Rule On Precautionary Hold Departure Order PDF
Rule On Precautionary Hold Departure Order PDF
Rule On Precautionary Hold Departure Order PDF
EN BANC
A.M. No. 18-07-05-SC
RESOLUTION
Acting on the proposed Rule on Precautionary Hold Departure Order, the Court
Resolved to APPROVE the same.
The Rule shall take effect within fteen (15) days following its publication in two
(2) newspapers of general circulation.
ATTACHMENTS
Proposed Rule on Precautionary Hold Departure Order
SECTION 1. Precautionary Hold Departure Order. — 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 (6) years and one (1) day or when the offender is a foreigner regardless of
the imposable penalty.
SECTION 2. Where Filed. — The application for a precautionary hold
departure order may be led 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 led 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 led by the prosecutor based on complaints instituted by the National
Bureau of Investigation, regardless where the alleged crime was committed.
SECTION 3. Finding of Probable Cause. — Upon motion by the complainant in
a criminal complaint led before the o ce of the city or provincial prosecutor, and
upon a preliminary determination of probable cause based on the complaint and
attachments, the investigating prosecutor may le an application in the name of the
People of the Philippines for a precautionary hold departure order (PHDO) with the
proper regional trial court. The application shall be accompanied by the complaint-
a davit and its attachments, personal details, passport number and a photograph of
the respondent, if available. aScITE
ANNEX A
REPUBLIC OF THE PHILIPPINES
Regional Trial Court
PHDO NO. 18-______
PEOPLE OF THE PHILIPPINES, plaintiff , vs. A.B., respondent .
PRECAUTIONARY HOLD DEPARTURE ORDER
The above-entitled petition having been filed against the respondent;
SURNAME —
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GIVEN NAME —
ALIAS —
MIDDLE NAME —
DATE OF BIRTH —
PLACE OF BIRTH —
RESIDENCE/S —
NATIONALITY —
PASSPORT NUMBER —
COMPLETE TITLE/DOCKET NUMBER OF CASE * —
WHERE PENDING —
NATURE OF THE CASE —
and appears to the satisfaction of the court after examining under oath (name of applicant),
his/her witness/es, supporting a davits and documents, that there is probable cause to
believe that respondent will depart from the Philippines to evade arrest and prosecution of
crime against him or her, HEREBY ORDERS, the Commissioner of the Bureau of Immigration
and Deportation to hold the departure from the Philippines of the above-named respondent
and to include his/her name in the Hold Departure List of the said office.
Let copy of this Order be furnished to the Commissioner of the Bureau of Immigration
and Deportation.
SO ORDERED.
August _____, 2018
RTC Judge
DISSENTING OPINION
LEONEN, J .:
I regret that I cannot agree to a rule that implicitly presumes guilt and denies due
process to a person who has not yet been subject to arrest, preliminary investigation, or
arraignment.
The Rule on Precautionary Hold Departure Order, which seeks to address the gap in the
issuance of Hold Departure Orders, has grave implications on individual liberties in relation to
law enforcement. Citizens will be surprised to discover that they have been the subject of ex
parte proceedings when they want to travel. The Rule is too broad, and therefore, forecloses
future court actions where there are factual settings in which our current assumptions may
not apply.
This Court has not thoroughly considered the effect of the Rule on determinations of
prima facie evidence at the prosecutor's level, and of probable cause for the issuance of
arrest warrants and of search warrants. This Court has not thoroughly seen its impact on
inquest and preliminary investigation as well as on Article 124 of the Revised Penal Code.
I
In Genuino v. De Lima , 1 this Court struck down the executive prerogative of issuing
Hold Departure Orders for all crimes at the discretion of the Secretary of Justice. The
Constitutional provision requiring that "[n]either shall the right to travel be impaired except in
the interest of national security, public safety, or public health, as may be provided by law" 2
was upheld.
In that unanimous decision, this Court ruled that Hold Departure Orders burden the
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constitutional right to travel. There, this Court explained that any such burden, though not
proscribed outright, should be determined by law and will only be valid if consistent with the
requirements of "national security, public safety, or public health."
Speci cally, this Court ruled that the right to travel can only be impaired in two (2)
instances. The rst instance is when Congress passes a statute speci cally restricting the
right to travel "in the interest of national security, public safety, or public health."
The standards that signal these necessities were left for Congress to determine and to
be deliberated upon in its forums, which assume representation of its various constituencies.
The standards that constitute "national security, public safety, or public health," in relation to
the right to travel, are first a political question before they become a judicial one.
Yet, even before Congress has had the opportunity to discharge its constitutional
duties, this Court now promulgates a rule to address the lack of action of the proper
constitutional organs. This Court takes it upon itself to examine the balance between the right
to travel and "national security, public safety, or public health." This Court now replaces the
executive prerogative of issuing hold departure orders with judicial prerogative through the
guise of a procedural rule.
The second instance where the right to travel can be burdened is upon an order of a
court in a pending criminal case. This power proceeds from the grant of judicial power. In
Genuino: 3
It bears reiterating that the power to issue [Hold Departure Orders] is
inherent to the courts. The courts may issue a [Hold Departure Order] against an
accused in a criminal case so that he may be dealt with in accordance with law.
It does not require legislative conferment or constitutional recognition; it co-
exists with the grant of judicial power. In Defensor-Santiago vs. Vasquez, the
Court declared, thus: HTcADC
Therefore, we should go back to the tradition of having proposed rules heard by the
proper sub-committee of our Committee on Rules. The Committee should receive comments
and suggestions from the public through proper representatives. It should work on drafts and
position papers that thoughtfully and judiciously consider all angles to the proposed rule
especially when it has, as its consequence, the possible limitation of a constitutional liberty.
I am not averse to fair procedures that provide a reasonable and workable framework
for law enforcement. I decline, however, to agree to a rule which, in my reckoning, sacri ces
too much our hard won fundamental liberties. I insist that it should be this Court that remains
vigilant even against the slightest unreasonable infringement on any of our liberties.
This Rule fails that vigilance. Therefore, I dissent.
ACCORDINGLY , I vote to DISPENSE with the promulgation of the Rule on
Precautionary Hold Departure Order.
Footnotes
ANNEX A
* Docketed I.S. No. _____ of the Preliminary Investigation in the case.
LEONEN, J., dissenting opinion
1. G.R. No. 197930, April 17, 2018 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2018/april2018/197930.pdf> [Per J. Reyes, En Banc].
2. CONST., art III, sec. 6.
3. G.R. No. 197930, April 17, 2018 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2018/april2018/197930.pdf> [Per J. Reyes, En Banc].
4. Id. at 43.
5. Id. at 33.
6. See People v. Castillo, 607 Phil. 754 (2009) [Per J. Quisumbing, Second Division].
7. People v. Inting, 265 Phil. 817, 822 (1990) [Per J. Gutierrez, Jr., En Banc].
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8. 607 Phil. 754 (2009) [Per J. Quisumbing, Second Division].
9. Id. at 765.
10. RULE ON PRECAUTIONARY HOLD DEPARTURE ORDER, sec. 1.
Published in The Philippine Daily Inquirer on September 1, 2018.