How do you make someone stay if he or she wants to go? In all other instances, it may be hard to do, but in a criminal case for example, you can actually get an order to make someone stay, not with you, but in order to face justice. The Department of Justice in Department Circular No. 41 dated 7 June 2010 has spelled out in detail how this is made operational.
Please note that the right to travel is actually enshrined in the Constitution.[1] And any effort to restrict or limit this right must have strong basis. As stated by the Supreme Court in one guideline “the indiscriminate issuance of Hold-Departure Orders” can result in “inconvenience to the parties affected the same being tantamount to an infringement on the right and liberty of an individual to travel.”[2]
An individual can be prevented from traveling under two types of orders, the Hold Departure Order and the Watch List Order which can be issued by the Secretary of Justice.
Hold Departure Order
As stated in the Circular, a Hold Departure Order can be issued against (a) an accused in criminal cases under the jurisdiction of the Regional Trial Courts and even (b) against aliens whose presence is required either as respondents or as witnesses.
The Secretary of Justice may issue an HDO, under any of the following instances:
1. Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of courts below the Regional Trial Courts (RTCs):
a) If the case against the accused is pending trial, the application under oath of an interested party must be supported by (a) a certified true copy of the complaint or information; and (b) a Certification from the Clerk of Court concerned that criminal case is still pending.
b) If the accused has jumped bail or has become a fugitive from justice, the application under oath of an interested party must be supported by (a) a certified true copy of the complaint or information; (b) a certified true copy of the warrant/order of arrest; and (c) a Certification from the Clerk of Court concerned that the warrant/order of arrest was returned unserved by the peace officer to whom the same was delivered for service.
2. Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before a quasi-judicial or an administrative agency of the government.
The application under oath of an interested party must be supported by (a) a certified true copy of the subpoena or summons issued against the alien; and (b) a certified true copy complaint in civil, labor or administrative case where the presence of the alien is required.”
3. The Secretary may likewise issue an HDO against any person, either on his own, or upon the request by the Head of a Department of the Government, the head or a constitutional body or commission, the Chief Justice of the Supreme Court for the Judiciary, the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health.” (Section 1.)
Watchlist Order
Apart from the HDO, the Circular also covers the Watch List Order which is available for (a) criminal cases pending before lower courts, or even for (b) cases still under preliminary investigation. Again, it can be issued by the Secretary on his own or upon request.
The Secretary of Justice may issue a WLO, under any of the following instances:
1. Against the accused, irrespective of nationality, in criminal cases pending trial before the Regional Trial Court or before courts below the Regional Trial Courts.
The application under oath of an interested party must be supported by (a) certified true copy of the Information filed with the court; (b) a certified true copy of the Prosecutor's Resolution; and (c) a Certification from the Clerk of Court concerned that criminal case is still pending.
2. Against the respondent, irrespective of nationality, in criminal cases pending preliminary investigation, petition for review, or motion for reconsideration before the Department of Justice any of its provincial or city prosecution offices.
The application under oath of an interested party must be supported by (a) certified true copy of the complaint filed; and (b) a Certification from the appropriate prosecution office concerned that the case is pending preliminary investigation, petition for review, or motion for reconsideration, as the case may be.
3. The Secretary of Justice may likewise issue a WLO against any person, either on his own, or upon the request of any government agency, including commissions, task forces or similar entities created by the Office of the President, pursuant to the "Anti-Trafficking in Persons Act of 2003" (R.A. No. 9208) and/or in connection with any investigation being conducted by it, or in the interest of national security, public safety or public health.. (Section 2)
Periods of Validity; Lifting and Cancellation
The HDO is valid for five (5) years from issuance while the WLO is good for sixty (60) days (Section 4).
The HDO and WLO can be lifted or cancelled as follows:
1. When the validity period of the HDO has already expired;
2. When the accused subject of the HDO has been allowed to leave the country during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/order of arrest was issued has been dismissed or the warrant/order of arrest has been recalled;
3. When the civil or labor case or case before an administrative agency of the government wherein the presence of the alien subject of the HDO/WLO has been dismissed by the court or by appropriate government agency, or the alien has been discharged as a witness therein, or the alien has been allowed to leave the country.
The WLO may be lifted or cancelled under any of the following grounds:
1. When the validity period of the WLO has already expired;
2. When the accused subject of the WLO has been allowed by the court to leave the country during the pendency of the case, or has been acquitted of the charge;
3. When the preliminary investigation is terminated, or when the petition for review, or motion for reconsideration has been denied and/or dismissed.
All applications for lifting/cancellation of HDOs/WLOs must be under oath and accompanied by certified true copies of the documentary evidence in support of the ground relied upon.
Any HDO/WLO issued by the Secretary of Justice either on his own or upon request of government functionaries/offices mentioned in Sections 1 and 2 of the Circular, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health, may be lifted or recalled anytime if the application is favorably indorsed by the government functionaries/offices who requested the issuance of the aforesaid HDO/WLO. (Section 5)
Allow Departure Order
If you wish to leave and the subject orders cannot be lifted or cancelled, you can apply for an Allow Departure Order.
Any person subject of HOO/WLO issued pursuant to this Circular who intends, for some exceptional reasons, to leave the country may, upon application under oath with the Secretary of Justice, be issued an ADO
The ADO
1. Affidavit stating clearly the purpose, inclusive period of the intended travel, and containing an undertaking to immediately report to the DOJ upon return; and
2. Authority to travel or travel clearance from the court or appropriate government office where the case upon which the issued HDO/WLO was based is pending, or from the investigating prosecutor in charge of the subject case. (Section 7)
Mistaken Identity
In cases of mistaken identity, you have recourse to a certification that you are not the same person whose name appears in the HDO/WLO:
Any person who is prevented from leaving the country because his/her name appears to be the same as the one that appears in the HDO/WLO issued pursuant to this Circular may, upon application under oath, be issued a Certification to the effect that said person is not the same person whose name appears in the issued HDO/WLO.
The Certification may be issued upon submission of the following requirements:
1. Affidavit of Denial;
2. Photocopy of the page of the passport bearing the personal details;
3. Latest clearance from the National Bureau of Investigation (NBI); and
4. Clearance from the court or appropriate government agency, whenever applicable. [Section 8]
It remains to be seen whether the Circular will withstand constitutional challenge as it can be abused specially when invoked using such grounds as “national security.” But it is a way to make those who seek to escape accountability by going to foreign lands face the music here. Now if only we can enforce it against fleeing senators and department secretaries for their crimes and scams.
[1] SECTION 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.(ARTICLE III, Constitution)
[2] OCA CIRCULAR NO. 39-97
