30 violates Section 10 of R.A. No.
6728 which established a comprehensive requirement of consultation.

2. Respondent Secretary

The Solicitor General, representing respondent Secretary, maintains that the power to prescribe maximum tuition and
other school fees granted under B.P. Blg: 232 was not withdrawn by R.A. No. 6728 and remains vested in the DECS
Secretary. The Solicitor General rests his position here on the decision of this Court in the Phil. Consumers case. The
Solicitor General concedes that R.A. No. 6728 granted unto the SAC the power to promulgate rules and regulations, but
argues that only rules and regulations relevant to the purpose of that law, i.e. government assistance and subsidy to
students and teachers in private schools, may be promulgated by the SAC. In essence, the rules which may be
promulgated by the SAC are those involving a determination of the maximum rates of tuition fee in private schools
payment of which would not disqualify students thereof from availing themselves of government assistance in the form of
tuition fee supplements, and from access to the high school textbook assistance fund and to tuition fee waiver programs.

The Solicitor General further contends that DECS Order No. 30 conforms substantially with the consultation requirement
of R.A. No. 672B, except item 1 (a) of DECS Order No. 30 which unqualifiedly allows private colleges and universities to
 23

raise the tuition fee in the tertiary level to not more than P80.00 per unit without prior consultation. He therefore urges that
DECS Order No. 30 be upheld, save only paragraph 1(a) thereof which he considers to be inconsistent with the
consultation requirement. 4

3. Intervenor PACU

Intervenor Philippine Association of Colleges and Universities (PACU) is an association of one hundred eleven (111)
privately-owned educational institutions, both proprietary and non-proprietary in character. PACU filed, with leave granted
by this Court on 13 August 1991, a Motion for Intervention and an accompanying Comment in Intervention, claiming that it
would be affected by the outcome of the petition at bar.

Intervenor PACU does not deny the authority of the DECS Secretary to promulgate rules and regulations with respect to
the collection, application and use of tuition fee increases as provided in B.P. Blg. 232. Like respondent Secretary,
intervenor PACU asks us to affirm the ruling of the Court in Phil. Consumers (supra). Intervenor PACU does not believe
that R.A. No. 6728 could have repealed B.P. Blg. 232 because these two (2) statutes deal with separate and independent
subjects and were enacted for different purposes.

Intervenor PACU questions DECS Order No. 30 only with respect to Paragraph 1 (a) which it perceives does not conform
with the consultation requirement. Upon the other hand, intervenor PACU, traversing the position of petitioner, asserts that
Section 10 of R.A. No. 6728 refers only to increases in tuition fees, and that accordingly, consultation does not apply to
increases in other school fees, the latter kind of fees not being mentioned in Section 10.

4. Intervenor CEAP

Intervenor Catholic Educational Association of the Philippines ("CEAP") is an organization of Catholic schools and
universities with a total membership of 1,191 institutions. With leave granted by this Court also on 13 August 1991, the
CEAP filed a Comment in Intervention.

Unlike intervenor PACU, intervenor CEAP relies on the ruling of the Court in Cebu Institute of Technology v. Ople. 5
Relying principally on the following portion of the decision in the Cebu Institute case —

"The Court after comparing section 42 of B.P. Blg. 232 and Pres. Dec. No. 451, particularly section 3(a) thereof, finds
evident irreconcilable differences.

Under Pres. Dec. No. 451, the authority to regulate the imposition of tuition and other school fees or charges by private
schools is lodged with the Secretary of Education and Culture (Sec. 1), whereas section 42 of B.P. Blg. 232 liberalized the
procedure by empowering each private school to determine its rate of tuition and other school fees or charges." 6

intervenor CEAP maintains that neither the DECS Secretary nor the SAC may fix maximum tuition and other school fees
which private schools may lawfully charge. In the view of intervenor CEAP, the fixing of such fees is the exclusive
prerogative of the private schools themselves. It therefore urges the Court to strike down DECS Order No. 30 as null and
void in its entirety.

Intervenor CEAP, however, adheres to the view of intervenor PACU on consultation, that is, that the imposition of other
school fees (non-tuition fees) is not subject to a consultation requirement.

II

The principal issues raised by the parties may be restated in the following manner:

(1) Whether DECS Order No. 30 is valid, that is, whether respondent DECS Secretary has the legal authority to issue
DECS Order No. 30 prescribing guidelines concerning increases in tuition and other school fees: and

(2) Whether the consultation requirement in R.A. No 6723 applies not only to increases in tuition fees but also to
increases in other school fees.
 24

In respect of the first issue, it may be instructive to recall the following brief historical note set out in the Court's Decision
on the Cebu Institute case:

". . . As early as March 10, 1917, the power to inspect private schools, to regulate their activities, to give them official
permits to operate under certain conditions and to revoke such permits for cause was granted to the then Secretary of
Public Instruction by Act No. 2706 as amended by Act No. 3075 and Commonwealth Act No. 180. Republic Act No. 6139,
enacted on August 31, 1970, provided for the regulation of tuition and other fees charged by private schools in order to
discourage the collection of exorbitant and unreasonable fees. In an effort to simplify the 'cumbersome and time
consuming' procedure prescribed under Rep. Act No. 6139 and 'to alleviate the sad plight of private schools,' Pres. Dec.
No. 451 was enacted on May 11, 1974. While this later statute was being implemented, the legislative body envisioned a
comprehensive legislation which would introduce changes and chart directions in the educational system, hence, the
enactment of B.P. Blg. 232 . . ." 7

Petitioner Lina and intervenor CEAP contend that DECS Order No. 30 is null and void, upon the other hand, respondent
Secretary and intervenor PACU insist that DECS Order No. 30 is valid.

P.D. No. 451, entitled "Authorizing the Secretary of Education and Culture to Regulate the Imposition of Tuition and Other
School Fees, Repealing R.A. No. 6139, and For Other Purposes" and promulgated on 11 May 1974, explicitly authorized
the DECS Secretary not only "to regulate" but also to fix the very tuition and other school fees to be charged by any
particular private school. Section 1 of this statute provides as follows:

"Sec. 1. Authority of Secretary of Education and Culture. — Within the limits and under the circumstances set forth in this
Decree, the Secretary of Education and Culture shall have the authority to regulate the imposition of tuition and other
school fees or charges by any and all private schools as defined under Act Numbered Two thousand seven hundred and
six, as amended. No changes in the rates of tuition or other school fees or charges shall be effective without the prior
approval of the Secretary of Education and Culture. New school fees or charges to be imposed by new or existing
schools, whether for new courses or other matters, shall be at such reasonable rates as may be determined by the
Secretary of Education and Culture based on the standard of such school." (Emphasis supplied).

B.P. Blg. 232, known as the "Education Act of 1982," was passed by the Batasan on 11 September 1982. The Provisions
of B.P. Blg. 232 pertinent for present purposes are the following:

"Sec. 42. Tuition and Other School Fees. — Each private school shall determine its rate of tuition and other school fees or
charges. The rates and charges adopted by schools pursuant to this provision shall be collectible, and their application or
use authorized, subject to rules and regulations promulgated by the Ministry of Education, Culture and Sports.

xxx xxx xxx

Sec. 57. Functions and Powers of the Ministry. — The Ministry shall:

1. Formulate general education objectives and policies, and adopt long-range educational plans:

2. Plan, develop and implement programs and projects in education and culture;

3. Promulgate rules and regulations necessary for the administration, supervision and regulation of the educational
system in accordance with declared policy;

4. Set up general objectives for the school system;

5. Coordinate the activities and functions of the school system and various cultural agencies under it;

6. Coordinate and work with agencies concerned with the educational and cultural development of the national cultural
communities; and

7. Recommend and study legislation proposed for adoption."

 25

xxx xxx xxx

Sec. 70. Rule-Making Authority. — The Minister of Education, Culture and Sports charged with the administration and
enforcement of this Act, shall promulgate the necessary implementing rules and regulations." (Emphasis supplied).

In the Phil. Consumers case, 8 as earlier noted, in sustaining Department Order No. 37, the Court. citing certain sections
of B.P. Blg. 232 concluded that legal authority to issue that Department Order was vested in the DECS Secretary:

"We are not convinced by the argument that the power to regulate school fees 'does not always include the power to
increase' such fees. Such 57 (3) of Batas Pambansa Blg. 232, otherwise known as the Education Act of 1982. vests the
DECS with the power to regulate the educational system in the country, to wit:

'Sec. 57. Educations and Powers of the Ministry. — The Ministry shall:

xxx xxx xxx

(3) Promulgate rules and regulations necessary for the administration supervision and regulation of the educational
system in accordance with declared policy.

xxx xxx xxx'

Section 70 of the same Act grants the DECS the power to issue rules which are likewise necessary to discharge its
functions and duties under the law, to wit:

'Sec. 70. Rule-making Authority. — The Minister of Education and Culture, charged with the administration and
enforcement of this Act, shall promulgate the necessary implementing rules and regulations.'

In the absence of a statute stating otherwise, this power includes the power to prescribe school fees. No other
government agency has been vested with the authority to fix school fees and as such, the power should be considered
lodged with the DECS if it is to properly and effectively discharge its functions and duties under the law." 9 (Emphasis
supplied).

In the Cebu Institute case, 10 the Court said that Section 42 of B.P. Blg. 232 had amended P.D. No. 451. As already
noted, this ruling in Cebu Institute had led intervenor CEAP to adopt the position — and to urge the same upon us — that
under Section 42 of B.P. Blg. 232, private schools are authorized to fix and collect tuition and other school fees free from
intervention by the DECS Secretary.

After careful examination of the provisions of both P.D. No. 451 and BP. Blg. 232, and the opinions of the Court in the
Phil. Consumer case and the Cebu Institute case, as well the lengthy pleadings filed by the parties and the intervenors,
the Court considers that the legal authority of respondent DECS Secretary to set maximum permissible rates or levels of
tuition and other school fees, and to issue guidelines for the imposition and collection thereof, like DECS Order No. 30,
must be sustained.

Firstly, we are unable to agree with intervenor CEAP that Cebu Institute had the effect of withdrawing from respondent
DECS Secretary the power to regulate, and to promulgate rules and regulations relating to, the imposition and collection
of tuition and other school fees.

A close reading of the opinion of this Court in the Cebu Institute case shows that the Court did not rule that the power
granted to the DECS Secretary to fix maximum permissible tuition and other school fees by Section 1 of P.D. No. 451 had
been eliminated by Section 42 of B.P. Blg. 232. What the Court dealt with in the Cebu Institute case was the matter of the
detailed allocation of the proceeds of increases in tuition and other school fees. In respect of this specific question, there
is no dispute that Section 42 of B.P. Blg. 232 did modify P.D. No. 451 by authorizing the DECS Secretary to issue rules
and regulations relating to the detailed allocation of funds raised by tuition and other fee increases to various categories of
uses and expenditures. What the Court, through Cortes, J., did say in the Cebu Institute case was the following:

". . . What then was the effect of B.P. Blg. 232 on Pres. Dec. No. 451?
 26

The Court after comparing section 42 of B.P. Blg. 232 and Pres. Dec. No. 451, particularly section 3(a) thereof, finds
evident irreconcilable differences.

Under Pres. Dec. No. 451, the authority to regulate the imposition of tuition and other school fees or charges by private
schools is lodged with the Secretary of Education and Culture (Sec. 1), where section 42 of B.P. Blg. 232 liberalized the
procedure by empowering each private school to determine its rate of tuition and other school fees or charges.

Pres. Dec. No. 451 provides that 60% of the incremental proceeds of tuition fee increases shall be applied or used to
augment the salaries and wages of members of the faculty and other employees of the school, while B.P. Blg. 232
provides that the increment shall be applied or used in accordance with the regulations promulgated by the MECS.

A closer look at these differences leads the Court to resolve the question in favor of repeal. As Pointed out by the Solicitor
General, three aspects of the disputes provisions of law support the above conclusion. First, the legislative authority under
Pres. Dec. No. 451 retained the power to apportion the incremental proceeds of the tuition fee increases; such power is
delegated to the Ministry of Education and Culture under B.P Blg. 232. Second, Pres. Dec. No. 451 limits the application
or use of the increment to salary or wage increase, institutional development, student assistance and extension services
and return on investment, whereas B.P. Blg. 232 gives the MECS discretion to determine the application or use of the
increments. Third, the extent of the application or use of the increment under Pres. Dec. 451 is fixed at the pre-determined
percentage allocations: 60% for wage and salary increases, 12% for return in investment and the balance of 28% to
institutional development, student assistance and extension services, while under B.P. Blg. 232, the extent of the
allocation or use of increment is likewise left to the discretion of the MECS.

The legislative intent to depart from the statutory limitations under Pres. Dec. No. 451 is apparent in the second sentence
of section 42 of B.P. Blg. 232. Pres. Dec. No. 451 and section 42 of B.P. Blg. 232 which cover the same subject matter,
are so clearly inconsistent and incompatible with each other that there is no other conclusion but that the latter repeals the
former in accordance with section 72 of B.P. Blg. 232 to wit:

xxx xxx xxx

Having concluded that under B.P. Blg. 232 the collection and application or use of tuition and other school fees are
subject only to the limitations under the rules and regulations issued by the Ministry, the crucial point now shifts to the said
implementing rules." 11 (Emphasis supplied)

Secondly, an examination of the precise language of Section 42 of B.P. Blg. 232 shows that there is really nothing in
Section 42 which must be read as eliminating the power of the DECS Secretary in respect of the fixing of maximum tuition
and other school fees vested in him by P.D. No. 451. Under Section 42, a private school may determine for itself in the
first instance the rate of tuition and other school fees or charges that it deems appropriate. Such determination by the
private school is not, however, binding and conclusive as against the secretary of Education, Culture and Sports. The
rates and charges adopted by such private school "shall be collectible, and their application or use authorized" provided
that such rates and charges are in accord with rules and regulations promulgated by the DECS.

It is convenient to quote Section 42 again:

"Sec. 42. Tuition and Other School Fees. — Each Private school shall determine its rate of tuition and other school fees or
charges. The rates and charges adopted by schools pursuant to this provision shall be collectible, and their application or
use authorized, subject to rules and regulations promulgated by the Ministry of Education, Culture and Sports." (Emphasis
supplied).

We do not read the first sentence of Section 42 as granting an unlimited power to private schools to establish any rate of
tuition and other school fees and charges that it may desire and to enforce collection of such fees or charges from
students. We think it entirely clear that the second sentence of Section 42 is a limiting provision, that is, a provision which,
far from authorizing a private school to adopt any level of tuition and other school fees or charges no matter how
exorbitant, subjects the schedule of rates and charges adopted by a particular school to the rules and regulations
promulgated by the DECS. Thus, the rates and charges adopted by any given private school shall be "collectible". i.e.,
enforceable against the students and their parents, to the extent that they are consistent with DECS rules and regulations.
Put a little differently, the second sentence of Section 42 deals with two (2) distinguishable subjects: (a) the enforceability
of rates of fees and charges adopted by private schools: and (b) the enforceability of proposed applications or uses of tile
 27

proceeds of such school fees or charges — and both are declared subject to rules and regulations promulgated by the
DECS.

We turn to the argument of petitioner Lina that the DECS Secretary was divested of his authority to promulgate rules and
regulations relating to the fixing of tuition and other school fees, by R.A. No. 6728, and that such authority has been
transferred instead to the SAC. The Court is unable to agree with this contention. We do not see how R.A. No. 6728 could
be regarded as vesting upon the SAC the legal authority to establish maximum permissible tuition and other school fees
for private schools. As earlier noted, R.A. No. 6728 deals with government assistance to students and teachers in private
schools; it does not, in other words, purport to deal at all with the question of authority to fix maximum collectible tuition
and other school fees. R.A. No, 6728 did authorize the SAC to issue rules and regulations; but the rules and regulations
which may be promulgated by the SAC must relate to the authority granted by R.A. No. 6728 to the SAC. It is axiomatic
that a rule or regulation must bear upon, and be consistent with, the provisions of the enabling statute if such rule or
regulation is to be valid. 12 The SAC was authorized to define the classes of students who may be entitled to claim
government financial assistance. Under the statute, students of schools charging tuition and other school fees in excess
of certain identified rates or levels thereof shall not be entitled to claim government assistance or subsidies. The
specification of such levels of tuition and other school fees for purposes of qualifying (or disqualifying) the students in such
schools for government financial assistance is one thing; this is the task SAC was authorized to carry out though the
promulgation of rules and regulations. The determination of the levels of tuition and other school fees which may lawfully
be charged by any private school, is clearly another matter; this task is vested in respondent Secretary.

It is hardly necessary to add that the Court, in reaching the above conclusion, is not saying that every paragraph and sub-
paragraph of DECS Order No. 30 is necessarily valid and consistent with the provisions of the enabling statute(s). We do
not understand the parties to be asking us to validate or strike down every such paragraph and sub-paragraph.

In respect of the second principal issue, petitioner Lina contends that Section 1(d) of DECS Order No. 30 is inconsistent
with Section 10 of R.A. No. 6728. We have earlier pointed out that petitioner's stand is inconsistent with the very language
used in Section 10 of R.A. No. 6728 which states in relevant part that: "in any proposed increase in the rate of tuition fees,
there shall be appropriate consultations —." Petitioner Lina's argument here is, however, essentially an invocation of
"justice and equity." Petitioner argues that:

". . . [T]here is no basis, legal or otherwise, for the respondent Secretary to view 'other fees' as separate and distinct from
'tuition fee rate' for purposes of the consultation requirement of the law. To exclude the imposition of 'other fees' from the
consultation process would result in an anomalous situation whereby so-called 'other fees' may become so burdensome
that the students and parents concerned may be deprived of the right of being heard or consulted on matter directly
affecting their interest. Justice and equity demand that any increase in the tuition fee, tuition fee assessment or 'other fees'
which in its totality increases the cost of education, should and must be subjected to consultation, as required in Section
10, R.A. No. 6728." 13 (Emphasis supplied).

The Court believes that petitioner's argument — cogent though it may be as a social and economic comment — is most
appropriately addressed. not to a court which must take the law as it is actually written, but rather to the legislative
authority which can, if it wishes, change the language and content of the law. As Section 10 of R.A. No. 6728 now stands,
we have no authority to strike down paragraph 1 (d) of DECS Order No. 30 as inconsistent with the requirements of
Section 10.

Summarizing, the first issue we must answer in the affirmative. To the second issue, we must give a negative answer.

WHEREFORE, for all the foregoing, the Petition for Prohibition and Mandamus is hereby DISMISSED for lack of merit. No
pronouncement as to costs.

SO ORDERED.

Narvasa, C .J ., Cruz, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Quiason, JJ .,
concur.

Padilla, J ., took no part.

Footnotes
 28

1. R.A. No. 6728 is entitled "An Act Providing Government Assistance to Students and Teachers in Private Education, and
Appropriating Funds Therefor."

2. 153 SCRA 626 (1987).

3. Petition, p. 5; Rollo, p. 5.

4. The Secretary of Justice has rendered an opinion (Opinion No. 156, Series of 1989) dealing with the interrelations of
the various provisions of R.A. No. 6728 and suggesting that Section 10 of R.A. No. 6728 does not apply to situations
contemplated in Sections 5(1)(a) and 9(a) of that law, but that Section 10 should apply only to Sections 5(1)(b), 9(b), and
9(c). Paragraph 1(a) of DECS Order No. 30 allegedly falls under Section 9(c) of R.A. No. 6728.

5. 156 SCRA 629 (1987).

6. 156 SCRA at 661.

7. 156 SCRA at 660-661.

8. 153 SCRA 622 (1987).

9. 153 SCRA at 626-627.

10. 156 SCRA 632 (1987).

11. 156 SCRA at 661-662 and 663.

12. Abila v. Civil Service Commission, 198 SCRA 102 (1991); Chartered Bank Employees Association v. Ople, 138 SCRA
273 (1985).

13. Petition, p. 8; Rollo, p. 8.

Board of Commissioners vs. Judge De la Rosa 197 scra 853

G.R. Nos. 95122-23 May 31, 1991

BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND DEPORTATION), BOARD OF SPECIAL

INQUIRY, COMMISSIONER ANDREA D. DOMINGO, ASSOCIATE COMMISSIONER JORGE V. SARMIENTO, ACTING
ASSOCIATE COMMISSIONER REGINO R. SANTIAGO, MEMBERS OF THE BOARD OF SPECIAL INQUIRY,
ESTANISLAO CANTA, LEO MAGAHOM and BENJAMIN KALAW, petitioners,
vs.
HON. JOSELITO DELA ROSA, Presiding Judge, RTC Manila, Branch 29, WILLIAM T. GATCHALIAN, respondents.

BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND DEPORTATION), BOARD OF SPECIAL

INQUIRY, COMMISSIONER ANDREA D. DOMINGO, ASSOCIATE COMMISSIONER JORGE V. SARMIENTO, ACTING
ASSOCIATE COMMISSIONER REGINO R. SANTIAGO, MEMBERS OF THE BOARD OF SPECIAL INQUIRY,
ESTANISLAO CANTA, LEO MAGAHOM and BENJAMIN KALAW, petitioners,
vs.
HON. TERESITA DIZON CAPULONG, Presiding Judge, RTC Branch 172, Valenzuela, Metro Manila, DEE HUA T.
GATCHALIAN, SHERWING T. GATCHALIAN, KENNETH T. GATCHALIAN, REXLON T. GATCHALIAN, and WESLIE
T. GATCHALIAN, respondents.

G.R. Nos. 95612-13 May 31, 1991

 29

WILLIAM T. GATCHALIAN, petitioner,

vs.
BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND DEPORTATION), et al., respondents.

The Solicitor General for petitioners.

edesma, Saludo & Associates for respondent William Gatchalian.

Cervo and Tanay Law Office for respondent T.D. Capulong, D.H.T. Gatchalian, et al.

BIDIN, J.:p

This is a petition for certiorari and prohibition filed by the Solicitor General seeking 1) to set aside the
Resolution/Temporary Restraining Order dated September 7, 1990, issued by respondent Judge de la Rosa in Civil Case
No. 90-54214 which denied petitioners' motion to dismiss and restrained petitioners from commencing or continuing with
any of the proceedings which would lead to the deportation of respondent William Gatchalian, docketed as D.C. No. 90-
523, as well as the Order of respondent Judge Capulong dated September 6, 1990 in Civil Case No. 3431-V-90 which
likewise enjoined petitioners from proceeding with the deportation charges against respondent Gatchalian, and 2) to
prohibit respondent judges from further acting in the aforesaid civil cases.

On October 23, 1990, respondent Gatchalian filed his Comment with Counter-Petition, docketed as G.R. Nos. 96512-13,
alleging lack of jurisdiction on the part of respondent Board of Commissioners, et al., over his person with prayer that he
be declared a Filipino citizen, or in the alternative, to remand the case to the trial court for further proceedings.

On December 13, 1990, petitioners filed their comment to respondent Gatchalian's counter-petition. The Court considers
the comment filed by respondent Gatchalian as answer to the petition and petitioners' comment as answer to the counter-
petition and gives due course to the petitions.

There is no dispute as to the following facts:

On July 12, 1960, Santiago Gatchalian, grandfather of William Gatchalian, was recognized by the Bureau of Immigration
as a native born Filipino citizen following the citizenship of his natural mother, Marciana Gatchalian (Annex "1", counter-
petition). Before the Citizenship Evaluation Board, Santiago Gatchalian testified that he has five (5) children with his wife
Chu Gim Tee, namely: Jose Gatchalian, Gloria Gatchalian, Francisco Gatchalian, Elena Gatchalian and Benjamin
Gatchalian (Annex "2", counter-petition).

On June 27, 1961, William Gatchalian, then a twelve-year old minor, arrived in Manila from Hongkong together with
Gloria, Francisco, and Johnson, all surnamed Gatchalian. They had with them Certificates of Registration and Identity
issued by the Philippine Consulate in Hongkong based on a cablegram bearing the signature of the then Secretary of
Foreign Affairs, Felixberto Serrano, and sought admission as Filipino citizens. Gloria and Francisco are the daughter and
son, respectively, of Santiago Gatchalian; while William and Johnson are the sons of Francisco.

After investigation, the Board of Special Inquiry No. 1 rendered a decision dated July 6, 1961, admitting William
Gatchalian and his companions as Filipino citizens (Annex "C", petition). As a consequence thereof, William Gatchalian
was issued Identification Certificate No. 16135 by the immigration authorities on August 16, 1961 (Annex "D", petition).

On January 24, 1962, the then Secretary of Justice issued Memorandum No. 9 setting aside all decisions purporting to
have been rendered by the Board of Commissioners on appeal or on review motu proprio of decisions of the Board of
Special Inquiry. The same memorandum directed the Board of Commissioners to review all cases where entry was
allowed on the ground that the entrant was a Philippine citizen. Among those cases was that of William and others.

On July 6, 1962, the new Board of Commissioners, after a review motu proprio of the proceedings had in the Board of
Special Inquiry, reversed the decision of the latter and ordered the exclusion of, among others, respondent Gatchalian
(Annex "E", petition). A warrant of exclusion also dated July 6, 1962 was issued alleging that "the decision of the Board of
Commissioners dated July 6, 1962 . . . has now become final and executory (Annex "F", petition).
 30

The actual date of rendition of said decision by the Board of Commissioners (whether on July 6, 1962 or July 20, 1962)
became the subject of controversy in the 1967 case of Arocha vs. Vivo (21 SCRA 532) wherein this Court sustained the
validity of the decision of the new Board of Commissioners having been promulgated on July 6, 1962, or within the
reglementary period for review.

Sometime in 1973, respondent Gatchalian, as well as the others covered by the July 6, 1962 warrant of exclusion, filed a
motion for re-hearing with the Board of Special Inquiry where the deportion case against them was assigned.

On March 14, 1973, the Board of Special Inquiry recommended to the then Acting Commissioner Victor Nituda the
reversal of the July 6, 1962 decision of the then Board of Commissioners and the recall of the warrants of arrest issued
therein (Annex "5", counter-petition).

On March 15, 1973, Acting Commissioner Nituda issued an order reaffirming the July 6, 1961 decision of the Board of
Special Inquiry thereby admitting respondent Gatchalian as a Filipino citizen and recalled the warrant of arrest issued
against him (Annex "6", counter-petition).

On June 7, 1990, the acting director of the National Bureau of Investigation wrote the Secretary of Justice recommending
that respondent Gatchalian along with the other applicants covered by the warrant of exclusion dated July 6, 1962 be
charged with violation of Sec. 37 (a), pars. 1 and 2, in relation to Secs. 45 (c), and (d) and (e) of Commonwealth Act No.
613, as amended, also known as the Immigration Act of 1940 (Annex "G", petition).

On August 1, 1990, the Secretary of Justice indorsed the recommendation of the NBI to the Commissioner of Immigration
for investigation and immediate action (Annex "20", counter-petition).

On August 15, 1990, petitioner Commissioner Domingo of the Commission of Immigration and Deportation * issued a
mission order commanding the arrest of respondent William Gatchalian (Annex "18", counter-petition). The latter
appeared before Commissioner Domingo on August 20, 1990 and was released on the same day upon posting
P200,000.00 cash bond.

On August 29, 1990, William Gatchalian filed a petition for certiorari and prohibition with injunction before the Regional
Trial Court of Manila, Br. 29, presided by respondent Judge dela Rosa, docketed as Civil Case No. 90-54214.

On September 4, 1990, petitioners filed a motion to dismiss Civil Case No. 90-54214 alleging that respondent judge has
no jurisdiction over the Board of Commissioners and/or the Board of Special Inquiry. Nonetheless, respondent judge dela
Rosa issued the assailed order dated September 7, 1990, denying the motion to dismiss.

Meanwhile, on September 6, 1990, respondent Gatchalian's wife and minor children filed before the Regional Trial Court
of Valenzuela, Metro Manila, Br. 172, presided by respondent judge Capulong Civil Case No. 3431-V-90 for injunction
with writ of preliminary injunction. The complaint alleged, among others, that petitioners acted without or in excess of
jurisdiction in the institution of deportation proceedings against William. On the same day, respondent Capulong issued
the questioned temporary restraining order restraining petitioners from continuing with the deportation proceedings
against William Gatchalian.

The petition is anchored on the following propositions: 1) respondent judges have no jurisdiction over petitioners (Board of
Commissioners, et al.,) and the subject matter of the case, appellate jurisdiction being vested by BP 129 with the Court of
Appeals; 2) assuming respondent judges have jurisdiction, they acted with grave abuse of discretion in preempting
petitioners in the exercise of the authority and jurisdiction to hear and determine the deportation case against respondent
Gatchalian, and in the process determine also his citizenship; 3) respondent judge dela Rosa gravely abused his
discretion in ruling that the issues raised in the deportation proceedings are beyond the competence and jurisdiction of
petitioners, thereby disregarding the cases of Arocha vs. Vivo and Vivo vs. Arca (supra), which put finality to the July 6,
1962 decision of the Board of Commissioners that respondent Gatchalian is a Chinese citizen; and 4) respondent judge
Capulong should have dismissed Civil Case No. 3431-V-90 for forum-shopping.

In his counter-petition, William Gatchalian alleges among others that: 1) assuming that the evidence on record is not
sufficient to declare him a Filipino citizen, petitioners have no jurisdiction to proceed with the deportation case until the
courts shall have finally resolved the question of his citizenship; 2) petitioners can no longer judiciously and fairly resolve
 31

the question of respondent's citizenship in the deportation case because of their bias, pre-judgment and prejudice against
him; and 3) the ground for which he is sought to be deported has already prescribed.

For purposes of uniformity, the parties herein will be referred to in the order the petitions were filed.

Petitioners argue that under Sec. 9 (3) of BP 129, it is the Court of Appeals which has exclusive appellate jurisdiction over
all final judgments or orders of quasi-judicial agencies, boards or commissions, such as the Board of Commissioners and
the Board of Special Inquiry.

Respondent, on the other hand, contends that petitioners are not quasi-judicial agencies and are not in equal rank with
Regional Trial Courts.

Under Sec. 21 (1) of Batas Pambansa Blg. 129, the Regional Trial Courts have concurrent jurisdiction with this Court and
the Court of Appeals to issue "writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction
which may be enforced in any part of their respective regions, . . ." Thus, the RTCs are vested with the power to
determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the
government.

It is true that under Sec. 9 (3) of Batas Pambansa Blg. 129, the Court of Appeals is vested with —

(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, order, or awards of
Regional Trial Courts and quasi-judicial agencies, instrumentalities, board or commission, except those
falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the
provisions of this Act, and of sub-paragraph (1) of the third paragraph of and sub-paragraph (4) of the
fourth paragraph of Section 17 of the Judiciary Act of 1948.

It does not provide, however, that said exclusive appellate jurisdiction of the Court of Appeals extends to all quasi-judicial
agencies. The quasi-judicial bodies whose decisions are exclusively appealable to the Court of Appeals are those which
under the law, Republic Act No. 5434, or their enabling acts, are specifically appealable to the Court of Appeals
(Presidential Anti-Dollar Salting Task Force vs. Court of Appeals, 171 SCRA 348 [1989]; Lupangco vs. Court of Appeals,
160 SCRA 848 [1988]). Thus, under Republic Act No. 5434, it is specifically provided that the decisions of the Land
Registration Commission (LRC), the Social Security Commission (SSC), Civil Aeronautics Board (CAB), the Patent Office
and the Agricultural Invention Board are appealable to the Court of Appeals.

In the Presidential Anti-Dollar Salting Task Force (supra), this Court clarified the matter when We ruled:

Under our Resolution dated January 11, 1983:

. . . The appeals to the Intermediate Appellate Court (now Court of Appeals) from quasi-
judicial bodies shall continue to be governed by the provisions of Republic Act No. 5434
insofar as the same is not inconsistent with the provisions of B.P. Blg. 129.

The pertinent provisions of Republic Act No. 5434 are as follows:

Sec. 1. Appeals from specified agencies.— Any provision of existing law or Rules of
Court to the contrary notwithstanding, parties aggrieved by a final ruling, award, order, or
decision, or judgment of the Court of Agrarian Relations; the Secretary of Labor under
Section 7 of Republic Act Numbered Six hundred and two, also known as the "Minimum
Wage Law"; the Department of Labor under Section 23 of Republic Act Numbered Eight
hundred seventy-five, also known as the "Industrial Peace Act"; the Land Registration
Commission; the Social Security Commission; the Civil Aeronautics Board; the Patent
Office and the Agricultural Inventions Board, may appeal therefrom to the Court of
Appeals, within the period and in the manner herein provided, whether the appeal
involves questions of fact, mixed questions of fact and law, or questions of law, or all
three kinds of questions. From final judgments or decisions of the Court of Appeals, the
aggrieved party may appeal by certiorari to the Supreme Court as provided under Rule
45 of the Rules of Court.
 32

Because of subsequent amendments, including the abolition of various special courts, jurisdiction over
quasi-judicial bodies has to be, consequently, determined by the corresponding amendatory statutes.
Under the Labor Code, decisions and awards of the National Labor Relations Commission are final and
executory, but, nevertheless, reviewable by this Court through a petition for certiorari and not by way of
appeal.

Under the Property Registration Decree, decision of the Commission of Land Registration, en consulta,
are appealable to the Court of Appeals.

The decisions of the Securities and Exchange Commission are likewise appealable to the Appellate
Court, and so are decisions of the Social Security Commission.

As a rule, where legislation provides for an appeal from decisions of certain administrative bodies to the
Court of Appeals, it means that such bodies are co-equal with the Regional Trial Courts, in terms of rank
and stature, and logically, beyond the control of the latter. (Emphasis supplied)

There are quasi-judicial agencies, as the National Labor Relations Commissions, whose decisions are directly appealable
to this Court. It is only when a specific law, as Republic Act No. 5434, provides appeal from certain bodies or commissions
to the Court of Appeals as the Land Registration Commission (LRC), Securities and Exchange Commission (SEC) and
others, that the said commissions or boards may be considered co-equal with the RTCs in terms of rank, stature and are
logically beyond the control of the latter.

However, the Bureau of Immigration (or CID) is not among those quasi-judicial agencies specified by law whose
decisions, orders, and resolutions are directly appealable to the Court of Appeals. In fact, its decisions are subject to
judicial review in accordance with Sec. 25, Chapter 4, Book VII of the 1987 Administrative Code, which provides as
follows:

Sec. 25. Judicial Review.—(1) Agency decisions shall be subject to judicial review in accordance with this
chapter and applicable laws.

xxx xxx xxx

(6) The review proceeding shall be filed in the court specified in the statute or, in the absence thereof, in
any court of competent jurisdiction in accordance with the provisions on venue of the Rules of Court.

Said provision of the Administrative Code, which is subsequent to B.P. Blg. 129 and which thus modifies the latter,
provides that the decision of an agency like the Bureau of Immigration should be subject to review by the court specified
by the statute or in the absence thereof, it is subject to review by any court of competent jurisdiction in accordance with
the provisions on venue of the Rules of Court.

B.P. Blg. 129 did not intend to raise all quasi-judicial bodies to the same level or rank of the RTC except those specifically
provided for under the law as aforestated. As the Bureau of Immigration is not of equal rank as the RTC, its decisions may
be appealable to, and may be reviewed through a special civil action for certiorari by, the RTC (Sec. 21, (1) BP 129).

True, it is beyond cavil that the Bureau of Immigration has the exclusive authority and jurisdiction to try and hear cases
against an alleged alien, and in the process, determine also their citizenship (Lao Gi vs. Court of Appeals, 180 SCRA 756
[1989]). And a mere claim of citizenship cannot operate to divest the Board of Commissioners of its jurisdiction in
deportation proceedings (Miranda vs. Deportation Board, 94 Phil. 531 [1954]).

However, the rule enunciated in the above-cases admits of an exception, at least insofar as deportation proceedings are
concerned. Thus, what if the claim to citizenship of the alleged deportee is satisfactory? Should the deportation
proceedings be allowed to continue or should the question of citizenship be ventilated in a judicial proceeding? In Chua
Hiong vs. Deportation Board (96 Phil. 665 [1955]), this Court answered the question in the affirmative, and We quote:

When the evidence submitted by a respondent is conclusive of his citizenship, the right to immediate
review should also be recognized and the courts should promptly enjoin the deportation proceedings. A
citizen is entitled to live in peace, without molestation from any official or authority, and if he is disturbed
 33

by a deportation proceeding, he has the unquestionable right to resort to the courts for his protection,
either by a writ of habeas corpus or of prohibition, on the legal ground that the Board lacks jurisdiction. If
he is a citizen and evidence thereof is satisfactory, there is no sense nor justice in allowing the
deportation proceedings to continue, granting him the remedy only after the Board has finished its
investigation of his undesirability.

. . . And if the right (to peace) is precious and valuable at all, it must also be protected on time, to prevent
undue harassment at the hands of ill-meaning or misinformed administrative officials. Of what use is this
much boasted right to peace and liberty if it can be availed of only after the Deportation Board has
unjustly trampled upon it, besmirching the citizen's name before the bar of public opinion? (Emphasis
supplied)

The doctrine of primary jurisdiction of petitioners Board of Commissioners over deportation proceedings is, therefore, not
without exception (Calacday vs. Vivo, 33 SCRA 413 [1970]; Vivo vs. Montesa, 24 SCRA 155 [1967]). Judicial intervention,
however, should be granted only in cases where the "claim of citizenship is so substantial that there are reasonable
grounds to believe that the claim is correct. In other words, the remedy should be allowed only on sound discretion of a
competent court in a proper proceeding (Chua Hiong vs. Deportation Board, supra; Co. vs. Deportation Board, 78 SCRA
107 [1977]). It appearing from the records that respondent's claim of citizenship is substantial, as We shall show later,
judicial intervention should be allowed.

In the case at bar, the competent court which could properly take cognizance of the proceedings instituted by respondent
Gatchalian would nonetheless be the Regional Trial Court and not the Court of Appeals in view of Sec. 21 (1), BP 129,
which confers upon the former jurisdiction over actions for prohibition concurrently with the Court of Appeals and the
Supreme Court and in line with the pronouncements of this Court in Chua Hiong and Co cases.

Ordinarily, the case would then be remanded to the Regional Trial Court. But not in the case at bar. Considering the
voluminous pleadings submitted by the parties and the evidence presented, We deem it proper to decide the controversy
right at this instance. And this course of action is not without precedent for "it is a cherished rule of procedure for this
Court to always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of
future litigation. No useful purpose will be served if this case is remanded to the trial court only to have its decision raised
again to the Court of Appeals and from there to this Court" (Marquez vs. Marquez, 73 Phil. 74; Keramic Industries, Inc. vs.
Guerrero, 61 SCRA 265 [1974]) Alger Electric, Inc. vs. Court of Appeals (135 SCRA 37 [1985]), citing Gayos vs. Gayos
(67 SCRA 146 [1975]).

In Lianga Bay Logging Co., Inc. vs. Court of Appeals (157 SCRA 357 [1988]), We also stated:

Remand of the case to the lower court for further reception of evidence is not necessary where the court
is in a position to resolve the dispute based on the records before it. On many occasions, the Court, in the
public interest and the expeditious administration of justice, has resolved actions on the merits instead of
remanding them to the trial court for further proceedings, such as where the ends of justice would not be
subserved by the remand of the case or when public interest demands an early disposition of the case or
where the trial court had already received all the evidence of the parties (Quisumbing vs. CA, 112 SCRA
703; Francisco, et al., vs. The City of Davao, et al., supra; Republic vs. Security Credit & Acceptance
Corp., et al., 19 SCRA 58; Samal vs. CA, supra; Republic vs. Central Surety & Insurance Co., 25 SCRA
641).

Likewise in Tejones vs. Gironella (159 SCRA 100 [1988]), We said:

Sound practice seeks to accommodate the theory which avoids waste of time, effort and expense, both to
the parties and the government, not to speak of delay in the disposal of the case (cf. Fernandez vs.
Garcia, 92 Phil. 592, 297). A marked characterstic of our judicial set-up is that where the dictates of
justice so demand . . . the Supreme Court should act, and act with finality (Li Siu Liat vs. Republic, 21
SCRA 1039, 1046, citing Samal vs. CA, 99 Phil. 230 and US vs. Gimenez, 34 Phil. 74.) (Beautifont, Inc.
vs. Court of appeals, et al., Jan. 29, 1988; See also Labo vs. Commission on Elections, 176 SCRA 1
[1989]).

Respondent Gatchalian has adduced evidence not only before the Regional Trial Court but also before Us in the form of
public documents attached to his pleadings. On the other hand, Special Prosecutor Renato Mabolo in his Manifestation
 34

(dated September 6, 1990; Rollo, p. 298, counter-petition) before the Bureau of Immigration already stated that there is no
longer a need to adduce evidence in support of the deportation charges against respondent. In addition, petitioners invoke
that this Court's decision in Arocha vs. Vivo and Vivo vs. Arca (supra), has already settled respondent's alienage. Hence,
the need for a judicial determination of respondent's citizenship specially so where the latter is not seeking admission, but
is already in the Philippines (for the past thirty [30] years) and is being expelled (Chua Hiong vs. Deportation Board,
supra).

According to petitioners, respondent's alienage has been conclusively settled by this Court in the Arocha and Vivo cases,
We disagree. It must be noted that in said cases, the sole issue resolved therein was the actual date of rendition of the
July 6, 1962 decision of the then board of Commissioners, i.e., whether the decision was rendered on July 6, 1962 or on
July 20, 1962 it appearing that the figure (date) "20" was erased and over it was superimposed the figure "6" thereby
making the decision fall within the one-year reglementary period from July 6, 1961 within which the decision may be
reviewed. This Court did not squarely pass upon any question of citizenship, much less that of respondent's who was not
a party in the aforesaid cases. The said cases originated from a petition for a writ of habeas corpus filed on July 21, 1965
by Macario Arocha in behalf of Pedro Gatchalian. Well settled is the rule that a person not party to a case cannot be
bound by a decision rendered therein.

Neither can it be argued that the Board of Commissioners' decision (dated July 6, 1962) finding respondent's claim to
Philippine citizenship not satisfactorily proved, constitute res judicata. For one thing, said decision did not make any
categorical statement that respondent Gatchalian is a Chinese. Secondly, the doctrine of res judicata does not apply to
questions of citizenship (Labo vs. Commission on Elections (supra); citing Soria vs. Commissioner of Immigration, 37
SCRA 213; Lee vs. Commissioner of Immigration, 42 SCRA 561 [1971]; Sia Reyes vs. Deportation Board, 122 SCRA 478
[1983]).

In Moy Ya Lim vs. Commissioner of Immigration (41 SCRA 292 [1971]) and in Lee vs. Commissioner of Immigration
(supra), this Court declared that:

(e)verytime the citizenship of a person is material or indispensable in a judicial or administrative case,

whatever the corresponding court or administrative authority decides therein as to such citizenship is
generally not considered as res adjudicata, hence it has to be threshed out again and again as the
occasion may demand.

An exception to the above rule was laid by this Court in Burca vs. Republic (51 SCRA 248 [1973]), viz:

We declare it to be a sound rule that where the citizenship of a party in a case is definitely resolved by a
court or by an administrative agency, as a material issue in the controversy, after a full-blown hearing with
the active participation of the Solicitor General or his authorized representative, and this finding or the
citizenship of the party is affirmed by this Court, the decision on the matter shall constitute conclusive
proof of such party's citizenship in any other case or proceeding. But it is made clear that in no instance
will a decision on the question of citizenship in such cases be considered conclusive or binding in any
other case or proceeding, unless obtained in accordance with the procedure herein stated.

Thus, in order that the doctrine of res judicata may be applied in cases of citizenship, the following must be present: 1) a
person's citizenship must be raised as a material issue in a controversy where said person is a party; 2) the Solicitor
General or his authorized representative took active part in the resolution thereof, and 3) the finding or citizenship is
affirmed by this Court.

Gauged by the foregoing, We find the pre-conditions set forth in Burca inexistent in the Arocha and Vivo cases relied upon
by petitioners. Indeed, respondent William Gatchalian was not even a party in said cases.

Coming now to the contention of petitioners that the arrest of respondent follows as a matter of consequence based on
the warrant of exclusion issued on July 6, 1962, coupled with the Arocha and Vivo cases (Rollo, pp. 33), the Court finds
the same devoid of merit.

Sec. 37 (a) of Commonwealth Act No. 613, as amended, otherwise known as the Immigration Act of 1940, reads:
 35

Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration
or of any other officer designated by him for the purpose and deported upon the warrant of the
Commissioner of Immigration after a determination by the Board of Commissioner of the existence of the
ground for deportation as charged against the alien. (Emphasis supplied)

From a perusal of the above provision, it is clear that in matters of implementing the Immigration Act insofar as
deportation of aliens are concerned, the Commissioner of Immigration may issue warrants of arrest only after a
determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien.
In other words, a warrant of arrest issued by the Commissioner of Immigration, to be valid, must be for the sole purpose of
executing a final order of deportation. A warrant of arrest issued by the Commissioner of Immigration for purposes of
investigation only, as in the case at bar, is null and void for being unconstitutional (Ang Ngo Chiong vs. Galang, 67 SCRA
338 [1975] citing Po Siok Pin vs. Vivo, 62 SCRA 363 [1975]; Vivo vs. Montesa, 24 SCRA 155; Morano vs. Vivo, 20 SCRA
562; Qua Chee Gan vs. Deportation Board, 9 SCRA 27 [1963]; Ng Hua To vs. Galang, 10 SCRA 411; see also Santos vs.
Commissioner of Immigration, 74 SCRA 96 [1976]).

As We held in Qua Chee Gan vs. Deportation Board (supra), "(t)he constitution does not distinguish warrants between a
criminal case and administrative proceedings. And if one suspected of having committed a crime is entitled to a
determination of the probable cause against him, by a judge, why should one suspected of a violation of an administrative
nature deserve less guarantee?" It is not indispensable that the alleged alien be arrested for purposes of investigation. If
the purpose of the issuance of the warrant of arrest is to determine the existence of probable cause, surely, it cannot pass
the test of constitutionality for only judges can issue the same (Sec. 2, Art. III, Constitution).

A reading of the mission order/warrant of arrest (dated August 15, 1990; Rollo, p. 183, counter-petition) issued by the
Commissioner of Immigration, clearly indicates that the same was issued only for purposes of investigation of the
suspects, William Gatchalian included. Paragraphs 1 and 3 of the mission order directs the Intelligence Agents/Officers to:

xxx xxx xxx

1. Make a warrantless arrest under the Rules of Criminal Procedure, Rule 113, Sec. 5, for violation of the
Immigration Act, Sec. 37, para. a; Secs. 45 and 46 Administrative Code;

xxx xxx xxx

3. Deliver the suspect to the Intelligence Division and immediately conduct custodial interrogation, after
warning the suspect that he has a right to remain silent and a right to counsel; . . .

Hence, petitioners' argument that the arrest of respondent was based, ostensibly, on the July 6, 1962 warrant of exclusion
has obviously no leg to stand on. The mission order/warrant of arrest made no mention that the same was issued
pursuant to a final order of deportation or warrant of exclusion.

But there is one more thing that militates against petitioners' cause. As records indicate, which petitioners conveniently
omitted to state either in their petition or comment to the counter-petition of respondent, respondent Gatchalian, along with
others previously covered by the 1962 warrant of exclusion, filed a motion for re-hearing before the Board of Special
Inquiry (BSI) sometime in 1973.

On March 14, 1973, the Board of Special Inquiry, after giving due course to the motion for re-hearing, submitted a
memorandum to the then Acting Commissioner Victor Nituda (Annex "5", counter-petition) recommending 1 the
reconsideration of the July 6, 1962 decision of the then Board of Commissioners which reversed the July 6, 1961 decision
of the then Board of Special Inquiry No. 1 and 2 the lifting of the warrants of arrest issued against applicants. The
memorandum inferred that the "very basis of the Board of Commissioners in reversing the decision of the Board of
Special Inquiry was due to a forged cablegram by the then Secretary of Foreign Affairs, . . ., which was dispatched to the
Philippine Consulate in Hong Kong authorizing the registration of applicants as P.I. citizens." The Board of Special Inquiry
concluded that "(i)f at all, the cablegram only led to the issuance of their Certificate(s) of Identity which took the place of a
passport for their authorized travel to the Philippines. It being so, even if the applicants could have entered illegally, the
mere fact that they are citizens of the Philippines entitles them to remain in the country."
 36

On March 15, 1973, then Acting Commissioner Nituda issued an Order (Annex "6", counter-petition) which affirmed the
Board of Special Inquiry No. 1 decision dated July 6, 1961 admitting respondent Gatchalian and others as Filipino
citizens; recalled the July 6, 1962 warrant of arrest and revalidated their Identification Certificates.

The above order admitting respondent as a Filipino citizen is the last official act of the government on the basis of which
respondent William Gatchalian continually exercised the rights of a Filipino citizen to the present. Consequently, the
presumption of citizenship lies in favor of respondent William Gatchalian.

There should be no question that Santiago Gatchalian, grandfather of William Gatchalian, is a Filipino citizen. As a matter
of fact, in the very order of the BOC of July 6, 1962, which reversed the July 6, 1961 BSI order, it is an accepted fact that
Santiago Gatchalian is a Filipino. The opening paragraph of said order states:

The claim to Filipino citizenship of abovenamed applicants is based on the citizenship of one Santiago
Gatchalian whose Philippine citizenship was recognized by the Bureau of Immigration in an Order dated
July 12, 1960. (Annex "37", Comment with Counter-Petition).

Nonetheless, in said order it was found that the applicants therein have not satisfactorily proven that they are the children
and/or grandchildren of Santiago Gatchalian. The status of Santiago Gatchalian as a Filipino was reiterated in Arocha and
Arca (supra) where advertence is made to the "applicants being the descendants of one Santiago Gatchalian, a Filipino."
(at p. 539).

In the sworn statement of Santiago Gatchalian before the Philippine Consul in Hongkong in 1961 (Annex "1" to the
Comment of petitioners to Counter-Petition), he reiterated his status as a Philippine citizen being the illegitimate child of
Pablo Pacheco and Marciana Gatchalian, the latter being a Filipino; that he was born in Manila on July 25, 1905; and that
he was issued Philippine Passport No. 28160 (PA-No. A91196) on November 18, 1960 by the Department of Foreign
Affairs in Manila. In his affidavit of January 23, 1961 (Annex "5", counter-petition), Santiago reiterated his claim of
Philippine citizenship as a consequence of his petition for cancellation of his alien registry which was granted on February
18, 1960 in C.E.B. No. 3660-L; and that on July 20, 1960, he was recognized by the Bureau of Immigration as a Filipino
and was issued Certificate No. 1-2123.

The dissenting opinions of my esteemed brethrens, Messrs. Justices F.P. Feliciano and H.G. Davide, Jr., proposing to re-
open the question of citizenship of Santiago Gatchalian at this stage of the case, where it is not even put in issue, is quite
much to late. As stated above, the records of the Bureau of Immigration show that as of July 20, 1960, Santiago
Gatchalian had been declared to be a Filipino citizen. It is a final decision that forecloses a re-opening of the same 30
years later. Petitioners do not even question Santiago Gatchalian's Philippine citizenship. It is the citizenship of
respondent William Gatchalian that is in issue and addressed for determination of the Court in this case.

Furthermore, petitioners' position is not enhanced by the fact that respondent's arrest came twenty-eight (28) years after
the alleged cause of deportation arose. Section 37 (b) of the Immigration Act states that deportation "shall not be
effected . . . unless the arrest in the deportation proceedings is made within five (5) years after the cause of deportation
arises." In Lam Shee vs. Bengzon (93 Phil. 1065 [1953]), We laid down the consequences of such inaction, thus:

There is however an important circumstance which places this case beyond the reach of the resultant
consequence of the fraudulent act committed by the mother of the minor when she admitted that she
gained entrance into the Philippines by making use of the name of a Chinese resident merchant other
than that of her lawful husband, and that is, that the mother can no longer be the subject of deportation
proceedings for the simple reason that more than 5 years had elapsed from the date of her admission.
Note that the above irregularity was divulged by the mother herself, who in a gesture of sincerity, made an
spontaneous admission before the immigration officials in the investigation conducted in connection with
the landing of the minor on September 24, 1947, and not through any effort on the part of the immigration
authorities. And considering this frank admission, plus the fact that the mother was found to be married to
another Chinese resident merchant, now deceased, who owned a restaurant in the Philippines valued at
P15,000 and which gives a net profit of P500 a month, the immigration officials then must have
considered the irregularity not serious enough when, inspire of that finding, they decided to land said
minor "as a properly documented preference quota immigrant" (Exhibit D). We cannot therefore but
wonder why two years later the immigration officials would reverse their attitude and would take steps to
institute deportation proceedings against the minor.
 37

Under the circumstances obtaining in this case, we believe that much as the attitude of the mother would
be condemned for having made use of an improper means to gain entrance into the Philippines and
acquire permanent residence there, it is now too late, not to say unchristian, to deport the minor after
having allowed the mother to remain even illegally to the extent of validating her residence by inaction,
thus allowing the period of prescription to set in and to elapse in her favor. To permit his deportation at
this late hour would be to condemn him to live separately from his mother through no fault of his thereby
leaving him to a life of insecurity resulting from lack of support and protection of his family. This inaction or
oversight on the part of immigration officials has created an anomalous situation which, for reasons of
equity, should be resolved in favor of the minor herein involved. (Emphasis supplied)

In the case at bar, petitioners' alleged cause of action and deportation against herein respondent arose in 1962. However,
the warrant of arrest of respondent was issued by Commissioner Domingo only on August 15, 1990 — 28 long years
after. It is clear that petitioners' cause of action has already prescribed and by their inaction could not now be validly
enforced by petitioners against respondent William Gatchalian. Furthermore, the warrant of exclusion dated July 6, 1962
was already recalled and the Identification certificate of respondent, among others, was revalidated on March 15, 1973 by
the then Acting Commissioner Nituda.

It is also proposed in the dissenting opinions of Messrs. Justices Feliciano and Davide, Jr., that the BOC decision dated
July 6, 1962 and the warrant of exclusion which was found to be valid in Arocha should be applicable to respondent
William Gatchalian even if the latter was not a party to said case. They also opined that under Sec. 37 (b) of the
Immigration Act, the five (5) years limitation is applicable only where the deportation is sought to be effected under
clauses of Sec. 37 (b) other than clauses 2, 7, 8, 11 and 12 and that no period of limitation is applicable in deportations
under clauses 2, 7, 8, 11 and 12.

The Court disagrees. Under Sec. 39 of the Immigration Act, it is reiterated that such deportation proceedings should be
instituted within five (5) years. Section 45 of the same Act provides penal sanctions for violations of the offenses therein
enumerated with a fine of "not more than P1,000.00 and imprisonment for not more than two (2) years and deportation if
he is an alien." Thus:

Penal Provisions

Sec. 45. Any individual who—

(a) When applying for an immigration document personates another individual, or falsely appears in the
name of deceased individual, or evades the immigration laws by appearing under an assumed name;
fictitious name; or

(b) Issues or otherwise disposes of an immigration document, to any person not authorized by law to
receive such document; or

(c) Obtains, accepts or uses any immigration document, knowing it to be false; or

(d) Being an alien, enters the Philippines without inspection and admission by the immigration officials, or
obtains entry into the Philippines by wilful, false, or misleading representation or wilful concealment of a
material fact; or

(e) Being an alien shall for any fraudulent purpose represent himself to be a Philippine citizen in order to
evade any requirement of the immigration laws; or

(f) In any immigration matter shall knowingly make under oath any false statement or representations; or

(g) Being an alien, shall depart from the Philippines without first securing an immigration clearance
certificates required by section twenty-two of this Act; or

(h) Attempts or conspires with another to commit any of the foregoing acts, shall be guilty of an offense,
and upon conviction thereof, shall be fined not more than one thousand pesos, and imprisoned for not
more than two years, and deported if he is an alien. (Emphasis supplied)
 38

Such offenses punishable by correctional penalty prescribe in 10 years (Art. 90, Revised Penal Code); correctional
penalties also prescribe in 10 years (Art. 92, Revised Penal Code).

It must be noted, however, that under Sec. 1, Act No. 3326 [1926], as amended, (Prescription for Violations Penalized by
Special Acts and Municipal Ordinances) "violations penalized by special acts shall, unless otherwise provided in such
acts, prescribe in accordance with the following rules: . . .c) after eight years for those punished by imprisonment for two
years or more, but less than six years; . . ."

Consequently, no prosecution and consequent deportation for violation of the offenses enumerated in the Immigration Act
can be initiated beyond the eight-year prescriptive period, the Immigration Act being a special legislation.

The Court, therefore, holds that the period of effecting deportation of an alien after entry or a warrant of exclusion based
on a final order of the BSI or BOC are not imprescriptible. The law itself provides for a period of prescription. Prescription
of the crime is forfeiture or loss of the rights of the State to prosecute the offender after the lapse of a certain time, while
prescription of the penalty is the loss or forfeiture by the government of the right to execute the final sentence after the
lapse of a certain time (Padilla, Criminal Law, Vol. 1, 1974, at p. 855).

"Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is a
harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional right of
such person to due process should not be denied. Thus, the provisions of the Rules of Court of the Philippines particularly
on criminal procedure are applicable to deportation proceedings." (Lao Gi vs. Court of Appeals, supra). Under Sec. 6,
Rule 39 of the Rules of Court, a final judgment may not be executed after the lapse of five (5) years from the date of its
entry or from the date it becomes final and executory. Thereafter, it may be enforced only by a separate action subject to
the statute of limitations. Under Art. 1144 (3) of the Civil Code, an action based on judgment must be brought within 10
years from the time the right of action accrues.

In relation to Sec. 37 (b) of the Immigration Act, the rule, therefore, is:

1. Deportation or exclusion proceedings should be initiated within five (5) years after the cause of deportation or exclusion
arises when effected under any other clauses other than clauses 2, 7, 8, 11 and 12 and of paragraph (a) of Sec. 37 of the
Immigration Act; and

2. When deportation or exclusion is effected under clauses 2, 7, 8, 11 and 12 of paragraph (a) of Sec. 37, the prescriptive
period of the deportation or exclusion proceedings is eight (8) years.

In the case at bar, it took petitioners 28 years since the BOC decision was rendered on July 6, 1962 before they
commenced deportation or exclusion proceedings against respondent William Gatchalian in 1990. Undoubtedly,
petitioners' cause of action has already prescribed. Neither may an action to revive and/or enforce the decision dated July
6, 1962 be instituted after ten (10) years (Art. 1144 [3], Civil Code).

Since his admission as a Filipino citizen in 1961, respondent William Gatchalian has continuously resided in the
Philippines. He married Ting Dee Hua on July 1, 1973 (Annex "8", counter-petition) with whom he has four (4) minor
children. The marriage contract shows that said respondent is a Filipino (Annex "8"). He holds passports and earlier
passports as a Filipino (Annexes "9", "10" & "11", counter-petition). He is a registered voter of Valenzuela, Metro Manila
where he has long resided and exercised his right of suffrage (Annex 12, counter-petition). He engaged in business in the
Philippines since 1973 and is the director/officer of the International Polymer Corp. and Ropeman International Corp. as a
Filipino (Annexes, "13" & "14", counter-petition). He is a taxpayer. Respondent claims that the companies he runs and in
which he has a controlling investment provides livelihood to 4,000 employees and approximately 25,000 dependents. He
continuously enjoyed the status of Filipino citizenship and discharged his responsibility as such until petitioners initiated
the deportation proceedings against him.

"The power to deport an alien is an act of the State. It is an act by or under the authority of the sovereign power. It is a
police measure against undesirable aliens whose presence in the country is found to be injurious to the public good and
domestic tranquility of the people" (Lao Gi vs. Court of Appeals, supra). How could one who has helped the economy of
the country by providing employment to some 4,000 people be considered undesirable and be summarily deported when
the government, in its concerted drive to attract foreign investors, grants Special Resident Visa to any alien who invest at
least US$50,000.00 in the country? Even assuming arguendo that respondent is an alien, his deportation under the
 39

circumstances is unjust and unfair, if not downright illegal. The action taken by petitioners in the case at bar is
diametrically opposed to settled government policy.

Petitioners, on the other hand, claim that respondent is an alien. In support of their position, petitioners point out that
Santiago Gatchalian's marriage with Chu Gim Tee in China as well as the marriage of Francisco (father of William)
Gatchalian to Ong Chiu Kiok, likewise in China, were not supported by any evidence other than their own self-serving
testimony nor was there any showing what the laws of China were. It is the postulate advanced by petitioners that for the
said marriages to be valid in this country, it should have been shown that they were valid by the laws of China wherein the
same were contracted. There being none, petitioners conclude that the aforesaid marriages cannot be considered valid.
Hence, Santiago's children, including Francisco, followed the citizenship of their mother, having been born outside of a
valid marriage. Similarly, the validity of the Francisco's marriage not having been demonstrated, William and Johnson
followed the citizenship of their mother, a Chinese national.

After a careful consideration of petitioner's argument, We find that it cannot be sustained.

In Miciano vs. Brimo (50 Phil. 867 [1924]; Lim and Lim vs. Collector of Customs, 36 Phil. 472; Yam Ka Lim vs. Collector of
Customs, 30 Phil. 46 [1915]), this Court held that in the absence of evidence to the contrary, foreign laws on a particular
subject are presumed to be the same as those of the Philippines. In the case at bar, there being no proof of Chinese law
relating to marriage, there arises the presumption that it is the same as that of Philippine law.

The lack of proof of Chinese law on the matter cannot be blamed on Santiago Gatchalian much more on respondent
William Gatchalian who was then a twelve-year old minor. The fact is, as records indicate, Santiago was not pressed by
the Citizenship Investigation Board to prove the laws of China relating to marriage, having been content with the testimony
of Santiago that the Marriage Certificate was lost or destroyed during the Japanese occupation of China. Neither was
Francisco Gatchalian's testimony subjected to the same scrutiny by the Board of Special Inquiry. Nevertheless, the
testimonies of Santiago Gatchalian and Francisco Gatchalian before the Philippine consular and immigration authorities
regarding their marriages, birth and relationship to each other are not self-serving but are admissible in evidence as
statements or declarations regarding family reputation or tradition in matters of pedigree (Sec. 34, Rule 130).
Furtheremore, this salutary rule of evidence finds support in substantive law. Thus, Art. 267 of the Civil Code provides:

Art. 267. In the absence of a record of birth, authentic document, final judgment or possession of status,
legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws.
(See also Art. 172 of the Family Code)

Consequently, the testimonies/affidavits of Santiago Gatchalian and Francisco Gatchalian aforementioned are not self-
serving but are competent proof of filiation (Art. 172 [2], Family Code).

Philippine law, following the lex loci celebrationis, adheres to the rule that a marriage formally valid where celebrated is
valid everywhere. Referring to marriages contracted abroad, Art. 71 of the Civil Code (now Art. 26 of the Family Code)
provides that "(a)ll marriages performed outside of the Philippines in accordance with the laws in force in the country
where they were performed, and valid there as such, shall also be valid in this country . . ." And any doubt as to the
validity of the matrimonial unity and the extent as to how far the validity of such marriage may be extended to the
consequences of the coverture is answered by Art. 220 of the Civil Code in this manner: "In case of doubt, all
presumptions favor the solidarity of the family. Thus, every intendment of law or facts leans toward the validity of
marriage, the indissolubility of the marriage bonds, the legitimacy of children, the community of property during marriage,
the authority of parents over their children, and the validity of defense for any member of the family in case of unlawful
aggression." (Emphasis supplied). Bearing in mind the "processual presumption" enunciated in Miciano and other cases,
he who asserts that the marriage is not valid under our law bears the burden of proof to present the foreign law.

Having declared the assailed marriages as valid, respondent William Gatchalian follows the citizenship of his father
Francisco, a Filipino, as a legitimate child of the latter. Francisco, in turn is likewise a Filipino being the legitimate child of
Santiago Gatchalian who (the latter) is admittedly a Filipino citizen whose Philippine citizenship was recognized by the
Bureau of Immigration in an order dated July 12, 1960.

Finally, respondent William Gatchalian belongs to the class of Filipino citizens contemplated under Sec. 1, Article IV of the
Constitution, which provides:

Sec. 1. The following are citizens of the Philippines:

 40

(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution. . . .

This forecloses any further question about the Philippine citizenship of respondent William Gatchalian.

The Court is not unaware of Woong Woo Yiu vs. Vivo (13 SCRA 552 [1965]) relied upon by petitioners. The ruling arrived
thereat, however, cannot apply in the case at bar for the simple reason that the parties therein testified to have been
married in China by a village leader, which undoubtedly is not among those authorized to solemnize marriage as provided
in Art. 56 of the Civil Code (now Art. 7, Family Code).

Premises considered, the Court deems it unnecessary to resolve the other issues raised by the parties.

WHEREFORE, G.R. Nos. 95122-23 is DISMISSED for lack of merit; G.R. Nos. 95612-13 is hereby GRANTED and
respondent William Gatchalian is declared a Filipino citizen. Petitioners are hereby permanently enjoined from continuing
with the deportation proceedings docketed as DC No. 90-523 for lack of jurisdiction over respondent Gatchalian, he being
a Filipino citizen; Civil Cases No. 90-54214 and 3431-V-90 pending before respondent judges are likewise DISMISSED.
Without pronouncement as to costs.

SO ORDERED.

Gutierrez, Jr., Gancayco, Sarmiento, Griño-Aquino and Medialdea, JJ., concur.

Fernan, C.J., and Narvasa, J., concur in the result.

Separate Opinions

DAVIDE, JR., J., concurring-dissenting:

I can easily agree with the summary of antecedent facts in the ponencia of Mr. Justice Bidin and the reiteration therein of
the established doctrine that the Bureau of Immigration has the exclusive authority and jurisdiction to try and hear cases
against alleged aliens, and in the process, determine also their citizenship, and that "a mere claim of citizenship cannot
operate to divest the Board of Commissioners of its jurisdiction in deportation proceedings." I also agree with the
conclusion that the petitioners in G.R. No. 95122-23, the Board of Commissioners and Board of Special Inquiry,
hereinafter referred to as the Boards, are quasi-judicial bodies.

However, I cannot go along with the view that the case of William Gatchalian should be treated as an exception to that
doctrine and, above all, to the law which vests upon the Court of Appeals exclusive appellate jurisdiction over the Boards.
Neither can I have solidarity with his opinion that this Court should, in this instance, rule on the citizenship of Mr.
Gatchalian instead of remanding the case to the Regional Trial Court. To grant him these benefits would do violence to
the law, liberally stretch the limits of the exceptions or misapply the exceptionary rule, and to unduly pollute the settled
doctrine. No fact or circumstance exists to justify the application of the exceptions for the benefit of Mr. Gatchalian. On the
contrary, substantial facts exist to render immutable the unqualified application of the law and the doctrine.

To my mind, the questioned acts of the Boards were done absolutely within their quasi-judicial functions. Therefore, the
rule laid down in Filipinas Engineering and Machine Shop vs. Ferrer (135 SCRA 25) and Lupangco vs. Court of Appeals
(160 SCRA 848) does not apply.

Consequently, pursuant to paragraph 3 of Section 9 of Batas Pambansa Blg. 129, and Our resolutions of 15 September
1987 and 2 April 1990 in G.R. No. 79635 (Commissioner of Customs vs. Court of Tax Appeals, et al.) and G.R. No. 80320
(Commissioner of Internal Revenue vs. Court of Tax Appeals, et al.), respectively, and Our decisions of 16 March 1989,
22 December 1989, and 6 June 1990 in G.R. No. 83578 (Presidential Anti-Dollar Salting Task Force vs. Court of Appeals,
 41

et al.), 171 SCRA 348, G.R. No. 86625 (Development Bank of the Philippines vs. Court of Tax Appeals, et al.), 180 SCRA
609, 617, and in G.R. No. L-48113 (Yang vs. Court of Appeals, et al.), respectively, the Gatchalians should have invoked
the exclusive appellate jurisdiction of the Court of Appeals for appropriate redress instead of filing petitions for certiorari
and prohibition with injunction before the Regional Trial Court of Manila (Civil Case No. 90-54214) and before the
Regional Trial Court of Valenzuela, Metro Manila (Civil Case No. 3431-V-90). The trial courts should have dismissed the
cases. In issuing the questioned orders, respondents Judge Dela Rosa and Judge Capulong clearly acted without
jurisdiction or with grave abuse of discretion.

As to why William Gatchalian filed his petition before the former court and his wife and minor children filed a separate
complaint before the latter has not been explained. It is to be noted that he is a registered voter of Valenzuela, Metro
Manila where he has long resided and exercised his right of suffrage (Annex 12, Counter-Petition). Therefore, he should
have filed his petition with the Regional Trial Court of Valenzuela. His wife and minor children are not parties to the case
before the Commission on Immigration and Deportation. Their causes of action are based mainly on their claim that the
acts of the Boards against William tend to deprive plaintiff mother consortium and connubium and the plaintiffs minors
protection and support. At once, the viability of their causes of action is doubtful; however, if indeed they have valid
causes of action, they could have been joined as co-plaintiffs in the case filed by William. It appears then that their filing of
a separate complaint before another court was part of a strategy to frustrate the proceedings before the Boards. As
correctly maintained by the petitioning Boards, we have here a clear case of forum-shopping, especially considering the
fact that on September 4, 1990, or two days before the filing of the case before the Valenzuela court the government filed
a motion to dismiss the case before the Manila court. Forum-shopping has long been condemned and proscribed. In
People vs. Court of Appeals, et al. (101 SCRA 450, 463), promulgated on 28 November 1980, this Court held that a party
"should not be allowed to pursue simultaneous remedies in two different forums." In the Resolution of 31 July 1986 in E.
Razon Inc., et al. vs. Philippine Port Authority, et al., G.R. No. 75197, this Court held:

The acts of petitioners constitute a clear case of forum-shopping, an act of malpractice that is proscribed
and condemned as trifling with the courts and abusing their processes. It is improper conduct that tends
to degrade the administration of justice. (See also Buan vs. Lopez, Jr., 145 SCRA 34; Palm Avenue
Realty Development Corp. vs. PCGG, 153 SCRA 591; Minister of Natural Resources, et al. vs. Heirs of
Orval Hughes, et al., 155 SCRA 566; Limpin vs. IAC, 161 SCRA 98; Collado vs. Hernando, 161 SCRA
639; Villanueva, et al. vs. Adre, et al., 172 SCRA 877; Danville Maritime, Inc. vs. COA, 175 SCRA 717;
Crisostomo vs. SEC, 179 SCRA 154; Adlawan vs. Tomol, 179 SCRA 42; and Alonto vs. Memoracion, 185
SCRA 73).

William Gatchalian did not stop in his forum-shopping in the regional trial courts. Under the guise of a counter-petition, he
is now before this Court in an active offensive role. This is a very clever, albeit subtle, ploy to bang directly to this Court
the issue of his deportation and to divest the Boards of their original jurisdiction thereon. He could have done this at the
first instance; he did not. He and his wife and minor children deliberately chose, instead, to separately go to the wrong
court, evidently to delay the proceedings before the Boards, which they accomplished when the two judges separately
issued orders restraining said Boards from commencing or continuing with any of the proceedings which would lead to the
deportation of William Gatchalian (Civil Case No. 90-54214) and from proceeding with the deportation charges against
William Gatchalian (Civil Case No. 3431-V-90).

Chua Hiong vs. Deportation Board (96 Phil. 665) cited in the ponencia as another authority which allows William
Gatchalian to enjoy the protective mantle of the exceptionary rule affecting the exclusive power of the Commission on
Immigration and Deportation to try and hear cases against aliens and in the process also determine their citizenship is
either not applicable or is mis-applied. This case laid down the principle that "when the evidence submitted by a
respondent is conclusive of his citizenship, the right to immediate review should also be recognized and the courts should
promptly enjoin the deportation proceedings. . . . If he is a citizen and evidence thereof is satisfactory, there is no sense
nor justice in allowing the deportation proceedings to continue, granting him the remedy only after the Board has finished
its investigation of his undesirability. . . ." (emphasis supplied). The word courts should not now be interpreted to mean or
to include the regional trial courts because, as stated above, said courts do not have any appellate jurisdiction over the
Commission on Immigration and Deportation, the Board of Commissioners and the Board of Special Inquiry. This case
was decided in 1955 yet, or twenty-six years before the effectivity of Batas Pambansa Blg. 129.

The condition sine qua non then to an authorized judicial intervention is that the evidence submitted by a respondent is
conclusive of his citizenship, or as stated in Co vs. Deportation Board, (78 SCRA 104, 107), the claim of citizenship is so
substantial that there are no reasonable grounds for the belief that the claim is correct.
 42

The facts before this Court do not constitute, or even show, a conclusive or substantial evidence that William Gatchalian is
a Filipino citizen. On the contrary, very serious doubts surround such a claim from the beginning. His initial entry into the
Philippines was made possible through a Certificate of Identity (as Filipino) which was issued on the basis of a forged
cablegram by the then Secretary of Foreign Affairs. Then on 6 July 1962 the then new Board of Commissioners
promulgated a written decision in I.C. Cases Nos. 61-2108-C to 61-2116-C inclusive (Application for admission as
Philippine citizens of Jose, Elena, Benjamin, Juan, Pedro, Gloria, Francisco, William and Johnson, all surnamed
Gatchalian) reversing the decision of the Board of Special Inquiry No. 1 of 6 July 1961 and ordering the exclusion of
William Gatchalian and the others as aliens not properly documented. Accordingly, a warrant of exclusion, also dated 6
July 1962, was issued by the Commissioners commanding the deportation officer to exclude William Gatchalian, and
others, and to cause their removal from the country on the first available transportation in accordance with law to the port
of the country of which they were nationals. The pertinent portion of the Decision reads as follows:

The claim to Philippine citizenship of above-named applicants is based on the citizenship of one Santiago
Gatchalian whose Philippine citizenship was recognized by the Bureau of Immigration in an Order, dated
July 12, 1960. It is alleged that applicants JOSE GATCHALIAN, FRANCISCO GATCHALIAN, ELENA
GATCHALIAN and BENJAMIN GATCHALIAN are the legitimate children of Santiago Gatchalian with one
Chiu Gim Tee. Except for the self-serving testimonies of Santiago Gatchalian and his alleged children,
there has not been submitted any evidence of Santiago Gatchalian's marriage to Chiu Gim Tee and the
birth of the alleged children of the couple. The personal records of Santiago Gatchalian on file with this
office do not reflect the names of applicants as his children, and while two names listed in his Form 1
(ACR application), Jose and Elena, bear the same name as two of herein applicants, the difference in the
ages of said applicants, casts serious doubt on their identity. Apropos, the applicants JOSE
GATCHALIAN, GLORIA GATCHALIAN, FRANCISCO GATCHALIAN, ELENA GATCHALIAN and
BENJAMIN GATCHALIAN, not having satisfactorily proved as the children of Santiago Gatchalian,
determination of the citizenship of the other applicants, JUAN GATCHALIAN, PEDRO GATCHALIAN and
JOHNSON GATCHALIAN, whose right to Filipino citizenship are merely drawn from their fathers, Jose
Gatchalian and Francisco Gatchalian, is unnecessary. (Decision, Annex "E" of Petition).

Looking back to the case of Santiago, William's alleged grandfather, I cannot find sufficient credible evidence to support
his claim of Filipino citizenship. For a long time before 20 July 1960 he considered himself a Chinese citizen. The
"conclusion" of the Bureau of Immigration that Santiago is a Filipino citizen is based on totally questionable and
insufficient evidence which cannot inspire belief. The Order itself, signed by Associate Commissioner Felix Talabis,
supports this conclusion. It reads in full as follows:

This is a petition for the cancellation of an alien registry of SANTIAGO GATCHALIAN, registered as
Chinese and holder of ACR No. A-219003 issued at Manila on 13 February 1951 and ICR No. 7501 dated
3 May 1946. He is alleged to be the son of Filipino parents who were not lawfully married.

It is alleged that the petitioner was born in Binondo, Manila, on 25 July 1905, to Pablo Pacheco and
Marciana Gatchalian. It is noted that in his application for alien registration filed with this Office on 13
January 1951, Santiago Gatchalian stated that his deceased parents were Pablo Pacheco and Marciana.
He was identified by his only brother, Joaquin Pacheco, who insisted that he and petitioner are
illegitimate. It is true that, on record, there is a certificate signed on 26 October 1902 by Maxima
Gatchalian, their maternal grandmother, giving consent to the marriage of Marciana Gatchalian to Pablo
Pacheco (Exh. B), but Joaquin said that his parents did not actually get married. In proof of this, the
baptismal record of the petitioner expressly states that Santiago Gatchalian was born on 25 July 1905
and baptized on 6 October 1905, being the son of Marciana Gatchalian, "filipina", and an unknown father
(verbatim copy dated 22 June 1907, Parish Priest of Binondo, Manila).

The petitioner, apparently not completely certain about his civil status, has been interchangeably using his
paternal and maternal surnames. In school he was known as Santiago Pacheco (Class card for 1920-21,
Meisic, Manila; Certificates of completion of third and fourth grades, Meisic Primary School); but in his
residence certificate dated 17 September 1937, and in Tax Clearance Certificate issued on 2 October
1937, he is referred to as Santiago Gatchalian; and in a communication dated 6 June 1941, he was
addressed to as Santiago Pacheco by the Philippine Charity Sweepstakes office.

Considering, however, the positive assertion by his elder brother who is better informed about their origin,
the incontestable entry in his baptismal record that he is illegitimate and the entry in the marriage contract
of his elder brother wherein the father's name is omitted and the mother, Marciana Gatchalian, is
 43

described as Filipina (marriage contract dated 29 November 1936) there is sufficient evidence to establish
that Santiago Gatchalian is really Filipino at birth, being the legitimate child of a Filipino woman.

WHEREFORE, the herein petition to cancel his alien registration is granted, petitioner shall henceforth be
shown in the records of this office as a citizen of the Philippines and the issuance to him of the
appropriate Identification certificate showing his correct status is hereby authorized. (Order of 12 July
1960, Annex "1" of Comment with Counter-Petition).

As to his alleged marriage to Chu Gim Tee, and their five children, we only have his self-selling oral testimony, thus:

Q What is the name of your wife?

A Her name is Chu Gim Tee.

Q Is she still alive?

A No, she died in 1951, in Amoy.

Q Do you have children with her, if so, mention their names, ages and sexes?

A Yes. I have five children, all of them alive and they are as follows:

Jose Gatchalian, born on Jan. 2, 1927 in Amoy; Gloria Gatchalian, born February 20,
1929 in Amoy; Francisco Gatchalian, born on March 3, 1931 in Amoy; Elena Gatchalian,
born on April 4, 1933 in Amoy; Benjamin Gatchalian, born on 31 March 1942 in Amoy.

Q Where are they living now?

A All of them are now living in Macao, with my sister-in-law by the name of Chu Lam Tee.
(p. 4, Transcript of the proceedings before the Citizen Evaluation Board on 12 February
1960, Annex "2" of Comment with Counter-Petition).

If indeed Santiago's parents, Pablo Pacheco and Marciana Gatchalian, were married, what was his reason for insisting,
through his brother Joaquin, that he, is an illegitimate son? The only possible reason is that Pablo Pacheco is a Chinese
citizen, in which case Santiago would follow the citizenship of Marciana, a "filipina." But to give full faith and credit to the
oral insistence of illegitimacy is to do violence to the presumptions of validity of marriage, the indissolubility of the
marriage bonds and the legitimacy of children. (Art. 220, Civil Code). These are among the presumptions which the
ponencia precisely applied when it rejected the petitioners' claim that Santiago failed to establish his claimed marriage to
Chu Gim Tee and Francisco's (father of William) claimed marriage to Ong Chiu Kiok, both of which were allegedly
celebrated abroad. I cannot find any valid justification why these presumptions should be liberally applied in favor of
claimed marriages allegedly celebrated abroad but denied to purported marriages celebrated in the Philippines.

Interestingly, Santiago used the surname Pacheco during such proceedings and when he testified, he gave his name as
Santiago Gatchalian Pacheco. This is an incontrovertible proof that he recognized the legitimate union of his father and
mother.

On 18 February 1960, Santiago was recalled to be confronted re his claim as to the number of his children; he testified
thus:

Q In your testimony on February 12, this year, you named as your children the following:
Jose, Gloria, Francisco, Elena and Benjamin, all born in Amoy, arranged according to the
order of their ages. However, in your Form 1 when you secured your ACR in 1951, you
mentioned only Jose Gatchalian and Elena Gatchalian. Why, what is the reason why in
this form that you filled up in 1951, you mentioned only Jose and Elena?
 44

A That form I am not the one who filled it because that is not my handwriting. It is the
handwriting of my broker or the clerk of my broker. However, when they prepared that I
mentioned my children named Jose, Gloria, Francisco, Elena in a piece of paper which I
gave to him, except Benjamin.

Q Why did you not mention Benjamin in the list?

A Because he was not yet baptized then. (Transcript, p. 7, Annex "2" of Comment with
Counter-Petition).

The explanation is very flimsy and does not deserve the respect of a passing glance.

There is no showing that Gatchalian took any immediate definite positive step against the 6 July 1962 decision and the
warrant of exclusion.

It was only sometime in 1973, or eleven years after, that he and others covered by the warrant of expulsion filed a motion
for re-hearing with the Board of Special Inquiry. There has been no explanation for the unreasonable delay in the filing of
the motion. It may be surmised that it was due to his minority, considering that he was allegedly only twelve years old
when he arrived in Manila from Hongkong on 27 June 1961. But, such minority was no obstacle to the filing of any
remedial action for and in his behalf.

The action taken by and the recommendation of the Board of Special Inquiry of 14 March 1973 to the then Acting
Commissioner Victor Nituda for the reversal of the July 6, 1962 decision of the Board of Commissioners were not only
highly anomalous, irregular and improper, it was done without any semblance of authority. The Board of Special Inquiry
did not have the power to review, modify or reverse a Decision of the Board of Commissioners rendered about eleven
years earlier. Then Acting Commissioner Victor Nituda, acting alone, did not likewise have the power or authority to
approve the recommendation of said Board, to revive and/or reaffirm the July 6, 1961 decision of the Board of Special
Inquiry, to reverse, and nullify, the Decision of 6 July 1962 of the Board of Commissioners, and to order the admission of
William Gatchalian as a Filipino citizen. Pursuant to Sec. 26 (b) of C.A. No. 613, as amended (The Philippine Immigration
Act of 1940), only the Board of Commissioners can act on the recommendation, if at all it was legally and validly done.
The Board of Commissioners is composed of the Commissioner of Immigration and the two Deputy Commissioners. In
the absence of any member of the Board, the Department Head shall designate an officer or employee in the Bureau of
Immigration to serve as member thereof. In any case coming before it, the decision of any two members shall prevail.
(Sec. 8, C.A. No. 613 as amended). The Department Head referred to is the Secretary of Justice since the Commission is,
for administrative purposes, under the supervision and control of the Department of Justice.

The decision then of Acting Commissioner Nituda was void and invalid ab initio. In view thereof, the rationalization in the
ponencia that the issue could be re-opened since the decision of the Board of Commissioners of 6 July 1962 did not
constitute res judicata is irrelevant. But even if it is to be conceded that the 6 July 1962 decision did not constitute res
judicata, I find it both strange and illogical to give full faith and credit to the unilateral action of Mr. Nituda and to use it to
bar the Boards from exercising its power and jurisdiction over William Gatchalian.

Assuming that indeed William is the grandson of Santiago, I find it rather strange why Santiago did not mention him in his
testimony before the Citizenship Evaluation Board. At that time William was already eleven years old. It is logical to
presume that the proceeding initiated by Santiago was principally for the benefit of his alleged children and grandchildren.
It was, as subsequent events proved, intended to prepare the legal basis for their entry into the country as Filipino
citizens. Thus, eleven months after he obtained a favorable decision from the Board, and on two successive dates, his
alleged children and grandchildren entered the country. On 25 June 1961 his alleged children Jose, Elena, Benjamin, and
his alleged grandchildren Pedro and Juan arrived from Hongkong. On 27 June 1961, his alleged daughter Gloria and son
Francisco with his alleged children William and Johnson also arrived from Hongkong. (pp. 4-5, Petition).

That he has continuously resided in the Philippines since 1961; he is married to Ting Dee Hua on July 1, 1973, and his
marriage contract shows that he is a Filipino citizen; he holds passports and earlier passports as a Filipino; he is a
registered voter of Valenzuela, Metro Manila where he has long resided and exercised his right of suffrage; he is engaged
in business in the Philippines since 1973, and is a director/officer of the International Polymer Corp. and Ropeman
International Corp. as a Filipino, and that the companies he runs and in which he has a controlling investment provided a
livelihood to 4,000 employees and approximately 25,000 dependents; he is a taxpayer; and he has continuously enjoyed
the status of Filipino citizenship, discharged his responsibility as such until petitioning Boards initiated the deportation
 45

proceedings against him, are not of any help to William Gatchalian. For, they neither confer nor strengthen his claim of
Filipino citizenship since they are all rooted on the illegal and void decision of then Acting Commissioner Victor Nituda of
15 March 1973. A decision which is void and invalid ab initio cannot be a source of valid acts. Neither can such
substantive infirmity be cured by salutary acts that tend to confirm the status conferred by the void decision.

In the light of the foregoing, it follows that the warrant of exclusion issued against William Gatchalian pursuant to and by
virtue of the 6 July 1962 Decision of the Board of Commissioners subsists and remains valid and enforceable.

I disagree with the view advanced in the ponencia that the State can no longer enforce the warrant of exclusion because it
is already barred by prescription considering that Section 37 (b) of the Immigration Act states that deportation "shall not be
effected . . . unless the arrest in the deportation proceedings is made within five (5) years after the cause of deportation
arises."

Said paragraph (b) of Section 37 reads in full as follows:

(b) Deportation may be effected under clauses 2, 7, 8, 11 and 12 paragraph (a) of this section at any time
after entry, but shall not be effected under any other clause unless the arrest in the deportation
proceedings is made within five years after the cause of deportation arises. Deportation under clauses 3
and 4 shall not be effected if the court or judge thereof, when sentencing the alien, shall recommend to
the Commissioner of Immigration that the alien be not deported. (As amended by Sec. 13, R.A. No. 503).
(Emphasis supplied).

Note that the five-year period applies only to clauses other than 2, 7, 8, 11 and 12 of paragraph (a) of the Section. In
respect to clauses 2, 7, 8, 11 and 12, the limitation does not apply. These clauses read as follows:

(2) Any alien who enters the Philippines after the effective date of this Act, who was not lawfully
admissible at the time of entry;

xxx xxx xxx

(7) Any alien who remains in the Philippines in violation of any limitation or condition under which he was
admitted as a non- immigrant;

(8) Any alien who believes in, advises, advocates or teaches the overthrow by force and violence of the
Government of the Philippines, or of constituted law and authority, or who disbelieves in or is opposed to
organized government, or who advises, advocates, or teaches the assault or assassination of public
officials because of their office, or who advises, advocates, or teaches the unlawful destruction of
property, or who is a member of or affiliated with any organization entertaining, advocating or teaching
such doctrines, or who in any manner whatsoever lends assistance, financial or otherwise, to the
dissemination of such doctrines;

xxx xxx xxx

(11) Any alien who engages in profiteering, hoarding, or black-marketing, independent of any criminal
action which may be brought against him;

(12) Any alien who is convicted of any offense penalized under Commonwealth Act Numbered Four
Hundred and Seventy-Three, otherwise known as the Revised Naturalization Laws of the Philippines, or
any law relating to acquisition of Philippine citizenship;

xxx xxx xxx

Mr. Gatchalian is covered by clause (2); besides, the warrant for his exclusion was issued within a period of five years
following his entry.

Lam Shee vs. Bengzon (93 Phil. 1065) is not applicable to Mr. Gatchalian. In issue in that case was the deportation of a
minor whose mother fraudulently entered the Philippines by using the name of a resident Chinese merchant who is not
 46

her lawful husband but against whom no deportation proceedings was initiated within five years following her entry. Said
mother did in fact acquire permanent residence status. Furthermore, the minor's mother never claimed to be a Filipino
citizen.

IN VIEW OF ALL THE FOREGOING, I vote to GRANT the petition in G.R. Nos. 95122-23, SET ASIDE the questioned
orders of respondents Judge Joselito Dela Rosa and Judge Teresita Dizon Capulong as having been issued beyond their
jurisdiction, ORDER the DISMISSAL of Civil Case Nos. 90-54214 of the Regional Trial Court of Manila and 3431-V-90 of
the Regional Trial Court of Valenzuela, Metro Manila and to DISMISS for lack of merit the COUNTER-PETITION.

FELICIANO, J., dissenting:

I regret I am unable to join the opinion written by my distinguished brother in the Court, Mr. Justice A.A. Bidin, and I,
therefore, undertake to submit this separate opinion.

For convenience, the following is a precis of the matters discussed in detail below.

1. I agree that the Warrant of Arrest dated 14 August 1990 is defective in its language. The surrounding facts, however,
make quite clear that an amended warrant of arrest or mission order, or a new one correctly worded, may be issued by
Immigration Commissioner Domingo for the purpose of carrying out an existing and valid Warrant of Exclusion covering
respondent William Gatchalian and his co-applicants for admission.

2. The 6 July 1962 Decision of the Board of Commissioners ("BOC") and Warrant of Exclusion remain valid and effective
and enforceable against respondent William Gatchalian, and his co-applicants for that matter. That Decision reversed a 6
July 1961 decision of the Board of Special Inquiry ("BSI") and held that respondent William Gatchalian and his co-
applicants failed to subtantiate and prove their claim to Philippine citizenship in 1961. Respondent William Gatchalian
does not claim Philippine citizenship by any mode of entitlement subsequent to his application for entry as a citizen of the
Philippines in 1961, i.e., by any act or circumstance subsequent to his birth and supposed filiation as a legitimate son of
Francisco Gatchalian, also a supposed citizen of the Philippines.

3. In its Decision in Arocha vs. Vivo, 1 the Supreme Court upheld the validity and legal effect of the 6 July 1962 Decision of
the BOC and the Warrant of Exclusion not only against Pedro Gatchalian, the particular Gatchalian who was taken into
custody by immigration authorities in 1965, but also against Pedro's co-applicants, which include respondent William
Gatchalian. The validity of the claim to Philippine citizenship by Pedro Gatchalian, as a supposed descendant of Santiago
Gatchalian, allegedly a natural born citizen of the Philippines, was directly placed in issue in the 1961-1962 proceedings
before the BSI and the BOC, and by the Solicitor General and Pedro Gatchalian in Arocha vs. Vivo (supra). In upholding
the validity and legal effect of the 6 July 1962 BOC Decision that the Gatchalian applicants had not substantiated their
claim to Philippine citizenship, this Court in effect ruled that the Gatchalian applicants were not Philippine citizens,
whatever their true nationality might be.

4. Should this Court now determine to examine once more the claim to Philippine citizenship of respondent William
Gatchalian, a detailed examination of the facts, including the supposed status of Santiago Gatchalian as a natural born
Philippine citizenship, shows that those claims to Philippine citizenship were indeed not proven by respondent William
Gatchalian and his co-applicants. Since respondent William Gatchalian does not claim to have been naturalized as a
Philippine citizen after rendition of the 6 July 1962 BOC Decision, he must accordingly be held to be not a Philippine
citizen.

5. Should the legal results thus reached seem harsh to some, I respectfully submit that the remedy lies not with this Court
which is charged with the application of the law as it is in fact written, but with the political branches of the Government. It
is those departments of Government which must consider the desirability and wisdom of enacting legislation providing for
the legalization of the entry and stay of aliens who may be in the same situation as respondent William Gatchalian and his
co-applicants.

I
 47

1. Petitioner argues that respondent William Gatchalian's arrest follows as a matter of "consequence" of the Warrant of
Exclusion issued by the BOC on 6 July 1962. This is opposed by respondent Gatchalian upon the ground that the Mission
Order or Warrant of Arrest does not mention that it is issued pursuant to a final order of deportation or Warrant of
Exclusion.

The Mission Order or Warrant of Arrest dated 14 August 1990 issued by petitioner Commissioner Domingo, CID, reads in
part as follows:

Intelligence Officers/Agents: All Teams

Team No.

Subject: William, Juan, Francisco, Jose, Benjamin, Jonathan, Pedro, Gloria, Elena, all surnamed
Gatchalian

Address: Bgy. Canumay, Valenzuela, M.M.

xxx xxx xxx

1. Make a warrantless arrest under the Rules of Criminal Procedure, Rule 113, Section 5, for violation of
the Immigration Act, Section 37, para. a; Secs. 45 and 46 Administrative Code;

2. Make a warrantless search as an incident to a lawful arrest under Rule 125, Section 12.

3. Deliver the suspect to the Intelligence Division and immediately conduct custodial interrogation, after
warning the suspect that he has a right to remain silent and a right to counsel;

4. Prepare and file an affidavit of arrest with the Special Prosecutor's Office and, in case of a search,
prepare and file an inventory of the properties seized, verified under oath following Office Memorandum
Order No. 45

xxx xxx xxx

The above Mission Order merely referred to Section 37 (a) of the Immigration Act, as amended, and to Sections 45 and
46 of the Administrative Code (should be Immigration Law), and that its wording suggests that the arrest is sought to be
carried out for the purpose of carrying out a preliminary investigation or custodial interrogation rather than for the purpose
of enforcing a final order of deportation or warrant of exclusion. More specifically, the Mission Order failed to mention the
6 July 1962 BOC Decision and Warrant of Exclusion. At the same time, there is no gainsaying the fact that the 6 July
1962 BOC Decision and Warrant of Exclusion do exist and became final and, as discussed in detail below, remain valid
and effective.

It should be noted also that by 6 September 1990, Special Prosecutor Mabolo had filed a Manifestation or Motion before
the Bureau of Immigration explicitly referring to the Warrant of Exclusion issued against respondent William Gatchalian
and his original co-applicants for admission in 1961, which had been passed upon in Arocha vs. Vivo (supra), and argued
that there was, therefore, no longer any need to adduce evidence in support of the charges against respondent William
Gatchalian.

Thus it appears to me that the Warrant of Arrest or Mission Order dated 15 August 1990, ineptly worded as it is, may be
amended so as to refer explicitly to the mentioned Warrant of Exclusion, or a new warrant of arrest or mission order
issued similarly explicitly referring to the Warrant of Exclusion.

2. It is indispensably necessary to refer to the Warrant of Exclusion of 6 July 1962 which read as follows:

WHEREAS, upon review, motu proprio of the proceedings had on the application for admission as
Philippine citizens of JOSE GATCHALIAN, ELENA GATCHALIAN, BENJAMIN GATCHALIAN, JUAN
GATCHALIAN, PEDRO GATCHALIAN, GLORIA GATCHALIAN, FRANCISCO GATCHALIAN, WILLIAM
 48

GATCHALIAN, and JOHNSON GATCHALIAN, the Board of Commissioners found them not entitled to
admission as Filipinos in a Decision, dated July 6, 1962, and ordered their exclusion as persons not
properly documented;

AND WHEREAS, the Decision of the Board of Commissioners, dated 6 July 1962, ordering the exclusion
of above-named applicants, has now become final and executory.

NOW THEREFORE, by virtue of the authority vested in the undersigned by law, you are hereby ordered
to exclude the aforenamed individuals and cause their removal from this country to the port where they
came or to the port of the country of which they are nationals, on the first available transportation, in
accordance with law. (Emphasis supplied)

It should be noted that respondent William Gatchalian was a party to the 1961-1962 proceedings before the Bureau of
Immigration which proceedings culminated in the 6 July 1962 Decision of the BOC and the aforequoted Warrant of
Exclusion.

It is, however, insisted by respondent William Gatchalian that the Warrant of Exclusion may no longer be executed or
implemented as against him in view of the passage of approximately twenty-eight (28) years since the issuance of such
Warrant. Respondent Gatchalian here relies upon Section 37 (b) of the Immigration Act which states that:

Sec. 37 (b). Deportation may be effected under clauses 2, 3, 7, 8, 11 and 12 of the Par. (a) of this Section
at any time after entry, but shall not be effected under any other clauses unless the arrest in the
deportation proceedings is made within five (5) years after the cause for deportation arises . . . (Emphasis
supplied)

Examination of the above quoted Section 37 (b) shows that the five (5) year-limitation is applicable only where deportation
is sought to be effected under clauses of Section 37 (a) other than clauses 2, 7, 8, 11 and 12; that where deportation or
exclusion is sought to be effected under clauses 2, 7, 8 11 and 12 of Section 37 (a), no period of limitation is applicable;
and that, to the contrary, deportation or exclusion may be effected "at any time after entry."

Examination of contemporaneous facts shows that the Government has sought to effect the exclusion and deportation of
respondent William Gatchalian upon the ground that he had entered the country as a citizen of the Philippines when he
was not lawfully admissible as such at the time of entry under Section 37 (a) (2), since the BOC had held him and the
other Gatchalians there involved as not properly documented for admission, under Section 29 (a) (17) of the Immigration
Act, as amended. On 7 July 1990, the Acting Director of the National Bureau of Investigation ("NBI") initiated the
proceedings immediately before us by writing to the Secretary of Justice recommending that respondent William
Gatchalian, and his co-applicants covered by the Warrant of Exclusion dated 6 July 1962, be charged with: "Violation of
Section 37 (a), paragraphs 1 and 2, in relation to Section 45 (c), (d) and (e) of Commonwealth Act 613 as amended, also
known as the Immigration Act of 1940." The Secretary of Justice endorsed this recommendation to Immigration
Commissioner Domingo for investigation and immediate action. On 20 August 1990, Special Prosecutor Mabolo filed a
charge sheet against respondent William Gatchalian which specified the following charges:

The respondent is an alien national who unlawfully gained entry into the Philippines without valid travel
document in violation of the Immigration Act; Sec. 37 par. a, sub pars. (1) and (2);

That respondent being an alien misrepresented himself as Philippine Citizen by false statements and
fraudulent documents in violation of the Immigration Act, Sec. 45, par. (c), (d) and (e).

That respondent being an alien national is an undocumented person classified as excludable under the
Immigration Act, Sec. 29 (a) sub par. (17).

xxx xxx xxx

(Emphasis supplied)

Section 37 (a) (1) and (2), of Commonwealth Act No. 613, as amended, provides as follows:
 49

Sec. 37 (a). The following aliens shall be arrested upon the warrant of the Commissioner of Immigration
or of any other officer designated by him for the purpose and deported upon the warrant of the
Commissioner of Immigration after a determination by the Board of Commissioners of the existence of the
ground for deportation as charged against the alien.

(1) Any alien who enters the Philippines after the effective date of this act by means of false and
misleading statements or without inspection and admission by the Immigration authorities at a designated
port of entry or at any place other than at a designated port of entry; (As amended by Republic Act No.
503).

(2) An alien who enters the Philippines after the effective date of this act, who was not lawfully admissible
at the time of entry.

xxx xxx xxx

(Emphasis supplied)

Section 37 (a) (2), quoted above, relates back to Section 29 (a) of the Immigration Act, as amended, which lists the
classes of alien excluded from entry in the Philippines, as follows:

Sec. 29. (a). The following classes of aliens shall be excluded from entry into the Philippines;

xxx xxx xxx

(17) Persons not properly documented for admission as may be required under the provisions of this act.
(Emphasis supplied)

Thus, in the instant case, the net result is that no time limitation is applicable in respect of the carrying out of the Warrant
of Exclusion issued in 1962.

A little reflection suffices to show why this must be so. What was involved in 1961 when the supposed children and
grandchildren of Santiago Gatchalian first descended upon the Philippines, was the right of a person claiming to be a
Philippine citizen to enter for the first time and reside in the Philippines. On the part of the Government, what was at stake
was the right to exclude from the country persons who had claimed the right to enter the country as Philippine citizens but
who had failed to substantiate such claimed status. Aliens seeking entry into the Philippines do not acquire the right to be
admitted into the country by the simple passage of time. Exclusion of persons found not to be entitled to admission as
Philippine citizens, must be distinguished from the deportation of aliens, who, after having been initially lawfully admitted
into the Philippines, committed acts which rendered them liable to deportation.

Normally, aliens excluded are immediately sent back to their country of origin. 2 This is so in cases where the alien has not
yet gained a foothold into the country and is still seeking physical admittance. However, when the alien had already
physically gained entry but such entry is later found unlawful or devoid of legal basis, the alien can be excluded any time
after it is found that he was not lawfully admissible at the time of his entry. Technically, the alien in this case is being
excluded; however, the rules on deportation can be made to apply to him in view of the fact that the cause for his
exclusion is discovered only after he had gained physical entry.

It is worth noting at this point that in Arocha vs. Vivo (supra), this Court upheld the 6 July 1962 Order of the BOC and the
application of the Warrant of Exclusion, in respect of Pedro Gatchalian, even though more than five (5) years had elapsed
by the time the Court's Decision was promulgated on 26 October 1967.

Though respondent William Gatchalian is physically inside the country, it is the government's basic position that he was
never lawfully admitted into the country, having failed to prove his claim of Philippine citizenship, and hence the Warrant
of Exclusion of 6 July 1962, or a new Warrant of Exclusion for that matter, may be executed "at any time" under Section
37 (b). It is the correctness of that basic position which must be ascertained and in that ascertainment, the mere passage
of time is quite peripheral in relevance considering the express language of Section 37 (b).
 50

My distinguished brother, Bidin, J., finally invokes Act No. 3326, and on the basis of Section 1 thereof, would hold that
where the arrest for purpose of deportation is made more than five (5) years after the cause for deportation arose, the
prescriptive period of eight (8) years should be applied. Act No. 3326 which took effect on 4 December 1926, establishes
prescriptive periods in respect of criminal prosecutions for violations penalized not by the Revised Penal Code but rather
by special acts which do not otherwise establish a period of prescription. In other words, Act No. 3326 establishes a
statute of limitations for the institution of criminal proceedings. It is, however, quite settled that deportation proceedings
cannot be assimilated to criminal prosecutions for violation either of the Revised Penal Code or of special statutes. 3
Moreover, Act No. 3326 purports to be applicable only where the special act itself has not established an applicable
statute of limitations for criminal proceedings. It cannot, however, be said that Article 37 (b) of the Immigration Act (quoted
earlier) has not established an applicable statute of limitations. For, precisely, Section 37 (b) of the Immigration Act states
that deportation may be effected under certain clauses of Section 37 (a) "at any time after entry." One of those instances
is, precisely, deportation upon the ground specified in Clause (2) of 37 (a) which relates to "any alien who enters the
Philippines after the effective date of this act, who was not lawfully admissible at the time of entry." Thus, the Immigration
Act, far from failing to specify a prescriptive period for deportation under Section 37 (a) (2), expressly authorizes
deportation under such ground "at any time after entry." It is, thus, very difficult to see how Act No. 3326 could apply at all
to the instant case.

Finally, we must recall once more that what is actually involved in the case at bar is exclusion, not deportation.

3. It is urged by the government that Arocha vs. Vivo (supra) has already resolved the claim to Philippine citizenship of
respondent William Gatchalian adversely to him and that such ruling constitutes res judicata. Upon the other hand,
respondent William Gatchalian vehemently argues that neither the 6 July 1962 BOC's Decision nor Arocha definitely
settled the question of his citizenship.

My respectful submission is that respondent William Gatchalian's argument constitutes a highly selective reading of both
the BOC Decision and the Decision in Arocha Written by J.B.L. Reyes, J. for a unanimous court. The 6 July 1962 Decision
of the BOC, in its dispositive portion, reads as follows:

IN VIEW OF THE FOREGOING CONSIDERATIONS, this Board finds and hereby holds that the
applicants [Jose Gatchalian, Elena Gatchalian, Benjamin Gatchalian, Juan Gatchalian, Pedro Gatchalian,
Gloria Gatchalian, Francisco Gatchalian, William Gatchalian and Johnson Gatchalian] herein have not
satisfactorily proved their claim to Philippine citizenship and therefore the Decision of the Board of Special
Inquiry, dated July 6, 1961 admitting them as Filipinos is hereby reversed, and said applicants should be,
as they are hereby ordered excluded as persons not properly documented.

SO ORDERED. (Emphasis supplied)

Since respondent William Gatchalian and his co-applicants in 1961 claimed the right to enter the country as Philippine
citizens, determination of their right to enter the Philippines thus indispensably involved the resolution of their claim to
Philippine citizenship. In other words, the determination of that citizenship in the instant case was not a mere incident of
the case; it was rather the central and indeed the only issue that had to be resolved by the BOC. Review of the 1961
proceedings before the BSI shows that the sole issue before it was the supposed Philippine citizenship of the applicants.
Thus, the very same issue of claimed Philippine citizenship was resolved by the BOC when it reversed the 6 July 1961
decision of the BSI. This case may be distinguished from other types of cases, e.g., applications for public utility
franchises, petitions for change of name, applications for registration as voter, filing of certificates of candidacy for an
elective position, etc., where the central issue is not citizenship although resolution of that issue requires a determination
of the citizenship of the applicant, candidate or petitioner.

The ruling of the BOC that respondent William Gatchalian and his co-applicants for admission as Philippine citizens had
not satisfactorily proved their claim to Philippine citizenship, can only be reasonably read as a holding that respondent
William Gatchalian and his co-applicants were not Philippine citizens, whatever their true nationality or nationalities might
be. Thus, it appears to be merely semantic play to argue, as respondent William Gatchalian argues, that the 1962 BOC
Decision did not categorically hold him to be an "alien" and that the BOC had merely held him and his co-applicants as
"not properly documented." The phrase "not properly documented" was strictly and technically correct. For William
Gatchalian and his co-applicants had presented themselves as Philippine citizens and as such entitled to admission into
the country. Since the BOC rejected their claims to Philippine citizenship, William Gatchalian and his co-applicants were
non-Filipinos "not properly documented for admission" under Section 29 (a) (17), Immigration Act as amended.
 51

4. In Arocha vs. Vivo (supra), the Supreme Court had before it the following items:

1. The 6 July 1961 Decision of the BSI which allowed the entry of respondent Gatchalian and his co-
applicants as citizens of the Philippines;

2. A split BOC Decision approving the 6 July 1961 BSI decision, which had been "noted" by two (2)
Commissioners but rejected by Commissioner Galang on 14 and 26 July 1961 and 21 August 1961,
respectively;

3. The 6 July 1962 Decision of the BOC in which the BOC had reviewed motu proprio the Gatchalian
proceedings before the BSI and reversed the BSI decision of 6 July 1961;

4. The Warrant of Exclusion dated 6 July 1962 issued pursuant to the 6 July 1962 Decision of the BOC;
and

5. A decision of the Manila Court of First Instance dated 31 July 1965, rendered in a habeas corpus
proceeding brought to effect the release of Pedro Gatchalian who had been taken into custody by
immigration officials pursuant to the 6 July 1962 Warrant of Exclusion.

The Court of First Instance ("CFI") decision ordered Pedro Gatchalian's release upon the ground that the 6 July 1962
BOC Decision had been issued beyond the one (1) year period for review of the BSI decision of 6 July 1961. The CFI
decision was reversed and nullified by the Supreme Court.

The Supreme Court held that the BOC Decision of 6 July 1962 had not been antedated and that it was valid and effective
to reverse and nullify the BSI order granting admission to the Gatchalians as citizens of the Philippines.

The Court also held that the split BOC decision of July-August 1961 did not operate to confirm and render final the BSI
decision of 6 July 1961, the split decision being null and void because it had not been rendered by the BOC as a body.

The Court further rejected Pedro Gatchalian's argument that he was not bound by the 6 July 1962 BOC Decision:

It is argued for the appellee that the minutes in Exh. 5-A refer only to the cases of Gloria, Francisco and
Benjamin Gatchalian. But the designation of the case is "Gloria Gatchalian, et al." No reason is shown
why the case of these three should be considered and voted upon separately, considering that the claims
to citizenship and entry of all were based on the same circumstances, applicants being the descendants
of one Santiago Gatchalian, a Filipino and that all their applications for entry were in fact jointly resolved
by the Board of Inquiry in one single decision (Annex 1, petition, G.R. No. L-24844). 4

I respectfully submit that the above-quoted ruling in Arocha disposes of the contention here being made by respondent
William Gatchalian that he is not bound by the Decision in Arocha vs. Vivo, Arocha held that the 1962 BOC Decision was
valid and effective and William was certainly one of the applicants for admission in the proceedings which began in 1961
before the BSI.

Respondent William Gatchalian contends that the Court in Arocha did not find him nor any of his co-applicants to be
aliens and that all the Court did was to hold that the 6 July 1962 Board of Commissioners decision had not been
antedated. This contention cannot be taken seriously. As has already been pointed out several times, the 1962 Board of
Commissioners decision held that William Gatchalian and his eight (8) other co-applicants for admission had not proved
their claim to Philippine citizenship; not being Filipinos, they must have been aliens, to be excluded as persons not
properly documented. Moreover, a review of the Rollo in Arocha vs. Vivo shows that the parties there had expressly
raised the issue of the citizenship of Pedro Gatchalian in their pleadings. The Solicitor General, in his fifth assignment of
error, argued that the Court of First Instance had erred in declaring Pedro Gatchalian a Filipino, and simultaneously urged
that the 6 July 1962 decision of the Board of Commissioners was quite correct. Pedro Gatchalian, upon the other hand,
contended that precisely because he was a Filipino, the Bureau of Immigration had no jurisdiction to exclude him. 5

The Court also said in Arocha:

 52

Finally, it is well to note that appellee did not traverse the allegation of appellant Commissioners in their
return to the writ of Habeas Corpus that appellee Pedro Gatchalian gained entry on the strength of a
forged cablegram, purportedly signed by the former Secretary of Foreign Affairs Felixberto Serrano, and
apparently authorizing appellee's documentation as a Filipino (par. 3[a] of Return, C.F.I. Rec., pp. 15-16).
Such failure to deny imports admission of its truth by the appellee, establishes that his entry was irregular.
Neither has he appealed the decision of the Commissioners of Immigration to the Department Head. 6

Since the physical entry of Pedro Gatchalian was effected simultaneously with that of Francisco and William Gatchalian,
on exactly the same basis and on the strength of the same forged cablegram allegedly from then Secretary of Foreign
Affairs Felixberto Serrano, it must follow that the entry of Francisco and William Gatchalian was similarly irregular. The
applications for admission of the nine (9) Gatchalians were all jointly resolved by the BSI on 6 July 1961 on the identical
basis that they were all descendants of Santiago Gatchalian, a supposed natural born Philippine citizen.

5. The purported reversal of the 1962 BOC Decision by Commissioner Nituda in 1973, cannot be given any effect. A close
examination of the same reveals that such purported reversal was highly irregular.

Respondent William Gatchalian alleges that Mr. Nituda, being in 1973 Acting Commissioner of Immigration, had the
authority to reverse the BOC Decision of 6 July 1962, since he (Nituda) had immediate control, direction and supervision
of all officers, clerks and employees of the Bureau of Immigration. Control means, respondent Gatchalian continues, the
power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter. 7

Respondent Gatchalian's view is obviously flawed. The Commissioner's power of control over the officers and employees
of the Bureau of Immigration cannot be compared to the power of control and supervision vested by the Constitution in the
President of the Philippines (which was what Ham was all about), for the Commissioner's general power of control cannot
be said to include the power to review and set aside the prior final decision reached by the BOC. The Commissioner of
Immigration, acting alone, cannot be regarded as an authority higher than the BOC itself (constituted by the
Commissioner and the two [2] Associate Commissioners), in respect of matters vested by the governing statute in such
Board itself. One of these matters is precisely the hearing and deciding of appeals from decisions of the BSI, and the
motu proprio review of the entire proceedings of a case within one (1) year from the promulgation of a decision by the BSI.
8

Respondent Gatchalian points to Section 29 (b) of the Immigration Act as amended, as empowering Nituda to reverse the
1962 BOC Decision. Section 29 (b) reads as follows:

Section 29. . . .

xxx xxx xxx

(b) Notwithstanding the provisions of this section, the Commissioner of Immigration, in his discretion, may
permit to enter (sic) any alien properly documented, who is subject to exclusion under this section, but
who is —

(1) an alien lawfully resident in the Philippines who is returning from a temporary visit
abroad;

(2) an alien applying for temporary admission.

It is difficult to understand respondent's argument. For one thing, Section 29 (b) relates to an "alien properly documented"
while respondent Gatchalian precisely claims to be a citizen of the Philippines rather than a resident alien returning from a
temporary visit abroad or an alien applying for temporary admission.

It should be recalled that Nituda's 1973 Decision approved a ruling rendered by a Board of Special Inquiry in 1973 that
respondent Gatchalian was properly documented, a ruling which was precipitated by a "Petition for Rehearing" filed by
respondent Gatchalian and his co-applicants in 8 March 1972 before the BSI. There are a number of obvious defects in
the action of the BSI. Firstly, the motion for rehearing was filed way out of time. Rule 3, B 22 of the Immigration Rules and
Regulations of 1 January 1941 provides as follows:
 53

At any time before the alien is deported, but not later than seven days from the date he receives notice of
the decision on appeal of the Board of Commissioners, the applicant or his attorney or counsel may file a
petition for rehearing only on the ground of newly discovered evidence. Such petition shall be in writing
and shall set forth the nature of the evidence discovered and the reason or reasons why it was not
produced before. . . . (Emphasis supplied)

Respondent Gatchalian's and his co-applicants' motion for rehearing was filed, not seven (7) days but rather ten (10)
years after notice of the 1962 BOC Decision had been received by them. Secondly, Rule 3, B 25 of the Immigration Rules
and Regulations prescribed that any motion for rehearing shall be filed only with the Board of Commissioners; the
Gatchalians' motion for rehearing was filed with the BSI which then purported to reopen the case "without first securing
the consent in writing of the Commissioner of Immigration" as required by Rule 2, D 20.

Furthermore, the purported reversal of the 1962 BOC Decision was made not by the duly constituted BOC in 1973, but
only by its Chairman, then Acting Commissioner Nituda. Mr. Nituda's action flew in the face of Rule 3, B 22 of the
Immigration Rules and Regulation, which mandates that the decision of any two (2) members of the BOC shall prevail. It
thus appears that Mr. Nituda purported to act as if he were the entire BOC. Indeed, even the BOC itself in 1973 could not
have lawfully reversed a final decision rendered by the BOC ten (10) years ago. 9

We must, finally, not lose sight of the ruling in Arocha vs. Vivo (supra) where the Supreme Court expressly outlined the
procedure to be followed by the BOC in resolving cases before them. This court was very explicit in holding that individual
actions of members of the BOC are legally ineffective:

. . . [T]he former Immigration Commissioners appeared to have acted individually in this particular
instance and not as a Board. It is shown by the different dates affixed to their signatures that they did not
actually meet to discuss and vote on the case. This was officially made to record by the Secretary of
Justice in his Memorandum Order No. 9, on January 24, 1962, wherein he stated.

that for the past several years, the Board of Commissioners of Immigration has not met
collectively to discuss and deliberate in the cases coming before it. [Citation omitted]

Individual action by members of a board plainly renders nugatory the purpose of its constitution as a
Board. The Legislature organized the Board of Commissioners precisely in order that they should
deliberate collectively and in order that their views and Ideas should be exchanged and examined before
reaching a conclusion (See Ryan vs. Humphrise, LRA 1915F 1047). This process is of the essence of a
board's action, save where otherwise provided by law, and the salutary effects of the rule would be lost
were the members to act individually, without benefit of discussion.

The powers and duties of boards and commissions may not be exercised by the
individual members separately. Their acts are official only when done by the members
convened in sessions, upon a concurrence of at least a majority and with at least a
quorum present. [Citation omitted]

Where the action needed is not of the individuals composing a board but of the official
body, the members must be together and act in their official capacity, and the action
should appear on the records of the board. [Citation omitted]

Where a duty is entrusted to a board, composed of different individuals, that board can
act officially only as such, in convened sessions, with the members, or a quorum thereof,
present. [Citation omitted] 10 (Emphasis supplied)

The act of Mr. Nituda of reversing the 1962 Decision of the BOC could not hence be considered as the act of the BOC
itself.

The pretended act of reversal 0of Mr. Nituda must, therefore, be stricken down and disregarded for having been made in
excess of his lawful authority. The 1973 order of Nituda was ineffective to vest any right upon respondent Gatchalian who,
it is worth nothing, did not pretend to submit any newly discovered evidence to support their claim to Philippine citizenship
 54

already rejected by the 1962 BOC. In essence, Mr. Nituda purported not merely to set aside the 1962 BOC Decision but
also the 1967 Decision of this Court in Arocha vs. Vivo.

II

I turn to an examination of the underlying facts which make up the basis of the claim of William Gatchalian to Philippine
citizenship. The most striking feature of this claim to Philippine citizenship is that it rests upon a fragile web constructed
out of self-serving oral testimony, a total lack of official documentation whether Philippine or foreign, of negative facts and
of invocation of presumptions without proof of essential factual premises. Put in summary terms, the claim of William
Gatchalian to Philippine citizenship rests upon three (3) premises, to wit:

a. that Santiago Gatchalian was a Philippine citizen;

b. the supposed filiation of Francisco Gatchalian as a legitimate son of Santiago Gatchalian, which leads
to the intermediate conclusion that Francisco was a Philippine citizen; and

c. the supposed filiation of William Gatchalian as a legitimate son of Francisco Gatchalian leading to the
final conclusion that William Gatchalian is a Philippine citizen.

I respectfully submit that a careful examination of the facts made of record will show that the correctness and factual
nature of each of these layered premises are open to very serious doubt, doubts which can only lead to the same
conclusion which the BOC reached on 6 July 1962 when it reversed the BSI, that is, that there was failure to prove the
Philippine citizenship of William Gatchalian and of his eight (8) alleged uncles, aunts and brother in 1961 when they first
arrived in the Philippines.

1. The supposed Philippine citizenship of Santiago Gatchalian must be considered first. Santiago was allegedly born in
Binondo, Manila, on 25 July 1905 to Pablo Pacheco and Marciana Gatchalian. The records do not disclose anything about
Pablo Pacheco but everyone, including William Gatchalian, assumes that Pablo Pacheco was a Chinese subject and
never became a citizen of the Philippine Islands. The basic claim of Santiago was that his mother Marciana Gatchalian
was a Philippine citizen and that Marciana was not lawfully married to Pablo Pacheco and that consequently, he
(Santiago) was an illegitimate son of Marciana Gatchalian.

The first point that should be made in respect of Santiago's claim was that he had always regarded himself as a Chinese
citizen until around 1958 or 1960, that is, when he reached the age of 53 or 55 years. Santiago, by his own testimony,
lived the bulk of his adult life in China where he went in 1924 at age 19 and where he stayed for about 13 years returning
to the Philippines for the first time in 1937. He returned in the same year to China, stayed there for another nine (9) years,
and then came back to the Philippines again in 1946. He once more left the Philippines for China on 14 April 1947 and
returned on 14 June 1947. Upon his second return to the Philippines in 1946, he documented himself as a Chinese
national: he was holder of ICR No. 7501 dated 3 May 1946. He continued to be documented as such, the record showing
that he was also holder of an ACR No. A-219003 dated 13 January 1951. Santiago, again by his own statement, married
in China a Chinese woman. This Chinese wife, however, Santiago never brought or attempted to bring to the Philippines
and she allegedly died in China in 1951, or four (4) years after Santiago had permanently returned to the Philippines.

In 1958, when he was 53 years of age, Santiago obtained a residence certificate where for the first time he described
himself as a Filipino. It was also only in 1960, that is, when Santiago was 55 years of age, that he filed a petition for
cancellation of his ACR obviously upon the theory that he had always been a Philippine citizen. It was at the hearing of his
petition for cancellation of his ACR that Santiago made his oral statements concerning the supposed circumstances of his
birth, parentage and marriage. Santiago's petition to cancel his ACR was apparently made in preparation for efforts to
bring in, the succeeding year, a whole group of persons as his supposed descendants.

The second point that needs to be made in respect of Santiago's claim of citizenship resting on his supposed status as an
illegitimate son of a Filipina woman, is that no birth certificate bearing the name of Santiago Gatchalian was ever
presented.

Instead, a baptismal certificate bearing the name Santiago Gatchalian was presented showing the name of Marciana
Gatchalian, Filipina, as mother, with the name of the father unknown. There was also presented a marriage certificate
dated 1936 of Joaquin Pacheco, alleged brother of Santiago Gatchalian, also showing Marciana Gatchalian as mother
 55

with the name of the father similarly left blank. These two (2) pieces of paper, together with Santiago's own statements to
the Citizenship Evaluation Board as well as the statements of Joaquin Pacheco to the same Board, constituted the sum
total of the evidence supporting Santiago's claim to Philippine citizenship and on the basis of which an Order dated 12
July 1960, signed by Felix S. Talabis, Associate Commissioner, granted the petition to cancel Santiago's alien registry.

In so issuing his Order granting cancellation of Santiago's ACR, Commissioner Talabis disregarded Santiago's failure to
present a birth certificate, in obvious violation of rules of the Bureau of Immigration which expressly require the
submission of a birth certificate, or a certified true copy thereof, in proceedings brought for cancellation of an ACR upon
the ground that the petitioner is an illegitimate son of a Filipina mother. 11 It is well-settled that a baptismal certificate is
proof only of the administration of baptism to the person named therein, and that such certificate is not proof of anything
else and certainly not proof of parentage nor of the status of legitimacy or
illegitimacy. 12

That Order also casually disregarded a number of other things, one of which was a document dated 1902 signed by
Maxima Gatchalian, the mother of Marciana Gatchalian, stating that Maxima —

. . . residing in the City of Manila, mother of Marciana Gatchalian, unmarried, of 18 years of age, her
father being dead, do hereby freely consent to her marriage with Pablo C. Pacheco, of Manila, and that I
know of no legal impediment to such marriage. (Emphasis supplied)

Such parental consent indicated that a marriage ceremony would have taken place shortly thereafter as a matter of
course; otherwise, the consent would have been totally pointless. Even more importantly, Commissioner Talabis' Order
disregarded the testimony of Santiago Gatchalian himself in the same cancellation proceedings that he (Santiago)
believed that his parents had been married by the Justice of the Peace of Pasig, Rizal. 13 In his Order, Commissioner
Talabis referred to the fact that Santiago Gatchalian had been "interchangeably using his parental and maternal
surnames. In school, he was known as Santiago Pacheco (Class Card for 1920-1921, Meisic Manila; Certificates of
Completion of Third and Fourth Grades, Meisic Primary School). But in his Special Cedula Certificate No. 676812 dated
17 September 1937, and in tax clearance certificate issued on 2 October 1937, he is referred to as Santiago Gatchalian;
and in a Communication dated 6 June 1941, he was addressed to as Santiago Pacheco by the Philippine Charity
Sweepstakes Office." At the very least, such use of both paternal and maternal surnames indicated that Santiago was
uncertain as to his supposed illegitimacy. In our case law, moreover, the use of a paternal surname may be regarded as
an indication of possession of the status of a legitimate or acknowledged natural child. 14

Perhaps the most important aspect of Commissioner Talabis Order granting cancellation of Santiago's ACR, is that such
Order failed to give any weight to the presumption in law in favor of marriage, a presumption significantly reinforced by the
parental consent given by Maxima Gatchalian to the marriage of her daughter Marciana Gatchalian to one Pablo C.
Pacheco. A related presumption is that in favor of the legitimacy of offspring born of a man and woman comporting
themselves as husband and wife. 15 I respectfully submit that these presumptions cannot be successfully overthrown by
the simple self-serving testimony of Santiago and of his alleged brother Joaquin Pacheco and by the two (2) pieces of
paper (the baptismal certificate of Santiago and the marriage certificate of Joaquin Pacheco). It seems relevant to point
out that Joaquin Pacheco, too, was unable to present any birth certificate to prove his supposed common parentage with
Santiago Gatchalian; Joaquin was allegedly born in 1902, the same year that Maxima Gatchalian gave her consent to the
marriage of Marciana Gatchalian and Pablo C. Pacheco.

The third point that needs to be underscored is that Santiago Gatchalian did nothing to try to bring into the Philippines his
supposed sons and daughters and grandchildren since 1947, when he returned permanently to the Philippines, and until
1960. The story given by the nine (9) supposed descendants of Santiago when they first arrived in the Philippines was
that they had left the People's Republic of China and had gone to Macao in 1952 and there they stayed until they moved
to Hongkong in 1958. It should also be noted that the youngest supposed child of Santiago, Benjamin Gatchalian, was
said to have been born in China in 1942 and was consequently only five (5) years old when Santiago returned
permanently to the Philippines in 1947. In other words, Santiago Gatchalian behaved as if the nine (9) supposed
descendants did not exist until 1960 when Commissioner Talabis' Order cancelling Santiago's ACR was issued.

It may also be noted that Santiago's 1951 ACR application mentioned only two (2) children of Santiago: Jose and Elena.
In 1961, however, Santiago stated before the immigration investigator that he had a total of five (5) children: Jose, Elena,
Francisco, Gloria and Benjamin. Santiago's explanation strongly echoes a common lawyer's excuse for failure to
seasonably file some pleading, and, it is respectfully submitted, is equally contrived and unpersuasive; that he had his
clerk fill up the ACR; that he gave his clerk four (4) names (not five [5]); that the clerk had simply failed to fill up the ACR
 56

correctly. In its 6 July 1962 Decision, the BOC noted that "while the two (2) names listed in [Santiago's] [ACR application]
Jose and Elena, bear the same names as two of the [9] applicants, the difference in the ages of said persons compared to
the said applicants, casts serious doubts on their Identity." 16

It is suggested in the majority opinion that the question of citizenship of Santiago Gatchalian is a closed matter which
cannot be reviewed by this Court; that per the records of the Bureau of Immigration, as of 20 July 1960, Santiago
Gatchalian had been declared to be a Filipino citizen and that this forecloses re-opening of that question thirty (30) years
later. I must, with respect, disagree with this suggestion. The administrative determination by the Bureau of Immigration
as of 20 July 1960 certainly does not constitute res adjudicata that forecloses this Court from examining the supposed
Philippine citizenship of Santiago Gatchalian upon which private respondent William Gatchalian seeks to rely. The Court
cannot avoid examining the Philippine nationality claimed by Santiago Gatchalian or, more accurately, claimed on his
behalf by William Gatchalian, considering that one of the central issues here is the tanability or untenability of the claim of
William Gatchalian to Philippine citizenship and hence to entry or admission to the Philippines as such citizen.

2. The second of the three (3) premises noted in the beginning of this section is: that Francisco Gatchalian was the
legitimate son of Santiago Gatchalian and therefore followed the supposed Philippine citizenship of Santiago. This
premise has in fact two (2) parts: (a) the physical filiation of Francisco Gatchalian as the son of Santiago Gatchalian; and
(b) that Santiago Gatchalian was lawfully married to the Chinese mother of Francisco Gatchalian. This premise is
remarkable for the total absence of documentary support for either of its two (2) parts. Francisco was born in Amoy, China
in 1931, according to Santiago. The sum total of the evidence on this premise consists of Francisco Gatchalian's own
statement and that of Santiago. No birth certificate or certified true copy thereof, or comparable documentation under
Chinese law, was submitted by either Santiago or by Francisco. No secondary evidence of any kind was submitted. No
testimony of a disinterested person was offered.

Santiago Gatchalian claimed to have been married in China in 1926 to a Chinese woman, Chua Gim Tee, out of which
marriage Francisco was allegedly born. No documentary proof of such marriage in China, whether primary or secondary,
was ever submitted. Neither was there ever presented any proof of the contents of the Chinese law on marriage in 1926
and of compliance with its requirements.

It is firmly settled in our jurisdiction that he who asserts and relies upon the existence of a valid foreign marriage must
prove not only the foreign law on marriage and the fact of compliance with the requisites of such law, but also the fact of
the marriage itself. In Yao Kee vs. Sy-Gonzales, 17 the issue before the Court was whether the marriage of petitioner Yao
Kee to the deceased Sy Kiat in accordance with Chinese law and custom had been adequately proven. In rendering a
negative answer, this Court, speaking through Cortes, J., said:

These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the
same do not suffice to establish the validity of said marriage in accordance with Chinese law and custom.

Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a
social rule, legally binding and obligatory." The law requires that "a custom must be proved as a fact,
according to the rules of evidence" [Article 12, Civil Code]. On this score the Court had occasion to state
that "a local custom as a source of right can not be considered by a court of justice unless such custom is
properly established by competent evidence like any other fact" [Patriarca vs. Orato, 7 Phil. 390, 395
(1907)]. The same evidence, if not one of a higher degree, should be required of a foreign custom.

The law on foreign marriages is provided by Article 71 of the Civil Code which states that:

Art. 71. All marriages performed outside the Philippines in accordance with the laws in
force in the country where they were performed, and valid there as such, shall also be
valid in this country, except bigamous, polygamous, or incestuous marriages, as
determined by Philippine law.

Construing this provision of law the Court has held that to establish a valid foreign marriage two things
must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged
foreign marriage by convincing evidence [Adong vs. Cheong Seng Gee, 43 Phil. 43, 49 (1922). 18
(Emphasis supplied)
 57

In the instant case, there was absolutely no proof other than Santiago's bare assertion that a marriage ceremony between
Santiago and Chua Gim Tee had taken place in China in accordance with Chinese law. The contents of the relevant
Chinese law on marriage at the time of the supposed marriage, was similarly not shown. Should it be assumed simply that
the requirements of the 1926 Chinese law on marriage are identical with the requirements of the Philippine law on
marriage, it must be pointed out that neither Santiago nor Francisco Gatchalian submitted proof that any of the
requirements of a valid marriage under Philippine law had been complied with.

I respectfully urge, therefore, that the reliance in the majority opinion upon our conflicts rule on marriage embodied in
Article 71 of the Civil Code (now Article 26 of the Family Code; then Section 19 of Act No. 3630) is unwarranted. The rule
that a foreign marriage valid in accordance with the law of the place where it was performed shall be valid also in the
Philippines, cannot begin to operate until after the marriage performed abroad and its compliane with the requirements for
validity under the marriage law of the place where performed, are first shown as factual matters. There is, in other words,
no factual basis for a presumption that a lawful marriage under Chinese law had taken place in 1926 in China between
Santiago Gatchalian and Chua Gim Tee.

It must follow also that Francisco Gatchalian cannot simply rely upon a presumption of legitimacy of offspring of a valid
marriage. As far as the record here is concerned, there could well have been no marriage at all in China between
Santiago Gatchalian and Chua Gim Tee (just as Santiago had insisted that his father and mother had never married each
other) and that consequently Francisco Gatchalian could just as well have followed the nationality of his admittedly
Chinese mother.

3. The last premise noted earlier is the supposed filiation of William Gatchalian as a legitimate son of Francisco which
resulted in William's following the supposed Philippine citizenship of Francisco Gatchalian. William was, according to
Santiago Gatchalian, born in Amoy, China in 1949. Here again, just in the case of Francisco Gatchalian, there is a
complete absence of contemporaneous documentary evidence of the supposed filiation of William Gatchalian as a
legitimate son of Francisco Gatchalian. 19 The only support ever presented for such alleged filiation consisted of the oral
statements of Santiago Gatchalian, Francisco Gatchalian and William Gatchalian. It is difficult to resist the impression that
there took place here a pyramiding of oral statements, each resting upon another oral statement and all going back to the
supposed bastardy of Santiago, a status suddenly discovered or asserted by Santiago in his 55th year in life. No birth
certificate, or comparable documentation under Chinese law, exhibiting the name of William Gatchalian was submitted.

Francisco Gatchalian stated that he had married a Chinese woman, Ong Siu Kiok, in Amoy in 1947 according to Chinese
custom. Once again, we must note that there was no proof submitted that a marriage ceremony satisfying the
requirements of "Chinese custom" had ever taken place in China between Francisco and Ong Siu Kiok; neither was there
any proof that a marriage "according to Chinese custom" was valid and lawful under Chinese law in 1947 and of factual
compliance with the requirements of the law and custom in China concerning marriage. 20 Ong Siu Kiok was alleged to
have died in Macau and never came to the Philippines. It must then follow, once again, that no presumption of a lawful
marriage between Francisco Gatchalian and his alleged Chinese wife can be invoked by William Gatchalian. It follows still
further that William Gatchalian cannot invoke any presumption of legitimacy in his own favor. As in the case of his putative
father Francisco, William could as well have followed the nationality of his concededly Chinese mother.

One final note: it might be thought that the result I have reached is unduly harsh considering the prolonged physical stay
of William Gatchalian in the country. But this Court must apply the law as it is in fact written. I respectfully submit that the
appropriate recourse of respondent William Gatchalian, should he feel that he has some humanitarian claim to a right to
stay in the Philippines, is to the political departments of Government. Those departments of Government may then
consider the wisdom and desirability, in the light of the interests of the country, of legislation permitting the legalization of
the entry and stay in the Philippines of respondent William Gatchalian and those similarly situated. Unless and until such
legislation is enacted, this Court really has no choice save to apply and enforce our immigration law and regulations and
our law on citizenship.

Accordingly, I vote to GRANT the Petition for Certiorari and Prohibition in G.R. Nos. 95122-23, and to SET ASIDE the
Resolution/Temporary Restraining Order dated 7 September 1990 issued by respondent Judge Dela Rosa in Civil Case
No. 90-5214, as well as the Order of respondent Judge Capulong dated 6 September 1990 in Civil Case No. 3431-V-90;
and to RE-AFFIRM that respondent William Gatchalian is not a Philippine citizen.

Melencio-Herrera, Cruz, Paras, Padilla, Regalado, JJ., concur

 58

Board of Commissioners vs Dela Rosa

5 11 2010

197 scra 863

Processual Presumption

On July 6, 1960, Santiago Gatchalian, grandfather of William Gatchalian, was recognized by the BOI as a native born
Filipino citizen. Santiago Gatchalian testified that he has 5 children.

On June 27, 1961, William Gatchalian then a twelve year old minor arrived in Manila and sought admission as Filipino
citizen which was eventually granted by the board of special inquiry. However, the Secretary of Justice issued a
memorandum setting aside all decisions and directed the Board of Commissions to review all cases where entry was
allowed among which was that of William Gatchalian.

ISSUE: Whether or not the marriage of Gatchalian in China is valid in accordance with Philippine law.

HELD: The Supreme Court held that in the absence of the evidence to the contrary foreign laws on a particular subject
are presumed to be the same as those of the Philippines. This is known as Processual Presumption. In this case, there
being no proof of Chinese law relating to marriage, there arises a presumption that it is the same of that of Philippine law
the said marriage then is declared valid. Therefore, William Gatchalian following the citizenship of his father is a Filipino
citizen.

G.R. No. 118712 July 5, 1996

LAND BANK OF THE PHILIPPINES, petitioner,

vs.
COURT OF APPEALS, PEDRO L. YAP, HEIRS OF EMILIANO F. SANTIAGO, AGRICULTURAL MANAGEMENT &
DEVELOPMENT CORPORATION, respondents.

G.R. No. 118745 July 5, 1996

DEPARTMENT OF AGRARIAN REFORM, represented by the Secretary of Agrarian Reform, petitioner,

vs.
COURT OF APPEALS, PEDRO L. YAP, HEIRS OF EMILIANO F. SANTIAGO, AGRICULTURAL MANAGEMENT AND
DEVELOPMENT CORPORATION, ET AL., respondents.

FRANCISCO, R., J.:p

Consequent to the denial of their petitions for review on certiorari by this Court on October 6, 1995 1,
petitioners Department of Agrarian Reform (DAR) and Land Bank of the Philippines (LBP), filed their
 59

respective motions for reconsideration contending mainly that, contrary to the Court's conclusion, the
opening of trust accounts in favor of the rejecting landowners is sufficient compliance with the mandate of
Republic Act 6657. Moreover, it is argued that there is no legal basis for allowing the withdrawal of the
money deposited in trust for the rejecting landowners pending the determination of the final valuation of
their properties.

Petitioner DAR maintains that "the deposit contemplated by Section 16(e) of Republic Act 6657, absent
any specific indication, may either be general or special, regular or irregular, voluntary or involuntary
(necessary) or other forms known in law, and any thereof should be, as it is the general rule, deemed
complying." 2

We reject this contention. Section 16(e) of Republic Act 6657 was very specific in limiting the type of
deposit to be made as compensation for the rejecting landowners, that is in "cash" or in "LBP bonds", to
wit:

Sec. 16. Procedure for Acquisition of Private Lands —

xxx xxx xxx

(e) Upon receipt by the landowner of the corresponding payment or, in case of rejection or no
response from the landowner, upon the deposit with an accessible bank designated by the DAR
of the compensation in cash or in LBP bonds in accordance with this Act, the DAR shall take
immediate possession of the land and shall request the proper Register of Deeds to issue a
Transfer Certificate of Title (TCT) in the name of the Republic of the Philippines. . . . . (Emphasis
supplied)

The provision is very clear and unambiguous, foreclosing any doubt as to allow an expanded construction
that would include the opening of "trust accounts" within the coverage of the term "deposit". Accordingly,
we must adhere to the well-settled rule that when the law speaks in clear and categorical language, there
is no reason for interpretation or construction, but only for application. 3 Thus, recourse to any rule which
allows the opening of trust accounts as a mode of deposit under Section 16(e) of RA 6657 goes beyond
the scope of the said provision and is therefore impermissible. As we have previously declared, the rule-
making power must be confined to details for regulating the mode or proceedings to carry into effect the
law as it has been enacted, and it cannot be extended to amend or expand the statutory requirements or
to embrace matters not covered by the statute. 4 Administrative regulations must always be in harmony
with the provisions of the law because any resulting discrepancy between the two will always be resolved
in favor of the basic law. 5

The validity of constituting trust accounts for the benefit of the rejecting landowners and withholding
immediate payment to them is further premised on the latter's refusal to accept the offered compensation
thereby making it necessary that the amount remains in the custody of the LBP for safekeeping and in
trust for eventual payment to the landowners. 6 Additionally, it is argued that the release of the amount
deposited in trust prior to the final determination of the just compensation would be premature and expose
the government to unnecessary risks and disadvantages, citing the possibility that the government may
subsequently decide to abandon or withdraw from the coverage of the CARP certain portions of the
properties that it has already acquired, through supervening administrative determination that the subject
land falls under the exempt category, or by subsequent legislation allowing additional exemptions from
the coverage, or even the total scrapping of the program itself. Force majeure is also contemplated in
view of the devastation suffered by Central Luzon due to lahar. Petitioner DAR maintains that under these
conditions, the government will be forced to institute numerous actions for the recovery of the amounts
that it has already paid in advance to the rejecting landowners. 7

We are not persuaded. As an exercise of police power, the expropriation of private property under the
CARP puts the landowner, and not the government, in a situation where the odds are already stacked
against his favor. He has no recourse but to allow it. His only consolation is that he can negotiate for the
amount of compensation to be paid for the expropriated property. As expected, the landowner will
exercise this right to the hilt, but subject however to the limitation that he can only be entitled to a "just
compensation." Clearly therefore, by rejecting and disputing the valuation of the DAR, the landowner is
 60

merely exercising his right to seek just compensation. If we are to affirm the withholding of the release of
the offered compensation despite depriving the landowner of the possession and use of his property, we
are in effect penalizing the latter for simply exercising a right afforded to him by law.

Obviously, this would render the right to seek a fair and just compensation illusory as it would discourage
owners of private lands from contesting the offered valuation of the DAR even if they find it unacceptable,
for fear of the hardships that could result from long delays in the resolution of their cases. This is contrary
to the rules of fair play because the concept of just compensation embraces not only the correct
determination of the amount to be paid to the owners of the land, but also the payment of the land within a
reasonable time from its taking. Without prompt payment, compensation cannot be considered "just" for
the property owner is made to suffer the consequence of being immediately deprived of his land while
being made to wait for a decade or more before actually receiving the amount necessary to cope with his
loss. 8

It is significant to note that despite petitioners' objection to the immediate release of the rejected
compensation, petitioner LBP, taking into account the plight of the rejecting landowners, has nevertheless
allowed partial withdrawal through LBP Executive Order No. 003, 9 limited to fifty (50) per cent of the net
cash proceeds. This is a clear confirmation that petitioners themselves realize the overriding need of the
landowners' immediate access to the offered compensation despite rejecting its valuation. But the effort,
through laudable, still falls short because the release of the amount was unexplainably limited to only fifty
per cent instead of the total amount of the rejected offer, notwithstanding that the rejecting landowner's
property is taken in its entirety. The apprehension against the total release of the rejected compensation
is discounted since the government's interest is amply protected under the aforementioned payment
scheme because among the conditions already imposed is that the landowner must execute a Deed of
Conditional Transfer for the subject property. 10

Anent the aforecited risks and disadvantages to which the government allegedly will be unnecessarily
exposed if immediate withdrawal of the rejected compensation is allowed, suffice it to say that in the
absence of any substantial evidence to support the same, the contemplated scenarios are at the moment
nothing but speculations. To allow the taking of the landowners' properties, and in the meantime leave
them empty handed by withholding payment of compensation while the government speculates on
whether or not it will pursue expropriation, or worse for government to subsequently decide to abandon
the property and return it to the landowner when it has already been rendered useless by force majeure,
is undoubtedly an oppressive exercise of eminent domain that must never be sanctioned. Legislations in
pursuit of the agrarian reform program are not mere overnight creations but were the result of long
exhaustive studies and even heated debates. In implementation of the program, much is therefore
expected from the government. Unduly burdening the property owners from the resulting flaws in the
implementation of the CARP which was supposed to have been a carefully crafted legislation is plainly
unfair and unacceptable.

WHEREFORE, in view of the foregoing, petitioners' motions for reconsideration are hereby DENIED for
lack of merit.

SO ORDERED.