C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
NOTE: If the market value of the property or the
annual income of the child exceeds ₱50,000.00, the
parent concerned shall furnish a bond and must file
a verified petition for the approval of the bond, the
amount of which the court may determine, but must
not be less than ten percentum (10%) of the value of
the property or the annual income of the child. (Art.
225, FC)
3. GENERAL POWERS AND DUTIES OF
GUARDIANS
(RULE 96)
1. Care and custody of the person of the ward;
2. Management of his estate;
3. Pay the debts of the ward;
4. To settle accounts, collect debts, and appear in
actions for the ward;
5. Manage the estate of the ward frugally, and
apply the proceeds to the maintenance of the
ward;
6. Render a verified inventory within three (3)
months after his appointment and annually
thereafter, and upon application of interested
persons;
7. Render to court for its approval an accounting
of the property for one (1) year from his
appointment and as often thereafter as may be
required, and upon application of interested
persons; and
8. Consent to a partition of real or personal
property owned by ward jointly or in common
with others. (Secs. 1 to 8, Rule 96, ROC as
amended; Sec. 17, A.M. No.03-02-05-SC)
NOTE: Unlike trustees, the accounting made by the
guardian is not under oath, and not made annually.
(Sec. 6 (c), Rule 98 in relation to Sec. 8, Rule 96)
If an issue arises as to who has the better right or
title to the properties conveyed in the guardianship
proceeding, such issue should be threshed out in a
separate ordinary action as it is beyond the
jurisdiction of the guardianship court, unless the
ward’s right or title to the property is clear and
undisputable.
385
When Guardian may Sell 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. (Sec. 19, A.M. No. 03-02-05-
SC)
NOTE: However, 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. (Ibid.)
Jurisdictional Requirements
1. Petition must be verified; (Sec. 1, Rule 95, ROC,
as amended)
2. Notice must be given to the next of kin; (Sec. 2,
Rule 95, ROC, as amended) and
3. Hearing so that they may show cause why
petition should not be granted. (Sec. 3, Rule 95,
ROC, as amended)
NOTE: Sale of the ward’s realty by the guardian
without 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.
(Sec. 5, Rule 95, ROC as amended)
Next of Kin
Relatives who are entitled to share in the estate of
the ward under the Law on Intestate Succession
including those who inherit per stirpes or by right
of representation. (Lopez v. Teodoro, Sr., G.R. No. L-
3071, 29 May 1950)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
Order of Sale and Encumbrance of Property
GR: The authority to sell or encumber shall not
extend beyond 1 year. One year shall be reckoned
from the granting of the order.
XPN: Unless renewed by the court. (Sec. 4, Rule 95,
ROC, as amended)
It is presumed that if the property was not sold
within 1 year, the ward has sufficient income.
Prohibition against Guardians
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
guardianship.
Appeal is the proper remedy against an order of the
court authorizing the sale of the ward’s property.
(Lopez v. Teodoro, supra)
NOTE: There being a presumption that the sale of
the ward’s estate is valid; it cannot be attacked
collaterally in the registration proceedings. A
separate action to avoid or rescind the sale on the
grounds specified by law should be filed. (Margate
v. Rabacal, G.R. No. L-14302, 30 Apr. 1963)
Conditions of the Bond of the Guardian
Before an appointed guardian enters upon the
execution of his trust, he shall give a bond, in such
sum to be determined by the court and under the
following conditions:
1. 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 or to
the possession or knowledge of any other
person for him;
2. To faithfully execute the duties of his trust, to
manage and dispose of the estate according to
the rules for the best interests of the ward, and
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
to provide for the proper care, custody, and
education of the ward;
3. 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 the rules and such other
times as the court directs;
4. 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; and
5. To perform all orders required by the court.
(Sec. 1, Rule 94; Sec. 14, A.M. No. 03-02-05-SC)
Purpose of the Bond
For the protection of the property of the minor or
incompetent to the end that he may be assured of an
honest administration of his funds. (Herrera, 2005)
NOTE: The bond of the guardian is a continuing one
against the obligors and their estates until all its
conditions are fulfilled. The mere fact that
defendant was removed as guardian did not relieve
her or her bondsmen from liability during the time
she was duly acting as such guardian. (Guerrero v.
Teran, G.R. No. L-4898, 19 Mar. 1909)
Necessity of the Bond
When required by statutes to give a bond, no person
can qualify and act as guardian without complying
with this condition precedent. (Sec. 1, Rule 94, ROC,
as amended)
Time when Bond takes Effect
At the time of appointment, notwithstanding the
bond being filed later. (Ibid.)
NOTE: In case of breach of the bond’s conditions,
the bond may be prosecuted in the same proceeding
or in a separate action, for the use and benefit of the
386
C2

VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS

ward or of any person legally interested in the ward; or
estate. (Sec. 3, Rule 94, ROC as amended) 4. Failure to render an account or make a return
for thirty (30) days after it is due. (Sec. 2, Rule
4. TERMINATION OF GUARDIANSHIP 97, ROC, as amended)
(RULE 97)
The remedy of the guardian from the order of
Who may File (G-R-I-F) removal is to appeal. (Olarte v. Enriquez, G.R. No. L-
16098, 31 Oct. 1960)
1. His Guardian;
2. His Relative; The guardian may file a petition before the
3. Person who has been declared Incompetent; or guardianship court for permission to resign his
4. His Friend. trust, stating the grounds therefore, and
accompanied by a report of the state of his account
The petition shall be verified by oath and shall state and an offer to settle the account and deliver the
that such person is then competent. (Sec. 1, Rule 97, estate over the court. (Herrera, 2005)
ROC, as amended)
Special Disqualification
Grounds of Termination
1. Non-residence of the guardian;
1. Death of the ward; 2. Advanced age of the guardian; and
2. Death of the guardian; 3. Judges, clerks of court. (Vancil v. Belmes, G.R. No.
3. Competency of the ward has been judicially 13222, 19 June 2001)
declared;
4. Guardianship is no longer necessary; or RULE ON GUARDIANSHIP OVER MINOR
5. The ward has come of age (emancipation). (Sec. A.M. No. 03-02-05-SC, effective 01 May 2003
1-3, Rule 97, ROC, as amended)
Minors
A guardianship court has no power to order the
person suspected of embezzling or concealing Those who are below 18 years of age or those over
property of the ward to deliver the same to the but are unable to fully take care of themselves from
court. A guardianship court only has the power to abuse, neglect, cruelty, exploitation, or
cite such person to obtain information on the discrimination because of a physical or mental
property. (Parco v. CA, G.R. No. L-33152, 30 Jan. disability or condition. (Sec. 3(a), R.A. No. 7610)
1982)
Tender Age Presumption
Who may Oppose
A mother is to be preferred in awarding custody of
1. Guardian; children under the age of seven (7). There being no
2. Relative of the ward; or sufficient proof of any compelling reason to
3. Any other person, in the discretion of the court. separate the minor from his mother, custody should
(Sec. 1, Rule 97, ROC, as amended) remain with her. (Art. 213, FC)

Grounds for the Removal or Resignation of a This presumption may be overcome only by
Guardian compelling evidence of the mother’s unfitness.
(Gualberto v. Gualberto. G.R. No. 154994, 28 June
1. Insanity; 2005)
2. Incapability or unsuitability for discharging his Instances when Parent is Declared Unsuitable
trust; for Custody (N-A-U-H-I-D-M-I-A-A)
3. Wastage or mismanagement of the estate of the

387 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL L AW
C2

REMEDIAL LAW
1. Neglect; Court of the province or city where his property
2. Abandonment; or any part thereof is situated. (Sec. 3, Ibid.)
3. Unemployment;
4. Habitual drunkenness; Grounds for the Appointment of a Guardian over
5. Immorality; the Person or Property, or Both, of a Minor
6. Drug addiction;
7. Maltreatment of the child; 1. Death, continued absence, or incapacity of his
8. Insanity; parents;
9. Affliction with a communicable disease; or 2. Suspension, deprivation or termination of
10. Analogous grounds. (Perez v. CA, G.R. No. parental authority;
118870, 29 Mar. 1996) 3. Remarriage of surviving parent, if the latter is
found unsuitable to exercise parental authority;
Who may file a Petition for Guardianship of or
Minors 4. When the best interests of the minor so require.
(Sec. 4, A.M. No. 03-02-05-SC)
1. Any relative;
2. Other person on behalf of the minor; Qualifications of Guardians (M-A-L-F-R-A-P)
3. The minor himself if fourteen (14) years of age
or over; 1. Moral character;
4. The Secretary of DSWD; or 2. Availability to exercise the powers and duties of
5. The Secretary of DOH in case of an insane minor a guardian for the full period of the
who needs to be hospitalized. (Sec. 2, A.M. No. guardianship;
03-02-05-SC, Rule on Guardianship over Minor) 3. Lack of conflict of interest with the minor;
4. Financial status;
Non-resident Minors 5. Relationship of trust with the minor;
6. Ability to manage the property of the minor;
The Courts may appoint a guardian for non-resident and
minors or incompetents, but only insofar as to the 7. Physical, mental, and psychological condition.
property of the non-resident minor found in the (Sec. 5, A.M. No. 03-02-05-SC)
Philippines is concerned. Any relative, friend, or
anyone interested in his property, in expectancy or NOTE: The court shall order a social worker to
otherwise, may petition the Family Court/RTC for conduct a case study of the minor and all the
the appointment of a guardian over the property. prospective guardians and submit his report and
(Sec. 12, A.M. No. 03-02-05-SC; Sec. 6, Rule 93, ROC, as recommendation to the court for its guidance before
amended) the scheduled hearing. The social worker may
intervene on behalf of the minor if he finds that the
NOTE: Publication is required for petitions for petition for guardianship should be denied. (Sec. 9,
guardianship over the property of a non-resident Ibid.)
minor unlike in the case of a resident minor. (Sec. 12,
A.M. No. 03-02-05-SC, in relation to Sec. 6, Rule 93, Non-resident Guardians not to be Appointed
ROC, as amended)
The Courts should not appoint persons as guardians
Where Filed who are not within the jurisdiction of our courts for,
they will find it difficult to protect the wards. (De
1. In case of a resident minor, in the Family Court Leon & Wilwayco, 2020; Vancil v. Belmes, G.R. No. L-
of the province or city where the minor actually 132223, 19 June 2001)
resides; or

2. In case of a non-resident minor, in the Family

UNIVERSITY OF SANTO TOMAS 388

2023 GOLDEN NOTES
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
Substitute Parental Authority
The law vests on the father and mother joint
parental authority over the persons of their
common children. In case of absence or death of
either parent, the parent present shall continue
exercising parental authority. Only in case of the
parents’ death, absence or unsuitability may
substitute parental authority be exercised by the
surviving grandparent. (De Leon & Wilwayco, 2020;
Santos, Sr. v. CA, G.R. No. 113054 16 Mar. 1995)
Order of Preference in appointing a Guardian
In default of parents or a court-appointed guardian,
the court may appoint a guardian of a minor,
observing as far as practicable the following order
of preference:
1. The surviving grandparent, and in case several
grandparents survive, the court shall select any
of them taking into account all relevant
considerations;
2. The oldest brother or sister of the minor over
twenty-one (21) years of age, unless he or she is
unfit or disqualified;
3. The actual custodian of the minor over twenty-
one (21) years of age, unless unfit or
disqualified; and
4. Any other person who in the sound discretion
of the court, would serve the best interests of
the minor. (Sec. 6, Ibid.)
Contents of the Petition for the Appointment of
a General Guardian
1. Jurisdictional facts;
a. Minority of the person for whom
guardianship is sought; and
b. The fact that the minor resides in the place
where the court has jurisdiction.
2. The name, age, and residence of the prospective
ward;
3. The ground rendering the appointment
389
necessary or convenient;
4. The death of the parents of the minor or the
termination, deprivation or suspension of their
parental authority;
5. The remarriage of the minor’s surviving parent;
6. The names, ages, residences of relatives within
4th civil degree of minor, and of persons having
him in their care and custody;
7. The probable value, character, and location of
the property of the minor; and
8. The name, age, and residence of the person for
whom letters of guardianship are prayed. (Sec.
7, A.M. No. 03-02-05-SC)
Time and Notice of Hearing
Notice must be given to persons named in the
petition and to the minor if he is fourteen (14) years
of age or over. (Sec. 8, A.M. No. 03-02-05-SC) Notice
is jurisdictional, without which the court does not
acquire jurisdiction over the petition. (De Leon &
Wilwayco, 2020)
Grounds for Opposition to Petition of
Guardianship of Minors
1. Majority of the minor; or
2. Unsuitability of the person for whom letters are
prayed for. (Sec. 10, A.M. No. 03-02-05-SC)
NOTE: Any interested person may contest the
petition by filing a written opposition and pray that
the petition be denied, or that letters of
guardianship issue to himself, or to any suitable
person named in the opposition. (Sec. 10, A.M. No.
03-02-05-SC; Sec. 4, Rule 93, ROC, as amended)
If the interested person is a creditor and mortgagee
of the estate of the minor, he cannot be appointed
guardian of the person and property of the latter.
(Sec. 5, A.M. No. 03-02-05-SC)
Bonds of Parents as Guardians
The parents shall post a bond if the market value of
the child’s properties or annual income exceeds
P50,000.00. The amount shall be determined by the
court but in no case less than 10% of the value of the
properties or annual income. (Sec. 16, A.M. No. 03-
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
02-05-SC)
Grounds for Petition to Sell or Encumber
Property of the Ward
1. When the income of a property under
guardianship is insufficient to maintain and
educate ward; or
2. When it appears that it is for the benefit of the
ward. (Sec. 19, A.M. No. 03-02-05-SC)
The authority to sell or encumber shall not extend
beyond one (1) year, unless renewed by the court.
(Sec. 22, A.M. No. 03-02-05-SC)
Grounds for Removal or Resignation
Guardian
1. Becomes insane or otherwise incapable of
discharging his trust;
2. Is found thereafter to be unsuitable;
3. Has wasted or mismanaged the property of the
ward; or
4. Has failed to render an account or make a return
for thirty (30) days after it is due. (Sec. 24, A.M.
No. 03-02-05-SC)
NOTE: No motion for removal or resignation shall
be granted unless the guardian has submitted the
proper accounting of the ward and the court has
approved the same. (Sec. 24, A.M. No. 03-02-05-SC)
Grounds for Termination of Guardianship
Guardianship’s termination may be motu propio or
by a verified motion by any person allowed to file a
petition for guardianship on the grounds of:
1. Ward has come of age (emancipation); or
2. Ward has died. (Sec. 25, A.M. No. 03-02-05-SC)
NOTE: The guardian shall notify the court of such
fact within 10 days of its occurrence. (Sec. 25, A.M.
No. 03-02-05-SC)
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
C. WRIT OF HABEAS CORPUS
(RULE 102)
It is a writ directed to the person detaining another,
commanding him to produce the body of the
prisoner at a certain time and place, with the day
and the cause of his capture and detention, to do,
submit to, and receive whatsoever, the court or
judge awarding the writ shall consider in that
behalf. (Illusorio v. Bildner, G.R. Nos. 139789 and
139808, 12 May 2000)
Scope of the Writ
of
Habeas corpus extends to:
1. All cases of illegal confinement or detention by
which any person is deprived of his liberty;
2. All cases by which the rightful custody of any
person is withheld from the person entitled
thereto; (Sec. 1, Rule 102) (2005, 2009 BAR)
3. An alleged violation of the liberty of abode;
(Osorio v. Navera, G.R. No. 223272, 26 Feb. 2018)
4. Results of post-conviction DNA testing which
are favorable to the convict; (Sec. 10 in relation
to Sec. 6, A.M. No. 06-11-5-SC, effective 15 Oct.
2007) and
5. Persons deprived of liberty due to mistaken
identity. In such cases, the person is not under
any lawful process and is continuously being
illegally detained. (In The Matter of the Petition
for Habeas Corpus of Datukan Malang Salibo,
G.R. No. 197597, 8 Apr. 2015)
NOTE: Indeed, the rule is that when there is a
deprivation of a person’s constitutional rights, the
court that rendered the judgment is deemed ousted
of its jurisdiction and habeas corpus is the
appropriate remedy to assail the legality of his
detention. The inquiry on a writ of habeas corpus is
addressed, not to errors committed by a court
within its jurisdiction, but to the question of
whether the proceeding or judgment under which
390
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
the person has been restrained is a complete nullity.
The concern is not merely whether an error has
been committed in ordering or holding the
petitioner in custody, but whether such error is
sufficient to render void the judgment, order, or
process in question. (In re: The Writ of Habeas
Corpus for Michael Labrador Abellana v. Paredes, G.R.
No. 232006, 10 July 2019)
Purpose
In general, the purpose of the writ is to determine
whether or not a particular person is legally held.
(De Leon & Wilwayco, 2020)
To justify the grant of the petition, the restraint of
liberty must be an illegal and deprivation of
freedom of action. The illegal restraint of liberty
must be actual and effective, not merely nominal or
moral. (Illusorio v. Bildner, G.R. Nos. 139789 and
139808, 12 May 2000)
Nature of the Petition
1. Summary – 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. Hence, the only parties
before the court are the petitioner and the
person holding the petitioner in custody, and
the only question to be resolved is whether the
custodian has authority to deprive the
petitioner of his liberty. (De Leon & Wilwayco,
2020; Caballes v. CA, G.R. No. 163108, 23 Feb.
2005)
NOTE: Proceedings in habeas corpus are
separate and distinct from the main case from
which the proceedings spring. They rarely, if
ever, touch the merits of the case and require no
pronouncement with respect thereto. They deal
simply with the detention of the prisoner and
stop with the authority by virtue of which he is
391
detained. (De Leon & Wilwayco, 2020; Ching v.
Insular Collector of Customs, G.R. No. L-10972, 28
Jan. 1916)
In habeas corpus proceedings, the only parties
before the court are the petitioner (prisoner)
and the person holding the petitioner in
custody. (Claridades, 2017)
2. Ancillary – The writ of habeas corpus and
certiorari may be ancillary to each other where
necessary to give effect to the supervisory
powers of the higher courts. A writ of habeas
corpus reaches the body and the jurisdictional
matters, but not the record. A writ of certiorari
reaches the record but not the body. Hence, a
writ of habeas corpus may be used with the writ
of certiorari for the purpose of review. (Galvez
v. CA, G.R. No. 114046, 24 Oct. 1994)
However, habeas corpus does not lie where the
petitioner has the remedy of appeal or
certiorari. (De Leon & Wilwayco, 2020; Galvez v.
Court of Appeals, G.R. No. 114046, 24 Oct. 1994)
NOTE: In habeas corpus cases, the judgment in
favor of the applicant cannot contain a
provision for damages. (Alimpoos v. CA, G.R. No,
L-27331, 30 July 1981)
3. Prerogative writ – A writ of habeas corpus
which is regarded as a “palladium of liberty,” is
a prerogative writ which does not issue as a
matter of right but in the sound discretion of the
court or judge.
Resort to the writ is to inquire into the criminal
act of which a complaint is made but unto the
right of liberty, notwithstanding the act, and the
immediate purpose to be served is relief from
illegal restraint. (De Leon & Wilwayco, 2020;
Caballes v. CA, G.R. No. 163108, 23 Feb. 2005)
Grounds for Suspension of the Privilege of the
Writ of Habeas Corpus under the Constitution:
1. Invasion; or
2. Rebellion, when public safety requires it. (Sec.
15, Art. III, 1987 Constitution)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
Kinds of Writ of Habeas Corpus
1. 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
government officer having custody to show
cause why the habeas corpus writ should not
issue;
2. 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, G.R. No. L-16779, 20 Mar.
1921)
3. Preemptory writ – a written document
unconditionally commanding the respondent to
have the body of the document detained person
before the court at a time and place specified
therein. (De Leon & Wilwayco, 2020)
Grounds for the Issuance of Writ of Habeas
Corpus as a Consequence of Judicial Proceeding
1. There has been a deprivation of a constitutional
right resulting in restraint of a person;
2. The court has no jurisdiction to impose the
sentence;
3. An excessive penalty has been imposed, the
sentence being void as to excess; (De Leon &
Wilwayco, 2020; Go v. Dimagiba, G.R. No.
151876, 21 June 2005)
4. Where the law is amended, as when the penalty
is lowered; (Feria v. CA, G.R. No. 122954, 15 Feb.
2022)
5. Denial of right to a speedy trial (since it is
jurisdictional);
6. Where the results of post-conviction DNA
testing are favorable to the convict; (Sec. 10 in
relation to Sec. 6, A.M. No. 06-11-5-SC, effective
15 Oct. 2007)
7. Enable the parents to regain custody of a minor
child, even if the latter be in the custody of a
third person of her own free will; (Tijing v. CA,
G.R. No. 125901, 08 Mar. 2001)
8. In determining the constitutionality of a statute;
(People v. Vera, G.R. No. L-45685, 16 Nov. 1937);
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
9. When testing the legality of an alien’s
confinement and proposed expulsion from the
Philippines; (Lao Tang Bun v. Fabre, G.R. No. L-
1673, 22 Oct. 1948)
10. In permitting an alien to land in the Philippines;
(Lim Cheng v. Insular Collector of Customs, G.R.
No. 16406, 13 Sept. 1920) and
11. In determining the legality of an extradition.
(United States v. Rauscher, 7 S. Ct. 234, 30 L. Ed.
425, 6 Dec. 1886)
Who may File
1. Party for whose relief it is intended or a person
unlawfully imprisoned or restrained of his
liberty; or
2. Some person on his behalf. (Sec. 3, Rule 102,
ROC, as amended)
Form and Contents of the Petition
The party may apply through a signed and verified
petition for a writ of habeas corpus which should
contain the following: (P-I-C-O)
1. That the person in whose behalf the application
is made is Imprisoned or restrained of his
liberty;
2. 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;
3. The Place where he is so imprisoned or
restrained, if known; and
4. 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. (Sec. 3, Rule
102, ROC, as amended)
NOTE: The formalities required for petitions for
habeas corpus must be construed liberally. Strict
compliance with the technical requirements for a
392
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
habeas corpus petition may be dispensed with
where the allegations in the application are
sufficient to make out a case for habeas corpus.
(Fletcher v. Director of Bureau of Corrections, UDK-
14071, 17 July 2009)
Contents of the 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 unequivocally:
1. Whether he has or has not the party in his
custody or power, or under restraint;
2. 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;
3. 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 brought
before the court or judge; and
4. 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. (Sec.
10, Rule 102, ROC, as amended)
NOTE: If it appears that the prisoner is in the
custody of a public officer under a warrant of
commitment in pursuance of law, the return shall be
considered prima facie evidence of the validity of
the 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. (Sec. 13, Rule 102, ROC, as amended)
Return to be Signed and Sworn to
393
GR: The return or statement shall be signed by the
person who makes it and shall be sworn to by him if
the prisoner is not produced.
XPN: The return is made and signed by a sworn
public officer in his official capacity. (Sec. 11, Rule
102, ROC, as amended)
Hearing on Return
GR: 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.
XPN: The hearing may be adjourned for good
causes, provided that conditions upon the
safekeeping of the detained person are laid. If the
detained person cannot be produced before the
court, the officer or person detaining must satisfy
the court of the gravity of the alleged sickness or
infirmity. (Sec. 12, Rule 102, ROC, as amended)
NOTE: During the hearing, the court or judge shall
disregard matters of form and technicalities of any
warrant or order of commitment of a court or officer
authorized to commit by law. (Sec. 12, Rule 102, ROC,
as amended)
The failure of petitioners to file a reply to the return
of the writ warrants the dismissal of the petition
because unless controverted, the allegations on the
return are deemed to be true or admitted. (Florendo
v. Javier, G.R. No. L-36101, 29 June 1979)
Period of Appeal
Under B.P. No. 129, the period of appeal in habeas
corpus cases shall be 48 hours from the notice of the
judgment or final order appealed from. (Sec. 39, B.P.
129)
Q: Luis Ramos initiated a complaint-affidavit for
deportation before the Bureau of Immigration
and Deportation (BID) against Jimmy Go
alleging that the latter is an illegal and
undesirable alien. The complaint for
deportation was dismissed but was
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
subsequently reversed by the Board of
Commissioners; hence the corresponding
Charge Sheet was filed against Jimmy, charging
him of violating the Philippine Immigration Act
of 1940. The Board of Commissioners issued a
warrant of deportation which led to the
apprehension of Jimmy. Jimmy commenced a
petition for habeas corpus. Should the petition
be granted?
A: NO. Once a person detained is duly charged in
court, he may no longer question his detention
through a petition for issuance of a writ of habeas
corpus. His remedy would be to quash the
information and/or the warrant of arrest duly
issued. The writ of habeas corpus should not be
allowed after the party sought to be released had
been charged before any court. The term “court” in
this context includes quasi-judicial bodies of
governmental agencies authorized to order the
person’s confinement, like the Deportation Board of
the Bureau of Immigration. (Go, Sr. v. Ramos, G.R. No.
167569; Fernandez v. Jimmy Go, G.R. No. 167570, 04
Sept. 2009)
Q: A municipal trial judge, who is related within
the third degree of consanguinity to Archie,
complainant, has conducted an ex parte
preliminary investigation without affording
Ben, accused, opportunity to be heard and
thereafter issued a warrant of arrest, pursuant
to which Ben has been detained, and
subsequently forwarded the records of the case
to the provincial prosecutor for appropriate
action. Will habeas corpus and certiorari lie?
A: YES. A petition for habeas corpus to relieve Ben
under the illegal warrant of arrest, and for certiorari
to assail the warrant of arrest may be filed, and the
judge may properly be made respondent, even
though the accused has been in physical custody of
the Provincial warden, as the judge has constructive
custody of the accused. For the illegal order and
warrant of arrest issued by the judge subsists and
Ben is offered no speedy, adequate remedy or
appeal in the ordinary course of law. The writ of
habeas corpus, although not designed to interrupt
the orderly administration of justice, can be
invoked, in fine, by the attendance of special
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
circumstance that requires immediate action.
(Calvan v. CA, G.R. No. 140823, 03 Oct. 2000)
Q: Rita Labriaga was caught selling two tea bags
of marijuana in Daraga, Albay in a buy-bust
operation conducted by the Narcotics Command
and was found in possession of 115 grams of
marijuana. She was convicted for violation of RA
6425 and was sentenced to life imprisonment.
Rita filed a motion for reconsideration with
modification of sentence. She prayed for the
retroactive application to her case of RA 7659
which imposes imprisonment of prision
correccional for less than 250 grams of
marijuana, and for her eventual release from
confinement at the Correctional Institution for
Women in Mandaluyong as a consequence of the
application of the new law to her case. It appears
that she already served sentence for a more than
a year. Should the motion be granted?
A: YES. The appropriate remedy is to file a petition
for habeas corpus considering that the decision in
this case is final. However, in accordance with the
ruling in Angeles v. Bilibid Prison (G.R. No. 117568, 04
Jan. 1995) and People v. Agustin (G.R. No. 98362, 05
Sept. 1995), in which the SC held that the rules on
habeas corpus should be liberally applied in cases
which are sufficient in substance, the motion in this
case must be treated as a substantial compliance
with the rules on habeas corpus. Rita Labriaga,
having served more than the maximum imposable
penalty of prision correccional, should be released.
(People v. Labriaga, G.R. No. 92418, 20 Nov. 1995)
Q: Hercules was walking near a police station
when a police officer signaled for him to
approach. As soon as Hercules came near, the
police officer frisked him but the latter found no
contraband. The police officer told Hercules to
get inside the police station. Inside the police
station, Hercules asked the police officer, “Sir,
may problema po ba?” Instead of replying, the
police officer locked up Hercules inside the
police station jail.
a. What is the remedy available to Hercules to
secure his immediate release from
detention?
394
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
A: The remedy available to Hercules to secure
his immediate release from detention is a
petition for writ of habeas corpus. Under Rule
102, the writ of habeas corpus is available in cases of
illegal detention. Sec. 5 of Rule 102 provides that a
court or judge authorized to grant the writ must,
when the petition therefor is presented and it
appears that the writ ought to issue, grant the same
forthwith, and immediately thereupon the clerk of
court shall issue the writ 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. The court or judge before whom the writ is
returned must immediately proceed to hear and
examine the return. (Sec. 12, Rule 102, ROC, as
amended)
b. If Hercules opts to file a civil action against
the police officer, will he have a cause of
action? (2015 BAR)
A: YES. Hercules will have a cause of action. Under
Art. 32(4) of the Civil Code, any public officer who
violates the right of a person to freedom from
arbitrary or illegal detention shall be liable to the
latter for damages. The action to recover damages
is an independent civil action. Here Hercules was
illegally detained as there was no probable cause to
arrest him without warrant.
Who may Grant the Writ
The RTC, CA, and SC have concurrent jurisdiction to
issue writs of habeas corpus. The MTC, by virtue of
special jurisdiction under B.P. No. 129, can issue the
writ in case there is no available RTC judge.
Hierarchy of courts is not observed. (Candelaria v.
RTC, G.R. No. 173861, 14 July 2014)
The writ issued by the RTC is enforceable within its
territorial jurisdiction. While the writ issued by the
CA or SC is enforceable anywhere in the Philippines.
(Sec. 2, Rule 102, ROC, as amended) (2007, 2005,
2003 BAR)
The Sandiganbayan may issue writs of habeas
corpus only if it is in aid of its appellate jurisdiction.
(Sec. 4, P.D. 1606, as amended by R.A. No. 8249)
395
Family Courts have exclusive jurisdiction to issue
writs of habeas corpus involving custody of minors.
(Sec. 5, R.A. No. 8369)
Who Issues the Writ
GR: If it appears that the writ should issue, the clerk
of court issues the writ under the court’s seal.
XPN: In emergency cases, the judge may issue the
writ under his own hand and deputize any person to
serve it. (Sec. 5, Rule 102, ROC, as amended)
To whom Writ directed
1. 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 specified therein.
2. 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. The officer shall summon the person
detaining another to appear before the court to
show the cause of the imprisonment or
restraint. (Sec. 6, Rule 102, ROC, as amended)
How Service is Made
1. By leaving the original of the writ with the
person to whom it is directed or to any person
having custody if the former cannot be found or
has not the person in his custody; and
2. By preserving a copy on which to make return
of service. (Sec. 7, Rule 102, ROC, as amended)
The writ itself plays the role of summons in ordinary
actions; court acquires jurisdiction over the person
of the respondent by mere service of writ. (Sec. 7,
Rule 102, ROC, as amended)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
How Writ Executed and Returned
GR: Officer to whom the writ is directed shall
convey the detained person on the day specified in
the writ
1. Before the judge who allowed the writ; or
2. If he is absent, before any judge of the same
court.
XPN: If the person to be produced has sickness or
infirmity such that he cannot be brought before the
court without danger. (Sec. 8, Rule 102, ROC, as
amended)
Q: When the soldier’s defense to a petition for
habeas corpus is that they released the
detainees for whom the petition was filed, but
the allegation of release is disputed by the
parents of the detainees, and it is not denied that
the detainees have not been seen or heard from
since their supposed release, do the parents
have the burden in law of proving that their
children are still detained by the soldiers or
does the burden shifts to the soldiers?
A: The general rule in the number of cases is that the
release of a detained person renders moot and
academic the petition for habeas corpus. The cited
general rule postulates that the release of the
detainees is an established fact and not in dispute,
and they do not constitute to be missing persons.
Where, however, there are grounds for grave
doubts about the alleged release of the detainees,
where the standard and prescribed procedure has
not been followed, then the burden of proving by
clear and convincing evidence the alleged release is
shifted to the soldiers, as the respondents to the
petition. (Dizon v. Eduardo, G.R. No. L-59118, 03 Mar.
1988)
Habeas Corpus is NOT Applicable when the
Purpose is to:
1. Enforce a right of service;
2. Determine whether a person has committed a
crime;
3. Determine a disputed interstate boundary line;
4. Punish respondent;
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
5. Recover damages or other money award;
6. Assert or vindicate denial of right to bail; (In re:
Azucena Garcia, G.R. No. 141443, 18 Nov. 2000)
7. Correct errors in appreciation of facts or law;
(Sotto v. Dir. of Prisons, G.R. No. L-18871, 30 May
1962) or
8. Enforce marital rights including living in
conjugal dwelling.
In cases of Illegal Confinement or Detention
GR: The release whether permanent or temporary,
of a detained person renders the petition for habeas
corpus moot and academic.
XPN: When there are restraints attached to his
release which precludes freedom of action, in which
cases the court can still inquire into the nature of his
involuntary restraint. (Villavicencio v. Lukban, G.R.
No. L-14639, 25 Mar. 1919)
Voluntary Restraint
GR: Writ is not available if restraint is voluntary.
(Kelly v. Director of Prisons, G.R. No. L-20478, 14 Mar.
1923)
XPN: Writ will lie to enable the parents (or person
having substituted parental authority) to recover
custody of a minor child although she is in custody
of a 3rd person on her own volition. (Tijing v. CA, G.R.
No. 125901, 08 Mar. 2001)
NOTE: Voluntariness is viewed from the point of
view of the person entitled to custody.
When Writ NOT Allowed or Discharge
Authorized
The writ of habeas corpus shall not be allowed when
the person alleged to be restrained of his liberty is
in the custody of an officer:
1. Under process issued by a court or judge;
2. By virtue of a judgment or order of a court of
record; and
3. The court or judge had jurisdiction to issue the
process, render the judgment, or make the
order. (Sec. 4, Rule 102, ROC, as amended)
396
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
In addition, the discharge of the writ of habeas
corpus shall not be authorized upon showing that a
person is:
1. Charged with;
2. Convicted of an offense; or
3. Suffering imprisonment under lawful judgment.
(Sec. 4, Rule 102, ROC, as amended)
Q: SSgt. Osario, together with his superior
officer, was charged in two informations for
allegedly kidnapping two University of the
Philippines students. Warrants of arrest were
issued against his which caused his arrest. He
was later turned over to the Criminal
Investigation and Detection Unit Group in Camp
Crame, Quezon City and was detained in the
Bulacan Provincial Jail. Subsequently, he was
transferred to the Philippine Army Custodial
Center in Fort Bonifacio, Taguig City. Contending
that he was being illegally deprived of his
liberty, SSgt. Osorio filed a Petition for Habeas
Corpus. He mainly argued that courts-martial,
not a civil court such as the RTC, had jurisdiction
to try the criminal case considering that he was
a soldier on active duty and that the offense
charged was allegedly “service-connected.” Is a
writ of habeas corpus the proper remedy for
SSgt. Osario?
A: NO. A writ of habeas corpus may no longer be
issued if the person allegedly deprived of liberty is
restrained under a lawful process or order of the
court. The restraint then has become legal.
Therefore, the remedy of habeas corpus is rendered
moot and academic. SSgt. Osorio's proper remedy is
to pursue the orderly course of trial and exhaust the
usual remedies. (Sgt. Esgardo Osario v. Asst. State
Prosecutor Juan Pedro Navera, G.R. No. 223272, 26
Feb. 2018)
Other Instances when the Writ shall be
Disallowed or Discharged
1. In cases of supervening events such as issuance
of a process and filing of an information;
(Velasco v. CA, G.R. No. 118844, 07 July 1995)
397
2. In cases of improper arrest or lack of
preliminary investigation; (Paredes v.
Sandiganbayan, G.R. No. 89989, 28 Jan. 1991)
NOTE: The proper remedy in case of improper
arrest or lack of preliminary investigation is to
quash warrant and conduct or direct
preliminary investigation. (Raro v.
Sandiganbayan, G.R. No. 108431, 14 July 2000)
3. In cases of invalid arrest due to deportation
cases cured by filing of the deportation
proceedings; (Santos v. Commissioner of
Immigration, G.R. No. L-25694, 29 Nov. 1976)
4. Petition for habeas corpus is not the appropriate
vehicle for asserting a right to bail or
vindicating its denial; (Galvez v. CA, G.R. No.
114046, 24 Oct. 1994)
NOTE: An application or admission to bail shall
not bar the accused from challenging the
validity of his arrest, or the legality of warrant
issued therefore, or from assailing the
regularity or questioning the absence of a
preliminary investigation of the charge against
him, provided that he raises them before
entering his plea. (Sec. 26, Rule 114; A.M. No. 00-
5-03-SC)
5. Habeas corpus does not lie where the petitioner
has the remedy of appeal or certiorari because
it will not be permitted to perform the functions
of a writ of error or appeal for the purpose of
reviewing mere errors or irregularities in the
proceedings; (Galvez v. CA, G.R. No. 114046, 24
Oct. 1994)
6. Restrictive custody and monitoring of
movements or whereabouts of police officers
under investigation by their superiors is not a
form of illegal detention or restraint of liberty,
as it is sanctioned by R.A. No. 6975, as amended.
Restrictive custody is, at best, a nominal
restraint which is beyond the ambit of habeas
corpus; (Ampatuan v. Macaraig, G.R. No. 182497,
29 June 2010)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
7. If the person arrested is judicially charged
within 3 days from his detention during the
suspension of the writ, the aggrieved party is
precluded from inquiring into the legality of the
arrest or detention in the petition for habeas
corpus and this justifies its dismissal, as the
question of the legality of the arrest or
detention should be raised in the pending
criminal case, either in a motion to quash the
warrant of arrest or the information itself.
(Bernarte v. CA, G.R. No. 107741, 18 Oct. 1996)
Related Jurisprudence
In all petitions for habeas corpus, the court must
inquire into every phase and aspect of petitioner’s
detention, from the moment petitioner was taken
into custody up to the moment the court passes
upon the merits of the petition and only after such a
scrutiny can the court satisfy itself that the due
process clause of the Constitution has been satisfied.
(Bernarte v. CA, supra)
While habeas corpus is a writ of right, it will not
issue as a matter of course or as a mere perfunctory
operation on the filing of the petition. Judicial
discretion is called for in its issuance and it must be
clear to the judge to whom the petition is presented
that, prima facie, the petitioner is entitled to the
writ. It is only if the court is satisfied that a person
is being unlawfully restrained of his liberty will the
petition for habeas corpus be granted. If the
respondents are not detaining or restraining the
applicant or the person in whose behalf the petition
is filed, the petition should be dismissed. (Ampatuan
v. Macaraig, supra)
Person Lawfully Imprisoned, Recommitted, and
when Let to Bail (2008 BAR)
If it appears that the prisoner was lawfully
committed and is plainly and specifically charged in
the warrant of commitment with an offense
punishable by death, he shall not be released,
discharged, or bailed.
If he is lawfully imprisoned or restrained on a
charge of having committed an offense not so
punishable, he may be recommitted to
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
imprisonment or admitted to bail in the discretion
of the court or judge.
If he be admitted to bail, he shall forthwith file a
bond in such sum as the court or judge deems
reasonable, considering the circumstances of the
prisoner and the nature of the offense charged,
conditioned for his appearance before the court
where the offense is properly cognizable to abide its
order of judgment; and the court or judge shall
certify the proceedings, together with the bond,
forthwith to the proper court.
If such bond is not so filed, the prisoner shall be
recommitted to confinement. (Sec. 14, Rule 102, ROC,
as amended)
Person discharged NOT to be again imprisoned
GR: A person who is set at liberty upon a writ of
habeas corpus shall not be again imprisoned for the
same offense.
XPN: He is imprisoned by virtue of lawful order or
process of court having jurisdiction of the offense or
cause. (Sec. 17, Rule 102, ROC, as amended)
NOTE: The release contemplated under the writ of
habeas corpus is one which is free from any
involuntary restraint. When the person so released
continues to be denied of one or more of his
constitutional freedoms where there is present
denial of due process, or where the restraints are
not merely involuntary but appear to be
unnecessary, the person concerned or those acting
in his behalf may still avail themselves again of the
privilege of the writ. (Moncupa v. Enrile, G.R. No. L-
63345, 30 Jan. 1986)
Q: Can the State reserve the power to re-arrest a
person for an offense after a court of competent
jurisdiction has absolved him of the offense?
A: NO. Such a reservation is repugnant to the
principle that the government is one of laws and not
of men. Under this principle, the moment a person
is acquitted of a criminal charge he can no longer be
detained or re-arrested for the same offense.
(Toyoto v. Ramos, G.R. No. L-69270, 15 Oct. 1985)
398
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
Habeas corpus would not lie after the Warrant of
Commitment was issued by the court on the basis of
the Information filed against the accused. (Ilagan v.
Enrile, G.R. No. 70748, 21 Oct. 1985)
Once a person detained is duly charged in court, he
may no longer question his detention through a
petition for issuance of a writ of habeas corpus. The
remedy would be to quash the information and/or
the warrant of arrest duly issued. (Kiani v. Bureau of
Immigration and Deportation, G.R. No. 160922, 27
Feb. 2006)
If the offense is punishable by death, the person
lawfully detained shall not be released, discharged
or bailed. If the offense is not punishable by death,
he may be recommitted to imprisonment or
admitted to bail in the discretion of the court. (Sec.
14, Rule 102, ROC, as amended)
When Prisoner may be removed from one
Custody to another
4. By legal process;
5. Prisoner is delivered to an inferior officer to
carry to jail;
3. By order of proper court or judge directing that
he be removed from one place to another within
the Philippines for trial; and
4. In case of fire, epidemic, insurrection or other
necessity or public calamity. (Sec. 18, Rule 102,
ROC, as amended)
Q: Mariano was convicted by the RTC for raping
Victoria and meted the penalty of reclusion
perpetua. While serving sentence, Mariano and
Victoria got married. Mariano filed a motion in
said court for his release from the penitentiary
on his claim that under RA 8353, his marriage to
Victoria extinguished the criminal action
against him for rape, as well as the penalty
imposed on him. The court denied the motion on
the ground that it had lost jurisdiction over the
case after its decision had become final and
executory.
What remedy/ies should the counsel of Mariano
take to secure his proper and most expeditious
399
release from the National Penitentiary? Explain.
(2005 BAR)
A: His counsel should file a petition for habeas
corpus for the illegal confinement of Mariano or a
motion in the court which convicted Mariano to
nullify the execution of his sentence or the order of
his commitment on the ground that a supervening
development had occurred.
Q: Edward Serapio is under detention pursuant
to the order of arrest issued by the
Sandiganbayan on April 25, 2001 after the filing
by the Ombudsman of the amended information
for plunder against Serapio and his co-accused.
Serapio had in fact voluntarily surrendered
himself to the authorities on April 25, 2001 upon
learning that a warrant for his arrest had been
issued.
He filed a petition for habeas corpus contending
that he is entitled to the issuance of said writ
because the State, through the prosecution's
refusal to present evidence and by the
Sandiganbayan's refusal to grant a bail hearing,
has failed to discharge its burden of proving that
as against him, evidence of guilt for the capital
offense of plunder is strong. He also maintains
that the issuance by the Sandiganbayan of new
orders cancelling the bail hearings which it had
earlier set did not render moot and academic
the petition for issuance of a writ of habeas
corpus, since said orders have resulted in a
continuing deprivation of Serapio's right to bail.
Should the petition for habeas corpus be
granted?
A: NO. The general rule that habeas corpus does not
lie where the person alleged to be restrained of his
liberty is in the custody of an officer under process
issued by a court which had jurisdiction to issue the
same applies. Moreover, a petition for habeas corpus
is not the appropriate remedy for asserting one's
right to bail. It cannot be availed of where accused is
entitled to bail not as a matter of right but on the
discretion of the court and the latter has not abused
such discretion in refusing to grant bail or has not
even exercised said discretion. The proper recourse
is to file an application for bail with the court where
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
the criminal case is pending and to allow hearings
thereon to proceed.
The issuance of a writ of habeas corpus would not
only be unjustified but would also preempt the
Sandiganbayan's resolution of the pending
application for bail of Serapio. The recourse of
Serapio is to forthwith proceed with the hearing on
his application for bail. (Serapio v. Sandiganbayan,
G.R. No. 148468, 28 Jan. 2003)
Q: After Alma had started serving her sentence
for violation of BP 22, she filed a petition of writ
of habeas corpus, citing Vaca v. CA where the
sentence of imprisonment of a party found
guilty of violation of BP 22 was reduced to a fine
equal to double the amount of the check
involved. She prayed that her sentence be
similarly modified and that she be immediately
released from detention. In the alternative, she
prayed that pending determination on whether
the Vaca ruling applies to her, she be allowed to
post bail pursuant to Sec. 14, Rule 102.
Accordingly, the trial court allowed Alma to post
bail and then ordered her release. In your
opinion, is the decision of the trial court correct
under Rule 102? (2008 BAR)
A: NO. Sec. 4, Rule 102 of the Rules of Court does not
authorize a court to discharge by writ of habeas
corpus a person charged with or convicted of an
offense in the Philippines, or of a person suffering
imprisonment under lawful judgment.
Q: Upon a complaint that he is issuing fake Alien
Certificate Registration, Morgan, a British
national was arrested by the Bureau of
Immigration and Deportation (BID). The Board
of Commissioners (BOC) of the BID issued a
deportation order against Morgan. A week after,
Elisa, Morgan’s wife, filed a petition for the
issuance of a writ of habeas corpus with the
Manila RTC naming the Immigration
Commissioner as respondent. After trial, the
RTC dismissed Elisa’s petition on the ground
that a petition for the issuance of a writ of
habeas corpus is not the proper remedy. Is the
RTC correct?
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
A: YES. The power to deport aliens is vested on the
President of the Philippines, subject to the
requirements of due process. The Immigration
Commissioner is vested with authority to deport
aliens under Sec. 37 of the Philippine Immigration
Act of 1940, as amended. Thus, a party aggrieved by
a Deportation Order issued by the BOC is proscribed
from assailing said order in the RTC via a petition
for a writ of habeas corpus.
In case such motion for reconsideration is denied by
the BOC, the aggrieved party may appeal to the
Secretary of Justice and, if the latter denies the
appeal, to the Office of the President of the
Philippines. The party may also choose to file a
petition for certiorari with the CA under Rule 65 of
the Rules of Court, on the ground that the Secretary
of Justice acted with grave abuse of discretion
amounting to excess or lack of jurisdiction in
dismissing the appeal, the remedy of appeal not
being an adequate and speedy remedy. In case the
Secretary of Justice dismisses the appeal, the
aggrieved party may also resort to filing a petition
for review under Rule 43 of the Rules of Court, as
amended. (Johnson v. Makalino, G.R. No. 139255, 24
Nov. 2003)
Habeas Corpus as Post-conviction Remedy
GR: The writ may not be availed of when the person
in custody is under a judicial process or by virtue of
a valid judgment.
XPN: However, as a post-conviction remedy, it may
be allowed 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, thus
voiding the sentence as to such excess. (De Leon
& Wilwayco, 2020; Go v. Dimagiba, G.R. No.
151876, 21 June 2005)
400
C2
C2
C2
C2
C2
C2

REMEDIAL LAW
2. Motion for extension 2. Motion for extension 2. Motion for a bill of
of time to file of time to file return; particulars;
opposition, affidavit, 3. Motion for 3. Motion for extension of
position paper and postponement; time to file pleadings,
other pleadings; 4. Motion for a bill of EXCEPT to file answer,
particulars; the extension not to
NOTE: In writ of 5. Counterclaim or exceed 15 days;
amparo, a motion for cross-claim; 4. Motion to declare the
extension of time to 6. Third-party defendant in default;
file the return is no complaint; 5. Reply and rejoinder;
longer a prohibited 7. Reply; and
pleading, as it may 8. Motion to declare 6. Third-party complaint.
be granted by the respondent in default;
court on highly 9. Intervention;
meritorious cases. 10. Memorandum;
11. Motion for
3. Dilatory motion for Reconsideration of
postponement; interlocutory orders
4. Motion for a bill of or interim relief
particulars; orders; and
5. Counterclaim or 12. Petition for
cross - claim; certiorari,
6. Third - party mandamus, or
complaint; prohibition against
7. Reply; any interlocutory
8. Motion to declare order.
respondent in
default;
9. Intervention;
10. Memorandum;
11. Motion for
reconsideration of
interlocutory
orders or interim
relief orders; and
12. Petition for
certiorari,
mandamus or
prohibition against
any interlocutory
order.

UNIVERSITY OF SANTO TOMAS 406

2023 GOLDEN NOTES
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
1. WRIT OF HABEAS CORPUS IN RELATION TO
CUSTODY OF MINORS
(A.M. No. 03-04-04-SC)
Petition for Habeas Corpus
In a petition for habeas corpus, the child’s welfare is
the supreme consideration. The Child and Youth
Welfare Code unequivocally provides that in all
questions regarding the care and custody, among
others, of the child, his welfare shall be the
Purpose of the Petition
In cases involving minors, the purpose of a petition
for habeas corpus is not limited to the production of
the child before the court; the main purpose of the
petition for habeas corpus is to determine who has
the rightful custody over the child. (Bagtas v. Santos,
G.R. No. 166682, 27 Nov. 2009)
A writ of habeas corpus extends to all cases of illegal
confinement or detention or by which the rightful
custody of person is withheld from the one entitled
thereto. It applies to the judicial guardian who was
duty-bound to care for and protect her ward. For the
guardian to perform her obligation, custody over
the child or ward is warranted. Thus, a judicial
guardian is entitled to a writ of habeas corpus after
she was unduly deprived of the custody of her ward.
(Hernandez v. San Juan-Santos, G.R. No. 166470, 07
Aug. 2009)
Where Filed
The petition for custody of minor is filed with the
Family court of the province or city where the
petitioner resides or where the minor may be found.
(Sec. 3, A.M. No. 03-04-04-SC)
The CA and the SC have concurrent jurisdiction with
Family courts in habeas corpus cases where the
custody of minors is involved. The provisions of RA
8369 must be read in harmony with R.A. 7029 and
B.P. 129―that Family Courts have concurrent
jurisdiction with the CA and the SC in petitions for
habeas corpus where the custody of minors is at
issue. (Thornton v. Thornton, G.R. No. 154598, 16
407
paramount consideration. (Salientes v. Abanilla, G.R.
No. 162734, 29 Aug. 2006)
Who may File a Petition for Custody of Minor
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. (Sec. 2, A.M. No. 03-
04-04-SC)
Aug. 2004; Madriñan v. Madriñan, G.R. No. 159374,
12 July 2007)
Contents of the Verified Petition
1. The personal circumstances of the petitioner
and of the respondent;
2. The name, age and present whereabouts of the
minor and his or her relationship to the
petitioner and the respondent;
3. The material operative facts constituting
deprivation of custody;
4. Such other matters which are relevant to the
custody of the minor; and
5. Certificate of Non-Forum Shopping signed
personally by the petitioner. (Sec. 4, A.M. No. 03-
04-04-SC)
Requisites in Petitions for Habeas Corpus
involving Minors (R-W-B)
1. That the petitioner has the Right of custody
over the minor;
2. That the rightful custody of the minor is being
Withheld from the petitioner by the
respondent; and
3. That it is to the Best interest of the minor
concerned to be in the custody of petitioner and
not that of the respondent. (Sombong v. CA, G.R.
No. 111876, 31 Jan. 1996)
Q: May a motion to dismiss be filed?
A: NO. Motion to dismiss is not allowed except on
the ground of lack jurisdiction over the subject
matter or the parties. (Sec. 6, A.M. No. 03-04-04-SC)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
Filing of Answer
NOTE: Respondent must file a verified answer
within five (5) days from the service of summons
and copy of the petition. (Sec. 7, A.M. No. 03-04-04-
SC)
Pre-trial is mandatory within fifteen (15) days after
filing of the answer or expiration of the period to
file. (Sec. 9, A.M. No. 03-04-04-SC)
Provisional Order awarding Custody
As far as practicable, the following order of
preference shall be observed in the award of
custody:
1. Both parents jointly;
2. Either parent, taking into account all relevant
considerations, especially the choice of the
minor over 7 years of age and of sufficient
discernment, unless the parent chosen is unfit;
3. The grandparent or if there are several
grandparents, the grandparent chosen by the
minor over 7 years of age and of sufficient
discernment, unless the grandparent chosen is
unfit or disqualified;
4. The eldest brother or sister over 21 years of age
unless he or she is unfit or disqualified;
5. The actual custodian of the minor over 21 years
of age unless the former is unfit or disqualified;
or
6. Any other person or institution the court may
deem suitable to provide proper care and
guidance for the minor. (Sec. 13, A.M. No. 03-04-
04-SC)
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.
(Sec. 15, A.M. No. 03-04-04-SC)
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
Issuance of Hold Departure Order
The minor child cannot be brought out of the
country without leave from 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. (Sec. 16, A.M. No. 03-04-04-
SC)
In case of Legal Separation of the Parents
The custody of the minor children shall be awarded
to the innocent spouse, unless otherwise directed
by the court in the interest of the minor children.
But when the husband and wife are living separately
and apart from each other, without decree of the
court, the court shall award the care, custody and
control of each child as will be for his best interest,
permitting the child to choose which parent he
prefers to live with if he is over 7 years of age unless
the parent so chosen be unfit to take charge of the
child by reason of moral depravity, habitual
drunkenness or poverty. (Sy v. CA, G.R. No. 124518,
27 Dec. 2007)
By filing a petition for declaration of nullity of
marriage, the issue of custody of the children is
deemed automatically submitted pursuant to the
express provisions of Arts. 49 and 50 of the Family
Code. (Yu v. Yu, G.R. No. 164915, 10 Mar. 2006)
Best Interest of the Minor
After trial, the court shall render judgment
awarding custody of the minor to the proper party
considering the best interests of the minor.
However, if it appears that both parties are unfit to
have the care and custody of the minor, the court
may designate either:
1. The paternal or maternal grandparent of the
minor;
2. His oldest brother or sister;
408
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
3. Any reputable person to take charge of such
minor; or
4. Commit him to any suitable home for children.
The court may 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. (Sec. 18(4), A.M. No. 03-04-04-
SC; De Leon & Wilwayco, 2020)
The controversy does not involve the question of
personal freedom, because an infant is presumed to
be in the custody of someone until he attains
majority age. In passing on the writ in a child
custody case, the court deals with a matter of an
equitable nature. Not bound by any mere legal right
of parent or guardian, the court gives his or her
claim to the custody of the child due weight as a
claim founded on human nature and considered
generally equitable and just. Therefore, cases are
decided, not on the legal right of the petitioner to be
relieved from unlawful imprisonment or detention,
as in the case of adults, but on the courts view of the
best interests of those whose welfare requires that
they be in custody of one person or another. In
short, the child’s welfare is the supreme
consideration. (Sombong v. CA, G.R. No. 111876, 31
Jan. 1996)
Q: Husband H files a petition for declaration of
nullity of marriage before the RTC of Pasig City.
Wife W files a petition for habeas corpus before
the RTC of Pasay City, praying for custody over
their minor child. H files a motion to dismiss the
wife’s petition on the ground of the pendency of
the other case. Rule. (2007 BAR)
A: The motion to dismiss the petition for habeas
corpus should be granted to avoid multiplicity of
suits. The question of who between the spouses
should have custody of their minor child could also
be determined in the petition for declaration of
nullity of their marriage which is already pending in
the RTC of Pasig City. In other words, the petition
filed in Pasay City, praying for custody of the minor
child is unnecessary and violates only the cardinal
rule of procedure against multiplicity of suits.
Hence, the latter suit may be abated by a motion to
409
dismiss on the ground of litis pendentia. (Yu v. Yu,
G.R. No. 164915, 10 Mar. 2006)
Q: In a petition for habeas corpus which he filed
before the CA, Joey sought custody of his minor
son from his former live-in partner, Loreta. Joey
alleged that the child's mother was abroad most
of the time and thus, he should be given joint
custody over their son. The CA, however, denied
the petition, and on the basis of Art. 213, par (2)
of the Family Code, awarded custody of the child
in favor of the mother. Was the CA correct in
denying Joey’s petition for habeas corpus for the
custody of his minor son?
A: YES. Under Art. 176 of the FC, parental authority
over an illegitimate child is vested solely in the
mother, and this is true notwithstanding that the
child has been recognized by the father as his
offspring. At most, such recognition by the father
would be a ground for ordering the latter to give
support to, but not custody of, the child. (David v. CA,
G.R. No. 111180, 16 Nov. 1995) Custody over the
minor in this case was therefore awarded correctly
to the mother, and this is all the more so in view of
Art. 213 of the Family Code which lays down the
Maternal Preference Rule. There is also no showing
that Joey was able to show proof of any compelling
reason to wrest from the mother parental authority
over their minor child.
Q: In a petition for habeas corpus that was filed
by Loran against his estranged wife, as well as
against his parents-in-law whom he alleged
were unlawfully restraining him from having
custody of his child, the trial court issued an
order directing the aforesaid persons to appear
in court and produce the child in question and to
show cause why the said child should not be
discharged from restraint. Does the trial court's
Order run counter to Art. 213 of the Family
Code?
A: NO. The assailed order of the trial court did not
grant custody of the minor to any of the parties but
was merely a procedural directive addressed to the
petitioners for them to produce the minor in court
and explain why they are restraining his liberty.
Moreover, Art. 213 of the Family Code deals with the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
adjudication of custody and serves as a guideline for
the proper award of-custody by the court. While the
petitioners can raise it as a counter argument in the
custody suit, it may not however be invoked by
them to prevent the father from seeing the child.
Habeas corpus may be resorted to in cases where
rightful custody is withheld from a person entitled
thereto. Under Art. 211 of the Family Code, both
parents in this case have joint parental authority
over their child and consequently joint custody over
him. Further, although the couple is separated de
facto, the issue of custody has yet to be adjudicated
by the court. In the absence of a judicial grant of
custody, both parents are still entitled to the
custody of their child. Hence, where a parent’s cause
of action is the deprivation of their right to see their
child, the remedy of habeas corpus is available to
them. (Salientes, et al. v. Abanilla, et al., G.R. No.
162734, 29 Aug. 2006)
D. CHANGE OF NAME
(RULE 103)
Purpose
No entry in a civil 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. (Sec. 1, R.A. No. 9084)
Its objective is for prevention of fraud, since the rule
involves substantial changes in a person’s name. (De
Leon & Wilwayco, 2020)
Nature of the Proceeding
A change of name is a special proceeding to
establish the status of a person involving his
relation with others, that is, his legal position in, or
with regard to, the rest of the community. It is a
proceeding in rem and, as such, strict compliance
with all jurisdictional requirements, particularly on
publication, is essential in order to vest the court
with jurisdiction thereover.
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
For this purpose, the only name that may be
changed is the true or official name recorded in the
civil register. (Republic v. CA, G.R. No. 97906, 21 May
1992)
Hence, jurisdiction to hear and determine the
petition for change of name is acquired after due
publication of the order containing certain data.
(Secan Kok v. Republic, G.R. No. L-27621, 30 Aug.
1973)
Q: Who may file petition for change of name?
A: Under Rule 103, the word “person” is a generic
term which is not limited to Filipino citizens, but
embraces all natural persons (Yu v. Republic, G.R. No.
L-20874, 25 May 1966).
It includes:
1. Alien – must be domiciled in the Philippines,
not one temporarily staying (Ong Huan Ting
v. Republic, G.R. No. L-20997, 27 Apr. 1967);
and
2. Adopted child (Republic v. Wong, G.R. No.
97906, 21 May 1992)
NOTE: The name that can be changed is the name
that appears in the civil register, and not the name
under the baptismal certificate or that by which the
person is known in the community. The reason
being that the name registered therein, for legal
purposes, is his real name, while those names listed
in the church records, when in variance with that
entered in the civil register, are unofficial and
cannot be recognized. (Ng Yao Siong v. Republic, G.R.
No. L-20306, 31 Mar. 1966)
Q: A was adopted by B and C when A was only a
toddler. Later on in life, A filed with the RTC a
petition for change of name under Rule 103, as
he wanted to reassume the surname of his
natural parents because the surname of his
adoptive parents sounded offensive and was
seriously affecting his business and social life.
The adoptive parents gave their consent to the
petition for change of name. May A file a petition
for change of name? If the RTC grants the
petition for change of name, what, if any, will be
the effect on the respective relations of A with
410
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
his adoptive parents and with his natural
parents? Discuss. (2014 BAR)
A: A should be allowed to change his surname
because the reasons he invoked are proper and
reasonable under the circumstances. Besides, his
adoptive parents have agreed on the change of his
surname.
In a case with similar facts, Republic v. Wong (G.R.
No. 97906, 21 May 1992) the Supreme Court allowed
Maximo Wong to change his name to Maximo Alcala,
Jr. Maximo was the natural child of Spouses Maximo
Alcala, Sr. and Segundina Y. Alcala. When he was
adopted by Spouses Hoong Wong and Conception
Ty, his name was changed to Maximo Wong. Upon
reaching the age of 22, he filed a petition to change
his name to Maximo Alcala, Jr. It was averred that
his use of the surname Wong embarrassed and
isolated him from his relatives and friends, as the
same suggests a Chinese ancestry when in truth and
in fact he is a Muslim Filipino residing in a Muslim
community, and he wants to erase any implication
whatsoever of alien nationality; that he is being
ridiculed for carrying a Chinese surname, thus
hampering business and social life; and that his
adoptive mother does not oppose his desire to
revert to his former surname.
Q: Dr. Ruben Bartolome filed a petition for
change of name under Rule 103 of the Rules of
Court, seeking to correct the name “Feliciano
Bartholome” as appearing in his birth
certificate. He stated that he has been using the
name “Ruben [Cruz] Bartolome” since his
childhood. The RTC denied Bartolome's
petition, stating that he should have filed his
petition in accordance with R.A. No. 9048; and as
regards his surname. Petitioner appealed to the
CA, contesting that it was Rule 103 as the
appropriate remedy. Is Bartolome correct?
A: NO. A person may only avail of the appropriate
judicial remedies under Rule 103 or Rule 108 after
the petition in the administrative proceedings is
filed and later denied.
In the instant case, petitioner seeks to change his
first name, to include his middle, and to correct the
411
spelling of his surname, i.e., from “Feliciano
Bartholome” as stated in his birth certificate to
“Ruben Cruz Bartolome.” The Court agrees with the
CA and the OSG that the aforementioned changes
and corrections are covered by Sec. 1 of R.A. No.
9048 as amended by R.A. No.10172. (Bartolome v.
Republic, G.R. No. 243288, 28 Aug. 2019)
Venue
Any person desiring to change his name shall
present the petition to the RTC of the province
where the petitioner has been residing for three (3)
years prior to the filing of the petition. (Sec. 1 in
relation to Sec. 2(a), Rule 103, ROC, as amended)
Contents of the Petition (B-A-N-C)
1. That the petitioner has been a Bona fide
resident of the province where the petition is
filed for at least three (3) years prior to the date
of such filing;
2. All names and Aliases of petitioner; (Republic v.
Marcos, G.R. No. L-31065, 15 Feb. 1990)
3. The Name asked for (Sec. 2, Rule 103, ROC, as
amended); and
4. The Cause for which the change of the
petitioner’s name is sought.
NOTE: The petition shall be signed and verified by
the person desiring his name changed or some other
person in his behalf. However, the requirement of
verification is a formal, and not a jurisdictional
requisite. It is not a ground for dismissing the
petition. (Yu v. Republic, G.R. No. L-20874, 25 May
1966)
Jurisdictional Facts
1. Publication of petition for three (3) consecutive
weeks in newspaper of general circulation in
the province; and
2. Both title or caption and body shall recite: (N-C-
N)
a. Name/names or aliases of applicant;
b. Cause for which change of name is sought;
and
c. New name asked for.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
C2
C2
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
newspaper of general circulation of a person where it is patently clear
(notice of hearing). that there was a clerical or
typographical error or mistake shall
be published once a week for two
(2) consecutive weeks.
Grounds for Change of Name (R-C-A-U-S-E)
1. Name is Ridiculous, tainted with dishonor, or
extremely difficult to write or pronounce;
2. Change is a legal Consequence of legitimation or
adoption;
3. Change will Avoid confusion;
4. When one has continuously Used and been
known since childhood by a Filipino name, and
was unaware of alien parentage;
5. Sincere desire to adopt Filipino name to erase
signs of former alienage, all in good faith and
without prejudicing anybody; or
6. Surname causes Embarrassment and there is
no showing that the desired change of name
was for a fraudulent purpose or that the change
of name would prejudice public interest.
(Republic v. CA, G.R. No. 97906, 21 May 1992)
The above grounds are not exclusive. The matter of
whether to grant a petition for change of name is left
to the sound discretion of the court. (De Leon &
Wilwayco, 2020)
When Petition is Granted
The petition should be granted where there is:
1. Proper and reasonable cause; and
2. Where there is no showing that the petition
was motivated by fraudulent intent, or that the
change of name will prejudice public interest.
(Oshita v. Republic, G.R. No. L-21180, 31 Mar.
1967)
When Petition is NOT granted
A change of name should not be permitted if it will
give a false impression of family relationship to
another where none actually exists. (Republic v.
Marcos, G.R. No. 31065, Feb. 15, 1990)
415
newspaper of general circulation
(notice of hearing). (2007 BAR)
Change of Name is a Matter of Public Interest
The State has an interest in the names borne by
individuals and entities for purposes of
identification. A change of name is a privilege and
not a right (Republic v. Gallo, G.R. No. 207074, 17 Jan.
2018). Before one can change his name, he must
show proper or reasonable cause, or any compelling
reason which may justify such change. (Yu Chi Han
v. Republic, G.R. No. L-22040, 29 Nov. 1965)
Illegitimate Child may now use Father’s
Surname
R.A. No. 9255, effective 19 Mar. 2004, amended Art.
176 of the Family Code allowing the illegitimate
child to use the surname of the father if the latter
expressly recognized filiation in a record of birth.
This modifies Leonardo v. CA (G.R. No. 125329, 10
Sept. 2003) disallowing an illegitimate child the
right to use his/her father’s name. (Republic v. CA,
G.R. No. 88202, 14 Dec. 1998)
NOTE: This rule is subject to the requirement that
filiation has been expressly recognized by the father
through:
1. Record of birth appearing in the civil register;
2. When an admission in a public document is
made by the father; and
3. When an admission in a private handwritten
instrument is made by the father. (De Leon &
Wilwayco, 2020)
Q: Who has the choice of use of the name?
A: Art. 176 of the Family Code, as amended by R.A.
No. 9255, gives illegitimate children the right to
decide if they want to use the surname of the father
or not.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
In fact, the Supreme Court in Grande v. Antonio (G.R.
No. 206248, 18 Feb. 2014) voided provisions of the
IRR of R.A. No. 9255 insofar as it provides the
mandatory use by illegitimate children of their
father’s surname upon the latter’s recognition of his
paternity. (De Leon & Wilwayco, 2020)
A minor was allowed to change his surname to his
mother’s since he was never recognized by his
father while his mother has always recognized him
as her child. A change of name will erase the
impression that he was ever recognized by his
father. (Republic v. Capote, G.R. No. 157043, 02 Feb.
2007)
Q: Can an illegitimate child whose filiation is
NOT recognized by the father bear both the
mother’s surname as his middle name and his
father’s surname as his surname?
A: An illegitimate child whose filiation is not
recognized by the father bears only a given name
and his mother’s surname and does not have a
middle name. The name of the unrecognized
illegitimate child therefore identifies him as such. It
is only when the illegitimate child is legitimated by
the subsequent marriage of his parents or
acknowledged by the father in a public document or
private handwritten instrument that he bears both
his mother’s surname as his middle name and his
father’s surname as his surname, reflecting his
status as a legitimated child or an acknowledged
illegitimate child. Accordingly, the registration in
the civil registry of the birth of such individuals
requires that the middle name be indicated in the
certificate. The registered name of a legitimate,
legitimated and recognized illegitimate child thus
contains a given or proper name, a middle name,
and a surname. (In Re: Petition for Change of Name
and/or Correction/Cancellation of Entry in Civil
Registry of Julian Lin Carulasan Wang, G.R. No.
159966, 30 Mar. 2005)
NOTE: As to legitimate or legitimated children, Art.
364 of the NCC provides that the child shall
“principally” use the surname of the father.
However, the word “principally” as used in the codal
provision is not equivalent to “exclusively” so that
there is no legal obstacle if a legitimate or
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
legitimated child should choose to use the surname
of its mother to which it is equally entitled. (In the
Matter of the Petition for Change of Name of Alfon v.
Republic, G.R. No. L-51201 29 May 1980)
Change of Name under Rule 108
The enactment in March 2001 of R.A. No. 9048 has
been considered to lend legislative affirmation to
the judicial precedence that substantial corrections
to the civil status of persons recorded in the civil
registry may be effected through the filing of a
petition under Rule 108. When all the procedural
requirements under Rule 108 are thus followed, the
appropriate adversary proceeding necessary to
effect substantial corrections to the entries of the
civil register is satisfied.
With respect to the correction in Carlito’s birth
certificate of his name from “Carlito John” to
“Carlito,” the same was properly granted under Rule
108 of the Rules of Court. The cancellation or
correction of entries involving changes of name falls
under letter “o” of the following provision of Section
2 of Rule 108: “Entries subject to cancellation or
correction. — Upon good and valid grounds, the
following entries in the civil register may be
cancelled or corrected: xxx (o) changes of name.”
Hence, while the jurisdictional requirements of Rule
103 (which governs petitions for change of name)
were not complied with, observance of the
provisions of Rule 108 suffices to effect the
correction sought for. (Republic v. Kho, G.R. No.
170340, 29 June 2007)
No need for Change of Name by Married Woman
Q: Is there a need for change of name by a
married woman?
A: NO. In case of annulment of marriage or divorce,
there is no need to file a petition for resumption of
maiden name or surname. The true and real name
of a person is that given to him and entered in the
civil register which a woman may continue to use
despite her marriage or cessation of marriage for
whatever cause. The use of the husband’s name is
merely permissive and not obligatory which the
wife may continue to use except in case of legal
416
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
separation. (Yasin v. Judge Sharia District Court, G.R.
No. 94986, 23 Feb. 1995)
Under Art. 370 of the New Civil Code, a married
woman may use:
1. Her maiden first name and surname and add
her husband’s surname;
2. Her maiden first name and her husband’s
surname; or
3. Her husband’s full name, but prefixing a word
indicating that she is his wife, such as “Mrs.”
On the other hand, Art. 372 of the New Civil Code
provides: “When legal separation has been granted,
the wife shall continue using her name and surname
employed before the legal separation.”
Q: Petitioner sought to drop his middle name
and have his registered name changed from
Julian Lin Carulasan Wang to Julian Lin Wang.
Since in Singapore, middle names or the maiden
surname of the mother are not carried in a
person’s name, they anticipate that Julian Lin
Carulasan Wang will be discriminated against
because of his current registered name which
carries a middle name. Julian and his sister
might also be asked whether they are brother
and sister since they have different surnames.
Carulasan sounds funny in Singapore’s
Mandarin language since they do not have the
letter “R” but if there is, they pronounce it as “L.”
It is for these reasons that the name of Julian Lin
Carulasan Wang is requested to be changed to
Julian Lin Wang. Should the petition be granted?
A: NO. Middle names serve to identify the maternal
lineage or filiation of a person as well as further
distinguish him from others who may have the same
given name and surname as he has. Accordingly, the
registration in the civil registry of the birth of such
individuals requires that the middle name be
indicated in the certificate. The registered name of a
legitimate, legitimated and recognized illegitimate
child thus contains a given or proper name, a middle
name, and a surname. In the case at bar, the only
reason advanced by petitioner for the dropping his
middle name is convenience.
417
However, how such change of name would make his
integration into Singaporean society easier and
convenient is not clearly established. That the
continued use of his middle name would cause
confusion and difficulty does not constitute proper
and reasonable cause to drop it from his registered
complete name. (In Re: Petition for Change of Name
and/or Correction/Cancellation of Entry of Civil
Registry of Julian Lin Carulasan Wang, G.R. No.
159966, 30 Mar. 2005)
Q: As may be gleaned from the petition, the
reasons offered for changing the name of
petitioner's daughter are: (1) that "her daughter
grew up with, and learned to love and recognize
Alfredo de la Cruz as her own father"; (2) to
afford her daughter a feeling of security; and (3)
that “Alfredo de la Cruz agrees to this petition,
and has signified his conformity at the foot of
this pleading.” Should the petition be granted?
A: NO. Clearly, these are not valid reasons for a
change of name. The general rule is that a change of
name should not be permitted if it will give a false
impression of family relationship to another where
none actually exists. In Padilla v. Republic (G.R. No.
L-28274, 30 Apr. 1982), it was specifically held that
our laws do not authorize legitimate children to
adopt the surname of a person not their father, for
to allow them to adopt the surname of their
mother's husband, who is not their father, can result
in confusion of their paternity.
Another reason for disallowing the petition for
change of name is that it was not filed by the proper
party as provided under Secs. 1 and 2, Rule 103 of
the Rules of Court. The petition for change of name
must be filed by the person desiring to change
his/her name. It must be her personal decision. No
one else may make it for her. The reason is obvious.
When she grows up to adulthood, she may not want
to use her stepfather's surname, nor any of the
aliases chosen for her by her mother. (Republic v.
Marcos, G.R. No. 31065, 15 Feb. 1990)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
A Person’s First Name cannot be Changed on the
Ground of Sex Reassignment
Q: Petitioner sought to have his name in his birth
certificate changed from “Rommel Jacinto” to
“Mely,” and his sex from “male” to “female.”
Petitioner’s basis in praying for the change of his
first name was his sex reassignment. He
intended to make his first name compatible with
the sex he thought he transformed himself into
through surgery. Can a person’s first name be
changed on the ground of sex reassignment?
A: NO. A change of name does not alter one’s legal
capacity or civil status. R.A. No. 9048 does not
sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion,
changing petitioner’s first name for his declared
purpose may only create grave complications in the
civil registry and the public interest. Also, there is no
such special law in the Philippines governing sex
reassignment and its effects. In our system of
government, it is for the legislature, should it choose
to do so, to determine what guidelines should
govern the recognition of the effects of sex
reassignment.
The changes sought by petitioner will have serious
and wide-ranging legal and public policy
consequences. First, to grant the changes sought by
petitioner will substantially reconfigure and greatly
alter the laws on marriage and family relations. It
will allow the union of a man with another man who
has undergone sex reassignment. Second, there are
various laws which apply particularly to women
such as the provisions of the Labor Code on
employment of women, certain felonies under the
RPC and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of Court,
among others. (Silverio v. Republic, G.R. No. 174689,
22 Oct. 2007)
Where Change of Name Allowed Arising from
Change of Gender
Q: Jennifer was born on Jan. 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
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
diagnosed to have Congenital Adrenal
Hyperplasia (CAH) which is a condition where
persons thus afflicted possess both male and
female characteristics. Jennifer filed a Petition
for Correction of Entries in Birth
Certificate before the RTC, praying 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. Rule on the
petition.
A: CAH is one of many conditions that involve
intersex anatomy. During the twentieth century,
medicine adopted the term “intersexuality” to apply
to human beings who cannot be classified as either
male or female. 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. Sexual
development in cases of intersex persons makes the
gender classification at birth inconclusive. It is at
maturity that the gender of such persons is fixed.
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, there is 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.
Here, it is noteworthy to emphasize that respondent
has simply let nature take its course and has not
taken unnatural steps to arrest or interfere with
what he was born with. 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. (Republic v.
Cagandahan, G.R. No. 166676, 12 Sept. 2008)
418
C2

VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS

Notice to the Solicitor General
The State has an interest in the names borne by
individuals for purposes of identification, and that
changing one’s name is a privilege and not a right.
Accordingly, a person can be authorized to change
his name appearing in either his certificate of birth
or civil registry upon showing not only of
reasonable cause, or any compelling reason which
may justify such change, but also that he will be
prejudiced by the use of his true and official name.
(Republic v. Bolante, G.R. No. 160597, 20 July 2006)
The interest of the State which is represented by the
Solicitor General is paramount over personal right
to choose a name. The State must identify its
subjects. (Ong Peng Oan v. Republic, G.R. No. L-8035,
29 Nov. 1957)
Q: Who may oppose the petition?
A: Any interested person or the Republic of the
Philippines through the Solicitor General or the
proper provincial or city prosecutor (Sec. 4, Rule
103, ROC, as amended)
Judgment
enter the same in the civil register. (Sec. 6, Rule 103,
ROC, as amended)
Effect of Change of Name
A change of name does not define or effect a change
of one’s existing family relations or in the rights and
duties flowing therefrom. It does not alter one’s
legal capacity, civil status or citizenship; what is
altered is only the name. (Republic v. CA, G.R. No.
97906, 21 May 1992)
A change of name granted by the court affects only
the petitioner. A separate petition for change of
name must be filed for his wife or children. The rules
are very explicit. Sec. 2 of Rule 103 of the Rules of
Court provides that a petition for a change of name
shall be signed and verified by the person desiring
his name to be changed, or some other person in his
behalf. (Secan Kok v. Republic, G.R. No. L-27621, 30
Aug. 1973)
E. CANCELLATION OR CORRECTION
OF ENTRIES IN THE CIVIL REGISTRY
(RULE 108)

Upon satisfactory proof in open court on the date Entries Subject to Cancellation or Correction
fixed in the order that such order has been
published as directed and that the allegations of the 1. Births;
petition are true, the court shall, if proper and 2. Marriages;
reasonable cause appears for changing the name of 3. Deaths;
the petitioner, adjudge that such name be changed 4. Legal separations;
in accordance with the prayer of the petition. (Sec. 5, 5. Judgments of Annulments of marriage;
Rule 103, ROC, as amended) 6. Judgments declaring marriages void from the
beginning;
A decree of adoption grants the adoptee the right to 7. Legitimation;
use the adopter’s surname, if change of first name is 8. Adoptions;
so desired, it must be prayed and alleged in the 9. Acknowledgments of natural children;
petition for adoption. (Sec. 10, in relation to Sec. 16, 10. Naturalization;
A.M. No. 02-6-02-SC) 11. Election, loss or recovery of citizenship;
12. Civil interdiction;
Service of Judgment 13. Judicial determination of filiation; and
14. Change of name. (Sec. 2, Rule 108, ROC, as
Judgments or orders shall be furnished the civil amended)
registrar of the municipality or city where the court
issuing the same is situated, who shall forthwith

419 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
Procedural Requirements under Rule 108
include:
1. Filing a verified petition;
2. Naming as parties all persons who have or claim
any interest which would be affected;
3. Issuance of an order fixing the time and place of
hearing;
4. Giving reasonable notice to the parties named
in the petition; and
5. Publication of the order once a week for 3
consecutive weeks in a newspaper of general
circulation.
NOTE: The legitimacy and filiation of children
cannot be collaterally attacked in a petition for
correction of entries in the certificate of live birth.
Otherwise, the filiation of the said children would be
gravely affected, affecting not only his or her
identity, but her successional rights as well.
Certainly, this change is substantial. (Miller v. Miller,
G.R. No. 200344, 28 Aug. 2019)
Q: Celine files a petition for cancellation of the
birth certificate of her daughter Jeanie on the
ground of falsified material entries therein
made by Celine’s husband as the informant. The
RTC sets the case for hearing and directs the
publication of the order once a week for 3
consecutive weeks in a newspaper of general
circulation. Summons was served on the Civil
Registrar but there was no appearance during
the hearing. The RTC granted the petition.
Jeanie filed a petition for annulment of
judgment before the CA, saying that she was not
notified of the petition and hence, the decision
was issued in violation of due process. Celine
opposed saying that the publication of the court
order was sufficient compliance with due
process rule. (2007 BAR)
A: It should not be granted. The publication of an
order of hearing under Sec. 4 of Rule 108 cured the
failure to implead an indispensable party. A petition
for correction is an action in rem, an action against a
thing and not against a person. Publication is notice
to the whole world that the proceeding has for its
object to bar indefinitely all who might be minded
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
to make an objection of any sort against the right
sought to be established. It is the publication of such
notice that brings in the whole as a party in the case
and vests the court with jurisdiction to hear and
decide it. (Republic v. Kho, supra; Alba v. CA, supra;
Barco v. CA, G.R. No. 120587, 20 Jan. 2004)
Q: Helen is the daughter of Eliza, a Filipina, and
Tony, a Chinese, who is married to another
woman living in China. Her birth certificate
indicates that Helen is the legitimate child of
Tony and Eliza and that she is a Chinese citizen.
Helen wants her birth certificate corrected by
changing her filiation from “legitimate” to
“illegitimate” and her citizenship from “Chinese”
to “Filipino” because her parents were not
married. What petition should Helen file and
what procedural requirements must be
observed? Explain. (2005 BAR)
A: A petition has to be filed in a proceeding under
Rule 108 of the Rules of Court. A petition to change
the record of birth by changing the filiation from
“legitimate” to “illegitimate” and petitioner’s
citizenship from “Chinese” to “Filipino” does not
involve a simple summary correction which could
otherwise be done under the authority of R.A. No.
9048.
Q: Mary Jane met Shiela May at the recruitment
agency where they both applied for overseas
employment. They exchanged pleasantries,
including details of their personal
circumstances. Fortunately, Mary Jane was
deployed to work as front desk receptionist at a
hotel in Abu Dhabi where she met Sultan Ahmed
who proposed marriage, to which she readily
accepted. Unfortunately for Shiela May, she was
not deployed to work abroad, and this made her
envious of Mary Jane.
Mary Jane returned to the Philippines to
prepare for her wedding. She secured from the
National Statistics Office (NSO) a Certificate of
No Marriage. It turned out from the NSO records
that Mary Jane had previously contracted
marriage with John Starr, a British citizen, which
she never did. The purported marriage between
Mary Jane and John Starr contained all the
420
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
required pertinent details on Mary Jane. Mary
Jane later on learned that Shiela May is the best
friend of John Starr. As a lawyer, Mary Jane seeks
your advice on her predicament. What legal
remedy will you avail to enable Mary Jane to
contract marriage with Sultan Ahmed? (2014
BAR)
A: A Petition for Correction or Cancellation of Entry
under Rule 108 may be filed by Mary Jane because
what she sought to be corrected is only the record
of such marriage in the Civil Registry Office in order
to reflect the truth as set forth by the evidence, and
not the nullification of marriage as there was no
marriage in the first place. (Republic v. Olaybar, G.R.
No. 189538, 10 Feb. 2014)
Q: Hades, an American citizen, through a dating
website, got acquainted with Persephone, A
Filipina. Hades came to the Philippines and
proceeded to Baguio City where Persephone
resides. Hades and Persephone contracted
marriage solemnized by the Metropolitan Trial
Court judge of Makati City. After the wedding,
Hades flew back to California, United States of
America, to wind up his business affairs.
On his return to the Philippines, Hades
discovered that Persephone had an illicit affair
with Phanes. Immediately, Hades returned to
the United States and was able to obtain a valid
divorce decree from the Superior Court of the
County of San Mateo, California, a court of
competent jurisdiction against Persephone.
Hades desires to marry Hestia, also a Filipina,
whom he met at Baccus Grill in Pasay City.
a. As Hades’ lawyer, what petition should you
file in order that your client can avoid
prosecution for bigamy if he desires to
marry Hestia?
A: As Hades’ lawyer, I would file a petition for
recognition of a foreign divorce decree, or at least a
special proceeding for cancellation or correction of
entries in the civil registry under Rule 108 of the
Rules of Court and include therein a prayer for
recognition of the aforementioned divorced decree.
421
In Corpus v. Sto. Tomas (G.R. No. 186571, 11 Aug.
2010), the High Court declared that the recognition
of the foreign divorce decree maybe made in a Rule
108 proceeding itself, as the object of special
proceedings (such that in Rule108 of the Rules of
Court) is precisely to establish the status of a party
or a particular fact. (Fujiki v. Marinay, G.R. No.
196049, June 26, 2013)
b. In what court should you file the petition?
A: Petition for cancellation or correction of entries
under Rule 108 should be filed in the RTC of Makati
City, where the corresponding Local Civil Registry is
located.
c. What is the essential requisite that you must
comply with for the purpose of establishing
jurisdictional facts before the court can hear
the petition? (2015 BAR)
A: Before the court can hear the petition under Rule
108 of the Rules of Court, Hades must satisfy the
following procedural requirements:
1. Filing a verified petition;
2. Naming as parties all persons who have or claim
any interest which would be affected;
3. Issuance of an order fixing the time and place of
hearing;
4. Giving reasonable notice to the parties named
in the petition; and
5. Publication of the order once a week for 3
consecutive weeks in a newspaper of general
circulation. (Rule 108, ROC, as amended; Co v.
Civil Register of Manila, G.R. No. 138496, 24 Feb.
2004; Corpuz v. Tirol, G.R. No. 186571, 11 Aug.
2010)
Q: Who may file the petition? (1993 BAR)
A: Any person interested in any act, event, order or
decree concerning the civil status of persons
recorded in the civil registry may file a verified
petition. (Sec. 1, Rule 108)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
Q: Where should it be filed?
A: In the RTC of the province where the
corresponding civil registrar is located. (Sec. 1, Rule
108, ROC, as amended)
Nature of Proceedings
GR: Summary in nature.
It should be limited solely to the implementation of
Art. 412 of the Civil Code. The said article
contemplates a summary hearing, involving
correction of clerical errors of a harmless,
innocuous nature, not changes involving civil status,
nationality, or citizenship, which are substantial or
controversial. (In the Matter of the Petition for
Correction of Entry Appearing in Civil Registry; of Ty
Kong Tin v. Republic, G.R. No. L-5609, 05 Feb. 1954)
XPN: Adversarial proceedings if:
1. The procedural requisites under Secs. 3, 4, and
5 of Rule 108 are followed; or
2. When the civil registrar or any person having
or claiming interest in entries sought to be
cancelled and/or corrected files an opposition
and it is actively prosecuted. (Republic v. Kho,
G.R. No. 170340, 29 Jun. 2007)
Adversarial Proceedings
One having opposing parties, contested, as
distinguished from an ex parte application, one of
which the party seeking relief has given legal
warning to the other party, and afforded the latter
an opportunity to contest it. (Republic v. Valencia, G.
R. No. L-32181, 05 Mar. 1986)
No substantial change or correction in an entry in a
civil register can be made without a judicial order,
and, under the law, a change in citizenship status is
a substantial change. (Republic v. Kho, G.R. No.
170340, 29 Jun. 2007)
When is Procedure for Corecction Summary or
Adversary
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
Rule 108 of the Rules of Court provides the
procedure for cancellation or correction of entries
in the civil registry. However, a special proceeding
is not always summary, it may either be summary or
adversary. If the correction is clerical, then the
procedure is summary. If the rectification affects the
civil status, citizenship or nationality of a party, it is
deemed substantial, and the procedure to be
adopted is adversary. (Republic v. Tipay, G.R. No.
209527, 14 Feb. 2018)
Reason for Adversarial Proceedings
The reason why non-clerical mistakes cannot be
corrected under the summary proceeding set by Art.
412 of the Civil Code “lies in the fact that the books
making up the civil register and all documents
relating thereto shall be considered as public
documents and shall be prima facie evidence of facts
contained therein, and if the entries in the civil
register could be corrected or changed through a
mere summary proceeding, and not through the
appropriate action, wherein all parties who may be
affected by the entries are notified or represented
we would set wide open the door to fraud or other
mischief the consequences of which might be
detrimental and far reaching.” (In Re: Correction of
the Surname of Cesar Yu v. Civil Registrar of Manila,
G.R. No. L-36478, 29 Apr. 1983)
Requisites of Adversarial Proceedings
1. Proper petition is filed where the Civil
Registrar and all parties interested are
impleaded;
2. The order of hearing must be published once a
week for three (3) consecutive weeks;
3. Notice must be given to the Civil Registrar and
all parties affected thereby;
4. The civil registrar and any person interested,
may within fifteen (15) days from notice or
from the last date of publication, files his
opposition thereto; and
5. Full blown trial. (Republic v. Valencia, G.R. No. L-
32181, 05 Mar. 1986)
Reckoning Period
The law did not fix a period within which the
422
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
petition for correction under Rule 108 in relation to
Art. 412 of Civil Code may be filed. When no such
period is fixed, Art. 1149, NCC provides that such
petition may be filed within five (5) years from the
time the petitioner discovered the error or mistake
in the civil registry, and not from the date the birth
certificate was registered in the civil registry. (Lee v.
CA, G.R. No. 118387, 11 Oct. 2001)
Correction of Entry under Rule 108, Proceeding
in Rem
Substantial corrections or cancellations of entries in
civil registry records affecting the status or
legitimacy of a person may be effected through the
institution of a petition under Rule 108 of the
Revised Rules of Court, with the proper RTC. Being
a proceeding in rem, acquisition of jurisdiction over
the person of petitioner is therefore not required in
the present case. It is enough that the trial court is
vested with jurisdiction over the subject matter.
(Alba v. CA, G.R. No. 164041, 29 July 2005)
Substantial Corrections
When a petition for cancellation or correction of an
entry in the civil register involves substantial and
controversial alterations including those on
citizenship, legitimacy of paternity or filiation, or
legitimacy of marriage, a strict compliance with the
requirements of Rule 108 is mandated. (Republic v.
Coseteng-Magpayo, G.R. No. 189476, 02 Feb. 2011)
Indispensable Parties must be Notified
1. Civil Registrar; and
2. All persons who may have a claim or interest
which would be affected thereby (Sec. 3, Rule
108, ROC, as amended)
Summons must still be served, not for the purpose
of vesting the courts with jurisdiction, but to comply
with the requirements of fair play and due process.
This is but proper, to afford the person concerned
the opportunity to protect her interest if she so
chooses. (Ceruila v. Delantar, G.R. No. 140305, 09
Dec. 2005)
Q: Eduardo filed a petition for correction of
entries and cancellation of annotation in his
423
certificate of live birth (COLB) under Rule 108 of
the Rules praying that his records in the civil
registry be corrected to reflect his surname as
“Santos” instead of “Cu,” his nationality as
“Filipino” instead of “Chinese,” his filiation as
“illegitimate” instead of “legitimate,” and his
mother’s civil status as “single” instead of
“married.” Impleaded as respondents in his
petition are the Local Civil Registrar of Manila,
National Statistics Office, and all persons who
shall be affected by the proceedings.
The Office of the Solicitor General was notified
through service of a copy of the petition. May
Eduardo may impugn his legitimate status and
claim that he is a Filipino citizen through a
petition for correction of entries in his COLB
filed under Rule 108 of the Rules?
A: A petition for correction of entry under Rule 108
of the Rules covers not only clerical errors, but also
substantial changes. The difference lies only on the
procedure which would govern the correction
sought. If the correction is clerical, then the
procedure to be adopted is summary. If the
rectification affects the civil status, citizenship or
nationality of a party, it is deemed substantial, and
the procedure to be adopted is adversary. In this
case, what Eduardo seeks to correct are not mere
clerical errors as the changes sought to be carried
out are substantial.
Though publication of the notice of hearing may
cure the failure to implead all affected or interested
parties in certain cases, Eduardo failed to
demonstrate to the Court that he exerted earnest
efforts in bringing to court all possible interested
parties, including his siblings, their descendants,
and the purported Chinese wife of his father.
Nevertheless, the dismissal of Eduardo's petition for
correction of entries and cancellation of annotation
in his COLB is without prejudice to the filing of
another petition under Rule 108 to modify his
surname from “Cu” to “Santos,” the last name of his
mother. (Santos v. Republic, G.R. No. 221277, 18 Mar.
2021)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2

REMEDIAL LAW
Duty of the Court
F. CLERICAL ERROR LAW
Upon the filing of the petition, it becomes the duty (R.A. No. 9048, as amended by R.A. No.
of the court to: 10172)

1. Issue an order fixing the time and place for the

hearing of the petition, and
2. Cause the order for hearing to be published
once a week for 3 consecutive weeks in a
newspaper of general circulation in the
province. (Sec. 4, Rule 108, ROC, as amended)
R.A. No. 9048 as amended by R.A. No. 10172
(Administrative Correction of Clerical or
Typographical Error in an Entry and/or Change
of First Name or Nickname in the Civil Register)
R.A. No. 9048 now governs the change of first name.
It vests the power and authority to entertain
petitions for change of first name to the city or
municipal civil registrar or consul general
concerned. Under the law, therefore, jurisdiction
over applications for change of first name is now
primarily lodged with the aforementioned
administrative officers. (Republic of the Philippines
v. Gallo, G.R. No. 207074, 17 Jan, 2018)

Nature of Proceeding

The intent and effect of the law is to exclude the

change of first name from the coverage of Rules 103
(Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the
Rules of Court, until and unless an administrative
petition for change of name is first filed and
subsequently denied. It likewise lays down the
corresponding venue, form and procedure. In sum,
the remedy and the proceedings regulating change
of first name are primarily administrative in nature,
not judicial. (Silverio v. Republic, G.R. 174689, 22 Oct.
2007)

Coverage (F-E-D-S)

1. Change of First name or nickname;

2. Correction of clerical or typographical Errors;
3. Change of the Day and month in the date of
birth; and
4. Change of Sex of a person. (Sec. 1 of R.A. No. 9048
as amended by R.A. No. 10172) (2005 BAR)

NOTE: The obvious effect of R.A. No. 9048 is merely

to make possible the administrative correction of
clerical or typographical errors or change of first
name or nickname in entries in the civil register,

UNIVERSITY OF SANTO TOMAS 424

2023 GOLDEN NOTES
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
leaving to Rule 108 the correction of substantial
changes in the civil registry in appropriate
adversarial proceedings. (Republic v. Benemerito,
G.R. No. 146963, 15 Mar. 2004)
R.A. No. 10172 which was approved on Aug. 15,
2012 and became effective on Sept. 8 of the same
year, now allows the administrative correction of
(a) day and month of the date of birth and (b) sex of
a person provided that it is patently clear that there
was a clerical or typographical error or mistake in
the entry. Moreover, the grounds enumerated are
subject to the qualification that the error or mistake
to be corrected must be patently clear and it must
be within the competence of the local civil registrar
or consul general. (R.A. No. 10172, 08 Sept. 2012)
Clerical or Typographical Error
It refers to a mistake committed in the performance
of clerical work in writing, copying, transcribing or
typing an entry in the civil register that is harmless
and innocuous, such as misspelled name or
misspelled place of birth, mistake in the entry of day
and month in the date of birth or the sex of the
person or the like, which is visible to the eyes or
obvious to the understanding, and can be corrected
or changed only by reference to other existing
record or records.
NOTE: No correction must involve the change of
nationality, age (correction on year of birth), or
status of the petitioner. (Sec. 2(3), R.A. No. 9048 as
amended by R.A. No. 10172; NSO Administrative
Order No. 1 Series of 2012)
Q: Petitioner’s certificate of birth in the civil
registry, certificate of baptism, and elementary,
high school, and college diploma uniformly
show her name as Merlyn Mercadera. However,
when she secured an authenticated copy of her
certificate of live birth from the National
Statistics Office, she discovered that her given
name as registered is Marilyn and not Merlyn.
Thus, she sought the correction of her given
name from Marilyn to Merlyn under Rule 108 of
the Rules of Court.
425
The OSG posits that the conversion from
“MARILYN” to “MERLYN” is not a correction of an
innocuous error but a material correction
tantamount to a change of name which entails a
modification or increase in substantive rights.
For the OSG, this is a substantial error that
requires compliance with the procedure under
Rule 103, and not Rule 108. Is the contention of
OSG correct?
A: NO. The petition filed by Mercadera before the
RTC correctly falls under Rule 108 as it simply
sought a correction of a misspelled given name. To
correct simply means “to make or set aright; to
remove the faults or error from.” To change means
“to replace something with something else of the
same kind or with something that serves as a
substitute.” From the allegations in her petition,
Mercadera clearly prayed for the lower court “to
remove the faults or error” from her registered
given name “MARILYN,” and “to make or set aright”
the same to conform to the one she grew up to,
“MERLYN.” It does not take a complex assessment of
said petition to learn of its intention to simply
correct the clerical error in spelling. The CA did not
allow Mercadera the change of her name. What it
did allow was the correction of her misspelled given
name which she had been using ever since she could
remember.
Besides, granting that Rule 103 applies to this case
and that compliance with the procedural
requirements under Rule 108 falls short of what is
mandated, it still cannot be denied that Mercadera
complied with the requirement for an adversarial
proceeding before the lower court. The publication
and posting of the notice of hearing in a newspaper
of general circulation and the notices sent to the
OSG and the Local Civil Registry are sufficient
indicia of an adverse proceeding. The fact that no
one opposed the petition, including the OSG, did not
deprive the court of its jurisdiction to hear the same
and did not make the proceeding less adversarial in
nature. Considering that the OSG did not oppose the
petition and the motion to present its evidence ex
parte when it had the opportunity to do so, it cannot
now complain that the proceedings in the lower
court were procedurally defective. (Republic v.
Mercadera, G.R. No. 186027, 08 Dec. 2010)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
NOTE: Correction is allowed only on the day and
month of birth but not on the year of birth because
this will already alter the age of the petitioner.
R.A. No. 9048 as amended by R.A. No. 10172 does
NOT apply to Substantial Corrections
Sec. 2(3), R.A. No. 9048 provides that a summary
administrative proceeding to correct clerical or
typographical errors in a birth certificate cannot
apply to a change in nationality. Substantial
corrections to the nationality or citizenship of
persons recorded in the civil registry should,
therefore, be effected through a petition filed in
court under Rule 108 of the Rules of Court.
(Kilosbayan Foundation v. Ermita, G.R. No. 177721,
03 July 2007)
Grounds for a Change of First Name or Nickname
under R.A. No. 9048
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. (Sec. 4, R.A. No.
9048 as amended by R.A. No. 10172)
Where to file the Petition for Correction of Entry
or Change of Name under R.A. No. 9048
1. Resident of the Philippines – Local Civil
Registry Office (city or municipal civil registrar)
of the city or municipality where the record
being sought to be corrected or changed is kept.
NOTE: The local civil registrar has primary, not
exclusive, jurisdiction over such petitions for
correction of clerical errors and change of first
name or nickname, with R.A. No. 9048
prescribing the procedure that the petitioner
and local civil registrar should follow. Since R.A.
No. 9048 refers specifically to the
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
administrative summary proceeding before the
local civil registrar, it would be inappropriate to
apply the same procedure to petitions for the
correction of entries in the civil registry before
the courts. (Re: Final Report on the Judicial Audit
Conducted at the RTC, Br. 67, Paniqui, Tarlac,
A.M. No. 06-7-414-RTC, 19 Oct. 2007)
2. When the petitioner has migrated to another
place within the Philippines and it is not
practical for such party, in terms of
transportation expenses, time and effort to
appear before the local civil registrar of the
place of birth – Local Civil Registry Office (city
or municipal civil registrar) of the place where
the petitioner is residing or domiciled.
3. When the person is any person whose birth
record was reported abroad and presently
residing in the Philippines – Local Civil
Registry Office (city or municipal civil registrar)
of the place of residence following the
procedures of migrant petition.
NOTE: Place of domicile is not included under
this portion because it is understood that his
domicile is abroad, his birth record having been
reported therein, and under which Philippine
laws do not apply. (Sec. 4, R.A. No. 10172 IRR,
A.O. No. 1, Series of 2012)
4. Citizens of the Philippines who are presently
residing or domiciled in foreign countries –
Nearest Philippine consulate (Consul General).
(Sec. 4, R.A. No. 10172 IRR, A.O. No. 1, Series of
2012)
NOTE: The Philippines Statistics Authority,
being the central statistical authority of the
Philippine Government, is mandated carry out
and administer provisions of laws on civil
registration. It is no longer the National
Statistics Office or NSO. (R.A. No. 10625)
Q: Carla was born with two genitals, one for male
and one for female. Only after maturity did his
male dominant features becomes manifest.
Carla filed a petition for change of name to Carlo.
The available evidence presented in court
426
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
including the fact that Carla thinks of himself as
a male and as to the statement made by the
doctor that Carla’s body produces high levels of
male hormones, which is preponderant
biological support for considering him as male.
Should the petition be granted?
A: YES. Compassion calls for recognition of the
various degrees of intersex as variations should not
be subject to outright denial. The court must give
respect to:
1. The diversity of nature; and
2. How an individual deals with what nature has
handed out.
His congenital condition and his mature decision to
be a male must be considered. (Republic v.
Cagandahan, supra)
G. WRIT OF AMPARO
(A.M. No. 07-9-12-SC)
Writ of Amparo
It is a remedy available to any person whose right to
life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a
public official or employee, or of a private individual
or entity. The writ shall cover extralegal killings and
enforced disappearances or threats thereof. (Sec. 1,
A.M. No. 07-9-12-SC, The Rule on the Writ of Amparo)
Coverage
The Rule on the Writ of Amparo is now a procedural
law anchored, not only on the constitutional rights
to life, liberty and security, but on a concrete
statutory definition as well of what an “enforced or
involuntary disappearance” is. Therefore, A.M. No.
07-9-12-SC’s reference to enforced disappearances
should be construed to mean the enforced or
involuntary disappearance of persons
contemplated in Sec. 3(g) of R.A. No. 9851,
otherwise known as “Philippine Act on Crimes
against International Humanitarian Law, Genocide,
427
and Other Crimes against Humanity.” (Navia, et al. v.
Pardico, G.R. No. 184467, 19 June 2012)
Extrajudicial Killings
These are killings committed without due process of
law, legal safeguards or judicial proceedings.
(Secretary of National Defense v. Manalo, G.R. No.
180906, 07 Oct. 2008)
Enforced Disappearance
The arrest, detention, or abduction of persons by, or
with the authorization, support or acquiescence of,
a State or a political organization followed by a
refusal to acknowledge that deprivation of freedom
or to give information on the fate or whereabouts of
those persons, with the intention of removing from
the protection of the law for a prolonged period of
time. (Sec. 3(g), R.A. No. 9851)
Elements of Enforced Disappearance (A-A-R-R)
1. That there be an Arrest, detention, abduction,
or any form of deprivation of liberty;
2. That it be carried out by, or with the
Authorization, support or acquiescence of, the
State or a political organization;
3. That it be followed by the State or political
organization’s Refusal to acknowledge or give
information on the fate or whereabouts of the
person subject of the amparo petition; and
4. That the intention for such refusal is to Remove
the subject person from the protection of the
law for a prolonged period of time. (Navia, et al.
v. Pardico, G.R. No. 184467, 19 June 2012)
Purpose of the Writ of Amparo
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
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
yield leads to subsequent investigation and action.
(Secretary of National Defense v. Manalo, G.R. No.
180906, 07 Oct. 2008)
The production order under the Amparo Rule
should not be confused with a search warrant for
law enforcement under Art. III, Sec. 2 of the 1987
Constitution. This Constitutional provision is a
protection of the people from the unreasonable
intrusion of the government, not a protection of the
government from the demand of the people such as
respondents. Instead, the Amparo production order
may be likened to the production of documents or
things under Sec. 1, Rule 27 of the Rules of Civil
Procedure. (Ibid.)
Nature of Writ of Amparo
1. Summary Proceeding – The remedy provides
rapid judicial relief as it partakes of a summary
proceeding that requires only substantial
evidence to make the appropriate reliefs
available to the petitioner; it is not an action to
determine criminal guilt requiring proof
beyond reasonable doubt, or liability for
damages requiring preponderance of evidence,
or administrative responsibility requiring
substantial evidence that will require full and
exhaustive proceedings. (Deliberations of the
Committee on the Revision of the Rules of Court,
10 Aug. 2007, 24 Aug. 2007, 31 Aug. 2007 and 20
Sept. 2008) (2009, 2010 BAR)
An amparo proceeding is not criminal in nature.
While the principal objective of its proceedings
is the initial determination of whether an
enforced disappearance, extralegal killing, or
threats thereof had transpired, the writ does
not fix liability for such disappearance, killing
or threats, whether that may be criminal, civil
or administrative under the applicable
substantive law. (Roxas v. Macapagal Arroyo,
G.R. No. 189155, 07 Sept. 2010)
2. Prerogative Writ – It partakes of the nature of
a prerogative writ that does not determine guilt
nor pinpoint criminal culpability for the
disappearance; rather, it determines
responsibility, or at least accountability, for the
enforced disappearance for purposes of
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
imposing the appropriate remedies to address
the disappearance. (Razon, Jr. v. Tagitis, G.R. No.
182498, 03 Dec. 2009)
Q. Spouses Lucena are the parents of AJ Lucena
(AJ), a 19-year old Grade 11 student at the Far
Eastern University (FEU). AJ was enticed to join
the FEU Chapter of Anakbayan, a youth
organization supposedly advocating ideals of
national democracy. On July 10, 2019, AJ left the
family home for the third time and never came
back. She has since dropped out from FEU.
Seeking mainly to regain custody of AJ, Spouses
Lucena instituted a petition for the issuance of
the writs of amparo and habeas corpus. Should a
writ of amparo be issued?
A: NO. The remedy of amparo, in its present
formulation, is confined merely to instances of
“extralegal killings” or “enforced disappearances”
and to threats thereof. In Lozada, Jr., et al. v.
President Macapagal-Arroyo, et al., the Court
reiterates that the privilege of the writ of amparo is
a remedy available to victims of extra-judicial
killings and enforced disappearances or threats of a
similar nature, regardless of whether the
perpetrator of the unlawful act or omission is a
public official or employee or a private individual.
Here, there is not much issue that AJ’s situation does
not qualify either as an actual or threatened
enforced disappearance or extralegal killing. AJ is
not missing. Her whereabouts are determinable. By
all accounts, she is staying with the Anakbayan and
its officers which, at least insofar as AJ’s case is
concerned, are not agents or organizations acting on
behalf of the State. (Lucena v. Elago, G.R. No. 252120,
15 September 2020)
State Participation as Indispensable
Requirement
State participation is an indispensable element for
the issuance of a writ of amparo. Proof of
disappearance alone is not enough. It is likewise
essential to establish that such disappearance was
carried out with the direct or indirect authorization,
support or acquiescence of the government.
428
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
While the writ may lie 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. This hallmark of
State participation differentiates an enforced
disappearance case from an ordinary case of a
missing person. (Navia, et al. v. Pardico, G.R. No.
184467, 19 June 2012)
For the protective writ of amparo to issue,
allegation and proof that the persons subject
thereof are missing are not enough. It must also be
shown and proved by substantial evidence that the
disappearance was carried out by, or with the
authorization, support or acquiescence of, the State
or a political organization, followed by a refusal to
acknowledge the same or give information on the
fate or whereabouts of said missing persons, with
the intention of removing them from the protection
of the law for a prolonged period of time. Simply put,
the petitioner in an amparo case has the burden of
proving by substantial evidence the indispensable
element of government participation. (Navia, et al. v.
Pardico, G.R. No. 184467, 19 June 2012, as cited in the
dissenting opinion of J. Hernando in Sanchez v.
Darroca G.R. No. 242257, 15 June 2021)
Q: Virginia Pardico, in search of her missing
husband, Ben Pardico, filed a Petition for Writ of
Amparo before the RTC of Malolos City against
Navia, Dio, and Buising who were all security
guards of Grand Royale Subdivision. Allegedly,
Ben was then invited to the security department
of the Grand Royale Subdivision for
investigation after he and Bong Lapore were
suspected of theft of electric wires and lamps in
the subdivision. Navia, et al. assert that they had
released Ben together with Bong on the same
night of the investigation. Navia, et al. prayed for
the denial of the petition for lack of merit. The
RTC, however, granted the privilege of the writ
of amparo. Is Virginia entitled to the privilege of
the writ of amparo?
A: NO. For the protective writ of amparo to issue in
enforced disappearance cases, allegation and proof
that the persons subject thereof are missing are not
enough. The petitioner in an amparo case has the
429
burden of proving by substantial evidence the
indispensable element of government participation
which differentiates an enforced disappearance
case from an ordinary case of a missing person.
Here, the petition does not contain any allegation of
State complicity, and none of the evidence
presented tend to show that the government or any
of its agents orchestrated Ben’s disappearance or
that they failed to exercise extraordinary diligence
in investigating his case. While a writ of amparo may
lie against a private individual or entity,
government involvement in the disappearance
remains an indispensable element. Navia, et al. are
mere security guards and their principal, the Asian
Land, is a private entity. They do not work for the
government, and nothing has been presented that
would link or connect them to some covert police,
military or governmental operation. (Navia, et al. v.
Pardico, G.R. No. 184467, 19 June 2012)
When Writ NOT Available
1. For protection of a property or commercial
right – It is intended to address violations of or
threats to the rights to life, liberty or security, as
an extraordinary and independent remedy
beyond those available under the prevailing
Rules, or as a remedy supplemental to these
Rules. What it is not, is a writ to protect
concerns that are purely property or
commercial. (Tapuz v. Del Rosario, G.R. No.
182484, 17 June 2008)
NOTE: The rule is the same with respect to
habeas data.
The threatened demolition of a dwelling by
virtue of a final judgment of the court is not
included among the enumeration of rights for
which the remedy of a writ of amparo is made
available. Their claim to dwelling, assuming
they still have any despite the final and
executory judgment adverse to them, does not
constitute right to life, liberty and security.
There is, therefore, no legal basis for the
issuance of the writ of amparo. (Canlas v. Napico
Homeowners Association I-XIII, Inc., G.R. No.
182795, 05 June 2008)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
2. In a labor dispute – Employment constitutes a
property right under the context of the due
process clause of the Constitution and does not
constitute an unlawful violation of the right to
life, liberty, or security. (Meralco v Lim, G.R. No.
184769, 05 Oct. 2010)
NOTE: The rule is the same with respect to
habeas data. (Ibid.)
3. For protection of right to travel – A person’s
right to travel is subject to the usual constraints
imposed by the very necessity of safeguarding
the system of justice. In such cases, whether the
accused should be permitted to leave the
jurisdiction for humanitarian reasons is a
matter of the court’s sound discretion. (Marcos
v. Sandiganbayan, G.R. Nos. 115132-34, 09 Aug.
1995)
Here, the restriction on petitioner’s right to
travel as a consequence of the pendency of the
criminal case filed against him was not
unlawful. Petitioner has also failed to establish
that his right to travel was impaired in the
manner and to the extent that it amounted to a
serious violation of his right to life, liberty and
security, for which there exists no readily
available legal recourse or remedy. (Reyes v.
Gonzalez, G.R. No. 182161, 03 Dec. 2009)
4. Inclusion of name in the Order of Battle –
Mere inclusion in the military’s order of battle
which is not supported by independent and
credible evidence stands on nebulous grounds.
The liberality accorded to amparo cases does
not mean that a claimant is dispensed with the
onus of proving his case. (Saez v. Macapagal
Arroyo, G.R. No. 183533, 25 Sept. 2012)
NOTE: The rule is the same with respect to
habeas data.
Responsibility and Accountability
The concept of responsibility is not the same as
accountability under an amparo proceeding.
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
1. Responsibility refers to the extent the actors
have been established by substantial evidence
to have participated in whatever way, by action
or omission, in an enforced disappearance.
2. Accountability refers to the measure of
remedies that should be addressed to those:
a. Who exhibited involvement in the
enforced disappearance without bringing
the level of their complicity to the level of
responsibility defined above;
b. Who are imputed with knowledge relating
to the enforced disappearance and who
carry the burden of disclosure; or
c. Who carry, but have failed to discharge,
the burden of extraordinary diligence in
the investigation of the enforced
disappearance. (Razon, Jr. v. Tagitis, G.R.
No. 182498, 03 Dec. 2009)
Command Responsibility
The doctrine of command responsibility is a rule of
substantive law that establishes liability and, by this
account, cannot be a proper legal basis to implead a
party-respondent (President) in an amparo
petition. Since the application of command
responsibility presupposes an imputation of
individual liability, it is more aptly invoked in a full-
blown criminal or administrative case rather than in
a summary amparo proceeding. The obvious reason
lies in the nature of the writ itself. (Roxas v.
Macapagal-Arroyo, supra)
NOTE: The doctrine does not, by any measure,
preclude impleading military or police commanders
on the ground that the complained acts in the
petition were committed with their direct or
indirect acquiescence. They may be impleaded—not
actually on the basis of command responsibility—
but rather on the ground of their responsibility, or
at least accountability. (Ibid.)
When to Invoke Command Responsibility
If command responsibility were to be invoked and
applied to these proceedings, it should, at most, be
430
C2
C2
REMEDIAL LAW
the place where the threat, act or omission was
committed or any of its elements.
The intent is to prevent the filing of the petition in
some far-flung area to harass the respondent.
Moreover, allowing the amparo petition to be filed
in any RTC may prejudice the effective dispensation
of justice, as in most cases, the witnesses and the
evidence are located within the jurisdiction of the
RTC where the act or omission was committed.
(Annotation on the Writ of Amparo, A.M. No. 07-9-12-
SC)
Contents of the Petition (P-R-I-A-R-O)
1. Personal circumstances of the petitioner and of
respondent responsible for the threat, act or
omission;
2. Violated or threatened Right to life, liberty or
security of the party aggrieved. Stating in detail
the circumstances;
3. Specify the names, personal circumstances of
the Investigating authority or individuals, as
well as the manner and conduct of
investigation;
4. Actions and recourses taken by the petitioner to
determine the whereabouts of aggrieved party
and identity of the person responsible for the
threat, act or omission;
5. The Relief prayed for; and
6. A general prayer for Other just and equitable
reliefs may be included. (Sec. 5, A.M. No. 07-9-
12-SC)
Sufficiency of the Petition in Form and
Substance
The pleader must state the ultimate facts
constituting the cause of action, omitting the
evidentiary details.
However, in an amparo petition, this requirement
must be read in light of the nature and purpose of
the proceeding, which addresses a situation of
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
uncertainty—the petitioner may not be able to
describe with certainty how the victim exactly
disappeared, or who actually acted to kidnap,
abduct or arrest him or her, or where the victim is
detained, because this information may purposely
be hidden or covered up by those who caused the
disappearance.
In this type of situation, to require the level of
specificity, detail and precision is to make the Rule
a token gesture of judicial concern for violations of
the constitutional rights to life, liberty and security.
The test in reading the petition should be to
determine whether it contains the details available
to the petitioner under the circumstances, while
presenting a cause of action showing a violation of
the victim’s rights to life, liberty and security
through State or party action. (Razon, Jr. v. Tagitis,
G.R. No. 182498, 03 Dec. 2009)
In cases where the violation of the right to life,
liberty or security has already ceased, it is necessary
for the petitioner in an amparo action to prove the
existence of a continuing threat. (Lozada v.
Macapagal-Arroyo, G.R. Nos. 184379-80, 31 Apr.
2012)
Contents of Return
Within 5 working days 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: (D-A-I-
P-O)
1. 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;
2. 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;
432
C2
VI. SPECIAL PROCEEDINGS AND SPECIAL WRITS
3. All relevant Information in the possession of the
respondent pertaining to the threat, act or
omission against the aggrieved party;
4. If the respondent is a Public official or
employee, the return shall further state the
actions that have been or will still be taken:
a. To verify the identity of the aggrieved
party;
b. To recover and preserve evidence related
to the death or disappearance of the
person identified in the petition which
may aid in the prosecution of the person
or persons responsible;
c. To identify witnesses and obtain
statements from them concerning the
death or disappearance;
d. 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;
e. To identify and apprehend the person or
persons involved in the death or
disappearance; and
f. To bring the suspected offenders before a
competent court.
5. Other matters relevant to the investigation, its
resolution and the prosecution of the case. (Sec.
9, A.M. No. 07-9-12-SC, as amended)
NOTE: A general denial of the allegations in the
petition shall not be allowed.
Where Returnable, Enforceable
1. When issued by the RTC or a judge thereof, the
writ is returnable before such court or judge;
2. When issued by the Sandiganbayan, CA or any
of their justices, it may be returnable to such
court or any justice thereof, or to any RTC
where the threat, act or omission was
committed or any of its elements occurred;
3. When issued by the SC or any of its justices, it
may be returnable to such Court or any justice
433
thereof, or before the Sandiganbayan or the CA
or any of their justices, or to any RTC in the
place where the threat, act or omission was
committed or any of its elements took place.
(Sec. 3, A.M. No. 07-9-12-SC)
Q: Marinella is a junior officer of the Armed
Forces of the Philippines who claims to have
personally witnessed the malversation of funds
given by US authorities in connection with the
Balikatan exercises. Marinella alleges that as a
result of her exposé, there are operatives within
the military who are out to kill her. She files a
petition for the issuance of a writ of amparo
against, among others, the Chief of Staff but
without alleging that the latter ordered that she
be killed. Atty. Daro, counsel for the Chief of
Staff, moves for the dismissal of the Petition for
failure to allege that his client issued any order
to kill or harm Marinella. Rule on Atty. Daro’s
motion. Explain. (2010 BAR)
A: The motion to dismiss must be denied on the
ground that it is a prohibited pleading under Sec.
11(a) of the Rule on the Writ of Amparo. Moreover,
said Rule does not require the petition therefor to
allege a complete detail of the actual or threatened
violation of the victim’s rights. It is sufficient that
there be an allegation of real threat against
petitioner’s life, liberty and/or security.
Effects of Failure to File Return
The court, justice or judge shall proceed to hear the
petition ex parte. The hearing should not be delayed
by the failure of the respondent to file a return,
otherwise the right to life, liberty and security of a
person would be easily frustrated. (Sec. 12, A.M. No.
07-9-12-SC)
GR: The failure to file a return cannot be extended.
XPN: Except on highly meritorious grounds. Thus, a
motion for extension of time to file a return upon
showing of a highly meritorious ground is no longer
a prohibited pleading.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
C2
REMEDIAL LAW
Omnibus Waiver Rule
All defenses not raised in the return (answer) are
deemed waived. (Sec. 10, A.M. No. 07-9-12-SC)
It is different from the Omnibus Motion Rule which
states that defenses not raised in a Motion to
Dismiss are deemed waived.
NOTE: A motion to dismiss is a prohibited pleading
in an application for a writ of amparo. The filing of a
motion to dismiss even on the ground of lack of
jurisdiction over the subject matter and the parties
is proscribed to avoid undue delay. The grounds of
a motion to dismiss should be included in the return
and resolved by the court, using its reasonable
discretion as to the time and merit of the motion.
(Sec. 11, A.M. No. 07-9-12-SC)
Procedure for Hearing
The nature of the hearing on the petition is
summary. However, the court, justice or judge may
call for a preliminary conference to simplify the
issues and determine the possibility of obtaining
stipulations and admissions from the parties.
The hearing shall be from day to day until
completed and given the same priority as petitions
for habeas corpus. (Sec. 13, A.M. No. 07-9-12-SC)
When Petitioner Fails to Appear
If the petitioner fails to appear due to valid cause
such as threats on his life, the court shall not dismiss
the petition, but shall archive it, if upon its
determination it cannot proceed for a valid cause. A
periodic review of the archived cases shall be made
by the amparo court that shall, motu proprio or upon
motion by any party, order their revival when ready
for further proceedings.
The petition shall be dismissed with prejudice upon
failure to prosecute the case after the lapse of 2
years from notice to the petitioner of the order
archiving the case (Sec. 20, A.M. No. 07-9-12-SC)
NOTE: Due to the extraordinary nature of the writ,
which protects the mother of all rights—the right to
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
life—the petition may be filed on any day, including
Saturdays, Sundays and holidays; and at any time
from morning until evening. (Annotation to the Writ
of Amparo, A.M. NO. 07-9-12-SC)
Issuance of the Writ
Upon the filing of the petition, the court, justice or
judge shall immediately order the issuance if the
writ if on its face it ought to issue. The writ shall be
served immediately. (Sec. 6, A.M. No. 07-9-12-SC)
Privilege of the Writ of Amparo different from
the actual Order of the Writ of Amparo
The privilege of the Writ of Amparo should be
distinguished from the actual order called the Writ
of Amparo. The privilege includes availment of the
entire procedure outlined in A.M. No. 07-9-12-SC,
the Rule on the Writ of Amparo. After examining the
petition and its attached affidavits, the Return and
the evidence presented in the summary hearing, the
judgment should detail the required acts from the
respondents that will mitigate, if not totally
eradicate, the violation of or the threat to the
petitioner’s life, liberty or security.
A judgment which simply grants “the privilege of the
writ” cannot be executed. It is tantamount to a
failure of the judge to intervene and grant judicial
succor to the petitioner. Petitions filed to avail of the
privilege of the Writ of Amparo arise out of very real
and concrete circumstances. Judicial responses
cannot be as tragically symbolic or ritualistic as
“granting the privilege of the Writ of Amparo.” (De
Lima v. Gatdula, G.R. No. 204528, 19 Feb. 2013)
The writ should set the date and time for a summary
hearing of the petition which shall not be later than
seven (7) days from the date if its issuance. (Sec. 6,
A.M. No. 07-9-12-SC)
Institution of Separate Action
A separate action may be filed after filing a petition
for a writ of amparo. It does not preclude the filing
of a separate criminal, civil or administrative action.
(Sec. 21, A.M. No. 07-9-12-SC)
434