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
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