D.

Trustees Rule 68

E. Adoption of Minors AM No. 02-6-02-SC

[A.m. No. 02-6-02-SC 2002-08-02] RULE ON ADOPTION A. DOMESTIC ADOPTION

Section 1. Applicability of the Rule. This Rule covers the domestic adoption of Filipino children. Sec. 2. Objectives. (a) The best interests of the child shall be the paramount consideration in all matters relating to his care, custody and adoption, in accordance with Philippine laws, the United Nations (UN) Convention on the Rights of the Child, UN Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption, Nationally and Internationally, and the Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption. (b) The State shall provide alternative protection and assistance through foster care or adoption for every child who is a foundling, neglected, orphaned, or abandoned. To this end, the State shall: (i) (i) ensure that every child remains under the care and custody of his parents and is provided with love, care, understanding and security for the full and harmonious development of his personality. Only when such efforts prove insufficient and no appropriate placement or adoption within the childs extended family is available shall adoption by an unrelated person be considered. (ii) safeguard the biological parents from making hasty decisions in relinquishing their parental authority over their child; (iii) (iii) prevent the child from unnecessary separation from his biological parents; (iv) conduct public information and educational campaigns to promote a positive environment for adoption; (v) ensure that government and private sector agencies have the capacity to handle adoption inquiries, process domestic adoption applications and offer adoption-related services including, but not limited to, parent preparation and post-adoption education and counseling; (vi) encourage domestic adoption so as to preserve the childs identity and culture in his native land, and only when this is not available shall inter-country adoption be considered as a last resort; and (vii) protect adoptive parents from attempts to disturb their parental authority and custody over their adopted child.

Any voluntary or involuntary termination of parental authority shall be administratively or judicially declared so as to establish the status of the child as legally available for adoption and his custody transferred to the Department of Social Welfare and Development or to any duly licensed and accredited child-placing or child-caring agency, which entity shall be authorized to take steps for the permanent placement of the child. Sec. 3. Definition of Terms. For purposes of this Rule: (a) (a) Child is a person below eighteen (18) years of age at the time of the filing of the petition for adoption. (b) (b) A child legally available for adoption refers to a child who has been voluntarily or involuntarily committed to the Department or to a duly licensed and accredited child-placing or child-caring agency, freed of the parental authority of his biological parents, or in case of rescission of adoption, his guardian or adopter(s). (c) (c) Voluntarily committed child is one whose parents knowingly and willingly relinquish parental authority over him in favor of the Department. (d) (d) Involuntarily committed child is one whose parents, known or unknown, have been permanently and judicially deprived of parental authority over him due to abandonment; substantial, continuous or repeated neglect and abuse; or incompetence to discharge parental responsibilities. (e) (e) Foundling refers to a deserted or abandoned infant or child whose parents, guardian or relatives are unknown; or a child committed to an orphanage or charitable or similar institution with unknown facts of birth and parentage and registered in the Civil Register as a foundling. (f) (f) Abandoned child refers to one who has no proper parental care or guardianship or whose parents have deserted him for a period of at least six (6) continuous months and has been judicially declared as such. (g) (g) Dependent child refers to one who is without a parent, guardian or custodian or one whose parents, guardian or other custodian for good cause desires to be relieved of his care and custody and is dependent upon the public for support. (h) (h) Neglected child is one whose basic needs have been deliberately not attended to or inadequately attended to, physically or emotionally, by his parents or guardian. (i) (i) Physical neglect occurs when the child is malnourished, ill-clad and without proper shelter. (j) (j) Emotional neglect exists when a child is raped, seduced, maltreated, exploited, overworked or made to work under conditions not conducive to good health or made to beg in the streets or public places, or placed in moral danger, or exposed to drugs, alcohol, gambling, prostitution and other vices. (k) (k) Child-placement agency refers to an agency duly licensed and accredited by the Department to provide comprehensive child welfare services including, but not limited to, receiving applications for adoption, evaluating the prospective adoptive parents and preparing the adoption home study report.

(l) (l) Child-caring agency refers to an agency duly licensed and accredited by the Department that provides 24-hour residential care services for abandoned, orphaned, neglected or voluntarily committed children. (m) (m) Department refers to the Department of Social Welfare and Development. (n) (n) Deed of Voluntary Commitment refers to the written and notarized instrument relinquishing parental authority and committing the child to the care and custody of the Department executed by the childs biological parents or in their absence, mental incapacity or death, by the childs legal guardian, to be witnessed by an authorized representative of the Department after counseling and other services have been made available to encourage the biological parents to keep the child. (o) (o) Child Study Report refers to a study made by the court social worker of the childs legal status, placement history, psychological, social, spiritual, medical, ethno-cultural background and that of his biological family needed in determining the most appropriate placement for him. (p) (p) Home Study Report refers to a study made by the court social worker of the motivation and capacity of the prospective adoptive parents to provide a home that meets the needs of a child. (q) (q) Supervised trial custody refers to the period of time during which a social worker oversees the adjustment and emotional readiness of both adopters and adoptee in stabilizing their filial relationship. (r) (r) Licensed Social Worker refers to one who possesses a degree in bachelor of science in social work as a minimum educational requirement and who has passed the government licensure examination for social workers as required by Republic Act No. 4373. (s) (s) Simulation of birth is the tampering of the civil registry to make it appear in the birth records that a certain child was born to a person who is not his biological mother, thus causing such child to lose his true identity and status. (t) (t) Biological Parents refer to the childs mother and father by nature. (u) (u) Pre-Adoption Services refer to psycho-social services provided by professionallytrained social workers of the Department, the social services units of local governments, private and government health facilities, Family Courts, licensed and accredited child-caring and child-placement agencies and other individuals or entities involved in adoption as authorized by the Department. (v) (v) Residence means a persons actual stay in the Philippines for three (3) continuous years immediately prior to the filing of a petition for adoption and which is maintained until the adoption decree is entered. Temporary absences for professional, business, health, or emergency reasons not exceeding sixty (60) days in one (1) year does not break the continuity requirement. (w) (w) Alien refers to any person, not a Filipino citizen, who enters and remains in the Philippines and is in possession of a valid passport or travel documents and visa. SEC. 4. Who may adopt. The following may adopt:

(1) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude; who is emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his children in keeping with the means of the family. The requirement of a 16-year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee or is the spouse of the adoptees parent; (2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided, That his country has diplomatic relations with the Republic of the Philippines, that he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and maintains such residence until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country, and that his government allows the adoptee to enter his country as his adopted child. Provided, further, That the requirements on residency and certification of the aliens qualification to adopt in his country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate child of his Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse.

(3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate child of one spouse by the other spouse; or (ii) if one spouse seeks to adopt his own illegitimate child: Provided, however, That the other spouse has signified his consent thereto; or (iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other, joint parental authority shall be exercised by the spouses. SEC. 5. Who may be adopted. The following may be adopted: (1) (1) Any person below eighteen (18) years of age who has been voluntarily committed to the Department under Articles 154, 155 and 156 of P.D. No. 603 or judicially declared available for adoption;

(2) (2) The legitimate child of one spouse, by the other spouse; (3) (3) An illegitimate child, by a qualified adopter to raise the status of the former to that of legitimacy; (4) (4) A person of legal age regardless of civil status, if, prior to the adoption, said person has been consistently considered and treated by the adopters as their own child since minority; (5) (5) A child whose adoption has been previously rescinded; or (6) (6) A child whose biological or adoptive parents have died: Provided, That no proceedings shall be initiated within six (6) months from the time of death of said parents. (7) (7) A child not otherwise disqualified by law or these rules.

Sec. 6. Venue. The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside. Sec. 7. Contents of the Petition. The petition shall be verified and specifically state at the heading of the initiatory pleading whether the petition contains an application for change of name, rectification of simulated birth, voluntary or involuntary commitment of children, or declaration of child as abandoned, dependent or neglected. 1) 1) If the adopter is a Filipino citizen, the petition shall allege the following:

(a) (a) The jurisdictional facts; (b) (b) That the petitioner is of legal age, in possession of full civil capacity and legal rights; is of good moral character; has not been convicted of any crime involving moral turpitude; is emotionally and psychologically capable of caring for children; is at least sixteen (16) years older than the adoptee, unless the adopter is the biological parent of the adoptee or is the spouse of the adoptees parent; and is in a position to support and care for his children in keeping with the means of the family and has undergone pre-adoption services as required by Section 4 of Republic Act No. 8552.

2) 2) If the adopter is an alien, the petition shall allege the following:

(a) (a) The jurisdictional facts; (b) (b) Sub-paragraph 1(b) above; (c) (c) That his country has diplomatic relations with the Republic of the Philippines;

(d) (d) That he has been certified by his diplomatic or consular office or any appropriate government agency to have the legal capacity to adopt in his country and his government allows the adoptee to enter his country as his adopted child and reside there permanently as an adopted child; and (e) (e) That he has been living in the Philippines for at least three (3) continuous years prior to the filing of the petition and he maintains such residence until the adoption decree is entered.

The requirements of certification of the aliens qualification to adopt in his country and of residency may be waived if the alien: (i) is a former Filipino citizen who seeks to adopt a relative within the fourth degree of consanguinity or affinity; or (ii) seeks to adopt the legitimate child of his Filipino spouse; or (iii) is married to a Filipino citizen and seeks to adopt jointly with his spouse a relative within the fourth degree of consanguinity or affinity of the Filipino spouse.

3) 3) If the adopter is the legal guardian of the adoptee, the petition shall allege that guardianship had been terminated and the guardian had cleared his financial accountabilities. 4) 4) If the adopter is married, the spouse shall be a co-petitioner for joint adoption except if: (a) one spouse seeks to adopt the legitimate child of the other, or (b) if one spouse seeks to adopt his own illegitimate child and the other spouse signified written consent thereto, or (c) if the spouses are legally separated from each other.

5) 5) If the adoptee is a foundling, the petition shall allege the entries which should appear in his birth certificate, such as name of child, date of birth, place of birth, if known; sex, name and citizenship of adoptive mother and father, and the date and place of their marriage. 6) 6) If the petition prays for a change of name, it shall also state the cause or reason for the change of name.

In all petitions, it shall be alleged: (a) The first name, surname or names, age and residence of the adoptee as shown by his record of birth, baptismal or foundling certificate and school records.

(b) That the adoptee is not disqualified by law to be adopted. (c) The probable value and character of the estate of the adoptee. (d) The first name, surname or names by which the adoptee is to be known and registered in the Civil Registry. A certification of non-forum shopping shall be included pursuant to Section 5, Rule 7 of the 1997 Rules of Civil Procedure. Sec. 8. Rectification of Simulated Birth. In case the petition also seeks rectification of a simulated of birth, it shall allege that: (a) (a) Petitioner is applying for rectification of a simulated birth; (b) (b) The simulation of birth was made prior to the date of effectivity of Republic Act No. 8552 and the application for rectification of the birth registration and the petition for adoption were filed within five years from said date; (c) (c) The petitioner made the simulation of birth for the best interests of the adoptee; and (d) (d) The adoptee has been consistently considered and treated by petitioner as his own child.

Sec. 9. Adoption of a foundling, an abandoned, dependent or neglected child. In case the adoptee is a foundling, an abandoned, dependent or neglected child, the petition shall allege: (a) (a) The facts showing that the child is a foundling, abandoned, dependent or neglected; (b) (b) The names of the parents, if known, and their residence. If the child has no known or living parents, then the name and residence of the guardian, if any; (c) (c) The name of the duly licensed child-placement agency or individual under whose care the child is in custody; and (d) (d) That the Department, child-placement or child-caring agency is authorized to give its consent.

Sec. 10. Change of name. In case the petition also prays for change of name, the title or caption must contain: (a) (a) The registered name of the child; (b) (b) Aliases or other names by which the child has been known; and (c) (c) The full name by which the child is to be known.

Sec. 11. Annexes to the Petition. The following documents shall be attached to the petition: A. Birth, baptismal or foundling certificate, as the case may be, and school records showing the name, age and residence of the adoptee; B. Affidavit of consent of the following:

1. The adoptee, if ten (10) years of age or over; 2. The biological parents of the child, if known, or the legal guardian, or the child-placement agency, child-caring agency, or the proper government instrumentality which has legal custody of the child; 3. The legitimate and adopted children of the adopter and of the adoptee, if any, who are ten (10) years of age or over; 4. The illegitimate children of the adopter living with him who are ten (10) years of age or over; and 5. The spouse, if any, of the adopter or adoptee.

C. Child study report on the adoptee and his biological parents; D. If the petitioner is an alien, certification by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt in his country and that his government allows the adoptee to enter his country as his own adopted child unless exempted under Section 4(2); E. Home study report on the adopters. If the adopter is an alien or residing abroad but qualified to adopt, the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board; and F. Decree of annulment, nullity or legal separation of the adopter as well as that of the biological parents of the adoptee, if any.

Sec. 12. Order of Hearing. If the petition and attachments are sufficient in form and substance, the court shall issue an order which shall contain the following: (1) the registered name of the adoptee in the birth certificate and the names by which the adoptee has been known which shall be stated in the caption; (2) the purpose of the petition; (3) the complete name which the adoptee will use if the petition is granted; (4) the date and place of hearing which shall be set within six (6) months from the date of the issuance of the order and shall direct that a copy thereof be published before the date of hearing at least once a week for three successive weeks in a newspaper of general circulation in the province or city where the court is situated; Provided, that in case of

application for change of name, the date set for hearing shall not be within four (4) months after the last publication of the notice nor within thirty (30) days prior to an election. The newspaper shall be selected by raffle under the supervision of the Executive Judge. (5) a directive to the social worker of the court, the social service office of the local government unit or any child-placing or child-caring agency, or the Department to prepare and submit child and home study reports before the hearing if such reports had not been attached to the petition due to unavailability at the time of the filing of the latter; and (6) a directive to the social worker of the court to conduct counseling sessions with the biological parents on the matter of adoption of the adoptee and submit her report before the date of hearing. At the discretion of the court, copies of the order of hearing shall also be furnished the Office of the Solicitor General through the provincial or city prosecutor, the Department and the biological parents of the adoptee, if known. If a change in the name of the adoptee is prayed for in the petition, notice to the Solicitor General shall be mandatory. Sec. 13. Child and Home Study Reports. In preparing the child study report on the adoptee, the concerned social worker shall verify with the Civil Registry the real identity and registered name of the adoptee. If the birth of the adoptee was not registered with the Civil Registry, it shall be the responsibility of the social worker to register the adoptee and secure a certificate of foundling or late registration, as the case may be. The social worker shall establish that the child is legally available for adoption and the documents in support thereof are valid and authentic, that the adopter has sincere intentions and that the adoption shall inure to the best interests of the child. In case the adopter is an alien, the home study report must show the legal capacity to adopt and that his government allows the adoptee to enter his country as his adopted child in the absence of the certification required under Section 7(b) of Republic Act No. 8552. If after the conduct of the case studies, the social worker finds that there are grounds to deny the petition, he shall make the proper recommendation to the court, furnishing a copy thereof to the petitioner. Sec. 14. Hearing. Upon satisfactory proof that the order of hearing has been published and jurisdictional requirements have been complied with, the court shall proceed to hear the petition. The petitioner and the adoptee must personally appear and the former must testify before the presiding judge of the court on the date set for hearing. The court shall verify from the social worker and determine whether the biological parent has been properly counseled against making hasty decisions caused by strain or anxiety to give up the child; ensure that all measures to strengthen the family have been exhausted; and ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest. Sec. 15. Supervised Trial Custody. Before issuance of the decree of adoption, the court

shall give the adopter trial custody of the adoptee for a period of at least six (6) months within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. The trial custody shall be monitored by the social worker of the court, the Department, or the social service of the local government unit, or the child-placement or child-caring agency which submitted and prepared the case studies. During said period, temporary parental authority shall be vested in the adopter. The court may, motu proprio or upon motion of any party, reduce the period or exempt the parties if it finds that the same shall be for the best interests of the adoptee, stating the reasons therefor. An alien adopter however must complete the 6-month trial custody except the following: a) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or b) one who seeks to adopt the legitimate child of his Filipino spouse; or c) one who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse the latters relative within the fourth (4th) degree of consanguinity or affinity. If the child is below seven (7) years of age and is placed with the prospective adopter through a pre-adoption placement authority issued by the Department, the court shall order that the prospective adopter shall enjoy all the benefits to which the biological parent is entitled from the date the adoptee is placed with him. The social worker shall submit to the court a report on the result of the trial custody within two weeks after its termination. Sec. 16. Decree of Adoption. If the supervised trial custody is satisfactory to the parties and the court is convinced from the trial custody report and the evidence adduced that the adoption shall redound to the best interests of the adoptee, a decree of adoption shall be issued which shall take effect as of the date the original petition was filed even if the petitioners die before its issuance. The decree shall: A. State the name by which the child is to be known and registered; B. Order: 1) the Clerk of Court to issue to the adopter a certificate of finality upon expiration of the 15day reglementary period within which to appeal; 2) the adopter to submit a certified true copy of the decree of adoption and the certificate of finality to the Civil Registrar where the child was originally registered within thirty (30) days from receipt of the certificate of finality. In case of change of name, the decree shall be submitted to the Civil Registrar where the court issuing the same is situated. 3) 3) the Civil Registrar of the place where the adoptee was registered:

a. to annotate on the adoptees original certificate of birth the decree of adoption within thirty (30) days from receipt of the certificate of finality; b. to issue a certificate of birth which shall not bear any notation that it is a new or amended certificate and which shall show, among others, the following: registry number, date of registration, name of child, sex, date of birth, place of birth, name and citizenship of adoptive mother and father, and the date and place of their marriage, when applicable; c. to seal the original certificate of birth in the civil registry records which can be opened only upon order of the court which issued the decree of adoption; and d. to submit to the court issuing the decree of adoption proof of compliance with all the foregoing within thirty days from receipt of the decree.

If the adoptee is a foundling, the court shall order the Civil Registrar where the foundling was registered, to annotate the decree of adoption on the foundling certificate and a new birth certificate shall be ordered prepared by the Civil Registrar in accordance with the decree. Sec. 17. Book of Adoptions. The Clerk of Court shall keep a book of adoptions showing the date of issuance of the decree in each case, compliance by the Civil Registrar with Section 16(B)(3) and all incidents arising after the issuance of the decree. Sec. 18. Confidential Nature of Proceedings and Records. All hearings in adoption cases, after compliance with the jurisdictional requirements shall be confidential and shall not be open to the public. All records, books and papers relating to the adoption cases in the files of the court, the Department, or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential. If the court finds that the disclosure of the information to a third person is necessary for security reasons or for purposes connected with or arising out of the adoption and will be for the best interests of the adoptee, the court may, upon proper motion, order the necessary information to be released, restricting the purposes for which it may be used. Sec. 19. Rescission of Adoption of the Adoptee. The petition shall be verified and filed by the adoptee who is over eighteen (18) years of age, or with the assistance of the Department, if he is a minor, or if he is over eighteen (18) years of age but is incapacitated, by his guardian or counsel. The adoption may be rescinded based on any of the following grounds committed by the adopter: 1) repeated physical and verbal maltreatment by the adopter despite having undergone counseling; 2) attempt on the life of the adoptee; 3) sexual assault or violence; or

4) abandonment or failure to comply with parental obligations. Adoption, being in the best interests of the child, shall not be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code. Sec. 20. Venue. The petition shall be filed with the Family Court of the city or province where the adoptee resides. Sec. 21. Time within which to file petition. The adoptee, if incapacitated, must file the petition for rescission or revocation of adoption within five (5) years after he reaches the age of majority, or if he was incompetent at the time of the adoption, within five (5) years after recovery from such incompetency. Sec. 22. Order to Answer. The court shall issue an order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a copy thereof. The order and copy of the petition shall be served on the adverse party in such manner as the court may direct. Sec. 23. Judgment. If the court finds that the allegations of the petition are true, it shall render judgment ordering the rescission of adoption, with or without costs, as justice requires. The court shall order that the parental authority of the biological parent of the adoptee, if known, or the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated and declare that the reciprocal rights and obligations of the adopter and the adoptee to each other shall be extinguished. The court shall further declare that successional rights shall revert to its status prior to adoption, as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected. It shall also order the adoptee to use the name stated in his original birth or foundling certificate. The court shall further order the Civil Registrar where the adoption decree was registered to cancel the new birth certificate of the adoptee and reinstate his original birth or foundling certificate. Sec. 24. Service of Judgment. A certified true copy of the judgment together with a certificate of finality issued by the Branch Clerk of the Court which rendered the decision in accordance with the preceding Section shall be served by the petitioner upon the Civil Registrar concerned within thirty (30) days from receipt of the certificate of finality. The Civil Registrar shall forthwith enter the rescission decree in the register and submit proof of compliance to the court issuing the decree and the Clerk of Court within thirty (30) days from receipt of the decree. The Clerk of Court shall enter the compliance in accordance with Section 17 hereof.

SEC. 25. Repeal. - This supersedes Rule 99 on Adoption and Rule 100 of the Rules of Court. B. Inter-Country Adoption Sec. 26. Applicability. The following sections apply to inter-country adoption of Filipino children by foreign nationals and Filipino citizens permanently residing abroad. SEC. 27. Objectives. The State shall: a) a) consider inter-country adoption as an alternative means of child care, if the child cannot be placed in a foster or an adoptive family or cannot, in any suitable manner, be cared for in the Philippines; b) ensure that the child subject of inter-country adoption enjoys the same protection accorded to children in domestic adoption; and c) take all measures to ensure that the placement arising therefrom does not result in improper financial gain for those involved.

Sec. 28. Where to File Petition. A verified petition to adopt a Filipino child may be filed by a foreign national or Filipino citizen permanently residing abroad with the Family Court having jurisdiction over the place where the child resides or may be found. It may be filed directly with the Inter-Country Adoption Board. Sec. 29. Who may be adopted. Only a child legally available for domestic adoption may be the subject of inter-country adoption. Sec. 30. Contents of Petition. The petitioner must allege: a) a) his age and the age of the child to be adopted, showing that he is at least twentyseven (27) years of age and at least sixteen (16) years older than the child to be adopted at the time of application, unless the petitioner is the parent by nature of the child to be adopted or the spouse of such parent, in which case the age difference does not apply; b) b) if married, the name of the spouse who must be joined as co-petitioner except when the adoptee is a legitimate child of his spouse; c) c) that he has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his country; d) d) that he has not been convicted of a crime involving moral turpitude; e) e) that he is eligible to adopt under his national law; f) f) that he can provide the proper care and support and instill the necessary moral values

and example to all his children, including the child to be adopted; g) g) that he agrees to uphold the basic rights of the child, as embodied under Philippine laws and the U. N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to implement the provisions of Republic Act No. 8043; h) h) that he comes from a country with which the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption of a Filipino child is allowed under his national laws; and i) i) that he possesses all the qualifications and none of the disqualifications provided in this Rule, in Republic Act No. 8043 and in all other applicable Philippine laws. Sec. 31. Annexes. - The petition for adoption shall contain the following annexes written and officially translated in English: a) a) Birth certificate of petitioner; b) b) Marriage contract, if married, and, if applicable, the divorce decree, or judgment dissolving the marriage; c) c) Sworn statement of consent of petitioners biological or adopted children above ten (10) years of age; d) d) Physical, medical and psychological evaluation of the petitioner certified by a duly licensed physician and psychologist; e) e) Income tax returns or any authentic document showing the current financial capability of the petitioner; f) f) Police clearance of petitioner issued within six (6) months before the filing of the petitioner; g) g) Character reference from the local church/minister, the petitioners employer and a member of the immediate community who have known the petitioner for at least five (5) years; h) h) Full body postcard-size pictures of the petitioner and his immediate family taken at least six (6) months before the filing of the petition. Sec. 32. Duty of Court. The court, after finding that the petition is sufficient in form and substance and a proper case for inter-country adoption, shall immediately transmit the petition to the Inter-Country Adoption Board for appropriate action. SEC. 33. Effectivity. - This Rule shall take effect on August 22, 2002 following its publication in a newspaper of general circulation. F. Custody of Minors AM No. 03-04-04-SC [A.M. No. 03-04-04-SC 2003-04-22]

RE: PROPOSED RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS

RESOLUTION Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting for this Courts consideration and approval the Proposed Rule on custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors, the Court Resolved to APPROVE the same. The Rule shall take effect on May 15, 2003 following its publication in a newspaper of general circulation not later than April 30, 2003. April 22, 2003 Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Quisumbing, J., on official leave. RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS SECTION 1. Applicability. - This rule shall apply to petitions for custody of minors and writs of habeas corpus in relation thereto. The Rules of Court shall apply suppletorily. SEC. 2. Petition for custody of minors; who may file.- A verified petition for the rightful custody of a minor may be filed by any person claiming such right. The party against whom it may be filed shall be designated as the respondent. SEC. 3. Where to file petition. - The petition for custody of minors shall be filed with the Family Court of the province or city where the petitioner resides or where the minor may be found. SEC. 4. Contents of petition. - The verified petition shall allege the following: (a) The personal circumstances of the petitioner and of the respondent; (b) The name, age and present whereabouts of the minor and his or her relationship to the petitioner and the respondent; (c) The material operative facts constituting deprivation of custody; and (d) Such other matters which are relevant to the custody of the minor. The verified petition shall be accompanied by a certificate against forum shopping, which the petitioner must sign personally. SEC. 5. Summons; personal service on respondent. - If the court is satisfied that the petition

is sufficient in form and substance, it shall direct the clerk of court to issue summons, which shall be served together with a copy of the petition personally on the respondent. SEC. 6. Motion to Dismiss. - A motion to dismiss the petition is not allowed except on the ground of lack of jurisdiction over the subject matter or over the parties. Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer. SEC. 7. Verified Answer. - The respondent shall file an answer to the petition, personally verified by him, within five days after service of summons and a copy of the petition. SEC. 8. Case study; duty of social worker. - Upon the filing of the verified answer or the expiration of the period to file it, the court may order a social worker to make a case study of the minor and the parties and to submit a report and recommendation to the court at least three days before the scheduled pre-trial. SEC. 9. Notice of mandatory pre-trial. - Within fifteen days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order: (1) fixing a date for the pre-trial conference; (2) directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure receipt thereof by the adverse party at least three days before the date of pre-trial; and (3) requiring the respondent to present the minor before the court. The notice of its order shall be served separately on both the parties and their respective counsels. The pre-trial is mandatory. SEC. 10. Contents of pre-trial brief. - The pre-trial brief shall contain the following: (a) A statement of the willingness of the parties to enter into agreements that may be allowed by law, indicating its terms; (b) A concise statement of their respective claims together with the applicable laws and authorities; (c) Admitted facts and proposed stipulations of facts; (d) The disputed factual and legal issues; (e) All the evidence to be presented, briefly stating or describing its nature and purpose; (f) The number and names of the witnesses and their respective affidavits which shall serve as the affiant's testimony on direct examination; and (g) Such other matters as the court may require to be included in the pre-trial brief. Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pre-trial. SEC. 11. Effect of failure to appear at the pre-trial.-(a) If the petitioner fails to appear personally at the pre-trial, the case shall be dismissed, unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the nonappearance of the petitioner. (b) If the respondent has filed his answer but fails to appear at the pre-trial, the petitioner

shall be allowed to present his evidence ex parte. The court shall then render judgment on the basis of the pleadings and the evidence thus presented. SEC. 12. What may be done at pre-trial. - At the pre-trial, the parties may agree on the custody of the minor. If the parties fail to agree, the court may refer the matter to a mediator who shall have five days to effect an agreement between the parties. If the issue is not settled through mediation, the court shall proceed with the pre-trial conference, on which occasion it shall consider such other matters as may aid in the prompt disposition of the petition. SEC. 13. Provisional order awarding custody. - After an answer has been filed or after expiration of the period to file it, the court may issue a provisional order awarding custody of the minor. As far as practicable, the following order of preference shall be observed in the award of custody: (a) Both parents jointly; (b) Either parent, taking into account all relevant considerations, especially the choice of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit; (c) The grandparent, or if there are several grandparents, the grandparent chosen by the minor over seven years of age and of sufficient discernment, unless the grandparent chosen is unfit or disqualified; (d) The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; (e) The actual custodian of the minor over twenty-one years of age, unless the former is unfit or disqualified; or (f) Any other person or institution the court may deem suitable to provide proper care and guidance for the minor. SEC. 14. Factors to consider in determining custody. - In awarding custody, the court shall consider the best interests of the minor and shall give paramount consideration to his material and moral welfare. The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the minor. The court shall also consider the following: (a) Any extrajudicial agreement which the parties may have bound themselves to comply with respecting the rights of the minor to maintain direct contact with the non custodial parent on a regular basis, except when there is an existing threat or danger of physical, mental, sexual or emotional violence which endangers the safety and best interests of the minor; (b) The desire and ability of one parent to foster an open and loving relationship between the minor and the other parent; (c) The health, safety and welfare of the minor;

(d) Any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the minor, including anyone courting the parent; (e) The nature and frequency of contact with both parents; (f) Habitual use of alcohol, dangerous drugs or regulated substances; (g) Marital misconduct; (h) The most suitable physical, emotional, spiritual, psychological and educational environment for the holistic development and growth of the minor; and (i) The preference of the minor over seven years of age and of sufficient discernment, unless the parent chosen is unfit. SEC. 15. Temporary visitation rights. - The court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents, unless the court finds said parent or parents unfit or disqualified. The temporary custodian shall give the court and non custodial parent or parents at least five days' notice of any plan to change the residence of the minor or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the non-custodial parent or parents. SEC. 16. Hold Departure Order. - The minor child subject of the petition shall not be brought out of the country without prior order from the court while the petition is pending. The court, motu proprio or upon application under oath, may issue ex parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the minor from the Philippines without the permission of the court. The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order within twenty-four hours from its issuance and through the fastest available means of transmittal. The hold departure order shall contain the following information: (a) The complete name (including the middle name), the date and place of birth, the nationality and the place of last residence of the person against whom a hold departure order has been issued or whose departure from the country has been enjoined; (b) The complete title and docket number of the case in which the hold departure order was issued; (c) The specific nature of the case; (d) The date of the hold departure order; and (e) A recent photograph, if available, of the party against whom a hold departure order has been issued or whose departure from the country has been enjoined.

The court may recall the hold departure order motu proprio, or upon verified motion of any of the parties after summary hearing, subject to such terms and conditions as may be necessary for the best interests of the minor. SEC. 17. Protection Order. - The court may issue a Protection Order requiring any person: (a) To stay away from the home, school, business, or place of employment of the minor, other parent or any other party, or from any other specific place designated by the court; (b) To cease and desist from harassing, intimidating, or threatening such minor or the other parent or any person to whom custody of the minor is awarded; (c) To refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the minor; (d) To permit a parent, or a party entitled to visitation by a court order or a separation agreement, to visit the minor at stated periods; (e) To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court; and (f) To comply with such other orders as are necessary for the protection of the minor. SEC. 18. Judgment. - After trial, the court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor. If it appears that both parties are unfit to have the care and custody of the minor, the court may designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or any reputable person to take charge of such minor, or commit him to any suitable home for children. In its judgment, the court may order either or both parents to give an amount necessary for the support, maintenance and education of the minor, irrespective of who may be its custodian. In determining the amount of support, the court may consider the following factors: (1) the financial resources of the custodial and non-custodial parent and those of the minor; (2) the physical and emotional health, special needs, and aptitude of the minor; (3) the standard of living the minor has been accustomed to; and (4) the non-monetary contributions that the parents would make toward the care and well-being of the minor. The court may also issue any order that is just and reasonable permitting the parent who is deprived of the care and custody of the minor to visit or have temporary custody. SEC. 19. Appeal. - No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment. An aggrieved party may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of the denial of the motion for reconsideration or new trial and serving a copy thereof on the adverse parties. SEC. 20. Petition for writ of habeas corpus. - A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs.

However, the 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. The petition may also be filed with the appropriate regular courts in places where there are no Family Courts. The writ issued by the Family Court or the regular court shall be enforceable in the judicial region where they belong. The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. Upon return of the writ, the court shall decide the issue on custody of minors. The appellate court, or the member thereof, issuing the writ shall be furnished a copy of the decision. SEC. 21. Confidentiality of proceedings. - The hearings on custody of minors may, at the discretion of the court, be closed to the public and the records of the case shall not be released to non-parties without its approval. SEC. 22. Effectivity. - This Rule shall take effect on May 15, 2003 following its publication in a newspaper of general circulation not later than April 30, 2003. Briones v. Miguel, G.R. No. 156343, 18 Oct 2004

THIRD DIVISION [G.R. No. 156343. October 18, 2004] JOEY D. BRIONES, petitioner, vs. MARICEL P. MIGUEL, FRANCISCA P. MIGUEL and LORETA P. MIGUEL, respondents. DECISION PANGANIBAN, J.: An illegitimate child is under the sole parental authority of the mother. In the exercise of that authority, she is entitled to keep the child in her company. The Court will not deprive her of custody, absent any imperative cause showing her unfitness to exercise such authority and care. The Case The Petition for Review[1] before the Court seeks to reverse and set aside the August 28, 2002 Decision[2] and the December 11, 2002 Resolution[3] of the Court of Appeals in CA-GR SP No. 69400.[4] The dispositive portion of the assailed Decision reads as follows: WHEREFORE, the petition is hereby DISMISSED. Respondent Loreta P. Miguel shall have custody over the child Michael Kevin Pineda until he reaches ten (10) years of age. Once

the said child is beyond ten (10) years of age, the Court allows him to choose which parent he prefers to live with pursuant to Section 6, Rule 99 of the 1997 Rules of Civil Procedure, as amended. The petitioner, Joey D. Briones, shall help support the child, shall have visitorial rights at least once a week, and may take the child out upon the written consent of the mother. Acting on the petitioners Urgent Motion for a Hold Departure Order, and finding it to be without merit, the same is DENIED.[5] The challenged Resolution denied reconsideration. The Facts The CA summarized the antecedents of the case in this wise: On March 5, 2002, petitioner Joey D. Briones filed a Petition for Habeas Corpus against respondents Maricel Pineda Miguel and Francisca Pineda Miguel, to obtain custody of his minor child Michael Kevin Pineda. On April 25, 2002, the petitioner filed an Amended Petition to include Loreta P. Miguel, the mother of the minor, as one of the respondents. A Writ of Habeas Corpus was issued by this Court on March 11, 2002 ordering the respondents to produce before this Court the living body of the minor Michael Kevin Pineda on March 21, 2002 at 2:00 oclock in the afternoon. The petitioner alleges that the minor Michael Kevin Pineda is his illegitimate son with respondent Loreta P. Miguel. He was born in Japan on September 17, 1996 as evidenced by his Birth Certificate. The respondent Loreta P. Miguel is now married to a Japanese national and is presently residing in Japan. The petitioner further alleges that on November 4, 1998 he caused the minor child to be brought to the Philippines so that he could take care of him and send him to school. In the school year 2000-2001, the petitioner enrolled him at the nursery school of Blessed Angels L.A. School, Inc. in Caloocan City, where he finished the nursery course. According to the petitioner, his parents, who are both retired and receiving monthly pensions, assisted him in taking care of the child. On May 2, 2001, respondents Maricel P. Miguel and Francisca P. Miguel came to the house of the petitioner in Caloocan City on the pretext that they were visiting the minor child and requested that they be allowed to bring the said child for recreation at the SM Department store. They promised him that they will bring him back in the afternoon, to which the petitioner agreed. However, the respondents did not bring him back as promised by them. The petitioner went several times to respondent Maricel P. Miguel at Tanza, Tuguegarao City but he was informed that the child is with the latters mother at Batal Heights, Santiago City. When he went there, respondent Francisca P. Miguel told him that Michael Kevin Pineda is with her daughter at Tuguegarao City. He sought the assistance of the police and the Department of Social Welfare to locate his son and to bring him back to him, but all his efforts were futile.

Hence, he was constrained to file a Petition for Habeas Corpus with the Regional Trial Court of Caloocan City which was docketed as SPC No. 2711. However, the said case was withdrawn ex-parte. The petitioner prays that the custody of his son Michael Kevin Pineda be given to him as his biological father and [as] he has demonstrated his capability to support and educate him. On May 6, 2002, the respondents filed their Comment, in compliance with the May 2, 2002 Resolution of this Court. In their Comment, the respondent Loreta P. Miguel denies the allegation of the petitioner that he was the one who brought their child to the Philippines and stated that she was the one who brought him here pursuant to their agreement. Respondent Loreta P. Miguel likewise denies petitioners allegation that respondents Maricel P. Miguel and Francisca P. Miguel were the ones who took the child from the petitioner or the latters parents. She averred that she was the one who took Michael Kevin Pineda from the petitioner when she returned to the Philippines and that the latter readily agreed and consented. Respondent Loreta P. Miguel alleges that sometime in October 2001, the petitioner was deported from Japan under the assumed name of Renato Juanzon when he was found to have violated or committed an infraction of the laws of Japan. She further stated that since the time the petitioner arrived in the Philippines, he has not been gainfully employed. The custody of the child, according to respondent Loreta P. Miguel was entrusted to petitioners parents while they were both working in Japan. She added that even before the custody of the child was given to the petitioners parents, she has already been living separately from the petitioner in Japan because the latter was allegedly maintaining an illicit affair with another woman until his deportation. She likewise stated in her Comment that her marriage to a Japanese national is for the purpose of availing of the privileges of staying temporarily in Japan to pursue her work so she could be able to send money regularly to her son in the Philippines. She further stated that she has no intention of staying permanently in Japan as she has been returning to the Philippines every six (6) months or as often as she could. Respondent Loreta P. Miguel prays that the custody of her minor child be given to her and invokes Article 213, Paragraph 2 of the Family Code and Article 363 of the Civil Code of the Philippines. Ruling of the Court of Appeals Applying Article 213 (paragraph 2) of the Family Code, the CA awarded the custody of Michael Kevin Pineda Miguel to his mother, Respondent Loreta P. Miguel. While acknowledging that petitioner truly loved and cared for his son and considering the trouble and expense he had spent in instituting the legal action for custody, it nevertheless found no compelling reason to separate the minor from his mother. Petitioner, however, was granted visitorial rights. Hence, this Petition.[6] Issue

In his Memorandum, petitioner formulated the ultimate issue as follows: x x x [w]hether or not [he], as the natural father, may be denied the custody and parental care of his own child in the absence of the mother who is away.[7] The Courts Ruling The Petition has no merit. However, the assailed Decision should be modified in regard to its erroneous application of Section 6 of Rule 99 of the Rules of Court. Sole Issue Who Should Have Custody of the Child? Petitioner concedes that Respondent Loreta has preferential right over their minor child. He insists, however, that custody should be awarded to him whenever she leaves for Japan and during the period that she stays there. In other words, he wants joint custody over the minor, such that the mother would have custody when she is in the country. But when she is abroad, he -- as the biological father -- should have custody. According to petitioner, Loreta is not always in the country. When she is abroad, she cannot take care of their child. The undeniable fact, he adds, is that she lives most of the time in Japan, as evidenced by her Special Power of Attorney dated May 28, 2001,[8] granting to her sister temporary custody over the minor. At present, however, the child is already with his mother in Japan, where he is studying,[9] thus rendering petitioners argument moot. While the Petition for Habeas Corpus was pending before the CA, petitioner filed on July 30, 2002, an Urgent Motion for a Hold Departure Order,[10] alleging therein that respondents were preparing the travel papers of the minor so the child could join his mother and her Japanese husband. The CA denied the Motion for lack of merit.[11] Having been born outside a valid marriage, the minor is deemed an illegitimate child of petitioner and Respondent Loreta. Article 176 of the Family Code of the Philippines[12] explicitly provides that illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. This is the rule regardless of whether the father admits paternity.[13] Previously, under the provisions of the Civil Code, illegitimate children were generally classified into two groups: (1) natural, whether actual or by legal fiction; and (2) spurious, whether incestuous, adulterous or illicit.[14] A natural child is one born outside a lawful wedlock of parents who, at the time of conception of the child, were not disqualified by any impediment to marry each other.[15] On the other hand, a spurious child is one born of parents who, at the time of conception, were disqualified to marry each other on account of certain legal impediments.[16] Parental authority over recognized natural children who were under the age of majority was vested in the father or the mother recognizing them.[17] If both acknowledge the child, authority was to be exercised by the one to whom it was awarded by the courts; if it was awarded to both, the rule as to legitimate children applied. In other words, in the latter case, parental authority resided jointly in the father and the mother.[18] The fine distinctions among the various types of illegitimate children have been eliminated in the Family Code.[19] Now, there are only two classes of children -- legitimate (and those who, like the legally adopted, have the rights of legitimate children) and illegitimate. All

children conceived and born outside a valid marriage are illegitimate, unless the law itself gives them legitimate status.[20] Article 54 of the Code provides these exceptions: Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. Under Article 176 of the Family Code, all illegitimate children are generally placed under one category, without any distinction between natural and spurious.[21] The concept of natural child is important only for purposes of legitimation.[22] Without the subsequent marriage, a natural child remains an illegitimate child. Obviously, Michael is a natural (illegitimate, under the Family Code) child, as there is nothing in the records showing that his parents were suffering from a legal impediment to marry at the time of his birth. Both acknowledge that Michael is their son. As earlier explained and pursuant to Article 176, parental authority over him resides in his mother, Respondent Loreta, notwithstanding his fathers recognition of him. David v. Court of Appeals[23] held that the recognition of an illegitimate child by the father could be a ground for ordering the latter to give support to, but not custody of, the child. The law explicitly confers to the mother sole parental authority over an illegitimate child; it follows that only if she defaults can the father assume custody and authority over the minor. Of course, the putative father may adopt his own illegitimate child;[24] in such a case, the child shall be considered a legitimate child of the adoptive parent.[25] There is thus no question that Respondent Loreta, being the mother of and having sole parental authority over the minor, is entitled to have custody of him.[26] She has the right to keep him in her company.[27] She cannot be deprived of that right,[28] and she may not even renounce or transfer it except in the cases authorized by law.[29] Not to be ignored in Article 213 of the Family Code is the caveat that, generally, no child under seven years of age shall be separated from the mother, except when the court finds cause to order otherwise. Only the most compelling of reasons, such as the mothers unfitness to exercise sole parental authority, shall justify her deprivation of parental authority and the award of custody to someone else.[30] In the past, the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect or abandonment,[31] unemployment, immorality,[32] habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease. Bearing in mind the welfare and the best interest of the minor as the controlling factor,[33] we hold that the CA did not err in awarding care, custody, and control of the child to Respondent Loreta. There is no showing at all that she is unfit to take charge of him. We likewise affirm the visitorial right granted by the CA to petitioner. In Silva v. Court of Appeals,[34] the Court sustained the visitorial right of an illegitimate father over his children in view of the constitutionally protected inherent and natural right of parents over their children.[35] Even when the parents are estranged and their affection for each other is lost, their attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts allow this affinity to suffer, absent any real, grave or imminent threat to the wellbeing of the child.

However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This provision contemplates a situation in which the parents of the minor are married to each other, but are separated either by virtue of a decree of legal separation or because they are living separately de facto. In the present case, it has been established that petitioner and Respondent Loreta were never married. Hence, that portion of the CA Decision allowing the child to choose which parent to live with is deleted, but without disregarding the obligation of petitioner to support the child. WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED with the MODIFICATION that the disposition allowing the child, upon reaching ten (10) years of age, to choose which parent to live with is DELETED for lack of legal basis. Costs against petitioner. SO ORDERED. Sandoval-Gutierrez, and Corona, JJ., concur. Carpio Morales , J., on leave. G. Hospitalization of Insane Persons - Rule 101 H. Habeas Corpus and other Writes - Rule 102 - Moncupa v. Enrile MONCUPA vs. ENRILE (G.R. No. L-63345 [1986] PHSC 23 (30 January 1986))

Facts:

Petitioner was arrested on the allegation that he was a National Democratic Front (NDF) staff member, a Presidential Commitment Order (PCO) was issued against him and eight (8) other persons. He was temporarily released on the condition that he cannot travel outside Metro Manila, change his residence, be interviewed by media, and have to report to the military.

Isuue: Whether or not habeas corpus can be availed of?

Ruling:

Habeas corpus is available not only for those who are in actual detention but even for those whose liberty is merely restrained. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-63345 January 30, 1986 EFREN C. MONCUPA, petitioner, vs. JUAN PONCE ENRILE, FABIAN C. VER, GALILEO KINTANAR, FERNANDO GOROSPE, AND JOSE CASTRO, respondents. Lorenzo M. Tanada, Jose W. Diokno and Joker Arroyo for petitioner,

GUTIERREZ, JR., J.: As early as 1919, in the leading case of Villavicencio v. Lukban (39 Phil. 778, 790), this Court ruled: A prime specification of al application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. ... This latitudinarian scope of the writ of habeas-corpus has, in law, remained undiminished up to the present. The respondents' contention that the petition has become moot and academic must necessarily be denied. Efren C. Moncupa may have been released from his detention cell. The restraints attached to his temporary release, however, preclude freedom of action and under the Villavicencio v. Lukban rule warrant this Court's inquiry into the nature of his involuntary restraint and our relieving him of such restraints as may be illegal. Petitioner Efren C. Moncupa, together with others, was arrested on April 22, 1982 at about 10:50 P.M., at the corner of D. Street and Quezon Avenue, Quezon City. Moncupa D. Tuazon was brought to MIG-15 Camp Bago Bantay, Quezon City where he was detained. On April 23, 1982, on the allegation that he was a National Democratic Front (NDF) staff member, a Presidential Commitment Order (PCO) was issued against him and eight (8) other persons. After two separate investigations, conducted first, by Lieutenant Colonel Gerardo Lantoria, Jr., Chief of Task Force Makabansa Investigation Group and second, by Investigating Fiscal Amado Costales of Quezon City, it was ascertained that the petitioner was not a member of any subversive organization. Both investigators recommended the prosecution of the petitioner only for illegal possession of firearms and illegal possession of subversive documents under Presidential Decree No. 33.

Consequently, two separate informations were filed against the petitioner, one, for illegal possession of firearms before the Court of First Instance of Rizal and the other for violation of P.D. 33 before the City Court of Quezon City. Against the other accused, however, the cases filed were for violation of P.D. 885 as amended. Significantly, the petitioner was excluded from the charge under the Revised Anti-Subversion Law. During the pendency of this petition, it is significant that his arraignment and further proceedings have not been pursued. And yet, the petitioner's motions for bail were denied by the lower court. Hence, the petitioner filed the instant petition. The respondents, in their return of the writ justified the validity of petitioner's detention on the ground that the privilege of the writ had been suspended as to the petitioner. However, on August 30, 1983, the respondents filed a motion to dismiss stating that on May 11, 1983, the petitioner was temporarily released from detention on orders of the Minister temporary of National Defense with the approval of the President. The respondents stated. "Since the petitioner is free and no longer under the custody of the respondents, the present petition for habeas corpus may be deemed moot and academic as in similar cases. The issue to be resolved is whether or not the instant petition has become moot and academic in view of the petitioner's temporary release. It is to be noted that attached to the petitioner's temporary release are restrictions imposed on him. These are: 1) His freedom of movement is curtailed by the condition that petitioner gets the approval of respondents for any travel outside Metro Manila. 2) His liberty of abode is restricted because prior approval of respondents is also required in case petitioner wants to change his place of residence. 3) His freedom of speech is muffled by the prohibition that he should not "participate in any interview conducted by any local or foreign mass media representatives nor give any press release or information that is inimical to the interest of national security." 4) He is required to report regularly to respondents or their representatives. The petitioner argues that although admittedly his temporary release is an improvement upon his actual detention, the restrictions imposed by the respondents constitute an involuntary and illegal restraint on his freedom. The petitioner stresses that his temporary release did not render the instant petitioner moot and academic but that "it merely shifted the inquiry from the legality of his actual detention to the legality of the conditions imposed by the respondents." We agree with the petitioner. The reservation of the military in the form of restrictions attached to the temporary release of the petitioner constitute restraints on the liberty of Mr. Moncupa. Such restrictions limit the freedom of movement of the petitioner. It is not physical restraint alone which is inquired into by the writ of habeas corpus. In Villavicencio v. Lukban, the women who had been illegally seized and transported against their will to Davao were no longer under any official restraint. Unlike petitioner Moncupa,

they were free to change their domicile without asking for official permission. Indeed, some of them managed to return to Manila. Yet, the Court condemned the involuntary restraints caused by the official action, fined the Mayor of Manila and expressed the hope that its "decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from Megal encroachment." In the light of the above ruling, the present petition for habeas corpus has not become moot and academic. Other precedents for such a conclusion are not wanting. The decision in Caunca v. Salazar (82 Phil. 851) states: An employment agency, regardless of the amount it may advance to a prospective employee or maid, has absolutely no power to curtail her freedom of movement. The fact that no physical force has been exerted to keep her in the house of the respondent does not make less real the deprivation of her personal freedom of movement, freedom to transfer from one place to another, from to choose one's residence. Freedom may be lost due to external moral compulsion, to founded or groundless fear, to erroneous belief in the existence of the will. If the actual effect of such psychological spell is to place a person at the mercy of another, the victim is entitled to the protection of courts of justice as much as the individual who is illigally deprived of liberty by deprived or physical coercion. In Tibo v. The Provincial Commander (85 SCRA 564), this Court ruled: Although the release in the custody of the Deputy Minister did not signify that petitioners could once again enjoy their full freedom, the application could have been dismissed, as it could be withdrawn by the parties themselves. That is a purely voluntary act. When the hearing was held on September 7, 1978, it turned out that counsel for petitioner Bonifacio V. Tupaz could have academic in a hasty manner when he set forth the above allegations in his manifestation of August 30, 1978, for Attorney Jose C. Espinas, who appeared for petitioners, while conceding that there was such a release from confinement, also alleged that it was conditioned on their restricting their activities as labor union leaders to the premises of the Trade Unions of the Philippines and ABSOLUTE Services, presumably in Macaraig as well as the Ministry of labor. As the voting was to take place in the business firm in Bataan, the acts set would nullify whatever efforts they could have exerted. To that extent, and with the prohibition against their going to Bataan, the restraint on liberty was undeniable. If so, the moot and academic character of the petition was far from clear. More recently, we had occasion to rule squarely on whether or not a temporary release from detention renders the petition for writ of habeas corpus moot and academic. As in this case of Moncupa, the petitioners in Toyoto, et al v. Hon. Fidel Ramos, et al, G.R. No. 69270, October 15, 1985, were temporarily released from detention. The respondents filed a motion to dismiss the petition for habeas corpus on the ground that the petitioners had been temporarily released and their case had, therefore, become moot and academic. The petitioners insisted, however, that their case may be considered moot and academic only "if their release would be permanent." In ruling for the petitioners, we said: Ordinarily, a petition for habeas corpus becomes moot and academic when the restraint on the liberty of the petitioners is lifted either temporarily or permanently. We have so held in a number of cases. But the instant case

presents a different situation. The question to be resolved is whether the State can reserve the power to re-arrest a person for an offense after a court of competent jurisdiction has absolved him of the offense. An affirmative answer is the one suggested by the respondents because the release of the petitioners being merely 'temporary' it follows that they can be re-arrested at anytime despite their acquittal by a court of competent jurisdiction. We hold that such a reservation is repugnant to the government of laws and not of men principle. Under this principle the moment a person is acquitted on a criminal charge he can no longer be detained or re-arrested for the same offense. This concept is so basic and elementary that it needs no elaboration. In effect the principle is clear. A release that renders a petition for a writ of habeas corpus moot and academic must be one which is free from involuntary restraints. Where a person continues to be unlawfully denied one or more of his constitutional freedoms, where there is present a denial of due process, where the restraints are not merely involuntary but appear to be unnecessary, and where a deprivation of freedom originally valid has, in the light of subsequent developments, become arbitrary, the person concerned or those applying in his behalf may still avail themselves of the privilege of the writ. The respondents have failed to show why the writ may not issue and why the restraints on the petitioner's freedom of movement should not be lifted. WHEREFORE, the PETITION is GRANTED. The conditions attached to the temporary release of the petitioner are declared null and void. The temporary release of the petitioner is declared ABSOLUTE. No costs, SO ORDERED. Teehankee, Concepcion, Jr., Abad Santos, Melencio-Herrera, Escolin De la Fuente, Cuevas, Alampay and Patajo, JJ., concur. Aquino, C.J., took no part. Plana, J., I reserve my vote. Olaguer v. Military Comission No. 34, 150 SCRA 144

In 1979, Olaguer and some others were detained by military personnel and they were placed in Camp Bagong Diwa. Logauer and his group are all civilians. They were charged with (1) unlawful possession of explosives and incendiary devices; (2) conspiracy to assassinate President and Mrs. Marcos; (3) conspiracy to assassinate cabinet members Juan Ponce Enrile, Francisco Tatad and Vicente Paterno; (4) conspiracy to assassinate Messrs. Arturo Tangco, Jose Roo and Onofre Corpus; (5) arson of nine buildings; (6) attempted murder of Messrs. Leonardo Perez, Teodoro Valencia and Generals Romeo Espino and Fabian Ver; and (7) conspiracy and proposal to commit rebellion, and inciting to rebellion. On August 19, 1980, the petitioners went to the SC and filed the instant Petition for prohibition and habeas corpus. ISSUE: Whether or not the petition for habeas corpus be granted. HELD: The petition for habeas corpus has become moot and academic because by the time the case reached the SC Olaguer and his companions were already released from military confinement. When the release of the persons in whose behalf the application for a writ of

habeas corpus was filed is effected, the Petition for the issuance of the writ becomes moot and academic. 18 Inasmuch as the herein petitioners have been released from their confinement in military detention centers, the instant Petitions for the issuance of a writ of habeas corpus should be dismissed for having become moot and academic. But the military court created to try the case of Olaguer (and the decision it rendered) still continues to subsist. ISSUE2: The issue is then shifted to: Whether or not a military tribunal has the jurisdiction to try civilians while the civil courts are open and functioning. HELD: The SC nullified for lack of jurisdiction all decisions rendered by the military courts or tribunals during the period of martial law in all cases involving civilian defendants. A military commission or tribunal cannot try and exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as long as the civil courts are open and functioning, and that any judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal concerned. People v. Simon Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 93028 July 29, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARTIN SIMON y SUNGA, respondent. The Solicitor General for plaintiff-appellee. Ricardo M.Sampang for accused-appellant.

REGALADO, J.: Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a violation of Section 4, Article II of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment alleging that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of marijuana to a Narcotics Command (NARCOM) poseurbuyer in consideration of the sum of P40.00, which tea bags, when subjected to laboratory examination, were found positive for marijuana. 1 Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his escape from Camp Olivas, San Fernando, Pampanga where he was temporarily

detained, 2 he pleaded not guilty. He voluntarily waived his right to a pre-trial conference, 3 after which trial on the merits ensued and was duly concluded. I The evidence on record shows that a confidential informant, later identified as a NARCOM operative, informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug activities of a certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding Officer of the 3rd Narcotics Regional Unit in the camp, then formed a buy-bust team composed of Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante, the team, together with their informant, proceeded to Sto. Cristo after they had coordinated with the police authorities and barangay officers thereof. When they reached the place, the confidential informer pointed out appellant to Lopez who consequently approached appellant and asked him if he had marijuana. Appellant answered in the affirmative and Lopez offered to buy two tea bags. Appellant then left and, upon returning shortly thereafter, handed to Lopez two marijuana tea bags and Lopez gave him the marked money amounting to P40.00 as payment. Lopez then scratched his head as a pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and the team closed in on them. Thereupon, Villaruz, who was the head of the backup team, arrested appellant. The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp Olivas on board a jeep and he was placed under custodial investigation, with Sgt. Pejoro as the investigator. 4 Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between Lopez and the appellant. He also averred that he was the one who confiscated the marijuana and took the marked money from appellant. 5 Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was stationed farthest from the rest of the other members, that is, around two hundred meters away from his companions. He did not actually see the sale that transpired between Lopez and appellant but he saw his teammates accosting appellant after the latter's arrest. He was likewise the one who conducted the custodial investigation of appellant wherein the latter was apprised of his rights to remain silent, to information and to counsel. Appellant, however, orally waived his right to counsel. 6 Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which appellant signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his possession. Pejoro likewise informed the court below that, originally, what he placed on the receipt was that only one marijuana leaf was confiscated in exchange for P20.00. However, Lopez and Villaruz corrected his entry by telling him to put "two", instead of "one" and "40", instead of "20". He agreed to the correction since they were the ones who were personally and directly involved in the purchase of the marijuana and the arrest of appellant. 7 Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day after the latter's apprehension, and the results were practically normal except for his relatively high blood pressure. The doctor also did not find any trace of physical injury on the person of appellant. The next day, he again examined appellant due to the latter's complaint of gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a history of peptic ulcer, which causes him to experience abdominal pain and consequently vomit blood. In the afternoon, appellant came back with the same complaint but, except for the gastro-intestinal pain, his physical condition remained normal. 8

As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day in question, at around 4:30 p.m., he was watching television with the members of his family in their house when three persons, whom he had never met before suddenly arrived. Relying on the assurance that they would just inquire about something from him at their detachment, appellant boarded a jeep with them. He was told that they were going to Camp Olivas, but he later noticed that they were taking a different route. While on board, he was told that he was a pusher so he attempted to alight from the jeep but he was handcuffed instead. When they finally reached the camp, he was ordered to sign some papers and, when he refused, he was boxed in the stomach eight or nine times by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on the documents presented to him. He denied knowledge of the P20.00 or the dried marijuana leaves, and insisted that the twenty-peso bill came from the pocket of Pejoro. Moreover, the reason why he vomited blood was because of the blows he suffered at the hands of Pejoro. He admitted having escaped from the NARCOM office but claimed that he did so since he could no longer endure the maltreatment to which he was being subjected. After escaping, he proceeded to the house of his uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30 or 7:30 p.m. There, he consulted a quack doctor and, later, he was accompanied by his sister to the Romana Pangan District Hospital at Floridablanca, Pampanga where he was confined for three days. 9 Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at Floridablanca, Pampanga after undergoing abdominal pain and vomiting of blood. He likewise confirmed that appellant had been suffering from peptic ulcer even before the latter's arrest. 10 Also, Dr. Evelyn Gomez-Aguas, a resident physician of Romana Pangan District Hospital, declared that she treated appellant for three days due to abdominal pain, but her examination revealed that the cause for this ailment was appellant's peptic ulcer. She did not see any sign of slight or serious external injury, abrasion or contusion on his body. 11 On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos and to pay the costs. The four tea bags of marijuana dried leaves were likewise ordered confiscated in favor of the Government. 12 Appellant now prays the Court to reverse the aforementioned judgment of the lower court, contending in his assignment of errors that the latter erred in (1) not upholding his defense of "frame-up", (2) not declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in evidence, and (3) convicting him of a violation of the Dangerous Drugs Act. 13 At the outset, it should be noted that while the People's real theory and evidence is to the effect the appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea bags were merely confiscated subsequently from his possession, 14 the latter not being in any way connected with the sale, the information alleges that he sold and delivered four tea bags of marijuana dried leaves. 15 In view thereof, the issue presented for resolution in this appeal is merely the act of selling the two tea bags allegedly committed by appellant, and does not include the disparate and distinct issue of illegal possession of the other two tea bags which separate offense is not charged herein. 16 To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably established. 17 To sell means to give, whether for money or any other material consideration. 18 It must, therefore, be established beyond doubt that appellant actually sold and delivered two tea bags of marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two twenty-peso bills.

After an assiduous review and calibration of the evidence adduced by both parties, we are morally certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. The prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as to how the sale took place and his testimony was amply corroborated by his teammates. As between the straightforward, positive and corroborated testimony of Lopez and the bare denials and negative testimony of appellant, the former undeniably deserves greater weight and is more entitled to credence. We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is susceptible to mistake, harassment, extortion and abuse. 19 Nonetheless, such causes for judicial apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not effected in a haphazard way, for a surveillance was conducted by the team before the buy-bust operation was effected. 20 No ill motive was or could be attributed to them, aside from the fact that they are presumed to have regularly performed their official duty. 21 Such lack of dubious motive coupled with the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, should prevail over the self-serving and uncorroborated claim of appellant of having been framed, 22 erected as it is upon the mere shifting sands of an alibi. To top it all, appellant was caught red-handed delivering prohibited drugs, and while there was a delimited chance for him to controvert the charge, he does not appear to have plausibly done so. When the drug seized was submitted to the Crime Laboratory Service of the then Philippine Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn Salangad, a forensic chemist therein, 23 confirmed in her Technical Report No. NB448-88 that the contents of the four tea bags confiscated from appellant were positive for and had a total weight of 3.8 grams of marijuana. 24 Thus, the corpus delicti of the crime had been fully proved with certainty and conclusiveness. 25 Appellant would want to make capital of the alleged inconsistencies and improbabilities in the testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had nothing to do with the confiscation of the marijuana, but in the aforementioned "Receipt of Property Seized/Confiscated," he signed it as the one who seized the same. 26 Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really matter since such is not an element of the offense with which appellant is charged. What is unmistakably clear is that the marijuana was confiscated from the possession of appellant. Even, assuming arguendo that the prosecution committed an error on who actually seized the marijuana from appellant, such an error or discrepancy refers only to a minor matter and, as such, neither impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses' honesty. 27 Besides, there was clearly a mere imprecision of language since Pejoro obviously meant that he did not take part in the physical taking of the drug from the person of appellant, but he participated in the legal seizure or confiscation thereof as the investigator of their unit. Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were not powdered for finger-printing purposes contrary to the normal procedure in buy-bust operations. 28 This omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows:

Q: Is it the standard operating procedure of your unit that in conducting such operation you do not anymore provide a powder (sic) on the object so as to determine the thumbmark or identity of the persons taking hold of the object? A: We were not able to put powder on these denominations because we are lacking that kind of material in our office since that item can be purchased only in Manila and only few are producing that, sir. xxx xxx xxx Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory, CIS, as well as the office of NICA? A: Our office is only adjacent to those offices but we cannot make a request for that powder because they, themselves, are using that in their own work, sir. 29 The foregoing explanation aside, we agree that the failure to mark the money bills used for entrapment purposes can under no mode of rationalization be fatal to the case of the prosecution because the Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions." 30 The dusting of said bills with phosphorescent powder is only an evidentiary technique for identification purposes, which identification can be supplied by other species of evidence. Again, appellant contends that there was neither a relative of his nor any barangay official or civilian to witness the seizure. He decries the lack of pictures taken before, during and after his arrest. Moreover, he was not reported to or booked in the custody of any barangay official or police authorities. 31 These are absurd disputations. No law or jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a relative, a barangay official or any other civilian, or be accompanied by the taking of pictures. On the contrary, the police enforcers having caught appellant in flagrante delicto, they were not only authorized but were also under the obligation to effect a warrantless arrest and seizure. Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in connection with his apprehension. Said Booking Sheet and Arrest Report 32 states, inter alia, that "suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the confiscation of another two tea bags of suspected marijuana dried leaves." Below these remarks was affixed appellant's signature. In the same manner, the receipt for the seized property, hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of the marked bills from him. 33 However, we find and hereby declare the aforementioned exhibits inadmissible in evidence. Appellant's conformance to these documents are declarations against interest and tacit admissions of the crime charged. They were obtained in violation of his right as a person under custodial investigation for the commission of an offense, there being nothing in the records to show that he was assisted by counsel. 34 Although appellant manifested during the custodial investigation that he waived his right to counsel, the waiver was not made in writing and in the presence of counsel, 35 hence whatever incriminatory admission or confession may be extracted from him, either verbally or in writing, is not allowable in evidence. 36 Besides, the arrest report is self-serving and hearsay and can easily be concocted to implicate a suspect.

Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated from his predicament since his criminal participation in the illegal sale of marijuana has been sufficiently proven. The commission of the offense of illegal sale of prohibited drugs requires merely the consummation of the selling transaction 37 which happens the moment the buyer receives the drug from the seller. 38 In the present case, and in light of the preceding discussion, this sale has been ascertained beyond any peradventure of doubt. Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger. 39 We take this opportunity to once again reiterate the doctrinal rule that drugpushing, when done on a small scale as in this case, belongs to that class of crimes that may be committed at any time and in any place. 40 It is not contrary to human experience for a drug pusher to sell to a total stranger, 41 for what matters is not an existing familiarity between the buyer and seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves. 42 While there may be instances where such sale could be improbable, taking into consideration the diverse circumstances of person, time and place, as well as the incredibility of how the accused supposedly acted on that occasion, we can safely say that those exceptional particulars are not present in this case. Finally, appellant contends that he was subjected to physical and mental torture by the arresting officers which caused him to escape from Camp Olivas the night he was placed under custody. 43 This he asserts to support his explanation as to how his signatures on the documents earlier discussed were supposedly obtained by force and coercion. The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must not only proceed from the mouth of a credible witness but must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. 44 The evidence on record is bereft of any support for appellant's allegation of maltreatment. Two doctors, one for the prosecution 45 and the other for the defense, 46 testified on the absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the person of appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from which he had been suffering even before his arrest. 47 His own brother even corroborated that fact, saying that appellant has had a history of bleeding peptic ulcer. 48 Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever for not divulging the same to his brother who went to see him at the camp after his arrest and during his detention there. 49 Significantly, he also did not even report the matter to the authorities nor file appropriate charges against the alleged malefactors despite the opportunity to do so 50 and with the legal services of counsel being available to him. Such omissions funnel down to the conclusion that appellant's story is a pure fabrication. These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless and premeditated for the NARCOM agents were determined to arrest him at all costs. 51 Premeditated or not, appellant's arrest was only the culmination, the final act needed for his isolation from society and it was providential that it came about after he was caught in the very act of illicit trade of prohibited drugs. Accordingly, this opinion could have concluded on a note of affirmance of the judgment of the trial court. However, Republic Act No. 6425, as amended, was further amended by Republic Act No. 7659 effective December 31, 1993, 52 which supervenience necessarily affects the original disposition of this case and entails additional questions of law which we shall now resolve. II

The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are to this effect: Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, are hereby amended to read as follows: xxx xxx xxx Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs . The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. xxx xxx xxx Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, is hereby amended to read as follows: Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instrument of the Crime. The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: xxx xxx xxx 5. 750 grams or more of indian hemp or marijuana xxx xxx xxx Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. 1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic Act No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder, pursuant to Article 22 of the Revised Penal Code. Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in substitution of the previous Articles 190 to 194 of the Revised Penal Code, 53 it has long been settled that by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to and shall be given retrospective effect to crimes punished by special laws. 54 The execution in said article would not apply to those convicted of drug offenses since habitual delinquency refers to convictions for the third time or more of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification. 55 Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been involved nor invoked in the present case, a corollary question would be whether this court, at the present stage, can sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on

appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus: . . . . The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty. If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659 has already become final and executory or the accused is serving sentence thereunder, then practice, procedure and pragmatic considerations would warrant and necessitate the matter being brought to the judicial authorities for relief under a writ of habeas corpus. 56 2. Probably through oversight, an error on the matter of imposable penalties appears to have been committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial reconciliation and craftsmanship. As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended, imposes the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That penalty, according to the amendment to Section 20 of the law, shall be applied if what is involved is 750 grams or more of indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. In other words, there is here an overlapping error in the provisions on the penalty of reclusion perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750 grams, and also as the minimum of the penalty where the marijuana involved is 750 grams or more. The same error has been committed with respect to the other prohibited and regulated drugs provided in said Section 20. To harmonize such conflicting provisions in order to give effect to the whole law, 57 we hereby hold that the penalty to be imposed where the quantity of the drugs involved is less than the quantities stated in the first paragraph shall range from prision correccional to reclusion temporal, and not reclusion perpetua. This is also concordant with the fundamental rule in criminal law that all doubts should be construed in a manner favorable to the accused. 3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by the imposable range of penalties under the second paragraph of Section 20, as now modified, the law provides that the penalty shall be taken from said range " depending upon the quantity" of the drug involved in the case. The penalty in said second paragraph constitutes a complex one composed of three distinct penalties, that is, prision correccional, prision mayor, and reclusion temporal. In such a situation, the Code provides that each one shall form a period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum period. 58 Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances determine which period of such complex penalty shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is its specific mandate, above quoted, that the penalty shall instead depend upon the quantity of the drug subject of the criminal transaction. 59 Accordingly, by way of exception to Article 77 of the Code and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid component penalties shall be considered as a principal

imposable penalty depending on the quantity of the drug involved. Thereby, the modifying circumstances will not altogether be disregarded. Since each component penalty of the total complex penalty will have to be imposed separately as determined by the quantity of the drug involved, then the modifying circumstances can be used to fix the proper period of that component penalty, as shall hereafter be explained. It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid disposition thereon that, unless there are compelling reasons for a deviation, the quantities of the drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and double or treble the same, to be respectively the bases for allocating the penalty proportionately among the three aforesaid periods according to the severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to 499 grams, prision mayor; and 500 to 749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the penalty is reclusion perpetua to death. 60 Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of prision correccional is consequently indicated but, again, another preliminary and cognate issue has first to be resolved. 4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it consists of three periods as provided in the text of and illustrated in the table provided by Article 76 of the Code. The question is whether or not in determining the penalty to be imposed, which is here to be taken from the penalty of prision correccional, the presence or absence of mitigating, aggravating or other circumstances modifying criminal liability should be taken into account. We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code cannot and should not be applied. A review of such doctrines as applied in said cases, however, reveals that the reason therefor was because the special laws involved provided their own specific penalties for the offenses punished thereunder, and which penalties were not taken from or with reference to those in the Revised Penal Code. Since the penalties then provided by the special laws concerned did not provide for the minimum, medium or maximum periods, it would consequently be impossible to consider the aforestated modifying circumstances whose main function is to determine the period of the penalty in accordance with the rules in Article 64 of the Code. This is also the rationale for the holding in previous cases that the provisions of the Code on the graduation of penalties by degrees could not be given supplementary application to special laws, since the penalties in the latter were not components of or contemplated in the scale of penalties provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former, cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the special law against, such supplementary application. The situation, however, is different where although the offense is defined in and ostensibly punished under a special law, the penalty therefor is actually taken from the Revised Penal Code in its technical nomenclature and, necessarily, with its duration, correlation and legal effects under the system of penalties native to said Code. When, as in this case, the law involved speaks of prision correccional, in its technical sense under the Code, it would consequently be both illogical and absurd to posit otherwise. More on this later.

For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425, as amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period thereof pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or aggravating circumstance. 5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed for offenses under special laws would be necessary. Originally, those special laws, just as was the conventional practice in the United States but differently from the penalties provided in our Revised Penal Code and its Spanish origins, provided for one specific penalty or a range of penalties with definitive durations, such as imprisonment for one year or for one to five years but without division into periods or any technical statutory cognomen. This is the special law contemplated in and referred to at the time laws like the Indeterminate Sentence Law 61 were passed during the American regime. Subsequently, a different pattern emerged whereby a special law would direct that an offense thereunder shall be punished under the Revised Penal Code and in the same manner provided therein. Inceptively, for instance, Commonwealth Act No. 303 62 penalizing nonpayment of salaries and wages with the periodicity prescribed therein, provided: Sec. 4. Failure of the employer to pay his employee or laborer as required by section one of this Act, shall prima facie be considered a fraud committed by such employer against his employee or laborer by means of false pretenses similar to those mentioned in article three hundred and fifteen, paragraph four, sub-paragraph two (a) of the Revised Penal Code and shall be punished in the same manner as therein provided. 63 Thereafter, special laws were enacted where the offenses defined therein were specifically punished by the penalties as technically named and understood in the Revised Penal Code. These are exemplified by Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged from arresto mayor to death; 64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto mayor to prision mayor; and Presidential Decree No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor may involve prision mayor, reclusion temporal, reclusion perpetua or death. Another variant worth mentioning is Republic Act No. 6539 (Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8 months and not more than 17 years and 4 months, when committed without violence or intimidation of persons or force upon things; not less than 17 years and 4 months and not more than 30 years, when committed with violence against or intimidation of any person, or force upon things; and life imprisonment to death, when the owner, driver or occupant of the carnapped vehicle is killed. With respect to the first example, where the penalties under the special law are different from and are without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules for the application of penalties under said Code or by other relevant statutory provisions based on or applicable only to said rules for felonies under the Code. In this type of special law, the legislative intendment is clear. The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the

qualifying circumstances stated in the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same formulation. On the other hand, the rules for the application of penalties and the correlative effects thereof under the Revised Penal Code, as well as other statutory enactments founded upon and applicable to such provisions of the Code, have suppletory effect to the penalties under the former Republic Act No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are special laws, the fact that the penalties for offenses thereunder are those provided for in the Revised Penal code lucidly reveals the statutory intent to give the related provisions on penalties for felonies under the Code the corresponding application to said special laws, in the absence of any express or implicit proscription in these special laws. To hold otherwise would be to sanction an indefensible judicial truncation of an integrated system of penalties under the Code and its allied legislation, which could never have been the intendment of Congress. In People vs. Macatanda, 65 a prosecution under a special law (Presidential Decree No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974), it was contended by the prosecution that Article 64, paragraph 5, of the Revised Penal Code should not apply to said special law. We said therein that We do not agree with the Solicitor General that P.D. 533 is a special law entirely distinct from and unrelated to the Revised Penal Code. From the nature of the penalty imposed which is in terms of the classification and duration of penalties as prescribed in the Revised Penal Code, which is not for penalties as are ordinarily imposed in special laws, the intent seems clear that P.D. 533 shall be deemed as an amendment of the Revised Penal Code, with respect to the offense of theft of large cattle (Art. 310) or otherwise to be subject to applicable provisions thereof such as Article 104 of the Revised Penal Code . . . . Article 64 of the same Code should, likewise, be applicable, . . . . (Emphasis supplied.) More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal Code to Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more recent pronouncement: . . . Pointing out that as provided in Article 10 the provisions of the Revised Penal Code shall be "supplementary" to special laws, this Court held that where the special law expressly grants to the court discretion in applying the penalty prescribed for the offense, there is no room for the application of the provisions of the Code . . . . The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit grant of discretion to the Court in the application of the penalty prescribed by the law. In such case, the court must be guided by the rules prescribed by the Revised Penal Code concerning the application of penalties which distill the "deep legal thought and centuries of experience in the administration of criminal laws." (Emphasis ours.) 66 Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties defined in and constituting integral parts of the three scales of penalties in the Code, 67 with much more reason should the provisions of said Code on the appreciation and effects of all attendant modifying circumstances apply in fixing the penalty. Likewise, the different kinds or classifications of penalties and the rules for graduating such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if they would result in absurdities as will now be explained.

While not squarely in issue in this case, but because this aspect is involved in the discussion on the role of modifying circumstances, we have perforce to lay down the caveat that mitigating circumstances should be considered and applied only if they affect the periods and the degrees of the penalties within rational limits. Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article 71, are the stage of execution of the crime and the nature of the participation of the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not apply in toto in the determination of the proper penalty under the aforestated second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been contemplated by the legislature. Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist of as many penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since the complex penalty in this case consists of three discrete penalties in their full extent, that is, prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two degrees, which must each likewise consist of three penalties, since only the penalties of fine and public censure remain in the scale. The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order not to depreciate the seriousness of drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution cannot be forged from an imperfect law, which impasse should now be the concern of and is accordingly addressed to Congress. 6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does, since drug offenses are not included in nor has appellant committed any act which would put him within the exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment. 68 The more important aspect, however, is how the indeterminate sentence shall be ascertained. It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not

taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified under the rule of contemporanea expositio. 69 We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence with their technical signification and effects. In fact, for purposes of determining the maximum of said sentence, we have applied the provisions of the amended Section 20 of said law to arrive at prision correccional and Article 64 of the Code to impose the same in the medium period. Such offense, although provided for in a special law, is now in effect punished by and under the Revised Penal Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section 1 which directs that "in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." (Emphasis ours.) A divergent pedantic application would not only be out of context but also an admission of the hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only skin-deep in its construction of Act. No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted of offenses punished with death penalty or life imprisonment," we have held that what is considered is the penalty actually imposed and not the penalty imposable under the law, 70 and that reclusion perpetua is likewise embraced therein although what the law states is "life imprisonment". What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of the principles of literal interpretation, which have been rationalized by comparative decisions of this Court; of historical interpretation, as explicated by the antecedents of the law and related contemporaneous legislation; and of structural interpretation, considering the interrelation of the penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it follows that the minimum of the indeterminate sentence in this case shall be the penalty next lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of interpretation.
71

The indeterminate Sentence Law is a legal and social measure of compassion, and should be liberally interpreted in favor of the accused. 72 The "minimum" sentence is merely a period at which, and not before, as a matter of grace and not of right, the prisoner may merely be allowed to serve the balance of his sentence outside of his confinement. 73 It does not constitute the totality of the penalty since thereafter he still has to continue serving the rest

of his sentence under set conditions. That minimum is only the period when the convict's eligibility for parole may be considered. In fact, his release on parole may readily be denied if he is found unworthy thereof, or his reincarceration may be ordered on legal grounds, even if he has served the minimum sentence. It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision correccional which is the maximum range we have fixed through the application of Articles 61 and 71 of the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6 months of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference, which could thereby even involve only one day, is hardly worth the creation of an overrated tempest in the judicial teapot. ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court a quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION that he should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months of arresto mayor, as the minimum, to six (6) years of prision correccional, as the maximum thereof. SO ORDERED. Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza, JJ., concur. Bellosillo, J., is on leave.

Separate Opinions

DAVIDE, JR., J., concurring and dissenting: I am still unable to agree with the view that (a) in appropriate cases where the penalty to be imposed would be prision correccional pursuant to the second paragraph of Section 20 of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the Indeterminate Sentence Law (Act No. 4103, as amended), should be that whose minimum is within the range of the penalty next lower, i.e., arresto mayor; and (b) the presence of two or more mitigating circumstances not offset by any mitigating circumstances or of a privileged mitigating circumstance shall not reduce the penalty by one or two degrees if the penalty to be imposed, taking into account the quantity of the dangerous drugs involved, would be prision correccional. I The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence also their

technical signification and effects, then what should govern is the first part of Section 1 of the Indeterminate Sentence Law which directs that: in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses would now be considered as punished under the Revised Penal Code for purposes of the Indeterminate Sentence Law. Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and R.A. No. 4203) also provides that: if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum prescribed by the same (Emphasis supplied). There are, therefore, two categories of offenses which should be taken into account in the application of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code, and (2) offenses punished by other laws (or special laws). The offenses punished by the Revised Penal Code are those defined and penalized in Book II thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime and is punished by a penalty which is included in the classification of Penalties in Chapter II, Title III of Book I thereof. On the other hand, an offense is considered punished under any other law (or special law) if it is not defined and penalized by the Revised Penal Code but by such other law. It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the penalty therefor are found in the said Code, and it is deemed punished by a special law if its definition and the penalty therefor are found in the special law. That the latter imports or borrows from the Revised Penal Code its nomenclature of penalties does not make an offense in the special law punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still the special law that defines the offense and imposes a penalty therefor, although it adopts the Code's nomenclature of penalties. In short, the mere use by a special law of a penalty found in the Revised Penal Code can by no means make an offense thereunder an offense "punished or punishable" by the Revised Penal Code. Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed by the Revised Penal Code in drug cases, offenses related to drugs should now be considered as punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably, to declare that such offenses are mala in se and to apply the Articles of the Revised Penal Code regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory penalties (Articles 40-45), application of penalties to principals, accomplices, and accessories (Article 46 et seq.), complex crimes (Article 48),

and graduation of penalties (Article 61), among others. We cannot do otherwise without being drawn to an inconsistent posture which is extremely hard to justify. I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the Revised Penal Code does not make an offense under the Dangerous Drugs Act an offense punished by the Revised Penal Code. Consequently, where the proper penalty to be imposed under Section 20 of the Dangerous Drugs Act is prision correccional, then, applying the Indeterminate Sentence Law, the indeterminate sentence to be meted on the accused should be that whose minimum should not be less than the minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not lower than six (6) months and one (1) day of prision correccional. II The majority opinion holds the view that while the penalty provided for in Section 20 of the Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision correccional, prision mayor, and reclusion temporal, and that pursuant to Article 77 of the Revised Penal Code, each should form a period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum, yet, considering that under the said second paragraph of Section 20 the penalty depends on the quantity of the drug subject of the criminal transaction, then by way of exception to Article 77 of the Revised Penal Code and to subserve the purpose of Section 20, as amended, each of the aforesaid component penalties shall be considered as a principal penalty depending on the quantity of the drug involved. Thereafter, applying the modifying circumstances pursuant to Article 64 of the Revised Penal Code, the proper period of the component penalty shall then be fixed. To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper principal penalty should be prision correccional, but there is one mitigating and no aggravating circumstance, then the penalty to be imposed should be prision correccional in its minimum period. Yet, the majority opinion puts a limit to such a rule. It declares: The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order to depreciate the seriousness of drug offenses. Simply put, this rule would allow the reduction from reclusion temporal if it is the penalty to be imposed on the basis of the quantity of the drugs involved by two degrees, or to prision correccional, if there are two or more mitigating circumstances and no aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there is a privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be imposed is prision mayor, regardless of the fact that a reduction by two degrees is proper, it should only be reduced by one degree because the rule does not allow a reduction beyond prision correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at all would be allowed. I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same second paragraph involving the same range of penalty, we both allow and disallow the

application of Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing because Section 20 of the Dangerous Drugs Act, as amended by R.A. No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis for the determination of the proper penalty and limiting fine only to cases punishable by reclusion perpetua to death. It is unfair because an accused who is found guilty of possessing MORE dangerous drugs say 500 to 749 grams of marijuana, in which case the penalty to be imposed would be reclusion temporal may only be sentenced to six (6) months and one (1) day of prision correccional minimum because of privileged mitigating circumstances. Yet, an accused who is found guilty of possession of only one (1) gram of marijuana in which case the penalty to be imposed is prision correccional would not be entitled to a reduction thereof even if he has the same number of privileged mitigating circumstances as the former has. Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he is entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised Penal Code, which reads: Art. 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraph next to the last of Article 80 of this Code, the following rules shall be observed: Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed. Upon a person over fifteen and under eighteen years of age the penalty next lover than that prescribed by law shall be imposed, but always in the proper period. I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in one aspect and not to apply it in another. Feliciano and Quiason, JJ., concur.

Separate Opinions

DAVIDE, JR., J., concurring and dissenting: I am still unable to agree with the view that (a) in appropriate cases where the penalty to be imposed would be prision correccional pursuant to the second paragraph of Section 20 of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the Indeterminate Sentence Law (Act No. 4103, as amended), should be that whose minimum is within the range of the penalty next lower, i.e., arresto mayor; and (b) the presence of two or more mitigating circumstances not offset by any mitigating circumstances or of a privileged mitigating circumstance shall not reduce the penalty by one or two degrees if the penalty to be imposed, taking into account the quantity of the dangerous drugs involved, would be prision correccional.

I The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence also their technical signification and effects, then what should govern is the first part of Section 1 of the Indeterminate Sentence Law which directs that: in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses would now be considered as punished under the Revised Penal Code for purposes of the Indeterminate Sentence Law. Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and R.A. No. 4203) also provides that: if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum prescribed by the same (Emphasis supplied). There are, therefore, two categories of offenses which should be taken into account in the application of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code, and (2) offenses punished by other laws (or special laws). The offenses punished by the Revised Penal Code are those defined and penalized in Book II thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime and is punished by a penalty which is included in the classification of Penalties in Chapter II, Title III of Book I thereof. On the other hand, an offense is considered punished under any other law (or special law) if it is not defined and penalized by the Revised Penal Code but by such other law. It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the penalty therefor are found in the said Code, and it is deemed punished by a special law if its definition and the penalty therefor are found in the special law. That the latter imports or borrows from the Revised Penal Code its nomenclature of penalties does not make an offense in the special law punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still the special law that defines the offense and imposes a penalty therefor, although it adopts the Code's nomenclature of penalties. In short, the mere use by a special law of a penalty found in the Revised Penal Code can by no means make an offense thereunder an offense "punished or punishable" by the Revised Penal Code. Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed by the Revised Penal Code in drug cases, offenses related to drugs should now be considered as punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably, to declare that such offenses are mala in se and to apply the Articles of

the Revised Penal Code regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory penalties (Articles 40-45), application of penalties to principals, accomplices, and accessories (Article 46 et seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among others. We cannot do otherwise without being drawn to an inconsistent posture which is extremely hard to justify. I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the Revised Penal Code does not make an offense under the Dangerous Drugs Act an offense punished by the Revised Penal Code. Consequently, where the proper penalty to be imposed under Section 20 of the Dangerous Drugs Act is prision correccional, then, applying the Indeterminate Sentence Law, the indeterminate sentence to be meted on the accused should be that whose minimum should not be less than the minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not lower than six (6) months and one (1) day of prision correccional. II The majority opinion holds the view that while the penalty provided for in Section 20 of the Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision correccional, prision mayor, and reclusion temporal, and that pursuant to Article 77 of the Revised Penal Code, each should form a period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum, yet, considering that under the said second paragraph of Section 20 the penalty depends on the quantity of the drug subject of the criminal transaction, then by way of exception to Article 77 of the Revised Penal Code and to subserve the purpose of Section 20, as amended, each of the aforesaid component penalties shall be considered as a principal penalty depending on the quantity of the drug involved. Thereafter, applying the modifying circumstances pursuant to Article 64 of the Revised Penal Code, the proper period of the component penalty shall then be fixed. To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper principal penalty should be prision correccional, but there is one mitigating and no aggravating circumstance, then the penalty to be imposed should be prision correccional in its minimum period. Yet, the majority opinion puts a limit to such a rule. It declares: The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order to depreciate the seriousness of drug offenses. Simply put, this rule would allow the reduction from reclusion temporal if it is the penalty to be imposed on the basis of the quantity of the drugs involved by two degrees, or to prision correccional, if there are two or more mitigating circumstances and no aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there is a privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be imposed is prision mayor, regardless of the fact that a reduction by two degrees is proper, it should only be reduced by one degree because the rule does not allow a reduction beyond prision correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at all would be allowed.

I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same second paragraph involving the same range of penalty, we both allow and disallow the application of Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing because Section 20 of the Dangerous Drugs Act, as amended by R.A. No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis for the determination of the proper penalty and limiting fine only to cases punishable by reclusion perpetua to death. It is unfair because an accused who is found guilty of possessing MORE dangerous drugs say 500 to 749 grams of marijuana, in which case the penalty to be imposed would be reclusion temporal may only be sentenced to six (6) months and one (1) day of prision correccional minimum because of privileged mitigating circumstances. Yet, an accused who is found guilty of possession of only one (1) gram of marijuana in which case the penalty to be imposed is prision correccional would not be entitled to a reduction thereof even if he has the same number of privileged mitigating circumstances as the former has. Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he is entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised Penal Code, which reads: Art. 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraph next to the last of Article 80 of this Code, the following rules shall be observed: Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed. Upon a person over fifteen and under eighteen years of age the penalty next lover than that prescribed by law shall be imposed, but always in the proper period. I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in one aspect and not to apply it in another. Feliciano and Quiason, JJ., concur. Paredes v. Sandiganbayan

On 23 Jan 1990, Gelacio, the then vice mayor of San Francisco, Agusan del Sur filed a case against Paredes (who was then the governor of the same province), Atty. Sansaet (counsel of Paredes), and Honrada (the clerk of court). The three allegedly conspired to falsify a copy of a Notice of Arraignment and of the Transcript of Stenographic Notes. Gelacio claimed that, in fact, no arraignment has ever been issued against him in a criminal proceeding against him. Gelacio was able to produce a certification from the judge handling the case himself that the criminal case against him never reached the arraignment stage because the prosecution was dismissed. Atty. Sansaet on his part maintained that there was indeed a Notice of Arraignment but he later retracted his testimonies. Paredes claimed that Sansaet only changed his side because of political realignment. Subsequently, the Office of the Ombudsman recommended that Paredes et al be charged with Falsification of Public Documents. Paredes appealed but was eventually denied by the Sandiganbayan.

ISSUE: Whether or not Paredes, now a member of Congress, be suspended by order of the Sandiganbayan. HELD: The Supreme Court affirmed the order of suspension of Congressman Paredes by the Sandiganbayan, despite his protestations on the encroachment by the court on the prerogatives of congress. The SC ruled: x x x. Petitioners invocation of Section 16 (3), Article VI of the Constitution which deals with the power of each House of Congress inter alia to punish its Members for disorderly behavior, and suspend or expel a Member by a vote of two-thirds of all its Members subject to the qualification that the penalty of suspension, when imposed, should not exceed sixty days is unavailing, as it appears to be quite distinct from the suspension spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary, preventive measure, prescinding from the fact that the latter is not being imposed on petitioner for misbehavior as a Member of the House of Representatives. Galvez v. CA Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 114046 October 24, 1994 HONORATO GALVEZ and GODOFREDO DIEGO, petitioners, vs. COURT OF APPEALS (17TH DIVISION), First Asst. Provincial Prosecutor. DENNIS M. VILLA-IGNACIO of Pasig, Rizal; THE PEOPLE OF THE PHILIPPINES; and PNP P/SR. SUPT. RICARDO F. DE LEON, Camp Commander and Head of the PNP Custodial Group, Camp Crame, Cubao, Quezon City, respondents. Emerito M. Salva & Associates; Juanito L. Andrade; and Lazaro Law Firm for petitioners.

REGALADO, J.: Submitted for resolution in the present special civil action are: (1) the basic petition for certiorari and mandamus with a petition for habeas corpus, to review the resolution issued by respondent Court of Appeals, dated February 18, 1994, in CA-G.R. SP No. 33261; 1 (2) the Urgent Motion 2 and Supplemental Urgent Motion 3 for Immediate Action on Petition for Habeas corpus; and (3) the Urgent Petition to Declare Judge Jaime N. Salazar, Jr. and First Assistant Provincial Prosecutor Dennis M. Villa-Ignacio for Contempt and to Annul Proceedings (with Immediate Prayer for another Cease and Desist Order). 4 On November 12, 1993, petitioners Honorato Galvez, the incumbent Mayor of San Ildefonso, Bulacan, and one Godofredo Diego were charged in three separate informations with homicide and two counts of frustrated homicide fot has been the rule that under the first

paragraph of Section 14, Rule 110, the amendment of the information may also be made even if it may result in altering the nature of the charge so long as it Regional Trial Court of Malolos, Bulacan, Branch 14, and docketed as Criminal Cases Nos. 3642-M-93 to 3644-M-93. 5 Both accused posted their respective cash bail bonds and were subsequently released from detention. On November 15, 1993, Bulacan Provincial Prosecutor Liberato L. Reyes filed a Motion to Defer Arraignment and Subsequent Proceedings to enable him "to review the evidence on record and determine once more the proper crimes chargeable against the accused," 6 which was granted by Judge Villajuan in an order dated November 16, 1993. 7 Thereafter, pursuant to Department Order No. 369 of the Department of Justice, respondent Prosecutor Dennis M. Villa-Ignacio was designated Acting Provincial Prosecutor of Bulacan and was instructed to conduct a re-investigation of the aforesaid criminal cases filed against herein petitioners. 8 By virtue of a Manifestation with Ex-parte Motion dated November 23, 1993 9 filed by respondent prosecutor, the proceedings were again ordered suspended by Judge Villajuan until after the prosecution's request for change of venue shall have been resolved by the Supreme Court, and the preliminary investigation being conducted by the former shall have been terminated. 10 It appears that on December 2, 1993, private complainants, through their counsel, Atty. Silvestre R. Bello III, had filed with the Supreme Court a Petition for Change of Venue of Criminal Cases Nos. 3642-M-93 to 3644-M-93, purportedly to safeguard the lives of the victims and their witnesses, and to prevent a miscarriage of justice. 11 On December 15, 1993, before petitioners could be arraigned in Criminal Cases Nos. 3642M-93 to 3644-M-93, respondent prosecutor filed an Ex parte Motion to Withdraw Informations in said cases. 12 This motion was granted by Judge Villajuan also on December 15, 1993 and the cases were considered withdrawn from the docket of the court. 13 On the same day, Prosecutor Villa-Ignacio filed four new informations against herein petitioners for murder, two counts of frustrated murder, and violation of Presidential Decree No. 1866 for illegal possession of firearms 14 which were subsequently raffled to the sala of Judge Victoria Pornillos of Branch 10, Regional Trial Court of Malolos, Bulacan and were docketed therein as Criminal Cases Nos. 4004-M-93 to 4007-M-93. No bail having been recommended for the crime of murder, Judge Pornillos ordered the arrest of herein petitioners. 15 On December 23, 1993, said presiding judge issued an order setting the arraignment of the accused for December 27, 1993. 16 On December 27, 1993, the scheduled arraignment before Judge Pornillos were reset due to the absence of respondent prosecutor. On even date, petitioners filed before Judge Villajuan a Motion for Reconsideration of his order of December 15, 1993 which granted the motion to withdraw the original informations. 17 Thereafter, a Motion to Quash the new informations for lack of jurisdiction was filed by petitioners before Judge Pornillos on January 3, 1994. 18 At the court session set for the arraignment of petitioners on January 24, 1994, Judge Pornillos issued an order denying the motion to quash and, at the same time, directed that a plea of not guilty be entered for petitioners when the latter refused to enter their plea. 19 In the meantime, and prior to the arraignment of herein petitioners before Judge Pornillos, an order was issued on January 20, 1994 by Judge Villajuan granting the motion for reconsideration filed by petitioners, ordering the reinstatement of Criminal Cases Nos. 3642M-93 to 3644-M-93, and setting the arraignment of the accused therein for February 8, 1994. 20 On said date, however, the arraignment was suspended and, in the meanwhile, petitioners filed a petition for certiorari, prohibition and mandamus with respondent Court of Appeals, assailing the order dated January 24, 1994 issued by Judge Pornillos which denied

petitioners' motion to quash filed in Criminal Cases Nos. 4004-M-93 and 4007-M-93. As earlier stated, respondent court dismissed the petition in its questioned resolution of February 18, 1994, hence this petition. I. On the Main Petition The main issue in this case involves a determination of the set of informations under which herein petitioners should be tried, that is, (a) the first set of informations for homicide and frustrated homicide in Criminal Cases Nos. 3642-M-93 to 3644-M-93, or (b) the subsequent informations for murder, frustrated murder, and illegal possession of firearms in Criminal Cases Nos. 4004-M-93 to 4007-M-93. Several corollary but equally important issues have likewise been addressed to us for resolution, to wit: 1. Whether the ex parte motion to withdraw the original informations is null and void on the ground that (a) there was no notice and hearing as required by Sections 4, 5 and 6, Rule 15 of the Rules of Court; and (b) the appropriate remedy which should have been adopted by the prosecution was to amend the informations by charging the proper offenses pursuant to Section 14 of Rule 110; 2. Whether the order granting the withdrawal of the original informations was immediately final and executory; 3. Whether Judge Pornillos was correct in denying the motion to quash and thereby acquired jurisdiction over the new informations considering that (a) the designated public prosecutor allegedly had no authority to file the second set of informations; and (b) the filing thereof constituted forum shopping; and 4. Whether the arraignment proceeding held on January 24, 1994 in Criminal Cases Nos. 4004-M-93 to 4007-M-93 was valid. We shall discuss these issues seriatim. 1. It is petitioners' submission that the prosecution's failure to serve them a copy of the motion to withdraw the original informations and to set said motion for hearing constitutes a violation of their right to be informed of the proceedings against them, as well as a violation of Sections 4, 5 and 6, Rule 15 of the Rules of Court. Hence, so they contend, the ex parte motion should be considered as a worthless scrap of paper and Judge Villajuan had no authority to act on it. Ergo, the order granting the same is null and void. Petitioners advance the theory that respondent prosecutor should have amended the original informations instead of withdrawing the same and filing new ones. They postulate that the principle of nolle prosequi does not apply in this case since the withdrawal or dismissal of an information is addressed solely to the sound and judicious discretion of the court which has the option to grant or deny it and the prosecution cannot impose its opinion on the court. It is further stressed that in case there is a need to change the nature of the offense charged, that is, from homicide to murder, by adding the qualifying circumstance of treachery, the only legal and proper remedy is through the filing of the corresponding amended information; and that the withdrawal of an information is allowed only where the new information involves a different offense which does not include or is not included in the offense originally charged.

Normally, an accused would not object to the dismissal of an information against him because it is to his best interest not to oppose the same. Contrarily, if the accused should deem such conditional or provisional dismissal to be unjust and prejudicial to him, he could object to such dismissal and insist that the case be heard and decided on the merits. 21 However, considering that in the original cases before Branch 14 of the trial court petitioners had not yet been placed in jeopardy, and the ex parte motion to withdraw was filed and granted before they could be arraigned, there would be no imperative need for notice and hearing thereof. In actuality, the real grievance of herein accused is not the dismissal of the original three informations but the filing of four new informations, three of which charge graver offenses and the fourth, an additional offense. Had these new informations not been filed, there would obviously have been no cause for the instant petition. Accordingly, their complaint about the supposed procedural lapses involved in the motion to dismiss filed and granted in Criminal Cases Nos. 3642-M-93 to 3644-M-93 does not impress us as a candid presentation of their real position. Petitioners' contention that the dismissal of the original informations and the consequent filing of the new ones substantially affected their right to bail is too strained and tenuous an argument. They would want to ignore the fact that had the original informations been amended so as to charge the capital offense of murder, they still stood to likewise be deprived of their right to bail once it was shown that the evidence of guilt is strong. Petitioners could not be better off with amended informations than with the subsequent ones. It really made no difference considering that where a capital offense is charged and the evidence of guilt is strong, bail becomes a matter of discretion under either an amended or a new information. Contrary to petitioners' submission, the absence of notice and hearing does not divest a trial court of authority to pass on the merits of the motion. It has been held that The order of the court granting the motion to dismiss despite absence of a notice of hearing, or proof of service thereof, is merely an irregularity in the proceedings. It cannot deprive a competent court of jurisdiction over the case. The court still retains its authority to pass on the merits of the motion. The remedy of the aggrieved party in such cases is either to have the order set aside or the irregularity otherwise cured by the court which dismissed the complaint, or to appeal from the dismissal and not certiorari. 22 Besides, when petitioners were given by Judge Villajuan the opportunity to file a motion for reconsideration, even assuming the alleged procedural infirmity in his issuance of the order of dismissal, the same was thereby deemed cured. This is especially so in this case since, on his order, the original informations were reinstated in Branch 14 of the trial court. The rule is now well settled that once a complaint or information is filed in court any disposition of the case, whether as to its dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the court. Although the prosecutor retains the direction and control of the prosecution of criminal cases even when the case is already in court, he cannot impose his opinion upon the tribunal. For while it is true that the prosecutor has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court, once the case had already been brought therein any disposition the prosecutor may deem proper thereafter should be addressed to the court for its consideration and approval. 23 The only qualification is that the action of the court must not impair the substantial rights of the accused or the right of the People to due process of law. We reiterate once again the doctrine we enunciated and explained in Crespo vs. Mogul, etc., et al.: 24

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In such an instance, before a re-investigation of the case may be conducted by the public prosecutor, the permission or consent of the court must be secured. And, if after such reinvestigation the prosecution finds a cogent basis to withdraw the information or otherwise cause the dismissal of the case, such proposed course of action may be taken but shall likewise be addressed to the sound discretion of the court. 25 It is not denied that in the present case, the court granted the motion of respondent prosecutor for the suspension of the proceedings until the re-investigation thereof shall have been terminated. Thereafter, the prosecutor arrived at a finding that petitioners should have been charged with murder, frustrated murder, and illegal possession of firearms. This prompted him to file an ex parte motion to withdraw the original informations for homicide and frustrated homicide. Although the motion did not state the reasons for the withdrawal of the informations, nevertheless, the court in the exercise of its discretion granted the same, as a consequence of which a new set of informations was thereafter filed and raffled to another branch of the court. Petitioners now question the propriety of the procedure adopted by the prosecution, insisting that an amendment, not a new information, was required under the circumstances. It must here be emphasized that respondent prosecutor sought, and was subsequently granted, permission by the court to dismiss the original informations. It cannot therefore be validly claimed that the prosecutor exceeded his authority in withdrawing those informations because the same bore the imprimatur of the court. The issue is thus focused on whether or not under the given situation the court acted correctly in dismissing the original informations rather than ordering the amendment thereof. It has been observed that while the Rules of Court gives the accused the right to move for the quashal of the information, it is silent with respect to the right of the prosecutor to ask for a dismissal or withdrawal thereof. 26 A perusal of the 1985 Rules on Criminal Procedure will show that there are only two provisions concerning the dismissal of an information other than on motion of the accused, namely, Section 14 of Rule 110 and Section 11 of Rule 119. But then, it may be contended that these rules speak of a dismissal by the court when there is a mistake in charging the proper offense, but make no mention of a dismissal made upon application of the prosecution. That is not necessarily so.

It is true that Section 11, Rule 119 is virtually a restatement of Section 14, Rule 110, providing as it does that: Sec. 11. When mistake has been made in charging the proper offense. When it becomes manifest at any time before judgment, that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any other offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. (Emphasis supplied.) Rule 119 is the rule specifically governing the trial stage where evidence is necessarily being presented, hence the trial court is now in a better position to conclude that manifestly the accused cannot be convicted of the offense charged or of one that it necessarily includes. It would primarily be the function of the court to motu proprio order the dismissal of the case and direct the filing of the appropriate information. We do not discount the possibility of either the prosecution or the defense initiating such dismissal and substitution at that stage, although, from a realistic point of view, that would be a rare situation. This provision, therefore, is more directly and principally directed to the trial court to invest it with the requisite authority to direct by itself the dismissal and refiling of the informations therein contemplated. Rule 110, on the other hand, provides the procedural governance for the prosecution of offenses. Section 14 thereof, quoted infra, provides in its second paragraph the procedure and requisites for the substitution of a defective information by the correct one. Although, just like Section 11 of Rule 119 the permissible stage for effecting that substitution is "at any time before judgment," unlike the latter situation it is sufficient that "it appears . . . that a mistake has been made in charging the proper offense, . . . ." The situation under said Section 14 contemplates a longer time span, inclusive of the period from the filing of the information up to and before trial. Since no evidence has been presented at that stage, the error would appear or be discoverable from a review of the records of the preliminary investigation. Of course, that fact may be perceived by the trial judge himself but, again, realistically it will be the prosecutor who can initially determine the same. That is why such error need not be manifest or evident, nor is it required that such nuances as offenses includible in the offense charged be taken into account. It necessarily follows, therefore, that the prosecutor can and should institute remedial measures for the dismissal of the original information and the refiling of the correct one, otherwise he would be recreant to his duties. It is interesting to note that in the American jurisdiction, such right is specifically recognized under Rule 48 (a) of the Federal Rules of Criminal Procedure which provides that the entry of a nolle prosequi by the Government is a permissible right, although requiring in all cases the approval of the court in the exercise of its judicial discretion. 27 As a matter of fact, the prosecuting attorney is given the broad power, sole authority and discretion to enter a nolle prosequi provided he does not act arbitrarily 28 and subject to the discretion of the court. In several cases, we have also impliedly recognized the propriety of such a procedure particularly in those instances where the prosecution is allowed to dismiss or withdraw an information on the ground of insufficiency of evidence. We have even gone further by imposing upon the fiscal, as he was then called, the duty to move for the dismissal of the information if he is convinced that the evidence is insufficient to establish, at least prima facie, the guilt of the accused. 29 In this case now before us, what is involved is a dismissal effected at the instance of the prosecutor by reason of a mistake in charging the proper offense, in order that new

informations can be filed. The problem that may be posited, and should now be resolved, is when the fiscal may be allowed to move to dismiss an information and when he should merely move to amend it. Section 14 of Rule 110, which is invoked by petitioners, reads as follows: Sec. 14. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial. The first paragraph provides the rule for amendment of the information or complaint, while the second paragraph refers to the substitution of the information or complaint. Under the second paragraph, the court can order the filing of another information to charge the proper offense, provided the accused would not be placed thereby in double jeopardy and that could only be true if the offense proved does not necessarily include or is not necessarily included in the offense charged in the original information. It has been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the information may also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the accused. Hence, in the case of Dimalibot vs. Salcedo, 30 the accused therein were originally charged with homicide and were released on bail. However, the then provincial fiscal, after a review of the affidavits of the witnesses for the prosecution, discovered that the killing complained of was perpetrated with the qualifying circumstances of treachery, taking advantage of superior strength, and employing means to weaken the defense of the victim. Consequently, an amended information for murder was filed against the accused who were ordered rearrested without the amount of bail being fixed, the new charge being a capital offense. The Court ruled therein that the amendment was proper, pursuant to Section 13, Rule 106 of the 1940 Rules of Court (now Section 14, Rule 110 of the 1985 Rules on Criminal Procedure), thus: Here these rules properly apply, since it is undisputed that the herein accused were not yet arraigned before the competent court when the complaint for homicide was amended so as to charge the crime of murder. Upon the authority of said rules, the amendment could therefore be made even as to substance in order that the proper charge may be made. The claim that such amendment can only refer to matters of specification affecting the elements constituting the crime is not correct, for there is nothing in the rule to show that the nature of the amendment should only be limited to matters of specification. The change may also be made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of the defendant. Be that as it may, it is quite plausible under Section 14 of Rule 110 that, instead of an amendment, an information for homicide may also be dismissed before the accused pleads, to give way to the filing of a new information for murder. This may be deduced from the pronouncement of the Court in the aforecited case of Dimalibot, to wit:

This clearly appears from the second part of Section 13 of Rule 106 which says that, if it appears before judgment that a mistake has been made in charging the proper offense, the court may dismiss the original information and order the filing of a new one provided the defendant may not be placed in double jeopardy. If a new information may be ordered at any time before judgment no reason is seen why the court may not order the amendment of the information if its purpose is to make it conformable to the true nature of the crime committed. . . . In the subsequent case of Teehankee, Jr. vs. Madayag, et al., 110 was clarified to mean as follows:
31

however, Section 14 of Rule

It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleads, but they differ in the following respects: 1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge; 2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed; 3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and 4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. On the other hand, substitution requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy. In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, an amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order. In any event, we are inclined to uphold the propriety of the withdrawal of the original informations, there having been no grave abuse of discretion on the part of the court in granting the motion and, more importantly, in consideration of the fact that the motion to withdraw was filed and granted before herein petitioners were arraigned, hence before they were placed in jeopardy. Thus, even if a substitution was made at such stage, petitioners cannot validly claim double jeopardy, which is precisely the evil sought to be prevented under the rule on substitution, for the simple reason that no first jeopardy had as yet attached. Consequently, we hold that although the offenses charged under the three new informations necessarily include those charged under the original informations, the substitution of informations was not a fatal error. A contrary ruling, to paraphrase from our former pronouncements, would sacrifice substantial justice for formal nuances on the altar of procedural technicalities. Furthermore, petitioner's right to speedy trial was never

violated since the new informations were filed immediately after the motion to withdraw the original informations was granted. 2. The controversy over the jurisdiction of Judge Pornillos to entertain and act upon the new informations for murder, frustrated murder and illegal possession of firearms, is grounded on three points of disagreement. Firstly, it is argued that the new informations were prematurely filed considering that the order granting the withdrawal of the original informations had not yet become final and executory and that, as a matter of fact, the same was subsequently reconsidered and the case reinstated by Judge Villajuan. Therefore, so petitioners postulate, Judge Pornillos could not acquire jurisdiction over the same offense involving the same incident and the same accused. Secondly, petitioners contend that the dismissal of the original informations and the filing of new ones which were raffled to another branch of the court constituted forum shopping, and was tainted with malice considering the indecent haste with which the motion to withdraw the informations was filed, the order granting the same was issued, and the new informations were filed, all of which took place on the same day. Pursuant to the doctrinal ruling that the court first acquiring jurisdiction excludes the other courts, it is theorized that the cognizance of the case taken by Judge Villajuan barred Judge Pornillos from assuming jurisdiction thereover. Finally, the designation of respondent Prosecutor Dennis Villa-Ignacio (who was then First Assistant Provincial Prosecutor of Pasig, Rizal) as Acting Provincial Prosecutor of Bulacan was arbitrary and without any justifiable reason. It follows, therefore, so petitioners vigorously argue, that in the absence of such authority, the informations should be considered null and void by reason of which Judge Pornillos did not acquire jurisdiction over the same. On the other hand, respondents question the propriety of petitioners' filing of a petition for certiorari prohibition and mandamus in the Court of Appeals against the order of the lower court denying petitioners' motion to quash, claiming that the proper remedy was to proceed to trial on the merits and thereafter raise on appeal, as special defenses, the grounds invoked in the motion to quash. It is a general rule that a nolle prosequi or dismissal entered before the accused is placed on trial and before he is called on to plead is not equivalent to an acquittal, 32 and does not bar a subsequent prosecution for the same offense. 33 It is not a final disposition of the case. 34 Rather, it partakes of the nature of a nonsuit or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of the prosecution. 35 A dismissal is different from an acquittal. An order of dismissal which is actually an acquittal is immediately final and cannot be reconsidered. 36 Furthermore, an acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is beyond reasonable doubt; but a dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissals terminate the proceedings, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance. 37 For dismissal to be a bar under double jeopardy, it must have the effect of acquittal. All these go to show, therefore, that the dismissal of Criminal Cases Nos. 3642-M-93 to 3644-M-93 did not amount to an acquittal of herein petitioners.

Consequently, the same did not immediately become final, hence petitioners could still file a motion for the reconsideration thereof. Moreover, such dismissal does not constitute a proper basis for a claim of double jeopardy. 38 Since jeopardy had not yet attached, herein petitioners were not prejudiced by the filing of the new informations even though the order of dismissal in the prior case had not yet become final. Neither did it affect the jurisdiction of the court in the subsequent case. In American legal practice, where a motion for an order of nolle prosequi is made, the only power to deny the motion would be based on failure of the district attorney to judiciously exercise his discretion. 39 In most cases, the motion will be readily granted and should not be refused unless the court has some knowledge that it is based on an improper reason or a corrupt motive. But such a motion to dismiss will not also be approved unless the court is satisfied that the administration of justice requires that the prosecution be ended, or if there appears to be a clear violation of the law. 40 Whatever may be the reason therefor, a denial of the motion to withdraw should not be construed as a denigration of the authority of the special prosecutor to control and direct the prosecution of the case, 41 since the disposition of the case already rests in the sound discretion of the court. This brings us to the question as to whether or not an order of dismissal may be subsequently set aside and the information reinstated. Again, in American jurisprudence, the authorities differ somewhat as to whether a nolle prosequi may be set aside and the cause reinstated. 42 Some cases hold that the nolle prosequi may be recalled and that the accused may be tried on the same information, 43 but before it can be retraced, set aside, cancelled, or struck off, the permission or assent of the court must be had and obtained, and such cancellation or retraction must be duly entered. According to other authorities, however, the entry of an unconditional nolle prosequi, not on the ground that the information is insufficient on its face, is an end to the prosecution of that information, and such nolle prosequi cannot afterward be vacated and further proceedings had in that case. 44 Still in some cases, it has been held that a nolle prosequi may be set aside by leave of court, so as to reinstate proceedings on the information, or unless it was entered by mistake. 45 In our jurisdiction, we follow the rule which allows an order of dismissal to be set aside by leave of court. In one case, it was held that in the absence of any statutory provision to the contrary, the court may, in the interest of justice, dismiss a criminal case provisionally, that is, without prejudice to reinstating it before the order becomes final or to the subsequent filing of a new information for the offense. 46 The rule that in cases of concurrent jurisdiction the court first acquiring jurisdiction will retain it to the end to the exclusion of other tribunals, is not to be given unyielding effect in all cases and it does not apply where the jurisdiction of the first court has come to an end in any legal way, such as by nolle prosequi. 47 The rule on exclusions is intended to prevent confusion and conflicts in jurisdiction and to prevent a person from being twice tried for the same offense, but no accused has a vested right to be tried in any particular court of concurrent jurisdiction; and when one court of concurrent jurisdiction voluntarily relinquishes it by a nolle prosequi or dismissal of the case, there can be no legal or logical reason for preventing the other court from proceeding. 48 With much more reason will this rule apply where only branches of the same court, and not different courts, are involved in the jurisdictional conflict. There was no forum shopping in the lower court with respect to the case involved. While the procedure adopted by the prosecution was somewhat cumbersome, it was not in bad faith and, accordingly, it did not affect the legality of the proceedings. There is no showing, and petitioners failed to prove otherwise, that the assignment by raffle of the new informations to another branch of the same court was intended to prejudice herein petitioners, or to place

them under less favorable circumstances, or to find a court which would act favorably on the prosecution's case. The authority of the special prosecutor appointed by the Secretary of Justice to sign and file informations has long been recognized in this jurisdiction and it has been held that such information cannot be quashed on that account. There is nothing so sacrosanct in the signing of complaints, holding of investigations, and conducting prosecutions that only an officer appointed by the President or one expressly empowered by law be permitted to assume these functions. 49 And any irregularity in the appointment does not necessarily invalidate the same if he may be considered a de facto officer. 50 Of course, where the person who signed the information was disqualified from appointment to such position, the information is invalid and the court does not acquire jurisdiction to try the accused thereon. 51 Such is not, however, the situation obtaining in the case at bar. It will be noted that respondent prosecutor was designated by the Secretary of Justice to handle the re-investigation and prosecution of the case against petitioners pursuant to Department Order No. 369. Petitioners failed to show any irregularity in the issuance of said directive. At any rate, the power of supervision and control vested in the Secretary of Justice under Presidential Decree No. 1275 had been broadened beyond the confines of the old law, that is, Section 1679 of the Revised Administrative Code, wherein the power of the Secretary was then limited only to certain instances. Pertinently, in Aguinaldo, et al. vs. Domagas, et al., 52 we said: The Court notes, however; that Department of Justice Order No. 85 was issued pursuant to, among others, P.D. No. 1275 issued on 11 April 1978 which provides: Sec. 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. There is hereby created and established a National Prosecution Service under the supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City Fiscal's Offices as are hereinafter provided, which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws. The power of supervision and control vested in the Secretary of Justice includes the authority to act directly on any matter within the jurisdiction of the Prosecution Staff, the Regional State Prosecution Office or the Office of the Provincial or City Fiscal and to review, modify or revoke any decision or action of the Chief of said staff or office. The power of supervision and control vested in the Secretary of Justice under P.D. No. 1275 had thus been broadened beyond the confines of the old law, i.e., Section 1679 of the Revised Administrative Code of 1917, where the power of the Secretary of Justice to designate acting fiscals or prosecutors to handle a particular case was limited to instances "when a provincial fiscal shall be disqualified by personal interest to act in a particular case or when for any reason he shall be unable, or shall fail to discharge any of the duties of his position." Indeed, the limitation upon which petitioners rely no longer subsisted under P.D. No. 1275. Having been duly designated in accordance with law, the panel of prosecutors had complete control of the investigation and prosecution of the case. . . .

3. Petitioners similarly dispute the legality of their arraignment on January 24, 1994, when Judge Pornillos entered a plea of not guilty for them after they refused to plead, without furnishing them copies of the information with the list of witnesses, after merely reading the informations against them and asking whether they understood the same, which were allegedly in palpable violation of Section 1, Rule 116. Petitioners aver that they were requesting for the suspension of the arraignment as they wanted to have a final copy of the order of January 24, 1994 which was merely read in open court, and to take the necessary steps to question the same by way of a motion for reconsideration or an appeal. In criminal cases, it is the duty of the accused, in addition to the other pleas authorized by law, to plead whether he is guilty or not of the crime charged. In that way and in that way only can an issue be created upon which the trial shall proceed. 53 Section 1 (c) of Rule 116 is quite explicit that where the accused refuses to plead, a plea of not guilty shall be entered for him. Hence, under such mandatory language, if the accused refuses to plead, the court must enter a plea of not guilty. The words are so plain and unambiguous that no construction is necessary. It actually calls for a literal application thereof. Any explanation or defense which petitioners would want to invoke can be properly raised during the trial, but they cannot refuse to enter their plea. Nonetheless, the alleged defect in their arraignment on January 24, 1994 is deemed to have been cured when they were again arraigned on February 18, 1994 with the assistance of counsel de oficio, and the information was read to them in the vernacular. In conclusion, considering that Branch 10 of the same trial court handling Criminal Cases Nos. 4004-M-93 to 4007-M-93 legally acquired jurisdiction over the new informations which we have likewise declared valid, petitioners may be prosecuted thereunder. II. On the Petition for Habeas corpus This petition is predicated mainly on petitioners' asseveration that the court which issued the warrant for their arrest had no jurisdiction over the case, hence their detention should be deemed illegal. We have earlier declared that Branch 10 of the trial court acquired jurisdiction over the new set of informations. Consequently, the warrant of arrest issued on the bases of said informations filed therein and the subsequent detention of herein petitioners pursuant thereto are valid. What instead has to be resolved is the corollary issue of whether the petition for habeas corpus was properly filed together with their present petition for certiorari and mandamus. The writs of habeas corpus and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts. A writ of habeas corpus reaches the body and the jurisdictional matters, but not the record. A writ of certiorari reaches the record but not the body. Hence, a writ of habeas corpus may be used with the writ of certiorari for the purpose of review. 54 However, habeas corpus does not lie where the petitioner has the remedy of appeal or certiorari because it will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings of a court having jurisdiction over the person and the subject matter. 55 Neither can we grant the writ at this stage since a writ of habeas corpus is not intended as a substitute for the functions of the trial court. In the absence of exceptional circumstances, the orderly course of trial should be pursued and the usual remedies exhausted before the writ may be invoked. Habeas corpus is not ordinarily available in advance of trial to determine jurisdictional questions that may arise. 56 It has to be an exceptional case for the

writ of habeas corpus to be available to an accused before trial. 57 In the absence of special circumstances requiring immediate action, a court will not grant the writ and discharge the prisoner in advance of a determination of his case in court. 58 In the case under consideration, petitioners have dismally failed to adduce any justification or exceptional circumstance which would warrant the grant of the writ, hence their petition therefor has to be denied. In addition, a petition for habeas corpus is not the appropriate vehicle for asserting a right to bail or vindicating its denial. In the case of Enrile vs. Salazar, etc., et al., 59 we held that: The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there. III. On the Motion to Cite for Contempt The records show that on February 24, 1994, this Court issued a temporary restraining order, pursuant to its resolution in Administrative Matter No. 94-1-13-RTC which is a petition for change of venue filed by the Vinculados, requiring Judges Felipe N. Villajuan and Victoria Villalon-Pornillos to cease and desist from hearing the criminal cases involving herein petitioners which were pending before them. 60 Subsequently, another resolution was issued in said cases, dated March 1, 1994, with the following directive: ACCORDINGLY, without prejudice to the final determination as to which of the two (2) sets of information will be upheld or prevail, the Executive Judge of the Regional Trial Court of Malolos, Bulacan is hereby directed to transfer all the aforementioned criminal cases filed against Mayor Honorato Galvez, et al. now in the Regional Trial Court of Malolos, Bulacan, to the Executive Judge, Regional Trial Court of Quezon City for raffle as one (1) single case among its branches and for the branch concerned, after raffle, to proceed with all deliberate dispatch after the issues raised in CA-G.R. SP No. 33261 have been resolved with finality. 61 As a consequence, the seven informations which were docketed as Criminal Cases Nos. Q94-55481 to Q-94-55487 were assigned to and are now pending trial on the merits before Branch 103 of the Regional Trial Court of Quezon City, presided over by Judge Jaime N. Salazar, Jr. Petitioners now assert that Judge Salazar and Prosecutor Villa-Ignacio proceeded with the trial of the cases despite the aforestated directives in the above cited resolutions. We find no merit in the motion to cite them for contempt. The records reveal that there was a manifestation dated May 31, 1994 62 filed by the Solicitor General wherein the latter manifested his conformity to the agreement made between the prosecution and the defense before Judge Salazar, the pertinent part of which agreement is as follows: 1. During the hearing on May 26, 1994, the prosecution, through Senior State Prosecutor Dennis Villa-Ignacio, the defense through Justice Alfredo Lazaro, and this Honorable Court agreed that the trial in these cases shall proceed on condition that: (a) the defense shall not

be deemed to have waived any issue or objection it has raised before the Supreme Court in G.R. No. 114046; and (b) that the trial shall also be without prejudice to whatever decision and resolution the Supreme Court may render in the case before it. Counsel for petitioners, retired Justice Alfredo Lazaro, takes issue with said agreement on the pretension that the same is not the true agreement of the parties, but he failed to state what they actually agreed upon. Withal, the resolutions of this Court in the petition for change of venue, as well as the cease and desist order issued therein, are clearly directed against the two aforenamed regional trial judges in Malolos, Bulacan. By no stretch of the imagination can we interpret the same to include Judge Jaime N. Salazar, Jr. of Quezon City. For that matter, the issues involved in this petition for certiorari do not necessarily require a suspension of the proceedings before the present trial court considering that the main petition hinges only on a determination of which set of informations shall constitute the indictments against petitioners and for which charges they shall stand trial. Whichever set of informations prevails, the evidence of the prosecution and defense will more or less be the same and can be utilized for the charges therein. Hence, no cogent reason exists for the suspension of the proceedings before the court below. As a final word, while it may well be that both sets of information validly exist for the nonce, to allow both of them to subsist will only serve to confuse and complicate the proceedings in the cases therein. Brushing aside procedural technicalities, therefore, it becomes exigent to now consider and declare the four informations for murder, frustrated murder and illegal possession of firearms as having amended and superseded the original three informations for homicide and frustrated homicide, there being no substantial rights of herein petitioners which may be affected thereby. Correspondingly, the three informations for homicide and frustrated homicide should be ordered withdrawn from the Quezon City trial court's docket. WHEREFORE, judgment is hereby rendered DISMISSING the petition for certiorari and mandamus together with the petition for habeas corpus; DENYING, for lack of merit, the motion to cite respondent judge and prosecutor for contempt and to annul proceedings; and ORDERING the withdrawal and invalidation of the three informations for homicide and frustrated homicide against petitioners from the docket of Branch 103 of the Regional Trial Court of Quezon City. SO ORDERED. Narvasa, C.J., Puno and Mendoza, JJ., concur. Aquino v. Esperon

SPECIAL THIRD DIVISION

In the Matter of the Petition for a Writ of Habeas Corpus of the person of ARMY MAJOR JASON LAUREANO AQUINO, PA

G.R. No. 174994

Present: MARIA FE S. AQUINO, Petitioner, YNARES-SANTIAGO, J. Chairperson, versus QUISUMBING,*** SANDOVAL-GUTIERREZ,**** LT. GEN. HERMOGENES C. ESPERON, AFP,* in his capacity as Commanding General, Philippine Army, and the Custodial Officer or Commander, Army Detention Center, G2-21D, Camp Capinpin, Tanay, Rizal,** Respondents. AUSTRIA-MARTINEZ, and CHICO-NAZARIO, JJ.

Promulgated:

August 31, 2007 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

At bar is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, seeking to nullify the Decision dated 31 August 2006, of the Court of Appeals in CA-G.R. SP. No. 95341, which denied petitioner Maria Fe S. Aquinos Petition for the Issuance of a Writ of Habeas Corpus for the person of her husband, Army Major Jason Laureano Aquino (Major Aquino) of the First Scout Ranger Regiment, Special Operation Command of the Philippine Army, and the Resolution dated 5 October 2006, of the same court which denied reconsideration of its earlier Decision.

The facts leading to the arrest of Major Aquino, as set forth in the Solicitor Generals brief, show that on 3 February 2006, Major Aquino, along with several military men, namely, Major Leomar Jose M. Doctolero, Captain Joey T. Fontiveros, Captain Montano B. Aldomovar, Captain Isagani Criste, and Captain James Sababa, allegedly met at the resthouse of Captain Aldomovar near Camp Tecson, San Miguel, Bulacan to plot a breach of the Camp Defense Plan of Camp General Emilio Aguinaldo and to take over Camp Aquinaldo, as well as the Headquarters of the Philippine Army. On 26 February 2006, in the wake of the groups alleged withdrawal of support from the Armed Forces of the Philippines chain of command and the current administration of President Gloria Macapagal-Arroyo, Major Aquino was ordered arrested and confined at the Intelligence Service Group of the Philippine Army in Fort Bonifacio, Taguig, upon the order of Lt. Gen. Hermogenes C. Esperon, (Lt. Gen. Esperon) who was then the Commanding General of the Philippine Army. On the same day, Lt. Gen. Esperon ordered the Army Inspector General to conduct an investigation to determine: 1) the circumstances attending Major Aquinos alleged withdrawal of support; 2) the veracity of reports anent the alleged troop movement of some Philippine Military personnel from their respective stations to Manila to join the protest march at Epifanio Delos Santos Avenue on 24 February 2006 with Brigadier General Danilo Lim (Brig. Gen. Lim); and 3) the participation, responsibility and culpability of all Philippine Military personnel involved, if any. For this purpose, a panel of investigators was formed. During the investigation, Major Aquino denied the accusations hurled against him. He intimated, inter alia, that he had no plan nor did he make any pronouncement of withdrawing support from the chain of

command, and that he pledged to continue to support the same and the duly constituted authorities.

On 4 March 2006, the panel of investigators submitted its Investigation Report to the Commanding General of the Philippine Army. In its report, the panel of investigators found that the troop movement by some military personnel from their respective stations to Manila was illegal, implicating Major Aquino therein, thus:

14.2 Based on the account of MAJ AQUINO, it may be reasonably observed that said Officer and BGEN LIM were closely coordinating the progress of the latters talks with CSAFP [Chief of Staff of the Armed Forces of the Philippines] on the night of 23 February 2006. Moreover, there are other circumstances which seem to indicate that the leadership of FSRR [First Scout Ranger Regiment] was preparing some of its personnel to move should the talks succeed, i.e. movement of the 7SRC & 9SRC personnel to Manila. Notedly, the following attendant circumstances put to doubt the real intention of FSRR in ordering the aforementioned troop movement, to wit:

i) There is no indication that CO, 3SRB sought clearance or informed CO, 901 st Bde or CG, 91 D of said troop movement; ii) There was no order or call from HPA or SOCOM for the immediate fill up or augmentation of the 10th SRC at Fort Bonifacio; iii) There is no showing that the troop movement was coordinated, approved and/or cleared with the AOC, the AFPCC or SOLCOM, AFP; iv) When CO, 901st Bde called CO, 3SRB to inquire about any troop movement, the latter answered in the negative and immediately ordered his men to go back to command post v) When the twenty six (26) 7SRC personnel were apprehended, they were in civilian attire but brought with them their bandoleer with magazines and ammunitions which were placed inside their backpack.

The panel of investigators recommended that: 1) all implicated officers therein mentioned be immediately relieved from their respective posts; and 2) appropriate charges be filed before the General Court Martial against Major Aquino, among other military

officers/personnel, for violations of Article 67 (Attempting to Begin or Create Mutiny); and Article 97 (Disorders and Neglects Prejudicial to Good Order and Military Discipline) of the Articles of War, to wit:

15.3.1 In addition to the relief of BGEN DANILO D LIM 0-7665 AFP which in itself is already a disciplinary action, recommend that subj Officer and MAJ JASON LAUREANO Y AQUINO O-10503 (INF) PA be charged before the PAGCM for violation of AW 67 (CAUSING OR EXCITING A MUTINY) and AW 97 (DISORDERS AND NEGLECTS PREJUDICIAL TO GOOD ORDER AND MILITARY DISCLIPLINE.)

Further, the panels Investigation Report was referred by Lt. Gen. Esperon to the Judge Advocate Generals Office (JAGO) of the Philippine Army for review. On 17 March 2006, the JAGO found the existence of probable cause against Major Aquino, among other military officers, for violations of Article 96 (Conduct Unbecoming an Officer and a Gentleman), Article 97 (Disorders and Neglects Prejudicial to Good Order and Military Discipline), and Article 67 (Attempting to Begin or Create Mutiny) of the Articles of War.

The JAGOs recommendation reads: 6.3. For publishing, distributing and discussing the pamphlet entitled The New Order The Solution to the Filipino Political Problem, which publication is not sanctioned as an official publication of the Armed Forces of the Philippines or the Philippine Army, and which material tends to urge or incite other military officers and enlisted men to collectively or concertedly defy standing and lawful orders of the Commanding General, Philippine Army as well as the Chief of Staff, Armed Forces of the Philippines, MAJ AQUINO should likewise be charged of (sic) violating AW 96 (CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN) and AW 97 (Disorders and Neglects Prejudicial to Good Order and Military Discipline) under a separate specification. 6.4. In the (sic) light of the new averments revealed in the Supplemental Affidavit of 1Lt REYES, there is now basis for charging MAJ AQUINO, MAJ DOCTOLERO, CPT FONTIVEROS, CPT ALDOMOVAR, CPT CRISTE, CPT SABABAN for violation of AW 67 (ATTEMPT TO CREATE A MUTINY). Per said Supplemental Affidavit, it was revealed that subj Officers met at the resthouse of CPT ALDOMOVAR near the so-called tower area in Camp Tecson, San Miguel, Bulacan, on the evening of 03 Feb 2006, discuss and plot their plan to breach the Camp Defense Plan of Camp General Emilio

Aguinaldo and hatch a plan to take over Camp Aguinaldo and [the] Headquarters [of the] Philippine Army. x x x.

On the basis of JAGOs recommendations, Col. Jose R. Recuenco (Col. Recuenco), then Army Provost Marshal, signed under oath a charge sheet against Major Aquino, charging the latter with violations of Article 67 (Attempting to Begin or Create Mutiny) and Article 96 (Conduct Unbecoming an Officer and Gentleman) of the Articles of War, which was indorsed to the Chief of Staff of the Armed Forces of the Philippines (AFP).

On 12 July 2006, Lt. Gen. Esperon issued an Order to the Commanding Officer, 191 st, MP Bn to exercise custodial responsibility of Major Aquino, together with the other implicated military personnel who withdrew their support from the chain of command in February 2006, and to place them in confinement at the Philippine Army Detention Center, Camp Capinpin, Tanay, Rizal. The same Order also designated the aforementioned Commanding Officer to exercise direct supervision and control over the concerned detainees.

On 20 July 2006, the charge sheet against Major Aquino was amended to set forth more detailed specifications of the charges. It, however, retained the charges against Major Aquino as stated in the original charge sheet i.e. violation of Article 67 (Attempting to Begin or Create a Mutiny) and Article 96 (Conduct Unbecoming an Officer and Gentleman) of the Articles of War.

On 20 July 2006, the Judge Advocate General of the AFP General Headquarters of the AFP issued Office Order Number 14-06, creating a Pre-trial Investigation Panel for the case of Major Aquino, et al.

On 21 July 2006, petitioner filed a Petition for Habeas Corpus with the Court of Appeals, praying that the AFP Chief of Staff and the Commanding General of the Philippine Army, or whoever are acting in their place and stead, be directed to immediately produce the body

of Major Aquino and explain forthwith why he should not be set at liberty without delay. The case was docketed as CA-G.R. SP No. 95341.

In the meantime, the Pre-trial Investigation Panel of the AFP issued a Subpoena/Notice of Pre-trial Investigation to Major Aquino, summoning him to appear in person before the panel and to submit his counter-affidavits and affidavits of witnesses.

After hearing, the Court of Appeals rendered a Decision dated 31 August 2006, denying the Petition for Habeas Corpus.

The Court of Appeals held that the remedy of the writ of habeas corpus is futile because charges had already been preferred against Major Aquino. In tracing the factual antecedents leading to the preferment of charges against Major Aquino, the Court of Appeals significantly noted that after the Investigating Panel found probable cause against him for violation of Article 67 (Attempting to Begin or Create Mutiny) and Article 96 (Conduct Unbecoming an Officer and Gentleman) of the Articles of War, Lt. Gen. Esperon forwarded the panels recommendation to the JAGO for review, which sustained the same. In view of such developments, a charge sheet against Major Aquino was signed under oath by Col. Recuenco, then Army Provost Marshall. The latter, thereafter, endorsed the charge sheet to the AFP Chief of Staff for appropriate Action. The Court of Appeals said: Then, the Pre-trial Investigation Panel conducted a pre-trial investigation whereby Major Aquino appeared before the said body.

Significantly, even if at the time Major AQUINO was arrested there was yet no formal charge filed against him, however[,] the remedy of habeas corpus being resorted to by the Petitioner is still unavailing, considering that, as the records disclosed, charges have been preferred against him even before the filing by the Petitioner of the instant petition. Basic is the rule that once a person detained is duly charged in court, he may no longer question his detention via a petition for the issuance of a writ of habeas corpus.

Petitioner filed a Motion for Reconsideration of the 31 August 2006 Decision, but, the Court of Appeals denied the same and found no reason to disturb its judgment.

Hence, the instant Petition for Review on Certiorari.

For this Courts consideration, petitioner elevates three issues, to wit:

WHETHER OR NOT THE [COURT OF APPEALS] ERRED IN RULING THAT THE PREFERMENT OF THE CHARGE SHEET AGAINST ARMY MAJOR AQUINO IS EQUIVALENT TO FORMALLY CHARGING THE LATTER AS CONTEMPLATED IN ARTICLE 70 OF THE ARTICLES OF WAR.

II

WHETHER OR NOT THE [COURT OF APPEALS] ERRED IN RULING THAT THERE IS LEGAL BASIS IN PLACING ARMY MAJOR AQUINO IN SOLITARY CONFINEMENT IN A MAXIMUM SECURITY DETENTION FACILITY.

III

WHETHER OR NOT THE [COURT OF APPEALS] ERRED IN RULING THAT ARMY MAJOR AQUINOS SOLITARY CONFINEMENT IN A MAXIMUM SECURITY DETENTION FACILITY IS IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 70 OF THE ARTICLES OF WAR.

The paramount issue posed for resolution is whether the confinement of Major Aquino is legal.

Anent the first issue, petitioner assails the legality of Major Aquinos confinement on the ground that the latter had not been formally charged. It is petitioners theory that charges can only be deemed formally filed after a thorough and impartial investigation shall have been made. Thus, petitioner suggests that the word charge as used in Article 70 of the Articles of War means that a person is formally charged only after the conduct of a mandatory pre-trial investigation. According to petitioner, the charge sheet and the furnishing thereof to any person subject to military law is the act of preferment, which act is evidently different from the act of filing. Otherwise stated, the charge sheet is not the charge contemplated in Article 70 of the Articles of War for the arrest or confinement of any person subject to military law. Thus, according to petitioner, the filing of a formal charge can only be done after the conclusion of the pre-trial investigation, when the case is referred to the general court-martial, akin to the conduct of a preliminary investigation in civilian courts.

We are not persuaded.

First, it is established that Major Aquino is governed by military law. Article 2 of the Articles of War circumscribes the jurisdiction of military law only over persons subject thereto. Major Aquino, G3 of the First Scout Ranger Regiment (FSRR) of the Special Operation Command of the Philippine Army, is subject to military law. Thus:

Art. 2. Persons Subject to Military Law. The following persons are subject to these articles and shall be understood as included in the term any person subject to military law or persons subject to military law, whenever used in these articles:

(a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of the Philippine Constabulary; all members of the

reserve force, from the dates of their call to active duty and while on such active duty; all trainees undergoing military instructions; and all other persons lawfully called, drafted, or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft, or order to obey the same;

(b) Cadets, flying cadets, and probationary second lieutenants;

(c) All retainers to the camp and all persons accompanying or serving with the Armed Forces of the Philippines in the field in time of war or when martial law is declared though not otherwise subject to these articles;

(d) All persons under sentence adjudged by courts-martial. (As amended by Republic Acts 242 and 516).

As a regular officer of the Armed Forces of the Philippines, Major Aquino falls squarely under Article 2 of the Articles of War. Martial, Philippine Army. Consequently, he is subject to the applicable provisions of the Articles of War and Executive Order No. 178; or the Manual for Courts-

Second, a scrutiny of the confinement of Major Aquino proves that the same is valid.

Article 70 of the Articles of War governs the cases of arrest or confinement, viz.:

Art. 70. Arrest or Confinement. Any person subject to military law charged with crime or with a serious offense under these articles shall be placed in confinement or in arrest, as circumstances may require; but when charged with a minor offense only, such person shall not ordinarily be placed in confinement. Any person placed in arrest under the provisions of this Article shall thereby be restricted

to his barracks, quarters, or tent, unless such limits shall be enlarged by proper authority. Any officer or cadet who breaks his arrest or who escapes from confinement, whether before or after trial or sentence and before he is set at liberty by proper authority, shall be dismissed from the service or suffer such other punishment as a court-martial may direct, and any other person subject to military law who escapes from confinement or who breaks his arrest, whether before or after trial or sentence and before he is set at liberty by proper authority, shall be punished as a court-martial may direct.

Evidently, Article 70 of the Articles of War empowers the commanding officer to place, in confinement or in arrest, any person subject to military law charged with a crime or with a serious offense under the Articles of War. Article 70 is the authority for enabling the proper military personnel to put an instant end to criminal or unmilitary conduct, and to impose such restraint as may be necessary upon the person of a military offender, with a view of his trial by court-martial.

We juxtapose Article 70 with Article 71 of the Articles of War. Under military law, the conduct of investigations is governed by Article 71 of the Articles of War, to wit:

Art. 71. Charges; Action Upon. Charges and specifications must be signed by a person subject to military law, and under oath either that he has personal knowledge of, or has investigated, the matters set forth therein and that the same are true in fact, to the best of his knowledge and belief.

No charge will be referred to a general court-martial for trial until after a thorough and impartial investigation thereof shall have been made . This investigation will include inquiries as to the truth of the matter set forth in said charges, form of charges, and what disposition of the case should be made in the interest of justice and discipline. At such investigation[,] full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after such investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides.

Before directing the trial of any charge by general court-martial[,] the appointing authority will refer it to his Staff Judge Advocate for consideration and advice.

When any person subject to military law is placed in arrest or confinement immediate steps will be taken to try the person accused or to dismiss the charge and release him. Any officer who is responsible for unnecessary delay in investigating or carrying the case to a final conclusion shall be punished as a courtmartial may direct. When a person is held for a trial by general court-martial, the commanding officer, within eight days after the accused is arrested or confined, if practicable, forward the charges to the officer exercising general court-martial jurisdiction and furnish the accused a copy of such charges. If the same be not practicable, he will report to superior authority the reasons for delay. The trial judge advocate will cause to be served upon the accused a copy of the charges upon which trial is to be had, and a failure so to serve such charges will be ground for a continuance unless the trial be had on the charges furnished the accused as hereinbefore provided. In time of peace[,] no person shall, against his objection, be brought to trial before a general court-martial within a period of five days subsequent to the service of charges upon him. (As amended by RA 242). (Emphasis supplied.)

The formal written accusation in court-martial practice consists of two parts, the technical charge and the specification. The charge, where the offense alleged is a violation of the articles, merely indicates the article the accused is alleged to have violated while the specifications sets forth the specific facts and circumstances relied upon as constituting the violation. Each specification, together with the charge under which it is placed, constitutes a separate accusation. The term charges or charges and specifications is applied to the formal written accusation or accusations against an accused.

The first part of Article 71 of the Articles of War categorically provides that charges and specifications must be signed by a person subject to military law, who under oath states that he either has personal knowledge of, or has investigated, the matters set forth therein and that the same are true in fact, to the best of his knowledge and belief. Further, the second paragraph of Article 71 explicitly provides that no charge will be referred to a general courtmartial for trial until after a thorough and impartial investigation thereof shall have been made. A charge is made followed by a thorough and impartial investigation and if the result

of the investigation so warrants, the charge is referred to the general court martial. Contrary to petitioners contention, Article 71 makes no qualification that there can be a charge against a person subject to military law only if a pre-trial has been completed and the case has been referred to a court martial. What Article 71 instructs is that no charges, i.e. charges and specifications signed by a person subject to military law under oath, may be referred to a general court-martial for trial until after a thorough and impartial investigation thereof shall have been made. Article 71 does not make the thorough and impartial investigation a prerequisite before charges may be filed against a person subject to military law. Clearly, the thorough and impartial investigation is a prerequisite not to making a charge against a person subject to military law, but to the referral of the charge to the general court martial. It is the charge which comes prior to the investigation, and which sets into motion the investigation.

We find that there was compliance with the requirements of the Articles of War. As shown by the evidence on record, the amended charge sheets against Major Aquino, containing the charges and the specifications for violations of Article 67 (Attempting to Begin or Create Mutiny) and Article 96 (Conduct Unbecoming an Officer and Gentleman) of the Articles of War, were personally signed under oath by Capt. Armando P. Paredes, a person subject to military law. The amended charge sheets were sworn to by the accuser, Capt. Armando P. Paredes in the manner provided under Article 71. As it is, Major Aquino stands charged in court martial proceedings for alleged violations of the Articles of War.

In Kapunan, Jr. v. De Villa, this Court denied the writ of habeas corpus prayed for, and upheld the legality of the confinement even when there was merely a substantial compliance with the procedural requisites laid down in Article 71. In said case, the Court held that the fact that the charge sheets were not certified in the manner provided by the pertinent law, i.e., that the officer administering the oath has personally examined the affiant and is satisfied that the latter voluntarily executed and understood his affidavit, does not invalidate said charge sheets. With more reason do we herein uphold the validity of the amended charge sheets against Major Aquino considering that they were executed in accordance with the law, and without breach of Article 71 of the Articles of War. Aquino pursuant to Article 70 of the Articles of War. The preferment of charges under Article 71 is a ground for the confinement or arrest of Major

It bears stressing that subsequent to the preferment of charges under Article 70, the Judge Advocate General of the General Headquarters of the AFP, issued Office Order Number 14-06, creating a Pre-trial Investigation Panel to investigate the case of Major Aquino and his co-accused. In addition, the Office of the Judge Advocate General issued a subpoena and a notice of pre-trial investigation to Major Aquino summoning him to appear in person before the Pre-trial Investigation Panel. Furthermore, Major Aquino was given the opportunity to submit counter-affidavits and affidavits of his witnesses. More significantly, Major Aquino was present during the scheduled investigation. His arrest and confinement cannot be said to be without due process of law.

Perforce, we do not find that the Court of Appeals erred in denying petitioners Petition for Habeas Corpus for the person of Major Aquino. A writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled to it. As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty is in the custody of an officer under a process issued by the court which has jurisdiction to do so. Its essential object and purpose is to inquire into all manner of involuntary restraint and to relieve a person from it if such restraint is illegal. In the case at bar, Major Aquino stands charged in court martial proceedings for alleged violations of Article 67 (Attempting to Begin or Create Mutiny) and Article 96 (Conduct Unbecoming an Officer and Gentleman) of the Articles of War. The legality of Major Aquinos restraint having been settled, the privilege of the writ is unavailing.

We proceed to discuss jointly the second and third issues raised by the petitioner before this Court.

Petitioner contends that in his confinement, Major Aquino was not restricted to his barracks, quarters or tent as mandated by Article 70 of the Articles of War; rather, he was placed in solitary confinement in a maximum security detention cell. When petitioner proceeded to the detention cell, she alleged that she was restricted from visiting her husband. Petitioner

asserts that these are extreme punishments akin to treating Major Aquino as a convicted criminal.

We are not impressed.

At this juncture, it must be stressed that respondents deny the solitary confinement of Major Aquino. According to respondents, Major Aquino is confined in a U-shaped building without any division/partition. The place is described as a long hall with 50 double-deck beds. Respondents also asseverate that Major Aquino is confined along with 16 other military personnel who were similarly charged in the 23-24 February 2006 incident.

While it is true that the extraordinary writ of habeas corpus is the appropriate remedy to inquire into questions of violations of constitutional right, this Court, however, does not find the conditions of Major Aquinos confinement to be a proper subject of inquiry in the instant Petition.

This Court has declared that habeas corpus is not the proper mode to question conditions of confinement.

In Alejano v. Cabuay, lawyers of soldiers and pre-trial detainees accused of coup detat before the Regional Trial Court of Makati came to this Court bewailing the regulations adopted by the Chief of the Intelligence Service of the Armed Forces of the Philippines (ISAFP) who had custody over their clients. Therein petitioners claimed that their constitutional rights were violated because they were prevented from seeing the detainees their clientsat any time of the day or night. They also alleged that the detainees constitutional right to privacy of communication were violated because ISAFP officials opened and read the personal letters of some of the detainees. They also challenged, as unusual and excessive punishment, the presence of the bars separating the detainees from their visitors and the boarding of the iron grills in their cells with plywood. In denying the

petition, this Court declared that the fact that the restrictions inherent in detention intrude into the detainees desire to live comfortably does not convert those restrictions into punishment. Said the Court in Alejano:

Bell v. Wolfish [441 U.S. 520 (1979)] pointed out that while a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law, detention inevitably interferes with a detainees desire to live comfortably. The fact that the restrictions inherent in detention intrude into the detainees desire to live comfortably does not convert those restrictions into punishment. It is when the restrictions are arbitrary and purposeless that courts will infer intent to punish. Courts will also infer intent to punish even if the restriction seems to be related rationally to the alternative purpose if the restriction appears excessive in relation to that purpose. Jail officials are thus not required to use the least restrictive security measure. They must only refrain from implementing a restriction that appears excessive to the purpose it serves. (Emphasis supplied.)

Furthermore, the following guidelines were given by the Court to determine if an action constitutes punishment, to wit: (1) that action causes the inmate to suffer some harm or disability, and (2) the purpose of the action is to punish the inmate. It is also an additional requisite that the harm or disability be significantly greater than, or be independent of, the inherent discomforts of confinement. We do not see the attendance of the foregoing factors in the instant case. There are no specific facts that are brought to the attention of this Court to indicate the punitive character of the confinement. The confinement is not herein imposed as a punishment. We do not see that the confinement of Major Aquino causes him to suffer some harm or disability. There is no punitive hardship that exists in the case at bar. In fact, petitioner does not even allege a single act which would show such harm or such disability as to prove that the same is significantly greater than, or independent of, the inherent discomforts of confinement. To be sure, the first part of Article 70 of the Articles of War grants discretion to military authorities over the imposition of arrest or confinement of persons subject to military law charged with crime or with serious offense, viz: Art. 70. Arrest or Confinement. Any person subject to military law charged with crime or with a serious offense under these Articles shall be placed in

confinement or in arrest, as circumstances may require , but when charged with a minor offense only, such person shall not ordinarily be placed in confinement. Any person placed in arrest under the provisions of this Article shall thereby be restricted to his barracks, quarters, or tent, unless such limits shall be enlarged by proper authority. Any officer or cadet who breaks his arrest or who escapes from confinement, whether before or after trial or sentence and before he is set at liberty by proper authority, shall be dismissed from the service or suffer such other punishment as a court-martial may direct, and any other person subject to military law who escapes from confinement or who breaks his arrest, whether before or after trial or sentence and before he is set at liberty by proper authority, shall be punished as a court-martial may direct. (Emphasis supplied.)

Major Aquino is charged with violations of Article 67, for attempting to begin or create mutiny, and Article 97, for Conduct Unbecoming an Officer and Gentleman. According to Article 67, any person subject to military law who attempts to create or who begins, excites, causes or joins in any mutiny shall suffer death or such other punishment as a court-martial may direct. It cannot be gainsaid that in determining the circumstances of arrest and confinement in Article 70 of persons charged with crime or with serious offense, such circumstances as the gravity of the offense charged may be considered.

Anent petitioners allegation that she was restricted from visiting Major Aquino, the Court had in the past underscored the hands-off doctrinea deference given by courts to military custodians over prison matters, especially on blanket restrictions on contact visit.

In Alejano, we gave reasons for the allowance of such restrictions, thus:

Block v. Rutherford [468 U.S. 576 (1984)], which reiterated Bell v. Wolfish, upheld the blanket restriction on contact visits as this practice was reasonably related to maintaining security. The safety of innocent individuals will be jeopardized if they are exposed to detainees who while not yet convicted are awaiting trial for serious, violent offenses and may have prior criminal conviction. Contact visits make it possible for the detainees to hold visitors and jail staff hostage to effect escapes.

Contact visits also leave the jail vulnerable to visitors smuggling in weapons, drugs, and other contraband. The restriction on contact visit was imposed even on low-risk detainees as they could also potentially be enlisted to help obtain contraband and weapons. The security consideration in the imposition of blanket restriction on contact visits was ruled to outweigh the sentiments of the detainees.

Block v. Rutherford held that the prohibition of contact visits bore a rational connection to the legitimate goal of internal security. This case reaffirmed the hands-off doctrine enunciated in Bell v. Wolfish, a form of judicial selfrestraint, based on the premise that courts should decline jurisdiction over prison matters in deference to administrative expertise.

As a rule, therefore, the writ of habeas corpus does not extend into questions of conditions of confinement; but only to the fact and duration of confinement. The high prerogative writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint. Its object is to inquire into the legality of ones detention, and if found illegal, to order the release of the detainee. It is not a means for the redress of grievances or to seek injunctive relief or damages. We reiterate the pronouncement of this Court in Alejano:

The ruling in this case, however, does not foreclose the right of detainees and convicted prisoners from petitioning the courts for the redress of grievances. Regulations and conditions in detention and prison facilities that violate the Constitutional rights of the detainees and prisoners will be reviewed by the courts on a case-by-case basis. The courts could afford injunctive relief or damages to the detainees and prisoners subjected to arbitrary and inhumane conditions. However, habeas corpus is not the proper mode to question conditions of confinement. The writ of habeas corpus will only lie if what is challenged is the fact or duration of confinement. (Emphasis supplied.)

In sum, we find the present Petition to be devoid of merit.

WHEREFORE, the Petition is DENIED. -

No costs.

AM No. 07-9-12-SC (Writ of Amparo) Republic of the Philippines SUPREME COURT Manila

A.M. No. 07-9-12-SC (25 September 2007) THE RULE ON THE WRIT OF AMPARO SECTION 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. SEC. 2. Who May File. The petition may be filed by the aggrieved party or by any qualified person or entity in the following order: a. Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; b. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or c. Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein. SEC. 3. Where to File. The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines. When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such court or judge. When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of

their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. SEC. 4. No Docket Fees. The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately. SEC. 5. Contents of Petition. The petition shall be signed and verified and shall allege the following: a. The personal circumstances of the petitioner; b. The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation; c. The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; d. The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; e. The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and f. The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs. SEC. 6. Issuance of the Writ. Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance. SEC. 7. Penalty for Refusing to Issue or Serve the Writ. A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. SEC. 8. How the Writ is Served. The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply.

SEC. 9. Return; Contents. Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following: a. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; b. The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; c. All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and d. If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: i. ii. to verify the identity of the aggrieved party; to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; to identify witnesses and obtain statements from them concerning the death or disappearance; to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; to identify and apprehend the person or persons involved in the death or disappearance; and to bring the suspected offenders before a competent court.

iii.

iv.

v.

vi.

The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. A general denial of the allegations in the petition shall not be allowed. SEC. 10. Defenses not Pleaded Deemed Waived. All defenses shall be raised in the return, otherwise, they shall be deemed waived. SEC. 11. Prohibited Pleadings and Motions. The following pleadings and motions are prohibited: a. Motion to dismiss; b. Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; c. Dilatory motion for postponement;

d. Motion for a bill of particulars; e. Counterclaim or cross-claim; f. Third-party complaint;

g. Reply; h. Motion to declare respondent in default; i. j. Intervention; Memorandum;

k. Motion for reconsideration of interlocutory orders or interim relief orders; and l. Petition for certiorari, mandamus or prohibition against any interlocutory order.

SEC. 12. Effect of Failure to File Return. In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte. SEC. 13. Summary Hearing. The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining 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. 14. Interim Reliefs. Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs: (a) Temporary Protection Order. The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved. The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. (b) Inspection Order. The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons. (c) Production Order. The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. (d) Witness Protection Order. The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. SEC. 15. Availability of Interim Reliefs to Respondent. Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section. A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent. SEC. 16. Contempt. The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine. SEC. 17. Burden of Proof and Standard of Diligence Required. The parties shall establish their claims by substantial evidence.

The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. SEC. 18. Judgment. The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. SEC. 19. Appeal. Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The appeal shall be given the same priority as in habeas corpus cases. SEC. 20. Archiving and Revival of Cases. The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives. A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case. The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule not later than the first week of January of every year. SEC. 21. Institution of Separate Actions. This Rule shall not preclude the filing of separate criminal, civil or administrative actions. SEC. 22. Effect of Filing of a Criminal Action. When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. SEC. 23. Consolidation. When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. 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.

After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition. SEC. 24. Substantive Rights. This Rule shall not diminish, increase or modify substantive rights recognized and protected by the Constitution. SEC. 25. Suppletory Application of the Rules of Court. The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule. SEC. 26. Applicability to Pending Cases. This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts. SEC. 27. Effectivity. This Rule shall take effect on October 24, 2007, following its publication in three (3) newspapers of general circulation. AM No. 08-1-16-SC (Writ of Habeas Data) Republic of the Philippines SUPREME COURT Manila EN BANC A. M. No. 08-1-16-SC January 22, 2008 THE RULE ON THE WRIT OF HABEAS DATA RESOLUTION Acting on the recommendation of the Chairperson of the Committee on Revision of the Rules of Court submitting for this Courts consideration and approval the proposed Rule on the Writ of Habeas Data, the Court Resolved to APPROVE the same. This Resolution shall take effect on February 2, 2008, following its publication in three (3) newspapers of general circulation. January 22, 2008. THE RULE ON THE WRIT OF HABEAS DATA SECTION 1. Habeas Data. - The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private 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. SEC. 2. Who May File. - Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by:

(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or SEC. 3. Where to File. - The petition may be filed with the Regional Trial Court where the petitioner or 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. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices. SEC. 4. Where Returnable; Enforceable. - When the writ is issued by a Regional Trial Court or any judge thereof, it shall be returnable before such court or judge. When issued by the Court of Appeals or the Sandiganbayan or any of its justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the 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. When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Court of Appeals or the Sandiganbayan or any of its justices, or to any Regional Trial Court of the 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. The writ of habeas data shall be enforceable anywhere in the Philippines. Sec. 5. Docket Fees. - No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docked and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the petition. SEC. 6. Petition. - A verified written petition for a writ of habeas data should contain: (a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and

(f) Such other relevant reliefs as are just and equitable. SEC. 7. Issuance of the Writ. - Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from the issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance. SEC. 8. Penalty for Refusing to Issue or Serve the Writ. - A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. SEC. 9. How the Writ is Served. - The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. SEC. 10. Return; Contents. - The respondent shall file a verified written return together with supporting affidavits within five (5) working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following: (a) The lawful defenses such as national security, state secrets, privileged communications, confidentiality of the source of information of media and others; (b) In case of respondent in charge, in possession or in control of the data or information subject of the petition; (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and, (iii) the currency and accuracy of the data or information held; and, (c) Other allegations relevant to the resolution of the proceeding. A general denial of the allegations in the petition shall not be allowed. SEC. 11. Contempt. - The court, justice or judge may punish with imprisonment or fine a respondent who commits contempt by making a false return, or refusing to make a return; or any person who otherwise disobeys or resist a lawful process or order of the court. SEC. 12. When Defenses May be Heard in Chambers. - A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the

data or information cannot be divulged to the public due to its nature or privileged character. Sec. 13. Prohibited Pleadings and Motions. - The following pleadings and motions are prohibited: (a) Motion to dismiss; (b) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; (c) Dilatory motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint; (g) Reply; (h) Motion to declare respondent in default; (i) Intervention; (j) Memorandum; (k) Motion for reconsideration of interlocutory orders or interim relief orders; and (l) Petition for certiorari, mandamus or prohibition against any interlocutory order. SEC. 14. Return; Filing. - In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence. SEC. 15. Summary Hearing. - The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. SEC. 16. Judgment. - The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. Upon its finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within five (5) working days. SEC. 17. Return of Service. - The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. The return shall

contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent. The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ. SEC. 18. Hearing on Officers Return. - The court shall set the return for hearing with due notice to the parties and act accordingly. SEC. 19. Appeal. - Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the judgment or final order. The appeal shall be given the same priority as in habeas corpus and amparo cases. SEC. 20. Institution of Separate Actions. - The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions. SEC. 21. Consolidation. - When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition. SEC. 22. Effect of Filing of a Criminal Action. - When a criminal action has been commenced, no separate petition for the writ shall be filed. The relief under the writ shall be available to an aggrieved party by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. SEC. 23. Substantive Rights. - This Rule shall not diminish, increase or modify substantive rights. SEC. 24. Suppletory Application of the Rules of Court. - The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule. SEC. 25. Effectivity. - This Rule shall take effect on February 2, 2008, following its publication in three (3) newspapers of general circulation. SO ORDERED. In Re: Melissa Roxas

In the Matter of the Petition for the Writ of Amparo and the Writ of Habeas Data in Favor of Melissa C. Roxas Melissa C. Roxas vs. Gloria Macapagal-Arroyo, et al. G. R. No. 189155, September 7, 2010,En BancPerez, J.FACTS:Roxas is an American citizen of Filipino descent. While in the United States,she is enrolled in an exposure program to the Philippines with the group BagongAlyansang Makabayan- United States of America (BAYAN-USA) of which she is a member. During the course of her immersion, Roxas toured various provinces andtowns in Central Luzon and, in April of 2009, she volunteered to join members of BAYAN-Tarlac in conducting an initial health survey in La Paz, Tarlac for a future medical mission.A f t e r d o i n g s u r v e y w o r k o n 1 9 M a y 2 0 0 9 , R o x a s a n d h e r c o m p a n i o n s , Carabeo amd Jandoc, decided to rest in the house of Mr. Paolo in Sitio Bagong Sikat,Barangay Kapanikian, La Paz, Tarlac. At around 1:30 in the afternoon, however, Roxas, her companions and Mr. Paolo were startled by the loud sounds of someonebanging at the front door and a voice demanding that they open-up. Suddenly 15heavily armed men forcibly opened the door, banged inside, tied and blindfoldedRoxas and her companions, Carabeo and Jandoc, then dragged them inside a van p a r k e d o u t s i d e t h e h o u s e . T h e a r m e d m e n w e r e a l l i n c i v i l i a n c l o t h e s a n d w e r e wearing bonnets to conceal their faces.A f t e r a b o u t a n h o u r o f t r a v e l l i n g , t h e v a n s t o p p e d . R o x a s , C a r a b e o a n d Jandoc were ordered to alight. After she was informed that she was detained forbeing a member of the Communist Party of the Philippines New Peoples Army (CPP-NPA), Roxas was separated from her companions and was escorted to a roomwhich she believed is a jail cell from the sound of the metal doors. From there shecould hear the sounds of gunfire, the noise of planes taking off and landing andsome construction bustle. Roxas inferred that she was taken to the military camp of Fort Magsaysay in Laur, Nueva Ecija.O n M a y 2 5 , 2 0 0 9 , R o x a s w a s f i n a l l y r e l e a s e d a n d r e t u r n e d t o h e r u n c l e s house in Quezon City. Before being release, the abductors gave her a cellphone with a sim card, a slip of paper cantaining an email address with password, a plasticbag containing biscuits and books, the handcuffs used on her, a blouse and a pair of s h o e s . S h e w a s a l s o s t e r n l y w a r n e d n o t t o r e p o r t t h e i n c i d e n t t o t h e g r o u p Karapatan or else something bad will happen to her and her family. Sometime afterh e r r e l e a s e , Roxas continued to receive calls from one of her abductors via t h e cellular phone given to her. Out of apprehension that she was being monitored andalso fearing for the safety of her family, Roxas threw away the cellphone.Roxas fied a petition for writ of amparo and writ of habeas data. T h e C o u r t o f A p p e a l s g r a n t e d h e r p e t i t i o n f o r w r i t o f a m p a r o a n d w r i t o f habeas data. However, the appellate court absolved the respondents from the petition. Her prayer for the return of her personal belongings and for the inspectionorder and production order were denied. Roxas invokes he doctrine of command responsibility to implicate the high-ranking civilian and military authorities.ISSUES:a.Whether or not the principle of command responsibility shall apply in writ of amparo?b.Whether or not the respondents are liable in her abduction and torture? c . W h e t h e r o r n o t h e r p r a y e r f o r t h e r e t u r n o f h e r p e r s o n a l b e l o n g i n g s b e granted?d.Whether or not her prayer for inspection order be granted?e.Whether or not the grant of writ of habeas data is proper? RULING:a.It must be stated at the outset that the use by the petitioner of the doctrine o f c o m m a n d r e s p o n s i b i l i t y a s t h e j u s t i f i c a t i o n i n i m p l e a d i n g t h e p u b l i c respondents in her amparo petition, is legally inaccurate, if not incorrect. Thed o c t r i n e o f c o m m a n d

r e s p o n s i b i l i t y i s a r u l e o f s u b s t a n t i v e l a w t h a t establishes liability and, by this account, cannot be a proper legal basis to implead a partyrespondent in an amparo petition. According to Fr. Bernas,"command responsibility," in its simplest terms, means the "responsibility of commanders for crimes committed by subordinate members of the armed f o r c e s o r o t h e r p e r s o n s s u b j e c t t o t h e i r c o n t r o l i n i n t e r n a t i o n a l w a r s o r domestic conflict." In this sense, command responsibility is properly a form of c r i m i n a l c o m p l i c i t y . S i n c e t h e a p p l i c a t i o n o f c o m m a n d r e s p o n s i b i l i t y presupposes an imputation of individual liability, it is more aptly invoked in afull-blown criminal or administrative case rather than in a summary amparoproceeding. The obvious reason lies in the nature of the writ itself: The writ of amparo is a protective remedy aimed at providing judicial relief consistingof the appropriate remedial measures and directives that may be crafted bythe court, in order to address specific violations or threats of violation of theconstitutional rights to life, liberty or security. While the principal objective of i t s proceedings is the initial determination of whether an e n f o r c e d disappearance, extralegal killing or threats thereof had transpired the writdoes not, by so doing, fix liability for such disappearance, killing or threats,whether that may be criminal, civil or administrative under the applicablesubstantive law. It must be clarified, however, that the inapplicability of thedoctrine of command responsibility in an amparo proceeding does not, by a n y measure, preclude impleading military or police commanders on t h e ground that the complained acts in the petition were committed with theird i r e c t o r i n d i r e c t a c q u i e s c e n c e . I n w h i c h c a s e , c o m m a n d e r s m a y b e impleadednot actually on the basis of command responsibilitybut ratheron the ground of their responsibility, or at least accountability. b.The totality of the evidence presented by the petitioner does n o t i n s p i r e reasonable conclusion that her abductors were military or police personneland that she was detained at Fort Magsaysay. First. In amparo proceedings,the weight that may be accorded to parallel circumstances as evidence of military involvement depends largely on the availability or non-availability of other pieces of evidence that has the potential of directly proving the identitya n d a f f i l i a t i o n o f t h e p e r p e t r a t o r s . D i r e c t e v i d e n c e o f i d e n t i t y , w h e n obtainable, must be preferred over mere circumstantial evidence based on p a t t e r n s a n d s i m i l a r i t y , b e c a u s e t h e f o r m e r i n d u b i t a b l y o f f e r s g r e a t e r certainty as to the true identity and affiliation of the perpetrators. An amparoc o u r t c a n n o t s i m p l y l e a v e t o r e m o t e a n d h a z y i n f e r e n c e w h a t i t c o u l d otherwise clearly and directly ascertain. In the case at bench, petitioner was,in fact, able to include in her Offer of Exhibits, the cartographic sketches of several of her abductors whose faces she managed to see. To the mind of theCourt, these cartographic sketches have the undeniable potential of givingthe greatest certainty as to the true identity and affiliation of petitionersa b d u c t o r s . U n f o r t u n a t e l y f o r t h e p e t i t i o n e r , t h i s p o t e n t i a l h a s n o t b e e n realized in view of the fact that the faces described in such sketches remainunidentified, much less have been shown to be that of any military or policepersonnel. Bluntly stated, the abductors were not proven to be part of eithert h e military or the police chain of command. Second. The claim of thep e t i t i o n e r t h a t s h e w a s t a k e n t o F o r t M a g s a y s a y w a s n o t a d e q u a t e l y established by her mere estimate of the time it took to reach the place

whereshe was detained and by the sounds that she heard while thereat. Like theCourt of Appeals, the Supreme Court are not inclined to take the estimate and observations of the petitioner as accurate on its facenot only becausethey were made mostly while she was in blindfolds, but also in view of thefact that she was a mere sojourner in the Philippines, whose familiarity withFort Magsaysay and the travel time required to reach it is in itself doubtful.With nothing else but obscure observations to support it, petitioners claim that she was taken to Fort Magsaysay remains a mere speculation.c.In an order directing the public respondents to return the personal belongings o f t h e p e t i t i o n e r i s a l r e a d y e q u i v a l e n t t o a c o n c l u s i v e p r o n o u n c e m e n t o f liability. The order itself is a substantial relief that can only be granted once the liability of the public respondents has been fixed in a full and exhaustivep r o c e e d i n g . A s a l r e a d y d i s c u s s e d a b o v e , m a t t e r s o f l i a b i l i t y a r e n o t determinable in a mere summary amparo proceeding. But perhaps the morefundamental reason in denying the prayer of the petitioner, lies with the factt h a t a p e r s o n s r i g h t t o b e r e s t i t u t e d o f h i s p r o p e r t y i s a l r e a d y s u b s u m e d under the general rubric of property rightswhich are no longer protected bythe writ of amparo. Section 1 of the Amparo Rule, which defines the scope and extent of the writ, clearly excludes the protection of property rights.d.The prayer of Roxas for the grant of the inspection order is equivalent tosanctioning a "fishing expedition," which was never intended by the AmparoRule in providing for the interim relief of inspection order. An inspectionorder is an interim relief designed to give support or strengthen the claim of a petitioner in an amparo petition, in order to aid the court before making adecision. A basic requirement before an amparo court may grant aninspection order is that the place to be inspected is reasonably determinablefrom the allegations of the party seeking the order. While the Amparo Ruledoes not require that the place to be inspected be identified with clarity andprecision, it is, nevertheless, a minimum for the issuance of an inspection order that the supporting allegations of a party be sufficient in itself, so as tomake a prima facie case. This, as was shown above, petitioner failed to do.Since the very estimates and observations of the petitioner are not strongenough to make out a prima facie case that she was detained in FortMagsaysay, an inspection of the military camp cannot be ordered. Aninspection order cannot issue on the basis of allegations that are, inthemselves, unreliable and doubtful.e . T h e w r i t o f h a b e a s d a t a w a s c o n c e p t u a l i z e d a s a j u d i c i a l remedy enforcingthe right to privacy, most especially the right to informational privacy of i n d i v i d u a l s . T h e w r i t o p e r a t e s t o p r o t e c t a p e r s o n s r i g h t t o c o n t r o l information regarding h i m s e l f , p a r t i c u l a r l y i n t h e i n s t a n c e s w h e r e s u c h information is being collected through unlawful means in order to achieveunlawful ends. Needless to state, an indispensable requirement before the privilege of the writ may be extended is the showing, at least by substantialevidence, of an actual or threatened violation of the right to privacy in life, l i b e r t y o r s e c u r i t y o f t h e v i c t i m . T h i s , i n t h e c a s e a t b e n c h , t h e p e t i t i o n e r failed to do. The main problem behind the ruling of the Court of Appeals isthat there is actually no evidence on record that shows that any of the publicrespondents had violated or threatened the right to privacy of the petitioner. The act ascribed by the Court of Appeals to the public respondents that wouldhave violated or threatened the right to privacy of the petitioner, i.e., keepingrecords of investigations and other reports about the petitioners ties with theC P P - N P A , w a s n o t a d e q u a t e l y p r o v e n c o n s i d e r i n g t h a t t h e o r i g i n o f s u c h records were virtually

unexplained and its existence, clearly, only inferred byt h e a p p e l l a t e c o u r t f r o m t h e v i d e o a n d p h o t o g r a p h r e l e a s e d b y Representatives Palparan and Alcover in their press conference. No evidenceon record even shows that any of the public respondents had access to suchvideo or photograph. In view of the above considerations, the directive bythe Court of Appeals enjoining the public respondents from "distributing orcausing the distribution to the public any records in whatever form, reports, documents or similar papers" relative to the petitioners "alleged ties with theCPP-NPA," appears to be devoid of any legal basis. The public respondents c a n n o t b e o r d e r e d t o r e f r a i n f r o m d i s t r i b u t i n g s o m e t h i n g t h a t , i n t h e f i r s t place, it was not proven to have.