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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 81510 March 14, 1990

HORTENCIA SALAZAR, petitioner,

vs.

HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas Employment
Administration, and FERDIE MARQUEZ, respondents.

Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:

This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and
seizure under Article 38 of the Labor Code, prohibiting illegal recruitment.
The facts are as follows:

xxx xxx xxx

1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City, in a sworn
statement filed with the Philippine Overseas Employment Administration (POEA for brevity) charged
petitioner Hortencia Salazar, viz:

04. T: Ano ba ang dahilan at ikaw ngayon ay narito at

nagbibigay ng salaysay.

S: Upang ireklamo sa dahilan ang aking PECC Card ay

ayaw ibigay sa akin ng dati kong manager. — Horty

Salazar — 615 R.O. Santos, Mandaluyong, Mla.

05. T: Kailan at saan naganap and ginawang panloloko sa

iyo ng tao/mga taong inireklamo mo?

S. Sa bahay ni Horty Salazar.

06. T: Paano naman naganap ang pangyayari?

S. Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha

ang PECC Card ko at sinabing hahanapan ako ng

booking sa Japan. Mag 9 month's na ako sa Phils. ay

company pero ayaw niyang ibigay and PECC Card

ko.

2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said complaint was
assigned, sent to the petitioner the following telegram:

YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE MARQUEZ POEA ANTI ILLEGAL RECRUITMENT
UNIT 6TH FLR. POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM ON NOVEMBER 6, 1987 AT 10
AM RE CASE FILED AGAINST YOU. FAIL NOT UNDER PENALTY OF LAW.

4. On the same day, having ascertained that the petitioner had no license to operate a recruitment
agency, public respondent Administrator Tomas D. Achacoso issued his challenged CLOSURE AND
SEIZURE ORDER NO. 1205 which reads:

HORTY SALAZAR

No. 615 R.O. Santos St.

Mandaluyong, Metro Manila

Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order No. 1022,
I hereby order the CLOSURE of your recruitment agency being operated at No. 615 R.O. Santos St.,
Mandaluyong, Metro Manila and the seizure of the documents and paraphernalia being used or
intended to be used as the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and Employment to recruit and
deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code in relation to
Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution under existing laws.

Done in the City of Manila, this 3th day of November, 1987.

5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B. Espiritu issued
an office order designating respondents Atty. Marquez, Atty. Jovencio Abara and Atty. Ernesto Vistro as
members of a team tasked to implement Closure and Seizure Order No. 1205. Doing so, the group
assisted by Mandaluyong policemen and mediamen Lito Castillo of the People's Journal and Ernie
Baluyot of News Today proceeded to the residence of the petitioner at 615 R.O. Santos St.,
Mandaluyong, Metro Manila. There it was found that petitioner was operating Hannalie Dance Studio.
Before entering the place, the team served said Closure and Seizure order on a certain Mrs. Flora Salazar
who voluntarily allowed them entry into the premises. Mrs. Flora Salazar informed the team that
Hannalie Dance Studio was accredited with Moreman Development (Phil.). However, when required to
show credentials, she was unable to produce any. Inside the studio, the team chanced upon twelve
talent performers — practicing a dance number and saw about twenty more waiting outside, The team
confiscated assorted costumes which were duly receipted for by Mrs. Asuncion Maguelan and
witnessed by Mrs. Flora Salazar.

6. On January 28, 1988, petitioner filed with POEA the following letter:

Gentlemen:

On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we respectfully request
that the personal properties seized at her residence last January 26, 1988 be immediately returned on
the ground that said seizure was contrary to law and against the will of the owner thereof.
Among our reasons are the following:

1. Our client has not been given any prior notice or hearing, hence the Closure and Seizure
Order No. 1205 dated November 3, 1987 violates "due process of law" guaranteed under Sec. 1,
Art. III, of the Philippine Constitution.
2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution which guarantees right of the
people "to be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose."

3. The premises invaded by your Mr. Ferdi Marquez and five (5) others (including 2 policemen) are
the private residence of the Salazar family, and the entry, search as well as the seizure of the
personal properties belonging to our client were without her consent and were done with unreasonable
force and intimidation, together with grave abuse of the color of authority, and constitute robbery and
violation of domicile under Arts. 293 and 128 of the Revised Penal Code.

Unless said personal properties worth around TEN THOUSAND PESOS (P10,000.00) in all (and
which were already due for shipment to Japan) are returned within twenty-four (24) hours from your
receipt hereof, we shall feel free to take all legal action, civil and criminal, to protect our client's
interests.

We trust that you will give due attention to these important matters.

7. On February 2, 1988, before POEA could answer the letter, petitioner filed the instant petition;
on even date, POEA filed a criminal complaint against her with the Pasig Provincial Fiscal, docketed as IS-
88-836.1

On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be
barred are already fait accompli, thereby making prohibition too late, we consider the petition as one for
certiorari in view of the grave public interest involved.

The Court finds that a lone issue confronts it: May the Philippine Overseas Employment
Administration (or the Secretary of Labor) validly issue warrants of search and seizure (or
arrest) under Article 38 of the Labor Code? It is also an issue squarely raised by the petitioner
for the Court's resolution.
Under the new Constitution, which states:

. . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally 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. 2

it is only a judge who may issue warrants of search and arrest. 3 In one case, it was
declared that mayors may not exercise this power:

xxx xxx xxx

But it must be emphasized here and now that what has just been described is the state of the law as it
was in September, 1985. The law has since been altered. No longer does the mayor have at this time the
power to conduct preliminary investigations, much less issue orders of arrest. Section 143 of the Local
Government Code, conferring this power on the mayor has been abrogated, rendered functus officio by
the 1987 Constitution which took effect on February 2, 1987, the date of its ratification by the Filipino
people. Section 2, Article III of the 1987 Constitution pertinently provides that "no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally 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 person or things to be seized." The
constitutional proscription has thereby been manifested that thenceforth, the function of determining
probable cause and issuing, on the basis thereof, warrants of arrest or search warrants, may be validly
exercised only by judges, this being evidenced by the elimination in the present Constitution of the
phrase, "such other responsible officer as may be authorized by law" found in the counterpart provision
of said 1973 Constitution, who, aside from judges, might conduct preliminary investigations and issue
warrants of arrest or search warrants. 4

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was meant to exercise,
prosecutorial powers, and on that ground, it cannot be said to be a neutral and detached "judge" to
determine the existence of probable cause for purposes of arrest or search. Unlike a magistrate, a
prosecutor is naturally interested in the success of his case. Although his office "is to see that justice is
done and not necessarily to secure the conviction of the person accused," he stands, invariably, as the
accused's adversary and his accuser. To permit him to issue search warrants and indeed, warrants of
arrest, is to make him both judge and jury in his own right, when he is neither. That makes, to our mind
and to that extent, Presidential Decree No. 1936 as amended by Presidential Decree No. 2002,
unconstitutional. 5

Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by
Presidential Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential
Decree No. 1693, in the exercise of his legislative powers under Amendment No. 6 of the 1973
Constitution. Under the latter, the then Minister of Labor merely exercised recommendatory powers:

(c) The Minister of Labor or his duly authorized representative shall have the power to recommend
the arrest and detention of any person engaged in illegal recruitment. 6

On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose of
giving more teeth to the campaign against illegal recruitment. The Decree gave the Minister of Labor
arrest and closure powers:

(b) The Minister of Labor and Employment shall have the power to cause the arrest and detention
of such non-licensee or non-holder of authority if after proper investigation it is determined that his
activities constitute a danger to national security and public order or will lead to further exploitation of
job-seekers. The Minister shall order the closure of companies, establishment and entities found to be
engaged in the recruitment of workers for overseas employment, without having been licensed or
authorized to do so. 7

On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor
Minister search and seizure powers as well:

(c) The Minister of Labor and Employment or his duly authorized representatives shall have the
power to cause the arrest and detention of such non-licensee or non-holder of authority if after
investigation it is determined that his activities constitute a danger to national security and public order
or will lead to further exploitation of job-seekers. The Minister shall order the search of the office or
premises and seizure of documents, paraphernalia, properties and other implements used in illegal
recruitment activities and the closure of companies, establishment and entities found to be engaged in
the recruitment of workers for overseas employment, without having been licensed or authorized to do
so. 8

The above has now been etched as Article 38, paragraph (c) of the Labor Code.

The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its twilight
moments.

We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest
warrants. Hence, the authorities must go through the judicial process. To that extent, we declare
Article 38, paragraph (c), of the Labor Code, unconstitutional and of no force and
effect.

The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken. Vivo involved a
deportation case, governed by Section 69 of the defunct Revised Administrative Code and by Section 37
of the Immigration Law. We have ruled that in deportation cases, an arrest (of an undesirable alien)
ordered by the President or his duly authorized representatives, in order to carry out a final decision of
deportation is valid. 10 It is valid, however, because of the recognized supremacy of the Executive in
matters involving foreign affairs. We have held: 11

xxx xxx xxx

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes, 228 U.S. 549, 57
L. Ed. 960, 40 Phil. 1122, 1125). That power may be exercised by the Chief Executive "when he deems
such action necessary for the peace and domestic tranquility of the nation." Justice Johnson's opinion is
that when the Chief Executive finds that there are aliens whose continued presence in the country is
injurious to the public interest, "he may, even in the absence of express law, deport them". (Forbes vs.
Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569; In re McCulloch Dick, 38 Phil. 41).
The right of a country to expel or deport aliens because their continued presence is detrimental to public
welfare is absolute and unqualified (Tiu Chun Hai and Go Tam vs. Commissioner of Immigration and the
Director of NBI, 104 Phil. 949, 956). 12

The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It (the
power to order arrests) can not be made to extend to other cases, like the one at bar. Under the
Constitution, it is the sole domain of the courts.

Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was validly
issued, is clearly in the nature of a general warrant:

Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order No. 1022,
I hereby order the CLOSURE of your recruitment agency being operated at No. 615 R.O. Santos St.,
Mandaluyong, Metro Manila and the seizure of the documents and paraphernalia being used or
intended to be used as the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and Employment to recruit and
deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code in relation to
Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws. 13

We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and void,
thus:

xxx xxx xxx

1) All printing equipment, paraphernalia, paper, ink, photo equipment, typewriters, cabinets,
tables, communications/ recording equipment, tape recorders, dictaphone and the like used and/or
connected in the printing of the "WE FORUM" newspaper and any and all documents/communications,
letters and facsimile of prints related to the "WE FORUM" newspaper.

2) Subversive documents, pamphlets, leaflets, books, and other publications to promote the
objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-
a-Fire Movement and April 6 Movement; and

3) Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive
materials and propaganda, more particularly,

1) Toyota-Corolla, colored yellow with Plate No. NKA 892;

2) DATSUN, pick-up colored white with Plate No. NKV 969;

3) A delivery truck with Plate No. NBS 542;

4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and

5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking "Bagong Silang."

In Stanford v. State of Texas, the search warrant which authorized the search for "books, records,
pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments
concerning the Communist Parties of Texas, and the operations of the Community Party in Texas," was
declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any
evidence in connection with the violation of SDC 13-3703 or otherwise" have been held too general, and
that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used
to violate Sec. 54-197 of the Connecticut General Statutes (the statute dealing with the crime of
conspiracy)" was held to be a general warrant, and therefore invalid. The description of the articles
sought to be seized under the search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in English history; the era of
disaccord between the Tudor Government and the English Press, when "Officers of the Crown were
given roving commissions to search where they pleased in order to suppress and destroy the literature of
dissent both Catholic and Puritan." Reference herein to such historical episode would not be relevant for
it is not the policy of our government to suppress any newspaper or publication that speaks with "the
voice of non-conformity" but poses no clear and imminent danger to state security. 14

For the guidance of the bench and the bar, we reaffirm the following principles:

1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other, who may
issue warrants of arrest and search:

2. The exception is in cases of deportation of illegal and undesirable aliens, whom the
President or the Commissioner of Immigration may order arrested, following a final order of
deportation, for the purpose of deportation.

WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared
UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials seized
as a result of the implementation of Search and Seizure Order No. 1205.

No costs.

SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Footnotes

1 Rollo, 19-24; emphases in the original.

2 CONST., art. III, sec. 2.

3 See Ponsica v. Ignalaga, No. 72301, July 31, 1987, 152 SCRA 647; Presidential Anti-Dollar Salting
Task Force v. Court of Appeals, G.R. No. 83578, March 16, 1989.

4 Ponsica, supra, 662-663.

5 Presidential Anti-Dollar Salting Task Force, supra, 21.

6 Pres. Decree No. 1693, "FURTHER AMENDING ARTICLE 38 OF THE LABOR CODE BY MAKING
ILLEGAL RECRUITMENT A CRIME OF ECONOMIC SABOTAGE."

7 Supra, sec. 1.

8 Pres. Decree No. 2018, "FURTHER AMENDING ARTICLES 38 AND 39 OF THE LABOR CODE BY
MAKING ILLEGAL RECRUITMENT A CRIME OF ECONOMIC SABOTAGE AND PUNISHABLE WITH
IMPRISONMENT."
9 No. L-22196, June 30, 1967, 20 SCRA 562.

10 Qua Chee Gan v. Deportation Board, No. L-10280, September 30, 1963, 9 SCRA 27; Vivo v.
Montesa, No. L-24576, 24 SCRA 155.

11 Go Tek v. Deportation Board, No. L-23846, September 9, 1977, 79 SCRA 17.

12 Supra, 21-22.

13 Rollo, id., 15.

14 Burgos, Sr. v. Chief of Staff, AFP No. 64261, December 26, 1984, 133 SCRA 800, 814-816.

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