Wednesday, January 27, 2010

Is HDO lawful in a contempt case?

I recently encountered a question: Can a hold departure order (HDO) be lawfully issued in a contempt case?
A hold departure order is a directive issued by a regional trial court in a criminal case preventing an accused from leaving the country.
Once, a judge was asked to explain by the Supreme Court why he issued a hold departure order against a doctor who was respondent in a case for support.
In the case for support the doctor-husband failed to comply with the court’s decision to give support to the wife.
So the wife asked the court to issue a hold departure order against the doctor (husband).
The wife apparently found the hold departure order useful because the doctor-husband was hired by an airline to fly and assist ailing passengers when traveling. (The wife sought to paralyze the husband’s source of income, for failing to provide her support)
The judge issued a hold departure order upon the doctor
The doctor, filed an administrative complaint in the Supreme Court against the judge for issuing a hold departure order against him, when there was no pending criminal case against the doctor.
In his explanation to the Supreme Court, the judge said that the doctor’s failure to give support (as commanded by a court decision) may give rise to an action for contempt which is in the nature of a criminal action against the doctor.
Hence, the hold departure order was deemed justified, the judge explained.
The Supreme Court did not buy the judge’s explanation.
The Supreme Court ruled that a hold departure order may be issued only in criminal cases.
An indirect contempt proceeding is not a criminal case. Hence no hold departure order can be lawfully issued.
The Supreme Court said “Indeed, contempt is in the nature of a criminal action, but only with regard to its procedural aspect.”
“A contempt proceeding is sui generis. While it has elements both of a civil and a criminal proceeding, it is not a criminal proceeding even though the contemptuous act involved could be a crime,” the Supreme Court explained.
Contempt is remedial and civil in nature, emphasized the court.
”Contempt is a special civil action that cannot be converted into a criminal action”.
Supreme Court circular no. 39-97 provides clearly a hold departure order may be issued only in criminal cases.
The judge was found administratively liable.
(A.M. No. RTJ-04-1836, July 14, 2004)

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