G.R. No.

126859, September 04, 2001

YOUSEF AL-GHOUL, ISAM MOHAMMAD ABDULHADI, WAIL

RASHID AL-KHATIB, NABEEL NASSER AL-RIYAMI, ASHRAF
HASSAM AL-YAZORI, AND MOHAMMAD ABUSHENDI,
PETITIONERS, VS. COURT OF APPEALS AND THE PEOPLE OF
THE PHILIPPINES, RESPONDENTS.

DECISION

QUISUMBING, J.:

Petitioners assail the decision[1] dated September 30, 1996, of the Court of
Appeals, which affirmed the orders of the Regional Trial Court of Kalookan
City, Branch 123, thereby dismissing petitioners' special civil action for
certiorari.[2]

The facts leading to the present petition under Rule 65 are as follows:

On March 31, 1995, Judge Geronimo S. Mangay, presiding judge of the

Regional Trial Court, National Capital Judicial Region, Branch 125,
Kalookan City, issued search warrants 54-95[3] and 55-95[4] for the search
and seizure of certain items in Apartment No. 2 at 154 Obiniana Compound,
Deparo Road, Kalookan City.

On April 1, 1995, the police searched Apartment No. 8, in the same

compound and found one (1) .45 caliber pistol. Found in Apartment No. 2
were:

2 M-16 rifles with 2 magazines and 20 live M-16 ammunitions

1 Bar of demolition charge

1 Caliber Pistol with no. 634 and other nos. were placed with magazine of
Caliber .45 and 3 live 45 ammunitions

1 22 Caliber handgun with 5 live ammunitions in its cylinder

1 Box containing 40 pieces of .25 caliber ammunitions

1
2 pieces of fragmentation grenade

1 roll of detonating cord color yellow

2 big bags of ammonium nitrate suspected to be explosives substance

22 detonating cords with blasting caps

and pound of high explosives TNT

1 timer alarm clock

2 bags of suspected gun powder

2 small plastic bag of suspected explosive substance

1 small box of plastic bag of suspected dynamites

One weighing scale

Two (2) batteries 9 volts with blasting caps and detonating cord.[5]

The firearms, ammunitions, explosives and other incendiary devices seized

at the apartments were acknowledged in the receipt signed by SPO2 Melanio
de la Cruz.

Petitioners were charged before the Regional Trial Court of Kalookan City,
Branch 123, in informations docketed as Criminal Cases Nos. C-48666-67,
accusing them with illegal possession of firearms, ammunitions and
explosives, pursuant to Presidential Decree No. 1866.[6] Thereafter,
petitioners were arrested and detained.

Petitioners filed a motion for bail on May 24, 1995, the resolution of which
was held in abeyance by the RTC pending the presentation of evidence from
the prosecution to determine whether or not the evidence presented is
strong.[7]

On February 7, 1996, at the hearing for bail, the RTC "admitted all exhibits
being offered for whatever purpose that they maybe worth" after the
prosecution had finished adducing its evidence despite the objection by the

2
petitioners on the admissibility of said evidence.

On February 19, 1996, the RTC denied petitioners' motion for bail earlier
filed, giving as reasons the following:

To begin with, the accused are being charged of two criminal offenses and
both offenses under Presidential Decree 1866, Sections 1 and 3 thereof
prescribe the penalty of Reclusion Temporal in its maximum period to
Reclusion Perpetua. Under Rule 114 of the Rules on Criminal Procedure as
amended by Supreme Court Administrative Circular No. 12-94, particularly
Section 7 thereof, no person charged with a capital offense or an offense
punishable by reclusion perpetua or life imprisonment, when evidence of
guilt is strong shall be admitted to bail regardless of the stage of the criminal
prosecution....[8]

As petitioners' action before respondent appellate court also proved futile,

petitioners filed the instant petition on the ground that it had acted with
grave abuse of discretion tantamount to lack or in excess of
jurisdiction. They present for our consideration the following issues:

I. WHETHER OR NOT THE EVIDENCE OFFERED BY THE

PROSECUTION ARE ADMISSIBLE;

II. WHETHER OR NOT ACCUSED HAVE THE RIGHT TO BAIL.[9]

The issue on bail has been resolved in our resolution dated November 24,
1998, where this Court ruled:

Consequent to the enactment of RA 8294, the penalty prescribed in Section

1 and 3 of P.D. 1866 for illegal possession of firearms, ammunitions and
explosives under which petitioners were charged, has now been reduced to
prision mayor in its minimum period and prision mayor in its maximum
period to reclusion temporal, respectively. Evidently, petitioners are now
entitled to bail as a matter of right prior to their conviction by the trial court
pursuant to Section 4 of SC Administrative Circular No. 12-94 ...[10]

xxx

3
WHEREFORE, the petitioners' motion is hereby GRANTED. The
Temporary Restraining Order issued by this Court in the Resolution of
November 20, 1996 is hereby PARTIALLY LIFTED in so far as
petitioners' pending motion for bail before the RTC of Kalookan City,
Branch 123 is concerned. The trial court is hereby ordered to proceed with
the hearing of the motion for bail and resolve the same with dispatch.[11]

The issue that remains is whether the respondent court erred and gravely
abused its discretion when it ruled that the search and seizure orders in
question are valid and the objects seized admissible in evidence.

Petitioners contend that the search and seizure orders violated Sections 2 and
3 of the Bill of Rights[12] as well as Section 3 of Rule 126 of the Rules of
Court on Criminal Procedure[13] because the place searched and articles
seized were not described with particularity. They argue that the two-
witness requirement under Section 10 of Rule 126[14] was ignored when only
one witness signed the receipt for the properties seized during the search,
and said witness was not presented at the trial. Petitioners also aver that the
presumption of regularity of the implementation of the search warrant was
rebutted by the defense during cross-examination of prosecution
witnesses. According to petitioners, respondent court failed to appreciate
the fact that the items seized were not turned over to the police evidence
custodian as required under Section 18 of the Department of Justice Circular
No. 61 dated September 21, 1993. Finally, they fault the lower court's
finding that petitioners were in possession of the items allegedly confiscated
from them.[15]

For the State, the Office of the Solicitor General avers that the search of
Apartment 2 was legal, and the items seized therein are admissible in
evidence. However, the OSG agrees with petitioners that the search warrants
issued by the RTC, Branch 125, Kalookan City on March 31, 1995, namely
search warrant 54-95[16] and search warrant 55-95,[17] specified the place to
be searched, namely Apartment No. 2, 154 Obiniana Compound, Deparo
Road, Kalookan City. There was no mention of Apartment No. 8. Thus, we
find that the search conducted at Apartment No. 8 clearly violated Sections 2
and 3 (2) of the Bill of Rights, in relation to Section 3 of Rule 126 of the
Rules of Court.

As held in PICOP v. Asuncion,[18] the place to be searched cannot be

changed, enlarged nor amplified by the police. Policemen may not be

4
restrained from pursuing their task with vigor, but in doing so, care must be
taken that constitutional and legal safeguards are not disregarded. Exclusion
of unlawfully seized evidence is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures. Hence,
we are constrained to declare that the search made at Apartment No. 8 is
illegal and the .45 caliber pistol taken thereat is inadmissible in evidence
against petitioners.

Now, in contrast, the search conducted at Apartment No. 2 could not be

similarly faulted. The search warrants in question specifically mentioned
Apartment No. 2. The search was done in the presence of its occupants,
herein petitioners,[19] in accordance with Section 7 of Rule 126, Revised
Rules of Court.[20]

Petitioners allege lack of particularity in the description of objects to be

seized pursuant to the warrants. Hence, they also question the seizure of the
following articles from Apartment No. 2, namely:

One M16 rifles, Colt AR-15 with 2 magazines and 20 rds ammo live

One (1) bar demolition charge

One (1) .45 caliber pistol numbers were defaced with magazine and with
three (3) live .45 cal ammos

One (1) .22 caliber handgun with live ammos in its cylinder

One (1) box containing (40) forty pieces of .22 cal. live ammos (magnum)

Two (2) pieces fragmentation grenade

Two (2) magazines of M16 rifles with live ammos.[21]

To appreciate them fully, we quote the search warrants in question:

Search Warrant 54-95

It appearing to the satisfaction of the undersigned, after examining under

oath P/Sr Insp Joel D. Pagdilao, Chief, DPIU, OADDI NPDC, Applicant and
his witness SPO1 Cesar R. Rivera of District Police Intelligence Unit,

5
Northern Police District Command with postal address c/o NPIU, NPDC,
PNP, Langaray St., Kaunlaran Village, Kalookan City that a.k.a. AL, a.k.a.
GHUL a.k.a. NADI, a.k.a. NABIL and several John Does of Apartment Nr.
2, Nr. 154 Obiniana Compound, Deparo Road, Kalookan City have in their
possession and control the following:

1. One (1) 45 Caliber Pistol

You are hereby commanded to make an immediate search anytime of the

DAY and NIGHT of the premises above-mentioned and forthwith, seize and
take possession of the foregoing property, to wit:

1. One (1) .45 Caliber Pistol

and bring to this Court to be dealt with as the law may direct.[22]

Search Warrant 55-95

It appearing to the satisfaction of the undersigned after examining under oath

P/Sr. Insp. Joel D. Pagdilao, Chief, DPIU, OADDI NPDC, Applicant and his
witness SPO1 Cesar R. Rivera of District Police Intelligence Unit, Northern
Police District Command with postal address c/o NPIU, NPDC, PNP,
Langaray St., Kaunlaran Village, Kalookan City that a.k.a. AL, a.k.a. GHUL
a.k.a. NADI, a.k.a. NABIL and several John Does of Apartment Nr. 2, Nr.
154 Obiniana Compound, Deparo Road, Kalookan City have in their
possession and control the following:

1. One (1) 5.56 M16 Rifle with corresponding ammunitions

2. One (1) 9MM Pistol with corresponding ammunitions
3. Three (3) boxes of explosives
4. More or less ten (10) sticks of dymanites (sic)
5. More or less thirty (30) pieces of blasting caps pieces of detonating
cords

You are hereby commanded to make an immediate search anytime of the

DAY or NIGHT of the premises above-mentioned and forthwith seize and
take possession of the foregoing properties, to wit:

1. One (1) 5.56 M16 Rifle with corresponding ammunitions

6
 2. One (1) 9MM Pistol with corresponding ammunitions
3. Three (3) boxes of explosives
4. More or less ten (10) sticks of dymanites (sic)
5. More or less thirty (30) pieces of blasting caps pieces of detonating
cords

and bring to this Court to be dealt with as the law may direct.[23]

That the articles seized during the search of Apartment No. 2 are of the same
kind and nature as those items enumerated in the search warrant above-
quoted appears to us beyond cavil. The items seized from Apartment No. 2
were described with specificity in the warrants in question. The nature of
the items ordered to be seized did not require, in our view, a technical
description. Moreover, the law does not require that the things to be seized
must be described in precise and minute details as to leave no room for
doubt on the part of the searching authorities, otherwise, it would be
virtually impossible for the applicants to obtain a search warrant as they
would not know exactly what kind of things they are looking for.[24] Once
described, however, the articles subject of the search and seizure need not be
so invariant as to require absolute concordance, in our view, between those
seized and those described in the warrant. Substantial similarity of those
articles described as a class or species would suffice.

In People v. Rubio, 57 Phil. 384, 389 (1932), this Court said, "While it is
true that the property to be seized under a warrant must be particularly
described therein and no other property can be taken thereunder, yet the
description is required to be specific only in so far as the circumstances will
ordinarily allow." Where by the nature of the goods to be seized, their
description must be rather general, it is not required that a technical
description be given, as this would mean that no warrant could issue. As a
corollary, however, we could not logically conclude that where the
description of those goods to be seized have been expressed technically, all
others of a similar nature but not bearing the exact technical descriptions
could not be lawfully subject to seizure. Otherwise, the reasonable purpose
of the warrant issued would be defeated by mere technicalities.

The case of Bache and Co. (Phil.), Inc. v. Ruiz, 37 SCRA 823, 835 (1971),
pointed out that one of the tests to determine the particularity in the
description of objects to be seized under a search warrant is when the things
described are limited to those which bear direct relation to the offense for

7
which the warrant is being issued. A careful examination of Search Warrant
Nos. 54-95[25] and 55-95[26] shows that they were worded in such a manner
that the enumerated items to be seized could bear a direct relation to the
offense of violation of Section 1[27] and 3[28] of Presidential Decree No. 1866,
as amended, penalizing illegal possession of firearms, ammunitions and
explosives. What the warrants authorized was the seizure of articles
proscribed by that decree, and no other.

Lastly, on this score, we note that the Court of Appeals ruled that petitioners
waived their right to raise any attack on the validity of the search warrants at
issue by their failure to file a motion to quash.[29] But, in conducting the
search at Apartment No. 8, not just Apartment No. 2 as ordered specifically
in the search warrants, the police committed a gross violation we cannot
condone. Thus, we conclude that the gun seized in Apartment No. 8 cannot
be used in evidence, but those articles including guns, ammunitions, and
explosives seized in Apartment No. 2 are admissible in evidence.

Coming now to the two-witness requirement under Section 10, Rule 126 of
the Revised Rules of Court, petitioners claim the rule was violated because
only one witness signed the receipt for the properties seized. For clarity, let
us reproduce the pertinent section:

SEC. 10. Receipt for the property seized.--The officer seizing property under
the warrant must give a detailed receipt for the same to the lawful occupant
of the premises in whose presence the search and seizure were made, or in
the absence of such occupant, must, in the presence of at least two witnesses
of sufficient age and discretion residing in the same locality, leave a receipt
in the place in which he found the seized property.

Clearly, the two-witness rule applies only in the absence of the lawful
occupants of the premises searched. In the case at bar, petitioners were
present when the search and seizure operation was conducted by the police
at Apartment No. 2. More importantly, petitioner Nabeel Al-Riyami y
Nasser admitted being an actual occupant/resident of Apartment No.
2.[30] Hence, we find here no violation of Section 10, Rule 126 of the
Revised Rules of Court.

Petitioners contend that they could not be charged with violation of P.D.
1866 because the seized items were not taken actually from their possession.
This contention, however, cannot prosper in the light of the settled rule that

8
actual possession of firearms and ammunitions is not an indispensable
element for prosecution under P.D. No. 1866. In People v. Dela Rosa, 284
SCRA 158, 168-169 (1998), we clarified that the kind of possession
punishable under P.D. 1866 is one where the accused possessed a firearm
either physically or constructively with animus possidendi or intent to
possess said firearm. Whether or not the evidence would show all the
elements of P.D. 1866 in this case is a different matter altogether. We shall
not preempt issues properly still within the cognizance of courts below.

Likewise, whether or not the articles seized were planted by the police, as
claimed by the petitioners, is a matter that must be brought before the trial
court. In the same vein, petitioners' claim that the properties seized were not
turned over to the proper police custodian is a question of fact best ventilated
during trial.

WHEREFORE, the petition is PARTIALLY GRANTED. The search

conducted at Apartment No. 8 is hereby declared illegal and the item (.45
caliber pistol) seized therein inadmissible in evidence. However, the search
at Apartment No. 2 pursuant to Search Warrant 55-95 is hereby declared
valid and legal, and the articles seized from Apartment No. 2 are found
admissible in evidence. Let this case be remanded to the Regional Trial
Court of Kalookan City, Branch 123, for trial on the merits of Criminal
Cases Nos. C-48666-67 with dispatch.

No pronouncement as to costs.

SO ORDERED.

G.R. No. L-22196 June 30, 1967

ESTEBAN MORANO, CHAN SAU WAH and FU YAN

FUN, petitioners-appellants,
vs. HON. MARTINIANO VIVO in his capacity as Acting Commissioner
of Immigration, respondent-appellant.

Chan Sau Wah, a Chinese citizen born in Fukien, China on January 6, 1932,
arrived in the Philippines on November 23, 1961 to visit her cousin, Samuel

9
Lee Malaps. She left in mainland China two of her children by a first
marriage: Fu Tse Haw and Fu Yan Kai With her was Fu Yan Fun, her minor
son also by the first marriage, born in Hongkong on September 11, 1957.

Chan Sau Wah and her minor son Fu Yan Fun were permitted only into the
Philippines under a temporary visitor's visa for two (2) months and after they
posted a cash bond of P4,000.00.

On January 24, 1962, Chan Sau Wah married Esteban Morano, a native-born
Filipino citizen. Born to this union on September 16, 1962 was Esteban
Morano, Jr.

To prolong their stay in the Philippines, Chan Sau Wah and Fu Yan Fun
obtained several extensions. The last extension expired on September 10,
1962.1wph1.t

In a letter dated August 31, 1962, the Commissioner of Immigration ordered

Chan Sau Wah and her son, Fu Yan Fun, to leave the country on or before
September 10, 1962 with a warning that upon failure so to do, he will issue a
warrant for their arrest and will cause the confiscation of their bond.

Instead of leaving the country, on September 10, 1962, Chan Sau Wah (with
her husband Esteban Morano) and Fu Yan Fun petitioned the Court of First
Instance of Manila for mandamus to compel the Commissioner of
Immigration to cancel petitioners' Alien Certificates of Registration;
prohibition to stop the Commissioner from issuing a warrant for their arrest,
and preliminary injunction to restrain the Commissioner from confiscating
their cash bond and from issuing warrants of arrest pending resolution of this
case.1 The trial court, on November 3, 1962, issued the writ of preliminary
injunction prayed for, upon a P2,000-bond. After trial and the stipulations of
facts filed by the parties, the Court of First Instance rendered judgment, viz:

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered

as follows:

(a) Granting this petition for Mandamus and Prohibition with respect
to petitioner CHAN SAU WAH, who is hereby declared a citizen of
the Philippines; ordering the respondent to cancel her Alien
Certificate of Registration and other immigration papers, upon the
payment of proper dues; and declaring the preliminary injunction with
respect to her permanent, prohibiting the respondent, his

10
 representatives or subordinates from arresting and/or deporting said
petitioner;

(b) Dismissing this petition with respect to petitioner FU YAN FUN,

and dissolving the writ of preliminary injunction issued herein,
restraining the respondent, his representatives or subordinates from
arresting and/or deporting said petitioner;

(c) Authorizing respondent Commissioner to forfeit the bond filed by

herein petitioners CHAN SAU WAH and FU YAN FUN in the
amount of P4,000.00; and

(d) Denying, for lack of merit, the prayer to declare Sec. 37 (a) of the
Philippine Immigration Act of 1940 unconstitutional;

Without pronouncement, as to costs.

Petitioners and respondent Commissioner both appealed.

We will deal with the claims of both appellants in their proper sequence.

1. The Solicitor General's brief assails the trial court's declaration that Chan
Sau Wah is a citizen of the Philippines. The court a quo took the position
that "Chan Sau Wah became, by virtue of, and upon, her marriage to Esteban
Morano, a natural-born Filipino, a Filipino citizen.2

Placed to the fore is paragraph 1, Section 15 of Commonwealth Act 473

[Revised Naturalization Act], which reads:

Sec. 15. Effect of the naturalization on wife children. Any woman

who is now or may hereafter be married to a citizen of the Philippines,
and who might herself be lawfully naturalized shall be deemed a
citizen of the Philippines.

To apply this provision, two requisites must concur: (a) valid marriage of an
alien woman to a citizen of the Philippines and (b) the alien woman herself
might be lawfully naturalized.

We may concede that the first requisite has been properly met. The validity
of the marriage is presumed.

11
But can the same be said of the second requisite? This question by all means
is not new. In a series of cases, this Court has declared that the marriage of
an alien woman to a Filipino citizen does not ipso facto make her a Filipino
citizen. She must satisfactorily show that she has all the qualifications and
none of the disqualifications required by the Naturalization Law.3 Ly Giok
Ha alias Wy Giok Ha et al. vs. Emilio Galang, L-21332, March 18,
1966,* clearly writes down the philosophy behind the rule in the following
expressive language, viz:

Reflection will reveal why this must be so. The qualifications

prescribed under section 2 of the Naturalization Act, and the
disqualifications enumerated in its section 4, are not mutually
exclusive; and if all that were to be required is that the wife of a
Filipino be not disqualified under section 4, the result might well be
that citizenship would be conferred upon persons in violation of the
policy of the statute. For example, section 4 disqualifies only

"(c) Polygamists or believers in the practice of polygamy; and

(b) Persons convicted of crimes involving moral turpitude,"

so that a blackmailer, or a maintainer of gambling or bawdy houses,

not previously convicted by a competent court, would not be thereby
disqualified; still it is certain that the law did not intend such a person
to, be admitted as a citizen in view of the requirement of section 2 that
an applicant for citizenship "must be of good moral character."

Similarly, the citizen's wife might be a convinced believer in racial

supremacy, in government by certain selected classes, in the right to
vote exclusively by certain "herrenvolk," and thus disbelieve in the
principles underlying the Philippine Constitution; yet she would not
be disqualified under section 4, as long as she is not "opposed to
organized government," nor affiliated to groups "upholding or
teaching doctrines opposing all organized governments," nor
"defending or teaching the necessity or propriety of violence, personal
assault or assassination for the success or predominance of their
ideas." Et sic de caeteris.

Upon the principle of selective citizenship, we cannot afford to depart from

the wise precept affirmed and reaffirmed in the cases heretofore noted.

12
In the additional stipulation of facts of July 3, 1963, petitioners admit that
Chan Sau Wah is not possessed of all the qualifications required by the
Naturalization Law.

Because of all these we are left under no doubt that petitioner Chan Sau Wah
did not become a Filipino citizen.

2. Squarely put in issue by petitioners is the constitutionality of Section 37

(a) of the Immigration Act of 1940, which 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
Commissioners of the existence of the ground for deportation as
charged against the alien:

xxx xxx xxx

(7) Any alien who remains in the Philippines in violation of any

limitation or condition under which he was admitted as a
nonimmigrant.

Petitioners argue that the legal precept just quoted trenches upon the
constitutional mandate in Section 1 (3), Article III [Bill of Rights] of the
Constitution, to wit:

(3) The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures shall
not be violated, and no warrants shall issue but upon probable cause,
to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or
things to be seized.

They say that the Constitution limits to judges the authority to issue warrants
of arrest and that the legislative delegation of such power to the
Commissioner of Immigration is thus violative of the Bill of Rights.

Section 1 (3), Article III of the Constitution, we perceive, does not require
judicial intervention in the execution of a final order of deportation issued in

13
accordance with law. The constitutional limitation contemplates an order of
arrest in the exercise of judicial power4 as a step preliminary or incidental to
prosecution or proceedings for a given offense or administrative action, not
as a measure indispensable to carry out a valid decision by a competent
official, such as a legal order of deportation, issued by the Commissioner of
Immigration, in pursuance of a valid legislation.

The following from American Jurisprudence,5 is illuminating:

It is thoroughly established that Congress has power to order the

deportation of aliens whose presence in the country it deems hurtful.
Owing to the nature of the proceeding, the deportation of an alien who
is found in this country in violation of law is not a deprivation of
liberty without due process of law. This is so, although the inquiry
devolves upon executive officers, and their findings of fact, after a fair
though summary hearing, are made conclusive.

xxx xxx xxx

The determination of the propriety of deportation is not a prosecution

for, or a conviction of, crime; nor is the deportation a punishment,
even though the facts underlying the decision may constitute a crime
under local law. The proceeding is in effect simply a refusal by the
government to harbor persons whom it does not want. The
coincidence of local penal law with the policy of Congress is purely
accidental, and, though supported by the same facts, a criminal
prosecution and a proceeding for deportation are separate and
independent.

In consequence, the constitutional guarantee set forth in Section 1 (3),

Article III of the Constitution aforesaid, requiring that the issue of probable
cause be determined by a judge, does not extend to deportation proceedings.6

The view we here express finds support in the discussions during the
constitutional convention. The convention recognized, as sanctioned by due
process, possibilities and cases of deprivation of liberty, other than by order
of a competent court.7

Indeed, the power to deport or expel aliens is an attribute of sovereignty.

Such power is planted on the "accepted maxim of international law, that
every sovereign nation has the power, as inherent in sovereignty, and

14
essential to self-preservation, to forbid the entrance of foreigners within its
dominions."8 So it is, that this Court once aptly remarked that there can be
no controversy on the fact that where aliens are admitted as temporary
visitors, "the law is to the effect that temporary visitors who do not depart
upon the expiration of the period of stay granted them are subject to
deportation by the Commissioner of Immigration, for having violated the
limitation or condition under which they were admitted as non-immigrants
(Immigration Law, Sec. 37 (a), subsection (7); C.A. 613, as amended)."9

And, in a case directly in point, where the power of the Commissioner to

issue warrants of arrest was challenged as unconstitutional, because "such
power is only vested in a judge by Section 1, paragraph 3, Article III of our
Constitution," this Court declared

This argument overlooks the fact that the stay of appellant Ng Hua To
as temporary visitor is subject to certain contractual stipulations as
contained in the cash bond put up by him, among them, that in case of
breach the Commissioner may require the recommitment of the
person in whose favor the bond has been filed. The Commissioner did
nothing but to enforce such condition. Such a step is necessary to
enable the Commissioner to prepare the ground for his deportation
under section 37 (a) of Commonwealth Act 613. A contrary
interpretation would render such power nugatory to the detriment of
the State.10

It is in this context that we rule that Section 37 (a) of the Immigration Act of
1940 is not constitutionally proscribed.

3. A sequel to the questions just discussed is the second error set forth in the
government's brief. The Solicitor General balks at the lower court's ruling
that petitioner Chan Sau Wah is entitled to permanent residence in the
Philippines without first complying with the requirements of Sections 9 and
13 of the Immigration Act of 1940, as amended by Republic Act 503.

We first go to the law, viz:

SEC. 9 [last paragraph]

An alien who is admitted as a nonimmigrant cannot remain in the

Philippines permanently. To obtain permanent admission, a
nonimmigrant alien must depart voluntarily to some foreign country

15
 and procure from the appropriate Philippine consul the proper visa
and thereafter undergo examination by the officers of the Bureau of
Immigration at a Philippine port of entry for determination of his
admissibility in accordance with the requirements of this Act.

SEC. 13. Under the conditions set forth in this Act there may be
admitted into the Philippines immigrants, termed "quota immigrants"
not in excess of fifty (50) of any one nationality or without nationality
for any one calendar year, except that the following immigrants,
termed "nonquota immigrants," maybe admitted without regard to
such numerical limitations.

The corresponding Philippine Consular representative abroad shall

investigate and certify the eligibility of a quota immigrant previous to
his admission into the Philippines. Qualified and desirable aliens who
are in the Philippines under temporary stay may be admitted within
the quota, subject to the provisions of the last paragraph of section 9
of this Act.

(a) The wife or the husband or the unmarried child under twenty-one
years of age of a Philippine citizen, if accompanying or following to
join such citizen;

(b) A child of alien parents born during the temporary visit abroad of
the mother, the mother having been previously lawfully admitted into
the Philippine for permanent residence, if the child is accompanying
or coming to join a parent and applies for admission within five years
from the date of its birth;

Concededly, Chan Sau Wah entered the Philippines on a tourist-

temporary visitor's visa. She is a non-immigrant. Under Section 13 just
quoted, she may therefore be admitted if she were a qualified and desirable
alien and subject to the provisions of the last paragraph of Section 9.
Therefore, first, she must depart voluntarily to some foreign country; second,
she must procure from the appropriate consul the proper visa; and third, she
must thereafter undergo examination by the officials of the Bureau of
Immigration at the port of entry for determination of her admissibility in
accordance with the requirements of the immigration Act.

This Court in a number of cases has ruled, and consistently too, that an alien
admitted as a temporary visitor cannot change his or her status without first

16
departing from the country and complying with the requirements of Section
9 of the Immigration Act. 11

The gravamen of petitioners' argument is that Chan Sau Wah has, since her
entry, married in Manila a native-born Filipino, Esteban Morano. It will not
particularly help analysis for petitioners to appeal to family solidarity in an
effort to thwart her deportation. Chan Sau Wah, seemingly is not one who
has a high regard for such solidarity. Proof: She left two of her children by
the first marriage, both minors, in the care of neighbors in Fukien, China.

Then, the wording of the statute heretofore adverted to is a forbidding

obstacle which will prevent this Court from writing into the law an
additional provision that marriage of a temporary alien visitor to a Filipino
would ipso facto make her a permanent resident in his country. This is a
field closed to judicial action. No breadth of discretion is allowed us. We
cannot insulate her from the State's power of deportation.

Really, it would be an easy matter for an alien woman to enter the

Philippines as a temporary visitor, go through a mock marriage, but actually
live with another man as husband and wife, and thereby skirt the provisions
of our immigration law. Also, a woman of undesirable character may enter
this country, ply a pernicious trade, marry a Filipino, and again throw
overboard Sections 9 and 13 of the Act. Such a flanking movement, we are
confident, is impermissible.

Recently we confirmed the rule that an alien wife of a Filipino may not stay
permanently without first departing from the Philippines. Reason:
Discourage entry under false pretenses. 12

The ruling of the trial court on this score should be reversed.

4. It is petitioners' turn to point as error the dismissal of the petition

for mandamus and prohibition with respect to petitioner Fu Yan Fun.

Petitioners' line of thought is this: Fu Yan Fun follows the citizenship of his
mother. They cite Section 15, paragraph 3, Commonwealth Act 473, which
says that:

A foreign-born minor child, if dwelling in the Philippines at the time

of the naturalization of the parent, shall automatically become a
Philippine citizen. . . .

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Petitioners' position is based on the assumption that Chan Sau Wah, the
mother, is a Filipino citizen. We have held that she is not. At best, Fu Yan
Fun is a step-son of Esteban Morano, husband of Chan Sau Wah. A step-son
is not a foreign-born child of the step-father. The word child, we are certain,
means legitimate child, not a step-child. We are not wanting in precedents.
Thus, when the Constitution provides that "[t]hose whose fathers are citizens
of the Philippines" are citizens thereof, 13 the fundamental charter intends
"those" to apply to legitimate children. 14 In another case, the term "minor
children" or "minor child" in Section 15 of the Revised Naturalization Law
refers only to legitimate children of Filipino citizens. This Court, thru Mr.
Chief Justice Roberto Concepcion, there said: 15

It is claimed that the phrases "minor children" and "minor child," used
in these provisions, include adopted children. The argument is
predicated upon the theory that an adopted child is, for all intents and
purposes, a legitimate child. Whenever, the word "children" or "child"
is used in statutes, it is generally understood, however, to refer to
legitimate children, unless the context of the law and its spirit indicate
clearly the contrary. Thus, for instance, when the Constitution
provides that "those whose fathers are citizens of the Philippines," and
"those whose mothers are citizens of the Philippines" who shall elect
Philippine citizenship upon reaching the age of majority, are citizens
of the Philippines (Article IV, Section 1, subdivisions [3] and [4]), our
fundamental law clearly refers to legitimate children (Chiongbian vs.
De Leon, 46 Off. Gaz., 3652-3654; Serra v. Republic, L-4223, May
12, 1952).

At any rate, Fu Yan Fun entered the Philippines as a temporary visitor. The
status of a temporary visitor cannot be converted into, that of a permanent
resident, as we have heretofore held, without first complying with Section 9
of the Immigration Law.

5. Petitioners finally aver that the lower court erred in authorizing

respondent Commissioner to forfeit the bond filed by petitioners Chan Sau
Wah and Fu Yan Fun in the amount of P4,000.00.

Here is petitioners' posture. They enjoyed their stay in the Philippines upon a
bond. Now they come to court and say that as the prescribed form of this
bond was not expressly approved by the Secretary of Justice in accordance
with Section 3 of Commonwealth Act 613, which reads

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 SEC. 3. . . . He [Commissioner of Immigration] shall issue, subject to
the approval of the Department Head, such rules and regulations and
prescribes such forms of bond, reports, and other papers, and shall
issue from time to time such instruction, not inconsistent with law, as
he shall deem best calculated to carry out the provisions of the
immigration laws. . . .

that bond is void.

Reasons there are which prevent us from giving our imprimatur to this
argument.

The provision requiring official approval of a bond is merely directory.

"Irregularity or entire failure in this respect does not affect the validity of the
bond. 16 The reason for the rule, is found in 9 C.J., p. 26 (footnote), which
reads:

(a) Reason for rule. "Statutes requiring bonds to be approved by certain

officials are not for the purpose of protecting the obligors in the bond, but
are aimed to protect the public, to insure their solvency, and to create
evidence of an unimpeachable character of the fact of their execution. When
they are executed for a legal purpose, before a proper tribunal, and are in
fact accepted and approved by the officer or body, whose duty it was to
approve them, it could serve no useful purpose of the law to hold them
invalid, to release all the obligors thereon, and to defeat every purpose of its
execution, simply because the fact of approval was not indorsed precisely as
had been directed by the Legislature." American Book Co. vs. Wells, 83 SW
622, 627, 26 Ky L-1159. (emphasis supplied)

And another. This bond was accepted by the government. It had been there.
The form of the bond here used is of long continued usage. If the
government did not question the form of the bond at all, then we must
assume that it counted with the Secretary's approval. For the presumption is
that official duty has been legally performed.

Surely enough, equitable considerations will stop petitioners from pleading

invalidity of the bond. They offered that bond to enable them to enter and
stay in this country. They enjoyed benefits therefrom. They cannot, "in law,
and good conscience, be allowed to reap the fruits" of that bond, and then
jettison the same. They are "precluded from attacking the validity" of such
bond. 17

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Actually, to petitioners the bond was good while they sought entry into the
Philippines; they offered it as security for the undertaking; that they "will
actually depart from the Philippines" when their term of stay expires. Now
that the bond is being confiscated because they overstayed, they make an
about-face and say that such bond is null and void. They shall not profit
from this inconsistent position. Their bond should be confiscated.

Conformably to the foregoing, the judgment under review is hereby

modified as follows:

(1) The portion thereof which reads:

(a) Granting their petition for Mandamus and Prohibition with respect
to petitioner CHAN SAU WAH, who is hereby declared a citizen of
the Philippines; ordering the respondent to cancel her Alien
Certificate of Registration and other immigration papers, upon the
payment of proper dues; and declaring preliminary injunction with
respect to her permanent, prohibiting the respondent, his
representatives or subordinates from arresting and/or deporting said
petitioner;

is hereby reversed: and, in consequence

The petition for mandamus and prohibition with respect to petitioner Chan
Sau Wah is hereby denied; and the judgment declaring her a citizen of the
Philippines, directing respondent to cancel her Alien Certificate of
Registration and other immigration papers, and declaring the preliminary
injunction with respect to her permanent, are all hereby set aside; and

(2) In all other respects, the decision appealed from is hereby affirmed.

No costs. So ordered.

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