Coming now to the contention of petitioners that the arrest of respondent follows as a matter of consequence based on the warrant of exclusion issued on July 6, 1962, coupled with the Arocha and Vivo cases (Rollo, pp. 33), the Court finds the same devoid of merit.
Sec. 37 (a) of Commonwealth Act No. 613, as amended, otherwise known as the Immigration Act of 1940, reads:
As We held in Qua Chee Gan v. Deportation Board (supra), "(t)he constitution does not distinguish warrants between a criminal case and administrative proceedings. And if one suspected of having committed a crime is entitled to a determination of the probable cause against him, by a judge, why should one suspected of a violation of an administrative nature deserve less guarantee?" It is not indispensable that the alleged alien be arrested for purposes of investigation. If the purpose of the issuance of the warrant of arrest is to determine the existence of probable cause, surely, it cannot pass the test of constitutionality for only judges can issue the same (Sec. 2, Art. III, Constitution).
Sec. 37 (a) of Commonwealth Act No. 613, as amended, otherwise known as the Immigration Act of 1940, 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 Commissioner of the existence of the ground for deportation as charged against the alien." (Italics supplied)From a perusal of the above provision, it is clear that in matters of implementing the Immigration Act insofar as deportation of aliens are concerned, the Commissioner of Immigration may issue warrants of arrest only after a determination by the Board of Commissioners of the existence of the ground for deportation as charged against the alien. In other words, a warrant of arrest issued by the Commissioner of Immigration, to be valid, must be for the sole purpose of executing a final order of deportation. A warrant of arrest issued by the Commissioner of Immigration for purposes of investigation only, as in the case at bar, is null and void for being unconstitutional (Ang Ngo Chiong v. Galang, 67 SCRA 338 [1975] citing Po Siok Pin v. Vivo, 62 SCRA 363 [1975]; Vivo v. Montesa, 24 SCRA 155; Morano v. Vivo, 20 SCRA 562; Qua Chee Gan v. Deportation Board, 9 SCRA 27 [1963]; Ng Hua To v. Galang, 10 SCRA 411); see also Santos v. Commissioner of Immigration, 74 SCRA 96 [1976]).
As We held in Qua Chee Gan v. Deportation Board (supra), "(t)he constitution does not distinguish warrants between a criminal case and administrative proceedings. And if one suspected of having committed a crime is entitled to a determination of the probable cause against him, by a judge, why should one suspected of a violation of an administrative nature deserve less guarantee?" It is not indispensable that the alleged alien be arrested for purposes of investigation. If the purpose of the issuance of the warrant of arrest is to determine the existence of probable cause, surely, it cannot pass the test of constitutionality for only judges can issue the same (Sec. 2, Art. III, Constitution).
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