MARTINIANO P. VIVO, AS ACTING COMMISSIONER OF IMMIGRATION, BOARD OF COMMISSIONERS, BUREAU OF IMMIGRATION AND DE­PORTATION OFFICER, BUREAU OF IMMIGRATION, PETITIONERS, VS. HON. A…

Petition for certiorari and prohibition with preliminary
injunction to annul the order of 27
May 1965 of the respondent Court of First Instance of Manila, in
its Civil Case No. 60906, which enjoined the above-named immigration officers
from arresting and detaining, with a view to deporting the herein private
respondents.

The private respondents Juan, Pedro, Julio, Marcelo, Jose, Manuel
and Benito, all surnamed “Calacday“,
arrived in the Philippines
from Hongkong, the first four on 18 November 1959, and the last three on 6 December 1959.  Upon their arrival, they sought admission as
Filipino citizens.  After inves­tigation,
a board of special inquiry, in its decisions of 7 and 11 December 1959, found
them to be the legitimate sons of a Filipino citizen, one Isaac Calacday, and thus admitted them into this country.  The Bureau of Immigra­tion then issued to
each of them an identification certificate as a Filipino citizen, with the
notation that their admission as such was by a decision of the Board of special
inquiry, duly affirmed by the Board of Commissioners.

Sometime in February, 1963, however, Isaac Calacday
confessed before an immigration official that the seven respondents were not
his sons (Petition, page 4, paragraph 4; Annex “C” to Petition, page
2; Annex “I” to Answer Respondent’s Manifestation, 29 November 1965,
page 4).  He retracted his confession in
March, 1963, in an investigation in the Department of Justice with the
explanation that, in a fit of anger, he disclaimed, under oath, pater­nity of
the respondents because they refused to give him money (Annex “I” to
Answer).

On 9 May 1963, Commissioner of Immigration Martiniano
Vivo issued warrants of arrest against the herein private respondents, stating
in said warrants their deportability under Section 37(a) (1) and Section
37(a)(2) in relation to Section 29(a) (17) of the Philippine Immigration Act of
1940, as amended, for having entered the Philippines “by means of false
and misleading statements and that they were not lawfully admissible at the
time of entry, not being properly documented for admission”.  The warrants directed any immigration officer
or officer of the law to bring the respondents before the Commissioner, for
them to show cause, if any there be, why they should not be deported (Annexes
“B-1” and “B-2” to Petition).

Manuel Calacday was subsequently
arrested.  The others remained at large.

On 26 April 1965, the respondents filed before the respondent
court a petition, docketed as Civil Case No. 60906, praying for three principal
reliefs, namely: 
to restrain the arrest of those petitioners who have not been arrested
to release Manuel Calacday who had been arrested; and
to prohibit the deporta­tion of all the petitioners, all upon the claim that
they are Filipino citizens.

Respondent Commissioner of Immigration questioned the propriety
of the remedy of prohibition, and insisted that habeas corpus is
the proper one, but the respondent court invoked its general jurisdiction,
which includes certiorari and prohibition, on the ground that habeas
corpus would be proper only to the one already arrested but not to those
not yet arrested.

On 27 May 1965, the respondent court, resolving the issue only of
“whether the respondent Acting Commissioner of Immigration (herein
petitioner) can summarily order the arrest and deportation of the petitioners
(herein respondents) x without giving them a chance to be heard as Filipino
citizens”, and relying on the case of Commissioner of Immigration vs.
Fernandez, et al., L-22696, 29 May 1964, issued the order, now being questioned
before this Court, the dispositive part of which
states:

“IN VIEW THEREOF, the Court finds the motion to be well-founded,
and so hereby orders that the writ of pre­liminary injunction issued (sic)
during the pendency of this action, enjoining the
respondents from arresting and detaining the petitioners herein, with a view to
their deportation, upon the filing by the petitioners of a bond in the amount
of P10,000 each, to answer for whatever damages may be sustained by the
respondents as a result of the issuance of the said writ.  In the meantime, the respondents are hereby
ordered to release Manuel Calacday and any other of
them who may now be detained by virtue of the order of arrest issued by the
respondents, within 48 hours after the filing of the said bond to guarantee
their appearance here and at the investigation of their case by the Board of
Immigration.”

We agree with petitioning Commissioner that the court below is
without jurisdiction to restrain the deportation proceedings of respondents Calacdays.  These
proceedings are within the jurisdiction of the Immigration authorities under
Section 29 and 37 of the Philippine Immigration Act (C.A. No. 613).  That jurisdiction is not tolled by a claim of
Filipino citizenship, where the Commissioner or Commissioners have reliable
evidence to the contrary and said officers should be given opportunity to
determine the issue of citizenship before the courts interfere in the exercise
of the power of judicial review of administrative decisions.  We have so ruled in Porta
Perez, et al. vs. Board of Special Inquiry, L-9236, 29 May 1956, wherein we said:

“The respondents impugn petitioners’ claim to Philippine
citizenship on the strength of a sworn statement of Tecla
Socella, supposed mother of the petitioner Melanio Porta Perez as given in
the birth certificate presented by him to the immigration authorities, to the
effect that the said birth certificate refers not to the said petitioner but to
one Melanio Perez now living in Pagbilao,
Quezon Province. 
And there being thus substantial evidence that petitioners are not
Filipino citizens but are Chinese nationals who have gained entry into this
country through false representations, the respondents by way of special
defense, contend that the present action is premature, and urge that they be
allowed to proceed with their investigation until they shall have finally
determined whether peti­tioners are or are not Filipino citizens, or are or are
not subject to deportation.

We find merit in this contention. 
The present case is not one where the Philippine citizenship of the
persons threatened with deportation is admitted or conclusively appears, there
being reliable evidence that herein petitioners are aliens who have succeeded
in gaining entry into this country through false representations.  In line with the views expressed by this
Court in the case of Federico M. Chua Hiong v. The Deportation
Board, G.R. No. L-6038, March 19, 1955,
we think it would be in the sound judicial discretion to allow the respondents
to continue the proceedings already begun by them until they have determined
whether or not the petitioners are aliens. 
Their decision on that question is, of course, not final but subject to
review by the courts.”

And in Miranda vs. Deportation Board, 94 Phil. 531, 533, this
Court said:

“While the jurisdiction of the Deportation Board as an
instrument of the Chief Executive to deport undesirable aliens exists only when
the person arrested is an alien, however, the mere plea of citizenship does not
divest the Board of its jurisdiction over the case.  Petitioners should make “a showing that
his claim is not frivolous” (Ng Fung Ho vs.
White, 259 U.S.,
275), and must prove by sufficient evidence that they are Filipino
citizens.  [Kessier
vs. Strecker (1939) 307 U.S.,
21, 35-36.] If such is the primary duty of petitioners, it follows that the De­portation
Board has the necessary power to pass upon the evidence that may be presented
and determine in the first instance if petitioners are Filipino citizens or
not.  This is inherent in, or essential
to the efficient exercise of, the power of the Deportation Board (Laurencio vs. Collector of Customs, 35 Phil., 37).  It is not therefore, correct to state that
the question of citizenship should be determined exclusively by the
courts.  As this Court ruled in a recent
case:

“Resuelto por
la Junta que tiena jurisdiccion, es obvio que debe
proseguir con el caso hasta su terminacion.  Si la Junta halla infundados los cargos de indeseabilidad del recurrente, el caso habra terminado totalmente, pero si la halla indeseable,
puede apelar contra el fallo, y si la apela­cion fracasa, entonces sera el tiempo de considerar si demonstrando
cause razonable debe haber un juicio ulterior sobre la ciudadania filipina que alega
mediante habeas corpus.” (Llanco
vs. The Deport­ation Board, G.R. No. L-6272, prom. February 22, 1954.)”

It is well to note here that when the petition for certiorari and
prohibition (the respondent judge considered it as such) was filed, deportation
proceeding had been started against the respondents (petitioners below) but had
not been completed.  In view of the
non-completion of the proceedings, the Board of Commissioners has not rendered
as yet any decision.  The respondents Calacday therefore, are not being deported.  Before the Board reaches a decision, it has
to conduct a hearing where the main issue will be the citizenship or alienage of the respondents.  Therefore, there is nothing so far for the
courts to review.

It is clear from the order complained of that the court below
misapprehended the import of the warrants issued by the Commissioner
herein.  Said warrants required the respondents
to be brought to the immigration authorities, not to be deported, but “to
show cause, if any there be, why he should not be deported from the
Philippines”, as expressly recited therein.  There was no case of “summarily
arresting and deporting” the respondents Calacday,
as unwarranted assumed by the court below.

The Calacdays have alluded in this
Court to certain documents in support of their claim to Philippine
citizenship.  The proper procedure is for
said respondents to appear before the Immigration and there submit these
documents as evidence on their part to shows cause why they should not be
deported.

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
warrant of arrest is limited by the Philippine Constitution to judges
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. 6 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 x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x  x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x

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 on 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 is 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 Moreno
vs. Vivo (L-22196, 30 June 1967, 20 SCRA, 562; PHILD. 1967B, page 741),
distinguish 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 power4 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 appearance at the hearings, without prejudice to more drastic
measures in case 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 hearing and other proceedings in their case, until final determination of
their right to at in the Philippines.  No
costs.

SO ORDERED.

Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Sanchez, Castro, Angeles, and Fernando,
JJ., concur.

4
“Tu Chuan Hai vs.
Commission of Immigration, 55 O.G. No. 28, pp. 5272, 5274-5275.