EN BANC

A.M. No. 18-07-05-SC - RE: RULE ON PRECAUTIONARY HOLD

DEPARTURE ORDER.

Promulgated:
August 7, 201 8 <.
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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.

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.

G.R. No. 197930, April 17, 2018

f
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/20I8/april2018/197930.pdf> [Per
J. Reyes, En Banc].
CONST., art III, sec. 6.
Dissenting Opinion 2 A.M. No. 18-07-05-SC

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:

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

G.R. No. 197930, April 17, 2018

f
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/20l8/april2018/197930.pdt> [Per
J. Reyes, En Banc].
 Dissenting Opinion 3 A.M. No. 18-07-05-SC

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)

4
Id. at 43.
J
Id. at 33.
Dissenting Opinion 4 A.M. No. 18-07-05-SC

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 ofprobable 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

I
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
Dissenting Opinion 5 A.M. No. 18-07-05-SC

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.

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

See People v. Castillo, 607 Phil. 754 (2009) [Per J. Quisumbing, Second Division].
I
People v. lnting, 265 Phil. 817, 822 (1990) [Per J. Gutierrez, Jr., En Banc].
Dissenting Opinion 6 A.M. No. 18-07-05-SC

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 tum 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 findsthat proba. hie cause exists and there is high probability
that the respondent will depart, he or she shall issue the PHDO and direct
f
the Bureau of Immigration to hold and prevent the departure of the
 Dissenting Opinion 7 AM. No. 18-07-05-SC

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 confhsion 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.

J
607 Phil. 754 (2009) [Per J. Quisumbing, Second Division].
9
Id. at 765.
Dissenting Opinion 8 A.M. No. 18-07-05-SC

Precisely, Genuino is the signal for the Department of Justice to give

priority to and, withill' 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

warrantiess 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.
)
Dissenting Opinion 9 A.M. No. 18-07-05-SC

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 /

IO RULE ON PRECAUTIONAR y HOLD DEPARTURE ORDER, sec. I.

Dissenting Opinion 10 A.M. No. 18-07-05-SC

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.

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.