In the Philippine legal system, the right to travel is a constitutionally protected liberty. However, this right is not absolute and may be curtailed in the interest of national security, public safety, or public health, as provided by law. One of the most significant restrictions on this right is the Hold Departure Order (HDO).
This article explores the legal grounds, the procedural framework, and the mechanisms for lifting an HDO under current Philippine laws and jurisprudence.
I. What is a Hold Departure Order (HDO)?
A Hold Departure Order (HDO) is a directive issued by a proper court commanding the Bureau of Immigration (BI) to prevent a specific individual from leaving the Philippine jurisdiction.
It is a provisional remedy intended to ensure that an accused individual remains within the reach of the court’s processes and does not flee to evade prosecution or the service of a sentence.
II. Grounds for Issuance
Under existing Supreme Court circulars (specifically A.M. No. 18-07-05-SC), the rules regarding who can issue an HDO have been refined to prevent abuse and ensure due process.
- Criminal Cases within Regional Trial Courts (RTC): An HDO may be issued in criminal cases within the exclusive jurisdiction of the Regional Trial Courts.
- Serious Crimes: Typically, these involve offenses where the penalty is at least six (6) years and one (1) day.
- Flight Risk: The court must find that there is a high probability that the accused will depart from the Philippines to evade arrest or prosecution.
- National Interest: In cases involving the Human Security Act (or the newer Anti-Terrorism Act) and certain plunder or high-level corruption cases, HDOs are frequently utilized.
Note on Lower Courts: Previously, Municipal Trial Courts (MTCs) could not issue HDOs. However, under newer rules, if a case is within the MTC's jurisdiction but the accused is a flight risk, the MTC can now issue a Preliminary Prohibitory Order (PPO) or a similar restrictive order, or the prosecution can apply for an HDO through the RTC.
III. The Process of Issuance
The issuance of an HDO typically follows these steps:
- Motion by the Prosecution: The government (via the prosecutor) files a motion with the court where the criminal case is pending, praying for the issuance of an HDO.
- Judicial Determination: The judge evaluates the motion. If the judge finds that the person is a flight risk or that the gravity of the offense warrants it, the HDO is issued.
- Service to the Bureau of Immigration (BI): Once issued, the court sends a copy of the order to the BI. The BI then encodes the individual's name into its Centralized Hold Departure List.
- Notification: Ideally, the accused should be notified, though in practice, many individuals discover they are on the list only when they attempt to check in at the airport.
IV. HDO vs. Watchlist Order (WLO)
It is crucial to distinguish between an HDO and a Watchlist Order (WLO):
| Feature | Hold Departure Order (HDO) | Watchlist Order (WLO) / ILB |
|---|---|---|
| Issuing Authority | Only the Courts (Judiciary) | Department of Justice (Executive) |
| Purpose | Prevent departure due to pending criminal case. | Monitor movement or prevent departure for investigation. |
| Duration | Valid until lifted by the court. | Usually valid for 60-90 days (extendable). |
In 2018, the Supreme Court ruled that the DOJ cannot issue HDOs against individuals without a pending court case, leading to the increased use of Interdiction Liaison Bulletins (ILB) for monitoring purposes.
V. How to Lift a Hold Departure Order
If you are subject to an HDO, it is not necessarily permanent. There are several legal avenues to have it lifted:
1. Motion to Quash/Lift the HDO
If the criminal case is dismissed, or if the accused is acquitted, the HDO is not automatically lifted in the BI system. The lawyer must file a Motion to Lift HDO in the court that issued it. Once the court grants the motion, it issues a Lifting Order, which must be submitted to the BI.
2. Posting of a Cash Bond (Allow Travel)
If the case is still ongoing but the accused needs to travel for urgent reasons (medical treatment, business, or family emergencies), they may file a Motion for Leave to Travel Abroad.
- The court usually requires a Travel Bond (often in cash).
- The accused must provide a specific itinerary and a return date.
3. Dismissal of the Main Case
The moment a case is terminated (Dismissal, Acquittal, or Service of Sentence), the legal basis for the HDO ceases to exist. However, the respondent must ensure the BI records are updated with a Certificate of Finality and the court's lifting order.
4. The "Allow Departure Order" (ADO)
In some instances, the court may issue a one-time "Allow Departure Order" for a specific trip without fully lifting the HDO for the duration of the trial.
VI. The "Look-List" and Redress
Sometimes, travelers are delayed because they share a name with someone on the HDO list (Identical Name cases). In such instances, the individual should apply for a Certificate of Not the Same Person (NTSP) from the Bureau of Immigration to avoid future inconvenience at the airport.
Summary Checklist for Travelers
- Verify Status: Check with the Bureau of Immigration if you suspect a pending case might have triggered an HDO.
- Secure the Order: If the case was dismissed years ago, ensure you have a certified true copy of the Order of Dismissal and the Lifting Order.
- Clearance: Obtain a Bureau of Immigration Clearance Certificate if you have previously been on a list.
Would you like me to draft a template for a Motion for Leave to Travel Abroad based on these legal grounds?