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SECOND DIVISION

G.R. No. L-23846 September 9, 1977

GO TEK petitioner-appelle, vs. DEPORTATION BOARD, respondent-appellant.

AQUINO, J.:chanrobles virtual law library

This is a deportation case. On March 3, 1964 the chief prosecutor of the Deportation Board filed a complaint against Go Tek a Chinaman residing at Ilagan, Isabela and 1208-B, Misericordia Street, Sta. Cruz Manila.chanroblesvirtualawlibrarychanrobles virtual law library

It was alleged in the complaint that in December, 1963 certain agents of the National Bureau of Investigation (NBI) searched an office located at 1439 O'Donnel Street, Sta. Cruz, Manila believed to be the headquarters of a guerilla unit of the "Emergency Intelligence Section, Army of the United States" and that among those arrested thereat was Go Tek an alleged sector commander and intelligence and record officer of that guerilla unit.chanroblesvirtualawlibrarychanrobles virtual law library

It was further alleged that fake dollar checks were found in Go Tek's possession and that, therefore, he had violated article 168 of the Revised Penal Code and rendered himself an undesirable alien.chanroblesvirtualawlibrarychanrobles virtual law library

The prosecutor prayed that after trial the Board should recommend to the President of the Philippines the . immediate deportation of Go Tek as an undesirable alien, "his presence in this country having been, and will always be and a menace to the peace , welfare, and security of the community". Case No. R1116).chanroblesvirtualawlibrarychanrobles virtual law library

Go Tek filed a motion to dismiss on the ground that the complaint was premature bemuse them was a pending case against him in the city fiscal's office of Manila for violation of article 168 (IS 64-7267). He contended that the board had no jurisdiction to try the case in view of the obiter dictum in Qua Chee Gan vs. Deportation Board, 118 Phil. 868, 875, that the t may deport aliens only on the grounds specified in the law.chanroblesvirtualawlibrarychanrobles virtual law library

The Board, composed of Manuel A. Concordia, Arturo A. Alafriz and Manuel V. Reyes, in its resolution of April 21, 1964 denied Go Teks motion. The Board reasoned out that a conviction is not a prerequisite before the State my exercise its rights to deport an undesirable alien and that the Board is only a fact finding body whose function is to make a report and recommendation to the President in whom is lodged the exclusive power to deport an alien or a deportation proceeding.chanroblesvirtualawlibrarychanrobles virtual law library

In view of the denial of his motion to quash, Go Tek on June 10, 1964 filed in the Court of First Instance of Manila a prohibition action against the Board. On July 8, 1964 the court issued a writ of preliminary injunction restraining the board from hearing Go Tek's case.chanroblesvirtualawlibrarychanrobles virtual law library

After hearing, the trial court (Judge Federico C. Alikpala presiding) in its decision of 31, 1964 granted the writ prohibition and the Board to desist from taking cognizance of the Go Tek.chanroblesvirtualawlibrarychanrobles virtual law library

The court, citing the said obiter dictum in the Qua Chee Gan case, held that mere ion of forged dollar checks is not a ground for deportation under the Immigration Law; that under section 37(3) of the law before an alien may be deported for having been convicted and sentenced to imprisonment for a term of one year or more for a crime involving moral turpitude a conviction is and that since Go Tek had not been convicted of the offense punished in article 168, the deportation was premature.chanroblesvirtualawlibrarychanrobles virtual law library

The Board appealed to this Court on the ground that the decision is contrary to law. The Solicitor General contends that the trial court erred in assuming that the President may deport undesirable aliens only to grounds enumerated by law; in holding that mere possession of forged dollar checks is not a ground for deportation and that a criminal conviction is necessary, and in not finding that the Board has jurisdiction over Go Tek's case.chanroblesvirtualawlibrarychanrobles virtual law library

The parties stipulated that the Deportation Board is an of the President of the Philippines charged with the investigation of undesirable aliens and to report and recommend proper action on the basis of its findings therein."chanrobles virtual law library

The issue is whether the Deportation Board can entertain a deportation proceeding based on a ground which is not specified in section 37 of the Immigration Law and although the aliens has not yet been convicted of the offense imputed to him.chanroblesvirtualawlibrarychanrobles virtual law library

We hold that the Board has jurisdiction to investigate Go Tek for illegal possession of fake dollar checks (as well as his alleged "guerilla" activities) in spite of the fact that he has not yet been convicted of illegal possession thereof under article 168 of the Revised Penal Code and notwithstanding that act is not the grounds for the deportation of undesirable aliens as enumerated in section 37 of the Immigration Law. The charge against Go Tek before- the Board was not premature.chanroblesvirtualawlibrarychanrobles virtual law library

The aforementioned obiter dictum the Qua Chee Gan case invoked by Go Tek and relied upon by the trial court, is not of this case. In the Qua Chee Gan case the aliens were with economic sabotage which is a ground for deportation under Republic Act No. 503.chanroblesvirtualawlibrarychanrobles virtual law library

The ratio decidendi of the Qua Chee Gan case is that the provision of Executive Order No. 398, of 1951, the Deportation Board to issue a warrant of arrest upon the filing of formal charges against an alien, is "illegal" or unconstitutional because it is contrary to the provinsion in section 1(3), Article III of the 1935 Constitution that warrants shall issue upon to be de by the judge after e under oath the t and the witness he may produce. (Note that under section 3, Article IV of the 1973 Constitution cause may be determined "by the judge, or such other responsible officer as may be authorized by law". See Santos vs. Commissioner of Immigration L-25694, November 29, 1976, 74 SCRA 96, per Fernando, J.)chanrobles virtual law library

A thorough comprehension of the President's power to deport aliens may show the baselessness of the instant prohibition action of Go Tek The President's power to deport aliens and the investigation of aliens subject to deportation are provided for in the following provisions of the Revised Administrative Code:

SEC. 69. Deportation of subject of foreign power. - A subject of a foreign power residing in the Philippine Islands shall not be deported expelled, or excluded from said Islands or repatriated to his own country by the Governor-General except upon prior investigator, conducted by said Executive or his authorized agent, of the ground upon which such action is contemplated. In such case the person concerned shall he informed of the charge or charges against him and he shall be allowed not less than three days for the preparation of his defense. He shall also have the right to be heard by himself or counsel, to produce witnesses in his own behalf, and to cross-examine the opposing witnesses.

On the other hand, section 37 of the Immigration Law Provides that certain aliens may 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 Commissioner's warrant - "after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien." Thirteen classes of aliens who may be deported by the Commissioner are specified in section 37 (See Po Siok Pin vs. Vivo, L-24792, February 14, 1975, 62 SCRA 363, 368).chanroblesvirtualawlibrarychanrobles virtual law library

So, under existing law; the deportation of an undesirable alien may be effected (1) by order of the President, after due investigation, pursuant to section 69 of the Revised Administrative Code and (2) by the Commissioner of Immigration upon recommendation of the Board of Commissioners under section 37 of the immigration Law (Qua Chee Gan vs- Deportation Board, supra).chanroblesvirtualawlibrarychanrobles virtual law library

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be exercise by the Chief Executive "when he deems such action necessary for the peace and domestic tranquility of the nation Justice Johnson's is that there the Chief Executive rinds that there are aliens whose continued in the country is injurious to the public interest he may, even in the absence of express law, deport them (Forbes vs. Chuoco Tiaco and Crossfield 16 Phil. 534, 568, 569; In re McCulloch Dick, 38 Phil. 41).

The right of a country to expel or deport aliens because their continued presence is rental to public welfare is absolute and unqualified (Tiu Chun Hai and Go Tam vs. Commissioner of Immigration and the Director of NBI, 104 Phil. 949, 956).

The Deportation Board is composed of the Undersecretary of Justice as chairman , the solicitor General, and a representative of the Secretary of National Defense (Executive Order No. 455 dated June 25, 1951, 47 O.G. 28M).chanroblesvirtualawlibrarychanrobles virtual law library

SECTION 69 and Executive Order No. 398, the Deportation Board, do not specify the grounds for deportation Paragraph l(a) of Executive Order No. 398 merely provides that "the Deportation Board, motu proprio or upon complaint of any person is authorized to conduct investigations in the manner prescribed in section 69 of the Revised Administrative Code to determine whether a subject of a foreign power in the Philippines is an undesirable alien or not, and thereafter to recommend to the President of the Philippines the deportation of such alien."chanrobles virtual law library

As observed by Justice Labrador, there is no legal nor constitutes provision defining the power to deport aliens because the intention of the law is to grant the Chief Executive "full discretion to determine whether an alien's residence in the country is so undesirable as to affect or injure the security welfare or interest of the state. The adjudication of facts upon which deportation is predicated also devolves on the Chief Executive whose decision is final and executory." (Tan Tong vs. Deportation Board 96 Phil. 934, 936; Tan Sin vs. Deportation Board, 104 PhiL 868, 872).chanroblesvirtualawlibrarychanrobles virtual law library

It has been held that the Chief Executive is the sole and exclusive judge of the existence of facts which warrant the deportation of aliens as disclosed in an investigation conducted in accordance with 69. No other tribunal is at liberty to reexamine or to controvert the sufficiency of the evidence on which he acted. (Martin vs. Mott 12 Wheat., 19, 31, cited in In re McCulloch Dick, 38 Phil. 41, 62).chanroblesvirtualawlibrarychanrobles virtual law library

In the Dick case it was noted "that every alien forfeits his right to asylum in the country in which he resides, in the absence of treaty provisions to the contrary when his conduct or his mode of life renders his prance there inimical to the public interests". "The reasons may be summed up and co in a single word: the public interest of the State ." (38 Phil. 41, 47, 100).chanroblesvirtualawlibrarychanrobles virtual law library

"It is fundamental that an executive order for deportation is not dependent on a prior judicial conviction in a case" (Ang Bong vs. Commissioner of Immigration, 100 Phil. 801, 803). Thus, it was held that the fact that an alien has been acquitted in a of the charge does not prevent the deportation of such alien based on the same charge. Such acquittal does not constitute res judicata in the deportation proceedings. Conviction of a crime is not n to warrant deportation. (3 C.J.S. 743, note 40, citing Lewis vs. Frick, 233 U.S. 291, 58 L. Ed. 967 and U.S. ex.. Mastoras vs. McCandless 61 F. 2nd 366; Tama Miyake vs. U.S. 257 F. 732).chanroblesvirtualawlibrarychanrobles virtual law library

And in the Tan Tong case, supra, it was ruled that the Deportation Board could take cognizance of the charge of illegal importation against an alien as a ground for deportation, even if he of the Deportation Board is merely recommendatory. The Chief Executive has to approve the board's recommendatory Abuses or rents committed by the prosecutor or by the Board should first be brought to his attention.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the lower court's decision is reversed and set aside. The writ of preliminary injunction is dissolved. The case is to the Deportation Board for further proceedings. Costs against the petitioner-appellee.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Antonio, J., concurs:chanrobles virtual law library

The law grants to the Chief Executive full discretion to determine whether an alien's residence in the country is so undesirable as to affect or injure the security, welfare or interest of the State. It is fundamental that an executive order for deportation is not dependent on a prior judicial conviction in a criminal (Ang Beng, et al. v. Com. of Immigration, 100 Phil. 801, 803, citing Tan Tong v. Deportation Board, 96 Phil. (934) chanrobles virtual law library

Antonio, J., concurs:

The law grants to the Chief Executive full discretion to determine whether an alien's residence in the country is so undesirable as to affect or injure the security, welfare or interest of the State. It is fundamental that an executive order for deportation is not dependent on a prior judicial conviction in a criminal (Ang Beng, et al. v. Com. of Immigration, 100 Phil. 801, 803, citing Tan Tong v. Deportation Board, 96 Phil. (934)