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Datumanong saves the day for foreign investors

(Article published in the Nov 3, 2003 issue of TODAY, Business Section)

I did not think it would come and certainly not that quickly.  But it seems that the Department of Justice is not the slow moving behemoth of a bureaucracy that the media is wont to picture it as.

It was only about a month ago when this column advocated a second look at the discretion given to the Secretary of Justice, under his own Circular 17 dated March 19, 1998, to place aliens in the Hold Departure List sans a court order.  On 17 October 2003, in lifting the hold departure order he issued on September 26, 2003, Justice Secretary Simeon A. Datumanong steps are being taken in that direction.  To the comfort of foreign investors watching how the government would handle such a delicate matter, he demonstrated that, in practice, the discretion of the Secretary of Justice under Circular No. 17 was not as broad as the text seems to suggest.

It has become clear that the Department of Justice, as befits the lead government agency in ensuring the rule of law in the day to day operations of the government, in reality adheres to standards of reason and prudence, balancing carefully the needs of the state with the individualís right to travel. The standards may not be expressly written in full, but they are, like the unwritten law of gravity, nevertheless operative.  They formed the basis of Secretary Datumanongís Order of October 17, 2003.

The specific provision of Circular 17, which foreign investors had always been anxious about, is Paragraph 2(c)(v) which states that a Hold Departure Order (HDO) is to be implemented by the Commissioner of Immigration when it is issued by the Secretary of Justice, upon application of an interested party, against an alien whose presence is required as witness in a criminal case, or as the defendant or respondent or witness in a civil, labor, or other case before a judicial, quasi-judicial or administrative body of the government.  On this legal leg stood HDO No. 0913 issued last September 26, 2003 against three expats working in an internationally reputable bank which has been a partner in Philippine progress longer than any bank existing in the country today.

On its face, it appears that all it takes, under Paragraph 2(c)(v) of Circular 17, to harass a foreigner by restricting his freedom to travel in and out of the country on legitimate business is to file a complaint against him with the Secretary of Justice, alleging that his presence is necessary (a) as a witness in a criminal or civil case or (b) as the party sued in a pending case in the country.  That view, the October 17, 2003 order of Secretary Datumanong shows is erroneous. 

In his Order numbered HDO 0913-A, Secretary Datumanong noted that, in the case of the three expats held in the country by HDO 0913, no request was received by his department from the other agencies cited by the counsel of the applicant for the HDO, such as the Securities and Exchange Commission, the Bangko Sentral ng Pilipinas, the Anti-Money Laundering Council, and the National Labor Relations Commission, or in any other agency of the government for the issuance of the HDO.  True, complaints had been filed by the applicant, but still, no subpoenas or summons had been issued by any of the said government agencies for them to appear in any proceeding or to answer any charge or complaint. 

By pointing this out in the premises of his October 17 order, Secretary Datumanong reveals that a request to his office from the government agencies concerned is a necessary condition for him, or anyone holding his office, to consider issuing an HDO.  At the very least, what ought to be presented by the interested party seeking an HDO against an alien is the fact that a formal process, like a subpoena or summons requiring the alien to appear in any proceeding before the issuing agency or answer a charge or complaint filed with it, has been issued.  This is the minimum requirement to prove need for the alienís presence.  It must emanate from the government agency itself.  Not volunteered by a self-serving party.

Even the issuance of a subpoena or summons, however, will not guarantee that the Secretary of Justice will exercise his discretion in favor of the applicant. Subpoenas were in fact  issued by the Department of Justice against the three expats who were being investigated by that office for syndicated estafa. But the Secretary noted that the Chief State Prosecutor had interposed no objection to of HDO 0913, subject only to certain conditions.