MOST Filipinos are at least vaguely familiar with the “hold-departure order,” which restricts the subject from departing from or traveling outside of the Philippines. But very few are aware of the legal dimensions behind the hold-departure order.

This column shall provide a general overview of these orders issued by trial courts insofar as they affect Filipino citizens facing criminal cases before the courts. There are other facets to the hold-departure order that shall be tackled in subsequent columns. 

A hold-departure order stands as an exception to the guarantee under the Bill of Rights of the Constitution that “the right to travel [shall not] be impaired except in the interest of national security, public safety, or public health, as may be provided by law” (cf. Section 6, Article III.) In Silverio v. Court of Appeals, 195 SCRA 760 (1991), the Supreme Court rejected the suggestion that under the 1987 Constitution, the right to travel can be impaired by a hold-departure order only on the grounds of national security, public safety or public health. Instead, the High Court affirmed what had been the traditional rule—that “a person facing criminal charges may be restrained by the [courts] from leaving the country.” The court explained: “Holding an accused in a criminal case within the reach of the courts by preventing his departure from the Philippines must be considered as a valid restriction to his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to court orders and processes.”

The above discussion of the Silverio case highlights one important aspect of hold-departure orders. Except in special cases (such as for a child who is the subject of a custody battle before the courts), hold-departure orders may be issued only in relation to a criminal charge. They will not be issued in civil cases, such as in a collection case where the hold-departure order is sought to compel the debtor to remain in the Philippines. The restriction may be explained on account of the fact that notwithstanding their relative ubiquity, hold-departure orders still stand as an exception to the general constitutional right to travel, a right that may not be loosely trifled with. There is an integral relation between the hold-departure order and the bail bond issued for the provisional liberty of an accused. One of the conditions of a bail bond is that an accused must be made available at all times whenever the court requires his presence, and such condition operates as a valid restriction of his right to travel (cf. Manotoc Jr. v. Court of Appeals, 142 SCRA 149 [1986)]).

The courts are authorized to issue hold-departure orders for criminal cases. An array of Supreme Court circulars has clarified for judges the parameters for the issuance of hold-departure orders. The most significant of these guidelines is Supreme Court Circular 39-97, which, as a general rule, restricts the issuance by the courts of hold-departure orders only in criminal cases within the exclusive jurisdiction of the regional trial courts. Consequently, judges of lower courts such as Metropolitan trial courts do not have the power or authority to issue hold-departure orders, and a judge who does so faces severe sanctions from the Supreme Court (cf. Huggland v. Lantin, 326 SCRA 620 [2000]).

Supreme Court Circular 39-97 also requires that the regional trial courts issuing hold-departure orders to furnish the Department of Foreign Affairs, the Bureau of Immigration and the Department of Justice, with a copy of the order within 24 hours from issuance. The hold-departure order should contain the complete name, date and place of birth and place of last residence of the person against whom the order has been issued, the complete title and docket number of the case in which the hold-departure order was issued, the specific nature of the case, and the date of the hold-departure order. The transmission of the hold-departure order to the Bureau of Immigration is perhaps the most significant means of effecting the hold-departure order, as it ensures the inclusion of the person against whom the order was issued in the list relied upon by immigration officers in airports and other ports of exit. If your name appears on that list, you will be prevented at the airport from departing the Philippines.

A hold-departure order is by no means permanent. Its lifetime co-exists with the pendency of the criminal case that led to the issuance of the order. If the accused is acquitted or if the criminal charges have been dismissed, the judgment of acquittal or the order of dismissal shall include therein the cancellation of the hold-departure order that may have been issued. The trial court is obligated to furnish the Department of Foreign Affairs and the Bureau of Immigration with a copy each of the judgment of acquittal or the order of dismissal within 24 hours from promulgation.

It should be noted that in addition to those hold-departure orders issued by the courts in criminal cases, the Department of Justice (DOJ), through DOJ Circular 41 (issued May 25, 2010), has affirmed its own prerogative to issue hold-departure orders against those accused in criminal cases falling within the jurisdiction of courts below the Regional Trial Courts, i.e., those punishable with prison terms below six years. The applicability, scope and extent of DOJ Circular 41 will almost certainly be clarified in the future by the Supreme Court.

Pancho G. Umali is a partner at Villaraza Cruz Marcelo & Angangco (www.cvclaw.com). He heads CVCLAW’s Tourism and Leisure Practice Group, and is a member of the Firm’s Corporate and Special Projects Department and Mining & Natural Resources Department. He may be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

This article has been prepared for informational purposes only and should not be treated as legal advice.

Disclaimer:

This article has been prepared for informational purposes only and should not be treated as legal advice.