Rule 102 Nature:

Habeas corpus proceedings are

Habeas Corpus separate and distinct from the main
case in which it MAY spring from.
SECTION 1
Applicability: As stated in Caballes v. CA:
Habeas Corpus extends to all cases of
illegal confinement or detention “Habeas corpus is a summary
where: remedy. It is analogous to a
(a) any person is deprived of his proceeding in rem when instituted for
liberty; or (b) by which the rightful the sole purpose of having the person
custody of any person is withheld from of restraint presented before the judge
the person entitled thereto. in order that the cause of his
dentition may be inquired into and
Purpose: his statements final. It does not act
In general, the purpose of a writ of upon the prisoner who seeks relief, but
habeas corpus is to determine whether upon the person who holds him in
or not a particular person is legally what is alleged to be the unlawful
held. authority. Hence, the only parties
before the court are the
“The essential object and purpose of prisoner/petitioner and the person
the writ is to inquire into all manner of holding the petitioner in custody, and
involuntary restraint as distinguished the only question to be resolved is
from voluntary, and to relieve a person whether the custodian has authority to
therefrom if such restraint is illegal.” deprive the petition of his liberty.”

The writ also extends to situations

where rightful custody of a person is Availability:
withheld from the person entitled  Writ may issue even if another
thereto hence, it is also an available remedy is available to the
remedy for parents to regain the defendant.
custody of a minor child even if said  It may even be issued even upon
child is in the custody of another by a final judgement (where the
his/her own free will. penalty imposed is in excess of
the power of the court granting it
The writ is availed of to: thereby making such illegal)
(a) obtain immediate relief from illegal  What is crucial is that the person
confinement; is unlawfully deprived of liberty,
(b) liberate those who may be which may usually involve:
imprisoned without sufficient cause; (1) A violation of the accused’s
and constitutional rights
(c) deliver them from unlawful (2) The court trying the case has no
custody. jurisdiction; and
It is essentially a writ of inquiry and (3) The penalty is excessive or beyond
is granted to test the right under which what the court could legally impose
a person is detained.

Fundamentally, to avail of the writ, SECTION 2

the restraint of liberty must be in the Who may grant the writ:
nature of an illegal and involuntary
deprivation of freedom of action. The following Courts may grant the
writ:
1. Supreme Court/ or any Justice  It is not available to any person
thereof: May be filed on any day that is in the custody of an officer:
and at any time and is enforceable 1. Under process issued by a
ANYWHERE in the Philippines court or judge; or
2. RTC/ or any Judge thereof: May 2. By virtue of a judgement or
be filed on any day and at any order of a court of record;
time and is enforceable only and
within his judicial district. 3. The court or judge had
3. CA/ or any Justice thereof: May be jurisdiction to issue the
filed only in instances authorized process, render the
by law and is enforceable judgement or make the
anywhere in the Philippines order.
 It does not extend to persons
SECTION 3 that:
Requisites of the Application 1. Is Charged with an offense;
 The petition (which may be filed 2. Convicted of an offense; or
either by the party for whose 3. Suffering imprisonment
relief it is intended or some other under lawful judgement.
person on his behalf) must be
SIGNED and VERIFIED; SECTION 5
When writ must be granted and
 It must also contain and/or set issued:
forth:
a. That the person in whose behalf Sec. 5- A court or judge authorized to
the application is made is grant the writ must, when a petition
imprisoned or restrained of his therefor is presented and it
liberty; appears that the writ ought to
b. The officer or name of the issue, grant the same forthwith, and
person by whom he is so immediately thereupon the clerk of the
imprisoned or restrained; court shall issue the writ under the
c. The place where he is so seal of the court; or in case of
imprisoned or restrained, if emergency, the judge may issue the
known; and writ under his own hand, and may
d. Copy of the commitment or depute any officer or person to serve
cause of detention of such person, it.
if it can be procured without
impairing the efficiency of the
remedy; Or if the imprisonment or SECTION 6
restraint is without any legal To whom writ is directed:
authority, such fact shall appear.  In case of imprisonment or
restraint by an officer:
1. The writ shall be directed to said
SECTION 4 officer;
When writ not applicable: 2. The writ shall command him to
 Not applicable for asserting or have the body of the person
vindicating the denial of the right retrained of his liberty before
to bail. the court or judge designated in
 Not applicable to correct errors of the writ at the time and place
judgement. therein specified.
 It cannot be availed of to enforce
marital rights, including co-  In case of imprisonment or
venture and living in conjugal restraint by a person not an
dwelling. officer:
 1. The writ shall be directed to an found or has not the person in his
officer; custody; and
2. The writ shall command him to 2. By preserving a copy on which to
take and have the body of the make return of service. The writ
person restrained of his liberty itself plays the role of summons
before the court or judge in ordinary actions; court
designated in the writ at the acquires jurisdiction over the
time and place therein specified, person of the respondent by
and to summon the person by mere service of writ.
whom he is restrained then and
there to appear before said court Service of Writ
or judge to show the cause of  The writ may be served in any
the imprisonment or restraint. province by:
a. The sheriff
 The above provision is merely a b. Other proper officer, or
peremptory writ of habeas corpus/ c. By a person deputed by
the preliminary step in the hearing the court or judge
of the petition and is not actually
the grant of the writ itself.  The writ is served by leaving the
original with the person to whom
 It is not a ruling on the propriety it is directed
of the remedy or on the
substantive matters covered by  A copy is preserved because the
the remedy. return shall be made thereon

 However, if that person (on

SECTION 7 whom it must be served)
cannot be found, or does not
Section 7. How prisoner designated have the prisoner in his
and writ served. — The person to be custody, then the service shall
produced should be designated in the be made on any other person
writ by his name, if known, but if his having or exercising such
name is not known he may be custody.
otherwise described or identified. The  Note that the writ is served
writ may be served in any province by upon the officer, not the
the sheriff or other proper officer, or person detained
by a person deputed by the court or
judge. Service of the writ shall be  The important fact to be observed
made by leaving the original with the in regard to the mode of
person to whom it is directed and procedure upon this writ is, that it
preserving a copy on which to make is directed to and served upon,
return or service. If that person cannot not the person confined, but his
be found, or has not the prisoner in his jailor. It does not reach the former
custody, then the service shall be except through the latter. The
made on any other person having or officer or person who serves it
exercising such custody. does not unbar the prison doors,
and set the prisoner free, but the
How service is made: court relieves him by compelling
1. By leaving the original of the writ the oppressor to release his
with the person to whom it is constraint. The whole force of the
directed or to any person having writ is spent upon the respondent,
custody if the former cannot be and if he fails to obey it, the
means to be resorted to for the
 purposes of compulsion are fine not be permitted to restrain a
and imprisonment. This is the fellow citizen of her liberty by
ordinary mode of affording relief, forcing her to change her domicile
and if any other means are and to avow the act with impunity
resorted to, they are only auxiliary in the courts, while the person
to those which are usual. The who has lost her birthright of
place of confinement is, therefore, liberty has no effective recourse.
not important to the relief, if the The great writ of liberty may not
guilty party is within reach of thus be easily evaded
process, so that by the power of (Villavicencio vs Lukban 1919).
the court he can be compelled to
release his grasp. The difficulty of SECTION 8
affording redress is not increased
by the confinement being beyond Section 8. How writ executed and
the limits of the state, except as returned. — The officer to whom the
greater distance may affect it. The writ is directed shall convey the person
important question is, where the so imprisoned or restrained, and
power of control exercised? named in the writ, before the judge
(Villavicencio vs Lukban 1919). allowing the writ, or in case of his
absence or disability, before some
What if the respondent says that other judge of the same court, on the
custody was transferred to day specified in the writ, unless, from
another officer/person, is that a sickness or infirmity of the person
defense? directed to be produced, such person
cannot, without danger, be bought
 Sec. 7, Rule 102 says that service before the court or judge; and the
shall be made on any other person officer shall make due return of the
having or exercising such custody. writ, together with the day and the
cause of the caption and restraint of
 BUT, it was not so in this such person according to the
Villavicencio case. The true command thereof.
principle should be that, if the
respondent is within the General rule: Officer to whom writ is
jurisdiction of the court and directed shall
has it in his power to obey the convey the detained person on the day
order of the court and thus to specified in the
undo the wrong that he has writ:
inflicted, he should be 1. Before the judge who allowed
compelled to do so. Even if the the writ;
party to whom the writ is 2. If he is absent, before any
addressed has illegally parted with judge of the same court.
the custody of a person before the
application for the writ is no Exception: If the person to be
reason why the writ should not produced has sickness or infirmity
issue. If the mayor and the chief such that he cannot be brought before
of police, acting under no the court without danger.
authority of law, could deport
these women from the city of The duties of an Officer:
Manila to Davao, the same 1. Convey the person so
officials must necessarily have the imprisoned before the judge,
same means to return them from unless from sickness or
Davao to Manila. The respondents, infirmity, such person cannot,
within the reach of process, may
 without danger be brought and has transferred such custody or
before the court. restraint to another, particularly to
2. Make the return of the writ whom, at what time, for what cause,
together with the day and the and by what authority such transfer
cause of caption or restraint. was made.

SECTION 9 Content of Return

Section 9. Defect of form. — No writ 1. Whether he has or has not the
of habeas corpus can be disobeyed for party in his custody or power,
defect of form, if it sufficiently appears or under restraint;
therefrom in whose custody or under 2. If he has the party in his
whose restraint the party imprisoned custody or power, or under
or restrained is held and the court or restraint, the authority and the
judge before whom he is to be bought. true and whole cause thereof, set
forth at large, with a copy of the
No writ can be disobeyed for writ, order, execution, or other
defect of form if it sufficiently process, if any, upon which the
states: party is held;
1. The person in whose custody or 3. If the party is in his custody or
under whose restraint the party power or is restrained by him,
imprisoned or restraint is held; and and is not produced,
2. The court or judge before whom he particularly the nature and
is to be brought. gravity of the sickness or
infirmity of such party by reason
SECTION 10 of which he cannot, without
Section 10. Contents of return. — danger, be brought before the
When the person to be produced is court or judge;
imprisoned or restrained by an officer, 4. If he has had the party in his
the person who makes the return shall custody or power, or under
state therein, and in other cases the restraint, and has transferred
person in whose custody the prisoner such custody or restraint to
is found shall state, in writing to the another, particularly to whom, at
court or judge before whom the writ is what time, for what cause, and
returnable, plainly and unequivocably: by what authority such transfer
a. Whether he has or has not the was made.
party in his custody or power, or under
restraint; A RETURN IS MADE AND THE
b. If he has the party in his PERSON RESTRAINED MUST BE
custody or power, or under restraint, BROUGHT BEFORE THE COURT
the authority and the true and whole (SEC. 8, 9, & 10, RULE 102)
cause thereof, set forth at large, with a  The officer is required to:
copy of the writ, order execution, or a. Make a due return of the
other process, if any, upon which the writ, together with the day and
party is held; the cause of the caption and
c. If the party is in his custody or restraint of such person
power or is restrained by him, and is according to the command
not produced, particularly the nature thereof.
and gravity of the sickness or infirmity b. Convey the person so
of such party by reason of which he imprisoned or restrained, and
cannot, without danger, be bought named in the writ, before the
before the court or judge; judge allowing the writ unless,
d. If he has had the party in his from sickness or infirmity of
custody or power, or under restraint, the person directed to be
 produced, such person cannot, whom he is to be bought. (Sec. 9,
without danger, be bought Rule 102)
before the court or judge
 The weight of the return is
 But in case of his absence or determined by the colour of
disability of such judge, it may be authority, or by the lack of it, for
made before some other judge of which a person is detained (Sec.
the same court, on the day 13, Rule 102)
specified in the writ
A. Person is under custody by
Contents of the Return public officer under a warrant of
a. Whether he has or has not the commitment in pursuance of law
party in his custody or power, or
under restraint  The return is considered as prima
b. If the party is in his custody or facie evidence of the cause of
power, or under restraint— the the restraint
authority and the true and whole  Unless the allegations in the
cause thereof, with a copy of the return are controverted, they are
writ, order, execution, or other deemed to be true or admitted,
processes upon which the party is pursuant to
held  Section 13, Rule 102, Rules of
c. If the party is in his custody or Court, which provides that the
power or is restrained by him, and “return shall be considered prima
is not produced, particularly the facie evidence of the cause of
nature and gravity of the sickness restraint, if it appears that the
or infirmity of such party by prisoner is in custody under a
reason of which he cannot, warrant of commitment in
without danger, be bought before pursuance of law.” (Florendo vs
the court or judge Javier 1979)
d. If he has had the party in his  Thus, the petitioner must
custody or power, or under controvert the allegations as to
restraint, and has transferred such the cause of the restraint in the
custody or restraint to another, return, by filing a comment. If
particularly to whom, at what these are not controverted, they
time, for what cause, and by what are deemed admitted and thus,
authority such transfer was made. dismissal would probably result.
BUT, note that the presumption
 The return or statement shall be only extends as to the fact of the
signed by the person who makes cause of restraint, not anything
it; and shall also be sworn by him else, only that fact is required to
if the prisoner is not produced, be controverted.
and in all other cases unless the
return is made and signed by a B. Person is restrained by private
sworn public officer in his official individual
capacity. (Sec. 11, Rule 102)  If however, the person is
restrained by any alleged private
 Note that no writ of habeas corpus authority, the return is considered
can be disobeyed for defect of only as a plea of the facts
form, if it sufficiently appears therein set forth.
therefrom in whose custody or  Consequently, the party claiming
under whose restraint the party custody has the burden of proving
imprisoned or restrained is held such facts
and the court or judge before
 SECTION 11 safekeeping of the detained person
is laid.
Section 11. Return to be signed and 3. If the detained person cannot be
sworn to. — The return or statement produced before the court, the
shall be signed by the person who officer of person detaining must
makes it; and shall also be sworn by satisfy the court of the gravity of
him if the prisoner is not produced, the alleged sickness or infirmity.
and in all other cases unless the return 4. During the hearing, the court shall
is made and signed by a sworn public disregard matters of form and
officer in his official capacity. technicalities of the authority or
order of commitment. The failure
SECTION 12 of petitioners to file a reply to the
return of the writ warrants the
Section 12. Hearing on return. dismissal of the petition because
Adjournments. — When the writ is unless controverted, the
returned before one judge, at a time allegations on the return are
when the court is in session, he may deemed to be true or admitted
forthwith adjourn the case into the (Florendo v. Javier, G.R. No. L-
court, there to be heard and 36101, June 29, 1979).
determined. The court or judge before
whom the writ is returned or
adjourned must immediately proceed Hearing is Conducted
to hear and examine the return, and
such other matters as are properly  When the writ is returned before
submitted for consideration, unless for one judge, at a time when the
good cause shown the hearing is court is in session, he may
adjourned, in which event the court or forthwith adjourn the case into the
judge shall make such order for the court, there to be heard and
safekeeping of the person imprisoned determined.
or restrained as the nature of the case
requires. If the person imprisoned or  The court or judge before whom
restrained is not produced because of the writ is returned or adjourned
his alleged sickness or infirmity, the must immediately proceed to hear
court or judge must be satisfied that it and examine the return, and such
is so grave that such person cannot be other matters as are properly
produced without danger, before submitted for consideration
proceeding to hear and dispose of the
matter. On the hearing the court or  Unless for good cause shown the
judge shall disregard matters of form hearing is adjourned, in which
and technicalities in respect to any event the court or judge shall
warrant or order of commitment of a make such order for the
court or officer authorized to commit safekeeping of the person
by law. imprisoned or restrained as the
nature of the case requires.
Hearing of Return & Adjournments
 If the person imprisoned or
1. His remedy, upon the return of the restrained is not produced because
writ, the court must immediately of his alleged sickness or infirmity,
hear the case. the court or judge must be
2. The hearing MAY be adjourned by satisfied that it is so grave that
the court for good causes, provided such person cannot be produced
that conditions upon the without danger, before proceeding
to hear and dispose of the matter.
 a. Prisoner is lawfully committed;
 In the hearing, the court or judge and
shall disregard matters of form and b. Prisoner is plainly and
technicalities in respect to any specifically charged in the warrant of
warrant or order of commitment of commitment with an offense
a court or officer authorized to punishable by death
commit by law.
If the two requisites above are not
present, the prisoner may be
recommitted to imprisonment or
admitted to bail at the discretion of the
court or judge.

HOWEVER, there is no right to bail

when the applicant for the writ of
habeas corpus is serving sentence by
final judgement.

SECTION 15
Grant of Writ of Habeas Corpus

Requisites under Sec. 15 for the Grant

of Writ of Habeas Corpus:
a. Court or judge has examined
into the cause of caption and restraint
of the prisoner;
b. Court or judge is satisfied that
the prisoner is unlawfully imprisoned
or restrained; and
c. A copy of the order has been
SECTION 13 served on the officer or person
detaining the prisoner.
Return as Evidence d. The officer or person detaining
the prisoner does not desire to appeal.
The return shall be considered as the
prima facie evidence of the cause of If the officer or person detaining the
the restraint if the person is in custody prisoner desires to appeal, A.M. No.
under a warrant of commitment in 01-01-03-S provides that such appeal
pursuance of law. must be made within 48 hours from
notice of judgement.
However, if the person is restrained
by any private authority, the return is SECTION 16
merely considered as a plea of the
facts set forth therein. The party Penalty for Refusing to Issue the
claiming custody has the burden of Writ and Penalty for Disobeying
proof of proving the facts it alleges. the Writ

SECTION 14 Persons covered by Sec. 16:

Right to Bail a. A clerk of a court who refuses
to issue the writ after allowance
A person shall not be released, thereof and demand therefor;
discharged, or bailed when: b. Person to whom a writ is
directed who:
 of one thousand pesos, to be
1. Neglects or refuses to recovered in a proper action; and
obey or make return of b. Contempt - Such persons may
the writ according to the also be punished by the court or judge
command thereof; for contempt.
2. Makes false return
thereof; SECTION 18
3. Upon demand made by
or on behalf of the When a prisoner may be removed
prisoner, refuses to from one custody to another
deliver to the person
demanding within 6 GENERAL RULE: A person committed
hours after the demand to prison or in custody of an officer
therefor, a true copy of cannot be removed therefrom or
the warrant or order of custody transferred to another.
commitment.
EXCEPTIONS:
Penalty: a. By legal process;
a. Forfeiture - Such persons shall b. When prisoner is delivered to
forfeit to the party aggrieved the sum an inferior officer to carry to jail;
of one thousand pesos, to be c. By order of the proper court or
recovered in a proper action; and judge for the transfer from one place
b. Contempt - Such persons may to another within the Philippines for
also be punished by the court or judge trial;
for contempt. d. In case of fire, epidemic,
insurrection, or other necessity or
SECTION 17 public calamity

No double jeopardy in habeas Sec. 18 also penalizes any person

corpus cases who, after such commitment, makes,
signs, or countersigns any order for
GENERAL RULE: Once a person is such removal contrary to the
released by virtue of a writ of habeas provisions of Sec. 18.
corpus, he cannot be again imprisoned Penalty: Forfeiture to the party
for the same offense. aggrieved the sum of one thousand
pesos, to be recovered in a proper
EXCEPTION: When the court having action.
jurisdiction over the cause or offense
orders his recommitment. SECTION 19

Sec. 17 also penalizes the following: Record of writ, fees and costs
a. Persons who knowingly a. Record - The proceedings upon
recommits, imprisons, or causes to be a writ of habeas corpus shall be
committed or imprisoned, for the same recorded by the clerk of the court, and
offense or pretended offense, any upon the final disposition of such
person who has been set to liberty; proceedings the court or judge shall
b. Persons who knowingly aid or make such order as to costs as the
assist therein. case requires.
b. Fees - The fees of officers and
Penalty: witnesses shall be included in the costs
a. Forfeiture - Such persons shall taxed, but no officer or person shall
forfeit to the party aggrieved the sum have the right to demand payment in
advance of any fees to which he is
entitled by virtue of the proceedings. SECTION 20
c. Costs - Jurisdiction
1. When a person confined under
color of proceedings in a A. For a petition for habeas
criminal case is discharged, corpus involving a child
the costs shall be taxed
against the Republic of the 1. Family court
Philippines, and paid out of its However, the petition may also be
Treasury; filed before the regular court
2. When a person in custody by when:
virtue or under color of a. in the absence of the presiding
proceedings in a civil case is judge of the Family Court, provided,
discharged, the costs shall be however, that the regular court shall
taxed against him, or against refer the case to the Family Court as
the person who signed the soon as its presiding judge returns to
application for the writ, or duty;
both, as the court shall direct. b. in places where there are no
Family Courts.
Habeas Corpus as a Post-
Conviction Remedy The writ issued by the Family
Court or the regular court shall
Habeas corpus as a post-conviction be enforceable in the judicial
remedy may be allowed when, as a region where they belong.
consequence of a judicial proceeding,
any of the following exceptional “judicial region”
circumstances are present: The enumeration of judicial
a. There has been a deprivation of regions in the country are
a constitutional right resulting in the enumerated in Section 13 of BP
restraint of the person; 129 (The Judiciary
b. The court has no jurisdiction to Reorganization Act of 1980).
impose the sentence; or
c. The imposed penalty has been For example, in the case of
excessive, thus voiding the sentence Tujan Milante vs. Cada
as to such excess. Deapera, where the writ was
issued by the family court of
A.M. No. 03-04-04-SC Caloocan City but the child was
RULE ON CUSTODY OF MINORS found in Quezon City.
AND WRIT OF HABEAS CORPUS
IN RELATION TO CUSTODY OF Section 13. Creation of
MINORS Regional Trial Courts. – There
are hereby created thirteen
Effectivity date: May 15, 2003 Regional Trial Courts, one for
each of the following judicial
SECTION 1 regions:
Applicability xxx
The National Capital Judicial
This rule shall apply to petitions for Region, consisting of the cities
custody of minors and writs of habeas of Manila, Quezon, Pasay,
corpus in relation thereto. Caloocan and Mandaluyong,
and the municipalities of
The Rules of Court shall apply Navotas, Malabon, San Juan,
suppletorily. Makati, Pasig, Pateros, Taguig,
 Marikina, Parañaque, Las Piñas, petitions for habeas corpus where
Muntinlupa, and Valenzuela. the custody of minors is at issue.

Since Caloocan City and B. For an ancillary remedy of a

Quezon City both belong to the petition for habeas corpus
same judicial region, the writ involving a child availed in
issued by the RTC-Caloocan can conjunction with a petition for
still be implemented in Quezon custody of minors
City. Whether petitioner resides
in the former or the latter is Following RA 8369, the Family court
immaterial in view of the above has exclusive original jurisdiction. The
rule. venue is the province or city where the
petitioner resides or where the minor
2. Supreme Court, Court of may be found.
Appeals, or with any of its members.
The writ issued by the Family Court
Section 20 - xxx The petition may shall be enforceable in the judicial
likewise be filed with the Supreme region where they belong.
Court, Court of Appeals, or with
any of its members and, if so
granted, the writ shall be
enforceable anywhere in the
Philippines. The writ may be made
returnable to a Family Court or to
any regular court within the region
where the petitioner resides or
where the minor may be found for
hearing and decision on the
merits.

Upon return of the writ, the court

shall decide the issue on custody
of minors. The appellate court, or
the member thereof, issuing the
writ shall be furnished a copy of
the decision.

Following the case of Thornton vs

Thornton, the provisions of RA
8369 (The Family Courts Act of
1997) reveal no manifest intent to
revoke the jurisdiction of the
Court of Appeals and Supreme
Court to issue writs of habeas
corpus relating to the custody of
minors. The provisions of RA 8369
must be read in harmony with RA
7029 (An Act Expanding the
Jurisdiction of the Court of
Appeals) and BP 129 ― that
family courts have concurrent
jurisdiction with the Court of
Appeals and the Supreme Court in