THIRD DIVISION
G.R. No. 191810, June 22, 2015
JIMMY T. GO A.K.A. JAIME T. GAISANO, Petitioner, v. BUREAU OF IMMIGRATION AND DEPORTATION AND ITS COMMISSIONERS AND LUIS T. RAMOS, Respondents.
D E C I S I O N
PERALTA, J.:
1. That Respondent was born on October 25, 1952 in Iloilo City, as evidenced by a copy of his birth certificate wherein his citizenship was recorded as "FChinese";In November 2001, petitioner Go and Go, Sr. filed a petition for certiorari and prohibition with application for injunctive reliefs before the Regional Trial Court (RTC) of Pasig City, Branch 167, docketed as SCA No. 2218, seeking to annul and set aside the March 8, 2001 Resolution of the Board and the Charge Sheet dated July 3, 2001.9 Essentially, they challenged the jurisdiction of the Board to continue with the deportation proceedings.
2. That Respondent through some stealth machinations was able to subsequently cover up his true and actual citizenship as Chinese and illegally acquired a Philippine Passport under the name JAIME T. GAISANO, with the use of falsified documents and untruthful declarations, in violation of the above-cited provisions of the Immigration Act[;] [and]
3. That [Respondent being an alien, has formally and officially represents and introduces himself as a citizen of the Philippines, for fraudulent purposes and in order to evade any requirements of the immigration laws, also in violation of said law.
CONTRARY TO LAW.8
WHEREFORE, in view of the foregoing, the Board of Commissioners hereby Orders the apprehension of respondent JIMMY T. GO @ JAIME T. GAISANO and that he be then deported to CHINA of which he is a citizen, without prejudice, however, to the continuation of any and all criminal and other proceedings that are pending in court or before the prosecution arm of the Philippine Government, if any. And that upon expulsion, he is thereby ordered barred from entry into the Philippines.The Board gave weight to the documents submitted against petitioner Go, to wit:
SO ORDERED.10
Election of Philippine Citizenship must be expressed in a statement before any officer authorized to administer oaths and filed with the nearest civil registry and accompanied by an Oath of Allegiance to the Philippine Constitution.chanroblesvirtuallawlibraryIn view of the adverse judgment, petitioner Go and Go, Sr. filed before the Pasig RTC a supplemental petition to declare the nullity of the Board's April 17, 2002 Decision.12chanrobleslaw
We deny.
- The Honorable Court erred in dismissing the instant petition;
- The Honorable Court erred in declaring that the April 17, 2002 Decision of the Bureau of Immigration and Deportation in BSI-D.C. No. ADD- 01-117 is final and executory; and
- The Honorable Court erred in not ruling on the irregularity of the issuance of the Office of the President of its September 29, 2004 and February 11, 2005 Resolutions.23
SEC. 3. Second motion for reconsideration. - The Court shall not entertain a second motion for reconsideration, and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court's declaration.The Court has the power and prerogative to suspend its own rules and to exempt a case from their operation if and when justice requires it. In the exercise of sound discretion, We may determine issues which are of transcendental importance. This case is definitely not an exception.
In the Division, a vote of three Members shall be required to elevate a second motion for reconsideration to the Court En Banc.chanroblesvirtuallawlibrary
x x x A definitive final judgment, however erroneous, is no longer subject to change or revision.Subject to certain recognized exceptions such as (1) the correction of clerical errors; (2) the so-called nunc pro tunc entries which cause no prejudice to any party; (3) void judgments; and (4) whenever circumstances transpire after the finality of the decision rendering its execution unjust and inequitable, which are not present in this case, the principle of immutability leaves the judgment undisturbed as nothing further can be done except to execute it.27chanrobleslaw
A decision that has acquired finality becomes immutable and unalterable. This quality of immutability precludes the modification of a final judgment, even if the modification is meant to correct erroneous conclusions of fact and law. And this postulate holds true whether the modification is made by the court that rendered it or by the highest court in the land. The orderly administration of justice requires that, at the risk of occasional errors, the judgments/resolutions of a court must reach a point of finality set by the law. The noble purpose is to write finis to dispute once and for all. This is a fundamental principle in our justice system, without which there would be no end to litigations. Utmost respect and adherence to this principle must always be maintained by those who exercise the power of adjudication. Any act, which violates such principle, must immediately be struck down. Indeed, the principle of conclusiveness of prior adjudications is not confined in its operation to the judgments of what are ordinarily known as courts, but extends to all bodies upon which judicial powers had been conferred. x x x26
There can be no question that the Board has the authority to hear and determine the deportation case against a deportee and in the process determine also the question of citizenship raised by him. However, this Court, following American jurisprudence, laid down the exception to the primary jurisdiction enjoyed by the deportation board in the case of Chua Hiong v. Deportation Board wherein we stressed that judicial determination is permitted in cases when the courts themselves believe that there is substantial evidence supporting the claim of citizenship, so substantial that there are reasonable grounds for the belief that the claim is correct. Moreover, when the evidence submitted by a deportee is conclusive of his citizenship, the right to immediate review should also be recognized and the courts shall promptly enjoin the deportation proceedings.The Bureau of Immigration is the agency that can best determine whether petitioner Go violated certain provisions of C.A. No. 613, as amended. In this jurisdiction, courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies.29 By reason of the special knowledge and expertise of administrative departments over matters falling within their jurisdiction, they are in a better position to pass judgment thereon and their findings of fact in that regard are generally accorded respect, if not finality, by the courts.30chanrobleslaw
While we are mindful that resort to the courts may be had, the same should be allowed only in the sound discretion of a competent court in proper proceedings. After all, the Board's jurisdiction is not divested by the mere claim of citizenship. Moreover, a deportee who claims to be a citizen and not therefore subject to deportation has the right to have his citizenship reviewed by the courts, after the deportation proceedings. The decision of the Board on the question is, of course, not final but subject to review by the courts.
After a careful evaluation of the evidence, the appellate court was not convinced that the same was sufficient to oust the Board of its jurisdiction to continue with the deportation proceedings considering that what were presented particularly the birth certificates of Jimmy, as well as those of his siblings, Juliet Go and Carlos Go, Jr. indicate that they are Chinese citizens. Furthermore, like the Board, it found the election of Carlos of Philippine citizenship, which was offered as additional proof of his claim, irregular as it was not made on time.
We find no cogent reason to overturn the above findings of the appellate tribunal. The question of whether substantial evidence had been presented to allow immediate recourse to the regular courts is a question of fact which is beyond this Court's power of review for it is not a trier of facts. None of the exceptions in which this Court may resolve factual issues has been shown to exist in this case. Even if we evaluate their arguments and the evidence they presented once again, the same conclusion will still be reached.28 (Emphasis supplied)
Forum shopping is defined as:ChanRoblesVirtualawlibrary
[W]hen a party repetitively avails of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in or already resolved adversely by some other court.
Forum shopping consists of the following elements:ChanRoblesVirtualawlibrary
(a) identity of parties, or at least such parties as represent the same interests in both actions;
(b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and
(c) the identity of the two preceding particulars, such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.32
In Go, Sr., petitioner Go and Go, Sr. challenged in G.R. Nos. 167569 and 167570 the October 25, 2004 Decision and February 16, 2005 Resolution of the CA in CA-G.R. SP No. 85143, which affirmed the January 6, 2004 Decision and May 3, 2004 Order of the Pasig RTC in SCA No. 2218 that upheld the Charge Sheet dated July 3, 2001 and the April 17, 2002 Decision of the Board. We eventually affirmed the CA Decision and Resolution.
On the other hand, in this case, petitioner Go seeks to nullify the October 28, 2009 Decision and March 22, 2010 Resolution of the CA in CA-G.R. SP No. 88840 ruling that the April 17, 2002 Decision had already become final and executory in view of Our Decision in Go, Sr. To note, after filing G.R. Nos. 167569 and 167570 before this Court, petitioner Go still appealed the same April 17, 2002 Board Decision to the Office of the President. Unfortunately for him, the OP also denied his appeal and motion for reconsideration. With the denial, he filed a petition for review under Rule 43 before the CA, which, as aforesaid, sustained the BI Decision.
We have held in Tze Sun Wong v. Kenny Wong33 that from the denial of the motion for reconsideration by the BI Board of Commissioners, the aggrieved party has three (3) options: (a) he may file an appeal directly to the CA via Rule 43 provided that he shows that any of the exceptions to the exhaustion doctrine attend; (b) absent any of the exceptions, he may exhaust the available administrative remedies within the executive machinery, namely, an appeal to the Secretary of Justice and then to the OP, and thereafter, appeal the OP's decisions via Rule 43; or (c) he may directly resort to certiorari before the CA strictly on jurisdictional grounds, provided that he explains why any of the aforementioned remedies cannot be taken as "adequate and speedy."
Petitioner Go availed of remedies (b) and (c) above in his desire to obtain a favorable judgment. In Go, Sr., petitioner Go, together with his father, elevated the case to the CA via Rule 65 petition. In this case, he immediately appealed to the OP, by-passing the Secretary of Justice.
Similar to Go, Sr., ruling on whether petitioner Go is a Filipino citizen is not what We are called upon to do in this case. The Court does not even have to rule once more on the issue of citizenship to determine whether the BI proceedings may be enjoined to give way to a judicial determination of the same because the matter was already passed upon with finality in Go, Sr. At this moment, petitioner's Philippine citizenship claim cannot be settled before Us. There are factual issues that make his citizenship controversial; hence, must first be resolved before the BI and not before the Supreme Court, which is not a trier of facts.34chanrobleslaw
WHEREFORE, the foregoing considered, the instant petition for review on certiorari is DENIED. The October 28, 2009 Decision and March 22, 2010 Resolution of the Court of Appeals in CA-G.R. SP No. 88840, which affirmed as final the April 17, 2002 Decision of the Bureau of Immigration, are AFFIRMED.
SO ORDERED.cralawlawlibrary
Velasco, Jr., (Chairperson), J., I dissent. Please see dissenting opinion.
Villarama, Jr., Reyes, and Jardeleza, JJ., concur.
Endnotes:
1 Penned by Associate Justice Jane Aurora C. Lantion, with Associate Justices Mario L. Guarina III and Mariflor P. Punzalan-Castillo concurring; rollo, pp. 29-43.
2 Rollo, pp. 45-50.
3 Signed by Commissioner Andrea D. Domingo and Associate Commissioners Arthel B. Caronongan, Daniel C. Cueto, and Orlando V. Dizon; id. at 51-69.
4 Rollo, pp. 124-126.
5Id. at 48-50, 127-129.
6Id. at 130-131.
7Id. at 132.
8Id.
9Id. at 133-179.
10Id. at 69.
11 Art. 410. The books making up the civil register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained.
12Id. at 201-214.
13Id. at. 217-218.
14Id. at 219-224.
15Id. at 235-236.
16Id. at 237-279.
17Id. at 282-294.
18Id. at 312.
19Id. at 70-73.
20Id. at 74-76.
21Id. at 335-357.
22 G.R. Nos. 167569, 167570 & 171946, September 4, 2009, 598 SCRA 266.
23Rollo,p.7.
24 Section 2. Second motion for reconsideration. - No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.
25League of Cities of the Philippines (LCP), et al. v. COMELEC, et al., 668 Phil. 120, 139 (2011), citing Securities and Exchange Commission v. PICOP Resources, Inc., 588 Phil. 136 (2008); Apo Fruits Corp., et al. v. Land Bank of the Phils., 662 Phil. 572 (2011); and Ortigas and Company Limited Partnership v. Velasco, 324 Phil. 483 (1996).
26Gonzales v. Solid Cement Corporation, G.R. No. 198423, October 23, 2012, 684 SCRA 344. (Emphasis ours)
27Airline Pilots Association of the Philippines v. Philippine Airlines, Inc., 665 Phil. ___ (2011).
28Go, Sr. v. Ramos, G.R. Nos. 167569, 167570 & 171946, September 4, 2009, 598 SCRA 266, 291-293.
29Tze Sun Wong v. Kenny Wong, G.R. No. 180364, December 3, 2014.
30Id.
31Id.
32Ortigas & Company Limited Partnership v. Judge Velasco, G.R. No. 109645, January 21, 2015.
33 G.R. No. 180364, December 3, 2014.
34 See Magno v. Court of Appeals, G.R. No. 101148, August 5, 1992, 212 SCRA 229, 234.
VELASCO, JR., J.:
Investigator-on-case commented that the allegation against x x x CARLOS GO that he is not a Filipino citizen was shattered to pieces when the subject submitted documents proving otherwise. Our x x x (SI) further stressed that per record, it appears that as of January 7, 1950, when subject was still 21 years of age, he already elected Filipino citizenship, took his oath of allegiance and even participated/voted in the 1953 and 1955 Presidential and local elections respectively. Considering the foregoing facts, our Sl-on-case opined that by operation of law, the citizenship of the children of subject Carlos Go, who were born before and after he elected Filipino citizenship follows that of their father CARLOS GO.Finding the evidence and the NBI report conclusive as to the citizenship of Go, Sr. and Go, BI Associate Commissioner Linda L. Malenab-Hornilla, by Resolution of February 14, 2001, dismissed the complaint,8 thus:chanRoblesvirtualLawlibrary
We agree. Records showed that Subject CARLOS GO's election of Filipino citizenship was in accordance with the provisions of the 1935 Philippine Constitution. Subject was born by a Filipino mother and that he complied with the procedures set forth by law.
Anent the issue touched by Sl-on-case regarding (sic) erasure on the original birth certificate of JIMMY TAN GO. We also agree to the Si's opinion that although our QDD confirmed such erasure, the same could not be attributed to CARLOS GO or JIMMY GO as said document (birth certificate) was on file with the Local Civil Registrar of Iloilo City. Furthermore, the change if there is any, was just a correction. Thus no falsification was committed.7 (emphasis supplied)
Finding that the evidence furnished by the NBI is conclusive of the citizenship of CARLOS GO and JIMMY TAN GO @ JAIME T. GAISANO, we are constrained to find for the respondent. Filipino citizens are not subject to deportation. Deportation is defined as the expulsion of a foreigner from the territory of the State. The respondent, not being a foreigner but a Filipino citizen cannot be deported.On March 8, 2001, the BI Board of Commissioners (BI Board), however, by a Resolution9 reversed the case dismissal, holding that Go, Sr.'s election of citizenship was made out of time. Pursuant thereto the Board directed the filing of appropriate deportation charges against Go.
PREMISES considered, the herein complaint for deportation of JIMMY TAN GO @ JAIME T. GAISANO is hereby DISMISSED for lack of merit.chanroblesvirtuallawlibrary
WHEREFORE, x x x the Board of Commissioners hereby Orders the apprehension of respondent JIMMY T. GO a.k.a. JAIME T. GAISANO and that he be then deported to CHINA of which he is a citizen, without prejudice however, to the continuation of any and all criminal and other proceedings that are pending in court or before the prosecution arm of the Philippine Government, if any. And that upon expulsion, he is thereby ordered barred from entry into the Philippines.chanroblesvirtuallawlibraryThe BI Board gave weight to the pieces of evidence submitted against petitioner Go, i.e.:ChanRoblesVirtualawlibrary
1) | The Certificate of Birth of Go, issued on November 23, 1999 by the Local Civil Registrar of Iloilo City12 which showed that Baby Jimmy Go is "FChinese"; |
2) | The Certificate of Live Birth of Juliet Go, which certified that her citizenship was Chinese. The same certificate also stated that Carlos Go was a "Chinese" and the mother "Rosario Tan" was also Chinese;13 and |
3) | The Certificate of Live Birth of Carlos Go, Jr., whose citizenship was also certified as "Chinese."14 |
Election of Philippine Citizenship must be expressed in a statement before any officer authorized to administer oaths and filed with the nearest civil registry and accompanied by an Oath of Allegiance to the Philippine Constitution.chanroblesvirtuallawlibraryUndeterred, Go filed in the pending petition for certiorari with the RTC, in SCA No. 2218, a supplemental petition to nullify the BI Board's Decision of April 17, 2002.
WHEREFORE, the instant petition for Certiorari and Prohibition is, as it is hereby, DISMISSED for lack of merit and the injunctive relief granted the petitioners, as a consequence, is DISSOLVED.chanroblesvirtuallawlibraryFollowing the denial of his motion for reconsideration per the RTC's Order dated May 3, 2004,17 Go went to the Court of Appeals (CA) via a petition for certiorari, docketed thereat as CA-G.R. SP No. 85143.18 On October 25, 2004, the CA rendered a Decision affirming the assailed RTC decision and order. The CA, by resolution of February 16, 2010, would subsequently deny Go reconsideration. Meanwhile, on November 16, 2004, the Board issued a Warrant of Deportation against petitioner Go.19chanrobleslaw
WHEREFORE, premises considered, the appeal of Jimmy T. Go a.k.a. Jaime T. Gaisano is hereby DISMISSED for lack of merit. Accordingly, the appealed judgment of the BI is hereby AFFIRMED.20On February 11, 2005, the OP denied Go's motion for reconsideration, prompting him to repair to the CA on a petition for review under Rule 4321 assailing the OP decision and order.
As Carlos and Jimmy neither showed conclusive proof of their citizenship nor presented substantial proof of the same, we have no choice but to sustain the Board's jurisdiction over the deportation proceedings. This is not to say that we are ruling that they are not Filipinos, for that is not what we are called upon to do. This Court necessarily has to pass upon the issue of citizenship only to determine whether the proceedings may be enjoined in order to give way to a judicial determination of the same. And we are of the opinion that said proceedings should not be enjoined.24 (emphasis supplied)As it were, the instant case was initiated fifteen (15) years ago and it may take several years more to finally determine petitioner's citizenship. Given this hard fact and in line with the doctrine permitting judicial determination in cases where there is substantial evidence to support a claim of citizenship, the Court can very well suspend the rules and finally pass upon and adjudge the citizenship of Go, Sr. and Go in the higher interest of substantial justice. In this regard, I note that petitioner Go, in the instant recourse, prays for the final adjudication of his citizenship which will ultimately settle whether he is indeed subject to deportation.
Since the abovementioned requisites for res judicata did not concur in the previous case26 being a deportation case, the Court should, therefore, not be precluded from reviewing the findings of the BI through judicial review when present are substantial grounds and evidence which show the conclusiveness of the citizenship of a deportee.27 The right to immediate review of the case of a deportee should be recognized to afford the deportee the chance to prove his or her citizenship prior to a possible mistaken deportation to another country.
- a person's citizenship must be raised as a material issue in a controversy where said person is a party;
- the Solicitor General or his authorized representative took active part in the resolution thereof; and
- the finding or citizenship is affirmed by this Court.25
Section 1. The option to elect Philippine citizenship in accordance with subsection (4), section 1, Article IV, of the Constitution shall be expressed in a statement to be signed and sworn to by the party concerned before any officer authorized to administer oaths, and shall be filed with the nearest civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the Constitution and the Government of the Philippines.34Article IV, Sec. 1(3) of the 1935 Constitution provides that the citizenship of a legitimate child born of a Filipino mother and an alien father follows the citizenship of the father, unless, upon reaching the age of majority, the child elects Philippine citizenship. On the other hand, Sec. 1 of C.A. No. 625 provides for the procedure on the actual election of citizenship by the child which states that legitimate children bom of Filipino mothers may elect Philippine citizenship by expressing such intention "in a statement to be signed and sworn to by the party concerned before any officer authorized to administer oaths, and shall be filed with the nearest civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the Constitution and the Government of the Philippines."
Respondent's final assertion in paragraph 4, B, pages 6-7 of his Counter-Affidavit is that his father CARLOS GO, Sr., *** Elected Philippine citizenship on July 11, 1950 when he took his Oath of Allegiance on the said date, *** before Eustaquio Logronio, Deputy Clerk of Court Iloilo City; that *** on July 12, 1950, my said father CARLOS GO, SR., also signed and executed an Affidavit of 'Election of Philippine Citizenship before Eustaquio Logronio, ***; and that *** on September 11, 1956 my said father CARLOS GO executed an Affidavit explaining why he filed his Affidavit and Oath of Allegiance with the Office of the Civil Registrar of Iloilo City on September 11, 1956. The Oath of Allegiance, Election of Philippine Citizenship, and the Affidavit are marked as Annexes "D", "E", and "F", respectively, of respondent's Counter-Affidavit.The Republic would, thus, want Us to rule that pursuant to the BOC Decision, Go, Sr. failed to follow the proper procedure for the election of citizenship provided for in Section 1 of C.A. No. 625 and consequently cannot be considered a Filipino citizen. In its Comment,36 it points out that Go, Sr. committed a critical error in filing his Oath of Allegiance with the Office of Civil Registrar of Iloilo City on September 11, 1956 prior to the filing of his Affidavit of Election of Philippine Citizenship which he filed belatedly, on July 12, 1950. Claiming that the law is clear and explicit in that the Election of Philippine Citizenship "must be expressed in a statement before any officer authorized to administer oaths and filed with the nearest civil registry and accompanied by an Oath of Allegiance to the Philippine Constitution," the Republic urges Us to rule that a person must first elect to become a citizen before he can take his oath of allegiance. It asserts that the Oath of Allegiance filed by Go, Sr. is null and void being filed prior to the election of citizenship.
Observedly, the certified true copy of the Oath of Allegiance of CARLOS GO, SR., appears to have been subscribed and sworn to before the Deputy Clerk of Court of Iloilo City on the '11th day of July, 1950, at the City of Iloilo, Philippines', and the Affidavit of Election of Philippine Citizenship was subscribed and sworn to by CARLOS GO, SR., before the same Deputy Clerk of Court on the '12th day of July 1950'.
At this juncture, the question that should be inquired into is: which should be first accomplished, or undertaken, the Oath of Allegiance, or the Election of Philippine Citizenship? The answer is obvious.
Commonwealth Act No. 625 or "An Act Providing the Manner in which the Option to Elect Philippine Citizenship Shall be Declared by a Person Whose Mother is a Filipino Citizen," June 7, 1941, 35 BSI-D.C. No. ADD-01-117, April 17, 2002.
The law is clear and explicit. Section 1 of Commonwealth Act No. 625, enacted on June 7, 1941, provides that an Election of Philippine Citizenship must be expressed in a statement before any officer authorized to administer oaths and filed with the nearest civil registry and accompanied by an Oath of Allegiance to the Philippine Constitution. The words 'must be' in the law, likened to the word "shall" (sic) in the statute, means imperative, and operates to impose a duty which should be enforced (Dizon v. Encarnacion, 9 SCRA 714, 715-716). And the word 'and' in the law, simply means a particle joining words and sentences, and expressing the relations of connection or addition. Section 1 of C.A. No. 625, thus imposes a duty on the part of the person who elects Philippine Citizenship to file the election statement, under oath, before the civil registry and must be accompanied by an oath of Allegiance.
Under those lights, the answer to the question at issues is that one, the likes of CARLOS GO, SR., must first elect to become a citizen of the Philippines before he can take his oath of allegiance. Nevertheless, what CARLOS GO, SR., did, accomplished and performed was first to execute the Oath of Allegiance on July 11, 1950. and then accomplished and/or filed his Election of Philippine Citizenship on the following day July 12, 1950, which is inexplicable. For, how could CARLOS GO, SR., take his Oath of Allegiance when he has not even executed his intention to elect or become a citizen of the Philippines! Certainly, the questionable Oath of Allegiance is NULL AND VOID ab initio and produced no legal force and effect.
And most importantly, likewise vital to appreciate, is that according to Annex "F": of the Counter Affidavit, CARLOS GO, SR., respondent's father, was born in Jaro, Iloilo City, on April 26, 1924, yet he executed the Affidavit of Election of Philippine Citizenship on July 12, 1950. Hence, on that date of election, he was twenty-six years, two months and 16 days old (26, Yrs. 2 months, 16 days old), which is beyond 21 years of age - the age of majority - in violation of Section 1(4), Article IV, of the 1935 Constitution, now Section 1, (3), Article IV, of the 1987 Constitution, Thusly, Section 1(4), Article IV, of the 1935 Constitution, provides: "Those whose mothers are citizen of the Philippines and, upon reaching the age of majority, elect Philippine Citizenship." The 1935 Constitution, and Commonwealth Act No. 625, An Act Providing the Manner in which the Option to elect Philippine Citizenship shall be declared by a person whose mother is a Filipino citizen, took effect on June 7, 1941.
Commonwealth Act No. 625 which was enacted pursuant to Section 1(3), Article IV of the 1935 Constitution, which outlines the procedure that should be followed in order to make a valid election of Philippine citizenship, however, does not provide for a time period within which the election should be made. Nevertheless, the option must be exercised within a reasonable period after reaching the age of majority (Department of Justice (DOJ) Opinions dated August 12, 1945, and June 26, 1947). And DOJ Opinion No. 20, s. of 1948, is to the effect that three (3) years is a reasonable period within which to make the Election of Citizenship. The DOJ Opinion No. 20 was cited with approval by the High Court in DY CUENCO V. SECRETARY OF JUSTICE. 5 SCRA 108, 110. While justifiable circumstances may justify an extension of the three-year (3) period (Dy Cuenco v. Secretary of Justice, supra), the Supreme Court, in LIM TECO V. COLLECTOR OF CUSTOMS. 20 PHIL. 84, firmly declared that five (5) years is an unreasonable period within which to make the election.
In accordance with the applicable laws and the foregoing jurisprudence on the matter, the Affidavit of Election of Philippine Citizenship, executed by CARLOS GO, SR., the father of respondent on July 12, 1950, at the age of 26 years, two months, and 16 days old, is unmistakably beyond the allowance period within which the exercise of the privilege should be effectuated by any reasonable yardstick, (cf. Re: Application for Admission in the Philippine Bar, 316 SCRA). And, like the Oath of Allegiance of CARLOS GO. SR. the Affidavit of Election of Philippine Citizenship is likewise NULL AND VOID ab initio and produced no legal force and effect.
The Affidavit (Annex "F" of respondent's Counter-Affidavit), wherein the affiant, CARLOS GO, SR., tried to explain why he failed to have Affidavit of Election of Philippine Citizenship, and of the Oath of Allegiance *** registered with the Office of the Civil Registrar of the City of Iloilo; and that he executed the aforesaid affidavit *** to conform with the existing Laws and Regulations regarding the election of Philippine Citizenship, paying the corresponding fee of P10.00 at the same time, is a worthless piece of paper, it appearing that the Affidavit is not under oath, because it was not subscribed and sworn to before an officer authorized to administer.chanroblesvirtuallawlibrary
FR. BERNAS. x x x Precisely, the reason behind the modification of the 1935 rule on citizenship was a recognition of the fact that it reflected a certain male chauvinism, and it was for the purpose of remedying that this proposed provision was put in. The idea was that we should not penalize the mother of a child simply because she fell in love with a foreigner. Now, the question on what citizenship the child would prefer arises. We really have no way of guessing the preference of the infant. But if we recognize the right of the child to choose, then let him choose when he reaches the age of majority. I think dual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control. But certainly it is within the jurisdiction of the Philippine government to require that [at] a certain point, a child be made to choose. But I do not think we should penalize a child before he is even able to choose. I would, therefore, support the retention of the modification made in 1973 of the male chauvinistic rule of the 1935 Constitution.In the case, We held that "having a Filipino mother is permanent. It is the basis of the right of the petitioners to elect Philippine citizenship. Petitioners elected Philippine citizenship in form and substance. The failure to register the election in the civil registry should not defeat the election and resultingly negate the permanent fact that they have a Filipino mother." Protecting and recognizing the citizenship of the petitioners' mother and subsequently the petitioners, We upheld their election which was done when they reached the age of majority though they belatedly registered the election documents in the nearest civil registry.
x x x x
MR. REGALADO. With respect to a child who became a Filipino citizen by election, which the Committee is now planning to consider a natural-born citizen, he will be so the moment he opts for Philippine citizenship. Did the Committee take into account the fact that at the time of birth, all he had was just an inchoate right to choose Philippine citizenship, and yet, by subsequently choosing Philippine citizenship, it would appear that his choice retroacted to the date of his birth so much so that under the Gentleman's proposed amendment, he would be a natural-born citizen?
FR. BERNAS. But the difference between him and the natural-born who lost his status is that the natural-born who lost his status, lost it voluntarily; whereas, this individual in the situation contemplated in Section 1, paragraph 3 never had the chance to choose, (emphasis supplied)
A solemn declaration, accompanied by a swearing to God or a revered person or thing, that one's statement is true or that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is broken. The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false.38Thus defined, how can the respondent plausibly claim that Go, Sr. never really intended to elect his citizenship when he already made a solemn declaration that he is willing to defend the Constitution of the Philippines, obey its laws and the legal orders duly promulgated, that he recognizes and accepts the supreme authority of the Philippines and that he will maintain true faith and allegiance to it and that he rendered his oath voluntarily, without mental reservation or purpose of evasion?39 The words of an Oath of Citizenship show a person's sincerity in his intention to claim his citizenship. Consequently, respondents' imputation of insincerity to Go, Sr.'s Election and Oath of Citizenship must fail.
It follows, therefore, that a child bom of alien parents who goes to his father's native land at a tender age and remains there during minority, on becoming of age should, if he desires to retain his Filipino citizenship, indicate that desire by exercising his right of election; and a failure to express such a desire within a reasonable time should be regarded as a strong presumption of his purpose to become definitely identified with the body politic of his father's country. The length of time within this right must be exercised, as stated above, has never been the subject of legislation. The State Department of the United States has, however, repeatedly held that such election must be made within a reasonable time and is best evidenced by an early return to the country of his birth. In fact, the decisions of the Department of State have gone further and have held almost uniformly that a return to the country of the child's birth at an early date after attaining majority is absolutely essential for him to retain citizenship therein.Thus, in the Lim Teco case, We did not deny Lim Teco's citizenship based on his failure to file his Election of Citizenship five (5) years after he reached the age of majority, but because he did not grow up in the Philippines and he failed to return to the Philippines within a reasonable time to elect his citizenship. In fact, he stayed in China until 5 years after he reached the age of majority before deciding to go back to the Philippines to elect Philippine citizenship. The Court further stated that:chanRoblesvirtualLawlibrary
x x x x
Cases could readily be conceived where circumstances prevented the child from returning to the country of his birth immediately after attaining majority, and in such cases, upon a proper showing, the return at an early date would, no doubt, be waived, so far as the exigencies of the case required. No such claims have, however, been made in the case at bar, and the board of special inquiry having found as a fact that the appellee by his conduct had expatriated himself, we cannot entertain the idea that the appellee may, after a residence, under these circumstances, of five years in his father's native country after attaining majority, now elect to become a citizen of the Philippine Islands. He has irrevocably lost that right by his failure to exercise it within a reasonable time after becoming of age. He is no longer a citizen of the Philippine Islands.chanroblesvirtuallawlibrary
In the first place, the environment of a child up to the age of 5 has little, if any, permanent influence upon his subsequent life if taken to another and very different environment. And a child born of an alien father, taken to his father's country at that age, and remaining there until he attains his majority, is, for all practical purposes, as much a resident of the latter country as a native born who has never left it. Little trace of his foreign birth and residence is left upon such a child after a residence of several years in his father's country. He lapses into the manner of the native born as easily and as effectually as his father who sired him during a residence of a number of years in a foreign land. Again, having ceased to regard the country of his birth as his home, he is practically in the same position as an American citizen who has never lived in the United States, and who is referred to in section 6 of the Act of 1907. (emphasis supplied)Consequently, the Court looked into Lim Teco's circumstances as a minor who grew up in China during his formative years and acquired the manner of a Chinese native until he decided to return to the country of his birth, the Philippines. The crucial factor that led to the Court's Decision in the Lim Teco case is the fact that Lim Teco went back to the Philippines five years after he reached the age of majority and just then decided to elect Philippine Citizenship. In the mind of the Court, Lim Teco was no longer a Filipino since he no longer had any trace of his Filipino heritage in him. It took too long for him to go back to the land of his birth to claim an inchoate right given him by the Constitution. His very essence was in fact Chinese and he no longer retained any of his Filipino traits due to his long stay in China.
The petitioners question the citizenship of the father through a collateral approach. This cannot be done. In our jurisprudence, an attack on a person's citizenship may only be done through a direct action for its nullity (See Queto vs. Catolico, 31 SCRA 52 [1970]).Thus, in Co, We held that an attack for the nullity of a person's citizenship may only be done directly. In the instant case, We note that during the deportation proceedings against the petitioner, the citizenship of his father, Go, Sr., has been continuously collaterally attacked and he was oftentimes conclusively declared to be a Chinese citizen and that, as a result thereof, the petitioner too was conclusively declared a Chinese citizen.
x x x x
To ask the Court to declare that grant of Philippine citizenship to Jose Ong Chuan as null and void would run against the principle of due process.chanroblesvirtuallawlibrary
Filipino citizens are not subject to deportation, x x x The petitioners, not being foreigners but Filipino citizens cannot be deported. Thus, should 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]), the Supreme Court held that the issue of citizenship should be lodged before the proper regular courts x x x.46chanrobleslawThe denial of this petition ought not to bar petitioner from pursuing a legal action before a court of law to prove his citizenship pursuant to the Court's decision in Go, Sr. vs. Ramos.48chanrobleslaw
A citizen is entitled to live in peace, without molestation from any official or authority, and if he is disturbed by deportation proceedings, 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. The legal basis of the prohibition is the absence of the jurisdictional fact, alienage.47
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, in spite 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.In Lam Shee, the person saved from deportation was born and raised in China, and came to the Philippines only when he was 17 years old. It is with more reason, therefore, that petitioner, who was born, raised, educated and had grown old in the Philippines, should be granted the same opportunity to prove his right to stay with his family in another proceeding.
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.chanroblesvirtuallawlibrary
Endnotes:
1 Records, p. 48, Annex "C."
2 Id.
3 Id.
4 Id. at 49.
5 Id. at 66, Annex "D."
6 Id. at 58, Annex "D."
7 Id. at 49, Annex "C."
8 Id.
9 Id. at 96.
10 Id. at 97, BSI-D.C. No. ADD-01-842.
11 Penned by then Commissioner Andrea D. Domingo and concurred in by then Associate Commissioners Arthel B. Caronongan, Daniel C. Cueto and Orlando V. Dizon.
12 Records, p. 64, Annex "D."
13 Id.
14 Id
15 Article 410 of the Civil Code: "the books making up the Civil Registrar and all documents relating thereto shall be considered public documents and shall be prima-facie evidence of the facts therein contained."
16 Enacted on June 7, 1941.
17 Records, p. 100.
18 Entitled Jimmy T. Go, et al. v. Hon. Alfredo C. Flores, Presiding Justice of the Regional Trial Court, Branch 167, Pasig City, et al.
19 Records, p. 102.
20 Id. at 70, Annex "E."
21 Docketed as CA-G.R. SP No. 88840.
22 598 SCRA 266.
23 Records, p. 105.
24 Supra note 22.
25Burca v. Republic, No. L-24252, June 15, 1973, 51 SCRA 248, 259-260.
26Go, Sr. v. Ramos, supra note 22.
27Department of Justice Secretary Raul M. Gonzalez , Bureau of Immigration Commissioner and Board of Commissioners Chairman Alipio F. Fernandez, Jr., and Immigration Associate Commissioners and Board of Commissioners Members Arthel B. Caronongan, Teodoro B. Delarmente, Jose D.L. Cabohan, and Franklin Z. Littua v. Michael Alfio Pennisi, G.R. No. 169958, March 5, 2010.
28 Bernas, Joaquin G., S.J., THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY 609.
29 WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 52 (1993)
30 Id.
31 356 U.S. 44, 64 (1958).
32 Supra note 11.
33Rollo, p. 57.
34 Commonwealth Act No. 625 or "An Act Providing the Manner in which the Option to Elect Philippine Citizenship Shall be Declared by a Person Whose Mother is a Filipino Citizen," June 7, 1941.
35 BSI-D.C. No. ADD-01-117, April 17, 2002.
36Rollo, p. 114.
37 G.R. No. 183133, July 26, 2010, 625 SCRA 566.
38 BLACK'S LAW DICTIONARY (9th ed., 2009).
39 Republic Act No. 9225, Sec. 3.
40 No. L-18069, May 26, 1962, 5 SCRA 108.
41 Bar Matter No. 914, October 1, 1999.
42 No. L-7071, January 15, 1913.
43 G.R., Nos. 92191-92 & 92202-03, July 30, 1991, 199 SCRA 692.
44Rollo, p. 401.
45 CIVIL CODE, Art. 410.
46Board of Commissioners v. Dela Rosa, G.R. Nos. 95122-23, May 31, 1991, 197 SCRA 853.
47Chua Hiong v. Deportation Board, 96 Phil. 665 (1955).
48 G.R. Nos. 167569, 167570 & 171946, September 4, 2009, 598 SCRA 266, 297.
49 93 Phil. 1065 (1953).chanroblesvirtuallawlibrary