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Hold-Departure Order: A hold-up?

(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 going to.

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 trifled with.

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 circular.”

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 instances.

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 cases only.

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’”.

We obviously cannot do that if we insist on building fences too high and unnecessarily hemming people, citizen and aliens alike, in.