CASES ON INSPECTION vs SEARCH

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

WILLIAM
T.
GATCHALIAN, petitioner,
vs.
BOARD OF COMMISSIONERS (COMMISSION ON IMMIGRATION AND
DEPORTATION), et al., respondents.
The
edesma,

Solicitor
Saludo &

General
for
Associates for respondent William

petitioners.
Gatchalian.

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

BIDIN, J.:
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 CounterPetition, 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).
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. 9054214 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 the question of
respondent's citizenship in the deportation case because of their bias, prejudgment 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 corpusand
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.
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.
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(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 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 illmeaning 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 Cocases.
Ordinarily, the case would then be remanded to the Regional Trial Court. But
not in the case at bar.1wphi1 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 (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 Vivocases, 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 judicatadoes 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:
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:
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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;
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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."
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 CounterPetition), 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 reopening 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.
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)
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 eightyear 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 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:
(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, Grio-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, 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. Forumshopping 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.
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 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?
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
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;
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(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;
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(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;
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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 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 COUNTERPETITION.

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 coapplicants. 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
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.
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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
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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 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 Sectionat 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) yearlimitation 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), noperiod 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, underSection 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 theImmigration Act, Sec. 29 (a) sub par.
(17).
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(Emphasis supplied)
Section 37 (a) (1) and (2), of Commonwealth Act No. 613, as amended, provides
as follows:

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.
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(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;
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(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).
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 coapplicants 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.
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 corpusproceeding 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:
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 "alienproperly 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 coapplicants 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:
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 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

Philippines.

had

permanently

returned

to

the

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 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
ofparentage 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 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 constituteres 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. SyGonzales, 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)

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.1wphi1 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

Republic

of

the

SUPREME

Philippines
COURT

Manila
EN BANC
A.C. No. 6470

July 8, 2014

MERCEDITA

DE

JESUS, Complainant,

vs.
ATTY. JUVY MELL SANCHEZMALIT, Respondent.
RESOLUTION
SERENO, CJ:
Before the Court is a disbarment complaint filed by Mercedita De Jesus (De
Jesus) against respondent Atty. Juvy Mell Sanchez-Malit (Sanchez-Malit) on the
following

grounds:

grave

misconduct,

dishonesty,

malpractices,

and

unworthiness to become an officer of the Court.

THE FACTS OF THE CASE
In the Affidavit-Complaint1 filed by complainant before the Office of the Bar
Confidant on 23 June 2004, she alleged that on 1 March 2002, respondent had
drafted and notarized a Real Estate Mortgage of a public market stall that
falsely named the former as its absolute and registered owner. As a result, the
mortgagee sued complainant for perjury and for collection of sum of money.
She claimed that respondent was a consultant of the local government unit of
Dinalupihan, Bataan, and was therefore aware that the market stall was
government-owned. Prior thereto, respondent had also notarized two contracts
that caused complainant legal and financial problems. One contract was a
lease agreement notarized by respondent sometime in September 1999 without
the signature of the lessees. However, complainant only found out that the
agreement had not been signed by the lessees when she lost her copy and she

asked for another copy from respondent. The other contract was a sale
agreement over a property covered by a Certificate of Land Ownership Award
(CLOA) which complainant entered into with a certain Nicomedes Tala (Tala) on
17 February 1998. Respondent drafted and notarized said agreement, but did
not advise complainant that the property was still covered by the period within
which it could not be alienated.
In addition to the documents attached to her complaint, complainant
subsequently submitted three Special Powers of Attorney (SPAs) notarized by
respondent and an Affidavit of Irene Tolentino (Tolentino), complainants
secretary/treasurer. The SPAs were not signed by the principals named therein
and bore only the signature of the named attorneyin-fact, Florina B. Limpioso
(Limpioso). Tolentinos Affidavit corroborated complainants allegations against
respondent.2
On 4 August 2004, the Second Division of the Supreme Court issued a
Resolution requiring respondent to submit her comment on the Complaint
within ten (10) days from receipt of notice.3
In her Comment,4 respondent explained thatthe mortgage contract was
prepared in the presence of complainant and that the latter had read it before
affixing her signature. However, complainant urgently needed the loan proceeds
so the contract was hastily done. It was only copied from a similar file in
respondents computer, and the phrase "absolute and registered owner" was
inadvertently left unedited. Still, it should not be a cause for disciplinary
action, because complainant constructed the subject public market stall under
a "Build Operate and Transfer" contract with the local government unit and,
technically, she could be considered its owner. Besides, there had been a prior
mortgage contract over the same property in which complainant was
represented as the propertys absolute owner, but she did not complain.
Moreover, the cause of the perjury charge against complainant was not the
representation ofherself as owner of the mortgaged property, but her guarantee
that it was free from all liens and encumbrances. The perjury charge was even
dismissed, because the prosecutor found that complainant and her spouse

had, indeed, paid the debt secured with the previous mortgage contract over
the same market stall.
With respect to the lease agreement, respondent countered that the document
attached to the Affidavit-Complaint was actually new. She gave the courts copy
of the agreement to complainant to accommodate the latters request for an
extra copy. Thus, respondent prepared and notarized a new one, relying on
complainants assurance that the lessees would sign it and that it would be
returned in lieu of the original copy for the court. Complainant, however,
reneged on her promise.
As regards the purchase agreement of a property covered by a CLOA,
respondent claimed that complainant was an experienced realty broker and,
therefore, needed no advice on the repercussions of that transaction. Actually,
when the purchase agreement was notarized, complainant did not present the
CLOA, and so the agreement mentioned nothing about it. Rather, the
agreement expressly stated that the property was the subject of a case pending
before the Department of Agrarian Reform Adjudication Board (DARAB);
complainant was thus notified of the status of the subject property. Finally,
respondent maintained that the SPAs submitted by complainant as additional
evidence wereproperly notarized. It can be easily gleaned from the documents
that the attorney-in-fact personally appeared before respondent; hence,the
notarization was limited to the formers participation in the execution ofthe
document. Moreover, the acknowledgment clearly stated that the document
must be notarized in the principals place of residence.
An exchange of pleadings ensuedafter respondent submitted her Comment.
After her rejoinder, complainant filed an Urgent Ex-ParteMotion for Submission
of Additional Evidence.5 Attached thereto were copies of documents notarized
by respondent, including the following: (1) an Extra Judicial Deed of Partition
which referred to the SPAs naming Limpioso as attorney-in-fact; (2) five SPAs
that lacked the signatures of either the principal or the attorney-in-fact; (3) two
deeds of sale with incomplete signatures of the parties thereto; (4) an unsigned
Sworn Statement; (5) a lease contract that lacked the signature of the lessor;
(6) five unsigned Affidavits; (7) an unsigned insurance claim form (Annual

Declaration by the Heirs); (8) an unsigned Invitation Letter toa potential

investor in Japan; (9) an unsigned Bank Certification; and (10)an unsigned
Consent to Adoption.
After the mandatory conference and hearing, the parties submitted their
respective Position Papers.6 Notably, respondents Position Paper did not tackle
the additional documents attached to complainants Urgent Ex ParteMotion.
THE FINDINGS OF THE IBP
In his 15 February 2008 Report, IBP Investigating Commissioner Leland R.
Villadolid, Jr. recommended the immediate revocation of the Notarial
Commission of respondent and her disqualification as notary public for two
years for her violation of her oath as such by notarizing documents without the
signatures of the parties who had purportedly appeared before her. He
accepted respondents explanations with respect to the lease agreement, sale
contract, and the three SPAs pertaining to Limpioso. However, he found that
the inaccurate crafting of the real estate mortgage contract was a sufficient
basis to hold respondent liable for violation of Canon 18 7 and Rule 18.038 of
the Code of Professional Responsibility. Thus, he also recommended that she
besuspended from the practice of law for six months.9
The IBP Board of Governors, inits Resolution No. XVIII-2008-245 dated 22 May
2008, unanimously adopted and approved the Report and Recommendation of
the Investigating Commissioner, with the modification that respondent be
suspended from the practice of law for one year.10
Respondent filed her first Motion for Reconsideration 11 and Second Motion for
Reconsideration.12 She maintained that the additional documents submitted by
complainant were inadmissible, as they were obtained without observing the
procedural requisites under Section 4, Rule VI of Adm. No. 02-08-13 SC (2004
Rules on Notarial Practice).13 Moreover,

the Urgent

Ex

ParteMotion of

complainant was actually a supplemental pleading, which was prohibited

under the rules of procedure of the Committee on Bar Discipline; besides, she
was not the proper party to question those documents. Hence, the investigating
commissioner should have expunged the documents from the records, instead

of

giving

them

due

course.

Respondent

also

prayed

that

mitigating

circumstances be considered, specifically the following: absence of prior

disciplinary record; absence of dishonest or selfish motive; personal and
emotional problems; timely goodfaith effort to make restitution or to rectify the
consequences of her misconduct; full and free disclosure to the disciplinary
board or cooperative attitude toward the proceedings; character or reputation;
remorse; and remoteness of prior offenses.
The IBP Board of Governors, inits Resolution No. XX-2012-119 dated 10 March
2012, deniedrespondents motion for reconsideration for lack of substantial
reason to justify a reversal of the IBPs findings.14
Pursuant to Rule 139-B of the Rules of Court, Director for Bar Discipline Pura
Angelica Y. Santiago through a letter addressed to then acting Chief Justice
Antonio T. Carpio transmitted the documents pertaining to the disbarment
Complaint against respondent.15
THE COURTS RULING
After carefully reviewing the merits of the complaint against respondent and
the parties submissions in this case, the Court hereby modifies the findings of
the IBP.
Before going into the substance of the charges against respondent, the Court
shall first dispose of some procedural matters raised by respondent.
Respondent argues that the additional documents submitted in evidence by
complainant are inadmissible for having been obtained in violation of Section 4,
Rule VI of the 2004 Rules on Notarial Practice. A comparable argument was
raised in Tolentino v. Mendoza,16 in which the respondent therein opposed the
admission of the birth certificates of his illegitimate children as evidence of his
grossly immoral conduct, because those documents were obtained in violation
Rule 24, Administrative Order No. 1, Series of 1993.17 Rejecting his argument,
the Court reasoned as follows:

Section 3, Rule 128 of the Revised Rules on Evidence provides that "evidence is
admissible when it isrelevant to the issue and is not excluded by the law or
these rules." There could be no dispute that the subject birth certificates are
relevant to the issue. The only question, therefore, is whether the law or the
rules provide for the inadmissibility of said birth certificates allegedly for
having been obtained in violation of Rule 24, Administrative Order No. 1, series
of 1993.
Note that Rule 24, Administrative Order No. 1, series of 1993 only provides for
sanctions against persons violating the ruleon confidentiality of birth records,
but nowhere does itstate that procurement of birth records in violation of said
rule would render said records inadmissible in evidence. On the other hand,
the Revised Rules of Evidence only provides for the exclusion of evidence if it is
obtained as a result of illegal searches and seizures. It should be emphasized,
however, that said rule against unreasonable searches and seizures is meant
only to protect a person from interference by the government or the state. In
People vs. Hipol, we explained that: The Constitutional proscription enshrined
in the Bill of Rights does not concern itself with the relation between a private
individual and another individual. It governs the relationship between the
individual and the State and its agents. The Bill of Rights only tempers
governmental power and protects the individual against any aggression and
unwarranted interference by any department of government and its agencies.
Accordingly, it cannot be extended to the acts complained of in this case. The
alleged "warrantless search" made by Roque, a co-employee of appellant at the
treasurer's office, can hardly fall within the ambit of the constitutional
proscription on unwarranted searches and seizures.
Consequently, in this case where complainants, as private individuals,
obtained the subject birth records as evidence against respondent, the
protection against unreasonable searches and seizures does not apply.
Since both Rule 24, Administrative Order No. 1, series of 1993 and the Revised
Rules on Evidence do not provide for the exclusion from evidence of the birth
certificates inquestion, said public documents are, therefore, admissible and

should be properly taken into consideration in the resolution of this

administrative case against respondent.18
Similarly, the 2004 Rules on Notarial Law contain no provision declaring the
inadmissibility of documents obtained in violation thereof. Thus, the IBP
correctly consideredin evidence the other notarized documents submitted by
complainant as additional evidence.
Respondents argument that the Urgent Ex-ParteMotion of complainant
constitutes a supplemental pleading must fail as well. As its very name
denotes, a supplemental pleading only serves to bolster or adds something to
the primary pleading. Its usual office is to set up new facts which justify,
enlarge or change the kind of relief with respect to the same subject matter as
the controversy referred to in the original complaint. 19 Accordingly, it cannot be
said that the Urgent Ex-Parte Motion filed by complainant was a supplemental
pleading.

One

of

her

charges

against

respondent

is

that

the

latter

notarizedincomplete documents, as shown by the SPAs and lease agreement

attached to the Affidavit-Complaint. Complainant is not legally barred from
submitting additional evidence to strengthen the basis of her complaint.
Going now into the substance of the charges against respondent, the Court
finds that she committed misconduct and grievously violated her oath as a
notary public.
The important role a notary public performs cannot be overemphasized. The
Court has repeatedlystressed that notarization is not an empty, meaningless
routinary act, but one invested with substantive public interest. Notarization
converts a private document into a public document, making it admissible in
evidence without further proof of its authenticity. Thus, a notarized document
is, by law, entitled tofull faith and credit upon its face. It is for this reason that
a notary public must observe with utmost care the basic requirements in the
performance of his notarial duties; otherwise, the public's confidence in the
integrity of a notarized document would be undermined.20
Where the notary public admittedly has personal knowledge of a false
statement or information contained in the instrument to be notarized, yet

proceeds to affix the notarial seal on it, the Court must not hesitate to
discipline the notary public accordingly as the circumstances of the case may
dictate. Otherwise, the integrity and sanctity of the notarization process may
be undermined, and public confidence in notarial documents diminished. 21 In
this case, respondent fully knew that complainant was not the owner of the
mortgaged market stall. That complainant comprehended the provisions of the
real estate mortgage contractdoes not make respondent any less guilty. If at all,
it only heightens the latters liability for tolerating a wrongful act. Clearly,
respondents conduct amounted to a breach of Canon 1 22 and Rules 1.0123 and
1.0224 of the Code of Professional Responsibility.
Respondents explanation about the unsigned lease agreement executed by
complainant sometime in September 199925 is incredulous. If, indeed, her file
copy of the agreement bore the lessees signatures, she could have given
complainant a certified photocopy thereof. It even appears that said lease
agreement is not a rarityin respondents practice as a notary public. Records
show that on various occasions from 2002 to 2004, respondent has notarized
22 documents that were either unsigned or lacking signatures of the parties.
Technically, each document maybe a ground for disciplinary action, for it is the
duty of a notarial officer to demand that a document be signed in his or her
presence.26
A notary public should not notarize a document unless the persons who signed
it are the very same ones who executed it and who personally appeared before
the said notary public to attest to the contents and truth of what are stated
therein.27 Thus, in acknowledging that the parties personally came and
appeared before her, respondent also violated Rule 10.0128 of the Code of
Professional Responsibility and her oath as a lawyer that she shall do no
falsehood.29 Certainly, respondent is unfit to continue enjoying the solemn
office of a notary public. In several instances, the Court did not hesitate to
disbar lawyers who were found to be utterly oblivious to the solemnity of their
oath as notaries public.30 Even so, the rule is that disbarment is meted out
only in clear cases of misconduct that seriously affect the standing and
character of the lawyer as an officer of the court and the Court will not disbar a
lawyer where a lesser penalty will suffice to accomplish the desired end. 31 The

blatmt disregard by respondent of her basic duties as a notary public warrants

the less severe punishment of suspension from the practice of law and
perpetual disqualification to be commissioned as a notary public.
WHEREFORE, respondent Atty. Juvy Mell Sanchez-Malit is found guilty of
violating Canon 1 and Rules 1.01, 1.02, and 10.01 of the Code of Professional
Responsibility as well as her oath as notary public. Hence, she is SUSPENDED
from the practice of law for ONE YEAR effective immediately. Her notarial
commission, if still existing, is IMMEDIATELY REVOKED and she is hereby
PERPETUALLY DISQUALIFIED from being commissioned as a notary public.
Let copies of this Resolution be entered into the personal records of respondent
as a member of the bar and furnished to the Bar Confidant, the Integrated Bar
of the Philippines, and the Court Administrator for circulation to all courts of
the country for their information and guidance.
No costs.
SO ORDERED.
MARIA

LOURDES

P.

A.

SERENO

Chief Justice, Chairperson

Republic

of

the

SUPREME

Philippines
COURT

Manila
EN BANC

G.R. No. 123872 January 30, 1998

PEOPLE

OF

THE

PHILIPPINES, plaintiff-appellee,

vs.
RUBEN MONTILLA y GATDULA, accused-appellant.

REGALADO, J.:
Accused-Appellant Ruben Montilla y Gatdula alias "Joy," was charged on
August 22, 1994 for violating Section 4, Article II of the Dangerous Drugs Act of
1972, Republic Act No. 6425, as amended by Republic Act No. 7659, before the
Regional Trial Court, Branch 90, of Dasmarias, Cavite in an information
which alleges:
That on or about the 20th day of June 1994, at Barangay Salitran,
Municipality of Dasmarias, Province of Cavite, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, not
being authorized by law, did then and there, willfully, unlawfully and
feloniously, administer, transport, and deliver twenty-eight (28) kilos of
dried marijuana leaves, which are considered prohibited drugs, in
violation of the provisions of R.A. 6425 thereby causing damage and
prejudice to the public interest.

The consequent arraignment conducted on September 14, 1994 elicited a plea

of not guilty from appellant who was assisted therein by his counsel de
parte. 2 Trial was held on scheduled dates thereafter, which culminated in a
verdict of guilty in a decision of the trial court dated June 8, 1995 and which
imposed the extreme penalty of death on appellant. He was further ordered to
pay a fine in the amount of P500,000.00 and to pay the costs of the
proceedings. 3
It appears from the evidence of the prosecution that appellant was
apprehended at around 4:00 A.M. of June 20, 1994 near a waiting shed located
at Barangay Salitran, Dasmarias, Cavite by SPO1 Concordio Talingting and
SPO1 Armando Clarin, both members of the Cavite Philippine National Police
Command based in Dasmarias. Appellant, according to the two officers, was
caught transporting 28 marijuana bricks contained in a traveling bag and a
carton box, which marijuana bricks had a total weight of 28 kilos.

These two officers later asserted in court that they were aided by an informer
in the arrest of appellant. That informer, according to Talingting and Clarin,
had informed them the day before, or on June 19, 1994 at about 2:00 P.M.,
that a drug courier, whom said informer could recognize, would be arriving
somewhere in Barangay Salitran, Dasmarias from Baguio City with an
undetermined amount of marijuana. It was the same informer who pinpointed
to the arresting officers the appellant when the latter alighted from a passenger
jeepney on the aforestated day, hour, and place. 4
Upon the other hand, appellant disavowed ownership of the prohibited drugs.
He claimed during the trial that while he indeed came all the way from Baguio
City, he traveled to Dasmarias, Cavite with only some pocket money and
without any luggage. His sole purpose in going there was to look up his cousin
who had earlier offered a prospective job at a garment factory in said locality,
after which he would return to Baguio City. He never got around to doing so as
he was accosted by SPO1 Talingting and SPO1 Clarin at Barangay Salitran.
He further averred that when he was interrogated at a house in Dasmarias,
Cavite, he was never informed of his constitutional rights and was in fact even
robbed of the P500.00 which he had with him. Melita Adaci, the cousin,
corroborated appellant's testimony about the job offer in the garment factory
where she reportedly worked as a supervisor, 5 although, as the trial court
observed, she never presented any document to prove her alleged employment.
In the present appellate review, appellant disputes the trial court's finding that
he was legally caught in flagrantetransporting the prohibited drugs. This Court,
after an objective and exhaustive review of the evidence on record, discerns no
reversible error in the factual findings of the trial court. It finds unassailable
the reliance of the lower court on the positive testimonies of the police officers
to whom no ill motives can be attributed, and its rejection of appellant's fragile
defense of denial which is evidently self-serving in nature.
1. Firstly, appellant asserts that the court a quo grossly erred in convicting him
on the basis of insufficient evidence as no proof was proffered showing that he
willfully, unlawfully, and feloniously administered, transported, and delivered

28 kilos of dried marijuana leaves, since the police officers "testified only on the
alleged transporting of Marijuana from Baguio City to Cavite."
Further, the failure of the prosecution to present in court the civilian informant
is supposedly corrosive of the People's cause since, aside from impinging upon
appellant's fundamental right to confront the witnesses against him, that
informant was a vital personality in the operation who would have contradicted
the hearsay and conflicting testimonies of the arresting officers on how
appellant was collared by them.
The pertinent provision of the penal law here involved, in Section 4 of Article II
thereof, as amended, is as follows:
Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of
Prohibited Drugs. The penalty ofreclusion perpetua to death and a fine
ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of such
transactions.
Notwithstanding the provision of Section 20 of this Act to the contrary, if
the victim of the offense is a minor, or should a prohibited drug involved
in any offense under this Section be the proximate cause of the death of
a victim thereof, the maximum penalty herein provided shall be imposed.
Now, the offense ascribed to appellant is a violation of the Dangerous Drugs
Act, some of the various modes of commission 6 being the sale, administration,
delivery, distribution, and transportation of prohibited drugs as set forth in the
epigraph of Section 4, Article II of said law. The text of Section 4 expands and
extends its punitive scope to other acts besides those mentioned in its
headnote by including these who shall sell, administer, deliver, give away to
another, distribute, dispatch in transit or transport any prohibited drug, or
shall act as a broker in any of such transactions," Section 4 could thus be
violated by the commission of any of the acts specified therein, or a

combination thereof, such as selling, administering, delivering, giving away,

distributing, dispatching in transit or transporting, and the like.
As already stated, appellant was charged with a violation of Section 4, the
transgressive acts alleged therein and attributed to appellant being that he
administered, delivered, and transported marijuana. The governing rule with
respect to an offense which may be committed in any of the different modes
provided by law is that an indictment would suffice if the offense is alleged to
have been committed in one, two or more modes specified therein. This is so as
allegations in the information of the various ways of committing the offense
should be considered as a description of only one offense and the information
cannot be dismissed on the ground of multifariousness.

In appellant's case,

the prosecution adduced evidence clearly establishing that he transported

marijuana from Baguio City to Cavite. By that act alone of transporting the
illicit drugs, appellant had already run afoul of that particular section of the
statute, hence, appellant's asseverations must fail.
The Court also disagrees with the contention of appellant that the civilian
informer should have been produced in court considering that his testimony
was "vital" and his presence in court was essential in order to give effect to or
recognition of appellant's constitutional right to confront the witnesses arrayed
by the State against him These assertions are, however, much too strained. Far
from compromising the primacy of appellant's right to confrontation, the nonpresentation of the informer in this instance was justified and cannot be
faulted as error.
For one the testimony of said informer would have been, at best, merely
corroborative of the declarations of SPO1 Talingting and SPO1 Clarin before the
trial court, which testimonies are not hearsay as both testified upon matters in
which they had personally taken part. As such, the testimony of the informer
could be dispensed with by the prosecution, 8 more so where what he would
have corroborated are the narrations of law enforcers on whose performance of
duties regularity is the prevailing legal presumption. Besides, informants are
generally not presented in court because of the need to hide their identities and
preserve their invaluable services to the police. 9 Moreover, it is up to the

prosecution whom to present in court as its witnesses, and not for the defense
to dictate that course. 10 Finally, appellant could very well have resorted to the
coercive process of subpoena to compel that eyewitness to appear before the
court below, 11 but which remedy was not availed of by him.
2. Appellant contends that the marijuana bricks were confiscated in the course
of an unlawful warrantless search and seizure. He calls the attention of the
Court to the fact that as early as 2:00 P.M. of the preceding day, June 19,
1994, the police authorities had already been apprised by their so-called
informer of appellant's impending arrival from Baguio City, hence those law
enforcers had the opportunity to procure the requisite warrant. Their
misfeasance should therefore invalidate the search for and seizure of the
marijuana, as well as the arrest of appellant on the following dawn. Once
again, the Court is not persuaded.
Section 2, Article III of the Constitution lays down the general rule that a
search and seizure must be carried out through or on the strength of a judicial
warrant, absent which such search and seizure becomes "unreasonable" within
the meaning of said constitutional provision. 12 Evidence secured on the
occasion of such an unreasonable search and seizure is tainted and should be
excluded for being the proverbial fruit of a poisonous tree. In the language of
the fundamental law, it shall be inadmissible in evidence for any purpose in
any proceeding. This exclusionary rule is not, however, an absolute and rigid
proscription.

Thus,

(1)

vehicles, 14 (3)

customs
seizure

searches; 13 (2)
of

searches

of

moving
evidence

in plain view; 15 (4) consented searches; 16 (5) searches incidental to a lawful

arrest; 17 and (6) "stop and frisk" measures 18 have been invariably recognized as
the traditional exceptions.
In appellant's case, it should be noted that the information relayed by the
civilian informant to the law enforcers was that there would be delivery of
marijuana at Barangay Salitran by a courier coming from Baguio City in the
"early morning" of June 20, 1994. Even assuming that the policemen were not
pressed for time, this would be beside the point for, under these circumstances,
the information relayed was too sketchy and not detailed enough for the

obtention of the corresponding arrest or search warrant. While there is an

indication that the informant knew the courier, the records do not reveal that
he knew him by name.
While it is not required that the authorities should know the exact name of the
subject of the warrant applied for, there is the additional problem that the
informant did not know to whom the drugs would be delivered and at which
particular part of the barangay there would be such delivery. Neither did this
asset know the precise time of the suspect's arrival, or his means of
transportation, the container or contrivance wherein the drugs were concealed
and whether the same were arriving together with, or were begin brought by
someone separately from, the courier.
On such bare information, the police authorities could not have properly
applied for a warrant, assuming that they could readily have access to a judge
or a court that was still open by the time they could make preparations for
applying therefor, and on which there is no evidence presented by the defense.
In determining the opportunity for obtaining warrants, not only the intervening
time is controlling but all the coincident and ambient circumstances should be
considered, especially in rural areas. In fact, the police had to form a
surveillance team and to lay down a dragnet at the possible entry points to
Barangay Salitran at midnight of that day notwithstanding the tip regarding
the "early morning" arrival of the courier. Their leader, SPO2 Cali, had to
reconnoiter inside and around the barangay as backup, unsure as they were of
the time when and the place in Barangay Salitran, where their suspect would
show up, and how he would do so.
On the other hand, that they nonetheless believed the informant is not
surprising for, as both SPO1 Clarin and SPO1 Talingting recalled, he had
proved to be a reliable source in past operations. Moreover, experience shows
that although information gathered and passed on by these assets to law
enforcers are vague and piecemeal, and not as neatly and completely packaged
as one would expect from a professional spymaster, such tip-offs are sometimes
successful as it proved to be in the apprehension of appellant. If the courts of
justice are to be of understanding assistance to our law enforcement agencies,

it is necessary to adopt a realistic appreciation of the physical and tactical

problems of the latter, instead of critically viewing them from the placid and
clinical environment of judicial chambers.
3. On the defense argument that the warrantless search conducted on
appellant invalidates the evidence obtained from him, still the search on his
belongings and the consequent confiscation of the illegal drugs as a result
thereof was justified as a search incidental to a lawful arrest under Section
5(a), Rule 113 of the Rules of Court. Under the provision, a peace officers or a
private person may, without a warrant, arrest a person when, in his presence,
the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.
A legitimate warrantless arrest, as above contemplated, necessarily cloaks the
arresting police officer with authority to validly search and seize from the
offender (1) dangerous weapons, and (2) those that may be used as proof of the
commission of an offense. 19 On the other hand, the apprehending officer must
have been spurred by probable cause in effecting an arrest which could be
classified as one in cadence with the instances of permissible arrests set out in
Section 5(a). 20 These instances have been applied to arrests carried out on
persons caught in flagrante delicto. The conventional view is that probable
cause, while largely a relative term the determination of which must be resolved
according to the facts of each case, is understood as having reference to such
facts and circumstances which could lead a reasonable, discreet, and prudent
man to believe and conclude as to the commission of an offense, and that the
objects sought in connection with the offense are in the place sought to be
searched. 21
Parenthetically, if we may digress, it is time to observe that the evidentiary
measure for the propriety of filing criminal charges and, correlatively, for
effecting a warrantless arrest, has been reduced and liberalized. In the past,
our statutory rules and jurisprudence required prima facie evidence, which was
of a higher degree or quantum, 22 and was even used with dubiety as equivalent
to "probable cause." Yet, even in the American jurisdiction from which we
derived the term and its concept, probable cause is understood to merely mean

a reasonable ground for belief in the existence of facts warranting the

proceedings complained of, 23 or an apparent state of facts found to exist upon
reasonable inquiry which would induce a reasonably intelligent and prudent
man to believe that the accused person had committed the crime. 24
Felicitously, those problems and confusing concepts were clarified and set
aright, at least on the issue under discussion, by the 1985 amendment of the
Rules of Court which provides in Rule 112 thereof that the quantum of
evidence required in preliminary investigation is such evidence as suffices to
"engender a well founded belief" as to the fact of the commission of a crime and
the respondent's probable guilt thereof. 25 It has the same meaning as the
related phraseology used in other parts of the same Rule, that is, the
investigating fiscal "finds cause to hold the respondent for trial," or where "a
probable cause exists." 26 It should, therefore, be in that sense, wherein the
right to effect a warrantless arrest should be considered as legally authorized.
In the case at bar, as soon as appellant had alighted from the passenger
jeepney the informer at once indicated to the officers that their suspect was at
hand by pointing to him from the waiting shed. SPO1 Clarin recounted that the
informer told them that the marijuana was likely hidden inside the traveling
bag and carton box which appellant was carrying at the time. The officers thus
realized that he was their man even if he was simply carrying a seemingly
innocent looking pair of luggage for personal effects. Accordingly, they
approached appellant, introduced themselves as policemen, and requested him
to open and show them the contents of the traveling bag, which appellant
voluntarily and readily did. Upon cursory inspection by SPO1 Clarin, the bag
yielded the prohibited drugs, so, without bothering to further search the box,
they brought appellant and his luggage to their headquarter for questioning.
Appellant insists that the mere fact of seeing a person carrying a traveling bag
and a carton box should not elicit the slightest suspicion of the commission of
any crime since that is normal. But, precisely, it is in the ordinary nature of
things that drugs being illegally transported are necessarily hidden in
containers and concealed from view. Thus, the officers could reasonably
assume, and not merely on a hollow suspicion since the informant was by their

side and had so informed them, that the drugs were in appellant's luggage. It
would obviously have been irresponsible, if not downright absurd under the
circumstances, to require the constable to adopt a "wait and see" attitude at
the risk of eventually losing the quarry.
Here, there were sufficient facts antecedent to the search and seizure that, at
the point prior to the search, were already constitutive of probable cause, and
which by themselves could properly create in the minds of the officers a well
grounded and reasonable belief that appellant was in the act of violating the
law. The search yielded affirmance both of that probable cause and the
actuality that appellant was then actually committing a crime by illegally
transporting prohibited drugs. With these attendant facts, it is ineluctable that
appellant was caught in flagrante delicto, hence his arrest and the search of his
belongings without the requisite warrant were both justified.
Furthermore, that appellant also consented to the search is borne out by the
evidence. To repeat, when the officers approached appellant and introduced
themselves as policemen, they asked him about the contents of his luggage,
and after he replied that they contained personal effects, the officers asked him
to open the traveling bag. Appellant readily acceded, presumably or in all
likelihood resigned to the fact that the law had caught up with his criminal
activities. When an individual voluntarily submits to a search or consents to
have the same conducted upon his person or premises, he is precluded from
later complaining thereof.
After all, the right to be secure from unreasonable search may, like other
rights, be waived either expressly or impliedly. 27 Thus, while it has been held
that the silence of the accused during a warrantless search should not be
taken to mean consent to the search but as a demonstration of that person's
regard for the supremacy of the law, 28 the case of herein appellant is evidently
different for, here, he spontaneously performed affirmative acts of volition by
himself opening the bag without being forced or intimidated to do so, which
acts should properly be construed as a clear waiver of his right.29

4. Appellant likewise harps on the alleged failure of the prosecution to "legally,

properly and adequately establish that the 28 bricks of marijuana allegedly
confiscated from (him) were the same marijuana examined by the forensic
chemist and presented in court." Indeed, the arresting officers did not identify
in court the marijuana bricks seized from appellant since, in fact they did not
have to do so. It should be noted that the prosecution presented in the court
below and formally offered in evidence those 28 bricks of marijuana together
with the traveling bag and the carton box in which the same were contained.
The articles were properly marked as confiscated evidence and proper
safeguards were taken to ensure that the marijuana turned over to the chemist
for examination, and which subsequently proved positive as such, were the
same drugs taken from appellant. The trial court, therefore, correctly admitted
them in evidence, satisfied that the articles were indubitably no other than
those taken from appellant.
Complementarily, the corpus delicti was firmly established by SPO1 Clarin and
SPO1 Talingting who categorically related that when they had ascertained that
the contents of the traveling bag of appellant appeared to be marijuana, they
forthwith asked him where he had come from, and the latter readily answered
"Baguio City," thus confirming the veracity of the report of the informer. No
other conclusion can therefore be derived than that appellant had transported
the illicit drugs all the way to Cavite from Baguio City. Coupled with the
presentation in court of the subject matter of the crime, the marijuana bricks
which had tested positive as being indian hemp, the guilt of appellant for
transporting the prohibited drugs in violation of the law is beyond doubt.
Appellant questions the interrogation conducted by the police authorities,
claiming that he was not allowed to communicate with anybody, and that he
was not duly informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. Indeed, appellant has a
point. The police authorities here could possibly have violated the provision of
Republic Act No. 7438 30 which defines certain rights of persons arrested,
detained, or under custodial investigation, as well as the duties of the
arresting, detaining, and investigating officers, and providing corresponding
penalties for violations thereof.

Assuming the existence of such irregularities, however, the proceedings in the

lower court will not necessarily be struck down. Firstly, appellant never
admitted or confessed anything during his custodial investigation. Thus, no
incriminatory evidence in the nature of a compelled or involuntary confession
or admission was elicited from him which would otherwise have been
inadmissible in evidence. Secondly and more importantly, the guilt of appellant
was clearly established by other evidence adduced by the prosecution,
particularly the testimonies of the arresting officers together with the
documentary and object evidence which were formally offered and admitted in
evidence in the court below.
5. The reversible error of the trial court lies in its imposition of the penalty of
death on appellant. As amended by Republic Act No. 7659, Section 20, Article
IV of the Dangerous Drugs Act now provides inter alia that the penalty in
Section 4 of Article II shall be applied if the dangerous drugs involved is, in the
case of indian hemp or marijuana, 750 grams or more. In said Section 4, the
transporting of prohibited drugs carries with it the penalty ofreclusion
perpetua to death and a fine ranging from five hundred thousand pesos to ten
million pesos. Thus, the law prescribes a penalty composed of two indivisible
penalties, reclusion perpetua and death. In the present case, Article 63 of the
Revised Penal Code consequently provides the rules to be observed in the
application of said penalties.
As found by the trial court, there were neither mitigating nor aggravating
circumstances attending appellant's violation of the law, hence the second
paragraph of Article 63 must necessarily apply, in which case the lesser
penalty of reclusion perpetua is the proper imposable penalty. Contrary to the
pronouncement of the court a quo, it was never intended by the legislature that
where the quantity of the dangerous drugs involved exceeds those stated in
Section 20, the maximum penalty of death shall be imposed. Nowhere in the
amendatory law is there a provision from which such a conclusion may be
gleaned or deduced. On the contrary, this Court has already concluded that
Republic Act No. 7659 did not amend Article 63 of the Revised Penal
Code, 31 the rules wherein were observed although the cocaine subject of that
case was also in excess of the quantity provided in Section 20.

It is worth mentioning at this juncture that the law itself provides a specific
penalty where the violation thereof is in its aggravated form as laid down in the
second paragraph of Section 4 whereby, regardless of Section 20 of Article IV, if
the victim is a minor, or should a prohibited drug involved in any offense in
said section be the proximate cause of the death of a victim thereof, the
maximum penalty shall be imposed. 32 While the minority or the death of the
victim will increase the liability of the offender, these two facts do not
constitute generic aggravating circumstances, as the law simply provides for
the imposition of the single indivisible penalty of death if the offense is
attended by either of such factual features. In that situation, obviously the
rules on the graduation of penalties in Article 63 cannot apply. In herein
appellant's case, there was neither a minor victim nor a consequent death of
any victim. Hence, the basic rules in Article 63 of the Code govern.
WHEREFORE, the judgment of the Regional Trial Court, Branch 90, of the
Dasmarias, Cavite in Criminal Case No. 3401-94 is hereby MODIFIED in the
sense that accused-appellant Ruben Montilla y Gatdula shall suffer the penalty
of reclusion perpetua. In all other respects, the judgment of the trial court is
hereby AFFIRMED, with costs against accused-appellant.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Kapunan, Mendoza, Francisco and
Martinez, JJ., concur.

Separate Opinions

PANGANIBAN, J., separate opinion:

I agree with the respected Mr. Justice Florenz D. Regalado that the imposition
of the death penalty by the trial court upon Appellant Montilla was erroneous.
For want of any aggravating circumstance attending the commission of the
crime, the proper penalty is reclusion perpetua.
However, I beg to disagree with his conclusion that the warrantless search
conducted upon the person of appellant was valid for being "a search incidental
to a lawful arrest under Section 5(a), Rule 113 of the Rules of Court." Under
the cited provisions, an arrest may be lawfully effected upon a person caught in
flagrante delicto,i.e. in the very act of committing a crime.

I do not see how

Appellant Montilla who was apprehended while merely alighting from a

passenger jeepney carrying a traveling bag and a carton could have been
perceived by the police as committing a crime at the very moment of his arrest.
Lawful

Arrest

Must

Precede Warrantless Search

In the very recent en banc case of Malacat vs. Court of Appeals, 2 the Court
through Mr. Justice Hilario G. Davide Jr., clearly and unanimously explained
the concept of a search incidental to a lawful arrest, and I quote:
In a search incidental to a lawful arrest, as the precedent arrest
determines the validity of the incidental search, the legality of the arrest
is questioned in a large majority of these cases, e.g., whether an arrest
was merely used as a pretext for conducting a search. In this
instance, the law requires that there be first a lawful arrest before a search
can be made the process cannot be reversed. At bottom, assuming a
valid arrest, the arresting officer may search the person of the arrestee
and the area within which the latter may reach for a weapon or for
evidence to destroy, and seize any money or property found which was
used in the commission of the crime, or the fruit of the crime, or that
which may be used as evidence, or which might furnish the arrestee with
the means of escaping or committing violence. 3 [Emphasis supplied.]
In that case, a police surveillance team, dispatched on reports of a possible
bombing in Quiapo, arrested Appellant Malacat after he attempted to flee. He

was priorly observed standing with a group of men at the corner of Plaza
Miranda and Quezon Boulevard with eyes moving very fast and looking at every
approaching person. He was searched, and allegedly recovered from his body
was a bomb. The trial court justified his arrest and search on the finding that
he was "attempting to commit a crime." But we reversed and ruled that there
could have been no valid in flagrante delicto or hot pursuit arrest preceding the
search in light of the lack of personal knowledge on the part of the arresting
officer or an overt physical act on the part of Malacat indicating that a crime
had just been committed, was being committed, or was going to be committed.
The warrantless arrest being invalid, the search conducted upon the petitioner
could not have been a valid incident to a lawful arrest.
In also ruling our a valid "stop and frisk," the Court remarked that "there was
nothing in [Malacat's] behavior or conduct which could have reasonably elicited
even mere suspicion other than that his eyes were 'moving very fast' . . ." There
was no ground at all to suspect that Malacat was armed with a deadly
weapon. 4
Neither did this Court find a valid search and arrest under in flagrante
delicto rule in People vs. Mengote, 5 even though the appellant was accosted by
the police because he allegedly appeared suspicious. The lawmen were at the
time conducting a surveillance in response to a telephone call from an informer
that there were suspicious-looking persons at the particular place. What
offense Mengote was suspected of doing could not even be ascertained by the
police. We said that "there was nothing to support the arresting officer's
suspicion other than Mengote's darting eyes and his hand on his abdomen. By
no stretch of the imagination could it have been inferred from these acts that
an offense had just been committed, or was actually being committed, or was
at least being attempted in their presence." 6 The Court further exhorted:
It would be a sad day, indeed, if any person could be summarily arrested
and searched just because he is holding his abdomen, even if it be
possibly because of a stomach-ache, or if a peace officer could clamp
handcuffs on any person with a shifty look on suspicion that he may
have committed a criminal act or is actually committing or attempting it.

This simply cannot be done in a free society. This is not a police state
where order is exalted over liberty or, worse, personal malice on the part
of the arresting officer may be justified in the name of security. 7
Personal

Knowledge

Required

in

in Flagrante Delicto Arrests

Jurisprudence is settled that under the in flagrante delicto rule, "the officer
arresting a person who has just committed, is committing, or is about to
commit an offense must have personal knowledge of that fact. The offense must
also be committed in his presence or within his view." 8
The circumstances of the case at bar is patently wanting in fulfillment of the
above standard. For one, the arresting officers had no personal knowledge that
Montilla either had just committed or was committing or attempting to commit
an offense. Secondly, even if we equate the possession of an intelligence report
with personal knowledge of the commission of a crime, still, the alleged
felonious act was not performed in the presence or within the view of the
arresting officers. The lawmen did not see appellant exhibit any overt act or
strange conduct that would reasonably arouse in their minds suspicion that he
was embarking on some felonious enterprise. Neither was there any mention at
all by the police of any outward indication, such as bulkiness on his body that
could have suggested that he was carrying a firearm, or any peculiar smell
emanating from his baggage that could have hinted that he was carrying
marijuana. In short, there was no valid ground for the warrantless arrest.
"Hot

Pursuit"

Doctrine

Not Applicable
Parenthetically, neither could Appellant Montilla's arrest be justified under the
"hot pursuit" rule. In People vs. Burgos, 9 we said:
In arrests without a warrant under Section 6(b) [of Rule 113, Rules of
Court], however, it is not enough that there is reasonable ground to
believe that the person to be arrested has committed a crime. A crime
must in fact or actually have been committed first. That a crime has

actually been committed is an essential precondition. It is not enough to

suspect that a crime may have been committed. The fact of the
commission of the offense must be undisputed. The test of reasonable
ground applies only to the identity of the perpetrator.
The instant case is very similar to People vs. Aminnudin, 10 Therein, the police
arrested Aminnudin and seized the bag he was carrying on account of a "tip
they had earlier received from a reliable and regular informer" that the
accused-appellant was "arriving in Iloilo by boat with marijuana." This
information was received at least two days earlier, thus "[e]ven expediency
could not be invoked to dispense with the obtention of the warrant . . ." In
invalidating his arrest, this Court reasoned:
. . . the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that
he had just done so. What he was doing was descending the gangplank
of the M/V Wilcon 9 and there was no outward indication that called for
his arrest. To all appearances, he was like any of the other passengers
innocently disembarking from the vessel. It was only when the informer
pointed to him as the carrier of the marijuana that he suddenly became
suspect and so subject to apprehension. It was the furtive finger that
triggered his arrest. The identification by the informer was the probable
cause as determined by the by the officers (not a judge) that authorized
them to pounce upon Aminnudin and immediately arrest him.

11

Aminnudin's arrest being illegal, so was the warrantless search subsequent

thereto, the Court ruled. Hence, the marijuana allegedly seized from him was
not admitted as evidence for being a fruit of the poisonous tree.
Another parallel case is People vs. Encinada, 12 where the appellant was
searched without a warrant while also disembarking from a ship, on the
strength of a tip from an informant received by the police the previous
afternoon that the appellant would be transporting prohibited drugs. The
search yielded a plastic package containing marijuana. Encinada's arrest and
search were validated by the trial court under the in flagrante delicto rule. In

reversing the trial court, this Court stressed that when he disembarked from
the ship or while he rode the motorela, Encinada did not manifest any
suspicious behavior that would reasonably invite the attention of the police.
Under such bare circumstances, no act or fact demonstrating a felonious
enterprise could be ascribed to the accused. In short, he was not committing a
crime in the presence of the police; neither did the latter have personal
knowledge of facts indicating that he just committed an offense. Where the
search was illegal, there could be no valid incidental arrest:
. . . That the search disclosed a prohibited substance in appellant's
possession and thus confirmed the police officers' initial information and
suspicion, did not cure its patent illegality. An illegal search cannot be
undertaken and then an arrest effected on the strength of the evidence
yielded by the search. 13
Raw

Intelligence

Information

Cannot Justify Warrantless Arrest

The Court further said that raw intelligence information was not a sufficient
ground for a warrantless arrest. 14Having known the identity of their suspect
the previous day, the law enforcers could have secured a judicial warrant even
within such limited period.
Under the circumstances of the instant case, there was sufficient time for the
police to have applied for a search warrant. The information that appellant
would be arriving in the early morning of June 20, 1994 at Barangay Salitran,
Dasmarias, Cavite, was received by the police at 2:00 p.m. of the preceding
day. The fact that it was a Sunday did not prevent the police from securing a
warrant. Administrative Circulars 13 and 19, s. 1987 allow applications for
search warrants even "after office hours, or during Saturdays, Sundays and
legal holidays" where there is an urgency and prompt action is needed. Surely,
with the attendant circumstances, the arresting officers could have easily
justified the urgency of the issuance of a search warrant.
But the majority believes that the law enforcers had no sufficient information
upon which the warrant could have been validly issued, simply because the

name of the suspect and the exact time and place where he could be found
were not known.
I cannot in clear conscience agree with the reasoning of the majority that "[on]
such bare information, the police authorities could not have properly applied
for a warrant, assuming that they could readily have access to a judge or
court . . . ," yet ruling that "there were sufficient facts antecedent to the search
and seizure that, at the point prior to the search, were already constitutive of
probable cause, and which by themselves could properly create in the minds of
the officers a well-grounded and reasonable belief that appellant was in the act
of violating the law." Be it remembered that appellant was merely alighting from
a jeepney carrying a traveling bag and a carton when he was searched and
arrested. How can that be "in the act of violating the law?"
Law and jurisprudence in fact require stricter grounds for valid arrests and
searches without warrant than for the issuance of warrants therefor. In the
former, the arresting person must have actually witnessed the crime being
committed or attempted by the person sought to be arrested; or he must
have personal knowledge of facts indicating that the person to be arrested
perpetrated the crime that had just occurred. In the latter case, the judge
simply determines personally from testimonies of witnesses that there exists
reasonable grounds to believe that a crime was committed by the accused.
If, as the majority believes, the police did not have on hand what the law
requires for the issuance of a warrant, then much less did they have any
justification for a warrantless arrest. In other words, what ground did the
police have to arrest Appellant Montilla?
I submit that if the police doubts the exact identity or name of the person to be
arrested or the exact place to be searched, with more reason should they seek
a judge's independent determination of the existence of probable cause. The
police, in such instances, cannot take the law into their own hands, or by
themselves conclude that probable cause exists. I must reiterate that the actual
discovery of prohibited drugs in the possession of the accused does not cure
the illegality of his arrest or search.

To say that "reliable tips" constitute probable cause for a warrantless arrest or
search is, in my opinion, a dangerous precedent and places in great jeopardy
the doctrines laid down in many decisions made by this Court, in its effort to
zealously

guard

and

protect

the

sacred

constitutional

right

against

unreasonable arrests, searches, and seizures. Everyone would be practically at

the mercy of so-called informants, reminiscent of the makapilisduring the
Japanese occupation. Any one whom they point out to a police officer as a
possible violator of the law could then be subject to search and possible arrest.
This is placing limitless power upon informants who will no longer be required
to affirm under oath their accusations, for they can always delay their giving of
tips in order to justify warrantless arrests and searches. Even law enforcers can
use this as an oppressive tool to conduct searches without warrants, for they
can always claim that they received raw intelligence information only on the
day or afternoon before. This would clearly be a circumvention of the legal
requisites for validly effecting an arrest or conducting a search and seizure.
Indeed, the majority's ruling would open loopholes that would allow
unreasonable arrests, searches and seizures.
The majority's reasoning effectively abrogates, through an obiter, doctrinal
rules on warrantless arrests and searches. I believe this should not be allowed.
We have endlessly castigated law enforcers for their nonchalant violation of the
people's constitutional right against unreasonable searches and seizures. We
have also invariably admonished them that basic rights should not be lightly
disregarded in the name of crime prevention or law enforcement. The Court
should never be less vigilant in protecting the rights guaranteed by the
fundamental law to all persons, be they innocent or guilty.
Appellant

Waived

his

Constitutional Right
In any event, notwithstanding the illegality with which the search and arrest of
Appellant Montilla was effected, I have to concur with the majority in affirming
his conviction, only for the reason that appellant waived his right to object to
such illegality. It appears that he did not protest when the police, after
identifying themselves, asked him to open his baggage for inspection. The fact

that he voluntarily submitted to the search, without any force or intimidation

on the part of the police, signifies his consent thereto. Voluntary consent is a
valid waiver of one's right against unreasonable searches. 15
Furthermore, upon arraignment, Appellant Montilla pleaded not the guilty and
proceeded to participate in the trial. Established jurisprudence holds that a
plea is tantamount to foregoing an objection to the irregularity of one's
arrest. 16 The right to question the legality of appellant's arrest may therefore be
deemed to have been waived by him.
Summation
IN SUM, the arrest of Appellant Montilla was not lawful, because it was effected
without a judicial warrant. It was not made in accordance with Sec. 5(a) of Rule
113, because there was no evidence that Montilla had just committed an
offense, or was committing or attempting one in the presence or within the view
of the arresting officers at the time he was apprehended. Neither can his arrest
be valid under Sec. 5(b) of the same rule, since the police officers did not
actually know that a crime had in fact been committed, nor did they have
personal knowledge of any fact logically pointing to appellant as the perpetrator
thereof. Much less could there have been a valid stop-and-frisk, since appellant
did not manifest any dubious act or show any indication that could reasonably
invite suspicion of a criminal undertaking.
However, appellant waived his right to object to the illegality of his search and
arrest by consenting to the search of his belongings and also by entering his
plea during his arraignment. Had he raised a timely objection against the
violation of his constitutional right, he would, in my view, deserve no less than
an acquittal.
WHEREFORE, I conclude that the warrantless arrest and search of Appellant
Montilla was illegal. However, such illegality was effectively waived by him.
Hence, I vote to AFFIRM his conviction with the modification that he shall serve
the penalty of reclusion perpetua only.
Melo and Puno, JJ., concur.

VITUG, J., concurring:

I concur but I reserve my vote on the discussion on the warrantless search
upon appellant as being incidental to a lawful arrest.
Separate Opinions
PANGANIBAN, J., separate opinion:
I agree with the respected Mr. Justice Florenz D. Regalado that the imposition
of the death penalty by the trial court upon Appellant Montilla was erroneous.
For want of any aggravating circumstance attending the commission of the
crime, the proper penalty is reclusion perpetua.
However, I beg to disagree with his conclusion that the warrantless search
conducted upon the person of appellant was valid for being "a search incidental
to a lawful arrest under Section 5(a), Rule 113 of the Rules of Court." Under
the cited provisions, an arrest may be lawfully effected upon a person caught in
flagrante delicto,i.e. in the very act of committing a crime.

I do not see how

Appellant Montilla who was apprehended while merely alighting from a

passenger jeepney carrying a traveling bag and a carton could have been
perceived by the police as committing a crime at the very moment of his arrest.
Lawful

Arrest

Must

Precede Warrantless Search

In the very recent en banc case of Malacat vs. Court of Appeals, 2 the Court
through Mr. Justice Hilario G. Davide Jr., clearly and unanimously explained
the concept of a search incidental to a lawful arrest, and I quote:
In a search incidental to a lawful arrest, as the precedent arrest
determines the validity of the incidental search, the legality of the arrest
is questioned in a large majority of these cases, e.g., whether an arrest
was merely used as a pretext for conducting a search. In this
instance, the law requires that there be first a lawful arrest before a search
can be made the process cannot be reversed. At bottom, assuming a

valid arrest, the arresting officer may search the person of the arrestee
and the area within which the latter may reach for a weapon or for
evidence to destroy, and seize any money or property found which was
used in the commission of the crime, or the fruit of the crime, or that
which may be used as evidence, or which might furnish the arrestee with
the means of escaping or committing violence. 3 [Emphasis supplied.]
In that case, a police surveillance team, dispatched on reports of a possible
bombing in Quiapo, arrested Appellant Malacat after he attempted to flee. He
was priorly observed standing with a group of men at the corner of Plaza
Miranda and Quezon Boulevard with eyes moving very fast and looking at every
approaching person. He was searched, and allegedly recovered from his body
was a bomb. The trial court justified his arrest and search on the finding that
he was "attempting to commit a crime." But we reversed and ruled that there
could have been no valid in flagrante delicto or hot pursuit arrest preceding the
search in light of the lack of personal knowledge on the part of the arresting
officer or an overt physical act on the part of Malacat indicating that a crime
had just been committed, was being committed, or was going to be committed.
The warrantless arrest being invalid, the search conducted upon the petitioner
could not have been a valid incident to a lawful arrest.
In also ruling our a valid "stop and frisk," the Court remarked that "there was
nothing in [Malacat's] behavior or conduct which could have reasonably elicited
even mere suspicion other than that his eyes were 'moving very fast' . . ." There
was no ground at all to suspect that Malacat was armed with a deadly
weapon. 4
Neither did this Court find a valid search and arrest under in flagrante
delicto rule in People vs. Mengote, 5 even though the appellant was accosted by
the police because he allegedly appeared suspicious. The lawmen were at the
time conducting a surveillance in response to a telephone call from an informer
that there were suspicious-looking persons at the particular place. What
offense Mengote was suspected of doing could not even be ascertained by the
police. We said that "there was nothing to support the arresting officer's
suspicion other than Mengote's darting eyes and his hand on his abdomen. By

no stretch of the imagination could it have been inferred from these acts that
an offense had just been committed, or was actually being committed, or was
at least being attempted in their presence." 6 The Court further exhorted:
It would be a sad day, indeed, if any person could be summarily arrested
and searched just because he is holding his abdomen, even if it be
possibly because of a stomach-ache, or if a peace officer could clamp
handcuffs on any person with a shifty look on suspicion that he may
have committed a criminal act or is actually committing or attempting it.
This simply cannot be done in a free society. This is not a police state
where order is exalted over liberty or, worse, personal malice on the part
of the arresting officer may be justified in the name of security. 7
Personal

Knowledge

Required

in

in Flagrante Delicto Arrests

Jurisprudence is settled that under the in flagrante delicto rule, "the officer
arresting a person who has just committed, is committing, or is about to
commit an offense must have personal knowledge of that fact. The offense must
also be committed in his presence or within his view." 8
The circumstances of the case at bar is patently wanting in fulfillment of the
above standard. For one, the arresting officers had no personal knowledge that
Montilla either had just committed or was committing or attempting to commit
an offense. Secondly, even if we equate the possession of an intelligence report
with personal knowledge of the commission of a crime, still, the alleged
felonious act was not performed in the presence or within the view of the
arresting officers. The lawmen did not see appellant exhibit any overt act or
strange conduct that would reasonably arouse in their minds suspicion that he
was embarking on some felonious enterprise. Neither was there any mention at
all by the police of any outward indication, such as bulkiness on his body that
could have suggested that he was carrying a firearm, or any peculiar smell
emanating from his baggage that could have hinted that he was carrying
marijuana. In short, there was no valid ground for the warrantless arrest.

"Hot

Pursuit"

Doctrine

Not Applicable
Parenthetically, neither could Appellant Montilla's arrest be justified under the
"hot pursuit" rule. In People vs. Burgos, 9 we said:
In arrests without a warrant under Section 6(b) [of Rule 113, Rules of
Court], however, it is not enough that there is reasonable ground to
believe that the person to be arrested has committed a crime. A crime
must in fact or actually have been committed first. That a crime has
actually been committed is an essential precondition. It is not enough to
suspect that a crime may have been committed. The fact of the
commission of the offense must be undisputed. The test of reasonable
ground applies only to the identity of the perpetrator.
The instant case is very similar to People vs. Aminnudin, 10 Therein, the police
arrested Aminnudin and seized the bag he was carrying on account of a "tip
they had earlier received from a reliable and regular informer" that the
accused-appellant was "arriving in Iloilo by boat with marijuana." This
information was received at least two days earlier, thus "[e]ven expediency
could not be invoked to dispense with the obtention of the warrant . . ." In
invalidating his arrest, this Court reasoned:
. . . the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that
he had just done so. What he was doing was descending the gangplank
of the M/V Wilcon 9 and there was no outward indication that called for
his arrest. To all appearances, he was like any of the other passengers
innocently disembarking from the vessel. It was only when the informer
pointed to him as the carrier of the marijuana that he suddenly became
suspect and so subject to apprehension. It was the furtive finger that
triggered his arrest. The identification by the informer was the probable
cause as determined by the by the officers (not a judge) that authorized
them to pounce upon Aminnudin and immediately arrest him.

11

Aminnudin's arrest being illegal, so was the warrantless search subsequent

thereto, the Court ruled. Hence, the marijuana allegedly seized from him was
not admitted as evidence for being a fruit of the poisonous tree.
Another parallel case is People vs. Encinada, 12 where the appellant was
searched without a warrant while also disembarking from a ship, on the
strength of a tip from an informant received by the police the previous
afternoon that the appellant would be transporting prohibited drugs. The
search yielded a plastic package containing marijuana. Encinada's arrest and
search were validated by the trial court under the in flagrante delicto rule. In
reversing the trial court, this Court stressed that when he disembarked from
the ship or while he rode the motorela, Encinada did not manifest any
suspicious behavior that would reasonably invite the attention of the police.
Under such bare circumstances, no act or fact demonstrating a felonious
enterprise could be ascribed to the accused. In short, he was not committing a
crime in the presence of the police; neither did the latter have personal
knowledge of facts indicating that he just committed an offense. Where the
search was illegal, there could be no valid incidental arrest:
. . . That the search disclosed a prohibited substance in appellant's
possession and thus confirmed the police officers' initial information and
suspicion, did not cure its patent illegality. An illegal search cannot be
undertaken and then an arrest effected on the strength of the evidence
yielded by the search. 13
Raw

Intelligence

Information

Cannot Justify Warrantless Arrest

The Court further said that raw intelligence information was not a sufficient
ground for a warrantless arrest. 14Having known the identity of their suspect
the previous day, the law enforcers could have secured a judicial warrant even
within such limited period.
Under the circumstances of the instant case, there was sufficient time for the
police to have applied for a search warrant. The information that appellant
would be arriving in the early morning of June 20, 1994 at Barangay Salitran,

Dasmarias, Cavite, was received by the police at 2:00 p.m. of the preceding
day. The fact that it was a Sunday did not prevent the police from securing a
warrant. Administrative Circulars 13 and 19, s. 1987 allow applications for
search warrants even "after office hours, or during Saturdays, Sundays and
legal holidays" where there is an urgency and prompt action is needed. Surely,
with the attendant circumstances, the arresting officers could have easily
justified the urgency of the issuance of a search warrant.
But the majority believes that the law enforcers had no sufficient information
upon which the warrant could have been validly issued, simply because the
name of the suspect and the exact time and place where he could be found
were not known.
I cannot in clear conscience agree with the reasoning of the majority that "[on]
such bare information, the police authorities could not have properly applied
for a warrant, assuming that they could readily have access to a judge or
court . . . ," yet ruling that "there were sufficient facts antecedent to the search
and seizure that, at the point prior to the search, were already constitutive of
probable cause, and which by themselves could properly create in the minds of
the officers a well-grounded and reasonable belief that appellant was in the act
of violating the law." Be it remembered that appellant was merely alighting from
a jeepney carrying a traveling bag and a carton when he was searched and
arrested. How can that be "in the act of violating the law?"
Law and jurisprudence in fact require stricter grounds for valid arrests and
searches without warrant than for the issuance of warrants therefor. In the
former, the arresting person must have actually witnessed the crime being
committed or attempted by the person sought to be arrested; or he must
have personal knowledge of facts indicating that the person to be arrested
perpetrated the crime that had just occurred. In the latter case, the judge
simply determines personally from testimonies of witnesses that there exists
reasonable grounds to believe that a crime was committed by the accused.
If, as the majority believes, the police did not have on hand what the law
requires for the issuance of a warrant, then much less did they have any

justification for a warrantless arrest. In other words, what ground did the
police have to arrest Appellant Montilla?
I submit that if the police doubts the exact identity or name of the person to be
arrested or the exact place to be searched, with more reason should they seek
a judge's independent determination of the existence of probable cause. The
police, in such instances, cannot take the law into their own hands, or by
themselves conclude that probable cause exists. I must reiterate that the actual
discovery of prohibited drugs in the possession of the accused does not cure
the illegality of his arrest or search.
To say that "reliable tips" constitute probable cause for a warrantless arrest or
search is, in my opinion, a dangerous precedent and places in great jeopardy
the doctrines laid down in many decisions made by this Court, in its effort to
zealously

guard

and

protect

the

sacred

constitutional

right

against

unreasonable arrests, searches, and seizures. Everyone would be practically at

the mercy of so-called informants, reminiscent of the makapilisduring the
Japanese occupation. Any one whom they point out to a police officer as a
possible violator of the law could then be subject to search and possible arrest.
This is placing limitless power upon informants who will no longer be required
to affirm under oath their accusations, for they can always delay their giving of
tips in order to justify warrantless arrests and searches. Even law enforcers can
use this as an oppressive tool to conduct searches without warrants, for they
can always claim that they received raw intelligence information only on the
day or afternoon before. This would clearly be a circumvention of the legal
requisites for validly effecting an arrest or conducting a search and seizure.
Indeed, the majority's ruling would open loopholes that would allow
unreasonable arrests, searches and seizures.
The majority's reasoning effectively abrogates, through an obiter, doctrinal
rules on warrantless arrests and searches. I believe this should not be allowed.
We have endlessly castigated law enforcers for their nonchalant violation of the
people's constitutional right against unreasonable searches and seizures. We
have also invariably admonished them that basic rights should not be lightly
disregarded in the name of crime prevention or law enforcement. The Court

should never be less vigilant in protecting the rights guaranteed by the

fundamental law to all persons, be they innocent or guilty.
Appellant

Waived

his

Constitutional Right
In any event, notwithstanding the illegality with which the search and arrest of
Appellant Montilla was effected, I have to concur with the majority in affirming
his conviction, only for the reason that appellant waived his right to object to
such illegality. It appears that he did not protest when the police, after
identifying themselves, asked him to open his baggage for inspection. The fact
that he voluntarily submitted to the search, without any force or intimidation
on the part of the police, signifies his consent thereto. Voluntary consent is a
valid waiver of one's right against unreasonable searches. 15
Furthermore, upon arraignment, Appellant Montilla pleaded not the guilty and
proceeded to participate in the trial. Established jurisprudence holds that a
plea is tantamount to foregoing an objection to the irregularity of one's
arrest. 16 The right to question the legality of appellant's arrest may therefore be
deemed to have been waived by him.
Summation
IN SUM, the arrest of Appellant Montilla was not lawful, because it was effected
without a judicial warrant. It was not made in accordance with Sec. 5(a) of Rule
113, because there was no evidence that Montilla had just committed an
offense, or was committing or attempting one in the presence or within the view
of the arresting officers at the time he was apprehended. Neither can his arrest
be valid under Sec. 5(b) of the same rule, since the police officers did not
actually know that a crime had in fact been committed, nor did they have
personal knowledge of any fact logically pointing to appellant as the perpetrator
thereof. Much less could there have been a valid stop-and-frisk, since appellant
did not manifest any dubious act or show any indication that could reasonably
invite suspicion of a criminal undertaking.

However, appellant waived his right to object to the illegality of his search and
arrest by consenting to the search of his belongings and also by entering his
plea during his arraignment. Had he raised a timely objection against the
violation of his constitutional right, he would, in my view, deserve no less than
an acquittal.
WHEREFORE, I conclude that the warrantless arrest and search of Appellant
Montilla was illegal. However, such illegality was effectively waived by him.
Hence, I vote to AFFIRM his conviction with the modification that he shall serve
the penalty of reclusion perpetua only.
Melo and Puno, JJ., concur.
VITUG, J., concurring:
I concur but I reserve my vote on the discussion on the warrantless search
upon appellant as being incidental to a lawful arrest.