What are the grounds for being undesirable? Will there be a
Tan Tong v. Deportation Board limitation to the power to deport?
[96Phil934] A: Based on threat to national security, inimical to public health;
grounds should not be whimsical.
Tan Tong was originally charged before the Bureau of
Immigration with being a communist, subject to Q: In In Re Patterson, what’s the basis of the power of deportation?
deportation. The Board of Commissioners found that Tan Tong A: Self-preservation by the State against the undesirable alien
was engaged in communistic activities & in smuggling, and so it
recommended that Tan Tong be deported to China & that his Q: What’s a petition for habeas corpus?
smuggling activities be referred to the Office of the President A: Special proceeding directed to an officer in the custody of a
under Section 69 RAC. person to produce the body & explain why he is being detained.
Special Prosecutor Galang charged Tan Tong before the
Bureau of Deportation with affiliation with the communist party & Q: Who has the power to deport?
having fraudulently engaged in unlawful importation, American A: President and those persons whom he authorizes
cigarettes.
Tan Tong filed Motion to Quash because charges were already Q: Is there a law which gives the President the power to deport?
investigated by BoI & that insofar as smuggling charge is A: None, it’s inherent.
concerned, the proceedings are beyond the Board’s jurisdiction
because no deportation proceedings for smuggling can be Q: What are the grounds for being undesirable? Will there be a
instituted before conviction by a competent court limitation to the power to deport?
there is no need to conduct investigations by the Deportation Board if A: Based on threat to national security, inimical to public health;
there has been final conviction but if there is no final conviction, the grounds should not be whimsical.
Board can investigate
is there a specific law that gives the Executive power to deport?
A: the power to deport aliens is lodged in the President. As an
act of State, it is vested in the Executive by virtue of his office,
subject only to the regulations prescribed in Section 69 of the
Revised Administrative Code or to such future legislation as
may be promulgated on the subject
Section 69 of the RAC does not define the cases in which the Chief
Executive may exercise his power to deport; neither does it limit or
curtail. What it does prescribe is the procedure necessary for the
exercise of that power that the alien may have his day in court
if a competent court has found the alien guilty of a violation of law, it
is no longer necessary that the proceedings outlined in Section 69 be
resorted to before his deportation may be ordered by the Chief
Executive for that would be a mere duplicity
Section 69 RAC vis-s-vis Section 2702 RAC which punishes illegal
importation and imposes, in addition to the penalty prescribed, the
liability to deportation if the person found guilty is an alien
grounds should not be whimsical, etc. (go back to In re Patterson)
Republic of the Philippines which had been or were being investigated by the Bureau of
SUPREME COURT Immigration, and because it lacks jurisdiction to consider the
Manila charges of smuggling in accordance with the provisions of section
EN BANC 2702 of the Revised Administrative Code. The petition having
G.R. No. L-7680 April 30, 1955 been denied Tan Tong appealed to this Court, wherein he makes
TAN TONG alias CHEOÑGA, petitioner-appellant, and limits himself to the following assignment of error:
vs. That the trial court erred in ruling that respondent board
THE DEPORTATION BOARD, respondent-appellee. can subject the petitioner to deportation for unlawful
Borromeo, Yap and Borromeo, Jovenal R. Fernandez, Esteban importation even without a preceding court conviction for
T. Gochan and De la Cruz and De la Cruz for appellant. said offense.
Office of the Solicitor General Ambrosio Padilla and Solicitor The gist of appellant's contention is contained in the following
Antonio A. Torres, for appellee. paragraph of his brief:
LABRADOR, J.: In view of the wordings of section 2702, it is obvious that
This is an appeal from a judgment of the Court of First Instance of our lawmaking body has expressly imposed the requisites
Cebu denying a petition a writ of prohibition against the an conditions wherein the power to deport in case of
Deportation Board. Petitioner Tan Tong was originally charged unlawful importation is to be exercised and from its clear
before the Bureau of Immigration with being a communist, subject context Congress has prescribed that in this particular
to deportation. The Board of Commissioners found that Tan Tong case, conviction of an alien for said offense must first be
was engaged in communistic activities and in smuggling, and so it had and only thereafter may the power to deport be
recommended that Tan Tong be deported to China and that his exercised.
activities related to smuggling be referred to the Office of the The fallacy of appellant's argument is based on the failure to
President for action under the provisions of section 69 of the distinguish between the power to deport and the proceedings
Revised Administrative Code. The order is dated October 6, necessary for the exercise of said power. The power to deport
1762. On November 7, 1752, special prosecutor Emilio L. Galang aliens is lodged in the President of the Republic of the
charged Tan Tong before the Deportation Board with affiliation Philippines. As an act of state, it is vested in the Executive by
with the communist party and with having fraudulently engaged in virtue of his office, subject only to the regulations prescribed in
unlawful importation of merchandise, especially American section 69 of the Revised Administrative Code or to such future
cigarettes. Tan Tong filed a motion to quash the proceedings legislation as may be promulgated on the subject. ( In
before the Board, first, on the ground that said charges had re McCulloch Dick, 38 Phil., 41.) There is no provision in the
already been investigated by the Bureau of Immigration, and Constitution nor act of the legislation defining the power, as it is
second, that insofar as the charge of smuggling is concerned, the evident that it is the intention of the law to grant to the Chief
proceedings are beyond the Board's jurisdiction, because no Executive full discretion to determine whether an alien's
deportation proceedings for smuggling can be instituted before residence in the country is so undesirable as to affect or injure the
his conviction by a competent court (in accordance with section security, welfare or interest of the state. The adjudication of facts
2702 of the Revised Administrative Code). The motion to quash upon which deportation is predicated also devolves on the Chief
was denied and thereupon Tan Tong instituted this action in the Executive whose decision is final and executory. (In re McCulloch
Court of First Instance of Cebu, alleging that the respondent Dick, supra.) The only provision of law heretofore enacted by the
Deportation Board has no jurisdiction to consider the charges
legislature on deportation is section 69 of the Revised Revised Administrative Code, the proceedings outlined in section
Administrative Code. which is as follows: 69 of the said Code are no longer necessary for the deportation.
SEC. 69. Deportation of subject to foreign power. — A Beyond this it is unreasonable, if not absurd, to presume that the
subject of a foreign power residing in the Philippines shall legislature intended more. It could not have intended that if there
not be deported, expelled, or excluded from said Islands is no conviction for a crime of unlawful importation, or if no
or repatriated to his own court by the President of the charges have been filed against an alien therefor, the Deportation
Philippines except upon prior investigation, conducted by Board may not proceed to investigate said charges against him
said Executive or his authorized agent, of the ground and recommend deportation. The reason for the provision (SEC.
upon which such action is contemplated. In such case the 2702) is that if a competent court has found the alien guilty of a
person concerned shall be informed of the charge or violation of the law, it is no longer necessary that the proceedings
charges against him and he shall be allowed not less than outlined in section 69 be resorted to before his deportation may
three days for the preparation of his defense. He shall be ordered by the Chief Executive for that would be a mere
also have the right to be heard by himself or counsel, to duplicity.
produce witnesses in his own behalf, and to cross- The appeal should be, as it is hereby, dismissed and the decision
examine the opposing witnesses. appealed from affirmed, with costs against the petitioner-
appellant.
The above provision does not define the cases in which the Chief Pablo, Acting C.J., Bengzon, Montemayor, Reyes, A., Bautista
Executive may exercise his power to deport; neither does it limit Angelo, Concepcion, and Reyes, J.B.L., JJ., concur.
or curtail said power. What it does is to prescribe the procedure
necessary for the exercise of the power that the alien may have
his "day in court.
By no form or manner of reasoning can the inference be made
that by section 2702 of the Revised Administrative Code the
Legislature intended that an alien can be deported for illegal
importation only upon conviction therefor in a competent court,
and thereby deprived the Deportation Board of its power to
investigate charges of unlawful importation of merchandise
against an alien, especially, when as appears from the record, no
criminal action for unlawful importation has been filed against
him. The language of the provision and the chapter in which it is
found do not justify petitioner's contention. No derogation of a
power vested in the Chief Executive or a limitation thereof can be
presumed by implication from the mere addition of the clause "he
may be subject to deportation" at the end of section 2702. This
section punishes illegal importation and imposes, in addition to
the penalty prescribed, the liability to deportation if the person
found guilty is an alien. Its sole import is that if a competent court
has found an alien guilty of a violation of section 2702 of the
And in the Tan Tong case, supra, it was ruled that the Deportation Executive Order No. 398, s. 1951
Board could take cognizance of the charge of illegal importation
against an alien as a ground for deportation, even if he of the REORGANIZING THE DEPORTATION BOARD
Deportation Board is merely recommendatory. The Chief Executive For the purpose of conducting investigations of undesirable aliens
has to approve the board's recommendatory Abuses or rents
residing in the Philippines in the manner prescribed in section 69 of
committed by the prosecutor or by the Board should first be
the Revised Administrative Code, I, Elpidio Quirino, President of the
brought to his attention.
Philippines, by virtue of the powers vested in me by law, do hereby
Sec. 2702. Unlawful importation of merchandise. — Any person reorganize the Deportation Board to be composed of—
who shall fraudulently or knowingly import or bring into the
A Judge of First Instance to be designated by the Chairma
Philippines, or assist in so doing, any merchandise, contrary to law,
Secretary of Justice n
or shall receive, conceal, buy, sell, or in any manner facilitate the
transportation, concealment, or sale of such merchandise after A ranking officer of the Department of Foreign Affairs to
importation, knowing the same to have been imported contrary to be designated by the Secretary of Foreign Affairs Member
law, shall be punished by a fine of not less than six hundred pesos
but not more than five thousand pesos and by imprisonment for not The Commissioner of Immigration Member
less than three months nor more than two years and, if the offender
is an alien, he may be subject to deportation. The City Fiscal of Manila Member
"When, upon trial for a violation of this section, the defendant is
The Judge Advocate General of the Armed Forces of the
shown to have or to have had possession of the merchandise in
Philippines Member
question, such possession shall be deemed sufficient evidence to
authorize conviction, unless the defendant shall explain the 1. The Board shall conduct all investigations in accordance with the
possession to the satisfaction of the court." following rules and regulations:
SEC. 69. Deportation of subject to foreign power. — A subject of a (a) The Deportation Board, motu proprio or upon complaint of any
foreign power residing in the Philippines shall not be deported, person, is authorized to conduct investigations in the manner
expelled, or excluded from said Islands or repatriated to his own prescribed in section 69 of the Revised Administrative Code to
court by the President of the Philippines except upon prior
investigation, conducted by said Executive or his authorized agent, determine whether a subject of a foreign power residing in the
of the ground upon which such action is contemplated. In such Philippines is an undesirable alien or not, and thereafter to
case the person concerned shall be informed of the charge or recommend to the President of the Philippines the deportation of
charges against him and he shall be allowed not less than three such alien.
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.
(b) The Deportation Board, motu proprio or upon the filing of the the proceedings, shall be transmitted to the Office of the President
formal charges by the Special Prosecutor of the Board, shall issue within ten days after the termination of the investigation. Final
the warrant of arrest against the alien or aliens complained of. order of deportation shall be issued by the President of the
Philippines.
(c) Any respondent may file a bond with the Deportation Board in
such amount and containing such conditions as the Chairman of the 2. The assistance of all law enforcement agencies and offices of the
Board may approve and prescribe: Provided, however, That if at any Government should be made available to the Deportation Board at
stage of the proceedings it appears to the Board that there is strong the request of the Chairman thereof.
evidence against the respondent or there is strong probability of his
3. The Deportation Board shall issue such rules and regulations as
escaping or evading the proceedings of the Board, it may order his
may be necessary to carry into effect the provisions of this Order.
arrest and commitment.
4. Executive Order No. 37, dated January 4, 1947, Executive Order
(d) Every person complained against before the Deportation Board
No. 69, dated July 29, 1947, and all other Orders inconsistent
shall be informed of the charge or charges against him and shall be
herewith are hereby revoked.
allowed not less than three days from notice thereof for the
preparation of his defense. He shall have the right to he heard by
himself or counsel, to produce witnesses in his own behalf and to
cross-examine the opposing witnesses.
(e) The proceedings before the Board shall be reduced to writing, a
full record of the proceedings shall be kept in all cases and shall
include a statement of the findings and conclusions of the Board
signed by the members thereof. A majority of the members shall
constitute a quorum for the transaction of business and a vote of
three of them shall be necessary to arrive at a decision: Provided,
however, That the Board may designate one of its members or any
other competent person to receive evidence and submit a report to
the Board, on the basis of which it shall make its own findings of
fact. Any dissent from the majority opinion shall also be reduced to
writing and filed with the records of the proceedings.
(f) The investigation of any case shall be finished within fifteen days,
unless extended by the President, The findings and
recommendations of the Deportation Board, with a full record of
prosecutor or by the Board should first be brought to his
Tan Tong v. Deportation Board attention.
[96Phil934]
There is no need to conduct investigations by the Deportation
Facts: Board if there has been final conviction but if there is no final
Tan Tong was originally charged before the Bureau of conviction, the Board can investigate.
Immigration with being a communist, subject to
deportation. The Board of Commissioners found that Tan
Tong was engaged in communistic activities & in smuggling,
and so it recommended that Tan Tong be deported to China
& that his smuggling activities be referred to the Office of the
President under Section 69 Revised Admin Code.
Special Prosecutor Emilio Galang charged Tan Tong before
the Deportation Board with affiliation with the communist
party & with having fraudulently engaged in unlawful
importation, American cigarettes.
Tan Tong filed Motion to Quash on the grounds that charges
had already been investigated by BoI & that insofar as
smuggling charge is concerned, the proceedings are beyond
the Board’s jurisdiction because no deportation proceedings
for smuggling can be instituted before conviction by a
competent court.
Issue:
Who has the Power to deport aliens?
Whether or not the Deportation Board has jurisdiction over
this case?
Held:
The power to deport aliens is lodged in the President of the
Republic of the Philippines, subject only to the regulations
prescribed in section 69 of the Revised Administrative Code or to
such future legislation as may be promulgated on the subject.
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
