Hold Departure Order revisited

"Can the accused be restrained from leaving the country?"


A lingering concern of an accused who has a pending criminal case is whether he can travel unhampered within or outside the Philippines. He may want to take a short vacation, do business, or if he is a public officer, perform his official function out of the country. Can the accused be restrained from leaving the country?

The Philippine Constitution recognizes the non-impairment of the right to travel “except in the interest of national security, public safety, or public health as may be provided for by law” (Section 6, Article III of the 1987 Constitution). Following the constitutional mandate, Filipinos, as a general rule, cannot be restrained from exercising their right to travel. However, if a person has a criminal case he may be prevented, in certain instances, to leave the country by virtue of a Hold Departure Order (HDO).

Under Supreme Court Circular 39-97, the power to issue HDOs is within the exclusive jurisdiction of the Regional Trial Court. The Regional Trial Court judge can issue a hold order only in a criminal case pending in his sala (court) (Criminal Procedure, Tranquil Salvador III, 2019, citing Mupas v. Espaol, A.M. RTJ-04-1850). For example, a first level court or MTC judge who issued a hold order in a criminal case pending in a Regional Trial Court violated the circular, and was administratively punished (Criminal Procedure, Tranquil Salvador III, 2019, citing A.M. No. 99-12-192-MTC, 26 January 2000).

There is another Supreme Court rule that allows issuance of HDO in specific civil cases. The Rule for Provisional Orders provides that a Hold Departure Order may be issued by a family court upon application or motu proprio to disallow the departure of the child from the Philippines without the permission of the court (Proposed Rule for Provisional Orders, A.M. No. 02-11-12-SC, 4 March 2003, Section 6). The HDO may be applied in the family court, which is the Regional Trial Court wherein the petition for declaration of nullity of marriage, annulment of marriage or legal separation was filed.

Likewise, the Anti-Violence Against Women and their Children Act of 2004 specifically requires the court to expedite the issuance of a hold departure order in cases prosecuted under this Act against women and child offenders (Section 37, Republic Act No. 9262). The law wants to make sure that the offenders are brought into the fold of law.

Aside from the Regional Trial Court, the Sandiganbayan which is the Anti-Graft court also has the power to issue hold departure orders motu proprio as “an exercise of its power to preserve and to maintain the effectiveness of its jurisdiction over the case or over the person of the accused” (Criminal Procedure, Tranquil Salvador III, 2019, citing Defensor Santiago v. Vasquez, G.R. Nos. 99289-90). At this point, a differentiation must be made between an HDO issued by the Regional Trial Court in criminal cases and those issued by the Sandiganbayan. For criminal cases in the Regional Trial Court, the HDO has to be applied by the prosecution, and therefore, not automatically issued upon the filing of the criminal information. This is unlike the procedure in the Sandiganbayan where it may be issued immediately once the criminal information is filed with it.

Not too long ago, the Department of Justice issued Department Circular No. 41 which authorized the Secretary of Justice to issue hold departure orders for cases that a) fall within the jurisdiction of the Regional Trial Court; b) need the presence of the alien as a defendant, respondent or witness in civil, labor or administrative cases; c) name the Government or its instrumentalities as an adverse party; or d) are in the interest of national security, public safety or public health.

The circular was declared unconstitutional in Genuino v. De Lima. The case involved several hold departure orders issued by the Secretary of Justice under Circular 41 while the petitioners were under investigation for complaints for plunder, malversation, graft and corruption, violation of the Omnibus Election Code, and Republic Act No. 6713, among others. The Supreme Court ruled that “there is no law particularly providing for the authority of the Secretary of Justice to curtail the exercise of the right to travel.” Moreover, the Department of Justice cannot justify the circular as the issuance of an HDO is clearly not DOJ’s business. As such, it is a compulsory requirement that there be an existing law, complete and sufficient in itself, conferring the expressed authority to the concerned agency to promulgate rules. The action runs afoul the separation of the powers between the three branches of the government and cannot be upheld (Criminal Procedure, Tranquil Salvador III, 2019, citing Genuino v. De Lima, G.R. 197930)).

The declaration that DOJ Circular 41 is unconstitutional left a vacuum, since there is no rule that can prevent the suspect or arrestee under preliminary investigation from fleeing the country. This prompted the Supreme Court to timely issue on August 7, 2018, the Rule on Precautionary Hold Departure Order. Under the Rule, the precautionary HDO shall be issued by the court upon a finding that “probable cause exists, and there is high probability that respondent will depart from the Philippines to evade arrest or prosecution.” This determination of probable cause shall only be preliminary and “solely based on the complaint,” and this is thus without prejudice to the resolution of the prosecutor of the criminal complaint considering all the affidavits submitted by the parties during the preliminary investigation (Criminal Procedure, Tranquil Salvador III, 2019, citing Sections 3 and 5, A.M. 18-07-05-SC).

The HDO and the precautionary HDO are procedural options also made available to the Government under the Anti-Terrorism Law of 2020 to assist in prosecuting terrorists. While the right to travel of certain individuals may be restricted by the court, it is not without a valid reason. The primary objective is to ensure that the party that is the subject of the HDO or precautionary HDO is brought to the court’s jurisdiction to face the charges against him. This is not a violation of the rights of the accused under Rule 115 of the Rules of Court, nor does it impair the presumption of innocence in favor of the accused. It must therefore be seen as an avenue to protect the best interest of the accused or the party prevented from traveling, because if he is innocent, he can have his name cleared at the soonest possible time. As Solomon’s psalmist says in Proverbs, “[a] good name is to be chosen rather than great riches” (Proverb 22:1).

Topics: Philippine Constitution , Supreme Court , Regional Trial Court , Anti-Violence Against Women and their Children Act of 2004 , Hold Departure Order
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