PETITION TO QUASH MISSION ORDER NO. MCL/A-X-09-0002

REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF JUSTICE

BUREAU OF IMMIGRATION

MANILA

 

 

IN RE:   PETITION TO QUASH

  1. MISSION ORDER NO. MCL/A-X-09-0002           Case No. ________

 

JEFFREY ALAN EVANS,

                                      Petitioner,

 

X——————————————X

 

 

PETITION TO QUASH

MISSION ORDER NO. MCL/A-X-09-002

 

 

        Petitioner, by counsel, respectfully states:

 

 

  1. The Executive Director & Chairman, Regionalization Program of the Bureau of Immigration, Franklin Z. Litaua, issued MISSION ORDER NO. MCL/A-X-09-0002 dated 08 October 2009 directing the following:

 

  1. validate the admission status, immigration documents, existence and sufficiency of investment in the country (for investor’s/retiree’s/13-quota visa holder), and activities of foreign subject national and, if found to be in violation of Philippine Immigration Law, bring him to the Bureau for further disposition.

 

 

  1. Based on said Mission Order, Immigration employees Maclin D. Lanto, Rashid Ragiris, Basher Pagariungan and Camid Musor, Jr. apprehended petitioner Jeffrey Alan Evans, American National on 12 October 2009. He has been deprived of his liberty since then.

 

  1. The Mission Order is actually a warrant of arrest  because it effectively deprived an individual of his precious liberty.
  2. The Mission Order is illegal and the deprivation of liberty by the Immigration Official of Mr. Jeffrey Alan Evans by virtue of said Mission Order  is a serious violation of Executive Order No. 287 issued on 04 September 2000 by President Joseph Estrada. Quoted is the pertinent provision of the said EO:

SECTION 1. Authority to Issue Mission Orders for Verification and Investigation of Suspected Illegal Aliens .–  Upon a well-founded and reasonable determination by the Commission of Immigration, based on available and verified civilian, immigration, or military intelligence reports, that an alien has committed, is actually committing or is about to about to commit an act of omission in violation of immigration laws, rules and regulations, or in violation of Philippine laws, rules and regulations, which may constitute grounds for deportation, the Commissioner of Immigration or in his absence, the Acting Commissioner of Immigration is hereby authorized, in the interest of national security, public safety and/or national interests, to issue a mission order  directing appropriate officers of the Bureau of Immigration, whether organic or on detail, to conduct verification and investigation operations against the alien or aliens concerned, and if probable cause exists, to effect a warrantless arrest of such alien or aliens in accordance with Section 5, Rule 113 of the Rules of Court, if found in flagrante violating Philippine Immigration laws. (Emphasis supplied).

 

  1. The Mission Order is illegal and the deprivation of liberty by the Immigration Official of Mr. Jeffrey Alan Evans by virtue of said Mission Order  is a serious violation of the Constitution because it was issued by a person unauthorized to do so. Deprivation of liberty can only be done through a warrant of arrest issued by a judge, to quote:

Unquestionably, the exercise of the power to order the arrest of an individual demands the exercise of discretion by the one issuing the same, to determine whether under specific circumstances, the curtailment of the liberty of such person is warranted. The fact that the Constitution itself, as well as the statute relied upon, prescribe the manner by which the warrant may be issued, conveys the intent to make the issuance of such warrant dependent upon conditions the determination of the existence of which requires the use of discretion by the person issuing the same. In other words, the discretion of whether a warrant of arrest shall issue or not is personal to the one upon whom the authority devolves. And authorities are to the effect that while ministerial duties may be delegated, official functions requiring the exercise of discretion and judgment, may not be so delegated. Indeed, an implied grant of power, considering that no express authority was granted by the law on the matter under discussion, that would serve as a curtailment or limitation on the fundamental right of a person, such as his security to life and liberty, must be viewed with caution, if we are to give meaning to the guarantee contained in the Constitution. If this is so, then a delegation of that implied power, nebulous as it is, must be rejected as inimical to the liberties of the people. The guarantees of human rights and freedom can not be made to rest precariously on such a shaky foundation. [1]

 

  1. Even assuming for the sake of argument that the Mission Order was validly issued, the circumstances in the arrest of petitioner Evans do not meet the requirements of a warrantless arrest. The arresting officers, namely, Maclin D. Lanto, Rashid Ragiris, Basher Pagariungan and Camid Musor, Jr. described the arrest as follows:

 

  1. That a Tipster informed us that Mr. Evans will go to Bangkok Night Restaurant which he also owned, managed, and operated. At around 12:30 pm Mr. Evans was doing routine check of his establishment, undersigned apprehended Mr. Evan after introducing ourselves as agent of Bureau at the same time informing him of his rights guaranteed in our constitution in a plain and clear English Language which he speaks and understands. Mr. Jeffrey Alan Evan did not resist and voluntarily agreed to go with us to Cagayan de Oro Immigration Office. (Underscoring supplied).

 

 

  1. His arrest was therefore based on warrantless arrest provided by the Rules on Criminal Procedure.

 

  1. The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on  warrantless arrest provide:

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the author of a crime which had just been committed; (c) arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined while his case is pending.

For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5 to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.[2]

  1. A blow too soon struck for freedom is preferred than a blow too late.”[3]

 

WHEREFORE, it is respectfully prayed that MISSION ORDER NO. MCL/A-X-09-0002 be quashed and petitioner be released immediately.

 

 Petitioner further prays for other remedies and relief that are equitable under the circumstances.

 

Aguilar Salvador & Tria Law Offices

Rm. 210 Heart of the City Condominium

40 Sgt., Esguerra Ave., Quezon City.

Tel Nos: (02) 924-2299; 928-8989

E-mail address: lca@aguilarassociates.com

 

                           By:

 

 

LEONARDO C. AGUILAR, JR.

Counsel for Petitioner

Roll of Attorney’s 32825

PTR No. 1195158/1-7-09/Q.C.

IBP No. 751741/1-8-09/Bul

MCLE Compliance No. II- 0016855

 

 

 

Copy furnished:

 

Maclin D. Lanto

Rashid Ragiris

Basher Pagariungan

Camid Musor

Centro Mariano Building

2bd Floor Room 205

Osmena Street, Cagayan de Oro City

 

 

NOTICE OF H EARING

 

To: Legal and Investigation Division

 

Greetings:

 

        Please take notice that petitioner is submitting the foregoing petition for approval of this Honorable Office on 26 and 29 October at 8.30 in the morning.

 

 

                                                        Leonardo C. Aguilar

 

 

 


[1] (Qua Chee Gan, et al. v. The Deportation Board, G.R. No. L-10280, September 30, 1963.)

 

[2] People vs. Laguio Jr. G.R. No. 128587 March 16,2007

 

[3] Francisco Chavez vs. Raul M. Gonzales, G. R. No. 168388, 15 February 2008

 

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