6/7/2020 E-Library - Information At Your Fingertips: Printer Friendly With the declaration of nullity of DOJ Circular No. 41, our law enforcers are left in a quandary and without prompt recourse for preventing persons strongly suspected of committing criminal activities from evading the reach of our justice system by fleeing to other countries. Justice Antonio T. Carpio, in his Separate Concurring Opinion, makes mention of Republic Act No. 8239, otherwise known as the Philippine Passport Act of 1996, which expressly allows the Secretary of Foreign Affairs or any of the authorized consular officers to cancel the passport of a citizen, even those of persons under preliminary investigations, for crimes affecting national security and public safety. This course of action, while undoubtedly a legally viable solution to the DOJ's dilemma, would nevertheless require the conduct of a hearing, pursuant to Section 4[3] of the law. This would inevitably alert the said persons of interest of the cause and purpose of the cancellation of their passports that could, in turn, facilitate, rather than avert, their disappearance to avoid the processes of the court. As an alternative solution, it is my humble submission that the above predicament can be effectively addressed through the ex-parte issuance of precautionary warrants of arrest (PWAs) and/or precautionary hold departure orders (PHDOs) prior to the filing of formal charges and information against suspected criminal personalities. The issuance of PWAs or PHDOs is moored on Section 2, Article III of the Bill of Rights of the Constitution, to wit: Section 2. x x x 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. (Emphasis supplied) It bears noting that the warrant clause permits the issuance of warrants, whether it be a search warrant or a warrant of arrest, even prior to the filing of a criminal complaint or information in court. This interpretation finds support in the crafting of the provisions in our Rules of Criminal Procedure that govern the issuance of search warrants. As stated in Sections 4 to 6[4] of Rule 126, a search warrant may be issued by the courts if, after personally examining the complainants/applicants and the witnesses produced, they are convinced that probable cause exists for the issuance thereof. The rules do not require that 1) a criminal action or even a complaint must have already been filed against an accused; and that 2) persons of interest are notified of such application before law enforcement may avail of this remedy. The application for and issuance of a search warrant are not conditioned on the existence of a criminal action or even a complaint before an investigating prosecutor against any person. Anchored on Section 2, Article III of the Constitution, a rule on precautionary warrant of arrest, akin to a search warrant, may be crafted by the Court. The application will be done ex-parte, by a public prosecutor upon the initiative of our law enforcement agencies, before an information is filed in court, and only in certain serious crimes and offenses. Before filing the application, the public prosecutor shall ensure that probable cause exists that the crime has been committed and that the person sought to be elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/64165 58/70