By By Fernan A. Gianan
A new rule restricts travel of mere suspects
posted 17-Sep-2018  ·  
1,351 views  ·   0 comments  ·  

The “ber” months have started with a bang, as far as weather disturbances are concerned.

The year’s 26th storm, Mangkhut, has become a typhoon as of Tuesday morning with peak winds of 205 kph and is expected to hit 240-280 kph by Friday (Sept. 14) when it is expected to be within 500 kilometers northeast of Virac.

Islanders have no reason to worry, however, as weather forecasters expect the typhoon to change its westward track and turn slowly to west-northwest today (Sept. 12) and head for the tip of extreme Northern Luzon.

We can only hope it brings much-needed heavy rains, so our island’s parched ricefields and dried-up streams can recover.

*****

In what a dissenting justice has described as an infringement of the fundamental right to travel, the Supreme Court has approved a rule allowing the Regional Trial Courts to issue a Precautionary Hold Departure Order (PHDO) without the respondent even knowing it.

Promulgated last Aug. 7, 2018, the new rule approved by 12 justices will take effect Sept. 16.

According to the SC resolution, an RTC judge may issue the PHDO to the Bureau of Immigration, commanding the latter to prevent any attempt by a person suspect5ed of a crime to depart from the Philippines.

The order will be issued ex parte (meaning, without the involvement or representation of the respondent) in cases involving crimes where the minimum penalty is at least six (6) years and one (1) day or when the offender is a foreigner regardless of the imposable penalty.

“Upon motion by the complainant in a criminal complaint filed before the office of the city or provincial prosecutor, and upon a preliminary determination of probable cause based on the complaint and attachments, the investigating prosecutor may file an application in the name of the People of the Philippines for a precautionary hold departure order (PHDO) with the proper regional trial court,” the SC rule states.

The PHDO will be issued if the judge determines that “probable cause exists and there is a high probability that respondent will depart from the Philippines to evade arrest and prosecution.

If the prosecutor after preliminary investigation dismisses the complaint for lack of probable cause, then the respondent may use the dismissal as a ground for the lifting of the PHDO. Otherwise, he or she may file a verified motion with the RTC on the ground that probable cause is doubtful and that he or she is not a flight risk, with the Court to lift the PHDO once the respondent posts a bond.

In his dissent, Associate Justice Marvic Leonen said he cannot agree to a rule that implicitly presumes guilt and denies due process to a person who has not yet been subject to arrest, preliminary investigation, or arraignment.

    “Citizens will be surprised to discover that they have been the subject of ex parte proceedings when they want to travel,” he pointed out.

    Justice Leonen notes that there is no law allowing the issuance of hold departure orders in a pending preliminary investigation.

    “Although courts have the inherent power to issue hold departure orders, this presupposes that a criminal case has been filed against the accused,” he stressed.

    The rule unduly burdens the rights of a person who has only been suspected of committing a crime, Justice Caguia added.

    “A respondent, therefore, who has only been suspected of committing a crime, is left in the dark, completely uninformed about the impending curtailment of his or her constitutional right to travel,” the dissenting opinion stresses.

    More on this next week.

*****

SIGN WAR. A shopkeeper had been running his business successfully for some years when a competitor moved into the shop on the left. As soon as the shop opened, a big sign went up above the door reading, “Lowest Prices.”

The shopkeeper soon had more troubles when another competitor opened on his right side, with a bigger sign above their door that read “Greatest Deals.”

So the shopkeeper had a sign made for his own shop. In even bigger letters, it read “Main Entrance.”


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