The prosecutor, even as parties exchange affidavits during preliminary investigation, can apply for one to the court

When a person commits a crime, a case is not automatically filed with the court. Instead, it generally goes through a procedure called preliminary investigation. The fiscal acts like a judge and determines whether the complaint deserves prosecution. That is, if it is worthy of elevation to the court for trial. And, usually, it takes some time.

It entails filing a complaint (called complaint-affidavit) by the aggrieved party, an answer (counter-affidavit) by the person being held criminally responsible called respondent and if parties opt to, a reply to the answer (reply-affidavit of complainant) and a response to the reply (rejoinder-affidavit by respondent).

After that the prosecutor will determine whether the party sued is probably guilty of the crime.

Note that the prosecutor does not say respondent is guilty, but only declares that he may be. And for that, the case proceeds to the court. The court issues a warrant of arrest. And if applied for by the prosecution, the court can issue a hold departure order (HDO).

As a result, the person being held liable, who is now called an accused, is barred from leaving the country. That is due process.

A person’s constitutional right to travel is not easily curtailed. Only after the procedure discussed above is followed can the HDO be issued.

But where does the problem lie? By the time the case reaches the court, the accused may have long left the country. Sensing he will be indicted, the accused decides to flee. He evades prosecution.

The court cannot proceed to trial. Case is archived. And all the time and effort the complainant spent during the preliminary investigation go down the drain.

In my years of practice as a litigator, I feel that, that seems to be the flaw in procedure.

The time between the preliminary investigation and filing of the case affords the respondent a chance to escape. I, in fact, inform my clients about such possibility, as no HDO can be issued while preliminary investigation is ongoing.

From what I have read on the news recently, the Supreme Court on 7 August 2018 approved the rule on the issuance of precautionary hold departure orders (PHDO). I have not yet seen the rules in the flesh. They have yet to be published in major dailies as of this writing.

But from what I gathered, the rules allow the issuance of a PHDO even during preliminary investigation. Thus, the word “precautionary” is added to “hold departure order.” The prosecutor, even as parties exchange affidavits (i.e., complaint, counter, reply and rejoinder) during preliminary investigation, can apply for one to the court. The court, after determining the possibility of flight by respondent, can already issue the PHDO. So here, even when there is no determination of probable cause yet, the respondent may already be barred from leaving the country.

A person’s constitutional right to travel is not easily curtailed. Only after the procedure discussed above is followed can the HDO be issued.

The moment he sets foot on our airports or seaports, immigration authorities can and will stop him. This obviates respondent’s possibility of flying out the country even before a case is filed in court. This also forecloses the probability of the case files gathering dust in the court’s archives. In our jurisdiction, the court can only proceed with the case after it acquires jurisdiction over the accused. And that is upon the accused’s arrest or voluntary surrender. Of course, the aggrieved can have the accused extradited back to the Philippines. But that is another story altogether.

How about the respondent, what happens if a PHDO is issued against him? People usually dread the extreme. Is he arrested? Thrown behind bars? Disallowed from seeing his family? Secluded from the public? Nothing of that sort. All there is, is that he is barred from stepping out of the Philippines. He can roam freely within the country. Anywhere he wants.

So, if sued in Manila and he opts to stay in the very ends of the country, say Babuyan Islands or Sulu, so can he. Also, even if a PHDO is issued, respondent is not absolutely barred from leaving the country. He can still ask permission from the court. The court, exercising its sound discretion, after looking into the circumstances, may still allow him to leave. Usually, the court requires him to post a hefty bond to guarantee his return.

Finally, from what I gathered, a PHDO can only be applied for if the imposable penalty for the crime charged is imprisonment of more than six years. If shorter, the court will outright deny the application. So, bear in mind that not in all crimes can the prosecution ask the court for one.

I am eager to see the rules. I hope they are published soon. The sooner they are, the earlier they take effect. The PHDO certainly helps secure the accused’s presence when the case reaches the court. And that is something the HDO cannot afford under the present rules.