Requirements to Issue a Hold-Departure Order (HDO) in the Philippines (complete guide for lawyers, compliance officers, and travellers)
1. What a Hold-Departure Order Is
A Hold-Departure Order (HDO) is a judicial or executive directive to the Bureau of Immigration (BI) commanding immigration officers at all ports of exit to stop a named individual from leaving the Philippines. Its purpose is to secure the jurisdiction of Philippine authorities over a person who is:
- already charged in court, or
- undergoing preliminary investigation for a serious offense.
Although it restricts the constitutional right to travel (Art. III, § 6, 1987 Constitution), the Supreme Court has long recognised that such limitation is valid when “provided by law” to protect public interest and to ensure the orderly administration of justice (e.g., Silverio v. CA, G.R. No. 94284, 8 Apr 1991).
2. Dual Sources of an HDO
| SOURCE | LEGAL INSTRUMENT | STAGE OF CASE | KEY OFFICIAL |
|---|---|---|---|
| Courts | Supreme Court OCA Circular 39-97 (Guidelines in the Issuance of HDOs) and Rule 135, § 5, Rules of Court | After information is filed | Presiding Judge of the trial court (usually an RTC) |
| Department of Justice | DOJ Circular 41-2010 (Consolidated Rules on HDO, Watch-List Order & Allow-Departure Order) | During preliminary investigation (before filing in court) | Secretary of Justice (SOJ) |
Important — Immigration Look-Out Bulletin Orders (ILBOs) are not HDOs. An ILBO merely alerts BI to watch for a person; it does not bar departure unless an HDO is subsequently issued.
3. Court-Issued HDO
Court authority is the older and more straightforward mode.
3.1 Statutory & procedural anchors
- Rule 135, § 5, Rules of Court — every court may “control, in furtherance of justice, the conduct of its ministerial officers and of all other persons in any manner connected with a pending litigation.”
- OCA Circular 39-97 (as amended by OCA Circular 57-97 & related directives) — prescribes the formal content, grounds, and transmission procedure.
3.2 Requisites
A criminal case has been filed and probable cause found.
Offense is punishable by at least six (6) years and one (1) day imprisonment or the accused is a foreign national, whatever the penalty.
A verified written motion or request (by the prosecutor, complaining witness, or motu proprio by the court) showing the likelihood of flight.
Order must state:
- Full name (and aliases, if any)
- Date & place of birth
- Last known address, nationality, passport no.
- Case title, docket no., exact offense charged
Copies furnished immediately to:
- Bureau of Immigration (Commissioner & Port Operations Division)
- Department of Foreign Affairs, and where appropriate, the accused’s embassy
Posting in the e-HDO database (accessible to all ports of exit) by the BI within 24 hours of receipt.
3.3 Duration & lifting
- Remains valid until revoked by the issuing court or upon final termination of the case (acquittal, dismissal, or service of sentence).
- Accused may seek temporary travel leave by filing a verified motion to travel + travel bond; court issues a Travel Authority specifying period, purpose, and countries to be visited.
4. DOJ-Issued HDO (Administrative HDO)
Introduced to plug the gap before a case reaches court.
4.1 Legal basis
- DOJ Circular 41-2010 (superseding DOJ Circular 17-05 and allied issuances)
- Anchored on the SOJ’s power to “direct and control” prosecutors (Administrative Code of 1987, Book IV, Title III, Chap. 7, § 38).
4.2 Who may request
| Requesting party | Minimum showing |
|---|---|
| Investigating Prosecutor | Existence of probable cause or reasonable belief that respondent’s departure will frustrate prosecution |
| Law-enforcement agency (e.g., NBI, PNP) | Complaint already filed with the DOJ + urgency |
| Private complainant | Same as above and sworn certification that matter is “of extreme urgency and necessity.” |
4.3 Documentary requirements
Sworn Application detailing facts, offenses, and grounds for issuance.
Certified true copies of:
- Complaint-Affidavit & supporting evidence
- Subpoena or notice of preliminary investigation
Proof of nationality / passport details of respondent (if available).
4.4 Administrative screening
- A five-member panel in the Office of the Chief State Prosecutor (OCSP) evaluates completeness.
- If meritorious, panel drafts an HDO for SOJ’s signature within 24 hours of receipt.
- The signed HDO is coursed to BI electronically and in hard copy.
4.5 Effectivity & duration
- Takes effect immediately upon receipt by BI.
- Expires after five (5) years unless earlier revoked or renewed for compelling reasons.
4.6 Remedies
| Remedy | Where filed | Conditions |
|---|---|---|
| Motion to Lift / Revoke HDO | Office of the Secretary of Justice | Demonstrate that (a) no more probable cause, or (b) conditions no longer justify the restriction. |
| Allow-Departure Order (ADO) | By motion to SOJ | Exceptional travel (humanitarian, medical, business) + travel bond (₱30 000 up to amount set by SOJ). |
| Judicial Review (certiorari or prohibition) | Court of Appeals / Supreme Court | Alleging grave abuse of discretion (see G.R. Nos. 199034 & 199046, GMA v. SOJ, 13 Mar 2013). |
5. Key Jurisprudence & Doctrines
| Case | G.R. No. | Ratio / Principle |
|---|---|---|
| Silverio v. CA | 94284 (1991) | Right to travel may be restricted in the interests of justice; court may issue HDO to secure jurisdiction. |
| People v. Uy | 160086 (15 Mar 2004) | Affirmed RTC’s inherent power to forbid departure while case is pending. |
| GMA & FG v. SOJ | 199034 & 199046 (13 Mar 2013) | DOJ Watch-List Order is void without statutory basis; an administrative HDO, however, is valid when anchored on DOJ Circular 41 and due process is observed. |
| People v. Gozo | 192907 (2011) | Bail does not automatically lift an HDO; separate court leave to travel is required. |
6. Interaction with Bail & Other Travel Restrictions
Posting bail relieves an accused of physical custody but does not annul an HDO.
Hold-Departure Order vs. Exclusion / Deportation
- HDO keeps a person in; deportation throws a foreigner out.
- The same individual may be subject to both, but each follows different procedures.
ILBO (Immigration Look-Out Bulletin Order)
- Merely alerts BI to refer the traveller to issuing agency; it becomes an effective bar to departure only when the ILBO refers to an existing HDO or warrant.
7. Practical Compliance Checklist
| Step | Court-Issued HDO (accused) | DOJ-Issued HDO (respondent) |
|---|---|---|
| 1. Verify existence | Secure certified copy from RTC Clerk of Court. | Ask DOJ-Docket or BI-Legal if name appears under HDO list. |
| 2. Seek remedy | Motion to Travel / Lift filed with same trial court; attach itinerary, passport, surety bond, and justification. | Motion to Lift or ADO filed with SOJ; attach medical proof / invitation / itinerary + waiver to appear upon return. |
| 3. Follow-through | Get court order lifting HDO or issuing Travel Authority — file-stamp copy must reach BI Main Office before travel. | Wait for written ADO or lifting order; check that BI Watch-List Unit has encoded it. |
8. Penalties for Breach & Misuse
- Immigration officers who allow exit despite a valid HDO may face administrative and criminal liability (Administrative Code, Book IV; RA 3019).
- Traveller who departs by subterfuge commits indirect contempt of court (if court-issued) or violation of Art. 151, RPC (resistance to a person in authority).
- Filing a frivolous request for HDO may subject movant to malicious prosecution or disciplinary sanctions (Rule 139-B, Rules of Court).
9. Comparative Note: Special HDOs under Specific Laws
| Law | Who may be subjected | Trigger |
|---|---|---|
| RA 9208 (Anti-Trafficking in Persons Act) | Accused or even material witness | Upon filing of complaint or when witness protection is needed |
| RA 9165 (Comprehensive Dangerous Drugs Act) | Accused or respondent | Same — to ensure appearance at trial |
| RA 11222 (Simulated Birth Rectification) | Prospective adoptive parent avoiding proceedings | Petition by DSWD |
These statutes either deem HDOs mandatory or lower the threshold for issuance.
10. Conclusion
The Hold-Departure Order occupies a sensitive intersection between the right to travel and society’s need to enforce its criminal laws. Understanding who may issue it, when, and under what safeguards is essential for both practitioners and citizens.
For the accused or respondent, immediate verification and, where warranted, prompt recourse to the proper motion (lift, travel authority, or ADO) prevent unnecessary denial of travel.
For prosecutors and complainants, strict adherence to the documentary and procedural requirements—especially the need to prove flight risk and to furnish complete personal identifiers—ensures that the order will withstand judicial or administrative scrutiny.
By following the clear, albeit distinct, rules under OCA Circular 39-97 and DOJ Circular 41-2010, stakeholders can wield the HDO responsibly, safeguarding due process while protecting the integrity of criminal proceedings.