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August 7, 2018

EN BANC
A.M. No. 18-07-05-SC

RULE ON PRECAUTIONARY HOLD DEPARTURE ORDER

RESOLUTION
Acting on the proposed Rule on Precautionary Hold Departure Order, the Court
Resolved to APPROVE the same.
The Rule shall take effect within fteen (15) days following its publication in two
(2) newspapers of general circulation.

(SGD.) ANTONIO T. CARPIO


Senior Associate Justice

(SGD.) PRESBITERO J. VELASCO, JR.


Associate Justice

(SGD.) TERESITA J. LEONARDO-DE CASTRO


Associate Justice

(SGD.) DIOSDADO M. PERALTA


Associate Justice

(SGD.) LUCAS P. BERSAMIN


Associate Justice

(SGD.) MARIANO C. DEL CASTILLO


Associate Justice

(SGD.) ESTELA M. PERLAS-BERNABE


Associate Justice

I dissent. See attached separate opinion


(SGD.) MARVIC M.V.F. LEONEN
Associate Justice

(SGD.) FRANCIS H. JARDELEZA


Associate Justice

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(On Leave)
ALFREDO BENJAMIN S. CAGUIOA
Associate Justice

(SGD.) NOEL GIMENEZ TIJAM


Associate Justice

(SGD.) ANDRES B. REYES, JR.


Associate Justice

(SGD.) ALEXANDER G. GESMUNDO


Associate Justice

ATTACHMENTS
Proposed Rule on Precautionary Hold Departure Order
SECTION 1. Precautionary Hold Departure Order. — 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, which shall be issued ex-
parte in cases involving crimes where the minimum of the penalty prescribed by law is
at least six (6) years and one (1) day or when the offender is a foreigner regardless of
the imposable penalty.
SECTION 2. Where Filed. — The application for a precautionary hold
departure order may be led 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 led 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; Provided,
further, that the regional trial courts in the City of Manila, Quezon City, Cebu City, Iloilo
City, Davao City, and Cagayan de Oro City shall also have the authority to act on
applications led by the prosecutor based on complaints instituted by the National
Bureau of Investigation, regardless where the alleged crime was committed.
SECTION 3. Finding of Probable Cause. — Upon motion by the complainant in
a criminal complaint led before the o ce of the city or provincial prosecutor, and
upon a preliminary determination of probable cause based on the complaint and
attachments, the investigating prosecutor may le 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 application shall be accompanied by the complaint-
a davit and its attachments, personal details, passport number and a photograph of
the respondent, if available. aScITE

SECTION 4. Grounds for Issuance. — A precautionary hold departure order


shall not issue except upon determination by the judge, in whose court the application
is led, that probable cause exists, and there is a high probability that respondent will
depart from the Philippines to evade arrest and prosecution of crime against him or
her. The judge shall personally examine under oath or a rmation, 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.
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If the judge nds 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.
SECTION 5. Preliminary Finding of Probable Cause. — Since the nding of
probable cause by the judge is solely based on the complaint and is speci cally issued
for the purpose of issuing the PHDO, the same shall be without prejudice to the
resolution of the prosecutor of the criminal complaint considering the complaint-
a davit, counter-a davit, reply-a davit, and the evidence presented by both parties
during the preliminary investigation. 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. If the prosecutor nds probable cause and les 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.
SECTION 6. Form and Validity of the Precautionary Hold Departure Order. —
The precautionary hold departure order shall indicate the name of the respondent, his
or her alleged crime, the time and place of its commission, and the name of the
complainant. (See Annex "A" herein). A copy of the application, personal details,
passport number, photograph of the respondent, if available, shall be appended to the
order. The order shall be valid until lifted by the issuing court as may be warranted by
the result of the preliminary investigation.
The court shall furnish the Bureau of Immigration with a duly certi ed copy of the
hold departure order within twenty-four (24) hours from issuance.
SECTION 7 . Lifting of the Order. — The respondent may le a veri ed motion
before the issuing court for the temporary lifting of PHDO on meritorious ground; that,
based on the complaint-a davit and the evidence that he or she will present, there is
doubt that probable cause exists to issue the PHDO or it is shown that he or she is not
a ight risk: Provided, that the respondent posts a bond; Provided, further, that the
lifting of the PHDO is without prejudice to the resolution of the preliminary investigation
against the respondent.
SECTION 8. Bond. — Respondent may ask the issuing court to allow him or
her to leave the country upon posting of a bond in an amount to be determined by the
court subject to the conditions set forth in the Order granting the temporary lifting of
the PHDO.
SECTION 9. Effectivity. — This Rule shall take effect within fteen (15) days
following its publication in two (2) newspapers of general circulation in the Philippines.

ANNEX A
REPUBLIC OF THE PHILIPPINES
Regional Trial Court
PHDO NO. 18-______
PEOPLE OF THE PHILIPPINES, plaintiff , vs. A.B., respondent .
PRECAUTIONARY HOLD DEPARTURE ORDER
The above-entitled petition having been filed against the respondent;
SURNAME —
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GIVEN NAME —
ALIAS —
MIDDLE NAME —
DATE OF BIRTH —
PLACE OF BIRTH —
RESIDENCE/S —
NATIONALITY —
PASSPORT NUMBER —
COMPLETE TITLE/DOCKET NUMBER OF CASE * —
WHERE PENDING —
NATURE OF THE CASE —
and appears to the satisfaction of the court after examining under oath (name of applicant),
his/her witness/es, supporting a davits and documents, that there is probable cause to
believe that respondent will depart from the Philippines to evade arrest and prosecution of
crime against him or her, HEREBY ORDERS, the Commissioner of the Bureau of Immigration
and Deportation to hold the departure from the Philippines of the above-named respondent
and to include his/her name in the Hold Departure List of the said office.
Let copy of this Order be furnished to the Commissioner of the Bureau of Immigration
and Deportation.
SO ORDERED.
August _____, 2018
RTC Judge
DISSENTING OPINION
LEONEN, J .:
I regret that I 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.
The Rule on Precautionary Hold Departure Order, which seeks to address the gap in the
issuance of Hold Departure Orders, has grave implications on individual liberties in relation to
law enforcement. Citizens will be surprised to discover that they have been the subject of ex
parte proceedings when they want to travel. The Rule is too broad, and therefore, forecloses
future court actions where there are factual settings in which our current assumptions may
not apply.
This Court has not thoroughly considered the effect of the Rule on determinations of
prima facie evidence at the prosecutor's level, and of probable cause for the issuance of
arrest warrants and of search warrants. This Court has not thoroughly seen its impact on
inquest and preliminary investigation as well as on Article 124 of the Revised Penal Code.
I
In Genuino v. De Lima , 1 this Court struck down the executive prerogative of issuing
Hold Departure Orders for all crimes at the discretion of the Secretary of Justice. The
Constitutional provision requiring that "[n]either 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" 2
was upheld.
In that unanimous decision, this Court ruled that Hold Departure Orders burden the
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constitutional right to travel. There, this Court explained that any such burden, though not
proscribed outright, should be determined by law and will only be valid if consistent with the
requirements of "national security, public safety, or public health."
Speci cally, this Court ruled that the right to travel can only be impaired in two (2)
instances. The rst instance is when Congress passes a statute speci cally restricting the
right to travel "in the interest of national security, public safety, or public health."
The standards that signal these necessities were left for Congress to determine and to
be deliberated upon in its forums, which assume representation of its various constituencies.
The standards that constitute "national security, public safety, or public health," in relation to
the right to travel, are first a political question before they become a judicial one.
Yet, even before Congress has had the opportunity to discharge its constitutional
duties, this Court now promulgates a rule to address the lack of action of the proper
constitutional organs. This Court takes it upon itself to examine the balance between the right
to travel and "national security, public safety, or public health." This Court now replaces the
executive prerogative of issuing hold departure orders with judicial prerogative through the
guise of a procedural rule.
The second instance where the right to travel can be burdened is upon an order of a
court in a pending criminal case. This power proceeds from the grant of judicial power. In
Genuino: 3
It bears reiterating that the power to issue [Hold Departure Orders] is
inherent to the courts. The courts may issue a [Hold Departure Order] against an
accused in a criminal case so that he may be dealt with in accordance with law.
It does not require legislative conferment or constitutional recognition; it co-
exists with the grant of judicial power. In Defensor-Santiago vs. Vasquez, the
Court declared, thus: HTcADC

Courts possess certain inherent powers which may be said


to be implied from a general grant of jurisdiction, in addition to
those expressly conferred on them. These inherent powers are
such powers as are necessary for the ordinary and e cient
exercise of jurisdiction; or essential to the existence, dignity and
functions of the court, as well as to the due administration of
justice; or are directly appropriate, convenient and suitable to the
execution of their granted powers; and include the power to
maintain the court's jurisdiction and render it effective in behalf of
the litigants. 4 (Citations omitted)
None of these instances is applicable to justify the enactment of the Rule. Presently,
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 led against the accused. Supreme Court Circular
No. 39-97 states the guidelines in the issuance of hold departure orders in criminal cases
falling under the exclusive jurisdiction of Regional Trial Courts. Municipal Trial Courts are
excluded from the coverage of Supreme Court Circular No. 39-97. The rationale behind this
has sufficiently been explained in Genuino:
Moreover, the silence of the circular on the matters which are being
addressed by DOJ Circular No. 41 is not without good reasons. Circular No. 39-
97 was speci cally issued to avoid indiscriminate issuance of [Hold Departure
Orders] resulting to the inconvenience of the parties affected as the same could
amount to an infringement on the right and liberty of an individual to travel.
Contrary to the understanding of the DOJ, the Court intentionally held that the
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issuance of [Hold Departure Orders] shall pertain only to criminal cases within
the exclusive jurisdiction of the RTC, to the exclusion of criminal cases falling
within the jurisdiction of the MTC and all other cases. The intention was made
clear with the use of the term "only." The reason lies in seeking equilibrium
between the state's interest over the prosecution of the case considering the
gravity of the offense involved and the individual's exercise of his right to travel .
Thus, the circular permits the intrusion on the right to travel only when the
criminal case led against the individual is within the exclusive jurisdiction of
the RTC, or those that pertains to more serious crimes or offenses that are
punishable with imprisonment of more than six years. The exclusion of criminal
cases within the jurisdiction of the MTC is justi ed by the fact that they pertain
to less serious offenses which is not commensurate with the curtailment of a
fundamental right. Much less is the reason to impose restraint on the right to
travel of respondents of criminal cases still pending investigation since at that
stage no information has yet been led in court against them. It is for these
reasons that Circular No. 39-97 mandated that [Hold Departure Orders] may only
be issued in criminal cases led with the RTC and withheld the same power
from the MTC. 5 (Emphasis supplied)
II
The Rule amounts to judicial legislation. It arbitrarily sets a cluster of crimes and
construes, through a judicial rule, that these are what constitute threats to "national security,
public safety, or public health."
Section 1 of the Rule provides that precautionary hold departure orders shall be issued
"in cases involving crimes where the minimum of the penalty prescribed by law is at least six
(6) years and one (1) day." All crimes where the minimum penalty prescribed by law is at least
six (6) years and one (1) day are immediately considered to be involving "national security,
public safety, or public health."
In my view, this may amount to a hasty and adventurous use of our judicial prerogative
to promulgate rules that will erode this Court's legitimacy as Constitutional guardians. Such
an action will surely have far reaching consequences.
I cannot agree, even by implication, that when the penalty of a crime is above an
arbitrary length that we alone determine, it is equivalent to a threat to "national security, public
safety, or public health."
I cannot even agree that the best marker to determine which acts or offenses are a
threat to "national security, public safety, or public health" is the gravity of the penalty to be
imposed. There may be other markers or standards and this Court should allow Congress to
make its own determination first.
III
In my view, the concept of "preliminary determination of probable cause" will not save
the in rmity in the Rule. A preliminary determination of probable cause only complicates our
rules on criminal procedure.
The Rule allows the prosecution to apply for a precautionary hold departure order at
the preliminary investigation stage before the ling of an Information in court. Sections 3 and
5 of the Rule state:
Section 3. Finding of probable cause. — Upon motion by the complainant in
a criminal complaint led before the o ce 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
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order (PHDO) with the proper regional trial court. The application shall be
accompanied by the complainant-a davit and its attachments, personal
details, passport number and a photograph of the respondent, if available.
xxx xxx xxx
Section 5. Preliminary nding of probable cause . — Since the nding of
probable cause by the judge is solely based on the complaint and is speci cally
issued for the purpose of issuing the PHDO, the same shall be without prejudice
to the resolution of the prosecutor of the criminal complaint considering the
complaint-a davit, counter-a davit, reply-a davit, and the evidence presented
by both parties during the preliminary investigation. 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. If the prosecutor
nds probable cause and les 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.
A preliminary determination of probable cause, though intended to be without prejudice
to the investigating prosecutor's resolution of the criminal case, would render the conduct of
preliminary investigation moot and academic.
In criminal proceedings, the investigating prosecutor makes an executive determination
of the existence of probable cause for the purpose of ling an Information in court. 6
Probable cause, in the context of a preliminary investigation, involves an inquiry into "whether
or not there is reasonable ground to believe that the accused is guilty of the offense charged
and, therefore, whether or not [he or she] should be subjected to the expense, rigors and
embarrassment of trial[.]" 7
As this would be the same standard used in determining whether an application for the
issuance of a precautionary hold departure order should be led, the preliminary
determination of probable cause would then amount to a prejudgment of the preliminary
investigation proceedings.
A preliminary determination of probable cause is also an impractical procedure. The
procedure outlined in Sections 3 and 4 of Rule 112 of the Rules of Court calls for a speedy
and prompt determination of probable cause during preliminary investigations.
Within 10 days from the ling of a complaint, the investigating prosecutor determines
whether the complaint should be dismissed or whether to proceed with the investigation. The
respondent is given 10 days to rebut the allegations of the complaint. If the respondent fails
to respond, the investigating prosecutor is required to resolve the complaint. In any case, the
investigating prosecutor is given 10 days after the investigation to determine the existence or
non-existence of probable cause.
The provincial prosecutor, city prosecutor, chief state prosecutor, or the Ombudsman,
as the case may be, is required to act upon the investigating prosecutor's recommendation
also within 10 days.
Thus, there is no practicable purpose for a preliminary determination of probable
cause. The investigating prosecutor can simply proceed with the preliminary investigation
and determine the existence or non-existence of probable cause within the periods provided
under the Rules of Court. If probable cause exists, then the investigating prosecutor can le
the appropriate Information in court. The court in turn can issue a hold departure order
against the accused.
Under the Rule, the preliminary determination of probable cause of the investigating
prosecutor and the court to which an application is led is con ned to an examination of the
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complaint and its attachments. Such a limited set of evidence can hardly give investigating
prosecutors and courts enough basis to support a nding of probable cause. The more
prudent course of action is for the investigating prosecutor to proceed with investigation and
le an Information if probable cause exists. The court to which the Information is led can
then issue a hold departure order.
In addition, the Rule also limits and unduly hampers the prosecution's discretion during
the preliminary investigation proper.
Under Section 4, a precautionary hold departure order may only issue upon the court's
determination that probable cause exists and that the accused is a flight risk:
Section 4. Grounds for issuance. — A precautionary hold departure order
shall not issue except upon determination by the judge, in whose court the
application is led, that probable cause exists, and there is a high probability
that respondent will depart from the Philippines to evade arrest and prosecution
of crime against him or her. The judge shall personally examine under oath or
a rmation, 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.
If the judge nds that probable cause exists and there is 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. (Emphasis supplied)
Once the investigating prosecutor nds that there is probable cause to support an
application for a precautionary hold departure order, the resolution of the court to which the
application is led would necessarily taint the prosecutor's own determination of probable
cause for purposes of filing an Information.
Although Section 5 states that the preliminary determination of probable cause "shall
be without prejudice to the resolution of the prosecutor of the criminal complaint," whatever
the court's resolution on the application may be, the investigating prosecutor might hesitate to
arrive at a different conclusion on the existence or non-existence of probable cause for
purposes of filing an Information in court lest he or she incur the court's ire.
The Rule, therefore, limits the wide discretion given to the prosecution during the
conduct of a preliminary investigation. In People v. Castillo , 8 this Court emphasized that "in
our criminal justice system, the public prosecutor exercises a wide latitude of discretion in
determining whether a criminal case should be led in court." 9 It is reasonable to presume
that the prosecution, out of respect, would defer to the judge's ndings regarding the
existence or non-existence of probable cause.
In this regard, the executive determination of probable cause, in the context of a
preliminary investigation, would be an idle ceremony rendered moot by the two (2)-tier
preliminary determination of probable cause.
This Court is not constitutionally empowered to allow courts to make "preliminary"
ndings of probable cause. Courts determine probable cause for the issuance of arrest
warrants or search warrants. There are no quali ers to that power. The courts' determination
is a de nitive determination for allowable constitutional intrusions into privacy and putting
burdens on liberty. Courts cannot be overruled by investigating prosecutors conducting
preliminary investigations. For this Court to allow this would be at best to complicate the
administration of justice. Worse, it unjustly convolutes the procedures at the rst and second
levels of our courts, inviting confusion and litigation on interlocutory orders.
Furthermore, I do not see the necessity of the Rule unless this Court condones the
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delays in inquest or preliminary investigation.
Precisely, Genuino is the signal for the Department of Justice to give priority to and,
within its statutory limits, e ciently conduct preliminary investigations for crimes which are
of interest to government and where possibility of flight is greatest.
By coming out with this Rule, this Court is, in effect, appropriating portions of
prosecutorial discretion and condoning delay in preliminary investigation. The Rule would
also lead to the ling of numerous cases questioning the preliminary determination of
probable cause, thus, creating further delay at the investigation stage.
IV
The Rule also does not account for the nuances between preliminary investigation and
inquest proceedings.
When an accused is arrested without a warrant, inquest immediately follows to
summarily determine whether a crime has been committed, whether the accused is probably
liable for such a crime, and whether the warrantless arrest was within reasonable
constitutional parameters. Inquest proceedings are summary investigations which do not
follow the procedure outlined in Rule 112 of the Rules of Court.
If all these requirements are present, an Information is immediately led which will
then trigger the judicial examination as to whether a warrant should be issued, placing the
accused within the jurisdiction of the court. The conduct of the inquest must be done with due
and deliberate speed because there has been a legislative determination through Article 124
of the Revised Penal Code on when there has already been arbitrary detention.
The Rule, allowing the "preliminary determination" of probable cause by a judge, even
before inquest, effectively nulli es paragraphs 2, 3, and 4 of Article 124 of the Revised Penal
Code. In my view, this Court will succeed in repealing legislative policy through a procedural
artifice.
If the crime was committed outside the circumstances allowing warrantless arrest and
the government is convinced that there is su cient evidence that will prove its existence as
well as the liability of an accused, then I see no reason why the prosecution will not be able to
efficiently conduct preliminary investigation.
V
Furthermore, the Rule unduly burdens the rights of a person who has only been
suspected of committing a crime.
Sections 3, 4, and 5 of the Rule sanction the issuance of a precautionary hold
departure order based on the complaint and its attachments. This is a limited set of evidence,
which can hardly produce enough basis to support a nding of probable cause. Worse, the
procedure is done ex parte, 1 0 without giving the respondent an opportunity to be heard on the
matter.
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 Rule may be premised on the view that there will be legislative and executive
inertia. This Court predicts that there may be serious offenders that may be able to nd
succor in a foreign jurisdiction. Yet, it should not be the responsibility of the Judiciary alone to
make the Constitution work. The Legislative and the Executive branches must also do their
part.
Bilateral or multilateral Mutual Legal Aid Treaties are useful tools to aid criminal
investigation and prosecution. Countries may seek assistance from each other by providing
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access to evidence and facilitate case buildup.
The Judiciary is not the constitutional organ that addresses expedient and contingent
circumstances. This Court's preference should be to always reserve judgment, even those
embedded in rules of procedure, until an actual case is led. It should use its rule-making
power sparingly.
This Court's suppositions and conjectures should be as strongly premised on the
protection of liberties as much as it would also acknowledge the di culties of law
enforcement. A reasonable interpretation of a constitutional provision should take where this
Court puts these balances seriously. Often, it will be through live and actual cases with
established facts where this Court will see this rather than through suppositions, fears, and
conjectures that motivate the promulgation of a judicial rule.
I am aware that this Court is convinced of the rightness of promulgating the Rule.
However, a more reasonable judicial temperament should normally make us more cautious.
All of us are painfully aware that even our perceptions may not be as omniscient as we hope
them to be. aScITE

Therefore, we should go back to the tradition of having proposed rules heard by the
proper sub-committee of our Committee on Rules. The Committee should receive comments
and suggestions from the public through proper representatives. It should work on drafts and
position papers that thoughtfully and judiciously consider all angles to the proposed rule
especially when it has, as its consequence, the possible limitation of a constitutional liberty.
I am not averse to fair procedures that provide a reasonable and workable framework
for law enforcement. I decline, however, to agree to a rule which, in my reckoning, sacri ces
too much our hard won fundamental liberties. I insist that it should be this Court that remains
vigilant even against the slightest unreasonable infringement on any of our liberties.
This Rule fails that vigilance. Therefore, I dissent.
ACCORDINGLY , I vote to DISPENSE with the promulgation of the Rule on
Precautionary Hold Departure Order.

(SGD.) MARVIC M.V.F. LEONEN


Associate Justice

Footnotes
ANNEX A
* Docketed I.S. No. _____ of the Preliminary Investigation in the case.
LEONEN, J., dissenting opinion
1. G.R. No. 197930, April 17, 2018 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2018/april2018/197930.pdf> [Per J. Reyes, En Banc].
2. CONST., art III, sec. 6.
3. G.R. No. 197930, April 17, 2018 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2018/april2018/197930.pdf> [Per J. Reyes, En Banc].
4. Id. at 43.
5. Id. at 33.
6. See People v. Castillo, 607 Phil. 754 (2009) [Per J. Quisumbing, Second Division].
7. People v. Inting, 265 Phil. 817, 822 (1990) [Per J. Gutierrez, Jr., En Banc].
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8. 607 Phil. 754 (2009) [Per J. Quisumbing, Second Division].
9. Id. at 765.
10. RULE ON PRECAUTIONARY HOLD DEPARTURE ORDER, sec. 1.
Published in The Philippine Daily Inquirer on September 1, 2018.

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