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Philippine Supreme Court Jurisprudence > Year 1968 > April 1968 Decisions > A.C. No.
533 April 29, 1968 - IN RE: FLORENCIO MALLARE:

EN BANC

[A.C. No. 533. April 29, 1968.]

 IN RE: FLORENCIO MALLARE

Rosendo J. Tansisin for the Respondent.

Hon. Commissioner of Immigration Martiniano P. Vivo for the complainant.

SYLLABUS

1. CIVIL LAW; MARRIAGE; PRESUMPTION OF MARRIAGE. — Persons living together as

husband and wife are presumed to be married to each other (Rule 131, par. bb). Every
intendment of law and fact leans towards the validity of marriage and the legitimacy of
children (Art. 220, Civil Code),

2. CITIZENSHIP; EVIDENCE; PROBATIVE VALUE OF LANDING CERTIFICATE,

INADEQUATE. — A landing certificate issued under section 7 of Act 702 by the Collector
of Customs is based on an administrative ex parte determination of the evidence
presented and the facts as stated by the applicant. As such, it carries little evidentiary
weight as to the citizenship of the applicant’s spouse.

3. ID.; AFFIDAVIT EXECUTED BY ONE CLAIMING ELECTION OF PHILIPPINE CITIZENSHIP,

SELF-SERVING. — The affidavit executed by respondent’s father stating that he elected
to be a Filipino when he reached the age of majority is not a substitute for a duly
recorded election of Philippine citizenship, assuming that the affiant was qualified to so
elect. It is self-serving as it was executed for the purpose of making a change in a
miscellaneous lease application where he had previously stated that he is a citizen of
China; neither can it be regarded as a re-affirmation of an alleged election of citizenship
since no such previous election was proved to have existed.

4. ID.; EXERCISE OF SUFFRAGE DOES NOT ALTER CITIZENSHIP. — Registration as a

voter may indicate the person’s desire to exercise a right appertaining exclusively to
Filipino citizens but this does not alter his real citizenship which in this jurisdiction is
determinable by blood (jus sanguinis).

5. ID.; WHERE FATHER IS NOT A CITIZEN, ALL HIS CHILDREN REMAIN ALIENS,
INCLUDING THE LATTER’S MOTHER. — Where the evidence is clearly preponderant, if
not overwhelming, that the respondent’s father was and remained a Chinese, the
respondent’s mother, admittedly a Chinese retained her original citizenship and their
offsprings, respondent included, are likewise Chinese nationals through and through.

6. ID.; CIVIL CASE FOR RESCISSION OF SALE AND RECOVERY OF LAND ON GROUND
 THAT VENDEE IS A CHINESE, NOT RES JUDICATA ON ISSUE OF CITIZENSHIP. — In Civil
Case No. 329-G against respondent and the latter’s brothers and sisters to recover a
piece of land from them on the ground that they were Chinese the Court declared them
to be natural born Filipinos and that the sale to them was valid. Such declaration did not
constitute res judicata. The pronouncement was not within the court’s competence
because the declaration of citizenship was not the relief sought. Besides, at the time, the
pronouncement was beyond judicial power, there being no law authorizing the institution
of a judicial proceeding to declare the citizenship of an individual.

7. ID.; ACTIONS TO BE DECLARED FILIPINO CITIZEN OTHER THAN BY

NATURALIZATION; EFFECT. — Civil Case No. 329-G, an action to declare invalid a deed
of sale of land to vendees who were supposed to be Chinese citizens, and Special
Proceeding No. 3925, an action for the correction of records of birth, are not modes of
acquiring Philippine citizenship; neither is the citizenship of the respondent converted to
Filipino because certain government agencies recognized him as such. He remains, by
jus sanguinis, a Chinese until he is naturalized.

8. ID.; APPEARANCE OF FISCAL IN A SPECIAL PROCEEDING TO CORRECT CITIZENSHIP

IN A RECORD OF BIRTH; EFFECT. — The appearance of the fiscal in a special proceeding
for the correction of respondents’ records of birth does not bind the State to the order of
the correction thereof because the proceeding was not instituted as in rem and, under no
law had the State given its consent to be a party thereto.

DECISION

REYES, J.B.L., J.:

The respondent, Florencio Mallare, was admitted to the practice of law on 5 March 1962. In his
verified petition to take the bar examinations in 1961, he alleged that he is a citizen of the
Philippines and that "his father is Esteban Mallare and his mother is Te Na, both Filipino citizens."
(Personal Record, No. 17450, Bar Division)

On 16 July 1962, the then Acting Commissioner of Immigration Martiniano P. Vivo denounced the
respondent to this Court as a Chinaman masquerading as a Filipino citizen and requested that the
matter be investigated thoroughly and if the respondent fails to show that he has legally become a
Filipino, steps be taken for striking his name from the roll of persons authorized to practice law.
Acting upon the request, this Court, on 9 August 1962, referred the matter to its Legal Officer-
Investigator for investigation and report. An investigation was thus held wherein the relator or
complainant and the respondent appeared and adduced their respective evidence.

The position of the respondent-lawyer is that he is a Filipino citizen based on the supposed
citizenship of his father, Esteban Mallare, alleged to be a Filipino citizen by choice, because he was
the illegitimate son of a Chinese father and a Filipina mother, Ana Mallare; and that the
respondent’s mother, Te Na, a Chinese, followed the citizenship of her husband upon their
marriage.

The respondent’s second theory is that, having been declared a Filipino citizen in a final judgment
in 1960 by the Court of First Instance of Quezon province, in its Civil Case No. 329-G (entitled,
Vitaliano Itable v. Artemio, Florencio, Paciencia, Esperanza and Raymundo Mallare) and his birth
record, wherein he was originally registered as a Chinese, has likewise been ordered corrected to
Filipino, by final judgment in Special Proceeding No. 3925 of the same court, 1 his Filipino
citizenship is conclusive, res judicata and binding to the government and to the world.

Complainant Vivo disputed, on the facts, the respondent’s first theory, and, on the second theory,
claimed that the aforestated Civil Case No. 329-G (Itable v. Mallare) was a simulated action
calculated to obtain a judicial declaration of Philippine citizenship and, after having obtained the
said declaration, the respondent, together with his brothers and sisters, utilized the declaration to
change their birth and alien registration the better to hide their true nationality, which is Chinese.

The respondent denies the charge of simulating an action, and by way of defense, points out that
Civil Case No. 329-G and Special Proceeding No. 3925 are not subject to collateral attack and,
since his birth record and alien registration (and that of his brothers and sisters) have been
corrected and cancelled, respectively, the question of their citizenship is now moot and academic.

On respondent’s first claim to citizenship by blood, the earliest datum that can be stated about the
respondent’s supposed ancestry is that in 1902, 2 ex-municipal president Rafael Catarroja, then
eight years old, met for the first time Ana Mallare, the supposed paternal grandmother of the
respondent, in Macalelon, Quezon. He had not seen her deliver or give birth to the baby boy,
Esteban Mallare, father of the respondent, but met the supposed Filipina mother and Esteban
Mallare years later when the boy was already (8) years old. (Annex "8", pp. 10-12, t.s.n., Sept.
24, 1959, Civil Case No. 329-G, CFI of Quezon Province). There is no evidence that Ana Mallare
was an "inhabitant of the Philippine Islands continuing to reside therein who was a Spanish subject
on the eleventh day of April, eighteen hundred and ninety-nine", as required by the Philippine Bill
of July 1, 1902 and she cannot, therefore, be considered a Filipina. That witness Catarroja, the
respondent, and the latter’s brothers and sisters, stated that Ana Mallare was a Filipina, as well as
their testimonies in the civil case that she had not married her Chinese husband and that she is
the true mother of Esteban Mallare, are more of opinion or conjecture than fact, utterly insufficient
to overcome the presumption that persons living together as husband and wife are married to
each other (Rule 131, par bb). "Every intendment of law and fact", says Article 220 of our Civil
Code "leans toward the validity of marriage and the legitimacy of children." cralaw virtua1aw library

The respondent relies on three documents as indicative of the alleged Philippine citizenship of his
father, Esteban Mallare. On 7 July 1926, Te Na, respondent’s Chinese mother, was described in a
landing certificate of residence issued to her, as "wife of P.I. citizen" and as "wife of Dy Esteban,
P.I, citizen." (Annex "16", being Exh. "3" in Civil Case No, 329-G). On 20 February 1939, Esteban
Dy Mallare executed an affidavit stating therein that when he reached the age of majority he had
"definitely elected to be a Filipino citizen following the citizenship of my mother." (Annex "4", being
Exh. "1" in Civil Case No. 329-G) And, in 1928, Esteban Mallare was a registered voter in
Macalelon, Quezon. (Annex "7", being Exh. "2" in Civil Case No, 329-G).

A landing certificate of residence issued under Section 7, Act 702 by the Collector of Customs is
based upon an administrative ex parte determination of the evidence presented and the facts as
stated by the applicant and, therefore, carries little evidentiary weight as to the citizenship of the
applicant’s husband. In the instant case, the truth of Te Na’s declarations when she applied for the
landing certificate could have been inquired into had she been presented as a witness in these
proceedings, but this was not done.

The affidavit of Esteban Mallare, besides being self-serving, is not a substitute for a duly recorded
election of Philippine citizenship, assuming that the affiant was qualified to so elect. When Esteban
executed it, he was already thirty-six (36) years old and he executed it for the purpose, stated in
the last paragraph, of making a change in a miscellaneous lease application wherein he had
previously stated that he is a citizen of China. Nor can it be regarded as a re- affirmation of an
alleged election of citizenship, since no such previous election was proven to have existed.

Esteban Mallare’s registration as a voter indicates his desire to exercise a right appertaining
exclusively to Filipino citizens but this does not alter his real citizenship, which, in this jurisdiction,
is determinable by his blood (jus sanguinis).

Against these pretensions of Philippine citizenship, all the five (5) known children of the spouses
Esteban Mallare and Te Na, Artemio, Esperanza, Florencio, Paciencia and Raymundo, were
registered at birth as children of a Chinese father and a Chinese mother and with the added detail
that their parents were born in China.

The birth certificate of Esperanza Mallare (Exh. "F") who was born on 25 October 1939, is
particularly significant in this regard, because it bears the father’s own signature. If Esteban
Mallare was indeed a Filipino by choice, as stated by him in his aforementioned affidavit (Annex 4),
then he should have so stated in this birth certificate of his daughter; instead, he admits, against
his own interest, that he is a Chinese. Esteban Mallare’s own death certificate (Exh. "C"), over the
signature of his son, Artemio Mallare, shows against Artemio’s own interest, that Esteban was a
Chinese, born in Fookiang, China; that he died on 5 June 1945, at the age of 42 and was buried at
the Chinese cemetery, having resided in the Philippines for 28 years (Exh. "C"), i.e., only since
1917.

The affidavit of Artemio denying that the signature in the aforesaid death certificate is his, is
inadmissible and, therefore, should be rejected, as it was offered in evidence for the first time
after trial was closed, as an annex to the respondent’s memorandum with the investigator. The
affiant was not examined thereon, and the affidavit is self-serving besides.

The entire family, consisting of the father, mother and their four (4) children (Raymundo was not
yet born) were registered as aliens in 1942 in the then Division of Alien Statistics, pursuant to the
proclamation of the Commander-in-Chief of the Imperial Japanese Forces in the Philippines and
Executive Order No. 25 of the then Executive Commission (See letter of Jan. 18, 1963 from the
Bureau of Immigration to the Legal Officer Investigator; see also pp. 171 and 180-181, Vol. 1, No.
4, Official Gazette, published during Japanese occupation.)In addition, the respondent himself was
again registered as an alien in 1950, his application thereto bearing his thumbprints and stating
therein that he is a Chinese; that he belongs to the yellow race and that he had used these other
names: "Tan Jua Gae", "Enciong" and "Jua Gao" (Exh. "N"). He had been a teacher in the Candon
Chinese School (t.s.n., p. 17, Oct. 3, 1962). His explanation that it was his mother who registered
him as an alien is flimsy; and, as stated hereinbefore, he did not present his mother as a witness.

The evidence is thus clearly preponderant, if not overwhelming that the respondent’s father,
Esteban Mallare or "Mallari", also known as "Esteban Dy", "Esteban Dy Mallare" and "Esteban Tan",
was and remained a Chinese until he died; consequently, the respondent’s mother, admittedly a
Chinese, retained her original citizenship and their offspring, respondent, Florencio Mallare,
together with his brothers and sisters, are likewise Chinese nationals, through and through.

We now turn to respondent’s second defense of res judicata. There are certain marks of simulation
that attended Civil Case No. 329-G, and indicating that it was brought to circumvent a previous
unfavorable opinion of the Secretary of Justice denying cancellation of Mallare’s alien registration
(Op. No. (90, Ser. of 1955, dated March 31, 1955). The said civil case was instituted by the vendor
(Vitaliano Itable) of a certain parcel of land to rescind the sale and recover the land sold from the
vendees, who are the herein respondent and his brothers and sisters, on the ground that the said
vendees are Chinese. The vendor-plaintiff practically abandoned the case; the vendees-
defendants submitted evidence purporting to show their Filipino citizenship, and plaintiff neither
cross-examined nor presented rebuttal proof. After trial, the court, declaring the vendees as
natural-born Filipino citizens, decided for the validity of the sale of the parcel of land.

On the basis of the foregoing declaration by the Court of First Instance of Quezon Province, the
respondent and his brothers and sisters filed Special Proceeding No. 3925, in the same court, but
in a different branch, for the "correction" of their birth records. The local fiscal, representing the
Solicitor General, appeared but did not oppose the petition; wherefore, after hearing, the court
granted the petition. Based on the same judicial declaration, the then Commissioner of
Immigration De la Rosa (not the complainant) cancelled on June 8, 1960, the alien registration of
the herein respondent and that of his brothers and sisters, and issued to them identification
certificates recognizing them as Filipino citizens. Then Solicitor General Alafriz took the same
position.

Civil Case No. 329-G and Special Proceeding No. 3925 are not modes of acquiring Philippine
citizenship; neither is the Chinese citizenship of the respondent converted to Filipino because
certain government agencies recognized him as such. He remains, by jus sanguinis, a Chinese
until he is naturalized.

It is noted that the declaration that the respondent and his brothers and sisters are Filipino citizens
is stated in the dispositive portion of the decision in Civil Case No. 329-G, which was an action in
personam. The pronouncement was not within the court’s competence, because the declaration of
the citizenship of these defendants was not the relief that was sought. At the time, the
pronouncement was beyond judicial power, there being no law authorizing the institution of a
judicial proceeding to declare the citizenship of an individual (Danilo Channie Tan v. Republic, L-
14159, April 18, 1960; Palaran v. Republic, L-15047, Jan. 30, 1962; Tan Yu Chin v. Republic, L-
15775, April 29, 1961; Tan v. Republic, L-16108, October 31, 1961; Santiago v. Commissioner, L-
14653, Jan. 31, 1963; Commissioner v. Domingo, L-21274, July 31, 1963; Lao Yap Diok, Et Al., v.
Republic, L-19107-09, Sept. 30, 1964).

In the basic case Channie Tan v. Republic, ante, this Court ruled as follows: jgc:chanrobles.com.ph

"Under our laws, there can be no action or proceeding for the judicial declaration of the citizenship
of an individual. Courts of justice exist for the settlement of justiciable controversies, which imply
a given right, legally demandable and enforceable, an act or omission violative of said right, and a
remedy granted or sanctioned by law, for said breach of right. As an incident only of the
adjudication of the rights of the parties to a controversy, the court may pass upon, and make a
pronouncement relative to, their status. Otherwise, such a pronouncement is beyond judicial
power. Thus, for instance, no action or proceeding may be instituted for a declaration to the effect
that plaintiff or petitioner is married, or single, or a legitimate child, although a finding thereon
may be made as a necessary premise to justify a given relief available only to one enjoying said
status. At times, the law permits the acquisition of a given status, such as naturalization, by
judicial decree. But, there is no similar legislation authorizing the institution of a judicial
proceeding to declare that a given person is part of our citizenry." (Tan v. Republic, G. R. No. L-
14159, April 18, 1960, reiterated in G.R. No. L-15775, April 29, 1961).

The said judicial declaration 3 was merely an incident to the adjudication of the rights of the
parties to the controversy over land ownership. Their citizenship was not the thing adjudicated in
the judgment and the declaration that they are Filipinos was but a necessary premise for the court
to arrive at a conclusion that the sale of the realty was valid as between the parties. Not being the
thing directly adjudicated, their declared citizenship is not res judicata, and cannot become
conclusive.
The appearance of the fiscal, representing the Solicitor General, in Special Proceeding No. 3925
does not bind the state to the order of "correction" of the birth records because the proceeding
was not instituted as in rem and, under no law had the state given its consent to be party thereto.
For this reason, the fiscal’s appearance was an unauthorized one.

It is noteworthy that in neither case relied upon by the respondent does it appear that his claim for
citizenship was given adequate publication so as to apprise all concerned and give them
opportunity to contest it or supply the corresponding public office any derogatory data that might
exist against the alleged citizenship. Hence, neither decision constitutes res judicata on the issue
of respondent’s alleged Filipino nationality.

And certainly, the Supreme Court, acting pursuant to its inherent and constitutional authority, may
not be precluded from inquiring into the citizenship of persons admitted to the practice of law,
independent of any court’s findings in the cases or proceedings brought or instituted therein.

IN VIEW OF ALL THE FOREGOING, the respondent Florencio Mallare is hereby declared excluded
from the practice of law; his admission to the Philippine bar is revoked and he is hereby ordered to
return immediately to this Court the lawyer’s diploma previously issued to him.

Let a copy of this decision be furnished, when it becomes final, to me Secretary of Justice, for such
action as may be deemed warranted, and let another copy be sent to the Local Civil Registrar of
Macalelon, Quezon, for purposes of record in the corresponding civil registry of births.

SO ORDERED.

Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.

Endnotes:

1. Petition for Correction of Civil Registry of Birth: Artemio, Florencio and Esperanza
Mallare, petitioners.

2. Catarroja was 65 when he testified in 1959; therefore, he was born in 1894. Adding
his age of 8 to his year of birth equals 1902.

3. In Civil Case No. 329-G (Itable v. Mallare).

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