The Supreme Court (SC) has approved a rule on the issuance of a Precautionary Hold Departure Order (PHDO) against
individuals facing criminal
What is a PHDO? In the current system, a Hold Departure Order (HDO)
can be issued only by courts after the person has formally been charged
there.
The PHDO will allow prosecutors to prevent the subject of a complaint from
fleeing the country even before the formal filing of charges.
A PHDO applies only to cases “involving crimes where the minimum
penalty prescribed by law is at least six years and one day.”
Like the usual HDO, the PHDO also has to be issued by the court whose
jurisdiction covers the place where the crime was committed. If the
specifics are unknown, the issuing court can be anywhere from within the
judicial region where the crime was committed.
“The judge in a PHDO application must also determine that there is a high
probability that the subject will depart from the Philippines to evade arrest
and prosecution of crime against him or her,” SC Spokesman Theodore Te
explained in a news conference on Tuesday.
Te added: “The preliminary finding of probable cause is solely based on the
complaint and is for the sole purpose of issuing the PHDO and shall be
without prejudice to the resolution by the prosecutor of any criminal
complaint during the preliminary investigation.”
The PHDO is valid until the court lifts it.
Like a warrant of arrest for bailable offenses, the person can pay a bond and
apply for the PHDO to be lifted.
Why the need for a PHDO? The PHDO was triggered by the legal
controversy from 2011 when former justice secretary Leila de Lima issued
an HDO against former president Gloria Macapagal Arroyo.
charges.
This was announced by SC Spokesman Theodore Te in a press briefing after the High Court's en banc session.
Te said the High Tribunal, voting 11-1, approved the rule on PHDO – a written court order directing the Bureau of Immigration to prevent any attempt
to leave the country by a person suspected of a crime, meted with a minimum penalty of at least six years and one day.
The rule on PHDO will take effect within 15 days of publication in two newspapers of general publication.
The High Court said a prosecutor can file a PHDO application with “any regional trial court within whose territorial jurisdiction the alleged crime was
committed.”
“For compelling reasons, it may be filed with any regional trial court within the region where the crime was committed if the place of the commission of
the crime is known. 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 authority to act on applications filed by the prosecutor based on complaints instituted by the National Bureau of Investigation, regardless of
where the alleged crime was committed,” it added.
On the other hand, the SC assured that the issuance of a PHDO will not affect any findings of probable cause in the preliminary investigations of
criminal complaints before the DOJ’s National Prosecution Service (NPS) and its regional and city offices.
“The preliminary finding of probable cause is solely based on the complaint and is for the sole purpose of issuing PHDO and shall be without the
prejudice to the resolution by the prosecutor of any criminal complaint during the preliminary investigation,” it said.
The PHDO shall remain valid until recalled by the issuing court.
“Once issued, the PHDO may be lifted by a verified motion filed by the respondent questioning the existence of probable cause or a showing that she or
he is not a flight risk. The PHDO may also be lifted to allow him or her to leave the country upon posting of a bond in an amount to be determined by
the court,” it stated.
The Court said the PHDO may be applied for in the same manner that a search warrant may be issued, thus, a judge must first determine probable
cause upon personal examination of witnesses under oath or affirmation.
In addition, the judge in a PHDO application must also determine that there is a high probability that the subject will depart from the Philippines to
evade arrest and prosecution of crime against him or her.
“The preliminary finding of probable cause is solely based on the complaint and is for the sole purpose of issuing the PHDO and shall be without
prejudice to the resolution by the prosecutor of any criminal complaint during the preliminary investigation,” the Court said.
The ruling on PHDO issuance comes after the High Court affirmed its ruling, which declared as unconstitutional the Department of Justice's issuance of
watch list orders (WLOs), hold departures orders and allow departure orders to suspected criminals.
In July, the SC affirmed its April 17, 2018 decision granting the petitions of former President and current House Speaker Gloria Macapagal-Arroyo, her
husband Jose Miguel Arroyo, and former Philippine Amusement and Gaming Corporation (PAGCOR) chairman Ephraim Genuino and his two children
to declare as unconstitutional DOJ Circular No. 41.
The SC struck down the said circular 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 De Lima in issuing WLOs to prevent them from leaving the
country back in 2011. (PNA)
The prosecutor, even as parties exchange affidavits during preliminary investigation, can
apply for one to the court
When a person commits a crime, a case is not automatically filed with the court. Instead, it
generally goes through a procedure called preliminary investigation. The fiscal acts like a
judge and determines whether the complaint deserves prosecution. That is, if it is worthy of
elevation to the court for trial. And, usually, it takes some time.
It entails filing a complaint (called complaint-affidavit) by the aggrieved party, an answer
(counter-affidavit) by the person being held criminally responsible called respondent and if
parties opt to, a reply to the answer (reply-affidavit of complainant) and a response to the reply
(rejoinder-affidavit by respondent).
After that the prosecutor will determine whether the party sued is probably guilty of the crime.
Note that the prosecutor does not say respondent is guilty, but only declares that he may be.
And for that, the case proceeds to the court. The court issues a warrant of arrest. And if
applied for by the prosecution, the court can issue a hold departure order (HDO).
As a result, the person being held liable, who is now called an accused, is barred from leaving
the country. That is due process.
A person’s constitutional right to travel is not easily curtailed. Only after the procedure
discussed above is followed can the HDO be issued.
But where does the problem lie? By the time the case reaches the court, the accused may have
long left the country. Sensing he will be indicted, the accused decides to flee. He evades
prosecution.
The court cannot proceed to trial. Case is archived. And all the time and effort the complainant
spent during the preliminary investigation go down the drain.
In my years of practice as a litigator, I feel that, that seems to be the flaw in procedure.
The time between the preliminary investigation and filing of the case affords the respondent a
chance to escape. I, in fact, inform my clients about such possibility, as no HDO can be issued
while preliminary investigation is ongoing.
From what I have read on the news recently, the Supreme Court on 7 August 2018 approved
the rule on the issuance of precautionary hold departure orders (PHDO). I have not yet seen
the rules in the flesh. They have yet to be published in major dailies as of this writing.
But from what I gathered, the rules allow the issuance of a PHDO even during preliminary
investigation. Thus, the word “precautionary” is added to “hold departure order.” The
prosecutor, even as parties exchange affidavits (i.e., complaint, counter, reply and rejoinder)
during preliminary investigation, can apply for one to the court. The court, after determining
the possibility of flight by respondent, can already issue the PHDO. So here, even when there
is no determination of probable cause yet, the respondent may already be barred from leaving
the country.
A person’s constitutional right to travel is not easily curtailed. Only after the procedure
discussed above is followed can the HDO be issued.
The moment he sets foot on our airports or seaports, immigration authorities can and will stop
him. This obviates respondent’s possibility of flying out the country even before a case is filed
in court. This also forecloses the probability of the case files gathering dust in the court’s
archives. In our jurisdiction, the court can only proceed with the case after it acquires
jurisdiction over the accused. And that is upon the accused’s arrest or voluntary surrender. Of
course, the aggrieved can have the accused extradited back to the Philippines. But that is
another story altogether.
How about the respondent, what happens if a PHDO is issued against him? People usually
dread the extreme. Is he arrested? Thrown behind bars? Disallowed from seeing his family?
Secluded from the public? Nothing of that sort. All there is, is that he is barred from stepping
out of the Philippines. He can roam freely within the country. Anywhere he wants.
So, if sued in Manila and he opts to stay in the very ends of the country, say Babuyan Islands
or Sulu, so can he. Also, even if a PHDO is issued, respondent is not absolutely barred from
leaving the country. He can still ask permission from the court. The court, exercising its sound
discretion, after looking into the circumstances, may still allow him to leave. Usually, the
court requires him to post a hefty bond to guarantee his return.
Finally, from what I gathered, a PHDO can only be applied for if the imposable penalty for the
crime charged is imprisonment of more than six years. If shorter, the court will outright deny
the application. So, bear in mind that not in all crimes can the prosecution ask the court for
one.
I am eager to see the rules. I hope they are published soon. The sooner they are, the earlier
they take effect. The PHDO certainly helps secure the accused’s presence when the case
reaches the court. And that is something the HDO cannot afford under the present rules.
The Supreme Court issued new rules on precautionary hold departure orders (PHDO). The Rule on
Precautionary Hold Departure Orders was approved by the Supreme Court on April 7, 2018. It will take
effect 15 days after it is published in a newspaper of general circulation. In the meantime, the applications
for hold departure orders pending before the trial courts under the old rules should still be acted upon as
soon as possible.
The Supreme Court issued the Rules on Precautionary Hold Departure Orders on August 7, 2018
Precautionary Hold Departure Orders or PHDO
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 from leaving to depart the Philippines.”
The rules on PHDO authorizes the Regional Trial Court (RTC) to issue a PHDO in cases where an
accused is facing a charge where the minimum penalty is at least six (6) years and one (1) day.
Under the current rule (OCA Circular 39-97), the RTC can only issue issue a HDO when the case is
already before it, and has already undergone preliminary investigation.
Major difference between a PHDO and a HDO
But a PHDO is different from a HDO.
There is no need for preliminary investigation for the RTC to issue a PHDO (unlike an HDO). It only
requires a determination that “that there is a high probability that the subject will depart from the
Philippines to evade arrest and prosecution of a crime against him or her.”
The precautionary hold departure order is issued ex parte. This means that it can be issued only with the
the participation of the prosecutor. A prosecutor applies for a PHDO before a regional trial court in the
same way that he applies for a search warrant. Based on what the complaint states, the judge makes a
finding of probable cause solely for the purpose of issuing a PHDO. Afterwards, a copy of the PHDO
along with the identity details of the accused are transmitted to the Bureau of Immigration where it would
be put on the HDO list.
This finding is “without prejudice to the resolution by the prosecutor of any criminal complaint during the
preliminary investigation.” That means that once the prosecutor conducts preliminary investigation it can
be lifted. In preliminary investigation, the accused presents his defenses and the prosecutor then
determines if there is probable cause. If there is no probable cause, the PHDO is withdrawn.
The PHDO remains valid until the court recalls it. But the accused can file a motion questioning the
existence of a probable cause being a flight risk. This is something that those with business overseas
would normally ask. They may need to go abroad for meetings or other company-related purposes which
can suddenly crop up and it would be extremely impractical to conduct court hearings each time to allow
the person to leave. For those who simply want to take a family vacation, posting of a bond will probably
be sufficient since the vacation is planned ahead of time, and the bond can be recovered when the accused
comes back.
Just because some people need to fly out of the country frequently does no make them a flight risk. What
makes a person a flight risk is that there is a high probability that the person will not come back after he
leaves.
The exception to the rule on territorial jurisdiction is the authority given to regional trial courts in the City
of Manila, Quezon City, Cebu City, Iloilo City, Davao City, and Cagayan de Oro City to act on
applications filed by the prosecutor based on complaints instituted by the National Bureau of
Investigation, regardless of where the alleged crime was committed.
Only Associate Justice Marvic Leonen dissented from the majority.
The SC allows issuance of precautionary hold departure orders only for those crimes punishable by 6
years and 1 day and higher because these are the crimes where imprisonment is required. Those who
commit crimes punishable by less than are covered under the Probation Law, which allows them freedom
under probation. Most people will not uproot themselves from their lives here if they can still live freely
under probation, but certain imprisonment might cause them to leave.
PROSECUTORS may now avail themselves of a precautionary hold
departure order (PHDO) to prevent individuals facing criminal charges
punishable by at least six years and one day from leaving the country.
At a press briefing, SC spokesman Theodore Te said the High Tribunal
approved during its regular en banc session a Rule on PHDO which is an
ex-parte order in writing issued by a court directing the Bureau of
Immigration to prevent any attempt by a person suspected of a crime to
depart from the Philippines.
The PHDO rule was issued as an offset of the Court’s final decision issued
last April 17, 2018 declaring Department of Justice (DOJ) Circular No. 41
as unconstitutional for impairing the right of an individual to travel as
guaranteed under the Constitution.
The Court also held there was no legal basis for the issuance of the circular
because of the absence of a law authorizing the Secretary of Justice to issue
HDO and WLO or Allow Departure Orders (ADO).
The circular, which was signed by then acting justice secretary Alberto
Agra, empowered justice secretaries to issue hold departure orders and
watchlist orders which are typically issuances that only courts can do.
The circular was used as basis by then Justice Secretary Leila de Lima in
imposing a travel ban against former President and now House Speaker
Rep. Gloria Macapagal-Arroyo and her husband Miguel Arroyo pending
the resolutions of the plunder and electoral sabotage charges filed against
them.
Te explained that the issuance of PHDO was also in line with Article VIII,
Section 5(5) of the 1987 Constitution on the rule-making power of the
SC.
The Court said the PHDO may be applied for in the same manner that a
search warrant may be issued, thus, a judge must first determine probable
cause upon personal examination of witnesses under oath or affirmation.
In addition, the judge in a PHDO application must also determine that
there is a high probability that the subject will depart from the Philippines
to evade arrest and prosecution of crime against him or her.
“The preliminary finding of probable cause is solely based on the
complaint and is for the sole purpose of issuing the PHDO and shall be
without prejudice to the resolution by the prosecutor of any criminal
complaint during the preliminary investigation,” the Court said.
Te said a PHDO may be filed by a prosecutor with any regional trial court
within whose territorial jurisdiction the alleged crime happened.
For compelling reasons, the Court said it may 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.
Furthermore, the Court said the regional trial courts in Manila City,
Quezon City, Cebu City, Iloilo City, Davao City and Cagayan de Oro City
will have the authority to act on applications filed by the prosecutor based
on complaints instituted by the National Bureau of Investigation,
regardless of where the alleged crime was committed.
“Any PHDO shall be valid until recalled by the court. Once issued, the
PHDO may be lifted by a verified motion filed by the respondent
questioning the existence of probable cause or a showing that she or he is
not a flight risk,” the Court added.
“The PHDO may also be lifted to allow him or her to leave the country
upon posting of a bond in an amount to be determined by the Court,” it
added.
The Rule, according to the Court, will take effect within 15 days following
publication in newspapers of general circulation.
What the PHDO Rules say
A PHDO will prevent a person suspected of a crime from departing the
country. Upon motion by the complainant, during the pendency of a
preliminary investigation for a criminal complaint, a prosecutor may
apply for a PHDO with the proper Regional Trial Court ("RTC"), when
(a) there is high probability that the subject will depart from the
Philippines to evade arrest and prosecution; (b) there is a preliminary
finding by the RTC Judge of probable cause; and (c) the crime is
punishable with imprisonment of at least 6 years and 1 day. The PHDO
may be issued without notice and hearing (ex-parte).
The respondent may file a verified motion for temporary lifting of the
PHDO before the RTC which issued the PHDO upon the following
grounds: (a) there is doubt that probable cause exists based on the
complaint-affidavit and the evidence that he will present; and (b) he is not
a flight risk. The respondent may also ask the issuing court to allow him
to leave the country upon his posting of a bond.
Actions to consider / Conclusion
Under the previous rules, a criminal case should first be filed in court
before a Hold Departure Order may be issued (to prevent an accused from
leaving the country). Under the new PHDO Rule, a respondent in a
preliminary investigation may already be prevented from leaving the
country pursuant to a PHDO.
In 2011, former Justice Secretary now Sen. Leila de Lima defied the Supreme Court (SC) by barring the
departure of former President now House Speaker Gloria Macapagal-Arroyo from leaving the country
despite the issuance of Temporary Restraining Order (TRO) enjoining the enforcement and
implementation of DoJ Circular 41 which authorizes the DoJ to issue a Hold Departure Order (HDO). De
Lima feigned ignorance and non-receipt of the TRO and ordered immigration officials to prohibit Arroyo
from departing for Singapore for a medical checkup.
This writer recalls watching the media blitz on the evening of 15 November 2011. Former President
Arroyo was accompanied by her husband FG Mike Arroyo, her spokesman now House Deputy Secretary
General Elena Bautista-Horn and her aides, at NAIA where they were physically blocked from entering
the airport gates. This writer can still hear FG Arroyo shouting “This is tyranny!” as they were led out of
the premises.
By way of background, DoJ Circular 41 is an administrative issuance of DoJ in 2010, under former acting
Justice Secretary Alberto Agra, coincidentally an appointee of former President Arroyo; hence, DoJ
Circular 41 finds its origins from the Arroyo administration. A slew of cases was filed by the Arroyos to
nullify this circular. Seven years a later, the SC finally ruled.
The SC, in “Genuino v. De Lima,” G.R. 197930, 17 April 2018, struck down DoJ Circular 41 for being
restrictive of one’s constitutional right to travel, primarily due to the inexistence of a law allowing the
executive branch to do the same, more specifically, it held that “there must be enabling law from which
DoJ Circular 41 must derive its life.” The SC noted that the DoJ Secretary was granted broad powers,
subject to grave abuse, as HDO may be issued without the existence of a pending case.
Laying the basis for what is to come, the High Court explained that the constitutional right to travel is not
absolute and that “the power to issue HDO is inherent to the courts. The courts may issue a HDO against
an accused in a criminal case so that he may be dealt with in accordance with the law.”
Nearly four months later, on 7 August 2018, the SC issued A.M. 18-07-05-SC, or its Rule of
Precautionary Hold Departure Order (PHDO). This addresses the gap caused by the Genuino case and
respondents may now be legally barred from leaving the country should there exist a PHDO issued by the
courts.
To quote directly from the SC issuance, 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.”
What should be emphasized here is that the PHDO may be issued ex-parte, or without the knowledge of
the respondent, although it is clear that the criminal case must be prior and existing. To clarify, it is the
investigating fiscal that files application for PHDO, upon motion of the complainant, before the Regional
Trial Court (RTC). A PHDO will be issued by the RTC, quite similarly with the issuance of search
warrants. A preliminary finding must be made that probable cause must exist and that there is a high
probability that respondent is departing to evade arrest and prosecution of the crime in the Philippines.
What then are the remedies of the recipient of the PHDO? A verified motion for the temporary lifting of
the PHDO may be filed when there is doubt that probable cause exists, or that he or she is not a flight risk,
provided respondent posts a bond. Yet, even if there is a PHDO, respondent may still apply to travel upon
application, subject to the conditions set by the court and, again, posting of a bond. Either way, respondent
must pay up.
The effect of the High Court issuance is that the power to restrict travel of an accused in criminal case has
been transferred to the courts. Although it is not a true “transfer” in a technical sense, since the power has
always been with the courts. What the SC issuance does is that it sets the proper guidelines for its
implementation as well as remedies to the recipient of the PHDO.
Unlike Cyber Crime Warrants — a rule that is very modern, still untested — the PHDO has undergone a
long legal process for it to become what it is today. It has evolved and has taken many forms. What
remains is that there truly is a need to restrict for the State to validly restrict the right to travel of specified
individuals, without violating one’s constitutional rights. It took a controversial and public incident for
cases to be filed and an SC decision issued. This writer, thus, opines that PHDO will be here to stay,
unless and until another controversial and public incident, involving another influential political figure,
happens in the future, that may cause the SC to review the validity of PHDO.