RULE 102.

HABEAS CORPUS
Writ of habeas corpus
The writ of habeas corpus was devised and exists as a speedy and effectual remedy to
relive persons from unlawful restraint, and as the best and only sufficient defense of
personal freedom. It secures to a prisoner the right to have the cause of his detention
examined and determined by a court of justice, and to have ascertained if he is held
under lawful authority (Nava v. Gatmaitan, GR L-4855. Oct. 11, 1951, 90 Phil. 172).
Petition for the issuance of a writ of habeas corpus a special proceeding
A petition for the issuance of a writ of habeas corpus is a special proceeding governed by
Rule 102 of the Rules of Court, as amended. Habeas corpus is that of a civil proceeding
in character. It seeks the enforcement of civil rights.
Resorting to the writ is not to inquire into the criminal act of which the complaint is made
but into the right of liberty, notwithstanding the act and the immediate purpose to be
served is relief from illegal restraint. The rule applies even when instituted to arrest a
criminal prosecution and secure freedom.

When a prisoner petitions for a writ of habeas corpus, he thereby commences a suit and
prosecutes a case in that court (Caballes v. CA, GR 163108. Feb. 23, 2005, 452 SCRA 312).
Nature of the writ; what it is and what it is not
As a special proceeding under Rule 102 of the Rules of Court, habeas corpus has the
following characteristics:
 Habeas corpus is not in the nature of a writ of error; nor intended as substitute
for the trial court’s function;
 It cannot take the place of appeal, certiorari or writ of error;
 The writ cannot be used to investigate and consider questions of error that
might be raised relating to procedure or on the merits;
 The inquiry in a habeas corpus proceeding is addressed to the question of
whether the proceedings and the assailed order are, for any reason, null and void.
 The writ is not ordinarily granted where the law provides for other remedies in
the regular course, and in the absence of exceptional circumstances;
 Habeas corpus should not be granted in advance of trial;
 The orderly course of trial must be pursued and the usual remedies
exhausted before resorting to the writ where exceptional circumstances are extant;
 Habeas corpus cannot be issued as a writ of error or as a means of reviewing
errors of law and irregularities not involving the questions of jurisdiction occurring
during the course of the trial, subject to the caveat that constitutional safeguards of
human life and liberty must be preserved, and not destroyed;
 Where restraint is under legal process, mere errors and irregularities, which
do not render the proceedings void, are not grounds for relief by habeas
corpus because in such cases, the restraint is not illegal;
 Habeas corpus is a summary remedy;
 It is analogous to a proceeding in rem  when instituted for the sole purpose of
having the person of restraint presented before the judge in order that the cause of
his detention may be inquired into and his statements final;
 The writ of habeas corpus does not act upon the prisoner who seeks relief, but
upon the person who holds him in what is alleged to be the unlawful authority;
 In habeas corpus  proceedings, the only parties before the court are the
petitioner (prisoner) and the person holding the petitioner in custody;
 The only question to be resolved in a habeas corpus petition is whether the
custodian has authority to deprive the petitioner of his liberty; and
 The writ may be denied if the petitioner fails to show facts that he is entitled
thereto ex merito justicias (Caballes v. CA,  GR 163108. Feb. 23, 2005, 452 SCRA 312).
Application of writ
The writ of habeas corpus applies to all cases of illegal confinement or detention in which
individuals are deprived of liberty.
It was devised as a speedy and effectual remedy to relieve persons from unlawful
restraint or, more specifically, to obtain immediate relief for those who may have been
illegally confined or imprisoned without sufficient cause and thus deliver them from
unlawful custody.

It is therefore a writ of inquiry intended to test the circumstances under which a person
is detained (Velasco v. CA, GR 118644 July 7, 1995, 245 SCRA 677).
Writ generally cannot be suspended; exceptions
The privilege of the writ of habeas corpus cannot be suspended except in cases of:
 invasion, when the public safety requires it; or
 rebellion, when the public safety requires it ( 15, Art. III, 1987 Consti.).

Contents of the petition

The petition shall set forth:

 that the person in whose behalf the application is made is imprisoned or

restrained of his liberty;
 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;
 the place where he is so imprisoned or restrained, if known; and
 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 ( 3, Rule 102, RoC).

SECTION 10, RULE 102. CONTENTS OF RETURN

Statements required to be made in the return

If 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:
 whether he has or has not the party in his custody or power, or under
restraint;
 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;
 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;
or
 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 ( 10, Rule 102, RoC).

Peremptory writ vis-a-vis preliminary citation

The writ of habeas corpus may be classified as:

 Preliminary citation – If the person is detained under governmental authority

and the illegality of his detention is not patent from the petition for the writ, the court
issues the citation to the government officer having custody to show cause why
the habeas corpus writ should not issue; and
 Peremptory writ – If the cause of the detention appears to be patently illegal,
the court issues the habeas corpus writ noncompliance with which is punishable (Lee
Yick Hon v. Insular Collector of Customs, GR L-16779. Mar. 30, 1921, 41 Phil. 548).

When writ is proper or not

A petition for habeas corpus is not the appropriate vehicle for asserting a right to bail or
vindicating its denial (Galvez v. CA, GR 114046, Oct. 24, 1994, 237 SCRA 685).

Habeas corpus is not the proper mode to question conditions of confinement. The writ
of habeas corpus  will only lie if what is challenged is the fact or duration of confinement
(In the matter of the petition for habeas corpus of Capt. Alejano v. Gen. Cabuay, GR 160792.
Aug. 25, 2005, 468 SCRA 188).

Also, habeas corpus is not the proper remedy for the correction of the errors which the
accused seek to secure considering that errors of judgment cannot be corrected
through the remedy of habeas corpus.

As a rule, habeas corpus will not lie to correct errors of fact or of law (Talabon v. Iloilo
Provincial Warden, GR L-1153. June 30, 1947, 78 Phil. 59). The only exception to this rule is
when the error:
1. affects the court’s jurisdiction; or
2. is one that would make the judgment absolutely void (Pomeroy v. Director of
Prisons, GR L-14284-85. Feb. 24, 1960, 107 Phil. 50).
SECTION 4, RULE 102. WHEN WRIT NOT ALLOWED OR DISCHARGE AUTHORIZED
Instances when writ is not allowed or when person is not discharged after issue of writ
The writ shall not be allowed:

 if 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;
 if the jurisdiction appears after the writ is allowed;
 if a person is charged with or convicted of an offense in the Philippines;
 if a person is suffering imprisonment under a lawful judgment ( 4, Rule 102,
RoC); and
 if a person arrested under Section 18 of Republic Act No. 9372 (Human
Security Act of 2007) is detained for a period of not more than three (3) days
following his arrest for custodial investigation.
Writ no longer available after filing of information
A writ of habeas corpus is no longer available after an information is filed against the
person detained and a warrant of arrest or an order of commitment, is issued by the
court where said information has been filed (Ilagan v. Enrile,  GR 70748, Oct. 21, 1985, 139
SCRA 349).

Writs of amparo and habeas data

On August 17, 2007 Puno said that the writ of amparo, would bar the military plea of
denial (at a speech at the Volunteers Against Crime and Corruption’s 9th anniversary,
Camp Crame). Under the writ, plaintiffs or victims will have the right of access to
information on their lawsuits—a constitutional right called the “habeas data” derived from
constitutions of Latin America. The final draft of these twin writs (retroactive) will be
promulgated on October. Puno tersely summed the writs “In other words, if you have this
right, it would be very, very difficult for State agents, State authorities to be able to escape from
their culpability.”
Puno stated that with the writ of Habeas corpus, the writs of Habeas Data and writ of
amparo will further assist “those looking for missing loved ones“. On August 30, 2007, Puno
(speech at Silliman University in Dumaguete City, Negros Oriental) promised to institute
the writ of habeas data (“you should have the idea” or “you should have the data”). Puno
explained that amparo bars alibi, while Habeas Data “can find out what information is held
by the officer, rectify or even the destroy erroneous data gathered“. Brazil used the writ,
followed by Colombia, Paraguay, Peru, Argentina and Ecuador.

The Philippine 1987 Constitution was derived from the 1973 Ferdinand

Marcos Constitution, its 1981 amendment, from the 1935 constitution, and from
the United States Constitution. The United States Constitution was adopted in its
original form on September 17, 1787, by the Constitutional Convention in Philadelphia,
Pennsylvania, and later ratified by conventions in each state in the name of “the People.”
The U.S. Constitution is the oldest written national constitution except possibly for San
Marino ‘s Statutes of 1600, whose status as a true constitution is disputed by scholars.
The Writ of Amparo is a remedy to enforce fundamental rights. “among the different
procedures that have been established for the protection of human rights, the primary ones that
provide direct and immediate protection are habeas corpus and amparo.
The difference between these two writs is that habeas corpus is designed to enforce the right to
freedom of the person, whereas amparo is designed to protect those other fundamental human
rights enshrined in the Constitution but not covered by the writ of habeas corpus.”

The literal translation from Latin of Habeas Data is “you should have the data”. Habeas
Data is a constitutional right to protect, per lawsuit filed in court, to protect the image,
privacy, honour, information self-determination and freedom of information of a person.
Habeas Data can used to discover what information is held about his or her person (via
rectification or destruction of the personal data held. Habeas Data originated, inter alia,
from the Council of Europe’s 108th Convention on Data Protection of 1981 (aimed at
protecting the privacy of the individual regarding the automated processing of personal
data; with right to access their personal data held in an automated database.

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

RESOLUTION

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting
for this Court’s consideration and approval the Proposed Rule on custody of Minors and Writ of
Habeas Corpus in Relation to Custody of Minors, the Court Resolved to APPROVE the same.

The Rule shall take effect on May 15, 2003 following its publication in a newspaper of general
circulation not later than April 30, 2003.

April 22, 2003

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Quisumbing, J., on official leave.

RULE ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS

IN RELATION TO CUSTODY OF MINORS

SECTION 1. Applicability. - This rule shall apply to petitions for custody of minors and writs of
habeas corpus in relation thereto.

The Rules of Court shall apply suppletorily.

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.

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.

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.

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.

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.

The notice of its order shall be served separately on both the parties and their respective counsels.
The pre-trial is mandatory.

Section 10. Contents of pre-trial brief. - The pre-trial brief shall contain the following:

(a) A statement of the willingness of the parties to enter into agreements that may be allowed
by law, indicating its terms;
 (b) A concise statement of their respective claims together with the applicable laws and
authorities;

(c) Admitted facts and proposed stipulations of facts;

(d) The disputed factual and legal issues;

(e) All the evidence to be presented, briefly stating or describing its nature and purpose;

(f) The number and names of the witnesses and their respective affidavits which shall serve
as the affiant's testimony on direct examination; and

(g) Such other matters as the court may require to be included in the pre-trial brief.

Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as
failure to appear at the pre-trial.

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.

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.

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;

(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.

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 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.

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.

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.

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 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.

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.

Section 18. Judgment. - After trial, the court shall render judgment awarding the custody of the
minor to the proper party considering the best interests of the minor.
If it appears that both parties are unfit to have the care and custody of the minor, the court may
designate either the paternal or maternal grandparent of the minor, or his oldest brother or sister, or
any reputable person to take charge of such minor, or commit him to any suitable home for children.

In its judgment, the court may order either or both parents to give an amount necessary for the
support, maintenance and education of the minor, irrespective of who may be its custodian. In
determining the amount of support, the court may consider the following factors: (1) the financial
resources of the custodial and non-custodial parent and those of the minor; (2) the physical and
emotional health, special needs, and aptitude of the minor; (3) the standard of living the minor has
been accustomed to; and (4) the non-monetary contributions that the parents would make toward
the care and well-being of the minor.

The court may also issue any order that is just and reasonable permitting the parent who is deprived
of the care and custody of the minor to visit or have temporary custody.

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.

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.

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 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.

Section 21. Confidentiality of proceedings. - The hearings on custody of minors may, at the

discretion of the court, be closed to the public and the records of the case shall not be released to
non-parties without its approval.

Section 22. Effectivity. - This Rule shall take effect on May 15, 2003 following its publication in a
newspaper of general circulation not later than April 30, 2003.