REMEDIAL LAW

SPECIAL PROCEEDINGS proceedings. Nowhere in the Rules of Court does it

categorically say that rules in ordinary actions are
It is a remedy by which a party seeks to establish a right, inapplicable or merely suppletory to special proceedings.
a status or a particular fact (Sec. 3(c), Rule 1). Provisions of the Rules of Court requiring a certification
of non-forum shopping for complaints and initiatory
Subject matter of Special Proceedings pleadings, a written explanation for non-personal service
and filing, and the payment of filing fees for money claims
1. Settlement of the estate of deceased persons; against an estate would not in any way obstruct probate
2. Escheat; proceedings, thus, they are applicable to special
3. Guardianship and custody of children; proceedings such as the settlement of the estate of a
4. Trustees; deceased person as in the present case (Sheker v. Estate of
5. Adoption; Alice Sheker, G.R. No. 157912, Dec. 13, 2007)
6. Rescission and revocation of adoption;
7. Hospitalization of insane persons; ---
8. Habeas Corpus;
9. Change of name; Q: Ernie filed a petition for guardianship over the
10. Voluntary dissolution of corporations; person and properties of his father, Ernesto. Upon
11. Judicial approval of voluntary recognition of minor receipt of the notice of hearing, Ernesto filed an
opposition to the petition. Ernie, before the hearing of
natural children;
the petition, filed a motion to order Ernesto to submit
12. Constitution of family home; himself for mental and physical examination which
13. Declaration of absence and death; and the court granted. After Ernie's lawyer completed the
14. Cancellation or correction of entries in the civil presentation of evidence in support of the petition
registry (Sec. 1, Rule 72). and the court's ruling on the formal offer of evidence,
Ernesto's lawyer filed a demurrer to evidence. Ernie's
NOTE: The list under Rule 72, Section 1 is not exclusive lawyer objected on the ground that a demurrer to
Any petition which has for its main purpose the evidence is not proper in a special proceeding. a.) Was
establishment of a status, right or a particular fact may be Ernie's counsel's objection proper? (2015 Bar)
included as a special proceeding (Festin, 2011).
A: NO, Ernie’s counsel’s objection was not proper. Under
Applicability of General Rules the Rule on Special Proceedings, in the absence of special
provisions, the rules provided for in ordinary actions,
In the absence of special provisions, the rules provided for shall be, as far as practicable, applicable in special
in ordinary actions, shall be, as far as practicable, proceedings. Here there are no special provisions on
applicable in special proceedings (Sec. 2, Rule 72). (2008 demurrer to evidence in the rules on guardianship. Hence
Bar) the provisions on demurrer to evidence in ordinary
actions are applicable to special proceedings. . Such
application is practicable since it would be a waste of time
NOTE: The word “practicable” is defined as: possible to
to continue hearing the case if upon the facts and the law,
practice or perform; capable of being put into practice,
guardianship would not be proper.
done or accomplished. This means that in the absence of
special provisions, rules in ordinary actions may be
---
applied in special proceedings as much as possible and
where doing so would not pose an obstacle to said

Ordinary Action vs. Special Civil Action vs. Special Proceeding

Ordinary Action Special Civil Action Special Proceeding

Seeks to protect or enforce a right or Civil action subject to specific rules Seeks to establish a right, status, or a
prevent or redress a wrong particular fact
Involves two or more parties – plaintiff Involves two or more parties May involve only one party – only
and defendant petitioner because it is an application
for relief against the whole world or a
proceeding in rem, not an action to
enforce a right against a particular
individual, except for correction or
cancellation of entries under Rule 108,
in which case, the Local Civil Registrar
should be impleaded as a respondent
Governed by ordinary rules, Ordinary rules apply primarily but Governed by special rules,
supplemented by special rules subject to specific rules supplemented by ordinary rules if
applicable like rule on payment of
docket fees and the requirement of
certification against forum shopping
(Ibid.)

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 SPECIAL PROCEEDINGS

Initiated by a complaint, and parties Some are initiated by complaint, while Initiated by a petition and parties
respond through an answer after being some are initiated by petition respond through an opposition after
served with summons notice and publication are made

Heard by courts of general jurisdiction Heard by courts of general jurisdiction Heard by courts of limited jurisdiction

Issues or disputes are stated in the Issues or disputes are stated in the Issues are determined by law
pleadings of the parties pleadings of the parties
Adversarial Some are adversarial while some are Not adversarial except for correction
not adversarial or cancellation of entries under Rule
108 108 (It may be summary or
adversarial depending on what is
sought to be rectified).
Based on a cause of action Some special civil action does not Not based on a cause of action except
require a cause of action habeas corpus

Subject matters of Special Proceedings

Rules Special Proceeding Jurisdiction Venue

Rules 73-90 Settlement of Estate of RTC –when the gross value of the 1. If resident of the Philippines
Deceased Persons estate exceeds Php 300,000 if (whether citizen or alien)–
outside Metro Manila or if it Court of the province/city
exceeds P400,000 if within where the deceased resides
Metro Manila at the time of death
2. If non- resident – court of
MTC –when the gross value of any province/city wherein
the estate is Php 300,000 or less he had estate (Sec. 1, Rule
if outside Metro Manila or 73)
Php 400,000 or less if within
Metro Manila (Sec. 3, RA 7691)

NOTE: MTC jurisdiction is

exclusive of interest, damages of
whatever kind, attorney’s fees,
litigation expenses and costs

Rule 91 Escheat RTC (Sec. 1, Rule 91) 1. Ordinary escheat

proceedings: RTC
a. If resident– place where the
deceased last resided; or
b. If non-resident– place
where he the estate is
located(Sec. 1)
2. Reversion of land to the State
for violation of the
Constitution–RTC where the
land lies in whole or in
part(Sec. 5)

3. Unclaimed deposits(for 10
years) – RTC of the
city/province where the bank
is located

NOTE: All banks located in one

(1) province where the court is
located may be made party-
defendant in an action.
Rules 92-97; A.M. No. Guardianship Family Court – In case of minors 1. If resident– place where
03-02-05-SC (Sec. 3, A.M. No. 03-02-05-SC) minor/ incompetent
resides; or
RTC – In cases of incompetents 2. If non-resident– place
other than minors (Sec. 1, where minor/ incompetent
Rule 92) has property

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 REMEDIAL LAW

Rule 98 Trustees RTC–when the gross value of the Where the will was allowed or
estate exceeds Php 300,000 if where the property or portion
outside Metro Manila or if it thereof, affected by the trust is
exceeds Php 400,000 if within situated(Sec. 1)
Metro Manila

MTC–when the gross value of the

estate is Php 300,000 or less if
outside Metro Manila or Php
400,000 or less if within Metro
Manila (Sec. 3, RA 7691)
Rule 103 Change of name RTC (Sec. 1) Where petitioner resides for at
least three(3) years prior to the
filing of the petition

Rule 108 Cancellation or RTC (Sec.1) Where the corresponding civil

correction of entries in registry is located
the civil registry

RA 9048 as amended 1. Administrative Local Civil Registry/Consul Local civil registry office where
by RA No. 10172 correction of General (Sec. 3) the record is kept/where the
effective August 15, entry/change of first interested party is presently
2012 name or nickname residing or domiciled
2. Correction of date of
birth with regard to In case petitioner has already
day and month of migrated to another place in the
birth but not the country – with the local civil
year of birth registrar of the place where the
3. Change of sex of a interested party is presently
person where it is residing or domiciled
patently clear that
there was a clerical Citizens of the Philippines who
or typographical are presently residing or
error or mistake in domiciled in foreign countries –
the entry with the nearest Philippine
4. Clerical or Consulates
typographical errors
which can be
corrected by the civil
registry

Rule 107 Declaration of absence RTC (Sec.1) Where the absentee resided
and death before his disappearance

A.M. No. 00-8-10-SC Corporate rehabilitation RTC designated as commercial Where principal office of the
court debtor as specified in the articles
of incorporation

Where the principal office of the

corporation, partnership or
association is registered in the
SEC as Metro Manila – RTC of the
city or municipality where the
head office is located

A joint petition by a group of

companies – RTC which has
jurisdiction over the principal
office of the parent company, as
specified in its Articles of
Incorporation (Sec. 2)

BP 68 (Corporation Voluntary dissolution of SEC (Sec. 118-120, Corporation Where principal office of
Code) corporation Code) corporation is situated

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 SPECIAL PROCEEDINGS

Rule 101 Hospitalization of RTC (Sec. 1) Where such insane person may
insane person be found (Sec. 1)

A.M. No. 02-06-02-SC Domestic Adoption Family Court (Sec. 6) Where the adopter resides
A.M. No. 02-6-02-SC Rescission of Adoption Family Court (Sec. 20) Where the adoptee resides
A.M. No. 02-6-02-SC Inter-country Adoption Family Court or the Inter- Place where the child resides or
Country Adoption Board (Sec. may be found
28)
It may be filed directly with the
Inter-Country Adoption Board
(Sec. 28)

A.M. No. 03-04-04-SC Custody of Minors Family Court (Sec. 3) Where petitioner resides or
where the minor may be found

Rule 105 Judicial Approval of Family Court (Sec. 1) Where the child resides
Voluntary Recognition
of Minor Natural
Children

A.M. No.02-11-10-SC Declaration of nullity of Family Court (Sec. 3[b]) Where petitioner or respondent
void marriage/ has been residing for at least
Annulment of marriage six(6) months prior to the date of
filing

In case of non-resident
respondent, where he may be
found, at the election of the
petitioner. (Sec. 4)

A.M. No. 02-11-11-SC Legal Separation Family Court (Sec. 2[c]) Where petitioner or respondent
has been residing for at least 6
months prior to the date of filing

In case of non-resident
respondent, where he may be
found at the election of the
petitioner

Art. 40, Family Code Petition for judicial RTC Where the petitioner resides
permission to marry

Family Code Summary Proceedings Family Court (Sec.5, RA 8369) Where the petitioner resides or
where the child resides if it
involves minors

RA 8369 Actions mentioned in the Family Courts Act

1. Petitions on Foster Family Court Where petitioner or respondent
care and has been residing for at least 6
Temporary Custody months prior to the date of filing
2. Declaration of
Nullity of Marriage In case of non-resident
3. Cases of Domestic respondent, where he may be
Violence Against found at the election of the
Women and petitioner
Children

Rule 102 Habeas Corpus SC, CA, RTC, MTC in the province Where the aggrieved party is
or city in case there is no RTC detained (RTC)
judge; SB only in aid of its
appellate jurisdiction (Sec. 2)

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 REMEDIAL LAW

A.M. No. 03-04-04-SC Habeas Corpus in Family Court, CA, SC (Sec. 20) Where the petitioner resides or
Relation to Custody of where the minor may be found
Minors NOTE: A petition may be filed
with the regular court in the
absence of the presiding judge of
the Family Court, provided,
however, that the regular court
shall refer the case to the Family
Court as soon as its presiding
judge returns to duty

A.M. No. 07-9-12-SC Writ of Amparo RTC, SB, CA or SC or any justice Where the threat, act or omission
thereof (Sec. 3) was committed or any of its
elements occurred

A.M. No. 08-1-16-SC Writ of habeas data RTC, SB, CA or SC or any justice Where the petitioner or
thereof (Sec. 3) respondent resides, or that
which has jurisdiction over the
place where the data or
information is gathered,
collected or stored, at the option
of the petitioner

A.M. No. 09-6-8-SC Writ of Kalikasan SC or any stations of CA (Sec. 3, Where the unlawful act,
Rule 7) omission or threat was
committed

Publication requirement in Special Proceedings

Special Proceeding Publication of Order of Hearing

Clerical or typographical errors; Once a week for 2 consecutive weeks
administrative change of first name or
nickname, the day and month in the date of
birth or sex of a person where it is patently
clear that there was a clerical or typographical
error or mistake in the entry

Corporate rehabilitation

Settlement of estate of deceased persons Once a week for 3 consecutive weeks

Judicial change of name
Judicial cancellation or correction of entries in
the civil registry
Domestic adoption
Inter-country adoption
Voluntary dissolution of corporation
(Except shortening of corporate term)
Declaration of absence Once a week for 3 consecutive weeks

NOTE: The declaration of absence shall not take effect until six (6)
months after its publication in a newspaper of general circulation.
Escheat Once a week for 6 consecutive weeks

Guardianship None
Trustees

Custody of minors
Hospitalization of insane person
Rescission of adoption
Correction of clerical or typographical error
Habeas corpus
Writ of amparo
Writ of habeas data
Writ of kalikasan

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 SPECIAL PROCEEDINGS

1. Petitions on foster care and temporary

custody
2. Cases of domestic violence against women
and children
Summary proceedings

NOTE: In declaration of nullity or annulment of marriage or legal separation, service of summons may be made through
publication once a week fortwoconsecutive weeks.

Notification requirement in special proceedings

Special Proceeding To whom notice

must be given
Settlement of estate of Executor/administrator/any interested party
deceased persons

Trustees All persons interested in the trust

Hospitalization of insane On the person alleged to be insane and to the one having charge of him or any of his
person relatives

Judicial change of name Interested parties/Solicitor General

Judicial cancellation or Persons named in the petition/Solicitor General/Civil Registrar impleaded as

correction of entries in the civil respondent
registry
Declaration of absence and Heirs/legatees/devisees/creditors/other interested persons
death

Corporate rehabilitation Creditors/Debtors

Voluntary dissolution of Creditors

corporation
Administrative correction of Interested parties
entry/ change of first name or
nickname
Guardianship The minor if above 14 years of age/incompetent himself/Interested parties on the
property of the ward. General or special notice may be given.

Domestic Adoption Biological parents/Solicitor General

Rescission of Adoption Adopter
Inter-country Adoption Biological parents, if any/guardian
Custody of Minors Biological parents/guardian if any
Habeas corpus To the person to which the writ is directed
Writ of Amparo Respondent
Writ of habeas data Respondent
Writ of kalikasan Respondent
Summary proceedings Respondent and interested party
1. Petitions on foster care and Solicitor General/Public Prosecutor
temporary custody
2. Cases of domestic violence
against women and children

Declaration of nullity of void City/Provincial Prosecutor/ Respondent

marriage/ Annulment of
marriage
Legal separation City/Provincial prosecutor/ Respondent
Escheat None

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 REMEDIAL LAW
by reason of which he cannot, without danger, be
WRIT OF HABEAS CORPUS brought before the court or judge;
(RULE 102) 4. If he has had the party in his custody or power, or
under restraint, and has transferred such custody or
restraint to another, particularly to whom, at what
It is a writ directed to the person detaining another and time, for what cause, and by what authority such
commanding him to produce the body of the prisoner at a transfer was made (Sec. 10, Rule 102).
certain time and place with the day and the cause of his
caption and detention, to do, submit to and receive NOTE: If it appears that the prisoner is in the custody of a
whatsoever, the court or judge awarding the writ shall public officer under a warrant of commitment in
consider in that behalf. (Illusorio v. Bildner, G.R. No. pursuance of law, the return shall be considered prima
139789, May 12, 2000) facie evidence of the validity of the restraint

It is regarded as “palladium of liberty”, a prerogative writ If he is restrained of his liberty by an alleged private
which does not issue as a matter of right but in the sound authority, the return shall be considered only as a plea of
discretion of the court or judge. (Caballes v. Court of the facts therein set forth, and the party claiming the
Appeals, G.R. No. 163108, February 23, 2005) custody must prove such facts (Sec. 13, Rule 102).

CONTENTS OF THE PETITION Return to be signed and sworn to

A party for whose relief it is intended, or some person on GR: The return or statement shall be sworn to by the
his behalf, may apply through a verified petition for a writ person who makes it.
of habeas corpus and should contain the following:
XPN: The return is made and signed by a sworn public
1. That the person in whose behalf the application is officer in his official capacity.
made is imprisoned or restrained of his liberty;
2. The officer or name of the person by whom he is so XPN to the XPN: When the prisoner is not produced.
imprisoned or restrained; or, if both are unknown or
uncertain, such officer or person may be described by In all cases, the return or statement shall be signed by the
an assumed appellation, and the person who is person who makes it (Sec. 11, Rule 102).
served with the writ shall be deemed the person
intended; Hearing on return
3. The place where he is so imprisoned or restrained, if
known; GR: The court or judge before whom the writ is returned
4. The cause of his detention; and or adjourned must immediately proceed to hear and
5. The verified petition must be signed. examine the return.

NOTE: The formalities required for petitions for habeas XPN: The hearing may be adjourned for good causes,
corpus must be construed liberally. Strict compliance provided that conditions upon the safekeeping of the
with the technical requirements for a habeas corpus detained person are laid. If the detained person cannot be
petition may be dispensed with where the allegations in produced before the court, the officer or person detaining
the application are sufficient to make out a case for habeas must satisfy the court of the gravity of the alleged sickness
corpus. (Fletcher v. Director of Bureau of Corrections, UDK- or infirmity (Sec. 12, Rule 102).
14071, July 17, 2009)
NOTE: During the hearing, the court or judge shall
CONTENTS OF THE RETURN disregard matters of form and technicalities of the
authority or order of commitment.
When the person to be produced is imprisoned or
restrained by an officer, the person who makes the return The failure of petitioners to file a reply to the return of the
shall state therein, and in other cases the person in whose writ warrants the dismissal of the petition because unless
custody the prisoner is found shall state, in writing to the controverted, the allegations on the return are deemed to
court or judge before whom the writ is returnable, plainly be true or admitted (Florendo v. Javier, G.R. No. L-36101,
and unequivocally: June 29, 1979).

1. Whether he has or has not the party in his custody or DISTINGUISH PEREMPTORY WRIT FROM
power, or under restraint; PRELIMINARY CITATION
2. If he has the party in his custody or power, or under
restraint, the authority and the true and whole cause Kinds of Writ of Habeas Corpus
thereof, set forth at large, with a copy of the writ,
order, execution, or other process, if any, upon which 1. Preliminary citation is issued when a government
the party is held; officer has the person in his custody, the illegality of
3. If the party is in his custody or power or is restrained which is not patent, to show cause why the writ of
by him, and is not produced, particularly the nature habeas corpus should not issue.
and gravity of the sickness or infirmity of such party 2. Peremptory writ is issued when the cause of the
detention appears to be patently illegal and the non-

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 SPECIAL PROCEEDINGS
compliance therewith is punishable (Lee Yick Hon v. by the lawful order or process of a court having
Collector of Customs, G.R. No. 16779, March 30, 1921). jurisdiction of the cause or offense (Sec. 17, Rule 102).

In a habeas corpus petition, the order to present an NOTE: In habeas corpus cases, the judgment in favor of the
individual before the court is a preliminary step in the applicant cannot contain a provision for damages.
hearing of the petition. The respondent must produce the
person and explain the cause of his detention. However, Period of appeal
this order is not a ruling on the propriety of the remedy
or on the substantive matters covered by the remedy. Under BP 129, the period of appeal in habeas corpus cases
Thus, the Court’s order to the CA to conduct a factual shall be 48 hours from the notice of the judgment or final
hearing was not an affirmation of the propriety of the order appealed from.
remedy of habeas corpus (In the Matter of the Petition for
Habeas Corpus of Alejano vs. Cabuay, G.R. No. 160792, Grounds for suspension of the privilege of the writ of
August 25, 2005). habeas corpus under the Constitution:

Scope of the writ 1. Invasion, when public safety requires it;

2. Rebellion, when public safety requires it.
Habeas corpus extends to:
Grounds for the issuance of writ of habeas corpus as a
1. Cases of illegal confinement or detention by which a consequence of judicial proceeding
person is deprived of his liberty; and
2. Cases by which the rightful custody of the person is 1. There has been a deprivation of a constitutional right
withheld from the person entitled thereto (Sec. 1, resulting in restraint of person;
Rule 102). (2005 & 2009 Bar) 2. The court has no jurisdiction to impose the sentence;
3. An excessive penalty has been imposed, the sentence
Purpose being void as to excess;
4. Where the law is amended, as when the penalty is
The essential object and purpose of the writ of habeas lowered (Feria v. CA, G.R. No. 122954, February 15,
corpus is to inquire into all manner of involuntary 2000);
restraint as distinguished from voluntary and to relieve a 5. Denial of right to a speedy trial (since it is
person therefrom if such restraint is illegal. jurisdictional);
6. Where the results of post-conviction DNA testing are
To justify the grant of the petition, the restraint of liberty favorable to the convict;
must be an illegal and involuntary deprivation of freedom 7. Enable the parents to regain custody of a minor child,
of action. The illegal restraint of liberty must be actual and even if the latter be in the custody of a third person
effective, not merely nominal or moral (Ilusorio v. Bildner, of her own free will;
G.R. Nos.135789-90, May 16, 2000). 8. In determining the constitutionality of a statute
(People v. Vera, G.R. No. L-45685, November 16, 1937);
Nature of the petition 9. When testing the legality of an alien’s confinement
and proposed expulsion from the Philippines (Lao
Habeas Corpus is a summary remedy. It is analogous to a Tang Bun v. Fabre, G.R. No. L-1673, October 22, 1948);
proceeding in rem when instituted for the sole purpose of 10. In permitting an alien to land in the Philippines (Lim
having the person of restraint presented before the judge Cheng v. Insular Collector of Customs, G.R. No.
in order that the cause of his detention may be inquired 16406,September 13, 1920); and
into and his statements final. The writ of habeas corpus 11. In determining the legality of an extradition (United
does not act upon the prisoner who seeks relief, but upon States v. Rauscher, 7 S. Ct. 234, 30 L. Ed. 425, December
the person who holds him in what is alleged to be the 6, 1886).
unlawful authority. Hence, the only parties before the
court are the petitioner and the person holding the Q: Luis Ramos initiated a complaint-affidavit for
petitioner in custody, and the only question to be resolved deportation before the Bureau of Immigration and
is whether the custodian has authority to deprive the Deportation (BID) against Jimmy Go alleging that the
petitioner of his liberty (Caballes v. CA, G.R. No. 163108, latter is an illegal and undesirable alien.
February 23, 2005). The complaint for deportation was dismissed but was
subsequently reversed by the Board of
The writ of habeas corpus and certiorari may be ancillary Commissioners; hence the corresponding Charge Sheet
to each other where necessary to give effect to the was filed against Jimmy, charging him of violating the
supervisory powers of the higher courts. A writ of habeas Philippine Immigration Act of 1940. The Board of
corpus reaches the body and the jurisdictional matters, Commissioners issued a warrant of deportation
but not the record. A writ of certiorari reaches the record which led to the apprehension of Jimmy. Jimmy
but not the body. Hence, a writ of habeas corpus may be commenced a petition for habeas corpus. Should the
used with the writ of certiorari for the purpose of review petition be granted?
(Galvez v. CA, G.R. No. 114046, October 24, 1994).
A: NO. Once a person detained is duly charged in court, he
The person released by virtue of habeas corpus may no may no longer question his detention through a petition
longer be imprisoned again for the same offense, except for issuance of a writ of habeas corpus. His remedy would

193
 REMEDIAL LAW
be to quash the information and/or the warrant of arrest Q: Hercules was walking near a police station when a
duly issued. The writ of habeas corpus should not be police officer signaled for him to approach. As soon as
allowed after the party sought to be released had been Hercules came near, the police officer frisked him
charged before any court. The term “court” in this context but the latter found no contraband. The police officer
includes quasi-judicial bodies of governmental agencies told Hercules to get inside the police station. Inside
authorized to order the person’s confinement, like the the police station, Hercules asked the police officer,
Deportation Board of the Bureau of Immigration(Carlos "Sir, may problema po ba?" Instead of replying, the
Go Sr. v. Luis Ramos, G.R. No. 167569; Jimmy Go v. Luis police officer locked up Hercules inside the police
Ramos, G.R. No. 167570; Hon. Alipio Fernandez v. Jimmy Go, station jail. a.) What is the remedy available to
G.R. No. 171946, September 4, 2009). Hercules to secure his immediate release from
detention? b.) If Hercules opts to file a civil action
Q: A municipal trial judge, who is related within the against the police officer, will he have a cause of
third degree of consanguinity to Archie, complainant, action? (2015 Bar)
has conducted an ex parte preliminary investigation
without affording Ben, accused, opportunity to be A:
heard and thereafter issued a warrant of arrest, a. The remedy available to Hercules to secure his
pursuant to which Ben has been detained, and immediate release from detention is a petition for
subsequently forwarded the records of the case to the writ of habeas corpus. Under Rule 102, the writ of
provincial prosecutor for appropriate action. Will habeas corpus is available in cases of illegal
habeas corpus and certiorari lie? detention. Section 5 of Rule 102 provides that a court
or judge authorized to grant the writ must, when the
A:YES, a petition for habeas corpus to relieve Ben under petition therefor is presented and it appears that the
the illegal warrant of arrest, and for certiorari to assail the writ ought to issue, grant the same forthwith, and
warrant of arrest may be filed, and the judge may properly immediately thereupon the clerk of court shall issue
be made respondent, even though the accused has been in the writ or in case of emergency, the judge may issue
physical custody of the Provincial warden, as the judge the writ under his own hand and may depute any
has constructive custody of the accused. For the illegal officer or person to serve it. The court or judge
order and warrant of arrest issued by the judge subsists before whom the writ is returned must immediately
and Ben is offered no speedy, adequate remedy or appeal proceed to hear and examine the return. (Section 12,
in the ordinary course of law. The writ of habeas corpus, Rule 102).
although not designed to interrupt the orderly b. YES. Hercules will have a cause of action. Under
administration of justice, can be invoked, in fine, by the Article 32(4) of the Civil Code, any public officer who
attendance of special circumstance that requires violates the right of a person to freedom from
immediate action (Calvan v. CA, G.R. No.140823, October 3, arbitrary or illegal detention shall be liable to the
2000). latter for damages. The action to recover damages is
an independent civil action. Here Hercules was
Q: Rita Labriaga was caught selling two tea bags of illegally detained as there was no probable cause to
marijuana in Daraga, Albay in a buy-bust operation arrest him without warrant.
conducted by the Narcotics Command. Rita was found
in possession of 115 grams of marijuana. Rita was Who may grant the writ
convicted for violation of RA 6425 and was sentenced
for life imprisonment. Rita filed a motion for The RTC, CA, and SC have concurrent jurisdiction to issue
reconsideration with modification of sentence. Rita writs of habeas corpus. The MTC, by virtue of special
prays for the retroactive application to her case of RA jurisdiction under BP. 129, can issue the writ in case there
7659 which imposes imprisonment of prision is no available RTC judge. Hierarchy of courts is not
correccional for less than 250 grams of marijuana and observed.
for her eventual release from confinement at the
Correctional Institution for Women in Mandaluyong The writ issued by the RTC is enforceable within its
as a consequence of the application of the new law to territorial jurisdiction. While the writ issued by the CA or
her case. It appears that she already served sentence SC is enforceable anywhere in the Philippines (Sec. 2, Rule
for a more than a year. Should the motion be granted? 102). ). (2003, 2005 & 2007 Bar)

A: YES. The appropriate remedy is to file a petition for The Sandiganbayan may issue writs of habeas corpus only
habeas corpus considering that the decision in this case is if it is in aid of its appellate jurisdiction (Sec. 4, P.D. 1606,
final. However, in accordance with the ruling in Angeles v. as amended by RA 8249).
Bilibid Prison (G.R. No. 117568, January 4, 1995) and
People v. Agustin (G.R. No. 98362, September 5, 1995), in This provision is another exception to the rule that
which the SC held that the rules on habeas corpus should processes of the RTC are enforceable throughout the
be liberally applied in cases which are sufficient in Philippines (Regalado, Vol. II, 10thed.).
substance, the motion in this case must be treated as a
substantial compliance with the rules on habeas corpus. Family Courts have exclusive jurisdiction to issue writs of
Rita Labriaga, having served more than the maximum habeas corpus involving custody of minors.
imposable penalty of prision correccional, should be
released (People v. Labriaga, G.R. No. 92418, November 20, Jurisdiction in case of Habeas Corpus with respect to
1995). Custody of Minors

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 SPECIAL PROCEEDINGS
Although the Family Court where the petitioner resides or GR: Officer to whom writ is directed shall convey the
where the minor may be found has exclusive and original detained person on the day specified in the writ:
jurisdiction to hear petitions for habeas corpus with
respect to custody of minors, the Supreme Court and the 1. Before the judge who allowed the writ; or
Court of Appeals can take cognizance o such petition in 2. If he is absent, before any judge of the same court.
order that it can be enforceable within the Philippines.
XPN: If the person to be produced has sickness or
However, the return can be heard in the FC/RTC (if there infirmity such that he cannot be brought before the court
is no FC in the judicial region) and there is no need to file without danger (Sec. 8, Rule 102).
a separate petition for custody because the issue can be
ventilated in the petition for the writ. (2003, 2005, 2007 Q: When the soldier’s defense to a petition for habeas
Bar) corpus is that they released the detainees for whom
the petition was filed, but the allegation of release is
Procedure for grant of writ disputed by the parents of the detainees, and it is not
denied that the detainees have not been seen or heard
1. Verified petition signed by the party for whose relief it from since their supposed release, do the parents
is intended; or by some other person in his behalf; have the burden in law of proving that the their
2. Allowance of writ; children are still detained by the soldiers or does the
3. Command officer to produce; burden shifts to the soldiers?
4. Service of writ by sheriff or other officer;
5. Return; and A: The general rule in the number of cases is that the
6. Hearing on return (Sec. 5, Rule 102). release of a detained person renders moot and academic
the petition for habeas corpus. The cited general rule
GR: If it appears that the writ should issue, the clerk of postulates that the release of the detainees is an
court issues the writ under the court’s seal. established fact and not in dispute, and they do not
constitute to be missing persons. Where, however, there
XPN: In emergency cases, the judge may issue the writ are grounds for grave doubts about the alleged release of
under his own hand and deputize any person to serve it the detainees, where the standard and prescribed
(Sec. 5, Rule 102). procedure has not been followed, then the burden of
proving by clear and convincing evidence the alleged
To whom writ directed release is shifted to the soldiers, as the respondents to the
petition (Dizon v. Eduardo, G.R. No. L-59118, March 3,
A. In case of imprisonment or restraint by an officer. 1988).

1. The writ shall be directed to him. WHEN NOT PROPER/APPLICABLE

2. The officer shall produce the body of the person
before the court. Habeas corpus is not applicable when the purpose is
3. State the cause of detention and prove his authority. to:

B. In case of imprisonment or restraint by a person 1. Enforce a right of service;

not an officer 2. Determine whether a person has committed a crime;
3. Determine a disputed interstate boundary line;
1. The writ shall be directed to an officer. 4. Punish respondent;
2. The officer shall take and produce the body of the 5. Recover damages or other money award;
person before the court. 6. Assert or vindicate denial of right to bail (In re:
3. The officer shall summon the person detaining Azucena Garcia, G.R. No. 141443, November 18, 2000);
another to appear before the court to show the cause 7. Correct errors in appreciation of facts or law.
of the imprisonment or restraint (Sec. 6, Rule 102).
In cases of illegal confinement or detention
How service is made
GR: The release whether permanent or temporary, of a
1. By leaving the original of the writ with the person to detained person renders the petition for habeas corpus
whom it is directed or to any person having custody moot and academic.
if the former cannot be found or has not the person
in his custody; and XPN: When there are restraints attached to his release
2. By preserving a copy on which to make return of which precludes freedom of action, in which cases the
service. court can still inquire into the nature of his involuntary
restraint (Villavicencio v. Lukban, G.R. No. L-14639, March
The writ itself plays the role of summons in ordinary 25, 1919).
actions; court acquires jurisdiction over the person of the
respondent by mere service of writ (Sec. 7, Rule 102). Voluntary restraint

How writ executed and returned GR: Writ is not available if restraint is voluntary (Kelly v.
Director of Prisons, G.R. No. L-20478, March 14, 1923).

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 REMEDIAL LAW
XPN: Writ will lie to enable the parents (or person having habeas corpus and this justifies its dismissal, as the
substituted parental authority) to recover custody of a question of the legality of the arrest or detention should
minor child although she is in custody of a 3rd person on be raised in the pending criminal case, either in a motion
her own volition. (Tijing v. CA, G.R. No. 125901, March 8, to quash the warrant of arrest or the information itself
2001) (Bernarte v. CA, supra.).

NOTE: Voluntariness is viewed from the point of view of R.A. No. 6975, as amended by R.A. No. 8551, clearly
the person entitled to custody. provides that members of the police force are subject to
the administrative disciplinary machinery of the PNP.
WHEN WRIT DISALLOWED/DISCHARGED This court has held that a restrictive custody and
monitoring of movements or whereabouts of police
Instances when the writ shall be disallowed or officers under investigation by their superiors is not a
discharged form of illegal detention or restraint of liberty. Restrictive
custody is, at best, a nominal restraint which is beyond the
1. In cases of supervening events such as issuance of a ambit of habeas corpus. It is neither actual nor effective
process and filing of an information (Velasco v. CA, restraint that would call for the grant of the remedy
G.R. No. 118844, July 7, 1995); prayed for. It is a permissible precautionary measure to
2. In cases of improper arrest or lack of preliminary assure the PNP authorities that the police officers
investigation (Paredes v. Sandiganbayan, G.R. No. concerned are always accounted for. (Ampatuan v.
89989, January 28, 1991); Macaraig, G.R. No. 182497, June 29, 2010)

NOTE: The proper remedy in case of improper arrest Person lawfully imprisoned, recommitted, and when
or lack of preliminary investigation is to quash let to bail
warrant and conduct or direct preliminary
investigation. (Raro v. Sandiganbayan, G.R. No. If it appears that the prisoner was lawfully committed,
108431, July 14, 2000. and is plainly and specifically charged in the warrant of
commitment with an offense punishable by death, he shall
3. In cases of invalid arrest due to deportation cases not be released, discharged, or bailed. If he is lawfully
cured by filing of the deportation proceedings. imprisoned or restrained on a charge of having
(Santos v. Commissioner of Immigration, G.R. No. L- committed an offense not so punishable, he may be
25694, November 29, 1976) recommitted to imprisonment or admitted to bail in the
4. Petition for habeas corpus is not the appropriate discretion of the court or judge. If he be admitted to bail,
vehicle for asserting a right to bail or vindicating its he shall forthwith file a bond in such sum as the court or
denial. (Galvez v. CA, G.R. No. 114046, October 24, judge deems reasonable, considering the circumstances
1994) of the prisoner and the nature of the offense charged,
conditioned for his appearance before the court where
NOTE: An application or admission to bail shall not the offense is properly cognizable to abide its order of
bar the accused from challenging the validity of the judgment; and the court or judge shall certify the
his arrest, or the legality of warrant issued therefore, proceedings, together with the bond, forthwith to the
or from assailing the regularity or questioning the proper court. If such bond is not so filed, the prisoner shall
absence of a preliminary investigation of the charge be recommitted to confinement (Sec. 14, Rule 102). (2008
against him, provided that he raises them before Bar)
entering his plea (Sec. 26, Rule 114; A.M. No.00-5-03-
SC). Person discharged not to be again imprisoned

5. Habeas corpus does not lie where the petitioner has GR: A person who is set at liberty upon a writ of habeas
the remedy of appeal or certiorari because it will not corpus shall not be again imprisoned for the same offense.
be permitted to perform the functions of a writ of
error or appeal for the purpose of reviewing mere XPN: He is imprisoned by virtue of lawful order or process
errors or irregularities in the proceedings. (Galvez v. of court having jurisdiction of the offense or cause (Sec.
CA, G.R. No. 114046, October 24, 1994. 17, Rule 102).

In all petitions for habeas corpus, the court must inquire The release contemplated under the writ of habeas corpus
into every phase and aspect of petitioner’s detention, is one which is free from any involuntary restraint. When
from the moment petitioner was taken into custody up to the person so released continues to be denied of one or
the moment the court passes upon the merits of the more of his constitutional freedoms where there is
petition and only after such a scrutiny can the court present denial of due process, or where the restraints are
satisfy itself that the due process clause of the not merely involuntary but appear to be unnecessary, the
Constitution has been satisfied (Bernarte v. CA, G.R. No. person concerned or those acting in his behalf may still
107741, November 18, 1996). avail themselves again of the privilege of the writ
(Moncupa v. Enrile, G.R. No. L-63345, January 30, 1986).
If the person arrested is judicially charged within 3 days
from his detention during the suspension of the writ, the Q: Can the State reserve the power to re-arrest a
aggrieved party is precluded from inquiring into the person for an offense after a court of competent
legality of the arrest or detention in the petition for jurisdiction has absolved him of the offense?

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 SPECIAL PROCEEDINGS
A: Such a reservation is repugnant to the principle that writ because the State, through the prosecution's
the government is one of laws and not of men. Under this refusal to present evidence and by the
principle, the moment a person is acquitted of a criminal Sandiganbayan's refusal to grant a bail hearing, has
charge he can no longer be detained or re-arrested for the failed to discharge its burden of proving that as
same offense (Toyoto v. Ramos, G.R. No. L-69270, October against him, evidence of guilt for the capital offense of
15, 1985). plunder is strong. He also maintains that the issuance
by the Sandiganbayan of new orders cancelling the
Habeas Corpus would not lie after the Warrant of bail hearings which it had earlier set did not render
Commitment was issued by the court on the basis of the moot and academic the petition for issuance of a writ
Information filed against the accused. of habeas corpus, since said orders have resulted in a
continuing deprivation of Serapio's right to bail.
Once a person detained is duly charged in court, he may Should the petition for habeas corpus be granted?
no longer question his detention through a petition for
issuance of a writ of habeas corpus. The remedy would be A: NO. The general rule that habeas corpus does not lie
to quash the information and/or the warrant of arrest where the person alleged to be restrained of his liberty is
duly issued. in the custody of an officer under process issued by a
court which had jurisdiction to issue the same applies.
If the offense is punishable by death, the person lawfully Moreover, a petition for habeas corpus is not the
detained shall not be released, discharged or bailed. If the appropriate remedy for asserting one's right to bail. It
offense is not punishable by death, he may be cannot be availed of where accused is entitled to bail not
recommitted to imprisonment of admitted to bail in the as a matter of right but on the discretion of the court and
discretion of the court. the latter has not abused such discretion in refusing to
grant bail, or has not even exercised said discretion. The
When prisoner may be removed from one custody to proper recourse is to file an application for bail with the
another court where the criminal case is pending and to allow
hearings thereon to proceed.
1. By legal process;
2. Prisoner is delivered to an inferior officer to carry to The issuance of a writ of habeas corpus would not only be
jail; unjustified but would also preempt the Sandiganbayan's
3. By order of proper court or judge directing that he be resolution of the pending application for bail of Serapio.
removed from one place to another within the The recourse of Serapio is to forthwith proceed with the
Philippines for trial; or hearing on his application for bail (Serapio v.
4. In case of fire, epidemic, insurrection or other Sandiganbayan, G.R. No. 148468, January 28, 2003).
necessity or public calamity (Sec. 18, Rule 102).
Q: After Alma had started serving her sentence for
Q: Mariano was convicted by the RTC for raping violation of BP 22, she filed a petition of writ of habeas
Victoria and meted the penalty of reclusion perpetua. corpus, citing Vaca v. CA where the sentence of
While serving sentence, Mariano and Victoria got imprisonment of a party found guilty of violation of
married. Mariano filed a motion in said court for his BP 22 was reduced to a fine equal to double the
release from the penitentiary on his claim that under amount of the check involved. She prayed that her
RA 8353, his marriage to Victoria extinguished the sentence be similarly modified and that she be
criminal action against him for rape, as well as the immediately released from detention. In the
penalty imposed on him. The court denied the motion alternative, she prayed that pending determination
on the ground that it had lost jurisdiction over the on whether the Vaca ruling applies to her, she be
case after its decision had become final and allowed to post bail pursuant to Sec. 14, Rule 102,
executory. What remedy/ies should the counsel of which provides that if a person is lawfully imprisoned
Mariano take to secure his proper and most or restrained on a charge of having committed an
expeditious release from the National Penitentiary? offense not punishable by death, he may be admitted
Explain. (2005 Bar) to bail in the discretion of the court. Accordingly, the
trial court allowed Alma to post bail and then ordered
A: His counsel should file a petition for habeas corpus for her release. In your opinion, is the decision of the trial
the illegal confinement of Mariano or a motion in the court court correct?
which convicted Mariano to nullify the execution of his
sentence or the order of his commitment on the ground 1. Under Rule 102?
that a supervening development had occurred. 2. Under the Rules of Criminal Procedure? (2008
Bar)
Q: Edward Serapiois under detention pursuant to the
order of arrest issued by the Sandiganbayan on April A:
25, 2001 after the filing by the Ombudsman of the
amended information for plunder against Serapio 1. NO. Section 4, Rule 102 of the Rules of Court (habeas
and his co-accused. Edward had in fact voluntarily corpus) does not authorize a court to discharge by
surrendered himself to the authorities on April 25, writ of habeas corpus a person charged with or
2001 upon learning that a warrant for his arrest had convicted of an offense in the Philippines, or of a
been issued. He filed a petition for habeas corpus person suffering imprisonment under lawful
contending that he is entitled to the issuance of said judgment.

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 REMEDIAL LAW
2. NO. The trial court’s Order releasing Alma on bail Court, as amended (Johnson v. Makalino, G.R. No. 139255,
even after judgment against her has become final and November 24, 2003).
in fact she has started serving sentence, is a brazen
disregard of the mandate in Sec. 24, Revised Rules of
Criminal Procedure that: “In no case shall bail be Habeas corpus as post-conviction remedy
allowed after the accused has commenced to serve
GR: The writ may not be availed of when the person in
sentence” (People v. Fitzgerald, G.R. No. 149723,
custody is under a judicial process or by virtue of a valid
October 27, 2006).
judgment.
Q: Upon a complaint that he is issuing fake Alien XPN: However, as a post conviction remedy, it may be
Certificate Registration, Morgan, a British national allowed when, as a consequence of a judicial proceeding,
was arrested by the Bureau of Immigration and any of the following exceptional circumstances is
Deportation (BID). The Board of Commissioners attendant:
(BOC) of the BID issued a deportation order against
Morgan. A week after, Elisa, Morgan’s wife, filed a 1. There has been a deprivation of a constitutional right
petition for the issuance of a writ of habeas corpus resulting in the restraint of a person;
with the Manila RTC naming the Immigration 2. The court had no jurisdiction to impose the sentence;
Commissioner as respondent. After trial, the RTC 3. The imposed penalty has been excessive, thus
dismissed Elisa’s petition on the ground that a voiding the sentence as to such excess (Go v.
petition for the issuance of a writ of habeas corpus is Dimagiba, G.R. No. 151876, June 21, 2005)
not the proper remedy. Is the RTC correct?

A: YES, the power to deport aliens is vested on the

President of the Philippines, subject to the requirements
of due process. The Immigration Commissioner is vested
with authority to deport aliens under Section 37 of the
Philippine Immigration Act of 1940, as amended. Thus, a
party aggrieved by a Deportation Order issued by the BOC
is proscribed from assailing said order in the RTC via a
petition for a writ of habeas corpus.

In case such motion for reconsideration is denied by the

BOC, the aggrieved party may appeal to the Secretary of
Justice and, if the latter denies the appeal, to the Office of
the President of the Philippines. The party may also
choose to file a petition for certiorari with the CA under
Rule 65 of the Rules of Court, on the ground that the
Secretary of Justice acted with grave abuse of discretion
amounting to excess or lack of jurisdiction in dismissing
the appeal, the remedy of appeal not being an adequate
and speedy remedy. In case the Secretary of Justice
dismisses the appeal, the aggrieved party may also resort
to filing a petition for review under Rule 43 of the Rules of
DISTINGUISH WRIT OF HABEAS CORPUS FROM WRIT OF AMPARO, HABEAS DATA AND KALIKASAN

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN

Literal You have the body To protect You have the data It is a Filipino word
interpretation which means “nature”
in English

Description Writ directed to the Remedy available to Remedy available to Special remedy
person detaining any person whose any person whose available
another, commanding right to life, liberty, right to privacy in life, to a natural or juridical
him to produce the and security is violated liberty or security is person, entity
body of the prisoner at or threatened with violated or threatened authorized by law,
a designated time and violation by an by an unlawful act or people’s organization,
place, with the day and unlawful act or omission of a public non-governmental
cause of his capture omission of a public official or employee, or organization, or any
and detention, to do, official or employee, or of a private individual public interest group
submit to, and receive of a private individual or entity engaged in accredited by or
whatsoever the court or entity. the gathering, registered with any
or judge awarding the collecting, or storing of government agency,
writ shall consider in data or information on behalf of persons
that behalf. regarding the person, whose constitutional
family, home and right to a balanced and

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 SPECIAL PROCEEDINGS

correspondence of the healthful ecology is

aggrieved party. violated, or threatened
with violation by an
unlawful act or
omission of a public
official or employee, or
private individual or
entity, involving
environmental
damage of such
magnitude as to
prejudice the life,
health or property of
inhabitants in two or
more cities or
provinces.

Office of the To direct the person To direct the public To order the To order the
Remedy detaining another to officers involved to disclosure or protection of the
produce the body of conduct an destruction of data constitutional right to
the person being investigation as to the relating to the right to a balanced and
detained and show the whereabouts and life, liberty or security healthful ecology and
cause of detention. legality of the of a person. restrain further acts
detention of a missing that cause
person. environmental
damage of such a
magnitude that
prejudices the right to
life, health or property
of inhabitants in two
or more cities or
provinces.

Coverage Involves the right to Involves the right to It protects the image, Constitutional right to
liberty of and rightful life, liberty, and privacy, honor, a balanced and
custody by the security of the information, self- healthful ecology.
aggrieved party. aggrieved party and determination and
covers extralegal freedom of
killings and enforced information of a
disappearances. person.

Where to file RTC or any judge RTC of the place where RTC where the In SC or any stations of
thereof, CA or any the threat, act or petitioner or the CA.
member thereof in omission was respondent resides, or
instances authorized committed or any of its that which has
by law; Sandiganbayan elements occurred; SB jurisdiction over the
in aid of its appellate or any justice thereof; place where the data
jurisdiction, or SC or CA or any justice or information is
any member thereof. thereof; SC or any gathered, collected or
justice thereof. stored, at the option of
the petitioner; or with
SC, CA or SB when the
action concerns public
data files or
government offices.
Who may file a 1. Party for whose In the following order: 1. Any aggrieved A natural or juridical
petition relief it is 1. Any member of party; person, entity
intended; or the immediate 2. However, in cases authorized by law,
2. Any person on his family; of extralegal people’s organization,
behalf 2. Any ascendant, killings and non-governmental
descendant, or enforced organization, or any
collateral relative disappearances: public interest group
of the aggrieved a. Any member accredited by or
party within the of the

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 REMEDIAL LAW

4th civil degree of immediate registered with any

consanguinity or family government agency.
affinity; Any
3. Any concerned ascendant,
citizen, descendant,
organization, or collateral
association or relative of
institution the
aggrieved
party within
the 4th civil
degree of
consanguinit
y or affinity
Respondent May or may not be an Public official or Public official or Public official or
officer. employee or a private employee or a private employee, private
individual or entity. individual or entity individual or entity.
engaged in the
gathering, collecting or
storing of data or
information regarding
the person, family,
home and
correspondence of the
aggrieved party.

Enforceability of If granted by SC or CA: Enforceable anywhere Enforceable anywhere Enforceable anywhere

the writ enforceable anywhere in the Philippines in the Philippines in the Philippines
In the Philippines; regardless of who
issued the same
If granted by RTC:
enforceable only
within the judicial
district

Docket fees Payment is required Petitioner is exempted Payment is required. Petitioner is exempted
from payment from payment
NOTE: Rule on NOTE: Rule on
indigent petitioner indigent petitioner
applies. applies.

Service of writ Served upon the Served upon the Served upon the Served upon the
person to whom it is respondent respondent respondent
directed, and if not personally; or personally; or personally; or
found or has not the substituted service substituted service substituted service.
prisoner in his
custody, to the other
person having or
exercising such
custody

Person who Officer by whom the Respondent Respondent Respondent

makes the return prisoner is imprisoned
or the person in whose
custody the prisoner is
found

When to file a On the day specified in Within 5 working days The respondent shall Within non- extendible
return the writ after service of the file a verified written period of 10 days after
writ, the respondent return together with the service of writ.
shall file a verified supporting affidavits
written return within 5 working days
together with from service of the
supporting affidavits. writ, which period may
be reasonably

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 SPECIAL PROCEEDINGS

extended by the Court

for justifiable reasons.

Return If granted by the SC or If issued by RTC: If issued by RTC: If issued by SC,

CA: returnable before returnable before such returnable before such returnable before such
the court or any court; court; court or CA.
member or before RTC
or any judge thereof; If issued by SB or CA or If issued by SB or CA or
any of their justices: any of their justices:
If granted by RTC: returnable before such returnable before such
returnable before such court or to any RTC of court or to any RTC of
court the place where the place where the
thethreat, act or petitioner or
In writ of habeas omission was respondent resides or
corpus in relation to committed or any of its that which has
custody of minors, the elements occurred; jurisdiction over the
writ may be made place where the data
returnable to a Family If issued by SC or any or information is
Court or to any regular of its justices: gathered, collected or
court within the region returnable before such stored;
where the petitioner court, or before SB, CA,
resides or where the or to any RTC of the If issued by SC or any
minor may be found place where the threat, of its justices:
for hearing and act or omission was returnable before such
decision on the merits committed or any of its court, or before SB, CA,
(Sec. 20, A.M. No. 03- elements occurred or to any RTC of the
04-04-SC). place where the
petitioner or
respondent resides or
that which has
jurisdiction over the
place where the data
or information is
gathered, collected or
stored.
General denial Not prohibited. Not allowed. Not allowed. Not allowed.

Liability of the Forfeit to the Imprisonment or fine Imprisonment or fine Indirect contempt.
person to whom aggrieved party the for committing for committing
the writ is sum of P1000, and may contempt. contempt.
directed if he also be punished for
refuses to make contempt.
a return
Hearing Date and time of Summary hearing shall Summary hearing shall The hearing including
hearing is specified in be conducted not later be conducted not later the preliminary
the writ. than 7 days from the than 10 working days conference shall not
date of issuance of the from the date of extend beyond 60 days
writ. issuance of the writ. and shall be given the
same priority as
petitions for writs of
habeas corpus, amparo
and habeas data.
Period of appeal Within 48 hours from 5 working days from 5 working days from Within 15 days from
notice of the judgment the date of notice of the the date of notice of the the date of notice of
or final order appealed adverse judgment. judgment or final the adverse judgment
from. order. or denial of motion for
reconsideration.

Prohibited None 1. Motion to dismiss; 1. Motion to dismiss;

pleadings 2. Motion for 2. Motion for
extension of time extension of time
to file opposition, to file return;
affidavit, position 3. Motion for
paper and other postponement;
pleadings;

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 REMEDIAL LAW

4. Motion for a bill of

NOTE: In writ of particulars;
amparo, a motion for 5. Counterclaim or
extension of time to cross-claim;
file the return is no 6. Third-party
longer a prohibited complaint;
pleading, as it may be 7. Reply; and
granted by the court 8. Motion to declare
on highly meritorious respondent in
cases. default.

3. Dilatory motion
for postponement;
4. Motion for a bill of
particulars;
5. Counterclaim or
cross - claim;
6. Third - party
complaint;
7. Reply;
8. Motion to declare
respondent in
default;
9. Intervention;
10. Memorandum;
11. Motion for
reconsideration of
interlocutory
orders or interim
relief orders; and
Petition for certiorari,
mandamus or
prohibition against
any interlocutory
order.

RULES ON CUSTODY OF MINORS AND WRIT OF or where the minor may be found (Sec. 3, AM No. 03-04-
HABEAS CORPUS IN RELATION TO CUSTODY OF 04-SC).
MINORS
The CA and the SC have concurrent jurisdiction with
Who may file a petition for custody of minor Family courts in habeas corpus cases where the custody of
minors is involved. The provisions of RA 8369 must be
A verified petition for the rightful custody of a minor may read in harmony with RA 7029 and BP 129 ― that Family
be filed by any person claiming such right. The party courts have concurrent jurisdiction with the CA and the
against whom it may be filed shall be designated as the SC in petitions for habeas corpus where the custody of
respondent (Sec. 2, AM No. 03-04-04-SC). minors is at issue (Thornton v. Thornton, G.R. No. 154598,
August 16, 2004; Madriñan v. Madriñan, G.R. No. 159374,
In cases involving minors, the purpose of a petition for July 12, 2007).
habeas corpus is not limited to the production of the child
before the court; the main purpose of the petition for Contents of the verified petition
habeas corpus is to determine who has the rightful
custody over the child (Bagtas v. Santos, G.R. No. 166682, 1. The personal circumstances of the petitioner and of
November 27, 2009). the respondent.
2. The name, age and present whereabouts of the minor
By filing a petition for declaration of nullity of marriage, and his or her relationship to the petitioner and the
the issue of custody of the children is deemed respondent.
automatically submitted pursuant to the express 3. The material operative facts constituting deprivation
provisions of Articles 49 and 50 of the Family Code (Yu v. of custody.
Yu, G.R. No. 164915, March 10, 2006). 4. Such other matters which are relevant to the custody
of the minor.
Where filed 5. Certificate of Non-Forum Shopping signed personally
by the petitioner (Sec. 4, AM No. 03-04-04-SC).
The petition for custody of minor is filed with the Family
court of the province or city where the petitioner resides

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 SPECIAL PROCEEDINGS
In Sompong v. CA, et al. (G.R. No. 11876, January 31, 1996), The custody of the minor children shall be awarded to the
the Court laid down the following requisites in petitions innocent spouse, unless otherwise directed by the court
for habeas corpus involving minors: in the interest of the minor children. But when the
husband and wife are living separately and apart from
1. That the petitioner has the right of custody over the each other, without decree of the court, the court shall
minor; award the care, custody and control of each child as will
2. That the rightful custody of the minor is being be for his best interest, permitting the child to choose
withheld from the petitioner by the respondent; and which parent he prefers to live with if he is over 7 years of
3. That it is to the best interest of the minor concerned age unless the parent so chosen be unfit to take charge of
to be in the custody of petitioner and not that of the the child by reason of moral depravity, habitual
respondent. drunkenness or poverty (Sy v. CA, G.R. No. 124518,
December 27, 2007).
Motion to dismiss is not allowed except on the ground of
lack jurisdiction over the subject matter or the parties. Best interest of the minor

Respondent must file a verified answer within 5 days After trial, the court shall render judgment awarding
from the service of summons and copy of the petition. custody of the minor to the proper party considering the
best interests of the minor. However, if it appears that
Pre-trial is mandatory (Sec. 9, AM No. 03-04-04-SC). both parties are unfit to have the care and custody of the
minor, the court may designate either the paternal or
Provisional order awarding custody maternal grandparent of the minor or his oldest brother
or sister, or any reputable person to take charge of such
As far as practicable, the following order of preference minor, or commit him to any suitable home for children.
shall be observed in the award of custody: The court may issue any order that is just and reasonable
permitting the parent who is deprived of the care and
1. Both parents jointly; custody of the minor to visit or have temporary custody
2. Either parent, taking into account all relevant (De Leon & Wilwayco, 2015).
considerations, especially the choice of the minor
over 7 years of age and of sufficient discernment, Tender age presumption
unless the grandparent chosen is unfit or
disqualified; The so-called “tender age presumption” under Art. 213 of
3. The grandparent or if there are several the Family Code may be overcome only by compelling
grandparents, the grandparent chosen by the minor evidence of the mother’s unfitness. The mother has been
over 7 years of age and of sufficient discernment, declared unsuitable to have the custody of her children in
unless the grandparent chosen is unfit or one or more of the following instances: neglect,
disqualified; abandonment, unemployment, immorality, habitual
4. The eldest brother or sister over 21 years of age drunkenness, drug addiction, maltreatment of the child,
unless he or she is unfit or disqualified; insanity or affliction with a communicable disease (Pablo-
5. The actual custodian of the minor over 21 years of Gualbarto v. Gualbarto, G.R. No. 154994, June 28, 2005).
age unless the former is unfit or disqualified; or
6. Any other person or institution the court may deem Q: Husband H files a petition for declaration of nullity
suitable to provide proper care and guidance for the of marriage before the RTC of Pasig City. Wife W files
minor (Sec. 13, AM No. 03-04-04-SC). a petition for habeas corpus before the RTC of Pasay
City, praying for custody over their minor child. H files
Temporary visitation rights a motion to dismiss the wife’s petition on the ground
of the pendency of the other case. Rule. (2007 Bar)
The court shall provide in its order awarding provisional
custody appropriate visitation rights to the non-custodial A: The motion to dismiss the petition for habeas corpus
parent or parents unless the court funds said parent or should be granted to avoid multiplicity of suits. The
parents unfit or disqualified (Sec. 15, AM No. 03-04-04-SC). question of who between the spouses should have
custody of their minor child could also be determined in
Issuance of Hold Departure Order the petition for declaration of nullity of their marriage
which is already pending in the RTC of Pasig City. In other
The minor child cannot be brought out of the country words, the petition filed in Pasay City, praying for custody
without leave from court while the petition is pending. of the minor child is unnecessary and violates only the
The minor child subject of the petition shall not be cardinal rule of procedure against multiplicity of suits.
brought out of the country without prior order from the Hence, the latter suit may be abated by a motion to
court while the petition is pending. The court, motu dismiss on the ground of litis pendentia (Yu v. Yu, G.R. No.
proprio or upon application under oath, may issue ex 164915, March 10, 2006).
parte a hold departure order, addressed to the Bureau of
Immigration and Deportation, directing it not to allow the Q: In a petition for habeas corpus which he filed before
departure of the minor from the Philippines without the the CA, Joey sought custody of his minor son from his
permission of the court(Sec. 16, AM No. 03-04-04-SC). former live-in partner, Loreta. Joey alleged that the
child's mother was abroad most of the time and thus,
In case of legal separation of the parents he should be given joint custody over their son. The

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 REMEDIAL LAW
CA however denied the petition, and on the basis of disappearances or threats thereof (Sec. 1, A.M. No. 07-9-
Art. 213, par (2) of the Family Code, awarded custody 12-SC).
of the child in favor of the mother. Was the CA correct
in denying Joey’s petition for habeas corpus for the The remedy provides rapid judicial relief as it partakes of
custody of his minor son? a summary proceeding that requires only substantial
evidence to make the appropriate reliefs available to the
A: YES. Under Art. 176 of the FC, parental authority over petitioner; it is not an action to determine criminal guilt
an illegitimate child is vested solely in the mother, and requiring proof beyond reasonable doubt, or liability for
this is true notwithstanding that the child has been damages requiring preponderance of evidence, or
recognized by the father as his offspring. At most, such administrative responsibility requiring substantial
recognition by the father would be a ground for ordering evidence that will require full and exhaustive proceedings
the latter to give support to, but not custody of, the child (Deliberations of the Committee on the Revision of the Rules
(David v. CA, 250 SCRA 82). Custody over the minor in this of Court, August 10, 2007, August 24, 2007, August 31, 2007
case was therefore awarded correctly to the mother, and and September 20, 2008). (2009, 2010 Bar)
this is all the more so in view of Art. 213 of the Family
Code which lays down the Maternal Preference Rule. Right to life, liberty and security
There is also no showing that Joey was able to show proof
of any compelling reason to wrest from the mother 1. The right to life guarantees essentially the right to be
parental authority over their minor child. alive – upon which the enjoyment of all other rights
is preconditioned – the right to security of person is
Q: In a petition for habeas corpus that was filed by a guarantee of the secure quality of this life, viz: The
Loran against his estranged wife, as well as against his life to which each person has a right is not a life lived
parents-in-law whom he alleged were unlawfully in fear that his person and property may be
restraining him from having custody of his child, the unreasonably violated by a powerful ruler. Rather, it
trial court issued an order directing the aforesaid is a life lived with the assurance that the government
persons to appear in court and produce the child in he established and consented to, will protect the
question and to show cause why the said child should security of his person and property.
not be discharged from restraint. Does the trial 2. The right to liberty as guaranteed by the
court's Order run counter to Art.213 of the Family Constitution was defined by Justice Malcolm to
Code? include “the right to exist and the right to be free
from arbitrary restraint or servitude. The term
A: NO. The assailed order of the trial court did not grant cannot be dwarfed into mere freedom from physical
custody of the minor to any of the parties but was merely restraint of the person of the citizen, but is deemed
a procedural directive addressed to the petitioners for to embrace the right of man to enjoy the facilities
them to produce the minor in court and explain why they with which he has been endowed by his Creator,
are restraining his liberty. Moreover, Art. 213 of the subject only to such restraint as are necessary for the
Family Code deals with the adjudication of custody and common welfare.
serves as a guideline for the proper award of-custody by 3. The right to security includes the following:
the court. While the petitioners can raise it as a counter
argument in the custody suit, it may not however be a. Freedom from fear – is the right and any threat
invoked by them to prevent the father from seeing the to the rights to life, liberty or security is the
child. actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of
Habeas corpus may be resorted to in cases where rightful action. In the amparo context, it is more correct
custody is withheld from a person entitled thereto. Under to say that the “right to security” is actually
Art. 211 of the Family Code, both parents in this case have the “freedom from threat.” Viewed in this light,
joint parental authority over their child and consequently the “threatened with violation” Clause in the
joint custody over him. Further, although the couple is latter part of Section 1 of the Amparo Rule is a
separated de facto, the issue of custody has yet to be form of violation of the right to security
adjudicated by the court. In the absence of a judicial grant mentioned in the earlier part of the provision.
of custody, both parents are still entitled to the custody of b. Guarantee of bodily and psychological integrity
their child (Salientes, et al. v. Abanilla, et al., G.R. No. or security – Physical injuries inflicted in the
162734, August 29, 2006). context of extralegal killings and enforced
disappearances constitute more than a search or
invasion of the body. It may constitute
WRIT OF AMPARO dismemberment, physical disabilities, and
A.M. NO. 07-9-12-SC painful physical intrusion. As the degree of
physical injury increases, the danger to life itself
escalates. Notably, in criminal law, physical
It is a remedy available to any person whose right to life, injuries constitute a crime against persons
liberty and security is violated or threatened with because they are an affront to the bodily
violation by an unlawful act or omission of a public official integrity or security of a person.
or employee, or of a private individual or entity. The writ c. Guarantee of protection of one’s rights by the
shall cover extralegal killings and enforced government – the right to security of person in
this third sense is a corollary of the policy that

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the State “guarantees full respect for human NOTE: The elements of enforced disappearance are: (AA-
rights” under Article II, Section 11 of the 1987 RR)
Constitution. As the government is the chief
guarantor of order and security, the 1. That there be an arrest, detention, abduction or any
Constitutional guarantee of the rights to life, form of deprivation of liberty;
liberty and security of person is rendered 2. That it be carried out by, or with the authorization,
ineffective if government does not afford support or acquiescence of, the State or a political
protection to these rights especially when they organization;
are under threat. Protection includes 3. That it be followed by the State or political
conducting effective investigations, organization’s refusal to acknowledge or give
organization of the government apparatus to information on the fate or whereabouts of the person
extend protection to victims of extralegal subject of the amparo petition; and,
killings or enforced disappearances (or threats 4. That the intention for such refusal is to remove the
thereof) and/or their families, and bringing subject person from the protection of the law for a
offenders to the bar of justice (Reyes v. CA, G.R. prolonged period of time (Navia et al v. Pardico, G.R.
No. 182161, December 3, 2009). No. 184467, June 19, 2012).

NOTE: The threatened demolition of a dwelling by virtue Nature of writ of amparo

of a final judgment of the court is not included among the
enumeration of rights for which the remedy of a writ of An amparo proceeding is not criminal in nature. While the
amparo is made available. Their claim to dwelling, principal objective of its proceedings is the initial
assuming they still have any despite the final and determination of whether an enforced disappearance,
executory judgment adverse to them, does not constitute extralegal killing or threats thereof had transpired—the
right to life, liberty and security. There is, therefore, no writ does not fix liability for such disappearance, killing or
legal basis for the issuance of the writ of amparo (Canlas threats, whether that may be criminal, civil or
v. Napico Homeowners Association I-XIII, Inc., G.R. No. administrative under the applicable substantive law
182795, June 5, 2008). (Roxas v. Macapagal Arroyo, G.R. No. 189155, September 7,
2010).
The Rule on the Writ of Amparo is now a procedural law
anchored, not only on the constitutional rights to life, It partakes of the nature of a prerogative writ that does
liberty and security, but on a concrete statutory definition not determine guilt nor pinpoint criminal culpability for
as well of what an ‘enforced or involuntary the disappearance; rather, it determines responsibility, or
disappearance’ is. Therefore, A.M. No. 07-9-12-SC’s at least accountability, for the enforced disappearance for
reference to enforced disappearances should be purposes of imposing the appropriate remedies to
construed to mean the enforced or involuntary address the disappearance (Razon, Jr. v. TagitisG.R. No.
disappearance of persons contemplated in Section 3(g) of 182498, December 3, 2009).
RA No. 9851, otherwise known as “Philippine Act on
Crimes against International Humanitarian Law, State participation
Genocide, and Other Crimes against Humanity” (Navia et
al v. Pardico, G.R. No. 184467, June 19, 2012 citing Rubrico State participation is an indispensable element for the
v. Macapagal Arroyo) issuance of a writ of amparo. Proof of disappearance alone
is not enough. It is likewise essential to establish that such
COVERAGE disappearance was carried out with the direct or indirect
authorization, support or acquiescence of the
Extralegal killings government. While the writ may lie if the person sought
to be held accountable or responsible in an amparo
These are killings committed without due process of law, petition is a private individual or entity, still, government
legal safeguards or judicial proceedings (Secretary of involvement in the disappearance remains an
National Defense v. Manalo, G.R. No. 180906, October 7, indispensable element. This hallmark of State
2008). participation differentiates an enforced disappearance
case from an ordinary case of a missing person (Navia et
Enforced disappearance al v. Pardico, G.R. No. 184467, June 19, 2012)

The arrest, detention, or abduction of persons by, or with Writ NOT available for protection of property right
the authorization, support or acquiescence of, a State or a
political organization followed by a refusal to A writ of amparo cannot be issued when the protection
acknowledge that deprivation of freedom or to give being asked for involves a property right. The writ of
information on the fate or whereabouts of those persons, amparo was originally conceived as a response to the
with the intention of removing from the protection of the extraordinary rise in the number of killings and enforced
law for a prolonged period of time (Section 3(g), RA No. disappearances, and to the perceived lack of available and
9851). effective remedies to address these extraordinary
concerns. It is intended to address violations of or threats
The writ of amparo, in its present form, is confined only to to the rights to life, liberty or security, as an extraordinary
these two instances of “extralegal killings” and “enforced and independent remedy beyond those available under
disappearances”. the prevailing Rules, or as a remedy supplemental to these

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 REMEDIAL LAW
Rules. What it is not, is a writ to protect concerns that are have participated in whatever way, by action or omission,
purely property or commercial (Tapuz v. Del Rosario, G.R. in an enforced disappearance while
No. 182484, June 17, 2008).
Accountability refers to the measure of remedies that
NOTE: The rule is the same with respect to habeas data. should be addressed to those (i) who exhibited
involvement in the enforced disappearance without
Writ NOT available in a labor dispute bringing the level of their complicity to the level of
responsibility defined above; or (ii) who are imputed with
The writ will not also be issued in a labor dispute. knowledge relating to the enforced disappearance and
Employment constitutes a property right under the who carry the burden of disclosure; or (iii) those who
context of the due process clause of the Constitution and carry, but have failed to discharge, the burden of
does not constitute an unlawful violation of the right to extraordinary diligence in the investigation of the
life, liberty, or security (Meralco v Lim, G.R. No. 184769 enforced disappearance (Razon, Jr. v. Tagitis, G.R. No.
October 5 2010). 182498, December 3, 2009).

NOTE: The rule is the same with respect to habeas data. The concept of command responsibility is not applicable
in proceedings for a writ of amparo. The application of
Does not protect right to travel command responsibility presupposes an imputation of
individual liability. It is more aptly invoked in a full-blown
The right to travel refers to the right to move from one criminal or administrative case rather than in a summary
place to another. As we have stated in Marcos v. amparo proceeding (Roxas v. Macapagal Arroyo, G.R. No.
Sandiganbayan, xxx a person’s right to travel is subject to 189155, September 7, 2010).
the usual constraints imposed by the very necessity of
safeguarding the system of justice. In such cases, whether It must be clarified, however, that the inapplicability of
the accused should be permitted to leave the jurisdiction the doctrine of command responsibility in an amparo
for humanitarian reasons is a matter of the court’s sound proceeding does not, by any measure, preclude
discretion. impleading military or police commanders on the ground
that the complained acts in the petition were committed
Here, the restriction on petitioner’s right to travel as a with their direct or indirect acquiescence. They may be
consequence of the pendency of the criminal case filed impleaded—not actually on the basis of command
against him was not unlawful. Petitioner has also failed to responsibility—but rather on the ground of their
establish that his right to travel was impaired in the responsibility, or at least accountability (Roxas v.
manner and to the extent that it amounted to a serious Macapagal Arroyo, G.R. No. 189155, September 7, 2010).
violation of his right to life, liberty and security, for which
there exists no readily available legal recourse or remedy If command responsibility were to be invoked and applied
(Reyes vs. Gonzalez, G.R. No. 182161, December 3, 2009). to these proceedings, it should, at most, be only to
determine the author who, at the first instance, is
Inclusion of name in the Order of Battle NOT sufficient accountable for, and has the duty to address, the
disappearance and harassments complained of, so as to
The mere inclusion of a name of a person in the military’s enable the Court to devise remedial measures that may be
order of battle is not sufficient reason for the issuance of appropriate under the premises to protect rights covered
the writ of amparo. It is true that the writ covers even by the writ of amparo. Thus, the doctrine of command
threatened violations against a person’s right to life, responsibility does not determine criminal, civil or
liberty or security. Further, threat and intimidation that administrative liabilities but is to be applied merely to
vitiate the free will – although not involving invasion of ascertain responsibility and accountability of the persons
bodily integrity – nevertheless constitute a violation of involved (Rodriguez v. Macapagal Arroyo, G.R. No. 191805,
the right to security in the sense of “freedom from threat”. November 15, 2011).
It must be stressed, however, that such “threat” must find
rational basis on the surrounding circumstances of the NOTE: The same rule applies with respect to habeas data.
case. Mere inclusion in the military’s order of battle which
is not supported by independent and credible evidence DIFFERENCES BETWEEN AMPARO
stands on nebulous grounds. The liberality accorded to AND SEARCH WARRANT
amparo cases does not mean that a claimant is dispensed
with the onus of proving his case (Saez v. Macapagal A search warrant is a court order issued by a judge or
Arroyo, G.R. No. 183533, September 25, 2012). magistrate judge that authorizes the law enforcement
officers to conduct a search of a person or location for
NOTE: The rule is the same with respect to habeas data. evidence of a crime and to confiscate evidence if it is
found. This serves as a protection of the people from the
Responsibility and Accountability unreasonable intrusion of the government, while a writ of
amparo is broader in scope as it protects the
The concept of responsibility is not the same as constitutional rights to life, liberty and security.
accountability under an amparo proceeding.
The production order under the Amparo Rule pertained
Responsibility refers to the extent the actors have been to a civil procedure that cannot be identified or confused
established by substantial evidence to with unreasonable searches prohibited by the

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 SPECIAL PROCEEDINGS
Constitution. It should not be confused with a search The intent is to prevent the filing of the petition in some
warrant for law enforcement under Article III, Section 2 far-flung area to harass the respondent. Moreover,
of the 1987 Constitution because it is likened to the allowing the amparo petition to be filed in any RTC may
production of documents or things under Section 1, Rule prejudice the effective dispensation of justice, as in most
27 of the Rules of Civil Procedure which provides: cases, the witnesses and the evidence are located within
the jurisdiction of the RTC where the act or omission was
“Section 1. Motion for production or inspection order. Upon committed (Annotation on the Writ of Amparo, A.M. NO.
motion of any party showing good cause therefor, the 07-9-12-SC).
court in which an action is pending may order any party
to produce and permit the inspection and copying or Contents of the petition
photographing, by or on behalf of the moving party, of any
designated documents, papers, books of accounts, letters, 1. Personal circumstances of the petitioner and of
photographs, objects or tangible things, not privileged, respondent responsible for the threat, act or
which constitute or contain evidence material to any omission;
matter involved in the action and which are in his 2. Violated or threatened right to life, liberty or security
possession, custody or control”(The Secretary of National of the party aggrieved. Stating in detail the
Defense vs. Manalo, G.R. No. 180906, October 7, 2008). circumstances;
3. Specify the names, personal circumstances of the
WHO MAY FILE investigating authority or individuals, as well as the
manner and conduct of investigation;
Any aggrieved party may file the petition. It may also be 4. Actions and recourses taken by the petitioner to
filed by any qualified person or entity in the following determine the whereabouts of aggrieved party and
order: identity of the person responsible for the threat, act
or omission;
1. Any member of the immediate family, namely: the 5. The relief prayed for; and
spouse, children and parents of the aggrieved party; 6. A general prayer for other just and equitable reliefs
2. Any ascendant, descendant or collateral relative of may be included (Sec. 5, A.M. No. 07-9-12-SC).
the aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those Sufficiency of the petition in form and substance
mentioned in the preceding paragraph; or
3. Any concerned citizen, organization, association or The pleader must state the ultimate facts constituting the
institution, if there is no known member of the cause of action, omitting the evidentiary details. However,
immediate family or relative of the aggrieved party in an amparo petition, this requirement must be read in
(Sec. 2, A.M. No. 07-9-12-SC). light of the nature and purpose of the proceeding, which
addresses a situation of uncertainty; the petitioner may
The filing of a petition by the aggrieved party suspends not be able to describe with certainty how the victim
the right of all other authorized parties to file similar exactly disappeared, or who actually acted to kidnap,
petitions. Likewise, the filing of the petition by an abduct or arrest him or her, or where the victim is
authorized party on behalf of the aggrieved party detained, because these information may purposely be
suspends the right of all others, observing the order hidden or covered up by those who caused the
established herein (Sec. 2, Ibid.). disappearance. In this type of situation, to require the
level of specificity, detail and precision is to make the Rule
Reason: To prevent the indiscriminate and groundless a token gesture of judicial concern for violations of the
filing of petitions for amparo which may even prejudice constitutional rights to life, liberty and security.
the right to life, liberty or security of the aggrieved party.
The test in reading the petition should be to determine
Where to file whether it contains the details available to the petitioner
under the circumstances, while presenting a cause of
1. Regional Trial Court where the threat, act or omission action showing a violation of the victim’s rights to life,
was committed or any of its elements occurred; liberty and security through State or party action (Razon,
2. With the Sandiganbayan, Court of Appeals the Jr. v. Tagitis, G.R. No. 182498, December 3, 2009).
Supreme Court or any justice of such court.
CONTENTS OF THE RETURN
The writ shall be enforceable anywhere in the Philippines.
Within 5 days after service of the writ, the respondent
NOTE: The Rule allowing the filing of the petition before shall file a verified written return together with
the RTC does not require that the RTC have jurisdiction supporting affidavits which shall, among other things,
over the offense complained of jurisdiction can only be contain the following:
conferred by Congress. The rule merely establishes a
procedure to enforce the right to life, liberty or security of 1. The lawful defenses to show that the respondent did
a person which requires the filing of the petition before not violate or threaten with violation the right to life,
the RTC of the place where the threat, act or omission was liberty and security of the aggrieved party, through
committed or any of its elements. any act or omission;
2. The steps or actions taken by the respondent to
determine the fate or whereabouts of the aggrieved

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 REMEDIAL LAW
party and the person or persons responsible for the The failure to file a return cannot be extended except on
threat, act or omission; highly meritorious grounds. Thus, a motion for extension
3. All relevant information in the possession of the of time to file a return upon showing of a highly
respondent pertaining to the threat, act or omission meritorious ground is no longer a prohibited pleading.
against the aggrieved party; and
4. If the respondent is a public official or employee, the OMNIBUS WAIVER RULE
return shall further state the actions that have been
or will still be taken: The Omnibus Waiver Rule states that all defenses not
raised in the return (answer) are deemed waived (Sec. 10,
a. To verify the identity of the aggrieved party; Ibid.).It is different from the Omnibus Motion Rule which
b. To recover and preserve evidence related to the states that defenses not raised in a Motion to Dismiss are
death or disappearance of the person identified deemed waived.
in the petition which may aid in the prosecution
of the person or persons responsible; NOTE: A motion to dismiss is a prohibited pleading in an
c. To identify witnesses and obtain statements application for a writ of amparo. The filing of a motion to
from them concerning the death or dismiss even on the ground of lack of jurisdiction over the
disappearance; subject matter and the parties is proscribed to avoid
d. To determine the cause, manner, location and undue delay. The grounds of a motion to dismiss should
time of death or disappearance as well as any be included in the return and resolved by the court, using
pattern or practice that may have brought about its reasonable discretion as to the time and merit of the
the death or disappearance; motion (Sec. 11, Ibid.).
e. To identify and apprehend the person or
persons involved in the death or disappearance; PROCEDURE FOR HEARING
and
f. To bring the suspected offenders before a The nature of the hearing on the petition is summary.
competent court. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and
5. Other matters relevant to the investigation, its determine the possibility of obtaining stipulations and
resolution and the prosecution of the case (Sec. 9, admissions from the parties (Sec. 13, Ibid.).
A.M. No. 07-9-12-SC as amended).
The hearing shall be from day to day until completed and
The return shall also state other matters relevant to the given the same priority as petitions for habeas corpus
investigation, its resolution and the prosecution of the (Sec. 13, Ibid.).
case.
If the petitioner fails to appear due to valid cause such as
Respondent shall file a verified written return together threats on his life, the court shall not dismiss the petition,
with supporting affidavits within 5 working days after but shall archive it, if upon its determination it cannot
service of the writ. The period to file a return cannot be proceed for a valid cause. A periodic review of the
extended except on highly meritorious grounds (Sec. 9). archived cases shall be made by the amparo court that
shall, motu proprio or upon motion by any party, order
Where returnable; enforceable their revival when ready for further proceedings. (Sec. 20,
Ibid.).
1. When issued by the RTC or a judge thereof, the writ
is returnable before such court or judge; The petition shall be dismissed with prejudice upon
2. When issued by the Sandiganbayan. Court of Appeals failure to prosecute the case after the lapse of 2 years from
or any of their justices, it may be returnable to such notice to the petitioner of the order archiving the case
court or any justice thereof, or to any RTC where the (Sec. 20).
threat, act or omission was committed or any of its
elements occurred; NOTE: Due to the extraordinary nature if the writ, which
3. When issued by the Supreme Court or any of its protects the mother of all rights – the right to life – the
justices, it may be returnable to such Court or any petition may be filed on any day, including Saturdays,
justice thereof, or before the Sandiganbayan or the Sundays and holidays; and at any time from morning until
Court of Appeals or any of their justices, or to any evening (Annotation to the Writ of Amparo).
RTC in the place where the threat, act or omission
was committed or any of its elements took place (Sec. Issuance of the Writ
3).
Upon the filing of the petition, the court, justice or judge
EFFECTS OF FAILURE TO FILE RETURN shall immediately order the issuance if the writ if on its
face it ought to issue. The writ shall be served
The court, justice or judge shall proceed to hear the immediately.
petition ex parte. The hearing should not be delayed by
the failure of the respondent to file a return, otherwise the NOTE: The privilege of the Writ of Amparo should be
right to life, liberty and security of a person would be distinguished from the actual order called the Writ of
easily frustrated (Sec. 12, Ibid.). Amparo. The privilege includes availment of the entire
procedure outlined in A.M. No. 07-9-12-SC, the Rule on

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 SPECIAL PROCEEDINGS
the Writ of Amparo. After examining the petition and its Under Sec. 22, A.M. No. 07-9-12-SC (effect of filing of
attached affidavits, the Return and the evidence criminal action), Fr. Reyes should have filed with the RTC-
presented in the summary hearing, the judgment should Makati, where the information for rebellion was filed, a
detail the required acts from the respondents that will motion to lift HDO No. 45 (Rev. Fr. Robert Reyes v. CA, G.R.
mitigate, if not totally eradicate, the violation of or the No. 182161, December 3, 2009).
threat to the petitioner’s life, liberty or security.
EFFECT OF FILING OF A CRIMINAL ACTION
A judgment which simply grants “the privilege of the writ”
cannot be executed. It is tantamount to a failure of the When a criminal action has been commenced, no separate
judge to intervene and grant judicial succor to the petition for the writ shall be filed. The reliefs under the
petitioner. Petitions filed to avail of the privilege of the writ shall be available by motion in the criminal case. The
Writ of Amparo arise out very real and concrete procedure under the Rule on the Writ of Amparo shall
circumstances. Judicial responses cannot be as tragically govern the disposition of reliefs available under the writ
symbolic or ritualistic as “granting the privilege of the (Sec. 22).
Writ of Amparo” (De Lima vs. Gatdula, G.R. No. 204528,
February 19, 2013) CONSOLIDATION

The writ should set the date and time for a summary When a criminal action is filed subsequent to the filing of
hearing of the petition which shall not be later than seven a petition for the writ, the latter shall be consolidated with
(7) days from the date if its issuance (Sec. 13). the criminal action.

INSTITUTION OF SEPARATE ACTION When a criminal action and a separate civil action are filed
subsequent to a petition for a writ of amparo, the latter
A separate action may be filed after filing a petition for a shall be consolidated with the criminal action. After
writ of amparo. It does not preclude the filing of a separate consolidation, the procedure under this Rule shall
criminal, civil or administrative action (Sec. 21, Ibid.). continue to apply to the disposition of the reliefs in the
However, if the evidence so warrants, the amparo court petition (Sec. 23).
may refer the case to the Department of Justice for
criminal prosecution (Annotation on the Writ of Amparo, Q: The residents of Mt. Ahohoy, headed by Masigasig,
A.M. NO. 07-9-12-SC). formed a nongovernmental organization - Alyansa
Laban sa Minahan sa Ahohoy (ALMA) to protest the
An independent action for amparo is improper once mining operations of Oro Negro Mining in the
criminal proceedings have been commenced. Validity of mountain. ALMA members picketed daily at the
the arrest or the proceedings conducted thereafter is a entrance of the mining site blocking the ingress and
defense that may be set up by respondents during trial egress of trucks and equipment of Oro Negro,
and not before a petition for writ of amparo. The reliefs hampering its operations. Masigasig had an
altercation with Mapusok arising from the complaint
afforded by the writs may, however, be made available to
of the mining engineer of Oro Negro that one of their
the aggrieved party by motion in the criminal proceedings
trucks was destroyed by ALMA members. Mapusok is
(Castillo v. Cruz G.R. No. 182165, November 25, 2009). the leader of the Association of Peace Keepers of
Ahohoy (APKA), a civilian volunteer organization
NOTE: The rule is the same with respect to habeas data. serving as auxiliary force of the local police to
maintain peace and order in the area. Subsequently,
Q: Fr. Reyes was arrested and charged with rebellion. Masigasig disappeared. Mayumi, the wife of
Consequently, the DOJ Secretary issued Hold Masigasig, and the members of ALMA searched for
Departure Order (HDO) No. 45 ordering the Masigasig, but all their efforts proved futile.
Commissioner of Immigration to include in the hold Mapagmatyag, a member of ALMA, learned from
departure list the name of Fr. Reyes. The RTC Maingay, a member of APKA, during their binge
dismissed the charge but the HDO No. 45 still drinking that Masigasig was abducted by other
subsisted. Thus, Fr. Reyes filed a petition for writ of members of APKA, on order of Mapusok. Mayumi and
amparo to the SC claiming that the continued ALMA sought the assistance of the local police to
restraint on his right to travel is illegal. Should the search for Masigasig, but they refused to extend their
petition be granted? cooperation. Immediately, Mayumi filed with the RTC,
a petition for the issuance of the writ of amparo
A: NO. The right to travel refers to the right to move from against Mapusok and APKA. ALMA also filed a petition
for the issuance of the writ of amparo with the Court
one place to another. As stated in (Marcos v.
of Appeals against Mapusok and APKA. Respondents
Sandiganbayan, G.R. Nos. 115132-34, Aug. 9, 1995), a
Mapusok and APKA, in their Return filed with the
person’s right to travel is subject to the usual constraints RTC, raised among their defenses that they are not
imposed by the very necessity of safeguarding the system agents of the State; hence, cannot be impleaded as
of justice. The restriction on Fr. Reyes’ right to travel as a respondents in an amparo petition. a.) Is their
consequence of the pendency of the criminal case filed defense tenable? Respondents Mapusok and APKA, in
against him was not unlawful. Fr. Reyes has failed to their Return filed with the Court of Appeals, raised as
establish that his right to travel was impaired in the their defense that the petition should be dismissed on
manner and to the extent that it amounted to a serious the ground that ALMA cannot file the petition because
violation of his right to life, liberty and security. of the earlier petition filed by Mayumi with the RTC.
b.) Are respondents correct in raising their defense?

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 REMEDIAL LAW
c.) Mayumi later filed separate criminal and civil allegations of a party be sufficient in itself, so as to make a
actions against Mapusok. How will the cases affect the prima facie case (Roxas v. Macapagal Arroyo, G.R. No.
amparo petition she earlier filed? (2015 Bar) 189155, September 7, 2010).

A: QUANTUM OF PROOF IN APPLICATION FOR

a. NO, the defense of Mapusok and APKA that they are ISSUANCE OF WRIT OF AMPARO
not agents of the State and hence cannot be
impleaded as respondents in an amparo petition is In a petition for a writ of amparo, the parties shall
not tenable. The writ of amparo is available in cases
establish their claims by substantial evidence (Sec. 17,
where the enforced or involuntary disappearance of
A.M. No. 07-9-12-SC).
a persons is with the authorization, support or
acquiescence of the State. (Sec. 3[g] of R.A. No. 9851
and Navia v. Pardico, 19 June 2012, e.b.) Here Public officials and employees must prove that
Mapusok and APKA may be considered as acting with extraordinary diligence was exercised in the performance
the support or at least the acquiescence of the State of duty while only ordinary diligence is required for
since APKA serves as an auxiliary force of the police private individual or entity. Public officials or employees
and the police refused to assist in the search for are charged with a higher standard of conduct because it
Masigasig. is their legal duty to obey the Constitution, especially its
b. YES, respondents are correct in raising their defense. provisions protecting the right to life, liberty and security
Under Section 2(c) of the Rule on the Writ of Amparo, (Sec. 17, A.M. No. 07-9-12-SC).
the filing of a petition by an authorized party on
behalf of the aggrieved party suspends the right of all NOTE: Same provision provides that respondent public
others, observing the order in Section 2 of the Rule official or employee cannot invoke the presumption that
on the Writ of Amparo. Here the petition for writ of official duty has been regularly performed to evade
amparo had earlier been filed by the spouse of the responsibility or liability.
aggrieved party Masigasig. Thus it suspends the
right of all others, including ALMA, to file the Judgment
petition.
c. The amparo petition shall be consolidated with the
The court shall render judgment within ten (10) days
criminal action. (Section 23, Rule on the Writ of
Amparo). from the time the petition is submitted for decision (Sec.
18).
INTERIM RELIEFS AVAILABLE TO PETITIONER
AND RESPONDENT No enforcement of five (5) days like in Habeas Data.

Petitioner Respondent Judgment subject to appeal via Rule 45

1. Temporary protection 1. Inspection order;
If the allegations are proven with substantial evidence,
order; 2. Production order
the court shall grant the privilege of the writ and such
2. Inspection order; (Sec. 15)
reliefs as may be proper and appropriate. The judgment
3. Production order;
should contain measures, which the judge views as
4. Witness protection
essential for the continued protection of the petitioner in
order (Sec. 14)
the Amparo case. These measures must be detailed
enough so that the judge may be able to verify and
NOTE: An interim relief cannot be granted independently
monitor the actions taken by the respondents. It is this
when a writ of amparo has already been issued.
judgment that could be subject to appeal to the Supreme
Provisional reliefs are intended to assist the court before
Court via Rule 45 (De Lima v. Gatdula, G.R. No. 204528,
it arrives at a judicious determination of the amparo
February 19, 2013).
petition. The privilege of the writ of amparo, once granted,
necessarily entails the protection of the aggrieved party
Appeal
(Yano v. Sanchez, G.R. No. 186640, February 11, 2010).
Any party may appeal from the final judgment or order to
Temporary protection and witness protection orders
the SC under Rule 45 within five (5) days. The appeal may
raise not only questions of law but also questions of fact
Temporary protection and witness protection orders may
or both because its subject is extralegal killings or
be issued motu proprio by the court unlike inspection and
enforced disappearances, which might necessitate a
protection orders which may be issued only upon verified
review of errors of fact (Sec. 19, Ibid.).
petition by the party.
Reason: Amparo proceedings involve determination of
Inspection Order
facts considering its subject-extralegal killings and
enforced disappearances.
A basic requirement before an amparo court may grant an
inspection order is that the place to be inspected is
Doctrine of totality of evidence
reasonably determinable from the allegations of the party
seeking the order. While the Amparo Rule does not
The doctrine of totality of evidence in amparo cases
require that the place to be inspected be identified with
means that the court must consider all the pieces of
clarity and precision, it is, nevertheless, a minimum for
evidence adduced in their totality, not in isolation with
the issuance of an inspection order that the supporting

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 SPECIAL PROCEEDINGS
each other, and to consider any evidence otherwise The writ however will not issue on the basis merely of an
inadmissible under our usual rules to be admissible if it is alleged unauthorized access to information about a
consistent with the admissible evidence adduced. In other person. Availment of the writ requires the existence of a
words, we reduce our rules to the most basic test of nexus between the right to privacy on the one hand, and
reason – i.e., to the relevance of the evidence to the issue the right to life, liberty or security on the other. Thus, the
at hand and its consistency with all other pieces of existence of of a person’s right to informational privacy
adduced evidence. Thus, even hearsay evidence can be and a showing, at least by substantial evidence, of an
admitted if it satisfies this basic minimum test (Razon, Jr. actual or threatened violation of right to privacy in life,
v. TagitisG.R. No. 182498, December 3, 2009). liberty, or security of the victim are indispensable before
the privilege of the writ may be extended (Vivares v. St.
Doctrine of command responsibility in amparo Theresa’s College, G.R. No. 202666, September 29, 2014)
proceedings
SCOPE OF THE WRIT
If command responsibility were t be invoked and applied
to these proceedings, it should, at most, be only to The writ of habeas data provides a judicial remedy to
determine the author who, at the first instance, is protect a person’s right to control information regarding
accountable for, and has the duty to address, the oneself, particularly in instances where such information
disappearances or harassments complained of, so as to is being collected through unlawful means in order to
enable the Court to devise remedial measure that may be achieve unlawful ends.
appropriate under the premises to protect rights covered
by the writ of amparo (Rubrico v. Macapagal-Arroyo, G.R. As an independent and summary remedy to protect the
No. 183871, February 18, 2010). right to privacy – especially the right to informational
privacy – the proceedings for the issuance of the writ of
The doctrine of command responsibility may be used to habeas data does not entail any finding of criminal, civil or
determine whether respondents are accountable for and administrative culpability.
have the duty to address the abduction of petitioner in
order to enable the courts to devise remedial measures to If the allegations in the petition are proven through
substantial evidence, then the Court may:
protect his rights (Rodriguez v. Arroyo, G.R. Nos. 191805
and 193160, November 15, 2011). 1. Grant access to the database or information;
2. Enjoin the act complained of; or
3. In case the database or information contains
WRIT OF HABEAS DATA erroneous data or information, order its deletion,
(A.M. No. 08-1-16-SC) destruction or rectification (Rodriguez vs. Arroyo, G.R.
No. 191805, November 15, 2011).

(2009, 2010 Bar) The writ of habeas data is an independent and summary
It is a remedy available to any person whose right to remedy designed to protect the image, privacy, honor,
privacy in life, liberty or security is violated or threatened information, and freedom of information of an individual,
by an unlawful act or omission of a public official or and to provide a forum to enforce one’s right to the truth
employee, or of a private individual or entity engaged in and to informational privacy. It seeks to protect a person’s
the gathering, collecting or storing of data or information right to control information regarding oneself,
regarding the person, family, home and correspondence particularly in instances in which such information is
of the aggrieved party (Sec. 1, A.M. No. 08-1-16-SC). being collected through unlawful means in order to
achieve unlawful ends. It must be emphasized that in
The writ of habeas data was conceptualized as a judicial order for the privilege of the writ to be granted, there
remedy enforcing the right to privacy, most especially the must exist a nexus between the right to privacy on the one
right to informational privacy of individuals. The writ hand, and the right to life, liberty or security on the other
operates to protect a person’s right to control information (Gamboa vs. Chan, G.R. No. 193636, July 24, 2011).
regarding himself, particularly in the instances where
such information is being collected through unlawful AVAILABILITY OF THE WRIT
means in order to achieve unlawful ends (Roxas v.
Macapagal Arroyo, G.R. No. 189155, September 7, 2010). 1. To any person
2. Whose right to privacy in life, liberty and security is
Nature of hearing on the petition violated or threatened
3. With violation by an unlawful act or omission of a
The nature of the hearing on the petition is summary. public official or employee, or of a private individual
However, the court, justice or judge may call for a or entity engaged in:
preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations and a. Gathering
admissions from the parties (Sec. 15, A.M. No. 08-1-16-SC). b. Collecting; or
c. Storing of data or information regarding the
Nexus between right to privacy and right to life, person family, home and correspondence of the
liberty, liberty or security aggrieved party (Sec. 1, A.M. No. 08-1-16-SC).

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 REMEDIAL LAW
NOTE: Castillo v. Cruz underscores the emphasis laid NOTE: Unlike in amparo, human rights organizations or
down in Tapuz v. del Rosario that the writs of amparo and institutions are no longer allowed to file the petition.
habeas data will NOT issue to protect purely property or
commercial concerns nor when the grounds invoked in CONTENTS OF THE RETURN
support of the petitions therefor are vague or doubtful.
Employment constitutes a property right under the The respondent, within 5 working days from the service
context of the due process clause of the Constitution. It is of the writ, unless reasonably extended by the Court, shall
evident that respondent’s reservations on the real allege:
reasons for her transfer - a legitimate concern respecting
the terms and conditions of one’s employment - are what a. Lawful defenses such as national security, state
prompted her to adopt the extraordinary remedy of secrets, privileged communication, confidentiality of
habeas data. Jurisdiction over such concerns is inarguably the source of information of media and others;
lodged by law with the NLRC and the Labor Arbiters. b. If respondent in charge, in possession or in control of
the data or information subject of the petition:
In another vein, there is no showing from the facts i. Disclosure of the data or information about
presented that petitioners committed any unjustifiable or petitioner, nature of such data or information,
unlawful violation of respondent’s right to privacy vis-a- and purpose of its collection;
vis the right to life, liberty or security. To argue that ii. Steps or actions taken by respondent to ensure
petitioners’ refusal to disclose the contents of reports the security and confidentiality of the data or
allegedly received on the threats to respondent’s safety information;
amounts to a violation of her right to privacy is at best iii. Currency and accuracy of the data and
speculative. Respondent in fact trivializes these threats information held; and
and accusations from unknown individuals in her earlier- c. Other allegations relevant to the resolution of the
quoted portion of her July 10, 2008 letter as "highly proceeding;
suspicious, doubtful or are just mere jokes if they existed
at all." And she even suspects that her transfer to another A general denial of the allegations in the petition shall not
place of work "betray[s] the real intent of management]" be allowed (Sec. 10, A.M. No. 08-1-16-SC).
and could be a "punitive move." Her posture unwittingly
concedes that the issue is labor-related (Manila Electric INSTANCES WHEN PETITION MAY BE HEARD
Company vs. Lim, G.R. No. 184769, October 5, 2010). IN CHAMBERS

While as stated earlier, mere threats fall within the mantle Hearing in chambers may be conducted where
of protection of the writs of amparo and habeas data, in respondent invokes the defense that the release of the
the petitioner’s case, the restraints and threats allegedly data or information shall compromise national security or
made allegations lack corroborations, are not supported state secrets, or when the data or information cannot be
by independent and credible evidence, and thus stand on divulged to the public due its nature or privileged
nebulous grounds (Saez v. Arroyo, G.R. No. 183533, character (Sec. 12, A.M. No. 08-1-16-SC).
September 25, 2012)
CONSOLIDATION
CONTENTS OF THE PETITION
1. When a criminal action is filed subsequent to the
a. The personal circumstances of the petitioner and the filing of a petition for the writ, the latter shall be
respondent; consolidated with the criminal action; or
b. The manner the right to privacy is violated or 2. When a criminal action and a separate civil action are
threatened and how it affects the right to life, liberty filed subsequent to a petition for a writ of habeas
or security of the aggrieved party; data, the petition shall be consolidated with the
c. The actions and recourses taken by the petitioner to criminal action.
secure the data or information;
d. The location of the files, registers or databases, the After consolidation, the procedure under the Rule shall
government office, and the person in charge, in continue to govern the disposition of the reliefs in the
possession or in control of the data or information, if petition (Sec. 21, A.M. No. 08-1-16-SC).
known;
e. The reliefs prayed for, which may include the EFFECT OF THE FILING OF THE
updating, rectification, suppression or destruction of CRIMINAL ACTION
the database or information or files kept by the
respondent. In case of threats, the relief may include When a criminal action has been commenced, no separate
a prayer for an order enjoining the act complained of; petition for the writ shall be filed. The reliefs under the
and writ shall be available by motion in the criminal case (Sec.
f. Such other relevant reliefs as are just and equitable 21, A.M. No. 08-1-16-SC).
(Sec. 6, A.M. No. 08-1-16-SC).
INSTITUTION OF SEPARATE ACTION
NOTE: Section 6 of the Rule on the Writ of Habeas Data
requires material allegations of ultimate facts in a petition This Rule shall not preclude the filing of separate criminal,
for the issuance of a writ of habeas data. civil or administrative actions (Sec. 20, A.M. No. 08-1-16-
SC).

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 SPECIAL PROCEEDINGS

QUANTUM OF PROOF IN THE ISSUANCE OF ISSUANCE OF THE WRIT PRIVILEGE OF THE

WRIT OF HABEAS DATA WRIT
This is issued upon the This is issued after
If the allegations in the petition are proven by substantial filing of the petition if on its hearing, in the form of a
evidence, the court shall enjoin the act complained of, or face it ought to issue. judgment.
order the deletion, destruction, or rectification of the
erroneous data or information and grant other relevant NOTE: Sec. 7. Upon the NOTE: The court shall
reliefs as may be just and equitable; otherwise, the filing of the petition, the render judgment within
privilege of the writ shall be denied (Sec. 16, A.M. No. 08- court, justice or judge shall 10 days from the time
1-16-SC) immediately order the the petition is submitted
issuance of the writ if on its for decision. If the
NOTE: The Court has ruled that in view of the recognition face it ought to issue. The allegations in the
of the evidentiary difficulties attendant to the filing of a clerk of court shall issue petition are proven by
petition for the privilege of the writs of amparo and the writ under the seal of substantial evidence, the
habeas data, not only direct evidence, but circumstantial the court and cause it to be court shall enjoin the act
evidence, indicia, and presumptions may be considered, served within 3 days from complained of, or order
so long as they lead to conclusions consistent with the its issuance; or, in case of the deletion,
admissible evidence adduced. urgent necessity, the destruction, or
justice or judge may issue rectification of the
Given that the totality of the evidence presented by the the writ under his or her erroneous data or
petitioner failed to support his claims (his inclusion in the own hand, and may information and grant
“order of battle” and monitoring activities conducted deputize any officer or other relevant reliefs as
against him), the reliefs prayed for, therefore, cannot be person to serve it. The writ may be just and
granted. The liberality accorded to amparo and habeas shall also set the date and equitable; otherwise, the
data cases does not mean that a claimant is dispensed time for summary hearing privilege of the writ shall
with the onus of proving his case. "Indeed, even the liberal of the petition which shall be denied.
standard of substantial evidence demands some adequate not be later than 10 work
evidence" (Saez vs. Arroyo, G.R. No. 183533, September 25, days from the date of its
2012). issuance

Issuance of the writ vs. Privilege of the writ

DISTINGUISHED FROM HABEAS CORPUS AND AMPARO

WRIT OF HABEAS CORPUS AMPARO HABEAS DATA

“Habeas corpus” is a Latin It is a remedy available to any It is a remedy available to any
phrase which literally means person whose right to life, person whose right to privacy
“you have the body.” liberty, and security has been in life, liberty or security is
violated or is threatened with violated or threatened by an
It is a writ directed to the violation by an unlawful act or unlawful act or omission of a
person detaining another, omission of a public official or public official or employee, or
commanding him to produce employee, or of a private of a private individual or
the body of the prisoner at a individual or entity. The writ entity engaged in the
Description
designated time and place, covers extralegal killings and gathering, collecting or storing
with the day and cause of his enforced disappearances or data or information regarding
capture and detention, to do, threats thereof. the person, family, home and
submit to, and receive correspondence of the
whatsoever the court or judge aggrieved party.
awarding the writ shall
consider in that behalf.

To all cases of illegal To any person whose right to To any person whose right to
confinement or detention: life, liberty and security is privacy in life, liberty and
violated or threatened with security is violated or
1. By which any person is violation by an unlawful act or threatened with violation by
deprived of his liberty; or omission of a public official or an unlawful act or omission of
2. By which the rightful employee, or of a private a public official or employee,
Availability custody of any person is individual or entity or of a private individual or
withheld from the person (Sec. 1). entity engaged in:
entitled thereto
(Sec. 1). 1. Gathering;
2. Collecting; or
3. Storing
of data or information

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 REMEDIAL LAW

regarding the person family,

home and correspondence of
the aggrieved party (Sec. 1).

By the party for whose relief it By the aggrieved party, or by GR: The aggrieved party
is intended, or by some other any qualified person or entity
person in his behalf (Sec. 3). in the order provided in Sec. 2. XPN: In cases of extralegal
killings and enforced
disappearances:
1. Immediate family;
Petitioner 2. In default of no. 1,
ascendant, descendant or
collateral relative within
the 4th civil degree of
consanguinity or affinity
(Sec. 2).

RTC, where SC, CA and SB RTC:

detainee is detained. RTC of the place where the 1. Where petitioner resides;
threat, act or omission was or respondent resides; or
committed or any of its 2. That which has jurisdiction
elements occurred over the place where data
(Sec. 3). or information is gathered,
Venue etc. All at the option of
petitioner.

SC, CA and SB when the action

concerns public data files of
government offices (Sec. 3).

SC, CA and SB: anywhere in the Anywhere in the Philippines Anywhere in the Philippines
Philippines. (Sec. 3). (Sec. 4).
Extent of
Enforceability RTC: only within its judicial
district.

When to On any day and at any time. On any day and at anytime. Indigent petitioner exempt
File/Exepmtion Payment of docket fees Petitioner exempt from docket from docket fees (Sec. 5).
from docket fees required (Sec. 2) . fees (Sec. 3).

Hearing on return (Sec. 12). Not later than 7 days from date Not later than 10 days from
Setting or Hearing of issuance of writ (Sec. 6). date of issuance of writ(Sec. 7).

Service of the writ shall be If the writ cannot be served If the writ cannot be served
made by leaving the original personally on respondent, the personally on respondent, the
with the person to whom it is rules on substituted service rules on substituted service
directed and preserving a shall apply (Sec. 8). shall apply (Sec. 9).
copy on which to make return
of service. If that person
How Served
cannot be found, or has not the
prisoner in custody then the
service shall be made on any
person having or exercising
such custody (Sec. 7).

Signed and shall also be sworn Verified written return within Verified written return within
to if the prisoner is not 5 work days from service of 5 days from service of writ
produced (Sec. 10). writ - cannot be extended -may be reasonably extended
Filing of Return
except on highly meritorious by the court for justifiable
grounds (Sec. 9). grounds (Sec. 9).

In case respondent fails to file In case respondent fails to

Effect of Failure to a return, the court, justice or return, the court, justice or
File a Return judge shall proceed to hear the judge shall proceed to hear the
petition ex parte (Sec. 12). petition ex parte, granting

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 SPECIAL PROCEEDINGS

petitioner such relief as the

petition may warrant unless
the court in its discretion
requires petitioner to submit
evidence(Sec. 14).

1. Motion to dismiss; 1. Motion to dismiss;

2. Motion for extension of 2. Motion for extension of
time to file return, time to file return,
opposition, affidavit, opposition, affidavit,
position paper and other position paper and other
pleadings; pleadings;
3. Dilatory motion for 3. Dilatory motion for
postponement; postponement;
4. Motion for a bill of 4. Motion for a bill of
particulars; particulars;
5. Counterclaim or cross- 5. Counterclaim or cross-
claim; claim;
Prohibited 6. Third-party complaint; 6. Third-party complaint;
Pleadings and 7. Reply; 7. Reply;
Motions 8. Motion to declare 8. Motion to declare
respondent in default; respondent in default;
9. Intervention; 9. Intervention;
10. Memorandum; 10. Memorandum;
11. Motion for 11. Motion for
reconsideration of reconsideration of
interlocutory orders or interlocutory orders or
interim relief orders; and interim relief orders; and
12. Petition for certiorari, 12. Petition for certiorari,
mandamus or prohibition mandamus or prohibition
against any interlocutory against any interlocutory
order (Sec. 11). order (Sec. 13).

The hearing on the petition Same as Writ of Amparo

shall be summary. However, (Sec. 15).
the court, justice or judge may
call for a preliminary
conference to simplify the
issues and determine the
possibility of obtaining
Summary Hearing
stipulations and admissions
from the parties. The hearing
shall be from day to day until
completed and given the same
priority as petitions for habeas
corpus (Sec. 13).

1. Unless for good cause 1. Temporary Protection

shown, the hearing is Order;
adjourned, in which event 2. Inspection Order;
the court shall make an 3. Production Order; and
order for the safekeeping of 4. Witness Protection Order
2. The court or judge must be (Sec. 14).
Interim Reliefs
satisfied that the person's
illness is so grave that he
cannot be produced
without any danger
(Sec. 12).

When the court or judge has The court shall render Same with WOA with an
examined into the cause of judgment within ten (10) days addition that upon finality, the
Judgment caption and restraint of the from the time the petition is judgment shall be enforced by
prisoner, and is satisfied that submitted for decision. the sheriff or any lawful
he is unlawfully imprisoned or officers as may be designated

215
 REMEDIAL LAW

restrained, he shall forthwith If the allegations in the by the court, justice or judge
order his discharge from petition are proven by within 5 working days
confinement, but such substantial evidence, the court (Sec. 16).
discharge shall not be effective shall grant the privilege of the
until a copy of the order has writ and such reliefs as may be
been served on the officer or proper and appropriate;
person detaining the prisoner. otherwise, the privilege be
shall denied (Sec. 18).
If the officer or person
detaining the prisoner does
not desire to appeal, the
prisoner shall be forthwith
released (Sec. 15).

Sec. 15 in relation to Sec. 3 Rule 45 by petition for review Same as Writ of Amparo
Rule 41 and Sec. 39 of BP 129: on certiorari with peculiar (Sec. 19).
48 hours from notice of features:
judgment appealed from by
ordinary appeal 1. Appeal may raise questions
of fact or law or both;
Appeal 2. Period of appeal shall be 5
working days from the date
of notice of the adverse
judgment;
3. Same priority as habeas
corpus cases (Sec. 19).

This Rule shall not preclude Same as Writ of Amparo

the filing of separate criminal, (Sec. 20).
Institution of
civil or administrative actions
Separate Actions
(Sec. 21).

When a criminal action has Same as Writ of Amparo

been commenced, no separate (Sec. 21).
petition for the writ shall be
Effect of filing filed. The reliefs under the
criminal action writ shall be available by
motion in the criminal case
(Sec. 2).

When a criminal action is filed Same as Writ of Amparo

subsequent to the filing of a (Sec. 22).
petition for the writ, the latter
shall be consolidated with the
criminal action.

Consolidation When a criminal action and a

separate civil action are filed
subsequent to a petition for a
writ of amparo, the latter shall
be consolidated with the
criminal action (Sec. 23).

APPEALS IN SPECIAL PROCEEDINGS 2. Determines who are the lawful heirs of a deceased
(RULE 109) person, or the distributive share of the estate to
which such person is entitled;
JUDGMENTS AND ORDERS FROM WHICH APPEAL 3. Allows or disallows, in whole or in part, any claim
MAY BE TAKEN against the estate of a deceased person, or any claim
presented on behalf of the estate in offset to a claim
When such order or judgment: against it;
4. Settles the account of an executor, administrator,
1. Allows or disallows a will; trustee or guardian;

216
 SPECIAL PROCEEDINGS
5. Constitutes, in the proceedings relating to the adverse judgment. In writ of kalikasan, the period of
settlement of the estate of a deceased person, or the appeal is within 15 days from the notice of adverse
administration of a trustee or guardian, a final judgment or denial of motion for reconsideration.
determination in the lower court of the rights of the
party appealing, except that no appeal shall be NOTE: Appeals in special proceedings are termed
allowed from the appointment of a special "multiple appeals."
administrator; and
6. Is the final order or judgment rendered in the case, Appeals may be extended on meritorious grounds in
and affects the substantial rights of the person special proceedings.
appealing, unless it be an order granting or denying
a motion for new trial or for reconsideration (Sec. 1, Rationale for multiple appeals
Rule 109).
The rationale behind allowing more than one appeal in
NOTE: A stranger having neither material nor direct the same case is to enable the rest of the case to proceed
interest in a testate or intestate estate has no right to in the event that a separate and distinct issue is resolved
appeal from any order issued therein (Panis v. Yangco, by the court and held to be final. In this multi-appeal
G.R. No. L-29460, December 22, 1928). mode, the probate court loses jurisdiction only over the
subject matter of the appeal but retains jurisdiction over
When the assailed Orders granting letters testamentary in the special proceeding from which the appeal was taken
solidum to respondents were issued by the RTC, petitioner for purposes of further remedies the parties may avail of.
sought to question them by filing a petition for review on
certiorari under Rule 45 of the Rules of Court. Petitioner Where multi-appeals are allowed, we see no reason why
should have appealed said orders to the Court of Appeals a separate petition for certiorari cannot be allowed on an
under Rule 109 of the Rules of Court. Thus, the petition interlocutory aspect of the case that is separate and
must necessarily fail (Republic vs. Marcos II, G.R. No. distinct as an issue from the aspect of the case that has
130371, August 4, 2009). been adjudged with finality by the lower court. To
reiterate, the matter appealed matter was the special
People who are allowed to file an appeal administrator's commission, a charge that is effectively a
claim against the estate under administration, while the
1. A surety of an executor or administrator, made a matter covered by the petition for certiorari was the
party to an accounting made by such executor or appointment of an auditor who would pass upon the
administrator, from an order approving or special administrator's final account. By their respective
disapproving such accounting. natures, these matters can exist independently of one
2. An heir, legatee or devisee who has been served with another and can proceed separately as envisioned by the
notice as to a money claim against the estate Rules under Rule 109 (Briones vs. Henson-Cruz, G.R. No.
admitted by the executor or administrator, from an 159130, August 22, 2008)
order of the court approving such claim;
3. A creditor who is allowed by the court to bring an MODES OF APPEAL
action for recovery of property; and
4. A special administrator, from an order disallowing a 1. Rule 40 (Appeal from MTC to RTC) – By filing a
will (Herrera, 2005). record on appeal and payment of appeal fees on
questions of law or fact or both (settlement of
Interested person whose interest must be material estate);
and direct, not merely indirect or contingent (Teodoro 2. Rule 41 (Appeal from the RTC to CA in exercise of
v. De Vat, G.R. No. L-18753, March 26, 1965). its original jurisdiction) – By ordinary appeal by
filing a record on appeal and payment of appeal fees
Orders that are not appealable on questions of law or fact or both (settlement of
estate, habeas corpus, guardianship, trustees,
1. Order directing administrator to take action to absentees, change of name under Rule 103,
recover amount due to the estate; correction/cancellation of entries under Rule 108);
2. Order made in administration proceedings relating 3. Rule 42 (Petition for review from the RTC to the CA
to inclusion or exclusion of items of property in the in exercise of its appellate jurisdiction) – By filing a
inventory of executor or administrator; record on appeal and payment of appeal fees on
3. Order appointing special administrator (Sec. 1, Rule questions of law or fact or both; (settlement of
109). estate)
4. Rule 45 (Appeal by certiorari to the SC) – By filing
WHEN TO APPEAL of verified petition for review on certiorari and
payment of fees which shall raise questions of law
GR: The period of appeal shall be 30 days, a record on only but in cases of amparo and habeas data cases,
appeal being required [Sec. 2(a), Rule 41, Rules of Court]. questions of fact may also be entertained
5. Rule 65 (Petition for certiorari) – By filing of
XPN: In habeas corpus cases, the appeal therein must be verified petition for certiorari on the ground that the
filed within 48 hours from the service of judgment. In writ court acted without or in excess of jurisdiction or
of amparo and habeas data cases, the period of appeal with grave abuse of discretion.
isfive (5) working days from the date of notice of the

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 REMEDIAL LAW
Q: When is a Record of Appeal required? or legatees, upon compliance with the conditions set forth
in Rule 90 (Sec. 2, Rule 109).
A: Rule 109 contemplates multiple appeals during the
pendency of special proceedings. A record on appeal – in Notwithstanding a pending controversy or appeal in
addition to the notice of appeal – is thus required to be probate proceedings to settle the estate of a decedent, the
filed as the original records of the case should remain with court may, in its discretion and upon terms as it may deem
the trial court to enable the rest of the case to proceed in just and proper, permit that such part of the estate as may
the event that a separate and distinct issue is resolved by not be affected by the controversy or appeal be
said court and held to be final (Republic vs. Nishina, G.R. distributed among heirs or legatees, provided that estate
No. 186053, November 15, 2010). obligations be either:

RULE ON ADVANCE DISTRIBUTION 1. Paid or provided for; or,

2. Secured by a bond conditioned for the payment of
A part of the estate as may not be affected by the said obligations as required under Rule 90 of the
controversy or appeal may be distributed among the heirs Rules (Sec. 2).

VENUE OF SPECIAL PROCEEDINGS

Settlement of estate RTC (or MTC) of province where deceased last resided/property situated.
(Rule 73)
Escheat
(Rule 91) RTC of province where deceased last resided/property situated.

Guardianship Family Court of province or city where minor resides/property situated.

(Rule on Guardianship of Minors Rule 92
[A.M. No. 03-02-05-SC]) RTC of province or city where incompetent resides/property situated.
Adoption
Family Court of province or city where prospective adoptive parents reside.
(Rule on Adoption [A.M. No. 02-6-02-SC])
Rescission – where adoptee resides.
If filed with RTC, where detainee is detained. SC, CA and RTC have concurrent
jurisdiction. However, the writ of habeas corpus issued by the RTC shall be
enforceable only within its judicial region (Sec. 21, BP 129).

Habeas Corpus for custody of minors: Family courts have exclusive

Writ of Habeas Corpus
jurisdiction (Family Courts Act of 1997, RA 8309).
(Rule 102)
However, under the Rule on Custody of Minors and Writ of Habeas Corpus in
relation to Custody of Minors (A.M. No. 03-04-04-SC), the petition may be filed
with SC, CA or any of its members, and the writ shall be enforceable
anywhere in the Philippines.

SC, CA and SB
Writ of Amparo
RTC of the place where the threat, act or omission was committed or any of
(A.M. No. 07-9-12-SC)
its elements occurred

Habeas Data SC, CA and SB

(A.M. No. 08-1-16-SC) RTC:
1. Where petitioner resides; or
2. Where respondent resides;
3. Which has jurisdiction over the place where data or information is
gathered, etc.

All at the option of petitioner.

Change of name RTC of province of residence of petitioner.
(Rule 103)
Absentees RTC of place where absentee resided before his disappearance.
(Rule 107)
RTC of place where civil registry is located.
Correction of clerical or typographical errors (RA 9048):
Cancellation or correction of entries
GR: Local Civil Registrar of place where record is located.
(Rule 108)
XPN: If impractical in terms of transportation expenses, time and effort as
where petitioner has transferred to another place – Local Civil Registrar of
petitioner’s residence.

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