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.
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 If there is no probable cause, the PHDO is withdrawn.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.