The Supreme Court (SC), in a decision made public on August 7, reiterated when a precautionary hold departure order (PHDO) may be issued.

Generally, it’s not easy to prevent a person from leaving the country. This has to go through a process that involves authorities like the Department of Justice (DOJ), Bureau of Immigration, and the Philippine courts.

For example, Senator Loren Legarda and Batangas 1st District Representative Leandro Leviste both left the country on August 2, amid the pending plunder and graft complaints against them.

There’s nothing irregular here because there are no pending orders that could prevent them from flying.

Another case: former presidential spokesperson Harry Roque.

The former Duterte official, who was implicated in the Philippine offshore gaming operators, was able to leave the country because again, there was no court or immigration order that could have prevented him from leaving at the time.

Here’s where the PHDO enters because through this, Philippine authorities may prevent a person from leaving the country even if a case has yet to be filed before courts. Here’s how it works.

Immigration mechanisms

By rules, there are two orders that can ban a person’s travel abroad: a hold departure order (HDO) and a PHDO.

An HDO can only be availed of by authorities when there’s a case pending in court. A judge might issue this, apart from an arrest warrant, once the charge reaches the court.

Meanwhile, a PHDO may also be issued by courts even if the legal action is only at the complaint level.

Prosecutors may apply for the issuance of a PHDO if the complaint is at the preliminary investigation stage or the phase when the prosecution checks if there’s enough evidence for the complaints to become cases and be filed with courts.

After the application for PHDO, a judge assesses if there’s probable cause and if there’s a high probability of flight to evade arrest and prosecution.

Another mechanism, the immigration lookout bulletin order (ILBO), is used for monitoring purposes only and is not as strong as the HDO and PHDO.

Through ILBO, the BI can check if there are any pending warrants against subjects and if they have any violations or infractions. Immigration officers can monitor the subjects’ itineraries and whereabouts if they attempt to leave the country through this, but cannot prevent them from flying.

PHDO rules, clarified

A PHDO is a relatively new mechanism that started only in 2018.

It was triggered by a tussle between then-DOJ secretary Leila de Lima and former president Gloria Macapagal-Arroyo. De Lima issued an HDO against Arroyo, citing DOJ Circular No. 41 signed by former justice secretary Alberto Agra, which empowered DOJ chiefs to issue HDOs and watchlist orders.

The SC, however, stopped the HDO, but De Lima still succeeded in preventing Arroyo from leaving the country. Seven years later, in 2018, the SC introduced the PHDO.

Then, the SC explained that a PHDO applies to cases where the minimum penalty is at least six years and one day. It may be issued by a tribunal that has jurisdiction over the place where the alleged crime was committed.

In a ruling on August 7, the SC reiterated that PHDOs may also be issued in cases where a respondent is a foreigner, regardless of the penalty. The Abad v. People ruling, penned by Associate Justice Maria Filomena Singh, however, reiterated that a PHDO may only be issued in the aforementioned instances.

“The SC also clarified that PHDOs are intended to apply while the preliminary investigation is still pending. Once completed and an information is filed in court, the rules governing regular Hold Departure Orders apply,” the High Court said.

“The PHDO may be temporarily lifted upon the filing before the issuing court a verified motion based on meritorious grounds — that is, based on the complaint and the evidence that the respondent will present, there is doubt that probable cause exists to issue the PHDO or it is shown that the respondent is not a flight risk,” it added. – Rappler.com