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.
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,
G.R. No. L-6497
November 3, 1910
JUAN M. CRUZ, petitioner,
vs. THE DIRECTOR OF PRISONS, respondent.
TRENT, J.:
On October 14, 1910, there was presented in this court a petition on behalf of Juan M. Cruz, praying that a
writ ofhabeas corpus issue directed to the warden of Bilibid Prison, requiring him to bring the body of the
petitioner into court. The petition states that Juan M. Cruz is imprisoned and restrained of his personal liberty
in Bilibid Prison in the city of Manila by the warden of said prison without authority of law. It is further alleged
in the petition that the petitioner was tried, convicted, and sentenced by one of the Courts of First Instance of
the city of Manila in criminal cases Nos. 1489 and 966, he being sentenced in the first case to imprisonment

for a term of three years, to pay a fine of P1,000, and to the corresponding subsidiary imprisonment in case of
insolvency in the payment of the fine, and in the second case to a term of two years' imprisonment and to
pay a fine of $2,000 United States currency; that this last case was appealed to the Supreme Court and
affirmed, without subsidiary imprisonment in case the fine was not paid; that the petitioner having
extinguished these sentences is now entitled to his liberty.
An order was issued requiring the warden of Bilibid Prison to show cause, if any existed, why the writ should
not issue. On the return day thereof the said warden made return thereto in substance as follows:
That the petitioner is now undergoing in Bilibid Prison the sentences imposed upon him by the Court of First
Instance of the city of Manila, one of three years' imprisonment and a fine of P1,000, with the corresponding
subsidiary imprisonment in case of insolvency, for the crime of conspiracy against the Government, and the
other of two year's imprisonment and a fine of P4,000, for the crime of sedition; that the imprisonment
imposed in the two cases, without counting the subsidiary imprisonment, is five years; that the petitioner
having commenced to serve these sentences on the 15th of November, 1905, the same will expire on the
15th of November, 1910; that for good conduct, under the provisions of Act No. 1533 (the petitioner was not
allowed the full time for good conduct under this Act on account of certain violations of prison regulations),
the five years' imprisonment expired on the 4th of June, 1910; that the petitioner is now serving the
subsidiary imprisonment on account of his failure to pay the P1,00 fine in case No. 1489, which subsidiary
imprisonment will expire about the 9th of July, 1911, at the rate of P2.50 a day.
The writ as prayed for having been issued on the 21st of October, 1910, and the hearing having been set for
the 22nd of the same month, the case was submitted upon the answer of the respondent to show cause.
The respondent admits that the terms of imprisonment imposed upon the petitioner, after giving him the time
to which he is entitled for good conduct, expired on the 4th of June, 1910. The only question to determine is
the legality of that part of the sentence of the Court of First Instance condemning the petitioner to subsidiary
imprisonment in case of insolvency in the payment of the P1,000 fine. In this case the petitioner was tried
and convicted for having violated the provisions of Act No. 292 of the Philippine Commission, which went into
effect on the 4th day of November, 1901. Act No. 1732, which went into effect on November 1, 1907, provides
that when a fine is imposed as a whole, or as any part of the punishment for any criminal offense made
punishable by any Act or Acts of the Philippine Commission, the court shall also sentence the guilty person to
subsidiary imprisonment until the fine is satisfied; provided that such subsidiary imprisonment shall not, in
any case, exceed one year; but in case the court imposes both a fine and imprisonment the subsidiary
imprisonment shall not exceed one-third of the term of imprisonment imposed by such sentence. The penalty
of three years' imprisonment and a fine of P1,000 having been imposed upon the petitioner long before this
Act (No. 1732) went into effect, its provisions are not applicable to the question under considerations, as such
Act, being a penal statute, can not have a retroactive effect for the reason that such effect would not be
beneficial to the petitioner. (Art. 22, Penal Code; U.S. vs. Macasaet, 11 Phil. Rep., 447.) Prior to the passage of
Act No. 1732, Courts of First Instance had no authority to impose subsidiary imprisonment for failure to pay
fines in cases of conviction for violations of the Acts of the Philippine Commission, and such errors when
committed have been corrected by this court in those cases which were appealed. (U.S. vs. Hutchinson, 5
Phil. Rep., 343; U.S. vs. Lineses, 5 Phil. Rep., 631; U. S. vs. Macasaet,supra.)
In the case at bar the Court of First Instance had jurisdiction of the offense described in the complaint for
which the petitioner was tried. It had jurisdiction of the prisoner who was properly brought before it. It had
jurisdiction to hear and decide upon the defense offered by him, but it did not have power to sentence the
petitioner to subsidiary imprisonment in case of insolvency in the payment of the fine imposed. It is therefore
clear that that part of the judgment is void. This court at this time has no power to correct this error
committed by the court below, neither has it power to remand the case to the trial court for that purpose. The
fact that the petitioner did not appeal can not affect the question as the two penalties imposed are separate
and distinct. The courts uniformly hold that where a sentence imposes a punishment in excess of the power of
the court to impose, such sentence is void as to the excess, and some of the courts hold that the sentence is
void in toto; but the weight of authority sustains the proposition that such a sentence is void only as to the
excess imposed in case the parts are separable, the rule being that the petitioner is not entitled to his
discharge on a writ of habeas corpus unless he has served out so much of the sentence as was valid. (Ex
parte Erdmann, 88 Cal., 579; Lowrey vs. Hogue, 85 Cal., 600; Armstrong vs. People, 37 Ill., 459; State vs.
Brannon, 34 La. Ann., 942; People vs. Liscomb, 19 Amm. Rep., 211; In re Taylor, 7 S.D., 382, 45 L.R.A., 136; Ex
parte Mooney, 26 W. Va., 36, 53 Am. Rep., 59; U.S. vs.Pridgeon, 153 U.S., 48; In re Graham, 138 U.S., 461.)
The petitioner has served out, according to the return of the respondent to the order to show cause, the
entire part of the sentences which the court below had power to impose, and adhering to the rule that that
part of the sentences imposed by the court below in excess of its jurisdiction is void, the petitioner is entitled
to his release.lawphil.net
It is, therefore, ordered that the petitioner be discharged from custody and that the costs of these
proceedings be adjudged de oficio.
G.R. No. L-37959

August 31, 1932

IGNACIO P. PAGUNTALAN, petitioner,

vs. THE DIRECTOR OF PRISONS, respondent.
VILLA-REAL, J.:
This petition for the writ of habeas corpus was filed by prisoner Ignacio P. Paguntalan praying that after proper
proceedings the Director of Prisons be ordered to set him at liberty immediately, on the ground that he is
being illegally detained.
The illegality of his detention consists, according to the petitioner, in that he is not an habitual criminal,
according to the definition given in article 62, paragraph 5, of the Revised Penal Code and to the doctrine laid
down by this court in People vs. Santiago (55 Phil., 266) ; and, having already served four years, nine months,
and sixteen days of imprisonment, the remainder of the penalty imposed upon him is not authorized by law.
Article 62, paragraph 5, of the Revised Penal Code reads as follows:
ART. 62. Effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency.
Mitigating or aggravating circumstances and habitual delinquency shall be taken into account for the purpose
of diminishing or increasing the penalty in conformity with the following rules:
xxx
xxx
xxx
5. Habitual delinquency shall have the following effects:
(a) Upon a third conviction the culprit shall be sentenced to the penalty provided by law for the last crime of
which he be found guilty and to the additional penalty of prision correccional in its medium and maximum
periods;
(b) Upon a fourth conviction the culprit shall be sentenced to the penalty provided for the last crime of which
he be found guilty and to the additional penalty of prision mayor in its minimum and medium periods; and
(c) Upon a fifth or additional conviction, the culprit shall be sentenced to the penalty provided for the last
crime of which he be found guilty and to the additional penalty of prision mayor in its maximum period
to reclusion temporal in its minimum period.
Notwithstanding the provisions of this article, the total of the two penalties to be imposed upon the offender,
in conformity herewith, shall in no case exceed 30 years.
For the purposes of this article, a person shall be deemed to be habitual delinquent, if within a period of ten
years from the date of his release or last conviction of the crimes of robo, hurto, estafa, or falsificacion, he is
found guilty of any of said crimes a third time or oftener.
In People vs. Santiago, supra, this court enunciated the following doctrine:
CRIMINAL LAW; HABITUAL DELINQUENCY. When an habitual criminal has committed several crimes, without
being first convicted of any of them before committing the others, he cannot be sentenced for each of said
crimes to the gradually increasing additional penalty, and for the purposes of the law, said crimes must be
considered as one, applying the additional penalty to one of them, and ignoring the rest.
The facts in the present proceedings, upon which the petitioner bases his action, are as follows:
On January 7, 1915, the petitioner was sentenced by the Court of First Instance of Occidental Negros to two
years, four months, and one day of prision correccional for the crime of abduction, and set at liberty on March
4, 1917.
On December 8, 1921, the same petitioner was sentenced by the Court of First Instance of Manila to two
months and one day of arresto mayor for the crime of estafa.
On December 9, 1921 he was again sentenced by the Court of First Instance of Manila to three years, six
months, and twenty-one days of prision correccional for the crime of robbery.
On the same day, December 9, 1921, the petitioner was sentenced by the municipal court of Manila to two
months and one day of arresto mayor, and an indemnity of P145 for the crime of estafa.
On January 31, 1922, the same petitioner was sentenced by the Court of First Instance of Manila to one year,
eight months, and twenty-one days of prision correccional for the crime of robbery.
Having served the last three sentences, the petitioner was released on September 14, 1926.
On October 24, 1927, he was sentenced by the Court of First Instance of Batangas to 10 years' imprisonment
for the crime of robbery, besides an additional penalty of five years for habitual delinquency.
In the present case the petitioner does not invoke the benefit of article 22 of the Revised Penal Code, giving
retroactive effect to penal provisions so far as they are favorable to the accused, provided he is not an
habitual criminal, but seeks the review of a sentence which has proved erroneous in view of a subsequent
doctrine laid down by this court the error consisting in that, instead of counting the various convictions as one
only, due to the proximity and almost simultaneity of the commission of the several crimes of which the
petitioner was convicted, the same were considered as separate convictions for the purposes of the law
establishing habitual delinquency. This error could have been corrected by appeal, for it was rather an error of
judgment and not an undue exercise of judicial powers which vitiates and nullifies the proceeding. This court
has repeatedly held that mere errors of fact or law which do not nullify the proceedings taken by a court in
the exercise of its functions, having jurisdiction over the crime and over the defendant, cannot be corrected
through the special remedy of habeas corpus. (Trono Felipe vs. Director of Prisons, 24 Phil., 121; U.
S. vs. Jayme, 24 Phil., 90; McMicking vs. Schields, 238 U. S., 99; 41 Phil., 971.)

In view of the foregoing considerations and the doctrines laid down by this court, the herein petitioner being
committed in Bilibid Prison by virtue of a legal and valid judgment without having served his full sentence, the
petition for habeas corpus is hereby denied, without special pronouncement of costs. So ordered.
G.R. No. 89989 January 28, 1991
EDEN D. PAREDES, petitioner,
vs.
SANDIGANBAYAN, respondent.
Rolando A. Suarez and Generoso S. Sansaet for petitioner.
GRIO-AQUINO, J.:p
The issues in this habeas corpus case are: (1) whether the arrest and detention of the petitioner after a
preliminary investigation that was conducted by the Tanodbayan without notice to him, are valid, and (2)
whether the crime charged against him has already prescribed.
On January 21, 1976, Ceferino S. Paredes, Jr., then the Provincial Attorney of Agusan del Sur, applied for a free
patent for Lot No. 3097-A, PLS-67, with an area of 1,391 square meters, located beside the Washington
Highway in San Francisco, Agusan del Sur. His application was favorably acted upon by the Land Inspector,
Armando Luison. On May 11, 1976, OCT No. P-8379 was issued to him (p. 19, Rollo).
Eight (8) years later, on June 27, 1984, the Sangguniang Bayan of the Municipality of San Francisco passed
Resolution No. 40, requesting the Sangguniang Panlalawigan of Agusan del Sur to assist it in recovering Lot
No. 3097 from Attorney Paredes because the land had been designated and reserved as a school site. The
Sangguniang Bayan requested the provincial fiscal to file a perjury charge against Attorney Paredes, Jr. (p.
15,Rollo). The resolution was approved by the Sangguniang Panlalawigan (p. 16, Rollo). On March 28,1985,
Civil Case No. 512, for annulment of Attorney Paredes' title, was filed by the Republic in the Regional Trial
Court, Branch 6, Agusan del Sur (p. 17, Rollo).
During the pendency of Civil Case No. 512, Teofilo Gelacio, former vice-mayor of San Francisco, Agusan del
Sur, filed with the Tanodbayan on October 28, 1986, a criminal complaint charging Attorney Paredes with
having violated Section 3(a) of the Anti-Graft & Corrupt Practices Act (R.A. 3019) because he allegedly used
his office as Provincial Attorney to influence, persuade, and induce Armando Luison, Land Inspector of the
District Land Office in Agusan del Sur, to favorably indorse his free patent application. Section 3(a) of the
Anti-Graft Law provides:
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:
(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules
and regulations duly promulgated by competent authority or an offense in connection with the official duties
of the latter, or allowing himself to be persuaded, induced or influenced to commit such violation or offense.
On February 23, 1987, the Tanodbayan (now Ombudsman) referred the case to Fiscal Ernesto Brocoy of
Butuan City (TBP Case No. 86-03368) for preliminary investigation.
Fiscal Brocoy issued summons to Attorney Paredes, Jr. to appear at the preliminary investigation of the case
on August 29, 1987. However, the summons were served on November 19, 1987 upon the INP Station
Commander of San Francisco, instead of Atty. Paredes. The summons did not reach Attorney Paredes.
Nevertheless, without waiting for proof of service of the summons on the accused, Fiscal Brocoy proceeded to
conduct the preliminary examination of the complainant and his witnesses. On August 29, 1988, the fiscal
issued a resolution finding aprima facie case of violation of Section 3(a) of R.A. 3019 committed by the
accused. The Fiscal's resolution was approved by Tanodbayan Prosecutor Josephine Fernandez on June 26,
1989 (p. 22, Rollo).
Attorney Paredes filed a motion for reconsideration of the Tanodbayan's resolution. He assailed the validity of
the preliminary investigation that was conducted by Fiscal Brocoy without notice to him (pp. 23-25, Rollo). His
motion for reconsideration was denied.
In the local elections on January 18, 1988, Attorney Paredes was elected governor of Agusan del Sur.
On May 20, 1988, the Regional Trial Court of Agusan del Sur rendered a decision in Civil Case No. 512,
annulling Governor Paredes' Free Patent No. (X-8) 1253 and his OCT No. P-8379 and restoring the land "to the
mass of public domain" (pp. 85-98, Rollo).
On August 28,1988, an information was filed against Governor Paredes in the Sandiganbayan (Crim. Case No.
13800) and a warrant for his arrest, fixing bail of P20,000 for his provisional liberty, was issued on August 30,
1989 and served upon him (p. 12, Rollo). He refused to post bail in "protest against the injustice to him as
Governor," (p. 68, Rollo). Consequently, he was detained in the municipal jail of San Francisco.
On September 20, 1989, this petition for habeas corpus was filed by his wife, Mrs. Eden Paredes, against the
Sandiganbayan. She alleged that the warrant for her husband's arrest was void because the preliminary
investigation was void, and, that the crime charged in the information against him had already prescribed.
In his return of the Writ, the Solicitor General, as counsel for the Sandiganbayan, agreed that lack of notice to
Governor Paredes of the preliminary investigation was "a fatal defect" invalidating not only the preliminary

investigation, but also the information prepared by the Tanodbayan, and the warrant of arrest issued by the
Sandiganbayan (p. 54, Rollo). The Solicitor General agreed with the petitioner's contention that the ten year
prescriptive period of the offense under Section 11 of R.A. 3019, assuming it was committed on January 21,
1976, expired on January 21, 1986. Although the prescriptive period was increased to fifteen (15) years under
Section 4, B.P. Blg. 195 of March 16, 1982, the Solicitor General opined that the new law may not be applied
retroactively to Paredes.
On the other hand, the Ombudsman argued that the Sandiganbayan was improperly made respondent in this
case because it does not have custody of Governor Paredes; that the lack of preliminary investigation did not
affect the validity of the information nor the jurisdiction of the Sandiganbayan; and, that the crime has not
yet prescribed because the period of prescription commences to run not on the day the crime was committed
but on the day it was discovered by the offended party, the authorities, or their agents (Art. 91, Revised Penal
Code).
At the hearing of the petition of September 27, 1989, the Court directed the petitioner to implead the
Tanodbayan, through the Special Prosecutor, as well as the Ombudsman, as respondents. The Clerk of Court
was instructed to furnish them with copies of the petition and to require them to answer within ten (10) days.
The hearing of this case was reset on October 18, 1989 at 9:30 o'clock in the morning and provisional liberty
was granted Governor Ceferino Paredes, Jr. on his own recognizance pending the determination of the
petition.
On October 6, 1989, the Office of the Special Prosecutor filed its comment on the petition for habeas corpus.
The Special Prosecutor argued that since Paredes was charged in the Sandiganbayan for violation of Republic
Act 3019, and as the Sandiganbayan has jurisdiction over that offense, it is authorized to issue a warrant for
his arrest and a writ of habeas corpus may not issue to free him from the custody of the law.
After careful deliberation over the petition and the comments thereon of the Solicitor General, the Special
Prosecutor and the Ombudsman/Tanodbayan, the Court finds insufficient merit in the petition. The settled rule
is that the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty is in
custody of an officer under a process issued by the court which has jurisdiction to do so (Luna vs. Plaza, 26
SCRA 310; Celeste vs. People, 31 SCRA 391; Canary vs. Director of Prisons, 36 SCRA 39; Ventura vs. People, L46576, November 6, 1978).
The petitioner alleges that the information against Governor Paredes is invalid because the preliminary
investigation was invalid and the offense charged has already prescribed. Those circumstances do not
constitute valid grounds for the issuance of a writ of habeas corpus. The absence of a preliminary
investigation does not affect the court's jurisdiction over the case nor impair the validity of the information or
otherwise render it defective (People vs. Casiano, L-15309, February 16, 1961; People vs. Figueroa, L-24273,
April 30, 1969). The remedy of the accused in such a case is to call the attention of the court to the lack of a
preliminary investigation and demand, as a matter of right, that one be conducted. The court, instead of
dismissing the information, should merely suspend the trial and order the fiscal to conduct a preliminary
investigation. Thus did we rule in Ilagan vs.Enrile, 139 SCRA 349.
If the detained attorneys question their detention because of improper arrest, or that no preliminary
investigation has been conducted, the remedy is not a petition for a Writ of Habeas Corpus but a Motion
before the trial court to quash the Warrant of Arrest, and/or the Information on grounds provided by the
Rules, or to ask for an investigation / reinvestigation of the case. Habeas corpuswould not lie after the
Warrant of commitment was issued by the Court on the basis of the Information filed against the accused. So
it is explicitly provided for by Section 14, Rule 102 of the Rules of Court. . . . (Emphasis supplied).
Ilagan was a reiteration of this Court's ruling in People vs. Casiano, 1 SCRA 478 (1961) that:
The absence of a preliminary investigation does not affect the court's jurisdiction over the case. Nor does it
impair the validity of the information or otherwise render it defective. If there was no preliminary
investigation and the defendant, before entering his plea, calls the attention of the court to the absence of a
preliminary investigation, the court, instead of dismissing the information, should conduct such investigation,
order the fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may
be conducted.
The same rule was reiterated in the decision of this court in Doromal vs. Sandiganbayan, G.R. No. 85468,
September 7, 1989.
The defense of prescription of the offense charged in the information should be pleaded in the criminal action
otherwise it would be deemed waived (U.S. vs. Serapio, 23 Phil. 584, 598 citing Aldeguer vs. Hoskyn, 2 Phil.
500; Domingo vs. Osorio, 7 Phil. 405; Maxilom vs. Tabotabo, 9 Phil. 390; Harty vs. Luna, 13 Phil. 31; Sunico vs.
Ramirez, 14 Phil. 500). It is a proper ground for a motion to quash which should be filed before the
arraignment of the accused (Secs. 1 & 2, Rule 117, 1985 Rules of Criminal Procedure; People vs. Castro, L6407, July 29, 1954) for whether the crime may still be prosecuted and penalized should be determined in the
criminal case not in a special proceeding of habeas corpus.
All questions which may arise in the orderly course of a criminal prosecution are to be determined by the
court to whose jurisdiction the defendant has been subjected by the law, and the fact that a defendant has a
good and sufficient defense to a criminal charge on which he is held will not entitle him to his discharge on
habeas corpus. (12 R.C.L. 1206.) (Emphasis ours)

WHEREFORE, finding no merit in the petition, the same is hereby denied. The accused, Ceferino Paredes, Jr.
should file a bail bond of P20,000, fixed by the Sandiganbayan for his provisional liberty. Costs against the
petitioner.
SO ORDERED.
G.R. No. L-34115
February 21, 1931
FRANCISCO SALVAA and MODESTA SALIENDRA, petitioners-appellants,
vs. LEOPOLDO GAELA, in his private capacity and as Justice of the Peace of Lucban,
Tayabas, respondent-appellee..
VILLA-REAL, J.:
The instant appeal has been taken by the petitioners, Francisco Salvaa and Modesta Saliendra, from the
judgment of the Court of First Instance of Tayabas, the dispositive part of which reads as follows:
Let judgment be rendered dismissing the petition and denying the petitioners the custody of the minor
Felicisima Salvaa. A guardian shall be appointed as soon as possible, or upon the filing of the petition
announced at the hearing.
Let this case be placed on file as terminated. So ordered.
In support of their appeal the appellants assign the following alleged errors as committed by the trial court, to
wit:
1. The lower court erred in assuming the exclusive control of the trial when the return alleged private
authority.
2. The lower court erred in questioning and consulting the wishes of the child.
3. The lower court erred in pronouncing the petitioners who are legitimate parents of the minor as unworthy
of their trust as her natural guardians, without any hearing at all.
4. The lower court erred in the application of sections 551 and 553 of Act No. 190 to exercise the judicial
discretion in the matter of appointing a legal guardian in favor of the minor.
5. The trial court also erred in dismissing the application for the writ.
This appeal originated with a petition filed by the spouses Francisco Salvaa and Modesta Saliendra in the
Court of First Instance of Tayabas to recover the custody of their daughter Felicisima Salvaa, a 15-year old
single girl who is in the custody of the respondent and appellee, Leopoldo Gaela, justice of the peace of
Lucban, Tayabas.
Having been summoned upon the petition, the respondent filed an answer containing a general denial and a
special defense, the ninth paragraph of which reads as follows:
IX. That the herein respondent has never had the slightest intention of detaining said Felicisima Salvaa and
depriving her of her liberty, her stay in the undersigned's home being due not only to the request of the
petitioners herein, but also to that of Felicisima Salvaa, herself, who does not want to live in her parents'
home, because they maltreated he and wished her to marry a certain individual named Andres Laguador,
whom she does not care for.
At the hearing of the case before Judge Anastacio Teodoro of the Court of First Instance of Tayabas, an
informal investigation was made of which no notes were taken by the official stenographer of said court
questioning the girl and her parents, with a view to obtaining their consent to her marriage to Ambrosio Daza,
with whom she had eloped, inasmuch as she was already six months pregnant by said young man.
As his Honor failed of his object, he denied the petition and ordered the appointment of a guardian as soon as
possible, or upon the filing of the petition announced at the hearing based upon the following considerations:.
Whereas it has been shown that Felicisima Salvaa has chosen the home of respondent Leopoldo Gaela, of
her own free will because the latter had only daughters, and the minor Felicisima Salvaa therefore found it
convenient for her own interests to remain in said home; and whereas the court is convinced that the
petitioners seek by their acts to interfere with the personal liberty of their own daughter by inducing her to
make a cruel sacrifice, namely, to marry a man she does not care for, and against her will;
Let judgment be rendered dismissing the petition and denying the petitioners the custody of the minor
Felicisima Salvaa. A guardian shall be appointed as soon as possible, or upon the filing of the petition
announced at the hearing.
The first question to decide in this appeal is whether habeas corpus will lie for the recovery of the custody of
an unemancipated minor daughter who is under the custody of a third person of her own free will.
Section 525 of the Code of Civil Procedure provides that the writ of habeas corpus shall extend 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 thereto, except in cases expressly excepted.
Article 154 of the Civil Code provides that the father or, in his default, the mother may exercise parental
power over their unemancipated legitimate children; and article 155 imposes upon them the duty of keeping
such children in their company, educating and instructing them. Section 553 of the Code of Civil Procedure
recognized this parental power in providing that the parents are the natural guardians of their minor children
entitled to their custody and care for their education. (Ibaez de Aldecoa vs. Hongkong & Shanghai Banking
Corporation, 30 Phil., 288; 246 U. S., 621.)

Since the petitioners-appellants are entitled to the custody of their minor daughter Felicisima Salvaa, they
are also entitled to recover her by habeas corpus, in accordance with the provision of section 525 of the Code
of Civil Procedure cited above.
Now then, is the fact that the respondent-appellee neither actually detains nor has any intention of detaining
the minor, but that she insists upon remaining in his power of her own free will, a hindrance to the issuance of
the writ?
In the case of Reyes vs. Alvarez (8 Phil., 723), the parents of a girl whom they had confided to the care of
theBeaterio de la Compaia de Jesus from the age of 21 years, and who had lived there for thirteen years,
wanted to take her from there in order to have her in their company. The mother superior of that institution
stated that if the girl wished to leave and return to her parents, she would not prevent her. The girl said she
was there of her own free will and did not want to leave the college. This court granted the writ of habeas
corpus to enable the girl's parents to regain her custody.
In the case of In re Swall (Ann. Cas. 1915B, pp. 1015, 1016), decided on July 15, by the Supreme Court of
Nevada, the court said:
If the contention of counsel for petitioners is correct, that they are entitled to the custody of their minor child
by virtue of the mere fact that they are his natural parents and are not shown otherwise to be improper
persons to be instrusted with the custody of such minor, petitioners should prevail unless there is something
in the contention of respondents that they are not holding said minor under any physical restraint. In this, as
in probably most cases where a minor is abiding with persons who as to him are in loco parentis, no physical
restraint is necessary, for the natural inclination of the child does away with any necessity of force. But
where, as in this case, a right to the possession of the minor is claimed, the right to retain such possession by
such force as may be necessary may be assumed and that, if necessary, it would be exercised. Proceedings
in habeas corpus have so frequently been resorted to determine the right to the possession of a minor that
the question of physical restraint need be given little or no consideration where a lawful right is asserted to
retain possession of the child.
The fact, then, that a minor daughter is in the custody of a third person of her own free will, and without said
person's having the slightest intention of detaining her, is no hindrance to the issuance of a writ of habeas
corpusto enable her parents to regain custody of her person.
The second question to decide is whether the mere fact that the parents of a minor daughter have sought to
compel her to marry a young man of their choice, whom she does not care for, and the mere fact that they
have refused to consent to her marriage to another young man whom she favors, and with whom she has
eloped and by whom she is pregnant, are sufficient reasons for depriving said parents of their parental power
and custody of said minor daughter.
Section 553 of the Code of Civil Procedure, while recognizing, as stated heretofore, the parental authority of
the parents over their unemancipated minor children, with the right to their custody and education,
empowers courts to appoint some suitable person as guardian of said minors, as the best interests of the
latter may require.
Now then, to what extent and within what limits may courts exercise this discretional power to deprive
parents ofpatria potestas and the custody of their unemancipated minor children?
In regulating the relations between parents and children in regard to the custody and education of
unemancipated children, the Civil Code, as well as the Code of Civil Procedure, has had in view the interests
and welfare of said children; for this is the basis of article 171 of the Civil Code, which authorizes courts to
deprive parents of patria potestas or to suspend its exercise, if they treat their children with excessive cruelty
or, by orders or advices given them or example set them, tend to corrupt them; and section 770 of the Code
of Civil Procedure grants the courts the same authority, "when the parent or parents of any minor child shall
be unable through vagrancy, negligence, or misconduct to support such child, or if able, shall neglect or
refuse to support such child, or when such parent or parents shall unlawfully beat or otherwise habitually
maltreat such child, or cause or allow it to engage in common begging. . . ."
Taking the provisions of the Civil Code and of the Code of Civil Procedure together, it appears that the
discretional power conferred upon courts by section 553 of the procedural law above cited is limited or
conditioned by the provisions of article 171 of said Civil Code and section 770 of the Code of Civil Procedure,
enumerating the cases when parents may be deprived of patria potestas and, consequently, of the custody of
their unemancipated minor children.
The Supreme Court of Porto Rico, construing like provisions in the Porto Rican Civil Code in the case of Le
Hardyvs. Acosta (18 P. R. R., 438), said:
It is true that the well-being of the children should be carefully guarded by the courts; but they should
remember that the law has been enacted also with this end in view. (21 Cyc., 331, 332 and 333; In re Gates,
95 Cal., 461.) And, while the courts are in the line of duty in exercising the utmost vigilance in protecting
children in all their rights and from suffering any injury whatever, yet this care should be exerted here in the
manner pointed out by our Code; and it is the duty of the courts, in this as in all other cases, to tract the law.
As the trial court, with the very best intentions no doubt, has failed to observe the requirements of the
statutes in rendering the judgment appealed from, we must not allow the decision thus made to stand. The

father should have the absolute control and custody of his minor children, unless some excellent legal reason
to the contrary is alleged and proved.
(See also Arbona vs. Torrens, 24 P. R. R., 423; and Rojas vs. Colon, 27 P. R. R., 805.)
Let us now see if the facts in the present case justify the deprivation of the herein petitioners-appellants of
thepatria potestas and the custody of their minor daughter.
The concrete facts upon which the trial court relies to deprive the petitioners-appellants of the custody of
their minor daughter, denying their petition for habeas corpus are: That they have sought to compel their
aforesaid daughter to marry a young man against her will, and refuse to consent to her marriage with another
young man with whom she eloped and by whom she is to-day six months pregnant.
Neither the act compelling their unemancipated minor daughter to marry against her will, nor the act of
refusing to give their consent to her marriage, is included in the causes established by the laws we have cited
for depriving parents of patria potestas and the custody of their unemancipated minor children.
Although in the majority of cases when parents oblige their unemancipated minor children to marry against
their will they have at heart the welfare of those children, we disappove of such a practice, for while in time
and through fond and tender treatment, affection may follow and with it the happiness of the family, above all
should there be children, since marriage should be based upon mutual love and sympathy, there are not a
few cases where marriages not precluded by such sentiments have been unfortunate; and when the means
employed by parents to make their unemancipated minor children marry against their will is such as bring
about moral or physical sufferings, the intervention of the courts to deprive such parents of patria
potestas and the custody of said children will be justified.
In the present case, however, it does not appear that the parents of the minor Felicisima Salvaa insist upon
her marrying against her will, nor do we believe they will insist upon it on account of her present physiological
condition; the cruelty having ceased thereby, which would otherwise have justified depriving them of parental
authority, and if they now desire to keep her in their company, notwithstanding such condition, it is because
they love her.
It may be that by marrying the man by whom she is now pregnant, she would be happier than by living with
her own parents, but since the law does not authorize the deprivation of parental authority on the ground that
parents refuse to consent to the marriage of their unemancipated minor children, it would be a direct
violation of that law, depriving said parents of their parental authority. Unemancipated minor children, due to
the incomplete development of their mind and intellectual faculties, and to their lack of experience in the
world, need the counsel, care, and guidance of their progenitors in order to prevent the impulse of passion,
excited by worldly illusion which their undeveloped intellectual faculties are not strong enough to overcome,
from leading them to serious consequences.
In view of the foregoing considerations, we are of opinion and so hold: (1) That the writ of habeas corpus is
the proper legal remedy to enable parents to regain the custody of a minor daughter, even though the latter
be in the custody of a third person of her own free will; and (2) that neither the fact that the parents of a
minor daughter sought to compel her to marry against her will, where it does not appear such a purpose has
continued, nor their refusal to consent to her marriage to another young man, by whom she is pregnant, is a
legal ground for depriving said parents of their parental authority and the custody of said daughter.
By virtue whereof, the judgment appealed from is reversed, and the writ of habeas corpus granted, and since
it does not appear from the record that any guardian has qualified or taken over the minor Felicisima Salvaa,
the respondent is hereby ordered to deliver the person of said minor to her father Francisco Salvaa, without
special pronouncement of costs. So ordered.
Johnson, Malcolm, Johns and Romualdez, JJ., concur.
G.R. No. L-16779
March 30, 1921
LEE YICK HON, petitioner-appellee,
vs. THE INSULAR COLLECTOR OF CUSTOMS, defendant-appellant.
STREET, J.:
This is an appeal by the Insular Collector of Customs from the action of the Court of First Instance of Manila in
imposing upon him a fine of P50 for an alleged contempt of court. The circumstances connected with the
incident which gave rise to the proceeding are these:
It appears that on July 23, 1920, a petition for the writ of habeas corpus was filed in the Court of First Instance
of Manila by one Lee Yick Hon, alleging he had lately arrived from China at the port of Manila with a view to
entering the Philippine Islands, but was presented from so doing by the Insular Collector of Customs, who was
detaining him for deportation. Upon the presiding in Sala IV of said court, cited the collector to appear and
show cause in writing why the writ of habeas corpus should not be issued as prayed. This citation was served
at about 11 a.m., at which house arrangement had already been perfected for the deportation of Lee Yick Hon
on a boat scheduled to leave Manila for Hongkong at noon on the same day; and either by oversight or design
the Insular Collector failed to contermand the order for his embarcation on that boat. The result was that Lee
Yick Hon was deported within two or three hours after the Insular Collector had been served with the citation

to show cause in the habeas corpusproceeding. Thereupon contempt proceedings were instituted against the
Insular Collector, with the result already stated.
We are of the opinion that the action of the lower court in imposing fine on the appellant cannot be sustained;
and the judgment must accordingly be reserved.
The conditions under which a person can be punished for contempt are precisely defined in sections 231 and
232 of the Code of Civil Procedure; and unless the reprobated conduct legitimately falls under those
provisions, it cannot be punished as for contempt. The first of these sections contemplates misbehavior in the
presence of the court or so near the court of judge as to obstruct the administration of justice. With this
situation we are not here concerned, as the act which constitutes the alleged contempt was committed away
from the presence of the court and if punishable at all, it falls under subsection (1) of section 232, wherein it
is declared that nay person may be punished as for contempt who is guilty of "disobedience of or resistance
to a lawful writ, process, order, judgment, or command of the court or injunction granted by a court or judge."
In this case before us, if it be asked what lawful writ, process, order, judgment or command of the court or
judge below was disobeyed or resisted by the appellant, the answer must be: None whatever. The citation
that was served upon the appellant required him to appear at a stated time in the Court of First Instance of
Manila and show cause if any there might be, why the writ prayed for should not issue. That citation was
literally complied with when, on July 30, 1920, the Attorney-General, on behalf of the Insular Collector, filed
his answer, wherein it was in effect stated that the case of Lee Yick Hon had been regularly passed upon by
the special Board of Inquiry, and that it had been found that he had entered the Philippine Islands in
contravention of the Immigration and Exclusion Acts, wherefore the Insular Collector had ordered his
deportation. That answer, so far as appears in this case, has not been found to be false or insufficient; and
the sole ground relied upon to sustain the judgment finding the appellant guilty to contempt is that by
allowing Lee Yick Hon to be deported under the conditions stated he has frustrated the possible issuance of
the writ of habeas corpus for which application had been made.
At this point attention should be directed to the fact that the order to show cause, a copy of which was served
on the Insular Collector of Customs on July 23, 1920, is not the peremptory writ of habeas corpus,
unconditionally commanding the respondent to have the body of the detained person before the court at a
time and place therein specified. The requisites of the peremptory writ of habeas corpus are stated in section
533 of the Code of Civil Procedure; and appropriate forms are supplied in section 534 of said Code and in
section 82 of General Orders, No. 58. The order served in the case before us was merely a preliminary citation
requiring the respondent to appear and show cause why the peremptory writ should not be granted. The
practice of issuing a preliminary citation of this character, upon applications for the writ of habeas corpus,
has, as all legal practitioners are aware, become common in our courts; and upon considerations of practical
convenience, the usage has must be commend it, in cases where the necessity for the immediate issuance of
the peremptory writ is not manifest. Nevertheless in a case like that now before us, it is necessary to take
account of the difference between the preliminary citation and the real writ of habeas corpus; and when
advertence is had to this point, and the actual terms of the citation are considered, it is at one obvious that
the appellant did not put himself in contempt by allowing Lee Yick Hon to be deported.
Of course if the judge issuing the citation had his attention directed to the fact that the deportation of Lee
Yick Hon was imminent, and there had been any reason to fear that the Collector of Customs might proceed
with his deportation notwithstanding the service of the bare citation, his Honor could have penned a few
additional words, adding to the citation an admonition to the effect that the petitioner should not be deported
until his application for the writ of habeas corpus should be heard. If a temporary restraining order of that
kind had been issued, it would no doubt have been respected.
In proceeding against a person alleged to be guilty of contempt of court, it is not to be forgotten that such
proceedings are commonly treated as criminal in their nature even when the acts complained of are incidents
of civil actions. For this reason the mode of procedure and rules of evidence in contempt proceedings are
assimilated as far as practicable to those adapted to criminal prosecutions. (6 R. C. L., p. 530.) Moreover, it is
well settled that a person cannot be held liable for contempt in the violation of an injunction or in fact of any
judicial order unless the act which is forbidden or required to be done is clearly and exactly defined, so as to
leave no reasonable doubt or uncertainty as to what specific act or thing is forbidden or required.
(U.S. vs. Atchison, etc., R. Co., 146 Fed., 176, 183.) A party cannot be punished for contempt in failing to do
something not specified in the order. (13 C. J., 15.) In the case before us, the deportation of the petitioner was
not forbidden by any order of the court, and hence that act cannot be considered as disobedience to the
court.
Upon principle the point is clear; and although no case exactly identical with the present one has been called
to our attention from the decisions of American courts, something very similar is found in Ex parte Lake (37
Tex. Crim. Rep. 656; 66 Am. St. Rep. 848). The facts involved in that case were these: One Edwards had been
charged with the commission of a criminal offense in Oklahoma, but he fled to the State of Texas; and upon
requisition from the Governor of Oklahoma, a warrant was issued by the Governor of Texas for his arrest in
that State. Upon his being arrested, application was made in his behalf before on of the Texas courts for the
writ ofhabeas corpus to secure his release. During the period when the propriety of granting the writ was
under consideration in said court, one Lake, the legally appointed extradition agent, acting under the

authority of a proper warrant issued by the Governor of Texas, obtained the custody of Edwards from the
sheriff who had him in charge and hurriedly departed with the prisoner for Oklahoma. The result was that the
proceedings upon the application for the writ habeas corpus were frustrated and the writ was in fact never
issued as occurred in the case now before us. The judge before whom the application for the writ of habeas
corpus was pending thereupon caused Lake to be arrested and fined him 50 dollars for the supposed
contempt. It was held by the Texas Court of Criminal Appeals that his action could not be sustained and the
judgment was reversed.
Among the reasons stated for this decision was the fact that the alleged contemner has disobeyed no order
issued by the judge, for there was none of any character made in the case, "and there was no order, decree,
writ, or any other process in existence, forbidding him form doing just what he did". Speaking further of this
aspect of the case, the court said: "We have found no case authorizing punishment by contempt for such
conduct as is attributed to Lake, and we believe none can be found. The authorities have been closely and
exhaustively examined, and the rule deducible therefrom, is that unless the court has jurisdiction of the
supposed contemner, or some order, decree, or process has been resisted or disobeyed, the court has no
jurisdiction to punish for contempt. Jurisdiction over the party will not confer power to punish for contempt
unless some order, decree, or process has been disobeyed or the party is guilty of some act of the nature of
malpractice in the case, or has disobeyed the reasonable rules of the court". (Ex parte Lake, supra.)
The considerations found in that decision are applicable to the case now before us and corroborate the
conclusion to be inevitably drawn form our own provisions relative to contempt, namely, that the deportation
of Lee Yick Hon by the Insular Collector under the circumstances stated was not a contempt of court.
Judgment is reversed and the defendant absolved, with costs de oficio. So ordered.
Mapa, C.J. and Villamor, J., concur.

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:
Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;
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
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:
The personal circumstances of the petitioner;
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;
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;
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;
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
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:
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;
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;
All relevant information in the possession of the respondent pertaining to the threat, act or omission against
the aggrieved party; and
If the respondent is a public official or employee, the return shall further state the actions that have been or
will still be taken:
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.
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:
Motion to dismiss;
Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings;
Dilatory motion for postponement;
Motion for a bill of particulars;
Counterclaim or cross-claim;
Third-party complaint;

Reply;
Motion to declare respondent in default;
Intervention;
Memorandum;
Motion for reconsideration of interlocutory orders or interim relief orders; and
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.