EXPLAINER: What is a precautionary hold departure order?

The Office of the Ombudsman has asked the Sandiganbayan to issue a precautionary hold departure order (PHDO) against Senator Rodante Marcoleta, former congressman Mike Defensor, and two others after bribery and plunder charges were recommended against them.

If granted, a PHDO will bar Marcoleta and others from leaving the country while the investigation is ongoing.

The Supreme Court (SC) approved in 2018 a rule on the issuance of PHDO against suspected criminals in cases where the minimum penalty is at least six years and a day.

The rule was issued months after the SC struck down as unconstitutional the Secretary of Justice's authority to issue travel ban orders.

Then-Justice Secretary Menardo Guevarra had raised serious law enforcement concerns after the SC voided the power.

What is a PHDO?

A PHDO is an order in writing issued by a court “commanding the Bureau of Immigration to prevent any attempt by a person suspected of a crime to depart from the Philippines.”

Such an order also covers a foreigner regardless of the imposable penalty, the SC said.

A request for a PHDO may be filed by a prosecutor with any regional trial court within whose territorial jurisdiction the alleged crime was committed.

“Provided that, for compelling reasons, it can be filed with any regional trial court within the judicial region where the crime was committed if the place of the commission of the crime is known,” the SC said.

An application must be filed before a judge to obtain a PHDO. After personally examining witnesses under oath, the judge will decide if there is a “high probability” that the individual will flee the country to avoid arrest and criminal prosecution

“The judge shall personally examine under oath or affirmation, in the form of searching questions and answers in writing, the applicant and the witnesses he or she may produce on facts personally known to them and attaching to the record their sworn statements,” the SC said.

“If the judge finds that probable cause exists and there is a high probability that the respondent will depart, he or she shall issue the PHDO and direct the Bureau of Immigration to hold and prevent the departure of the respondent at any Philippine airport or ports. Otherwise, the judge shall order the dismissal of the application,” it added.

However, should the prosecutor dismiss the criminal complaint due to a lack of probable cause following the preliminary investigation, the respondent can cite this dismissal as a basis to petition the issuing Regional Trial Court to lift the PHDO.

“If the prosecutor, after preliminary investigation, dismisses the criminal complaint for lack of probable cause, then the respondent may use the dismissal as a ground for the lifting of the PHDO with the regional trial court that issued the order,” the SC said.

“If the prosecutor finds probable cause and files the criminal information, the case with the court that issued the PHDO, on motion of the prosecutor, shall be consolidated with the court where the criminal information is filed,” it added.

Further, the respondent may file a verified motion before the issuing court for a temporary lifting of PHDO on meritorious grounds – showing that probable cause exists to issue the order or showing that they are not a flight risk.

The respondent may petition the issuing court for permission to travel abroad by posting a bond, the SC explained. The court will determine the bond amount, and the travel will remain subject to the specific terms outlined in the order that temporarily lifts the PHDO.

But what is the difference between a PHDO and an HDO?

If a PHDO is issued while an investigation is ongoing, the Bureau of Immigration said that an HDO is filed if there is a criminal case pending before a regional trial court.

In the case of Marcoleta and others, the recommendation of criminal charges remains pending before the Ombudsman. –NB, GMA News