Precautionary Hold Departure Order

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The Supreme Court issued A.M. 18-07-05 SC on August 7, 2018, that laid down a new rule that would prevent people suspected of committing a crime from going out of the country.  Voting 11-1, the SC (under then-Acting Chief Justice Antonio T. Carpio) approved The Rule on Precautionary Hold Departure Order (PHDO), OCA Circular 194-2018, in place of a watch list order (WLO) by the Department of Justice (DOJ). Associate Justice Marvie Leonen was the lone dissenter.

The SC issued the new rule after it struck down the power of the DOJ to prevent the flights of respondents facing criminal complaints under DOJ Circular  41. The new rule of the SC strips the DOJ of such powers.  It is now the investigating prosecutor who can file with the appropriate court for a PHDO.

In an earlier April 2018 decision, the Supreme Court granted the petitions of former President and current House Speaker Gloria Macapagal-Arroyo, First Gentleman Jose Miguel Arroyo and former Philippine Amusement and Gaming Corp. Chairman Ephrain Genuino and his two children to declare as unconstitutional DOJ Circular  41 for being violative of the right to travel under Article III, Section 6, of the 1987 Constitution. The DOJ Circular had been used by then-Justice Secretary and now detained Sen. Leila M. de Lima in issuing WLOs to prevent them from leaving the country back in 2011 in connection with an ongoing investigation on election fraud they allegedly committed. In its July 17, 2018, ruling, the SC affirmed its April decision that DOJ Department Circular 41, which allows the DOJ to issue Hold Departure Orders (HDOs), WLOs and Allow Departure Order (ADOs) is unconstitutional for violating the right to travel.

A PHDO is an order in writing issued by a court commanding the Bureau of Immigration to prevent any attempt by a person suspected of a crime to depart from the Philippines, which shall be issued ex-parte in cases involving crimes where the minimum of the penalty prescribed by law is at least six years and one day, or when the offender is a foreigner regardless of the imposable penalty. (Section 1 OCA 194-2018)

“The application for a precautionary hold departure order may be filed by a prosecutor with any Regional Trial Court within whose territorial jurisdiction the alleged crime was committed: Provided, that for compelling reasons, it can be filed with any Regional Trial Court within the judicial region where the crime was committed if the place of the commission of the crime is known; Provided, further, that the Regional Trial Courts in the City of Manila, Quezon City Cebu City, Iloilo City, Davao City and Cagayan de Oro City shall also have the authority to act on applications filed by the prosecutor based on complaints instituted by the National Bureau of Investigation, regardless where the alleged crime was committed.” (Section 2)

“Upon motion by the complainant in a criminal complaint filed before the office of the city or provincial prosecutor, and upon a preliminary determination of probable cause based on the complaint and attachments, the investigating prosecutor may file an application in the name of the People of the Philippines for a PHDO with the proper Regional Trial Court. The application shall be accompanied by the complaint-affidavit and its attachments, personal details, passport number and a photograph of the respondent, if available.” (Section 3)

“A precautionary hold departure order shall not issue except upon determination by the judge, in whose court the application is filed, that probable cause exists, and there is a high probability that respondent will depart from the Philippines to evade arrest and prosecution of crime against him or her. The judge shall personally examine under oath or affirmation, in the form of searching questions and answers in writing, the applicant and the witnesses he or she may produce on facts personally known to them and attaching to the record their sworn statements.

If the judge finds that probable cause exists and there is a high probability that the respondent will depart, he or she shall issue the PHDO and direct the Bureau of Immigration to hold and prevent the departure of the respondent at any Philippine airport or ports. Otherwise, the judge shall order the dismissal of the application.” (Section 4)

Since the finding of probable cause by the judge is solely based on the complaint and is specifically issued for the purpose of issuing the PHDO, the same shall be without prejudice to the resolution of the prosecutor of the criminal complaint considering the complaint-affidavit, counter-affidavit, reply-affidavit and the evidence presented by both parties during the preliminary investigation. If the prosecutor after preliminary investigation dismisses the criminal complaint for lack of probable cause, then the respondent may use the dismissal as a ground for the lifting of the PHDO with the Regional Trial Court that issued the order. If the prosecutor finds probable cause and files the criminal information, the case with the court that issued the PHDO, on motion of the prosecutor shall be consolidated with the court where the criminal information is filed.” (Section 5)

The precautionary hold departure order shall indicate the name of the respondent, his or her alleged crime, the time and place of its commission, and the name of the complainant. A copy of the application, personal details, passport number, photograph of the respondent, if available, shall be appended to the order. The order shall be valid until lifted by the issuing court as may be warranted by the result of the preliminary investigation.

The court shall furnish the Bureau of Immigration with a duly certified copy of the hold departure order within 24 hours from issuance.” (Section 6)

“The respondent may file a verified motion before the issuing court for the temporary lifting of PHDO on meritorious ground; that, based on the complaint-affidavit and the evidence that he or she will present, there is doubt that probable cause exists to issue the PHDO or it is shown that he or she is not a flight risk: Provided, that the respondent posts a bond; Provided, further, that the lifting of the PHDO is without prejudice to the resolution of the preliminary investigation against the respondent.” (Section 7)

“Respondent may ask the issuing court to allow him or her to leave the country upon posting of a bond in an amount to be determined by the court subject to the conditions set forth in the Order granting the temporary lifting of the PHDO.” (Section 8)

The new rule on precautionary hold departure order is a welcome reform in the criminal justice system.  It is hoped that there will be more to come.  But then again, reforms will be inutile if those who are tasked with dispensing justice remain corrupt.  They are the ones who need to be reformed!