exception to the rule: commissioner of immigration can issue warrant of arrest in the execution of final deportation order, BUT NOT as a preliminary step to further administrative proceeding

Nevertheless, we are of the opinion that, the issuance of warrants of arrest by the Commissioners of Immigration, solely for purposes of investigation and before a final order of deportation is issued, conflicts with paragraph 3, Section 1, of Article III (Bill of Rights) of our Constitution, providing: .

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.

It will be noted that the power to determine probable cause for warrants of arrest is limited by the Philippine Constitution to judge exclusively, unlike in previous organic laws and the Federal Constitution of the United States that left undetermined which public officials could determine the existence of probable cause. And in Qua Chee Gan, et al. vs. Deportation Board, L-20280, promulgated on September 30 1963, this Court pointed out that Executive Order No. 69, of July 29, 1947, issued by President Roxas, in prescribing the procedure for deportation of aliens, only required the filing of a bond by an alien under investigation, but did not authorize his arrest.

Discussing the implications of the provision of our Bill of Rights on the issuance of administrative warrants of arrest, this Court said in the same case: .

x x x           x x x           x x x1äwphï1.ñët

Under the express terms of our Constitution it is, therefore, even doubtful whether the arrest of an individual may be ordered by any authority other than the judge if the purpose is merely to determine the existence of a probable cause, leading to an administrative investigation. The Constitution does not distinguish between warrants in a criminal case and administrative warrants in 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? Of course it is different if the order of arrest is issued to carry out a final finding of a violation, either by an executive or legislative officer or agency duly authorized for the purpose, as then the warrant is not that mentioned in the Constitution which is issuable only probable cause. Such, for example, would be a warrant of arrest to carry out a final order of deportation, or to effect compliance of an order of contempt.

The contention of the Solicitor General that the arrest of a foreigner is necessary to carry into effect the power of deportation is valid only when, as already stated, there is already an order of deportation. To carry out the order of deportation, the President obviously has the power to order the arrest of the deportee. But, certainly during the investigation, it is not indispensable that the alien be arrested. It s enough, as was true before the executive order of President Quirino, that a bond be required to insure the appearance of the alien during the investigation, as was authorized in the executive order of President Roxas.

Following the same trend of thought, this Court, in Morano vs. Vivo (L-22196, 30 June 1967, 20 SCRA, 562; Phil. 1967-B, page 741), distinguished between administrative arrest, in the execution of a final deportation order and arrest as preliminary to further administrative proceedings. The Court remarked in said case:

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 accordance with law. The constitutional limitation contemplates an order of arrest in the exercise of judicial power 1 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.

We see no reason why the cautionary bond requirement of the 1947 Executive Order No. 69 of President Roxas should not apply to deportation proceedings initiated by the Immigration Commissioners, considering the identity of ends sought to be served. Such notice and bonds should suffice to ensure the subject's appearance at the hearings without prejudice to more drastic measures in case of recalcitrant respondents. But as long as the illegal entry or offense of the respondents Calacdays has not yet been established and their expulsion finally decided upon, their arrest upon administrative warrant violates the provisions of our Bill of Rights. The constitutional guarantees of individual liberty must be liberally construed and applied if we are to enjoy the blessings of a regime of justice, liberty and democracy that the Philippine Constitution sought to secure and consolidate.

IN VIEW OF THE FOREGOING, the writ prayed for is hereby granted, the order issued in Civil Case No. 60906 of the Court of First Instance of Manila is set aside, and the proceedings ordered discontinued. But the warrants of arrest heretofore issued by the petitioner, Immigration Commissioner, against herein respondents Calacdays are declared null and void, without prejudice to said respondents being required to furnish bonds in such reasonable sums as the Immigration Commissioners may fix, in order to guarantee their appearance at the hearings and other proceedings in their case, until final determination of their right to stay in the Philippines. No costs. So ordered

EN BANC

G.R. No. L-24576           July 29, 1968

MARTINIANO P. VIVO, as Acting Commissioner of Immigration,
BOARD OF COMMISSIONERS, Bureau of Immigration and DEPORTATION OFFICER, Bureau of Immigration,petitioners,
vs.
HON. AGUSTIN P. MONTESA, as Judge of the Court of First Instance of Manila, Branch XIX,
JOSE CALACDAY, ET AL., respondents.