Precautionary Hold Departure Order
Updated: Jul 4, 2020
A Precautionary Hold Departure Order is issued even before preliminary investigation if the subject may try to avoid arrest and prosecution of a crime before his case goes to court. 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.
What is a Precautionary Hold Departure Orders or PHDO?
A Precautionary Hold Departure Order (PHDO) prevents a respondent to a criminal case from leaving the country even while a case against him is not yet being prosecuted in a court of law. 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.”
Previously, the remedy of the State was the issuance of Hold Departure Orders under Supreme Court OCA Circular 39-97. Under that rule, a Regional Trial Court (RTC) may only issue issue a HDO when the case is already before it, after it had undergone preliminary investigation. On the other hand, a PHDO can be issued even while preliminary conference is taking place.
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 without the participation of the accused. A prosecutor applies for a PHDO before the RTC 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 it can be lifted after the prosecutor conducts preliminary investigation and determines that there is no probable cause.
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. Even if the person has to go abroad, it may only be for a vacation or for business meetings, and not to escape the criminal case. What makes a person a flight risk is that there is a high probability that the person will not come back after he leaves.
In such cases, the court may allow posting of a bond, and the bond can be recovered when the accused comes back.
The exception to the rule on territorial jurisdiction is the authority given to RTCs in the Cities 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.
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.