The right to travel is a constitutional liberty which citizens cannot be deprived without due process of law. It is part and parcel of the guarantee of freedom of movement that the Constitution affords its citizens.[1] Section 6, Article III of the 1987 Constitution prohibits the impairment of the right to travel, except in the interest of national security, public safety, or public health, as may be provided by law.[2]
In the same vein, Article 13 of the Universal Declaration of Human Rights (UDHR), to which the Philippines is a signatory, states that everyone has a right to freedom of movement and residence within the borders of each state, and that everyone has the right to leave any country including his own, and to return to his country.[3]
Like other rights, however, the right to travel is not absolute. Our jurisdiction recognizes constitutional, statutory, and inherent limitations to such right, among which is the Precautionary Hold Departure Order (“PHDO”).
Nature of the PHDO
A.M. No. 18-07-05-SC or the Rule on Precautionary Hold Departure Order defines a PHDO as a court order commanding the Bureau of Immigration (“BI”) to prevent any attempt by a person suspected of a crime to depart from the Philippines.[4] A PHDO issues only upon determination by the judge that probable cause exists and there is a high probability that the respondent will depart from the Philippines to evade arrest and prosecution of crime.[5]
A PHDO, which is applied, ex parte, may be issued in the following cases: a) involving crimes where the minimum of the penalty prescribed by law is at least six (6) years and one (1) day; b) or when the offender is a foreigner regardless of the imposable penalty.[6]
The investigating prosecutor files a PHDO in the name of the People of the Philippines before any regional trial court (“RTC”) within whose territorial jurisdiction the alleged crime was committed. For compelling reasons, the PHDO can be applied in any RTC within the judicial region where the crime was committed if the place of the crime is known.[7]
The application for a PHDO is preceded by a motion by the complainant in a criminal complaint filed before the office of the city or provincial prosecutor, and a preliminary determination of probable cause based on the complaint and attachments.[8] Such application shall be accompanied by the complaint-affidavit and its attachments, personal details, passport number, and a photograph of the respondent, if available.[9]
PHDO and preliminary investigation
The rules provide that 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 preliminary investigation.[10]
If after preliminary investigation the prosecutor dismisses the complaint for lack of probable cause, the respondent may then use the dismissal as ground for the lifting of the PHDO. In contrast, if the prosecutor finds probable cause and files the criminal information, the case with the court that issued the PHDO shall be consolidated with the court where the criminal information is filed, upon motion by the prosecutor.[11]
As to the respondent’s remedy, he or she may file a verified motion before the issuing court for the temporary lifting of PHDO on a meritorious ground that, based on the complaint-affidavit and the evidence 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.[12] Before the lifting of the PHDO is granted, the respondent must post a bond.
Judicial scrutiny
A PHDO has serious implications to one’s constitutional liberty in general, and right to travel in particular. As such, litigants have over the years assailed hold departure orders of whatever form, putting into issue its propriety and legality.
In Genuino vs. De Lima, the High Tribunal declared as unconstitutional Department of Justice (“DOJ”) Circular No. 41 issued by then Acting DOJ Secretary Alberto C. Agra, which governed the issuance and implementation of Hold Departure Orders (HDOs), Watch-list Orders (WDOs), and Allow-Departure Orders (ADOs). The Court ruled that the Secretary of Justice does not have the authority in issuing regulations that curtail the right to travel, as the same could only be done through a legislative enactment. As elucidated by the Supreme Court:
[T]here are only three considerations that may permit a restriction on the right to travel: national security, public safety or public health. As a further requirement, there must be an explicit provision of statutory law or the Rules of Court providing for the impairment. The requirement for a legislative enactment was purposely added to prevent inordinate restraints on the person's right to travel by administrative officials who may be tempted to wield authority under the guise of national security, public safety or public health. This is in keeping with the principle that ours is a government of laws and not of men and also with the canon that provisions of law limiting the enjoyment of liberty should be construed against the government and in favor of the individual.[13]
Ruling that the issuance of DOJ Circular No. 41 has no legal basis, the Court further ratiocinated:
The constitutional violations of DOJ Circular No. 41 are too gross to brush aside particularly its assumption that the DOJ Secretary's determination of the necessity of the issuance of HDO or WLO can take the place of a law that authorizes the restraint in the right to travel only in the interest of national security, public safety or public health. The DOJ Secretary has recognized himself as the sole authority in the issuance and cancellation of HDO or WLO and in the determination of the sufficiency of the grounds for an ADO. The consequence is that the exercise of the right to travel of persons subject of preliminary investigation or criminal cases in court is indiscriminately subjected to the discretion of the DOJ Secretary.[14]
In fine, the pronouncements of the Court in Genuino reveal that the restraint of one’s right to travel through the issuance of an HDO or WLO cannot be left to the unbridled discretion of the Secretary of Justice. This affirms the safeguards enshrined in our fundamental law, the primacy of the Bill of Rights that takes precedence over the State’s right to prosecute.[15]
Months after the decision in Genuino, the Court promulgated the Rule on PHDO which serves as a remedy formulated to fill in the vacuum created by the declaration of nullity of DOJ Circular No. 41.[16] The Court shed light on the rationale of the Rule on PHDO in Garcia vs. Sandiganbayan:
With the declaration of nullity of DOJ Circular No. 41 which stripped off the Secretary of Justice of self-imposed authority to issue HDOs, it becomes more imperative for the courts to use their inherent powers to prevent miscarriage of justice. It was in response to this need that A.M. No. 18-07-05-SC was issued. Specifically, it authorizes the issuance of a precautionary HDO even prior to the filing of an information in court when justified under the circumstances. This recognizes the fact that the processes leading to the filing of a case usually take a while before they are concluded such that by the time the information is filed in court, the accused may have already left the country and is now beyond the reach of courts. This renders futile the processes taken up prior to the filing of information and stalls the administration of justice until the accused is brought to the jurisdiction of the court. The issuance of a precautionary HDO cures this predicament.[17]
In this case, the High Tribunal emphasized that the power of the courts, including the Sandiganbayan, to issue HDOs is an exercise of the court's inherent power to preserve and to maintain the effectiveness of its jurisdiction over the case and the person of the accused.[18] The Court declared that these inherent powers are innate and essential faculties that are fundamental to the constitution of an effective judicial system. They are integral to the creation of courts. They do not require legislative conferment or constitutional recognition; they co-exist with the grant of judicial power.[19]
Finally, the Court in Garcia acknowledged the “complementary” relationship of an HDO to the concept of bail in criminal proceedings, in such a way that the issuance of an HDO puts the Bureau of Immigration on notice that a certain person is charged before the courts of law and must not be allowed to leave our jurisdiction without the permission of the court.[20] The Court went on to explain such relationship in this wise:
After all, the granting of bail does not guaranty compliance by the accused of the conditions for his temporary liberty, particularly, his presence at every stage of the proceedings. Some, if not all, maybe tempted to jump bail and leave the country. This is what the HDO seeks to avoid by keeping the accused within the territory where court processes and dispositions may be enforced and implemented.[21]
We write this article to provide an overview about the Rule on Precautionary Hold Departure Order (PHDO) and the legal implications thereof. Should you need legal assistance on PHDOs, please send an email to ryan@romanolaw.ph.
[1] Genuino vs. De Lima, G.R. No. 197930, 17 April 2018
[2] Section 6, Article III, 1987 Constitution
[3] Section 13, Universal Declaration of Human Rights
[4] Section 1, A.M. No. 18-07-05-SC (2018)
[5] Id, Section 4.
[6] Id, Section 1.
[7] Id, Section 2
[8] Id, Section 3
[9] Id.
[10] Id, Section 5.
[11] Id.
[12] Id, Section 7
[13] Genuino vs. De Lima, G.R. No. 197930, 17 April 2018
[14] Id.
[15] Id.
[16] Garcia vs. Sandiganbayan, G.R. Nos. 205904-06, 17 October 2018
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.