(Article published in the Oct 6,2003 issue of TODAY, Business Section)
Not a few foreign
investors, both here and abroad, were stunned to hear of the furor about
an Indian national working with a foreign bank who was stopped last Sunday
by immigration officials from leaving the country at the Ninoy Aquino
International Airport on the basis of a hold-departure order (HDO) issued
by the Secretary of Justice in the afternoon of the previous Friday.
The bank official was, to
the credit of the office in charge, Undersecretary Merceditas Gutierrez,
permitted to leave the following day and, in vindication of her good
judgment, has since returned. Still, the incident continues to send
shivers along the spine of many aliens who are in the country and casts a
shadow on the efforts of government officials frantically trying to
convince foreign tourists and investors that the Philippines is worth
I am the partner in charge
of external counsel of the foreign bank where the Indian national works
and am therefore not at liberty to discuss the on-going issues relating to
last week’s HDO, but, now is as good a time as any for me to let my
readers learn more about this seemingly terrifying animal.
I myself had to contend with one, once upon a time during my
reckless youth, and I know how distressing it could be to be stopped at
the immigration section of the airport, with your bags all checked in and
people waiting to meet you at the other end of the trip.
There are two major
issuances presently governing the issuance and implementation of HDOs.
One, the more widely known, is Supreme Court Circular 39-97 issued
to all judges on June 19, 1997. The
other, many people are unaware of, is Department Circular 17 of the
Department of Justice promulgated by then-secretary Silvestre H. Bello III
about a year later. Both
recognize that the indiscriminate issuance of HDOs infringes on the
people’s right to travel guaranteed by the Constitution.
Both therefore profess that an HDO’s issuance should be
restrained. But, one is more
restrained than the other.
Supreme Court Circular No.
39-97 is very strict. It
permits judges to issue HDOs only (a) in criminal cases that (b) are
within the exclusive jurisdiction of the Regional Trial Courts.
The order must state the complete name, the date and place of birth
and place of last residence of the person against whom the HDO is issued,
the complete title and docket number of the case; the specific nature of
the case; and the date of the HDO. The
message is very clear: the HDO is a dangerous instrument; it should not be
Thus, in one case, Cruz
v. Iturralde, A.M. No. RTJ-03-1775, where Judge Iturralde was
subjected to an administrative case for, among others, expressing the
view, during the hearing on an application by a party in a civil case for
injunction under the Family Code, that he is not inclined to issue the HDO
and eventually denying the application, the Supreme Court maintained:
“The terms and
conditions for the issuance of a hold-departure order are clear and
unmistakable. They leave no
room for any interpretation and proscribe no deviation from their mandate.
Had respondent judge ruled otherwise, he would have been guilty of
gross ignorance of the law and/or willful violation of the aforesaid
Department of Justice
Circular No. 17 is less restrictive.
It tells the Commissioner of Immigration to implement an HDO when
issued by, in addition to the courts in accordance with Supreme Court
Circular No. 39-97, (a) by the President, or on his or her instructions,
in the interest of national security, public safety or public health, as
may be provided by law; and (b) by the Secretary of Justice, in six
The first three HDO that
the Secretary of Justice empowered himself to issue are (a) against an
accused who is released on bail; (b) against a fugitive from justice; (c)
against an alien who is accused in a criminal case that is pending trial
before a court. These three
conform to the Supreme Court’s thrust of limiting the HDO to criminal
But items (a) and (b)
removed the Supreme Court’s further limitation that the case must be of
such a nature as to be within the jurisdiction of the Regional Trial
Court. In effect, the Secretary of Justice has made himself more powerful
than the judge of a municipal trial court, even if, the present trend at
this time is to increase the jurisdiction of these lower court judges.
And item (c) seems to be
an unwarranted focus on aliens. If
the rationale of being accused in a criminal case is basis enough for an
HDO against an alien, why is not basis for an HDO against a Filipino?
The fourth instance is
reasonable enough: when an alien is respondent in a deportation complaint
before the Bureau of Immigration for violation of immigration laws, rules
and regulations, upon recommendation of the Board of Special Inquiry or of
the Board of Commissioners.
The Secretary of Justice
also made himself the issuer of HDOs against an alien whose presence is
required as witness in a criminal case, or as defendant/respondent or
witness in a civil, labor or other case before a judicial, quasi-judicial
or administrative body of the government.
At least three issues may
be raised against the soundness of this rule, as it presently stands. First,
there is no reason why aliens are singled out.
There is no reason why an alien whose presence is required cannot
leave the country but a Filipino whose presence is just as required can be
free to go. Second,
there is an inherent vagueness on the phrase “whose presence is
required”. Required by
whom? When required? For what required? Note that the presence need not be indispensable.
It suffices that it is simply “required”.
Third, the judicial, quasi-judicial or administrative body, alleged
to be hearing the case, is not even consulted to comment on whether indeed
the presence of the object of the HDO is required.
These, and more, lend credence to the impression of an HDO, based
on this ground, is more of a hold-up instrument than anything else.
The sixth instance of a
Secretary of Justice HDO is when he is so requested by the Head of a
Department of the Government, the head of a constitutional body or of a
commission or agency performing quasi-judicial functions; the Chief Justice of the
Supreme Court for the Judiciary; or by the President of the Senate or the
Speaker of the House of Representatives.
But in these cases, the adverse party must be the Government or any
of its agencies or instrumentalities, and the issuance must be in the
interest of national security, public safety or public health, as may be
provided by law.
It is easy to see why
these rules need a second look at this time.
The experience of more than five years should shed light on whether
they can be further improved, in order to, on the one hand, ensure the
effectiveness of a hold-order when it is really necessary, and, on the
other, prevent it from being abused to the injury not just of the
individual held but of the country too.
In making such review, it
may be good to heed the advice of the Supreme Court, which surprisingly,
at least in this case, exhibited sensitivity to the signs of the times:
“With the global village
shrinking at a rapid pace, propelled as it is by technological leaps in
transportation and communication, we need to push further back our
horizons and work with the rest of the civilized nations and move close to
the universal goals of ‘peace, equality, justice, freedom, cooperation
and amity with all nations’”.