[G.R. No. L-25694. November 29, 1976.
IN THE MATTER OF THE PETITION FOR A WRIT OF HABEAS CORPUS, LUCIO
SANTOS, Petitioner-Appellee, v. THE COMMISSIONER, BUREAU OF
IMMIGRATION, Respondent-Appellant.
FACTS:
On January 18, 1966, the lower Court issued a writ of habeas corpus commanding the
Commissioner of Immigration to produce before it on January 19, 1966 at 8:30 A.M. the person
of Lucio Santos. On the said date, the commissioner asked for a 3-day extension which was
granted. The commissioner stated that he is not a Filipino citizen and he really is a Chinese named
Ong Hiong King who illegally entered the Ph from HK. He was detained by virtue of warrant of
arrest by the Commissioner.
ISSUE: Whether an alien can be arrested when there is already an order of deportation. (YES)
HELD:
Commissioner of the Board of Immigration can order the arrest of an alien only after there is
already an order of deportation.—The question that had to be decided in Que Chee Gan,
according to the ponente, Justice Barrera, was whether the power of the President to conduct an
investigation leading to deportation carries with it the authority to order an arrest It was answered
in the negative. Thus: “Under the express terms of the 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 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,
x x x 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.”
