Published 13 September 2019, The Daily Tribune

Section 6, Article III of the Constitution provides that the “liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as maybe provided by law.”

Our right to travel is held to be part and parcel of our freedom of movement guaranteed under our Constitution. Nevertheless, this freedom is not absolute, and may be restricted in the interest of national security, public safety or public health.

As early as in the case of Silverio v. Court of Appeals (G.R. No. 94284, 28 April 1991), the Supreme Court had clarified that holding an accused in a criminal case within reach of the courts by preventing his departure from the Philippines is considered a valid restriction on his right to travel so that he may be dealt with in accordance with law.

While the rule then was clear that a person facing a criminal charge pending before a trial court may be prevented departure from the country, it was unclear whether one may be restrained to leave the country before he is formally charged in courts, i.e., during preliminary investigation proceedings.

To address this supposed conundrum, the Department of Justice (DOJ) issued in the past several circulars, namely, DOJ Circular No. 17 dated 19 March 1998, DOJ Circular No. 18 dated 23 April 2007 and the consolidated version, DOJ Circular No. 41, empowering the Secretary of Justice to issue Hold Departure Orders (HDO) and Watchlist Orders (WLO), to prevent a person subject of a criminal complaint from leaving the country.

We may recall in 2011 that the same circular, DOJ Circular No. 41, was invoked by then DOJ Secretary (now Senator) Leila De Lima to prevent then President Gloria Arroyo from flying to Singapore for medical treatment, who was then charged with electoral sabotage. The incident sparked a huge controversy.

Later, in Genuino v. De Lima, docketed as G.R. No. 197930, promulgated on 17 April 2018, the Supreme Court struck down DOJ Circular No. 41 as unconstitutional as it violates one’s constitutional right to travel, and that there is no law which authorizes the Secretary of Justice to issue HDOs, WLOs, or allow departure orders (ADO).

In said ruling, the Supreme Court further emphasized that the power to issue HDO is “inherent to the courts”, and it “does not require legislative conferment or constitutional recognition”; it co-exists with the grant of judicial power.”

Consequent to said ruling, the Supreme Court, on 07 August 2018, issued a Resolution in Administrative Matter No. 18-07-05-SC, or the Rule on Precautionary Hold Departure Order, whereby a respondent in a criminal complaint may now be legally barred from leaving the country upon application with, and issuance of a precautionary hold departure order (PHDO) by the courts.

As defined under the rule, 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 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 years and one day or when the offender is a foreigner regardless of the imposable penalty.”

The pertinent points of this new rule are the following: (a) the PHDO is applicable to crimes where the minimum penalty prescribed by law is at least six years and one day, or the offender is a foreigner regardless of the imposable penalty; (b) the PHDO may be issued ex parte, or without the knowledge and participation of the respondent(s); (c) the PHDO may be applied by a prosecutor with any regional trial court within whose territorial jurisdiction the alleged crime was committed, or for compelling reasons, 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; (d) the PHDO may also be applied with the regional trial courts in the City of Manila, Quezon City, Cebu City, Iloilo City, Davao City and Cagayan de Oro City based on complaints instituted by the National Bureau of Investigation regardless where the alleged crime was committed; (e) the application by the investigating prosecutor shall be upon motion of the complainant and upon a preliminary determination of probable cause based on the complaint and attachments thereof; (f) the PHDO shall be issued upon personal determination by the judge, in whose court the application is filed, that probable cause exists, and there is a high probability that respondent will depart from the Philippines to evade arrest and prosecution of crime against him or her; (g) upon a finding of probable cause, the PHDO shall issue, and the judge shall direct the Bureau of Immigration to hold and prevent the departure of the respondent at any Philippine airport or ports; (h) the probable cause for the purpose of issuing the PHDO shall be without prejudice to the resolution of the investigating prosecutor of the criminal complaint; (i) the dismissal of the criminal complaint, however, may be used by the respondent as a ground for the lifting of the PHDO; and (j) the respondent may file a verified motion before the issuing court for the temporary lifting of the PHDO based on a meritorious ground and upon posting of a bond.

Verily, this new rule is a good development in our criminal prosecution system. At the heart of it is the need to balance the right to travel of the individual and the right of the State to prosecute offenses. As the saying goes, “one’s right ends when another’s right begins.” With the new rule, the striking of this balance is now left with the courts to determine.

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