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 child’s 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 child’s 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 child’s biological parents or in their absence, mental incapacity or death, by the child’s 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 child’s 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 child’s 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 person’s 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:

in possession of full civil capacity and legal rights. and that his government allows the adoptee to enter his country as his adopted child.(1) Any Filipino citizen of legal age. 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 adoptee’s parent. . 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. or (ii) if one spouse seeks to adopt his own illegitimate child: Provided. further. (3) The guardian with respect to the ward after the termination of the guardianship and clearance of his financial accountabilities. of good moral character. 155 and 156 of P. Husband and wife shall jointly adopt. 603 or judicially declared available for adoption. SEC. That the requirements on residency and certification of the alien’s 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. 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. or (ii) one who seeks to adopt the legitimate child of his Filipino spouse. (2) Any alien possessing the same qualifications as above-stated for Filipino nationals: Provided. In case husband and wife jointly adopt or one spouse adopts the illegitimate child of the other. or (iii) if the spouses are legally separated from each other. joint parental authority shall be exercised by the spouses. Provided.D. – 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. That the other spouse has signified his consent thereto. 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. 5. however. who is emotionally and psychologically capable of caring for children. has not been convicted of any crime involving moral turpitude. No. Who may be adopted. and who is in a position to support and care for his children in keeping with the means of the family. at least sixteen (16) years older than the adoptee. except in the following cases: (i) if one spouse seeks to adopt the legitimate child of one spouse by the other spouse. That his country has diplomatic relations with the Republic of the Philippines.

dependent or neglected. 7. Venue. unless the adopter is the biological parent of the adoptee or is the spouse of the adoptee’s parent. Sec. in possession of full civil capacity and legal rights. said person has been consistently considered and treated by the adopters as their own child since minority. is at least sixteen (16) years older than the adoptee. . 2) 2) If the adopter is an alien. 6. – The petition for adoption shall be filed with the Family Court of the province or city where the prospective adoptive parents reside. That no proceedings shall be initiated within six (6) months from the time of death of said parents. or declaration of child as abandoned. (7) (7) A child not otherwise disqualified by law or these rules. the petition shall allege the following: (a) (a) The jurisdictional facts. (b) (b) Sub-paragraph 1(b) above. – 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. or (6) (6) A child whose biological or adoptive parents have died: Provided. is emotionally and psychologically capable of caring for children. prior to the adoption. (c) (c) That his country has diplomatic relations with the Republic of the Philippines. rectification of simulated birth. voluntary or involuntary commitment of children.(2) (2) The legitimate child of one spouse. (4) (4) A person of legal age regardless of civil status. 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. the petition shall allege the following: (a) (a) The jurisdictional facts. is of good moral character. has not been convicted of any crime involving moral turpitude. Contents of the Petition. 8552. by the other spouse. 1) 1) If the adopter is a Filipino citizen. (b) (b) That the petitioner is of legal age. (5) (5) A child whose adoption has been previously rescinded. if. Sec. by a qualified adopter to raise the status of the former to that of legitimacy. (3) (3) An illegitimate child.

(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. date of birth. 4) 4) If the adopter is married. . surname or names. or (ii) seeks to adopt the legitimate child of his Filipino spouse. 5) 5) If the adoptee is a foundling. 6) 6) If the petition prays for a change of name. 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. if known. the petition shall allege the entries which should appear in his birth certificate. age and residence of the adoptee as shown by his record of birth. baptismal or foundling certificate and school records. the spouse shall be a co-petitioner for joint adoption except if: (a) one spouse seeks to adopt the legitimate child of the other. place of birth. or (b) if one spouse seeks to adopt his own illegitimate child and the other spouse signified written consent thereto. and the date and place of their marriage. The requirements of certification of the alien’s 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. 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. name and citizenship of adoptive mother and father. 3) 3) If the adopter is the legal guardian of the adoptee. sex. it shall be alleged: (a) The first name. it shall also state the cause or reason for the change of name. In all petitions. such as name of child. or (c) if the spouses are legally separated from each other. the petition shall allege that guardianship had been terminated and the guardian had cleared his financial accountabilities.

– In case the petition also prays for change of name. (d) The first name. and (c) (c) The full name by which the child is to be known. dependent or neglected child. it shall allege that: (a) (a) Petitioner is applying for rectification of a simulated birth. abandoned. Sec. (b) (b) The names of the parents. 8552 and the application for rectification of the birth registration and the petition for adoption were filed within five years from said date. – In case the petition also seeks rectification of a simulated of birth. A certification of non-forum shopping shall be included pursuant to Section 5. then the name and residence of the guardian. Change of name. and (d) (d) That the Department. and their residence. an abandoned. surname or names by which the adoptee is to be known and registered in the Civil Registry. . Rule 7 of the 1997 Rules of Civil Procedure. and (d) (d) The adoptee has been consistently considered and treated by petitioner as his own child. (c) (c) The petitioner made the simulation of birth for the best interests of the adoptee. the title or caption must contain: (a) (a) The registered name of the child. 10. Adoption of a foundling.(b) That the adoptee is not disqualified by law to be adopted. 8. Sec. (c) (c) The name of the duly licensed child-placement agency or individual under whose care the child is in custody. child-placement or child-caring agency is authorized to give its consent. If the child has no known or living parents. 9. dependent or neglected. Sec. if known. an abandoned. if any. (b) (b) Aliases or other names by which the child has been known. the petition shall allege: (a) (a) The facts showing that the child is a foundling. – In case the adoptee is a foundling. (b) (b) The simulation of birth was made prior to the date of effectivity of Republic Act No. (c) The probable value and character of the estate of the adoptee. dependent or neglected child. Rectification of Simulated Birth.

if any. The illegitimate children of the adopter living with him who are ten (10) years of age or over. Affidavit of consent of the following: 1. The legitimate and adopted children of the adopter and of the adoptee. The biological parents of the child. of the adopter or adoptee. as the case may be. 11. Provided. child-caring agency. 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. Home study report on the adopters. the home study report by a foreign adoption agency duly accredited by the Inter-Country Adoption Board. E. 4. Sec. and school records showing the name. who are ten (10) years of age or over. that in case of . (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. and 5. if any. (2) the purpose of the petition. and F. C. if any. If the adopter is an alien or residing abroad but qualified to adopt. or the legal guardian. The spouse. age and residence of the adoptee. – If the petition and attachments are sufficient in form and substance. 3. Decree of annulment. – The following documents shall be attached to the petition: A. nullity or legal separation of the adopter as well as that of the biological parents of the adoptee. Annexes to the Petition. Birth. baptismal or foundling certificate. B. Child study report on the adoptee and his biological parents. 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). The adoptee. (3) the complete name which the adoptee will use if the petition is granted. if ten (10) years of age or over. If the petitioner is an alien.Sec. if known. 2. 12. or the proper government instrumentality which has legal custody of the child. Order of Hearing. or the child-placement agency. D.

In case the adopter is an alien. The newspaper shall be selected by raffle under the supervision of the Executive Judge. 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. – In preparing the child study report on the adoptee. the social service office of the local government unit or any child-placing or child-caring agency. At the discretion of the court. (5) a directive to the social worker of the court. Child and Home Study Reports. the concerned social worker shall verify with the Civil Registry the real identity and registered name of the adoptee. Hearing. If the birth of the adoptee was not registered with the Civil Registry. 8552. 13. it shall be the responsibility of the social worker to register the adoptee and secure a certificate of foundling or late registration. If after the conduct of the case studies.application for change of name. The social worker shall establish that the child is legally available for adoption and the documents in support thereof are valid and authentic. 14. the court . Sec. Sec. 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. copies of the order of hearing shall also be furnished the Office of the Solicitor General through the provincial or city prosecutor. If a change in the name of the adoptee is prayed for in the petition. he shall make the proper recommendation to the court. Sec. the social worker finds that there are grounds to deny the petition. furnishing a copy thereof to the petitioner. and ascertain if any prolonged stay of the child in his own home will be inimical to his welfare and interest. 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. – Upon satisfactory proof that the order of hearing has been published and jurisdictional requirements have been complied with. that the adopter has sincere intentions and that the adoption shall inure to the best interests of the child. if known. 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. 15. 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. ensure that all measures to strengthen the family have been exhausted. as the case may be. – Before issuance of the decree of adoption. the court shall proceed to hear the petition. Supervised Trial Custody. 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. notice to the Solicitor General shall be mandatory. the Department and the biological parents of the adoptee.

the decree shall be submitted to the Civil Registrar where the court issuing the same is situated. State the name by which the child is to be known and registered. Decree of Adoption. Sec. 3) 3) the Civil Registrar of the place where the adoptee was registered: . 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. stating the reasons therefor. or the social service of the local government unit. 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.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. motu proprio or upon motion of any party. 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. or the child-placement or child-caring agency which submitted and prepared the case studies. – 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. B. 16. 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 c) one who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse the latter’s relative within the fourth (4th) degree of consanguinity or affinity. reduce the period or exempt the parties if it finds that the same shall be for 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. 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. In case of change of name. or b) one who seeks to adopt the legitimate child of his Filipino spouse. During said period. The court may. temporary parental authority shall be vested in the adopter. The decree shall: A. The trial custody shall be monitored by the social worker of the court.

Sec. when applicable. 2) attempt on the life of the adoptee. – The petition shall be verified and filed by the adoptee who is over eighteen (18) years of age. Sec. 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. restricting the purposes for which it may be used. 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. to issue a certificate of birth which shall not bear any notation that it is a new or amended certificate and which shall show. and the date and place of their marriage. by his guardian or counsel. c. books and papers relating to the adoption cases in the files of the court. sex. b. upon proper motion. 17. Rescission of Adoption of the Adoptee. 3) sexual assault or violence. Confidential Nature of Proceedings and Records. among others. if he is a minor. the following: registry number. the court shall order the Civil Registrar where the foundling was registered. 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. or with the assistance of the Department. and d. – All hearings in adoption cases. date of birth. or if he is over eighteen (18) years of age but is incapacitated. – The Clerk of Court shall keep a book of adoptions showing the date of issuance of the decree in each case. 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. name of child. order the necessary information to be released. Book of Adoptions. 19. or . 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. place of birth. compliance by the Civil Registrar with Section 16(B)(3) and all incidents arising after the issuance of the decree. 18. the court may.a. name and citizenship of adoptive mother and father. after compliance with the jurisdictional requirements shall be confidential and shall not be open to the public. date of registration. to annotate on the adoptee’s original certificate of birth the decree of adoption within thirty (30) days from receipt of the certificate of finality. All records. Sec. or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential. the Department. If the adoptee is a foundling.

Sec. within five (5) years after recovery from such incompetency. . Vested rights acquired prior to judicial rescission shall be respected. shall not be subject to rescission by the adopter. with or without costs. However. – The petition shall be filed with the Family Court of the city or province where the adoptee resides. it shall render judgment ordering the rescission of adoption. 20. 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 order and copy of the petition shall be served on the adverse party in such manner as the court may direct. if incapacitated. The Clerk of Court shall enter the compliance in accordance with Section 17 hereof. Sec. Sec. – If the court finds that the allegations of the petition are true. Order to Answer. 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. the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code. 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. 22. as justice requires. Sec. Sec. It shall also order the adoptee to use the name stated in his original birth or foundling certificate. 23. 21. 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. 24.4) abandonment or failure to comply with parental obligations. being in the best interests of the child. 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. Service of Judgment. Time within which to file petition. Adoption. or if he was incompetent at the time of the adoption. Venue. – The adoptee. The court shall order that the parental authority of the biological parent of the adoptee. must file the petition for rescission or revocation of adoption within five (5) years after he reaches the age of majority. if known. – The court shall issue an order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a copy thereof.

27. and c) take all measures to ensure that the placement arising therefrom does not result in improper financial gain for those involved. c) c) that he has the capacity to act and assume all rights and responsibilities of parental authority under his national laws. be cared for in the Philippines. the name of the spouse who must be joined as co-petitioner except when the adoptee is a legitimate child of his spouse. 30. It may be filed directly with the Inter-Country Adoption Board. Applicability. 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. 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. Where to File Petition. b) b) if married. 26.This supersedes Rule 99 on Adoption and Rule 100 of the Rules of Court. 25. e) e) that he is eligible to adopt under his national law. Objectives. in any suitable manner. unless the petitioner is the parent by nature of the child to be adopted or the spouse of such parent. Sec. Inter-Country Adoption Sec. – Only a child legally available for domestic adoption may be the subject of inter-country adoption. . B. – The petitioner must allege: a) a) his age and the age of the child to be adopted. Who may be adopted. 29.SEC. 28. if the child cannot be placed in a foster or an adoptive family or cannot. – 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. Repeal. – The following sections apply to inter-country adoption of Filipino children by foreign nationals and Filipino citizens permanently residing abroad. SEC. Sec. Contents of Petition. – The State shall: a) a) consider inter-country adoption as an alternative means of child care. f) f) that he can provide the proper care and support and instill the necessary moral values . Sec. b) ensure that the child subject of inter-country adoption enjoys the same protection accorded to children in domestic adoption. in which case the age difference does not apply.

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

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

SEC. 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. (d) The disputed factual and legal issues. 9.-(a) If the petitioner fails to appear personally at the pre-trial. personally verified by him.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. the case shall be dismissed. (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. 7.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. unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the nonappearance of the petitioner. 8. . SEC. . 11. (b) A concise statement of their respective claims together with the applicable laws and authorities.is sufficient in form and substance. . briefly stating or describing its nature and purpose. SEC. Motion to Dismiss. Any other ground that might warrant the dismissal of the petition may be raised as an affirmative defense in the answer. .Within fifteen days after the filing of the answer or the expiration of the period to file answer. 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. and (3) requiring the respondent to present the minor before the court. (f) The number and names of the witnesses and their respective affidavits which shall serve as the affiant's testimony on direct examination. . Contents of pre-trial brief. it shall direct the clerk of court to issue summons. SEC. The notice of its order shall be served separately on both the parties and their respective counsels. the petitioner . Notice of mandatory pre-trial. duty of social worker. Case study.Upon the filing of the verified answer or the expiration of the period to file it. which shall be served together with a copy of the petition personally on the respondent.The respondent shall file an answer to the petition. (c) Admitted facts and proposed stipulations of facts. SEC. (e) All the evidence to be presented. 6. The pre-trial is mandatory. (b) If the respondent has filed his answer but fails to appear at the pre-trial. Effect of failure to appear at the pre-trial. 10. Verified Answer. the court shall issue an order: (1) fixing a date for the pre-trial conference. within five days after service of summons and a copy of the petition. and (g) Such other matters as the court may require to be included in the pre-trial brief. indicating its terms.

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

SEC. (h) The most suitable physical. The court. motu proprio or upon application under oath. . 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. psychological and educational environment for the holistic development and growth of the minor.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.(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. Hold Departure Order. if available. (e) The nature and frequency of contact with both parents. . 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. (d) The date of the hold departure order. unless the parent chosen is unfit. spiritual. Temporary visitation rights. the date and place of birth. (b) The complete title and docket number of the case in which the hold departure order was issued. SEC. unless the court finds said parent or parents unfit or disqualified. 16. . 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. and (i) The preference of the minor over seven years of age and of sufficient discernment. addressed to the Bureau of Immigration and Deportation. (g) Marital misconduct. emotional. may issue ex parte a hold departure order. dangerous drugs or regulated substances. of the party against whom a hold departure order has been issued or whose departure from the country has been enjoined. (c) The specific nature of the case. 15. and (e) A recent photograph. (f) Habitual use of alcohol. The hold departure order shall contain the following information: (a) The complete name (including the middle name).The court shall provide in its order awarding provisional custody appropriate visitation rights to the non-custodial parent or parents.

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.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. 20. special needs. or his oldest brother or sister. (c) To refrain from acts of commission or omission that create an unreasonable risk to the health. or from any other specific place designated by the court. or a party entitled to visitation by a court order or a separation agreement. and aptitude of the minor.After trial. safety. or threatening such minor or the other parent or any person to whom custody of the minor is awarded. . .The court may recall the hold departure order motu proprio. to visit the minor at stated periods. 19. In its judgment. other parent or any other party. the court may consider the following factors: (1) the financial resources of the custodial and non-custodial parent and those of the minor. the court may order either or both parents to give an amount necessary for the support. Appeal. or place of employment of the minor. 17. intimidating. irrespective of who may be its custodian. SEC. the court may designate either the paternal or maternal grandparent of the minor. (d) To permit a parent. the court shall render judgment awarding the custody of the minor to the proper party considering the best interests of the minor. SEC. (3) the standard of living the minor has been accustomed to. or any reputable person to take charge of such minor. school. . If it appears that both parties are unfit to have the care and custody of the minor. . or upon verified motion of any of the parties after summary hearing. SEC. or welfare of the minor. and (4) the non-monetary contributions that the parents would make toward the care and well-being of the minor. In determining the amount of support. 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.A verified petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. or commit him to any suitable home for children. Protection Order. subject to such terms and conditions as may be necessary for the best interests of the minor. SEC. (2) the physical and emotional health. Petition for writ of habeas corpus. and (f) To comply with such other orders as are necessary for the protection of the minor. The writ shall be enforceable within its judicial region to which the Family Court belongs. (b) To cease and desist from harassing. . 18. maintenance and education of the minor. business.The court may issue a Protection Order requiring any person: (a) To stay away from the home. (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. Judgment.

In the exercise of that authority. . The writ issued by the Family Court or the regular court shall be enforceable in the judicial region where they belong. SEC. . or the member thereof. No. FRANCISCA P. The petition may also be filed with the appropriate regular courts in places where there are no Family Courts. The petition may likewise be filed with the Supreme Court.However. The appellate court. if so granted. that the regular court shall refer the case to the Family Court as soon as its presiding judge returns to duty.The hearings on custody of minors may. respondents. Miguel.R. Miguel shall have custody over the child Michael Kevin Pineda until he reaches ten (10) years of age. Court of Appeals. Confidentiality of proceedings. 21. Upon return of the writ. 2003.This Rule shall take effect on May 15. MARICEL P.R. at the discretion of the court. 2002 Decision[2] and the December 11. The Court will not deprive her of custody. 2002 Resolution[3] of the Court of Appeals in CA-GR SP No. 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. G. provided. 2004] JOEY D. BRIONES. Once . 18 Oct 2004 THIRD DIVISION [G. she is entitled to keep the child in her company. MIGUEL.: An illegitimate child is under the sole parental authority of the mother. the writ shall be enforceable anywhere in the Philippines. 156343. be closed to the public and the records of the case shall not be released to non-parties without its approval. the petition is hereby DISMISSED. absent any imperative cause showing her unfitness to exercise such authority and care. 69400. petitioner. or with any of its members and. MIGUEL and LORETA P. 156343. the court shall decide the issue on custody of minors. No.[4] The dispositive portion of the assailed Decision reads as follows: “WHEREFORE. J. 22. Effectivity. MIGUEL. vs. Briones v. 2003 following its publication in a newspaper of general circulation not later than April 30. however. the petition may be filed with the regular court in the absence of the presiding judge of the Family Court. Respondent Loreta P. SEC. DECISION PANGANIBAN. October 18. The Case The Petition for Review[1] before the Court seeks to reverse and set aside the August 28. issuing the writ shall be furnished a copy of the decision.

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

Miguel were the ones who took the child from the petitioner or the latter’s parents. 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.[6] Issue . in compliance with the May 2. The custody of the child. 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. Miguel prays that the custody of her minor child be given to her and invokes Article 213. Miguel was entrusted to petitioner’s parents while they were both working in Japan. it nevertheless found no compelling reason to separate the minor from his mother. was granted visitorial rights. the CA awarded the custody of Michael Kevin Pineda Miguel to his mother. “Respondent Loreta P. 2711. “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. Petitioner. “Respondent Loreta P. the respondent Loreta P.” Ruling of the Court of Appeals Applying Article 213 (paragraph 2) of the Family Code. 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. However. the said case was withdrawn ex-parte. “In their Comment. 2002. according to respondent Loreta P. Hence. 2002 Resolution of this Court. 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. this Petition. the respondents filed their Comment. Miguel and Francisca P. “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.“Hence. Paragraph 2 of the Family Code and Article 363 of the Civil Code of the Philippines. he was constrained to file a Petition for Habeas Corpus with the Regional Trial Court of Caloocan City which was docketed as SPC No. She added that even before the custody of the child was given to the petitioner’s parents. She further stated that since the time the petitioner arrived in the Philippines. Miguel alleges that sometime in October 2001. “Respondent Loreta P. 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. “On May 6. however. he has not been gainfully employed. 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 likewise denies petitioner’s allegation that respondents Maricel P.

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

Both acknowledge that Michael is their son. is entitled to have custody of him. Neither the law nor the courts allow this affinity to suffer. no child under seven years of age shall be separated from the mother.[26] She has the right to keep him in her company. all illegitimate children are generally placed under one category.”[29] Not to be ignored in Article 213 of the Family Code is the caveat that.” under the Family Code) child. their attachment to and feeling for their offspring remain unchanged. custody.[22] Without the subsequent marriage.[25] There is thus no question that Respondent Loreta. the child shall be considered a legitimate child of the adoptive parent. David v. immorality. the putative father may adopt his own illegitimate child. a natural child remains an illegitimate child. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. As earlier explained and pursuant to Article 176.” Under Article 176 of the Family Code. without any distinction between natural and spurious. notwithstanding his father’s recognition of him. Michael is a natural (“illegitimate. In Silva v. The law explicitly confers to the mother sole parental authority over an illegitimate child. and affliction with a communicable disease.[32] habitual drunkenness. There is no showing at all that she is unfit to take charge of him. drug addiction. .[21] The concept of “natural child” is important only for purposes of legitimation. the 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. and control of the child to Respondent Loreta.[33] we hold that the CA did not err in awarding care. Obviously. being the mother of and having sole parental authority over the minor. Of course. Respondent Loreta. shall justify her deprivation of parental authority and the award of custody to someone else. Only the most compelling of reasons. except when the court finds cause to order otherwise.[35] Even when the parents are estranged and their affection for each other is lost. Court of Appeals. maltreatment of the child. it follows that only if she defaults can the father assume custody and authority over the minor. grave or imminent threat to the wellbeing of the child. insanity. parental authority over him resides in his mother.[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. Bearing in mind the welfare and the best interest of the minor as the controlling factor. the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect or abandonment. 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.children conceived and born outside a valid marriage are illegitimate.[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.[28] and she may not even renounce or transfer it “except in the cases authorized by law.[27] She cannot be deprived of that right. absent any real.[24] in such a case.[30] In the past. such as the mother’s unfitness to exercise sole parental authority. generally. but not custody of. We likewise affirm the visitorial right granted by the CA to petitioner. unless the law itself gives them legitimate status.[31] unemployment.

R. J. Sandoval-Gutierrez. that portion of the CA Decision allowing the child to choose which parent to live with is deleted. 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. G. change his residence. Carpio Morales .Rule 102 . SO ORDERED. and Corona. WHEREFORE. be interviewed by media. This provision contemplates a situation in which the parents of the minor are married to each other. to choose which parent to live with is DELETED for lack of legal basis. No. Isuue: Whether or not habeas corpus can be availed of? Ruling: . a Presidential Commitment Order (PCO) was issued against him and eight (8) other persons. Hospitalization of Insane Persons . JJ. on leave. it has been established that petitioner and Respondent Loreta were never married. In the present case. ENRILE (G.. the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. Hence.. He was temporarily released on the condition that he cannot travel outside Metro Manila. but without disregarding the obligation of petitioner to support the child.Moncupa v. the Petition is DENIED and the assailed Decision AFFIRMED with the MODIFICATION that the disposition allowing the child. Habeas Corpus and other Writes . upon reaching ten (10) years of age. concur. and have to report to the military. Costs against petitioner. Enrile MONCUPA vs. but are separated either by virtue of a decree of legal separation or because they are living separately de facto.However.Rule 101 H.

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

J. Jose Roño and Onofre Corpus. 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. The temporary release of the petitioner is declared ABSOLUTE. Jr. where the restraints are not merely involuntary but appear to be unnecessary. Aquino. ISSUE: Whether or not the petition for habeas corpus be granted. Where a person continues to be unlawfully denied one or more of his constitutional freedoms. This concept is so basic and elementary that it needs no elaboration. took no part. Logauer and his group are all civilians. 1980.. In effect the principle is clear. and where a deprivation of freedom originally valid has. in the light of subsequent developments. C. Arturo Tangco. The conditions attached to the temporary release of the petitioner are declared null and void. Olaguer and some others were detained by military personnel and they were placed in Camp Bagong Diwa. concur. 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. Teehankee. Leonardo Perez.. 34. and (7) conspiracy and proposal to commit rebellion. Concepcion. become arbitrary. “When the release of the persons in whose behalf the application for a writ of . A release that renders a petition for a writ of habeas corpus moot and academic must be one which is free from involuntary restraints. They were charged with (1) unlawful possession of explosives and incendiary devices.. Military Comission No. 150 SCRA 144 In 1979. 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. the petitioners went to the SC and filed the instant Petition for prohibition and habeas corpus. 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. the PETITION is GRANTED. (2) conspiracy to assassinate President and Mrs.. Escolin De la Fuente. SO ORDERED. Cuevas. (3) conspiracy to assassinate cabinet members Juan Ponce Enrile. Teodoro Valencia and Generals Romeo Espino and Fabian Ver. (5) arson of nine buildings. Alampay and Patajo. Abad Santos. Melencio-Herrera. 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. where there is present a denial of due process. (6) attempted murder of Messrs. Marcos. the person concerned or those applying in his behalf may still avail themselves of the privilege of the writ. On August 19. I reserve my vote. Francisco Tatad and Vicente Paterno. No costs. Olaguer v. Plana. J. JJ.presents a different situation. (4) conspiracy to assassinate Messrs. and inciting to rebellion. We hold that such a reservation is repugnant to the government of laws and not of men principle.

1 Eventually arraigned with the assistance of counsel on March 2. were found positive for marijuana. The Solicitor General for plaintiff-appellee. 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. Pampanga where he was temporarily . People v. Pampanga. the Petition for the issuance of the writ becomes moot and academic. 93028 July 29. even during the period of martial law. under an indictment alleging that on or about October 22. J.habeas corpus was filed is effected. 6425. 1989. over civilians for offenses allegedly committed by them as long as the civil courts are open and functioning. No. Simon Republic of the Philippines SUPREME COURT Manila EN BANC G. he sold four tea bags of marijuana to a Narcotics Command (NARCOM) poseurbuyer in consideration of the sum of P40. plaintiff-appellee. 1994 PEOPLE OF THE PHILIPPINES. as amended. 18 Inasmuch as the herein petitioners have been released from their confinement in military detention centers. Ricardo M.R. the instant Petitions for the issuance of a writ of habeas corpus should be dismissed for having become moot and academic. Cristo. Article II of Republic Act No. respondent. at Barangay Sto.” But the military court created to try the case of Olaguer (and the decision it rendered) still continues to subsist. MARTIN SIMON y SUNGA.Sampang for accused-appellant. after his rearrest following his escape from Camp Olivas. which tea bags. otherwise known as the Dangerous Drugs Act of 1972. 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.00. San Fernando. when subjected to laboratory examination. 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. 1988 with a violation of Section 4. REGALADO. A military commission or tribunal cannot try and exercise jurisdiction. vs. 1988. Guagua.: Herein accused-appellant Martin Simon y Sunga was charged on November 10.

claiming that he saw the deal that transpired between Lopez and the appellant. Buenaventura Lopez. informed the police unit at Camp Olivas. Lopez and Villaruz corrected his entry by telling him to put "two". Commanding Officer of the 3rd Narcotics Regional Unit in the camp. After securing marked money from Bustamante. upon returning shortly thereafter.detained. 5 Sgt. Cristo. He voluntarily waived his right to a pre-trial conference. Pampanga. Thereupon. examined appellant at 5:30 p. of the illegal drug activities of a certain "Alyas Pusa" at Sto. of the day after the latter's apprehension. 7 Dr. and the team closed in on them. The doctor also did not find any trace of physical injury on the person of appellant. I The evidence on record shows that a confidential informant. Calara discovered that appellant has a history of peptic ulcer. 3 after which trial on the merits ensued and was duly concluded. the confidential informer pointed out appellant to Lopez who consequently approached appellant and asked him if he had marijuana. Pejoro likewise informed the court below that. he was stationed farthest from the rest of the other members. proceeded to Sto.m. his physical condition remained normal. Appellant. instead of "one" and "40". appellant came back with the same complaint but. 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. around two hundred meters away from his companions. except for the gastro-intestinal pain. a medical officer at Camp Olivas. to information and to counsel. Francisco Bustamante. admitting therein the confiscation of four tea bags of marijuana dried leaves in his possession. 6 Pejoro also claimed having prepared Exhibit "G". then formed a buy-bust team composed of Sgt. Pedro S. originally. 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. Capt. orally waived his right to counsel. Dr. San Fernando. Calara. the "Receipt of Property Seized/Confiscated" which appellant signed. Villaruz. Cristo after they had coordinated with the police authorities and barangay officers thereof. and the results were practically normal except for his relatively high blood pressure. all members of the same unit. 8 . He was likewise the one who conducted the custodial investigation of appellant wherein the latter was apprised of his rights to remain silent. the team. Domingo Pejoro. Appellant answered in the affirmative and Lopez offered to buy two tea bags. Virgilio Villaruz and Sgt. handed to Lopez two marijuana tea bags and Lopez gave him the marked money amounting to P40. who was the head of the backup team. together with their informant. When they reached the place. 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. 4 Pfc. Appellant then left and. declared that although he was part of the buy-bust team. arrested appellant. Pejoro as the investigator.00.00 as payment. however. The next day. later identified as a NARCOM operative. what he placed on the receipt was that only one marijuana leaf was confiscated in exchange for P20. He also averred that he was the one who confiscated the marijuana and took the marked money from appellant. that is. Villaruz corroborated Lopez' testimony. 2 he pleaded not guilty. Lopez then scratched his head as a pre-arranged signal to his companions who were stationed around ten to fifteen meters away. In the course of the examination. he again examined appellant due to the latter's complaint of gastro-intestinal pain. Domingo Pejoro. Pfc. In the afternoon. which causes him to experience abdominal pain and consequently vomit blood. for his part. instead of "20". Pampanga. Guagua. However.

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

should prevail over the self-serving and uncorroborated claim of appellant of having been framed. assuming arguendo that the prosecution committed an error on who actually seized the marijuana from appellant. 20 No ill motive was or could be attributed to them. 23 confirmed in her Technical Report No. but he participated in the legal seizure or confiscation thereof as the investigator of their unit. we are morally certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. P/Cpl. such causes for judicial apprehension and doubt do not obtain in the case at bar. Virgilio Villaruz in his testimony. 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. The prosecution was able to prove beyond a scintilla of doubt that appellant. for a surveillance was conducted by the team before the buy-bust operation was effected. 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. 24 Thus. as such. but in the aforementioned "Receipt of Property Seized/Confiscated. NB448-88 that the contents of the four tea bags confiscated from appellant were positive for and had a total weight of 3. and while there was a delimited chance for him to controvert the charge. did sell two tea bags of marijuana dried leaves to Sgt. What is unmistakably clear is that the marijuana was confiscated from the possession of appellant. in open court. 22 erected as it is upon the mere shifting sands of an alibi. the corpus delicti of the crime had been fully proved with certainty and conclusiveness. The latter himself creditably testified as to how the sale took place and his testimony was amply corroborated by his teammates.After an assiduous review and calibration of the evidence adduced by both parties. a forensic chemist therein. harassment. 28 This omission has been satisfactorily explained by Pfc. as follows: . according to him. the former undeniably deserves greater weight and is more entitled to credence. To top it all. positive and corroborated testimony of Lopez and the bare denials and negative testimony of appellant. Marlyn Salangad." he signed it as the one who seized the same. 1988. aside from the fact that they are presumed to have regularly performed their official duty. as well as the findings of the trial court on the credibility of witnesses. Foremost. As between the straightforward. We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is susceptible to mistake. 25 Appellant would want to make capital of the alleged inconsistencies and improbabilities in the testimonies of the prosecution witnesses. 19 Nonetheless. 27 Besides. extortion and abuse.8 grams of marijuana. Next. Pejoro asserted that he had nothing to do with the confiscation of the marijuana. on October 22. neither impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses' honesty. is the matter of who really confiscated the marijuana tea bags from him since. appellant was caught red-handed delivering prohibited drugs. 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. Appellant's entrapment and arrest were not effected in a haphazard way. such an error or discrepancy refers only to a minor matter and. 21 Such lack of dubious motive coupled with the presumption of regularity in the performance of official duty. 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. Lopez. Even.

dispatch in transit or transport any prohibited drug. contrary to appellant's contention. during and after his arrest. 34 Although appellant manifested during the custodial investigation that he waived his right to counsel. Likewise. or be accompanied by the taking of pictures. They were obtained in violation of his right as a person under custodial investigation for the commission of an offense. the arrest report is self-serving and hearsay and can easily be concocted to implicate a suspect. are using that in their own work. 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. which identification can be supplied by other species of evidence. the receipt for the seized property. He decries the lack of pictures taken before. 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. Again. xxx xxx xxx Q: Is it not a fact that your office is within (the) P. 31 These are absurd disputations. there being nothing in the records to show that he was assisted by counsel. unless authorized by law. inter alia. there was an arrest report prepared by the police in connection with his apprehension. or shall act as a broker in any of such transactions. to be valid. either verbally or in writing. a barangay official or any other civilian. distribute. On the contrary. be witnessed by a relative. the police enforcers having caught appellant in flagrante delicto. is not allowable in evidence. 29 The foregoing explanation aside. administer. CIS.C. Appellant's conformance to these documents are declarations against interest and tacit admissions of the crime charged. shall sell. Said Booking Sheet and Arrest Report 32 states. give away to another. ." 30 The dusting of said bills with phosphorescent powder is only an evidentiary technique for identification purposes. they were not only authorized but were also under the obligation to effect a warrantless arrest and seizure. sir. Crime Laboratory.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. deliver. No law or jurisprudence requires that an arrest or seizure. 33 However. In the same manner. we find and hereby declare the aforementioned exhibits inadmissible in evidence." Below these remarks was affixed appellant's signature. themselves. was signed by appellant wherein he acknowledged the confiscation of the marked bills from him. Moreover. 36 Besides. the waiver was not made in writing and in the presence of counsel. appellant contends that there was neither a relative of his nor any barangay official or civilian to witness the seizure. 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. sir. he was not reported to or booked in the custody of any barangay official or police authorities. 35 hence whatever incriminatory admission or confession may be extracted from him. hereinbefore mentioned.

Notwithstanding the objectionability of the aforesaid exhibits. time and place. one for the prosecution 45 and the other for the defense. appellant cannot thereby be extricated from his predicament since his criminal participation in the illegal sale of marijuana has been sufficiently proven. as amended. if it is true that appellant was maltreated at Camp Olivas. soundly refute his allegations that his arrest was baseless and premeditated for the NARCOM agents were determined to arrest him at all costs. abrasions or contusions on the person of appellant. 40 It is not contrary to human experience for a drug pusher to sell to a total stranger. taking into consideration the diverse circumstances of person. 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. belongs to that class of crimes that may be committed at any time and in any place. 38 In the present case. saying that appellant has had a history of bleeding peptic ulcer. The doctrine is now too well embedded in our jurisprudence that for evidence to be believed. was further amended by Republic Act No. 44 The evidence on record is bereft of any support for appellant's allegation of maltreatment. when done on a small scale as in this case. 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. Accordingly. 47 His own brother even corroborated that fact. 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. II . we can safely say that those exceptional particulars are not present in this case. Republic Act No. 48 Furthermore. 52 which supervenience necessarily affects the original disposition of this case and entails additional questions of law which we shall now resolve. 46 testified on the absence of any tell-tale sign or indication of bodily injury. 6425. Two doctors. However. 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. Finally. this sale has been ascertained beyond any peradventure of doubt. 49 Significantly. 1993. 39 We take this opportunity to once again reiterate the doctrinal rule that drugpushing. Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger. 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. as well as the incredibility of how the accused supposedly acted on that occasion. These. 42 While there may be instances where such sale could be improbable. 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. 51 Premeditated or not. and the events earlier discussed. and in light of the preceding discussion. 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. 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. this opinion could have concluded on a note of affirmance of the judgment of the trial court. appellant's arrest was only the culmination. 7659 effective December 31. 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.

7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder. at the present stage. Sections 3. Section 20. 1. or shall act as a broker in any of such transactions. 6425. 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. 20. 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. 4. is hereby amended to read as follows: Sec.The provisions of the aforesaid amendatory law. 55 Since. in fact. pursuant to Article 22 of the Revised Penal Code. are to this effect: Sec. shall sell. 5. 6425. 4. unless authorized by law. administer. 6425 was enacted as a special law. 7. pertinent to the adjudication of the case at bar. Article IV of Republic Act No. a corollary question would be whether this court. Administration. 7. Delivery. give away to another. as amended. distribute. Application of Penalties. 14-A. 8 and 9 of Article II and Sections 14. dispatch in transit or transport any prohibited drug. 4. xxx xxx xxx Sec. Confiscation and Forfeiture of the Proceeds or Instrument of the Crime. the initial inquiry would be whether the patently favorable provisions of Republic Act No. obviously. deliver. 13.8 grams and. Sale. 7659 could neither have then been involved nor invoked in the present case. albeit originally amendatory and in substitution of the previous Articles 190 to 194 of the Revised Penal Code. 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. can sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on . hurto. 8 and 9 of Art. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana with a total weight of only 3. as amended. known as the Dangerous Drugs Act of 1972. — 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. 750 grams or more of indian hemp or marijuana xxx xxx xxx Otherwise. known as the Dangerous Drugs Act of 1972. Distribution and Transportation of Prohibited Drugs . Although Republic Act No. 17. stands to be convicted for the sale of only two of those tea bags. II of Republic Act No. are hereby amended to read as follows: xxx xxx xxx Sec. robo. estafa or falsification. the favorable provisions of Republic Act No. — The penalties for offenses under Sections 3. the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. if the quantity involved is less than the foregoing quantities.

That penalty.appellant. irrespective of whether or not the accused has applied for it. 58 Ordinarily. The plain precept contained in article 22 of the Penal Code. hence covered by the imposable range of penalties under the second paragraph of Section 20.000. then practice. The penalty in said second paragraph constitutes a complex one composed of three distinct penalties.. and the most severe as the maximum period. dispatch in transit or transport any prohibited drug. et al. thus: . imposes the penalty of reclusion perpetua to death and a fine ranging from P500. declaring the retroactivity of penal laws in so far as they are favorable to persons accused of a felony. the quantity of the dangerous drug is only 3. ante. deliver. procedure and pragmatic considerations would warrant and necessitate the matter being brought to the judicial authorities for relief under a writ of habeas corpus. and not reclusion perpetua. give away. 56 2. each of the aforesaid component penalties shall be considered as a principal . prision mayor. and pursuant to Article 64 of the Code. as the maximum of the penalty where the marijuana is less than 750 grams. .8 grams. Moran. the law provides that the penalty shall be taken from said range " depending upon the quantity" of the drug involved in the case. This is also concordant with the fundamental rule in criminal law that all doubts should be construed in a manner favorable to the accused. In such a situation. administer. and reclusion temporal.00 to P10. 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. however. that the penalty shall instead depend upon the quantity of the drug subject of the criminal transaction. shall be applied if what is involved is 750 grams or more of indian hemp or marijuana. as now further amended. that is. with the lightest of them being the minimum. 7659 has already become final and executory or the accused is serving sentence thereunder. Where. . by way of exception to Article 77 of the Code and to subserve the purpose of Section 20 of Republic Act No. there is here an overlapping error in the provisions on the penalty of reclusion perpetua by reason of its dual imposition. Section 4 of Republic Act No. and also as the minimum of the penalty where the marijuana involved is 750 grams or more.00 upon any person who shall unlawfully sell. In other words. the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. That issue has likewise been resolved in the cited case of People vs. The same error has been committed with respect to the other prohibited and regulated drugs provided in said Section 20.000. If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 3. To harmonize such conflicting provisions in order to give effect to the whole law. if the quantity involved is less. thereby calling for and necessitating judicial reconciliation and craftsmanship. 59 Accordingly. The peculiarity of the second paragraph of Section 20. would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty. otherwise. an error on the matter of imposable penalties appears to have been committed in the drafting of the aforesaid law. 6425. the next as the medium. As applied to the present case. prision correccional. is its specific mandate. just as would also all provisions relating to the prescription of the crime and the penalty. as now modified. the Code provides that each one shall form a period. as in this case. Probably through oversight. .. according to the amendment to Section 20 of the law. 7659. that is. above quoted.000. distribute. the mitigating and aggravating circumstances determine which period of such complex penalty shall be imposed on the accused.

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

to be taken from the medium period thereof pursuant to Article 64 of the Revised Penal Code. we hold that in the instant case the imposable penalty under Republic Act No. 1866 (illegal possession and other prohibited acts involving firearms). These are exemplified by Republic Act No. not less than 17 years and 4 months and not more than 30 years. provided for one specific penalty or a range of penalties with definitive durations. 4. Commonwealth Act No. when committed without violence or intimidation of persons or force upon things. Besides. Inceptively. 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. and life imprisonment to death. 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. The same exclusionary rule would apply to the last given example. 5.For the nonce. 1700 (Anti-Subversion Act) where the penalties ranged from arresto mayor to death. reclusion perpetua or death. 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. Subsequently. 6425. driver or occupant of the carnapped vehicle is killed. where the penalties under the special law are different from and are without reference or relation to those under the Revised Penal Code. 7659. 6539. 1612 (Anti-Fencing Decree) where the penalties run from arresto mayor to prision mayor. such as imprisonment for one year or for one to five years but without division into periods or any technical statutory cognomen. and Presidential Decree No. paragraph four. those special laws. is prision correccional. provided: Sec. the legislative intendment is clear. Another variant worth mentioning is Republic Act No. a clarificatory discussion of the developmental changes in the penalties imposed for offenses under special laws would be necessary. 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. Republic Act No. there being no attendant mitigating or aggravating circumstance. 63 Thereafter. 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. reclusion temporal. the penalties wherefor may involve prision mayor. sub-paragraph two (a) of the Revised Penal Code and shall be punished in the same manner as therein provided. 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. 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. such technical term under the Revised Penal Code is not given to that penalty for carnapping. 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. when committed with violence against or intimidation of any person. for instance. when the owner. Failure of the employer to pay his employee or laborer as required by section one of this Act. At this juncture. as amended by Republic Act No. Originally. In this type of special law. or force upon things. With respect to the first example. 303 62 penalizing nonpayment of salaries and wages with the periodicity prescribed therein. 64 Presidential Decree No. the other penalties for carnapping attended by the .

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

as provided in Articles 67 and 68. the presence of privileged mitigating circumstances. or even reduce the penalty by degrees.While not squarely in issue in this case. 6. what ordinarily are involved in the graduation and consequently determine the degree of the penalty. the court shall sentence the accused to an indeterminate sentence. that the penalty as ultimately resolved will exceed one year of imprisonment. destierro and arresto mayor. There could. can reduce the penalty by one or two degrees. Thus. 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. when the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent. 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." We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not . However. states that "if the offense is punished by any other law. which must each likewise consist of three penalties. or even more. prision correccional. The Court rules. in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article 71. Apparently it does. 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 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. are the stage of execution of the crime and the nature of the participation of the accused. Hence. however. when there are two or more ordinary mitigating circumstances and no aggravating circumstance. and since the complex penalty in this case consists of three discrete penalties in their full extent. after providing for indeterminate sentence for an offense under the Revised Penal Code. 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. that is. provided. is how the indeterminate sentence shall be ascertained. the courts shall proceed by analogy therewith. Such interpretation is to be adopted so that the law may continue to have efficacy rather than fail. and that the lowest penalty should in any event be prision correccional in order not to depreciate the seriousness of drug offenses. of course. but because this aspect is involved in the discussion on the role of modifying circumstances. Interpretatio fienda est ut res magis valeat quam pereat. 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. It is true that Section 1 of said law. the penalty shall be reduced by one degree. 6425. that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties. be no further reduction by still one or two degrees. the penalty next lower in degree shall likewise consist of as many penalties which follow the former in the scale in Article 71. Prefatorily. If this rule were to be applied. therefore. A perfect judicial solution cannot be forged from an imperfect law. since only the penalties of fine and public censure remain in the scale. however. 68 The more important aspect. which impasse should now be the concern of and is accordingly addressed to Congress. under paragraph 5 of Article 64. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us. in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. These provisions of Articles 64(5). prision mayor and reclusion temporal. Also. then one degree lower would be arresto menor. to avoid anomalous results which could not have been contemplated by the legislature.

4103 in such a way as to harmonize laws with laws. hence there could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense.taken from and is without reference to the Revised Penal Code. as explicated by the antecedents of the law and related contemporaneous legislation. 4103 as earlier noted. the prisoner may merely be allowed to serve the balance of his sentence outside of his confinement. Furthermore. considering the interrelation of the penalties in the Code as supplemented by Act No.) 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. 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. 4103 in an integrated scheme of penalties. with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted of offenses punished with death penalty or life imprisonment. In the illustrative examples of penalties in special laws hereinbefore provided. as a matter of grace and not of right. the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which. and of structural interpretation. hence with their technical signification and effects. or its amendments." (Emphasis ours. In fact. is that under the concurrence of the principles of literal interpretation. 6425. 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. only to the first and last examples. in view of the attending circumstances. and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. this holding is but an application and is justified under the rule of contemporanea expositio. 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. 72 The "minimum" sentence is merely a period at which. it follows that the minimum of the indeterminate sentence in this case shall be the penalty next lower to that prescribed for the offense. to determine the minimum. and would still apply. is now in effect punished by and under the Revised Penal Code. 73 It does not constitute the totality of the penalty since thereafter he still has to continue serving the rest . for purposes of determining the maximum of said sentence. What irresistibly emerges from the preceding disquisition. 71 The indeterminate Sentence Law is a legal and social measure of compassion. such that it may be said that the "offense is punished" under that law." we have held that what is considered is the penalty actually imposed and not the penalty imposable under the law." as is the rule for felonies therein. Thus. and should be liberally interpreted in favor of the accused. could be properly imposed under the rules of said Code. which have been rationalized by comparative decisions of this Court. Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act No. as now amended by Republic Act No. has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms. 69 We repeat. 70 and that reclusion perpetua is likewise embraced therein although what the law states is "life imprisonment". although provided for in a special law. as discussed in the preceding illustrations. of historical interpretation. No. Republic Act No. 4103 by a mere literal appreciation of its provisions. therefore. Fortunately. which is the best mode of interpretation. this rule applied. considering the vintage of Act No. and not before. Correlatively. 7659. this Court has never gone only skin-deep in its construction of Act. Such offense.

The difference. concur. J.. instead of 6 months and 1 day of prision correccional. Puno. applying the Indeterminate Sentence Law (Act No.A. JJ. No. In fact. It is thus both amusing and bemusing if. 6425. as he hereby is.. should be that whose minimum is within the range of the penalty next lower. which could thereby even involve only one day. Melo. as amended by Section 17 of R. to six (6) years of prision correccional. with fealty to the law.of his sentence under set conditions.. No. Bellosillo. SO ORDERED. JR. hence also their . 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. Cruz. Romero. or his reincarceration may be ordered on legal grounds.. the judgment of conviction rendered by the court a quo against accused-appellant Martin Simon y Sunga is AFFIRMED. 7659. arresto mayor. Vitug. i. 4103. the court may set the minimum sentence at 6 months of arresto mayor. his release on parole may readily be denied if he is found unworthy thereof. That minimum is only the period when the convict's eligibility for parole may be considered. Bidin. as the maximum thereof. sentenced to serve an indeterminate penalty of six (6) months of arresto mayor. J. 7659 had unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms. Padilla.A. as amended). Narvasa.J.A. as the minimum. under all the foregoing premises. taking into account the quantity of the dangerous drugs involved. C.. 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. the sentence to be meted out. is on leave. I The first view is based on the proposition that since R. even if he has served the minimum sentence. ACCORDINGLY. Separate Opinions DAVIDE. would be prision correccional. is hardly worth the creation of an overrated tempest in the judicial teapot. 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. appellant should be begrudged the benefit of a minimum sentence within the range of arresto mayor. For. in the case at bar. No. but with the MODIFICATION that he should be.e.. Kapunan and Mendoza.

in view of the attending circumstances. 4103. as amended. as amended by Act. and (2) offenses punished by other laws (or special laws). It is still the special law that defines the offense and imposes a penalty therefor. therefore. 7659 had adopted the penalties prescribed by the Revised Penal Code in drug cases. . 6425). No. the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which. No. the nature of participation (Article 16).). a crime is deemed punished under the Revised Penal Code if it is defined by it.technical signification and effects. the court shall sentence the accused to an indeterminate sentence. then we are also bound. On the other hand. 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. The reason is quite simple.A. In short. No. 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. Section 1 of the Indeterminate Sentence Law (Act. the latter offenses would now be considered as punished under the Revised Penal Code for purposes of the Indeterminate Sentence Law. accomplices. 4225 and R. No. could be properly imposed under the rules of the said Code. Title III of Book I thereof. ineluctably. 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. 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. application of penalties to principals. Elsewise stated.A. which is thus appropriately titled CRIMES AND PENALTIES. by the adoption of the penalties provided for in the Revised Penal Code for the offenses penalized under the Dangerous Drugs Act (R. Thus. If that were so. and accessories (Article 46 et seq. No. 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). 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. or its amendments. accessory penalties (Articles 40-45). and none other. 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). and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. 4203) also provides that: if the offense is punished by any other law.A. The offenses punished by the Revised Penal Code are those defined and penalized in Book II thereof. as a crime and is punished by a penalty which is included in the classification of Penalties in Chapter II. There are. complex crimes (Article 48). To simplify further. I cannot subscribe to the view that since R. offenses related to drugs should now be considered as punished under the Revised Penal Code. 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. although it adopts the Code's nomenclature of penalties.

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

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

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.I find the justification for the rule to be arbitrary and unfair. and Article 69 of the Revised Penal Code. 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. as amended by R.A. Also. and Honrada (the clerk of court). Gelacio. The reason for the disallowance. the Office of the Ombudsman recommended that Paredes et al be charged with Falsification of Public Documents. is unconvincing because Section 20 of the Dangerous Drugs Act. if the privileged mitigating circumstance happens to be the minority of the accused. Sandiganbayan On 23 Jan 1990. Gelacio claimed that. — 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 then vice mayor of San Francisco. viz. 7659. Subsequently. No. JJ.. The three allegedly conspired to falsify a copy of a Notice of Arraignment and of the Transcript of Stenographic Notes. Article 68. Paredes claimed that Sansaet only changed his side because of political realignment. Sansaet (counsel of Paredes). Feliciano and Quiason. Paredes appealed but was eventually denied by the Sandiganbayan. who is not exempted from liability by reason of the court having declared that he acted with discernment. as amended by Section 17 of R. 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.A. in order not to depreciate the seriousness of drug offenses. Agusan del Sur filed a case against Paredes (who was then the governor of the same province). in fact. Atty. which reads: Art. but always in the proper period. we both allow and disallow the application of Article 64(5). then he is entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised Penal Code. No. Upon a person over fifteen and under eighteen years of age the penalty next lover than that prescribed by law shall be imposed. 68. Atty. concur. It is unfair because an accused who is found guilty of possessing MORE dangerous drugs — say 500 to 749 grams of marijuana. the following rules shall be observed: Upon a person under fifteen but over nine years of age. 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. I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act. Penalty to be imposed upon a person under eighteen years of age. a discretionary penalty shall be imposed. 7659. no arraignment has ever been issued against him in a criminal proceeding against him. we can be at liberty to apply the Revised Penal Code in one aspect and not to apply it in another. . Yet. but always lower by two degrees at least than that prescribed by law for the crime which he committed. Sansaet on his part maintained that there was indeed a Notice of Arraignment but he later retracted his testimonies.. Paredes v. It is arbitrary because within the same second paragraph involving the same range of penalty.

now a member of Congress. COURT OF APPEALS (17TH DIVISION). 114046 October 24. and Lazaro Law Firm for petitioners. Article VI of the Constitution – which deals with the power of each House of Congress inter alia to ‘punish its Members for disorderly behavior. Juanito L. and (3) the Urgent Petition to Declare Judge Jaime N. be suspended by order of the Sandiganbayan. respondents.R. REGALADO. RICARDO F. SP No. Jr. VILLA-IGNACIO of Pasig. The SC ruled: “x x x. 1 (2) the Urgent Motion 2 and Supplemental Urgent Motion 3 for Immediate Action on Petition for Habeas corpus.ISSUE: Whether or not Paredes. Cubao. should not exceed sixty days – is unavailing. Villa-Ignacio for Contempt and to Annul Proceedings (with Immediate Prayer for another Cease and Desist Order). Andrade. Camp Crame. 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 . THE PEOPLE OF THE PHILIPPINES. in CA-G. and First Assistant Provincial Prosecutor Dennis M. HELD: The Supreme Court affirmed the order of suspension of Congressman Paredes by the Sandiganbayan.” Galvez v. Provincial Prosecutor.: Submitted for resolution in the present special civil action are: (1) the basic petition for certiorari and mandamus with a petition for habeas corpus. petitioners Honorato Galvez. and PNP P/SR. 1994. CA Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G. Petitioner’s invocation of Section 16 (3). Salazar. preventive measure. DE LEON. 1993. dated February 18. First Asst.R. 4 On November 12. as it appears to be quite distinct from the suspension spoken of in Section 13 of RA 3019. SUPT. despite his protestations on the encroachment by the court on the prerogatives of congress. Bulacan. Camp Commander and Head of the PNP Custodial Group. 1994 HONORATO GALVEZ and GODOFREDO DIEGO. No.’ 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. Salva & Associates. prescinding from the fact that the latter is not being imposed on petitioner for misbehavior as a Member of the House of Representatives. J. Rizal. the incumbent Mayor of San Ildefonso. which is not a penalty but a preliminary. petitioners. vs. Quezon City. 33261. Emerito M. when imposed. to review the resolution issued by respondent Court of Appeals. DENNIS M.

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

respondent court dismissed the petition in its questioned resolution of February 18. 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. the ex parte motion should be considered as a worthless scrap of paper and Judge Villajuan had no authority to act on it. and (b) the filing thereof constituted forum shopping. or (b) the subsequent informations for murder. It is further stressed that in case there is a need to change the nature of the offense charged. As earlier stated. the only legal and proper remedy is through the filing of the corresponding amended information. as well as a violation of Sections 4. I. We shall discuss these issues seriatim. Hence. Ergo. and 4. 5 and 6. 3642-M-93 to 3644-M-93.petitioners' motion to quash filed in Criminal Cases Nos. 4004-M-93 to 4007-M-93 was valid. 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. Petitioners advance the theory that respondent prosecutor should have amended the original informations instead of withdrawing the same and filing new ones. hence this petition. (a) the first set of informations for homicide and frustrated homicide in Criminal Cases Nos. Whether the arraignment proceeding held on January 24. Several corollary but equally important issues have likewise been addressed to us for resolution. and illegal possession of firearms in Criminal Cases Nos. 5 and 6. 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. 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. 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. from homicide to murder. 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. 1. that is. 3. frustrated murder. that is. the order granting the same is null and void. Rule 15 of the Rules of Court. 4004-M-93 to 4007-M-93. so they contend. Whether the order granting the withdrawal of the original informations was immediately final and executory. 1994 in Criminal Cases Nos. 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. 2. Rule 15 of the Rules of Court. by adding the qualifying circumstance of treachery. to wit: 1. 4004-M-93 and 4007-M-93. . 1994.

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

the permission or consent of the court must be secured. Petitioners now question the propriety of the procedure adopted by the prosecution. It has been observed that while the Rules of Court gives the accused the right to move for the quashal of the information. The court is the best and sole judge on what to do with the case before it. Although the motion did not state the reasons for the withdrawal of the informations. That is not necessarily so. frustrated murder. In such an instance. such proposed course of action may be taken but shall likewise be addressed to the sound discretion of the court. not a new information. 25 It is not denied that in the present case. the court in the exercise of its discretion granted the same. . This prompted him to file an ex parte motion to withdraw the original informations for homicide and frustrated homicide. it is silent with respect to the right of the prosecutor to ask for a dismissal or withdrawal thereof. The determination of the case is within its exclusive jurisdiction and competence. it may be contended that these rules speak of a dismissal by the court when there is a mistake in charging the proper offense. 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. 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. 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. namely. 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. insisting that an amendment. and illegal possession of firearms. 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. as a consequence of which a new set of informations was thereafter filed and raffled to another branch of the court. But then. before a re-investigation of the case may be conducted by the public prosecutor. 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. and was subsequently granted. but make no mention of a dismissal made upon application of the prosecution. 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. the court granted the motion of respondent prosecutor for the suspension of the proceedings until the re-investigation thereof shall have been terminated. permission by the court to dismiss the original informations. Section 14 of Rule 110 and Section 11 of Rule 119. It must here be emphasized that respondent prosecutor sought. the prosecutor arrived at a finding that petitioners should have been charged with murder.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. was required under the circumstances. nevertheless. Thereafter. if after such reinvestigation the prosecution finds a cogent basis to withdraw the information or otherwise cause the dismissal of the case. 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. And.

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

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

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 substitution of information must be with leave of court as the original information has to be dismissed. Thus. Jr. even if a substitution was made at such stage. Consequently. In the subsequent case of Teehankee. petitioners cannot validly claim double jeopardy. Madayag. a substitution is in order. hence before they were placed in jeopardy. the substitution of informations was not a fatal error. whether there should be an amendment under the first paragraph of Section 14. Furthermore. but they differ in the following respects: 1. or an offense which necessarily includes or is necessarily included in the first information. an amendment of the information is sufficient. petitioner's right to speedy trial was never . . 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. 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. 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. 3. where the new information charges an offense which is distinct and different from that initially charged. otherwise. while substitution necessarily involves a substantial change from the original charge. 110 was clarified to mean as follows: 31 however. another preliminary investigation is entailed and the accused has to plead anew to the new information. in consideration of the fact that the motion to withdraw was filed and granted before herein petitioners were arraigned. the accused could invoke double jeopardy. . for if the original information would be withdrawn. On the other hand. Rule 110. there having been no grave abuse of discretion on the part of the court in granting the motion and. therefore. Amendment may involve either formal or substantial changes. we are inclined to uphold the propriety of the withdrawal of the original informations. for the simple reason that no first jeopardy had as yet attached. 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. A contrary ruling. vs. there is no need for another preliminary investigation and the retaking of the plea of the accused. In any event. Where the amendment is only as to form. if it appears before judgment that a mistake has been made in charging the proper offense. more importantly. and 4. or a substitution of information under the second paragraph thereof.. we hold that although the offenses charged under the three new informations necessarily include those charged under the original informations. to paraphrase from our former pronouncements. in substitution of information.This clearly appears from the second part of Section 13 of Rule 106 which says that. which is precisely the evil sought to be prevented under the rule on substitution. Amendment before plea has been entered can be effected without leave of court. 2. hence the accused cannot claim double jeopardy. hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused. would sacrifice substantial justice for formal nuances on the altar of procedural technicalities. the rule is that where the second information involves the same offense. In determining. . et al.

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

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

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

a writ of habeas corpus may be used with the writ of certiorari for the purpose of review. In conclusion. under such mandatory language. considering that Branch 10 of the same trial court handling Criminal Cases Nos. 56 It has to be an exceptional case for the . Any explanation or defense which petitioners would want to invoke can be properly raised during the trial. The words are so plain and unambiguous that no construction is necessary. a plea of not guilty shall be entered for him. the court must enter a plea of not guilty. but not the record. In that way and in that way only can an issue be created upon which the trial shall proceed. 1994 with the assistance of counsel de oficio. the alleged defect in their arraignment on January 24. 53 Section 1 (c) of Rule 116 is quite explicit that where the accused refuses to plead. A writ of certiorari reaches the record but not the body. Consequently. it is the duty of the accused. Hence. 4004-M-93 to 4007-M-93 legally acquired jurisdiction over the new informations which we have likewise declared valid. A writ of habeas corpus reaches the body and the jurisdictional matters. In criminal cases. in addition to the other pleas authorized by law. which were allegedly in palpable violation of Section 1. 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. but they cannot refuse to enter their plea. 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. and the information was read to them in the vernacular. 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. 1994. 1994 which was merely read in open court. It actually calls for a literal application thereof. after merely reading the informations against them and asking whether they understood the same.3. 1994 is deemed to have been cured when they were again arraigned on February 18. Nonetheless. when Judge Pornillos entered a plea of not guilty for them after they refused to plead. Petitioners similarly dispute the legality of their arraignment on January 24. 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. and to take the necessary steps to question the same by way of a motion for reconsideration or an appeal. if the accused refuses to plead. 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. Rule 116. II. to plead whether he is guilty or not of the crime charged. We have earlier declared that Branch 10 of the trial court acquired jurisdiction over the new set of informations. 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. the orderly course of trial should be pursued and the usual remedies exhausted before the writ may be invoked. 54 However. hence their detention should be deemed illegal. petitioners may be prosecuted thereunder. In the absence of exceptional circumstances. the warrant of arrest issued on the bases of said informations filed therein and the subsequent detention of herein petitioners pursuant thereto are valid. Habeas corpus is not ordinarily available in advance of trial to determine jurisdictional questions that may arise. Hence. without furnishing them copies of the information with the list of witnesses.

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

no cogent reason exists for the suspension of the proceedings before the court below. frustrated murder and illegal possession of firearms as having amended and superseded the original three informations for homicide and frustrated homicide. Brushing aside procedural technicalities. By no stretch of the imagination can we interpret the same to include Judge Jaime N. 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. Aquino v.. Withal. Puno and Mendoza. Narvasa. the evidence of the prosecution and defense will more or less be the same and can be utilized for the charges therein. but he failed to state what they actually agreed upon. Hence. 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. Jr. SO ORDERED. the motion to cite respondent judge and prosecutor for contempt and to annul proceedings. retired Justice Alfredo Lazaro. JJ. 114046. No. As a final word. of Quezon City. judgment is hereby rendered DISMISSING the petition for certiorari and mandamus together with the petition for habeas corpus. takes issue with said agreement on the pretension that the same is not the true agreement of the parties. Correspondingly. 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. there being no substantial rights of herein petitioners which may be affected thereby. to allow both of them to subsist will only serve to confuse and complicate the proceedings in the cases therein.. concur.R. Whichever set of informations prevails. are clearly directed against the two aforenamed regional trial judges in Malolos. For that matter. WHEREFORE. the resolutions of this Court in the petition for change of venue.J. it becomes exigent to now consider and declare the four informations for murder. for lack of merit. Bulacan. therefore. Salazar. as well as the cease and desist order issued therein. C. Esperon SPECIAL THIRD DIVISION . the three informations for homicide and frustrated homicide should be ordered withdrawn from the Quezon City trial court's docket. Counsel for petitioners. DENYING.be deemed to have waived any issue or objection it has raised before the Supreme Court in G. while it may well be that both sets of information validly exist for the nonce.

. HERMOGENES C... YNARES-SANTIAGO......*** SANDOVAL-GUTIERREZ.**** LT.... Tanay...... 174994 Present: MARIA FE S... Rizal.. PA G. G2-21D..In the Matter of the Petition for a Writ of Habeas Corpus of the person of ARMY MAJOR JASON LAUREANO AQUINO.... 2007 x.. ESPERON.* in his capacity as Commanding General. GEN. AFP..... AUSTRIA-MARTINEZ...... Camp Capinpin. Chairperson. and CHICO-NAZARIO... Petitioner. JJ....R.. J.** Respondents... No. Army Detention Center. Promulgated: August 31... Philippine Army. versus QUISUMBING.. and the Custodial Officer or Commander.-x DECISION .... AQUINO.

namely. SP. Captain Montano B. as set forth in the Solicitor General’s brief. allegedly met at the resthouse of Captain Aldomovar near Camp Tecson. Captain Joey T. Major Aquino denied the accusations hurled against him. Gen. that he had no plan nor did he make any pronouncement of withdrawing support from the chain of . Captain Isagani Criste. Bulacan to plot a breach of the Camp Defense Plan of Camp General Emilio Aguinaldo and to take over Camp Aquinaldo. Doctolero. Gen.CHICO-NAZARIO. 95341. Major Aquino. of the same court which denied reconsideration of its earlier Decision. (Lt. show that on 3 February 2006. and 3) the participation. Major Aquino was ordered arrested and confined at the Intelligence Service Group of the Philippine Army in Fort Bonifacio. seeking to nullify the Decision dated 31 August 2006. as well as the Headquarters of the Philippine Army. Aldomovar. No. The facts leading to the arrest of Major Aquino. which denied petitioner Maria Fe S. in the wake of the group’s alleged withdrawal of support from the Armed Forces of the Philippines chain of command and the current administration of President Gloria Macapagal-Arroyo. San Miguel. Taguig. of the Court of Appeals in CA-G.: At bar is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure. On 26 February 2006. Gen. Esperon ordered the Army Inspector General to conduct an investigation to determine: 1) the circumstances attending Major Aquino’s alleged withdrawal of support. He intimated. J. Esperon) who was then the Commanding General of the Philippine Army.R. Esperon. Lt. and Captain James Sababa. a panel of investigators was formed. inter alia. 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. Lim). Special Operation Command of the Philippine Army. upon the order of Lt. For this purpose. On the same day. Hermogenes C. Gen. Major Leomar Jose M. Fontiveros. responsibility and culpability of all Philippine Military personnel involved. and the Resolution dated 5 October 2006. along with several military men. Army Major Jason Laureano Aquino (Major Aquino) of the First Scout Ranger Regiment. During the investigation. Aquino’s Petition for the Issuance of a Writ of Habeas Corpus for the person of her husband. if any.

thus: 14. and that he pledged to continue to support the same and the duly constituted authorities. among other military .command. i. 91 D of said troop movement. to wit: i) There is no indication that CO. 3SRB sought clearance or informed CO.e. it may be reasonably observed that said Officer and BGEN LIM were closely coordinating the progress of the latter’s talks with CSAFP [Chief of Staff of the Armed Forces of the Philippines] on the night of 23 February 2006. Notedly. 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. 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. approved and/or cleared with the AOC. On 4 March 2006. the AFPCC or SOLCOM. Moreover.2 Based on the account of MAJ AQUINO. 901 st Bde or CG. the panel of investigators found that the troop movement by some military personnel from their respective stations to Manila was illegal. movement of the 7SRC & 9SRC personnel to Manila. 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. In its report. AFP. the panel of investigators submitted its Investigation Report to the Commanding General of the Philippine Army. implicating Major Aquino therein. iii) There is no showing that the troop movement was coordinated. the following attendant circumstances put to doubt the real intention of FSRR in ordering the aforementioned troop movement. 901st Bde called CO. 3SRB to inquire about any troop movement. iv) When CO. 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.

Philippine Army as well as the Chief of Staff. 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. among other military officers. there is now basis for charging MAJ AQUINO. CPT FONTIVEROS.1 In addition to the relief of BGEN DANILO D LIM 0-7665 AFP which in itself is already a disciplinary action.4. Article 97 (Disorders and Neglects Prejudicial to Good Order and Military Discipline). 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. On 17 March 2006. Gen. 6. 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. the JAGO found the existence of probable cause against Major Aquino.) Further.3. In the (sic) light of the new averments revealed in the Supplemental Affidavit of 1Lt REYES. Per said Supplemental Affidavit. CPT SABABAN for violation of AW 67 (ATTEMPT TO CREATE A MUTINY). CPT CRISTE. discuss and plot their plan to breach the Camp Defense Plan of Camp General Emilio . For publishing. on the evening of 03 Feb 2006. distributing and discussing the pamphlet entitled “The New Order – The Solution to the Filipino Political Problem. San Miguel. for violations of Article 67 (Attempting to Begin or Create Mutiny). Armed Forces of the Philippines. it was revealed that subj Officers met at the resthouse of CPT ALDOMOVAR near the so-called tower area in Camp Tecson. and Article 97 (Disorders and Neglects Prejudicial to Good Order and Military Discipline) of the Articles of War. The JAGO’s recommendation reads: 6.3. to wit: 15. and Article 67 (Attempting to Begin or Create Mutiny) of the Articles of War. CPT ALDOMOVAR. Esperon to the Judge Advocate General’s Office (JAGO) of the Philippine Army for review. Bulacan. MAJ DOCTOLERO.” which publication is not sanctioned as an official publication of the Armed Forces of the Philippines or the Philippine Army. for violations of Article 96 (Conduct Unbecoming an Officer and a Gentleman). the panel’s Investigation Report was referred by Lt.officers/personnel.

which was indorsed to the Chief of Staff of the Armed Forces of the Philippines (AFP). and to place them in confinement at the Philippine Army Detention Center. together with the other implicated military personnel who withdrew their support from the chain of command in February 2006. It. then Army Provost Marshal. Camp Capinpin. petitioner filed a Petition for Habeas Corpus with the Court of Appeals. On 20 July 2006. the charge sheet against Major Aquino was amended to set forth more detailed specifications of the charges. On 21 July 2006. The same Order also designated the aforementioned Commanding Officer to exercise direct supervision and control over the concerned detainees.Aguinaldo and hatch a plan to take over Camp Aguinaldo and [the] Headquarters [of the] Philippine Army. signed under oath a charge sheet against Major Aquino. x x x.e. be directed to immediately produce the body . praying that the AFP Chief of Staff and the Commanding General of the Philippine Army. Gen. the Judge Advocate General of the AFP General Headquarters of the AFP issued Office Order Number 14-06. Rizal. Recuenco). 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 12 July 2006. On the basis of JAGO’s recommendations. et al. 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. On 20 July 2006. 191 st. MP Bn to exercise custodial responsibility of Major Aquino. or whoever are acting in their place and stead. Col. creating a Pre-trial Investigation Panel for the case of Major Aquino. Tanay. Esperon issued an Order to the Commanding Officer. Recuenco (Col. however. retained the charges against Major Aquino as stated in the original charge sheet— i. Lt. Jose R.

considering that. a charge sheet against Major Aquino was signed under oath by Col. summoning him to appear in person before the panel and to submit his counter-affidavits and affidavits of witnesses. Lt. then Army Provost Marshall. The case was docketed as CA-G. Basic is the rule that once a person detained is duly charged in court. Recuenco. denying the Petition for Habeas Corpus. The Court of Appeals said: Then. The latter. In view of such developments. the Pre-trial Investigation Panel of the AFP issued a Subpoena/Notice of Pre-trial Investigation to Major Aquino.of Major Aquino and explain forthwith why he should not be set at liberty without delay. 95341.R. as the records disclosed. he may no longer question his detention via a petition for the issuance of a writ of habeas corpus. SP No. which sustained the same. In tracing the factual antecedents leading to the preferment of charges against Major Aquino.] the remedy of habeas corpus being resorted to by the Petitioner is still unavailing. the Pre-trial Investigation Panel conducted a pre-trial investigation whereby Major Aquino appeared before the said body. . Esperon forwarded the panel’s recommendation to the JAGO for review. 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. however[. Gen. even if at the time Major AQUINO was arrested there was yet no formal charge filed against him. Significantly. endorsed the charge sheet to the AFP Chief of Staff for appropriate Action. In the meantime. After hearing. charges have been preferred against him even before the filing by the Petitioner of the instant petition. the Court of Appeals rendered a Decision dated 31 August 2006. 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. thereafter.

to wit: I 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. the instant Petition for Review on Certiorari. Hence. For this Court’s consideration. . 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 AQUINO’S SOLITARY CONFINEMENT IN A MAXIMUM SECURITY DETENTION FACILITY IS IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 70 OF THE ARTICLES OF WAR. the Court of Appeals denied the same and found no reason to disturb its judgment.Petitioner filed a Motion for Reconsideration of the 31 August 2006 Decision. but. petitioner elevates three issues.

The paramount issue posed for resolution is whether the confinement of Major Aquino is legal. Thus. the charge sheet and the furnishing thereof to any person subject to military law is the act of preferment. 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. the filing of a formal charge can only be done after the conclusion of the pre-trial investigation. which act is evidently different from the act of filing. Article 2 of the Articles of War circumscribes the jurisdiction of military law only over persons subject thereto. 2. petitioner assails the legality of Major Aquino’s confinement on the ground that the latter had not been formally charged. Anent the first issue. 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. Major Aquino. Otherwise stated. We are not persuaded. it is established that Major Aquino is governed by military law. Thus: Art. – 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”. when the case is referred to the general court-martial. 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. G3 of the First Scout Ranger Regiment (FSRR) of the Special Operation Command of the Philippine Army. It is petitioner’s theory that charges can only be deemed formally filed after a thorough and impartial investigation shall have been made. Thus. is subject to military law. According to petitioner. akin to the conduct of a preliminary investigation in civilian courts. all members of the . First. according to petitioner. Persons Subject to Military Law.

As a regular officer of the Armed Forces of the Philippines. 70. (b) Cadets. 178. drafted. and probationary second lieutenants. such person shall not ordinarily be placed in 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. the said service. but when charged with a minor offense only. viz. Article 70 of the Articles of War governs the cases of arrest or confinement. Consequently. (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. Any person placed in arrest under the provisions of this Article shall thereby be restricted . a scrutiny of the confinement of Major Aquino proves that the same is valid.: Art. he is subject to the applicable provisions of the Articles of War and Executive Order No. from the dates they are required by the terms of the call. Arrest or Confinement. or the Manual for Courts- Second. Martial. or to duty or for training in. as circumstances may require. (As amended by Republic Acts 242 and 516).reserve force. all trainees undergoing military instructions. draft. from the dates of their call to active duty and while on such active duty. or ordered into. or order to obey the same. Philippine Army. and all other persons lawfully called. flying cadets. Major Aquino falls squarely under Article 2 of the Articles of War.

Any officer or cadet who breaks his arrest or who escapes from confinement. Under military law. to the best of his knowledge and belief. they shall be accompanied by a statement of the substance of the testimony taken on both sides. Action Upon. and any other person subject to military law who escapes from confinement or who breaks his arrest. – Charges and specifications must be signed by a person subject to military law. the conduct of investigations is governed by Article 71 of the Articles of War. Article 70 of the Articles of War empowers the commanding officer to place. shall be dismissed from the service or suffer such other punishment as a court-martial may direct. whether before or after trial or sentence and before he is set at liberty by proper authority. . whether before or after trial or sentence and before he is set at liberty by proper authority. or tent. form of charges. and to impose such restraint as may be necessary upon the person of a military offender. Charges. and under oath either that he has personal knowledge of. Article 70 is the authority for enabling the proper military personnel to put an instant end to criminal or unmilitary conduct.to his barracks.] 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. in confinement or in arrest. Evidently. either in defense or mitigation. If the charges are forwarded after such investigation. any person subject to military law charged with a crime or with a serious offense under the Articles of War. and what disposition of the case should be made in the interest of justice and discipline. We juxtapose Article 70 with Article 71 of the Articles of War. the matters set forth therein and that the same are true in fact. 71. and the investigating officer shall examine available witnesses requested by the accused. to wit: Art. or has investigated. 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. quarters. At such investigation[. shall be punished as a court-martial may direct. with a view of his trial by court-martial. unless such limits shall be enlarged by proper authority.

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. Further. In time of peace[. the commanding officer. (Emphasis supplied. If the same be not practicable. The term “charges” or “charges and specifications” is applied to the formal written accusation or accusations against an accused. constitutes a separate accusation.) The formal written accusation in court-martial practice consists of two parts. (As amended by RA 242). A charge is made followed by a thorough and impartial investigation and if the result . to the best of his knowledge and belief.] the appointing authority will refer it to his Staff Judge Advocate for consideration and advice. 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. against his objection. within eight days after the accused is arrested or confined.Before directing the trial of any charge by general court-martial[. he will report to superior authority the reasons for delay. Each specification. forward the charges to the officer exercising general court-martial jurisdiction and furnish the accused a copy of such charges. 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. The charge. 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. the technical charge and the specification. The trial judge advocate will cause to be served upon the accused a copy of the charges upon which trial is to be had. who under oath states that he either has personal knowledge of. if practicable. together with the charge under which it is placed. 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. or has investigated.] no person shall. When a person is held for a trial by general court-martial. 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. the matters set forth therein and that the same are true in fact. be brought to trial before a general court-martial within a period of five days subsequent to the service of charges upon him.

the charge is referred to the general court martial. the amended charge sheets against Major Aquino. i. may be referred to a general court-martial for trial until after a thorough and impartial investigation thereof shall have been made. 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.e. Armando P.of the investigation so warrants. and without breach of Article 71 of the Articles of War. Contrary to petitioner’s contention. Capt. Paredes in the manner provided under Article 71. Article 71 does not make the thorough and impartial investigation a prerequisite before charges may be filed against a person subject to military law. What Article 71 instructs is that no charges. The amended charge sheets were sworn to by the accuser. Paredes. charges and specifications signed by a person subject to military law under oath. Armando P. 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. In said case. and which sets into motion the investigation. a person subject to military law. As shown by the evidence on record.e. 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. the Court held that the fact that the charge sheets were not certified in the manner provided by the pertinent law. We find that there was compliance with the requirements of the Articles of War. v. but to the referral of the charge to the general court martial. Aquino pursuant to Article 70 of the Articles of War. the thorough and impartial investigation is a prerequisite not to making a charge against a person subject to military law. De Villa. that the officer administering the oath has personally examined the affiant and is satisfied that the latter voluntarily executed and understood his affidavit. i. In Kapunan. Major Aquino stands charged in court martial proceedings for alleged violations of the Articles of War. were personally signed under oath by Capt. It is the charge which comes prior to the investigation. does not invalidate said charge sheets. this Court denied the writ of habeas corpus prayed for. As it is.. The preferment of charges under Article 71 is a ground for the confinement or arrest of Major . and upheld the legality of the confinement even when there was merely a substantial compliance with the procedural requisites laid down in Article 71. Clearly. Jr.

Major Aquino was present during the scheduled investigation.It bears stressing that subsequent to the preferment of charges under Article 70. rather. Petitioner . the Judge Advocate General of the General Headquarters of the AFP. quarters or tent as mandated by Article 70 of the Articles of War. A writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty. His arrest and confinement cannot be said to be without due process of law. or by which the rightful custody of any person is withheld from the person entitled to it. issued Office Order Number 14-06. Perforce. creating a Pre-trial Investigation Panel to investigate the case of Major Aquino and his co-accused. 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. As a general rule. Furthermore. we do not find that the Court of Appeals erred in denying petitioner’s Petition for Habeas Corpus for the person of Major Aquino. he was placed in solitary confinement in a maximum security detention cell. 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. Major Aquino was given the opportunity to submit counter-affidavits and affidavits of his witnesses. 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. 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. When petitioner proceeded to the detention cell. Petitioner contends that in his confinement. Major Aquino was not restricted to his barracks. We proceed to discuss jointly the second and third issues raised by the petitioner before this Court. In addition. More significantly. In the case at bar. The legality of Major Aquino’s restraint having been settled. she alleged that she was restricted from visiting her husband. the privilege of the writ is unavailing.

We are not impressed. 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. This Court has declared that habeas corpus is not the proper mode to question conditions of confinement. According to respondents. Major Aquino is confined in a U-shaped building without any division/partition. At this juncture. While it is true that the extraordinary writ of habeas corpus is the appropriate remedy to inquire into questions of violations of constitutional right. They also challenged. The place is described as a long hall with 50 double-deck beds. however. Cabuay.asserts that these are extreme punishments akin to treating Major Aquino as a convicted criminal. it must be stressed that respondents deny the solitary confinement of Major Aquino. the presence of the bars separating the detainees from their visitors and the boarding of the iron grills in their cells with plywood. lawyers of soldiers and pre-trial detainees accused of coup d’etat 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. In Alejano v. does not find the conditions of Major Aquino’s confinement to be a proper subject of inquiry in the instant Petition. 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. In denying the . as unusual and excessive punishment. this Court. Therein petitioners claimed that their constitutional rights were violated because they were prevented from seeing the detainees —their clients—at any time of the day or night.

The fact that the restrictions inherent in detention intrude into the detainees’ desire to live comfortably does not convert those restrictions into punishment. 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. the inherent discomforts of confinement.S.” and (2) the purpose of the action is to punish the inmate. 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. or independent of.) Furthermore.petition. Said the Court in Alejano: Bell v. Jail officials are thus not required to use the least restrictive security measure. There are no specific facts that are brought to the attention of this Court to indicate the punitive character of the confinement. It is when the restrictions are arbitrary and purposeless that courts will infer intent to punish. It is also an additional requisite that the harm or disability be significantly greater than. Wolfish [441 U. To be sure. or be independent of. We do not see the attendance of the foregoing factors in the instant case. to wit: (1) that action causes the inmate to suffer some harm or “disability. viz: Art. We do not see that the confinement of Major Aquino causes him to suffer some harm or disability. 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. The confinement is not herein imposed as a punishment. Arrest or Confinement. They must only refrain from implementing a restriction that appears excessive to the purpose it serves. 70. 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. the inherent discomforts of confinement. There is no punitive hardship that exists in the case at bar. detention inevitably interferes with a detainee’s desire to live comfortably. – Any person subject to military law charged with crime or with a serious offense under these Articles shall be placed in . the following guidelines were given by the Court to determine if an action constitutes punishment. 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. (Emphasis supplied. In fact.

as circumstances may require . upheld the blanket restriction on contact visits as this practice was reasonably related to maintaining security. shall be dismissed from the service or suffer such other punishment as a court-martial may direct. we gave reasons for the allowance of such restrictions. but when charged with a minor offense only. and Article 97. especially on blanket restrictions on contact visit. violent offenses and may have prior criminal conviction. According to Article 67. . 576 (1984)].confinement or in arrest. The safety of innocent individuals will be jeopardized if they are exposed to detainees who while not yet convicted are awaiting trial for serious. whether before or after trial or sentence and before he is set at liberty by proper authority. Any officer or cadet who breaks his arrest or who escapes from confinement. which reiterated Bell v. for attempting to begin or create mutiny. Contact visits make it possible for the detainees to hold visitors and jail staff hostage to effect escapes. quarters. for Conduct Unbecoming an Officer and Gentleman. unless such limits shall be enlarged by proper authority. causes or joins in any mutiny shall suffer death or such other punishment as a court-martial may direct. whether before or after trial or sentence and before he is set at liberty by proper authority. In Alejano. Anent petitioner’s allegation that she was restricted from visiting Major Aquino. thus: Block v. such person shall not ordinarily be placed in confinement. or tent. shall be punished as a court-martial may direct. (Emphasis supplied.) Major Aquino is charged with violations of Article 67. Rutherford [468 U. and any other person subject to military law who escapes from confinement or who breaks his arrest. the Court had in the past underscored the “hands-off doctrine”—a deference given by courts to military custodians over prison matters. any person subject to military law who attempts to create or who begins. excites.S. 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. Wolfish. Any person placed in arrest under the provisions of this Article shall thereby be restricted to his barracks.

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 high prerogative writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint. but only to the fact and duration of confinement. drugs. a form of judicial selfrestraint. to order the release of the detainee. based on the premise that courts should decline jurisdiction over prison matters in deference to administrative expertise. It is not a means for the redress of grievances or to seek injunctive relief or damages. the writ of habeas corpus does not extend into questions of conditions of confinement. . Its object is to inquire into the legality of one’s detention. The courts could afford injunctive relief or damages to the detainees and prisoners subjected to arbitrary and inhumane conditions. Wolfish. (Emphasis supplied.) In sum. We reiterate the pronouncement of this Court in Alejano: The ruling in this case. 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. therefore. habeas corpus is not the proper mode to question conditions of confinement. does not foreclose the right of detainees and convicted prisoners from petitioning the courts for the redress of grievances. The security consideration in the imposition of blanket restriction on contact visits was ruled to outweigh the sentiments of the detainees. The writ of habeas corpus will only lie if what is challenged is the fact or duration of confinement. Rutherford held that the prohibition of contact visits bore a rational connection to the legitimate goal of internal security. However. we find the present Petition to be devoid of merit. As a rule.Contact visits also leave the jail vulnerable to visitors smuggling in weapons. however. and if found illegal. Block v. This case reaffirmed the “hands-off” doctrine enunciated in Bell v.

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

– Upon the filing of the petition. shall be punished by the court. act or omission. 8. specifying the names. e.their justices. SEC. In case the writ cannot be served personally on the respondent. – The petition shall be signed and verified and shall allege the following: a. liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent. The personal circumstances of the petitioner. the justice or the judge may issue the writ under his or her own hand. 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. SEC. 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. justice or judge who shall retain a copy on which to make a return of service. The right to life. 7. as well as the manner and conduct of the investigation. act or omission was committed or any of its elements occurred. The clerk of court shall issue the writ under the seal of the court. Issuance of the Writ. and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits. The petition may include a general prayer for other just and equitable reliefs. or a deputized person who refuses to serve the same. or in case of urgent necessity. and may deputize any officer or person to serve it. justice or judge shall docket the petition and act upon it immediately. and addresses of the investigating authority or individuals. if the name is unknown or uncertain. or to any Regional Trial Court of the place where the threat. b. – The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court. and f. SEC. the respondent may be described by an assumed appellation. d. The name and personal circumstances of the respondent responsible for the threat. 5. Contents of Petition. The relief prayed for. if any. – The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. No Docket Fees. 6. c. SEC. The court. . 4. – A clerk of court who refuses to issue the writ after its allowance. personal circumstances. the court. Penalty for Refusing to Issue or Serve the Writ. or. SEC. justice or judge for contempt without prejudice to other disciplinary actions. the rules on substituted service shall apply. act or omission. How the Writ is Served. The investigation conducted.

SEC. they shall be deemed waived. – Within seventy-two (72) hours after service of the writ. 9. . Prohibited Pleadings and Motions. affidavit. and d. location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance. b. b. and to bring the suspected offenders before a competent court. 10. contain the following: a. vi. to identify witnesses and obtain statements from them concerning the death or disappearance. Motion to dismiss. to identify and apprehend the person or persons involved in the death or disappearance. 11. otherwise. c. ii. to determine the cause. Motion for extension of time to file return. iii. 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. act or omission against the aggrieved party. Contents. through any act or omission. Return. Defenses not Pleaded Deemed Waived. manner. — All defenses shall be raised in the return.SEC. c. Dilatory motion for postponement. position paper and other pleadings. to verify the identity of the aggrieved party. among other things. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life. its resolution and the prosecution of the case. iv. The return shall also state other matters relevant to the investigation. opposition. A general denial of the allegations in the petition shall not be allowed. All relevant information in the possession of the respondent pertaining to the threat. the respondent shall file a verified written return together with supporting affidavits which shall. the return shall further state the actions that have been or will still be taken: i. liberty and security of the aggrieved party. SEC. v. If the respondent is a public official or employee. act or omission. – The following pleadings and motions are prohibited: a. 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.

— The court. — In case the respondent fails to file a return. Third-party complaint. Reply. to permit entry for the purpose of inspecting. j. justice or judge shall proceed to hear the petition ex parte. association or institution referred to in Section 3(c) of this Rule. k. 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 court. and l. Effect of Failure to File Return. Interim Reliefs. – The court. SEC. . justice or judge. If the petitioner is an organization. upon motion or motu proprio. g. justice or judge may grant any of the following reliefs: (a) Temporary Protection Order. justice or judge. Motion to declare respondent in default.d. Petition for certiorari. SEC. upon verified motion and after due hearing. justice or judge. the court. Motion for reconsideration of interlocutory orders or interim relief orders. — Upon filing of the petition or at anytime before final judgment. the court. i. Summary Hearing. 14. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court. the protection may be extended to the officers involved. SEC. surveying. Motion for a bill of particulars. f. h. (b) Inspection Order. However. 13. in accordance with guidelines which it shall issue. e. The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. Memorandum. 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. Counterclaim or cross-claim. mandamus or prohibition against any interlocutory order. — The hearing on the petition shall be summary. 12. 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. measuring. Intervention. or photographing the property or any relevant object or operation thereon. may order any person in possession or control of a designated land or other property.

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

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

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

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

which period may be reasonably extended by the Court for justifiable reasons. (i) a disclosure of the data or information about the petitioner. 9. in case of urgent necessity. state secrets. . 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. Contempt. .A clerk of court who refuses to issue the writ after its allowance. (iii) the currency and accuracy of the data or information held. 7. justice or judge may punish with imprisonment or fine a respondent who commits contempt by making a false return. Contents. or a deputized person who refuses to serve the same.The court. contain the following: (a) The lawful defenses such as national security. SEC. . In case the writ cannot be served personally on the respondent. confidentiality of the source of information of media and others. . justice or judge shall immediately order the issuance of the writ if on its face it ought to issue.The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court. and. 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. SEC. or refusing to make a return. the nature of such data or information. When Defenses May be Heard in Chambers. Issuance of the Writ. or when the . in possession or in control of the data or information subject of the petition. and the purpose for its collection. SEC. the rules on substituted service shall apply. SEC. shall be punished by the court.(f) Such other relevant reliefs as are just and equitable. SEC. 10. How the Writ is Served. Return.Upon the filing of the petition. the court. 8. justice or judge for contempt without prejudice to other disciplinary actions. privileged communications. and may deputize any officer or person serve it. . A general denial of the allegations in the petition shall not be allowed. (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information. the justice or judge may issue the writ under his or her own hand. and. (c) Other allegations relevant to the resolution of the proceeding. justice or judge who shall retain a copy on which to make a return of service. or. among other things. 11.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. The return shall. Penalty for Refusing to Issue or Serve the Writ. (b) In case of respondent in charge. 12. SEC. .The respondent shall file a verified written return together with supporting affidavits within five (5) working days from service of the writ. or any person who otherwise disobeys or resist a lawful process or order of 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. 17. 14. granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence.data or information cannot be divulged to the public due to its nature or privileged character. Return of Service. otherwise. within three (3) days from its enforcement. justice or judge within five (5) working days.The hearing on the petition shall be summary. (f) Third-party complaint. . If the allegations in the petition are proven by substantial evidence. (d) Motion for a bill of particulars. Filing. Upon its finality. 13. (e) Counterclaim or cross-claim. 16. (g) Reply. Prohibited Pleadings and Motions. SEC.The following pleadings and motions are prohibited: (a) Motion to dismiss. . make a verified return to the court. SEC. (b) Motion for extension of time to file return. (c) Dilatory motion for postponement.In case the respondent fails to file a return. and (l) Petition for certiorari. Sec. SEC. (k) Motion for reconsideration of interlocutory orders or interim relief orders. mandamus or prohibition against any interlocutory order. Summary Hearing. (h) Motion to declare respondent in default. (i) Intervention. affidavit. the court shall enjoin the act complained of. . or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable. or order the deletion. position paper and other pleadings. justice or judge shall proceed to hear the petition ex parte.The court shall render judgment within ten (10) days from the time the petition is submitted for decision. the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court. However. Judgment. the court. Return. 15. (j) Memorandum. opposition. the privilege of the writ shall be denied. . destruction. SEC. The return shall .The officer who executed the final judgment shall. . the court.

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

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

by this account. much less have been shown to be that of any military or policepersonnel. petitioner was. In the case at bench. liberty or security.whether that may be criminal. however. killing or threats.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 . b. First. 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 . 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. 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. by a n y measure. c o m m a n d e r s m a y b e impleaded—not actually on the basis of command responsibility—but ratheron the ground of their responsibility. 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 . civil or administrative under the applicablesubstantive law. D i r e c t e v i d e n c e o f i d e n t i t y . able to include in her Offer of Exhibits. According to Fr. 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. cannot be a proper legal basis to implead a partyrespondent in an amparo petition. 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 . in order to address specific violations or threats of violation of theconstitutional rights to life." in its simplest terms. Bluntly stated. it is more aptly invoked in afull-blown criminal or administrative case rather than in a summary amparoproceeding. I n w h i c h c a s e . that the inapplicability of thedoctrine of command responsibility in an amparo proceeding does not." In this sense. fix liability for such disappearance. Second. the cartographic sketches of several of her abductors whose faces she managed to see."command responsibility.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. extralegal killing or threats thereof had transpired— the writdoes not. the abductors were not proven to be part of eithert h e military or the police chain of command. 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. 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 . w h e n obtainable. 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. Bernas. 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 . by so doing.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. these cartographic sketches have the undeniable potential of givingthe greatest certainty as to the true identity and affiliation of petitioner’sa b d u c t o r s . To the mind of theCourt. 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. It must be clarified. In amparo proceedings.in fact. 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. or at least accountability.

e." which was never intended by the AmparoRule in providing for the interim relief of inspection order. 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. but also in view of thefact that she was a mere sojourner in the Philippines..The prayer of Roxas for the grant of the inspection order is equivalent tosanctioning a "fishing expedition. Section 1 of the Amparo Rule. 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 . as was shown above. Like theCourt of Appeals. the Supreme Court are not inclined to take the estimate and observations of the petitioner as accurate on its face—not only becausethey were made mostly while she was in blindfolds. an indispensable requirement before the privilege of the writ may be extended is the showing. T h i s . 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 .e . clearly excludes the protection of property rights. in order to aid the court before making adecision.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. so as tomake a prima facie case.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. unreliable and doubtful. it is. Aninspection order cannot issue on the basis of allegations that are. 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.whereshe was detained and by the sounds that she heard while thereat. keepingrecords of investigations and other reports about the petitioner’s ties with theC P P . at least by substantialevidence. which defines the scope and extent of the writ. The act ascribed by the Court of Appeals to the public respondents that wouldhave violated or threatened the right to privacy of the petitioner.N P A . 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 . This. 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 . petitioner failed to do. an inspection of the military camp cannot be ordered. But perhaps the morefundamental reason in denying the prayer of the petitioner. An inspectionorder is an interim relief designed to give support or strengthen the claim of a petitioner in an amparo petition.d. i n t h e c a s e a t b e n c h . A s a l r e a d y d i s c u s s e d a b o v e . 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 rights—which are no longer protected bythe writ of amparo. t h e p e t i t i o n e r failed to do. nevertheless. of an actual or threatened violation of the right to privacy in life. 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. Needless to state. i. 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. 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 minimum for the issuance of an inspection order that the supporting allegations of a party be sufficient in itself.c. While the Amparo Ruledoes not require that the place to be inspected be identified with clarity andprecision. petitioner’s claim that she was taken to Fort Magsaysay remains a mere speculation.With nothing else but obscure observations to support it. whose familiarity withFort Magsaysay and the travel time required to reach it is in itself doubtful. inthemselves.

i n t h e f i r s t place. documents or similar papers" relative to the petitioner’s "alleged ties with theCPP-NPA.unexplained and its existence. . In view of the above considerations. 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. the directive bythe Court of Appeals enjoining the public respondents from "distributing orcausing the distribution to the public any records in whatever form. it was not proven to have. reports." 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 . No evidenceon record even shows that any of the public respondents had access to suchvideo or photograph.

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