SPECIAL PROCEEDINGS

FINAL EXAM COVERAGE

Based on the lectures of:

Atty. Emmanuel Ceriales, CPA 1. Under Rule 91, Section 1
 When a person died intestate,
RULE 91 with real properties within the
ESCHEATS Philippines leaving no heir.

In the previous Rules we have discussed the 2. Under Rule 91, Section 5
rules as to the distribution of the estate of the  A petition for Reversion of
decedent, in Rule 91 we have a situation property alienated in violation of
wherein the decedent has no heirs of someone the Constitution of statute.
entitled to his or her property or no person
named in the will of the decedent has no will at Ex. Violation of CARL,
all. registration of land that it is not
declared alienable and
Who is entitled to the properties? The last heir is disposable, ownership of land
the State. This will be escheated in favor of the more than what is required
state pursuant to the Regalian Doctrine that all under the constitution.
properties here belong to the state.
3. Act No. 3936
Nature of the Proceedings:  For the unclaimed balances in
banks. These can also be subject
Escheat is a proceeding whereby the state, by to escheat proceedings (refer to
virtue of its sovereignty, steps in and claims the banking laws).
real or personal property of a person who dies
intestate leaving no heir. In the absence of a Within ten (10) years, unclaimed
lawful owner, a property is claimed by the balance, the government will
estate to forestall an open “invitation to self- escheat the balances.
service first comers.” – Republic v. CA, GR. No.
143483, January 31, 2002. Requisites for the Filing:

1. A person died intestate;

Section 1. When an by whom petition filed. — When
2. The decedent left no heirs or person
a person dies intestate, seized of real property in
entitled to the same by law; and
the Philippines, leaving no heir or person by law
3. The deceased left properties in the
entitled to the same, the Solicitor General or his
Philippines.
representative in behalf of the Republic of the
Philippines, may file a petition in the Court of
Where to file?
First Instance of the province where the deceased
last resided or in which he had estate, if he
 Regional Trial Court (RTC) of the place
resided out of the Philippines, setting forth the
where the deceased last resided or in
facts, and praying that the estate of the deceased
which he had estate, if he was non-
be declared escheated.
resident. Rule 91, Section 1.
Principle behind the rule: Who may file the petition?
Escheat proceedings rest on the principle of Estate proceeding must be initiated by the
ultimate ownership by the state of all property Solicitor General (Regalian Doctrine)
within its jurisdiction – Special Proceedings
(Essentials for Bench and Bar), De Leon and All interested parties, such as the actual
Wilwayco. occupant and the adjacent lot owners shall be
personally notified of the proceedings and given
Three (3) kinds of Escheat: the opportunity to present their valid claims,
otherwise, the property will be reverted to the
A petition for Escheat may be filed under three state. – Republic vs. Solano.
(3) circumstances, viz:

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Can a private individual initiate or file an
escheat proceeding? NO, only the state through
the office of the Solicitor General can
file/initiate an estate proceeding because the
real party in interest here is the state. But a
private individual may file a claims to petition.
In all actions for reversion to the Government of
the land of public domain or improvements
thereon, the Republic of the Philippines is the
real party-in-interest. The action shall be
instituted by the solicitor General or the officer
acting in behalf of the Republic of the
Philippines. – Manese v. Spouses Velasco, G.R. No.
164024, January 29, 2009
Who may oppose the Petition? The petition
may be opposed by any Interested Party.
 Interested party is any alleging to have a
right or interest in the property sought
to be escheated.
Ex.: Persons who have legal claims over
the property such as heirs or creditors.
 The interested party may oppose the
petition for escheat or may also file a
claim thereto with the court within the
period provided for in Rule 91, Section
4.
Escheat proceedings cannot be converted into
settlement of estate.
 The proceedings were instituted as
escheat proceedings and not for the
settlement of estate of deceased persons.
The court acquired jurisdiction to hear
the petition for the escheat by virtue of
the publication of the petition for
escheat. The jurisdiction acquired
cannot be converted into one for the
distribution of the properties of the
decedent, [since in order to institute the
latter], the proper petition must be
presented and the proceedings should
comply with the requirements of the
[Rules of Court] – Municipality of
Magallon v. Bezore.
Section 2. Order for hearing. — If the petition
is sufficient in form and substance, the court,
by an order reciting the purpose of the
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petition, shall fix a date and place for the
hearing thereof, which date shall be not more
than six (6) months after the entry of the
order, and shall direct that a copy of the order
be published before the hearing at least once
a week for six (6) successive weeks in some
newspaper of general circulation published in
the province, as the court shall be deem best.
Publication of the notice of hearing is a
jurisdictional requirement; non-compliance
with which affects the validity of the
proceedings. – Divina v. Hilario
(Note: Publication from Rule 75 onwards is a
jurisdictional requirement, however, Rule 74
[Summary Settlement of Estates] is not.
Section 3. Hearing and judgment. — Upon
satisfactory proof in open court on the date
fixed in the order that such order has been
published as directed and that the person
died intestate, seized of real or personal
property in the Philippines, leaving no heir or
person entitled to the same, and no sufficient
cause being shown to the contrary, the court
shall adjudge that the estate of the estate of
the deceased in the Philippines, after the
payment of just debts and charges, shall
escheat; and shall, pursuant to law, assign the
personal estate to the municipality or city
where he last resided in the Philippines, and
the real estate to the municipalities or cities,
respectively, in which the same is situated. If
the deceased never resided in the Philippines,
the whole estate may be assigned to the
respective municipalities or cities where the
same is located. Shall estate shall be for the
benefit of public schools, and public
charitable institutions and centers in said
municipalities or cities.
The court, at the instance of an interested
party, or on its own motion, may order the
establishment of a permanent trust, so that
the only income from the property shall be
used.
Manner of Distribution (provided all
requisites are present)
Decedent was a resident of the Philippines
Personal Property Municipality of City
where he last resided
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in the Philippines
Real Property Municipalities or
Cities in which the
property is situated.
Decedent was not a resident in the
Philippines
Respective
municipalities or
cities where the
properties are located.
Section 4. When and by whom claim to estate
filed. — If a devisee, legatee, heir, widow,
widower, or other person entitled to such
estate appears and files a claim thereto with
the court within five (5) years from the date
of such judgment, such person shall have
possession of and title to the same, or if sold,
the municipality or city shall be accountable
to him for the proceeds after deducting
reasonable charges for the care of the estate;
but a claim not made within the said time
shall be forever barred.
Earlier we discussed that an Escheat proceeding
cannot be converted to a settlement of estate
proceedings [if an interested party appears],
because the requirements under settlement of
estate is different from escheat proceedings.
Rule 91, Section 4 vis-à-vis Article 1014 of the
Civil Code:
Art. 1014. If a person legally entitled to the
estate of the deceased appear and files a claim
thereto with the court within five (5) years
from the date the property was delivered to
the State, such person shall be entitled to the
possession of the same, or if sold, the
municipality or city shall be accountable to
him for such part of the proceeds ad may not
have been lawfully spent. (n)
As mentioned, the appearance of the heir, if
there is an on-going escheat proceeding cannot
be converted to a settlement proceeding, the
heirs may file a claim to recover the said
property.
The heirs should prove their rights to the said
property by adducing proof that they are lawful
heirs of the decedent. In such case, if there is
sufficient proof (like birth certificate), the heirs
can claim the said properties without converting
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it to settlement proceedings establishing or
proving that they legally entitled to said
properties as such there are entitled to the
possession of the same, or if sild, the
municipality or city shall be accountable to him,
except amounts that are lawfully spent for the
maintenance of the property.
Take note of the period upon which they can file
a claim: FIVE YEARS
Section 5. Other actions for escheat. — Until
otherwise provided by law, actions reversion
or escheat of properties alienated in violation
of the Constitution or of any statute shall be
governed by this rule, except that the action
shall be instituted in the province where the
land lies in whole or in part.
The above provision provides that the same rule
applies to escheated properties in violation of
the Constitution or any statute. (Ex. CARL and
Banking Laws)
Escheat of unclaimed balances
 Dormant accounts for ten (10) years
(Unclaimed Balances Act, Act. No. 3936,
as amended by P.D. No. 679)
 An action to recover unclaimed balances
shall be commenced by the Solicitor
General in an action for escheat in the
name of the People of the Philippines in
the RTC of the province where the bank
is located in which shall be joined das
parties the banks and such creditors or
depositors. – Republic v. Pres. Roxas Rural
Bank, Inc.
Procedure:
1. Filing of Petition:
 Where the decedent last resided
 Where the decedent had estate, if not
resident of the Philippines.
 Petitioner: OSG or his representative
2. Court Order:
 Fix a date for the hearing (not more
than 6 months from entry of order)
3. Publication:
 Once a week for 6 consecutive weeks
in some newspaper of general
circulation published in the province.
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4. Hearing: A.M. No. 03-02- Rules of

 Proof of publication 05-SC (Rules of Guardianship
 Petitioner must establish: Guardianship of
1. Person died intestate of Minors) Incapacitated
2. The deceased left properties in Persons
the Philippines, and Coverage Covers the Only deals
3. Decedent left no heir or person or with
person entitled to the same property or incapacitated
5. Payment of debts and charges both the minor persons who
6. Court Order/Manner of Distribution and the ward. are 18 years old
Resident Decedent and above.
 Assign personal estate to the If the
municipality or city where the incapacitated
decedent last resided. person is also a
 Assign real estate to the minor this A.M.
municipalities/cities respectively in will also apply.
which the same is situated
Non-resident Decedent Note:
 Assign whole estate to the respective  Rules of Guardianship of Incapacitated
municipalities or cities where the Persons under the Rules of court apply
same is located. suppletorily to A.M. 03-02-05-SC.
7. File Claims  In case of conflicts regarding the rules,
the provisions under A.M. 03-02-05-SC
 Devisee, legatee, heir, widow,
shall prevail.
widower, or other person entitled to
such estate.
Guardianship over Incompetents:
 File a claim within 5 years from the
date of judgment.
Rule 92-97 govern guardianship over
incompetents, which include the following
RULE 92
persons, (Sec. 2, Rule 92):
GENERAL GUARDIANS AND
GUARDIANSHIP
1. Persons suffering under the penalty of
civil interdiction;
Guardianship – is a trust relation in which one
2. Hospitalized lepers;
person called a “guardian” acts for another
3. Prodigals;
called a “ward” whom the law regards as
4. Deaf and dumb who are unable to read
incapable of managing his own affairs. A
and write;
guardianship is designed to further the ward’s
5. Those of unsound mind, but by reason
well-being, not that of the guardian. It is
of age, disease, weak mind, and other
intended to preserve the ward’s property, as
similar causes, cannot, without outside
well as to render any assistance that the ward
aid, take care of themselves and manage
may personally require – Oropesa v. Oropesa.
their property.
Basis of Guardianship
Guardianship over Minors:
Where minors are involved, the State acts as
1. Covers minors under A.M. 03-02-05-SC
parens patriae. It is the duty of protecting the
rights of persons or individuals who because of
Other governing Rules and laws for
age incapability are in an unfavorable position
Guardianship over Minors:
vis-à-vis other parties – De Leon v. Lorenzo
1. Rule on Examination of a Child Witness
What are the difference between A.M. 03-02-
(A.M. No. 00-4-07-SC), effective
05-SC and Rules of Guardianship of
December 15, 2000
Incapacitated in the Rules of Court?

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2. Rule n Juveniles in Conflict with the
Law (A.M. No. 02-1-18-SC), effective
April 15, 2002
3. Rule on Commitment of Children (A.M.
No. 02-1-19-SC), effective April 15, 2002
4. Rule on Domestic and Inter-Country
Adoption (A.M. No. 02-6-02-SC),
effective August 22, 2002
5. Rule on Declaration of Absolute Nullity
of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-
SC), effective March 15, 2003
6. Rule on Legal Separation (A.M. No. 02-
11-11-SC) effective March 15, 2003
7. Rule on Provisional Orders (A.M. No.
02-11-12-SC) effective March 15, 2003
8. Rule on Custody of Minors and Writ of
Habeas Corpus in relation to Minors
(A.M. 03-04-04-SC) effective, May 15,
2003
9. Rule on VAWC (A.M. No. 04-10-11-SC)
effective November 15, 2004
KINDS OF GUARDIANSHIP
According to scope:
1. Guardian of the person – has been
lawfully invested with the care of the
person of the minor or incompetent;
2. Guardian of the property – appointed to
have management of the estate of a
minor or incompetent; or
3. General Guardian – appointed to have
the care and custody of the person and
of all the property of the ward.
According to the manner of constitution:
1. Legal Guardian – a guardian by
provision of law without the need of
judicial appointment, as in the case of
parents over the persons of their minor
children.
2. Guardian ad litem – is a competent
person appointed by the court for
purposes of a particular action or
proceeding involving a minor
3. Judicial guardian – is a person
appointed by the court for the person,
property, or both, of the ward to
represent the latter in all acts and
litigations.
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RULE ON THE GUARDIANSHIP OF
INCOMPETENTS OTHER THAN MINORS
RULE 92
Section 1. Where to institute proceedings. —
Guardianship of a person or estate of a minor or
incompetent may be instituted in the Court of First
Instance of the province, or in the justice of the
peace court of the municipality, or in the municipal
court chartered city where the minor or incompetent
persons resides, and if he resides in a foreign
country, in the Court of First Instance of the
province wherein his property or the party thereof
is situated;  provided, however, that where the value of
the property of such minor or incompetent exceeds
that jurisdiction of the justice of the peace or
municipal court, the proceedings shall be instituted
in the Court of First Instance.
In the City of Manila the proceedings shall be
instituted in the Juvenile and Domestic Relations
Court.
Rule 92, Section 1 (Venue)
 Regional Trial Courts (RTC) have
jurisdiction over guardianship
proceedings under the Rules of Court.
 Where the ward is a resident – the
proceedings should be filed in the RTC
of the Province where such wards
reside.
 Where the wards reside in a foreign
country – the petition must be filed in
the RTC of the province where his
property is situated.
NB: If guardianship of a minor, the petition
shall be filed before the Family Courts. (All
cases involving a minor, Family Courts has
jurisdiction whether criminal or civil case)
Section 2. Meaning of word "incompetent." —
Under this rule, the word "incompetent"
includes persons suffering the penalty of civil
interdiction or who are hospitalized lepers,
prodigals, deaf and dumb who are unable to
read and write, those who are of unsound
mind, even though they have lucid intervals,
and persons not being of unsound mind, but
by reason of age, disease, weak mind, and
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other similar causes, cannot, without outside needs to be isolated leper.

aid, take care of themselves and manage their hospitalized.  Anyone interested
property, becoming thereby an easy prey for  Any one in the estate.
deceit and exploitation. interested in the
estate of a non-
Section 3. Transfer of venue. — The court resident minor.
taking cognizance of a guardianship
proceeding, may transfer the same to the
court of another province or municipality Section 2. Contents of petition. — A petition for
wherein the ward has acquired real property, the appointment of a general guardian must
if he has transferred thereto his bona- show, so far as known to the petitioner:
fide residence, and the latter court shall have
full jurisdiction to continue the proceedings, (a) The jurisdiction facts;
without requiring payment of additional
court fees. (b) The minority or incompetency
rendering the appointment necessary
or convenient;
RULE 93
APPOINTMENT OF GUARDIANS (c) The names, ages, and residence of
the relatives of the minor or
Section 1. Who may petition for appointment of incompetent, and of the person
guardian for resident. — Any relative, friend, or having him in their care;
other person on behalf of a resident minor or
incompetent who has no parent or lawful (d) The probable value and character
guardian, or the minor himself if fourteen of his estate;
years of age or over, may petition the court
having jurisdiction for the appointment of a
(e) The name of the person for whom
general guardian for the person or estate, or
letters of guardianship.
both, of such minor or incompetent. An
officer of the Federal Administration of the
The petition shall be verified; but no defect in
United States in the Philippines may also file
the petition or verification shall render void
a petition in favor of a ward thereof, and the
the issuance of letters of guardianship.
Director of Health, in favor of an insane
person who should be hospitalized, or in
favor of an isolated leper. Jurisdictional facts that must be alleged in the
Petition
Who may file a petition for appointment of a In re: Minor In re: Incompetent
guardian for residents?  Name, age, and  Incompetency
residence of the rendering
With respect to a With respect to an
prospective ward; appointment
minor (A.M. No. 03- incompetent other
 Ground rendering necessary or
02-05-SC) than a minor
the appointment convenient;
 Relative  Relative
necessary or  Names, ages, and
 Other person on  Friend
convenient; residences of
behalf of the  Other person on
 Death of the relatives of the
minor behalf of the
parents of the minor or
 Minor himself if incompetent who
minor, or the incompetent, and
14 years old or has no parent or
termination, of the person
older lawful guardian.
deprivation, or having him in
 Secretary of  Director of Health
suspension of their their care;
DSWD and favor of an insane
parental authority;  Probable value
Secretary of DoH person who should
 Remarriage of the and character of
in case of an be hospitalized or
minor’s surviving his estate; and
insane minor who in favor of an
parent;  Name of the

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 Names, ages, and person for whom the court acquires no jurisdiction to
residences of letters of appoint a guardian.
relatives within 4th guardianship are
civil degree of the prayed.  However, the creditors of the minor or
minor, and of incompetent are not required to be
persons having identified and notified.
him in their care
and custody. Section 4. Opposition to petition. — Any interested
 Probable value, person may, by filing a written opposition, contest
character and the petition on the ground of majority of the alleged
location of the minor, competency of the alleged incompetent, or
property of the the unsuitability of the person for whom letters are
minor, and prayed, and may pray that the petition be
 Name, age, and dismissed, or that letters of guardianship issue to
residence of himself, or to any suitable person named in the
person whom opposition.
letters of
guardianship are
prayed. NB: The majority of the alleged minor as a
ground is not applicable anymore under Section
4.
Section 3. Court to set time for hearing. Notice
thereof.  — When a petition for the Grounds for Opposition of Petition:
appointment of a general guardian is filed, the
court shall fix a time and place for hearing the 1. Competency of the alleged incompetent;
same, and shall cause reasonable notice 2. Unsuitability of the person for whom
thereof to be given to the persons mentioned letters are prayed.
in the petition residing in the province,
Section 5. Hearing and order for letters to issue. — At
including the minor if above 14 years of age
the hearing of the petition the alleged in competent
or the incompetent himself, and may direct
must be present if able to attend, and it must be
other general or special notice thereof to be
shown that the required notice has been given.
given.
Thereupon the courts shall hear the evidence of the
parties in support of their respective allegations,
Publication not required and, if the person in question is a minor, or
incompetent it shall be appoint a suitable guardian
 Unlike in other types of special of his person or estate, or both, with the powers and
proceedings, publication is not required duties hereinafter specified.
in a petition for appointment of
guardians.
Hearing and order for letter to issue:
 A notice of hearing of the petition At the hearing:
served on the persons mentioned in the
petition who are residing in the 1. The alleged incompetent must be
Philippines and the incompetent himself present if able to attend; and
is sufficient for the court to acquire 2. It must be shown that the required
jurisdiction. notice had been given. (Rule 93, Sec. 5)

NB: Rule 74, publication is required but it is not
jurisdictional and is not binding.
Notice is jurisdictional
 Service of notice upon the incompetent
is jurisdictional. Without the said notice,
Section 6. When and how guardian for non-
resident appointed. Notice. — When a person
liable to be put under guardianship resides
without the Philippines but the estate therein,
any relative or friend of such person, or
anyone interested in his estate, in expectancy
or otherwise, may petition a court having

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jurisdiction for the appointment of a guardian
for the estate, and if, after notice given to such
person and in such manner as the court
deems proper, by publication or otherwise,
and hearing, the court is satisfied that such
non-resident is a minor or incompetent
rendering a guardian necessary or
convenient, it may appoint a guardian for
such estate.
Section 7. Parents as guardians. — When the
property of the child under parental authority
is worth two thousand pesos or less, the
father of the mother, without the necessity of
court appointment, shall be his legal
guardian. When the property of the child is
worth more than two thousand pesos, the
father or the mother shall be considered
guardian of the child's property, with the
duties and obligations of guardians under
this rule, and shall file the petition required
by section 2 hereof. For good reasons the
court may, however, appoint another suitable
person.
Section 8. Service of judgment. — Final orders
or judgments under this rule shall be served
upon the civil registrar of the municipality or
city where the minor or incompetent person
resides or where his property or part thereof
is situated.
RULE 94
BONDS OF GUARDIAN
Section 1. Bond to be given before issuance of
letters. Amount. Condition. — Before a
guardian appointed enters upon the
execution of his trust, or letters of
guardianship issue, he shall give a bond, in
such sum as the court directs, conditioned as
follows:
(a) To make and return to the court, within
three (3) months, a true and complete
inventory of all the estate, real and personal,
of his ward which shall come to his
possession or knowledge of any other
person for him;
(b) To faithfully execute the duties of his
trust, to manage and dispose of the estate
according to these rules for the best interests
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of the ward, and to provide for the proper
care, custody, and education of the ward;
(c) To render a true and just account of all
the estate of the ward in his hands, and of
all proceeds or interest derived therefrom,
and of the management and disposition of
the same, at the time designated by these
rules and such other times as the courts
directs, and at the expiration of his trust to
settle his accounts with the court and
deliver and pay over all the estate, effects,
and moneys remaining in his hands, or
due from him on such settlement, to the
person lawfully entitled thereto;
(d) To perform all orders of the court by
him to be performed.
Liability of bondsmen
 The mere fact that the guardian has been
removed as such does not relive him nor
her bondsmen from liability to the ward
during the time that se was duly acting
as guardian.
When should bond take effect?
 At the time of appointment,
notwithstanding the bond being filed
later.
o NOTE: In case of breach of the
bond’s conditions, the bond may
be prosecuted in the same
proceeding or in the separate
action, for the use and benefit of
the ward or of any person
legally interested in the estate
(Sec. 3, Rule 94).
Section 2. When new bond may be required and old
sureties discharged. — Whenever it is deemed
necessary, the court may require a new bond to
be given by the guardian, and may discharge the
sureties on the old bond from further liability,
after due notice to interested persons, when no
injury can result therefrom to those interested in
the estate.
Section 3. Bonds to be filed. Actions thereon. —
Every bond given by a guardian shall be filed in
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the office of the clerk of the court, and, in case of
the breach of a condition thereof, may be
prosecuted in the same proceeding or in a
separate action for the use and benefit of the
ward or of any other person legally interested in
the estate.
RULE 95
SELLING AND ENCUMBERING PROPERTY
OF WARD
Section 1. Petition of guardian for leave to sell or
encumber estate. — When the income of the estate
under guardianship is insufficient to maintain
the ward and his family, or to maintain and
educate the ward when a minor, or when it
appears that it is for the benefit of the ward that
his real estate or some part thereof be sold, or
mortgaged or otherwise encumbered, and the
proceeds thereof put out at interest, or invested
in some productive security, or in the
improvement or security or other real estate of
the ward, the guardian may present a verified
petition to the court by which he was appointed
setting forth such facts, and praying that an
order issue authorizing the sale or encumbrance.
Section 2. Order to show cause thereupon. — If it
seems probable that such sale or encumbrance is
necessary, or would be beneficial to the ward, the
court shall make an order directing the next of
kin of the ward, and all persons interested in the
estate, to appear at a reasonable time and place
therein specified to show cause why the prayer
of the petition should not be granted.
Section 3. Hearing on return of order. Costs. — At
the time and place designated in the order to
show cause, the court shall hear the proofs and
allegations of the petitioner and next of kin, and
other persons interested, together with their
witnesses, and grant and refuse the prayer of the
petition as the best interest of the ward require.
The court shall make such order as to cost of the
hearing as may be just.
Section 4. Contents of order for sale or encumbrance,
and how long effective. Bond. — If, after full
examination, it appears that it is necessary, or
would be beneficial to the ward, to sell or
encumber the estate, or some portion of it, the
court shall order such sale or encumbrance and
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that the proceeds thereof be expended for the
maintenance of the ward and his family, or the
education of the ward, if a minor, or for the
putting of the same interest, or the investment of
the same as the circumstances may require. The
order shall specify the causes why the sale or
encumbrance is necessary or beneficial, and may
direct that estate ordered sold be disposed of at
either public or private sale, subject to such
conditions as to the time and manner of
payment, and security where a part of the
payment is deferred as in the discretion of the
court are deemed most beneficial to the ward.
The original bond of the guardian shall stand as
security for the proper appropriation of the
proceeds of the sale, but the judge may, if
deemed expedient, require an additional bond as
a condition for the granting of the order of sale.
No order of sale granted in pursuance of this
section shall continue in force more than one (1)
year after granting the same, without a sale being
had.
Section 5. Court may order investment of proceeds
and direct management of estate. — The court may
authorize and require the guardian to invest the
proceeds of sales or encumbrances, and any
other of his ward's money in his hands, in real
estate or otherwise, as shall be for the best
interest of all concerned, and may make such
other orders for the management, investment,
and disposition of the estate and effects, as
circumstances may require.
When will the guardian may sell the property
of the ward?
1. When the income of a property under
guardianship is insufficient to maintain
and educate the ward and his family; or
2. When it is for the benefit of the ward
that his personal or real property or any
part thereof be sold, mortgaged, or
otherwise encumbered, and the
proceeds invested in safe and
productive security or in the
improvement or security of other real
property.
In short: for the benefit of the ward.
Requirement of filing a petition before the
court:
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 Before the guardian can sell, mortgage,
or encumber the property of the ward,
the guardian must seek authority from
the court by filing a verified petition.
NOTE: Sale of the ward’s realty by the guardian
without the authority from the court is void
 The court may authorize and require the
guardian to invest the proceeds of sales
or encumbrances and any other of his
ward’s money in his hands, in real estate
or otherwise, as shall be for the best
interest of all concerned, and may make
such other orders for the management,
investment and disposition of the estate
and effects, as circumstances may
require. (Rule 95, Sec. 5)
Jurisdictional requirements for the sale of
property:
1. Petition must be verified;
2. Notice must be given to the next of kin;
and
3. Hearing so that they show cause why
the petition should not be granted.
“Next of Kin” – relatives who are entitled to the
share in the estate of the ward under the Law of
Intestate Succession including those who inherit
per stirpes or by right of representation (Lopez v.
Tolentino)
Duration of the order of sale and encumbrance
of property (Rule 95, Sec. 4)
General Rule: The authority to sell or encumber
shall extend beyond 1 year. One year shall be
reckoned from the granting of the order.
XPN: Unless renewed by the court.
 It is presumed that if the property was
not sold within 1 year, the ward has
sufficient income.
 The proper remedy against an order of
the court authorizing the sale of the
ward’s property is appeal. (Lopez v.
Tolentino)
Prohibitions against guardians
Cagatin, Gonzaga, Puertos
 The guardian cannot acquire by
purchase even at a public or judicial
auction, either in person or through the
mediation of another, the property of
the person or persons who may be
under his guardianship.
RULE 96
GENERAL POWERS AND DUTIES OF
GUARDIANS
Section 1. To what guardianship shall extend. — A
guardian appointed shall have the care and
custody of the person of his ward, and the
management of his estate, or the manangement
of the estate only, as the case may be. The
guardian of the estate of a non-resident shall
have the management of all the estate of the
ward within the Philippines, and no court other
than that in which such guardian was appointed
shall have jurisdiction over the guardianship.
Section 2. Guardian to pay debts of ward. — Every
guardian must pay the ward's just debts out of
his personal estate and the income of his real
estate, if sufficient; if not, then out of his real
estate upon obtaining an order for the sale or
encumbrance thereof.
Section 3. Guardian to settle accounts, collect debts,
and appear in actions for ward. — A guardian must
settle all accounts of his ward, and demand, sue
for, and receive all debts due him, or may, with
the approval of the court, compound for the
same and give discharges to the debtor, on
receiving a fair and just dividend of the estate
and effects; and he shall appear for and represent
his ward in all actions and special proceedings,
unless another person be appointed for that
purpose.
Section 4. Estate to be managed frugally, and
proceeds applied to maintenance of ward. — A
guardian must manage the estate of his ward
frugally and without the waste, and apply the
income and profits thereof, so far as may be
necessary, to the comfortable and suitable
maintenance of the ward and his family, if there
be any; and if such income and profits be
insufficient for that purpose, the guardian may
sell or encumber the real estate, upon being
authorized by order so to do, and apply to such
of the proceeds as may be necessary to such
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maintenance. his appointment, and as often thereafter as may

Section 5. Guardian may be authorized to join in
partition proceedings after hearing. — The court
may authorize the guardian to join in an assent
to a partition of real or personal estate held by
the ward jointly or in common with others, but
such authority shall only be granted after
hearing, upon such notice to relatives of the
ward as the court may direct, and a careful
investigation as to the necessity and propriety of
the proposed action.
Section 6. Proceedings when the person suspected of
embezzling or concealing property of ward. — Upon
complaint of the guardian or ward, or of any
person having actual or prospective interest in
the estate of the ward as creditor, heir, or
otherwise, that anyone is suspected of having
embezzled, concealed, or conveyed away any
money, goods, or interest, or a written
instrument, belonging to the ward or his estate,
the court may cite the suspected person to
appear for examination touching such money,
goods, interest, or instrument, and make such
orders as will secure the estate against such
embezzlement, concealment or conveyance.
Section 7. Inventories and accounts of guardians,
and appraisement of estates. — A guardian must
render to the court an inventory of the estate of
his ward within three (3) months after his
appointment, and annually after such
appointment an inventory and account, the
rendition of any of which may be compelled
upon the application of an interested person.
Such inventories and accounts shall be sworn to
by the guardian. All the estate of the ward
described in the first inventory shall be
appraised. In the appraisement the court may
request the assistance of one or more of the
inheritance tax appraisers. And whenever any
property of the ward not included in an
inventory already rendered is discovered, or
suceeded to, or acquired by the ward, like
proceedings shall be had for securing an
inventory and appraisement thereof within three
(3) months after such discovery, succession, or
acquisition.
Section 8. When guardian's accounts presented for
settlement. Expenses and compensation allowed. —
Upon the expiration of a year from the time of
be required, a guardian must present his account
to the court for settlement and allowance. In the
settlement of the account, the guardian, other
than a parent, shall be allowed the amount of his
reasonable expenses incurred in the execution of
his trust and also such compensation for his
services as the court deems just, not exceeding
fifteen  per centum  of the net income of the ward.
General Powers and duties of guardians
MAIN DUTIES
A guardian has the following main duties:
1. Care and custody of the person of the
ward; and
2. Management of his (ward’s) estate.
Or
1. Management of his (ward’s) estate only.
 The guardian of the estate of a non-
resident shall have the management of
his estate within the Philippines, and no
other court other than that in which
such guardian was appointed shall have
jurisdictions over the guardianship
General powers and duties of guardians
To summarize, a guardian has the following
powers and duties:
1. Care and custody of the ward or the
management of his estate, or both
(MAIN);
2. Payment of the ward’s just debts out of
his personal estate and the income of his
real estate, if sufficient;
3. Settle accounts, collects debts, and
appear in actions of the ward;
4. Manage the state frugally and apply
proceeds to the ward’s maintenance;
5. Join in partition proceedings after
hearing;
6. Render to the court an inventory within
three (3) months after his appointment,
which must be under oath;
7. Render to the court an inventory within,
three (3) months after his appointment

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 SPECIAL PROCEEDINGS
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and as often thereafter as may be
required; and
8. Consent to a partition of real or personal
property owned by ward jointly or in
common with other.
Rule 96, Sections 1-8, A.M. No. 03-02-05-SC, May
1, 2003
RULE 97
TERMINATION OF GUARDIANSHIP
Section 1. Petition that competency of ward be
adjudged, and proceedings thereupon. — A person
who has been declared incompetent for any
reason, or his guardian, relative, or friend, may
petition the court to have his present
competency judicially determined. The petition
shall be verified by oath, and shall state that
such person is then competent. Upon receiving
the petition, the court shall fix a time for
hearing the questions raised thereby, and cause
reasonable notice thereof to be given to the
guardian of the person so declared
incompetent, and to the ward. On the trial, the
guardian or relatives of the ward, and, in the
discretion of the court, any other person, may
contest the right to the relief demanded, and
witnesses may be called and examined by the
parties or by the court on its own motion. If it
be found that the person is no longer
incompetent, his competency shall be adjudged
and the guardianship shall cease.
Section 2. When the guardian removed or allowed
to resign. New appointment. — When a guardian
becomes insane or otherwise incapable of
discharging his trust or unsuitable therefor, or
has wasted or mismanaged the estate, or failed
for thirty (30) days after it is due to render an
account or make a return, the court may, upon
reasonable notice to the guardian, remove him,
and compel him to surrender the estate of the
ward to the person found to be lawfully
entitled thereto. A guardian may resign when it
appears proper to allow the same; and upon his
resignation or removal the court may appoint
another in his place.
Who may file (Rule 97, Sec. 1)
Cagatin, Gonzaga, Puertos
1. Person who has been declared
incompetent;
2. His (incompetent’s) guardian;
3. (incompetent’s) relative; or
4. (incompetent’s) friend.
 The petition shall be verified by oath and
shall state that such person (as enumerated
above) is competent.
Grounds for termination of guardianship
1. Death of the ward;
2. Death of the guardian
3. Competency of the ward has been
judicially declared;
4. Guardianship is no longer necessary; or
Grounds for the removal or resignation of a
guardian (Rule 97, Section 2)
1. The guardian becomes insane or
otherwise incapable of discharging his
trust or unsuitable therefor.
2. The guardian ha wasted or mismanaged
the estate; or
3. The guardian failed to render an account
or make a return for 30 days after its
due.
NB: Termination of guardianship is different
from resignation of a guardian; the former
operates automatically.
Section 3. Other termination of guardianship. —
The marriage or voluntary emancipation of a
minor ward terminates the guardianship of
the peson of the ward, and shall enable the
minor to administer his property as though he
were of age, but he cannot borrow the money
or alienate or encumber real property without
the consent of his father or mother, or
guardian. He can sue and be sued in court
only with the assistance of his father, mother
or guardian. The guardian of any person may
be discharged by the court when it appears,
upon the application of the ward or
otherwise, that the guardianship is no longer
necessary.
Section 4. Record to be kept by the justice of the
peace or municipal judge. — When a justice of
the peace or municipal court takes cognizance
of the proceedings in pursuance of the
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FINAL EXAM COVERAGE
provisions of these rules, the record of the
proceedings shall be kept as in the Court of
First Instance.
Section 5. Service of judgment. — Final orders
of judgments under this rule shall be served
upon the civil registrar of the municipality or
city where the minor or incompetent person
resides or where his property or part thereof
is situated.
RULE ON GUARDIANSHIP OF MINORS
A.M. NO. 03-02-05-SC effective May 1, 2003
 This rule amends Rules 92 to 97 inclusive of
the Rules of Court on guardianship of
minors. Guardianships of incompetents who
are not minors shall continue to under the
jurisdiction of the regular courts and
governed by the Rules of Court.
 Effectivity: May 1, 2003
 A.M. No. 03-02-05-SC covers the person or
property or both of the minor ward; while
the Rules on Guardianship of Incapacitated
Persons, now, only deals with incapacitated
persons who are 18 years old and above. If
the incapacitated person is a minor, A.M. No.
03-02-05-SC will govern.
Purpose of guardianship proceedings
 The court in guardianship proceedings, is
solely concerned with the ward’s custody
and proper administration of his properties.
Conflicts regarding ownership or title to the
property in the hands of a guardian, in his
capacity as such should be litigated in a
separate proceeding.
Section 1. Applicability of the Rule. – This
Rule shall apply to petitions for guardianship
over the person or property, or both, of a
minor.
The father and the mother shall jointly
exercise legal guardianship over the person
and property of their unemancipated
common child without the necessity of a court
appointment. In such case, this Rule shall be
suppletory to the provisions of the Family
Code on guardianship.
Cagatin, Gonzaga, Puertos
Who shall exercise guardianship over the
minor?
Under section 1, the father and the mother shall
jointly exercise legal guardianship over the
person and property of their unemancipated
common child without the necessity of court
appointment.
Sec. 2. Who may petition for appointment of
guardian. – On grounds authorized by law,
any relative or other person on behalf of a
minor, or the minor himself if fourteen years
of age or over, may petition the Family Court
for the appointment of a general guardian
over the person or property, or both, of such
minor. The petition may also be filed by the
Secretary of Social Welfare and Development
and by the Secretary of Health in the case of
an insane minor who needs to be hospitalized.
Who may file the petition?
Only the following persons may file a petition
for the appointment of guardian of a minor:
1. Relative;
2. Other person on behalf of the minor
3. Minor himself if 14 years old or older;
4. Secretary of DSWD and Secretary of
DoH in case of an insane minor who
needs to be hospitalized; or
5. Anyone interested in the estate of a non-
resident minor.
Sec. 3. Where to file petition. – A petition for
guardianship over the person or property, or
both, of a minor may be filed in the Family
Court of the province or city where the minor
actually resides. If he resides in a foreign
country, the petition shall be filed with the
Family Court of the province or city where his
property or any part thereof is situated.
Venue:
 Petition for guardianship must be filed
in the family court of the province or
city where the minor actually resides.
 If the minor resides in a foreign country,
the petition shall be filed with the
Family Court of the province or city
where his property or any part thereof is
situated.
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Sec. 4. Grounds of petition. - The grounds for  The list in Section 6 was lifted from
the appointment of a guardian over the person Article 216 of the Family Code except
or property, or both, of a minor are the the last item, which was purposedly
following: added to cover the situation where all
(a) death, continued absence, or incapacity of other persons enumerated in (a) to (c) do
his parents; not qualify.
(b) suspension, deprivation or termination of
parental authority; Section 7. Contents of petition. –
(c) remarriage of his surviving parent, if the
latter Is found unsuitable to exercise parental A petition for the appointment of a general
authority; or guardian must allege the following:
(d) when the best interests of the minor so a. The jurisdictional facts;
require. b. The name, age and residence of the
prospective ward;
Sec. 5. Qualifications of guardians. – In c. The ground rendering the appointment
appointing a guardian, the court shall consider necessary or convenient;
the guardian’s: d. The death of the parents of the minor or the
(a) moral character; termination, deprivation or suspension of
(b) physical, mental and psychological their parental authority;
condition; e. The remarriage of the minor’s surviving
(c) financial status; parent;
(d) relationship of trust with the minor; f. The names, ages, and residences of relatives
(e) availability to exercise the powers and within the 4th civil degree of the minor, and
duties of a guardian for the full period of the of persons having him in their care and
guardianship; custody;
(f) lack of conflict of interest with the minor; g. The probable value, character and location
and; of the property of the minor; and
(g) ability to manage the property of the minor. h. The name, age and residence of the person
for whom letters of guardianship are
Section 6. Who may be appointed guardian of prayed.
the person or property, or both, of a minor. –
The petition shall be verified and accompanied by a
In default of parents or a court-appointed certification against forum shopping. However, no
guardian, the court may appoint a guardian of defect in the petition or verification shall render
the person or property, or both, of a minor, void the issuance of letters of guardianship.
observing as far as practicable, the following
order of preference:
Jurisdictional facts that must be alleged in the
a. the surviving grandparent and In case Petition
several grandparents survive, the court
shall select any of them taking Into In re: Minor In re: Incompetent
account all relevant considerations;  Name, age, and  Incompetency
residence of the rendering
b. the oldest brother or sister of the minor prospective ward; appointment
over twenty-one years of age, unless  Ground rendering necessary or
unfit or disqualified; the appointment convenient;
c. the actual custodian of the minor over necessary or  Names, ages, and
twenty-one years of age, unless unfit or convenient; residences of
disqualified; and  Death of the parents relatives of the
of the minor, or the minor or
d. any other person, who in the sound termination, incompetent, and
discretion of the court, would serve the deprivation, or of the person
best interests of the minor. suspension of their having him in
parental authority; their care;
 Remarriage of the  Probable value

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 SPECIAL PROCEEDINGS
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minor’s surviving and character of Section 10. Opposition to petition. - Any interested
parent; his estate; and person may contest the petition by filing a written
 Names, ages, and  Name of the opposition based on such grounds as the majority of
residences of person for whom the minor or the unsuitability of the person for
relatives within 4th letters of whom letters are prayed, and pray that the petition
civil degree of the guardianship are be denied, or that letters of guardianship issue to
minor, and of prayed. himself, or to any suitable person named in the
persons having him opposition.
in their care and
custody.
 Probable value, Grounds for opposing petition:
character and
location of the 1. Majority of the minor; or
property of the 2. Unsuitability of the person for whom
minor, and letters are prayed.
 Name, age, and
residence of person NB: the majority of the minor is still existing in
whom letters of the Rules of Court but it is not applicable.
guardianship are
prayed. ***refer to codal provisions for other provision
of A.M. 03-02-05-SC
Section 8. Time and notice of hearing. – When a
COMPARISON
petition for the appointment of a general
Rules of Court and A.M. 03-02-05-SC
guardian is filed, the court shall fix a time and
place for its hearing, and shall cause reasonable
APPLICABILITY:
notice to be given to the persons mentioned in
the petition, including the minor if he is fourteen
years of age or over, and may direct other A.M. No. 03-02-05-SC Rules of Court 92-97
general or special notice to be given. (Rules on Guardianship (Rules on guardianship
of a minor) of an incompetent other
than a minor)
Requirement of Notice of Hearing:
 Person, property, or  Person, property, or
The notice of hearing of the petition must be both of the minor both of the
served on the following: incompetent person

1. Persons mentioned in the petition WHO MAY FILE FOR APPOINTMENT OF

residing in the Philippines; and GUARDIANSHP?
2. The minor if he is 14 years of age or
over. A.M. No. 03-02-05-SC Rules of Court 92-97
(Rules on Guardianship (Rules on
NOTE: Where the minor is at least 14 tears old, of a minor) guardianship of an
service of notice upon such minor is incompetent other
jurisdictional; without which, the court does than a minor)
not acquire jurisdiction over the petition.  Relative  Relative
 Other person on  Friend
Section 9. Case study report. – The court shall order behalf of the minor  Other person on
a social worker to conduct a case study of the minor  Minor himself if 14 behalf of the
and all the prospective guardians and submit his years old or older incompetent who
report and recommendation to the court for its  Secretary of DSWD has no parent or
guidance before the scheduled hearing. The social and Secretary of DoH lawful guardian.
worker may intervene on behalf of the minor if he in case of an insane  Director of Health
finds that the petition for guardianship should be minor who needs to favor of an insane
denied. be hospitalized. person who

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 SPECIAL PROCEEDINGS
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 Any one interested should be in their care and

in the estate of a hospitalized or in custody.
non-resident minor. favor of an  Probable value,
isolated leper. character and
 Anyone interested location of the
in the estate. property of the
minor, and
VENUE:  Name, age, and
residence of person
A.M. No. 03-02-05-SC Rules of Court 92-97 whom letters of
(Rules on (Rules on guardianship are
Guardianship of a guardianship of an prayed.
minor) incompetent other
than a minor) GROUNDS FOR OPPOSITION

A.M. No. 03-02-05-SC Rules of Court 92-97

 Family Court  Over the person (Rules on Guardianship (Rules on guardianship
and property: RTC of a minor) of an incompetent other
 Over the property than a minor)
only: RTC or MTC
depending on the  Majority of the  Competency
value of the minor  Unsuitability
property.  Unsuitability of the
person for whom
JURISDICTIONAL FACTS THAT MUST BE letters are prayed
ALLEGED IN THE PETITION for

A.M. No. 03-02-05-SC Rules of Court 92-97 CONDITIONS OF THE BOND/GENERAL

(Rules on POWERS AND DUTIES OF THE
(Rules on Guardianship guardianship of an GUARDIANS
of a minor) incompetent other
than a minor) A.M. No. 03-02-05-SC Rules of Court 92-97
(Rules on Guardianship (Rules on guardianship
 Name, age, and  Incompetency of a minor) of an incompetent other
residence of the rendering than a minor)
prospective ward; appointment
 Ground rendering necessary or  Same  Same
the appointment convenient;
necessary or  Names, ages, and GROUNDS FOR REMOVAL OR
convenient; residences of RESOGNATION
 Death of the parents relatives of the
of the minor, or the minor or A.M. No. 03-02-05-SC Rules of Court 92-97
termination, incompetent, and (Rules on Guardianship (Rules on
deprivation, or of the person of a minor) guardianship of an
suspension of their having him in incompetent other
parental authority; their care; than a minor)
 Remarriage of the  Probable value
minor’s surviving and character of Same:
parent; his estate; and  Insanity
 Names, ages, and  Name of the  Otherwise, incapable of discharging his
residences of person for whom trust
relatives within 4th letters of  Unsuitability
civil degree of the guardianship are  Wasted or mismanaged the estate
minor, and of prayed.  Failure to render an account or make a
persons having him return within 30 days after the same is

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 SPECIAL PROCEEDINGS
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due
NB: A trustee is appointed to carry out the
PROCEDURE provisions of the will.

1. File a petition for guardianship. Comparison between Executor/Administrator

2. Notice of court ordered time and place of and Trustee
hearing.
3. Opposition As to duties:
NB: In case of minors, case study report of the
minor and prospective guardian by a social Executor/Administrato Trustee
worker. r
4. Hearing and appointment of a guardian.  Fixed or limited by  Governed by the
5. Filing of a Bond the law. intention of the trustor
6. Service of judgment on the Local Civil or the parties.
Registrar.  Limited because  Generally wider range
7. Termination of the Guardianship of the than those of executors
provisions of or administrators of
RULE 98 the law (Rule the estate of a
TRUSTEES 75-90) deceased.

Trust, definition As to accounting or rendering of accounts

In a trust, confidence is reposed in one person Executor/Administrato Trustee

who is named a trustee for the benefit of another r
who is called cestui que trust, respecting  Accounts are filed  Account must be filed
property which is held by the trustee for the only at such times as annually.
benefit of the cestui que trust. – Estate of may be required by  All accounts must be
Cabacungan v. Laigo, G.R. No. 175073, August 15, the court. under oath.
2011.  Only the initial and
final account are
NB: Please refer to Articles 1440 to 1457 of the required to be under
New Civil Code involving general principles on oath
Trusts, Express Trusts, and Implied Trusts.
Where to file?
Section 1. Where trustee appointed. — A trustee
necessary to carry into effect the provisions of a Executor/Administrator Trustee
will on written instrument shall be appointed  RTC/MTC  RTC
by the Court of First Instance in which the will depending on the
was allowed, if it be a will allowed in the assessed value of the
Philippines, otherwise by the Court of First estate
Instance of the province in which the property,
or some portion thereof, affected by the trust is Purpose of appointment
situated.
Executor/Administrato Trustee
Section 1 of the Rule 98 determines the venue r
where a petition for the appointment of a trustee  For the settlement of  To carry into effect
should be filed. the decedent’s estate the provisions of a
will or written
Who will appoint the trustee? instrument.

 The RTC in which the will is allowed; or As to posting of bond

 The RTC of the province in which the
property or some portion thereof Executor/Administrato Trustee
affected by the trust is situated. r

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 SPECIAL PROCEEDINGS
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 Required to post a  Required to post a
bond bond
As to termination
Executor/Administrato Trustee
r court shall declare such trust vacant, and shall
 Upon payment of  Upon turning over
the debts of the the property to the
estate and beneficiary after the
distribution of the trust has expired.
property to the
heirs.
Section 2. Appointment and powers of trustees
under will. Executor of former trustee need not
administer trust. — If a testator has omitted in his
will to appoint a trustee in the Philippines, and if
such appointment is necessary to carry into effect
the provisions of the will, the proper Court of
First Instance may, after notice to all persons
interested, appoint a trustee who shall have the
same rights, powers, and duties, and in whom
the estate shall vest, as if he had been appointed
by the testator. No person succeeding to a trust
as executor or administrator of a former trustee
shall be required to accept such trust.
Section 3. Appointment and powers of new trustee
under written instrument. — When a trustee under
a written instrument declines, resigns, dies or
removed before the objects of the trust are
accomplished, and no adequate provision is
made in such instrument for supplying the
vacancy, the proper Court of First Instance may,
after due notice to all persons interested, appoint
a new trustee to act alone or jointly with the
others, as the case may be. Such new trustee shall
have and exercise the same powers, right, and
duties as if he had been originally appointed,
and the trust estate shall vest in him in like
manner as it had vested or would have vested, in
the trustee in whose place he is substituted and
the court may order such conveyance to be made
by the former trustee or his representatives, or by
the other remaining trustees, as may be
necessary or proper to vest the trust estate in the
new trustee, either or jointly with the others.
Section 4. Proceedings where trustee appointed
abroad. — When land in the Philippines is held in
trust for persons resident here by a trustee who
derives his authority from without the
Philippines, such trustee shall, on petition filed
Cagatin, Gonzaga, Puertos
in the Court of First Instance of the province
where the land is situated, and after due notice to
all persons interested, be ordered to apply to the
court for appointment as trustee; and upon his
neglect or refusal to comply with such order, the
appoint a new trustee in whom the trust estate
shall vest in like manner as if he had been
originally appointed by such court.
Section 5. Trustee must file bond. — Before
entering on the duties of his trust, a trustee shall
file with the clerk of the court having jurisdiction
of the trust a bond in the amount fixed by the
judge of said court, payable to the Government
of the Philippines and sufficient and available for
the protection of any party in interest, and a
trustee who neglects to file such bond shall be
considered to have declined or resigned the trust;
but the court may until further order exempt a
trustee under a will from giving a bond when the
testator has directed or requested such
exemption and may so exempt any trustee when
all persons beneficially interested in the trust,
being of full age, request the exemption. Such
exemption may be cancelled by the court at any
time and the trustee required to forthwith file a
bond.
Section 6. Conditions included in bond. — The
following conditions shall be deemed to be part
of the bond whether written therein or not;
(a) That the trustee will make and return to
the court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the
time of the making of such inventory shall
have come to his possession or knowledge;
(b) That he will manage and dispose of all
such estate, and faithfully discharge his
trust in relation thereto, according to law
and the will of the testator or the provisions
of the instrument or order under which he is
appointed;
(c) That he will render upon oath at least
once a year until his trust is fulfilled, unless
he is excused therefrom in any year by the
court, a true account of the property in his
hands and the management and disposition
thereof, and will render such other accounts
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as the court may order;
(d) That at the expiration of his trust he will
settle his account in court and pay over and
deliver all the estate remaining in his hands,
or due from him on such settlement, to the
person or persons entitled to thereto.
But when the trustee is appointed as a successor
to a prior trustee, the court may dispense with
the making and return of an inventory, if one has
already been filed, and in such case the condition
of the bond shall be deemed to be altered
accordingly.
Section 7. Appraisal. Compensation of trustee. —
When an inventory is required to be returned by
a trustee, the estate and effects belonging to the
trust shall be appraised and the court may order
one or more inheritance tax appraisers to assist in
the appraisement. The compensation of the
trustee shall be fixed by the court, if it be not
determined in the instrument creating the trust.
Section 8. Removal or resignation of trustee. — The
proper Court of First Instance may, upon petition
of the parties beneficially interested and after
due notice to the trustee and hearing, remove a
trustee if such removal appears essential in the
interest of the petitioner. The court may also,
after due notice to all persons interested, remove
a trustee who is insane or otherwise incapable of
discharging his trust or evidently unsuitable
therefor. A trustee, whether appointed by the
court or under a written instrument, may resign
his trust if it appears to the court proper to allow
such resignation.
**Atty. Eman jumps to Section 8.
Grounds for removal of a trustee (section 8,
rule 98)
The court may remove a trustee on the
following grounds:
1. The removal appears essential in the
interest of the petitioners;
2. The trustee is insane; or
3. The trustee is incapable of discharging
the trust or is evidently unsuitable to act
as one.
Cagatin, Gonzaga, Puertos
NOTE: A trustee, whether appointed by the
court or under written instrument, may resign
his trust if it appears to the court that it is
proper to allow the resignation.
Is rule 98 applicable to implied trusts?
No, Rule 98 is applicable to express trusts only,
one which is created by a will or written
instrument. In rule 98, refers to a written
instrument which is the will.
Section 9. Proceedings for sale or encumbrance of trust
estate. — When the sale or encumbrance of any real
or personal estate held in trust is necessary or
expedient, the court having jurisdiction of the trust
may, on petition and after due notice and hearing,
order such sale or encumbrance to be made, and the
re-investment and application of the proceeds
thereof in such manner as will best effect the objects
of the trust. The petition, notice, hearing, order of
sale or encumbrance, and record of proceedings,
shall conform as nearly as may be to the provisions
concerning the sale or encumbrance by guardians of
the property of minors or other wards.
ADOPTION
Two laws that govern Adoptions in the
Philippines:
1. Domestic Adoption Act (R.A. No. 8552)
2. Inter-country Adoption (R.A. No. 8043)
NOTE: With the effectivity of the two laws,
provisions in the Civil Code, Family Code and
Rules of Court are not applicable anymore but
merely suppletory especially Art. 190 of the
Family Code.
Adoption, definition
The process of making a child, whether related
or not to the adopter, possess in general, the
rights accorded to a legitimate child.” It is a
juridical act, a proceeding in rem which creates a
relationship that is similar to that which results
from legitimate paternity and filiation. – Hayashi
v. OSG, G.R. No. 212302, September 2, 2020.
The process of adoption therefore fixed a status,
viz, that of parent and child.
More technically, it is an act by which relations
of paternity and filiation are recognized as
legally existing between persons not so related
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by nature. - Hayashi v. OSG, G.R. No. 212302,
September 2, 2020.
Adoption has also been defined as the taking
into one’s family of the child of another as son
or daughter and heir and conferring on it a title
to the rights and privileges of such. - Hayashi v.
OSG, G.R. No. 212302, September 2, 2020.
Purpose of Adoption
The purpose of the proceeding for adoption is to
effect this new status of relationship between
the child and its adoptive parents, the change of
name which frequently accompanies adoption
being more an incident than the object of the
proceeding. - Hayashi v. OSG, G.R. No. 212302,
September 2, 2020.
Effect of Adoption
Adoption creates a status that is closely
assimilated to legitimate paternity and filiation
with corresponding rights and duties that
necessarily flow from it, including, but not
necessarily limited to, the exercise of parental
authority, use of surname of the adopter by the
adopted, as well as support and successional
rights. - Hayashi v. OSG, G.R. No. 212302,
September 2, 2020.
Law regulating Adoption
Indeed, matters relating to adoption are subject
to regulation by the State. In the Philippines, the
general provisions on adoption are found in
Article 133 to 193, Title VII of EO 209, series of
1987 entitled “The Family Code of the
Philippines” (Family Code). - Hayashi v. OSG,
G.R. No. 212302, September 2, 2020.
Special laws on adoption have been passed by
Congress subsequent to the promulgation of the
Family Code. - Hayashi v. OSG, G.R. No. 212302,
September 2, 2020.
1. In 1995, RA 8043 was enacted to
establish the rules governing inter-
country adoptions of Filipino children.
The inter-country Adoption Board
(ICAB) was created to serve as the
central authority in matters relating to
inter-country adoptions.
Cagatin, Gonzaga, Puertos
2. Meanwhile, in 1998, RA 8552, was
passed to set out the rules and policies
on domestic adoption.
 Hayashi v. OSG, G.R. No. 212302,
September 2, 2020.
1. Family Code (mostly repealed except
for Art. 190)
2. R.A. 8552 (Domestic Adoption Act of
1998)
3. R.A. 8043 (Inter-Country Adoption Act
of 1995)
4. R.A. 9253 (An Act Requiring
Certification of the DSWD to declare the
child legally available for Adoption)
Family Code, Article 190
Art. 190. Legal or intestate succession to the
estate of the adopted shall be governed by the
following rules:
(1) Legitimate and illegitimate children and
descendants and the surviving spouse of the
adopted shall inherit from the adopted, in
accordance with the ordinary rules of legal or
intestate succession;
(2) When the parents, legitimate or illegitimate,
or the legitimate ascendants of the adopted
concur with the adopter, they shall divide the
entire estate, one-half to be inherited by the
parents or ascendants and the other half, by the
adopters;
(3) When the surviving spouse or the illegitimate
children of the adopted concur with the
adopters, they shall divide the entire estate in
equal shares, one-half to be inherited by the
spouse or the illegitimate children of the adopted
and the other half, by the adopters.
(4) When the adopters concur with the
illegitimate children and the surviving spouse of
the adopted, they shall divide the entire estate in
equal shares, one-third to be inherited by the
illegitimate children, one-third by the surviving
spouse, and one-third by the adopters;
(5) When only the adopters survive, they shall
inherit the entire estate; and
(6) When only collateral blood relatives of the
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adopted survive, then the ordinary rules of legal
or intestate succession shall apply. (39(4)a, PD
603)
DOMESTIC ADOPTION ACT OF 1998
(R.A. 8552)
Section 7. Who may Adopt – The following may
adopt:
a) Any Filipino citizen of legal age, in
possession of full civil capacity and legal
rights, of good moral character.
b) Has not been convicted of any crime
involving moral turpitude;
c) Emotionally and psychologically
capable of caring for children;
d) At least sixteen (16) years older than the
adoptee, and
e) Who is in a position to support and care
for his/her children in keeping with the
means of the family.
The requirement of sixteen (16) year difference
between the age of the adopter and adoptee
may be waived when the adopter is the
biological parent of the adoptee, or is the spouse
of the adoptee’s parent;
Section 7. Who May Adopt. – The following
may adopt:
(a) Any Filipino citizen of legal age, in
possession of full civil capacity and legal
rights, of good moral character, has not
been convicted of any crime involving
moral turpitude, emotionally and
psychologically capable of caring for
children, at least sixteen (16) years older
than the adoptee, and who is in a
position to support and care for his/her
children in keeping with the means of
the family. The requirement of sixteen
(16) year difference between the age of
the adopter and adoptee may be waived
when the adopter is the biological parent
of the adoptee, or is the spouse of the
adoptee's parent;
(b) Any alien possessing the same
qualifications as above stated for Filipino
nationals: Provided, That his/her country
Cagatin, Gonzaga, Puertos
has diplomatic relations with the
Republic of the Philippines, that he/she
has been living in the Philippines for at
least three (3) continuous years prior to
the filing of the application for adoption
and maintains such residence until the
adoption decree is entered, that he/she
has been certified by his/her diplomatic
or consular office or any appropriate
government agency that he/she has the
legal capacity to adopt in his/her
country, and that his/her government
allows the adoptee to enter his/her
country as his/her adopted
son/daughter: Provided, Further, That the
requirements on residency and
certification of the alien's qualification to
adopt in his/her country may be waived
for the following:
(i) a former Filipino citizen
who seeks to adopt a relative
within the fourth (4th) degree
of consanguinity or affinity; or
(ii) one who seeks to adopt the
legitimate son/daughter of
his/her Filipino spouse; or
(iii) one who is married to a
Filipino citizen and seeks to
adopt jointly with his/her
spouse a relative within the
fourth (4th) degree of
consanguinity or affinity of
the Filipino spouse; or
(c) The guardian with respect to the
ward after the termination of the
guardianship and clearance of his/her
financial accountabilities.
Husband and wife shall jointly adopt, except
in the following cases:
(i) if one spouse seeks to adopt the
legitimate son/daughter of the other;
or
(ii) if one spouse seeks to adopt
his/her own illegitimate
son/daughter: Provided, However,
that the other spouse has signified
his/her consent thereto; or
(iii) if the spouses are legally
separated from each other.
In case husband and wife jointly adopt, or
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one spouse adopts the illegitimate
son/daughter of the other, joint parental
authority shall be exercised by the spouses.
 Case study requirement under Sec. 11 (No
case study no adoption)
Section 11. Case Study. – No petition for
adoption shall be set for hearing unless a
licensed social worker of the Department, the
social service office of the local government
unit, or any child-placing or child-caring
agency has made a case study of the adoptee,
his/her biological parent(s), as well as the
adopter(s), and has submitted the report and
recommendations on the matter to the court
hearing such petition.
At the time of preparation of the adoptee's
case study, the concerned social worker shall
confirm with the Civil Registry the real
identity and registered name of the adoptee.
If the birth of the adoptee was not registered
with the Civil Registry, it shall be the
responsibility of the concerned social worker
to ensure that the adoptee is registered.
The case study on the adoptee shall establish
that he/she is legally available for adoption
and that the documents to support this fact
are valid and authentic. Further, the case
study of the adopter(s) shall ascertain his/her
genuine intentions and that the adoption is in
the best interest of the child.
The Department shall intervene on behalf of
the adoptee if it finds, after the conduct of the
case studies, that the petition should be
denied. The case studies and other relevant
documents and records pertaining to the
adoptee and the adoption shall be preserved
by the Department.
 Supervised trial custody under Sec. 12
Section 12. Supervised Trial Custody. – No
petition for adoption shall be finally granted
until the adopter(s) has been given by the
court a supervised trial custody period for at
least six (6) months within which the parties
are expected to adjust psychologically and
emotionally to each other and establish a
bonding relationship. During said period,
Cagatin, Gonzaga, Puertos
temporary parental authority shall be vested
in the adopter(s).
The court may motu proprio or upon motion
of any party reduce the trial period if it finds
the same to be in the best interest of the
adoptee, stating the reasons for the reduction
of the period. However, for alien adopter(s),
he/she must complete the six (6)-month trial
custody except for those enumerated in Sec. 7
(b) (i) (ii) (iii).
If the child is below seven (7) years of age and
is placed with the prospective adopter(s)
through a pre-adoption placement authority
issued by the Department, the prospective
adopter(s) shall enjoy all the benefits to which
biological parent(s) is entitled from the date
the adoptee is placed with the prospective
adopter(s).
 Amended certificate of birth to be issued
by the Civil Registry under Sec. 14.
Section 14. Civil Registry Record. – An
amended certificate of birth shall be issued by
the Civil Registry, as required by the Rules of
Court, attesting to the fact that the adoptee is
the child of the adopter(s) by being registered
with his/her surname. The original certificate
of birth shall be stamped "cancelled"  with the
annotation of the issuance of an amended
birth certificate in its place and shall be sealed
in the civil registry records. The new birth
certificate to be issued to the adoptee shall not
bear any notation that it is an amended issue.
 Grounds for recission of adoption under
Sec. 19
Section 19. Grounds for Rescission of
Adoption.  – Upon petition of the adoptee,
with the assistance of the Department if a
minor or if over eighteen (18) years of age but
is incapacitated, as guardian/counsel, the
adoption may be rescinded on any of the
following grounds committed by the
adopter(s): (a) repeated physical and verbal
maltreatment by the adopter(s) despite
having undergone counseling; (b) attempt on
the life of the adoptee; (c) sexual assault or
violence; or (d) abandonment and failure to
comply with parental obligations.
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i. possesses all the qualifications and

Adoption, being in the best interest of the none of the disqualifications provided
child, shall not be subject to rescission by the herein and in other applicable
adopter(s). However, the adopter(s) may Philippine laws.
disinherit the adoptee for causes provided in
Article 919 of the Civil Code.
 Only a legally free child may be the
subject of inter-country adoption. (Sec.
INTER-COUNTRY ADOPTION ACT OF 1995 8)
(R.A. 8043)
Section 8. Who May be Adopted. — Only a
Who may adopt? legally free child may be the subject of inter-
country adoption. In order that such child
Section 9. Who May Adopt. —An alien or a may be considered for placement, the
Filipino citizen permanently residing abroad following documents must be submitted to
may file an application for inter-country the Board:
adoption of a Filipino child if he/she: a. Child study;
a. is at least twenty-seven (27) years of b. Birth certificate/foundling certificate;
age and at least sixteen (16) years c. Deed of voluntary
older than the child to be adopted, at commitment/decree of
the time of application unless the abandonment/death certificate of
adopter is the parent by nature of the parents;
child to be adopted or the spouse of d. Medical evaluation /history;
such parent: e. Psychological evaluation, as
b. if married, his/her spouse must necessary; and
jointly file for the adoption; f. Recent photo of the child.
c. has the capacity to act and assume all
rights and responsibilities of parental
Definitions:
authority under his national laws, and
has undergone the appropriate
 Child – means a person below fifteen
counseling from an accredited
(15) years of age unless sooner
counselor in his/her country;
emancipated by law.
d. has not been convicted of a crime
involving moral turpitude;
 Legally Free Child – means a child who
e. is eligible to adopt under his/her
has been voluntarily or involuntarily
national law;
committed to the Department. In
f. is in a position to provide the proper
accordance with the Child and Youth
care and support and to give the
Welfare Code.
necessary moral values and example
to all his children, including the child
 The adopting parent may choose to file the
to be adopted;
petition not only before the Family Court of
g. agrees to uphold the basic rights of
the Philippines but also in the Inter-
the child as embodied under
Country Adoption Board where the
Philippine laws, the U.N. Convention
adopting parent is residing under Sec. 10.
on the Rights of the Child, and to
abide by the rules and regulations
Section 10. Where to File Application. — An
issued to implement the provisions of
application to adopt a Filipino child shall be
this Act;
filed either with the Philippine Regional Trial
h. comes from a country with whom the
Court having jurisdiction over the child, or
Philippines has diplomatic relations
with the Board, through an intermediate
and whose government maintains a
agency, whether governmental or an
similarly authorized and accredited
authorized and accredited agency, in the
agency and that adoption is allowed
country of the prospective adoptive parents,
under his/her national laws; and
which application shall be in accordance with

Cagatin, Gonzaga, Puertos

 SPECIAL PROCEEDINGS
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the requirements as set forth in the
implementing rules and regulations to be
promulgated by the Board.
The application shall be supported by the
following documents written and officially
translated in English.
a. Birth certificate of applicant(s);
b. Marriage contract, if married, and
divorce decree, if applicable;
c. Written consent of their biological or
adoptive children above ten (10) years
of age, in the form of sworn
statement;
d. Physical, medical and psychological
evaluation by a duly licensed
physician and psychologist;
e. Income tax returns or any document
showing the financial capability of the
applicant(s);
f. Police clearance of applicant(s);
g. Character reference from the local
church/minister, the applicant's
employer and a member of the
immediate community who have
known the applicant(s) for at least five
(5) years; and
h. Recent postcard-size pictures of the
applicant(s) and his immediate
family;
The Rules of Court shall apply in case of
adoption by judicial proceedings.
 Trial Custody for six months under Sec. 14.
Section 14. Supervision of Trial Custody. -
The governmental agency or the authorized
and accredited agency in the country of the
adoptive parents which filed the application
for inter-country adoption shall be
responsible for the trial custody and the care
of the child. It shall also provide family
counseling and other related services. The
trial custody shall be for a period of six (6)
months from the time of placement. Only
after the lapse of the period of trial custody
shall a decree of adoption be issued in the
said country a copy of which shall be sent to
the Board to form part of the records of the
child.
During the trial custody, the adopting
parent(s) shall submit to the governmental
Cagatin, Gonzaga, Puertos
agency or the authorized and accredited
agency, which shall in turn transmit a copy to
the Board, a progress report of the child's
adjustment. The progress report shall be
taken into consideration in deciding whether
or not to issue the decree of adoption.
The Department of Foreign Affairs shall set
up a system by which Filipino children sent
abroad for trial custody are monitored and
checked as reported by the authorized and
accredited inter-country adoption agency as
well as the repatriation to the Philippines of a
Filipino child whose adoption has not been
approved.
PROCEDURE
DOMESTIC ADOPTION ACT OF 1998
GENERAL RULE:
 Both the husband and wife shall adopt
jointly
XPN:
 If one spouse seeks to adopt the legitimate
child of other;
 If one spouse seeks to adopt his own
illegitimate child, provided the other spouse
has signified his/her consent; and
 If spouses are legally separated [Sec. 79 (c)]
VENUE:
 The FAMILY COURT of the province or city
where the prospective adoptive parents
reside.
Effects of Adoption:
1. Adopter shall exercise parental
authority
2. All legal ties between biological
parent(s) and adoptee shall be served
(except in cases where the biological
parent is the spouse of the adopter), and
the same shall be vested on the
adopter(s); [Sec. 16, RA 8552]
3. Adoptee shall be considered the
legitimate child of the adopter(s) for all
intents and purposes; [Sec. 17, RA 8552]
4. Adopters shall have reciprocal rights of
succession without distinction from
legitimate filiation [Sec. 18, RA 8552]
RESCISSION
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NOTE: Rescission may only be at the petition
of the adoptee, in the following instance:
1. Adoptee who is over 18 years of age;
2. If adoptee is a minor, with the assistance
of the DSWD; or
3. If the adoptee is over 18 years of age but
incapacitated, by his guardian or
counsel. [Sec. 19, RA 8552].
NB: Adoption shall not be subject to rescission
by the adopter. However, the adopter may
disinherit the adoptee for causes provided in
Article 919 of the New Civil Code (Sec. 19, RA
8552)
 Principle behind the rule: best interest of
the child
Grounds for Recission:
The following are the grounds for recession
committed by the adopter:
1. Repeated physical and verbal
maltreatment despite having undergone
counseling;
2. Attempt on the life of the adoptee;
3. Sexual assault or violence;
4. Abandonment of failure to comply with
parental obligations (Sec. 19, RA 8552)
Venue for filing of Rescission:
 Family Court of the city or province
where the adoptee resides (Sec. 20, A.M.
No. 02-6-02-SC, Rule on Domestic and
Inter-Country Adoption)
Effects of Rescission
1. Adoptee is still a minor – Restoration of
parental authority to biological parent if
known, or legal custody to the DSWD.
2. Reciprocal rights and obligations of
adopter and adoptee are extinguished;
3. Cancellation of amended birth certificate
and restoration of original;
4. Successional rights shall revert to its
status prior to adoption, as of the date of
final judgment of rescission; and
5. Vested rights prior to judicial rescission
shall be respected
(Sec. 20, RA 8552)
Cagatin, Gonzaga, Puertos
Procedure:
1. Filing of petition for Adoption.
2. Notice of Hearing
3. Publication of order of Hearing at
least once a week for 3 consecutive
weeks.
4. If a change of the name of the adoptee
is prayed for in the Petition, notice to
the OSG is mandatory
5. Child and Home Study reports (non-
compliance with this will not proceed
to hearing)
6. Hearing within 6 months from
issuance of order
7. Supervised trial custody for at least 6
months
8. Decree of adoption
9. Entry in book of adoption.
What happens in the entry in book of
adoption?
Original copy in the Civil Registry shall be
annotated of the adoption, then it will be placed
in an envelope and sealed then a new birth
certificate stating the name of the adopter as the
parent of the child (NB: In the new birth
certificate, no indication that the child is
adopted, its as if the adopter is the biological
parent of the child)
PROCEDURE FOR INTER-COUNTRY
ADOPTION
(RA 8043)
When allowed?
The inter-country adoption board (ICAB) shall
only allow this adoption when all the
possibilities for domestic adoption of the child
have been exhausted and that inter-country
adoption is in the best interest of the child (Sec.
7, 8043)
Inter-country adoption of Filipino children by
foreign nationals and Filipino citizens by foreign
nationals and Filipino Citizen permanently
residing abroad is allowed by law if such
children cannot be adopted by qualified Filipino
citizens or aliens.
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Inter-country Adoption Act of 1995 (RA 8043)
governs the adoption of Filipino children by:
1. Foreign nationals; and
2. Filipino citizens permanently
residing abroad
(Sec. 3, RA 8043)
Definitions
 Family Selection – No child shall be
matched to a foreign adoptive family
unless it is satisfactorily shown that the
child cannot be adopted locally (Sec. 11)
 Matching – refers to the judicious
pairing of the adoptive child and the
applicant to promote a mutually
satisfying parent-child relationship. (Sec.
3)
Role of DFA
 The DFA shall set-up a system by which
Filipino children sent abroad for trial
custody are monitored and checked as
reported by the authorized and
accredited inter-country adoption
agency, as well as the repatriation to the
Philippines of a Filipino child whose
adoption has not been approved. (Sec.
14 (3))
 Upon receipt of applicant’s matching
proposal and confirmation of the pre-
adoptive placement plans by foreign
agency, the ICAB shall issue the
placement authority within five (5)
working days. The copy of the
placement authority shall be transmitted
to the DFA and to the foreign adoption
agency. (Sec. 39)
Where to file petition?
1. It may be filed with the ICAP through
the Central Authority or an accredited
Foreign Adoption Agency in the country
where the applicant resides or
2. The filing of petition may be made with
Family Court having jurisdiction over
the place where the child resides or may
be found. [Sec. 28, A.M. No. 02-6-02-SC,
Rule on Domestic and Inter-Country
Adoption]
Filing before the Family Court
Cagatin, Gonzaga, Puertos
1. The filing of petition may be made with
Family Court having jurisdiction over
the place where the child resides or may
be found. [Sec. 28, A.M. No. 02-6-02-SC,
Rule on Domestic and Inter-Country
Adoption]
2. A verified petition for inter-country
adoption may be filed by a foreign
national or and Filipino citizens
permanently residing abroad with the
Family Court
Filing with the court
1. Receive the application and determine if
the same is sufficient in form and
substance;
2. Assess the qualification of the
prospective adopter and whether it is a
proper case for inter-country adoption;
and
3. Refer its findings, if favorable, to the
Inter-Country Adoption Board (ICAB)
for appropriate action.
Filing before the Inter-Country Adoption
Board (ICAB)
 The ICAB, on its own, can receive the
original application. It is the central
authority in matters relating to inter-
country adoption. It is the policy-
making body for purposes of carrying
out the provisions of the law, in
consultation and coordination with the
DSWD, the different child-care and
placement agencies, adoptive agencies,
as well as NGOs engaged in child care
and placement activities.
Procedure:
1. Filing of petition for adoption
2. Order of Hearing
3. Publication of Order of Hearing
4. Preparation and submission of child and
home study report
5. Social worker to verify with the civil
registry the real identity and registered
name of the adoptee, and establish that the
child is legally available for adoption
6. Hearing (w/in 6 months from the issuance
of order)
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7. Supervised Trial Custody Who may adopt?

8. Social Worker’s report on trial custody
9. Decree of Adoption Domestic Adoption Inter-Country
10. Issuance of Certificate of Finality (after 15 (RA 8552) Adoption
days unless appealed) (RA 8043)
11. Adopter to submit a certified true copy of 1. Any Filipino An alien or Filipino
the decree of adoption and certificate of Citizen; Citizen permanently
finality to the Civil Registrar. 2. Any alien residing abroad.
12. At the Civil Registrar: possessing the
a) Annotation of decree on adoptee’s same
original birth certificate qualifications for
b) Issuance pf Birth Certificate Filipino Nationals;
without annotation 3. The guardian with
c) Sealing of original birth certificate respect to the
d) Submission of proof of compliance ward. (Sec. 7)

DISTINGUISH DOMESTIC ADOPTION Who may be adopted?

FROM INTER-COUNTRY ADOPTION
Domestic Adoption Inter-Country
As to the kind of proceedings (RA 8552) Adoption
(RA 8043)
Domestic Adoption Inter-Country 1. Any person below Only legally free
(RA 8552) Adoption 18 years of age who child may be
(RA 8043) have been subject of Inter-
Judicial Adoption Extra-judicial administratively or Country Adption
Adoption judicially declared
available for
Coverage (what it governs) adoption;
2. The legitimate
Domestic Adoption Inter-Country son/daughter of
(RA 8552) Adoption one spouse by the
(RA 8043) other spouse;
RA 8552 amended RA 8043 governs 3. An illegitimate
Art. 183 to 193 of the adoption of Filipinos son/daughter by a
Family Code and is by foreigners and qualified adopter to
the governing law non-resident citizen improve his/her
for Filipino citizens and is implemented status to that of
adopting other by the Inter-Country legitimacy;
Filipinos (whether Adoption Board. 4. A person of legal
relatives or age if, prior to
strangers) with some adoption, said
exception. person has been
consistently
Definition of a “child” considered and
treated by the
Domestic Adoption Inter-Country adopter(s) as
(RA 8552) Adoption his/her own child
(RA 8043) since minority.
A person below 18 A person below 5. A child whose
years of age 9Sec. fifteen (15) years of adoption has been
3(a)) age unless sooner previously
emancipated by law. rescinded; or
(Sec. 3 (b)) 6. A child whose
biological or

Cagatin, Gonzaga, Puertos

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adoptive parent(s) certain time and place, with the day and
has dies; provided the cause of his caption and detention,
that no proceedings to do, to submit to and receive whatever
shall be initiated the court shall consider in the behalf.
within 6 months
from time of death  The high prerogative writ of habeas
of said parents. corpus whose origin is traced to
(Sec. 8) antiquity, was devised and exists as a
speedy and effectual remedy to relieve
Where to file application? persons from unlawful restraint, and as
the best and only sufficient defense of
Domestic Adoption Inter-Country personal freedom. It secures to a
(RA 8552) Adoption prisoner the right to have the cause of
(RA 8043) his detention examined and determined
Family Court of the 1. Philippine Family by a court of justice, and to have the
place where the Court having issue ascertained as to a whether he is
adoptee resides. jurisdiction over held under lawful authority. – Feria v.
the child; or CA, G.R. No. 122954, February 15, 2000
2. Inter-Country
Adoption Board  A prime specification of an application
through and for a writ of habeas corpus is restraint of
intermediate liberty. The essential object and purpose
agency, whether of the writ of habeas corpus is to inquire
governmental or into all manner of involuntary restraint
an authorized and as distinguished from voluntary, and to
accredited agency, relieve a person therefrom if such
in the country of restraint is illegal. Any restraint that will
the prospective preclude freedom of action is sufficient.
adoptive parents. – In Re: In the Matter of the Issuance of a
(Sec. 10) Writ of Habeas Corpus of Inmates
Raymundo Reyes and Vincent B.
Requirement for publication Evangelista, G.R. No. 251954, June 10,
2020
Domestic Adoption Inter-Country
(RA 8552) Adoption
Section 1. To what habeas corpus extends. —
(RA 8043)
Except as otherwise expressly provided by
Petition must be No requirement of
law, the writ of habeas corpus shall extend to
published at least publication
all cases of illegal confinement or detention
once a week for 3
by which any person is deprived of his
consecutive weeks in
liberty, or by which the rightful custody of
a newspaper of
any person is withheld from the person
general circulation in
entitled thereto.
the province or city
where the court is
Habeas Corpus, Scope and Applicability
situated;
 Illegal confinement/detention by which
RULE 102
any party is deprived of his liberty;
HABEAS CORPUS
 If the rightful custody of a person is
withheld from the one entitled to it; and
Habeas Corpus, definition
 When as a consequence of a judicial
proceeding:
 Writ directed to the person detaining
a) There has been a deprivation of
another and commanding him to
a constitutional right resulting in
produce the body of the detained at a
the restraint of a person.

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Ex. NPA were arrested without
warrant
b) If the rightful custody of a
person is withheld from the one
entitled to it,
Ex. A child below 7 years old
was in the custody of the father
and the father is with vices, the
mother may apply writ of
habeas corpus since the mother
is entitled to custody being
below 7 years.
c) Court had no jurisdiction to
impose the sentence, or
d) An excessive penalty has been
imposed, as such sentence is
void as to such excess.
Ex. A certain crime is punishable
of 2 years then a new law was
enacted lowering the penalty
and the accused is serving more
than the penalty in the new law,
then the warden does not allow
the release, then a writ of habeas
corpus may be filed.
Kinds of Habeas Corpus
1. Preemptory writ – unconditionally
commanding the respondent to have the
body of the detained person before the
court at a time and place therein
specified.
2. Preliminary citation – requires the
respondent to appear and show cause
why preemptory writ should not be
granted. The practice of issuing a
preliminary citation of this character,
upon applications for the writ of habeas
corpus, has, as all legal practitioners are
aware, become common in or courts,
and upon considerations or practical
convenience, the usage must comment
it, in cases where the necessity for the
immediate issuance of the preemptory
writ is not manifested.
Cagatin, Gonzaga, Puertos
Writ is not proper substitute for trial’s
ordinary course
 Habeas corpus writ is not intended as a
substitute for the functions of a trial
court. In the absence of exceptional
circumstances, the orderly course of trial
should be pursued and the usual
remedies exhausted before the writ may
be invoked. Habeas corpus writ is not
ordinarily available in advance of trial to
determine jurisdictional errors that may
arise.
NB: If there are still available remedies in the
ordinary course of law, such remedies should be
availed first.
Section 2. Who may grant the writ. — The writ
of habeas corpus  may be granted by the
Supreme Court, or any member thereof in the
instances authorized by law, and if so granted
it shall be enforceable anywhere in the
Philippines, and may be made returnable
before the court or any member thereof, or
before a Court of First Instance, or any judge
thereof for the hearing and decision on the
merits. It may also be granted by a Court of
First Instance, or a judge thereof, on any day
and at any time, and returnable before
himself, enforceable only within his judicial
district.
Concurrent Jurisdiction of SC, CA and RTC
 It is clear from the foregoing that [the
Supreme Court], the CA and the RTC
enjoy concurrent jurisdiction over
petitions for habeas corpus. As the habeas
corpus petition was filed by petitioners
with the CA, the latter has acquired
jurisdiction over said petition to the
exclusion of all others, including this
court. This must be so considering the
basic postulate that jurisdiction once
acquired by a court is not lost upon the
instance of the parties but continues
until the case is terminated.- Agcaoili, Jr.,
v Farinas, G.R. No. 232395, July 3, 2018
Section 3. Requisites of application therefor. —
Application for the writ shall be by petition
signed and verified either by the party for
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whose relief it is intended, or by some person
on his behalf, and shall set forth:
(a) That the person in whose behalf
the application is made is imprisoned
or restrained on his liberty;
(b) The officer or name of the person
by whom he is so imprisoned or
restrained; or, if both are unknown or
uncertain, such officer or person may
be described by an assumed
appellation, and the person who is
served with the writ shall be deemed
the person intended;
(c) The place where he is so
imprisoned or restrained, if known;
(d) A copy of the commitment or
cause of detention of such person, if it
can be procured without impairing
the efficiency of the remedy; or, if the
imprisonment or restraint is without
any legal authority, such fact shall
appear.
The petition must be signed and verified and
must allege:
1. Fact of confinement/detention
2. By whom; if the restraining person is
unknown/uncertain, use an assumed
appellation. But the person served is
deemed the person intended;
3. Where; and
4. Cause or commitment order (if it can be
procured without impairing Habeas
corpus writ’s efficiency), or lack thereof
Who may file?
 Any person who has a legally justified
interest in the freedom of the person
whose liberty is restrained or who
shows some authorization to make the
application. – Velasco v. Court of Appeals,
G.R. No. 118644, July 7, 1995
Ex. Detained NPA – their family or any
person interested in the freedom of the
person.
Section 4. When writ not allowed or discharge
Cagatin, Gonzaga, Puertos
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. Not 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.
The rule is that if a 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, the writ of habeas corpus will not
be allowed - In Re: In the Matter of the Issuance of
a Writ of Habeas Corpus of Inmates Raymundo
Reyes and Vincent B. Evangelista, G.R. No. 251954,
June 10, 2020
The writ of habeas corpus may also be availed of
as a post-conviction remedy when, as a
consequence of a judicial proceeding, any of the
following exceptional circumstances is
attendant:
1. There has been a deprivation of a
constitutional right resulting in the
restraint of a person;
2. The court had no jurisdiction to impose
the sentence; or
3. The imposed penalty has been excessive,
this voiding the sentence as to such
excess.
In Re: In the Matter of the Issuance of a
Writ of Habeas Corpus of Inmates
Raymundo Reyes and Vincent B.
Evangelista, G.R. No. 251954, June 10,
2020
WRIT OF HABEAS CORPUS (RULE 102)
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HABEAS CORPUS, FUNCTIONS
1. It is an effective remedy to question any form
of involuntary restraints; and
Note: Villavicencio vs Lucban – The case
involving prostitutes. The mayor apprehended
the prostitutes and transferred to Davao City. Is
petition for habeas corpus proper in this case?
Yes, it will inquire as to the invalidity if the
involuntary restraint. It is not necessary that
there is physical restraint (like naka posas ang
person) in order the petition for a writ of habeas
corpus.
Moncopa vs Enrile – Enrile in this case was the
respondent as the Secretary of Defense. After
the detention of Moncopa, she was released
with no charges. However, there are conditions
for her release such she will report to the Sec
Enrile and will not give interviews to the media.
Is the petition for Habeas Corpus proper in this
case? Yes, although there is actual detention but
here there is detention with conditions. This is a
form of involuntary restraint. Free ka nga pero
marami nman conditions.
Differentiate this with Parole and Probation
since you are release but there are conditions,
can you file a petition for habeas corpus? Is this
a form of voluntary restraint? No, because there
is a lawful cause for your conditions since you
are guilty for a certain crime.
Ampatuan vs Macaraig (2010) – In this case,
there was an inquest proceeding and this
involves a police officer from Sultan Kudarat
that is suspected in killing the Head of Law
Department of COMELEC. During, the inquest
there is still no charge and he was released but
he a filed the petition for Writ of habeas Corpus
since according to him he is frequently
monitored by the PNP because of an
administrative case filed against him for grave
misconduct in relation to the killing and
Cagatin, Gonzaga, Puertos
required to submit a report. According to him
he should not be subjected to any form of
restraint and be monitored by the PNP since
there is no charge against him for the killing of
the COMELEC official. Should the petition for
prosper? No, although there is no charge against
him for the killing but there is an administrative
case filed against him so the restraint to his
freedom by the PNP requiring him to file
reports and be monitored by the PNP is proper.
The restraint is proper.
2. It can be used as post-conviction remedy
Section 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. Not
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.
GR: The Rule is that if a 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, the writ of habeas corpus will not be
allowed. (IN RE: In the matter if the Issuance of
Writ of Habeas Corpus of inmates Raymundo
Reyes and Vincent B. Evangelista,2020)
Note: Process issued by a court example there is
warrant of arrest issued by the court
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Exception: The writ of Habeas Corpus may also
be availed of as a post-conviction remedy when,
as consequence of a judicial proceeding, any of
the following exceptional circumstances is
attendant:
1. There has been a deprivation of a
constitutional right resulting in the restraint of a
person;
2. The court had no jurisdiction to impose the
sentence; or
3. The imposed penalty has been excessive, thus
voiding the sentence as to such excess.
(IN RE: In the matter if the Issuance of Writ of
Habeas Corpus of inmates Raymundo Reyes
and Vincent B. Evangelista,2020)
Note: Gumahon vs Director of Prison – Here,
Gumahon was convicted by the court for the
crime of rebellion with murder. However, in our
current jurisdiction, murder is already absorbed
in the crime of rebellion. Gumahon in this case,
he filed a petition for Habeas Corpus. The issue
in this case is when will his action to file the
petition accrue? Ans: If he already served the
proper minimum penalty imposed by the court
for the crime of rebellion, that is the time that he
can file the petition for Habeas Corpus and not
earlier.
Another example: X was convicted of a crime
which carries a penalty of reclusion perpetua.
However, there is a law passed by Congress
adjusting the penalty of the crime charged to X
into reclusion temporal. When can X file a
petition for Habeas Corpus? When X already
served the minimum adjusted penalty of
reclusion temporal that is the time that he can
file the petition, dli ato time nga na passed ang
law or advance filing of the petition, he should
serve the minimum period of the adjusted
penalty of the new bago mka file ug petition law
assuming maka benefit si X sa new law.
Cagatin, Gonzaga, Puertos
Iba ang Petition for Writ of Habeas Corpus sa
Writ of Habeas Corpus. In Petition for Writ of
Habeas you are still pleading to the court for the
issuance of the writ, while in Writ of Habeas
Corpus there is already an order of the court to
bring the body.
IN RE: In the matter if the Issuance of Writ of
Habeas Corpus of inmates Raymundo Reyes
and Vincent B. Evangelista,2020
Here, under RA 6425 Section 15. Sale,
Administration, Dispension, Delivery,
Transportation and Distribution of Regulated
Drugs. The penalty of imprisonment ranging
from six years and one day to twelve years and
a fine ranging from six thousand to twelve
thousand pesos shall be imposed upon.
However, RA No.7659 amended Section 15 of
RA 6425, it now provides that the sale,
administration, dispension, delivery,
transportation and distribution of Regulated
Drugs, the penalty of reclusion perpetua to
death and a fine ranging from five hundred
thousand pesos to ten million pesos shall be
imposed upon any person who, unless
authorized by law, shall sell, dispense, deliver,
transport or distribute any regulated drug for
200 grams or more of shabu.
Raymundo Reyes and Vincent Evangelista were
found guilty by the RTC of illegally selling
974.12 grams of shabu. The crime was
committed after the effectivity of RA 7659. They
are found guilty of illegal sale of Dangerous
Drugs under Section 15 of RA 6425, as amended
and the penalty was Reclusion perpetua and
fine of P 500,000.00.
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Here, the petitioner wife of Evangelista filed a

petition for the issuance of Writ of Habeas
SC ruling:
Corpus, praying for:

First Argument: The abolition of the death

1. The issuance of a writ of habeas corpus
directing respondent Gerald Bantag, Director of
General of BoC, to make a return thereon,
showing legal authority to detain Raymundo
Reyes and Vincent Evangelista, persons
deprived of liberty, and to present them
personally before the court; and
2. For the release of Reyes and Evangelista from
incarceration at the New Bilibid Prison in
Muntinlupa City.
penalty does not mean that the penalties
imposed under RA 7956, apart from death, have
likewise been repealed. Only the imposition of
the death penalty has been removed under RA
9346. Evidently, RA 9346 did not repeal the
amendment introduced in RA 7659 imposing
the penalty of reclusion perpetua in cases of
illegal sale of dangerous drugs. As such, the
imposition of the penalty of imprisonment of
reclusion perpetua against Reyes and
Evangelista is valid.

Basis relied upon by the petitioner – The writ of

habeas corpus may also be availed of as a post-
conviction remedy when, as a consequence of a
judicial proceeding, the imposed penalty has
been excessive, thus voiding the sentence as to
such excess.
Second Argument:
Under the GCTA, the following shall not be
entitled to any GCTA during service of
sentence:

Petitioner claims that with the abolition of the

death penalty, and the repeal of the death a. Recidivists;
penalty in RA 7659 as a consequence, the
penalty for illegal sale of drugs should be b. Habitual Delinquents;
reverted to that originally imposed in RA 6425, c. Escapees; and
or reclusion perpetua in RA 7659 to six years
and one day to twelve years in RA 6425. d. Persons Deprived of Liberty convicted of
According to her, if the convicts will serve the Heinous Crimes.
penalty of Reclusion Perpetua, it is the same as
punishing them with a crime that is not existing
anymore. And said penalty will be tantamount In this case the illegal sale of Dangerous Drugs
to deprivation of their life and liberty and will is considered as Heinous Crime. Hence, he is
not be fair and just in the eyes of man and law. not entitled to GCTA.

In addition, petitioner insists that both convicts

Reyes and Evangelista have already served 19
years and 2 months, or more than 18 years if the
benefit of Good Conduct Time Allowance
(GCTA) under RA 10592 was to be considered.
And, with the benefit of the GCTA, which may
be applied retroactively, both Reyes and
Evangelista have already served more than the
required sentence imposed by law.
Section 5. When the writ must be granted and
issued. A court or judge authorized to grant the
writ must, when a petition therefor is presented
and it appears that the writ ought to issue, grant
the same forthwith, and immediately thereupon
the clerk of the court shall issue the writ under
the seal of the court; or in case of emergency, the
judge may issue the writ under his own hand,
and may depute any officer or person to serve it.

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Section 6. To whom writ directed, and what to
require.  In case of imprisonment or restraint by
an officer, the writ shall be directed to him, and
shall command him to have the body of the
person restrained of his liberty before the court
or judge designated in the writ at the time and
place therein specified. In case of imprisonment
or restraint by a person not an officer, the writ
shall be directed to an officer, and shall
command him to take and have the body of the
person restrained of his liberty before the court
or judge designated in the writ at the time and
place therein specified, and to summon the
person by whom he is restrained then and there
to appear before said court or judge to show the
cause of the imprisonment or restraint.
Section 7. How prisoner designated and writ
served. The person to be produced should be
designated in the writ by his name, if known,
but if his name is not known he may be
otherwise described or identified. The writ may
be served in any province by the sheriff or other
proper officer, or by a person deputed by the
court or judge. Service of the writ shall be made
by leaving the original with the person to whom
it is directed and preserving a copy on which to
make return or service. If that person cannot be
found, or has not the prisoner in his custody,
then the service shall be made on any other
person having or exercising such custody.
Contents of the Writ
1. Directed to an officer (Section 6)
Distraint by an officer
 Directed to him
 Orders him to produce the person
before the court
Distraint not by an officer
 Directed to an officer, orders the officer
to:
1. take and produce person before the
court and
Cagatin, Gonzaga, Puertos
2. summon the person detaining to show
the cause of destraint
2. Name, if known, or description of the
person sought to be produced (Section 7)
Section 7 – Service of writ
By whom
The writ may be served in any province by the
sheriff or other proper officer, or by a person
deputize by the court or judge.
How the writ is served
Service of the writ shall be made by leaving the
original with the person to whom it is directed
and preserving a copy on which to make return
or service. If that person cannot be found, or has
not the prisoner in his custody, then the service
shall be made by any other person having or
exercising such custody.
Section 8. How writ executed and returned. The
officer to whom the writ is directed shall convey
the person so imprisoned or restrained, and
named in the writ, before the judge allowing the
writ, or in case of his absence or disability,
before some other judge of the same court, on
the day specified in the writ, unless, from
sickness or infirmity of the person directed to be
produced, such person cannot, without danger,
be bought before the court or judge; and the
officer shall make due return of the writ,
together with the day and the cause of the
caption and restraint of such person according
to the command thereof.
General Rule: The officer to whom writ is
directed shall convey the detained person on the
day specified in the writ:
1. Before the judge who allowed the writ;
2. If he is absent, before any judge of the same
court
Exception: The exception however is that if the
person to be produced has sickness/infirmity
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such that he cannot be brought before the court
without danger.
Section. 9 Defect of form. — No writ of habeas
corpus can be disobeyed for defect of form, if it
sufficiently appears therefrom in whose custody
or under whose restraint the party imprisoned
or restrained is held and the court or judge
before whom he is to be bought.
Section 10 Contents of return. — When the person
to be produced is imprisoned or restrained by
an officer, the person who makes the return
shall state therein, and in other cases the person
in whose custody the prisoner is found shall
state, in writing to the court or judge before
whom the writ is returnable, plainly and
unequivocably:
(a) Whether he has or has not the party
in his custody or power, or under
restraint;
(b) If he has the party in his custody or
power, or under restraint, the authority
and the true and whole cause thereof,
set forth at large, with a copy of the writ,
order execution, or other process, if any,
upon which the party is held;
(c) If the party is in his custody or power
or is restrained by him, and is not
produced, particularly the nature and
gravity of the sickness or infirmity of
such party by reason of which he
cannot, without danger, be bought
before the court or judge;
(d) If he has had the party in his custody
or power, or under restraint, and has
transferred such custody or restraint to
another, particularly to whom, at what
time, for what cause, and by what
authority such transfer was made.
Section 11. Return to be signed and sworn to. —
The return or statement shall be signed by the
person who makes it; and shall also be sworn by
him if the prisoner is not produced, and in all
other cases unless the return is made and signed
by a sworn public officer in his official capacity.
Cagatin, Gonzaga, Puertos
After the writ has been executed, i.e. when the
person to be produced is imprisoned or
restrained by an officer, the person who makes
the return shall state:
1. whether or not he has custody of the
detained;
2. copy of the authority for the custody;
3. if the person is not produced in court, the
nature and gravity of sickness/infirmity; and
4. if custody is transferred, the circumstances of
the transfer
The form of the return as required in Section 11
is that the return must be signed by the person
who makes it; and shall also be sworn by him if
the prisoner is not produced, and in all other
cases unless the return is made and signed by
sworn public officer in his official capacity.
Section 12 Hearing on return.  Adjournments. —
When the writ is returned before one judge, at a
time when the court is in session, he may
forthwith adjourn the case into the court, there
to be heard and determined. The court or judge
before whom the writ is returned or adjourned
must immediately proceed to hear and examine
the return, and such other matters as are
properly submitted for consideration, unless for
good cause shown the hearing is adjourned, in
which event the court or judge shall make such
order for the safekeeping of the person
imprisoned or restrained as the nature of the
case requires. If the person imprisoned or
restrained is not produced because of his
alleged sickness or infirmity, the court or judge
must be satisfied that it is so grave that such
person cannot be produced without danger,
before proceeding to hear and dispose of the
matter. On the hearing the court or judge shall
disregard matters of form and technicalities in
respect to any warrant or order of commitment
of a court or officer authorized to commit by
law.
When the writ is returned, the court must
immediately hear the case. Hearing may be
adjourned for good causes, with the court
making provisions for the safekeeping of the
detained person. If the detained person is not
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produced, the court must be satisfied of the
gravity of the alleged sickness/infirmity. In the
hearing, the court shall disregard matters of
form and technicalities of the authority/order of
commitment
Burden of proof
 The General Rule is that the burden of
proving illegal restraint rests on the
petitioner who attacks the restraint. If
the return sets forth process which
prima facie shows good ground for the
prisoner’s detention, petitioners must
allege and prove new matter that tends
to invalidate the apparent effect of the
process.
 If the detention of the prisoner is by
reason of lawful public authority, the
return is considered prima facie
evidence of the validity of the restraint
and the petitioner has the burden of
proof to show that the restraint is illegal.
(Feria vs CA (2000))
Section 13 When the return evidence, and when
only a plea. — If it appears that the prisoner is in
custody under a warrant of commitment in
pursuance of law, the return shall be
considered  prima facie  evidence of the cause of
restraint, but if he is restrained of his liberty by
any alleged private authority, the return shall be
considered only as a plea of the facts therein set
forth, and the party claiming the custody must
prove such facts.
Uses of Return:
1. Warrant of commitment by law (ang nag
detain officer of the law) – the return is prima
facie evidence of the cause of restraint
2. Alleged private authority (ang nagdetain is
private) – the return is considered only as a plea
of the facts alleged therein, to be proven by the
party claiming the custody.
Rule 102, Section 17. Person discharged not to be
again imprisoned. — A person who is set at
liberty upon a writ of habeas corpus shall not be
again imprisoned for the same offense unless by
the lawful order or process of a court having
jurisdiction of the cause or offense; and a person
who knowingly, contrary to the provisions of
this rule, recommits or imprisons, or causes to
Cagatin, Gonzaga, Puertos
be committed or imprisoned, for the same
offense, or pretended offense, any person so set
at liberty, or knowingly aids or assists therein,
shall forfeit to the party aggrieved the sum of
one thousand pesos, to be recovered in a proper
action, notwithstanding any colorable pretense
or variation in the warrant of commitment, and
may also be punished by the court or judge
granting the writ as for contempt.
Rule 102, Section 17 – Effects after the prisoner
is discharged
1. He shall not be imprisoned again for the
same offense, unless by lawful order of
the court having jurisdiction over the
offense.
2. A person who knowingly recommits or
imprisons him for the same or
pretended offense, or assists or aids
therein shall
a. Forfeit P1,000 to the aggrieved party,
and may
b. Contempt of court
Section 18. When prisoner may be removed from one
custody to another. — A person committed to
prison, or in custody of an officer, for any
criminal matter, shall not be removed therefrom
into the custody of another unless by legal
process, or the prisoner be delivered to an
inferior officer to carry to jail, or, by order of the
proper court or judge, be removed from one
place to another within the Philippines for trial,
or in case of fire epidemic, insurrection, or other
necessity or public calamity; and a person who,
after such commitment, makes signs, or counter-
signs any order for such removal contrary to
this section, shall forfeit to the party aggrieved
the sum of one thousand pesos, to be recovered
in a proper action.
General Rule: Do not remove prisoner,
restrained for any criminal matter, from the
custody of one to another.
Exceptions:
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1. By legal process
2. Delivery of prisoner to an inferior officer
to carry to jail
3. By order of the proper court or judge to
transfer for trial
4. In case of fire, epidemic, insurrection or
other necessity or public calamity
Penalty for violation:
A person who, after such commitment, makes
signs, or counter –signs any order for such
removal contrary to this section, shall forfeit to
the party aggrieved the sum of one thousand
pesos, to be recovered in a proper action.
Rule on the Writ on the Amparo (A.M. No. 07-9-
12-SC)
Origin and etymology
 The writ of amparo originated in
Mexico.” Amparo” literally means
“protection” in Spanish.
 In 1837, de Tocqueville’s Democracy in
America became available in Mexico
and stirred great interest. Its description
of the practice of judicial review in the
U.S appealed to many Mexican jurists.
 The writ of amparo then spread
throughout the Western Hemisphere,
gradually evolving into various forms,
in response to the particular needs of
Cagatin, Gonzaga, Puertos
each country. (The Secretary of National
Defense vs Manalo)
Writ of Amparo in the Philippines
 In the Philippines, while the 1987
Constitution does not explicitly provide
for the writ of amparo, several of the
above amparo protections are
guaranteed by our charter.
 The second paragraph of Article VIII,
Section 1 of the 1987 Constitution, the
Grave Abuse Clause, provides for the
judicial power “to determine whether or
not there has been a grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government.
(The Secretary of National Defense vs
Manalo)
 While constitutional rights can be
protected under the Grave Abuse Clause
through remedies of injunction or
prohibition under Rule 65 of the Rules of
Court and a petition for habeas
corpus under Rule 102, these remedies
may not be adequate to address the
pestering problem of extralegal killings
and enforced disappearances.
 The writ of Amparo serves both
preventive and curative roles in
addressing the problem of extralegal
killings and enforced disappearances. It
is preventive in that it breaks the
expectation of impunity in the
commission of these offenses; it is
curative in that it facilitates the
subsequent punishment of perpetrators
as it will inevitably yield leads to
subsequent investigation and action.lvs
 The adoption of the Amparo Rule
surfaced as a recurring proposition in
the recommendations that resulted from
a two-day National Consultative
Summit on Extrajudicial Killings and
Enforced Disappearances sponsored by
the Court on July 16-17, 2007.
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 On October 24, 2007, the Court
promulgated the Amparo Rule "in light
of the prevalence of extralegal killing
and enforced disappearances." It was an
exercise for the first time of the Court's
expanded power to promulgate rules to
protect our people's constitutional
rights, which made its maiden
appearance in the 1987 Constitution in
response to the Filipino experience of
the martial law regime.
Note: There should be proof of the
existence of threat of extralegal killings
not just mere speculation or conjecture.
Proved by substantial evidence not
merely allegation.
The Rule on the Writ of Amparo
SECTION 1. Petition. – The petition for a writ
of amparo is a remedy available to any person
whose right to life, liberty and security is
violated or threatened with violation by an
unlawful act or omission of a public official or
employee, or of a private individual or entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
Note: Proprietary and commercial rights hindi
covered.
Writ of Amparo versus Writ of Habeas Corpus
Writ of Habeas Corpus
 Involves unlawful deprivation of liberty
or any form of involuntary restraints.
Writ of Amparo
 Involves violation of constitutional and
civil rights in the form of enforced
disappearance and extra-legal killings,
or any threats thereof (only).
WRIT OF AMPARO COVERAGE
Cagatin, Gonzaga, Puertos
1. Extralegal killings" are "killings committed
without due process of law, i.e., without legal
safeguards or judicial proceedings
2. On the other hand, "enforced disappearances"
are "attended by the following characteristics:
an arrest, detention or abduction of a person by
a government official or organized groups or
private individuals acting with the direct or
indirect acquiescence of the government; the
refusal of the State to disclose the fate or
whereabouts of the person concerned or a
refusal to acknowledge the deprivation of
liberty which places such persons outside the
protection of law
Elements of Enforced disappearances (Gen.
Razon vs Tagitis GR 182498)
(a) arrest, detention, abduction or any form of
deprivation of liberty;
(b) carried out by agents of the State or persons
or groups of persons acting with the
authorization, support or acquiescence of the
State;
(c) followed by a refusal to acknowledge the
detention, or a concealment of the fate of the
disappeared person; and
(d) placement of the disappeared person outside
the protection of the law.
Applicable when a person is “consumed by fear
for life and liberty”
 When a person is consumed by fear for
her life and liberty that it completely
limits her movement, the writ may be
issued to secure her.
 Note, however, that the source of this
fear must be valid and substantiated by
circumstances, and not mere paranoia.
Thus, in resolving the necessity of
issuing a writ of amparo and the
corresponding protection order, the
courts must look at the overall
circumstance surrounding the applicant
and respondents. (Gadian vs AFP GR
No. 188163)
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Writ of Amparo may still be issued
notwithstanding the fact that the person had
already been released from detention
 Nevertheless, it is undisputed that the
respondent, after four days of detention,
had been released by the members of the
Task Force on June 18, 2009. This fact
alone, however, does not negate the
property of the grant of a writ of
amparo. (Mamba vs Bueno GR.No.
191416)
 The Court emphasized that the writ
of amparo  serves both preventive and
curative roles in addressing the problem
of extralegal killings and enforced
disappearances. It is preventive in that it
breaks the expectation of impunity in
the commission of these offenses; it is
curative in that it facilitates the
subsequent punishment of perpetrators
as it will inevitably yield leads to
subsequent investigation and action.
 Accordingly, a writ of amparo  may still
issue in the respondent's favor
notwithstanding that he has already
been released from detention. In such
case, the writ of amparo  is issued to
facilitate the punishment of those
behind the illegal detention through
subsequent investigation and action.
(Mamba vs Bueno GR.No. 191416)
The petition for issuance of the Writ of Amparo
only requires Substantial evidence
 Substantial evidence is sufficient in
proceedings involving petitions for the
writ of amparo. The respondent must
show in the return on the writ
of amparo the observance of
extraordinary diligence. Once an
enforced disappearance is established by
substantial evidence, the relevant State
agencies should be tasked to
assiduously investigate and determine
the disappearance, and, if warranted, to
bring to the bar of justice whoever may
be responsible for the disappearance.
(Republic vs Cayanan GR NO. 181796)
Cagatin, Gonzaga, Puertos
WHEN WRIT OF AMPARO NOT THE
PROPER REMEDY
 There is no basis for granting the
privilege of the writ of amparo, when
illegal restraint had already ceased and
there is no imminent or continuing
restriction on a person’s liberty. In this
case, the very element of the cause of
action does not exist anymore.
 In Pador vs Arcayan (GR NO. 183460),
the Court denied the petition on the
ground that the allegations were mere
conjectures and speculations. It further
held that it cannot grant the privilege of
the writ of amparo based upon a
trespass in property as it is merely a
violation of petitioner’s rights, one not
contemplated under the Rules. Citing
Tapuz vs Del Rosario, the court ruled
that the writ of amparo does not
envisage the protection of concerns that
are purely property or commercial in
nature.
 In Spouses Santiago vs Tulfo, after the
incident in NAIA 3 between Claudine
Barreto, Raymart Santiago, and Mon
Tulfo, the Tulfo Brothers aired on their
TV Program comments and expletives
against petitioners and threatened that
they will retaliate.
 Terrified, petitioners filed a petition for
issuance of writ of amparo against
respondents.
 ISSUE: Should the petition be granted?
No.
 It is undisputed that
petitioners' amparo petition before the
RTC does not allege any case of
extrajudicial killing and/or enforced
disappearance, or any threats thereof, in
the senses above-described. 
 Their petition is merely anchored on a
broad invocation of respondents'
purported violation of their right to life
and security, carried out by private
individuals without any showing of
direct or indirect government
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participation. Thus, it is apparent that
their amparo petition falls outside the
purview of A.M. No. 07-9-12-SC and,
perforce, must fail. (Spouses Santiago vs
Tulfo GR No. 205039)
GOVERNMENT INVOLVEMENT IN THE
DISAPPERANCE IS AN INDISPENSABLE
ELEMENT
 Under Section 1 of A.M. No. 07-9-12-SC
a writ of amparo may lie against a
private individual or entity. But even if
the person sought to be held accountable
or responsible in an amparo petition is a
private individual or entity, still,
government involvement in the
disappearance remains an indispensable
element. (Navia vs Pardico GR 184467)
State or any of its agencies may be impleaded
 In proper circumstances, the State or any
of its relevant agencies may be
impleaded; otherwise, the rule on the
writ of amparo may be rendered
ineffective or toothless. There may be
occasions when the remedy of the writ
of amparo can be made effective only
through the State and its agencies.
 This is because the State is vested with
the authority and responsibility for
securing every inhabitant's life, liberty
and property. After all, the State controls
the legal, moral and material resources
by which to fully enforce the
Constitution and the laws guaranteeing
life, liberty and property. (Republic vs
Cayanan GR No. 181796)
Note: Even if the who is committing the
unlawful act is a private individual, the
government must still be involved
because they will help in the satisfaction
of writ of amparo.
SEC. 2. Who May File. – The petition
may be filed by the aggrieved party or by any
qualified person or entity in the following order:
Cagatin, Gonzaga, Puertos
a. Any member of the immediate family,
namely: the spouse, children and
parents of the aggrieved party;
b. Any ascendant, descendant or collateral
relative of the aggrieved party within
the fourth civil degree of consanguinity
or affinity, in default of those mentioned
in the preceding paragraph; or
c. Any concerned citizen, organization,
association or institution, if there is no
known member of the immediate family
or relative of the aggrieved party.
The filing of a petition by the aggrieved party
suspends the right of all other authorized
parties to file similar petitions. Likewise, the
filing of the petition by an authorized party on
behalf of the aggrieved party suspends the right
of all others, observing the order established
herein.
Note: The order of priority in Section 2 should
be followed. In Callo vs Commissioner Morente,
the court held that in a petition for a writ of
amparo, the order of priority on who can file the
petition should be strictly be followed.
SEC. 3. Where to File. – The petition may be
filed on any day and at any time with the
Regional Trial Court of the place where the
threat, act or omission was committed or any of
its elements occurred, or with the
Sandiganbayan, the Court of Appeals, the
Supreme Court, or any justice of such courts.
The writ shall be enforceable anywhere in the
Philippines.
When issued by a Regional Trial Court or any
judge thereof, the writ shall be returnable before
such court or judge.
When issued by the Sandiganbayan or the Court
of Appeals or any of their justices, it may be
returnable before such court or any justice
thereof, or to any Regional Trial Court of the
place where the threat, act or omission was
committed or any of its elements occurred.
When issued by the Supreme Court or any of its
justices, it may be returnable before such Court
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or any justice thereof, or before the f. The relief prayed for.

Sandiganbayan or the Court of Appeals or any
of their justices, or to any Regional Trial Court
of the place where the threat, act or omission
was committed or any of its elements occurred.
Note: The “any day, any time” provision in
Section 3 mates the petition for writ of amparo
unique. Accordingly, the petition may be filed
on Saturdays or Sundays.
SEC. 4. No Docket Fees. – The petitioner shall be
exempted from the payment of the docket and
other lawful fees when filing the petition. The
court, justice or judge shall docket the petition
and act upon it immediately.
SEC. 5. Contents of Petition. – The petition shall
be signed and verified and shall allege the
following:
a. The personal circumstances of the
petitioner;
b. The name and personal circumstances of
the respondent responsible for the
threat, act or omission, or, if the name is
unknown or uncertain, the respondent
may be described by an assumed
appellation;
c. The right to life, liberty and security of
the aggrieved party violated or
threatened with violation by an
unlawful act or omission of the
respondent, and how such threat or
violation is committed with the
attendant circumstances detailed in
supporting affidavits;
d. The investigation conducted, if any,
specifying the names, personal
circumstances, and addresses of the
investigating authority or individuals, as
well as the manner and conduct of the
investigation, together with any report;
e. The actions and recourses taken by the
petitioner to determine the fate or
whereabouts of the aggrieved party and
the identity of the person responsible for
the threat, act or omission; and
The petition may include a general prayer for
other just and equitable reliefs.
Note: In Razon vs Tagitis, the court held that the
allegation in Section 5(c) need not be complete
in every detail and mentioned that as long as the
cause of action is readily apparent in the
allegation, form and substance does not merit
the dismissal of the petition. (Pwde
circumstantial evidence lang as the same is
tantamount to substantial evidence)
(Rule 6-8 skipped)
SEC. 9. Return; Contents. – Within seventy-two
(72) hours after service of the writ, the
respondent shall file a verified written return
together with supporting affidavits which shall,
among other things, contain the following:
a. The lawful defenses to show that the
respondent did not violate or threaten
with violation the right to life, liberty
and security of the aggrieved party,
through any act or omission;
b. The steps or actions taken by the
respondent to determine the fate or
whereabouts of the aggrieved party
and the person or persons responsible
for the threat, act or omission; (hindi
pwd denial lang, dapat may gawin to
determine the whereabouts of the
person. The officer must state that he
exercised extra ordinary diligence in
determining the whereabouts of the
aggrieved party)
c. All relevant information in the
possession of the respondent pertaining
to the threat, act or omission against the
aggrieved party; and
d. If the respondent is a public official or
employee, the return shall further state
the actions that have been or will still be
taken:
i. to verify the identity of the
aggrieved party;
ii. to recover and preserve evidence
related to the death or
disappearance of the person
identified in the petition which

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may aid in the prosecution of the
person or persons responsible;
iii. to identify witnesses and obtain
statements from them
concerning the death or
disappearance;
iv. to determine the cause, manner,
location and time of death or
disappearance as well as any
pattern or practice that may
have brought about the death or
disappearance;
v. to identify and apprehend the
person or persons involved in
the death or disappearance; and
vi. to bring the suspected offenders
before a competent court.
The return shall also state other matters relevant
to the investigation, its resolution and the
prosecution of the case.
A general denial of the allegations in the
petition shall not be allowed.
Note:
 Upon receipt of the petition, the Court
shall determine if “on its face”, the
petition warrants the issuance of the
writ.
 Under the Rules, the writ may be in the
handwriting of the Judge and a person
may be deputized to serve it. This is
apparently by virtue of the urgency pf
Amparo petitions where life, liberty, and
security are at stake.
 The summary hearing shall be
conducted not later than 7 days from the
date of issuance as shown in the writ.
 Service shall be made to the respondent.
In lieu of the answer, a return must be
made which alleges the lawful defenses.
General denial is not allowed in the
return because the court seeks to
determine at the soonest possible time
circumstances surrounding the threat or
violation of Constitutional rights.
Cagatin, Gonzaga, Puertos
 The Judge could not require an Answer
in lieu of a return as the two pleadings
are not the same. (De Lima vs Gatdula
GR. No. 204528)
SEC. 10. Defenses not Pleaded Deemed
Waived. — All defenses shall be raised in the
return, otherwise, they shall be deemed waived.
SEC. 11. Prohibited Pleadings and Motions. –
The following pleadings and motions are
prohibited:
a. Motion to dismiss;
b. Motion for extension of time to file
return, opposition, affidavit, position
paper and other pleadings;
c. Dilatory motion for postponement;
d. Motion for a bill of particulars;
e. Counterclaim or cross-claim;
f. Third-party complaint;
g. Reply;
h. Motion to declare respondent in default;
i. Intervention;
j. Memorandum;
k. Motion for reconsideration of
interlocutory orders or interim relief
orders; and
l. Petition for certiorari, mandamus or
prohibition against any interlocutory
order.
Note: A memorandum is a prohibited pleading
under the Rule on Writ of Amparo (De lima vs
Gatdula)
SEC. 12. Effect of Failure to File Return. — In
case the respondent fails to file a return, the
court, justice or judge shall proceed to hear the
petition ex parte.
SEC. 13. Summary Hearing. — The hearing on
the petition shall be summary. However, the
court, justice or judge may call for a preliminary
conference to simplify the issues and determine
the possibility of obtaining stipulations and
admissions from the parties.
The hearing shall be from day to day until
completed and given the same priority as
petitions for habeas corpus.
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SEC. 14. Interim Reliefs. — Upon filing of the
petition or at anytime before final judgment, the
court, justice or judge may grant any of the
following reliefs:
(a) Temporary Protection Order. – The
court, justice or judge, upon motion or
motu proprio, may order that the
petitioner or the aggrieved party and
any member of the immediate family be
protected in a government agency or by
an accredited person or private
institution capable of keeping and
securing their safety. If the petitioner is
an organization, association or
institution referred to in Section 3(c) of
this Rule, the protection may be
extended to the officers involved.
The Supreme Court shall accredit the
persons and private institutions that
shall extend temporary protection to the
petitioner or the aggrieved party and
any member of the immediate family, in
accordance with guidelines which it
shall issue.
The accredited persons and private
institutions shall comply with the rules
and conditions that may be imposed by
the court, justice or judge.
(b) Inspection Order. — The court,
justice or judge, upon verified motion
and after due hearing, may order any
person in possession or control of a
designated land or other property, to
permit entry for the purpose of
inspecting, measuring, surveying, or
photographing the property or any
relevant object or operation thereon.
The motion shall state in detail the place
or places to be inspected. It shall be
supported by affidavits or testimonies of
witnesses having personal knowledge of
the enforced disappearance or
whereabouts of the aggrieved party.
If the motion is opposed on the ground
of national security or of the privileged
nature of the information, the court,
justice or judge may conduct a hearing
Cagatin, Gonzaga, Puertos
in chambers to determine the merit of
the opposition.
The movant must show that the
inspection order is necessary to establish
the right of the aggrieved party alleged
to be threatened or violated.
The inspection order shall specify the
person or persons authorized to make
the inspection and the date, time, place
and manner of making the inspection
and may prescribe other conditions to
protect the constitutional rights of all
parties. The order shall expire five (5)
days after the date of its issuance, unless
extended for justifiable reasons.
Note: Inspection order or production
order is not similar to a search warrant
(c) Production Order. – The court,
justice or judge, upon verified motion
and after due hearing, may order any
person in possession, custody or control
of any designated documents, papers,
books, accounts, letters, photographs,
objects or tangible things, or objects in
digitized or electronic form, which
constitute or contain evidence relevant
to the petition or the return, to produce
and permit their inspection, copying or
photographing by or on behalf of the
movant.
The motion may be opposed on the
ground of national security or of the
privileged nature of the information, in
which case the court, justice or judge
may conduct a hearing in chambers to
determine the merit of the opposition.
The court, justice or judge shall
prescribe other conditions to protect the
constitutional rights of all the parties.
Note: Production order does not partake
the nature of a search warrant. Hence,
the requisites for the issuance of search
warrant and a production order are
different. An application for a
production order need not follow the
requirements for the issuance of a search
warrant.
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(d) Witness Protection Order. – The
court, justice or judge, upon motion or
motu proprio, may refer the witnesses to
the Department of Justice for admission
to the Witness Protection, Security and
Benefit Program, pursuant to Republic
Act No. 6981.
The court, justice or judge may also refer
the witnesses to other government
agencies, or to accredited persons or
private institutions capable of keeping
and securing their safety.
 For inspection order to be issued, the
place to be inspected should be at least
determinable from the allegations of the
applicant/petitioner. (Roxas vs Arroyo
2010)
SEC. 15. Availability of Interim Reliefs to
Respondent. – Upon verified motion of the
respondent and after due hearing, the court,
justice or judge may issue an inspection order
or production order under paragraphs (b) and
(c) of the preceding section.
A motion for inspection order under this section
shall be supported by affidavits or testimonies
of witnesses having personal knowledge of the
defenses of the respondent.
SEC. 16. Contempt. – The court, justice or judge
may order the respondent who refuses to make
a return, or who makes a false return, or any
person who otherwise disobeys or resists a
lawful process or order of the court to be
punished for contempt. The contemnor may be
imprisoned or imposed a fine.
SEC. 17. Burden of Proof and Standard of
Diligence Required. – The parties shall establish
their claims by substantial evidence.
The respondent who is a private individual or
entity must prove that ordinary diligence as
required by applicable laws, rules and
regulations was observed in the performance of
duty.
The respondent who is a public official or
employee must prove that extraordinary
diligence as required by applicable laws, rules
Cagatin, Gonzaga, Puertos
and regulations was observed in the
performance of duty.
The respondent public official or employee
cannot invoke the presumption that official
duty has been regularly performed to evade
responsibility or liability.
The Rule on Hearsay is not strictly applied in
Writ of Amparo
 In the case of Razon vs Tagitis, the
testimony of the petitioner wife would
have been hearsay under the Rules of
Evidence as it merely relayed to her or
was not based on her personal
knowledge.
 However, the court made a relaxation of
the Hearsay Rule as long as the
statement or testimony passed the
minimum test of relevancy.
SEC. 18. Judgment. — The court shall render
judgment within ten (10) days from the time the
petition is submitted for decision. If the
allegations in the petition are proven by
substantial evidence, the court shall grant the
privilege of the writ and such reliefs as may be
proper and appropriate; otherwise, the privilege
shall be denied.
SEC. 19. Appeal. – Any party may appeal from
the final judgment or order to the Supreme
Court under Rule 45. The appeal may raise
questions of fact or law or both.
The period of appeal shall be five (5) working
days from the date of notice of the adverse
judgment.
The appeal shall be given the same priority as
in habeas corpus cases.
 It is the order granting or denying the
PRIVILEGE of the writ of amparo that
can be subject to appeal under
Rule 45. The order or decision
pertaining to the issuance of the writ is
an interlocutory order, hence, not
appealable.
 SPECIAL PROCEEDINGS
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GENERAL RULE: Rule 45 (Petition for
Review on Certiorari involves QUESTION
OF LAW ONLY)
EXCEPTIONS: In writs of Amparo, Habeas
Data, and Kalikasan, it may involve both
questions of law and facts.
Rozas vs Macapagal-Arroyo (2010)
 For inspection order to be issued, the
place to be inspected should be at least
determinable from the allegations of the
applicant/petitioner.
 The Writ of Amparo is not a venue for
fishing expedition
 The Writ of Amparo is not a remedy to
determine liability
 An issue which is purely proprietary is
beyond the scope of writ of Amparo.
The scope must only be extralegal
killing and enforced disappearance.
Paglas vs Montil
 There was an application for Writ of
Amparo after the applicants lost in an
ejectment case
 An issue which is purely proprietary is
beyond the scope of Writ of Amparo. (In
this case ang ilang alleged right to their
properties). The scope must only be
extralegal killing and enforced
disappearance.
050821 - Special Proceedings
Habeas data. Okay. So we have now the rule on
habeas data. More or less same lang siya sa writ
of amparo. The best way to answer the bar is
more or less memorize Section 1 of the Rule on
Habeas Data. Didto namo magstart og argue.
Now let's go to rules on writ of habeas data. this
was made effective or approved, on January 22
2008. Okay, the Constitutional basis is article 8
section 5 sub paragraph 5 of the 1987
Constitution With regard to the protection
enforcement of constitutional rights.
Cagatin, Gonzaga, Puertos
The writ of habeas data was conceived as a
response, given the lack of effective and
available remedies, to address the extraordinary
rise in the number of killings and enforced
disappearances. Its intent is to address
violations of or threats of right to life, liberty or
security as a remedy independently from
provided under the prevailing Rules.
Murag ang definition ani na case murag wala na
emphasize and right to privacy murag writ of
amparo lang. So disregard this principle.
Habeas data is an independent and summary
designed to protect the image, privacy, honor,
information, and freedom of information of an
individual, and to provide a forum to enforce
one’s right to the truth and to informational
privacy.
It seeks to protect a person’s right to control
information regarding oneself, particularly in
instances in which such information is being
collected through unlawful means in order to
achieve unlawful ends.
It must be emphasized that in order for the
privilege of the writ to be granted there must
exist in Nexus between the right to privacy on
one hand and the right to life liberty or security
on the other hand. 
there must be a connection between the right to
privacy and life, liberty, or security. Okay both
of them must be affected and your right to
privacy must be linked to life, liberty and
security or vice versa. 
Okay, there must be a connection between the
two sides. 
Now, let's go to the definition. Please memorize
Section 1.  The writ of habeas Data is a remedy
available to any person whose right to privacy
in life, liberty or security is violated or
threatened by an unlawful act, or omission of a
public official or employee, or of a private
individual, or entity engaged in the Gathering,
collecting, or storing of data or information
regarding the person, family home, and
correspondence of the aggrieved party. Please
memorize that definition.
So, the scope of the habeas data rule is designed
to protect by means of judicial complaint the
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FINAL EXAM COVERAGE

image, the privacy, honor, information, and
Freedom of Information of an individual. It is
meant to provide a forum to enforce once right
to the truth and to informational privacy, thus
safeguarding the Constitutional guaranties of a
person's right to life, liberty, and security
against abuse in this age of information
Technology.  court or judge
Sir discusses Delima filing a writ of habeas data
in order for the government to suppress the
alleged video sex scandal with Jonel.
take note, the order of parties who may file the
petition for writ of habeas data Again kung
mayroong aggrieved party siya talaga dapat
mag file. In the absence or in any case of
difficulty on his part, any member of the
immediate family, of the aggrieved party,
namely: the spouse, the children and parents; or
any ascendant, descendant, or collateral relative
of the aggrieved party within the fourth civil
degree of consanguinity or Affinity in default of
those mentioned in the preceding paragraph.  to the RTC where petitioner or
Okay, so where to file. It may be filed before the
Regional trial court, where the petitioner or
respondent resides or that which has
jurisdiction over the place where the data or
information is gathered, collected, or stored at
the option of the petitioner. Take note also that
the petition may be filed with the supreme
court, or the court of appeals or the
sandiganbayan when the action concerns public
data files of government offices. Yung sa writ of
amparo, pwede din siya sa Sandiganbayan
Now enforceable. Returnable. Okay, we all
know, what do we mean by returned? That is
the answer or the response of the private
individual who is being made respondent of the
petition or the government officer, okay? Ito
yung response ng government officer, yung
return. Take note that the return must not only
contain denial; it must also contain other things
such as the steps taken by the government
official or private individual more or less, the
government official, to protect the petitioner or
to look for the data or to prove that the said data
does not exist. Okay.
So hindi dapat denial lang eh dapat meron
siyang steps na gagawin ang public respondent
or the government official.  6.
Okay, so where to file the writ and where it
should be returned:
a. RTC - where petitioner or respondent
resides or where the data or information
is gathered
Note: it is at the option of the petitioner
 It shall be returned to the same
b. CA or Sandiganbayan - when public
data files of the government are
involved
 It shall be returned to the court
which issued or the justice.
 It may also be returned to the
RTC where petitioner or
respondent resides or where the
data is gathered or restored.
c. Supreme Court - when public data files
of the government are the subject.
 The return may be made to the
Supreme Court or any of the
justices, in the CA or
Sandiganbayan or its justices, or
respondent resides or where the
data is gathered or stored.
Okay, so take note of the second part. Again,
nagfile ka ng petition for habeas data sa Court
of Appeals, The higher courts - Court of
appeals, Sandiganbayan, Supreme Court, they
can always remand the case to the RTC where
the petitioner or the respondent resides they
remand the case and make it make the case
returnable to the said court.
Okay, so that is the meaning of the second part. 
OK. Hindi ibig sabihin na nag file ka ng petition
sa  court of appeals ang respondent pwede
siyang mag file ng return sa RTC. Okay, there
should be an order from the higher Courts - the
CA, Sandiganbayan, Supreme Court - to
remand the case or to make the case returnable
to the lower court. After then thereupon, the
respondent will submit his return before the
said RTC. Same with the Supreme Court.
Now, docket fees (referring to Section 5), kapag
indigent walang docket fees that is self-
explanatory. 
then we have the contents, please read section
 

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 SPECIAL PROCEEDINGS
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Sec. 6. Petition. - A verified written petition for a
writ of habeas data should contain:
(a) The personal circumstances of the petitioner
and the respondent;
(b) The manner the right to privacy is violated
or threatened and how it affects the right to life,
liberty or security of the aggrieved party;
chanrobles virtual law library
(c) The actions and recourses taken by the
petitioner to secure the data or information;
(d) The location of the files, registers or
databases, the government office, and the
person in charge, in possession or in control of
the data or information, if known;
(e) The reliefs prayed for, which may include
the updating, rectification, suppression or
destruction of the database or information or
files kept by the respondent.
In case of threats, the relief may include a prayer
for an order enjoining the act complained of;
and
(f) Such other relevant reliefs as are just and
equitable.
In the matter of the petition for the writ of
amparo and the writ of habeas data in favor of
Francis Saez v. Arroyo -  government officer or office and the possession
So si Mr. Francis here is a member of the Anak
Pawis Partylist organization. He was invited by
the intelligence office of the Philippine army.
And in that invitation, he to become an
intelligence asset for the military. Nagsumbong
siya sa military kay gihadlok2x siya sa military
in this case.
Now afterwards, he was allowed to go home
and afterwards, He filed a petition for issuance
of writ of amparo and habeas data. so let's go to
petition for the issuance of habeas data.  reason of his inclusion in the military’s order of
So in this case, Mr. Francis Saez here. The party
list of who is suspected to be member of cpp-
npa or is connected to the CPP-NPA. He said
that he was forced to make a, he was forced to
retract his affidavit containing his eyewitness
account of the Abduction of and murder of
Cagatin, Gonzaga, Puertos
Eden, Marcelina and Eddie Gumanoy. these are
also members of CPP-NPA. So sabi niya, he was
being forced by the military to retract His
witness account, his testimony, sabi nila bawiin
ko ang sinabi ko na nakita ko ang military
abducting the mentioned members.
With regard to his petition for the issuance of
writ of habeas data He wants everything that is
related to the name Francis Saez to be produced
and to be destroyed, or to be taken out from the
system of the government. Kasi nga sabi niya
He was being investigated by the military
leader, or there were surveillance conducted
over his person and his life liberty, and security
is under threat. Sabi niya any documents that
pertain to investigation with regards to the
name Francis Saez  must be produced and must
be destroyed. should it be granted in this case?
Again, it must not be granted, okay? So medyo
general yung kanyang prayer dito eh. Sabi niya
lahat ng front details  Regarding investigation
surveillance under the name of Francis Saez a
suspected member of the CPP NPA should be
deleted. So this is more or less General, okay? 
So again the said petition for writ of habeas data
or writ of amparo should not be used as a
phishing Expedition against the government. So
dapat you should prove what are the
documents or the data that must be suppressed
or must be produced and destroyed. in this case,
he did not specify The particular documents to
be secured, their location or what particular
government office has custody thereof, or which
of the said document. Sabi lang niya basta lahat
ng investigation related to Francis Saez as
member of cpp-npa must be deleted. So that
prayer is very general. Okay. Again hindi siya
pwedneg phishing Expedition.
It must be stressed, however, that such threat
must find rational basis on the surrounding
circumstances of the case. In this case, the
petition was mainly anchored on the alleged
threats against his life, liberty, and security by
battle, the surveillance and monitoring activities
made on him, and the intimidation exerted
upon him to compel him to be a military asset.
While as stated earlier, mere threats fall within
the mantle of protection of the writs of amparo
and habeas data, in the petitioner’s case, the
restraints and threats allegedly made allegations
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FINAL EXAM COVERAGE

lack corroborations, are not supported by

independent and credible evidence, and thus,
stand on nebulous grounds.
mere threats may be sufficient for the issuance
writ of amparo or habeas data, but you must at
least corroborate your allegation. kahit threats
lang dapat meron ka pa ring substantial
allegations that will amount to substantial
evidence. Okay, so hindi pwede sabihin mo na
lahat ng documents related to Frances Saez
member of NPA should be deleted hindi pwede
yan.
Hindi siya pwedeng phishing Expedition,  we all know that she was abducted in this case
Now, let's go to the issuance of the writ. Let's go
to the Salient Provisions.
Sec. 7. Issuance of the Writ. -  sigurado kung saan ang place na iyon. again,
1. Upon the filing of the petition, the court,
justice or judge shall immediately order
the issuance of the writ if on its face it
ought to issue.  location or at least more or less identifiable.
2. The clerk of court shall issue the writ
under the seal of the court and cause it
to be served within three (3) days from
the issuance; or,  released by the military. And in the said video
3. in case of urgent necessity, the justice or
judge may issue the writ under his or
her own hand, and may deputize any
officer or person serve it.
4. The writ shall also set the date and time
for summary hearing of the petition
which shall not be later than ten (10)
work days from the date of its issuance.  surveillance on her on ms Rojas. however she
These are the procedures mahirap itong i-
memorize. So again, just memorize section 1.
This is just to give you an idea of the procedure
but dili siguro ni mugawas sa bar kay medyo
specific ra kaayo ni sa rules.
So, let's go to case with regard to the issuance of
the writ, in case of first, sergeant osio versus
clanza. from the foregoing, the Court holds that
the allegations stated in the petition for the
privilege of writs of amparo and habeas data
filed to conform to the rules. However, they are
mere allegations which the Court cannot accept
“hook, line, and sinker”, so to speak, and
whether substantial evidence exist to warrant
the granting of the petition is a different matter
altogether.
So, let's go back to the case of Roxas versus
Macapagal-Arroyo. GR No. 189155, September
7, 2010. so what happened in the case? Now in
this case Roxas is a US citizen, okay, she's still
young and she's Filipino by Blood. She went
back to the Philippines and she participated in
this program Bayan Tarlac (?). However,
allegedly this program is linked to the activities
of the military arm of the NPA,and allegedly
Roxas, The doctor in this case, Ms. Roxas was
engaged in the military training of the NPA and
and she was brought to a military base allegedly
which were not established and therefore the
inspection order With regard to the writ of
amparo was not issued kasi nga hindi siya
the writ of amparo cannot be used as a phishing
Expedition. Di lahat ng military base malapit sa
kanya i-inspection. Dapat identifiable ang
 
So let's go to the writ of habeas data part of this
case. So after her abduction, there was a video
specifically Jovito Palparan, the Nemesis of the
NPA, it was shown in this video that ms. Rojas
was participating in the military activities of the
NPA. So sabi ni Rojas Dito the writ of habeas
data should be granted because there are other
government records that were being kept by the
military as a product of their monitoring and
was not able to identify what are the specific
documents; how these specific documents were
produced? So how these specific documents
were reported or how did the military
conducted the surveillance and monitoring
upon him. 
So hindi niya naestablish na  these documents
about her, linking her to cpp-npa, actually exist.
So, how about this video? That was shown by
Jovito Palparan before the media? And this
video actually was produced or was given to the
military by a Member of the NPA, okay? 
It was a member of NBA and who gave it to the
military. So, in this case, again, the writ of a
habeas data cannot be issued. because there is
no actual evidence on record that shows that the
public respondent in this case has violated or
threatened the right to privacy of ms. Rojas The

Cagatin, Gonzaga, Puertos

 SPECIAL PROCEEDINGS
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act ascribed by the lower court to the public
respondents that would have violated or
threatened the right or to privacy of Roxas such
as keeping of records of Investigations and
other reports about her ties. With the cpp-npa
was not adequately proven considering that the
region of such records were virtually
unexplained and its existence Clearly only
inferred by the Appellate Court from the video
and photograph release by Palparan.  this case, Miss lim, admitted herself that there
Again, ano ba ang naestablish, na merong link si
Ms. Roxas sa cpp-npa, yung video na ipinalabas
ni Palparan. However, again, as proven by the
private respondent, this video was actually
given to the military from a member of the NPA
who wants to get out of the said organization,
okay? So, sabi ni Roxas baka meron pa kayong
ibang document; hindi yan pwede baka, baka
meron, dapat at least my substantial evidence.  that.
Kasi nga di pa binibigay ng meralco ang result
ng kanyang investigation.
So what happened in the case, feeling ni Lim
pinagtritripan lang siya ng meralco dito. So
kung totoo ang threats, ibigay mo ang
documents na will say that this is true. So
should the writ of Habeas Data be granted? In
this case the Supreme Court held no because in
are no threats against her life, liberty, security,
Sabi niya, joke long itong threats against me,
okay? So the documents relating to the
investigation as to the said threats is not covered
by the writ of habeas data because again, there
are no substantial threats against her Privacy in
relation to her life, liberty, and security. 
Now let's go to the penalty. Ok we will skip
 

Okay, let's go. In the case of we already
discussed this, this Francis Saez case. Sabi niya
lahat ng documents related sa pangalang
Francis Saez, linking him to the cpp-npa must
be produced and destroy or suppressed. So, it
was not granted. Because this is too General.
And the threat to privacy In relation to life,
liberty and security was not proven.
Let's go here. The following persons may be
cited for contempt without prejudice to other
disciplinary actions:
1.  The clerk of court who refuses to issue
the Writ after its allowance and 
2. the deputized person who refuses to
serve the writ

MERALCO v. LIM. So what happened in this
case? Ms. Rosario Lim is an employee of
Meralco one day sa office ni rosario lim merong
anonymous letter na pinost doon denouncing he
murag gi threaten. What did the meralco
undertake in this case. Meralco here ordered the
transfer of Rosario lim. Pending the
investigation because meralco here is
investigating about this threat against Ms Lim.
Sabi nila ay hindi pwedeng may threat dito sa
office natin. Okay, itatransfer ka muna namin
Lim in some other sector. Pero si Ms. Lim, ayaw
niyang magpatransfer kasi nga hassle. Sabi ni
Ms Lim you should not transfer me because
these threats are merely jokes. The meralco did
not heed so she filed a TRO and the writ of
habeas data.
With regard to the TRO, sabi ni Ms. Lim I
should not be transferred to another sector
because these threats against me are mere jokes.  mere answer or reply by the respondent because
With regard to the Habeas Data, sabi niya any
document possessed by Meralco relating to their
investigation as to the threats against ms. lim
must be produced and must be given to her.
Same lang ang how the writ is served against
the respondent (referring to section 9) then the
contents of the return more or less same lang sa
writ of amparo. (referring to section 10)
Section 11 the following may be punished with
imprisonment or fine by the Court, Justice or
judge. This is contempt in relation to the writ of
habeas data If you will not follow the order of
the court or the judge, justice in relation to the
writ of habeas data. 
1. a person who commits content by filing
a false return 
2. A person refuses to make a return
3.  And any person who disobeys or resists
a lawful process or order of the court. 
The return is mandatory, if you will not file a
return, You will be held guilty for or you will be
liable for contempt. Okay, this is not similar to a
in a return there should be some compliance
and allegations on your part, di lang pwedeng
mere denial lang, you should undertake steps in
relation to the said petition. 

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 SPECIAL PROCEEDINGS
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Then we have the prohibited pleadings.(Section
13)
Sec. 13. Prohibited Pleadings and Motions. - The
following pleadings and motions are prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file return,
opposition, affidavit, position paper and other
pleadings; chanrobles virtual law library
(c) Dilatory motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory
orders or interim relief orders; and
(l) Petition for certiorari, mandamus or
prohibition against any interlocutory order.
(section 15) Summary hearing -  the hearing on
the petition shall be summary. However, the
court, Justice or judge may call for a preliminary
conference to simplify the issues and determine
the possibility of obtaining stipulations And
admissions from the parties.
 (section 16) now let's go to judgment The court
shall render judgment within ten (10) days from
the time the petition is submitted for decision. If
the allegations in the petition are proven by
substantial evidence, the court shall enjoin the
act complained of, or order the deletion,
destruction, or rectification of the erroneous
data or information and grant other relevant
reliefs as may be just and equitable; otherwise,
the privilege of the writ shall be denied.
Upon its finality, the judgment shall be enforced
by the sheriff or any lawful officers as may be
Cagatin, Gonzaga, Puertos
designated by the court, justice or judge within
five (5) working days.
take note so ano nga yung gusto nating
mangyari sa writ of habeas data? to produce the
said documents That violates her or his right to
privacy in relation to his, right To life, liberty or
security. Okay. If the petitioner was able to
establish by substantial evidence the said threat
To his or her privacy in relation to his life or her
life, liberty, security, She was able to establish it
and the existence of the said document or data,
then the court shall do the following any of the
following or all of the following:
1. Enjoin the act complained of; So if
there's an investigation or monitoring or
surveillance, on the person of the
petitioner, the court may enjoin the said
operation. 
2. Or order, the deletion, destruction, or
rectification of the erroneous data or
information; you destroy the data
including the sex scandal that you were
able to gather and use as a leverage
against him, he destroy it. If naa pay
magleak na data, the respondent may be
held in contempt by the court. 
3. Then grant other reliefs as maybe just
and Equitable. That is the important
part or provision of part in the
Judgment. Day. 
(Section 17) Afterwards There will be return of
service the officer who executed, the final
judgment shall within three days from its
enforcement make a verified return to the court.
The return shall contain a full statement of the
proceedings under the writ and a complete
inventory of the database or information or
documents, and articles, inspected, updated,
rectified or deleted with copies served on
petitioner and the respondent. the officer shall
state in return, how the Judgment was enforced
and complied with by the respondent, as well as
all objections of the parties regarding the
manner and regularity of the service of the writ.
Meron na naman tayong return dito kung
nacomply na ba ni public respondent, or Any
individual officer Who is storing the data.
Okay, let's go to the appeal. 
Again, for the appeal. Rule 45 both questions of
Law and fact or both or pwedeng questions of
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FINAL EXAM COVERAGE

fact lang or pwedeng questions of law lang.

same priority as in habeas corpus and amparo
cases. So again, exception to the rule, rule 45
questions of law lang; exception writ of habeas
data, writ of amparo, and writ of kalikasan.

Let's compare. 
 

Writ of Habeas Corpus Writ of Amparo Writ of Habeas Data

Date of July 1, 1997 October 24, 2007 February 2, 2008

effectivity

Legal Basis Rule 102 of the Revised A.M. No. 07-9-12-SC A.M. No. 08-1-16-SC
Rules of Court

Nature and A command directed to the
Definition person detaining another,
requiring him to produce the
body of the person detained
at a designated time and
place, and to produce and to
show cause and to explain
the reason for detention
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 employer, or of a
private individual or entity.
A remedy available to any
person whose right to
privacy in life, liberty, or
security is violated or
threatened by an unlawful
act or omission of a public
official or employee, or of a
private individual or entity
engaged in the gathering,
collecting, or storing of data
or information regarding the
person, family home, and
correspondence of the
aggrieved party.

Scope 1. To all cases of illegal Extralegal killings and To all cases of violation or
confinement or detention enforced disappearances or threat to the privacy of a
by which any person is threats thereof person, his family, home, and
deprived of his liberty; correspondence
2. To all cases where
the rightful custody of
any person is withheld
thereto 

Where to 1. Regional Trial Court 1. RTC of the place
file 2. Court of Appeals or where the threat,
any member thereof act, or omission was
3. Supreme Court or committed or any of
any member thereof its elements
occurred
2. Sandiganbayan
3. CA or any of its
justices
4. SC or any of its
justices
1. RTC where the
petitioner or
respondent resides,
or that which has
jurisdiction over the
place where the data
or information is
gathered, collected, or
stored, at the option
of the petitioner
2. SC or the CA or
Sandiganbayan when
the action concerns

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 SPECIAL PROCEEDINGS
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public data files of

government offices

When Notto
stated in the Rule Within 72 hours after Within 5 working days from
file service of the writ with service of the writ, with
supporting affidavit supporting affidavit (may be
extended by the Court for
justifiable reasons)

Refusal or Forfeit to the party Imprisonment or fine or Imprisonment or fine or

filing of aggrieved the sum of one contempt contempt
false return; thousand pesos (P1000) or
punishment have the party failing to file
the return be cited for
contempt

Let’s go back to Section 1. In habeas data, sino

nga puwedeng maging respondent dito?
Government officials. Can a private individual
be a respondent in a writ of habeas data? Yes. if
the said private individual or entity is engaged
in the gathering, collecting, or storing of data or
information regarding the person, family, home,
and correspondence of the aggrieved party.
Can JMC be a respondent of a writ of habeas
data? Yes because JMC is gathering data not
only gathering data but also gathering money
from you, joke, gathering, collecting, or storing
of data or information regarding the person,
family, home, and correspondence from its
students.
VIVARES v. ST THERESA’S COLLEGE. So
again, we will read section one of the rule on
habeas data. The writ of habeas data is a remedy
available to any person, whose right to privacy
in life, liberty or Security is violated or
threatened by an unlawful act, or omission of a
public official or employee, or of a private
individual or entity engaged in the gathering
collecting or storing of data or information
regarding the person, Family, Home, and
correspondence to the aggrieved party.  only. Therefore it should not be a ground for
Now, let's go to this case. So the petitioners in
this case are the parents of the actual aggrieved
parties here. So what are the actual aggrieved
parties Here? They are students of the St.
Theresa’s College. Okay, so what happened in
this case? So these students, minor so they
cannot be named. Okay, sila Leslie ug April na
lang.
Leslie and April are students of the STC. one
night They engaged in a drinking session and
anong ginawa ni april and leslie, they only wore
undergarments specifically nag panty and bra
lang sila with hard drinks. So nag walwal sila.
So what did they do after? They took pictures of
themselves, sexy kaayo and they posted it on
their Facebook page. Okay? So one of the
students, ilang suyaon na amigo si Leslie ug
April si kaning si Jesette. Kani si Jesette
gisumbong nila kay Ms. Escudero. Using the
computer of the school, they logged in to the
Facebook account of Jesette and lo and behold,
gipakita niya ang pictures nila Leslie and April.
Leslie and April were suspended and they were
not allowed to graduate Supposedly first to na
decision sa STC. they were not allowed to
graduate. So sabi ni Jesette dito na at first ang
pictures nila April and Leslie dito naka public
pa ito.
So afterwards the petitioners in this case, they
filed a TRO and the issuance of a writ of habeas
data before the RTC. See, in this case the
petitioners alleged that the privacy setting, in
this case, in the children’s facebook was friends
them to be suspended or not to graduate. So the
TRO must be issued.
and also they want the school to be held liable
under the writ of habeas data. they want the
school to produce the said pictures and to
suppress it and not take it as an Evidence
against them. Okay, because these photos were

Cagatin, Gonzaga, Puertos

 SPECIAL PROCEEDINGS
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allegedly accessed Without the consent of Leslie It does not necessarily mean that the activity
and April in this case.  must be done in pursuit of a business. 
So a school is considered as an entity engaged in
So, therefore, the teacher who first saw the collecting storing data, okay? So, hindi lang
picture through Miss Jesette violated the rights yung mga businesses na collecting and sorting
by Saving copies of the photos and by data lang ang business ang covered dito, any
subsequently showing them to the officials of individual and entity who is collecting storing
the St. Theresa’s College. the photos of these Sorting data. 
children Miss Leslie andApril in their
undergarment specifically, panty and bra were Did the STC Violate the students right to
taken for posterity before they change into their privacy. No. there's no expectation of privacy in
swimsuits on the creation of a beach party and this case. the students here cannot expect
that the intrusion into the Facebook accounts, as privacy in this case, Okay? Facebook is armed
well as copying of information data, and digital with different privacy tools designed to regulate
image happened at STC’s computer laboratory, the accessibility of a user’s profile as well as
okay?  information uploaded by the user. 

So in this case, the STC, Denied The allegations
of the petitioner. We cannot be held liable under
the rules on the writ of habeas data because we
are not an entity engaged in gathering and
collecting, storing of data because we are a
school. Di naman kami information agency, or
investigation, or surveillance agency, or military
or security. School kami and we are not engaged
in that business. Aside from that, sabi Nila, the
important part here is that you have the right to
privacy was violated and in relation to that your
life family, liberty, security was also violated,
dapat merong violation of right to privacy.
However, Sabi ng school dito na di ka naman
mag eexpect na maviolate ang iyong right to
privacy napost man ang pictures sa Facebook
tapos friends mo pa ang nakakita.
For instance, a Facebook user can regulate the
visibility and accessibility of digital images
(photos), posted on his or her personal bulletin
or "wall," except for the user’s profile picture
and ID, by selecting his or her desired privacy
setting:
(a) Public - the default setting; every Facebook
user can view the photo;
(b) Friends of Friends - only the user’s Facebook
friends and their friends can view the photo;
(b) Friends - only the user’s Facebook friends
can view the photo;
(c) Custom - the photo is made visible only to
particular friends and/or networks of the
Facebook user; and
(d) Only Me - the digital image can be viewed
only by the user.

So what is the ruling of the Supreme Court

here? So let's go to the first issue. Is this whole
STC considered as an entity engage in gathering
collecting or story of data or information
regarding the person, Family, home, ang
correspondence of the aggrieved party? clearly.
Yes, okay.  measures to prevent access thereto or to limit its
When you say engaged it does not mean that
this is your main business or your main purpose
or your main goal as an entity. Basta meron
kang activity engaged in gathering, collecting
storing data. Hindi kailangan ang Business mo
is gathering collecting and storing data basta
engaged ka nito or may ginagawa kang ganito
You are considered as an entity engaged in
gathering collecting or storing of data, okay? It
is case to engage in something is different from
Undertaking a business endeavour, the
engagements to do or to take part in something.
Before one can have an expectation of privacy in
his or her OSN activity, it is first necessary that
said user, in this case the children of
petitioners,manifest the intention to keep certain
posts private, through the employment of
visibility. And this intention can materialize in
cyberspace through the utilization of the OSN’s
privacy tools. In other words, utilization of these
privacy tools is the manifestation, in cyber
world, of the user’s invocation of his or her right
to informational privacy.
a Facebook user who opts to make use of a
privacy tool to grant or deny access to his or her
post or profile detail should not be denied the
informational privacy right which necessarily
accompanies said choice.

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 SPECIAL PROCEEDINGS
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So, in this case, ang post nila April and Leslie
was set at public and at that time said post was
made available to the whole world. So you
cannot expect privacy now. So it is not any more
covered by the writ of habeas data. Kasi wala ka
ng expectation of privacy nito, okay.
Considering that the default setting for
Facebook posts is "Public," it can be surmised
that the photographs in question were viewable
to everyone on Facebook, absent any proof that
petitioners’ children positively limited the
disclosure of the photograph. If such were the
case, they cannot invoke the protection attached
to the right to informational privacy.
What if assuming arguendo That Miss Leslie
and april posted it on Facebook and sabi nila,
friends lang talaga ito.
That the photos are viewable by "friends only"
does not necessarily bolster the petitioners’
contention. In this regard, the cyber community
is agreed that the digital images under this
setting still remain to be outside the confines of
the zones of privacy in view of the following:
(1) Facebook "allows the world to be more open
and connected by giving its users the tools to
interact and share in any conceivable way;"
(2) A good number of Facebook users "befriend"
other users who are total strangers;
(3) The sheer number of "Friends" one user has,
usually by the hundreds; and
(4) A user’s Facebook friend can "share" the
former’s post, or "tag" others who are not
Facebook friends with the former, despite its
being visible only to his or her own Facebook
friends.
Did the STC commit an unlawful act or
Omission in this case? No the Supreme Court
held no. Pano ba nila nagather ang data? It was
presented to them by Ms. Jesette or the
classmates of the children. It was voluntarily
given to them. Also Ms. Jesette did not obtain
the same unlawfully kasi nga friends sila sa
Facebook.
it is suggested, that a profile, or even a post,
with visibility set at "Friends Only" cannot
easily, more so automatically, be said to be "very
private," contrary to petitioners’ argument.
Cagatin, Gonzaga, Puertos
As applied, even assuming that the photos in
issue are visible only to the sanctioned students’
Facebook friends, respondent STC can hardly be
taken to task for the perceived privacy invasion
since it was the minors’ Facebook friends who
showed the pictures to Tigol. Respondents were
mere recipients of what were posted. They did
not resort to any unlawful means of gathering
the information as it was voluntarily given to
them by persons who had legitimate access to
the said posts. Clearly, the fault, if any, lies with
the friends of the minors. Curiously enough,
however, neither the minors nor their parents
imputed any violation of privacy against the
students who showed the images to Escudero.
Had it been proved that the access to the
pictures posted were limited to the original
uploader, through the "Me Only" privacy
setting, or that the user’s contact list has been
screened to limit access to a select few, through
the "Custom" setting, the result may have been
different, for in such instances, the intention to
limit access to the particular post, instead of
being broadcasted to the public at large or all
the user’s friends en masse, becomes more
manifest and palpable.
Again, a school is considered to be engaged in
gathering, collecting, storing data because it
need not be its main business.
DR. LEE v. ILAGAN
FACTS: Neri, a police officer, filed a petition for
the issuance of Writ of Habeas Data against Joy,
her former common law partner.
According to him, sometime in July 2011, he
visited Joy’s condominium and rested for a
while. When he arrived at his office, he noticed
his digital camera missing. On August 23, 2011,
Joy confronted him about a purported sex video
she discovered from the digital camera showing
him and another woman.
 
He denied the video and demanded the return
of the camera, but she refused. They had an
altercation where Neri allegedly slammed Joy’s
head against a wall and then walked away.
 
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Because of this, Joy filed several cases against
him, including a case for violation of Republic
Act 9262 and administrative cases before
Napolcom, utilising the said video.
 
The use of the same violated his life to liberty,
security and privacy and that of the other
woman, thus he had no choice but to file the
petition for issuance of the writ of habeas data.
 
RTC issued the writ and directed Joy to appear
before the RTC and produce Neri’s digital
camera, as well as the original and copies of the
video, and to make a return within five days
from receipt. In her return, Joy admitted
keeping the memory card of the digital camera
and reproducing the video but only for use as
evidence in the cases she filed against Neri.
Neri’s petitions should be dismissed because its
filing was only aimed at suppressing the
evidence in the cases she filed against him; and
she is not engaged in the gathering, collecting,
or storing of data regarding the person of Neri.
The RTC granted Neri’s petition and ordered
the turn-over of the video to Neri and enjoined
Joy from reproducing the same. It disregarded
Joy’s defense that she is not engaged in the
collection, gathering and storage of data, and
that her acts of reproducing the same and
showing it to other persons (Napolcom) violated
Neri’s right to privacy and humiliated him. It
clarified that it ruling only on the return of the
video and not on its admissibility as evidence.
Dissatisfied, Joy filed the instant petition before
the Supreme Court.
 
ISSUE: Is the RTC correct in granting the
privilege of the writ of habeas data?
HELD: No.
 
A.M. No. 08-1-16-SC, or the Rule on the Writ of
Habeas Data (Habeas Data Rule), was conceived
as a response, given the lack of effective and
available remedies, to address the extraordinary
rise in the number of killings and enforced
disappearances[1]. It was conceptualized as a
judicial remedy enforcing the right to privacy,
most especially the right to informational
privacy of individuals[2], which is defined as
“the right to control the collection, maintenance,
use, and dissemination of data about
oneself[3].”
 
Cagatin, Gonzaga, Puertos
As defined in Section 1 of the Habeas Data Rule,
the writ of habeas data now stands as “a remedy
available to any person whose right to privacy
in life, liberty or security is violated or
threatened by an unlawful act or omission of a
public official or employee, or of a private
individual or entity engaged in the gathering,
collecting or storing of data or information
regarding the person, family, home, and
correspondence of the aggrieved party.” 
 
Thus, in order to support a petition for the
issuance of such writ, Section 6 of the Habeas
Data Rule essentially requires that the petition
sufficiently alleges, among others, “[t]he
manner the right to privacy is violated or
threatened and how it affects the right to life,
liberty or security of the aggrieved party.” In
other words, the petition must adequately show
that there exists a nexus between the right to
privacy on the one hand, and the right to life,
liberty or security on the other[4]. Corollarily,
the allegations in the petition must be supported
by substantial evidence showing an actual or
threatened violation of the right to privacy in
life, liberty or security of the victim[5]. In this
relation, it bears pointing out that the writ of
habeas data will not issue to protect purely
property or commercial concerns nor when the
grounds invoked in support of the petitions
therefore are vague and doubtful[6].
 
In this case, the Court finds that Ilagan was not
able to sufficiently allege that his right to
privacy in life, liberty or security was or would
be violated through the supposed reproduction
and threatened dissemination of the subject sex
video. While Ilagan purports a privacy interest
in the suppression of this video – which he fears
would somehow find its way to Quiapo or be
uploaded in the internet for public consumption
– he failed to explain the connection between
such interest and any violation of his right to
life, liberty or security. Indeed, courts cannot
speculate or contrive versions of possible
transgressions.
 
Mere sex video without any other allegation is
not sufficient to prove that your right to life,
liberty, and security in relation to your right to
privacy is violated.
GENERAL BAUTISTA v. ATTY. DANNUG-
SALUCON. 
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FINAL EXAM COVERAGE
FACTS: Respondent, Atty. Maria Dannug-
Salucon was a co-founder of the National Union
of People’s Lawyers (NUPL) as well as a partner
of her own law firm that undertook the defense
of political detainees, including human rights
defenders, some of which were alleged
members of the Communist Party of the
Philippines (CCP) or the New People’s Army
(NPA) who had been harassed with allegedly
trumped up charges by the PH govt.
On March 24, 2014, respondent was made aware
of potential security risks regarding her work by
her paralegal during a lunch meeting with the
relatives of a detained political prisoner client
who was accused of murder in the RTC of
Lagawe, Ifugao (lagawe case). Her paralegal
was later gunned down that same evening.
Respondent had asked him earlier that day to
identify the names, ranks and addresses of the
handler/s of the prosecution witness in the
Lagawe case.
That same evening, she was informed by a client
who was working as a civilian asset for the PNP
Intelligence Section that the PNP had issued a
directive to PNP Burgos, Isabela (her
hometown) to conduct a background
investigation on her and to confirm whether she
was a “Red Lawyer”. She was also informed
that she was being secretly followed by agents
of the Intelligence Service of the AFP (ISAFP),
and that people that looked like military/police
had been asking people in her office about her
and her routine.
On March 31, she received another call from her
client-informant which confirmed that she was
the subject of surveillance, and was in fact being
tailed by ISAFP operatives after her client-
informant was interrogated by three ISAFP
operatives with regards to w/n she was
acquainted with known NPA members and why
she was always the lawyer of several suspected
communist terrorists.
Upon further investigation she discovered
additional things that supported this claim: (see
notes for full section) but tl;dr, (1) She was tailed
by AFP & PNP Operatives (2) Shady looking
PNP/AFP personnel went to her home and
office several times, etc. as reported to her by
her driver and co-workers
Cagatin, Gonzaga, Puertos
As a response, she filed with the CA the present
petition for the writs of amparo & habeas data
alleging that the above acts, in conjunction with
the previous history of human rights
lawers/defenders/political activists were killed
or abducted after being labeled as
“communists” following this pattern of
surveillance may be interpreted as preliminary
acts leading to her abduction/killing. She
further alleged that while the purported
military/police personnel were still
unidentified, they were members of the ISAFP,
AFP & PNP who acted under the orders of their
superiors, hence impleading the respondents.
CA ruled in her favor, finding that she has
proven by substantial evidence that respondents
(petitioners here) are responsible and
accountable for the violation of respondent’s
rights to life, liberty and security on the basis of
the unjustified surveillance operations/acts of
harassments and intimidation committed
against her as well as lack of fair and effective
official investigation with regards to her
allegations. Granting her petition for the writs of
amparo and habeas data
Directing respondents, in their capacities as
Acting Regional Director of the Police Regional
Office 2, Command General of the Philippine
Army; Commanding Officer of the ISAFP and
Chief of Staff of the AFP to protect the life
liberty and security of respondent (Atty.
Dannug-Salucon) as well as to conduct further
investigation into her allegations.
After CA denied motion for reconsideration,
current petition for certiorari was filed. 
ISSUE No. 1: W/N the evidence adduced by the
respondent sufficient to justify the issuance of
the writ of amparo?
YES. Following the doctrine of Razon the SC
held that a writ of amparo may be issued if the
person who filed it has sufficiently shown based
on the totality of evidence in relation to the
information available to them at the time that:
(1) There is a real and probable threat to their
right to life, liberty and security (2) the presence
of a state or private action produces the threat
Here, her paralegal was gunned down after the
former informed her of potential surveillance.
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ISSUE No. 2: W/N the CA had sufficient basis
to grant the writ of habeas data?
YES. Habeas Data is a remedy for “any person
whose right to privacy in life, liberty or security
is violated or threatened by an unlawful act or
omission of a public official or employee, or of a
private individual or entity engaged in the
gathering, collecting or storing of data or
information regarding the person, family, home
and correspondence of the aggrieved party.”
It is an independent and summary remedy that
seeks to protect a person’s right to control of
information regarding oneself, particularly in
instances in which such information is being
collected through unlawful means in order to
achieve unlawful ends.
Here, factually & procedurally warranted.
Civilian asset informed her of the surveillance,
and she personally observed the surveillance.
The directive was factually and procedurally
warranted. There was no question that the
civilian asset of the PNP Intelligence Section
relayed to the respondent that there was a
standing order issued by the PNP Isabela
Provincial Police Office to the PNP office in
Burgos, Isabela to conduct a background
investigation in order to confirm if she was a
"Red Lawyer." She was also under actual
surveillance by different individuals who
looked like they were members of the military
or police establishments. The objective of these
moves taken against her was unquestionably to
establish a pattern of her movements and
activities, as well as to obtain the records of the
cases she was handling for her various clients.
These and other established circumstances fully
warranted within the context of the Rule on the
Writ of Habeas Data the directive of the CA for
the handing over and destruction of all
information and data on her in order to protect
her privacy and security.
Just differentiate this case with the other cases
especially in the propriety of the issuance of the
habeas data.
051821 – Spec Pro Discussion
Cagatin, Gonzaga, Puertos
A.M. No. 03-04-04-SC             April 22, 2003
RE: PROPOSED RULE ON CUSTODY OF
MINORS AND WRIT OF HABEAS CORPUS
IN RELATION TO CUSTODY OF MINORS
SECTION 1. Applicability. - This rule shall
apply to petitions for custody of minors and
writs of habeas corpus in relation thereto.
The Rules of Court shall apply suppletorily.
Section 2. Petition for custody of minors; who
may file.- A verified petition for the rightful
custody of a minor may be filed by any person
claiming such right. The party against whom it
may be filed shall be designated as the
respondent.
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 minor may be
found.
Q: If the petitioner is residing in Cotabato and
the child is residing in Cebu, where do we file?
A: The Court may just order to transfer the
venue for the purpose of convenience – forum
conveniens.
Section 4. Contents of petition. - The verified
petition shall allege the following:
(a) The personal circumstances of the
petitioner and of the respondent;
(b) The name, age and present
whereabouts of the minor and his or her
relationship to the petitioner and the
respondent;
(c) The material operative facts
constituting deprivation of custody; and
(d) Such other matters which are
relevant to the custody of the minor.
The verified petition shall be accompanied by a
certificate against forum shopping, which the
petitioner must sign personally.
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Section 5. Summons; personal service on
respondent. - If the court is satisfied that the
petition is sufficient in form and substance, it
shall direct the clerk of court to issue summons,
which shall be served together with a copy of
the petition personally on the respondent.
Issuance – if the court is satisfied that the
petition is sufficient in form and substance, it
shall direct the clerk of court to issue summons.
Personal service – shall be observed together
with a copy of the petition on the respondent.
Section 6. Motion to Dismiss. - A motion to
dismiss the petition is not allowed except on the
ground of lack of jurisdiction over the subject
matter or over the parties. Any other ground
that might warrant the dismissal of the petition
may be raised as an affirmative defense in the
answer.
For the rule on custody of minors, motion to
dismiss is not allowed. If it is a petition more or
less ang response dito is comment. Sa kanilang
comment or answer motion to dismiss is not
allowed except if the same is grounded with
lack of jurisdiction over the subject matter or
over the parties.
Section 7. Verified Answer. - The respondent
shall file an answer to the petition, personally
verified by him, within five days after service of
summons and a copy of the petition.
Section 8. Case study; duty of social worker. -
Upon the filing of the verified answer or the
expiration of the period to file it, the court may
order a social worker to make a case study of
the minor and the parties and to submit a report
and recommendation to the court at least three
days before the scheduled pre-trial.
Section 9. Notice of mandatory pre-trial. -
Within fifteen days after the filing of the answer
or the expiration of the period to file answer, the
court shall issue an order: (1) fixing a date for
the pre-trial conference; (2) directing the parties
to file and serve their respective pre-trial briefs
in such manner as shall ensure receipt thereof
by the adverse party at least three days before
the date of pre-trial; and (3) requiring the
respondent to present the minor before the
court.
Cagatin, Gonzaga, Puertos
The notice of its order shall be served separately
on both the parties and their respective
counsels. The pre-trial is mandatory.
What is the effect if petitioner fails to appear at
the pre-trial?
Section 11. Effect of failure to appear at the pre-
trial.-
(a) If the petitioner fails to appear personally at
the pre-trial, the case shall be dismissed, unless
his counsel or a duly authorized representative
appears in court and proves a valid excuse for
the non-appearance of the petitioner.
(b) If the respondent has filed his answer but
fails to appear at the pre-trial, the petitioner
shall be allowed to present his evidence ex
parte. The court shall then render judgment on
the basis of the pleadings and the evidence thus
presented.
So during the pre-trial the parties may…
Section 12. What may be done at pre-trial. - At
the pre-trial, the parties may agree on the
custody of the minor. If the parties fail to agree,
the court may refer the matter to a mediator
who shall have five days to effect an agreement
between the parties. If the issue is not settled
through mediation, the court shall proceed with
the pre-trial conference, on which occasion it
shall consider such other matters as may aid in
the prompt disposition of the petition.
We have also the grant of custody.
Section 13. Provisional order awarding
custody. - After an answer has been filed or
after expiration of the period to file it, the court
may issue a provisional order awarding custody
of the minor. As far as practicable, the following
order of preference shall be observed in the
award of custody:
(a) Both parents jointly;
(b) Either parent, taking into account all
relevant considerations, especially the
choice of the minor over seven years of
age and of sufficient discernment, unless
the parent chosen is unfit;
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FINAL EXAM COVERAGE
(c) The grandparent, or if there are
several grandparents, the grandparent
chosen by the minor over seven years of
age and of sufficient discernment, unless
the grandparent chosen is unfit or
disqualified;
(d) The eldest brother or sister over
twenty-one years of age, unless he or
she is unfit or disqualified;
(e) The actual custodian of the minor
over twenty-one years of age, unless the
former is unfit or disqualified; or
(f) Any other person or institution the
court may deem suitable to provide
proper care and guidance for the minor.
What is the factor here in awarding the custody
of the minor whether it is temporary or
permanent? The main factor to consider in the
determination of custody is the best interest of
the minor. It refers to the totality of the
circumstances and conditions as are most
congenial to the survival, protection, and
feelings of security of the minor encouraging to
his physical, psychological, and emotional
development. It also means the least detrimental
available alternative for safeguarding the
growth and development of the minor.
We also have other factors to consider in the
determination of custody:
Section 14. Factors to consider in determining
custody. - In awarding custody, the court shall
consider the best interests of the minor and shall
give paramount consideration to his material
and moral welfare. The best interests of the
minor refer to the totality of the circumstances
and conditions as are most congenial to the
survival, protection, and feelings of security of
the minor encouraging to his physical,
psychological and emotional development. It
also means the least detrimental available
alternative for safeguarding the growth and
development of the minor.
The court shall also consider the following:
(a) Any extrajudicial agreement which
the parties may have bound themselves
Cagatin, Gonzaga, Puertos
to comply with respecting the rights of
the minor to maintain direct contact
with the non custodial parent on a
regular basis, except when there is an
existing threat or danger of physical,
mental, sexual or emotional violence
which endangers the safety and best
interests of the minor;
(b) The desire and ability of one parent
to foster an open and loving relationship
between the minor and the other parent;
(c) The health, safety and welfare of the
minor;
(d) Any history of child or spousal abuse
by the person seeking custody or who
has had any filial relationship with the
minor, including anyone courting the
parent;
(e) The nature and frequency of contact
with both parents;
(f) Habitual use of alcohol, dangerous
drugs or regulated substances;
(g) Marital misconduct;
(h) The most suitable physical,
emotional, spiritual, psychological and
educational environment for the holistic
development and growth of the minor;
and
(i) The preference of the minor over
seven years of age and of sufficient
discernment, unless the parent chosen is
unfit.
Di ba there is an award of temporary or
permanent custody to a parent, how about the
non-custodial parent?
Section 15. Temporary visitation rights. - The
court shall provide in its order awarding
provisional custody appropriate visitation rights
to the non-custodial parent or parents, unless
the court finds said parent or parents unfit or
disqualified.
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The temporary custodian shall give the court
and non custodial parent or parents at least five
days' notice of any plan to change the residence
of the minor or take him out of his residence for
more than three days provided it does not
prejudice the visitation rights of the non-
custodial parent or parents.
What if the custodial parent wants to bring the
minor abroad?
Section 16. Hold Departure Order. - The minor
child subject of the petition shall not be brought
out of the country without prior order from the
court while the petition is pending.
The court, motu proprio or upon application
under oath, may issue ex parte a hold departure
order, addressed to the Bureau of Immigration
and Deportation, directing it not to allow the
departure of the minor from the Philippines
without the permission of the court.
The Family Court issuing the hold departure
order shall furnish the Department of Foreign
Affairs and the Bureau of Immigration and
Deportation of the Department of Justice a copy
of the hold departure order within twenty-four
hours from its issuance and through the fastest
available means of transmittal.
The hold departure order shall contain the
following information:
(a) The complete name (including the
middle name), the date and place of
birth, the nationality and the place of
last residence of the person against
whom a hold departure order has been
issued or whose departure from the
country has been enjoined;
(b) The complete title and docket
number of the case in which the hold
departure order was issued;
(c) The specific nature of the case;
(d) The date of the hold departure order;
and
(e) A recent photograph, if available, of
the party against whom a hold
Cagatin, Gonzaga, Puertos
departure order has been issued or
whose departure from the country has
been enjoined.
The court may recall the hold departure order
motu proprio, or upon verified motion of any of
the parties after summary hearing, subject to
such terms and conditions as may be necessary
for the best interests of the minor.
We also have protection order.
Section 17. Protection Order. - The court may
issue a Protection Order requiring any person:
(a) To stay away from the home, school,
business, or place of employment of the
minor, other parent or any other party,
or from any other specific place
designated by the court;
(b) To cease and desist from harassing,
intimidating, or threatening such minor
or the other parent or any person to
whom custody of the minor is awarded;
(c) To refrain from acts of commission or
omission that create an unreasonable
risk to the health, safety, or welfare of
the minor;
(d) To permit a parent, or a party
entitled to visitation by a court order or
a separation agreement, to visit the
minor at stated periods;
(e) To permit a designated party to enter
the residence during a specified period
of time in order to take personal
belongings not contested in a
proceeding pending with the Family
Court; and
(f) To comply with such other orders as
are necessary for the protection of the
minor.
What if both parents are unfit to take care and
custody of the minor?
Section 18. Judgment. - After trial, the court
shall render judgment awarding the custody of
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the minor to the proper party considering the
best interests of the minor.
If it appears that both parties are unfit to have
the care and custody of the minor, the court may
designate either the paternal or maternal
grandparent of the minor, or his oldest brother
or sister, or any reputable person to take charge
of such minor, or commit him to any suitable
home for children.
In its judgment, the court may order either or
both parents to give an amount necessary for
the support, maintenance and education of the
minor, irrespective of who may be its custodian.
In determining the amount of support, the court
may consider the following factors: (1) the
financial resources of the custodial and non-
custodial parent and those of the minor; (2) the
physical and emotional health, special needs,
and aptitude of the minor; (3) the standard of
living the minor has been accustomed to; and (4)
the non-monetary contributions that the parents
would make toward the care and well-being of
the minor.
The court may also issue any order that is just
and reasonable permitting the parent who is
deprived of the care and custody of the minor to
visit or have temporary custody.
3 kinds of custody in the rule
1. Temporary custody
2. Temporary visitation rights – granted to
non-custodial parent
3. Permanent custody
Ex. If the father is irresponsible and the mother
files a petition for the custody of minor, so upon
judgment the mother was awarded custody.
Sabi ng father, okay lang, at least wala na akong
susuportahan, sa iyo naman anak natin.
Hanggang doon na lang ba? The father may still
be held liable for support. The Court must
require him to give support.
Section 19. Appeal. - No appeal from the
decision shall be allowed unless the appellant
has filed a motion for reconsideration or new
trial within fifteen days from notice of
judgment.
Cagatin, Gonzaga, Puertos
An aggrieved party may appeal from the
decision by filing a Notice of Appeal within
fifteen days from notice of the denial of the
motion for reconsideration or new trial and
serving a copy thereof on the adverse parties.
Is appeal allowed?
GR: No.
Exception: aggrieved party has filed a motion
for reconsideration or motion for new trial
within 15 days from notice of judgment.
Mode of appeal – notice of appeal
Period to file the notice of appeal – 15 days from
notice of denial of MR or MNT
Ex. If I am the non-custodial parent, for me to
appeal, I must file a MR or MNT. If the same is
denied, I may now file a notice of appeal, 15
days from notice of denial.
By virtue of this we also have petition for writ of
habeas corpus.
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 be enforceable
within its judicial region to which the Family
Court belongs.
However, the petition may be filed with the
regular court in the absence of the presiding
judge of the Family Court, provided, however,
that the regular court shall refer the case to the
Family Court as soon as its presiding judge
returns to duty.
The petition may also be filed with the
appropriate regular courts in places where there
are no Family Courts.
The writ issued by the Family Court or the
regular court shall be enforceable in the judicial
region where they belong.
The petition may likewise be filed with the
Supreme Court, Court of Appeals, or with any
of its members and, if so granted, the writ shall
be enforceable anywhere in the Philippines. The
writ may be made returnable to a Family Court
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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.
Remember, saan nga natin ififile yung petition
for custody of minors? Family court where the
petitioner or the minor resides; pero yung
petition for issuance of habeas corpus may be
filed not just in the family court where the
minor resides it may also be filed with the Court
of Appeals or Supreme Court. So anong
gagawin dito ng Supreme Court, it may grant or
deny the petition for the issuance of the writ of
habeas corpus usually they remand the case to
the RTC or family court that will be the best
venue for the said petition.
Change of Name
ALAMIS v. CA
FACTS: Abdulhamid Ballaho was born and
registered as Anacleto Ballaho Alanis III. He is a
legitimate child of Mario Alanis and Jarmila
Ballaho. However, he never used his registered
name. In fact, in all his records growing up, he
had been using the name Abdulhamid Ballaho.
He filed a petition in court seeking to change his
name and surname so that he may be officially
known as Abdulhamid Ballaho.
The Regional Trial Court denied his petition.
The Court of Appeals affirmed the RTC. It was
ruled that he cannot change his first name
because doing so will only create more
confusion. He cannot change his last name
because according to Article 174 of the Family
Code, the use of surnames must be in
accordance with the Civil Code. Article 364 of
the Civil Code provides that legitimate and
legitimated children shall principally use the
surname of the father. According to the trial
court, Abdulhamid’s remedy was to correct his
other records to conform with his birth
certificate.
Cagatin, Gonzaga, Puertos
ISSUE: Whether or not a legitimate child may
use as surname the surname of his or her
mother.
HELD: Yes. Indeed, the provision states that
legitimate children shall “principally” use the
surname of the father, but “principally” does
not mean “exclusively.” This gives ample room
to incorporate into Article 364 the State policy of
ensuring the fundamental equality of women
and men before the law, and no discernible
reason to ignore it.
Section 14, Art. II of the 1987 Constitution
provides: The State recognizes the role of
women in nation-building, and shall ensure the
fundamental equality before the law of women
and men.
Article II, Section 14 implies the State’s positive
duty to actively dismantle the existing
patriarchy by addressing the culture that
supports it. Courts, like all other government
departments and agencies, must ensure the
fundamental equality of women and men before
the law. Accordingly, where the text of a law
allows for an interpretation that treats women
and men more equally, that is the correct
interpretation.
Anent Abdulhamid’s prayer to change his
registered surname – it is granted. One of the
grounds to allow a change in registered name is
if it avoids confusion. Certainly, to force
Abdulhamid to use his registered name despite
the fact that he never used it before will only
create confusion.
NOTES:
Arguments of the petitioner in the Supreme
Court
 Petitioner has been using the name
Abdullhamid Ballaho in all his records
and transactions
 He is also known to and called by his
family and friends by such name.
 He has never used the name Anacleto
Ballaho Allanis III even once in his life.
To have the petitioner suddenly use the
name Anacleto Ballaho Alanis III would
cause undue embarrassment to the
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petitioner since he has never been Grounds to warrant change of name:

known by such name.
a) When the name is ridiculous,
 Petitioner has shown not only some
dishonorable, or extremely difficult to
proper or compelling reason but also
write or pronounce;
that he will be prejudiced by the use of
b) When the change results as a legal
his true and official name.
consequence of legitimation or adoption;
 A mere correction of his private and
c) When the change will avoid confusion;
public records to conform to the name
d) When one has continuously used and
stated in his Certificate of Live Birth
been known since childhood by a
would create more confusion because
Filipino name and was unaware of alien
petitioner has been using the name
parentage;
Abdullhamid Ballaho since enrollment
e) When the change is based on a sincere
in grade school until finishing his law
desire to adopt a Filipino name to erase
school degree.
signs of former alienage, all in good
The petition to change name should be granted: faith and without prejudice to anybody;
and
 The SC held that indeed “confusion
f) When the surname causes
could arise” is evident.
embarrassment and there is no showing
 The RTC even acknowledged that
that the desired change of name was for
confusion could exist here but found
a fraudulent purpose or that the change
that granting his petition would create
of name would prejudice public interest.
more confusion.

Rule 103 Rule 108 R.A. No. 9048 R.A. No. 10172
Name of Law Change of name Cancellation/Correction Clerical Error Acts Amendment to
of Entries in the Civil R.A. No. 9048
Registry
Subject Matter Substantial Substantial and clerical Typographical or Typographical or
corrections (in corrections (change or clerical errors clerical
the change of corrections in the civil only (change of corrections (day
name) entries) name, nickname, and month of
and civil entries) birth or sex of a
person in civil
entries)
Who may file A person desiring Any person interested Any person Any person
to change his in any act, event, order having direct and having direct and
name (Sec. 1) or decree concerning personal interest personal interest
the civil status of in the correction in the correction
persons which has of a clerical or of a clerical or
been recorded in the typographical typographical
civil register error in an entry error in an entry
and/or change of and/or change of
first name or first name or
nickname (Sec. 3) nickname (same
in RA 9048)

Cagatin, Gonzaga, Puertos

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Venue RTC of the RTC f the city or 1. Local civil 1. Local civil
province wherein province where the registry office registry office
the petitioner corresponding civil of the city or of the city or
resides for 3 registry is located municipality municipality
years prior to the where the where the
filing; or in the record being record being
city of Manila (to sought to be sought to be
the Juvenile and corrected or corrected or
Domestic changed is changed is
Relations Court) kept; kept;
2. Local civil 2. Local civil
registry of the registry of
place where the place
the where the
interested interested
party is party is
presently presently
residing or residing or
domiciled; or domiciled; or
3. Philippine 3. Philippine
Consulates consulates
Kind of Judicial Judicial proceeding, Administrative Administrative
proceeding proceeding which is either proceeding proceeding
(always summary (merely
adversarial) clerical) or adversarial
(substantial)
Form Verified petition Verified petition Affidavit Affidavit
Notice and At least once a At least once a week At least once a At least once a
publication week for 3 for 3 consecutive week for 2 week for 2
consecutive weeks in a newspaper consecutive consecutive
weeks in a of general circulation weeks in a weeks in a
newspaper of newspaper of newspaper of
general general general
circulation circulation circulation
(publish the (publish the (publish the
notice of hearing) whole affidavit) whole affidavit)
Where to appeal Court of Appeals Court of Appeals Civil Registrar Civil Registrar
General General
Definition of terms  A clerical error is one which is visible to
the eyes or obvious to the
Clerical or typographical error
understanding; an error made by a clerk
 Refers to an obvious mistake committed or a transcriber; a mistake in copying or
in clerical work, either in writing, writing, or a harmless change such as a
copying, transcribing, or typing an entry correction of name that is clearly
in the civil register that is harmless and misspelled or of a misstatement of the
innocuous, such as a misspelled name occupation of the parent.
or misspelled place of birth and the like,
Substantial/Contentious/Controversial
and can be corrected or changed only by
Alterations
reference to other existing record or
records

Cagatin, Gonzaga, Puertos

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 Include those which may affect the
citizenship, legitimacy of paternity or
filiation, or legitimacy of marriage
 May be allowed only in adversarial
proceedings, in which all interested
parties are impleaded and due process is
properly observed
To correct
 To make or set a right; to remove the
faults or error from
To change
 To replace something with something
else of the same kind or with something
that serves as a substitute
Rule 103 – change of name
 In rem proceeding
 The purpose is to change the name
recorded in the civil register
 Before the passage of R.A. No. 9048,
changing one’s name in the civil registry
can only be allowed if there is judicial
authority, to wit:
“Civil Code. Art. 376 – No
person can change his name or
surname without judicial
authority.”
Rule 103 v. R.A. No. 9048
 R.A. No. 9048 relates to the
administrative proceeding for the
change of someone’s first name
 In order to substantially change one’s
first name, a petition under Rule 103
must be filed.
 Correction of one’s surname can only be
done under Rule 108.
Question: if from NHASSIE JOHN GONZAGA
i-change to MARIA TERESA GONZAGA, unsa
ang remedy? Rule 103 because it is a substantial
change of one’s name.
NHASSIE JOHN GONZAGA  NHASSIE
JOHN AYALA = Rule 108 if surname
Requirement for change of name under Rule 103
- A change of name is a privilege and not
a matter of right, such that a proper and
Cagatin, Gonzaga, Puertos
reasonable cause must exist before it
may be authorized.
PAUL VINCENT REYES  PAUL BINSENT
REYES = RA 9048
PAUL VINCENT REYES  JESETTE REYES =
substantial change of name, Rule 103
PAUL VINCENT REYES  LORD
VOLDEMORT REYES = substantial change of
name, Rule 103
Rule 108 – Cancellation or Correction of Entries
in the Civil Registry
Rule 103 refers to change of name; Rule 108
refers to other changes whether substantial or
clerical
Section 2. Entries subject to cancellation or
correction. — Upon good and valid grounds,
the following entries in the civil register may be
cancelled or corrected: (a) births [subject to RA
No. 9048, as amended]: (b) marriage; (c) deaths;
(d) legal separations; (e) judgments of
annulments of marriage; (f) judgments declaring
marriages void from the beginning; (g)
legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j)
naturalization; (k) election, loss or recovery of
citizenship; (l) civil interdiction; (m) judicial
determination of filiation; (n) voluntary
emancipation of a minor; and (o) changes of
name [subject to RA No. 9048, as amended]
However, take note that births can now be
clerical or typographical error may now be
subject to RA 9048; however, take note na
month and day lang so kung year dili puwede
that’s why the remedy is Rule 108.
Clerical – summary judicial proceeding;
substantial – adversarial judicial proceeding (the
Civil Registry and all interested parties must be
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notified; summons must be served upon them;
publication)
Rule 108 covers both:
- Adversarial/adversary – if the
correction pertains to substantial errors
- Summary – if the correction pertains to
clerical (typographical) mistakes:
EXPN: Clerical/typographical
errors pertaining to the
following can be corrected
through an administrative
proceeding by filing a petition
with the Local Civil Registry
(R.A. No. 9048, as amended by
R.A. No. 10172):
 First name/Nickname
 Day and/or Month of
Birth
 Sex of a person (on the
ground of clerical/typo
error only)
SILVERIO v. REPUBLIC
FACTS: Silverio field a petition for the change of
his first name “Rommel Jacinto” to “Mely” and
his sex from male to female in his birth
certificate in the RTC of Manila, for reason of his
sex reassignment. He alleged that he is a male
transsexual, he is anatomically male but thinks
and acts like a female. The RTC ruled in his
favor, saying that it is in consonance with the
principle of justice and equality.
The Republic, through the OSG, filed a petition
for certiorari in the CA, alleging that there is no
law allowing change of name by reason of sex
alteration. Petitioner filed a reconsideration but
was denied. Hence, this petition.
ISSUE: Whether or not a change in the “name”
and “sex” entries in birth certificates are
allowed by reason of sex reassignment.
RULING: No. A change of name is a privilege
and not a right. It may be allowed in cases
where the name is ridiculous, tainted with
dishonor, or difficult to pronounce or write; a
nickname is habitually used; or if the change
will avoid confusion. The petitioner’s basis of
Cagatin, Gonzaga, Puertos
the change of his name is that he intends his
first name compatible with the sex he thought
he transformed himself into thru surgery. The
Court says that his true name does not prejudice
him at all, and no law allows the change of entry
in the birth certificate as to sex on the ground of
sex reassignment. The petition was denied.
REPUBLIC v. CAGANDAHAN
FACTS: Cagandahan filed a Petition for
Correction of Entries in Birth Certificate before
the RTC. She alleged that she was born on
January 13, 1981 and was registered as a female
in the Certificate of Live Birth but while
growing up, she developed secondary male
characteristics and was diagnosed to have
Congenital Adrenal Hyperplasia (CAH) – a
condition where persons afflicted possess both
male and female characteristics. She alleged that
for all interests and appearances as well as in
mind and emotion, she has become a male
person. Thus, she prayed that her birth
certificate be corrected such that her gender be
changed from female to male and her first name
be changed from Jennifer to Jeff.
Respondent testified and presented the
testimony of Dr. Michael Sionzon of the
Department of Psychiatry, University of the
Philippines-Philippine General Hospital. Dr.
Sionzon issued a medical certificate stating that
respondent’s condition is known as CAH. He
testified that this condition is very rare, that
respondent’s uterus is not fully developed
because of lack of female hormones, and that
she has no monthly period. He further testified
that respondent’s condition is permanent and
recommended the change of gender because
respondent has made up her mind, adjusted to
her chosen role as male, and the gender change
would be advantageous to her.
The RTC granted respondent’s petition.
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Hence, this petition by the Office of the Solicitor
General (OSG) seeking a reversal of the
abovementioned ruling. The OSG contends,
among others, that Rule 108 does not allow
change of sex or gender in the birth certificate
and respondent’s claimed medical condition
known as CAH does not make her a male.
ISSUE: Whether or not the RTC erred in
granting the petition on the ground of her
medical condition.
RULING: No.
The determination of a person’s sex appearing
in his birth certificate is a legal issue and the
court must look to the statutes. Rule 108 now
applies only to substantial changes and
corrections in entries in the civil register.
Under Rep. Act No. 9048, a correction in the
civil registry involving the change of sex is not a
mere clerical or typographical error. It is a
substantial change for which the applicable
procedure is Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil
Code and correctable under Rule 108 of the
Rules of Court are those provided in Articles
407 and 408 of the Civil Code. The acts, events
or factual errors contemplated under Article 407
of the Civil Code include even those that occur
after birth.
Respondent undisputedly has CAH. It is one of
the many conditions that involve intersex
anatomy. An organism with intersex may have
biological characteristics of both male and
female sexes.
In deciding this case, we consider the
compassionate calls for recognition of the
various degrees of intersex as variations, which
should not be subject to outright denial. The
current state of Philippine statutes apparently
compels that a person be classified either as a
male or as a female, but this Court is not
controlled by mere appearances when nature
itself fundamentally negates such rigid
classification.
In the instant case, if we determine respondent
to be a female, then there is no basis for a
change in the birth certificate entry for gender.
Cagatin, Gonzaga, Puertos
But if we determine, based on medical
testimony and scientific development showing
the respondent to be other than female, then a
change in the subject’s birth certificate entry is
in order.
Ultimately, we are of the view that where the
person is biologically or naturally intersex the
determining factor in his gender classification
would be what the individual, like respondent,
having reached the age of majority, with good
reason thinks of his/her sex. Respondent here
thinks of himself as a male and considering that
his body produces high levels of male hormones
(androgen) there is preponderant biological
support for considering him as being male.
Sexual development in cases of intersex persons
makes the gender classification at birth
inconclusive. It is at maturity that the gender of
such persons, like respondent, is fixed.
Respondent here has simply let nature take its
course and has not taken unnatural steps to
arrest or interfere with what he was born with.
And accordingly, he has already ordered his life
to that of a male. Respondent could have
undergone treatment and taken steps, like
taking lifelong medication, to force his body into
the categorical mold of a female but he did not.
He chose not to do so. Nature has instead taken
its due course in respondent’s development to
reveal more fully his male characteristics.
In the absence of a law on the matter, the Court
will not dictate on respondent concerning a
matter so innately private as one’s sexuality and
lifestyle preferences, much less on whether or
not to undergo medical treatment to reverse the
male tendency due to CAH. To him belongs the
human right to the pursuit of happiness and of
health. Thus, to him should belong the
primordial choice of what courses of action to
take along the path of his sexual development
and maturation. In the absence of evidence that
respondent is an “incompetent” and in the
absence of evidence to show that classifying
respondent as a male will harm other members
of society who are equally entitled to protection
under the law, the Court affirms as valid and
justified the respondent’s position and his
personal judgment of being a male.
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We respect respondent’s congenital condition
and his mature decision to be a male.
As for respondent’s change of name under Rule
103, this Court has held that a change of name is
not a matter of right but of judicial discretion, to
be exercised in the light of the reasons adduced
and the consequences that will follow. The trial
court’s grant of respondent’s change of name
from Jennifer to Jeff implies a change of a
feminine name to a masculine name.
Considering the consequence that respondent’s
change of name merely recognizes his preferred
gender, we find merit in respondent’s change of
name. Such a change will conform with the
change of the entry in his birth certificate from
female to male.
The Republic’s petition is denied.
PEOPLE v. SALI
Facts: Lorena Omapas Sali filed a Verified
Petition, dated November 26, 2008, for
Correction of Entry under Rule 108 of the Rules
of Court before the RTC with the following
material averments:
- Petitioner is a Filipino, of legal age,
single and a resident [of] 941 D. Veloso
St.[,] Baybay, Leyte;
- The respondent is located in Baybay
City, Leyte and within the jurisdiction of
this Honorable Court where it can be
served with summons and other
processes of this Honorable Court;
- All parties herein have the capacity to
sue and be sued;
- Petitioner is the daughter of Spouses
Vedasto A. Omapas and Almarina A.
Albay who was born on April 24, 1968 in
Baybay, Leyte.
- Unfortunately, in recording the facts of
her birth, the personnel of the Local
Civil Registrar of Baybay, Leyte thru
inadvertence and mistake erroneously
entered in the records the following: the
first name of the petitioner as
“DOROTHY” instead of “LORENA”
and, the date of birth of the petitioner as
Cagatin, Gonzaga, Puertos
“June 24, 1968” instead of “April 24,
1968.”
- The petitioner has been using the name
“Lorena A. Omapas[“] and her date of
birth as “April 24, 1968” for as long as
she since she could remember and is
known to the community in general as
such;
- To sustain petitioner’s claim that the
entries in her Certificate of Live Birth
pertaining to her first name and date of
birth should be corrected so that it will
now read as “LORENA A. OMAPAS”
and “April 24, 1968” respectively,; and
- This petition is intended neither for the
petitioner to escape criminal and/or
civil liability, nor affect the hereditary
succession of any person whomsoever
but solely for the purpose of setting the
records of herein petitioner straight.
On February 23, 2010, the trial court issued the
assailed Decision in favor of Sali. On March 24,
2010, the Republic, through the Office of the
Solicitor General (OSG), appealed the RTC
Decision for lack of jurisdiction on the part of
the court a quo because the title of the petition
and the order setting the petition for hearing did
not contain Sali’s aliases.
The CA denied the appeal, ruling that: (1) the
records are bereft of any indication that Sali is
known by a name other than “Lorena,” hence, it
would be absurd to compel her to indicate any
other alias that she does not have; (2) Sali not
only complied with the mandatory
requirements for an appropriate adversarial
proceeding under Rule 108 of the Rules but also
gave the Republic an opportunity to timely
contest the purported defective petition; and (3)
the change in the first name of Sali will certainly
avoid further confusion as to her identity and
there is no showing that it was sought for a
fraudulent purpose or that it would prejudice
public interest.
Issues:  Whether or not the Petition of Lorena
Omapas Sali is for a change of name as
contemplated under Rule 103 of the Rules and
not for correction of entries under Rule 108.
Whether or not the Regional Trial Ciurt has
jurisdiction over the petition.
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Ruling: No, the Petition of Lorena Omapas Sali

is not for a change of name as contemplated
On the other hand, anent Sali’s petition to
under Rule 103 of the Rules but for correction of
correct her birth date from “June 24, 1968” to
entries under Rule 108.What she seeks is the
“April 24, 1968,” R.A. No. 9048 is inapplicable. It
correction of clerical errors which were
was only on August 15, 2012 that R.A. No. 10172
committed in the recording of her name and
was signed into law amending R.A. No. 9048.
birth date. The Court has held that not all
As modified, Section 1 now includes the day
alterations allowed in one’s name are confined
and month in the date of birth and sex of a
under Rule 103 and that corrections for clerical
person.
errors may be set right under Rule 108. The
evidence presented by Sali shows that, since Hence, the petition is PARTIALLY GRANTED.
birth, she has been using the name “Lorena.” The February 11, 2013 Decision of the Court of
Thus, it is apparent that she never had any Appeals, which affirmed in toto the February
intention to change her name. 23, 2010 Decision of the Regional Trial Court,
Branch 14, Baybay City, Leyte, is AFFIRMED
However, at the time Sali’s petition was filed,
WITH MODIFICATION. The Petition for
R.A. No. 9048 was already in effect. Section 1 of
Correction of entry in the certificate of live birth
the law states: SECTION 1. Authority to Correct
of dorothy a. omapas with respect to her first
Clerical or Typographical Error and Change of
name is dismissed without prejudice to its filing
First Name or Nickname. – No entry in a civil
with the local civil registrar concerned.
register shall be changed or corrected without a
judicial order, except for clerical or
typographical errors and change of first name or
nickname which can be corrected or changed by
the concerned city or municipal civil registrar or
consul general in accordance with the
provisions of this Act and its implementing
rules and regulations.

The petition for change of first name may be

allowed, among other grounds, if the new first
name has been habitually and continuously
used by the petitioner and he or she has been
publicly known by that first name in the Take note that there should be notice/summons
community. The local city or municipal civil served to the Civil Registrar and all interested
registrar or consul general has the primary parties
jurisdiction to entertain the petition. It is only
Question: what determines jurisdiction to bind
when such petition is denied that a petitioner
the whole world?
may either appeal to the civil registrar general
or file the appropriate petition with the proper Answer: publication. Since the proceeding is
court. one in rem, there should be publication as
provided for by law.
In this case, the petition, insofar as it prayed for
the change of Sali’s first name, was not within Purpose of notice and summons is for due
the RTC’s primary jurisdiction. It was improper process and fair play. Required ang notice and
because the remedy should have been summons not to acquire jurisdiction but for due
administrative, i.e., filing of the petition with the process and fair play.
local civil registrar concerned. For failure to
exhaust administrative remedies, the RTC
should have dismissed the petition to correct R.A. No. 9048 as amended by R.A. No. 10172
Sali’s first name.
Coverage:

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 SPECIAL PROCEEDINGS
FINAL EXAM COVERAGE

No entry in a civil register shall be changed or
corrected without a judicial order, except for
clerical or typographical errors and change of:
a. First name or nickname;
b. The day and month in the date of birth;
or
c. Sex of a person
- only when there is patently clear that there
was a clerical or typographical error or mistake
in the entry.
and other documents issued by religious
authorities; nor shall any entry
involving change of gender corrected
except if the petition is accompanied by
a certification issued by an accredited
government physician attesting to the
fact that the petitioner has not
undergone sex change or sex transplant.
Publication requirement:

The petition for change of first name or

Conditions (GROUNDS) for the change of first
name:
1. The petitioner finds the first name or
nickname to be ridiculous, tainted with
dishonor or extremely difficult to write
or pronounce;
2. The new first name or nickname has
been habitually and continuously used
by the petitioner and he has been
publicly known by that first name or
nickname in the community; or
3. The change will avoid confusion.
Supporting documents:
1. A certified true machine copy of the
certificate or of the page of the registry
book containing the entry or entries
sought to be corrected or changed;
2. At least two (2) public or private
documents showing the correct entry or
entries upon which the correction or
change shall be based; and
3. Other documents which the petitioner
or the city or municipal civil registrar or
the consul general may consider
relevant and necessary for the approval
of the petition.
- No petition for correction of erroneous
entry concerning the date of birth or the
sex of a person shall be entertained
except if the petition is accompanied by
earliest school record or earliest school
documents such as, but not limited to,
medical records, baptismal certificate
nickname, or for correction of erroneous entry
concerning the day and month in the date of
birth or the sex of a person, as the case may be,
shall be published at least once a week for two
(2) consecutive weeks in a newspaper of general
circulation.
Where to file:
The petition and its supporting papers shall be
filed in three (3) copies and to be distributed as
follows:
- 1st copy to the concerned city or
municipal civil registrar [the local civil
registrar], or the consul general;
- Second copy to the office of the civil
registrar general; and
- Third copy to the petitioner.
^ the local civil registrar will grant the petition
but copy should be furnished also with the
office of the civil registrar general; for appeal,
same shall be to the latter
052221
Rule 107 – Absentees
This rule will cover only the administration of
the property of the absentee; different periods
from those mentioned in the Family Code.
Who may be appointed as representative of the
absentee?
Section 1. Appointment of representative. — When
a person disappears from his domicile, his

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 SPECIAL PROCEEDINGS
FINAL EXAM COVERAGE
whereabouts being unknown, and without
having left an agent to administer his property,
or the power conferred upon the agent has
expired, any interested party, relative or friend
may petition the Court of First Instance of the
place where the absentee resided before his dis-
appearance, for the appointment of a person to
represent him provisionally in all that may be
necessary. In the City of Manila, the petition
shall be filed in the Juvenile and Domestic
Relations Court.
In relation to this, we have Arts. 381 and 382 of
the Civil Code which provides:
Art. 381. When a person disappears from his
domicile, his whereabouts being unknown, and
without leaving an agent to administer his
property, the judge, at the instance of an
interested party, a relative, or a friend, may
appoint a person to represent him in all that
may be necessary.
This same rule shall be observed when under
similar circumstances the power conferred by
the absentee has expired. (181a)
Art. 382. The appointment referred to in the
preceding article having been made, the judge
shall take the necessary measures to safeguard
the rights and interests of the absentee and shall
specify the powers, obligations and
remuneration of his representative, regulating
them, according to the circumstances, by the
rules concerning guardians. (182)
Section 2. Declaration of absence;. — After the
lapse of two (2) years from his disappearance
and without any news about the absentee or
since the receipt of the last news, or of five (5)
years in case the absentee has left a person in
charge of the administration of his property, the
declaration of his absence and appointment of a
trustee or administrative may be applied for by
xxx
Rule 107 is for the purpose of administration of
the property of the absentee; iba ang period for
marriage purposes; iba rin ang period for the
purpose of opening his estate for succession
Two periods contemplated in above provision:
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- GR: 2 years – if without any news about
the absentee or since the receipt of the
last news
- EXPN: 5 years in case the absentee has
left a person in charge of the
administration of his property
This is also provided in Art. 384 of the Civil
Code
Art. 384. Two years having elapsed without any
news about the absentee or since the receipt of
the last news, and five years in case the absentee
has left a person in charge of the administration
of his property, his absence may be
declared. (184)
RECAP: Periods for Presumptive Death
Remarriage
- 4 years – ordinary circumstances with
well-founded belief
- 2 years – in danger of death (Art. 41 of
the Family Code in relation to Art. 391
of the New Civil Code)
Opening the succession (division of the estate)
- 10 years – absentee is 75 or below when
disappeared
- 5 years – absentee disappeared after the
age of 75
- 4 years – if in danger of death
circumstances
Note: if the person disappeared during
circumstances where there is danger of death,
he/she shall be presumed dead for all purposes
if 4 years had already elapsed (but the effect is
retroactive)
EXC: 2 years if the purpose is remarriage.
Section 2. xxx who may petition (to declare a person
an absentee).
any of the following:
(a) The spouse present;
 SPECIAL PROCEEDINGS
FINAL EXAM COVERAGE
(b) The heirs instituted in a will,
who may present an authentic
copy of the same.
(c) The relatives who would
succeed by the law of intestacy;
and
(d) Those who have over the
property of the absentee some
right subordinated to the
condition of his death.
Section 3. Contents of petition. — The petition for
the appointment of a representative, or for the
declaration of absence and the appointment of a
trustee or an administrator, must show the
following:
(a) The jurisdictional facts;
(b) The names, ages, and
residences of the heirs instituted
in the will, copy of which shall
be presented, and of the relatives
who would succeed by the law
of intestacy;
(c) The names and residences of
creditors and others who may
have any adverse interest over
the property of the absentee;
(d) The probable value, location
and character of the property
belonging to the absentee.
Section 4. Time of hearing; notice and publication
thereof. — When a petition for the appointment
of a representative, or for the declaration of
absence and the appointment of a trustee or
administrator, is filed, the court shall fix a date
and place for the hearing thereof where all
concerned may appear to contest the petition.
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Copies of the notice of the time and place fixed
for the hearing shall be served upon the known
heirs, legatees, devisees, creditors and other
interested persons, at least ten (10) days before
the day of the hearing, and shall be published
once a week for three (3) consecutive weeks
prior to the time designated for the hearing, in a
newspaper of general circulation in the province
or city where the absentee resides, as the court
shall deem best.
Required pa rin ang publication because this is a
special proceeding and as a general rule,
publication is required.
Section 5. Opposition. — Anyone appearing to
contest the petition shall state in writing his
grounds therefor, and serve a copy thereof on
the petitioner and other interested parties on or
before the date designated for the hearing.
Section 6. Proof at hearing; order. — At the
hearing, compliance with the provisions of
section 4 of this rule must first be shown. Upon
satisfactory proof of the allegations in the
petition, the court shall issue an order granting
the same and appointing the representative,
trustee or administrator for the absentee. The
judge shall take the necessary measures to
safeguard the rights and interests of the
absentee and shall specify the powers,
obligations and remuneration of his
representative, trustee or administrator,
regulating them by the rules concerning
guardians.
In case of declaration of absence, the same shall
not take effect until six (6) months after its
publication in a newspaper of general
circulation designated by the court and in the
Official Gazette.
Section 7. Who may be appointed. — In the
appointment of a representative, the spouse
present shall be preferred when there is no
legal separation. If the absentee left no spouse,
or if the spouse present is a minor or otherwise
incompetent, any competent person may be
appointed by the court.
In case of declaration of absence, the trustee or
administrator of the absentee's property shall be
appointed in accordance with the preceding
paragraph.
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FINAL EXAM COVERAGE
Section 8. Termination of administration. — The
trusteeship or administration of the property of
the absentee shall cease upon order of the court
in any of the following cases:
(a) When the absentee appears
personally or by means of an
agent;
(b) When the death of the
absentee is proved and his
testate or intestate heirs appear;
(c) When a third person appears,
showing by a proper document
that he has acquired the
absentee's property by purchase
or other title.
In these cases the trustee or administrator shall
cease in the performance of his office, and the
property shall be placed at the disposal of
whose may have a right thereto.
Just take note of the period under Rule 107 and
the other periods in the declaration of
presumptively dead; who may file the petition;
and who may oppose.
Rule 109 – Appeals in Special Proceedings
Please be reminded of your knowledge on
multiple appeals in Special Civil action.
Who may appeal in a special proceeding?
Interested person – the interest of the person
must be material and direct, not merely indirect
or contingent. Unless the party has such
material and direct interest, he is precluded
from appealing an order or judgment of the
court.
Section 1. Orders or judgments from which appeals
may be taken. — An interested person may
appeal in special proceedings from an order or
judgment rendered by a Court of First Instance
or a Juvenile and Domestic Relations Court,
where such order or judgment:
(a) Allows or disallows a will;
Cagatin, Gonzaga, Puertos
(b) Determines who are the lawful heirs
of a deceased person, or the distributive
share of the estate to which such person
is entitled;
(c) Allows or disallows, in whole or in
part, any claim against the estate of a
deceased person, or any claim presented
on behalf of the estate in offset to a claim
against it;
(d) Settles the account of an executor,
administrator, trustee or guardian;
(e) Constitutes, in proceedings relating
to the settlement of the estate of a
deceased person, or the administration
of a trustee or guardian, a final
determination in the lower court of the
rights of the party appealing, except that
no appeal shall be allowed from the
appointment of a special administrator;
and
(f) Is the final order or judgment
rendered in the case, and affects the
substantial rights of the person
appealing unless it be an order granting
or denying a motion for a new trial or
for reconsideration.
Note: while some of the items in Sec. 1, Rule 109
may be considered as interlocutory, the nature
of special proceedings declares them as
appealable as exception to Sec. 1, Rule 41.
We can only appeal final orders, we cannot
appeal interlocutory orders; so what is the
remedy now? You may file a petition for
certiorari under Rule 65.
Even though as a general rule, interlocutory
orders may not be appealed from, the very
nature of special proceedings allow the same.
That’s why it’s special.
When to appeal
General rule: 30 days (Rule 41, Section 3)
Exceptions:
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FINAL EXAM COVERAGE

1. Writ of habeas corpus – 48 hours from

notice of judgment
2. Writ of amparo – 5 working days from
notice of adverse judgment
3. Writ of habeas data – 5 working days
from the notice of the adverse judgment

Mode of Appeal

- Notice and record on appeal (Rule 41,

Section 3)
o Rule 109 contemplates multiple
appeals during the pendency of
special proceedings
o A record on appeal – in addition
to the notice of appeal – is thus
required to be filed as the
original records of the case
should remain with the trial
court to enable the rest of the
case to proceed in the event that
a separate and distinct issue is
resolved by said court and held
to be final
o However, a record of appeal is
not necessary where no other
matter remained to be heard and
determined by the trial court
(Republic v. Nishina, G.R. No.
186053)

Mode of appeal in special proceedings? Record

of appeal.

Ordinarily, the notice of appeal shall be filed in

the Regional Trial Court. If it will be allowed,
the RTC will issue an order granting the appeal,
the records of the case then will be elevated to
the Higher Court.

In special proceedings, you file the record of

appeal and the notice of appeal before the
Regional Trial Court attaching the pertinent
documents such as the decision you’re
appealing, the relevant pleadings, and the
evidences. So that the original documents will
stay at the RTC and the record of appeal, notice
of appeal, and pertinent documents will be
elevated to the higher court.

Cagatin, Gonzaga, Puertos