Tan Tong vs. Deportation Board

An alien may be investigated by the Deportation Board and recommended for deportation for unlawful importation without a prior criminal conviction under Section 2702 of the Revised Administrative Code, because deportation is an executive act of state governed procedurally only by Section 69, and Section 2702 imposes no such condition precedent.

Tan Tong was an alien residing in the Philippines subject to the President's power to deport subjects of a foreign power. The Deportation Board acted as the President's authorized agent to investigate grounds for deportation. The governing framework was Section 69 of the Revised Administrative Code, which prescribes prior investigation and hearing, and Section 2702 of the same Code, which punishes unlawful importation and adds liability to deportation for an alien found guilty.

Tan Tong, also known as Cheoñga, was an alien residing in the Philippines. He was originally charged before the Bureau of Immigration with being a communist and therefore subject to deportation. After investigation, the Board of Commissioners found that he was engaged in communistic activities and in smuggling, and by order dated October 6, 1762 recommended his deportation to China and the referral of his smuggling activities to the Office of the President for action under Section 69 of the Revised Administrative Code.

Thereafter, on November 7, 1752, special prosecutor Emilio L. Galang charged Tan Tong before the Deportation Board with affiliation with the Communist Party and with having fraudulently engaged in unlawful importation of merchandise, especially American cigarettes. Tan Tong moved to quash the proceedings, first on the ground that the charges had already been investigated by the Bureau of Immigration, and second that the smuggling charge was beyond the Board's jurisdiction because no deportation proceeding for smuggling could be instituted before his conviction by a competent court under Section 2702 of the Revised Administrative Code. The record indicated that no criminal action for unlawful importation had been filed against him.

When the motion to quash was denied, Tan Tong instituted an action in the Court of First Instance of Cebu for a writ of prohibition, alleging lack of jurisdiction over charges already investigated by the Bureau of Immigration and over smuggling charges absent conviction under Section 2702. The petition was denied. On appeal, he limited himself to the contention that deportation for unlawful importation requires a preceding court conviction.

• Conviction as Condition Precedent under Section 2702: Petitioner argued that the wordings of Section 2702 expressly impose requisites and conditions for the exercise of the power to deport in case of unlawful importation, and that from its clear context conviction of an alien for said offense must first be had and only thereafter may deportation be ordered.
• Prior Investigation by Bureau of Immigration: Petitioner maintained before the Deportation Board and the trial court that the charges had already been investigated by the Bureau of Immigration, and therefore could not be considered again by the respondent Board.

• Deportation for Unlawful Importation Without Prior Conviction: Whether the Deportation Board can subject petitioner to deportation for unlawful importation even without a preceding court conviction for said offense under Section 2702 of the Revised Administrative Code.

• Deportation for Unlawful Importation Without Prior Conviction: Yes. Investigation and recommendation for deportation for unlawful importation may proceed without prior criminal conviction, Section 2702 imposing no such condition and Section 69 requiring only prior investigation and hearing.

• Deportation for Unlawful Importation Without Prior Conviction: The fallacy of the argument lay in failure to distinguish between the power to deport and the proceedings necessary for its exercise. The power to deport aliens is lodged in the President as an act of state by virtue of office, subject only to regulations in Section 69 or future legislation, with full discretion to determine whether an alien's residence is undesirable to the security, welfare or interest of the State, and with final and executory adjudication of the predicate facts. Section 69 does not define the cases for deportation nor limit the power; it prescribes only the procedure to afford the alien his day in court — prior investigation, notice of charges, at least three days to prepare, and right to be heard, produce witnesses, and cross-examine. By no reasoning could Section 2702 be read to permit deportation for illegal importation only upon conviction and thereby deprive the Board of power to investigate, especially where no criminal action had been filed. Its language and chapter placement do not support the contention, and no derogation or limitation of executive power can be presumed by implication from the added clause he may be subject to deportation. That clause punishes illegal importation and adds deportation liability if a competent court finds an alien guilty, its sole import being that Section 69 proceedings are then no longer necessary; to require conviction where none exists or no charge was filed would be unreasonable, if not absurd, and would bar investigation altogether.

• Executive Nature of Deportation Power — Deportation of aliens is an act of state vested in the President by virtue of office, subject only to Section 69 of the Revised Administrative Code or future legislation. The Chief Executive has full discretion to determine undesirability of an alien's residence affecting the security, welfare or interest of the State, and adjudication of the facts upon which deportation is predicated devolves on the Chief Executive whose decision is final and executory. Applied to sustain presidential authority exercised through the Deportation Board independent of criminal prosecution.
• Section 69 as Procedural Limitation Only — Section 69 does not define the substantive cases for deportation nor limit or curtail the power; it prescribes only the procedure — prior investigation by the Executive or authorized agent, notice of charges, at least three days for defense preparation, and rights to be heard, produce witnesses, and cross-examine — to secure the alien's day in court. Applied to reject the claim that substantive authority depended on another statute.
• Construction of Section 2702 Deportation Clause — The phrase he may be subject to deportation in Section 2702 punishes illegal importation and imposes additional deportation liability upon an alien found guilty by a competent court; its sole effect is to render Section 69 proceedings unnecessary after such conviction. It does not require prior conviction before the Deportation Board may investigate unlawful importation and recommend deportation, and executive limitation cannot be presumed by implication. Applied to affirm Board jurisdiction despite absence of criminal action.

• "The power to deport aliens is lodged in the President of the Republic of the Philippines." — States the locus of deportation authority as an executive act of state, foundational to rejecting a statutory condition precedent.
• "The above provision does not define the cases in which the Chief Executive may exercise his power to deport; neither does it limit or curtail said power." — Defines Section 69 as purely procedural, requiring only investigation and hearing rather than limiting substantive grounds.
• "Its sole import is that if a competent court has found an alien guilty of a violation of section 2702 of the Revised Administrative Code, the proceedings outlined in section 69 of the said Code are no longer necessary for the deportation." — Gives the canonical construction of the deportation clause in Section 2702, dispensing with duplicative proceedings after conviction.

• In re McCulloch Dick, 38 Phil., 41 — Cited as controlling authority that deportation power is vested in the Executive by virtue of office and that adjudication of facts predicating deportation devolves on the Chief Executive with finality, subject only to Section 69 or future legislation.

• Section 69, Revised Administrative Code — Provides that a subject of a foreign power shall not be deported except upon prior investigation by the President or authorized agent, with notice of charges, at least three days to prepare defense, and rights to be heard, produce witnesses, and cross-examine. Applied as the exclusive procedural regulation of the deportation power, satisfied through Board investigation rather than criminal trial.
• Section 2702, Revised Administrative Code — Punishes illegal importation and provides that an alien violator may be subject to deportation. Applied not as a limitation requiring prior conviction, but as imposing added deportation liability upon judicial guilt that renders separate Section 69 proceedings unnecessary.

Pablo, Acting C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Concepcion, and Reyes, J.B.L., JJ., concur.