6/7/2020
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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 things to be seized which may be anywhere in the Philippines.
Section 5. Examination of complainant; record. — The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in writing
and under oath, the complainant and the witnesses he may produce on facts personally
known to them and attach to the record their sworn statements, together with the
affidavits submitted. (4a)
Section 6. Issuance and form of search warrant. — If the judge is satisfied of the
existence of facts upon which the application is based or that there is probable cause to
believe that they exist, he shall issue the warrant, which must be substantially in the
form prescribed by these Rules. (5a)
SEPARATE OPINION
LEONEN, J.:
I concur that Department of Justice Circular No. 41, series of 2010, is unconstitutional.
The Department of Justice is neither authorized by law nor does it possess the inlierent
power to issue hold departure orders, watchlist orders, and allow departure orders
against persons under preliminary investigation.
However, I have reservations regarding the proposed doctrine that the right of persons
to travel can only be impaired by a legislative enactment as it can likewise be burdened
by other constitutional provisions.
The pertinent Constitutional provision on the right to travel is Article III, Section 6,
which states:
Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest of
national security, public safely, or public health, as may be provided by law.
(Emphasis supplied)
The right to travel, as a concept, was directly tackled in Marcos v. Manglapus,[1] an
early case decided under the 1987 Constitution. It dealt specifically with the right of
former President Marcos to return to the Philippines. In resolving the case, this Court
distinguished between the right to return to one's country and the general right to
travel. The right to return to one's country was treated separately and deemed
excluded from the constitutionally protected right to travel.[2]
In my view, the right to travel should not be given such a restrictive interpretation. In
the broad sense, the right to travel refers to the "right to move from one place to
another."[3] The delimitation set in Marcos effectively excludes instances that may
elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/64165
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