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OCA CIRCULAR NO.

194-2018 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
In its 7 August 2018 Resolution in A.M. 18-07-05 SC (Rule on Bureau of Immigration to hold and prevent the departure of the respondent at
Precautionary Hold Departure Order), the Court Resolved to approve the any Philippine airport or ports. Otherwise, the judge shall order the dismissal of
rule on Precautionary Hold Departure Order. the application.

Published in Philippine Daily Inquirer and Philippine Star on Sept 1 2018 Section 5. Preliminary finding of probable cause. – Since the finding of
and to take effect on 16 Sept 2018. 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
RULE ON PRECAUTIONARY HOLD DEPARTURE ORDER (AM: 18-07-05)
complaint considering the complaint-affidavit, counter-affidavit, reply-
affidavit, and the evidence presented by both parties during the
Section 1. Precautionary Hold Departure Order. – is an order in writing preliminary investigation. If the prosecutor after preliminary investigation
issued by a court commanding the Bureau of Immigration to prevent any dismisses the criminal complaint for lack of probable cause then the
attempt by a person suspected of a crime to depart from the Philippines, which respondent may use the dismissal as a ground for the lifting of the PHDO
shall be issued ex-parte in cases involving crimes where the minimum of with the regional trial court that issued the order. If the prosecutor finds
the penalty prescribed by law is at least six (6) years and one (I) day or probable cause and files the criminal information, the case with the court that
when the offender is a foreigner regardless of the imposable penalty. issued the PHDO, on motion of the prosecutor shall be consolidated with the
court where the criminal information is filed.
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 Section 6. Form and validity of the precautionary hold departure order. –
territorial jurisdiction the alleged crime was committed: Provided, that for The precautionary hold departure order shall indicate the name of the
compelling reasons, it can be filed with any regional trial court within the respondent, his or her alleged crime, the time and place of its
judicial region where the crime was committed if the place of the commission commission, and the name of the complainant. (See Annex “A” herein). A
of the crime is known; Provided, further, that the regional trial courts in the City copy of the application, personal details, passport number, photograph of the
of Manila, Quezon City, Cebu City, Iloilo City, Davao City, and Cagayan de Oro respondent, if available, shall be appended to the order. The order shall be
City shall also have the authority to act on applications filed by the prosecutor valid until lifted by the issuing court as may be warranted by the result of
based on complaints instituted by the National Bureau of Investigation, the preliminary investigation.
regardless where the alleged crime was committed.
The court shall furnish the Bureau of Immigration with a duly certified copy of
Section 3. Finding of probable cause. – Upon motion by the complainant in the hold departure order within twenty-four (24) hours from issuance.
a criminal complaint filed before the office of the city or provincial prosecutor,
and upon a preliminary determination of probable cause based on the
Section 7. Lifting of the Order. – The respondent may file a verified
complaint and attachments, the investigating prosecutor may file an application
motion before the issuing court for the temporary lifting of PHDO on
in the name of the People of the Philippines for a precautionary hold order
meritorious ground; that, based on the complaint-affidavit and the evidence
(PHDO) with the proper regional trial court. The application shall be
that he or she will present, 1) there is doubt that probable cause exists to issue
accompanied by the complaint-affidavit and its attachments, personal details,
the PHDO or 2) it is shown that he or she is not a flight risk: Provided, that the
passport number and a photograph of the respondent, if available.
respondent posts a bond; Provided, further, that the lifting of the PHDO is
without prejudice to the resolution of the preliminary investigation against the
Section 4. Grounds for issuance. – A precautionary hold departure order respondent.
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 Section 8. Bond. – Respondent may ask the issuing court to allow him or her
prosecution of crime against him or her. The judge shall personally examine 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
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 lifting of the PHDO.
personally known to them and attaching to the record their sworn statements.
Section 9. Effectivity. – This Rule shall take effect within fifteen (15) days TOPIC: BAIL not granted to those in the Military.
following its publication in two (2) newspapers of general circulation in the
Philippines. G.R. No. 88555 November 21, 1991

SAMPLE FORM: EDUARDO N. ASWAT, petitioner,


vs.
BRIGADIER-GENERAL ALEJANDRO GALIDO, in his capacity as
Commander of the Southern Luzon Command, Armed Forces of the
Philippines, Camp Guillermo Nakar, Lucena City, respondent.

FACTS: Petitioner Eduardo N. Aswat and victim Felix B. Nebres were both
enlisted men of the Armed Forces of the Philippines ("AFP") respectively
holding the ranks Private First Class and Corporal. Aswat and Nebres were
assigned to the Southern Luzon Command (SOLCOM) but Aswat was detailed
as caretaker of Brigadier General Galido's Baguio resthouse while Nebres was
assigned to act as a personal driver of Brigadier General Galido's wife. On 29
December 1988, petitioner was involved in a shooting incident at Dominican
Hills, Baguio City, which resulted in the death of Nebres.

Petitioner voluntarily surrendered to the Baguio City police authorities and has
been detained at the SOLCOM Headquarters in Camp Guillermo Nakar,
Lucena City since then.

On 20 April 1989, petitioner was charged before a SOLCOM General Court-


Martial ("SOLCOM-GCM") with violation of Article 94 of the Articles of War
("A.W."), the specification being homicide.

While the court-martial proceedings were going on, petitioner filed the instant
petition for habeas corpus

ISSUE1: W/N that the specification of homicide with which he was charged
was committed outside a military installation and hence the offense was
cognizable by a regular, civilian court; (NO)

As the law now stands, as long as the accused is subject to military law, as
defined under Article 2, A.W., he shall be punished as a court-martial may
direct.

Article 94, A.W., in its original form, did refer only to offenses committed inside
a Philippine military reservation as falling within the jurisdiction of a court-
martial. In 1948, however, R.A. No. 242 amended Article 94, A.W. by
providing that offenses committed outside a military reservation shall
also be punished as a court-martial may direct, but only "when the
offended party (and each one of the offended parties if there be more
than one)" is similarly subject to military law.
There is no question that both petitioner and the deceased Nebres were Petitioner, as already noted, is a person subject to military law, and under
subject to military law at the time the latter was shot and killed. Moreover, Article 70, A.W., "any person subject to military law charged with crime or with
when the petitioner asked for the affirmative relief of bail from the SOLCOM- a serious offense under these article shall be placed in confinement or in
GCM, he in effect recognized the jurisdiction of the General Court-Martial. arrest, as circumstances may require."
Hence, petitioner is properly deemed estopped to deny such jurisdiction.
Confinement is one way of ensuring presence during sessions of the
ISSUE 2: W/N he is entitled to be released on bail as a matter of right General Court-Martial; the more important reason underlying the
pursuant to Section 13, Article III of the Constitution; (NO) authority to impose confinement is the need to enable the proper military
authority to instill discipline with the command and thereby achieve
RATIO: Although the right to bail applies to "all," the Court has very recently command efficiency. By confining the petitioner, petitioner's unmilitary
ruled that the guarantee is not without any exception. In Comendador vs. De conduct may be curtailed from spreading within the ranks of the command.
Villa, et al., the Court en banc held: The necessity for such confinement is a matter properly left to the sound
discretion of petitioner's superior officers.
We find that the right to bail invoked by the private respondents in G.R.
No. 95020 has traditionally not been recognized and is not available in The authority of the respondent to order the arrest and confinement of the
the military, as an exception to the general rule embodied in the Bill of petitioner flows from his general jurisdiction over his command. Petitioner
Rights. This much was suggested in Arula, where We observed that being assigned to SOLCOM, he is directly under the command of then
the right to a speedy trial is given more emphasis in the military where Brigadier General Galido.
the right to bail does not exist.
ACCORDINGLY, the Court Resolved to DISMISS the Petition for Habeas
The justification for this exception is as follows: Corpus for lack of merit.

The unique structure of the military should be enough reason EXTRADITION


to exempt military men from the constitutional coverage on the Category: Constitutional Law
right to bail.
As a rule prospective extradites are entitled to notice and hearing only
when the case is filed in court and not during the process of evaluation.
Aside from structural peculiarity, it is vital to note that mutinous
soldiers operate within the framework of the democratic
system, are allowed the fiduciary use of firearms by the When may bail be granted to a possible extraditee.
government for the discharge of their duties and
Bail may be granted to a possible extraditee only upon a clear and convincing
responsibilities and are paid out of revenues collected from the
showing (1) that he will not be a flight risk or a danger to the community;
people. All other insurgent elements carry out their activities
and (2) that there exist special, humanitarian and compelling
outside of and against the existing political system.
circumstances. (Rodriguez, et al. vs. The Hon. Presiding Judge, RTC, Manila
Branch 17, et al., supra.).
xxx xxx xxx
Right to Bail in Extradition.
The argument that denial from the military of the right to bail would
violate the equal protection clause is not acceptable. This guarantee Q — Juan Antonio Muñoz was charged before the Hongkong Court with 3
requires equal treatment only of persons or things similarly situated counts of the offense of accepting an advantage as agent in violation of
and does not apply where the subject of the treatment is substantially Section 9 (1)(a) of the Prevention of Bribery Ordinance, Cap. 201 of
different from others. The accused officers can complain if they are Hongkong. He was also charged with seven (7) counts of the offense of
denied bail and other members of the military are not. But they cannot conspiracy to defraud, penalized by the common law of Hongkong. Warrants of
say they have been discriminated against because they are not arrest were issued against him. The DOJ received a request from the
allowed the same right that is extended to civilians. Hongkong Department of Justice for the provisional arrest of Muñoz. The NBI
later on arrested him on the basis of a warrant issued by the RTC, Manila. The
order was declared void by the CA, but its validity was sustained by the SC. In
the meantime, Hongkong Special Administrative Region filed with the RTC a On a more positive note, also after World War II, both international
petition for his extradition. He applied for bail which was initially denied but organizations and states gave recognition and importance to human rights.
which was reconsidered later, granting the petition for bail. There was a motion Thus, on December 10, 1948, the United Nations General Assembly adopted
to vacate the order but it was denied, hence, a special civil action for certiorari the Universal Declaration of Human Rights in which the right to life, liberty, and
was filed alleging that the trial court committed grave abuse of discretion all the other fundamental rights of every person were proclaimed. While not a
amounting to lack or excess of jurisdiction in admitting private respondent to treaty, the principles contained in the said Declaration are now recognized as
bail; that there is nothing in the Constitution or statutory law providing that a customarily binding upon the members of the international community. Thus,
potential extraditee has a right to bail, the right being limited solely to criminal in Mejoff v. Director of Prisons, 90 Phil. 70 (1951) the Court, in granting bail to
proceedings. a prospective deportee, held that under the Constitution, the principles set forth
in that Declaration are part of the law of the land. In 1966, the UN General
In his comment on the petition, Muñoz maintained that the right to bail Assembly also adopted the International Covenant on Civil and Political Rights
guaranteed under the Bill of Rights extends to a prospective extraditee; and which the Philippines signed and ratified. Fundamental among the rights
that extradition is a harsh process resulting in a prolonged deprivation of one’s enshrined therein are the rights of every person to life, liberty, and due
liberty. process.

Is a prospective extraditee entitled to bail? Explain. Section 13, Article III of the Constitution provides that the right to bail shall not
be impaired, thus:
ANS: Yes, in view of recent developments, in international law. The following
trends in international law cannot be ignored, such as: (1) the growing Sec. 13. All persons, except those charged with offenses punishable
importance of the individual person in public international law who, in the byreclusion perpetua when evidence of guilt is strong, shall, before conviction,
20th century, has gradually attained global recognition; (2) the higher value be bailable by sufficient sureties, or be released on recognizance as may be
now being given to human rights in the international sphere; (3) the provided by law. The right to bail shall not be impaired even when the privilege
corresponding duty of countries to observe these universal human rights in of the writ of habeas corpus is suspended. Excessive bail shall not be required.
fulfilling their treaty obligations; and (4) the duty of the Court to balance the
rights of the individual under our fundamental law, on one hand, and the law on Jurisprudence on extradition is but in its infancy in this jurisdiction.
extradition, on the other. Nonetheless, this is not the first time that the Court has an occasion to resolve
the question of whether a prospective extraditee may be granted bail.
The modern trend in public international law is the primacy placed on the
worth of the individual person and the sanctity of human rights. Slowly, In Government of United States of America v. Hon. Guillermo G.
the recognition that the individual person may properly be a subject of Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B. Jimenez,
international law is now taking root. The vulnerable doctrine that the a.k.a. Mario Batacan Crespo, G.R. No. 148571, September 24, 2002, 389
subjects of international law are limited only to states was dramatically SCRA 623, it was held that the constitutional provision on bail does not apply
eroded towards the second half of the past century. to extradition proceedings. It is “available only in criminal proceedings,” thus:

The Philippines, along with the other members of the family of nations, x x x. As suggested by the use of the word “conviction”, the
committed to uphold the fundamental human rights as well as value the worth constitutional provision on bail quoted above, as well as Section 4, Rule 114 of
and dignity of every person. This commitment is enshrined in Section II, Article the Rules of Court, applies only when a person has been arrested and
II of our Constitution which provides: “The State values the dignity of every detained for violation of Philippine criminal laws. It does not apply to extradition
human person and guarantees full respect for human rights.” The Philippines, proceedings because extradition courts do not render judgments of conviction
therefore, has the responsibility of protecting and promoting the right of every or acquittal.
person to liberty and due process, ensuring that those detained or arrested can
participate in the proceedings before a court, to enable it to decide without The provision in the Constitution stating that the “right to bail shall not be
delay on the legality of the detention and order their release if justified. In other impaired even when the privilege of the writ of habeas corpus is suspended”
words, Philippine authorities are under obligation to make available to every does not detract from the rule that the constitutional right to bail is available
person under detention such remedies which safeguard their fundamental right only in criminal proceedings. It must be noted that the suspension of the
to liberty. These remedies include the right to be admitted to bail. (Gov’t. of privilege of the writ of habeas corpus finds application “only to persons
Hongkong Special Administrative Region v. Hon. Felixberto Olalia, et al., G.R. judicially charged for rebellion or offenses inherent in or directly connected with
No. 153675, April 19, 2007). invasion.” (Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the
constitutional provision on bail merely emphasizes the right to bail in criminal guilt of the person detained is not in issue. (Hongkong Special Administrative
proceedings for the aforementioned offenses. In cannot be taken to mean that Region v. Hon. Olalia, et al., supra.).
the right is available even in extradition proceedings that are not criminal in
nature. (Gov’t. of Hongkong Special Administrative Region, G.R. No. 153675, Clearly, the right of a prospective extraditee to apply for bail in
April 19, 2007, Gutierrez, J). this jurisdiction must be viewed in the light of the various treaty
obligations of the Philippines concerning respect for the promotion and
Q — The SC in USA v. Purganan limited the exercise of the right to bail to protection of human rights. Under these treaties, the presumption lies in
criminal proceedings, however, in light of the various international treaties favor of human liberty. Thus, the Philippines should see to it that the
giving recognition and protection to human rights, particularly the right to life right to liberty of every individual is not impaired.
and liberty, is a reexamination of this Court’s ruling in Purganan in order, such
that, the right to bail may be available in extradition proceedings? Explain. Q— What is extradition? Explain.

ANS: Yes. First, the exercise of the State’s power to deprive an individual ANS: Section 29a) of Presidential Decree (P.D.) No. 1069 (The Philippine
of his liberty is not necessarily limited to criminal proceedings. Extradition Law) defines “extradition” as “the removal of an accused from
Respondents in administrative proceedings, such as deportation and the Philippines with the object of placing him at the disposal of foreign
quarantine, have likewise been detained. authorities to enable the requesting state or government to hold him in
connection with any criminal investigation directed against him or the
Second, to limit bail to criminal proceedings would be to close our eyes execution of a penalty imposed on him under the penal or criminal law of
to our jurisprudential history. Philippine jurisprudence has not limited the the requesting state or government.”
exercise of the right to bail to criminal proceedings only. The SC has
admitted to bail persons who are not involved in criminal proceedings. In fact, Extradition has thus been characterized as the right of a foreign power,
bail has been allowed in this jurisdiction to persons in detention during created by treaty, to demand the surrender of one accused or convicted of a
the pendency of administrative proceedings, taking into cognizance the crime within its territorial jurisdiction, and the correlative duty of the other state
obligation of the Philippines under international conventions to uphold to surrender him to the demanding state. It is not a criminal proceeding. Even if
human rights. the potential extraditee is a criminal, an extradition proceeding is not by its
nature criminal, for it is not a punishment for a crime, even though such
The 1909 case of US v. Go-Sioco, 12 Phil. 490 (1909), is illustrative. In punishment may follow extradition. It is sui generis, tracing its existence
this case, a Chinese facing deportation for failure to secure the necessary wholly to treaty obligations between different nations. It is not a trial to
certificate of registration was granted bail pending his appeal. After noting that determine the guilt or innocence of the potential extraditee. Nor is it a full-
the prospective deportee had committed no crime, the Court opined that “To blown civil action, but one that is merely administrative in character. Its object
refuse him bail is to treat him as a person who has committed the most serious is to prevent the escape of a person accused or convicted of a crime and to
crime known to law;” and that while deportation is not a criminal proceeding, secure his return to the state from which he fled, for the purpose of trial or
some of the machinery used “is the machinery of criminal law.” thus, the punishment.
provisions relating to bail was applied to deportation proceedings.
Q — How is extradition characterized if it is not a criminal proceeding?
In Mejoff v. Director of Prison and Chirskoff v. Commission of Explain.
Immigration, 90 Phil. 256 (1951), it was ruled that foreign nationals against
whom no formal criminal charges have been filed may be released on bail ANS: While extradition is not a criminal proceeding, it is characterized
pending the finality of an order of deportation. The Court of Mejoff relied upon by the following: (a) it entails a deprivation of liberty on the part of the
the Universal Declaration of Human Rights in sustaining the detainee’s right to potential extraditee and (b) the means employed to attain the purpose of
bail. extradition is also “the machinery of criminal law.” This is shown by
Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates
If bail can be granted in deportation cases, there is no justification the “immediate arrest and temporary detention of the accused” if such “will
why it should not also be allowed in extradition cases. Likewise, best serve the interest of justice.” Section 20 allows the requesting state “in
considering that the Universal Declaration of Human Rights applies to case of urgency” to ask for the “provisional arrest of the accused, pending
deportation cases, there is no reason why it cannot be invoked in extradition receipt of the request for extradition;” and that release from provisional arrest
cases. After all, both are administrative proceedings where the innocence or “shall not prejudice re-arrest and extradition of the accused if a request for
extradition is received subsequently.”
Obviously, an extradition proceeding, while ostensibly administrative,
bears all earmarks of a criminal process. A potential extraditee may be
subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to
the demanding state following the proceedings. “Temporary detention” may be
a necessary step in the process of extradition, but the length of time of the
detention should be reasonable.

Q — What is the standard of proof when a prospective extraditee applies for


bail? Explain.

ANS: An extradition proceeding being sui generis, the standard of proof


required in granting or denying bail can neither be the proof beyond
reasonable doubt in criminal cases nor the standard of proof of preponderance
of evidence in civil cases. While administrative in character, the standard of
substantial evidence used in administrative cases cannot likewise apply given
the object of extradition law which is to prevent the prospective extraditee from
fleeing our jurisdiction. In his Separation Opinion in Purganan, then Associate
Justice, now Chief Justice Reynato S. Puno, proposed that a new standard
which he termed, “clear and convincing evidence” should be used in
granting bail in extradition cases. According to him, this standard should be
lower than proof beyond reasonable doubt but higher than preponderance of
evidence. The potential extraditee must prove by “clear and convincing
evidence” that he is not a flight risk and will abide with all the orders and
processes of the extradition court.

In this case, there is no showing that private respondent presented


evidence to show he is not a flight risk. Consequently, this case should be
remanded to the trial court to determine whether private respondent may be
granted bail on the basis of “clear and convincing evidence.”