Wednesday

Immigration 101 (Part 1) - Hold Departure Orders

In the interest of public service and for the benefit of all Filipinos and aliens here in the Philippines, and abroad I shall be coming out with the Immigration series. First on the list, Hold Departure Orders.


HOLD DEPARTURE ORDERS

Hold Departure Orders, or HDO, is an order issued by a competent authority, preventing the departure of an individual for a lawful cause. It is intended to bind or obligate, to restrain or constrain, to keep in custody or under obligation, a person for his/her acts committed within the Philippines.

In Philippine law, HDO are implemented by the Commissioner of Immigration, pursuant to an order issued by the President, the Secretary of Justice or the Regional Trial Courts, commanding him/her to prevent the departure for abroad of Filipinos or aliens named in the order.

The issuance of HDOs are governed by Department of Justice Circular No. 17 dated 19 March 1998 in case ordered by the Secretary of Justice and Supreme Court Circular No. 39-97 dated 19 June 1997 in case ordered by the Regional Trial Court.


DEPARTMENT OF JUSTICE CIRCULAR NO. 17 s. 1998

Under Section 2(c) of Department Circular No. 17 s. 1998, the Secretary of Justice, may issue an HDO, upon notarized application of an interested party against any of the following, together with the necessary supporting documents:
  1. An accused released on bail ([a] certified true copy of the Order releasing the person on bail, and [b] certification by the Clerk of Court concerning the case where bail was issued is pending);
  2. A fugitive from justice ([a] certified true copy of the Information and Warrant/Order of Arrest against the fugitive, and [b] certification by the Clerk of Court concerning that the warrant of arrest was returned unserved by the peace officer);
  3. An alien who is the accused in a criminal case that is pending before a court ([a] certification issued by the court concerning the pendency of the criminal case involving the alien, and [b] certified true copy of the Information filed in the case);
  4. An alien who is a respondent in a deportation complaint before the Bureau for violation of immigration laws, rules and regulations, upon recommendation of the Board of Special Inquiry or of the Board of Commissioners ([a] copy of the deportation complaint);
  5. An alien whose presence is required as a witness in a criminal case, or as a defendant/respondent or witness in a civil, labor or other case before a judicial, quasi-judicial or administrative body of the government ([a] certified true copy of the subpoena or summons issued to the alien, and [b] copy of the criminal information or of the complaint in the civil, labor or administrative case wherein the alien's presence is required).
All requests for for the issuance of HDO must be accompanied by a notarized application addressed to the Secretary of Justice and such other supporting documents as may be required by the circumstances.

In Section 2(d), the Secretary of Justice may likewise issue an HDO, upon the request of the Head of a Department of the Government; the head of a Constitutional body or a commission or agency performing quasi-judicial functions; the Chief Justice of the Supreme Court for the Judiciary; or the President of the Senate or Speaker of the House of Representatives for the legislative body, when the adverse party is the Government or any of its agencies or instrumentalities, in the interest of national security, public safety or public health, as may be provided by law. The request shall specify the reason or ground for holding or preventing the departure of the subject individual.

An HDO issued pursuant to this Rules may be lifted, upon request of an interested party, when the case upon which a bail granted has been dismissed, or the accused, regardless of nationality, has been acquitted, or that the alien's presence has been discharged by the appropriate court. All requests for lifting must be notarized and all supporting documents must likewise be attached.


SUPREME COURT CIRCULAR NO. 39-97

The Supreme Court, through the Office of the Court Administrator, issued the said Circular in order to avoid the indiscriminate issuance of HDOs resulting in inconvenience to the affected parties. Accordingly, HDO issued by the Regional Trial Courts shall be issued in criminal cases within the exclusive jurisdiction of the concerned RTC. Hence, the RTC may only issue HDO in cases punishable by prision correccional committed within and filed before its territorial jurisdiction.


DEPARTMENT OF JUSTICE CIRCULAR NO. 38 s. 1990

The Secretary of Justice may likewise issue an HDO, upon motion of State Prosecutors, Provincial/City Prosecutors and their Assistants, in cases when an accused is charged with the following cases:
  1. Violations of Presidential Decree No. 1866, codifying the laws on illegal/unlawful possession, manufacture, dealing in, acquisition or disposition of firearms, ammunitions and explosives;
  2. Crimes against public order (e.g. rebellion, sedition, etc.) defined and penalized in the Revised Penal Code;
  3. Violations of Republic Act No. 1700, otherwise known as the Anti-Subversion Law (Note: The Anti-Subversion Law has already been repealed by Republic Act No. 7636 in 1992);
  4. Violations of the Dangerous Drugs Act of 1972, as amended, when the charge is cognizable by the Regional Trial Court (Note: The Dangerous Drugs Act was amended by Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002);
  5. Violations of the Anti-Carnapping Act of 1972;
  6. Violations of the Tariff and Customs Code, as penalized by Sections 3601 to 3603, inclusive, and Sections 3605 to 3610, inclusive;
  7. Bank Frauds and Frauds' against Public Treasury and other crimes involving economic sabotage.
In cases where the accused has jumped bail and fled to another country, the same shall be immediately reported to the Chief State Prosecutor, who shall, with the approval of the Secretary of Justice, make appropriate representations to the Department of Foreign Affairs for the cancellation of the accused's passport and other travel documents so as to make him an undocumented alien in the host country, hence a subject for deportation.


CONCLUSION

Towards the end, the rules on the issuance of Hold Departure Orders should be carefully observed. Inasmuch as we must protect the right of a complainant for appropriate measures to redress his or her grievances, we must likewise give due deference to the right of an individual to travel. The 1987 Constitution is clear when it stated that "neither shall the right to travel be impaired except in the interest of national security, public safety, or public health." Hold Departure Orders should therefore be issued sparingly, but always judiciously, in order that the ends of justice shall be met - that is - the accused of criminal offenses will not evade prosecution and punishment by leaving abroad during the pendency of the criminal proceedings, eluding court processes; and in same vein, the complainant is prevented from making malicious and obviously harassing applications for HDOs.

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