1- G.R. No.
137359             September 13, 2004 The Court of Appeals upheld the ruling of the RTC and added that under Section 412
EDWIN N. TRIBIANA, petitioner,
vs.
LOURDES M. TRIBIANA, respondent
DECISION
CARPIO, J.:
The Case
This petition for review on certiorari1 seeks to reverse the Court of Appeals’
Resolutions2 dated 2 July 1998 and 18 January 1999 in CA-G.R. SP No. 48049. The
Court of Appeals affirmed the Order3 of the Regional Trial Court, Branch 19, Bacoor,
Cavite ("RTC"), denying petitioner Edwin N. Tribiana’s ("Edwin") motion to dismiss the
petition for habeas corpus filed against him by respondent Lourdes Tribiana
("Lourdes").
Antecedent Facts
Edwin and Lourdes are husband and wife who have lived together since 1996 but
formalized their union only on 28 October 1997. On 30 April 1998, Lourdes filed a
petition for habeas corpus  before the RTC claiming that Edwin left their conjugal
home with their daughter, Khriza Mae Tribiana ("Khriza"). Edwin has since deprived
Lourdes of lawful custody of Khriza who was then only one (1) year and four (4)
months of age. Later, it turned out that Khriza was being held by Edwin’s mother,
Rosalina Tribiana ("Rosalina"). Edwin moved to dismiss Lourdes’ petition on the
ground that the petition failed to allege that earnest efforts at a compromise were
made before its filing as required by Article 151 of the Family Code.
On 20 May 1998, Lourdes filed her opposition to Edwin’s motion to dismiss claiming
that there were prior efforts at a compromise, which failed. Lourdes attached to her
opposition a copy of the Certification to File Action from their Barangay dated 1 May
1998.
On 18 May 1998, the RTC denied Edwin’s motion to dismiss and reiterated a
previous order requiring Edwin and his mother, Rosalina to bring Khriza before the
RTC. Upon denial of his motion for reconsideration, Edwin filed with the Court of
Appeals a petition for prohibition and certiorari under Rule 65 of the Rules of Civil
Procedure. The appellate court denied Edwin’s petition on 2 July 1998. The appellate
court also denied Edwin’s motion for reconsideration.
Hence, this petition.
The Rulings of the RTC and the Court of Appeals
The RTC denied Edwin’s motion to dismiss on the ground that the Certification to File
Action attached by Lourdes to her opposition clearly indicates that the parties
attempted to reach a compromise but failed.
1
(b) (2) of the Local Government Code, conciliation proceedings before the barangay
are not required in petitions for habeas corpus.
The Issue
Edwin seeks a reversal and raises the following issue for resolution:
WHETHER THE TRIAL AND APPELLATE COURTS SHOULD HAVE DISMISSED
THE PETITION FOR HABEAS CORPUS ON THE GROUND OF FAILURE TO
COMPLY WITH THE CONDITION PRECEDENT UNDER ARTICLE 151 OF THE
FAMILY CODE.
The Ruling of the Court
The petition lacks merit.
Edwin argues that Lourdes’ failure to indicate in her petition for habeas corpus that
the parties exerted prior efforts to reach a compromise and that such efforts failed is a
ground for the petition’s dismissal under Section 1(j), Rule 16 of the 1997 Rules of
Civil Procedure.4 Edwin maintains that under Article 151 of the Family Code, an
earnest effort to reach a compromise is an indispensable condition precedent. Article
151 provides:
No suit between members of the same family shall prosper unless it should appear
from the verified complaint or petition that earnest efforts toward a compromise have
been made, but that the same have failed. If it is shown that no such efforts were in
fact made, the case must be dismissed.
This rule shall not apply to cases which may not be the subject of compromise under
the Civil Code.
Edwin’s arguments do not persuade us.
It is true that the petition for habeas corpus filed by Lourdes failed to allege that she
resorted to compromise proceedings before filing the petition. However, in her
opposition to Edwin’s motion to dismiss, Lourdes attached a Barangay Certification to
File Action dated 1 May 1998. Edwin does not dispute the authenticity of the
Barangay Certification and its contents. This effectively established that the parties
tried to compromise but were unsuccessful in their efforts. However, Edwin would
have the petition dismissed despite the existence of the Barangay Certification, which
he does not even dispute.
Evidently, Lourdes has complied with the condition precedent under Article 151 of the
Family Code. A dismissal under Section 1(j) of Rule 16 is warranted only if there is
a failure to comply with a condition precedent. Given that the alleged defect is a
mere failure to allege compliance with a condition precedent, the proper solution is
not an outright dismissal of the action, but an amendment under Section 1 of Rule 10
of the 1997 Rules of Civil Procedure.5 It would have been a different matter if Edwin
had asserted that no efforts to arrive at a compromise have been made at all.
In addition, the failure of a party to comply with a condition precedent is not a
jurisdictional defect.6 Such defect does not place the controversy beyond the court’s
power to resolve. If a party fails to raise such defect in a motion to dismiss, such
defect is deemed waived.7 Such defect is curable by amendment as a matter of right
without leave of court, if made before the filing of a responsive pleading.8 A motion to
dismiss is not a responsive pleading.9 More importantly, an amendment alleging
compliance with a condition precedent is not a jurisdictional matter. Neither does it
alter the cause of action of a petition for habeas corpus. We have held that in cases
where the defect consists of the failure to state compliance with a condition
precedent, the trial court should order the amendment of the complaint.10 Courts
should be liberal in allowing amendments to pleadings to avoid multiplicity of suits
and to present the real controversies between the parties.11
Moreover, in a habeas corpus proceeding involving the welfare and custody of a child
of tender age, the paramount concern is to resolve immediately the issue of who has
legal custody of the child. Technicalities should not stand in the way of giving such
child of tender age full protection.12 This rule has sound statutory basis in Article 213
of the Family Code, which states, "No child under seven years of age shall be
separated from the mother unless the court finds compelling reasons to order
otherwise." In this case, the child (Khriza) was only one year and four months when
taken away from the mother.
The Court of Appeals dismissed Edwin’s contentions by citing as an additional ground
the exception in Section 412 (b) (2) of the Local Government Code ("LGC") on
barangay conciliation, which states:
(b) Where the parties may go directly to court. – the parties may go directly to court in
the following instances:
withheld from the person entitled thereto."13 Thus, the Court of Appeals did not err
when it dismissed Edwin’s contentions on the additional ground that Section 412
exempts petitions for habeas corpus from the barangay conciliation requirement.
The petition for certiorari filed by Edwin questioning the RTC’s denial of his motion to
dismiss merely states a blanket allegation of "grave abuse of discretion." An order
denying a motion to dismiss is interlocutory and is not a proper subject of a petition
for certiorari.14 Even in the face of an error of judgment on the part of a judge denying
the motion to dismiss, certiorari will not lie. Certiorari is not a remedy to correct errors
of procedure.15 The proper remedy against an order denying a motion to dismiss is to
file an answer and interpose as affirmative defenses the objections raised in the
motion to dismiss. It is only in the presence of extraordinary circumstances evincing a
patent disregard of justice and fair play where resort to a petition for certiorari is
proper.16
The litigation of substantive issues must not rest on a prolonged contest on
technicalities. This is precisely what has happened in this case. The circumstances
are devoid of any hint of the slightest abuse of discretion by the RTC or the Court of
Appeals. A party must not be allowed to delay litigation by the sheer expediency of
filing a petition for certiorari under Rule 65 based on scant allegations of grave abuse.
More importantly, any matter involving the custody of a child of tender age deserves
immediate resolution to protect the child’s welfare.
WHEREFORE, we DISMISS the instant petition for lack of merit. We AFFIRM the
Resolutions of the Court of Appeals dated 2 July 1998 and 18 January 1999 in CA-
G.R. SP No. 48049. The Regional Trial Court, Branch 19, Bacoor, Cavite is ordered
to act with dispatch in resolving the petition for habeas corpus pending before it. This
decision is IMMEDIATELY EXECUTORY.

xxx SO ORDERED.

2) Where a person has otherwise been deprived of personal liberty calling for habeas
corpus proceedings;

xxx.

Under Rule 102 of the 1997 Rules of Civil Procedure, a party may resort to a habeas
corpus proceeding in two instances. The first is when any person is deprived of liberty
either through illegal confinement or through detention. The second instance is when
custody of any person is withheld from the person entitled to such custody. The most
common case falling under the second instance involves children who are taken away
from a parent by another parent or by a relative. The case filed by Lourdes falls under
this category.

The barangay conciliation requirement in Section 412 of the LGC does not apply
to habeas corpus proceedings where a person is "deprived of personal liberty." In
such a case, Section 412 expressly authorizes the parties "to go directly to court"
without need of any conciliation proceedings. There is deprivation of personal liberty
warranting a petition for habeas corpus where the "rightful custody of any person is

2
 2- G.R. No. 169482             January 29, 2008
IN THE MATTER OF THE PETITION OF HABEAS CORPUS OF EUFEMIA E.
RODRIGUEZ, filed by EDGARDO E. VELUZ, petitioner,
vs.
LUISA R. VILLANUEVA and TERESITA R. PABELLO, respondents.
DECISION
CORONA, J.:
This is a petition for review1 of the resolutions2 dated February 2, 2005 and
September 2, 2005 of the Court of Appeals3 in CA-G.R. SP No. 88180 denying the
petition for habeas corpus of Eufemia E. Rodriguez, filed by petitioner Edgardo Veluz,
as well as his motion for reconsideration, respectively.
Eufemia E. Rodriguez was a 94-year old widow, allegedly suffering from a poor state
of mental health and deteriorating cognitive abilities.4 She was living with petitioner,
her nephew, since 2000. He acted as her guardian.
In the morning of January 11, 2005, respondents Luisa R. Villanueva and Teresita R.
Pabello took Eufemia from petitioner Veluz’ house. He made repeated demands for
the return of Eufemia but these proved futile. Claiming that respondents were
restraining Eufemia of her liberty, he filed a petition for habeas corpus5 in the Court of
Appeals on January 13, 2005.
The Court of Appeals ruled that petitioner failed to present any convincing proof that
respondents (the legally adopted children of Eufemia) were unlawfully restraining their
mother of her liberty. He also failed to establish his legal right to the custody of
Eufemia as he was not her legal guardian. Thus, in a resolution dated February 2,
2005,6 the Court of Appeals denied his petition.
Petitioner moved for reconsideration but it was also denied.7 Hence, this petition.
Petitioner claims that, in determining whether or not a writ of habeas corpus should
issue, a court should limit itself to determining whether or not a person is unlawfully
being deprived of liberty. There is no need to consider legal custody or custodial
rights. The writ of habeas corpus is available not only if the rightful custody of a
person is being withheld from the person entitled thereto but also if the person who
disappears or is illegally being detained is of legal age and is not under guardianship.
Thus, a writ of habeas corpus can cover persons who are not under the legal custody
of another. According to petitioner, as long as it is alleged that a person is being
illegally deprived of liberty, the writ of habeas corpus may issue so that his physical
body may be brought before the court that will determine whether or not there is in
fact an unlawful deprivation of liberty.
In their comment, respondents state that they are the legally adopted daughters of
Eufemia and her deceased spouse, Maximo Rodriguez. Prior to their adoption,
respondent Luisa was Eufemia’s half-sister8 while respondent Teresita was Eufemia’s
niece and petitioner’s sister.9
3
Respondents point out that it was petitioner and his family who were staying with
Eufemia, not the other way around as petitioner claimed. Eufemia paid for the rent of
the house, the utilities and other household needs.
Sometime in the 1980s, petitioner was appointed as the "encargado" or administrator
of the properties of Eufemia as well as those left by the deceased Maximo. As such,
he took charge of collecting payments from tenants and transacted business with
third persons for and in behalf of Eufemia and the respondents who were the only
compulsory heirs of the late Maximo.
In the latter part of 2002, Eufemia and the respondents demanded an inventory and
return of the properties entrusted to petitioner. These demands were unheeded.
Hence, Eufemia and the respondents were compelled to file a complaint for estafa
against petitioner in the Regional Trial Court of Quezon City. Consequently, and by
reason of their mother’s deteriorating health, respondents decided to take custody of
Eufemia on January 11, 2005. The latter willingly went with them. In view of all this,
petitioner failed to prove either his right to the custody of Eufemia or the illegality of
respondents’ action.
We rule for the respondents.
The writ of habeas corpus extends to all cases of illegal confinement or detention by
which any person is deprived of his liberty or by which the rightful custody of a person
is being withheld from the one entitled thereto.10 It is issued when one is either
deprived of liberty or is wrongfully being prevented from exercising legal custody over
another person.11 Thus, it contemplates two instances: (1) deprivation of a person’s
liberty either through illegal confinement or through detention and (2) withholding of
the custody of any person from someone entitled to such custody.
In this case, the issue is not whether the custody of Eufemia is being rightfully
withheld from petitioner but whether Eufemia is being restrained of her liberty.
Significantly, although petitioner admits that he did not have legal custody of Eufemia,
he nonetheless insists that respondents themselves have no right to her custody.
Thus, for him, the issue of legal custody is irrelevant. What is important is Eufemia’s
personal freedom.
Fundamentally, in order to justify the grant of the writ of habeas corpus, the restraint
of liberty must be in the nature of an illegal and involuntary deprivation of freedom of
action.12
In general, the purpose of the writ of habeas corpus is to determine whether or
not a particular person is legally held. A prime specification of an application for a
writ of habeas corpus, in fact, is an actual and effective, and not merely nominal or
moral, illegal restraint of liberty. "The writ of habeas corpus was devised and exists as
a speedy and effectual remedy to relieve persons from unlawful restraint, and as the
best and only sufficient defense of personal freedom. A prime specification of an
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."13 (emphasis supplied)

In passing upon a petition for habeas corpus, a court or judge must first inquire into
whether the petitioner is being restrained of his liberty.14 If he is not, the writ will be
refused. Inquiry into the cause of detention will proceed only where such restraint
exists.15 If the alleged cause is thereafter found to be unlawful, then the writ should be
granted and the petitioner discharged.16 Needless to state, if otherwise, again the writ
will be refused.

While habeas corpus is a writ of right, it will not issue as a matter of course or as a

mere perfunctory operation on the filing of the petition.17 Judicial discretion is called
for in its issuance and it must be clear to the judge to whom the petition is presented
that, prima facie, the petitioner is entitled to the writ.18 It is only if the court is satisfied
that a person is being unlawfully restrained of his liberty will the petition for habeas
corpus be granted.19 If the respondents are not detaining or restraining the applicant
or the person in whose behalf the petition is filed, the petition should be dismissed.20

In this case, the Court of Appeals made an inquiry into whether Eufemia was being
restrained of her liberty. It found that she was not:

There is no proof that Eufemia is being detained and restrained of her liberty by
respondents. Nothing on record reveals that she was forcibly taken by
respondents. On the contrary, respondents, being Eufemia’s adopted children, are
taking care of her.21 (emphasis supplied)

The Court finds no cogent or compelling reason to disturb this finding.22

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

4
 3- G.R. No. L-29169           August 19, 1968 Our first witness is Roger Chavez [one of the accused].

ROGER CHAVEZ, petitioner, ATTY. CARBON [Counsel for petitioner Chavez]:

vs.
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES I am quite taken by surprise, as counsel for the accused Roger Chavez, with this
and THE WARDEN OF THE CITY JAIL OF MANILA, respondents. move of the Fiscal in presenting him as his witness. I object.

Estanislao E. Fernandez and Fausto Arce for petitioner. COURT:

Office of the Solicitor General for respondents.
On what ground, counsel? .
SANCHEZ, J.:
ATTY. CARBON:
The thrust of petitioner's case presented in his original and supplementary petitions
On the ground that I have to confer with my client. It is really surprising that at this
invoking jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed
stage, without my being notified by the Fiscal, my client is being presented as witness
from imprisonment upon the ground that in the trial which resulted in his
for the prosecution. I want to say in passing that it is only at this very moment that I
conviction1 he was denied his constitutional right not to be compelled to testify against
come to know about this strategy of the prosecution.
himself. There is his prayer, too, that, should he fail in this, he be granted the
alternative remedies of certiorari to strike down the two resolutions of the Court of COURT (To the Fiscal):
Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the
said court to forward his appeal to this Court for the reason that he was raising purely You are not withdrawing the information against the accused Roger Chavez by
questions of law. making [him a] state witness?.

The indictment in the court below — the third amended information — upon which the FISCAL GRECIA:
judgment of conviction herein challenged was rendered, was for qualified theft of a
I am not making him as state witness, Your Honor.
motor vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with Plate No. H-
I am only presenting him as an ordinary witness.
16648 Pasay City '62 together with its accessories worth P22,200.00. Accused were
the following: Petitioner herein, Roger Chavez, Ricardo Sumilang alias "Romeo ATTY. CARBON:
Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis
Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter Doe, As a matter of right, because it will incriminate my client, I object.
Charlie Doe and Paul Doe.2
COURT:
Averred in the aforesaid information was that on or about the 14th day of November,
1962, in Quezon City, the accused conspired, with intent of gain, abuse of confidence The Court will give counsel for Roger Chavez fifteen minutes within which to confer
and without the consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the and explain to his client about the giving of his testimony.
motor vehicle above-described.
xxx     xxx     xxx
Upon arraignment, all the accused, except the three Does who have not been
COURT: [after the recess]
identified nor apprehended, pleaded not guilty.1äwphï1.ñët
Are the parties ready? .
On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court
of First Instance of Rizal in Quezon City. FISCAL:
The trial opened with the following dialogue, which for the great bearing it has on this We are ready to call on our first witness, Roger Chavez.
case, is here reproduced:.
ATTY. CARBON:
COURT:
As per understanding, the proceeding was suspended in order to enable me to confer
The parties may proceed. with my client.
FISCAL GRECIA:

5
I conferred with my client and he assured me that he will not testify for the
prosecution this morning after I have explained to him the consequences of what will
transpire.
COURT:
What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as witness on the
witness-stand including the accused.
If there should be any question that is incriminating then that is the time for counsel to
interpose his objection and the court will sustain him if and when the court feels that
the answer of this witness to the question would incriminate him.
Counsel has all the assurance that the court will not require the witness to answer
questions which would incriminate him.
But surely, counsel could not object to have the accused called on the witnessstand.
ATTY. CARBON:
I submit.
xxx     xxx     xxx
ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .
MAY IT PLEASE THE COURT:
This incident of the accused Roger Chavez being called to testify for the prosecution
is something so sudden that has come to the knowledge of this counsel.
This representation has been apprised of the witnesses embraced in the information.
For which reason I pray this court that I be given at least some days to meet whatever
testimony this witness will bring about. I therefore move for postponement of today's
hearing.
COURT:
The court will give counsel time within which to prepare his cross-examination of this
witness.
ATTY. CRUZ:
I labored under the impression that the witnesses for the prosecution in this criminal
case are those only listed in the information.
I did not know until this morning that one of the accused will testify as witness for the
prosecution.
COURT:
6
That's the reason why the court will go along with counsels for the accused and will
give them time within which to prepare for their cross-examination of this witness.
The court will not defer  the taking of the direct examination of the witness.
Call the witness to the witness stand.
EVIDENCE FOR THE PROSECUTION
ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at
the Manila Police Department headquarters, after being duly sworn according to law,
declared as follows:
ATTY. IBASCO [Counsel for defendant Luis Asistio]:
WITH THE LEAVE OF THE COURT:
This witness, Roger Chavez is one of the accused in this case No. Q-5311.
The information alleges conspiracy. Under Rule 123, Section 12, it states:
'The act or declaration of a conspirator relating to the conspiracy and during its
existence, may be given in evidence against the co-conspirator after the conspiracy is
shown by evidence other than such act or declaration.'
COURT:
That is premature, counsel. Neither the court nor counsels for the accused know what
the prosecution events to establish by calling this witness to the witness stand.
ATTY. IBASCO:
I submit.
COURT: The Fiscal may proceed.3
And so did the trial proceed. It began with the "direct examination" of Roger Chavez
by "Fiscal Grecia".
Came the judgment of February 1, 1965. The version of the prosecution as found by
the court below may be briefly narrated as follows:
A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese,
driving a Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in
mind, whom he knew was in the market for such a car, Chavez asked Lee whether
his car was for sale. Lee answered affirmatively and left his address with Chavez.
Then, on November 12, Chavez met Sumilang at a barbershop informed him about
the Thunderbird. But Sumilang said that he had changed his mind about buying a
new car. Instead, he told Chavez that he wanted to mortgage his Buick car for
P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez,
they went to see Luis Asistio, who he knew was lending money on car mortgages and
who, on one occasion, already lent Romeo Vasquez P3,000.00 on the same Buick
car. Asistio however told the two that he had a better idea on how to raise the money.
His plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star,
introduce him as a buyer to someone who was selling a car and, after the deed of
sale is signed, by trickery to run away with the car. Asistio would then register it, sell it
to a third person for a profit. Chavez known to be a car agent was included in the
plan. He furnished the name of Johnson Lee who was selling his
Thunderbird. 1äwphï1.ñët
In the morning of November 14, Chavez telephoned Johnson Lee and arranged for
an appointment. Sometime in the afternoon. Chavez and Sumilang met Lee in his
Thunderbird on Highway 54. Sumilang was introduced as the interested buyer.
Sumilang's driver inspected the car, took the wheel for a while. After Sumilang and
Lee agreed on the purchase price (P21.000.00), they went to Binondo to Johnson
Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they
went to see a lawyer notary public in Quezon City, known to Chavez for the drafting of
the deed of sale. After the deed of sale was drawn up, it was signed by Sumilang as
the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the
witnesses thereto.
As payment was to be made at Eugene's restaurant in Quezon City, all of them then
drove in the Thunderbird car to that place. The deed of sale and other papers
remained in the pockets of Johnson Lee.
At Eugene's, a man approached Sumilang with a note which stated that the money
was ready at the Dalisay Theater. Sumilang then wrote on the same note that the
money should be brought to the restaurant. At the same time he requested Lee to
exhibit the deed of sale of the car to the note bearer.4
Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left
the table to pose for pictures with some fans and come back, again left never to
return. So did Chavez, who disappeared after he left on the pretext of buying
cigarettes. The two Chinese could not locate Sumilang and Chavez. They went out to
the place where the Thunderbird was parked, found that it was gone. They then
immediately reported its loss to the police. Much later, the NBI recovered the already
repainted car and impounded it.
Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that
same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument
in Caloocan. There, Asistio handed to Sumilang P1,000.00 cash and a golf set worth
P800.00 as the latter's share in the transaction. On the 14th of November, the
registration of the car was transferred in the name of Sumilang in Cavite City, and
three days later, in the name of Asistio in Caloocan.
From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio,
may be condensed as follows:
In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station.
The latter informed him that there was a Thunderbird from Clark Field for sale for a
7
price between P20,000.00 and P22,000.00. Chavez said that it could be held for him
with a down payment of P10,000.00.
To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain
Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to
Sumilang. That check was exhibited in court. Sumilang and Chavez then went to
Pasay City to see a certain Mario Baltazar, an agent of the Pasay City Mayor, and
Narsing Cailles, Chief of the Fire Department. Sumilang asked the two for a P10,000-
loan backed up by the P5,000.00-check aforesaid on condition that it should not be
cashed immediately as there were not enough funds therefor. Baltazar and Cailles
agreed to give the money the nextday as long as the check would be left with them
and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed
Sumilang that Chavez picked up the money the next day. Four or five days
afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough
for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.
About the end of October or at the beginning of November, Chavez asked Sumilang
for another P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note
requesting that they accommodate him once more. He also sent a check, again
without funds. Baltazar gave the money after verifying the authenticity of the note.
On November 14, Chavez appeared at Sumilang's house with the news that the car
was ready if Sumilang was ready with the rest of the money. So Sumilang got
P9,000.00 from his mother and another P4,000.00 from his aparador. He immediately
gave P6,000.00 to Chavez, intending to pay out the balance upon the car's delivery. It
was then that Chavez told Sumilang that the car was already bought by a Chinese
who would be the vendor.
The purchase price finally agreed upon between Sumilang and Johnson Lee was
P21,000.00, plus P500.00 agents commission at the expense of the buyer. Sumilang
told Lee that he already paid part of the price to Chavez.
At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated.
There, Sumilang, also saw a friend, "Ging" Pascual. In the course of their
conversation at the bar, Sumilang mentioned the proposed transaction thru Chavez.
Pascual warned that Chavez was a "smart" agent and advised that Sumilang should
have a receipt for his money. A certain Bimbo, a friend of Pascual, offered to make
out a receipt for Chavez to sign.
After Sumilang returned from posing for some photographs with some of his fans,
Bimbo showed him the receipt already signed by Chavez. Sumilang requested
Pascual and Bimbo to sign the receipt as witnesses. And they did. This receipt was
offered as an exhibit by the prosecution and by Sumilang.
When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the
deed of sale, the registration papers and the keys to the car. After shaking hands with
Lee, Sumilang drove away in the car with his driver at the wheel.
Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a
film shooting at Bulacan. He saw Asistio with many companions. Asistio liked his
Thunderbird parked outside. Asistio offered to buy it from him for P22,500.00. As the
offer was good, and knowing Asistio's and his friends' reputation for always getting
what they wanted, Sumilang consented to the sale. Asistio tendered a down payment
of P1,000.00; the balance he promised to pay the next day after negotiating with
some financing company. Before said balance could be paid, the car was impounded.
The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and
Cailles' corroborations, that he paid good money for the car. Sumilang was thus
cleared. So was Asistio whom the trial court believed to be a mere buyer of the car.
And so, the prosecution's theory of conspiracy was discounted.
As to the other accused, the court found no case against Pedro Rebullo alias "Pita"
and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted
for in the first place he was not identified by Johnson Lee in court.
As to Roger Chavez, however, the court had this to say: "Roger Chavez does not
offer any defense. As a matter of fact, his testimony as witness for the prosecution
establishes his guilt beyond reasonable doubt."5 The trial court branded him "a self-
confessed culprit".6 The court further continued:
It is not improbable that true to the saying that misery loves company Roger Chavez
tried to drag his co-accused down with him by coloring his story with
fabrications which he expected would easily stick together what with the newspaper
notoriety of one and the sensationalism caused by the other. But Roger
Chavez' accusations of Asistio's participation is utterly uncorroborated. And coming,
as it does, from a man who has had at least two convictions for acts not very different
from those charged in this information, the Court would be too gullible if it were to
give full credence to his words even if they concerned a man no less notorious than
himself.7
The trial court then came to the conclusion that if Johnson Lee was not paid for his
car, he had no one but Roger Chavez to blame.
The sum of all these is that the trial court freed all the accused except Roger Chavez
who was found guilty beyond reasonable doubt of the crime of qualified theft. He was
accordingly sentenced to suffer an indeterminate penalty of not less than ten (10)
years, one (1) day, as minimum and not more than fourteen (14) years, eight (8)
months and one (1) day as maximum, to indemnify Dy Sun Hiok and/or Johnson Lee
in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to
undergo the accessory penalties prescribed by law, and to pay the costs. The
Thunderbird car then in the custody of the NBI was ordered to be turned over to
Ricardo Sumilang, who was directed to return to Asistio the sum of P1,000.00 unless
the latter chose to pay P21,500.00, representing the balance of the contract price for
the car.
The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed
to the Court of Appeals.
8
On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for
Roger Chavez, to show cause within ten days from notice why Chavez' appeal should
not be considered abandoned and dismissed. Reason for this is that said lawyer
received notice to file brief on December 28, 1967 and the period for the filing thereof
lapsed on January 27, 1968 without any brief having been filed.
On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also
stated that if she were allowed to file appellant's brief she would go along with the
factual findings of the court below but will show however that its conclusion is
erroneous.8
On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved
to dismiss the appeal. A move to reconsider was unavailing. For, on June 21, 1968,
the Court of Appeals, through a per curiam resolution, disposed to maintain its May
14 resolution dismissing the appeal, directed the City Warden of Manila where
Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals,
to turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment
below, and ordered remand of the case to the Quezon City court for execution of
judgment.
It was at this stage that the present proceedings were commenced in this Court.
Upon the petitions, the return, and the reply, and after hearing on oral arguments, we
now come to grips with the main problem presented.
We concentrate attention on that phase of the issues which relates petitioner's
assertion that he was compelled to testify against himself. For indeed if this one
question is resolved in the affirmative, we need not reach the others; in which case,
these should not be pursued here.
1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his
right — constitutionally entrenched — against self-incrimination. He asks that the
hand of this Court be made to bear down upon his conviction; that he be relieved of
the effects thereof. He asks us to consider the constitutional injunction that "No
person shall be compelled to be a witness against himself,"9 fully echoed in Section 1,
Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be
entitled: "(e) To be exempt from being a witness against himself." .
It has been said that forcing a man to be a witness against himself is at war with "the
fundamentals of a republican government"; 10 that [i]t may suit the purposes of
despotic power but it can not abide the pure atmosphere of political liberty and
personal freedom."11 Mr. Justice Abad Santos recounts the historical background of
this constitutional inhibition, thus: " "The maxim Nemo tenetur seipsum accusare had
its origin in a protest against the inquisitorial and manifestly unjust methods of
interrogating accused persons, which has long obtained in the continental system,
and, until the expulsion of the Stuarts from the British throne in 1688, and the erection
of additional barriers for the protection of the people against the exercise of arbitrary
power, was not uncommon even in England. While the admissions of confessions of
the prisoner, when voluntarily and freely made, have always ranked high in the scale
of incriminating evidence, if an accused person be asked to explain his apparent
connection with a crime under investigation, the ease with which the questions put to
him may assume an inquisitorial character, the temptation to press, the witness
unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to
entrap him into fatal contradictions, which is so painfully evident in many of the earlier
state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan
minister, made the system so odious as to give rise to a demand for its total abolition.
The change in the English criminal procedure in that particular seems to be founded
upon no statute and no judicial opinion, but upon a general and silent acquiescence
of the courts in a popular demand. But, however adopted, it has become firmly
embedded in English, as well as in American jurisprudence. So deeply did the
iniquities of the ancient system impress themselves upon the minds of the American
colonists that the states, with one accord, made a denial of the right to question an
accused person a part of their fundamental law, so that a maxim which in England
was a mere rule of evidence, became clothed in this country with the impregnability of
a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819,
821)." 12 Mr. Justice Malcolm, in expressive language, tells us that this maxim was
recognized in England in the early days "in a revolt against the thumbscrew and the
rack." 13 An old Philippine case [1904] 14 speaks of this constitutional injunction as
"older than the Government of the United States"; as having "its origin in a protest
against the inquisitorial methods of interrogating the accused person"; and as having
been adopted in the Philippines "to wipe out such practices as formerly prevailed in
these Islands of requiring accused persons to submit to judicial examinations, and to
give testimony regarding the offenses with which they were charged."
So it is then that this right is "not merely a formal technical rule the enforcement of
which is left to the discretion of the court"; it is mandatory; it secures to a defendant a
valuable and substantive right; 15 it is fundamental to our scheme of justice. Just a few
months ago, the Supreme Court of the United States (January 29, 1968), speaking
thru Mr. Justice Harlan warned that "[t]he constitutional privilege was intended to
shield the guilty and imprudent as well as the innocent and foresighted." 16
It is in this context that we say that the constitutional guarantee may not be treated
with unconcern. To repeat, it is mandatory; it secures to every defendant a valuable
and substantive right. Tañada and Fernando (Constitution of the Philippines, 4th ed.,
vol. I, pp. 583-584) take note of U.S. vs. Navarro, supra,  which reaffirms the rule that
the constitutional proscription was established on broad grounds of public policy and
humanity; of policy because it would place the witness against the strongest
temptation to commit perjury, and of humanity because it would be to extort a
confession of truth by a kind of duress every species and degree of which the law
abhors. 17
Therefore, the court may not extract from a defendant's own lips and against his will
an admission of his guilt. Nor may a court as much as resort to compulsory
disclosure, directly or indirectly, of facts usable against him as a confession of the
crime or the tendency of which is to prove the commission of a crime. Because, it is
his right to forego testimony, to remain silent, unless he chooses to take the witness
stand — with undiluted, unfettered exercise of his own free, genuine will.
9
Compulsion as it is understood here does not necessarily connote the use of
violence; it may be the product of unintentional statements. Pressure which operates
to overbear his will, disable him from making a free and rational choice, or impair his
capacity for rational judgment would in our opinion be sufficient. So is moral coercion
"tending to force testimony from the unwilling lips of the defendant." 18
2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a
defendant in a criminal case. He was called by the prosecution as the first witness in
that case to testify for the People during the first day of trial thereof. Petitioner
objected and invoked the privilege of self-incrimination. This he broadened by the
clear cut statement that he will not testify. But petitioner's protestations were met with
the judge's emphatic statement that it "is the right of the prosecution to ask anybody
to act as witness on the witness stand including the accused," and that defense
counsel "could not object to have the accused called on the witness stand." The
cumulative impact of all these is that accused-petitioner had to take the stand. He
was thus peremptorily asked to create evidence against himself. The foregoing
situation molds a solid case for petitioner, backed by the Constitution, the law, and
jurisprudence.
Petitioner, as accused, occupies a different tier of protection from an ordinary witness.
Whereas an ordinary witness may be compelled to take the witness stand and claim
the privilege as each question requiring an incriminating answer is shot at him, 19 and
accused may altogether refuse to take the witness stand and refuse to answer any
and all questions. 20 For, in reality, the purpose of calling an accused as a witness for
the People would be to incriminate him. 21 The rule positively intends to avoid and
prohibit the certainly inhuman procedure of compelling a person "to furnish the
missing evidence necessary for his conviction." 22 This rule may apply even to a co-
defendant in a joint trial.23
And the guide in the interpretation of the constitutional precept that the accused shall
not be compelled to furnish evidence against himself "is not the probability of the
evidence but it is the  capability of abuse." 24 Thus it is, that it was undoubtedly
erroneous for the trial judge to placate petitioner with these words:.
What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as witness on the
witness-stand including the accused.
If there should be any question that is incriminating then that is the time for counsel to
interpose his objection and the court will sustain him if and when the court feels that
the answer of this witness to the question would incriminate him.
Counsel has all the assurance that the court will not require the witness to answer
questions which would incriminate him.
But surely, counsel could not object to have the accused called on the witness stand.
Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208,
244, quoted in VIII Wigmore, p. 355, 25 While a defendant's knowledge of the facts
remains concealed within his bosom, he is safe; but draw it from thence, and he is
exposed" — to conviction.
The judge's words heretofore quoted — "But surely counsel could not object to have
the accused called on the witness stand" — wielded authority. By those words,
petitioner was enveloped by a coercive force; they deprived him of his will to resist;
they foreclosed choice; the realities of human nature tell us that as he took his oath to
tell the truth, the whole truth and nothing but the truth, no genuine consent underlay
submission to take the witness stand. Constitutionally sound consent was absent.
3. Prejudice to the accused for having been compelled over his objections to be a
witness for the People is at once apparent. The record discloses that by leading
questions Chavez, the accused, was made to affirm his statement given to the NBI
agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement
detailed the plan and execution thereof by Sumilang (Vasquez), Asistio and himself to
deprive the Chinese of his Thunderbird car. And he himself proceeded to narrate the
same anew in open court. He identified the Thunderbird car involved in the case. 27
The decision convicting Roger Chavez was clearly of the view that the case for the
People was built primarily around the admissions of Chavez himself. The trial court
described Chavez as the "star witness for the prosecution". Indeed, the damaging
facts forged in the decision were drawn directly from the lips of Chavez as a
prosecution witness and of course Ricardo Sumilang for the defense. There are the
unequivocal statements in the decision that "even accused Chavez" identified "the
very same Thunderbird that Johnson Lee had offered for sale"; that Chavez
"testimony as witness for the prosecution establishes his guilt beyond reasonable
doubt and that Chavez is "a self-confessed culprit". 1äwphï1.ñët
4. With all these, we have no hesitancy in saying that petitioner was forced to testify
to incriminate himself, in full breach of his constitutional right to remain silent. It
cannot be said now that he has waived his right. He did not volunteer to take the
stand and in his own defense; he did not offer himself as a witness; on the contrary,
he claimed the right upon being called to testify. If petitioner nevertheless answered
the questions inspite of his fear of being accused of perjury or being put under
contempt, this circumstance cannot be counted against him. His testimony is not of
his own choice. To him it was a case of compelled submission. He was a cowed
participant in proceedings before a judge who possessed the power to put him under
contempt had he chosen to remain silent. Nor could he escape testifying. The court
made it abundantly clear that his testimony at least on direct examination would be
taken right then and thereon the first day of the trial.
It matters not that, after all efforts to stave off petitioner's taking the stand became
fruitless, no objections to questions propounded to him were made. Here involve is
not a mere question of self-incrimination. It is a defendant's constitutional immunity
from being called to testify against himself. And the objection made at the beginning
is a continuing one. 1äwphï1.ñët
There is therefore no waiver of the privilege. "To be effective, a waiver must be
certain and unequivocal, and intelligently, understandably, and willingly made; such
10
waiver following only where  liberty of choice has been fully accorded. After a claim a
witness cannot properly be held to have waived his privilege on vague and uncertain
evidence." 28 The teaching in Johnson vs. Zerbst  29 is this: "It has been pointed out
that "courts indulge every reasonable presumption against waiver" of fundamental
constitutional rights and that we "do not presume acquiescence in the loss of
fundamental rights." A waiver is ordinarily an intentional relinquishment or
abandonment of a known right or privilege." Renuntiatio non praesumitur.
The foregoing guidelines, juxtaposed with the circumstances of the case heretofore
adverted to, make waiver a shaky defense. It cannot stand. If, by his own admission,
defendant proved his guilt, still, his original claim remains valid. For the privilege, we
say again, is a rampart that gives protection - even to the guilty.  30
5. The course which petitioner takes is correct. Habeas corpus is a high prerogative
writ. 31 It is traditionally considered as an exceptional remedy to release a person
whose liberty is illegally restrained such as when the accused's constitutional rights
are disregarded. 32 Such defect results in the absence or loss of jurisdiction 33 and
therefore invalidates the trial and the consequent conviction of the accused whose
fundamental right was violated. 34 That void judgment of conviction may be
challenged by collateral attack, which precisely is the function of habeas
corpus. 35 This writ may issue even if another remedy which is less effective may be
availed of by the defendant. 36 Thus, failure by the accused to perfect his appeal
before the Court of Appeals does not preclude a recourse to the writ. 37 The writ may
be granted upon a judgment already final. 38 For, as explained in Johnson vs.
Zerbst, 39 the writ of habeas corpus as an extraordinary remedy must be liberally
given effect 40 so as to protect well a person whose liberty is at stake. The propriety of
the writ was given the nod in that case, involving a violation of another constitutional
right, in this wise:
Since the Sixth Amendment constitutionally entitles one charged with crime to the
assistance of Counsel, compliance with this constitutional mandate is an essential
jurisdictional prerequisite to a Federal Court's authority. When this right is properly
waived, the assistance of Counsel is no longer a necessary element of the Court's
jurisdiction to proceed to conviction and sentence. If the accused, however, is not
represented by Counsel and has not competently and intelligently waived his
constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid
conviction and sentence depriving him of his liberty. A court's jurisdiction at the
beginning of trial may be lost "in the course of the proceedings" due to failure to
complete the court — as the Sixth Amendment requires — by providing Counsel for
an accused who is unable to obtain Counsel, who has not intelligently waived this
constitutional guaranty, and whose life or liberty is at stake. If this requirement of the
Sixth Amendment is not complied with, the court no longer has jurisdiction to
proceed. The judgment of conviction pronounced by a court without jurisdiction is
void, and one imprisoned thereunder may obtain release of habeas corpus. 41
Under our own Rules of Court, to grant the remedy to the accused Roger Chavez
whose case presents a clear picture of disregard of a constitutional right is absolutely
proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided
by law, "to all cases of illegal confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody of any person is withheld from
the person entitled thereto.
Just as we are about to write finis to our task, we are prompted to restate that: "A void
judgment is in legal effect no judgment. By it no rights are divested. From it no rights
can be obtained. Being worthless in itself, all proceedings founded upon it are equally
worthless. It neither binds nor bars any one. All acts performed under it and all claims
flowing out of it are void. The parties attempting to enforce it may be responsible as
trespassers. ... " 42
6. Respondents' return 43 shows that petitioner is still serving under a final and valid
judgment of conviction for another offense. We should guard against the improvident
issuance of an order discharging a petitioner from confinement. The position we take
here is that petitioner herein is entitled to liberty thru habeas corpus only with respect
to Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch,
under which he was prosecuted and convicted.
Upon the view we take of this case, judgment is hereby rendered directing the
respondent Warden of the City Jail of Manila or the Director of Prisons or any other
officer or person in custody of petitioner Roger Chavez by reason of the judgment of
the Court of First Instance of Rizal, Quezon City Branch, in Criminal Case Q-5311,
entitled "People of the Philippines, plaintiff, vs. Ricardo Sumilang, et al., accused," to
discharge said Roger Chavez from custody, unless he is held, kept in custody or
detained for any cause or reason other than the said judgment in said Criminal Case
Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the
discharge herein directed shall be effected when such other cause or reason ceases
to exist.
No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and Fernando,
JJ., concur. Castro, J., concurs in a separate opinion.
Separate Opinions
CASTRO, J.,  dissenting :
In 1901, early in the history of constitutional government in this country, this Court
reversed the conviction of an accused who, having pleaded "not guilty," was required
by the judge to testify and answer the complaint. The case was that of United States
v. Junio, reported in the first volume of the Philippine Reports, on page 50 thereof.
Resolution of the case did not require an extended opinion (it consumed no more
than a page in the Reports). For indeed the facts fitted exactly into the prohibition
contained in The President's Instruction to the (Second) Philippine Commission1 "that
no person shall ... be compelled in any criminal case to be a witness against himself.".
11
There was no need either for a dissertation on the Rights of Man, though occasion for
this was not lacking as the predominant American members of the Court were under
a special commission to prepare the Filipinos for self-government. The privilege
against self-incrimination was fully understood by the Filipinos, whose own history
provided the necessary backdrop for this privilege. 2
The Supreme Court simply said, "The judge had no right to compel the accused to
make any statement whatever," and declared the proceedings void.
Nor was there a similar judicial error likely to be committed in the years to come, what
with the constant reminder of a Bill of Rights enshrined in successive organic acts
intended for the Philippines.3 This is not to say that the Philippine history of the
privilege ended with the Junio case. To be sure, violations of the privilege took other,
and perhaps subtle, forms4 but not the form directly prohibited by the privilege. Even
in the recent case of Cabal v. Kapunan5 it was assumed as a familiar learning that the
accused in a criminal case cannot be required to give testimony and that if his
testimony is needed at all against his co-accused, he must first be discharged.6 If
Cabal, the respondent in an administrative case, was required by an investigating
committee to testify, it was because it was thought that proceedings for forfeiture of
illegally acquired property under Republic Act 13797 were civil and not criminal in
nature. Thus Mr. Justice (now Chief Justice) Concepcion could confidently say:
At the outset, it is not disputed that the accused in a criminal case may refuse not
only to answer incriminatory questions but also to take the witness stand. (3
Whartons Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence, the issue
before us boils down to whether or not the proceedings before the aforementioned
Committee is civil or criminal in character.
Today, perhaps because of long separation from our past, we need what Holmes
called "education in the obvious, more than investigation of the obscure."8 The past
may have receded so far into the distance that our perspectives may have been
altered and our vision blurred.
When the court in the case at bar required the petitioner to testify, it in effect undid the
libertarian gains made over half a century and overturned the settled law. The past
was recreated with all its vividness and all its horrors: John Lilburne in England in
1637, refusing to testify before the Council of the Star Chamber and subsequently
condemned by it to be whipped and pilloried for his "boldness in refusing to take a
legal oath;"9 the Filipino priests Gomez, Burgos and Zamora in 1872 condemned by
the Inquisition to die by their own testimony. 10
It is for this reason that I deem this occasion important for the expression of my views
on the larger question of constitutional dimension.
No doubt the constitutional provision that "No person shall be compelled to be a
witness against himself" 11 may, on occasion, save a guilty man from his just deserts,
but it is aimed against a more far reaching evil — recurrence of the Inquisition and the
Star Chamber, even if not in their stark brutality. Prevention of the greater evil was
deemed of more importance than occurrence of the lesser evil. 12 As Dean Griswold
put the matter with eloquence:.
[T]he privilege against self-incrimination is one of the great landmarks in man's
struggle to make himself civilized ... [W]e do not make even the most hardened
criminal sign his own death warrant, or dig his own grave, or pull the lever that springs
the trap on which he stands. We have through the course of history developed
considerable feeling of the dignity and intrinsic importance of the individual man. Even
the evil man is a human being. 13
The Government must thus establish guilt by evidence independently and freely
secured; it can not by coercion prove a charge against an accused out of his own
mouth. 14
This is not what was done here. What was done here was to force the petitioner to
take the witness stand and state his part in the crime charged as "star witness for the
prosecution," to use the very words of the decision, and, by means of his testimony,
prove his guilt. Thus, the trial court said in its decision:
Roger Chavez does not offer any defense. As a matter of fact, his testimony as a
witness for the prosecution establishes his guilt beyond reasonable doubt.
The petitioner has been variously described by the trial court as "a car agent ... well
versed in this kind of chicanery" "a self-confessed culprit," and "a man with at least
two convictions for acts not very different from those charged in [the] information." But
if he has thus been described it was on the basis of evidence wrung from his lips. If
he was ultimately found guilty of the charge against him it was because of evidence
which he was forced to give. In truth he was made the "star witness for the
prosecution" against himself.
But neither torture nor an oath nor the threat of punishment such as imprisonment for
contempt can be used to compel him to provide the evidence to convict himself. No
matter how evil he is, he is still a human being.
The fact that the judgment of conviction became final with the dismissal of the appeal
to the Court of Appeals for failure of the petitioner's former counsel to file a brief,15 is
of no moment. That judgment is void, and it is precisely the abiding concern of the
writ of habeas corpus to provide redress for unconstitutional and wrongful
convictions. Vindication of due process, it has been well said, is precisely the historic
office of the Great Writ. 16
In many respects, this case is similar to that of Fay v. Noia. 17 Noia was convicted of
murder in 1942 with Santo Caminito and Frank Bonino in the County Court of Kings
County, New York, in the killing of one Hemmeroff during the commission of a
robbery. The sole evidence against each defendant was his signed confession.
Caminito and Bonino, but not Noia appealed their convictions to the Appellate
Division of the New York Supreme Court. These appeals were unsuccessful but
subsequent legal proceedings resulted in the releases of Caminito and Bonino upon
findings that their confessions had been coerced and their conviction therefore
12
procured in violation of the Fourteenth Amendment. Although Noia's confession was
found to have been coerced, the United States District Court for the Southern District
of New York held that, because of Noia's failure to appeal, he must be denied reliefin
view of the provision of 28 U.S.C. sec. 2254 that "An application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a State court shall
not be granted unless it appears that the applicant has exhausted the remedies
available in the courts of the State. ..." The Court of Appeals for the Second Circuit
reversed the judgment of the District Court and ordered Noia's conviction set aside,
with direction to discharge him from custody unless given a new trial forthwith. From
that judgment the State appealed.
As the Supreme Court of the United States phrased the issue, the "narrow question is
whether the respondent Noia may be granted federal habeas corpus relief from
imprisonment under a New York conviction now admitted by the State to rest upon a
confession obtained from him in violation of the Fourteenth Amendment, after he was
denied state post-conviction relief because the coerced confession claim had been
decided against him at the trial and Noia had allowed the time for a direct appeal to
lapse without seeking review by a state appellate court."
In affirming the judgment of the Court of Appeals, the United States Supreme Court,
through Mr. Justice Brennan, spoke in enduring language that may well apply to the
case of Roger Chavez. Said the Court: 1äwphï1.ñët
Today as always few indeed is the number of State prisoners who eventually win their
freedom by means of federal habeas corpus. These few who are ultimately
successful are persons whom society has grievously wronged and for whom belated
liberation is little enough compensation. Surely no fair minded person will contend
that those who have been deprived of their liberty without due process of law ought
nevertheless to languish in prison. Noia, no less than his co-defendants Caminito and
Bonino, is conceded to have been the victim of unconstitutional state action. Noia's
case stands on its own; but surely no just and humane legal system can tolerate a
result whereby a Caminito and a Bonino are at liberty because their confessions were
found to have been coerced yet Noia, whose confession was also coerced, remains
in jail for life. For such anomalies, such affronts to the conscience of a civilized
society, habeas corpus is predestined by its historical role in the struggle for personal
liberty to be the ultimate remedy. If the States withhold effective remedy, the federal
courts have the power and the duty to provide it. Habeas Corpus is one of the
precious heritages of Anglo-American civilization. We do no more today than confirm
its continuing efficacy.
A fitting conclusion of this separate opinion may perhaps be found in two memorable
admonitions from Marjorie G. Fribourg and Justice William O. Douglas.
Mrs. Fribourg, in her inimitable phrase, warns us that —
... Time has taught its age-old lesson. Well-meaning people burnt witches. Well-
meaning prosecutors have convicted the innocent. Well-meaning objectives
espoused by those not grounded in history can lure us from protecting our heritage of
equal justice under the law. They can entice us, faster than we like to believe, into
endangering our liberties.18

And these are the unforgettable words of Justice Douglas:

The challenge to our liberties comes frequently not from those who consciously seek
to destroy our system of government, but from men of goodwill - good men who allow
their proper concerns to blind them to the fact that what they propose to accomplish
involves an impairment of liberty.

xxx     xxx     xxx

The motives of these men are often commendable. What we must remember,
however, is that preservation of liberties does not depend on motives. A suppression
of liberty has the same effect whether the suppressor be a reformer or an outlaw. The
only protection against misguided zeal is constant alertness to infractions of the
guarantees of liberty contained in our Constitution. Each surrender of liberty to the
demands of the moment makes easier another, larger surrender. The battle over the
Bill of Rights is a never ending one. 1äwphï1.ñët

xxx     xxx     xxx

The liberties of any person are the liberties of all of us.

xxx     xxx     xxx

In short, the liberties of none are safe unless the liberties of all are protected.

But even if we should sense no danger to our own liberties, even if we feel secure
because we belong to a group that is important and respected, we must recognize
that our Bill of Rights is a code of fair play for the less fortunate that we in all honor
and good conscience must observe.19

13
 4- G.R. No. 174994               August 31, 2007
In the Matter of the Petition for a Writ of Habeas Corpus of the person of ARMY
MAJOR JASON LAUREANO AQUINO, PA
MARIA FE S. AQUINO, Petitioner,
vs.
LT. GEN. HERMOGENES C. ESPERON, AFP,* in his capacity as Commanding
General, Philippine Army, and the Custodial Officer or Commander, Army
Detention Center, G2-21D, Camp Capinpin, Tanay, Rizal,** Respondents.
DECISION
CHICO-NAZARIO, J.:
At bar is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, seeking to nullify the Decision1 dated 31 August 2006, of the Court of
Appeals in CA-G.R. SP. No. 95341, which denied petitioner Maria Fe S. Aquino’s
Petition for the Issuance of a Writ of Habeas Corpus for the person of her husband,
Army Major Jason Laureano Aquino (Major Aquino) of the First Scout Ranger
Regiment, Special Operation Command of the Philippine Army, and the
Resolution2 dated 5 October 2006, of the same court which denied reconsideration of
its earlier Decision.
The facts leading to the arrest of Major Aquino, as set forth in the Solicitor General’s
brief,3 show that on 3 February 2006, Major Aquino, along with several military men,
namely, Major Leomar Jose M. Doctolero, Captain Joey T. Fontiveros, Captain
Montano B. Aldomovar,4 Captain Isagani Criste, and Captain James Sababa,
allegedly met at the resthouse of Captain Aldomovar near Camp Tecson, San Miguel,
Bulacan to plot a breach of the Camp Defense Plan of Camp General Emilio
Aguinaldo and to take over Camp Aquinaldo, as well as the Headquarters of the
Philippine Army. On 26 February 2006, in the wake of the 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, Major Aquino was
ordered arrested and confined at the Intelligence Service Group of the Philippine
Army in Fort Bonifacio, Taguig, upon the order of Lt. Gen. Hermogenes C. Esperon,
(Lt. Gen. Esperon) who was then the Commanding General of the Philippine Army.
On the same day, Lt. Gen. Esperon ordered the Army Inspector General to conduct
an investigation to determine: 1) the circumstances attending Major Aquino’s alleged
withdrawal of support; 2) the veracity of reports anent the alleged troop movement5 of
some Philippine Military personnel from their respective stations to Manila to join the
protest march at Epifanio Delos Santos Avenue on 24 February 2006 with Brigadier
General Danilo Lim (Brig. Gen. Lim); and 3) the participation, responsibility and
culpability of all Philippine Military personnel involved, if any. For this purpose, a
panel of investigators6 was formed. During the investigation, Major Aquino denied the
accusations hurled against him. He intimated, inter alia, that he had no plan nor did
he make any pronouncement of withdrawing support from the chain of command, and
that he pledged to continue to support the same and the duly constituted authorities.7
14
On 4 March 2006, the panel of investigators submitted its Investigation Report to the
Commanding General of the Philippine Army. In its report, the panel of investigators
found that the troop movement8 by some military personnel from their respective
stations to Manila was illegal, implicating Major Aquino therein, thus:
14.2 Based on the account of MAJ AQUINO, it may be reasonably observed that said
Officer and BGEN LIM were closely coordinating the progress of the latter’s talks with
CSAFP [Chief of Staff of the Armed Forces of the Philippines] on the night of 23
February 2006. Moreover, there are other circumstances which seem to indicate that
the leadership of FSRR [First Scout Ranger Regiment] was preparing some of its
personnel to move should the talks succeed, i.e. movement of the 7SRC & 9SRC
personnel to Manila. Notedly, the following attendant circumstances put to doubt the
real intention of FSRR in ordering the aforementioned troop movement, to wit:
i) There is no indication that CO, 3SRB sought clearance or informed CO, 901st Bde
or CG, 91 D of said troop movement;
ii) There was no order or call from HPA or SOCOM for the immediate fill up or
augmentation of the 10th SRC at Fort Bonifacio;
iii) There is no showing that the troop movement was coordinated, approved and/or
cleared with the AOC, the AFPCC or SOLCOM, AFP;
iv) When CO, 901st Bde called CO, 3SRB to inquire about any troop movement, the
latter answered in the negative and immediately ordered his men to go back to
command post
v) When the twenty six (26) 7SRC personnel were apprehended, they were in civilian
attire but brought with them their bandoleer with magazines and ammunitions which
were placed inside their backpack.9
The panel of investigators recommended that: 1) all implicated officers therein
mentioned be immediately relieved from their respective posts; and 2) appropriate
charges be filed before the General Court Martial against Major Aquino, among other
military officers/personnel, for violations of Article 6710 (Attempting to Begin or Create
Mutiny); and Article 9711 (Disorders and Neglects Prejudicial to Good Order and
Military Discipline) of the Articles of War, to wit:
15.3.1 In addition to the relief of BGEN DANILO D LIM 0-7665 AFP which in itself is
already a disciplinary action, recommend that subj Officer and MAJ JASON
LAUREANO Y AQUINO O-10503 (INF) PA be charged before the PAGCM for
violation of AW 67 (CAUSING OR EXCITING A MUTINY) and AW 97 (DISORDERS
AND NEGLECTS PREJUDICIAL TO GOOD ORDER AND MILITARY
DISCLIPLINE.)12
Further, the panel’s Investigation Report was referred by Lt. Gen. Esperon to the
Judge Advocate General’s Office (JAGO) of the Philippine Army for review. On 17
March 2006, the JAGO found the existence of probable cause against Major Aquino,
among other military officers, for violations of Article 9613 (Conduct Unbecoming an
Officer and a Gentleman), Article 97 (Disorders and Neglects Prejudicial to Good
Order and Military Discipline), and Article 67 (Attempting to Begin or Create Mutiny) of
the Articles of War.
The JAGO’s recommendation reads:
6.3. For publishing, distributing and discussing the pamphlet entitled "The New Order
– The Solution to the Filipino Political Problem," which publication is not sanctioned
as an official publication of the Armed Forces of the Philippines or the Philippine
Army, and which material tends to urge or incite other military officers and enlisted
men to collectively or concertedly defy standing and lawful orders of the Commanding
General, Philippine Army as well as the Chief of Staff, Armed Forces of the
Philippines, MAJ AQUINO should likewise be charged of (sic) violating AW 96
(CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN) and AW 97
(Disorders and Neglects Prejudicial to Good Order and Military Discipline) under a
separate specification.
6.4. In the (sic) light of the new averments revealed in the Supplemental Affidavit of
1Lt REYES, there is now basis for charging MAJ AQUINO, MAJ DOCTOLERO, CPT
FONTIVEROS, CPT ALDOMOVAR, CPT CRISTE, CPT SABABAN for violation of
AW 67 (ATTEMPT TO CREATE A MUTINY). Per said Supplemental Affidavit, it was
revealed that subj Officers met at the resthouse of CPT ALDOMOVAR near the so-
called tower area in Camp Tecson, San Miguel, Bulacan, on the evening of 03 Feb
2006, discuss and plot their plan to breach the Camp Defense Plan of Camp General
Emilio Aguinaldo and hatch a plan to take over Camp Aguinaldo and [the]
Headquarters [of the] Philippine Army. x x x.14
On the basis of JAGO’s recommendations, Col. Jose R. Recuenco (Col. Recuenco),
then Army Provost Marshal, signed under oath a charge sheet15 against Major
Aquino, charging the latter with violations of Article 67 (Attempting to Begin or Create
Mutiny)16 and Article 9617 (Conduct Unbecoming an Officer and Gentleman) of the
Articles of War, which was indorsed to the Chief of Staff of the Armed Forces of the
Philippines (AFP).
On 12 July 2006, Lt. Gen. Esperon issued an Order18 to the Commanding Officer,
191st, MP Bn to exercise custodial responsibility of Major Aquino, together with the
other implicated military personnel who withdrew their support from the chain of
command in February 2006, and to place them in confinement at the Philippine Army
Detention Center, Camp Capinpin, Tanay, Rizal. The same Order also designated the
aforementioned Commanding Officer to exercise direct supervision and control over
the concerned detainees.19
On 20 July 2006, the charge sheet against Major Aquino was amended to set forth
more detailed specifications of the charges.20 It, however, retained the charges
against Major Aquino as stated in the original charge sheet—i.e. violation of Article 67
(Attempting to Begin or Create a Mutiny) and Article 96 (Conduct Unbecoming an
Officer and Gentleman) of the Articles of War.
15
On 20 July 2006, the Judge Advocate General of the AFP General Headquarters of
the AFP issued Office Order Number 14-06, creating a Pre-trial Investigation
Panel21 for the case of Major Aquino, et al.
On 21 July 2006, petitioner filed a Petition for Habeas Corpus22 with the Court of
Appeals, praying that the AFP Chief of Staff and the Commanding General of the
Philippine Army, or whoever are acting in their place and stead, be directed to
immediately produce the body of Major Aquino and explain forthwith why he should
not be set at liberty without delay. The case was docketed as CA-G.R. SP No. 95341.
In the meantime, the Pre-trial Investigation Panel of the AFP issued a
Subpoena/Notice of Pre-trial Investigation23 to Major Aquino, summoning him to
appear in person before the panel and to submit his counter-affidavits and affidavits
of witnesses.24
After hearing,25 the Court of Appeals rendered a Decision26 dated 31 August 2006,
denying the Petition for Habeas Corpus.
The Court of Appeals held that the remedy of the writ of habeas corpus is futile
because charges had already been preferred27 against Major Aquino.28 In tracing the
factual antecedents leading to the preferment of charges against Major Aquino, the
Court of Appeals significantly noted that after the Investigating Panel found probable
cause against him for violation of Article 67 (Attempting to Begin or Create Mutiny)
and Article 96 (Conduct Unbecoming an Officer and Gentleman) of the Articles of
War, Lt. Gen. Esperon forwarded the panel’s recommendation to the JAGO for
review, which sustained the same.29 In view of such developments, a charge sheet
against Major Aquino was signed under oath by Col. Recuenco, then Army Provost
Marshall. The latter, thereafter, endorsed the charge sheet to the AFP Chief of Staff
for appropriate Action. Then, the Pre-trial Investigation Panel conducted a pre-trial
investigation whereby Major Aquino appeared before the said body. The Court of
Appeals said:
Significantly, even if at the time Major AQUINO was arrested there was yet no formal
charge filed against him, however[,] the remedy of habeas corpus being resorted to
by the Petitioner is still unavailing, considering that, as the records disclosed, charges
have been preferred against him even before the filing by the Petitioner of the instant
petition. Basic is the rule that once a person detained is duly charged in court, he may
no longer question his detention via a petition for the issuance of a writ of habeas
corpus.30
Petitioner filed a Motion for Reconsideration of the 31 August 2006 Decision, but, the
Court of Appeals denied the same and found no reason to disturb its judgment.31
Hence, the instant Petition for Review on Certiorari.
For this Court’s consideration, petitioner elevates three issues, 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.
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.32
The paramount issue posed for resolution is whether the confinement of Major Aquino
is legal.
Anent the first issue, petitioner assails the legality of Major Aquino’s confinement on
the ground that the latter had not been formally charged. It is petitioner’s theory that
charges can only be deemed formally filed after a thorough and impartial investigation
shall have been made.33 Thus, petitioner suggests that the word "charge" as used in
Article 7034 of the Articles of War means that a person is formally charged only after
the conduct of a mandatory pre-trial investigation. According to petitioner, the charge
sheet and the furnishing thereof to any person subject to military law is the act of
preferment, which act is evidently different from the act of filing. Otherwise stated, the
charge sheet is not the "charge" contemplated in Article 70 of the Articles of War for
the arrest or confinement of any person subject to military law. Thus, according to
petitioner, the filing of a formal charge can only be done after the conclusion of the
pre-trial investigation, when the case is referred to the general court-martial, akin to
the conduct of a preliminary investigation in civilian courts.35
We are not persuaded.
First, it is established that Major Aquino is governed by military law. Article 2 of the
Articles of War36 circumscribes the jurisdiction of military law only over persons
subject thereto. Major Aquino, G3 of the First Scout Ranger Regiment (FSRR) of the
Special Operation Command of the Philippine Army, is subject to military law. Thus:
Art. 2. Persons Subject to Military Law. – The following persons are subject to these
articles and shall be understood as included in the term "any person subject to
military law" or "persons subject to military law", whenever used in these articles:
(a) All officers and soldiers in the active service of the Armed Forces of the
Philippines or of the Philippine Constabulary; all members of the reserve force, from
the dates of their call to active duty and while on such active duty; all trainees
undergoing military instructions; and all other persons lawfully called, drafted, or
16
ordered into, or to duty or for training in, the said service, from the dates they are
required by the terms of the call, draft, or order to obey the same;
(b) Cadets, flying cadets, and probationary second lieutenants;
(c) All retainers to the camp and all persons accompanying or serving with the Armed
Forces of the Philippines in the field in time of war or when martial law is declared
though not otherwise subject to these articles;
(d) All persons under sentence adjudged by courts-martial.
(As amended by Republic Acts 242 and 516).
As a regular officer of the Armed Forces of the Philippines, Major Aquino falls
squarely under Article 2 of the Articles of War. Consequently, he is subject to the
applicable provisions of the Articles of War and Executive Order No. 178;37 or the
Manual for Courts-Martial, Philippine Army.
Second, a scrutiny of the confinement of Major Aquino proves that the same is valid.
Article 70 of the Articles of War governs the cases of arrest or confinement, viz.:
Art. 70. Arrest or Confinement. – Any person subject to military law charged with
crime or with a serious offense under these articles shall be placed in confinement or
in arrest, as circumstances may require; but when charged with a minor offense only,
such person shall not ordinarily be placed in confinement. Any person placed in arrest
under the provisions of this Article shall thereby be restricted to his barracks,
quarters, or tent, unless such limits shall be enlarged by proper authority. Any officer
or cadet who breaks his arrest or who escapes from confinement, whether before or
after trial or sentence and before he is set at liberty by proper authority, shall be
dismissed from the service or suffer such other punishment as a court-martial may
direct, and any other person subject to military law who escapes from confinement or
who breaks his arrest, whether before or after trial or sentence and before he is set at
liberty by proper authority, shall be punished as a court-martial may direct.
Evidently, Article 70 of the Articles of War empowers the commanding officer to place,
in confinement or in arrest, any person subject to military law charged with a crime or
with a serious offense under the Articles of War. Article 70 is the authority for enabling
the proper military personnel to put an instant end to criminal or unmilitary conduct,
and to impose such restraint as may be necessary upon the person of a military
offender, with a view of his trial by court-martial.38
We juxtapose Article 70 with Article 71 of the Articles of War. Under military law, the
conduct of investigations is governed by Article 71 of the Articles of War,39 to wit:
Art. 71. Charges; Action Upon. – Charges and specifications must be signed by a
person subject to military law, and under oath either that he has personal knowledge
of, or has investigated, the matters set forth therein and that the same are true in fact,
to the best of his knowledge and belief.
No charge will be referred to a general court-martial for trial until after a thorough and
impartial investigation thereof shall have been made. This investigation will include
inquiries as to the truth of the matter set forth in said charges, form of charges, and
what disposition of the case should be made in the interest of justice and discipline.
At such investigation[,] full opportunity shall be given to the accused to cross-examine
witnesses against him if they are available and to present anything he may desire in
his own behalf, either in defense or mitigation, and the investigating officer shall
examine available witnesses requested by the accused. If the charges are forwarded
after such investigation, they shall be accompanied by a statement of the substance
of the testimony taken on both sides.
Before directing the trial of any charge by general court-martial[,] the appointing
authority will refer it to his Staff Judge Advocate for consideration and advice.
When any person subject to military law is placed in arrest or confinement immediate
steps will be taken to try the person accused or to dismiss the charge and release
him. Any officer who is responsible for unnecessary delay in investigating or carrying
the case to a final conclusion shall be punished as a court-martial may direct. When a
person is held for a trial by general court-martial, the commanding officer, within eight
days after the accused is arrested or confined, if practicable, forward the charges to
the officer exercising general court-martial jurisdiction and furnish the accused a copy
of such charges. If the same be not practicable, he will report to superior authority the
reasons for delay. The trial judge advocate will cause to be served upon the accused
a copy of the charges upon which trial is to be had, and a failure so to serve such
charges will be ground for a continuance unless the trial be had on the charges
furnished the accused as hereinbefore provided. In time of peace[,] no person shall,
against his objection, be brought to trial before a general court-martial within a period
of five days subsequent to the service of charges upon him. (As amended by RA
242). (Emphasis supplied.)
The formal written accusation in court-martial practice consists of two parts, the
technical charge and the specification.40 The charge, where the offense alleged is a
violation of the articles, merely indicates the article the accused is alleged to have
violated while the specifications sets forth the specific facts and circumstances relied
upon as constituting the violation.41 Each specification, together with the charge under
which it is placed, constitutes a separate accusation.42 The term "charges" or
"charges and specifications" is applied to the formal written accusation or accusations
against an accused.43
The first part of Article 71 of the Articles of War categorically provides that charges
and specifications must be signed by a person subject to military law, who under oath
states that he either has personal knowledge of, or has investigated, the matters set
forth therein and that the same are true in fact, to the best of his knowledge and
belief. Further, the second paragraph of Article 71 explicitly provides that no charge
will be referred to a general court-martial for trial until after a thorough and impartial
investigation thereof shall have been made. A charge is made followed by a thorough
and impartial investigation and if the result of the investigation so warrants, the
charge is referred to the general court martial. Contrary to petitioner’s contention,
17
Article 71 makes no qualification that there can be a "charge" against a person
subject to military law only if a pre-trial has been completed and the case has been
referred to a court martial. What Article 71 instructs is that no charges, i.e. charges
and specifications signed by a person subject to military law under oath, may be
referred to a general court-martial for trial until after a thorough and impartial
investigation thereof shall have been made. Article 71 does not make the thorough
and impartial investigation a prerequisite before charges may be filed against a
person subject to military law. Clearly, the thorough and impartial investigation is a
prerequisite not to making a charge against a person subject to military law, but to the
referral of the charge to the general court martial. It is the charge which comes prior
to the investigation, and which sets into motion the investigation.
We find that there was compliance with the requirements of the Articles of War. As
shown by the evidence on record, the amended charge sheets44 against Major
Aquino, containing the charges and the specifications for violations of Article 67
(Attempting to Begin or Create Mutiny) and Article 96 (Conduct Unbecoming an
Officer and Gentleman) of the Articles of War, were personally signed under oath by
Capt. Armando P. Paredes, a person subject to military law. The amended charge
sheets were sworn to by the accuser, Capt. Armando P. Paredes in the manner
provided under Article 71.45 As it is, Major Aquino stands charged in court martial
proceedings for alleged violations of the Articles of War.
In Kapunan, Jr. v. De Villa,46 this Court denied the writ of habeas corpus prayed for,
and upheld the legality of the confinement even when there was merely a substantial
compliance with the procedural requisites laid down in Article 71. In said case, the
Court held that the fact that the charge sheets were not certified in the manner
provided by the pertinent law, i.e., that the officer administering the oath has
personally examined the affiant and is satisfied that the latter voluntarily executed and
understood his affidavit, does not invalidate said charge sheets.47 With more reason
do we herein uphold the validity of the amended charge sheets against Major Aquino
considering that they were executed in accordance with the law, and without breach
of Article 71 of the Articles of War. The preferment of charges under Article 71 is a
ground for the confinement or arrest48 of Major Aquino pursuant to Article 7049 of the
Articles of War.
It bears stressing that subsequent to the preferment of charges under Article 70, the
Judge Advocate General of the General Headquarters of the AFP, issued Office
Order Number 14-06, creating a Pre-trial Investigation Panel to investigate the case
of Major Aquino and his co-accused. In addition, the Office of the Judge Advocate
General issued a subpoena and a notice of pre-trial investigation to Major Aquino
summoning him to appear in person before the Pre-trial Investigation Panel.
Furthermore, Major Aquino was given the opportunity to submit counter-affidavits and
affidavits of his witnesses. More significantly, Major Aquino was present during the
scheduled investigation. His arrest and confinement cannot be said to be without due
process of law.
Perforce, we do not find that the Court of Appeals erred in denying petitioner’s
Petition for Habeas Corpus for the person of Major Aquino. A writ of habeas corpus
extends to all cases of illegal confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody of any person is withheld from
the person entitled to it.50 As a general rule, the writ of habeas corpus will not issue
where the person alleged to be restrained of his liberty is in the custody of an officer
under a process issued by the court which has jurisdiction to do so.51 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.52 In the case at bar, Major Aquino stands
charged in court martial proceedings for alleged violations of Article 67 (Attempting to
Begin or Create Mutiny) and Article 96 (Conduct Unbecoming an Officer and
Gentleman) of the Articles of War. The legality of Major Aquino’s restraint having
been settled, the privilege of the writ is unavailing.
We proceed to discuss jointly the second and third issues raised by the petitioner
before this Court.
Petitioner contends that in his confinement, Major Aquino was not restricted to his
barracks, quarters or tent as mandated by Article 70 of the Articles of War; rather, he
was placed in solitary confinement in a maximum security detention cell. When
petitioner proceeded to the detention cell, she alleged that she was restricted from
visiting her husband.53 Petitioner asserts that these are extreme punishments akin to
treating Major Aquino as a convicted criminal.54
We are not impressed.
At this juncture, it must be stressed that respondents deny the solitary confinement of
Major Aquino.55 According to respondents, Major Aquino is confined in a U-shaped
building without any division/partition.56 The place is described as a long hall with 50
double-deck beds.57 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.58
While it is true that the extraordinary writ of habeas corpus is the appropriate remedy
to inquire into questions of violations of constitutional right,59 this Court, however,
does not find the conditions of Major Aquino’s confinement to be a proper subject of
inquiry in the instant Petition.
This Court has declared that habeas corpus is not the proper mode to question
conditions of confinement.
In Alejano v. Cabuay,60 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. 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. They also
alleged that the detainees’ constitutional right to privacy of communication were
violated because ISAFP officials opened and read the personal letters of some of the
detainees. They also challenged, as unusual and excessive punishment, the
presence of the bars separating the detainees from their visitors and the boarding of
18
the iron grills in their cells with plywood. In denying the petition, this Court declared
that the fact that the restrictions inherent in detention intrude into the detainees’
desire to live comfortably does not convert those restrictions into punishment.61 Said
the Court in Alejano:
Bell v. Wolfish [441 U.S. 520 (1979)] pointed out that while a detainee may not be
punished prior to an adjudication of guilt in accordance with due process of law,
detention inevitably interferes with a detainee’s desire to live comfortably. The fact
that the restrictions inherent in detention intrude into the detainees’ desire to live
comfortably does not convert those restrictions into punishment. It is when the
restrictions are arbitrary and purposeless that courts will infer intent to punish. Courts
will also infer intent to punish even if the restriction seems to be related rationally to
the alternative purpose if the restriction appears excessive in relation to that purpose.
Jail officials are thus not required to use the least restrictive security measure. They
must only refrain from implementing a restriction that appears excessive to the
purpose it serves.62 (Emphasis supplied.)1avvphi1
Furthermore, the following guidelines were given by the Court to determine if an
action constitutes punishment, to wit: (1) that action causes the inmate to suffer some
harm or "disability," and (2) the purpose of the action is to punish the inmate.63 It is
also an additional requisite that the harm or disability be significantly greater than, or
be independent of, the inherent discomforts of confinement.64 We do not see the
attendance of the foregoing factors in the instant case. There are no specific facts
that are brought to the attention of this Court to indicate the punitive character of the
confinement. The confinement is not herein imposed as a punishment. We do not see
that the confinement of Major Aquino causes him to suffer some harm or
disability.1avvphi1 There is no punitive hardship that exists in the case at bar. In fact,
petitioner does not even allege a single act which would show such harm or such
"disability" as to prove that the same is significantly greater than, or independent of,
the inherent discomforts of confinement.1avvphi1
To be sure, the first part of Article 70 of the Articles of War grants discretion to military
authorities over the imposition of arrest or confinement of persons subject to military
law charged with crime or with serious offense, viz:
Art. 70. Arrest or Confinement. – Any person subject to military law charged with
crime or with a serious offense under these Articles shall be placed in confinement or
in arrest, as circumstances may require, but when charged with a minor offense only,
such person shall not ordinarily be placed in confinement. Any person placed in arrest
under the provisions of this Article shall thereby be restricted to his barracks,
quarters, or tent, unless such limits shall be enlarged by proper authority. Any officer
or cadet who breaks his arrest or who escapes from confinement, whether before or
after trial or sentence and before he is set at liberty by proper authority, shall be
dismissed from the service or suffer such other punishment as a court-martial may
direct, and any other person subject to military law who escapes from confinement or
who breaks his arrest, whether before or after trial or sentence and before he is set at
liberty by proper authority, shall be punished as a court-martial may direct. (Emphasis
supplied.)
Major Aquino is charged with violations of Article 67, for attempting to begin or create confinement. The writ of habeas corpus will only lie if what is challenged is the fact or
mutiny, and Article 97, for Conduct Unbecoming an Officer and Gentleman. According duration of confinement.68 (Emphasis supplied.)
to Article 67, any person subject to military law who attempts to create or who begins,
excites, causes or joins in any mutiny shall suffer death or such other punishment as In sum, we find the present Petition to be devoid of merit.
a court-martial may direct. It cannot be gainsaid that in determining the
WHEREFORE, the Petition is DENIED. No costs.
"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 SO ORDERED.
be considered.

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

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

Block v. Rutherford [468 U.S. 576 (1984)], which reiterated Bell v. Wolfish, upheld the
blanket restriction on contact visits as this practice was reasonably related to
maintaining security. The safety of innocent individuals will be jeopardized if they are
exposed to detainees who while not yet convicted are awaiting trial for serious, violent
offenses and may have prior criminal conviction. Contact visits make it possible for
the detainees to hold visitors and jail staff hostage to effect escapes. Contact visits
also leave the jail vulnerable to visitors smuggling in weapons, drugs, and other
contraband. The restriction on contact visit was imposed even on low-risk detainees
as they could also potentially be enlisted to help obtain contraband and weapons. The
security consideration in the imposition of blanket restriction on contact visits was
ruled to outweigh the sentiments of the detainees.

Block v. Rutherford held that the prohibition of contact visits bore a rational
connection to the legitimate goal of internal security. This case reaffirmed the "hands-
off" doctrine enunciated in Bell v. Wolfish, a form of judicial self-restraint, based on
the premise that courts should decline jurisdiction over prison matters in deference to
administrative expertise.65

As a rule, therefore, the writ of habeas corpus does not extend into questions of
conditions of confinement; but only to the fact and duration of confinement. The high
prerogative writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint.66 Its object is to inquire into the
legality of one’s detention, and if found illegal, to order the release of the detainee.67 It
is not a means for the redress of grievances or to seek injunctive relief or damages.
We reiterate the pronouncement of this Court in Alejano:

The ruling in this case, however, does not foreclose the right of detainees and
convicted prisoners from petitioning the courts for the redress of grievances.
Regulations and conditions in detention and prison facilities that violate the
Constitutional rights of the detainees and prisoners will be reviewed by the courts on
a case-by-case basis. The courts could afford injunctive relief or damages to the
detainees and prisoners subjected to arbitrary and inhumane conditions.
However, habeas corpus is not the proper mode to question conditions of
19
 5- G.R. No. 210636               July 28, 2014
MA. HAZELINA A. TUJANMILITANTE IN BEHALF OF THE MINOR CRISELDA M.
CADA, Petitioner,
vs.
RAQUEL M. CADA-DEAPERA, Respondent.
DECISION
VELASCO, JR., J.:
Nature of the Case
Before Us is a petition for review on certiorari under Rule 45 of the Rules of Court
with prayer for injunctive relief seeking the reversal of the Court of Appeals (CA)
Decision1 dated May 17, 2013 as well as its Resolution dated December 27, 2013 in
CA-G.R. SP No. 123759. In the main, petitioner questions the jurisdiction of the
Regional Trial Court, Branch 130 in Caloocan City (RTC-Caloocan) to hear and
decide a special civil action for habeas corpus in relation to the custody of a minor
residing in Quezon City.
The Facts
On March 24, 2011, respondent Raquel M. Cada-Deapera filed before the R TC-
Caloocan a verified petition for writ of habeas corpus, docketed as Special Civil
Action Case No. C-4344. In the said petition, respondent demanded the immediate
issuance of the special writ, directing petitioner Ma. Hazelina Tujan-Militante to
produce before the court respondent's biological daughter, minor Criselda M. Cada
(Criselda), and to return to her the custody over the child. Additionally, respondent
indicated that petitioner has three (3) known addresses where she can be served with
summons and other court processes, to wit: (1) 24 Bangkal St., Amparo Village,
Novaliches, Caloocan City; (2) 118B K9Street, Kamias, Quezon City; and (3) her
office at the Ombudsman-Office of the Special Prosecutor, 5th Floor, Sandiganbayan,
Centennial Building, Commonwealth Avenue cor. Batasan Road, Quezon City.2
The next day, on March 25, 2011, the RTC-Caloocan issued a writ of habeas corpus,
ordering petitioner to bring the child to court on March 28, 2011. Despite diligent
efforts and several attempts, however, the Sheriff was unsuccessful in personally
serving petitioner copies of the habeas corpus petition and of the writ. Instead, on
March 29, 2011, the Sheriff left copies of the court processes at petitioner’s Caloocan
residence, as witnessed by respondent’s counsel and barangay
officials.3 Nevertheless, petitioner failed to appear at the scheduled hearings before
the RTC-Caloocan.
Meanwhile, on March 31, 2011, petitioner filed a Petition for Guardianship over the
person of Criselda before the RTC, Branch 89 in Quezon City (RTC-Quezon City).
Respondent filed a Motion to Dismiss the petition for guardianship on the ground of
litis pendentia, among others. Thereafter, or on June 3, 2011, respondent filed a
criminal case for kidnapping before the Office of the City Prosecutor – Quezon City
against petitioner and her counsel.
20
On July 12, 2011, the RTC-Quezon City granted respondent’s motion and dismissed
the guardianship case due to the pendency of the habeas corpuspetition before RTC-
Caloocan.4
The falloof the Order reads:
WHEREFORE, in view of the foregoing,the subject motion is hereby
GRANTED.Accordingly, the case is hereby DISMISSED.
SO ORDERED.5
Then, on August 4, 2011, Raquel moved for the ex parte issuance of an alias writ of
habeas corpus before the RTC-Caloocan, which was granted by the trial court on
August 8, 2011. On even date, the court directed the Sheriff to serve the alias writ
upon petitioner at the Office of the Assistant City Prosecutor of Quezon City on
August 10, 2011.6 In compliance, the Sheriff served petitioner the August 8, 2011
Order as well as the Alias Writ during the preliminary investigation of the kidnapping
case.7
Following this development, petitioner, by way of special appearance, moved for the
quashal of the writ and prayed before the RTC Caloocan for the dismissal of the
habeas corpus petition,8 claiming, among others, that she was not personally served
with summons. Thus, as argued by petitioner, jurisdiction over her and
Criselda’sperson was not acquired by the RTCCaloocan.
Ruling of the Trial Court
On January 20, 2012, the RTC-Caloocan issued an Order denying petitioner’s
omnibus motion, citing Saulo v. Brig. Gen. Cruz,9 where the Court held that a writ of
habeas corpus, being an extraordinary process requiring immediate proceeding and
action, plays a role somewhat comparable to a summons in ordinary civil actions, in
that, by service of said writ, the Court acquires jurisdiction over the person of the
respondent, as petitioner herein.10
Moreover, personal service, the RTC said, does not necessarily require that service
be made exclusively at petitioner’s given address, for service may be made
elsewhere or wherever she may be found for as long as she was handed a copy of
the court process in person by anyone authorized by law. Since the sheriff was able
to personally serve petitioner a copy of the writ, albeit in Quezon City, the RTC-
Caloocan validly acquired jurisdiction over her person.11 The dispositive portion of the
Order reads:
WHEREFORE, premises considered, the Very Urgent Motion (Motion to Quash Alias
Writ; Motion to Dismiss)filed by respondent Ma. Hazelina Tujan-Militante dated
August 11, 2011 is hereby DENIED for lack of merit.
In the meantime, respondent Ma. Hazelina Tujan-Militante is hereby directed to
appear and bring Criselda Martinez Cada before this Court on February 10, 2012 at
8:30 o’clock in the morning.
SO ORDERED.12
Aggrieved, petitioner, via certiorari to the CA, assailed the issued Order.
Ruling of the Court of Appeals
Over a year later, the CA, in the challenged Decision dated May 17,
2013,13 dismissed the petition for certiorari in the following wise:
WHEREFORE, the instant petition is hereby DISMISSED for lack of merit. The
Regional Trial Court, Branch 130 of Caloocan City is DIRECTED to proceed with due
dispatch in Spec. Proc. Case No. C-4344 for Habeas Corpus, giving utmost
consideration tothe best interest of the now nearly 14-year old child.
SO ORDERED.14
In so ruling, the CA held that jurisdiction was properly laid when respondent filed the
habeas corpus petition before the designated Family Court in Caloocan City.15 It also
relied on the certification issued by the punong barangay of Brgy. 179, Caloocan City,
stating that petitioner is a bona fide resident thereof, as well as the medical certificate
issued by Criselda’s doctor on April 1, 2011, indicating that her address is "Amparo
Village, KC."16 Anent the RTC-Caloocan’s jurisdiction, the appellate court ruled that
service of summons is not required under Section 20 of A.M. No. 03-04-04-SC,
otherwise known as the Rules on Custody of Minors and Habeas Corpus in Relation
to Custody of Minors. According tothe CA, the rules on summons contemplated in
ordinary civil actions have no place in petitions for the issuance of a writ of habeas
corpus, it being a special proceeding.17
Petitioner sought reconsideration ofthe above Decision but the same was denied by
the CA in its December 27, 2013 Resolution.1âwphi1
Hence, this Petition.
The Issues
At the core of this controversy isthe issue of whether or not the RTC Caloocan has
jurisdiction over the habeascorpus petition filed by respondent and, assuming
arguendo it does, whether or not it validly acquired jurisdiction over petitioner and the
person of Criselda. Likewise pivotal is the enforce ability of the writ issued by RTC-
Caloocan in Quezon City where petitioner was served a copy thereof.
The Court’s Ruling
The petition lacks merit. The RTC-Caloocan correctly took cognizance of the habeas
corpus petition. Subsequently, it acquired jurisdiction over petitioner when the latter
was served with a copy of the writ in Quezon City.
The RTC-Caloocan has jurisdiction over the habeas corpus proceeding
Arguing that the RTC-Caloocan lacked jurisdiction over the case, petitioner relies on
Section 3 of A.M. No. 03-04-04-SC and maintains that the habeas corpus petition
21
should have been filed before the family court that has jurisdiction over her place of
residence or that of the minor or wherever the minor may be found.18 As to
respondent, she asserts, among others, that the applicable rule is not Section 3 but
Section 20 of A.M. No. 03-04-04-SC.19
We find for respondent.
In the case at bar, what respondent filed was a petition for the issuance of a writ of
habeas corpus under Section 20 of A.M. No. 03-04-04-SC and Rule 102 of the Rules
of Court.20 As provided:
Section 20. Petition for writ of habeas corpus.- A verified petition for a writ of habeas
corpus involving custody of minors shall be filed with the Family Court. The writ shall
beenforceable within its judicial region to which the Family Court belongs.
However, the petition may be filed with the regular court in the absence of the
presiding judge of the Family Court, provided, however, that the regular court shall
refer the case tothe Family Court as soon as its presiding judge returns to duty.
The petition may also be filed with the appropriate regular courts in places where
there are no Family Courts.
The writ issued by the Family Court or the regular court shall be enforceable in the
judicial region where they belong.
The petition may likewise be filed with the Supreme Court, Court of Appeals, or with
any of its members and, if so granted,the writ shall be enforceable anywhere in the
Philippines. The writ may be made returnable to a Family Court or to any regular
court within the region where the petitioner resides or where the minor may be found
for hearing and decision on the merits.
Upon return of the writ, the court shall decide the issue on custody of minors. The
appellate court, or the member thereof, issuing the writ shall be furnished a copy of
the decision. (emphasis added)
Considering that the writ is made enforceable within a judicial region, petitions for the
issuance of the writ of habeas corpus, whether they be filed under Rule 102 of the
Rules of Court orpursuant to Section 20 of A.M. No. 03-04-04-SC, may therefore be
filed withany of the proper RTCs within the judicial region where enforcement thereof
is sought.21
On this point, Section 13 of Batas Pambansa Blg. 129 (BP 129), otherwise known as
the Judiciary Reorganization Act of 1980, finds relevance. Said provision, which
contains the enumeration of judicial regions in the country, states:
Section 13. Creation of Regional Trial Courts. – There are hereby created thirteen
Regional Trial Courts, one for each of the following judicial regions:
xxxx
The National Capital Judicial Region, consisting of the cities of Manila, Quezon,
Pasay, Caloocan and Mandaluyong, and the municipalities of Navotas, Malabon, San
Juan, Makati, Pasig, Pateros, Taguig, Marikina, Parañaque, Las Piñas, Muntinlupa,
and Valenzuela. (emphasis ours)

In view of the afore-quoted provision,it is indubitable that the filing of a petition for the
issuance of a writ of habeas corpus before a family court in any of the cities
enumerated is proper as long as the writ is sought to be enforced within the National
Capital Judicial Region, as here.

In the case at bar, respondent filed the petition before the family court of Caloocan
City. Since Caloocan City and Quezon City both belong to the same judicial region,
the writ issued by the RTC-Caloocan can still be implemented in Quezon City.
Whether petitioner resides in the former or the latter is immaterial in view of the above
rule.

Anent petitioner’s insistence on the application of Section 3 of A.M. No. 03-04-04-SC,

a plain reading of said provision reveals that the provision invoked only applies to
petitions for custody of minors, and not to habeas corpus petitions. Thus:

Section 3. Where to file petition.- The petition for custody of minors shall be filed with
the Family Court of the province or city where the petitioner resides or where the
minormay be found. (emphasis added)

Lastly, as regards petitioner’s assertion that the summons was improperly served,
suffice it to state thatservice of summons, to begin with, is not required in a habeas
corpus petition, be it under Rule 102 of the Rules of Court or A.M. No. 03-04-04-SC.
As held in Saulo v. Cruz, a writ of habeas corpus plays a role somewhat comparable
to a summons, in ordinary civil actions, in that, by service of said writ, the court
acquires jurisdiction over the person of the respondent.22

In view of the foregoing, We need not belabor the other issues raised.

WHEREFORE, the instant petition is DENIED. The Court of Appeals Decision dated
May 1 7, 2013 and its Resolution dated December 27, 2013 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

22
 6- G.R. No. 158802             November 17, 2004
IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE VILLA (detained at
the New Bilibid Prisons, Muntinlupa City)
JUNE DE VILLA, petitioner-relator,
vs.
THE DIRECTOR, NEW BILIBID PRISONS, respondent.
YNARES-SANTIAGO, J.:
This is a petition for the issuance of a writ of habeas corpus under Rule 102 of the
Rules of Court. Petitioner Reynaldo de Villa, joined by his son, petitioner-relator June
de Villa, seeks a two-fold relief: First, that respondent Director of Prisons justify the
basis for the imprisonment of petitioner Reynaldo de Villa; and second, that petitioner
be granted a new trial.1 These reliefs are sought on the basis of purportedly
exculpatory evidence, gathered after performing deoxyribonucleic acid (DNA) testing
on samples allegedly collected from the petitioner and a child born to the victim of the
rape.
By final judgment dated February 1, 2001, in People of the Philippines v. Reynaldo de
Villa,2 we found petitioner guilty of the rape of Aileen Mendoza, his niece by affinity;
sentenced him to suffer the penalty of reclusión perpetua; and ordered him to pay the
offended party civil indemnity, moral damages, costs of the suit, and support for
Leahlyn Corales Mendoza, the putative child born of the rape. Petitioner is currently
serving his sentence at the New Bilibid Prison, Muntinlupa City.
As summarized in our Decision dated February 1, 2001, Aileen Mendoza charged
petitioner Reynaldo de Villa with rape in an information dated January 9, 1995, filed
with the Regional Trial Court of Pasig City. When arraigned on January 26, 1995,
petitioner entered a plea of "not guilty."3
During the trial, the prosecution established that sometime in the third week of April
1994, at about 10:00 in the morning, Aileen Mendoza woke up in her family's rented
room in Sagad, Pasig, Metro Manila, to find petitioner on top of her. Aileen was then
aged 12 years and ten months. She was unable to shout for help because petitioner
covered her mouth with a pillow and threatened to kill her. Aileen could not do
anything but cry. Petitioner succeeded in inserting his penis inside her vagina. After
making thrusting motions with his body, petitioner ejaculated. This encounter
allegedly resulted in Aileen's pregnancy, which was noticed by her mother, Leonila
Mendoza, sometime in November 1994. When confronted by her mother, Aileen
revealed that petitioner raped her. Aileen's parents then brought her to the Pasig
Police Station, where they lodged a criminal complaint against petitioner.4
Dr. Rosaline Cosidon, who examined Aileen, confirmed that she was eight months
pregnant and found in her hymen healed lacerations at the 5:00 and 8:00 positions.
On December 19, 1994, Aileen gave birth to a baby girl whom she named Leahlyn
Mendoza.5
23
In his defense, petitioner alleged that, at the time of the alleged rape, he was already
67 years old. Old age and sickness had rendered him incapable of having an
erection. He further averred that Aileen's family had been holding a grudge against
him, which accounted for the criminal charges. Finally, he interposed the defense of
alibi, claiming that at the time of the incident, he was in his hometown of San Luis,
Batangas.6
The trial court found petitioner guilty beyond reasonable doubt of the crime of
qualified rape, and sentenced him to death, to indemnify the victim in the amount of
P50,000.00, to pay the costs of the suit and to support the child, Leahlyn Mendoza.7
On automatic review,8 we found that the date of birth of Aileen's child was medically
consistent with the time of the rape. Since it was never alleged that Aileen gave birth
to a full-term nine-month old baby, we gave credence to the prosecution's contention
that she prematurely gave birth to an eight-month old baby by normal delivery.9 Thus,
we affirmed petitioner's conviction for rape, in a Decision the dispositive portion of
which reads:
WHEREFORE, the judgment of the Regional Trial Court, finding accused-appellant
guilty beyond reasonable doubt of the crime of rape, is AFFIRMED with the
MODIFICATIONS that he is sentenced to suffer the penalty of reclusión perpetua and
ordered to pay the offended party P50,000.00 as civil indemnity; P50,000.00 as moral
damages; costs of the suit and to provide support for the child Leahlyn Corales
Mendoza.
SO ORDERED.10
Three years after the promulgation of our Decision, we are once more faced with the
question of Reynaldo de Villa's guilt or innocence.
Petitioner-relator in this case, June de Villa, is the son of Reynaldo. He alleges that
during the trial of the case, he was unaware that there was a scientific test that could
determine once and for all if Reynaldo was the father of the victim's child, Leahlyn.
Petitioner-relator was only informed during the pendency of the automatic review of
petitioner's case that DNA testing could resolve the issue of paternity.11 This
information was apparently furnished by the Free Legal Assistance Group (FLAG)
Anti-Death Penalty Task Force, which took over as counsel for petitioner.
Thus, petitioner's brief in People v. de Villa sought the conduct of a blood type test
and DNA test in order to determine the paternity of the child allegedly conceived as a
result of the rape.12 This relief was implicitly denied in our Decision of February 21,
2001.
On March 16, 2001, Reynaldo de Villa filed a Motion for Partial Reconsideration of the
Decision, wherein he once more prayed that DNA tests be conducted.13 The Motion
was denied with finality in a Resolution dated November 20, 2001.14 Hence, the
Decision became final and executory on January 16, 2002.15
Petitioner-relator was undaunted by these challenges. Having been informed that
DNA tests required a sample that could be extracted from saliva, petitioner-relator
asked Billy Joe de Villa, a grandson of Reynaldo de Villa and a classmate of Leahlyn
Mendoza, to ask Leahlyn to spit into a new, sterile cup.16 Leahlyn readily agreed and
did so. Billy Joe took the sample home and gave it to the petitioner-relator, who
immediately labeled the cup as "Container A."
Petitioner-relator then gathered samples from four grandchildren of Reynaldo de Villa.
These samples were placed in separate containers with distinguishing labels and
temporarily stored in a refrigerator prior to transport to the DNA Analysis Laboratory
at the National Science Research Institute (NSRI).17 During transport, the containers
containing the saliva samples were kept on ice.
Petitioner-relator requested the NSRI to conduct DNA testing on the sample given by
Leahlyn Mendoza, those given by the grandchildren of Reynaldo de Villa, and that
given by Reynaldo de Villa himself. The identities of the donors of the samples, save
for the sample given by Reynaldo de Villa, were not made known to the DNA Analysis
Laboratory.18
After testing, the DNA Laboratory rendered a preliminary report on March 21, 2003,
which showed that Reynaldo de Villa could not have sired any of the children whose
samples were tested, due to the absence of a match between the pertinent genetic
markers in petitioner's sample and those of any of the other samples, including
Leahlyn's.19
Hence, in the instant petition for habeas corpus, petitioner argues as follows:
DNA ANALYSIS ON PATERNITY SHOWS CONCLUSIVELY THAT PETITIONER DE
VILLA IS NOT THE FATHER OF LEAHLYN MENDOZA; HIS CONVICTION FOR
RAPE, BASED ON THE FACT THAT LEAHLYN WAS SIRED AS A RESULT OF THE
ALLEGED RAPE, CANNOT STAND AND MUST BE SET ASIDE.20
xxx    xxx    xxx
A NEW TRIAL TO CONSIDER NEWLY DISCOVERED EVIDENCE IS PROPER AND
MAY BE ORDERED BY THIS COURT IN VIEW OF THE RESULTS OF THE DNA
TESTS CONDUCTED.21
Considering that the issues are inter-twined, they shall be discussed together.
In brief, petitioner relies upon the DNA evidence gathered subsequent to the trial in
order to re-litigate the factual issue of the paternity of the child Leahlyn Mendoza.
Petitioner alleges that this issue is crucial, considering that his conviction in 2001 was
based on the factual finding that he sired the said child. Since this paternity is now
conclusively disproved, he argues that the 2001 conviction must be overturned.
In essence, petitioner invokes the remedy of the writ of habeas corpus to collaterally
attack the 2001 Decision. The ancillary remedy of a motion for new trial is resorted to
solely to allow the presentation of what is alleged to be newly-discovered evidence.
This Court is thus tasked to determine, first, the propriety of the issuance of a writ of
habeas corpus to release an individual already convicted and serving sentence by
24
virtue of a final and executory judgment; and second, the propriety of granting a new
trial under the same factual scenario.
The extraordinary writ of habeas corpus has long been a haven of relief for those
seeking liberty from any unwarranted denial of freedom of movement. Very broadly,
the writ applies "to all cases of illegal confinement or detention by which a person has
been deprived of his liberty, or by which the rightful custody of any person has been
withheld from the person entitled thereto".22 Issuance of the writ necessitates that a
person be illegally deprived of his liberty. In the celebrated case of Villavicencio v.
Lukban,23 we stated that "[a]ny restraint which will preclude freedom of action is
sufficient."24
The most basic criterion for the issuance of the writ, therefore, is that the individual
seeking such relief be illegally deprived of his freedom of movement or placed under
some form of illegal restraint. If an individual's liberty is restrained via some legal
process, the writ of habeas corpus is unavailing. Concomitant to this principle, the writ
of habeas corpus cannot be used to directly assail a judgment rendered by a
competent court or tribunal which, having duly acquired jurisdiction, was not deprived
or ousted of this jurisdiction through some anomaly in the conduct of the proceedings.
Thus, notwithstanding its historic function as the great writ of liberty, the writ of
habeas corpus has very limited availability as a post-conviction remedy. In the recent
case of Feria v. Court of Appeals,25 we ruled that review of a judgment of conviction is
allowed in a petition for the issuance of the writ of habeas corpus only in very specific
instances, such as when, as a consequence of a judicial proceeding, (a) there has
been a deprivation of a constitutional right resulting in the restraint of a person; (b) the
court had no jurisdiction to impose the sentence; or (c) an excessive penalty has
been imposed, as such sentence is void as to such excess.26
In this instance, petitioner invokes the writ of habeas corpus to assail a final judgment
of conviction, without, however, providing a legal ground on which to anchor his
petition. In fine, petitioner alleges neither the deprivation of a constitutional right, the
absence of jurisdiction of the court imposing the sentence, or that an excessive
penalty has been imposed upon him.
In fine, petitioner invokes the remedy of habeas corpus in order to seek the review of
findings of fact long passed upon with finality. This relief is far outside the scope of
habeas corpus proceedings. In the early case of Abriol v. Homeres,27 for example, this
Court stated the general rule that the writ of habeas corpus is not a writ of error, and
should not be thus used. The writ of habeas corpus, whereas permitting a collateral
challenge of the jurisdiction of the court or tribunal issuing the process or judgment by
which an individual is deprived of his liberty, cannot be distorted by extending the
inquiry to mere errors of trial courts acting squarely within their jurisdiction.28 The
reason for this is explained very simply in the case of Velasco v. Court of Appeals:29 a
habeas corpus petition reaches the body, but not the record of the case. 30 A record
must be allowed to remain extant, and cannot be revised, modified, altered or
amended by the simple expedient of resort to habeas corpus proceedings.
Clearly, mere errors of fact or law, which did not have the effect of depriving the trial
court of its jurisdiction over the case and the person of the defendant, are not
correctible in a petition for the issuance of the writ of habeas corpus; if at all, these
errors must be corrected on certiorari or on appeal, in the form and manner
prescribed by law.31 In the past, this Court has disallowed the review of a court's
appreciation of the evidence in a petition for the issuance of a writ of habeas corpus,
as this is not the function of said writ.32 A survey of our decisions in habeas corpus
cases demonstrates that, in general, the writ of habeas corpus is a high prerogative
writ which furnishes an extraordinary remedy; it may thus be invoked only under
extraordinary circumstances.33 We have been categorical in our pronouncements that
the writ of habeas corpus is not to be used as a substitute for another, more proper
remedy. Resort to the writ of habeas corpus is available only in the limited instances
when a judgment is rendered by a court or tribunal devoid of jurisdiction. If, for
instance, it can be demonstrated that there was a deprivation of a constitutional right,
the writ can be granted even after an individual has been meted a sentence by final
judgment.
Thus, in the case of Chavez v. Court of Appeals,34 the writ of habeas corpus was held
to be available where an accused was deprived of the constitutional right against self-
incrimination. A defect so pronounced as the denial of an accused's constitutional
rights results in the absence or loss of jurisdiction, and therefore invalidates the trial
and the consequent conviction of the accused. That void judgment of conviction may
be challenged by collateral attack, which precisely is the function of habeas
corpus.35 Later, in Gumabon v. Director of the Bureau of Prisons,36 this Court ruled
that, once a deprivation of a constitutional right is shown to exist, the court that
rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the
appropriate remedy to assail the legality of the detention.37 Although in Feria v. Court
of Appeals38 this Court was inclined to allow the presentation of new evidence in a
petition for the issuance of a writ of habeas corpus, this was an exceptional situation.
In that case, we laid down the general rule, which states that the burden of proving
illegal restraint by the respondent rests on the petitioner who attacks such restraint.
Where the return is not subject to exception, that is, where it sets forth a process
which, on its face, shows good ground for the detention of the prisoner, it is
incumbent on petitioner to allege and prove new matter that tends to invalidate the
apparent effect of such process.39
In the recent case of Calvan v. Court of Appeals,40 we summarized the scope of
review allowable in a petition for the issuance of the writ of habeas corpus. We ruled
that the writ of habeas corpus, although not designed to interrupt the orderly
administration of justice, can be invoked by the attendance of a special circumstance
that requires immediate action. In such situations, the inquiry on a writ of habeas
corpus would be addressed, not to errors committed by a court within its jurisdiction,
but to the question of whether the proceeding or judgment under which a person has
been restrained is a complete nullity. The probe may thus proceed to check on the
power and authority, itself an equivalent test of jurisdiction, of the court or the judge to
render the order that so serves as the basis of imprisonment or detention.41 It is the
nullity of an assailed judgment of conviction which makes it susceptible to collateral
attack through the filing of a petition for the issuance of the writ of habeas corpus.
25
Upon a perusal of the records not merely of this case but of People v. de Villa, we find
that the remedy of the writ of habeas corpus is unavailing.
First, the denial of a constitutional right has not been alleged by petitioner. As such,
this Court is hard-pressed to find legal basis on which to anchor the grant of a writ of
habeas corpus. Much as this Court sympathizes with petitioner's plea, a careful
scrutiny of the records does not reveal any constitutional right of which the petitioner
was unduly deprived.
We are aware that other jurisdictions have seen fit to grant the writ of habeas corpus
in order to test claims that a defendant was denied effective aid of counsel.42 In this
instance, we note that the record is replete with errors committed by counsel, and it
can be alleged that the petitioner was, at trial, denied the effective aid of counsel. The
United States Supreme Court requires a defendant alleging incompetent counsel to
show that the attorney's performance was deficient under a reasonable standard, and
additionally to show that the outcome of the trial would have been different with
competent counsel.43 The purpose of the right to effective assistance of counsel is to
ensure that the defendant receives a fair trial.44
The U.S. Supreme Court asserts that in judging any claim of ineffective assistance of
counsel, one must examine whether counsel's conduct undermined the proper
functioning of the adversarial process to such an extent that the trial did not produce a
fair and just result.45 The proper measure of attorney performance is "reasonable"
under the prevailing professional norms, and the defendant must show that the
representation received fell below the objective standard of reasonableness.46 For the
petition to succeed, the strong presumption that the counsel's conduct falls within the
wide range or reasonable professional assistance must be overcome.47
In the case at bar, it appears that in the middle of the appeal, the petitioner's counsel
of record, a certain Atty. Alfonso G. Salvador, suddenly and inexplicably withdrew his
appearance as counsel, giving the sole explanation that he was "leaving for the
United States for an indefinite period of time by virtue of a petition filed in his
favor."48 In the face of this abandonment, petitioner made an impassioned plea that
his lawyer be prevented from this withdrawal in a handwritten "Urgent Motion for
Reconsideration and Opposition of Counsel's Withdrawal of Appearance with Leave
of Court" received by this Court on September 14, 1999.49 Petitioner alleged that his
counsel's withdrawal is an "untimely and heartbreaking event", considering that he
had placed "all [his] trust and confidence on [his counsel's] unquestionable integrity
and dignity."50
While we are sympathetic to petitioner's plight, we do not, however, find that there
was such negligence committed by his earlier counsel so as to amount to a denial of
a constitutional right. There is likewise no showing that the proceedings were tainted
with any other jurisdictional defect.
In fine, we find that petitioner invokes the remedy of the petition for a writ of habeas
corpus to seek a re-examination of the records of People v. de Villa, without asserting
any legal grounds therefor. For all intents and purposes, petitioner seeks a
reevaluation of the evidentiary basis for his conviction. We are being asked to
reexamine the weight and sufficiency of the evidence in this case, not on its own, but
in light of the new DNA evidence that the petitioner seeks to present to this Court.
This relief is outside the scope of a habeas corpus petition. The petition for habeas
corpus must, therefore, fail.
Coupled with the prayer for the issuance of a writ of habeas corpus, petitioner seeks
a new trial to re-litigate the issue of the paternity of the child Leahlyn Mendoza.
It must be stressed that the issue of Leahlyn Mendoza's paternity is not central to the
issue of petitioner's guilt or innocence. The rape of the victim Aileen Mendoza is an
entirely different question, separate and distinct from the question of the father of her
child. Recently, in the case of People v. Alberio,51 we ruled that the fact or not of the
victim's pregnancy and resultant childbirth are irrelevant in determining whether or not
she was raped. Pregnancy is not an essential element of the crime of rape. Whether
the child which the victim bore was fathered by the purported rapist, or by some
unknown individual, is of no moment in determining an individual's guilt.
In the instant case, however, we note that the grant of child support to Leahlyn
Mendoza indicates that our Decision was based, at least in small measure, on the
victim's claim that the petitioner fathered her child. This claim was given credence by
the trial court, and, as a finding of fact, was affirmed by this Court on automatic
review.
The fact of the child's paternity is now in issue, centrally relevant to the civil award of
child support. It is only tangentially related to the issue of petitioner's guilt. However, if
it can be conclusively determined that the petitioner did not sire Leahlyn Mendoza,
this may cast the shadow of reasonable doubt, and allow the acquittal of the petitioner
on this basis.
Be that as it may, it appears that the petitioner once more relies upon erroneous legal
grounds in resorting to the remedy of a motion for new trial. A motion for new trial,
under the Revised Rules of Criminal Procedure, is available only for a limited period
of time, and for very limited grounds. Under Section 1, Rule 121, of the Revised Rules
of Criminal Procedure, a motion for new trial may be filed at any time before a
judgment of conviction becomes final, that is, within fifteen (15) days from its
promulgation or notice. Upon finality of the judgment, therefore, a motion for new trial
is no longer an available remedy. Section 2 of Rule 121 enumerates the grounds for a
new trial:
SEC. 2. Grounds for a new trial.—The court shall grant a new trial on any of the
following grounds:
(a) That errors of law or irregularities prejudicial to the substantial rights of the
accused have been committed during the trial;
(b) That new and material evidence has been discovered which the accused could
not with reasonable diligence have discovered and produced at the trial and which if
introduced and admitted would probably change the judgment.
26
In the case at bar, petitioner anchors his plea on the basis of purportedly "newly-
discovered evidence", i.e., the DNA test subsequently conducted, allegedly excluding
petitioner from the child purportedly fathered as a result of the rape.
The decision sought to be reviewed in this petition for the issuance of a writ of habeas
corpus has long attained finality, and entry of judgment was made as far back as
January 16, 2002. Moreover, upon an examination of the evidence presented by the
petitioner, we do not find that the DNA evidence falls within the statutory or
jurisprudential definition of "newly- discovered evidence".
A motion for new trial based on newly-discovered evidence may be granted only if the
following requisites are met: (a) that the evidence was discovered after trial; (b) that
said evidence could not have been discovered and produced at the trial even with the
exercise of reasonable diligence; (c) that it is material, not merely cumulative,
corroborative or impeaching; and (d) that the evidence is of such weight that that, if
admitted, it would probably change the judgment.52 It is essential that the offering
party exercised reasonable diligence in seeking to locate the evidence before or
during trial but nonetheless failed to secure it.53
In this instance, although the DNA evidence was undoubtedly discovered after the
trial, we nonetheless find that it does not meet the criteria for "newly-discovered
evidence" that would merit a new trial. Such evidence disproving paternity could have
been discovered and produced at trial with the exercise of reasonable diligence.
Petitioner-relator's claim that he was "unaware" of the existence of DNA testing until
the trial was concluded carries no weight with this Court. Lack of knowledge of the
existence of DNA testing speaks of negligence, either on the part of petitioner, or on
the part of petitioner's counsel. In either instance, however, this negligence is binding
upon petitioner. It is a settled rule that a party cannot blame his counsel for
negligence when he himself was guilty of neglect.54 A client is bound by the acts of his
counsel, including the latter's mistakes and negligence.55 It is likewise settled that
relief will not be granted to a party who seeks to be relieved from the effects of the
judgment when the loss of the remedy at law was due to his own negligence, or to a
mistaken mode of procedure.56
Even with all of the compelling and persuasive scientific evidence presented by
petitioner and his counsel, we are not convinced that Reynaldo de Villa is entitled to
outright acquittal. As correctly pointed out by the Solicitor General, even if it is
conclusively proven that Reynaldo de Villa is not the father of Leahlyn Mendoza, his
conviction could, in theory, still stand, with Aileen Mendoza's testimony and positive
identification as its bases.57 The Solicitor General reiterates, and correctly so, that the
pregnancy of the victim has never been an element of the crime of rape.58 Therefore,
the DNA evidence has failed to conclusively prove to this Court that Reynaldo de Villa
should be discharged. Although petitioner claims that conviction was based solely on
a finding of paternity of the child Leahlyn, this is not the case. Our conviction was
based on the clear and convincing testimonial evidence of the victim, which, given
credence by the trial court, was affirmed on appeal.
WHEREFORE, in view of the foregoing, the instant petition for habeas corpus and
new trial is DISMISSED for lack of merit.
No costs.
SO ORDERED.
Puno, Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Carpio-Morales, Azcuna,
Tinga, Chico-Nazario, and Garcia, JJ.,  concur.
Davide, Jr., C.J., and Panganiban, J., joins Carpio and Callejo, Sr., JJ., in their
separate opinion.
Carpio, J., please see separate concurring opinion.
Callejo, Sr., J., please see separate opinion.
Corona, J., on leave.
SEPARATE CONCURRING OPINION
CARPIO, J.:
I concur with the ponencia. The DNA evidence presented by petitioner-relator is not
material and relevant to the crime of rape. Even assuming petitioner is not the father
of the child that was conceived within the period of the rape, such fact does not prove
that petitioner could not have committed the crime. The remedies of habeas corpus
and new trial are thus unavailing in this case.
However, this case should not close the door to a convicted felon who after final
judgment acquires DNA results exonerating him of the crime for which he was
convicted. Legal relief is still available, for instance, to a felon convicted by final
judgment of rape who subsequently gains access to DNA results showing that the
semen in the victim's vagina does not match that of the convicted felon.
While final judgments enjoy the presumption of correctness, the confining and
traditional legal procedures must respond to the revolutionary way that DNA results
have been proving the innocence of convicts. American jurisprudence has shown the
way in this regard.
Before the enactment of statutes in some states providing for post-conviction DNA
testing, American courts had no precedents to work on to justify post-conviction DNA
testing and the reversal of final judgments of conviction when the DNA results turned
out to be exculpatory. Before the passage of the DNA testing statutes, it was unclear
under what right and procedure a convict was entitled to post-conviction DNA testing.
Even in the absence of statutes, American courts allowed post-conviction DNA testing
by requiring the convict to apply for such testing before the verdict could be
vacated.1 The application enables the courts to determine the basis for the application
and to set the standards in case the request is granted. Once the DNA result confirms
the innocence of the convict, American courts conduct a motion in limine hearing on
27
admissibility or order a new trial.2 The prosecution usually refuses to re-try the case
and the convict is released.
Under American jurisprudence, post-conviction DNA testing is availed through a
petition for habeas corpus and motion for new trial. These conventional modes of
relief, however, have built-in restrictions that pose problems to the granting of post-
conviction DNA testing.
In habeas corpus cases, relief could not be had unless a constitutional violation was
committed during the convict's trial. In a motion for new trial, the convict must show
that the DNA test is a newly discovered evidence and must not be time-barred to
warrant a new trial. Despite these legal obstacles, American courts granted, albeit
restrictively, the request for post-conviction DNA testing on a case-by-case basis. The
approach to the legal issues varied from jurisdiction to jurisdiction.
In Summerville v. Warden State Prison3 the Supreme Court of Connecticut ruled that
when evidence is so strong that innocence is highly likely and that evidence alone
establishes innocence, that in itself is already a basis fro habeas corpus review of
convictions and imprisonment. Thus, habeas corpus warranted the granting of a new
trial based on the petitioner's claim of actual innocence. In People v. Callace,4 the
New York court considered post-conviction DNA testing as newly discovered
evidence because the type of DNA analysis available at the post-conviction stage
was not available at the time of the trial. In State v. Thomas,5 fundamental fairness
allowed the convict to post-conviction DNA testing even when the request was
already stale.
Habeas corpus review and new trial proved to be narrow remedies as American
courts still adhere to the strict requirements of these two models of relief.
Nonetheless, post-conviction DNA testing has been granted on other grounds. When
the application of DNA testing has strong indications that the result could potentially
exonerate the convict, American courts recognized the convict's right to exculpatory
evidence. In Dabbs v. Vergari,6 citing Brady v. Maryland,7 the court categorically
upheld the convict's constitutional right to exculpatory evidence despite the absence
of a law providing a right to post-conviction discovery. DNA results exonerated
Charles Dabbs and his conviction was eventually vacated.8 On other cases,9 the
exculpatory potential of DNA evidence compelled the American courts, in the interest
of justice, to allow access to post-conviction DNA testing.
The rectification of a wrong is the underlying reason for the allowance of post-
conviction DNA testing and the eventual reversal of the verdict based on exclusionary
DNA result. Even the most stringent of rules have to give way upon a showing that
there is a strong probability that DNA result could prove the convict's actual
innocence. For ultimately, it is the primary duty of the court to prevent the miscarriage
of justice.
Every person has a right to avail of a new technology that irrefutably proves his
innocence despite a prior final conviction, provided the new technology was not
available during his trial. This right is part of a person's constitutional right to due
process of law. A person convicted by final judgment does not lose his constitutional
right to due process, and he may invoke it whenever there is a compelling and valid
ground to do so.

The 1987 Constitution expressly empowers the Court to "[p]romulgate rules

concerning the protection and enhancement of constitutional rights."10 Even in the
absence of a law allowing post-conviction DNA testing, the Court under its
constitutional mandate may order a new trial if the post-conviction DNA testing will
establish that the convicted felon could not have possibly committed the crime. This is
the case when the post-conviction DNA testing shows that the semen in the victim's
vagina does not match that of the convicted felon.

A new trial on the ground of post-conviction DNA testing is different from a new trial
under Rule 121,11 which is available only before final judgment. Unlike a new trial
under Rule 121, a new trial for post-conviction DNA testing does not vacate the
judgment of conviction, which stands until recalled by the court as a result of the new
trial. A new trial after final conviction may be ordered only on the sole ground that
DNA testing will establish that the convicted felon could not have committed the
crime. Moreover, DNA testing must not have been available or possible during the
original trial.

Thus, I submit that a felon convicted by final judgment who could establish through
DNA testing that he could not have committed the crime is not without remedy to
prove his innocence and regain his liberty.

28
 7- G.R. No. 167193             April 19, 2006
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS ENGR. ASHRAF
KUNTING, Petitioner.
DECISION
AZCUNA, J.:
This is a petition for the issuance of a writ of habeas corpus directing Police Chief
Superintendent Ismael R. Rafanan and General Robert Delfin,1 Philippine National
Police (PNP) Intelligence Chief, to bring petitioner Ashraf Kunting before this Court
and show cause why he is illegally detained.
The antecedents are as follows:
On October 19, 2001, petitioner Kunting was arrested in Malaysia for violation of the
Malaysian Internal Security Act. On June 12, 2003, the Royal Malaysian Police in
Kuala Lumpur, Malaysia, turned over Kunting to the PNP-IG and Task Force
Salinglahi pursuant to warrants for his arrest issued by the Regional Trial Court (RTC)
of Isabela City, Basilan, Branch 2, Ninth Judicial Region. Kunting was charged with
four counts of Kidnapping for Ransom and Serious Illegal Detention with the RTC
under separate Amended Informations, docketed as Criminal Case Nos. 3674-1187,
3537-1129, 3608-1164, and 3611-1165.
Petitioner was immediately flown to the Philippines and brought to the PNP-IG at
Camp Crame for booking and custodial investigation.
In a letter dated July 3, 2003, Atty. Guillermo G. Danipog, Jr., Police Superintendent
and Chief of the Legal Affairs Division, PNP-IG, informed the Branch Clerk of Court of
the RTC that Kunting was already in the custody of the PNP-IG. Atty. Danipog
requested for Kunting’s temporary detention at the PNP-IG, Camp Crame, Quezon
City due to the high security risks involved and prayed for the issuance of a
corresponding commitment order.
In a letter dated July 9, 2003, Emilio F. Enriquez, Acting Clerk of Court of the RTC,
replied to the request of Atty. Danipog, thus:
xxx
The undersigned referred the matter to Hon. Danilo M. Bucoy, Presiding Judge of this
Court, who issued the Alias Warrant of Arrest in the herein mentioned case (Criminal
Case No. 3674-1187) and per his instruction, accused As[h]raf Kunting y Barreto
[may be] temporarily detained thereat by virtue of the Alias Warrant of Arrest issued in
this case, however considering that the accused is a high security risk, he should be
brought to Isabela, Basilan as soon as the necessary security escort can be provided
for his transfer, where the proper commitment order can be issued as the herein
mentioned case is about to be submitted by the prosecution.
Thank you ever so much for your usual cooperation extended to the Court.2
29
On September 15, 2003, the RTC issued an Order directing the Police
Superintendent and Chief, Legal Affairs Division, PNP-IG, to immediately turn over
Kunting to the trial court since Kunting filed an Urgent Motion for Reinvestigation.
On November 5, 2003, PNP-IG Director Arturo C. Lomibao wrote a letter to Chief
State Prosecutor Jovencito R. Zuño, Department of Justice (DOJ), requesting for
representation and a motion to be filed for the transfer of the venue of the trial from
Isabela City, Basilan to Pasig City, for the following reasons: (1) Several intelligence
reports have been received by the PNP-IG stating that utmost effort will be exerted by
the Abu Sayyaf Group (ASG) to recover the custody of Kunting from the PNP
considering his importance to the ASG; and (2) there is a big possibility that Kunting
may be recovered by the ASG if he will be detained in Basilan due to inadequate
security facility in the municipal jail and its proximity to the area of operation of the
ASG.
On August 13, 2004, the RTC rendered a decision against petitioner’s co-accused in
the consolidated Criminal Case Nos. 3608-1164, 3537-1129, 3674-1187, and 3611-
1165, finding 17 of the accused, who were tried, guilty of the crime/s charged.
On February 11, 2005, the RTC issued an Order denying Kunting’s Motion to Set
Case for Preliminary Investigation since the PNP-IG has not turned over Kunting. The
trial court reiterated its Order dated September 15, 2003, directing the Police
Superintendent and Chief, Legal Affairs Division, PNP-IG, to turn over Kunting to the
court.1avvphil.net
In a letter dated February 22, 2005, Police Chief Superintendent Ismael R. Rafanan
reiterated the request to Chief State Prosecutor Jovencito R. Zuño to facilitate the
transfer of the venue of the trial of Kunting’s case, citing the same grounds in the
previous letter. He added that if Kunting had been transferred to Isabela City, Basilan,
he could have been one of the escapees in a jail break that occurred on April 10,
2004 as suspected ASG members were able to go scot-free.
On March 15, 2005, Police Inspector Amado L. Barbasa, Jr., OIC, Legal Affairs
Division, PNP-IG, filed with the RTC a Motion to Defer Implementation of the Order
dated February 11, 2005, citing, among other grounds, the existence of a pending
motion for the transfer of the venue of the trial of Criminal Case No. 3537-1129
against Kunting, which was allegedly filed by the DOJ before this Court. Police
Inspector Barbasa prayed that the Order of the RTC dated February 11, 2005,
directing the turnover of Kunting to the court, be suspended until the motion for the
transfer of venue is resolved.
On March 14, 2005, Kunting, by counsel, filed this petition for the issuance of a writ
of habeas corpus. Kunting stated that he has been restrained of his liberty since June
12, 2003 by the PNP-IG led by Police Chief Superintendent Ismael Rafanan and
assisted by PNP Intelligence Chief, General Robert Delfin. He alleged that he was
never informed of the charges filed against him until he requested his family to
research in Zamboanga City. It was discovered in the RTC of Isabela City, Basilan
that his name appeared in the list of accused who allegedly participated in the
kidnapping incident which occurred on June 2, 2001 in Lamitan, Basilan.
Kunting asserted that he never participated in the kidnapping incident, so he promptly
filed an Urgent Motion for Reinvestigation on September 8, 2003. He was aware that
the PNP-IG requested Chief State Prosecutor Jovencito R. Zuño for representation to
file a motion with this Court for the transfer of venue of his case from Isabela City,
Basilan to Pasig City. Having no further information on the status of his case, he filed
a Motion to Set Case for Preliminary Investigation on January 26, 2005. He stated
that since no action was taken by the trial court or the DOJ, he filed this petition to put
an end to his illegal detention classified in the records as "for safekeeping purposes
only."
The main issue is whether the petition for habeas corpus can prosper.
Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus extends to
"all case of illegal confinement or detention by which any person is deprived of his
liberty, or by which the rightful custody of any person is withheld from the person
entitled thereto." The remedy of habeas corpus has one objective: to inquire into the
cause of detention of a person,3 and if found illegal, the court orders the release of the
detainee.4 If, however, the detention is proven lawful, then the habeas
corpus proceedings terminate.5
Kunting to the court. TThe trial court has been waiting for two years for the PNP-IG to
turn over the person of Kunting for the trial of his case. The PNP-IG has delayed the
turn over because it is waiting for the DOJ to request for the transfer of venue of the
trial of the case from Isabela City, Basilan to Pasig City. In the absence of evidence
that the DOJ has indeed filed a motion for the transfer of venue, In its Comment, the
Office of the Solicitor General stated that the PNP-IG is presently awaiting the
resolution of the Motion for Transfer of Venue it requested from the DOJ. In this
regard, t the Police Chief Superintendent is, therefore, directed to take positive steps
towards action on said motion.comply with the Order of the trial court, dated February
11, 2005, to turn over the body of petitioner Kunting to the trial court..
WHEREFORE, the instant petition for habeas corpus is hereby DISMISSED.
No costs.
SO ORDERED.

Section 4, Rule 102 of the Rules of Court provides when the writ is not allowed:

SEC. 4. When writ not allowed or discharge authorized.—If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a court of record,
and that the court or judge had jurisdiction to issue the process, render the judgment,
or make the order, the writ shall not be allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged by reason of any informality or
defect in the process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an offense in
the Philippines, or of a person suffering imprisonment under lawful judgment.6

In this case, Kunting’s detention by the PNP-IG was under process issued by the
RTC. He was arrested by the PNP by virtue of the alias order of arrest issued by
Judge Danilo M. Bucoy, RTC, Branch 2, Isabela City, Basilan. His temporary
detention at PNP-IG, Camp Crame, Quezon City, was thus authorized by the trial
court.1avvphil.net

Moreover, Kunting was charged with four counts of Kidnapping for Ransom and
Serious Illegal Detention in Criminal Case Nos. 3608-1164, 3537-1129, 3674-1187,
and 3611-1165. In accordance with the last sentence of Section 4 above, the writ
cannot be issued and Kunting cannot be discharged since he has been charged with
a criminal offense. Bernarte v. Court of Appeals7 holds that "once the person detained
is duly charged in court, he may no longer question his detention by a petition for the
issuance of a writ of habeas corpus."

Nevertheless, this Court notes that the RTC in its Order dated February 11, 2005
reiterated its Order dated September 15, 2003, directing the Police Superintendent
and Chief, Legal Affairs Division, PNP-IG, Camp Crame, Quezon City, to turn over

30
 8- G.R. No. 170924             July 4, 2007
In the matter of the Petition for Habeas Corpus of CEZARI GONZALES and
JULIUS MESA
ROBERTO RAFAEL PULIDO, petitioner,
vs.
Gen. EFREN ABU, as Chief of Staff of the Armed Forces of the Philippines and
all persons acting in his stead and under his authority, and GEN. ERNESTO DE
LEON, in his capacity as the Flag Officer in Command of the Philippine Navy,
and all persons acting in his stead and under his authority, respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review under Rule 45 of the Rules of Court assailing the
Decision1 of the Court of Appeals in CA-G.R. SP No. 90546 which dismissed the
Petition for Habeas Corpus filed by petitioner Roberto Rafael Pulido (Pulido) in behalf
of Cezari Gonzales and Julius Mesa, and imposed on petitioner the penalty of
censure, and its Resolution2 dated 6 January 2006 denying his motion for
reconsideration.
The facts are not disputed.
At around one o’clock in the morning of 27 July 2003, three hundred twenty-one (321)
junior officers and enlisted personnel of the Armed Forces of the Philippines (AFP)
entered and took over the premises of the Oakwood Premiere Luxury Apartments
(Oakwood) located at the Glorietta Complex, Ayala Avenue, Makati City. They
disarmed the security guards of said establishment and planted explosives in its
immediate surroundings.
The soldiers publicly announced that they went to Oakwood to air their grievances
against the administration of President Gloria Macapagal Arroyo (President Arroyo).
They declared their withdrawal of support from the Commander-in-Chief of the AFP –
President Arroyo – and demanded her resignation and that of the members of her
cabinet and top officers of both the AFP and the Philippine National Police (PNP).
At about one o’clock in the afternoon, President Arroyo issued Proclamation No. 427
declaring the country to be under a "state of rebellion." Consequently, she issued
General Order No. 4 directing the AFP and the PNP to carry out all reasonable
measures, giving due regard to constitutional rights, to suppress and quell the
"rebellion."
After a series of negotiations between the soldiers and the government negotiators,
the former agreed to return to barracks, thus ending the occupation of Oakwood.
Among those involved in the occupation of Oakwood were Cezari Gonzales and
Julius Mesa, both enlisted personnel of the Philippine Navy. It is in their behalf that
the Petition for Habeas Corpus was filed before the Court of Appeals.
31
On 2 August 2003, then AFP Chief of Staff Narciso L. Abaya issued a directive3 to all
Major Service Commanders and to the Chief of the Intelligence Service of the Armed
Forces of the Philippines (ISAFP) regarding the Custody of Military Personnel
Involved in the 27 July 2003 Mutiny. On the strength thereof, Gonzales and Mesa
were taken into custody by their Service Commander.
Gonzales and Mesa were not charged before a court martial with violation of the
Articles of War. They were, however, among the soldiers charged before Branch 61
of the Regional Trial Court (RTC) of Makati City, with the crime of Coup D’etat as
defined under Article 134-A of the Revised Penal Code. Said case entitled, "People v.
Capt. Milo D. Maestrecampo, et al." was docketed as Criminal Case No. 03-2784. On
18 November 2003, a Commitment Order was issued by the RTC committing custody
of the persons of Gonzales and Mesa to the Commanding Officer of Fort San Felipe
Naval Base, Cavite City.4
On 8 December 2003, Gonzales and Mesa were discharged5 from military service.
On 16 December 2003, per order of the RTC, Criminal Case No. 03-2784 was
consolidated with Criminal Case No. 03-2678 entitled, "People v. Ramon B.
Cardenas" pending before Branch 148 of the RTC of Makati City, on the ground that
the cases are founded on the same facts and/or formed part of a series of offenses of
similar character.6
In a Manifestation and Motion dated 3 March 2004, Commodore Normando Naval,
Commander of Naval Base Cavite, asked the Makati RTC, Branch 148, to relieve him
of his duty as custodian of Gonzales and Mesa and that the latter be transferred to
the Makati City Jail.7 In an Order dated 29 April 2004, the RTC relieved him of his
duty but ordered the transfer of Gonzales and Mesa from the Naval Base Cavite in
Sangley Point, Cavite City, to the Philippine Marine Brigade Headquarters, Philippine
Marine, Fort Bonifacio, Taguig, Metro Manila, under the custody of the Commander of
the Marine Brigade of the Philippine Marines, Fort Bonifacio, Taguig, Metro Manila.8
In an Order dated 8 July 2004, the RTC resolved the petitions for bail filed by the
accused-soldiers. It admitted Gonzales and Mesa, and twenty-five other co-accused
to bail pegging the amount thereof at P100,000.00 each.9
On 19 July 2004, both Gonzales and Mesa posted bail.10 On 20 July 2004, the RTC
issued orders directing the Commanding Officer of Philippine Marine Corps, Fort
Bonifacio, Makati City, to release Gonzales and Mesa from his custody.11 Despite
said orders and their service to the marines, Gonzales and Mesa were not released.
On 21 July 2004, the People of the Philippines moved for partial reconsideration12 of
the order granting bail. Prior to the resolution of said motion, Jovencito R. Zuño, Chief
State Prosecutor, advised Brig. Gen. Manuel F. Llena, Judge Advocate General, to
defer action on the provisional release of Gonzales and Mesa "until the Motion for
Reconsideration shall have been resolved and attained finality."13 On 26 October
2004, the RTC denied the motion for partial reconsideration.
With the denial of the Motion for Partial Reconsideration, the People filed with the
Court of Appeals on 4 February 2005 a special civil action for certiorari under Rule 65
of the Rules of Court with urgent prayer for Temporary Restraining Order (TRO)
and/or Writ of Preliminary Injunction, asking for the nullification and setting aside of
the orders dated 8 July 2004 and 26 October 2004 of Judge Oscar B. Pimentel for
having been issued without jurisdiction and/or grave abuse of discretion amounting to
lack or excess of jurisdiction. The Petition for Certiorari was raffled to the Seventh
Division and was docketed as CA-G.R. SP No. 88440 entitled, "People of the
Philippines v. Hon. Oscar B. Pimentel, Presiding Judge of the Regional Trial Court of
Makati City, Branch 148." The Court of Appeals (Seventh Division) did not issue a
TRO and/or preliminary injunction.
Since Gonzales and Mesa continued to be in detention, a Petition for Habeas
Corpus14 was filed by petitioner Pulido on their behalf on 22 July 2005. The case was
docketed as CA-G.R. SP No. 90546 and raffled to the Third Division. In support
thereof, it was argued that since Gonzales and Mesa are no longer subject to Military
Law as they had been discharged from the service on 8 December 2003, and since
they are not charged before a court martial, the military authorities have no
jurisdiction to detain them, and there is no legal ground to detain them further
because a court order for their release had already been issued.
On 10 August 2005, the Court of Appeals (3rd Division) issued a Writ of Habeas
Corpus directing respondents Gen. Efren Abu, Chief of Staff of the Armed Forces of
the Philippines, and all persons acting in his stead and under his authority, and Gen.
Ernesto de Leon, Flag Officer in Command of the Philippine Navy, and all persons
acting in his stead and under his authority, to produce the bodies of Gonzales and
Mesa before the Court and to appear and show the cause and validity of their
detention.15
16
On 18 August 2005, a return of the Writ of Habeas Corpus was made.  Respondents
prayed that the Petition for Habeas Corpus be dismissed primarily on two grounds:
(1) the continued detention of Gonzales and Mesa is justified because of the
pendency of the Petition for Certiorari questioning the order dated 8 July 2004 of the
RTC granting bail to Gonzales and Mesa before the 7th Division of the Court of
Appeals, docketed as CA-G.R. SP No. 88440; and (2) petitioner is guilty of forum
shopping because of his failure to state in the petition that the order granting bail has
been elevated to the Court of Appeals and pending before its 7th Division.
On 9 September 2005, the Court of Appeals (7th Division) rendered its decision in CA-
G.R. SP No. 88440 dismissing the petition that questioned the propriety of the
granting of bail to Gonzales, Mesa, and twenty-five of their co-accused.17
On 12 September 2005, the Court of Appeals (3rd Division) dismissed the Petition
for Habeas Corpus for violation of Section 5, Rule 7 of the Rules of Court. It
ratiocinated:
A reading of the parties’ submissions reveals a threshold issue – the charge of forum
shopping and the related falsity in the certification supporting the petition. We must
initially resolve these issues because a finding that the petitioner violated Section 5,
32
Rule 7 of the Rules of Court can lead to the outright dismissal of the present petition.
xxx
xxxx
The records show that the present petition contained the following certificate of non-
forum shopping:
"I, ROBERTO RAFAEL PULIDO, with office address at Unit 1601, 16th Floor 139
Corporate Center Valero Street, Makati City, after having been duly sworn in
accordance with law, do hereby state that:
1. I am the petitioner in the above-captioned case;
2. I have read the Petition and caused it to be prepared. All the contents thereof are
true to my own personal knowledge and the record;
3. I have not heretofore commenced any action or proceeding involving the same
issues, in the Supreme Court, the Court of Appeals, or any other tribunal or agency
and to the best of my knowledge, no action or proceeding is pending in the Supreme
Court, the Court of Appeals, or any other tribunal or agency; except for the related
cases of "Eugene Gonzales et al. vs. Gen. Narciso Abaya, et al., G.R. No. 164007
and "Humabono Adaza et al., vs. Gen. Pedro Cabuay et al., G.R. No. 160792, both
awaiting the resolution of the Supreme Court.
5. (sic, should be 4) If I should learn of any similar action or proceeding filed or is
pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency, I
undertake to report such fact within five (5) days therefrom to this Court.
The present petition and its accompanying certification likewise show that the
petitioner never mentioned the pendency before the Seventh Division of this Court of
the certiorari case, SP 88440, for the annulment of the lower court’s order granting
the soldiers-accused’s petition for bail, when this same lower court order is cited as
basis for the immediate release of Gonzales and Mesa in the present petition. All that
the certification mentioned were the related cases pending before the Honorable
Supreme Court. Neither did the petitioner comply with his undertaking under his
certification to inform this Court within five (5) days of the pendency of any similar
action or proceeding filed or is pending in the Supreme Court, the Court of Appeals,
or any other tribunal or agency, as in fact the certiorari case was already pending with
this Court when the present petition was filed. The certiorari case was only brought to
our attention after the respondents filed their Return of the Writ.
To be sure, the petitioner, who is also the counsel for the accused Gonzales and
Mesa in the criminal case before Branch 148 RTC Makati City and who represents
Gonzales and Mesa as private respondents in CA-G.R. SP No. 88440, cannot feign
ignorance of the pendency of the certiorari case. Why he deliberately kept the
pendency of the certiorari case hidden from us, has not been sufficiently explained.
We have no doubt, however, that his deliberate act of withholding information on a
material fact directly required to be disclosed by the Rules of Court cannot but have
legal consequences.
The primary basis of the present petition is the bail granted to and posted by
Gonzales and Mesa. This is very clear from the petitioner’s argument that "The
continued detention of the enlisted personnel constitutes violation of the lawful orders
of the civilian court." He cited in support of this argument the grant and the posting of
the bail, and the issuance of the release orders by the lower court. He did not
disclose, however, what subsequently happened to the order granting bail. He
deliberately omitted in his narration the fact that the People moved to reconsider this
order. Thus, he gave the impression that the order granting bail immediately became
enforceable and that Gonzales’ and Mesa’s continued detention is illegal because
their constitutional rights to bail, which have received judicial imprimatur, were
continuously being violated by the respondents.
The petitioner next omitted the fact that after the denial of its motion for
reconsideration of the order granting bail, the People filed the certiorari case before
this Court, seeking to annul the lower court’s order. While we are aware of the rule
that – the mere pendency of a petition for certiorari will not prevent the
implementation of the assailed order unless the court where the petition was filed
issues either a temporary restraining order or a writ or preliminary injunction – the
filing of a petition for habeas corpus while the order granting bail is being questioned
on a petition for certiorari raises issues beyond the immediate execution of the lower
court’s bail and release orders. They raise questions on the propriety of filing the
habeas corpus petition to seek the release of persons under detention, at the same
time that a petition regarding their continued detention and release are pending.
Apparently, the petitioner wanted to avoid these questions, prompting him to actively
conceal the subsequent motion for reconsideration of the bail order and the petition
for certiorari directly questioning this same order. In short, the petitioner
conveniently omitted in his narration of facts the material factual antecedents
detrimental to his cause; he chose to narrate only the factual antecedents
favorable to his cause.
That the present petition has direct and intimate links with the certiorari case is
beyond doubt as they involve two sides of the same coin. The certiorari case filed by
the People seeks to prevent the release of Gonzales and Mesa by annulling the lower
court’s grant of bail. The present petition, on the other hand, was filed in behalf of
Gonzales and Mesa to secure their immediate release because the order granting
bail is already executory. In effect, the petitioner seeks to implement through a
petition for habeas corpus the provisional release from detention that the lower court
has ordered. The question this immediately raises is: can this be done through a
petition for habeas corpus when the validity of the grant of bail and the release under
bail are live questions before another Division of this Court?
We believe and so hold that his cannot and should not be done as this is precisely the
reason why the rule against forum shopping has been put in place. The remedies
sought being two sides of the same coin (i.e., the release of Gonzales and Mesa),
they cannot be secured through separately-filed cases where issues of jurisdiction
may arise and whose rulings may conflict with one another. To be sure, we clearly
heard the petitioner say that there can be no conflict because the effectiveness of our
ruling in this petition will depend on the nature and tenor of the ruling in the certiorari
33
case; there is no basis for a release on habeas corpus if this same Court will rule in
the certiorari case that the grant of bail is improper. For this very same reason, we
should not entertain the present petition as the matter before us is already before
another co-equal body whose ruling will be finally determinative of the issue of
Gonzales’ and Mesa’s release. The Decision of the Seventh Division of this Court,
heretofore footnoted, ordering the release on bail of Gonzales and Mesa drives home
this point.
To be strictly accurate, the issues of detention and immediate release that are now
before the two Divisions of this Court are likewise properly within the jurisdiction of the
lower court who has original jurisdiction over the criminal case and who has issued
the order granting bail in the exercise of this jurisdiction. If indeed there is a question
relating to the immediate release of Gonzales and Mesa pursuant to the lower court’s
order pending the determination of the certiorari issues, such question should be
brought before the lower court as the tribunal that has ordered the release, or before
the Seventh Division of this Court in the exercise of its supervisory powers over the
lower court. The Decision recently promulgated by the Seventh Division of this Court
ordering the release on bail of the soldiers-accused effectively demonstrates this
point.
The inter-relationships among the criminal case below, the certiorari case and the
present petition, as well as among the courts where these cases are pending, show
beyond doubt that the petitioner committed forum shopping in the strict sense of that
term i.e., the attempt by a party, after an adverse opinion in one forum, to seek a
favorable opinion in another forum other that through an appeal or certiorari. The
"adverse" aspect for the petitioner, while not an opinion, is no less adverse as he has
failed to secure the release of Gonzales and Mesa before the lower court and before
this Court in the certiorari case (as of the time of the filing of the present petition);
thus, he came to us in the present petition. That the Seventh Division of this Court
has ordered the release on bail of the soldiers-accused, thus rendering the present
petition moot and academic after the finality of the 7th Division Decision, plainly
demonstrates this legal reality.18
The Court further imposed on petitioner the penalty of censure for the aforesaid
violation. The dispositive portion of the decision reads:
WHEREFORE, premises considered, we hereby DISMISS the petition for violation of
and pursuant to Section 5 Rule 7 of the Rules of Court. The petitioner, Atty. Roberto
Rafael Pulido, is hereby CENSURED for these violations. Let a copy of this Decision
be furnished the Honorable Supreme Court, to be attached to the petitioner’s record
as a member of the Bar, as a RECORD OF CENSURE that may be referred to and
considered in any future similar act.19
On 5 September 2005, petitioner filed a Motion for Reconsideration20 which the Court
of Appeals (Special Former Third Division) denied in its resolution21 dated 6 January
2006.
Petitioner is now before us raising the following issues:
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
DISMISSING THE PETITION FOR HABEAS CORPUS ON THE GROUND OF
FORUM SHOPPING.
A. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT
CONSIDERING THE NATURE OF THE ACTION AND LIMITED ITSELF TO THE
ISSUE OF FORUM SHOPPING.
B. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
IMPOSING UPON PETITIONER THE PENALTY OF CENSURE.
C. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT
PASSING UPON THE EXISTENCE OR ABSENCE OF VALID GROUNDS TO
DETAIN JULIUS MESA AND CEZARI GONZALES.
Petitioner prays that the assailed decision and resolution of the Court of Appeals be
reversed and set aside, and an order be issued ordering respondents to immediately
release Gonzales and Mesa. He further prays that the censure against him be also
reversed and set aside.
Before respondents could comment on the petition, petitioner filed, with leave of
court, a Motion to Withdraw the Prayer for the Immediate Release of Julius Mesa and
Cezari Gonzales.22 Petitioner informed the Court that the Commanding General of the
Philippine Marines had ordered the release of Gonzales and Mesa and surrendered
their persons to the RTC of Makati City, Branch 148. Thus, Mesa and Gonzales are
now enjoying temporary liberty by virtue of the release orders dated 20 July 2004
issued by the RTC. Petitioner asks that the prayer for the immediate release of
Gonzales and Mesa be dismissed but asks that the other prayers in the petition be
granted.
In its comment, the Solicitor General stressed that the habeas corpus petition has
been rendered moot and academic by reason of the release of Mesa and Gonzales
from detention and, in the absence of an actual case or controversy, it is impractical
to consider and resolve issues involving the validity or legality of their detention,
including the alleged refusal of the Court of Appeals to resolve said issues.
When the release of the persons in whose behalf the application for a Writ of Habeas
Corpus was filed is effected, the Petition for the issuance of the writ becomes moot
and academic.23 With the release of both Mesa and Gonzales, the Petition for Habeas
Corpus has, indeed, been rendered moot. Courts of justice constituted to pass upon
substantial rights will not consider questions where no actual interests are involved.
Thus, the well-settled rule that courts will not determine a moot question. Where the
issues have become moot and academic, there ceases to be any justiciable
controversy, thus rendering the resolution of the same of no practical value.24 This
Court will therefore abstain from expressing its opinion in a case where no legal relief
is needed or called for.25
The only remaining issues to be resolved are: (1) Is petitioner guilty of forum
shopping? (2) Should petitioner be penalized when he failed to inform the 3rd Division
34
of the Court of Appeals of the pendency of the Petition for Certiorari filed by
respondents before the 7th Division of the same court which asked for the annulment
of the RTC’s order granting Gonzales and Mesa’s petition for bail?
To support his contention that there was no forum shopping, petitioner asserts that
the issues in the petitions for certiorari and habeas corpus are not similar/identical. As
to his non-disclosure of respondents’ filing of the motion for reconsideration and the
Petition for Certiorari, petitioner claims that the same has no legal relevance to the
Petition for Habeas Corpus because at the time he filed said petition, the order
granting bail subsisted and has not been reversed or modified; and no TRO or
injunction has been issued that would affect the efficacy or validity of the order
granting the bail and the order directing the release of Mesa and Gonzales.
For filing a Petition for Habeas Corpus despite the pendency of the Petition
for Certiorari that questioned the validity of the order granting bail, which order is
precisely the very basis of the Petition for Habeas Corpus, petitioner is guilty of forum
shopping.
It has been held that forum shopping is the act of a party against whom an adverse
judgment has been rendered in one forum, of seeking another (and possibly
favorable) opinion in another forum (other than by appeal or the special civil action
of certiorari), or the institution of two or more actions or proceedings grounded on the
same cause on the supposition that one or the other court would make a favorable
disposition. Thus, it has been held that there is forum shopping — (1) when, as a
result of an adverse decision in one forum, a party seeks a favorable decision (other
than by appeal or certiorari) in another; OR (2) if, after he has filed a petition before
the Supreme Court, a party files a motion before the Court of Appeals, since in such a
case, he deliberately splits appeals in the hope that even in one case in which a
particular allowable remedy sought for is dismissed, another case (offering a similar
remedy) would still be open; OR (3) where a party attempts to obtain a preliminary
injunction in another court after failing to obtain the same from the original court.26
The Court has laid down the yardstick to determine whether a party violated the rule
against forum shopping, as where the elements of litis pendentia are present or
where a final judgment in one case will amount to res judicata in the other. Stated
differently, there must be between the two cases: (a) identity of parties; (b) identity of
rights asserted and reliefs prayed for, the relief being founded on the same facts; and
(c) the identity of the two preceding particulars is such that any judgment rendered in
the other action will, regardless of which party is successful, amount to res judicata in
the action under consideration.27
As lucidly explained by the Court of Appeals, the ultimate relief sought by petitioner in
both the certiorari and habeas corpus cases is the release of Gonzales and Mesa.
Petitioner should not have filed the Petition for Habeas Corpus because the relief he
is seeking therein is the same relief he is asking for in the certiorari case. Moreover,
the main issue in both cases boils down to whether Gonzales and Mesa should be
released on bail. Because of the presence of the elements of litis pendentia -- parties,
reliefs and issue are substantially the same/similar in the two cases; and any decision
in the certiorari case will be binding on the habeas corpus case – petitioner is thus
guilty of forum shopping.

For his failure to inform the Court of Appeals of the pendency of the certiorari case,
petitioner clearly violated his obligation to disclose within five days the pendency of
the same or a similar action or claim as mandated in Section 5(c), Rule 728 of the
Rules of Court.

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R.

SP No. 90546 dated 12 September 2005 is AFFIRMED. Costs against the petitioner.

SO ORDERED.

35
 9- G.R. No. 160792 August 25, 2005
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF CAPT. GARY
ALEJANO, PN (MARINES) CAPT. NICANOR FAELDON, PN (MARINES) CAPT.
GERARDO GAMBALA, PA LT. SG JAMES LAYUG, PN CAPT. MILO
MAESTRECAMPO, PA LT. SG ANTONIO TRILLANES IV, PN HOMOBONO
ADAZA, and ROBERTO RAFAEL (ROEL) PULIDO, Petitioners,
vs.
GEN. PEDRO CABUAY, GEN. NARCISO ABAYA, SEC. ANGELO REYES, and
SEC. ROILO GOLEZ, Respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 seeks to nullify the Decision2 of the Court of Appeals dated 17
September 2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545.
The Court of Appeals’ Decision and Resolution dismissed the petition for habeas
corpus filed by lawyers Homobono Adaza and Roberto Rafael Pulido ("petitioners")
on behalf of their detained clients Capt. Gary Alejano (PN-Marines), Capt. Nicanor
Faeldon (PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN),
Capt. Milo Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) ("detainees").
Petitioners named as respondent Gen. Pedro Cabuay ("Gen. Cabuay"), Chief of the
Intelligence Service of the Armed Forces of the Philippines ("ISAFP"), who has
custody of the detainees. Petitioners impleaded Gen. Narciso Abaya ("Gen. Abaya"),
Sec. Angelo Reyes and Roilo Golez, who are respectively the Chief of Staff of the
Armed Forces of the Philippines ("AFP"), Secretary of National Defense and National
Security Adviser, because they have command responsibility over Gen. Cabuay.
Antecedent Facts
Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained
junior officers, entered and took control of the Oakwood Premier Luxury Apartments
("Oakwood"), an upscale apartment complex, located in the business district of
Makati City. The soldiers disarmed the security officers of Oakwood and planted
explosive devices in its immediate surroundings. The junior officers publicly
renounced their support for the administration and called for the resignation of
President Gloria Macapagal-Arroyo and several cabinet members.
Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the
authorities after several negotiations with government emissaries. The soldiers later
defused the explosive devices they had earlier planted. The soldiers then returned to
their barracks.
On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to
all the Major Service Commanders to turn over custody of ten junior officers to the
36
ISAFP Detention Center. The transfer took place while military and civilian authorities
were investigating the soldiers’ involvement in the Oakwood incident.
On 1 August 2003, government prosecutors filed an Information for coup d’etat with
the Regional Trial Court of Makati City, Branch 61, against the soldiers involved in the
27 July 2003 Oakwood incident. The government prosecutors accused the soldiers
of coup d’etat as defined and penalized under Article 134-A of the Revised Penal
Code of the Philippines, as amended. The case was docketed as Criminal Case No.
03-2784. The trial court later issued the Commitment Orders giving custody of junior
officers Lt. SG Antonio Trillanes IV ("Trillanes") and Capt. Gerardo Gambala to the
Commanding Officers of ISAFP.
On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders
to take into custody the military personnel under their command who took part in the
Oakwood incident except the detained junior officers who were to remain under the
custody of ISAFP.
On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme
Court. On 12 August 2003, the Court issued a Resolution, which resolved to:
(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make
a RETURN of the writ on Monday, 18 August 2003, at 10:00 a.m. before the Court of
Appeals; (c) refer the case to the Court of Appeals for RAFFLE among the Justices
thereof for hearing, further proceedings and decision thereon, after which
a REPORT shall be made to this Court within ten (10) days from promulgation of the
decision.3
Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing
respondents to make a return of the writ and to appear and produce the persons of
the detainees before the Court of Appeals on the scheduled date for hearing and
further proceedings.
On the same date, the detainees and their other co-accused filed with the Regional
Trial Court of Makati City a Motion for Preliminary Investigation, which the trial court
granted.
On 18 August 2003, pursuant to the directives of the Court, respondents submitted
their Return of the Writ and Answer to the petition and produced the detainees before
the Court of Appeals during the scheduled hearing. After the parties filed their
memoranda on 28 August 2003, the appellate court considered the petition submitted
for decision.
On 17 September 2003, the Court of Appeals rendered its decision dismissing the
petition. Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of
implementing the regulations in the ISAFP Detention Center, to uphold faithfully the
rights of the detainees in accordance with Standing Operations Procedure No. 0263-
04. The appellate court directed Gen. Cabuay to adhere to his commitment made in
court regarding visiting hours and the detainees’ right to exercise for two hours a day.
The Ruling of the Court of Appeals
The Court of Appeals found the petition bereft of merit. The appellate court pointed
out that the detainees are already charged of coup d’etat before the Regional Trial
Court of Makati. Habeas corpus  is unavailing in this case as the detainees’
confinement is under a valid indictment, the legality of which the detainees and
petitioners do not even question.
The Court of Appeals recognized that habeas corpus  may also be the appropriate
remedy to assail the legality of detention if there is a deprivation of a constitutional
right. However, the appellate court held that the constitutional rights alleged to have
been violated in this case do not directly affect the detainees’ liberty. The appellate
court ruled that the regulation of the detainees’ right to confer with their counsels is
reasonable under the circumstances.
The appellate court declared that while the opening and reading of Trillanes’ letter is
an abhorrent violation of his right to privacy of communication, this does not justify the
issuance of a writ of habeas corpus. The violation does not amount to illegal restraint,
which is the proper subject of habeas corpus proceedings.
The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill
the promise he made in open court to uphold the visiting hours and the right of the
detainees to exercise for two hours a day. The dispositive portion of the appellate
court’s decision reads:
WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED.
Respondent Cabuay is hereby ORDERED to faithfully adhere to his commitment to
uphold the constitutional rights of the detainees in accordance with the Standing
Operations Procedure No. 0263-04 regarding visiting hours and the right of the
detainees to exercise for two (2) hours a day.
SO ORDERED.4
The Issues
Petitioners raise the following issues for resolution:
A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A
DECISION OF THE SUPREME COURT;
B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE
APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and
C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE
CONDITIONS OF THE DETAINED JUNIOR OFFICERS’ DETENTION.5
The Ruling of the Court
The petition lacks merit.
Petitioners claim that the Court’s 12 August 2003 Order granted the petition and the
Court remanded the case to the Court of Appeals only for a factual hearing.
37
Petitioners thus argue that the Court’s Order had already foreclosed any question on
the propriety and merits of their petition.
Petitioners’ claim is baseless. A plain reading of the 12 August 2003 Order shows that
the Court referred to the Court of Appeals the duty to inquire into the cause of the
junior officers’ detention. Had the Court ruled for the detainees’ release, the Court
would not have referred the hearing of the petition to the Court of Appeals. The Court
would have forthwith released the detainees had the Court upheld petitioners’ cause.
In a habeas corpus petition, the order to present an individual before the court is a
preliminary step in the hearing of the petition.6 The respondent must produce the
person and explain the cause of his detention.7 However, this order is not a ruling on
the propriety of the remedy or on the substantive matters covered by the remedy.
Thus, the Court’s order to the Court of Appeals to conduct a factual hearing was not
an affirmation of the propriety of the remedy of habeas corpus.
For obvious reasons, the duty to hear the petition for habeas corpus necessarily
includes the determination of the propriety of the remedy. If a court finds the alleged
cause of the detention unlawful, then it should issue the writ and release the
detainees. In the present case, after hearing the case, the Court of Appeals found
that habeas corpus is inapplicable. After actively participating in the hearing before
the Court of Appeals, petitioners are estopped from claiming that the appellate court
had no jurisdiction to inquire into the merits of their petition.
The Court of Appeals correctly ruled that the remedy of habeas corpus is not the
proper remedy to address the detainees’ complaint against the regulations and
conditions in the ISAFP Detention Center. The remedy of habeas corpus has one
objective: to inquire into the cause of detention of a person.8 The purpose of the writ is
to determine whether a person is being illegally deprived of his liberty.9 If the inquiry
reveals that the detention is illegal, the court orders the release of the person. If,
however, the detention is proven lawful, then the habeas corpus proceedings
terminate. The use of habeas corpus is thus very limited. It is not a writ of
error.10 Neither can it substitute for an appeal.11
Nonetheless, case law has expanded the writ’s application to circumstances where
there is deprivation of a person’s constitutional rights. The writ is available where a
person continues to be unlawfully denied of one or more of his constitutional
freedoms, where there is denial of due process, where the restraints are not merely
involuntary but are also unnecessary, and where a deprivation of freedom originally
valid has later become arbitrary.12
However, a mere allegation of a violation of one’s constitutional right is not sufficient.
The courts will extend the scope of the writ only if any of the following circumstances
is present: (a) there is a deprivation of a constitutional right resulting in the unlawful
restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c)
an excessive penalty is imposed and such sentence is void as to the
excess.13 Whatever situation the petitioner invokes, the threshold remains high. The
violation of constitutional right must be sufficient to void the entire proceedings.14
Petitioners admit that they do not question the legality of the detention of the
detainees. Neither do they dispute the lawful indictment of the detainees for criminal
and military offenses. What petitioners bewail is the regulation adopted by Gen.
Cabuay in the ISAFP Detention Center preventing petitioners as lawyers from seeing
the detainees – their clients – any time of the day or night. The regulation allegedly
curtails the detainees’ right to counsel and violates Republic Act No. 7438 ("RA
7438").15 Petitioners claim that the regulated visits made it difficult for them to prepare
for the important hearings before the Senate and the Feliciano Commission.
Petitioners also point out that the officials of the ISAFP Detention Center violated the
detainees’ right to privacy of communication when the ISAFP officials opened and
read the personal letters of Trillanes and Capt. Milo Maestrecampo
("Maestrecampo"). Petitioners further claim that the ISAFP officials violated the
detainees’ right against cruel and unusual punishment when the ISAFP officials
prevented the detainees from having contact with their visitors. Moreover, the ISAFP
officials boarded up with iron bars and plywood slabs the iron grills of the detention
cells, limiting the already poor light and ventilation in the detainees’ cells.
Pre-trial detainees do not forfeit their constitutional rights upon
confinement.16 However, the fact that the detainees are confined makes their rights
more limited than those of the public.17 RA 7438, which specifies the rights of
detainees and the duties of detention officers, expressly recognizes the power of the
detention officer to adopt and implement reasonable measures to secure the safety of
the detainee and prevent his escape. Section 4(b) of RA 7438 provides:
Section 4. Penalty Clause. – a) x x x
b) Any person who obstructs, prevents or prohibits any lawyer, any member of the
immediate family of a person arrested, detained or under custodial investigation, or
any medical doctor or priest or religious minister or by his counsel, from visiting and
conferring privately chosen by him or by any member of his immediate family with
him, or from examining and treating him, or from ministering to his spiritual needs, at
any hour of the day or, in urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor more than six (6) years, and a fine of
four thousand pesos (₱4,000.00).
The provisions of the above Section notwithstanding, any security officer with
custodial responsibility over any detainee or prisoner may undertake such
reasonable measures as may be necessary to secure his safety and prevent his
escape. (Emphasis supplied)
True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a
detainee client "at any hour of the day or, in urgent cases, of the night." However, the
last paragraph of the same Section 4(b) makes the express qualification that
"notwithstanding" the provisions of Section 4(b), the detention officer has the power
to undertake such reasonable measures as may be necessary to secure the safety of
the detainee and prevent his escape.
38
The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The
regulations governing a detainee’s confinement must be "reasonable measures x x x
to secure his safety and prevent his escape." Thus, the regulations must be
reasonably connected to the government’s objective of securing the safety and
preventing the escape of the detainee. The law grants the detention officer the
authority to "undertake such reasonable measures" or regulations.
Petitioners contend that there was an actual prohibition of the detainees’ right to
effective representation when petitioners’ visits were limited by the schedule of
visiting hours. Petitioners assert that the violation of the detainees’ rights entitle them
to be released from detention.
Petitioners’ contention does not persuade us. The schedule of visiting hours does not
render void the detainees’ indictment for criminal and military offenses to warrant the
detainees’ release from detention. The ISAFP officials did not deny, but merely
regulated, the detainees’ right to counsel. The purpose of the regulation is not to
render ineffective the right to counsel, but to secure the safety and security of all
detainees. American cases are instructive on the standards to determine whether
regulations on pre-trial confinement are permissible.
In Bell v. Wolfish,18 the United States (U.S.) Supreme Court held that regulations
must be reasonably related to maintaining security and must not be excessive in
achieving that purpose. Courts will strike down a restriction that is arbitrary and
purposeless.19 However, Bell v. Wolfish expressly discouraged courts from
skeptically questioning challenged restrictions in detention and prison facilities.20 The
U.S. Supreme Court commanded the courts to afford administrators "wide-ranging
deference" in implementing policies to maintain institutional security.21
In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the
standard to make regulations in detention centers allowable: "such reasonable
measures as may be necessary to secure the detainee’s safety and prevent his
escape." In the present case, the visiting hours accorded to the lawyers of the
detainees are reasonably connected to the legitimate purpose of securing the safety
and preventing the escape of all detainees.
While petitioners may not visit the detainees any time they want, the fact that the
detainees still have face-to-face meetings with their lawyers on a daily basis clearly
shows that there is no impairment of detainees’ right to counsel. Petitioners as
counsels could visit their clients between 8:00 a.m. and 5:00 p.m. with a lunch break
at 12:00 p.m. The visiting hours are regular business hours, the same hours when
lawyers normally entertain clients in their law offices. Clearly, the visiting hours pass
the standard of reasonableness. Moreover, in urgent cases, petitioners could always
seek permission from the ISAFP officials to confer with their clients beyond the
visiting hours.
The scheduled visiting hours provide reasonable access to the detainees, giving
petitioners sufficient time to confer with the detainees. The detainees’ right to counsel
is not undermined by the scheduled visits. Even in the hearings before the Senate
and the Feliciano Commission,22 petitioners were given time to confer with the
detainees, a fact that petitioners themselves admit.23 Thus, at no point were the
detainees denied their right to counsel.
Petitioners further argue that the bars separating the detainees from their visitors and
the boarding of the iron grills in their cells with plywood amount to unusual and
excessive punishment. This argument fails to impress us. Bell v. Wolfish pointed out
that while a detainee may not be punished prior to an adjudication of guilt in
accordance with due process of law, detention inevitably interferes with a detainee’s
desire to live comfortably.24 The fact that the restrictions inherent in detention intrude
into the detainees’ desire to live comfortably does not convert those restrictions into
punishment.25 It is when the restrictions are arbitrary and purposeless that courts will
infer intent to punish.26 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.27 Jail officials are thus not required to use the
least restrictive security measure.28 They must only refrain from implementing a
restriction that appears excessive to the purpose it serves.29
We quote Bell v. Wolfish:
One further point requires discussion. The petitioners assert, and respondents
concede, that the "essential objective of pretrial confinement is to insure the
detainees’ presence at trial." While this interest undoubtedly justifies the original
decision to confine an individual in some manner, we do not accept respondents’
argument that the Government’s interest in ensuring a detainee’s presence at trial is
the only objective that may justify restraints and conditions once the decision is
lawfully made to confine a person. "If the government could confine or otherwise
infringe the liberty of detainees only to the extent necessary to ensure their presence
at trial, house arrest would in the end be the only constitutionally justified form of
detention." The Government also has legitimate interests that stem from its need to
manage the facility in which the individual is detained. These legitimate operational
concerns may require administrative measures that go beyond those that are, strictly
speaking, necessary to ensure that the detainee shows up at trial. For example, the
Government must be able to take steps to maintain security and order at the
institution and make certain no weapons or illicit drugs reach detainees. Restraints
that are reasonably related to the institution’s interest in maintaining jail security do
not, without more, constitute unconstitutional punishment, even if they are
discomforting and are restrictions that the detainee would not have experienced had
he been released while awaiting trial. We need not here attempt to detail the precise
extent of the legitimate governmental interests that may justify conditions or
restrictions of pretrial detention. It is enough simply to recognize that in addition to
ensuring the detainees’ presence at trial, the effective management of the detention
facility once the individual is confined is a valid objective that may justify imposition of
conditions and restrictions of pretrial detention and dispel any inference that such
restrictions are intended as punishment.30
An action constitutes a punishment when (1) that action causes the inmate to suffer
some harm or "disability," and (2) the purpose of the action is to punish the
39
inmate.31 Punishment also requires that the harm or disability be significantly greater
than, or be independent of, the inherent discomforts of confinement.32
Block v. Rutherford,33 which reiterated Bell v. Wolfish, upheld the blanket restriction
on contact visits as this practice was reasonably related to maintaining security. The
safety of innocent individuals will be jeopardized if they are exposed to detainees who
while not yet convicted are awaiting trial for serious, violent offenses and may have
prior criminal conviction.34 Contact visits make it possible for the detainees to hold
visitors and jail staff hostage to effect escapes.35 Contact visits also leave the jail
vulnerable to visitors smuggling in weapons, drugs, and other contraband.36 The
restriction on contact visits was imposed even on low-risk detainees as they could
also potentially be enlisted to help obtain contraband and weapons.37 The security
consideration in the imposition of blanket restriction on contact visits was ruled to
outweigh the sentiments of the detainees.38
Block v. Rutherford held that the prohibition of contact visits bore a rational
connection to the legitimate goal of internal security.39 This case reaffirmed the
"hands-off" doctrine enunciated in Bell v. Wolfish, a form of judicial self-restraint,
based on the premise that courts should decline jurisdiction over prison matters in
deference to administrative expertise.40
In the present case, we cannot infer punishment from the separation of the detainees
from their visitors by iron bars, which is merely a limitation on contact visits. The iron
bars separating the detainees from their visitors prevent direct physical contact but
still allow the detainees to have visual, verbal, non-verbal and limited physical contact
with their visitors. The arrangement is not unduly restrictive. In fact, it is not even a
strict non-contact visitation regulation like in Block v. Rutherford. The limitation on
the detainees’ physical contacts with visitors is a reasonable, non-punitive response
to valid security concerns.
The boarding of the iron grills is for the furtherance of security within the ISAFP
Detention Center. This measure intends to fortify the individual cells and to prevent
the detainees from passing on contraband and weapons from one cell to another. The
boarded grills ensure security and prevent disorder and crime within the facility. The
diminished illumination and ventilation are but discomforts inherent in the fact of
detention, and do not constitute punishments on the detainees.
We accord respect to the finding of the Court of Appeals that the conditions in the
ISAFP Detention Center are not inhuman, degrading and cruel. Each detainee,
except for Capt. Nicanor Faeldon and Capt. Gerardo Gambala, is confined in
separate cells, unlike ordinary cramped detention cells. The detainees are treated
well and given regular meals. The Court of Appeals noted that the cells are relatively
clean and livable compared to the conditions now prevailing in the city and provincial
jails, which are congested with detainees. The Court of Appeals found the assailed
measures to be reasonable considering that the ISAFP Detention Center is a high-
risk detention facility. Apart from the soldiers, a suspected New People’s Army
("NPA") member and two suspected Abu Sayyaf members are detained in the ISAFP
Detention Center.
We now pass upon petitioners’ argument that the officials of the ISAFP Detention
Center violated the detainees’ right to privacy when the ISAFP officials opened and
read the letters handed by detainees Trillanes and Maestrecampo to one of the
petitioners for mailing. Petitioners point out that the letters were not in a sealed
envelope but simply folded because there were no envelopes in the ISAFP Detention
Center. Petitioners contend that the Constitution prohibits the infringement of a
citizen’s privacy rights unless authorized by law. The Solicitor General does not deny
that the ISAFP officials opened the letters.
Courts in the U.S. have generally permitted prison officials to open and read all
incoming and outgoing mail of convicted prisoners to prevent the smuggling of
contraband into the prison facility and to avert coordinated escapes.41 Even in the
absence of statutes specifically allowing prison authorities from opening and
inspecting mail, such practice was upheld based on the principle of "civil
deaths."42 Inmates were deemed to have no right to correspond confidentially with
anyone. The only restriction placed upon prison authorities was that the right of
inspection should not be used to delay unreasonably the communications between
the inmate and his lawyer.43
Eventually, the inmates’ outgoing mail to licensed attorneys, courts, and court officials
received respect.44 The confidential correspondences could not be censored.45 The
infringement of such privileged communication was held to be a violation of the
inmates’ First Amendment rights.46 A prisoner has a right to consult with his attorney
in absolute privacy, which right is not abrogated by the legitimate interests of prison
authorities in the administration of the institution.47 Moreover, the risk is small that
attorneys will conspire in plots that threaten prison security.48
American jurisprudence initially made a distinction between the privacy rights enjoyed
by convicted inmates and pre-trial detainees. The case of Palmigiano v.
Travisono49 recognized that pre-trial detainees, unlike convicted prisoners, enjoy a
limited right of privacy in communication. Censorship of pre-trial detainees’ mail
addressed to public officials, courts and counsel was held impermissible. While
incoming mail may be inspected for contraband and read in certain instances,
outgoing mail of pre-trial detainees could not be inspected or read at all.
In the subsequent case of Wolff v. McDonnell,50 involving convicted prisoners, the
U.S. Supreme Court held that prison officials could open in the presence of the
inmates incoming mail from attorneys to inmates. However, prison officials could not
read such mail from attorneys. Explained the U.S. Supreme Court:
The issue of the extent to which prison authorities can open and inspect incoming
mail from attorneys to inmates, has been considerably narrowed in the course of this
litigation. The prison regulation under challenge provided that ‘(a)ll incoming and
outgoing mail will be read and inspected,’ and no exception was made for attorney-
prisoner mail. x x x
Petitioners now concede that they cannot open and read mail from attorneys to
inmates, but contend that they may open all letters from attorneys as long as it is
done in the presence of the prisoners. The narrow issue thus presented is whether
40
letters determined or found to be from attorneys may be opened by prison authorities
in the presence of the inmate or whether such mail must be delivered unopened if
normal detection techniques fail to indicate contraband.
xxx
x x x If prison officials had to check in each case whether a communication was from
an attorney before opening it for inspection, a near impossible task of administration
would be imposed. We think it entirely appropriate that the State require any such
communications to be specially marked as originating from an attorney, with his name
and address being given, if they are to receive special treatment. It would also
certainly be permissible that prison authorities require that a lawyer desiring to
correspond with a prisoner, first identify himself and his client to the prison officials, to
assure that the letters marked privileged are actually from members of the bar. As to
the ability to open the mail in the presence of inmates, this could in no way constitute
censorship, since the mail would not be read. Neither could it chill such
communications, since the inmate’s presence insures that prison officials will not read
the mail. The possibility that contraband will be enclosed in letters, even those from
apparent attorneys, surely warrants prison officials’ opening the letters. We disagree
with the Court of Appeals that this should only be done in ‘appropriate circumstances.’
Since a flexible test, besides being unworkable, serves no arguable purpose in
protecting any of the possible constitutional rights enumerated by respondent, we
think that petitioners, by acceding to a rule whereby the inmate is present when mail
from attorneys is inspected, have done all, and perhaps even more, than the
Constitution requires.51
In Hudson v. Palmer,52 the U.S. Supreme Court ruled that an inmate has no
reasonable expectation of privacy inside his cell. The U.S. Supreme Court explained
that prisoners necessarily lose many protections of the Constitution, thus:
However, while persons imprisoned for crime enjoy many protections of the
Constitution, it is also clear that imprisonment carries with it the circumscription or
loss of many significant rights. These constraints on inmates, and in some cases the
complete withdrawal of certain rights, are "justified by the considerations underlying
our penal system." The curtailment of certain rights is necessary, as a practical
matter, to accommodate a myriad of "institutional needs and objectives" of prison
facilities, chief among which is internal security. Of course, these restrictions or
retractions also serve, incidentally, as reminders that, under our system of justice,
deterrence and retribution are factors in addition to correction.53
The later case of State v. Dunn,54 citing Hudson v. Palmer, abandoned Palmigiano
v. Travisono and made no distinction as to the detainees’ limited right to
privacy. State v. Dunn noted the considerable jurisprudence in the United States
holding that inmate mail may be censored for the furtherance of a substantial
government interest such as security or discipline. State v. Dunn declared that if
complete censorship is permissible, then the lesser act of opening the mail and
reading it is also permissible. We quote State v. Dunn:
[A] right of privacy in traditional Fourth Amendment terms is fundamentally imprisonment. By the very fact of their detention, pre-trial detainees and convicted
incompatible with the close and continual surveillance of inmates and their cells prisoners have a diminished expectation of privacy rights.
required to ensure institutional security and internal order. We are satisfied that
society would insist that the prisoner’s expectation of privacy always yield to what In assessing the regulations imposed in detention and prison facilities that are alleged
must be considered a paramount interest in institutional security. We believe that it is to infringe on the constitutional rights of the detainees and convicted prisoners, U.S.
accepted by our society that "[l]oss of freedom of choice and privacy are inherent courts "balance the guarantees of the Constitution with the legitimate concerns of
incidents of confinement." prison administrators."63 The deferential review of such regulations stems from the
principle that:
The distinction between the limited privacy rights of a pre-trial detainee and a
convicted inmate has been blurred as courts in the U.S. ruled that pre-trial detainees [s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny
might occasionally pose an even greater security risk than convicted inmates. Bell v. analysis would seriously hamper their ability to anticipate security problems and to
Wolfish reasoned that those who are detained prior to trial may in many cases be adopt innovative solutions to the intractable problems of prison administration.64
individuals who are charged with serious crimes or who have prior records and may
The detainees in the present case are junior officers accused of leading 300 soldiers
therefore pose a greater risk of escape than convicted inmates.55 Valencia v.
in committing coup d’etat, a crime punishable with reclusion perpetua.65 The junior
Wiggins56 further held that "it is impractical to draw a line between convicted
officers are not ordinary detainees but visible leaders of the Oakwood incident
prisoners and pre-trial detainees for the purpose of maintaining jail security."
involving an armed takeover of a civilian building in the heart of the financial district of
American cases recognize that the unmonitored use of pre-trial detainees’ non- the country. As members of the military armed forces, the detainees are subject to the
privileged mail poses a genuine threat to jail security.57 Hence, when a detainee Articles of War.66
places his letter in an envelope for non-privileged mail, the detainee knowingly
Moreover, the junior officers are detained with other high-risk persons from the Abu
exposes his letter to possible inspection by jail officials.58 A pre-trial detainee has no
Sayyaf and the NPA. Thus, we must give the military custodian a wider range of
reasonable expectation of privacy for his incoming mail.59 However, incoming mail
deference in implementing the regulations in the ISAFP Detention Center. The
from lawyers of inmates enjoys limited protection such that prison officials can open
military custodian is in a better position to know the security risks involved in detaining
and inspect the mail for contraband but could not read the contents without violating
the junior officers, together with the suspected Abu Sayyaf and NPA members. Since
the inmates’ right to correspond with his lawyer.60 The inspection of privileged mail is
the appropriate regulations depend largely on the security risks involved, we should
limited to physical contraband and not to verbal contraband.61
defer to the regulations adopted by the military custodian in the absence of patent
Thus, we do not agree with the Court of Appeals that the opening and reading of the arbitrariness.
detainees’ letters in the present case violated the detainees’ right to privacy of
The ruling in this case, however, does not foreclose the right of detainees and
communication. The letters were not in a sealed envelope. The inspection of the
convicted prisoners from petitioning the courts for the redress of grievances.
folded letters is a valid measure as it serves the same purpose as the opening of
Regulations and conditions in detention and prison facilities that violate the
sealed letters for the inspection of contraband.
Constitutional rights of the detainees and prisoners will be reviewed by the courts on
The letters alleged to have been read by the ISAFP authorities were not confidential a case-by-case basis. The courts could afford injunctive relief or damages to the
letters between the detainees and their lawyers. The petitioner who received the detainees and prisoners subjected to arbitrary and inhumane conditions.
letters from detainees Trillanes and Maestrecampo was merely acting as the However, habeas corpus is not the proper mode to question conditions of
detainees’ personal courier and not as their counsel when he received the letters for confinement.67 The writ of habeas corpus  will only lie if what is challenged is the fact
mailing. In the present case, since the letters were not confidential or duration of confinement.68
communication between the detainees and their lawyers, the officials of the
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of
ISAFP Detention Center could read the letters. If the letters are marked
Appeals in CA-G.R. SP No. 78545.
confidential communication between the detainees and their lawyers, the detention
officials should not read the letters but only open the envelopes for inspection in the No pronouncement as to costs.
presence of the detainees.
SO ORDERED.
That a law is required before an executive officer could intrude on a citizen’s privacy
rights62 is a guarantee that is available only to the public at large but not to persons
who are detained or imprisoned. The right to privacy of those detained is subject to
Section 4 of RA 7438, as well as to the limitations inherent in lawful detention or

41
 10- G.R. No. L-43195             August 23, 1935 Under the circumstances of the present case, the court below would have been
justified in refusing the writ solely on the ground that the appellant was not, within the
FELIPE GONZALES, petitioner-appellant, meaning of section 525 of the Code of Civil Procedure, deprived or restrained of his
vs. liberty; and upon that very ground the order appealed from is affirmed with costs
FLORENTINO C. VIOLA and VALENTIN MANIQUIS, respondents-appellees. against the appellant. So ordered.
Juan S. Rustia, for appellant.
Payawal, Osorio and Mendoza for appellees.

ABAD SANTOS, J.:

This is an appeal from an order of the Court of First Instance of Bulacan, denying the
petition for a writ of habeas corpus filed by the appellant. The order of denial was
entered by the court below after due hearing, on the ground that the appellant was
legally detained.

The facts which gave rise to this case are fully set forth in the order appealed from. In
deciding this appeal, it is sufficient to observe that the record shows that on January
18, 1935, at about 11:30 a.m., appellant was placed under arrest by order of the
appellees and detained in the municipal jail of San Miguel, Province of Bulacan; that a
few hours later a criminal complaint was filed by the appellee Maniquis against the
appellant in the justice of the peace court of the aforesaid municipality; and that on
the same day, at about 8 p.m., he was released on bail. When the hearing on the
petition for a writ of habeas corpus was had in the court below the appellant was
already out on bail.

In passing upon a petition for a writ of habeas corpus, a court of judge must first
inquire whether the petitioner is restrained of his liberty. If he is not, the writ will be
refused. Only where such restraint obtains is the court required to inquire into the
cause of the detention, and if the alleged cause is found to be unlawful then the writ
should be granted and the petitioner discharged. (Code of Civil Procedure, sections
525, 541; Wales vs. Whitney, 114 U.S., 564; 29 Law. ed., 277.)

The law is well settled that a person out on bail is not so restrained of his liberty as to
be entitled to a writ of habeas corpus. The restraint of liberty which would justify the
issuance of the writ must be more than a mere moral restraint; it must be actual or
physical. "There is no very satisfactory definition to be found in the adjudged cases, of
the character of the restraint or imprisonment suffered by a party applying for the writ
of habeas corpus, which is necessary to sustain the writ. This can hardly be expected
from the variety of restraints for which it is used to give relief. Confinement under civil
and criminal process may be so relieved. Wives restrained by husbands, children
withheld from the proper parent or guardian, persons held under arbitrary custody by
private individuals, as in a mad-house, as well as those under military control, may all
become proper subjects of relief by the writ of habeas corpus. Obviously, the extent
and character of the restraint which justifies the writ must vary according to the nature
of the control which is asserted over the party in whose behalf the writ is prayed. ...
Something more than moral restraint is necessary to make a case for habeas corpus.
There must be actual confinement or the present means of enforcing it." (Wales vs.
Whitney, supra.)

42
 11- G.R. No. 190108               October 19, 2010
DAVID E. SO, on behalf of his daughter MARIA ELENA SO
GUISANDE, Petitioner,
vs.
HON. ESTEBAN A. TACLA, JR., Regional Trial Court of Mandaluyong City,
Branch 208; and DR. BERNARDO A. VICENTE, National Center for Mental
Health, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 190473
HON. ESTEBAN A. TACLA, JR., Presiding Judge of the Regional Trial Court,
Mandaluyong City, Branch 208; and PEOPLE OF THE PHILIPPINES, Petitioners,
vs.
DAVID E. SO, on behalf of his daughter MARIA ELENA SO
GUISANDE, Respondent.
RESOLUTION
NACHURA, J.:
Before us are consolidated petitions:
(1) A petition for the writs of habeas corpus and amparo against Judge Esteban A.
Tacla, Jr. (Judge Tacla) of the Regional Trial Court (RTC), Branch 208, Mandaluyong
City, and Dr. Bernardo A. Vicente (Dr. Vicente) of the National Center for Mental
Health (NCMH), docketed as G.R. No. 190108; and
(2) G.R. No. 190473, which is a petition for review on certiorari under Rule 45 of the
Rules of Court filed by the Office of the Solicitor General (OSG) on behalf of Judge
Tacla and Dr. Vicente of the NCMH, assailing the Resolution1 of the Court of Appeals
(CA) rendered in open court on December 3, 2009, in the case docketed as CA-G.R.
SP No. 00039.
The antecedents are:
Petitioner David E. So (So) in G.R. No. 190108 filed the petition for the writs of
habeas corpus and amparo on behalf of his daughter, Ma. Elena So Guisande
(Guisande), accused of Qualified Theft in the criminal case pending before Judge
Tacla. Petitioner So alleged, among others, that Guisande was under a life-
threatening situation while confined at the NCMH, the government hospital ordered by
the RTC Mandaluyong City to ascertain the actual psychological state of Guisande,
who was being charged with a non-bailable offense.
Prior to the institution of the criminal proceedings before the RTC, Guisande was
committed by So for psychiatric treatment and care at the Makati Medical Center
(MMC). Thus, the return of the warrant for the arrest of Guisande, issued by Judge
Tacla, stated that the former was confined at MMC for Bipolar Mood Disorder and that
43
she was "not ready for discharge," as certified by her personal psychiatrist, Dr. Ma.
Cecilia Tan.
Acting on the prosecution’s Urgent Motion to Refer Accused’s Illness to a
Government Hospital, Judge Tacla ordered Guisande’s referral to the NCMH for an
independent forensic assessment of Guisande’s mental health to determine if she
would be able to stand arraignment and undergo trial for Qualified Theft.
Subsequently, Judge Tacla, upon motion of the NCMH, ordered that accused
Guisande be physically brought to the NCMH, with NCMH Chief Dr. Vicente to have
temporary legal custody of the accused, and thereafter, Judge Tacla would issue the
corresponding order of confinement of Guisande in a regular jail facility upon the
NCMH’s determination that she was ready for trial.
Accused Guisande was confined at the NCMH Payward, Pavilion 6-I-E, instead of
Pavilion 35, Forensic Psychiatric Section, where female court case patients are
usually confined at the NCMH. In connection therewith, Dr. Vicente issued a special
Memorandum on November 9, 2009, reiterating existing hospital policies on the
handling of court case patients undergoing evaluation procedures to foreclose any
possibility of malingering2 on the patient’s part, specifically patients accused of a non-
bailable crime.
Eventually, claiming "life-threatening" circumstances surrounding her confinement at
the NCMH which supposedly worsened her mental condition and violated her
constitutional rights against solitary detention and assistance of counsel, accused
Guisande and her father simultaneously, albeit separately, filed a Motion for Relief
from Solitary Confinement before the RTC Mandaluyong City, and the present petition
in G.R. No. 190108 for the issuance of the writs of habeas corpus and amparo.
On the Motion for Relief filed with RTC Mandaluyong City, Judge Tacla issued the
following Order:
The Court rules to Grant accused’s [Guisande’s] motion subject to the condition that
only the accused’s counsel and the accused’ physician on her hypothyroid condition
are allowed to visit the accused in coordination with the respective psychiatrist/doctor
of the NCMH taking charge of the psychiatric examination upon accused.3
On the petition for habeas corpus and amparo, this Court issued a Resolution on
November 24, 2009, to wit:
G.R. No. 190108 (David E. So, in Behalf of his Daughter Maria Elena So Guisande
vs. Hon. Esteban A. Tacla, Jr., Regional Trial Court of Mandaluyong, Branch 208, Dr.
Bernardo A. Vicente, National Center for Mental Health). – Acting on the Petition for
Writs of Habeas Corpus and Amparo, the Court Resolved to
(a) ISSUE a JOINT WRIT OF HABEAS CORPUS AND AMPARO;
(b) REFER the petition to the Court of Appeals, Manila, for (i) IMMEDIATE RAFFLE
among the Members of the said Court; (ii) HEARING on December 3, 2009,
Thursday, at 10:00 a.m.; and (iii) DECISION within ten (10) days after its submission
for decision; and
(c) ORDER the respondents to make a verified RETURN of the Joint Writ of Habeas
Corpus and Amparo before the Court of Appeals, Manila, on December 1, 2009, and
to COMMENT on the petition before said date.4
As directed by this Court, Judge Tacla and Dr. Vicente appeared before the CA on
December 1, 2009 and, in the afternoon, filed their Consolidated Return of the Writ.
On December 3, 2009, the NCMH submitted its Evaluation Report to the RTC
Mandaluyong City:
ASSESSMENT AND REMARKS:
Review of the history and clinical reports from Makati Medical Center revealed that
Ma. Elena So-Guisande was diagnosed and managed as Bipolar I Disorder. On the
other hand, based on a series of mental status examinations and observations at our
center, she is found not manifesting signs and symptoms of psychosis at the present
time. Neither a manic episode nor a severe depressive episode was manifested
during her confinement at our center, despite voluntarily not taking her medication is.
Although she is complaining of mood symptoms, these are not severe enough to
impair her fitness to stand trial.
Ms. Guisande does have sufficient understanding of the nature and objective of the
court proceedings and the possible consequences of her cases. She is likewise
capable of communicating with her counsels.
She is therefore deemed COMPETENT to stand the rigors of court trial. (Emphasis
supplied.)
On even date, pursuant to the directive of this Court, the CA’s Special Seventeenth
Division held a hearing. Thereafter, Justice Normandie B. Pizarro (Justice Pizarro), to
whom the petition was raffled, disposed, in this wise:
JUSTICE PIZARRO:
The essence of the deliberation this morning is on the proceedings that obtained
pursuant to the September 22, 2009 Order of the Regional Trial Court, Branch 208,
Mandaluyong City. The parties heard the arguments of the Petitioner on the right of
the subject patient, Ma. Elena, to avail of extended medical treatment citing the
Constitution and the Geneva Convention on Human Rights.
In the course of the proceedings this morning, Judge Tacla, Jr., informed this Court
that the NCMH submitted to him a report consisting of eight (8) pages at about 8:46
this morning. The parties, specifically the petitioner, were shown the said report.
Afterwards, Judge Tacla’s opinion on the matter was heard and he did not interpose
any objection thereto. The Accused, subject of this case, Ma. Elena So-Guisande,
may now be discharged from the custody of the NCMH and is considered fit for the
44
rigors of trial. The parties were heard on the matter and all of them were in accord
with the dispositive portion of the aforesaid report.
After a prolonged discussion on the matter, and without objection on the part of the
parties, as the Accused should now proceed to trial in accordance with law, and at the
same time recognizing the right of the Accused to avail of further medication, this
Court decrees the following set up that should cover this proceedings: The trial of this
case shall resume and the arraignment at the Court a quo shall push through as
originally scheduled on February 2, 2010. To balance the situation, the right to seek
medical treatment of the subject is hereby recognized by all and the patient shall be
confined at the St. Clare’s Medical Center, 1838 Dian St., Palanan, Makati City, her
hospital of choice, under the headship of Dr. Yat, subject to the twenty-four (24) hour
custodial control of the NBI.
xxxx
JUSTICE PIZARRO:
Dr. Yat is directed to submit, again by agreement of the parties, a periodic report
every fifteen days to the RTC, Branch 208, for its evaluation. The first report shall be
submitted on or before December 18, 2009.
In this regard, the Director Nestor M. Mantaring of NBI is politely DIRECTED to cause
the transfer from NCMH to the St. Clare’s Medical Center of the subject Accused, Ma.
Elena So-Guisande, and to provide two (2) or three (3) security personnel to the
Accused after making the proper coordination with the RTC, Branch 208. Director
Mantaring is to submit a one (1) page compliance on the matter within three (3) days
from receipt of this Resolution – furnishing Judge Tacla, Jr. a copy thereof.
xxxx
It is understood that the case pending before RTC, Branch 208, involves a non-
bailable offense where normally the Accused should have been confined in jail. But
considering the peculiarities of this case, the parties have all agreed to the set up as
provided in this Order. It is also understood by the parties that henceforth the control
of the trial proceedings as well as the control over the custody of the accused/patient
shall be in the hands of the Regional Trial Court, Branch 208, Mandaluyong City.
STATE SOL. DE VERA:
Your honor, the Hospital fees to be settled before the transfer, Your Honor.
JUSTICE PIZARRO:
As committed in open-Court, Atty. Carpio shall insure the settlement of the fees for
the confinement of Accused/patient at the NCMH, as a pre-condition for her release
therefrom.
WHEREFORE, the foregoing considering considered, this petition for Habeas Corpus
and Amparo is considered CLOSE and TERMINATED. All parties are notified in open
court of this Order.
xxxx
JUSTICE PIZARRO:
Let copies of this Order be furnished the RTC, Br. 208, Mandaluyong City, the
Director of the National Bureau of Investigation as well as the Supreme Court, and all
the parties.
SO ORDERED.5
Hence, the petition for review on certiorari, docketed as G.R. No. 190473, filed by the
OSG, which was consolidated with G.R. No. 190108.
During the pendency of these consolidated cases, various events occurred which
ultimately led to the incident before this Court, i.e., a Manifestation and Motion6 dated
March 11, 2010, filed by the OSG on behalf of public respondents, Judge Tacla and
Dr. Vicente, to wit:
1. On February 4, 2010, acting on the City Prosecutor’s January 25, 2010 Motion to
Withdraw Information, public respondent Judge ordered the dismissal of Criminal
Case No. MC019-12281. Hence, their Urgent Prayer for Issuance of a Temporary
Restraining Order (TRO) before this Honorable Court has been rendered moot and
academic. A copy of the February 4, 2010 Order dismissing Criminal Case No.
MC019-12281 is attached herewith as Annex "A."
2. Furthermore, in view of the dismissal of Criminal Case No. MC019-12281 from
which the Petition for Writ of Habeas Corpus and Writ of Amparo (docketed before
the Supreme Court as G.R. No. 190108 and Court of Appeals as CA-G.R. SP No.
00039) and the Petition for Review (docketed as G.R. No. 190473) stemmed from,
these cases and pending incidents thereon should be dismissed for having been
rendered moot and academic.
WHEREFORE, it is respectfully prayed that the Petition for Writ of Habeas Corpus
and Writ of Amparo (docketed before the Supreme Court as G.R. No. 190108 and
Court of Appeals as CA-G.R. SP No. 00039) and the Petition for Review (docketed as
G.R. No. 190473) and all other pending incidents thereon be DISMISSED for having
been rendered moot and academic.
Petitioner So filed a Comment7 refuting the OSG’s motion to dismiss G.R. Nos.
190108 and 190473. Through counsel, and using strong words, he vehemently
opposed the dismissal of the petitions because they had filed criminal complaints and
an administrative case against respondents Judge Tacla and Dr. Vicente, as well as
the NCMH and an attending doctor thereat, for purported violations of accused
Guisande’s rights during her confinement at the NCMH. Adding to the flurry of cases,
petitioner So filed a Verified Petition to cite Judge Tacla and Dr. Vicente in contempt
before the CA for their supposed submission of an altered and falsified document,
which was attached to, and formed an integral part of, their Consolidated Return of
the Writ.
45
Posthaste, and even without us requiring the OSG to file one, it filed a Motion to
Admit Reply8 with its Reply9 to the Comment of petitioner So attached thereto. The
OSG clarified and denied outright petitioner So’s allegation in the Comment that the
criminal case for Qualified Theft against accused Guisande was a prevarication and
concoction of private complainant10 and that Judge Tacla had conspired to falsely
accuse petitioner So’s daughter, Guisande. In all, the OSG reiterated that GR. Nos.
190108 and 190473 had been rendered moot and academic with the dismissal of the
criminal case for Qualified Theft against Guisande.
Significantly, on August 25, 2010, the OSG filed another Manifestation and
Motion11 informing this Court of the following:
(1) Resolution dated June 7, 2010 issued by Assistant City Prosecutor Teresa D.
Escobar-Pilares (Assistant City Prosecutor Escobar-Pilares), dismissing the charge of
petitioner So against Judge Tacla and Dr. Vicente and their counsels for Falsification
under Article 171 and 172 of the Revised Penal Code, docketed as I.S. No. XV-07-
INV-10B-01371, for insufficiency of evidence;12 and
(2) Resolution dated July 27, 2010 of the CA in CA-G.R. SP No. 00039, where
petitioner So’s verified petition for contempt was dismissed for lack of merit, and
where the CA ordered the petition for habeas corpus/writ of amparo closed and
terminated.13
Likewise, the OSG reiterated its motion to dismiss the instant consolidated petitions.
We completely agree with the OSG. Accordingly, we deny the petitions in G.R. Nos.
190108 and 190473 for having been rendered moot and academic by the dismissal of
Criminal Case No. MC09-12281 for Qualified Theft pending before the RTC
Mandaluyong City.
As correctly pointed out by the OSG, the petition for the writs of habeas corpus and
amparo was based on the criminal case for Qualified Theft against petitioner So’s
daughter, Guisande. To recall, petitioner So claimed that the conditions and
circumstances of his daughter’s, accused Guisande’s, confinement at the NCMH was
"life threatening"; although Guisande was accused of a non-bailable offense, the
NCMH could not adequately treat Guisande’s mental condition. Thus, to balance the
conflicting right of an accused to medical treatment and the right of the prosecution to
subject to court processes an accused charged with a non-bailable offense, the CA
directed the transfer of Guisande from the NCMH to St. Clare’s Medical Center, while
noting that because of the peculiarities of this case, there was a deviation from the
regular course of procedure, since accused Guisande should have been confined in
jail because she was charged with a non-bailable offense.
Notably, nowhere in the transcript of the CA hearing on December 3, 2009, nor in the
Order recited in open court by Justice Pizarro, is there an affirmation of petitioner So’s
claim that the confinement of accused Guisande at the NCMH was illegal. Neither
were the respective acts performed by respondents Judge Tacla and Dr. Vicente in
ascertaining the mental condition of accused Guisande to withstand trial declared
unlawful. On the contrary, the NCMH, a well-reputed government forensic facility,
albeit not held in high regard by petitioner So’s and accused Guisande’s family, had
assessed Guisande fit for trial.
The Rules on the Writs of Habeas Corpus and Amparo are clear; the act or omission
or the threatened act or omission complained of - confinement and custody for
habeas corpus and violations of, or threat to violate, a person’s life, liberty, and
security for amparo cases - should be illegal or unlawful.
Rule 102 of the Rules of Court on Habeas Corpus provides:
Sec. 1. To what habeas corpus extends. – Except as otherwise expressly provided by
law, the writ of habeas corpus shall extend to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled thereto.
while the Rule on the Writ of Amparo states:
Section 1. Petition. – The petition for a writ of amparo is a remedy available to any
person whose right to life, liberty and security is violated or threatened with violation
by an unlawful act or omission of a public official or employee, or of a private
individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof.
Our decisions on the propriety of the issuance of these writs reiterate the foregoing
rules. In Lourdes D. Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico Carbonel
v. Gloria Macapagal-Arroyo, Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon,
Maj. Darwin Sy a.k.a Darwin Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo
Cuaresma, a certain Jonathan, P/Supt. Edgar B. Roquero, Arsenio C. Gomez, and
Office of the Ombudsman,14 we qualified:
The privilege of the writ of amparo is envisioned basically to protect and guarantee
the rights to life, liberty, and security of persons, free from fears and threats that
vitiate the quality of this life. It is an extraordinary writ conceptualized and adopted in
light of and in response to the prevalence of extra-legal killings and enforced
disappearances. Accordingly, the remedy ought to be resorted to and granted
judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by
the indiscriminate filing of amparo petitions for purposes less than the desire to
secure amparo reliefs and protection and/or on the basis of unsubstantiated
allegations.15
In the recent Nurhida Juhuri Ampatuan v. Judge Virgilio V. Macaraig, RTC, Manila,
Branch 37, Director General Avelino Razon, Jr., Director Geary Barias, PSSupt. Co
Yee M. Co, Jr., and Police Chief Inspector Agapito Quimson,16 we intoned:
The most basic criterion for the issuance of the writ, therefore, is that the individual
seeking such relief is illegally deprived of his freedom of movement or place under
some form of illegal restraint. If an individual’s liberty is restrainted via some legal
process, the writ of habeas corpus is unavailing. Fundamentally, in order to justify the
46
grant of the writ of habeas corpus, the restraint of liberty must be in the nature of an
illegal and involuntary deprivation of freedom of action.
In general, the purpose of the writ of habeas corpus is to determine whether or not a
particular person is legally held. A prime specification of an application for a writ of
habeas corpus, in fact, is an actual and effective, and not merely nominal or moral,
illegal restraint of liberty. The writ of habeas corpus was devised and exists as a
speedy and effectual remedy to relieve persons from unlawful restraint, and as the
best and only sufficient defense of personal freedom. xxx 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.
In passing upon a petition for habeas corpus, a court or judge must first inquire into
whether the petitioner is being restrained of his liberty. If he is not, the writ will be
refused. Inquiry into the cause of detention will proceed only where such restraint
exists. If the alleged cause is thereafter found to be unlawful, then the writ should be
granted and the petitioner discharged. Needless to state, if otherwise, again the writ
will be refused.
While habeas corpus is a writ of right, it will not issue as a matter of course or as a
mere perfunctory operation on the filing of the petition. Judicial discretion is called for
in its issuance and it must be clear to the judge to whom the petition is presented that,
prima facie, the petitioner is entitled to the writ. It is only if the court is satisfied that a
person is being unlawfully restrained of his liberty will the petition for habeas corpus
be granted. If the respondents are not detaining or restraining the applicant of the
person in whose behalf the petition is filed, the petition should be dismissed.17
In the cases at bar, the question before the CA was correctly limited to which hospital,
the NCMH or a medical facility of accused’s own choosing, accused Guisande should
be referred for treatment of a supposed mental condition.18 In addition, we note that it
was procedurally proper for the RTC to ask the NCMH for a separate opinion on
accused’s mental fitness to be arraigned and stand trial. Be that as it may, the CA
allowed the transfer of accused to St. Clare’s Medical Center under the custody of Dr.
Rene Yat, who was required periodically to report on his evaluation, every fifteen (15)
days, to the RTC Mandaluyong City, although in the same breath, the CA also
ordered the continuation of the arraignment and trial of the accused for Qualified
Theft before the same trial court. In other words, Guisande remained in custody of the
law to answer for the non-bailable criminal charge against her, and was simply
allowed to pursue medical treatment in the hospital and from a doctor of her
choice.1avvphi1
Certainly, with the dismissal of the non-bailable case against accused Guisande, she
is no longer under peril to be confined in a jail facility, much less at the NCMH.
Effectively, accused Guisande’s person, and treatment of any medical and mental
malady she may or may not have, can no longer be subjected to the lawful processes
of the RTC Mandaluyong City. In short, the cases have now been rendered moot and
academic which, in the often cited David v. Macapagal-Arroyo,19 is defined as "one
that ceases to present a justiciable controversy by virtue of supervening events, so
that a declaration thereon would be of no practical use or value."
Finally, the Resolutions of the CA and Assistant City Prosecutor Escobar-Pilares,
unmistakably foreclose the justiciability of the petitions before this Court.
In CA-G.R. SP No. 00039, the CA said:
We are also not swayed by [David So’s] argument that [petitioners] advanced lies to
this Court when they stated in their petition that Elena was facing two (2) non-bailable
offenses. During the hearing on the petition for habeas corpus/writ of amparo, the
counsel for [David So] stated that Elena was facing only one (1) non-bailable offense
to which [petitioners] did not anymore object. Besides, the number of non-bailable
offenses is not even material in the instant case for habeas corpus/writ of amparo as
the only issue to be determined here was whether or not Elena’s confinement at
NCMH was lawful.
Finally, the issue in the verified petition, of whether [petitioners] were in contempt of
court, is rendered moot and academic considering that this Court had already
rendered its open court Order on December 8, 2009, which was favorable to [David
So], and it was only later that the latter raised the issue of contempt.
Mandaluyong City RTC, Branch 208 and Syndicated Estafa before the San Juan
Prosecutor’s office. While it may be true that [Guisande] has only one (1) non-bailable
offense pending in court, respondents proved with their evidence that she had others
pending at the time in other forum.
WHEREFORE, premises considered, it is respectfully recommended that the charges
for Falsification under Articles 171 and 172 of the Revised Penal Code filed against
all respondents namely: (1) Judge Esteban A. Tacla, Jr., (2) Dr. Bernardino A.
Vicente, (3) ASG General Magtanggol M. Castro, SSS Diana H. Castañeda-de Vera,
SS Charina A. Soria and AS Jefferson C. Secillano, be DISMISSED for insufficiency
of evidence.21
WHEREFORE, in light of the foregoing disquisition, the petitions in G.R. Nos. 190108
and 190473 for the Writs of Habeas Corpus and Amparo, and review on certiorari
under Rule 45 of the Rules of Court are DENIED for being moot and academic. No
costs.
SO ORDERED.

Finding no merit in [David So’s] verified petition for contempt against [Judge Tacla,
Dr. Vicente and the NCMH], and there being no other objections made by the parties
against Our March 17, 2010 Resolution, the instant petition for habeas corpus/writ of
amparo is declared CLOSED and TERMINATED.

SO ORDERED.20

In XV-07-INV-10B-01371 for Falsification under Articles 171 and 172 of the Revised
Penal Code, the Assistant City Prosecutor made the following findings:

x x x [T]he undersigned finds no probable cause that respondents committed the

charges filed against them.

Examination of the Contract of Confinement which was claimed to have been falsified
reveals that it was merely a photocopy. The supposed full photocopy of the original
copy of the subject contract did not contain any alteration (change) or intercalation
(insertion) that could have changed its meaning or that could have made it speak of
something false. The contents of the contract depicting that [Guisande’s] yaya (Ms.
Galleto) was indeed confined at the NCMH as claimed by respondents to accompany
[Guisande], [So’s] daughter who was confined thereat remained the same.
Respondents explained that they were unaware of the inadvertent partial reproduction
of the document and supported the same with an affidavit of good faith executed by
an NCMH clerk explaining why it was only partially reproduced.

Likewise, respondents’ statement that [Guisande] is "facing non-bailable offenses" is

not absolutely false. Respondents satisfactorily explained that at the time of the filing
of their pleading, they believed in good faith that she was facing more than one non-
bailable offenses (sic) as she was charged with Qualified Theft before the

47
 13- UDK No. 14817               January 13, 2014
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF MINOR SHANG
KO VINGSON YU SHIRLY VINGSON@ SHIRLY VINGSON DEMAISIP, Petitioner,
vs.
JOVY CABCABAN, Respondent.
DECISION
ABAD, J.:
Petitioner Shirly Vingson (Shirly) alleged that Shang Ko Vingson Yu (Shang Ko),1 her
14-year-old daughter, ran away from home on September 23, 2011. On November 2,
2011 Shirly went to the police station in Bacolod City upon receipt of information that
Shang Ko was in the custody of respondent Jovy Cabcaban Cabcaban), a police
officer in that station. Since Cabcaban refused to release Shang Ko to her, Shirly
sought the help of the National Bureau of Investigation NBI) to rescue her child. An
NBI agent, Arnel Pura Pura), informed Shirly that Shang Ko was no longer with
Cabcaban but was staying with a private organization called Calvary Kids. Pura told
her, however, that the child was fine and had been attending school.
This prompted petitioner Shirly to file a petition for habeas corpus against respondent
Cabcaban and the unnamed officers of Calvary Kids before the Court of Appeals (CA)
rather than the Regional Trial Court of Bacolod City citing as reason several threats
against her life in that city.
In a Resolution dated December 18, 2012,2 the CA resolved in CA-G.R. SP 07261 to
deny the petition for its failure to clearly allege who has custody of Shang Ko.
According to the CA, habeas corpus may not be used as a means of obtaining
evidence on the whereabouts of a person or as a means of finding out who has
specifically abducted or caused the disappearance of such person.3 The CA denied
petitioner Shirly’s motion for reconsideration on January 8, 2013, hence, this petition
for review.
In her Comment,4 respondent Cabcaban claimed that on September 28, 2011 police
officers found Shang Ko crying outside a church. When queried, the latter refused to
give any information about herself. Thus, they indorsed her case to the Bacolod City
Police Women and Children Protection Desk that Cabcaban headed. After the initial
interview, Cabcaban referred Shang Ko to Balay Pasilungan , a temporary shelter for
abused women and children.
Respondent Cabcaban further claimed that on the next day, a social worker sat with
the minor who said that her mother Shirly had been abusive in treating her. She
narrated that on September 27, 2011 Shirly instructed another daughter to give
Shang Ko ₱280.00 and take her to the pier to board a boat going to Iloilo City.5 Shang
Ko was told to look for a job there and to never come back to Bacolod City. Since she
had nowhere to go when she arrived in Iloilo City, Shang Ko decided to return to
Bacolod City with the money given her. She went to her best friend’s house but was
48
turned away for fear of Shirly. She called her sister so that she and her boyfriend
could get her but they, too, turned her down.6
Respondent Cabcaban also claimed that Shang Ko pleaded with the police and the
social worker not to return her to her mother. As a result, the Bacolod City Police filed
a complaint7 against petitioner Shirly for violation of Republic Act 7610 or the Special
Protection of Children Against Abuse, Exploitation, and Discrimination Act. The police
sent notice to Shirly inviting her to a conference but she refused to receive such
notice. Two days later, however, she came and spoke to Cabcaban, pointing out that
Shang Ko had been a difficult child with a tendency to steal. From their conversation,
Cabcaban surmised that Shirly did not want to take her daughter back, having offered
to pay for her daily expenses at the shelter.
Respondent Cabcaban said that on October 29, 2011 she decided to turn over Shang
Ko to the Calvary Kids, a private organization that gave sanctuary and schooling to
abandoned and abused children.8 On November 2, 2011 petitioner Shirly showed up
at the police station asking for her daughter. Cabcaban told her that Shang Ko was in
a sanctuary for abandoned children and that the police officer had to first coordinate
with it before she can disclose where Shang Ko was. But Shirly was adamant and
threatened her with a lawsuit. Cabcaban claimed that Shang Ko’s father was a
Taiwanese and that Shirly wanted the child back to use her as leverage for getting
financial support from him.
Respondent Cabcaban further claimed that one year later, NBI agents led by Pura
went to the police station to verify Shirly’s complaint that Cabcaban had kidnapped
Shang Ko. Cabcaban accompanied the NBI agents to Calvary Kids to talk to the
institution’s social worker, school principal, and director. They provided the NBI
agents with the child’s original case study report9 and told them that it was not in
Shang Ko’s best interest to return her to her mother who abused and maltreated her.
Shang Ko herself told the NBI that she would rather stay at Calvary Kids because she
was afraid of what would happen to her if she returned home.10 As proof, Shang Ko
wrote a letter stating that, contrary to her mother’s malicious insinuations, Cabcaban
actually helped her when she had nowhere to go after her family refused to take her
back.11
Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus is
available, not only in cases of illegal confinement or detention by which any person is
deprived of his liberty, but also in cases involving the rightful custody over a
minor.12 The general rule is that parents should have custody over their minor
children. But the State has the right to intervene where the parents, rather than care
for such children, treat them cruelly and abusively, impairing their growth and well-
being and leaving them emotional scars that they carry throughout their lives unless
they are liberated from such parents and properly counseled.
Since this case presents factual issues and since the parties are all residents of
Bacolod City, it would be best that such issues be resolved by a Family Court in that
city. Meantime, considering the presumption that the police authorities acted regularly
in placing Shang Ko in the custody of Calvary Kids the Court believes that she should
remain there pending hearing and adjudication of this custody case. Besides she
herself has expressed preference to stay in that place.

WHEREFORE, the Court SETS ASIDE the Court of Appeals Resolutions in CA-G.R.
SP 07261 dated December 18, 2012 and January 8, 2013 and ORDERS this custody
case forwarded to the Family Court of Bacolod City for hearing and adjudication as
the evidence warrants. Meantime until such court orders otherwise let the minor
Shang Ko Vingson remain in the custody of Calvary Kids of Bacolod City.

Further the Court ORDERS petitioner Shirly Vingson Shirly Vingson Demaisip to pay
the balance of the docket and other legal fees within 10 days from receipt of this
Resolution.

SO ORDERED.

49
14- G.R. No. 182855               June 5, 2013
MR. ALEXANDER "LEX" ADONIS, represented by the CENTER FOR MEDIA
FREEDOM AND RESPONSIBILITY (CMFR), through its Executive Director, MRS.
MELINDA QUINTOS-DE JESUS; and the NATIONAL UNION OF JOURNALISTS
OF THE PHILIPPINES (NUJP), through its Chairperson, MR. JOSE TORRES,
JR., Petitioners,
vs.
SUPERENTENDENT VENANCIO TESORO, DIRECTOR, DAVAO PRISONS AND
PENAL FARM, PANABO CITY, DIGOS DAVAO DEL NORTE, Respondent.
RESOLUTION
REYES, J.:
This is a Petition for the Issuance of the Writ of Habeas Corpus1 under Rule 102 of
the 1997 Rules of Court filed by petitioner Alexander Adonis (Adonis), praying that the
Court directs respondent Superintendent Venancio Tesoro (respondent), Director of
the Davao Prisons and Penal Farm, to have the body of the former brought before
this Court and in the alternative, praying for the application of the Supreme Court
Administrative Circular No. 08-2008,2 which imposes the penalty of a fine instead of
imprisonment in Criminal Case No. 48679-2001.3
Antecedent Facts
In Criminal Case No. 48679-2001, Adonis was convicted by the Regional Trial Court
of Davao City (RTC), Branch 17 for Libel, filed against him by then Representative
Prospero Nograles. He was sentenced to an indeterminate sentence of five (5)
months and one (1) day of arresto mayor maximum, as minimum penalty, to four (4)
years, six (6) months and one (1) day of prision correccional medium, as maximum
penalty.4 He began serving his sentence at the Davao Prisons and Penal Farm on
February 20, 2007.5
A second libel case, docketed as Criminal Case No. 48719-2001 was likewise filed
against Adonis by Jeanette L. Leuterio, pending before the RTC of Davao City,
Branch 14.6
On December 11, 2007, the Board of Pardons and Parole (BPP) issued an order for
the Discharge on Parole of seven (7) inmates in various jails in the country, which
included Adonis. The said document was received by the City Parole and Probation
Office of Davao on May 2, 2008.7
Meanwhile, on January 25, 2008, this Court issued Administrative Circular No. 08-
2008, the subject of which is the "Guidelines in the Observance of a Rule of
Preference in the Imposition of Penalties in Libel Cases."
In view of these developments, Adonis, on April 18, 2008 filed with the RTC Branch
17 a Motion to Reopen Case (With Leave of Court),8 praying for his immediate
release from detention and for the modification of his sentence to payment of fine
pursuant to the said Circular.
50
On May 26, 2008, in Criminal Case No. 48719-2001 before the RTC Branch 14,
Adonis moved for his provisional release from detention. The motion was granted by
Presiding Judge George Omelio in open court and he was allowed to post bail in the
amount of ₱5,000.9 Subsequently on even date and after Adonis filed a cash bond
and an undertaking,10 the trial court issued an Order directing the Chief of Davao
Penal Colony "to release the accused Alexis Adonis unless he is being held for some
other crimes or offenses."11 On the same date, the said order was served to the
respondent,12 but the release of Adonis was not effected.
On May 30, 2008, Adonis filed the instant petition for the issuance of a writ of habeas
corpus alleging that his liberty was restrained by the respondent for no valid reason.13
The respondent consequently filed his Comment.14 Adonis then filed on October 27,
2008 an Urgent Motion to Resolve15 and on November 7, 2008 a Manifestation and
Motion,16 reiterating all his previous prayers.
On February 11, 2009, the Court received the letter from the respondent, informing
the Court that Adonis had been released from confinement on December 23, 2008
after accepting the conditions set forth in his parole and with the advise to report to
the City Parole and Probation Officer of Davao.17
The Court’s Ruling
The petition is without merit.
The ultimate purpose of the writ of habeas corpus is to relieve a person from unlawful
restraint. The writ exists as a speedy and effectual remedy to relieve persons from
unlawful restraint and as an effective defense of personal freedom. It is issued only
for the lone purpose of obtaining relief for those illegally confined or imprisoned
without sufficient legal basis. It is not issued when the person is in custody because of
a judicial process or a valid judgment.18
Section 4, Rule 102 of the Revised Rules of Court provides when a writ must not be
allowed or discharge authorized, to wit:
SEC. 4. When writ not allowed or discharge authorized.― If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a court of record, and
that the court or judge had jurisdiction to issue the process, render the judgment, or
make the order, the writ shall not be allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged by reason of any informality or
defect in the process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under lawful judgment.
In the instant case, Adonis was convicted for libel by the RTC Branch 17, in Criminal
Case No. 48679-2001.1âwphi1 Since his detention was by virtue of a final judgment,
he is not entitled to the Writ of Habeas Corpus. He was serving his sentence when
the BPP granted him parole, along with six (6) others, on December 11, 2007.19 While
it is true that a convict may be released from prison on parole when he had served
the minimum period of his sentence; the pendency of another criminal case, however,
is a ground for the disqualification of such convict from being released on
parole.20 Notably, at the time he was granted the parole, the second libel case was
pending before the RTC Branch 14.21 In fact, even when the instant petition was filed,
Criminal Case No. 48719-01 was still pending. The issuance of the writ under such
circumstance was, therefore, proscribed. There was basis for the respondent to deny
his immediate release at that time.

Further, Adonis seeks the retroactive application of Administrative Circular No. 08-
2008, citing Fermin v. People,22 where the Court preferred the imposition of the fine
rather than imprisonment under the circumstances of the case. Administrative
Circular No. 08-2008, was issued on January 25, 2008 and provides the "guidelines
in the observance of a rule of preference in the imposition of penalties in libel cases."
The pertinent portions read as follows:

All courts and judges concerned should henceforth take note of the foregoing rule of
preference set by the Supreme Court on the matter of the imposition of penalties for
the crime of libel bearing in mind the following principles:

1. This Administrative Circular does not remove imprisonment as an alternative

penalty for the crime libel under Article 355 of the Revised Penal Code;

2. The Judges concerned may, in the exercise of sound discretion, and taking into
consideration the peculiar circumstances of each case, determine whether the
imposition of a fame alone would best serve the interests of justice or whether
forbearing to impose imprisonment would depreciate the seriousness of the offense,
work violence on the social order, or otherwise be contrary to the imperative of
justice;

3. Should only a fine be imposed and the accused be unable to pay the fine, there is
no legal obstacle to the application of the Revised Penal Code provision on subsidiary
imprisonment.23 (Emphasis ours)

A clear reading of the Administration Circular No. 08-2008 and considering the
attendant circumstances of the case, the benefits of the administrative circular can
not be given retroactive effect in Criminal Case No. 48679-2001. It is too late in the
day for Adonis to raise such argument considering that Criminal Case No. 48679-
2001 has already become final and executory; and he had, in fact, already
commenced serving his sentence. Eventually, he was released from confinement on
December 23, 2008 after accepting the conditions of the parole granted to him.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

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15- G.R. No. 162734 August 29, 2006
MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO B. SALIENTES, and
ROSARIO C. SALIENTES, Petitioners,
vs.
LORAN S.D. ABANILLA, HONORABLE JUDGE PEDRO SABUNDAYO, JR.,
REGIONAL TRIAL COURT, BRANCH 203, MUNTINLUPA CITY, Respondents
DECISION
QUISUMBING, J.:
The instant petition assails the Decision 1dated November 10, 2003 of the Court of
Appeals in CA-G.R. SP No. 75680, which dismissed the petition for certiorari against
the orders of the Regional Trial Court in Special Proceedings No. 03-004. Likewise
assailed is the Court of Appeals’ Resolution 2dated March 19, 2004 denying
reconsideration.
The facts of the case are as follows:
Private respondent Loran S.D. Abanilla and petitioner Marie Antonette Abigail C.
Salientes are the parents of the minor Lorenzo Emmanuel S. Abanilla. They lived with
Marie Antonette’s parents, petitioners Orlando B. Salientes and Rosario C. Salientes.
Due to in-laws problems, private respondent suggested to his wife that they transfer
to their own house, but Marie Antonette refused. So, he alone left the house of the
Salientes. Thereafter, he was prevented from seeing his son.
Later, Loran S.D. Abanilla in his personal capacity and as the representative of his
son, filed a Petition for Habeas Corpus and Custody, 3 docketed as Special
Proceedings No. 03-004 before the Regional Trial Court of Muntinlupa City. On
January 23, 2003, the trial court issued the following order:
Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the Respondents
Marie Antonette Abigail C. Salientes, Orlando B. Salientes and Rosario C. Salientes
are hereby directed to produce and bring before this Court the body of minor Lorenzo
Emmanuel Salientes Abanilla on January 31, 2003 at 1:00 o’clock in the afternoon
and to show cause why the said child should not be discharged from restraint.
Let this Writ be served by the Sheriff or any authorized representative of this Court,
who is directed to immediately make a return.
SO ORDERED.  4
Petitioners moved for reconsideration which the court denied.
Consequently, petitioners filed a petition for certiorari with the Court of Appeals, but
the same was dismissed on November 10, 2003. The appellate court affirmed the
February 24, 2003 Order of the trial court holding that its January 23, 2003 Order did
not award the custody of the 2-year-old child to any one but was simply the standard
order issued for the production of restrained persons. The appellate court held that
the trial court was still about to conduct a full inquiry, in a summary proceeding, on the
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cause of the minor’s detention and the matter of his custody. The Court of Appeals
ruled thus:
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED. 5
Petitioners moved for reconsideration, which was denied on March 19, 2004.
Hence, petitioners interposed this appeal by certiorari anchored on the following
grounds:
1. The Court of Appeals erred in not pronouncing the respondent judge gravely
abused his discretion, amounting to lack or in excess of jurisdiction in issuing an order
for the petitioner-mother to first show cause why her own three-year old child in her
custody should not be discharged from a so-called "restraint" despite no evidence at
all of restraint and no evidence of compelling reasons of maternal unfitness to deprive
the petitioner-mother of her minor son of tender years. The assailed orders,
resolutions and decisions of the lower court and the Court of Appeals are clearly void;
2. The Court of Appeals erred in not pronouncing that the respondent judge gravely
abused his discretion in issuing a writ of habeas corpus which clearly is not warranted
considering that there is no unlawful restraint by the mother and considering further
that the law presumes the fitness of the mother, thereby negating any notion of such
mother illegally restraining or confining her very own son of tender years. The petition
is not even sufficient in substance to warrant the writ. The assailed orders are clearly
void.
3. Contrary to the Court of Appeals decision, the "Sombong vs. CA" case supports
rather than negates the position of the petitioners.
4. Contrary to the Court of Appeals decision, summary proceeding does violence to
the tender-years-rule
5. The Court of Appeals failed to consider that the private respondent failed to present
prima facie proof of any compelling reason of the unfitness of the petitioner-mother;
6. The Court of Appeals failed to see that the New Rules on Custody SUFFICES AS
REMEDY. 6
Plainly put, the issue is: Did the Court of Appeals err when it dismissed the petition for
certiorari against the trial court’s orders dated January 23, 2003 and February 24,
2003?
Petitioners contend that the order is contrary to Article 213 7 of the Family Code,
which provides that no child under seven years of age shall be separated from the
mother unless the court finds compelling reasons to order otherwise. They maintain
that herein respondent Loran had the burden of showing any compelling reason but
failed to present even a prima facie proof thereof.
Petitioners posit that even assuming that there were compelling reasons, the proper
remedy for private respondent was simply an action for custody, but not habeas
corpus. Petitioners assert that habeas corpus is unavailable against the mother who,
under the law, has the right of custody of the minor. They insist there was no illegal or
involuntary restraint of the minor by his own mother. There was no need for the
mother to show cause and explain the custody of her very own child.
Private respondent counters that petitioners’ argument based on Article 213 of the
Family Code applies only to the second part of his petition regarding the custody of
his son. It does not address the first part, which pertains to his right as the father to
see his son. He asserts that the writ of habeas corpus is available against any person
who restrains the minor’s right to see his father and vice versa. He avers that the
instant petition is merely filed for delay, for had petitioners really intended to bring the
child before the court in accordance with the new rules on custody of minors, they
would have done so on the dates specified in the January 23, 2003 and the February
24, 2003 orders of the trial court.
Private respondent maintains that, under the law, he and petitioner Marie Antonette
have shared custody and parental authority over their son. He alleges that at times
when petitioner Marie Antonette is out of the country as required of her job as an
international flight stewardess, he, the father, should have custody of their son and
not the maternal grandparents.
Again, it bears stressing that the order did not grant custody of the minor to any of the
parties but merely directed petitioners to produce the minor in court and explain why
private respondent is prevented from seeing his child. This is in line with the directive
in Section 9 14 of A.M. 03-04-04-SC 15 that within fifteen days after the filing of the
answer or the expiration of the period to file answer, the court shall issue an order
requiring the respondent (herein petitioners) to present the minor before the court.
This was exactly what the court did.
Moreover, Article 213 of the Family Code deals with the judicial adjudication of
custody and serves as a guideline for the proper award of custody by the court.
Petitioners can raise it as a counter argument for private respondent’s petition for
custody. But it is not a basis for preventing the father to see his own child. Nothing in
the said provision disallows a father from seeing or visiting his child under seven
years of age.
In sum, the trial court did not err in issuing the orders dated January 23, 2003 and
February 24, 2003. Hence, the Court of Appeals properly dismissed the petition for
certiorari against the said orders of the trial court.
WHEREFORE, the petition is DENIED. The Decisiondated November 10, 2003 and
the Resolutiondated March 19, 2004 of the Court of Appeals in CA-G.R. SP No.
75680 are AFFIRMED. Costs against petitioners.

As correctly pointed out by the Court of Appeals, the assailed January 23, 2003 Order SO ORDERED.
of the trial court did not grant custody of the minor to any of the parties but merely
directed petitioners to produce the minor in court and explain why they are restraining
his liberty. The assailed order was an interlocutory order precedent to the trial court’s
full inquiry into the issue of custody, which was still pending before it.

Under Rule 41, Section 1 8 of the Rules of Court, an interlocutory order is not
appealable but the aggrieved party may file an appropriate special action under Rule
65. The aggrieved party must show that the court gravely abused its discretion in
issuing the interlocutory order. In the present case, it is incumbent upon petitioners to
show that the trial court gravely abused its discretion in issuing the order.

Habeas corpus may be resorted to in cases where rightful custody is withheld from a

person entitled thereto. 9 Under Article 211 10 of the Family Code, respondent Loran
and petitioner Marie Antonette have joint parental authority over their son and
consequently joint custody. Further, although the couple is separated de facto, the
issue of custody has yet to be adjudicated by the court. In the absence of a judicial
grant of custody to one parent, both parents are still entitled to the custody of their
child. In the present case, private respondent’s cause of action is the deprivation of
his right to see his child as alleged in his petition. 11 Hence, the remedy of habeas
corpus is available to him.

In a petition for habeas corpus, the child’s welfare is the supreme consideration. The
Child and Youth Welfare Code 12 unequivocally provides that in all questions
regarding the care and custody, among others, of the child, his welfare shall be the
paramount consideration. 13
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