Rule on Precautionary Hold Departure Order

August 7, 2018

EN BANC

A.M. No. 18-07-05-SC

RULE ON PRECAUTIONARY HOLD DEPARTURE ORDER

RESOLUTION

Acting on the proposed Rule on Precautionary Hold Departure Order, the Court Resolved to APPROVE the same.

The Rule shall take effect within fifteen (15) days following its publication in two (2) newspapers of general circulation.

(SGD.) ANTONIO T. CARPIOSenior Associate Justice

(SGD.) PRESBITERO J. VELASCO, JR.Associate Justice

(SGD.) TERESITA J. LEONARDO-DE CASTROAssociate Justice

(SGD.) DIOSDADO M. PERALTAAssociate Justice

(SGD.) LUCAS P. BERSAMINAssociate Justice

(SGD.) MARIANO C. DEL CASTILLOAssociate Justice

(SGD.) ESTELA M. PERLAS-BERNABEAssociate Justice

I dissent. See attached separate opinion(SGD.) MARVIC M.V.F. LEONENAssociate Justice

(SGD.) FRANCIS H. JARDELEZAAssociate Justice

(On Leave)ALFREDO BENJAMIN S. CAGUIOAAssociate Justice

(SGD.) NOEL GIMENEZ TIJAMAssociate Justice

(SGD.) ANDRES B. REYES, JR.Associate Justice

(SGD.) ALEXANDER G. GESMUNDOAssociate Justice

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 filed 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 filed 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 filed 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 filed before the office of the city or provincial prosecutor, and upon a preliminary determination of probable cause based on the complaint and attachments, the investigating prosecutor may file 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-affidavit and its attachments, personal details, passport number and a photograph of the respondent, if available. aScITE

SECTION 4. Grounds for Issuance. — A precautionary hold departure order shall not issue except upon 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. The judge shall personally examine under oath or affirmation, in the form of searching questions and answers in writing, the applicant and the witnesses he or she may produce on facts personally known to them and attaching to the record their sworn statements.

If the judge finds that probable cause exists and there is a high probability that the respondent will depart, he or she shall issue the PHDO and direct the Bureau of Immigration to hold and prevent the departure of the respondent at any Philippine airport or ports. Otherwise, the judge shall order the dismissal of the application.

SECTION 5. Preliminary Finding of Probable Cause. — Since the finding of probable cause by the judge is solely based on the complaint and is specifically issued for the purpose of issuing the PHDO, the same shall be without prejudice to the resolution of the prosecutor of the criminal complaint considering the complaint-affidavit, counter-affidavit, reply-affidavit, and the evidence presented by both parties during the preliminary investigation. If the prosecutor after preliminary investigation dismisses the criminal complaint for lack of probable cause then the respondent may use the dismissal as a ground for the lifting of the PHDO with the regional trial court that issued the order. If the prosecutor finds probable cause and files the criminal information, the case with the court that issued the PHDO, on motion of the prosecutor shall be consolidated with the court where the criminal information is filed.

SECTION 6. Form and Validity of the Precautionary Hold Departure Order. — The precautionary hold departure order shall indicate the name of the respondent, his or her alleged crime, the time and place of its commission, and the name of the complainant. (See Annex "A" herein). A copy of the application, personal details, passport number, photograph of the respondent, if available, shall be appended to the order. The order shall be valid until lifted by the issuing court as may be warranted by the result of the preliminary investigation.

The court shall furnish the Bureau of Immigration with a duly certified copy of the hold departure order within twenty-four (24) hours from issuance.

SECTION 7. Lifting of the Order. — The respondent may file a verified motion before the issuing court for the temporary lifting of PHDO on meritorious ground; that, based on the complaint-affidavit and the evidence that he or she will present, there is doubt that probable cause exists to issue the PHDO or it is shown that he or she is not a flight risk: Provided, that the respondent posts a bond; Provided, further, that the lifting of the PHDO is without prejudice to the resolution of the preliminary investigation against the respondent.

SECTION 8. Bond. — Respondent may ask the issuing court to allow him or her to leave the country upon posting of a bond in an amount to be determined by the court subject to the conditions set forth in the Order granting the temporary lifting of the PHDO.

SECTION 9. Effectivity. — This Rule shall take effect within fifteen (15) days following its publication in two (2) newspapers of general circulation in the Philippines.

ANNEX A

REPUBLIC OF THE PHILIPPINES

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 —

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 affidavits 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 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."

Specifically, this Court ruled that the right to travel can only be impaired in two (2) instances. The first instance is when Congress passes a statute specifically 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

Courts possess certain inherent powers which may be said to be implied from a general grant of jurisdiction, in addition to those expressly conferred on them. These inherent powers are such powers as are necessary for the ordinary and efficient exercise of jurisdiction; or essential to the existence, dignity and functions of the court, as well as to the due administration of justice; or are directly appropriate, convenient and suitable to the execution of their granted powers; and include the power to maintain the court's jurisdiction and render it effective in behalf of the litigants. 4 (Citations omitted)

None of these instances is applicable to justify the enactment of the Rule. Presently, there is no law allowing the issuance of hold departure orders in a pending preliminary investigation.

Although courts have the inherent power to issue hold departure orders, this presupposes that a criminal case has been filed against the accused. Supreme Court Circular No. 39-97 states the guidelines in the issuance of hold departure orders in criminal cases falling under the exclusive jurisdiction of Regional Trial Courts. Municipal Trial Courts are excluded from the coverage of Supreme Court Circular No. 39-97. The rationale behind this has sufficiently been explained in Genuino:

Moreover, the silence of the circular on the matters which are being addressed by DOJ Circular No. 41 is not without good reasons. Circular No. 39-97 was specifically issued to avoid indiscriminate issuance of [Hold Departure Orders] resulting to the inconvenience of the parties affected as the same could amount to an infringement on the right and liberty of an individual to travel. Contrary to the understanding of the DOJ, the Court intentionally held that the issuance of [Hold Departure Orders] shall pertain only to criminal cases within the exclusive jurisdiction of the RTC, to the exclusion of criminal cases falling within the jurisdiction of the MTC and all other cases. The intention was made clear with the use of the term "only." The reason lies in seeking equilibrium between the state's interest over the prosecution of the case considering the gravity of the offense involved and the individual's exercise of his right to travel. Thus, the circular permits the intrusion on the right to travel only when the criminal case filed against the individual is within the exclusive jurisdiction of the RTC, or those that pertains to more serious crimes or offenses that are punishable with imprisonment of more than six years. The exclusion of criminal cases within the jurisdiction of the MTC is justified by the fact that they pertain to less serious offenses which is not commensurate with the curtailment of a fundamental right. Much less is the reason to impose restraint on the right to travel of respondents of criminal cases still pending investigation since at that stage no information has yet been filed in court against them. It is for these reasons that Circular No. 39-97 mandated that [Hold Departure Orders] may only be issued in criminal cases filed with the RTC and withheld the same power from the MTC. 5 (Emphasis supplied)

II

The Rule amounts to judicial legislation. It arbitrarily sets a cluster of crimes and construes, through a judicial rule, that these are what constitute threats to "national security, public safety, or public health."

Section 1 of the Rule provides that precautionary hold departure orders shall be issued "in cases involving crimes where the minimum of the penalty prescribed by law is at least six (6) years and one (1) day." All crimes where the minimum penalty prescribed by law is at least six (6) years and one (1) day are immediately considered to be involving "national security, public safety, or public health."

In my view, this may amount to a hasty and adventurous use of our judicial prerogative to promulgate rules that will erode this Court's legitimacy as Constitutional guardians. Such an action will surely have far reaching consequences.

I cannot agree, even by implication, that when the penalty of a crime is above an arbitrary length that we alone determine, it is equivalent to a threat to "national security, public safety, or public health."

I cannot even agree that the best marker to determine which acts or offenses are a threat to "national security, public safety, or public health" is the gravity of the penalty to be imposed. There may be other markers or standards and this Court should allow Congress to make its own determination first.

III

In my view, the concept of "preliminary determination of probable cause" will not save the infirmity in the Rule. A preliminary determination of probable cause only complicates our rules on criminal procedure.

The Rule allows the prosecution to apply for a precautionary hold departure order at the preliminary investigation stage before the filing of an Information in court. Sections 3 and 5 of the Rule state:

Section 3. Finding of probable cause. — Upon motion by the complainant in a criminal complaint filed before the office of the city or provincial prosecutor, and upon a preliminary determination of probable cause based on the complaint and attachments, the investigating prosecutor may file 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 complainant-affidavit and its attachments, personal details, passport number and a photograph of the respondent, if available.

xxx xxx xxx

Section 5. Preliminary finding of probable cause. — Since the finding of probable cause by the judge is solely based on the complaint and is specifically issued for the purpose of issuing the PHDO, the same shall be without prejudice to the resolution of the prosecutor of the criminal complaint considering the complaint-affidavit, counter-affidavit, reply-affidavit, and the evidence presented by both parties during the preliminary investigation. If the prosecutor after preliminary investigation dismisses the criminal complaint for lack of probable cause[,] then the respondent may use the dismissal as a ground for the lifting of the PHDO with the regional trial court that issued the order. If the prosecutor finds probable cause and files the criminal information, the case with the court that issued the PHDO, on motion of the prosecutor[,] shall be consolidated with the court where the criminal information is filed.

A preliminary determination of probable cause, though intended to be without prejudice to the investigating prosecutor's resolution of the criminal case, would render the conduct of preliminary investigation moot and academic.

In criminal proceedings, the investigating prosecutor makes an executive determination of the existence of probable cause for the purpose of filing an Information in court. 6 Probable cause, in the context of a preliminary investigation, involves an inquiry into "whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not [he or she] should be subjected to the expense, rigors and embarrassment of trial[.]" 7

As this would be the same standard used in determining whether an application for the issuance of a precautionary hold departure order should be filed, the preliminary determination of probable cause would then amount to a prejudgment of the preliminary investigation proceedings.

A preliminary determination of probable cause is also an impractical procedure. The procedure outlined in Sections 3 and 4 of Rule 112 of the Rules of Court calls for a speedy and prompt determination of probable cause during preliminary investigations.

Within 10 days from the filing of a complaint, the investigating prosecutor determines whether the complaint should be dismissed or whether to proceed with the investigation. The respondent is given 10 days to rebut the allegations of the complaint. If the respondent fails to respond, the investigating prosecutor is required to resolve the complaint. In any case, the investigating prosecutor is given 10 days after the investigation to determine the existence or non-existence of probable cause.

The provincial prosecutor, city prosecutor, chief state prosecutor, or the Ombudsman, as the case may be, is required to act upon the investigating prosecutor's recommendation also within 10 days.

Thus, there is no practicable purpose for a preliminary determination of probable cause. The investigating prosecutor can simply proceed with the preliminary investigation and determine the existence or non-existence of probable cause within the periods provided under the Rules of Court. If probable cause exists, then the investigating prosecutor can file the appropriate Information in court. The court in turn can issue a hold departure order against the accused.

Under the Rule, the preliminary determination of probable cause of the investigating prosecutor and the court to which an application is filed is confined to an examination of the complaint and its attachments. Such a limited set of evidence can hardly give investigating prosecutors and courts enough basis to support a finding of probable cause. The more prudent course of action is for the investigating prosecutor to proceed with investigation and file an Information if probable cause exists. The court to which the Information is filed can then issue a hold departure order.

In addition, the Rule also limits and unduly hampers the prosecution's discretion during the preliminary investigation proper.

Under Section 4, a precautionary hold departure order may only issue upon the court's determination that probable cause exists and that the accused is a flight risk:

Section 4. Grounds for issuance. — A precautionary hold departure order shall not issue except upon 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. The judge shall personally examine under oath or affirmation, in the form of searching questions and answers in writing, the applicant and the witnesses he or she may produce on facts personally known to them and attaching to the record their sworn statements.

If the judge finds that probable cause exists and there is high probability that the respondent will depart, he or she shall issue the PHDO and direct the Bureau of Immigration to hold and prevent the departure of the respondent at any Philippine airport or ports. Otherwise, the judge shall order the dismissal of the application. (Emphasis supplied)

Once the investigating prosecutor finds that there is probable cause to support an application for a precautionary hold departure order, the resolution of the court to which the application is filed would necessarily taint the prosecutor's own determination of probable cause for purposes of filing an Information.

Although Section 5 states that the preliminary determination of probable cause "shall be without prejudice to the resolution of the prosecutor of the criminal complaint," whatever the court's resolution on the application may be, the investigating prosecutor might hesitate to arrive at a different conclusion on the existence or non-existence of probable cause for purposes of filing an Information in court lest he or she incur the court's ire.

The Rule, therefore, limits the wide discretion given to the prosecution during the conduct of a preliminary investigation. In People v. Castillo, 8 this Court emphasized that "in our criminal justice system, the public prosecutor exercises a wide latitude of discretion in determining whether a criminal case should be filed in court." 9 It is reasonable to presume that the prosecution, out of respect, would defer to the judge's findings regarding the existence or non-existence of probable cause.

In this regard, the executive determination of probable cause, in the context of a preliminary investigation, would be an idle ceremony rendered moot by the two (2)-tier preliminary determination of probable cause.

This Court is not constitutionally empowered to allow courts to make "preliminary" findings of probable cause. Courts determine probable cause for the issuance of arrest warrants or search warrants. There are no qualifiers to that power. The courts' determination is a definitive determination for allowable constitutional intrusions into privacy and putting burdens on liberty. Courts cannot be overruled by investigating prosecutors conducting preliminary investigations. For this Court to allow this would be at best to complicate the administration of justice. Worse, it unjustly convolutes the procedures at the first and second levels of our courts, inviting confusion and litigation on interlocutory orders.

Furthermore, I do not see the necessity of the Rule unless this Court condones the delays in inquest or preliminary investigation.

Precisely, Genuino is the signal for the Department of Justice to give priority to and, within its statutory limits, efficiently conduct preliminary investigations for crimes which are of interest to government and where possibility of flight is greatest.

By coming out with this Rule, this Court is, in effect, appropriating portions of prosecutorial discretion and condoning delay in preliminary investigation. The Rule would also lead to the filing of numerous cases questioning the preliminary determination of probable cause, thus, creating further delay at the investigation stage.

IV

The Rule also does not account for the nuances between preliminary investigation and inquest proceedings.

When an accused is arrested without a warrant, inquest immediately follows to summarily determine whether a crime has been committed, whether the accused is probably liable for such a crime, and whether the warrantless arrest was within reasonable constitutional parameters. Inquest proceedings are summary investigations which do not follow the procedure outlined in Rule 112 of the Rules of Court.

If all these requirements are present, an Information is immediately filed which will then trigger the judicial examination as to whether a warrant should be issued, placing the accused within the jurisdiction of the court. The conduct of the inquest must be done with due and deliberate speed because there has been a legislative determination through Article 124 of the Revised Penal Code on when there has already been arbitrary detention.

The Rule, allowing the "preliminary determination" of probable cause by a judge, even before inquest, effectively nullifies paragraphs 2, 3, and 4 of Article 124 of the Revised Penal Code. In my view, this Court will succeed in repealing legislative policy through a procedural artifice.

If the crime was committed outside the circumstances allowing warrantless arrest and the government is convinced that there is sufficient evidence that will prove its existence as well as the liability of an accused, then I see no reason why the prosecution will not be able to efficiently conduct preliminary investigation.

V

Furthermore, the Rule unduly burdens the rights of a person who has only been suspected of committing a crime.

Sections 3, 4, and 5 of the Rule sanction the issuance of a precautionary hold departure order based on the complaint and its attachments. This is a limited set of evidence, which can hardly produce enough basis to support a finding of probable cause. Worse, the procedure is done ex parte, 10 without giving the respondent an opportunity to be heard on the matter.

A respondent, therefore, who has only been suspected of committing a crime, is left in the dark, completely uninformed about the impending curtailment of his or her constitutional right to travel.

The Rule may be premised on the view that there will be legislative and executive inertia. This Court predicts that there may be serious offenders that may be able to find succor in a foreign jurisdiction. Yet, it should not be the responsibility of the Judiciary alone to make the Constitution work. The Legislative and the Executive branches must also do their part.

Bilateral or multilateral Mutual Legal Aid Treaties are useful tools to aid criminal investigation and prosecution. Countries may seek assistance from each other by providing access to evidence and facilitate case buildup.

The Judiciary is not the constitutional organ that addresses expedient and contingent circumstances. This Court's preference should be to always reserve judgment, even those embedded in rules of procedure, until an actual case is filed. It should use its rule-making power sparingly.

This Court's suppositions and conjectures should be as strongly premised on the protection of liberties as much as it would also acknowledge the difficulties of law enforcement. A reasonable interpretation of a constitutional provision should take where this Court puts these balances seriously. Often, it will be through live and actual cases with established facts where this Court will see this rather than through suppositions, fears, and conjectures that motivate the promulgation of a judicial rule.

I am aware that this Court is convinced of the rightness of promulgating the Rule. However, a more reasonable judicial temperament should normally make us more cautious. All of us are painfully aware that even our perceptions may not be as omniscient as we hope them to be. aScITE

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, sacrifices 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.

(SGD.) MARVIC M.V.F. LEONENAssociate Justice

 

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].

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.